Court name
High Court Main Division
Case number
APPEAL 314 of 2011
Case name
Tjamuaha v Master of the High Court
Media neutral citation
[2015] NAHCMD 245
Judge
Schimming-Chase AJ










REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT


Case
no: A 314/2011


DATE:
12 OCTOBER 2015


REPORTABLE


In
the matter between:


JORAM
JANINGAPARA
TJAMUAHA.....................................................................1st
APPLICANT


MAANDERO
MARKUS
TJAMUAHA.....................................................................2nd
APPLICANT


And


MASTER
OF THE HIGH
COURT.........................................................................1st
RESPONDENT


CONSTANTIA
TJAMUAHA..................................................................................2nd
RESPONDENT


ABSA
TRUST LIMITED: TRUST
SERVICES....................................................3rd
RESPONDENT


AGRICULTURAL
BANK OF
NAMIBIA..............................................................4th
RESPONDENT


AUGUSTINUS
KUHANGA....................................................................................5th
RESPONDENT


HANNCHEN
SCHNEIDER
N.O
............................................................................6th
RESPONDENT


Neutral
citation:
Tjamuaha v Master of the High
Court (A 314-2011) [2015] NAHCMD 245 (12 October 2015)


Coram:
Schimming-Chase AJ


Heard:
19 June 2015


Delivered:
12 October 2015


Flynote:
Trustee – removal of – appointment of
new trustee. 


Fideicommissum
meaning of – requirements –
restraint against alienation. 


Curator
ad litem – necessary to represent minor and unborn
children. 


Prescription
– Extinctive prescription – debt what constitutes. 
Claim for rei vindicatio not constituting debt - Accordingly
not prescribing after 3 years  – Prescription Act 68 of
1969 s 10. 


Applications
and motions – factual disputes – final relief granted on
facts averred in applicant’s affidavits admitted by respondent
together with facts alleged by the respondent unless denial raises
fictitious disputes, or is so implausible as to justify rejection on
the papers. 


Contract
– Formation of - Consensus
ad idem
– misrepresentation – party to – when concluding a
redistribution agreement signatory was not aware what she was
signing, nor was she aware at the time, that by signature, she
relinquished her right to her half share in a joint estate comprising
immovable property.  Caveat
subsciptor
principle not applicable. 


Summary:
 Applicants and second respondent are the
two surviving sons and widow respectively of the deceased. 
Second respondent was married to the deceased in community of
property.  The deceased purported via testamentary trust to
bequeath the entire joint estate comprising in a farm to his
administrator in trust, which he was not entitled to do,  The
administrator was given the obligation to manage the Trust and to pay
the income from the farming activities to the second respondent until
she died, thereafter to the applicants until they died, thereafter
the capital and accumulated income to the descendants of the
applicants, failing which the nephew of the testator. 
Subsequent to the deceased’s death the second respondent signed
a redistribution agreement in terms of which she relinquished her
half share in the joint estate to the administrator in trust, subject
to the conditions set out in the deceased’s will.  Second
respondent moved to the farm where she had been farming on an
uninterrupted and commercial basis since 1990.  The
administrator did not manage the farm or fulfil any of the
requirements and obligations imposed, and summarily resigned in
2007.  The applicants discovered that the second respondent
registered a mortgage bond over the farm in 2010.  Applicants
applied to be appointed as administrators of the Trust by virtue of
the provisions of the redistribution agreement.  Second
respondent in a counter application applied to set the redistribution
agreement aside and claim her half share in the farm on the grounds
that there was no consensus
ad idem
when the redistribution agreement was signed.  It was
represented to her that she was only signing documents in relation to
her husband’s estate, it was never explained to her that she
was entitled to half of the joint estate, or that she could obtain a
division of the estate. 






With
regard to the plea of prescription raised by the applicants, the
court approved the principles in
ABSA
v Keet[1]

that a vindicatory claim is not a debt for purposes of section 10 of
the Prescription Act, No 68 of 1969.  It accordingly does not
prescribe in 3 years, but in 30 years.  Applying the
Plascon-Evans
rule, the court found that the facts in support of the allegations by
the second respondent of lack of consensus
ad
idem

could not meaningfully be gainsaid by the applicants.  The
administrator, though served with papers, chose not to place any
facts on record to dispute them.  In the result the application
was granted.  The court set aside the redistribution agreement
and directed the Master to appoint an executor to administer the
will.  The court further directed that an independent
administrator be nominated by the President of the Law Society of
Namibia to manage and administer the deceased’s portion of his
estate via the testamentary trust.


ORDER


 


1.   
The redistribution agreement concluded on
14 March 1989 between the second respondent and H Fourie in his
capacity as executor of the estate late: Kaimbire Tjamuaha and J van
Zyl as nominee of Bank Corp Trust and administrator of the estate
late: Kaimbire Tjamuaha Testamentary Trust is declared to be of no
force and effect and set aside. 


 


2.   
The first and final liquidation and
distribution account in the estate of the late Kaimbire Tjamuaha
dated 12 October 1989 is hereby set aside. 


 


3.   
The supplementary first and final
liquidation and distribution account in the estate of the late
Kaimbire Tjamuaha dated 26 May 1999 is set aside. 


 


4.   
The Master of the High Court is directed to
appoint an executor with the power to administer, liquidate and
distribute the half share of the late Kaimbire Tjamuaha in the joint
estate as at the time of his death in accordance with the terms set
out in his last will and testament. 


 


5.   
The Master of the High Court shall further
direct the executor so appointed to transfer one half share in the
aforesaid joint estate to the second respondent. 


 


6.   
An independent administrator shall be
appointed to the estate late: Kaimbire Tjamuaha Testamentary Trust No
173/1989 by the President of the Law Society of Namibia. 


 


7.   
The aforesaid administrator appointed by
the President of the Law Society of Namibia is exempted from the duty
of providing security to the Master of the High Court for his or her
duties as administrator and shall be entitled to compensation in
terms of the last will and testament of the late Kaimbire Tjamuaha. 


 


8.   
There shall be no order as to costs in
respect of the applicants’ application. 


 


9.   
The applicants are directed to pay the
costs of the counter application, such costs to include the costs of
one instructing and one instructed counsel. 


JUDGMENT


SCHIMMING-CHASE,
AJ


[1]
The applicants, in what I shall
refer to as the main application, seek an order removing the third
respondent, ABSA Trust Limited:  Trust Services, formerly
Bankorp Trust Bpk (“ABSA Trust”) from their offices as
administrators of the Testamentary Trust  (No 173/89) (“the
Trust”) of the estate of the late Kaimbire Tjamuaha (the
deceased), and an order that the applicants replace ABSA Trust as
administrators of the Trust, subject to the terms and conditions of
the deceased’s last will and testament.  The two
applicants are the sons of the deceased. 


[2]          
The
first respondent is the Master of the High Court.  The second
respondent is the widow of the deceased.  She was married to the
deceased in community of property.  She opposes the application
in limited form[2]. In a
substantive counter application, the second respondent applies for
the following wide ranging relief:


 


(a)         
an order declaring a redistribution
agreement concluded on 14 March 1989 between her and one Hermanus
Johannes Fourie (in his capacity as the executor of the deceased’s
estate), as well as one Jacobus Adriaan Louw Van Zyl (as nominee of
Bankorp Trust (now ABSA Trust)) to be of no force and effect;


(b)         
an order setting aside the first and final
liquidation and distribution account in the deceased’s estate
dated 12 October 1989, as well as the supplementary first and final
liquidation and distribution account dated 26 May 1999;


(c)        
an order directing the Master to appoint an
executor to administer, liquidate and distribute the half share of
the deceased in their joint estate at the time of the deceased’s
death in accordance with the terms set out in his will;


(d)         
an order that  the duly appointed
executor be directed to transfer one half share in the aforesaid
joint estate to the second respondent;


(e)         
an order that the second respondent is
appointed as administrator of the deceased’s estate in the
Trust created by the deceased;


(f)          
in the alternative and in the event 
that the court finds that neither the applicants or the second
respondent should be appointed as administrators of the Trust,
directing that an administrator be appointed by the President of the
Law Society of Namibia;


(g)         
in the event that the court grants the
relief sought by the applicants, directing the applicants to furnish
security to the value of the Trust property, such value to be
determined by a property valuator appointed by the President of the
Law Society. 


[3]          
This matter has a long, drawn out
and complicated history.   


[4]          
At issue is certain immovable
property, namely Portions 5 (Okauta Noord) , measuring 3190,9527
hectares, and Portion 6 (Koue Water) measuring 3239,2849 hectares of
the Farm Otjombindi, No 234, Gobabis held by Deed of Transfer No
T742/1989 (“the Farm”).  The farm was registered in
the deceased’s name on 14 March 1989. 


[5]          
The common cause background facts
are the following:  The second respondent and the deceased were
married in community of property on 18 September 1985.  They did
not have any children together.  At the time the parties
married, the second respondent already had 5 children from a previous
relationship and the deceased had two sons from previous
relationships.  As stated above, those two sons are the
applicants. 


