Matthews and Others In re Bragge v Douglasdale Dairy (Pty) Ltd (2014/17307), Ex parte [2016] ZAGPJHC 395; 2018 (4) SA 409 (GJ) (20 May 2016)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG LOCAL DIVISION, JOHANNESBURG)

CASE NO: 2014/17307

REPORTABLE

OF INTEREST TO OTHER JUDGES

REVISED.

20/5/2016

In the matter between:

ROWAN WAUCHOPE MATTHEWS First Intervening Applicant

ROWAN WAUCHOPE MATTHEWS NO Second Intervening Applicant

BIANCA ROSE MATTHEWS Third Intervening Applicant

ELIZABETH TALLULA MATTHEWS Fourth Intervening Applicant

In re

ELIZABETH ANN BRAGGE Applicant

and

DOUGLASDALE DAIRY (PTY) LTD Respondent

J U D G M E N T

MAKHANYA J:

Introduction

[1] There are two opposed applications before me. The first is an application by the applicant, Elizabeth Ann Bragge, for the eviction of the respondent, Douglasdale Dairy (Pty) Ltd, an entity operating as a dairy business, from an immovable property, being certain commercial premises described as Portion 8 of the farm Douglasdale 65, Province of Gauteng (the property). The applicant is the owner of the property (as fiduciary) which she alleges is unlawfully occupied by the respondent.

[2] The second application is by the fideicommissaries in respect of the property, for leave to intervene on the basis of an alleged direct and substantial interest in the main application.

[3] The applicant’s locus standi in the main application is premised based on her capacity as the fiduciary owner of the property under the fideicommissum.

[4] The intervening parties have joined cause with the respondent in seeking a dismissal of the eviction application on the following grounds:

[4.1] The property has been used for more than seventy years as a dairy farm, having in its employment some four hundred employees;

[4.2] The applicant lacks the necessary locus standi to seek the eviction of the respondent from the property;

[4.3] Numerous material and foreseeable disputes of fact are apparent from the eviction application which the applicant was aware of prior to the launching thereof;

[4.4] The eviction application is not bona fide but is brought with an improper, impermissible and ulterior purpose and motive in that;

[4.4.1] The applicant, on the evidence before court in truth does not seek the eviction of the respondent from the property but uses it as a threat of eviction in order to procure a settlement of commercial shareholders disputes between two of the fideicommissaries in respect of the respondent, in circumstances where she is not a director or shareholder of the respondent; and

[4.4.2] In so doing, the applicant as a fiduciary, is attempting to re-write the testator’s will thereby purporting to change the true testamentary intentions of the testator and in addition to circumvent the terms of settlement agreement which was made an order of court in 2001, with her approval, in a family dispute involving Helen Ward, the daughter of the applicant and testator.

[4.5] Possessing fiduciary rights in respect of the fideicommissum over the property, does not entitle the applicant, or any trust established by her, to conclude a fresh lease agreement with the respondent;

[4.6] The applicant is in breach of a number of obligations, imposed on her by virtue of being a fiduciary in respect of the fideicommissum over the property; and

[4.7] Should the court grant the eviction of the respondent, the applicant, owing to the breach of her fiduciary obligations, such as to transfer the property salva rei substantia, ie with a functioning dairy operated by the respondent, will be unable to do so.

Background to the application

[5] For a better understanding of the issues in this matter, it is necessary to briefly set out the background to the applications.

[6] In 1957 Brian Matthews, the paterfamilias of the family (the testator or Brian) who died in January 2000, acquired the property together with the business of the dairy known as Douglasdale Dairy.

[7] In February 1958 the testator and the applicant were married and three children were born from the marriage, namely Rowan Matthews (Rowan), Michael Matthews (Michael) and Helen Rosalind Ward (Helen).

[8] Rowan is the father of Mark Rowan Matthews (Mark), Bianca Rose Matthews (Bianca) and Elizabeth Tallulah Matthews (Elizabeth) who are, together with him the intervening parties in the main application.

[9] In 1966 the business of Brian’s dairy, then a sole proprietorship, was transferred and incorporated into Douglasdale Dairy (Pty) Ltd. In 1985 it was converted into a close corporation. In September 1986 the respondent concluded the first lease agreement with Brian, the owner of the property. In August 1996, first lease agreement was terminated and in September

1996, the first renewal lease agreement commenced.

[10] In March 1998 Brian executed his last will and testament.

