Court name
Supreme Court
Case number
SA 5 of 2012
Case name
Vermeulen and Another v Vermeulen and Others
Media neutral citation
[2014] NASC 7
Judge
Shivute J










IN
THE SUPREME COURT OF NAMIBIA





CASE
NO.: SA 05/2012





DATE:
31 MARCH 2014






REPORTABLE







In the matter between:









FREDERICK
ANTONIE
VERMEULEN...................................................................First
Appellant





ENGELA
MARIA MAGDALENA ELIZABETH
RABALT..................................Second
Appellant





And





GABRIEL
JACOBUS
VERMEULEN...................................................................First
Respondent





PETRUS
JOHANNES
VERMEULEN..............................................................Second
Respondent





CORNELIUS
JOHANNES DE
KONING............................................................Third
Respondent





MASTER
OF THE HIGH COURT
NO..............................................................Fourth
Respondent





REGISTRAR
OF DEEDS
NO................................................................................Fifth
Respondent





GABRIEL
JACOBUS VERMEULEN


(birth
date
13/09/1984)............................................................................................Sixth
Respondent





GABRIEL
JACOBUS VERMEULEN


(birth
date
31/08/1984).......................................................................................Seventh
Respondent





GABRIEL
JACOBUS VERMEULEN


(birth
date
30/04/1987)..........................................................................................Eighth
Respondent








Coram:         
           
SHIVUTE
CJ, MAINGA JA and MTAMBANENGWE AJA





Heard:          
            5
June 2013





Delivered:                
31 March 2014



APPEAL JUDGMENT





 


MTAMBANENGWE
AJA (SHIVUTE CJ and MAINGA JA concurring):


 


[1]          
This
matter comes before us on appeal against the judgment of the High
Court.


 


[2]          
In
a defended action in the High Court the two appellants, as first and
second plaintiffs, sued the respondents, as first to eighth
defendants. The two appellants, the first and second respondents are
siblings, all offspring of the marriage of one Gabriel Jacobus
Vermeulen to one Fransina Catharina Elizabeth Vermeulen (néé
van der Merwe) (the parents) and the sixth to eighth defendants are
their grandsons.


 


[3]          
The
family tree produced in the trial as exhibit ‘L’ (the
family), shows that the second appellant is the eldest child and only
daughter while the first appellant, second and first respondents
respectively are the first, second and third sons of the family; the
grandsons bearing the same names are sons of first appellant, second
 and first respondents.


 


[4]          
Both
parents are deceased, the husband predeceasing the wife. Before she
died, Fransina Catharina Elizabeth Vermeulen (testatrix/deceased)
executed two wills, the first on 1 October 1994 and the second,
replacing the first, on 18 August 2000. The appellants claimed in
their action:


1.       
An order declaring the will of the testatrix dated 18 August 2000 to
be null and void.


 



2.        
An order declaring that the will of 1 October 1994 is the valid will
of the testatrix.


 


3.        
Cost of suit against such defendants who oppose the action
.


 



4.        
Further and/or alternative relief.’


 


The
claim was based on the allegation that:


 


At
the time of the execution of the will – the 18 August 2000 will
– the testatrix was not in a mental state fit to execute a
valid will, in that at the time she was suffering from Alzheimer’s
disease / dementia to such a degree that she was unable to appreciate
the nature or contents of her acts.’


 


[5]          
Needless
to say that respondents denied that allegation, and referred to a
number of incidents or reasons, on which they relied to refute it.
The court
a
quo

correctly identified the issue to be decided as whether the deceased
was so mentally incapacitated at the time when she executed the
disputed will, that she could not legally do it, i.e. that she did
not possess testamentary ability at the time, and referred to s 4 of
the Wills Act 7 of 1953 which is applicable in Namibia regarding the
competency to make a will and the burden of proof.


 


[6]          
At
the outset it is necessary to briefly outline the background to this
unfortunate family feud and the circumstances surrounding the making
of the 18 August 2000 will (the disputed will). I call it a family
feud because the family, apparently formerly closely knit has, as
result, been divided into two camps beset with mutual suspicion,
recrimination and distrust and, as the court
a
quo

remarked, because of the legal battle over the assets of the deceased
mother, the case has proved opposite of the common adage blood is
thicker than water.


 


[7]          
Before
the death of their father the parents were apparently rather wealthy
and owned several farms in the Outjo area in Namibia. The parents
made a joint will on 21 October 1970 and when the father (Gabriel
Johannes Vermeulen) died in 1992, the mother inherited all the assets
in the joint estate.


 


[8]          
In
dealing with the evidence in this matter, I shall refer to the
Vermeulen siblings by their first names or nicknames. The first
appellant is known as Frikkie while the first and second respondents
are known as Gawie and Wollie respectively. During his life the
father assisted the second appellant to purchase a farm Onduri, which
farm was registered in the name of her ex-husband, Mr Jan Oelofse. He
also gave her 150 cows and 150 calves to start farming with. Later he
assisted Gawie to take over the loan on the farm Onduri as well as
the cattle. Gawie later sold that farm and he and his children went
to stay with the deceased at the farm Chaudamas.


 


[9]          
At
the time, Frikkie was living and working in South Africa where he
started a trucking business. Gawie also got involved in that business
and the father provided certain funds to get the trucking business
off the ground. The business, however, proved to be a failure. The
father was, apparently, not reimbursed.


[10]       
Frikkie
returned to Namibia in 1992 with the trucks which were then sold.
There is a dispute regarding the price obtained for the trucks and
Gawie claims that he suffered some financial losses in connection
with that trucking business.


 


[11]       
Frikkie
commenced business as a garage owner and was also assisted by the
father to purchase a house in Outjo. That house was originally
earmarked to go to Hannes, the youngest child who was subsequently
given a house in Henties Bay by the mother. He died in 2004.


 


[12]       
Wollie
was also assisted by the father to acquire farm Dawarob, where he had
farmed. The parents lived and farmed at farm Chaudamas.


 


The
deceased


[13]       
The
deceased, as described by all the children, was a very strong and
capable character who was the right-hand of the husband in their
farming operations. She was not only a good farmer herself but also
an excellent hunter, mechanic, cook, baker and botanist. She was a
bisley shot, could repair anything on the farm herself and was a very
neat person who kept everything in her house neat. Her garden at the
farm was admired by everyone who saw it and even tourists would stop
to admire it. She regularly on Monday mornings drove her
grandchildren to school in Otjiwarongo starting early in the mornings
and would pick them up on Fridays. In brief she did everything for
herself. Above all she was a woman who expressed herself forcefully,
fearlessly and honestly. She was commonly known in the vicinity as
the ‘Iron Lady of Outjo’.  She did not allow herself
to be dictated to and spoke her mind if anything bothered her. It is
clear from the testimony of Frikkie and Engela and Wollie that the
deceased and her husband always treated their children in a fair and
equal manner and would not allow one child to benefit to the
detriment of another. That this was the conduct of the parents is
borne out by their joint will of 1970 (the 1970 will) and the
deceased’s will of 1994 (the 1994 will).


 


[14]       
The
1970 will, executed by the parents on 21 October 1970, shows what the
parents’ wishes were. It provided,
inter
alia
:


 


In
the event of our simultaneous death or if we die under such
circumstances that in terms of the Law it is considered that we died
simultaneously, then we bequeath our entire estate in equal shares to
our children or their offspring by representation per stripes.’


 


The
1994 will of the deceased was executed on 1 October 1994 (this is not
in dispute). In this will the deceased made a disposition of her
assets as follows:


 


(a)      
My farm property, Chaudamas, to my son FREDERIK ANTONIE VERMEULEN.


 



(b)       
To my daughter ENGELA MARIA MAGDALENA ELISABETH ROUX:


 


           
i)         
my fixed property, erf 1222, Hentiesbaai.


           
ii)        
all my personal belongings.



iii)        
all furniture and household goods of the dwelling house on farm
Chaudamas.



iv)       
the red 1993 Toyota vehicle


 



c)        
The fixed property, erf 12, Outjo, to my son JOHANNES MARTINUS
VERMEULEN.


 



d)        
All implements, tractors and tools in equal shares to my sons
FREDERIK ANTONIE VERMEULEN and PETRUS JOHANNES VERMEULEN.


 



e)        
All livestock in equal shares to my children ENGELA MARIA MAGDALENA
ELISABETH ROUX, FREDERIK ANTONIE VERMEULEN, PETRUS JOHANNES
VERMEULEN, GABRIEL JACOBUS VERMEULEN and JOHANNES MARTINUS VERMEULEN.


 



f)         
The entire residue in equal shares to my children ENGELA MARIA
MAGDALENA ELISABETH ROUX, FREDERIK ANTONIE VERMEULEN, PETRUS JOHANNES
VERMEULEN, GABRIEL JACOBUS VERMEULEN and JOHANNES MARTINUS VERMEULEN.
Failing them, then to their descendants by representation per
stirpes.’


 


[15]       
There
is undisputed evidence by Wollie, that he accompanied the deceased to
the bank manager after he urged her it was time to draft a new will,
that ‘before my father’s death he discussed with me who
will inherit what’ and that when they went to the bank manager
‘my mother told me that I should inform the bank manager how
the will should be drafted as your late father explained to you how
the will should look. You are at least honest’ and that she
trusted him. It is also common ground that while every child was
assisted to acquire a farm only Frikkie was not so assisted; it was
the whole family’s understanding that he would inherit farm
Chaudamas.



 


The
Law


[16]       
Before
turning to discuss the evidence adduced in this matter, it is
necessary to refer to some authorities regarding the approach to the
evidence in cases of wills generally. In the Australian case
Nicholson
and Others v Knaggs and Others

[2009] VSC 64 Vickery J stated at para 41:


 


In
the end it is for the Court, assessing the evidence as a whole, to
make its determination as to testamentary capacity. . . . The Court
must judge the issue from the facts
disclosed
by the entire body of evidence.