[6]          
The
deceased passed on 15 May 1989.  He suffered from cancer and
travelled to Cape Town from time to time for treatment. 
Unbeknownst to the second respondent, the deceased executed a last
will and testament in Cape Town during November 1988.  In terms
of the will, the deceased bequeathed “his estate”,
comprising the Farm (registered in his name) and some moveable
assets, in trust to his administrator,[3]
and directed that the net income of the Trust was to be paid to the
second respondent until her death. After her death, the income was to
be paid to the applicants until the death of the last dying of them. 
The Trust would then terminate on the date of the last dying of the
second respondent and the applicants, with the trust capital and
accumulated income to be transferred to the applicants’
children or their lawful issue by representation or failing such
issue to the deceased’s nephew, Augustinus Kuhanga (the fifth
respondent and nephew of the deceased) or his lawful issue, per
stirpes.[4] 


[7]          
On 12 July 1989 the second
respondent signed a redistribution agreement in terms of which she
relinquished her half share of the joint estate to the Trust to be
dealt with in terms of the deceased’s will.  She was also
given ownership, it would seem, of the movable farm property, but the
difference between the value of her half share of the farm and the
value of half the movable property, resulted in a debt of
N$50,000.00, owing to her which the Trust would repay on her death. 


[8]          
The
second respondent has been permanently residing on and managing the
farm commercially since 1990, some six months after the deceased’s
passing.  Apart from a couple of visits the administrators
appear to have done nothing in line with the fulfilment of their
obligations, and I deal with this aspect in more detail below.  The
value of the farm has in the meantime increased to over N$4 million. 
Since taking over, the second respondent invested some N$120,000.00
into the farm, which she received from one
Mr Minaar.[5] 
She took her first personal loan from the fourth respondent in the
amount of N$62,000.00 and a further personal loan of N$96,600.00
which was used to effect further improvements and repairs to the
farm.  The loans were fully paid off by the second respondent. 
The applicants resided on the farm with the second respondent for a
period of time both before and subsequent to the deceased’s
passing.  This is where the essential commonality of the
background facts ends. 


 


[9]          
It
is necessary for purposes of this judgment to reproduce the salient
extracts from the deceased’s last will and testament, as well
as the redistribution agreement[6]
that the second respondent seeks to set aside in her
counter-application. 


 


A.


 


I
bequeath my estate as follows: 


1.           
My immovable farm property, farming
vehicles, farming equipment, farming implements, livestock, any
shares that has a nexus with my farming activities and all other
movable assets that are associated with my farming business, in a
trust, to my Administrator to whom I shall confer the powers and
bestow the following obligations: 


 


1.1      
to accept, control administer, rent out, to sale (sic) or to
covert into currency the assets, or to rent or purchase any movable
and immovable property, as they deem it fit in their exclusive
discretion to be in the interest of the trust.  It is my wish
that my farm property will not be sold. 


 


1.2      
To invest any cash in such a manner as they may decided (sic) it
to be proper and fit without being influenced in any way by any
considerations which might otherwise lead to limit it to investments
in recognised trustee-securities.  The administrator is also
hereby authorised to recall any investments and to invest the
fruitage thereof in conformity with the preceding provisions. 


 


1.3      
To borrow any amount of money in the execution of any provisions of
this trust and to provide any form of security for the appropriate
repayment thereof, including the power to bond assets of the trust,
to mortgage, or to burden with mortgage. 


 


1.4      
To pay the net income from the trust to my spouse, CONSTANCIA
TJAMUAHA (born KAVEZEPA), until her demise. 


After
the demise of my spouse the income should be paid to my two sons
JORAM and MARKUS until the death of the last dying. 


 


1.5      
At the termination of the trust at the death of my mentioned spouse
and my mentioned sons and the trust capital as it existed, together
with any accumulated income be paid to my mentioned sons children or
their lawful decendants by substitution or, by lack of any
descendants to comit (sic) it or pay it over to my sisters
child, AUGUSTINUS KUHANGA, or his lawful descendants per stirpes


 


2.           
The remainder to me (sic)
mentioned spouse, or if she does not
survive me, to my children, MARKUS and JORAM, or their lawful
escendants per stirpes.


 


        
B. 
…….


 


C.


I
appoint BANKORPTRUST LIMITED as Executor of my estate and
Administrator of any trust created herein and I exempt them from the
duty of providing security to the Master of the High Court. 


 


For
their duties as administrators BANKORPTRUST LIMITED shall be entitled
to compensate (sic) against a tariff as laid down from time to
time, by the said company. 


 


BANKORPTRUST
LIMITED is further authorised to make use of the services of any
subsidiary or related company to their discretion and shall
consequently be entitled to any compensation, for such services
rendered. 


 


Signed
at Cape Town on this 9th day of November 1988 in the
presence of the undersigned witnesses, all simultaneously present”


 


[10]       
On 12 October 1989 (approximately
five months after the deceased’s death), the second respondent
signed a redistribution agreement as follows: 


 


REDISTRIBUTION
AGREEMENT


ESTATE
LATE K TJAMUAHA


ESTATE
NUMBER 173/89


 


Agreement
entered into between and by


 


(a)       
CONSTANCIA TJAMUAHA (born KAVEZEPA) surviving spouse in my personal
capacity and as natural guardian of my two minor children JORAM
TJAMUAHA And MARKUS TJAMUAHA.


AND


(b)       
HERMANUS JOHANNES FOURIE as nominee of Bankorptrust and as such
executor in the estates late K TJAMUAHA in terms of executors letter
no. 173/89 dated 22 June 1989 issued by the Master of the High Court,
Windhoek, SWA. 


AND


(c)       
JACOBUS ADRIAAN LOUW VAN ZYL as nominee of Bankorptrust and as such
administrator of the trust created in the estate of K TJAMUAHA, No.
173/89


 


WHEREAS
the said KAIMBIRE TJAMUAHA died on the 15 May 1989. 


 


WHEREAS
the said KAIMBIRE TJAMUAHA drawn (sic) up a valid testament on
the 9th November 1988 at Cape Town. 


WHEREAS
the said KAIMBIRE TJAMUAHA bequeath his portion of the joint estate
in the said single testament as follows: 


 


(a)       
My immovable farm property, farming vehicles, farming equipment and
implements, livestock and any other shares and movable property that
has regard with the farming to my administrator in trust, subject to
the conditions as mentioned in the annexed copy of the testament. 


 


(b)       
The remainder to my said spouse or if she does not survive me, to my
children, MARKUS and JORAM or their lawful descendents. 


WHEREAS
the assets in the joint estate consist of:-


 


1.        
FARM PROPERTY:


Certain
portion 5 (Okatau North) of the farm OTJOMBINDI – Measuring
3190,952 hectare


 


Certain
portion 6 (Koue Water) of farm OTJOMBINDI – Measuring 3239,2849
hectare                                                                                            
R200 000,00


 


2.        
Farming vehicles, implements and livestock: 


           
Truck                                      
R6 000,00


           
Tractor                                   
  9 000,00


           
Horse
cart                              
     300,00


           
Welding
machine                   
  3 500,00


           
Cattle                                      
74 000,00


           
Bulls                                       
  3 000,00


           
Goats                                     
  2 460,00


           
Sheep                                     
  1 050,00


           
Horses                                    
  1 400,00


           
Donkeys                                 
     560,00                                 
99,070,00


3.        
Furniture                                                                                     
2,000,00


4.        
Vehicle                                                                                     
35,000,00


5.        
Fire-arms                                                                                   
1,425,00


6.        
Cash after payment of liabilities
estimate                              
110,000,00


 


WHEREAS
the deceased was under the impression that his marriage was one out
of community of property. 


WHEREAS
the deceased was however married in community of property and
consequently only had disposal over one-half of the joint estate
which was practically non-executable for the reasons that: 


(i)           
The farm property cannot be subdivided. 


(ii)          
The trust that was created only dissolves
at the death of the minor children of the deceased, and that it was
practically impossible to maintain half of the movable goods that has
regard to the farming and livestock. 


(iii)         
That it is more practical and to the
benefit of the various legatees, in that the legatees wish that a
redistribution of the assets takes place. 


WHEREAS
the parties as stated in a, b, and c have decided to deviate from the
provisions of the testament as far as it deals with the bequeathment
of the farm property and farming vehicles, equipment, implements and
livestock is concerned. 


NOW
THEREFORE AND CONSEQUENTLY THE PARTIES AGREED AS FOLLOWS: 


(a)       
The farm as stated above is in its entirety awarded to the
administrator in trust subject to the conditions as stated in the
testament and the surviving spouse does away with her half interest
therein. 


           
The
value amounts to R200 000,00 (Two hundred thousand Rand). 


(b)       
All farming vehicles, equipment, implements, livestock as mentioned,
are awarded to the surviving spouse – C TJAMUAHA.  The
value amounts to R99 070,00 (Ninety nine thousand and seventy
Rand. 


(c)       
That the difference of half the value of the farm property, namely
R200 000,00 and half of the value of the farming vehicles,
equipment, implements, and livestock, namely R99 070,00, that is
an acknowledgement of debt to the amount of R50 465,00 handed to
C TJAMUAHA by the administrator of trust.  The amount shall
become repayable at the death of the said C TJAMUAHA, the surviving
spouse.”