[11] During 1999/2000 Helen got involved in a dispute with her family members resulting in a protracted litigation which in 2001 was settled in terms of a settlement agreement which was made an order of court. It appears that Helen renounced all interest in Douglasdale, as well as in the Brian Matthews Trust, a trust established by Brian for purposes of benefiting his and the applicant’s descendants.

[12] Brian died on 21 January 2000.

[13] The second renewal lease agreement was concluded with executors of Brian’s deceased estate on 03 February 2000 and terminated on 31 August 2001, then the third lease agreement commenced.

[14] On the 31 January 2003 the third lease agreement was terminated and, on 01 February 2003, the third renewal lease agreement commenced and terminated on 31 January 2006.

[15] On the 11 July 2006 the property was registered in the name of the applicant.

[16] In February 2009 the applicant and the respondent concluded the fifth renewal lease which was followed on 25 March 2009 with a 60 month lease agreement which terminated on 28 February 2014 subsequent to which the present proceedings were instituted.

[17] In his last will and testament Brian bequeathed the property to the applicant, subject to the fideicommissum I have referred to, in favour of his sons Rowan and Michael. In terms thereof on her death Rowan and Michael and failing them their children, would inherit the property, in 60% and 40% proportions respectively.

[18] In his will Brian further bequeathed his member’s interest in the respondent to Rowan (31%) and Michael (8%).

[19] The testator expressly prohibited alienation of the property unless a certain condition is complied with by the fiduciary namely,

‘I specifically direct that my said wife, ELIZABETH ANNE MATTHEWS,shall not be entitled to sell the said property except with the express written consent of my said sons, ROWAN WAUCHOPE MATTHEWS and MICHAEL BRIAN MATTHEWS…’

[20] The fideicommissum and the legal consequences thereof, specifically on the entitlement of the respondent to occupy the property after termination of the lease agreement on the 28 February 2014, constitute the core issue in this matter. Michael decided not to enter fray. His children filed affidavits not to oppose the application

The law: Fideicommissum

[21] Fideicommissum is a fideicommissary substitution which occurs (in its simplest form) where a testator leaves his estate or part of it to an heir and directs that the bequeathed property is to devolve to a second heir after a certain period or on the happening of an event. Thus the second bequest is made dependent on a resolutive condition (see Kinloch NO v Kinloch 1982 (1) SA 679 (A)). The first heir is known as fiduciarius or fiduciary and the eventual owner is known as the fideicommissarius or fideicommissary.

[22] As the institution of a fideicommissum constitutes a burden on the property bequeathed, it is imperative that an express provision in a will purporting to create or institute a fideicommissum, must clearly evince the intention of the testator to that effect.

[23] On the death of the testator, the fiduciary becomes owner of the property subject to the resolutive condition. As the owner of the property the fiduciary is entitled to the beneficial use and enjoyment of the property including its fruits (see Voet Commentarius 36 1 49-50 and Crookes v Watson 1956 (1) SA 277 (A) 300). The fudiciary is also entitled to occupy the property (Steyn The Law of Wills in South Africa 2nd Ed p 374) as well as to administer the burdened property (Mackenzie v Est. Mackenzie (1906) 23 SC 453). In this regard, the fiduciary is under an implied obligation or prohibition in the administration of the property not to diminish the capital value thereof: it should be used or enjoyed or occupied salva rei substantia (Ex parte Pierre 1950 (3) SA 628 (0) 631-632; Swartz v Van der Vyver 1970 (1) SA 633 (A) 640).

[24] The fiduciary as fideicommissary owner of the property is obliged when the resolutive condition occurs to effect the transfer of the property to the fideicommissary (see Crookes and Swart supra).

[25] The following facts are common cause:

[25.1] The applicant is the owner of the property instituted by the fideicommissum;

[25.2] The respondent occupied the property pursuant to a lease agreement concluded between the respondent and the applicant;

[25.3] Such lease agreement terminated on 28 February 2014;

[25.4] No subsequent lease agreement has been concluded;

[25.5] The fiduciary is obliged when the resolutive condition encapsulated in the fideicommissum arrives, to transfer the fideicommissary immovable property to the fideicommissaries;

[25.6] In terms of the testamentary wishes and intentions of the testator the immovable property cannot be sold or alienated, unless the fiduciary obtains express written consent of Rowan and Michael as his heirs and fideicommissaries.