. . .
The
manner in which she gave her instructions, the content of those
instructions, the setting in which the instructions were given and
the outcome of enquiries made by the solicitor acting in the matter,
all assume importance
.’
(My emphasis.)


 


In
Lewin v Lewin 1949 (4) SA 241 (TPD) Roper J said at p 253:


 


The
Courts are . . . almost daily called upon to decide disputed issues
of fact without the aid of scientific proof. When that is the case
they must take such
evidence
as is put before them and decide the issue upon the probabilities
.’


(Again
my emphasis.)


 


[17]       
In
para 12 of the respondents’ heads of argument reference is made
to the principles that should apply on appeal, including the
assessment of the evidence of witnesses, their demeanour. Of
particular relevance is what respondents’ counsel said with
reference to
Rex
v Dhlumayo and Another

1948 (2) SA 677 (A). In that case at pp 705-6 Davis AJA summarised
the principles which should guide an appellate court in an appeal
purely upon facts as follows:


 


1.       
An appellant is entitled as of right to a rehearing, but with the
limitations imposed by these principles; this right is a matter of
law and must not be made illusory.


           



2.        
Those principles are in the main matters of common sense, flexible
and such as not to hamper the appellate court in doing justice in the
particular case before it.


 



3.        
The trial Judge has advantages - which the appellate court cannot
have - in seeing and hearing the witnesses and in being steeped in
the atmosphere of the trial. Not only has he had the opportunity of
observing their demeanour, but also their appearance and whole
personality. This should never be overlooked.


 



4.        
Consequently the appellate court is very reluctant to upset the
findings of the trial Judge.


 



5.        
The mere fact that the trial Judge has not commented on the demeanour
of the witnesses can hardly ever place the appeal court in as good a
position as he was.


 



6.        
Even in drawing inferences the trial Judge may be in a better
position than the appellate court, in that he may be more able to
estimate what is probable or improbable in relation to the particular
people whom he has observed at the trial.


 



7.        
Sometimes, however, the appellate court may be in as good a
position as the trial Judge to draw inferences
, where they are
either drawn from admitted facts or from the facts as found by him.


 



8.        
Where there has been no misdirection on fact by the trial Judge, the
presumption is that his conclusion is correct; the appellate court
will only reverse it where it is convinced that it is wrong.


 



9.        
In such a case, if the appellate court is merely left in doubt as to
the correctness of the conclusion, then it will uphold it.


 



10.      
There may be a misdirection on fact by the trial Judge where the
reasons are either on their face unsatisfactory or where the record
shows them to be such;
there may be such a misdirection also
where, though the reasons as far as they go are satisfactory, he
is shown to have overlooked other facts or probabilities
.


 



11.      
The appellate court is then at large to disregard his findings on
fact, even though based on credibility, in whole or in part according
to the nature of the misdirection and the circumstances of the
particular case, and to come to its own conclusion on the matter
.


 



12.      
An appellate court should not seek anxiously to discover reasons
adverse to the conclusions of the trial Judge. No judgment can ever
be perfect and all-embracing, and it does not necessarily follow
that, because something has not been mentioned, therefore it has not
been considered.


 



13.      
Where the appellate court is constrained to decide the case purely on
the record, the question of onus becomes all-important,
whether in a civil or criminal case.


 



14.      
Subject to the difference as to onus, the same general
principles will guide an appellate court both in civil and criminal
cases.


 



15.      
In order to succeed, the appellant has to satisfy an appellate
court that there has been “some miscarriage of justice or
violation of some principle of law or procedure
” ’.
(My underlining for emphasis.)


 


Departure
from intentions in disputed will


[18]       
The
disputed will shows a radical departure from deceased’s
intentions as reflected in the 1994 will. Whereas in the 1994 will
she bequeathed farm Chaudamas to Frikkie, all her personal
belongings, all her furniture and households goods of the dwelling
house on farm Chaudamas and her red Toyota motor vehicle to Engela
Roux (now Engela Rabalt) her eldest child and only daughter, the
second appellant, the fixed property Erf 12, Outjo to her son
Johannes Martinus Vermeulen (now late), all implements, tractors and
tools in equal shares to Gawie and Wollie, all livestock in equal
shares to all her five children and the entire residue of her estate
in equal shares to all her five children, in terms of the disputed
will Gawie alone inherits her entire estate including all her
movables, apart from a few rifles.


 


[19]       
The
court
a
quo

sought to explain the remarkable change of intention on deceased’s
part when the learned judge stated at para 58 of his judgment:


 


 ‘An
incident which occurred in approximately July 2000 would in my
opinion provide the reason why the deceased made the disputed will of
18 August 2000. It is common cause that a meeting was held at
Chaudamas during approximately July 2000,
which
meeting was attended by the first and second plaintiffs
,
second defendant and the deceased as a result of the latter’s
dire financial position.’ (Underling is mine.)


 


Engela
was not at that meeting at all. The learned judge a quo thus
misdirected himself as to the facts in this matter.


 


[20]       
I
find this misdirection very important, in that it apparently led to
the court
a
quo

glossing over the consideration of -


 


(a) 
the
circumstances surrounding the making of the disputed will;


(b) 
the
conduct of the deceased during the giving of her instructions to the
lawyer who drafted the will, Mr de Koning;


 


(c) 
the
evidence-in-chief of Mr de Koning as to what transpired during the
taking of his instructions, as compared with his evidence under
cross-examination; and


(d) 
the
conduct of first respondent during the giving of instructions for
drafting the disputed will and the contemporaneous drafting of an
agreement of sale of the farm Chaudamas by the deceased to the first
respondent.


 


The
conduct, both of the deceased and Gawie during the giving of the said
instructions to Mr de Koning and Mr de Koning’s evidence on
that issue needed, in my opinion, to be more closely scrutinised in
light of many factors relevant to that issue. I shall, later in this
judgment, endeavour to show why. In the absence of the testatrix
‘circumstantial evidence usually assumes great importance’
(see Nicholson’s case, supra, at para 43).


 


[21]       
In
my opinion a less obvious misdirection by the court
a
quo

is the fact that in dealing with the evidence, the learned judge made
no definite finding as to the credibility of witnesses. This is shown
for instance, in the way the learned judge gave a blanket acceptance
of the evidence of respondents’ witnesses without properly
analysing their evidence. This to me seems to be a very significant
omission. For the moment suffice it for me to repeat what the Full
Court of the Supreme Court of Queensland said in
Bool
v Bool

[1941] St R Qd 26 at 39 (as referred to by Vickery J in
Nicholson’s
case,
supra,
at para 573) namely:


 


A
great change of testamentary disposition evidenced by a departure
from other testamentary intentions long adhered to always requires
explanation.’


 


[22]       
Before
I proceed to analyse the evidence adduced in this matter, it is
necessary to refer to three more cases. In
Nicholson’s
case,
supra,
Vickery J also referred to what was said in
Kantor
v Vosahlo

[2004] VSCA 235 at para 22. Discussing the burden of proof in cases
of disputed wills, the learned judge in that case (Ormison JA)
expressed himself as follows:


 


For
purposes such as the present, where the Court has to be satisfied
affirmatively of the capacity of the testatrix to make a valid will,
the burden of proof or, more precisely, the standard of proof
therefore remains the same,
that
is, upon the balance of probabilities, but the Court is not to reach
such a conclusion unless it has exercised the caution appropriate to
the issue in the particular circumstances by a vigilant examination
of the whole of the relevant evidence
.
If that process results in the Court being affirmatively satisfied
that the testatrix had the necessary testamentary capacity at the
appropriate time to make the propounded will, then a grant of probate
should be made.’ (My emphasis.)


 


The
learned judge in that case, after referring to another case of the
High Court Boreham v Prince Henry Hospital [1995] 29 ALJ 179
where at 180 the three judges dealt with the burden of proof, went on
to say:


 


As
is made clear, in approaching such cases
by
applying a closer scrutiny of the evidence than is usual in the
course of reaching a decision on the balance of probabilities, the
Court is not imposing a higher standard of proof.

The standard remains that of affirmative satisfaction
on
the balance of probabilities
.
What
is required, however, is a consideration of the evidence as a whole
coupled with the application of a degree of caution which is
appropriate to each factual issue which is placed under scrutiny,
before applying the standard.’

(Underling for emphasis.)


In
Louwrense v Oldwage 2006 (2) SA 161 (SCA) Mthiyane JA stated
at 167I-168C (paras 14 and 15 (regarding different versions of the
evidence in a case):


 



           
On a proper
approach, the choice or preference of one version over the other
ought to be preceded by an evaluation and assessment of the
credibility of the relevant witnesses, their reliability and the
probabilities.  (
See
Stellenbosch Farmers’ Winery Group

Ltd
and Another v Martell et Cie and Others
.)¹
Unfortunately it is not apparent from the record that this approach
was adopted by the Judge
a
quo.
 
I do not think this is a case where, sitting as a Court of appeal, we
should defer to the trial Court’s findings of credibility
because of the peculiar advantages it had of seeing and hearing the
witnesses.  Even if such findings were in fact made by the trial
Court,
I
do not think that we are precluded from dealing with findings of fact
which do
not
in
essence depend on personal impressions made by a witness in giving
evidence, but are rather based predominantly upon inferences from the
facts and upon the probabilities

In
Union
Spinning Mills (Pty) Ltd v Paltex Dye House (Pty) Ltd and Another²
this
Court,
per
Zulman JA,
said:



 


Although
Courts of appeal are slow to disturb findings of credibility
they
generally have greater liberty to do so where a finding of fact does
not essentially depend on the personal impression made by a witness’
demeanour but predominantly upon inferences from other facts and upon
probabilities.  In such a case a Court of appeal with the
benefit of an overall conspectus of the full record may often be in a
better position to daw inferences
,
particularly in regard to secondary facts.” ’ (Emphasis
emphasis.)



