Van Der Merwe v Bosch N.O and Others (39756/2016) [2025] ZAGPPHC 278 (19 March 2025)

Van Der Merwe v Bosch N.O and Others (39756/2016) [2025] ZAGPPHC 278 (19 March 2025)

The court found that the lateness of the Rule 28 amendment was not a valid ground for refusal, as the issue had already been canvassed and the plaintiff would have adequate time to prepare. The objections regarding the legal competence of the settlement agreement were dismissed, as parties are free to accept or reject bequests and to enter into agreements altering estate distributions. The settlement agreement was not found to be contra bonos mores, and no valid grounds of objection existed. The defendants were granted leave to amend their plea, and the plaintiff was ordered to pay the costs of the application, including senior counsel costs on Scale B.

Citation
[2025] ZAGPPHC 278
Parties
Plaintiff: Teresa Van Der Merwe; Defendant: Leon Bosch N.O.; Defendant: Brian Donald Bennett N.O.; Defendant: Gert Johannes Du Plessis N.O.; Defendant: Johannes Gerhardus Van Der Merwe N.O.; Defendant: Lanė Van Der Merwe N.O.; Defendant: CA Van Der Merwe; Defendant: R Van Der Kolff; Defendant: LJJ Basson; Defendant: G Jordaan; Defendant: JG Van Der Merwe; Defendant: Lanė Van Der Merwe; Defendant: Stabilitas Board of Executors (Pty) Ltd N.O.; Defendant: The Master of the High Court, Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 March 2025
Case Number
39756/2016
Procedural Posture
Civil Application / Application for Leave to Amend Plea Under Rule 28
Outcome
Leave to amend the plea is granted to the defendants. The plaintiff is ordered to pay the costs of the Rule 28 application, including senior counsel costs on Scale B.
Judges
Neukircher
Legal Topics
Amendment of Pleadings, Wills and Testamentary Disputes, Freedom of Testation, Settlement Agreements, Contra Bonis Mores
Civil Procedure Family and Children Amendment of Pleadings Wills and Testamentary Disputes Freedom of Testation Settlement Agreements Contra Bonis Mores

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Parties

Teresa Van Der Merwe

Plaintiff

Leon Bosch N.O.

Defendant

Brian Donald Bennett N.O.

Defendant

Gert Johannes Du Plessis N.O.

Defendant

Johannes Gerhardus Van Der Merwe N.O.

Defendant

Lanė Van Der Merwe N.O.

Defendant

CA Van Der Merwe

Defendant

R Van Der Kolff

Defendant

LJJ Basson

Defendant

G Jordaan

Defendant

JG Van Der Merwe

Defendant

Lanė Van Der Merwe

Defendant

Stabilitas Board of Executors (Pty) Ltd N.O.

Defendant

The Master of the High Court, Pretoria

Defendant

Procedural Posture

Civil Application / Application for Leave to Amend Plea Under Rule 28

Legal Issues

  1. 1 Whether the defendants should be granted leave to amend their plea to introduce an alleged settlement agreement regarding the validity of the deceased's Will.
  2. 2 Whether the proposed amendment is excipiable or legally untenable due to alleged contraventions of the Wills Act, common law, or constitutional rights.
  3. 3 Whether the late stage of the amendment application prejudices the plaintiff.

Ratio Decidendi

The court found that the lateness of the Rule 28 amendment was not a valid ground for refusal, as the issue had already been canvassed and the plaintiff would have adequate time to prepare. The objections regarding the legal competence of the settlement agreement were dismissed, as parties are free to accept or reject bequests and to enter into agreements altering estate distributions. The settlement agreement was not found to be contra bonos mores, and no valid grounds of objection existed. The defendants were granted leave to amend their plea, and the plaintiff was ordered to pay the costs of the application, including senior counsel costs on Scale B.

Court Disposition

Leave to amend the plea is granted to the defendants. The plaintiff is ordered to pay the costs of the Rule 28 application, including senior counsel costs on Scale B.

Orders

  • The defendants are granted leave to amend their plea as set out in annexure GP1 to the application.
  • The plaintiff is ordered to pay the costs of the Rule 28 application, including the cost of senior counsel, taxed in accordance with Scale B.