[26] The issues before this court, in summary, are:

[26.1] The extent and contents of the applicant’s ownership as fiduciary and the exercise of her rights pursuant thereto, in regard to the respondent’s occupancy of the property, given the limitations,

restrictions, prohibitions and obligations imposed by the institution of the fideicommissum on the fiduciary;

[26.2] Whether the applicant as fiduciary, considering the obligations imposed by the fideicommissum, has the necessary locus standi to apply for the eviction of the respondent from the property;

[26.3] Whether the fiduciary, considering the close relationship (unity) as is apparent from the history and testamentary intentions of the testator, can properly

uproot or evict the respondent from the premises that it has occupied for a period exceeding 60 years;

[26.4] Whether the applicants’ claim for eviction as founded under the legal concept ius possidendi can be legally maintained by the court.

[26.5] Whether the fiduciary can claim the right to evict the respondent based on her limited ownership rights of the fideicommissary property and simultaneously act in terms of her obligations to transfer the property, salva rei substantia to the fideicommissaries, when the resolutive condition, her death, arrives;

[26.6] Whether the fiduciary’s rights in relation to the property have vested and the legal consequences thereof if they have indeed vested;

[26.7] Whether the fideicommissaries’ rights in relation to the property have vested or not, and the legal consequences thereof if they have not vested;

[26.8] Whether the fideicommissaries, during the pendency of a condition upon which the vesting of their rights depends, can be said to have a remedy to prevent the alleged unpermitted dealing with the fideicommississary property, or a remedy to protect their alleged interest or right. In other words, whether the fideicommissaries and the intervening parties can prevent, in this application, the fiduciary, the applicant, from evicting the respondent, in an instance where they oppose the application for eviction, alleging breach of fiduciary’s obligations not to transfer the property salva rei substantia, when the resolutive condition, applicant’s death occurs.

Fiduciary’s rights to ownership and its limits

[27] In the institution of a fideicommissum, on the demise of the testator, the fiduciary becomes owner of the fideicommissum property, subject to the resolutive condition, provided that her/his right of ownership has vested. Flavells Exor v Est. Stephan 1912 CPD 404. The vesting of his or her right to ownership of the burdened property is referred to as the vesting of right to dominium, which right generally vests upon the testator’s death. See Central South Africa Railways v Geldenhys MR, G.M. Co Ltd 1907 T H 278; Rand Water Board v Registrar of Deeds 1906 T.S. 686; Simmer and Jack Proprietary Mines Ltd v Union Government 1915 A.D. 396; Union of SA v Simmer and Jack Proprietary Mines Ltd 1918 A.C 602. The vesting of dominium in fideicommissum was dealt with by Watermeyer JA in Jewish Colonial Trust Ltd v Estate Nathan 1940 AD 163 at 175 as follows:

‘When it is said that a right is vested in a person, what is usually meant is that such a person is the owner of that right – that he has all the right of ownership in such right – including the right of enjoyment.’

[28] Upon delivery of the burdened property or on its registration with the Registrar of Deeds, the fiduciary becomes owner of the right to dominium ( Estate Kemp v The Donalds' Trustee 1915 AD 491; Greenberg v Estate of Greenberg 1955 (3) SA 361 (A) 364-365 and Greeff v Estate Greeff 1957 (2) SA 269 (A) 274 – 275). This ownership, however, being ownership of a burdened property is not full ownership largely because the fiduciary is obliged, when the time arrives or when fideicommissary condition is fulfilled to effect the transfer of the property to the fideicommissaries (Crookes v Watson 1956 (1) SA 277 (A) 299; and Swart v Van der Vyver 1970 (1) SA 633 (A)).

[29] The fideicommissary property was registered in the name of the applicant on the 11th July 2006. Accordingly, she became the owner of the fideicommissary property.

[30] As the owner, the applicant is entitled to the beneficial use and enjoyment of the property and to take its fruits (see Crookes & Watson supra). The general rule is that, in the absence of a clear prohibition to the contrary, a fiduciary is entitled to deal with his rights as he or she pleases as long as he or she restores the corpus to the fideicommissary heirs (see Estate Mariconwitz v Mariconwitz 1914 CPD 958 at 961; and Ex parte Wessels 1949 (2) SA 99 (0) at 104).

[31] As the owner, further, the applicant is entitled to occupy the fideicommissary property (see Steyn The Law of Wills in South Africa 2nd ed p 374 and Lee and Honoré Family, Things and Succession Second Edition 1983). In this sense ‘occupy’ refers to ‘being in possession’, or the state of being occupied (Cape Town Council v Kaizer 17 SC 282; Rex v Green 1911 NPD 119).