 


It
follows therefore that the factual evidence presented to the court a
quo
merits reconsideration and re-evaluation.



 


[23]     
I consider that the approach enunciated in these cases should be
adopted in dealing with the evidence in this case, notwithstanding
the fact that it is the appellants who bear the burden of proving
lack of testamentary capacity. The circumstances of this case call
for such an approach.



 


The
evidence adduced for the appellants


The
evidence of Engela Maria Magdalena Elizabeth Rabalt (formerly Roux)


[24]       
On
19 April 2004, on the application of Engela and Frikkie, the High
Court declared the deceased incapable of managing her own affairs.
This came as a result of a recommendation by Ms Susan Vivier
appointed as curator
ad
litem

on the same application. Before she made the recommendation, Ms
Vivier consulted with among others the deceased and Engela. Frikkie
deposed to the founding affidavit in the said application and Engela
the confirmatory affidavit. In para 6 of the founding affidavit
Frikkie stated:


 


With
the benefit of hindsight I now realise that soon after the death of
my father my mother’s mental well-being began to deteriorate. I
do not think any of us children observed the aforegoing, probably due
to our inexperience in this regard. It has only been over the past
three years or so that particularly I and my sister, Engela have
noticed a marked deterioration in the patient’s mental capacity
and capability of managing her own affairs.’


 


Engela’s
evidence as well as Frikkie’s thus concerns the hindsight
observations they made of the deceased’s action (conduct) ‘over
the past three years or so’. Engela related her observations to
Dr Reinhardt Sieberhagen, a psychiatrist who examined the deceased
during November 2003 on the request of Dr F Burger, the deceased’s
general practitioner. Engela related the same observations to the
curator ad litem.


 


[25]       
Engela
gave a description of the deceased’s capabilities and
competencies that are echoed in the testimony of nearly all her other
children. She testified that the deceased and herself had a very good
and close relationship; they never quarrelled and there never was any
problem between them; they bathed together; and talked a lot (‘we
could not talk enough’) as she put it. They had this
relationship until the end. Louisa Jacoba Vermeulen, Wollie’s
ex-wife, who later testified on respondents’ behalf, confirmed
this.


 


[26]       
Engela
continued to testify that her parents ‘did not allow themselves
much, because they always said they worked hard and that they were
doing it especially for their children, they always believed that
they wanted to treat all their children the same way’. The she
testified about how their father assisted each child to acquire a
farm, giving each livestock to farm with, except Frikkie who (which
is common cause), the father said ‘must inherit Chaudamas one
day’.


 


[27]       
She
further testified that all the children took out a life insurance
policy on the deceased’s life and made arrangements as to how
much they would pay per month; the payments were to be made into the
deceased’s bank account; and ‘Frikkie and Wollie decided
that they would pay hundred-and-fifty Rand (R150), me and brother
Hannes we decided that we will pay two hundred-and-fifty Rand (R250)
a month and Gawie decided that he will have a policy and pay six
hundred Rand (R600) a month’. She said that all the children
made their monthly payments except for Gawie whose instalments were
deducted from the deceased’s account. Gawie was not working and
was staying with the deceased at Chaudamas farm at that stage. She
said that whenever first respondent was asked about this ‘he
just got angry’. In substance Frikkie corroborated this
evidence and first respondent did not deny it.


 


[28]       
Engela
testified that in November 1999 when the deceased came to visit her
in Swakopmund she observed that her suitcase was not packed properly,
the clothes in the suitcase were not the type of clothes ‘she
wears to town and she did not talk much’. Asked why that was
important to her, she said:


 


My
mother was very neat, her suitcase was so precisely packed and that
was very strange to me and also me and she bathed together and talked
a lot and I poured the water in the bath and when she took off her
clothes I saw that she had a lot of panties on and she climbed into
the water and without washing, she just climbed out and that was
strange to me and the whole time she ate a lot and she was not a
person who ate a lot.’ (sic)


 


Asked
why it was strange that the deceased did not talk much, she replied:


 


It
was strange because me and she (sic) we could not stop talking, we
were always laughing and I thought, “oh, maybe my mother is old
now, I do not know what is wrong.” ’


 


[29]       
She
further testified that in January 2000 ‘. . . it was after the
Millennium, I went to the farm. As usual she will go to the car and
will be very happy to see us and she did not talk much . . .’.
She said that previously:


 


           
She was very
happy to see us, but then she was not the same as always.’


 


Asked
to ‘differentiate’ between how she was before and how she
was that night when she arrived there, she replied:


 


She
did not talk much, just looking at us, “hallo”, not as
always. She was always so happy to see us but not that night and
always she had cooked food for us when we came from Swakop and then
there was no food and that was also strange to me and she always did
the cooking by herself, nobody else cooked in her kitchen and then I
could cook in her kitchen. That was also strange to me and I realised
that my mother did not bath because the geyser was broken and she
always could fix the geyser in Henties Bay and she could not fix the
gas geyser in her house. Her house was not as always neat and
precise. Her cupboards were not as neat as always. She was painfully
precise in her home and that was not my mother, she was not like
that.’


 


Asked
about her observation about the garden on that occasion i.e. 2000,
she said:


 


My
mother’s garden, the grass was long, the flowers were dry and I
could not believe what I was seeing because my mother always loved
her garden, so she did not water the garden and no more cut the grass
and she did not worry about that. That was strange to me.’


 


[30]       
Engela
also testified about a second visit to the deceased in 2000. She said
on that occasion Gawie asked whether Engela wanted to buy a camp on
the farm because they had financial problems. She was not interested
in doing so but realising they had financial problems, she offered to
assist and asked him how much they needed and he said three thousand
five hundred (N$3500) would be enough. She then made the first
monthly payment ‘into their bank account’ in June 2000.
She said when she had asked to see their financial statements Gawie
had said that he had cancelled the deceased’s short-term
insurance.


 


[31]       
In
July 2000 she went back to the farm and ‘the grass was still
long and the geyser was still not working, and I was very angry and I
phoned my brother Frikkie and my brother Petrus and told them to come
and repair my mother’s geyser’.  She continued:


 


On
that stage Gawie lived with her on the farm. So, she did not bath and
so it does not bother her because she did not bath, the water was
cold and I could smell that my mother was not as always, I could
smell her and I looked and when I was in her room, I smelled
something not very nice and I looked and there was, in Afrikaans you
call it a pot that you put underneath a bed. . . .  “Chamber
pot” yes and which was not emptied for very, very long and that
was in need for emptying. I found in her cupboards open tins of
condensed milk and jam and I asked her why did she put the tins
there. She said to me that somebody will steal it.’


 


Asked
if she enquired ‘about their finances and the bank statements
and so on’, she replied:


 


I
asked my mother are they okay now, is (sic) things better now because
I did pay my first payment and she did not worry about that and I
asked them the bank statements but no one gave any statements to me.
So, I left it there but it was strange to me that my mother does not
worry about the finances.’


 


She
said she had continued to pay the N$3500 further until December 2001.
Documentary proof of payments she made was produced as exhibits ‘Q1
to ‘Q13’ showing, inter alia, deposits
by her into the deceased’s account.


 


[32]       
Engela
testified further that in May 2001 the deceased was with her in
Swakopmund.  The next day was her husband’s birthday.
 Because she had a lot of computer work to do, she asked her
mother, who she knew could bake very well, to bake a cake after she
gave her a recipe book and all the things needed and the mother could
not bake a cake and kept on asking what she should do which was
strange to her. ‘It was a whole flop.’ That time she went
with the deceased to Walvis Bay and when she asked her to look for a
number ‘in her telephone book’ she could not find it. It
was also strange to her. She also gave the deceased money to go one
block straight down the street and the deceased got lost and she had
to send all the people from her shop to look for her. Back home, the
deceased tried to hit her parrots with a remote control. She was not
like that before. Before she liked birds, dogs, cats and any animal.
The court asked how the deceased got to Swakopmund and Engela said:


 


I
could not remember at the moment how did she get there.’


 


She
later, in cross-examination, said she could not remember how she got
there ‘because sometimes I go and get her, sometimes Gawie
brings her to us or Wollie brings her’.


 


[33]       
It
was Engela’s further evidence that the deceased stayed with her
most of the period 2002 to 2004 except during the period her husband
was in hospital and she asked Frikkie to take her and look after her.
Frikkie then took her to the farm. During this period, she said:


 


It
was not easy to look after her because she was very aggressive. I had
to bath her, she could not do anything for herself and she ate the
whole day and she could not sit still and she could not talk to me.
She could not relax and sit and look at the TV, she just goes up and
down, up and down.’ (sic)


 


Louisa
Vermeulen told Dr Sieberhagen more or less the same thing.


 


Engela
continued to say that in 2004, the deceased stayed with her and in
October 2005 ‘. . . I could not manage to look after my mother
anymore, so first I tried to put her in an old-aged home in Walvis
Bay but they did not want people with Alzheimer’s and then I
put her in the J G Potgieter Alzheimer Home’.


 


She
paid for that as well as for everything else her mother needed. It
cost her approximately one thousand Namibian dollars (N$1000) a month
extra.  In December 2001 there were rumours that the deceased
had sold the farm to Gawie and Gawie had ceded the policy which all
the children except him had been paying for his bank overdraft. Then
she immediately stopped paying the N$3500. She confronted the
deceased and Gawie about the rumours and both denied the rumours.


