Van Loggerenberg and Another v Prigge and Others (91711/2016) [2017] ZAGPPHC 1213 (6 December 2017)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH

COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

REPUBLIC OF SOUTH AFRICA

(1)

NOT REPORTABLE

(2)

NOT OF INTEREST TO OTHER JUDGES

(3) REVISED.

Case Number: 91711/2016

6/12/2017

In the matter between:

JOHANNES

JURGENS VAN LOGGERENBERG

First Applicant

HYBRECHT

JOHANNA VAN LOGGERENBERG

Second Applicant

And

CH

PRIGGE

First Respondent

ESTATE

LATE MARIA PETRONELLA

FREDRIKA

ROETS

Second Respondent

WESSELS

CRONJE

Third Respondent

MARIANA

HARRIS

Fourth Respondent

PIETER UYS Fifth Respondent

AMALIA UYS Sixth Respondent

KAREN

VAN

NIEKERK Seventh Respondent

MASTER OF THE HIGH COURT, PRETORIA Eighth Respondent

JUDGMENT

JANSE VAN NIEUWENHUIZEN J

[1] This application concerns the last Will and Testament of Maria Petronella Fredrika Roets ("the deceased"). The deceased executed two wills, to wit one dated 12 March 2015 ("the 2015 will") and one dated 26 March 2016 ("the 2016 will").

[2] The Master of the High Court (eighth respondent) accepted the 2016 will as the last Will and Testament of the deceased. The applicants contend that the 2016 will does not comply with the formalities prescribed by section 2(1) of the Wills Act, 7 of 1953 and pray for relief confirming same.

FACTS

[3] The first applicant was the son-in-law of the deceased by virtue of his marriage to the second applicant, the daughter of the deceased.

[4] The first respondent is the duly appointed executor of the estate of the deceased. The second respondent is the estate of the deceased, duly represented by the first respondent in his aforesaid capacity. The third and fourth respondents are the children of the deceased, whilst the fifth and sixth respondents are children of the deceased's late daughter, Adrie Uys. The seventh respondent is the agent of the first respondent and the eighth respondent is the Master of the High Court.

[5] The application is opposed by the first to seventh respondents. For ease of reference, the first to seventh respondents will be referred to as "the respondents".

[6] The common cause facts underlying the relief claimed by the applicants are relatively straight forward, to wit:

i. the deceased duly executed the 2015 will;

ii. the signature of the deceased and the signatures of two witnesses, Mr and Mrs Joubert appear on the 2016 will;

iii. the deceased did not sign the 2016 will in the presence of the two witnesses.

LEGAL FRAMEWORK

[7] Section 2(1) of the Act provides as follows:

"2. Formalities required in the execution of a will

(1) Subject to the provisions of section three bis-

(a) no will executed on or after the first day of January, 1954, shall be valid unless -

(i) the will is signed at the end thereof by the testator or by some other person in his presence and by his direction; and

(ii) such signature is made by the testator or by such other person or is acknowledged by the testator and, if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time; and

(iii) such witnesses attest and sign the will in the presence of the testator and of each other and, if the will is signed by such other person, in the presence also of such other person; and

(iv) if the will consists of more than one page, each page other than the page on which it ends, is also so signed by the testator or by such other person anywhere on the page; and ... [own emphasis].

[8] The 2016 w II does not comply with the provisions of section 2(1)(a)(iii) and (iv). In the premises and due to the mandatory provisions of the Act, the will is not valid.

[9] In view of the aforesaid, the applicants are entitled to the relief claimed in the Notice of Motion. This much was, quite correctly, conceded by Mr De Klerk SC, counsel on behalf of the respondents.

RELIEF SOUGHT BY RESPONDENTS

[10] This is, however, not the end of the matter. Mr De Klerk SC submitted that the 2016 will may, in terms of the provisions of section 2(3) of the Act, still be declared to be the last Will and Testament of the deceased.

[11] Although the respondents seek relief in terms of section 2(3) of the Act, they did not file a conditional counterclaim.

[12] Consequently, Mr Van den Berg, counsel for the applicants, submitted that the respondents are not entitled to any relief.

PROCEDURAL POINT

[13] In order to properly consider the procedural point raised on behalf of the applicants, I requested counsel to prepare supplementary heads of argument.

[14] Rule 6 of the Uniform Rules of Court regulates application proceedings. Rule 6(7) allows for the filing of a counter application by a respondent/s that seek/s relief in the main proceedings.

[15] In the premises, the respondents, in addition to supplementary heads of argument, also filed a counter application. The respondents aver that they were taken by surprise by the procedural point raised by the applicants and seek leave for the late filing of the counter application.

[16] Mr van den Bergh, quite correctly, submitted that the respondents should have known all along that a counter claim is a prerequisite for the claiming of relief by respondents in application proceedings.