[32] Above, I referred to dominium vis-a-vis ownership. Dominium according to Grotius (Introduction 2.3.1) is:

‘That attribute of a thing whereby a person, though not actually in possession of it, may acquire the same by legal process.’

[33] Grotius’ clarification to the concept of dominium and how it can be claimed or enforced by the owner, is equivalent, in my view, to the right to the possession of a thing ius possidendi and its protection, in contradistinction to the right of possession referred to as possessionis.

[34] The respondent disputed applicant’s claim for its eviction based on ius possidendi in submitting, inter alia:

‘That she (the applicant) does not enjoy the ius possidendi or any right to possess the property.’

[35] I do not agree. Ius possidendi is a right to the possession of a particular thing arising de iure (see Elastocrete Pty Ltd v Dickens 1953 (2) SA 644 (SR) 648). The existence of an ius possidendi does not imply actual possession provided ownership is proven (see Kramer Trustees Christian Coloured Vigilance Council Grassy Park 1948(1) SA 748 (C) 757; Kotze v Pretorius 1971 (4) SA 346 (W) 350 B-D; Ngewu v Union Co-operative Bark and Sugar Co. Ltd, Masondo v Union Co-operative Bark and Sugar Co. Ltd 1982 (4) SA 390 (N) 394D). In other words, it is sufficient for this version of possession if the claimant has ius possidendi qua owner.

[36] Accordingly, the applicant, having proven ownership of property she would be entitled to ius possidendi, especially regard being had to the fact that it is common cause that the fideicommissary property is registered in her name.

[37] Again in its submission the respondent disputed her claim as grounded on possessory claim. I do not agree. The applicant would, in law, be entitled to claim ejectment of the respondent from the fideicommissary property under this claim (see, for example, Pretoria Stadsraad v Ebrahim 1979 (4) 193 (T), confirmed on appeal in Ebrahim v Pretoria Stadsraad 1980 (4) SA 10 (T); Jadwat & Moola v Seedat 1956 (4) SA 273 (N) 276).

[38] Consequently, as the applicant’s right to dominium in the burdened fideicommissary property vested in her on testator’s death and ownership on its registration in her name, she is undoubtedly entitled to eject the respondent from the burdened fideicommissary property, as a fiduciary.

[39] Of course, it is imperative to reiterate that the exercise of her ownership is made limited by the institution of the fideicommissum as the fideicommissary is property registered in favour of the fideicommissaries. However, that limit or restriction entails the fact that when the resolutive condition is fulfilled, on the death of the applicant, as per the testators wish, the fideicommissary property must be transferred to the fideicommissaries.

[40] The restriction imposed by the fideicommissum does not affect the control or authority over how she exercises her rights to ownership before the occurrence of the condition. The only caveat imposed by implied prohibitions or obligations pending the occurrence of the condition, is to manage and preserve the fideicommissary property according to the standard of the notional bonus paterfamilias (See Voet 3.6.1.61; Corbett et al The Law of Succession in South Africa (2001 Edition) p 316).

[41] The respondent has raised the issue involving the applicant’s lack of locus standi. Locus standi refers to the right and capacity to sue in an action and vice versa.

[42] The registration of the fideicommissary immovable property, in the applicant’s name, which is common cause, puts this issue, beyond question, as the applicant cannot, be vested with ownership yet lack the right to sue. In Jewish Colonial Trust Ltd v Estate Nathan 1940 A.D 163 at 175 it was held:

‘When it is said that a right is vested in person, what is actually meant is that such person is owner of that right - that he has all the right of ownership in such right including the right of enjoyment.’

(see also Estate Kemp & Others v McDonalds’ Trustee 1915 AD 491 at 499, where Innes CJ observed:

‘In modern practice “fiduciary” is most frequently used to denote an heir or legatee who holds the bequeathed property as owner and for his own benefit subject to its passing to fidei-commissaries upon happening of a certain condition.’

[43] It must be emphasised that the fideicommissum does not make the fiduciary’s exercise of rights to possession of the fideicommissary property conditional or dependent on any rights allegedly acquired and held by the fideicommissaries as submitted by the respondent. The fiduciary exercises rights to possession of property as defined above under the ius possidendi qua owner. By definition, fideicommissaries, pending the occurrence of the resolutive condition, acquire or hold no definite protectable rights, save the right to interdict the fiduciary if he or she alienates or threatens to alienate the property. I shall revert to this topic later in this judgment.