 


[11]       
Turning back to the main
application, the applicants seek to be appointed as administrators of
the Trust.  They allege that they became aware during February
2011 that the second respondent had caused a mortgage bond to be
registered over the Farm without authorisation from the duly
appointed administrator in 2010.  It was also established that
Bankorptrust Bpk no longer did business as estate administrators, and
that ABSA Trust “administered” the Trust until it
resigned as nominated trustee during October 2007 via letter
addressed to the second respondent.  The applicants further
submit that as they have a beneficial interest in the Trust and the
Trust property, and since they have been involved in management and
administration of communal and commercial farms, they are fit and
proper to take over as administrators in order to ensure that the
Farm is preserved for their children as per the wishes of their
deceased father.


 


[12]       
The second respondent admits that
she caused the mortgage bond to be registered over the farm, and
that, in as far as her deceased husband’s portion of their
joint estate is concerned, new administrators should be appointed to
the Trust, and ABSA Trust formally removed.  However she wants
to be appointed as administrator to the Trust instead of the
applicants, alternatively that an independent administrator be
appointed by the President of the Law Society of Namibia. 
Should the court appoint the applicants as administrators, the second
respondent requests that they be required to provide security. 
It is apparent that the applicants and the second respondent no
longer understand each other,


 


[13]       
The
will does not provide for what should happen in the event of the
resignation of the administrator.  It is therefore necessary to
appoint someone in his stead.  ABSA Trust is accordingly hereby
removed as administrator of the Trust.[7] 
I propose to deal below with the appointment of a new administrator/s
to the Trust after the determination of the merits of the counter
application. 


 


[14]       
I am however constrained to express
at this stage, the court’s dismay at the poorly drafted will
and redistribution agreement, and more importantly, at the conduct of
the administrator/trustees, which to my mind manifested a dereliction
of fiduciary duties.  Together with the executor, the
administrator was completely absent almost from the outset.  The
attitude after having been served with all the papers in this
application as expressed by ABSA Trust’s legal practitioners,
were to confirm the resignation of ABSA Trust as trustee, and that
there would be no objection to the relief sought by the applicants,
provided no costs order was taken against them.  As regards the
counter application the parties were informed of the following: 


 


4.       
As far as the counter-application of the Second Respondent is
concerned, one of our client’s employees at that stage was also
the Executor of the estate.  The Estate has been finalized, as
you will note, many years ago and our client was relieved as the
executor. 


 


5.           
Our client is therefore functus
officio
and has no further concern in
respect of the relief sought as an executor. 


 


6.           
Taking the aforementioned into
consideration and as long as no recourse or relief is sought against
our client in its capacity as Executor, and no order for costs is
sought, our client will also abide by the Court’s decision. 


 


7.           
Under the circumstances we await both the
Applicant’s and the Second Respondent’s urgent written
confirmation that they will not seek: 


 


(a)         
any relief against our client; 


 


(b)         
any order for costs against our client
either as administrator or as executor; 


 


In
which event our client will then abide
.” 


 


[15]       
In her counter application, the
second respondent claims her half share in the Farm by virtue of her
marriage in community of property to the deceased, and applies to set
the redistribution agreement aside on the grounds that the aforesaid
agreement is of no force and effect.  The basis for the second
respondent’s application (and the ancillary relief sought,
which would essentially flow from the declaratory relief sought), is
that she signed the redistribution agreement by mistake, based on
misrepresentations of one Riaan Minaar who asked her to sign a lot of
documents shortly after her husband’s death without explaining
to her what she was signing, or that she was renouncing her half
share in the farm property when she signed it.  She was under
the impression that she was signing documents for purposes of
finalisation of her husband’s estate.  She never met the
executor or the administrator.  She further states that at the
time of her husband’s death she was not even aware that she was
entitled to half of the estate, or that the deceased was not entitled
to deal with their joint estate in the manner that he did. 


 


[16]       
As
the relief sought by the second respondent affects the position of
those children of the applicants not yet born, the court appointed[8]
the sixth respondent as curator
ad
litem

to represent their interests and to file a report.  In this
regard, the first applicant also opposes the counter-application as
natural guardian of his three own minor children.[9] 
The second applicant has no children as yet. 


 


[17]       
In
her report, the curator
ad
litem

evaluated the effect that the redistribution agreement had on the
unborn children of the applicants.  According to the curator
ad
litem
,
on a proper interpretation of the deceased’s will, certain
rights were created by him at the time in favour of the applicants’
unborn children similar to those of a
fideicommissum,
in
that at the termination of the Trust (on the death of the last dying
of the applicants and the second respondent), the Trust capital
together with any accumulated income must be paid to those unborn
children.  Because the deceased expressed the wish that the farm
property not be sold, the curator
ad
litem

submitted that an implied
fideicommissum
in
favour of the applicants’ unborn children was created. 
The curator relied on the learned authors Lee & Honorè:
Family,
Things and Succession[10]

where the principle was stated to be that if a testator prohibits
alienation of property, except to defined persons, he or she creates,
in the absence of an express
fideicommissum,
an implied
fideicommissum
in
favour of those persons, provided all the requirements for a valid
fideicommissum
are
present. 


 


[18]       
The
curator
ad
litem
further
submitted that because the redistribution agreement influenced the
benefits created by the deceased in his will for the descendants of
the applicants (through the implied
fideicommissum),
they should have been represented by a curator
ad
litem

when the redistribution agreement was concluded in order for the
rights of these unborn children to have been considered.  As
this was not done, the redistribution agreement is invalid and cannot
stand.  In support of her conclusion, the curator relied on the
principle expressed in
Ex
Parte Sem NO en Andere[11],

that the court’s common law powers to grant relief can be
somewhat restricted where the interests of unrepresented minor or
unborn children are concerned.  The court would in these
circumstances not grant an order unless the order is necessary to
protect the estate against loss. 


 


[19]       
Ms Visser for the applicants
disagrees with the above conclusions.  She disputes that a
fideicommissum
was created and maintains the validity of the redistribution
agreement.  Ms Bassingthwaighte for the second respondent,
aligns herself with the curator
ad
litem
’s submissions, but also
maintains reliance on the second respondent’s counter
application to set the redistribution agreement aside. 


 


[20]       
The report of the curator ad
litem
will be considered first. 
Should the redistribution agreement be found to be invalid on the
grounds raised by the representative of the applicants’ unborn
children that would be the end of the matter. 


 


[21]       
To
be determined at the outset, is whether or not the deceased created
an implied
fideicommissum
in favour of the applicants’ unborn children.  In this
regard, a couple of additional facts are to be considered.  The
redistribution agreement is expressed to be signed by the second
respondent in her personal capacity and in her capacity “as
natural guardian of my two minor children JORAM TJAMUAHA and MARKUS
TJAMUAHA” (the applicants).  However it is common cause
that the second respondent is not the biological mother of the
applicants.  It is also common cause that the first applicant
was 21 and second applicant just shy of 21 on the date that the
second respondent signed the redistribution agreement.[12] 


 


[22]       
The
general rule in interpreting a will was succinctly expressed by Davis
AJA quoting Blackburn J in
Allgood
v Blake[13],

in
Cumings
v Cumings[14]

as follows: 


 


The
general rule is that, in construing a will, the court is entitled to
put itself in the position of the testator, and to consider all
material facts and circumstances known to the testator with reference
to which he is to be taken to have used the words in the will, and
then to declare what is the intention evidenced by the words used
with reference to those facts and circumstances which were (or ought
to have been) in the mind of the testator when he used those words.


The
words in brackets “or ought to have been” seem to me
fully to cover the point
.[15] 


 


[23]       
If
the language of the will is clear and unambiguous, there is no room
for the application of rules of construction or presumption.  In
Robertson
v Robertson’s Executors[16]
,
Innes ACJ (as he then was) authoritatively stated the principle as
follows: 


 


“          
'Now
the golden rule for the interpretation of testaments is to ascertain
the wishes of the testator from the language used and, when these
wishes are ascertained, the Court is bound to give effect to them,
unless we are prevented by some rule of law from doing so.'


 


This
has been taken to mean that 'the object is not to ascertain what the
testator meant to do but his intention as expressed in the will' (Ex
parte Estate Stephens 1943 CPD 397 at 402). It is hence possible for
a testator to express a specific intention by the use of certain
words in his will which intention may differ from what he actually
had in mind. The Court is, however, bound by the expressed intention
and is not empowered to look beyond such intention with a view to
establishing what may be believed to have been the testator's actual
intention. See Cuming v Cuming and Others 1945 AD 201 at 206 - 7;
Bell v Swan 1954 (3) SA 543 (W) at 550; Ex parte Eksekuteure Boedel
Malherbe 1957 (4) SA 704 (C) at 710. It follows that evidence
tendered to prove that the actual wishes of the testator are in
conflict with or differ from his clearly and unambiguously expressed
intention is not admissible. See De Klerk v Estate De Klerk and
Others 1950 (3) SA 62 (T) at 65. Only if the words in question are
ambiguous or uncertain may recourse be had to extrinsic evidence.
This is a principle which dates back to Roman times, as appears from
the dictum of the Roman jurist, Paul, when he states in Digest
32.25.1: 'Cum in verbis nulla ambiguitas est, non debet admitti
voluntatis quaestio.' Voet Commentarius ad Pandectas 34.5.1 repeats
this principle:


 


'Voluntates
testatorum aliae clarae atque perspicuae sunt, aliae dubiae et
ambiguae. Quod si nulla in verbis ambiguitas sit, etiam voluntatis
quaestio admittenda non est....'”