 


[34]       
The
court
a
quo
allowed
evidence as to what Engela was told by her mother she would inherit.
This the court did, subject to argument, it said. Mr Schickerling,
who appeared for the respondents in the court below, had objected to
the evidence as hearsay. Finally in her evidence-in-chief, Engela was
taken through the provisions of the two wills. These two wills were
both produced as exhibits and it is not necessary to repeat her
evidence in that regard. However, I should mention that Engela was
asked if she knew any reason why the deceased disinherited her in
terms of the disputed will and she replied:


 


No
because we had a very, very good relationship, we never quarrelled
and that was very strange to me. She loved me a lot, why would she do
that? That was impossible for me.’


 


She
also said from 2000 when the deceased executed the disputed will till
she passed away in 2007 the deceased never mentioned anything to her,
nor did Gawie, about the 2000 will.


 


[35]       
In
the end she was asked to comment on what Louisa Vermeulen would say,
namely:


 


(a) 
that
deceased never went to a doctor for a personal examination without a
family member being present;


 


(b) 
that
the reason why deceased wore four sets of underclothes is because she
did not want to wear step-ins; and


 


(c) 
that
she, Louisa and deceased had a very close relationship.


 


She
denied all these claims and gave reasons why she denied them. As
mentioned before, Louisa Vermeulen was formerly the deceased’s
daughter-in-law.


 


[36]       
Engela
was subjected to a long cross-examination by respondents’
counsel. This cross-examination focused mainly on the various
incidents she testified to as showing deceased’s diminishing
mental capacity before she executed the disputed will. In the main,
counsel did not seem to deny that the incidents happened, but
attempted to show that they happened on different dates or to explain
them away. In my opinion Engela demonstrably refuted the said dates
or explanations by, for example, relating the incidents she described
to such historical events as her husband’s birthday and the
millennium. The sweeping suggestion was made by respondents' counsel
that all that Engela related about deceased’s strange behaviour
since 1999 was a concoction or an afterthought. She denied the
suggestion. She and Frikkie denied the claim that Gawie worked for
the deceased, that ‘sometimes he attended to selling her meat
products when she could not do it’. When he came to testify,
Gawie repeated these claims and seemed to suggest that the deceased
was remunerating her for the work he did for her by paying the school
fees for his children, by regularly taking them to school in
Otjiwarongo and by paying his insurance premiums. Engela said the
deceased had ‘no choice but to do that’. In fact when
Gawie came to testify this claim developed into an assertion that he
was in fact running the farm for the deceased and that deceased was
the one who depended on him financially. If this evidence is to be
believed, this claim would amount to saying the deceased was no
longer capable of managing her own affairs at least to the degree
that she was known to do before. Admittedly, Gawie was experiencing
financial problems of his own which problems had compelled him to
sell farm Onduri. That he had become heavily dependent on the
deceased in several respects is quite clear and his siblings resented
this situation.


[37]       
Engela
was cross-examined on the incident when she said she discovered an
unemptied chamber pot under the deceased’s bed in July 2000.
Without denying the incident, the questioning ended with counsel
saying ‘that particular person who was present during the
incident was the first defendant’. She denied that he was
present. She denied that the particular incident happened in December
2003 ‘after your late mother was diagnosed with Alzheimer’s
and you came to the farm to fetch her’.


 


[38]       
She
denied being present at the meeting ‘in July 2000’
between the deceased, Frikkie and Wollie where Wollie and Frikkie
tried to persuade the deceased to sell Chaudamas to Frikkie’.
She said the meeting where she was present was ‘at Frikkie’s
house after my mother was diagnosed with Alzheimer’s’.
This, she said, would be in 2004. The deceased did not tell her about
the July 2000 meeting with Frikkie and Wollie; she did not have a
discussion with the deceased ‘about possibly buying a camp on
the farm’.


 


[39]       
Referring
to an earlier visit to the deceased in January. Engela categorically
denied the suggestion that it was in January 2001.


 


She
also denied that the incident when the deceased failed to bake a cake
for her husband’s birthday was in 2004 instead of 31 May 2001
as she had testified. At that time she did not know that the deceased
had Alzheimer’s disease, she said.


 


[40]       
In
an attempt to explain the cause of his financial problems at the time
Gawie moved to stay at Chaudamas farm, the respondents’ counsel
put various reasons, why Gawie sold Onduri farm and moved to
Chaudamas. Many of the reasons were such as Engela could not be
expected to have intimate acquaintancy with. Engela, however,
eventually said:


 


I
cannot tell you what was the reason for his financial problems, but
it is strange to me that since my mother was already on her feet and
since he moved in with her, there was also financial problems, that
is my problem with that.’


 


It
is significant that all the other children of the deceased,
including, admittedly, Wollie, were concerned about the Gawie’s
dependence on the deceased and felt he should find work instead of
depending on the old lady. They did not mince their words, and as I
will try to show later in this judgment, this attitude of dependency
on his part had a significant bearing as to the setting under which
deceased purported to execute the disputed will.


 


[41]       
Engela
was asked about the incidents in November 1999 when she said:


 


(a)     
deceased did not talk as much as before;


(b)      
deceased ate a lot unlike before;


(c)       
deceased got in and out of the bath without washing herself; and


(d)      
deceased wore many panties.’


 


She
was asked why she did not talk to Louisa about these since Louisa
would say she, Louisa, and the deceased had a very close
relationship. In her reply she said she told Frikkie about it, denied
that her ‘mother and Louisa Vermeulen had an extremely close
relationship . . .  Because as I told you, in 1995 she phoned me
and she asked me to ask my mother to take her cattle off the camp and
that was me and my husband’s wedding . . .  .’


 


She
went on:


 


And
also Louisa talked to me about that and that is why I told her that
“please Louisa, talk to my mother about it, you know Louisa,
that my mother and father they helped you and Wollie a lot, you must
help them because they helped you. If you and your husband still
stayed in Windhoek you would still have nothing if it was not for my
parents who helped you.” ’


 


Counsel’s
comment after this answer was not that Louisa would deny this but to
minimise it as a single incident. Counsel then said:


 


I
put it to you that what you are telling this Court of the events in
1999, 2000 and 2001 is just an afterthought. These are facts which
you had concocted afterwards to stretch the timeline to before the
date on which your later mother executed her Last Will and Testament.
That is why there is no mention of any of this.’


 


The
people Engela is said not to have mentioned in the incidents in 1999
to 2001 are Louisa, the respondents in the application for
curatorship and Dr Sieberhagen. Engela’s simple and telling
answer to what counsel put to her was:


 


Sir,
but before that none of us did know about that testament. I did not
know about any testament.’


 


She
later said that when she went back to the farm after the millennium
‘then things looked to me very, very strange and that is when,
after I talked to Frikkie about that, that I said to him ‘jislaaik
Frikkie, that is happening and that is when Frikkie said ‘jong,
there is something big strange’. She also queried why
respondents who were staying with the deceased never mentioned
anything knowing she was the only daughter.


 


She
was referred to para 6 of the first appellant’s founding
affidavit sworn to on 21 January 2004, which I have already quoted
above, and questioned and answered as follows:


 


Q:      
During the last three years or so and from 2004 that would bring us
to 2001 or so.


           
A:        
Yes.


           



Q:       
So, how do we get from there now to 1999? That is what you said under
oath?



A:        
You see, all the things were strange of my mother, but I thought my
mother is just getting older.’


 


This,
in my opinion, was a matter for argument and therefore, need no
comment at all.


 


[42]       
Against
what Engela said of the deceased’s illness, the respondents’
case was then put to her (that they would testify) as follows:


 


1.   
that
the first incident they (particularly Louisa Vermeulen) recalled
which could be linked to the deceased’s illness was in December
2002 ‘when you had sent her to the bank and she had gotten
lost’;


2.   
that
the seventh and eighth respondents would testify that as late as 2003
the deceased did their washing and ironing, she packed their
suitcases neatly and impeccably;


3.   
that
as late as 2003, the deceased did her own income tax returns; these
were done by first respondent and the deceased jointly;


4.   
that
as regards errors made in her tax returns various cheques since 1987
will be produced to show the deceased made spelling errors;


5.   
that
Juanita will testify that in 2001 the deceased’s garden was
still so beautiful that some tourists who gave her a lift even
stopped to take photographs of it;


6.   
that
the seventh and eighth respondents would testify that up towards the
middle of 2003 the deceased still drove them to school every second
Friday and every second Monday approximately a hundred kilometres
from the farm to Outjo;


7.   
that
the incident of the chamber pot happened in December 2003 after Dr
Sieberhagen had diagnosed the deceased with Alzheimer’s; and


8.   
that
the deceased’s instructions were very clear as to what she
wanted as far as the terms of the agreement were concerned and as far
as the terms of the last will and testament were concerned.


 


[43]       
Significantly
Engela retorted immediately and emphatically to the last suggestion
(No. 8 above):


 


That
definitely my mother did not, that is impossible that my mother
forgot me because I am her only daughter and she will never ever if
things were normal, she will never ever forget me.’


 


As
for the rest, Engela refuted or denied all of them, that is to say:


 


(a) 
all
that respondents would say as to whether the incidents she related
happened or did not happen and when she said they happened; or


(b) 
the
explanation that respondents would make of the various incidents; or


(c) 
respondents’
version as to, for example, when and why on some occasions she
visited her mother at the farm Chaudamas.


 


[44]       
The
only aspect of respondents’ case that Engela seemed to agree
with was when counsel put it to her that ‘by 2000 your mother
was in severe financial dire straits . . .  she had severe
financial problems?’ She answered:


 


Yes,
that was for me also a problem, that is why I decided that I will
help them and Gawie said to me that three thousand five hundred Rand
(R3 500-00) will help them and that he has already stopped my
mother’s short-term policy and also her policy for the Rand
overdraft and her medical that he stopped and he said to me yes, then
it will be better with him. That is why I went back to the farm from
time to time to see is things better, can they cope and that is why I
also took groceries with me when I went to the farm and when I asked
my mother, “are you okay, is things better”, then it did
not bother her.’ (sic)


 


This
evidence elicited in cross-examination was never denied.