[44] The respondent further argues that she lacks locus standi to evict as she only has bare dominium. This submission is premised on an allegation that in terms of the fideicommissum created by the testator, she holds the fideicommissary immovable property in trust for the fideicommissaries and is obliged to transfer the farm to the fideicommissaries when the time comes for its restitution as a functioning dairy. The argument proceeded along the lines that it was the testamentary intention or wish of the testator that the farm and the dairy (respondent) would be united. In regard to the allegation of trust, the respondent submits:

‘Where a trust property (ie a fiduciary property) is dealt with contrary to the terms of the trust, a person with a contingent interest under the trust can take action to restore the status quo.’

[45] The submission that in terms of the fideicommissum created by the testator the applicant holds the fiduciary property in trust for the fideicommissaries misconceives the law pertaining to fideicommissum and trust law. A disposition in a will forming a trust is a disposition where the property is left to a person, the trustee, in a trust, to be administered not for that person himself but for the benefit of a particular person or for some other purpose. The two institutions differ in that a fideicommissum involves a succession of interests, whereas the trustee and trust beneficiary in the trust have concurrent interests. By

definition the trustee does not have any beneficial interest in the trust property whereas the fiduciary does have an interest in the fideicommissary property (see, generally, Braun V Blann & Botha NNO [1984] ZASCA 19; 1984 (2) SA 850 (A)). One should not therefore equate the trust with a fideicommissum. This distinction of course, does not detract from the fact that it is the duty or obligation of the fiduciary to manage or administer and preserve the fideicommissary property pending the fulfilment of the fideicommissary condition.

[46] The respondent argued that the fiduciary, in terms of the testator’s will, is obliged to transfer the farm to the fideicommissaries when the time comes for restitution as a functioning dairy.

[47] In this regard, the argument is that the deceased (testator)

‘....clearly intended, as principled position that the respondent, the dairy and Douglasdale farm would be reunited with one another on (the applicants’) death.’

and further that the applicant is required to use the fideicommissary property ‘… in the manner in which it was intended (ie as a dairy operated by and as Douglasdale dairy)’ or otherwise ‘in the manner in which it has been customary to exploit the fiduciary property of that kind ……’

[48] Support for these submissions was sought to be found in the affidavit of Rowan Matthews on behalf of the respondent stating that the testator, his father, confided to him, during his lifetime, his intentions as found in his will. It was further submitted that the court’s interpretation of the testator’s testamentary intentions must be complemented by what the testator allegedly discussed with or confided to Rowan Matthews.

[49] Whether testator’s testamentary wishes or intentions are correctly set out as alleged, turns on the contents of his will and its interpretation.

[50] In this regard:

‘The golden rule for the interpretation of testaments is to ascertain the wishes of the testator from the language used.’

per Innes ACJ (as he then was) in Robertson v Robertson’s Executors 1914 AD 503 at 507; Cuming v Cuming 1945 AD 201 at 206; and Will NO v The Master 1991 (1) SA 206 (C) 209 -215.

[51] The principal or primary aim of the interpretation of a will is to establish the true meaning of the words used by the testator. If the words used are susceptible or capable of more than one meaning, extrinsic evidence will be admissible. Other than that the clear meaning of the words used is conclusive (see Ex Parte Mouton 1955 (4) SA 460 (A) at 465).

[52] Even in the interpretation of documents or contracts the starting point is always to construe or interpret them by ascertaining the plain words used. (see Dexgroup (Pty) Ltd v Trust Co Group International (Pty) Ltd & Others 2013 (6) SA 520 (SCA) where Wallis JA, having reviewed the authorities, concluded:

‘These cases make it clear that in interpreting any document the starting point is inevitably the language of the document….’.

[53] The relevant portions of the will of the testator read as follows (clause 4.2):

‘I give, devise and bequeath to my wife ELIZABETH ANN MATTHEWS, my immovable property, being Portion 8 of the Farm Douglasdale 65, Province of Gauteng, together with all buildings and improvements thereon, subject to the condition that upon her death the following shares in the property shall devolve upon my sons as to 60% thereof to my son ROWAN WAUCHOPE MATTHEWS and as to 40% to my son MICHAEL BRIAN MATTHEWS (or failing them, upon their issue then alive, per stirpes), as fideicommissaries.

I specifically direct that my said wife, ELIZABETH ANN MATTHEWS shall not be entitled to sell the said property except with express consent of my said sons …’.