 


[24]       
The curator ad
litem
and Ms Bassingthwaighte argued
that the deceased made it clear in his will that it was his wish that
his farm property not be sold and that the second respondent, and
thereafter the applicants, live off the income from farming
activities during their lifetimes, with the Trust capital, namely the
Farm, and accumulated income being given to the descendants of the
applicants. 


 


[25]       
Ms Visser argued that a clear and
unambiguous feature of the will of the deceased is that he created a
testamentary Trust in which he
bequeathed
inter alia
the farm property to the trust to his administrator upon whom he
conferred the following powers: 


 


to
accept, control, administer, rent out,
to
sale
(sic) or
purchase any movable and immovable property

as they deem fit in their exclusive discretion to be in the interest
of the trust.”
(emphasis supplied)


 


[26]       
Only after this sentence did the
deceased express the following: 


 


It
is my wish that my farm property will not be sold.”


 


[27]       
If I consider the clear language of
the will, irrespective of what the deceased intended or not, he gave
the power to the administrator to sell the Farm if necessary, in
spite of his wish that the Farm not be sold.  It is clear that
he intended the income of the Trust to be earned from farming
activities on the Farm, but the power to dispose of the farm was
still given to his administrator.  The “alienation”
of the farm property was accordingly not prohibited.  Thus the
unborn children at the relevant time would inherit whatever trust
capital and accumulated income was available at the time at the
termination of the Trust, and not the Farm per se.  I think Ms
Visser’s arguments are sound on this point, an implied
fideicommissum
was not created. 


 


[28]       
To
be appreciated is the principle that there is a general presumption
against the creation of a
fideicommissum,
the rule being that in a case of reasonable doubt, the construction
should be against a
fideicommissum.[17] 
In any event, the
fideicommissum
and the Trust are also distinct legal institutions, each of them
having its own distinct legal rules. 


 


[29]       
I
now turn to the second leg of the curator
ad
litem’s

argument, namely that because the terms of the redistribution
agreement influenced the benefits of the applicants’ unborn
descendants at the time of its conclusion, their interests should
have been represented when the redistribution agreement was
concluded, the failure of which rendered it invalid.  The
following authorities were cited in support of her argument, namely
Ex
parte Erasmus[18]
,
Brink
N.O. and Others v Gain N.O. and Others[19]

and
Ex
parte Sem N.O. en Andere[20]



 


[30]       
In
Ex
parte Erasmus
,
the applicant under the will of her mother had been bequeathed a
third share subject to a
fideicommissum
in favour of the testatrix’s descendants.[21]
 A division was later effected and the applicant then got
transfer of her share subject to the condition of the will.  In
an application to have the
fideicommissum
expunged from her title deed, she contended that with the consent of
her only major child, and seeing that she is past child bearing age,
she was entitled to the relief sought.  The court gave three
different interpretations to the the meaning of “kindskinderen”,
namely either the grandchildren of the testatrix by the applicant, or
all the testatrix’s grandchildren or all the testatrix’s
grandchildren and further descendants.  In the result the court
refused to grant the order in the absence of those who would have an
interest in the second and third possible interpretations and
appointed a curator
ad
litem

to the minor grandchildren born and unborn of the testatrix.[22] 


 


[31]       
In Ex
parte Sem
, a usufructuary and other
interested parties applied for confirmation of a transaction where
immovable property in an estate was sold in terms of a provisional
deed of sale.  The court refused the application because it was
not satisfied that it would be to the advantage of the minors and
unborn issue who might have had an interest therein. 


 


[32]       
In
the
Brink
case, the minor children of the first, second and third plaintiffs,
as well as the fourth and fifth plaintiffs were
fideicommissary
heirs in terms of the same will.  In an action for the
redistribution of all the assets of the community estate based upon
the true and accurate value thereof, an exception in the form of the
non-joinder of the fiduciaries as well as non-joinder of a curator
ad
litem

to the unborn children of such fiduciaries was raised.  It was
argued[23] that from the
plaintiffs’ declaration as it stood, the unborn issue had
nothing to lose but everything to gain.  If the plaintiffs
succeeded, the inheritance of the unborn issue would be increased. 
If unsuccessful, they would be no worse off than they were at the
time. 


 


[33]       
After
a discussion of the relevant authorities, Van Winsen J stated[24]
that there was no absolute rule that under all circumstances unborn
issue must be represented by curators.  In each case, the court
must exercise its discretion according to the circumstances of the
case.  In the result, it was held[25]
that it was not essential in the circumstances that the unborn
children be protected by representation through a curator
ad
litem

and the exception was dismissed. 


 


[34]       
The main issue as I see it, is that
in the absence of the redistribution agreement, the unborn heirs were
only entitled to the Trust capital and accumulated income of half the
estate by virtue of the marriage in community of property.  The
effect of the redistribution agreement is that they instead became
entitled to the capital and income of the whole estate. 


 


[35]       
The provisions of the redistribution
agreement were in actual fact, clearly in favour and to the benefit
of the applicants’ unborn children.  I cannot see that the
absence of a curator
ad litem to
represent their interests at the time the agreement was concluded
renders it invalid. 


 


[36]       
I
am also mindful by the principle set out by the learned author Sir
AFS Maasdorp,
The
Institutes of South Africa Law
,
Vol III,
The
Law of Contracts[26]
,
that a minor may bind him/herself by contract in all cases in which,
and to the extent to which, he/she is enriched thereby at the expense
of another, and by the word “enriched” is to be
understood not merely that the minor has had the best of the bargain,
but that considering all the circumstances, the contract was for
his/her benefit. 


 


[37]       
In light of the foregoing, I
disagree with the curator’s report and on that basis, cannot
find that the redistribution agreement is invalid in the
circumstances and on the grounds mentioned by the curator
ad
litem


 


[38]       
I now deal with the second
respondent’s counter application to set the redistribution
agreement aside.  Firstly, I deal with the plea of prescription
raised by the applicants. 


 


[39]       
Ms
Visser argued that the second respondent’s claim is contractual
and not vindicatory in nature because it is a claim to set an
agreement aside.  Accordingly the second respondent’s
claim was a debt as contemplated by sections 11 and 12 of the
Prescription Act.  She further submitted that for purposes of
section 10 of the Prescription Act the word “debt” in
this section is wide enough to include any liability arising from and
being due (
debitum)
or owing under a contract.[27] 
She also argued that the second respondent has not fulfilled the
necessary requirements for a vindicatory action, because the second
respondent is in possession of the property.  In the
alternative, the second respondent is not entitled to the relief
because, through her conduct over some twenty years she elected to
adiate the terms of the agreement and therefore to accept, not just
the benefits in terms of the redistribution agreement, but also the
benefits in terms of the deceased’s will, as a result of which
she is estopped from seeking the relief.  


 


[40]       
Ms Bassingthwaighte argued that the
essential feature of the second respondent’s application is her
ownership of half of the farm and thus vindicatory in nature, and
further that a claim based on ownership of a thing cannot be
described as a claim for satisfaction of a debt.  Accordingly
the three year prescription period did not apply.  In the
alternative, the second respondent only became aware of her claim
during 2011 when she was properly advised and became aware of the
entire set of facts that gave rise to her claim and accordingly the
period of prescription commenced to run during 2011.  As regards
the question of possession for purposes of a vindicatory claim, the
second respondent possessed the farm as agent of the administrator,
and that she has effectively been managing it on their behalf since
1990. 


 


[41]       
I
pause shortly to deal with the argument of possession for purposes of
a vindicatory claim.  The
rei
vindicatio
is
available to an owner for the recovery of his or her movable or
immovable thing from whomsoever is in possession or has detention of
the thing, irrespective of whether the possession or detention is
bona
fide

or
mala
fide

The owner instituting the
rei
vindicatio

must on the balance of probabilities prove that he/she is the owner
of the thing, that the thing is still in existence and clearly
identifiable, and that the defendant has possession or detention of
the thing at that moment the action is instituted.[28] 
The rationale for this requirement has been authoritatively
explained[29] as being to
ensure that the defendant will be in a position to comply with an
order for restoration.  I am in respectful agreement with this
rationale. 