 


[45]       
Engela
disputed all the assertions contradicting her own evidence, or said
at some particular dates she was not with the deceased. It is my view
that the dispute can only be resolved after the analysis of the
evidence as a whole. However, I think Dr Sieberhagen’s evidence
about the stages of development of and effect at various stages of
the Alzheimer’s disease is very relevant in this regard, and in
the end, the determination of where the truth lies will largely
depend on assessing the probabilities.


 


The
evidence of Frederik Antonie Vermeulen (Frikkie)


[46]       
Frikkie
gave evidence similar to Engela’s in a number of respects. When
asked if he had noticed anything about the deceased’s
behaviour, he said:


 


First
I noticed nothing, but after we sent her to Dr Burger and Dr
Sieberhagen, everything fell into place what happened over the past
years.’


 


Asked
what he meant by that, he said:


 


First
my mother had an SMBA account; it is a
koopkrag
rekening
,
in Outjo. The lady phoned me and told me that there was not enough
funds into my mother’s account, so I paid that account at that
time and the next month there was also a problem with her payment, so
I did that payment too and it was not like my mother to buy something
which she cannot afford. It was very very strange. My mother never
paid something which she cannot afford. . . .  That was in June
and July 2000. . . .  The one payment I did was on 2000.07.03,
(he said referring to some exhibits . . .) and the other document,
number 7, it is on the year 2000.06.12.’


 


This,
he said, never happened before ‘. . .  my mother was
always perfect on that’.


 


[47]       
Frikkie
mentioned a number of other incidents which he said were strange to
him and why:


 


1.   
On
20 June 2000 she drove her vehicle without water till the engine
seized – the mother was a good mechanic.


2.   
The
incident when she hit a donkey. Before the mother never made
accidents, she was a very good driver, it was in October 2000.


3.   
The
deceased’s behaviour on the road, when a Mr Prinsloo phoned
him, the deceased had put petrol in a diesel engine and did not
remember where she did this. The behaviour of the deceased was
witnessed by Mr Prinsloo who testified to the effect that the
deceased was disoriented, she looked strange. This was approximately
in November 2000. Documentary evidence was produced to show the
Toyota vehicle which was written of on 9 February 2001.


4.   
Then
there was an incident where she hit into the back of Mr Mackenzie
Garoeb’s vehicle and just drove off as if nothing had happened,
even wondering, why Garoeb was following her. Frikkie said he got to
the house after his wife phoned him, he asked the deceased what had
happened ‘she knew nothing about it. I could not explain what
is wrong with her; I found it strange because my mother was not like
that’. This happened on 6 November 2000. Mr Garoeb confirmed
this evidence. He had to pay Mr Garoeb N$450 for the damage.


5.   
Then
he testified about a meeting he had with the deceased and Wollie in
June or July 2000 where Wollie made a proposal to the deceased that
he and Engela should buy the farm Chaudamas from the deceased (Engela
was not at that meeting) because the deceased was at that time under
financial pressure to such an extent that she did not pay her income
tax assessments and her cheques started to bounce.


 


With
reference to the disputed will, he could find no reason why Engela
was disinherited.


 


[48]       
In
cross-examination he denied seventh respondent’s story that he
(seventh respondent) was present when Garoeb was at the house, where
his wife was also present, when he met Garoeb.


 


[49]       
I
will later refer back to and discuss in greater detail the meeting
between Frikkie, Wollie and the deceased. I shall do so when I come
to analyse Engela’s evidence, as I need to point out certain
implications arising from Gawie’s answers on the matter during
cross-examination.


 


[50]       
The
important and relevant points that emerged from Frikkie’s
evidence, when he was cross-examined, were the following:


 


1.   
He
denied that seventh respondent was present when he met Garoeb at his
house, i.e. after his motor vehicle was bumped from behind by the
deceased; he denied the claim by seventh respondent in his
evidence-in-chief, his evidence under cross-examination and in his
evidence in re-examination. On this, his evidence is supported by
Garoeb.


2.   
He
denied that seventh respondent was present at the scene where the
deceased was found by Mr Prinsloo, which scene he attended after a
phone call from Mr Prinsloo. Mr Prinsloo supports him in denying that
seventh respondent was present at that scene.


 


[51]       
In
regard to the disputed will, Frikkie was taken through its
provisions, the aim, apparently, being to show that the deceased
remembered all her sons. There was an erroneous suggestion that
clause 3 says ‘N$3 100 000 apart from a 8mm Mauser rifle was
bequeathed to Frikkie’.


 


I
do not know what submissions respondents’ counsel made
regarding this point as written submissions were made after trial and
they do not of course, form part of the record. The important point
to note is, however, that Engela, the eldest child and only daughter
is completely not provided for in this will, nullifying, it would
appear, the point respondents’ counsel was trying to make,
namely, that deceased was compos mentis at the stage she
executed the disputed will, because she remembered all her
children
. That in itself is a puzzle lacking any plausible
explanation in the evidence tendered on behalf of the respondents.


 


Mackenzie
Garoeb’s evidence


[52]       
Mr
Garoeb related how his car was bumped from behind by the deceased and
said he was surprised that the deceased ‘drove off’. He
followed her until she stopped and went into a house. When he came to
the doorway of the house, Gawie’s wife approached him asking if
she could help. He explained to her what happened adding: ‘and
to my disbelief the old lady was just sitting there as if nothing has
happened’.


 


Then
Frikkie was called and after Garoeb ‘also explained to him
about the incident’ they went to Frikkie’s workshop where
they made an agreement. He said the deceased had nobody else in her
car. He denied seventh respondent’s claim that he and the
deceased had protested against him being paid. He denied all that
seventh respondent would say about the accident. That incident
happened on 6 November 2000.


 


[53]       
At
the end of Garoeb’s testimony, Mr Schickerling was for some
reason allowed to put further questions to Frikkie who had already
been re-examined. The questions concerned the issue whether Frikkie
had in fact paid into Gawie’s account certain sums of money
(cheques) in connection with the trucking business that the two had
been involved in when Frikkie was still in South Africa. This went on
and on until the judge
a
quo

stopped it, remarking in the process in apparent frustration at all
this:


 


.
. . I am not going to allow any further documents that were not
discovered. . . . The case before me is a will, whether a will was
properly executed or not. Now we have gone off the rails often and I
know that a further discovery was made during the course of, of the,
this trial, apparently in respect of cheques which is apparently this
that is now before the witness. We cannot continue in this way. I
will not allow it in the future.’


 


Referring
to the documents (the cheques) on which the questions revolved, the
honourable judge a quo queried:


.
. . whether it has anything really to do with, with the case before
me is doubtful.’


 


Needless
to say that when Mr Schickerling pressed on with such questions the
judge a quo cut him short and excused the witness without
further a do, except indicating that appellants’ counsel could
cross-examine ‘this evidence’.


 


Peter
Johannes Prinsloo’s evidence


[54]       
Mr
Prinsloo testified that he had known the Vermeulen family for many
years having been born in Outjo and been to school with the Vermeulen
children; he knew the deceased. One afternoon approximately 17h00 on
his way from Otjiwarongo to Outjo he saw a vehicle standing alongside
the road and the deceased in this vehicle. He stopped at the vehicle
and asked if she had a problem. She said yes ‘the vehicle does
not want to move’. He went on to say:


 


I
could observe that Ms Vermeulen was confused and she was in tension.
She was moving up and down from the road to the field and up and down
to the road.’


 


He
told her not to move onto the road, he examined the vehicle and
observed that the car was wrongly fuelled. He observed that it was a
diesel vehicle filled with petrol. When he asked her where she filled
up in Otjiwarongo, she said she did not know where she filled it.
When he asked her again where she refuelled, she said ‘she only
knew that she filled up the vehicle but did not know where’.
When he advised that it was dangerous standing alongside the road,
seeing that she was very confused, the deceased responded by saying:


 


I
have my revolver here. I will shoot them to death. I am not afraid. I
am not afraid of them.’


 


He
then contacted her son Frikkie, and told him what the problem was and
his observation of the state of confusion the deceased was in. He
stayed with the deceased until Frikkie arrived.


 


[55]       
In
cross-examination he said he did not know how long the deceased had
been next to the road or if she recognised him. What he meant by ‘she
was anxious and confused’ was that:


 


She
was confused. She was like someone who is in shock and confused.’


 


Prinsloo
in his evidence-in-chief had said that Frikkie had initially said:


 


           
Call my
brother so he can come get her. He sent her to Otjiwarongo.’


 


But
he had insisted that Frikkie should come as he could not leave the
deceased alone along the road in those circumstances.


 


He
said where he found the deceased alongside the road ‘can be
three to five kilometres’ from Otjiwarongo on the road to Outjo
and Outjo is seventy kilometres and where she was ±sixty five
kilometres. He could not recall how the deceased was dressed when he
got to her. He said the incident had taken place a long time ago and
he could not recall the date.


He
could not tell if the incident was in May 1991 as counsel was
instructed to say. He insisted, however, that it could not be 1991,
whereupon cross-examining counsel said he confused the date and said
it was in May 2001, the witness said it must be closer to 2000. The
date of the incident remained unestablished even after the witness
was re-examined. But Frikkie, in cross-examination, said it was more
or less in November 2000 not in May 2001. I accept that this incident
occurred at least soon after the deceased executed the disputed will.