[17] The court does, however, have a discretion to allow the counter application at this late stage. All the averments in support of the relief claimed in the counter application are contained in the affidavits filed herein and both counsel have addressed the issue sought to be introduced by the counter claim extensively.

[18] In the premises, I deem it expedient and in the interests of justice to deal with the issue raised in the counter application.

[19] The late filing of the counter claim is allowed.

SECTION 2(3) OF THE ACT

Facts

[20] The facts underlying the relief premised on section 2(3) is set out in the answering affidavit of the third respondent as follows:

"9.1 Save for stating that the deceased indeed requested me to change her will and freely deposed to annexure "VL 3" to the Founding Affidavit thereafter. I requested the two witnesses before the deceased signed to sign and they indicated their willingness to do so, as they knew the deceased well The deceased did not want the witnesses present as she was in her pyjamas and not titivated.... .. "

and

"13.1 Save to state that he (sic) deceased actually signed annexure "VL3 the will accepted by the Eighth Respondent as her last will and testament on the 26h March 2016, the a/legations...... . "

[21] Annexure "VL3", being the 2016 will, is a typed document. The third respondent does not state, where, when and by whom the typed document was drafted.

Legal principles

[22] Section 2(3) of the Act provides as follows:

"2(3) If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 1965 (Act No. 66 of 1965), as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection ( 1)."

[23] In Bekker v Naude en Andere 2003 (5) SA 173 SCA at para [9], Olivier JA discussed the meaning to be ascribed to the words "drafted or executed by a person who has diedsince" in section 2(3):

“[9] 'Opgestel' ('drafted') wanneer verge/yk word met 'laat opstel' kan slegs die beperkte betekenis van 'n eie handeling dra. Daar is dan ook 'n reeks beslissings wat hierde beperkte betekenis as die kon-ekte een aangemerk het, onder andere Webster v The Master and Others 1996 SA 34 (D) op 418-F per Magid R; Anderson and Wagner NNO and Another v The Master and Others 1996 (3) SA 779 (K) op 784F-785H per Thring R; Olivier v Die Meester en Andere: In re Boedel L41Yle Olivier 1997 (1) SA 836 (T) op 844A-E per Smit R; Henwick v The Master and Another 1997 (2) SA 326 (K) op 334C-335£ per Foxcroft R (Van Reenen R en Pincus Wnde R samestemmend). Sien ook Ex parte De Sward! and Another NNO 1998 (2) SA 204 (K) op 2078-F per Foxcroft R. Vo/gens hierdie denkrigting moes die oorledene die dokument wat hy of sy bedoel he! om 'n testament te wees, self geskryf of getik het of op 'n ander wyse persoonlik tot stand gebring het 'n Dokument wat die oorledene deur 'n prokureur, bank of ander detrie persoon laat opstel het kwalifiseer dus nie vir bekragtiging uit hoofde van art 2(3) van die Wet nie.n (own emphasis)

[Cited with approval in Van Wetten and Another v Bosch and Others 2004 ( 1) SA 348 (SCA) and Henriques v Giles 2010 (6) SA 51 (SCA).]

[24] The strict provisions of section 2(1) are aimed at achieving certainty in respect of the last Will and Testament of a deceased person. The reason being obvious, it is not possible to determine the mind set and intention of the drafter of the document after his or her demise.

[25] Having regard to the import and purpose of section 2(1), the narrow ambit of section 2(3) follows logically.

Discussion

[26] In casu the author of the 2016 will is unknown. As stated supra, the third respondent, save for stating that the deceased "requested" him to change her will, does not explain the circumstances under which the will was drafted.

[27] It is, however, clear that the 2016 will was not personally typed by the deceased.

[28] Applying the prevailing legal principles to the facts in casu, the 2016 will does not fall within the ambit of section 2(3) and consequently, the counter application cannot succeed.

ORDER

[29] In the premises, I grant the following order:

1. The Last Will and Testament of Maria Petronella Fredrika Roets, previously Cronje, ID Number [….] dated 26 March 2016 is declared null and void.

2. The counter application is dismissed with costs.

3. Costs in respect of the main application to be costs in the administration of the Estate of the late Maria Petronella Fredrika Roets.

N

JANSE VAN NIEUWENHUIZEN J

JUDGE OF THE HIGH COURT OF SOUTH AFRICAGAUTENG DIVISION, PRETORIA

DATE

HEARD

20 November 2017

JUDGMENT

DELIVERED

6 December 2017

APPEARANCES

Counsel for the Applicant:

Advocate J.P. Van den Berg

(082 466 4588/012 452 8725)

Instructed by:

Doman Weitsz Attorneys

Ref: No: ROE19/0001/MS/ADoman

(013-750 0216/7/8)

Counsel for the First Respondent Advocate LS. De Klerk SC

(082 229 9829/011 303 7779)

Instructed by:

Rynhart Kruger Attorneys

Ref: No: Rynhart Kruger

(012 997 4669)