Clause 4.6

‘I give, devise and bequeath to my son ROWAN WAUCHOPE MATTHEWS, a 31% (thirty one per cent ) member’s interest and to my son, MICHAEL BRIAN MATTHEWS, and 8% (eight per cent) member’s interest in the close corporation DOUGLASDALE DAIRY CC (CK No : 85/02328/23) (“the corporation”)……’.

[54] It is abundantly clear from the quoted provisions that the testator simply created a fideicommissum and bequeathed the fideicommissary property firstly, to the applicant (his wife) and upon her death secondly, to his sons, failing them, thirdly, to their children, then alive. The applicant inherited the fideicommissary property as the fiduciary and his sons as fideicommissaries.

[55] The testator further clearly bequeathed his member’s interest in the respondent, Douglasdale Dairy CC, in respective ratio percentages to his sons who are fideicommissaries in respect of fideicommissary property.

[56] The two bequests in respect of the immovable property and the testator’s member’s interest in the respondent were clearly separated if regard is had to the words used which leave no room for ambiguity or obscurity. The meaning of those words accordingly is clear which is that the bequests are distinguishable from each other. This effectively dispenses with the respondent’s argument that the testator intended the farm and the close corporation to be united or to be reunited with each other on the fiduciary’s death or that the fideicommissary property is to be used as a dairy, operating under the name Douglasdale dairy. In summary: the testamentary words used are of clear meaning and conclusive and therefore cannot be subverted to or amplified by the evidence of Rowan Matthews.

[57] The allegation that Rowan Matthews was purportedly allowed to exercise control over Douglasdale Dairy in terms of the testamentary disposition, as provided for in the 2001 court order, in my view, is not suggestive of a union or unification of the farm and the dairy either before the fiduciary’s death or after her death. There is accordingly no bar to eviction.

[58] It in any event seems to me that there are other facts which objectively put paid to the respondent’s submissions or defences:

[58.1] The respondent, is an entity with a separate juristic personality, duly registered and incorporated in accordance with the company laws of the Republic. The testator had merely a member’s interest in the respondent, which interest he distinguished from the fideicommissum and separately bequeathed it to his sons;

[58.2] The will does not purport to bequeath the business of the dairy, nor could it do so, inasmuch as the business was not owned, in contradistinction to the farm, by the deceased, but by the respondent;

[58.3] It is trite that ownership in a company vests in the entire shareholding of the company and not individual members;

[58.4] The will does not purport to place any condition by the testator on the bequest to his sons to the extent that the control of the company should be accorded to any of his sons nor that the respondent should remain in the occupation of the property;

[58.5] The will does not contain any provisions from which it can be inferred that the deceased purported to bequeath the fideicommissary property to the respondent;

[58.6] The will contains no express or implied prohibition against the leasing of the fideicommissary property. To the extent that the respondent relies upon the absence of an express or implied prohibition against its eviction in the testator’s will, the fiduciary is entitled to exercise her ius possidendi qua owner;

[58.7] Thus, unless the will instituting her as a fiduciary provides otherwise, she is entitled to let the property for her own benefit during the period preceding the fulfilment of the condition imposed by the testator (see Voet 19.2.4 and 16 (Gane’s translation) and Parkin v Lippert 12 SC 179 at 184).

[59] It is common cause that prior to the deceased death, that is, before 2001 and, thereafter, the causa giving rise to the respondents’ occupation of the property arose from the various lease agreements between the owner of the property and the respondent. Firstly, between the deceased and the respondent, thereafter between the executor of the deceased’s estate and the respondent and ultimately between the applicant and the respondent.

[60] As stated above, the last signed lease agreement between the applicant and the respondent expired due to effluxion of time, in February 2014.

[61] It is of significance to observe that the testator made a provision in his will in terms of which the fiduciary is not entitled to sell the fideicommissary property save with the express written consent of his sons. The testator accordingly expressly sanctioned the alienation of the property on condition his sons consent thereto, inasmuch as he would have expressly sanctioned the union or unification of the farm and dairy, in some manner, if he had so wished or desired. Such an insertion in the will could readily have been made had this been the wish of the testator. That would have guaranteed the respondent’s continued possession and occupation and brought an end to the various lease agreements.

[62] The respondent and the intervening non-parties to the application heavily rely on an alleged prejudice should an order for eviction be made. Hence they are seeking the courts’ protection, inasmuch as the applicant is allegedly in breach of her fiduciary’s obligations

[62.1] to take care and maintain the fideicommissary property in such a manner that at the time for restitution of the property it is not diminished in value, applying the standard of care required of a bonus paterfamilias; and

[62.2] to transfer the property at the restitution salva rei substantia, maintaining the essential qualities of the farm undiminished in value and extent including the dairy.