 


Kathleen
Vera Vermeulen’s evidence


[56]       
Kathleen
Vera Vermeulen is Frikkie’s ex-wife. Her evidence concerned the
incident on 6 November 2000 when the deceased bumped into the back of
Garoeb’s car. She said the deceased came to their house and
went inside and there was a man following her and she did not know
why. She looked up and saw Garoeb in the doorway and asked him what
the problem was. Garoeb told her what had happened. She went inside
and phoned Frikkie. Asked what the deceased had said about it, she
said deceased said nothing:


 


.
. . There was no reaction because when Mackenzie said she bumped into
his car I looked at her, because I want to see her reaction, but
there was no reaction at all, she did not say a word.’


 


She
said: ‘there was definitely nobody with her’ in response
to what seventh respondent claimed, namely that he was with the
deceased that day ‘at your house’ the same time. She also
denied seventh respondent’s claim that the deceased protested
against the fact that ‘your husband Frikkie wanted to pay Mr
Garoeb’. She said:


 


My
mother, mother-in-law’s reaction was, there was no reaction.
She did not say a word.’


 


There
was not any discussion about payment. Asked if she heard ‘anything
at the time from Gawie protesting’ she said:


 


           
No, he was
not there.’


 


This
witness was not shaken under cross-examination but stuck to her
evidence denying -


 


1.   
that
the seventh respondent was with the deceased at her house when the
deceased came followed by Garoeb; and


2.   
that
there was any discussion about Frikkie wanting to pay Garoeb or any
protest against that from the deceased and/or the seventh respondent.


 


All
counsel for the respondents could do was to insinuate ‘and you
have much to gain from this case’? Which insinuation was not
persisted in when the court a quo asked ‘what does that
mean?’


 


[57]       
I
now turn to look at the evidence given by the two doctors called in
support of the case for the appellants. They are Dr Burger and Dr
Sieberhagen. Dr Burger was for many years the deceased’s
general medical practitioner. He on his own initiative based on his
observations of the deceased’s behaviour, referred the deceased
to Dr Sieberhagen on 14 November 2003. The referral note reads:


 


Dear
Dr Sieberhagen


 


Re:
Ms F C E Vermeulen – 65 years


 


This
lady is known to my practice for the last 20 years. Since ±4
years ago she started with symptoms which can implicate senile
dementia or Alzheimer’s disease.


Would
you please be so kind as to help us with an opinion and further
management please.


 


Regards’


 


On
20 November 2003, Dr Sieberhagen had a consultation with the deceased
who was accompanied by Ms Louisa Vermeulen. To assist him to make a
diagnosis, he had before him the referral letter of Dr Burger and the
information supplied by Louisa Vermeulen. He made his own observation
of the deceased and had the MRI scan taken of the deceased’s
brain. Following a further consultation with Louisa Vermeulen without
the deceased being present, on 25 November 2003, he then made a
report to Dr Burger that the deceased had Alzheimer’s disease
in the second stage.


 


[58]       
Dr
Sieberhagen is a duly qualified and registered psychiatrist with more
than 14 years’ experience in the diagnosis and treatment of
mental illness including Alzheimer’s disease. Dr Burger is a
duly qualified and registered general medical practitioner with more
than 30 years’ experience. In respect of both doctors notice
was given on 30 May 2011 and a summary of the expert evidence they
would give, in terms of rule 36(9)(
b)
of the High Court rules. No such summary was given in respect of
anyone in support of the case for the respondents. At a very late
stage in the proceedings, an application for a postponement was made
by counsel for the respondents with a view to remedy the omission.
The Court rejected that application.


 


Dr
Floris Gerhardus Burger’s evidence





[59]       
He
testified that the deceased was his patient since 1984. He knew her
personally, had visited the deceased and her late husband on the farm
a few occasions. She was quite a ‘regular patient suffering
from hypertension and a thyroid problem and then anxiety problems
also’. As to the ‘type of person’ she was he said:


 


.
. . she was a very neat person and very clean in appearance. She was
of slender built, she was very intelligent, she was a very
hardworking woman. Her general appearance was very, very neat and she
liked to wear red clothes. . . . A nice woman to talk to and it was
nice to have her as a patient.’


 


As
to her ‘medical history’, he said:


 


She
was known to suffer from hypertension which she had treatment for and
a thyroid problem which she also took treatment for. And she had
problems with slight depression and anxiety and sleep disturbances.
That was the three main diseases that she was treated for.’


 


 


Asked
whether at any stage he noticed any difference in her appearance, he
said:


 


During
June 1993 I noted in my clinical notes that she had a severe anxiety
with loss of concentration, the reason why I noted it, it was more
than we were used to. Since then in 1994 during a consultation
I
noted that the anxiety had started in April 1994. I noted that that
the (anxiety) had started to affect her general appearance and she
had started to neglect her usual spotless makeup. And I noted that
her clothes were not as crisp and clean as before.

(My
emphasis.)


 


He
said that the next visit he noted was 15 October 1998 when:


 


I
treated her for a bleeding in the muscle of her left upper thigh and
during examination I noted that she was wearing four panties, which
was something that stood out because it did not happen before.’


 


He
said he noted it in his clinical notes and had asked her about it and
she could not explain the phenomenon. He continued:


 


Due
to the fact that it is something strange for a person to wear four
panties, I would have definitely have noticed it. And I cannot recall
at any time during examining her that she wore more than one panty.’


 


He
specifically asked her why she was doing that but she could not
explain this situation. Besides knowing her at a doctor-patient
level, he had visited the deceased on the farm on three to four
occasions while her husband was still alive. The very first visit at
the farm was in 1985, both of them were financially strong and he
noted their hobby and love for the Brahman cattle. They had showed
him the registration cards of the Brahman cattle, he had heard later
that she had sold all the cattle and that sheep had been bought
instead. This was the talk of Outjo, a very small town. He saw her
again on 26 February 2001 for a rib injury on the right side of her
chest and a bruise on the right side of her face. He said:


 


I
did make a note that she told me that as if I should have known about
the injury because she had visited the hospital two weeks prior to my
consultation. And this is definitely not true.’


 


On
7 October 2003 he saw the deceased again, made a preliminary
diagnosis of Alzheimer’s disease and started her on treatment
for that.  He then referred her to Dr Sieberhagen for a
consultation. His reference letter was produced and quoted above as
exhibit ‘A’.


 


[60]       
In
cross-examination he was referred to his medical report and his
cards, and questioned as follows: ‘. . . there is nothing in
your patient’s cards that refers to severe anxiety, what is
solitron?’ He replied: ‘Solitron is an insulatic
treatment, medication for anxiety and also for mild depression’.


 


When
it was said 50 mg was a mild dosage, suggesting he did not treat her
for severe anxiety, he replied:


 


May
I just make a note that she was at that time already on tryptinol,
25mg 3 x day. This was in addition to the previous treatment.’


 


Asked
if he discussed the problem with the deceased, the doctor replied:


 


If
you go through the notes she was treated with this trepiline or
tryptanol for a very long time and this is why she was, in my notes I
told the Court that she was treated  for anxiety. The reason why
the solitron was added is the fact that she was more anxious and had
more sleep problems and more a concentration loss than before. That
is the reason why I stated that in my opinion that she was more
anxious than before.’


 


When
counsel suggested that because it did not appear in his card ‘that
he, as testified, treated her for severe anxiety’, the doctor
begged to differ and said:


 


.
. . In my opinion the person took two kinds of medication for severe
anxiety. So in my opinion it was severe anxiety.’


 


[61]       
The
evidence shows that counsel did not succeed in denting the doctor’s
evidence, but again resorted to insinuations, suggesting, it would
appear, that the doctor was testifying as he did because he knew
Frikkie, that it would be alleged that he regularly serviced his
vehicles. The doctor readily admitted that Frikkie was his patient,
that he knew the whole family, but denied that Frikkie regularly
serviced his vehicles. Wollie, who was said would testify to the
above effect, gave no such evidence.


 


[62]       
In
the course of further cross-examination, it was put to Dr Burger that
the incident where the deceased wore four panties was on 26 September
2003 ‘when Louisa brought the deceased to his surgery, because
the family by that time had become concerned about her mental state’.


 


After
a series of questions on whether the doctor had said he could not
recall the date 26 September, Dr Burger had eventually said he could
not dispute this, meaning the date he observed that the deceased wore
four panties, counsel tried to interpret this as a concession, but Mr
Dicks, counsel who represented the appellants and the judge a quo
corrected him. In re-examination the doctor still disputed that the
incident took place on 26 September 2003.


 


[63]       
The
doctor was referred to his affidavit deposed to on 21 January 2004 in
support of the application for the appointment of a curator
ad
litem,

where he confirmed that ‘since ± four years ago the
patient started with symptoms which can implicate senile dementia’
and counsel said this was contrary to his evidence relating to stress
as early as 1993 and 1994 and that he said these were symptoms of
Alzheimer’s. That the statement was out of context was pointed
out by the doctor, by Mr Dicks as well as by the Court; the doctor
clarified as follows:


 


In
the first place My Lord, this affidavit was signed by me on 21
January 2004 but the referral letter was written by me on 14 November
2003.’


 


Then
Mr Schickerling changed the subject and turned to ask about the
accident that the witness had referred to earlier. The questions were
on whether the doctor knew when that accident occurred and whether he
knew what happened during the accident. In the end, counsel asked
questions on matters the doctor could not be expected to know. When
counsel eventually put to the doctor that ‘what we have on your
evidence is two isolated incidents where she exhibited some anxiety’
the doctor significantly commented:


 


.
. . you must remember that a doctor has a patient and a relation with
the patient and if he knew the patient for about 20 years then it is
very easy in retrospect to see things that whilst he was examining
the patient at that stage it did not make any sense. But we do have a
collection
(sic)
of our patients and we do know the first impression of our patients
and the later impressions. So although it may seem like two incidents
nobody can take away my recollection of the patient and my knowledge
of the patient since I saw her first and until she died.’