 


[42]       
It is common cause that the second
respondent has been residing on and managing the Farm in the absence
of the administrator since 1990, but neither the applicants nor the
second respondent are entitled
per se to
reside on the farm.  Her presence on the farm today was at the
leisure of the administrator.  The property she claims is in
existence and clearly identifiable.  I cannot understand how a
person who wants to claim ownership of property should be barred from
claiming that ownership became she happens to be in possession of the
property especially if that ownership is being contested, as is being
done in these proceedings.  To my mind. this is a clear
vindicatory claim .  The next question is whether this type of
claim is a debt that prescribes after 3 years. 


 


[43]       
Ms
Visser argued that the second respondent’s claim is a debt, and
that the debt (the reason for termination or setting aside of the
redistribution agreement) became due once she acquired as creditor a
complete cause of action for the recovery thereof, and when the
entire set of facts which a creditor must prove in order to succeed
with his or her claim against the debtor are in place.[30] 
Ms Visser submitted that the second respondent came to know of her
complete cause of action by latest 6 April 2000 on the papers and
that accordingly her claim, having been instituted in 2012, has
prescribed.


 


[44]       
Ms
Bassingthwaighte’s argued that the word “debt” was
not defined in the Prescription Act and that a vindicatory claim is
not a debt as contemplated by the Prescription Act.   I was
referred by her to a number of authorities that run counter to her
argument.  In particular cases such as
Evins
v Shield Insurance Co[31],
Barnett v Minister of Land Affairs[32],
Grobler v Oosthuizen[33],
Leketi v Tladi N.O.[34]

and a decision of this court in the matter of
Ongopolo
Mining Ltd v Uris Safari Lodge (Pty) Ltd and Others[35]



[45]       
The Evins
case concerned a claim for injuries arising out of a motor vehicle
accident.  At issue was whether a claim for personal injuries
and a claim for damages for loss of support arising from the death of
the plaintiff’s husband were separate claims or a single debt
for purposes of prescription.  King J stated that: 


 


The
word ‘debt’ in the Prescription Act must be given a wide
and general meaning denoting not only a debt sounding in money which
is due, but also, for example, a debt for the vindication of
property.  While this is so ‘debt’ cannot embrace
all rights between two persons.  In my view ‘debt’
in ss 10 and 15(1) of the Prescription Act means an obligation or
obligations flowing from a particular right.”[36] 


 


[46]       
In
the
Barnett
case, the South African Supreme Court of Appeal was faced with a
special plea of prescription raised by persons who had occupied and
built structures on state land.  It was argued that the ‘debt’
was vindicatory relief which the government sought to enforce. 
Brand JA writing for the court stated that he was prepared to accept
that the vindicatory relief that the government sought to enforce
constituted a debt as contemplated by the Prescription Act, even
though the Prescription Act did not define the term “debt”. 
Reliance was placed on the wide and general meaning ascribed to the
term ‘debt’ and that it included an obligation to do
something or refrain from doing something.  Thus, there was no
reason why a debt would not include a claim of an owner’s right
to property.[37]



 


[47]       
The
dictum in
Barnett
was approved in the
Grobler
case
[38]
another Supreme Court of Appeal decision.  In this matter, the
question was whether a claim to recover the proceeds of certain
insurance policies ceded to the applicant’s late husband had
prescribed.  The court
a
quo

held on the basis of the application of the pledge theory, that what
the applicant sought to enforce was a vindicatory claim that
prescribed after 30 years.  Brand JA again writing for the court
rejected this finding and stated[39]
that: 


 


“…the
prescription period of 30 years in s 1 of the Prescription Act
relates to acquisitive prescription. For extinctive prescription, the
period can, in the present context, only be the three years provided
for in s 11(d) of the Act …”


 


The
court referred to the Evins and Barnett cases in
support of that proposition, but in the end the case was decided on
other grounds. 


 


[48]       
In
the
Leketi
case, the appellant alleged that his grandfather had fraudulently
caused certain immovable property to be registered in his own name
instead of the name of his late father.  His claim was directed
at setting aside the registration in the name of his grandfather and
then procuring transfer of the property for his late father’s
estate.  The sole question for decision at the trial was whether
the applicants’ claim had prescribed, given that the fraud
which formed the basis of the claim and the right to sue on that
fraud took place some twenty years before.  The court following
Barnett[40]
described the claim as a debt.  The case in essence dealt with
knowledge of the alleged fraudulent transfer and did not relate to a
vindicatory claim. 


 


[49]       
The argument put forward by Ms
Bassingthwaighte is that the
Evins
case concerned a claim for injuries arising from a motor vehicle
accident and that the statement, relating to the vindication of
property was made by a single judge,
obiter
and without any analysis of whether an action for vindication of
property by its owner constitutes a debt.  In
Barnett,
there was also no discussion on the issue of whether an action for
vindication of property by the owner constituted a debt.  In
Leketi,
the court dealt with the knowledge of the alleged fraudulent transfer
and the matter also did not relate to a vindicatory claim. 


 


[50]       
I
was invited instead to adopt the reasoning of Blignaut J in
Staegemann
v Langenhoven and others[41]

In this matter, the applicant claimed the return of his vehicle from
the first respondent who had bought it from a third party to whom it
was fraudulently sold by the third respondent.  The first
respondent resisted the applicant’s claim, contending that the
claim had prescribed.  This plea was rejected after a thorough
analysis of
inter
alia
the
above authorities.  The court held that the
rei
vindicatio

was not a debt within the meaning of section 10 of the Prescription
Act. 


 


[51]       
A
distinction was drawn in
Staegemann
between a real right and a personal right which has been consistently
recognised in South African jurisprudence.  The distinction
drawn in the Prescription Act between acquisitive prescription of
real rights (ownership and servitude - which is dealt with in
Chapters 1 and 2) and extinctive prescription of obligations (dealt
with in Chapter 3) was pointed out, and a clear statement was made
that as a
rei
vindicatio
is
a claim to ownership in a thing, it cannot be described as a claim
for payment[42]


 


[52]       
In the Schmidt
Bou Ontwikkelings CC
case, the Supreme
Court of Appeal again raised the question whether a vindicatory claim
constituted a debt though it was not an issue for the court to
decide.  Brand JA again writing for the court expressed support
for the reasoning in
Staegemann,
decides: 


 


The
conclusion thus reached renders it unnecessary to decide whether a
claim based on the
rei
vindicatio

is a debt which prescribes after three years.  This issue arose
from the liquidators’ submissions that a claim for
rectification is to be equated with the
rei
vindicatio.
 
For the proposition that a claim of the latter kind prescribes after
three years, they relied on the judgment of this court in Barnett and
others v Minister of Land Affairs and others 2007(6) SA 313 (SCA)
(2007) 11 BCLR 1214 (para 19).  But the correctness of that
judgment has since been doubted in Staegemann v Langenhoven and
others 2011(5) SA 648 (WCC) paras 14 to 28.  Though Barnett has
been confirmed by this court in Grobler v Oosthuizen 2009(5) SA 500
(SCA) para 18 and in Leketi v Tladi NO 2010(3) All SA 519 (SCA) paras
8 and 21, I must admit that I find the reasoning in Staegemann
attractive and, at least on the face of it, quite convincing.  I
therefore have no doubt that the case will come where this court will
have to reconsider the correctness of the decisions in Barnett,
Grobler and Leketi that the
rei
vindicatio

is extinguished by prescription after three years.  But this is
not that case, simply because the liquidators’ prescription
defence has already been held to found on other grounds.”[43] 


 


[53]       
The reasoning in Staegemann
was, however, criticised in the judgment of Damaseb JP in the
Ongopolo Mining
casewith preference expressed for the reasoning in
Barnett.
 In that matter, plaintiff alleged that its immovable property
had been fraudulently transferred into the defendant’s name and
sought an order rectifying the title deed and evicting the first
defendant.  The plaintiff excepted to the defendant’s
special plea of prescription on the grounds that a claim for the
return of property fraudulently obtained was not a debt as
contemplated in the Prescription Act, and even if it were a debt,
prescription would be interrupted as the unlawful possession of a
farm is continuous wrong that creates a series of debts. 


 


[54]       
Ms Bassingthwaighte sought to
distinguish
Ongopolo Mining
on the basis that the issue was considered in the context of an
exception to a plea of prescription and no final finding and binding
decision was made as to whether or not a
rei
vindicatio
constituted a debt in the
circumstances.  Accordingly, the approach in
Ongopolo
Mining
is not binding on this court. 


 


[55]       
Ms Visser in reply maintained
reliance on her earlier argument and invited the court to adopt the
reasoning in the line of authority emanating from the
Evins
case.  She submitted that the
Ongopolo
judgment was clear authority for the proposition that a vindicatory
claim is a debt, and that I should follow it. 


 


[56]       
Subsequent
to judgment being reserved in this matter, the legal practitioners of
the second respondent via letter sought to submit additional
authority emanating from the Supreme Court of Appeal of South Africa,
which overturned its own earlier decisions on the issue.  It was
held that a
rei
vindicatio

is not a debt and does not prescribe after 3 years.  This was
the matter of
Trust
Bank v ABSA[44]

This judgment was delivered on 28 May 2015, some 3 weeks before the
matter was heard in this court. 