[63] It was further submitted that the gravity of the granting of the application will be accompanied by

‘… the deprivation and/or erosion of the interests and rights of the fideicommissaries in respect of the fiduciary property, (which rights are vested and in the nature of inter alia, real rights and constitutional property rights).’

[64] It is true, as I have already stated above, and as submitted, that the fiduciary’s duties or obligations include managing and preserving the fideicommissary property and upon the fulfilment of the fideicommissum condition to transfer the property, not having diminished in value and to transfer it salva rei substantia.

[65] However, the pertinent questions are, whether:

[65.1] the fiduciary’s duties and obligations, can concomitantly, consist of the fideicommissaries vested rights or interests;

[65.2] those alleged vested rights or interests are capable of the court’s protection; and

[65.3] if indeed they are vested rights, it can be said to be in the nature of real rights.

[66] Vesting, as pointed out above, in this sense, involves transfer of dominium (ownership) rights.

[67] The vesting of the fideicommissaries rights or interests is dependent upon the fulfilment of the resolutive condition imposed by the testator when instituting or establishing the fideicommissum (see Estate Kemp and Others v McDonald’s Trustee 1915 A D 491 at 500 where Innes CJ observed;

‘The general presumption, where a testamentary disposition is expressed in the form of a fideicommissum is that the testator intended to postpone any vesting in the fideicommissary heirs until the happening of a specified condition. Pending that event, the dominium is in the fiduciary, and a mere spes in the remainder.)

(See also, Lee & Honoré Family, Things and Succession 2nd Edition para 676 p 449, where it is stated:

‘In a conditional fideicommissum the fideicommissary property vests in the fideicommissary upon fulfilment of the condition provided that the fideicommissary is still alive. Prior to fulfilment of the condition, the fideicommissary has a contingent right to the property.’

Put differently, the fideicommissary has a vested personal right against the fiduciary, subject to a resolutive condition (see Van der Merwe and Rowland Die Suid Afrikaanse Erfreg (6th Ed) 1990 at p 334 – 335).

[68] The question then becomes, pending the fulfilment of the condition on which the vesting of the fideicommissarys’ rights depends, whether the fideicommissary has any rights. The legal position of the content of the fideicommissary rights, prior to the fulfilment of the fideicommissum condition is not settled. Prima facie different views or decisions have been arrived at by our courts (see Lawsa Second Ed Vol 31 para 373).

[69] Generally, it is said, until the fulfilment of the condition the fideicommissary has no right to the property but only a spes or hope to succeed (see Estate Kemp and others v McDonalds Trustee supra, at 500; Wasserman v Sacktein 1980 (2) SA 356 (O) 545; Wille’s Pringles of SA Law (8th Ed) para 400).

[70] However, the settled law appears to be that a fideicommissary has, prior to the fulfilment of the condition, only a contingent right to the property (see Voet Commentaries (Gane’s translation) 7.1.13; Jewish Colonial Trust Ltd v Estate Nathan supra at 176; Ex parte Boonzaair 1952 (3) SA 204 (C) at 210 where it was observed:

“[n]ormally the rights of the fideicommissaries are contingently vested”, and these rights become “operative and effective on the termination of the rights of fiduciary”.

(See also Lawsa supra at p 263 para 373, where the authors submit:

‘…that the view that the fideicommissary has a (contingent) personal right against the fiduciary or his or her estate and a (contingent) real right where the onus fideicommissi has been registered against the title deed of immovable property is correct’.

[71] I am alive to the reference in the matter of Barnhoorn v Duvenage 1964 (2) SA 486 (A) to a ‘fideicommissary right’ or ‘personal right’ or a ‘ius in personam’ (see also Van der Merwe v Registrateur Van Aktes 1975 (4) SA 636 (T)) which has led to an interpretation that a fideicommissary has a vested personal right against the fiduciary. However, this interpretation has always been qualified in that the fideicommissary has a vested personal right against the fiduciary which vested personal right is subject to a resolutive condition (see Van der Merwe & Rowland Die Suid Afrikaanse Erfreg op cit p 334-335, where it is stated:

‘Die voor-die-hand-liggende oplossing is daarin geleë dat die fideicommissarius wel ‘n vorderingsreg ten opsigte van die fideicommissêre goed het voor vervulling van die voorwaarde of verstryking van die termyn, maar dat hierdie reg onderhewig is aan ‘n ontbindende voorwaarde….’