 


[64]       
The
following two questions by counsel appear to confirm that in June
1993 and in the middle of 1994 the deceased had cause to be stressed,
giving the alleged causes of the stresses. The doctor said as to the
alleged causes of the anxiety:


 


Of
course it might have caused anxiety, but she was an anxious woman
since I have seen her from the start. It could contribute but there
were periods before that that there were not external factors that
were mentioned here that would make me prescribe her some medication
for anxiety and depression. So I cannot dispute but there is also the
opposite of this coin.


 


Remember
Engela testified, that when she visited the farm 2000 she talked to
the deceased and the deceased did not bother about her financial
problems. This was to deny that ‘your mother’s financial
dire straits dictated her mood at the time’ (that is deceased
changed her welcoming mood.) This is what counsel representing
respondents had to put to the witness when he cross-examined her.


 


[65]       
When
re-examined, the doctor clarified the incident on 15 October 1998 of
the deceased wearing four panties, the date of which was apparently
to be contradicted by Louisa Vermeulen who would say that the
incident was on 26 September 2003 by saying:


 


If
this is true I did not note it at that stage because I did not make
as that she had been wearing four panties to contain her diarrhoea.’


 


Note
that on 26 September 2003 the deceased was treated for intra
enteritis and the doctor had then first said in effect what he said
above. He specifically said he did not recall the incident alleged by
Louisa to have been on 26 September 2003 and that was why he could
not dispute that date. Also note Dr Burger had informed Dr
Sieberhagen that on 26 February 2001 the deceased had been involved
in an accident and he had treated her for the injuries sustained as a
result; that car accident had generated concern that she was not fit
to drive anymore. When challenged that his evidence was hearsay he
said:


 


This
is of course not noted in my clinical notes, but this, because Outjo
is a very small town.’


 


Dr
Reinhardt Sieberhagen’s evidence





[66]       
Before
delving into Dr Sieberhagen’s evidence let me advert to the
application for the appointment of a curator
ad
litem
which
issue was introduced by the respondents in the proceedings before the
High Court. Firstly, it will be noted that the judge
a
quo

dealt with this application in
extenso
and sounds very critical of the appellants, pointing out, in
particular, that the application was not served on the other members
of the Vermeulen family, more specifically on Gawie, and that no
specific dates were mentioned in relation to the allegation made
therein against him or the events that gave rise to the application.


 


[67]       
A
few points must, however, be noted in this connection. Firstly, the
application was brought by the eldest children of the deceased.
Secondly, the main concern in the application is the conduct of Gawie
vis-à-vis the deceased. Thirdly, Ms Vivier made her report as
curator
ad
litem

after which on 19 April 2003 a court order declared the deceased
‘incapable of managing her own affairs’. Before making
her recommendation that a
curator
bonis

be appointed because ‘Ms Fransina Catherine Elizabeth is
incapable of managing her own affairs,’ Ms Vivier had
consultations with, among others, the deceased and Gawie. She said in
para 11 of her report:


 


During
the first half hour of our consultation I did not detect any problem
with the patient’s memory and the manner in which she related
events to me. We had a relaxed consultation. She was forthcoming with
information about her background and could give me
detailed
information about her children and grandchildren. As our consultation
progressed, I gained the distinct impression that the patient is
hiding her inability to give detailed information to me about her
assets and financial position
.
She frequently told me that she cannot give me the requested
information and will have to look at her tax records, animal
registers, bank statements and accounts, etc.,
when
such answers were not appropriate or when I expected no more than
approximate numbers/figures
.
As
our consultation progressed she frequently told me “
I
cannot say right now

. . .
it
is difficult to say”
,
even to the general questions.
It
was evident to me that her memory deteriorated as we consulted but
that she wished to hide this from me.

(This suspicion was subsequently confirmed by Dr Sieberhagen).’
(My emphasis.)


 


In
para 12 of her report Ms Vivier enumerated a number of matters
regarding deceased’s estate and financial affairs that the
deceased could not remember or had definite misconceptions about.


 


What
I have underlined in the above quotation and other passages hereunder
is very much in line with Dr Sieberhagen’s evidence and
opinions. In para 12.1 Ms Vivier reports the deceased as saying:


 


Her
other children are jealous of Gawie, whom she has favoured over the
years. She first came to Gawie’s assistance when he lost his
farm and divorced his wife. Gawie has the custody and control of four
minor children. She invited him to live on the farm Chaudamas. He
lives in a second house on the farm situated approximately a
kilometre away.’


 


[68]       
The
report makes it quite clear that on a number of crucial questions in
the consultation the deceased said ‘she would have to ask Gawie
about it’ or ‘she would take it up with Gawie’.
Lastly, in para 12.11 of her report Ms Vivier says:


 


The
patient was not aware that she still owed money to Agribank and
indicated that she would speak to Gawie to pay one half of the
Agribank debt. According to her the farm was fully paid and she owed
nothing to Agribank but she added that it was possible that she again
borrowed money from Agribank for the farming operations. She again
appeared only very mildly surprised when I told her that the debts
amounts to N$204,000.00. My impression was that Ms Vermeulen did not
understand these amounts were sizeable amounts. She appears to be
under the impression that the debts can be paid selling a few sheep.
She does not seem to understand that her 50 sheep at N$400,00 will
only fetch N$20,000.00.’


 


The
deceased, according to Ms Vivier, was aware of the application, so
was Gawie who claimed that when he tried to intervene Engela stopped
him. In para 2 of her report Ms Vivier said that she was in telephone
contact with Gawie on two occasions during her consultations, and
that Gawie told her that ‘these assets belong to him and that
his mother own nothing anymore and that he could not understand what
the current proceedings are about’. Engela’s evidence,
which was not denied by Gawie was that both the deceased and Gawie
had denied rumours about the existence of the disputed will.


[69]       
Dr
Sieberhagen testified that he examined the deceased on 20 November
2003. He had before him the referral letter (already quoted) from her
family physician Dr Burger. The other information he had was supplied
by the deceased’s daughter-in-law, Ms Louisa Vermeulen, who
accompanied her to the consultation namely:


 


(a) 
that
the family had become concerned about her mental health because of
changes in her behaviour;


(b) 
that
some of these concerns were indicative of behaviour changes which one
would not find with a person simply becoming forgetful because of the
normal aging process;


(c) 
that
some of the concerns were that she had become at times confused
during the evenings, she would fail to lock the doors of her house in
the night and that she would often not switch off the lights;


(d) 
that
they had noted that at times she would appear to be not clear in
terms of consciousness and that she seemed confused;


(e) 
that
she seemed to be clouded in terms of her consciousness or her
sensorium;


(f)  
the
way in which it was put was that she sometimes looked like somebody
who was a little bit drugged;


(g) 
her
daughter-in-law also mentioned that Ms Vermeulen had become
increasingly suspicious towards people and also towards family
members;


(h) 
that
her symptoms tended to be notably worse after sunset;


(i)   
that
Ms Vermeulen’s hygiene and self-care had deteriorated to the
extent that is was noticeable;


(j)   
that
she was known to be a person who was very particular in terms of her
grooming and dress and that this had changed.


 


Louisa
Vermeulen gave no dates when these observations were made, but it can
safely be assumed that these observations were not made only in 2003
but even before that year. In cross-examination Wollie said:


 


I
should say that just a few months before she was diagnosed by Doctor
Sieberhagen it is when these problems started when I also had a
problem with the prices.’


 


[70]       
Following
this information Dr Sieberhagen examined the deceased that day; he
established that there was a family history of Alzheimer’s
disease; deceased’s two brothers had suffered the same illness.
He did an orientation test which she failed, but he found that her
sensorium or consciousness was clear, ‘in terms of her
psychomotor activity, a little slow.’ He continued:


 


What
was immediately noticeable was that her self-care was not good. She
was a bit dishevelled in her appearance. And in her interaction with
myself, with introducing myself and making small talk my impression
was that she had loss of her social sensitivity. There was an element
of dis-inhibition in her conduct towards me. Also she was a little
petulant and defensive concerning the examination.’


 


[71]       
He
explained that dis-inhibition means ‘one’s ability to
contain behaviour that one would otherwise in a social setting not
display’. ‘It usually comes across in a situation like
this as a person being familiar towards the examiner which, to the
extent that it can be perceived as inappropriate’. He added:


 


Ms
Vermeulen acted towards me as if she had known me for a long time.
She was fairly familiar. In that setting it would have been
inappropriate.’


 


He
said the deceased ‘conceded forgetting small things like losing
her keys. But upon my questioning of her having problem with her
memory, she denied that, although she could not recall whether she
had breakfast that morning’. He said his ‘impression
during the consultation was that Ms Vermeulen, and this is fairly
normal, attempted to downplay her symptoms to a certain extent to
make a better clinical impression’. He concluded:


 


.
. . It was clear to me that her speech and her manner of interaction
with myself, disorientation in my office, forgetfulness in terms of
whether she had breakfast that morning or not, that she had loss of
brain function.’


 


[72]       
He
further testified that he discussed the above with Louisa Vermeulen
and to confirm a degenerative brain process a brain scan was done
which confirmed the diagnosis. He reported back to Dr Burger ‘that
Ms Vermeulen was suffering from dementia; most probably from the
Alzheimer type . . . her clinical features met the criteria for
making this diagnosis’. Asked what he could see from the MRI
scan, he said:


 


The
most apparent feature on the scan in terms of Alzheimer’s per
se is that the volume of the brain ventricles are notably larger than
they should be. Also the cortex is atrophied which is indicated by
the enlargement of the separate neural spaces, in particular the
frontal lobe areas and the temporal lobe areas they are notably
atrophied.’