 


[57]       
Because the ABSA
case was decided before the matter was heard, the applicants’
representatives were provided with an opportunity to deliver
supplementary heads of argument.  The respondents would respond
thereto if necessary.  Both parties filed additional heads of
argument.  In essence Ms Visser maintained reliance on the
stream of cases holding that a vindicatory action is a debt within
the meaning of section 10 of the Prescription Act, with special
emphasis on the Namibian position in the
Ongopolo
case, whereas
Ms Bassingthwaighte relied on the
ABSA
case to support and cement her argument. 


 


[58]       
In the ABSA
case, the appellant brought an action in the High Court seeking
confirmation of its cancellation of an instalment sale agreement and
recovery of a vehicle after the respondent defaulted on payments. 
The respondent’s special plea of prescription succeeded in the
court
a quo on
the basis that the appellants’ claim for repossession of the
vehicle was a ‘debt’ as contemplated by section 10 of the
Prescription Act, and had thus prescribed after three years. 
The Supreme Court of Appeal, after a thorough consideration of all
the relevant authorities held that those which characterised a
vindicatory claim as a debt were wrong and contrary to the scheme of
the Prescription Act. 


 


[59]       
Writing
for the court, Zondi JA restated the clear distinction between real
rights and personal rights, which was reflected in the Scheme of the
Prescription Act.[45]  He
stated that: 


 


[20]
In my view there is merit in the argument that a vindicatory claim,
because it is a claim based on ownership of a thing, cannot be
described as a debt as envisaged by the Prescription Act. The High
Court in Staegemann (para 16) was correct to say that the solution to
the problem of prescription is to be found in the basic distinction
in our law between a real right (jus in re) and a personal right (jus
in personam). Real rights are primarily concerned with the
relationship between a person and a thing, and personal rights are
concerned with a relationship between two persons.  The person
who is entitled to a real right over a thing can, by way of
vindicatory action, claim that thing from any individual who
interferes with his right. Such a right is the right of ownership.
If, however, the right is not absolute, but a relative right to a
thing, so that it can only be enforced against a determined
individual or a class of individuals, then it is a personal
right.
[46]


 


[60]       
I have considered the arguments of
counsel, both before and after presentation of the
ABSA
case.  I would have considered the reasoning in
Staegemann
to be persuasive without the benefit of the hindsight of the South
African Supreme Court of Appeal in
ABSA.
 What appeals to me from the reasoning in
Staegemann,
is that at its core is a well established distinction between a real
right (a relationship between a person and a thing) and a personal
right (a relationship between two persons).  This is also found
in the scheme of the Prescription Act and the distinction there
between extinctive and acquisitive prescription.  Similarly, it
is indeed difficult to reconcile the provisions of section 1 of the
Prescription Act, which allows a person to become an owner of a thing
through open and uninterrupted possession as if the person was an
owner for an uninterrupted period of thirty years, with the principle
that a person has only three years to claim ownership of a thing. 
I am in respectful agreement with the principle that an acquisitive
period should be applied to the
rei
vindicatio
.  I believe that the
position was now decisively put to rest in the
ABSA
case where the following was stated: 


 


[25]
In the circumstances the view that the vindicatory action is a 'debt'
as contemplated by the Prescription Act, which prescribes after three
years is in my opinion contrary to the scheme of the Act. It would,
if upheld, undermine the significance of the distinction which the
Prescription Act draws between extinctive prescription on the one
hand and acquisitive prescription on the other. In the case of
acquisitive prescription one has to do with real rights. In the case
of extinctive prescription one has to do with the relationship
between a creditor and a debtor. The effect of extinctive
prescription is that a right of action vested in the creditor, which
is a corollary of a 'debt', becomes extinguished simultaneously with
that debt.  In other words, what the creditor loses as a result
of operation of extinctive prescription is his right of action
against the debtor, which is a personal right. The creditor does not
lose a right to a thing. To equate the vindicatory action with a
'debt' has an unintended consequence in that by way of extinctive
prescription the debtor acquires ownership of a creditor's property
after three years instead of 30 years that is provided for in s 1 of
the Prescription Act. This is an absurdity and not a sensible
interpretation of the Prescription Act.” 


 


[61]       
As
regards the
Ongopolo
judgment, I hold the view that this case is distinguishable because
it related to an exception to a special plea of prescription, and is
accordingly not binding.  In any event, I understand this case
to have been decided on the basis of a continuing wrong.  I also
do not understand the criticism of
Staegemann
to have fully decided the issue in our jurisdiction.  In dealing
with the test for adjudicating an exception, Damaseb JP stated[47]
that if the relief sought was susceptible of being construed as a
debt and not a continuous wrong which interrupts prescription, the
plaintiff’s exception had to fail and the first defendant would
be allowed to introduce proposed amendments which postulated that the
plaintiff should have instituted proceedings within three years of
becoming aware of the alleged fraudulent conduct.  He then
stated that: 


 


If
I uphold the exception I will be laying down a rule of law that a
claim for the recovery of property fraudulently acquired is not a
debt and that the legislature did not intend the Prescription Act to
apply to such property.  No binding precedent has been cited for
such far reaching conclusion.  In that sense, this is a case of
first impression.  A court should be slow to lay down such a
precedent set in rule of law in a case of first impression without
full argument and consideration of all the ramifications of doing so,
especially where the Constitution is relied on, although only
indirectly.  The exception procedure seems to me ill-suited for
such a result.”[48] 


 


[62]       
In light of the foregoing I find
that a claim under the
rei vindicatio
is not a debt, and that it prescribes after thirty years.  The
plea of prescription accordingly fails. 


 


[63]       
I now turn to determine whether or
not the second respondent has made out a case for claiming her half
share in the Farm and setting aside the redistribution agreement, as
well as the ancillary claims. 


 


[64]       
The second respondent states that
she cannot properly read or write English or Afrikaans.  She
further states that the affidavit, as well as the applicants’
application was read and explained to her by her daughter, Ms
Dorisday Merora in the Otjiherero language. 


 


[65]       
After her husband’s death on
15 May 1989, a certain Riaan Minaar and a certain Mr Engelbrecht came
to read her late husband’s will to her and her in laws. 
At the time when the two gentlemen came to read the will her husband
had not even been buried yet and she was grieving and not in any
condition to deal with such an issue.  She had also taken ill
and was unwell.  She does recall that her in laws were unhappy
with the content of the will.  I point out at this stage, that
whilst this allegation is not disputed, none of the parties state
that they understood the terms of the will. 


 


[66]       
At the time of her husband’s
death, they were both employed on a fulltime basis and only went to
the farm on weekends.  However, Mr Minaar told her that she
should quit her job and go and live on the Farm permanently. 
The applicants had also not finished high school at that time. 
She moved to the farm permanently after resigning from her job during
1990 and the applicants resided with her there until approximately
1995. 


 


[67]       
The second respondent confirmed that
she signed the redistribution agreement on 21 July 1989, some 2
months after the deceased’s death.  At the time, she was
under the impression that she was signing documents for the
finalisation of her husband’s estate.  She recalled that
Mr Minaar asked her to sign a lot of documents.  When she signed
the documents, Mr Minaar did not explain to her that she was signing
a redistribution agreement in which she renounced her half share in
the farm property.  He also did not explain to her that she had
a choice not to sign it, as her husband was only able to dispose of
half the estate.  Had Mr Minaar explained to her exactly what
she was signing and what the consequences were of signing the
redistribution agreement, she would not have done so because she has
five children of her own.  She would never have signed a
document that resulted in her denying her own inheritance in favour
of her husband’s children if she did not need to.  Had Mr
Minaar explained to her that she had a choice to retain her half
share in the farm, she would have certainly elected to do so. 
Thus, she never agreed to the terms of the redistribution agreement. 
The second respondent also stated that she never met the executor or
the trustee appointed to manage the Trust, who were signatories to
the redistribution agreement.  The executor similarly never
explained anything. 
Ex facie
the agreement, they signed it separately in Cape Town and Bellville. 
These gentlemen have also never been on the farm.  The only
communication she ever received related to payment of administration
fees and the registration of ABSA Trust and administrators. 


 


The
second respondent has been managing the farm on her own since her
husband had died.  The second respondent annexed a list of
improvements which she effected on the farm since 1990.  Mr
Minaar came to the farm every year for about two years to apparently
see how she was doing but he did not hold any inspection, nor did he
assist her in any way in managing the farm.  All he did on the
visits was to greet her, hunt on the farm and leave.  She did
not question him at the time because according to the second
applicant, he had her husband’s will and seemed to be in charge
of their money. 


 


[68]       
After moving to the farm on Mr
Minaar’s instructions, it required some improvement.  She
informed Mr Minaar that she could not manage the farm without any
money and he promised her that he would pay an amount of N$134,000.00
into her bank account to assist her to manage the farm. 
Initially he paid N$2,000.00 every month, but stopped after about 3
months.  When he came to visit the farm again sometime during
1990, she had asked him why he stopped the payments.  He
informed her that something must have gone wrong and that he did not
stop the payments.  Eventually through the assistance of a
certain Mr Marais who rented grazing land from her, she was informed
that she could insist on a once-off payment of N$134,000.00 which she
was informed was due to her.  Once this money was paid into her
account, she invested about N$120,000.00 of this money on advice from
Mr Minaar and took her first loan from the fourth respondent, using
the investment as collateral. 