[72] Moreover, as already alluded to, these are personal and not real rights. Thus, I am unable to agree with the respondent that their rights are ‘vested real rights’ as their rights are contingent or conditional and will only vest at the fulfilment of the condition at the death of the applicant.

[73] The question remains whether these rights, being only contingent or conditional, can be enforced by some remedy, by the fideicommissaries pending the fulfilment of the condition.

[74] The fideicommissaries are protected even before the condition is fulfilled in respect of some claims. Thus, the court will interdict a threatened

alienation of the fideicommissary property (see Van Rensburg v Registrar of Deeds 1924 CPD 508 at 510). The court will moreover refuse to grant execution against the fideicommissary property in respect of a judgment obtained against the fiduciary (see Van Heerden v Van Vuuren 1924 TPD 222 at 227). Further, the courts will not generally allow the fiduciary to mortgage the property (see Ex parte Staden 1923 OPD 19). In these instances, the fideicommissaries are protected as the conditional resolutive rights exist which form an obligation against the fiduciary.

[75] However, in general, the contingent or conditional rights in relation to duties owed by the fiduciary, become enforceable or operative and effective on the termination of the rights of the fiduciary (see Ex parte Boonzaaier supra at 210; Corbett et al op cit p 319; Cronje and Roos Casebook on the Law of Succession (4th Ed) 2002; Reeder v Softline Ltd 2001 (2) SA 844 (W)). The reason for the rights not having vested is that the condition has not been fulfilled and therefore no effective and operative rights acquired. Thus the fideicommissary is not entitled to enforce them pending the fulfilment of the condition.

[76] Once the fideicommissary right or interest vests, at the fulfilment of the condition, the fideicommissary, acquires personal vested rights in relation to the prohibitions, limitations, obligations and duties imposed by the fideicommissum on the fiduciary in relation to the fideicommissary property. The fideicommissaries at that time can institute a personal action or claim against the fiduciary or his or her estate for the breach of his or her duty, obligation or limitation imposed by the fideicommissum in relation to the fideicommissary property. (Grotius Inleidinge 2 20 12; Groenewegen De Lag Abr ad C 4 63; Sande De Prohibita Rerum Alienetime 373; The Secretary of the Board of Executors of Minor and Fideicommissary Heirs of Brink, C. Son and Syfret Trustee of Insolvent Estate of C P Brink (1867) 55329336.

[77] Therefore on the facts of the present application the applicant owes no duty to transfer the fideicommissary property salva rei substatia to the fideicommissaries, as they have no vested rights or interests, due to the condition not yet having been fulfilled.

[78] For all the above reasons I conclude that the applicant is possessed of rights to evict the respondent.

[79] The intervening parties (fideicommissaries) have no protectable vested interest based on duty of fiduciary salva rei substantia in relation to the fideicommissary property, as the condition upon which fideicommissum depends has not yet been fulfilled. Their opposition accordingly is dismissed.

[80] The applicant is entitled to let the property for the period of her own right of possession but not beyond that.

[81] The respondent and the intervening parties have failed to show any substantial disputes of fact on the papers before me.

[82] The respondent and the intervening parties have also failed to show that the eviction application is not bona fide and is brought with improper impermissible and ulterior purpose and motive.

[83] In the result the following order is made:

[1] The applicant’s supplementary affidavit is accepted.

[2] The applicant’s application for the eviction of the respondent from the fideicommissary property is granted. Accordingly, the respondent and all those who occupy the fideicommissary property situate at Douglasdale Dairy, 1 Waterloo Road, Bryanston, by virtue of the respondent’s occupation thereof,

are hereby evicted. The costs are to follow this outcome including the costs of the two counsel.

[3] The application by the intervening parties for leave to intervene in the eviction application is dismissed with costs, such costs to include the costs of two counsel.

_________________________

GM MAKHANYA

JUDGE OF THE HIGH COURT

LOCAL DIVISION, JOHANNESBURG

APPEARANCES

For the Applicant: Advocate J. J. Brett SC

Advocate D. Mahon

Instructed by: Hogan Lovells (South Africa) Incorporated

As Routledge Modise Inc.

For the Intervening Applicants: Adv M. R. Helens SC

Adv G. W. Amm

Instructed by: Steve Merchak Attorneys

For the Respondent: Adv M. R. Helens SC

Instructed by: Livingstone Crichton Attorneys

Date of Hearing: 13 and 14 October 2015

Date of Judgment: 20 May 2016