 


[69]       
During about 1997/1998 when she
approached the fourth respondent for the loan, one of the officials
asked her why she was using her investment as security.  She
provided him with her documents and he then told her that the Farm is
registered in a trust.  This was the first time that she found
out that the Farm was registered in a trust.  Prior to that, she
was under the impression that the Farm was in her name.  She
states that she had specifically seen her name on an endorsement on
the last page of the title deed and thought that it meant that the
property was transferred to her.  The fourth respondent’s
officials then explained to her that the endorsement was there to
show that the property was held in Trust. 


 


[70]       
She apparently approached several
lawyers to assist her to no avail.  Their names are specifically
dealt with in her papers, and all of them are legal practitioners. 
No confirmatory affidavits have been filed on their behalf.  She
also approached a legal practitioner at the Legal Assistance Centre
who found a document prepared by a conveyance, Mr Carel Jacobus
Richard van der Merwe with the heading “Transportbesorger
Sertifikaat”.  This is an endorsement dated 26 July 1990
in terms of which it is indicated the Farm was transferred to the
second respondent from the estate of the deceased.  The document
was signed on 11 October 1990 by Mr van der Merwe.  The second
respondent only saw the document during 2009 when the Legal
Assistance Centre explained that according to the documents, the Farm
belongs to her.  After receiving the information, she thought
that she no longer needed to be concerned, as a result of which the
fourth respondent granted her the loan using the Farm as security for
the first time.  The mortgage bond was registered over the Farm
in favour of Agribank on 20 January 2010. 


 


[71]       
She borrowed a further N$96,000.00
out of her own funds which was also paid off and taken against the
investment as collateral.  This loan was used to effect further
improvements and repairs on the farm.  During or about 2006/2007
she took another loan of N$40,000.00 which has also been paid off. 
She used that money to buy bulls. 


 


[72]       
On 4 March 2011 her former legal
representatives received a letter from Dr Weder, Kauta & Hoveka
Inc informing that she had no authority to pledge the farm as
security.  After receiving this correspondence, the second
respondent went to her legal representatives of record who undertook
the process of establishing what the correct information was. 
Mr van der Merwe was also approached regarding the certificate
issued.  He deposed to an affidavit in 2012, stating that the
endorsement made by him was mistakenly made and incorrect. 


 


[73]       
During this time, the application
was served on the second respondent and it is when she consulted
again with her legal representative that explained to her for the
first time, the true meaning of what her husband had done in his
will.  It was then that she was advised that he was not entitled
to deal with the joint estate in the manner that he did, that the
second respondent was entitled to half the estate at the time of her
husband’s death and that it was also possible for the executor
to deal with her half share in the estate separately from his and to
still give effect to the desires expressed by the deceased in his
will as to what should happen to his share of the joint estate. 


 


[74]       
It was also the first time that
someone explained to her that she had renounced her half share in the
farm when she signed the redistribution agreement. 


[75]       
  Had Mr Minaar explained
to her what exactly the consequences were of signing the
redistribution agreement, she would never have signed it because she
had five children of her own and she would never deny them an
inheritance.  In fact, so the second respondent alleges, had it
been explained to her that she had a choice to retain her half share
in the farm she would certainly have elected to do so.  Apart
from paying an administration fee of N$570.00 per month no one from
ABSA Trust ever managed the farm and she could not even understand
their claim to this money. 


 


[76]       
On this basis it was submitted that
the redistribution agreement should be declared of no force and
effect on the grounds that it is invalid. 


 


[77]       
The applicants raised a number of
denials.  They denied that the second respondent cannot speak,
read or write English.  In amplification they sought to point
out that the second respondent had sufficient knowledge of the
English language to be able to transact and enter into various loans
and to farm commercially for the past 22 years.  In reply, the
second respondent stated that the applicants knew very well that she
could not speak, read or write English and that she converses mainly
in Otjihereo.  When necessary she speaks Afrikaans which is a
language used in the community in which she operates as a farmer. 
Whenever a transaction or engagement requires the use of the English
language, she is accompanied by one of her daughters or a translator
is provided.  During all her transactions with Agribank, she was
either assisted by a person who could speak Otjiherero or Afrikaans. 


 


[78]       
The applicants also alleged that the
second respondent had usurped the powers of the administrator by
registering a mortgage bond over the Farm, but they correctly did not
dispute that at the time the deceased’s will was drafted, he
could not dispose of the joint estate in the manner that he did. 
Instead, it was submitted that the second respondent at no stage
obtained a personal right in the form of a
habitatio
and/or a usufruct in respect of and/or over the Farm. 


 


[79]       
The applicants highlighted that from
1997/1998 when the second respondent learned that the farm was held
in a trust, her allegations concerning the different lawyers she
visited between 1998 and 2009 (when she discovered the certificate of
endorsement in her name by Mr van der Merwe) are not plausible
especially as no confirmatory affidavit had been filed by those
lawyers, and she took 15 years from then to claim her share and apply
to set aside the distribution agreement. 


 


[80]       
The applicants denied that the
second respondent never agreed to the terms of the redistribution
agreement.  They submitted that the second respondent was at the
time of the deceased’s death well aware that she was entitled
to 50% of the joint estate and that she was well and truly appraised
of her rights.  They also submitted that through her conduct,
the second respondent unequivocally elected to accept not just the
benefits in terms of the redistribution agreement but also the
benefits of the will. 


 


[81]       
Regarding the issue of adiation, it
is clear that this is not a massed will or a joint will and as such I
do not think the principles relating to adiation are apposite here,
this argument is accordingly without merit. 


 


[82]       
Through
the
Plascon-Evans
rule, it is now well established if not trite in our courts that
where disputes of fact arise in motion proceedings, final relief can
only be granted at the facts averred in the applicant’s
affidavits which have been admitted by the respondent, together with
the facts alleged by the respondent, justify an order, unless the
respondent’s version consist of bold or uncredit worthy
denials, raises fictitious disputes of fact, is palpably implausible,
farfetched, and so clearly untenable that the court would be
justified in rejecting the respondent’s allegations on the
papers.[49]  In the
application of the above principle to the facts, in my opinion, none
of the denials raised are in any way relevant to the second
respondent’s claim.  It is also clear from the papers
filed in this application that that the applicants are not in a
position to deny the following


 


(a) 
the events that took place between the
second respondent and Mr Minaar or the events that led to the signing
of the distribution agreement, including what was explained to her
and what was not; 


 


(b) 
that loans were made by the second
respondent relying on an investment of N$134,000.00, and thereafter
out of her own pocket which loans were all repaid; 


 


(c) 
that the second respondent resided on and
managed the farm for the past 22 years, and that as far as she was
concerned the document obtained in 2009, proved her ownership of the
farm;


 


(d) 
that the administrator, apart from
obtaining an administration fee of N$570.00 for the past 22 years did
not do anything to fulfil any of the obligations in terms of the
trust deed; 


 


(e) 
that the second respondent applied for a
loan and was permitted to register a mortgage bond over the property
on the strength of that “incorrect” endorsement. 


 


[83]       
Neither can it be denied that


 


(a) 
the redistribution specifically states that
the second respondent signed the agreement as natural guardian of the
applicants.  This is clearly not true, and the first applicant
was in any event a major and should have been an independent party to
it; 


 


(b) 
it is doubtful that the second respondent
would have signed the redistribution agreement as natural guardian of
children that are not hers; 


 


(c) 
the agreement was signed between herself
and HJ Fourie and J Adriaan Louw whom she had never met in her life; 


 


(d) 
only on 14 August 2012 was there an
indication by Mr van der Merwe that the endorsement that he signed
was effectually incorrect. 


 


(e) 
the applicant has five children of her own
to whom she would have wanted to bequeath her property. 


 


[84]       
I also note from terms of the
redistribution agreement that it specifically states that the joint
estate was non-executable because


 


(a) 
the farm property could not be subdivided; 


 


(b) 
it was practically impossible to maintain
half of the movable goods “that has regard to the farming and
livestock”;  and


 


(c) 
that it would be more practical and to the
benefit of the various legatees in that the legatees wish that a
redistribution of the assets take place. 


 


[85]       
This
is not true.  In the first place, despite the fact that the farm
was only registered in the name of the deceased, the parties by
virtue of their marriage in community of property owned the assets in
equal undivided shares.[50] 
Secondly, where a spouse who is married in community dies, the whole
of the joint estate falls under the administration of the executor
who must first discharge all liabilities of the joint estate and then
pay over half of the net balance of the joint estate to the surviving
spouse.[51]  The executor
has to have regard to the interest and wishes of the surviving spouse
in realising the assets of the joint estate and where this is not
necessary, to realise the assets of the estate to meet liabilities,
the executor must obtain the consent of the surviving spouse before
disposing of her half share in the joint estate.[52] 
Thirdly, the farm could indeed have been subdivided with the
permission of the Minister of Agriculture in terms of sections 3 and
4 of the Subdivision of Agricultural Land Act, 70 of 1990.  It
is also clear from the allegations of the second respondent that she
never had a discussion with HJ Fourie, the executor.


 


[86]       
This is one of those cases where the
applicants are not in a position to gainsay the allegations of the
second respondent concerning the events leading to the conclusion of
the agreement.  The only ones who could have shed any light on
this matter are those who from the outset were completely derelict in
their duties as administrators.  ABSA Trust was served with the
application, and is cited as a respondent.  Yet, as referred to
above they only wish not to have any cost order against them. 
With regard to the counter application they say that they are
functus


 


[87]       
There are some very serious
allegations made against the gentlemen in this affidavit. 
Having received this information one would have thought that those
with any form of fiduciary duty or sense of honour, for that matter,
would have considered preparing answering papers to dispute this
claim.  However, nothing was said. 


 


[88]       
The court is accordingly faced with
allegations made by the second respondent that cannot be meaningfully
disputed by the applicants and areas where it does not appear that
any evidence can be led to the contrary.  


[89]       
I
find on the balance of probabilities that the second respondent did
not know what the document she was signing contained, and that
neither the executor, the administrator nor Mr Minaar explained to
her what the document means.  Thus, there was no consensus. 
In particular, I believe that Mr Minaar knew what the terms were,
whilst the second respondent did not.[53]


[90]       
It
is a bare trite principle of the law of contract that a contract only
comes into existence when there is the consensus between the parties,
failing which, it would be a nullity.[54] 


[91]       
On the above facts, I am persuaded
that the second respondent has discharged  her onus to prove
that she had no idea what she was signing when she appended her
signature to the distribution agreement.  She appears since the
outset to have dealt with the Farm as if it was her own.  I also
find it difficult to believe that a parent would knowingly disabuse
his or her own seed of an inheritance in an immovable property with
knowledge that ownership of that property existed.  In light of
the foregoing, the redistribution agreement is declared to be
invalid.  The second respondent is entitled to her share of the
joint estate.  


[92]       
In light of the above finding, an
executor must be appointed to the estate of the deceased.  The
Master has authority to appoint an executor with the power to
administer, liquidate and distribute the half share of the deceased
in the joint estate, and to transfer one half share in the aforesaid
joint estate to the second respondent. 


[93]       
As regards the appointment of an
administrator, I am concerned by the acrimony between the parties and
it seems to me that it would be difficult to have them agree on
anything considering the intensity and negativity present in these
papers.  I believe that in the result neither the second
respondent nor the applicants should be appointed as administrators
to the trust of the deceased.  An independent administrator to
be nominated by the President of the Law Society of Namibia would be
best suited to take over the management and affairs of the Trust as
set out in the will. 


[94]       
As regards the question of costs, it
was submitted by Ms Visser that the applicants should not pay the
costs of the counter application because the second respondent should
have claimed costs from ABSA.  However, there was extensive
opposition by the applicants to the counter application and most of
the hearing was devoted to the prescription issue, as well as the
merits thereof.  As the applicant was successful in her counter
application, I see no reason why costs should not follow the event. 
As regards the applicants’ application, neither of the parties
were successful in being appointed as administrators, and an
independent administrator will be appointed.  On this basis
there should be no order as to costs. 


[95]
In the result, I make the following
order:


1.   
The redistribution agreement concluded on
14 March 1989 between the second respondent and H Fourie in his
capacity as executor of the estate late: Kaimbire Tjamuaha and J van
Zyl as nominee of Bank Corp Trust and administrator of the estate
late: Kainbire Tjamuaha Testamentary Trust is declared to be of no
force and effect and set aside. 


 


2.   
The first and final liquidation and
distribution account in the estate of the late Kaimbire Tjamuaha
dated 12 October 1989 is hereby set aside. 


 


3.   
The supplementary first and final
liquidation and distribution account in the estate of the late
Kaimbire Tjamuaha dated 26 May 1999 is set aside. 


 


4.   
The Master of the High Court is directed to
appoint an executor with the power to administer, liquidate and
distribute the half share of the late Kaimbire Tjamuaha in the joint
estate as at the time of his death in accordance with the terms set
out in his last will and testament. 


 


5.   
The Master of the High Court shall further
direct the executor so appointed to transfer one half share in the
aforesaid joint estate to the second respondent. 






6.   
An independent administrator shall be
appointed to the estate late: Kaimbire Tjamuaha Testamentary Trust No
173/1989 by the President of the Law Society of Namibia. 






7.   
The aforesaid administrator appointed by
the President of the Law Society of Namibia is exempted from the duty
of providing security to the Master of the High Court for his or her
duties as administrator and shall be entitled to compensation in
terms of the last will and testament of the late Kaimbire Tjamuaha. 






8.   
There shall be no order as to costs in
respect of the applicants’ application. 


9.   
The applicants are directed to pay the
costs of the counter application, such costs to include the costs of
one instructing and one instructed counsel.


SCHIMMING-CHASE


Acting
Judge


APPEARANCES


APPLICANTS:
Ms Visser


Instructed
by Krűger, Van Vuuren & Co



SECOND
RESPONDENT: Ms Bassingthwaighte


Instructed
by ESI



[1]
2015(4) SA 474 SCA




[2]
The
second respondent does not oppose the portion of the application
seeking the removal of ABSA Trust as administrators of her husband’s
testamentary trust.  She opposes the appointment of the
applicants as administrators. 




[3]
Referred to as administrator or trustee




[4]
The fifth respondent has elected to abide by the decision of the
court. 




[5]
Referred
to in more detail below. 




[6]
Both
the will and distribution agreement are in the Afrikaans language. 
The quoted portions are extracted from the sworn English
translation. 




[7]
See
Lee and Honoré:
Family,
Things and Succession,

2
nd
ed para 696 and the authorities there collected. 




[8]
On
application of the second respondent




[9]
The
second applicant was also joined in this capacity in the
counter-application




[10]
Supra
a
t
paras 646, 659-660




[11]
1970(4) SA 403 (NK) at 405-406




[12]
The
second applicant
was
born on 17 April 1968




[13]
(1873)
LR 8 Exch 160 at 162




[14]
1945
AD 201 at 213




[15]
Quoted
with approval by Levy J in
Brummond
v Brummond’s Estate

1992 NR 306 (HC) at 311I-312A;
Gordon’s
Bay Estate v Smuts

1923 AD 160 and 165. 




[16]
1914
AD 503 at 507




[17]
Lee
and Honorè,
Family,
Things and Succession

supra
at par 643




[18]
1947
(1) SA 425 (T) at 427




[19]
1958
(3) SA 503 (C) at 507A-H




[20]
supra
at
405-406




[21]
Referred
to as “kindskinderen” in the textatrix’s will. 




[22]
At
427-428




[23]
At
509D




[24]
At
510A




[25]
At
510D




[26]
5th
Ed at 10




[27]
Stockdale
v Stockdale

2004(1) SA 68 (C) at 72D-E. 




[28]
LAWSA
Vol 27 first reissue Butterworths par 381 and the authorities
collected at footnote 19. 




[29]
in
LAWSA
supra
at par 381




[30]
See
Stockdale
v Stockdale

2004(1) SA 68 (C) at 72D-E; Truter

v Deysel

2006(4) SA 168 (SCA) at par 16;
Van
Staden v Fourie

1989(3) SA 200 (A) at 216A-D;
Seaflower
White Fish Corportaion v Namibian Ports Authority

2000 NR 57 (HC). 




[31]
1979
(3) SA 1136 (W)




[32]
2007
(6) SA 313 (SCA)




[33]
2009
(5) SA 500 (SCA)




[34]
[2010]
ALL SA 519




[35]
2014
(1) NR 290 (HC)




[36]
Supra
at
245D.




[37]
Supra
a
t
par 19, and the authorities collected there.




[38]
Supra
at
508G




[39]
Supra
a
t
508G




[40]
at
par 8




[41]
2011(5) SA 648 (WCC).




[42]
At
inter
alia

par 17, 18, 20 and 21




[43]
2013(1) SA 125 (SCA) at 131-2 para 15




[44]
2015
(4) SA 474 (SCA)




[45]
See paras 21 and 22




[46]
at
para 20




[47]
At para 15




[48]
At para 45




[49]
See
Republican
Party v Electoral Commission of Namibia

2010(1) NR 73 (HC) at 108 C;
Bahlsen
v Nederlof and another

2006(2) NR 416 HC.




[50]
HR Hahlo,
The
South African Law of Husband and Wife,

5
th
ed at 158.




[51]
See D Meyerowitz,
The
Law in Practice of Administration of Estates

5
th
ed at 125 para 12.23




[52]
See D Meyerowitz
supra
at 131 para 12.9




[53]
See
Van
Wyk v Otten

1963(1) SA 415 (O);
Payne
v Minister of Transport

1995(4) SA 153 (C).




[54]
See RH Christie,
The
Law of Contract in South Africa

3
rd
ed at 23;
National
Address Buro v South West African Broadcasting Corporation

1991 NR 35 HC at 58G.