 


Asked
what ‘atrophied’ meant, he continued:


 


Smaller
than they should be, My Lord. The atrophy of the cortex in the
frontal lobe areas and the temporal lobe areas specifically
meet
the requirements of making a diagnosis of Alzheimer’s disease
.
This also correlates with the clinical picture because they are
present with frontal lobe symptoms, which would include their ability
to reason,
to
think abstractly, to do executive planning and they also
,
like I said before,
tend
to lose their ability to inhibit their behaviour
.
The temporal lobe areas present the area of the brain which contains
memory and the ability to learn and store new material. That explains
these patients inability to retain material that they have recently
learnt or experienced.
This
is the reason why one would find that a patient would for instance
not be able to remember a recent incident or recent action
.’
(My underlining.)


 


His
diagnosis was that at that stage Ms Vermeulen suffered from
Alzheimer’s disease.


 


[73]       
In
explaining the Alzheimer’s disease and its diagnosis Dr
Sieberhagen made the following important points:


 



1.        
The only way in which one would be able ‘to without any
question
make the diagnosis of Alzheimer’s is if a specimen
of the brain be examined; the problem is, with a living patient
taking a brain specimen is not really possible.’


 



2.        
‘So the diagnosis of Alzheimer’s in the clinical setting
is always dependent upon the behaviour of the patient.
That puts one in a position where often when people start
realising that a person’s behaviour is consistently become
abnormal or reduced one finds that the illness has already progressed
to the point where treatment would have little effect
.’ (My
underlining.)


 


The
doctor also dealt with the difficulty of treating the deceased and
further remarked that ‘anxiety or mood symptoms can often be in
the early stages of the illness the only symptom’. He pointed
out what he saw on the MRI scan thus:


 


.
. . There are two things that are immediately noticeable and that is
the loss of cortical matter, in other words the cortical atrophy. On
the image marked in pink one can clearly see that the cortex of the
frontal lobe is much, much smaller and thinner than it would normally
be. Also on that same image one can see that the brain ventricles are
enlarged. On the image in the middle right here, the atrophy that one
can see is in the temporal lobe area and the temporal lobes are
notably smaller than they would normally be.’


 


Diagrams
of the brain depicting the above descriptions were produced as
exhibits ‘C’ – ‘F’. The doctor said
that the scan confirmed his earlier diagnosis.


 


[74]       
Dr
Sieberhagen was asked to say how Alzheimer’s disease
progressed, i.e. the stages of its development in a patient. He
prefaced his analysis of these stages as follows:


 


The
staging of Alzheimer disease is something that is of clinical
importance in terms of it giving one the ability to a certain extent.
Get an idea of where in the process of this illness a patient may be.
In order to determine the progress of a particular patient’s
illness one would want to make repeated examinations on a patient’s
ability that would enable one to at least to an extent determine the
rate of deterioration. The rate of deterioration in Alzheimer disease
is fairly stable but it differs from patient to patient which makes
it very difficult to predict how quickly a patient will deteriorate
until the time of his death. It can make it equally difficult to
determine for exactly how long a patient had been sick before the
diagnosis is made.’


 


He
said a number of researchers had developed instruments to standardise
the measurements of the loss of different functions if one accurately
wants to plot the illness one would need to employ a measuring
instrument of some sorts. ‘In clinical practice we do not
really do that because mostly it is not necessary . . . We do know
however that the cause of Alzheimer stretches over anything between 5
and 10 years. We also know that female patients who have a family
history of Alzheimer’s tend to deteriorate more quickly’
.
 (My emphasis.)


 


[75]       
Further
elaborating, he said:


 


The
process of Alzheimer disease then is from the outside inwards. So,
that
when
one looks at the clinically the progress of the illness
,
the first symptoms would be symptoms that represent our higher
functioning. In other words, our social interaction, our ability to
abstract thinking, our ability to appreciate the subtle nuances of
social interaction, our ability to plan and execute certain tasks.
Those are the first symptoms that one would notice changes in those
functions. As the illness progresses the symptoms that become
apparent would be more basic, for instance our ability to orient
ourselves in space or to orient ourselves in terms of time, or a
person. Little bit later in the progress of this illness, physical
symptoms will become apparent, namely the loss of continence for
instance, the loss or the ability to realise that we are hungry, or
thirsty.’


 


By
the words underlined it is clear the doctor meant to say either when
one looks clinically at the progress of the illness or when one looks
at the physical progress of the illness.


 


He
illustrated the three stages of the progress of the disease with a
diagram (produced as exhibit ‘F1’) which shows (in note
form):
I
Amnesia
stage: dyscalculia; apraxia, II Confusion stage: aphasia
disorientation; time place, mental confusion abnormal behaviour
psychotic episode and III Dementia stage: Severe cognitive deficit
incontinentia, and explained’:


 


(a)      
If one looks at that diagram the first, or amnesic stage is the stage
where one notices patients starting to forget things. The second
stage is known as the confusion stage where people tend to become
disoriented in terms of time and place, where they can suffer from
episodes of mental confusion and abnormal behaviour. During this
stage of the illness patients can also suffer from psychotic
episodes, mood episodes and behaviour patterns which may constitute
psychiatric problems of its own. The third stage, the dementia stage
is when patients become incontinent, where they are severely impaired
in terms of their cognitive functioning. This is usually the stage
where one expects the patient to not live much longer than a year or
maybe two at the most.


 


(b)       
It is important to note that although this pattern is fairly stable
and consistent,
individual
patients can differ in terms of how long they can be in especially
the first stage, or the amnesic stage.

This is something that can be very difficult or virtually impossible
to predict, except if one had adequate information on a patient’s
behaviour and general functioning. Because of what the illness is,
one’s
ability to make an observation in terms of the stage of the illness
is very dependent upon the activity of the patient and often on the
daily activities of the patient
.
The term that we use
in
clinical practise is that term “activities of daily living

because these  are the
activities
that often are the only indication that there has been a change, or
that a patient is in a process of change, or that a patient’s
level of functioning is not the same as it was before
.
It is on these grounds that we
often
make some form of judgment in terms of a patient’s functional
ability.’

(My
emphasis.)


 


He
cautioned that in research just observing symptoms or actions like
this is not accurate enough but said, however, that:


 


We
know generally patients who suffer from Alzheimer’s disease
will be ill anything
between
five and ten years
.
The fact is that this is a degenerative illness that develops over
time.’ (My emphasis.)


 


[76]       
The
doctor explained in particular what happens to the brain in the
second stage of the illness where he said the damage can produce
symptoms that can be reversible, where a patient suffering from
confusion ‘can at times seem to be much more lucid’ and
said:


 


This
situation can carry on throughout the process of the illness where
one will observe episodes where a patient’s symptoms may seem
different from what they are from day to day or even from hour to
hour, where one would find a patient much more clear and lucid one
moment and the next moment much less so.
This
often results in a situation where family members would notice a
symptom, which will be followed by a lucid interval and then tell
themselves, “maybe she did not feel well” or “maybe
she is just getting old because yesterday she was confused but today
she is fine”.

That
is one of the reasons why it often takes very long before people are
sent for further investigation when they display symptoms like that.

. . . It
does
not detract from the fact that the patient is ill and suffers from a
degenerative illness. And it does not make a difference to the
patient’s functional ability, although it may seem so.

Now,
the symptoms that one sees in phase 2 of the illness would include
deterioration of cognitive ability, the patient’s ability to
plan and execute the tasks
,
language ability, insight and all factors that determine
the
patient’s ability to plan fairly complex tasks. Remembering
again that with a situation of a patient suffering from this illness,
very deeply ingrained skills or skills that have been acquired over a
very long period of time can be retained for very, very long
.
. . .Eventually those skills will also disappear.’
(Emphasis
supplied.)


 


He
gave several examples of retained skills that have been developed
before the illness that a patient can repeat although ‘. . .
that patient may already be quite ill at that time’. (My
underlining.)


 


[77]       
Dr
Sieberhagen said from the information provided by Louisa Vermeulen
and from his examination his impression was that the deceased at the
time was suffering from phase 2 of Alzheimer’s disease. He
remarked:


 


Often
when one looks in retrospect family members would say but it now
makes sense to them that even five or six or ten years ago they
became aware that the person’s character traits had become more
pronounced.’


 


This
finding was not disputed in any way. It is obvious that the
respondents had no way of casting doubt on it. It is also evident
that what Louisa Vermeulen described of the deceased’s conduct
(activities), and what Engela and Frikkie described in  their
affidavits in support of the application for the appointment of the
curator ad litem and even what Dr Burger noted in his clinical
notes fit into this scenario. In other words emphasis cannot be put
only on what respondents’ observed and reported. Questions put,
even by the judge a quo, as to the basis of the doctor’s
conclusion regarding his diagnosis, would seem to suggest the
opposite approach.


 


[78]       
It
was Dr Sieberhagen’s further evidence that a patient’s
affections or emotions can be affected very early on in the illness.
‘One might early on in the illness lose your ability to judge
whether this is a good business transaction or not’, he said.
He was asked at what stage the person’s capacity to appreciate
the nature and consequences of an action would be affected, for
instance the making of a will, he answered:


 


That
will be in phase 1, because as we have said phase 1 is the amnesic
phase. That is also the phase where a person’s social
interaction, inhibition and short term memory comes into play, and a
person
will
not be able to safely makes such decisions if he does not have the
ability to for instance remember certain things in sequence, which in
phase 1 already will not be there anymore
.’
(My
emphasis.)


 


[79]       
The
doctor also testified on what he described as dissimilation on the
part of a patient suffering from Alzheimer’s disease; and he
said the following:


 


Dissimilation
is a process where one attempts to project yourself as being better
than you actually are in terms of symptoms. But with Alzheimer’s
illness these patients do not do this as a process of factitiousness.
In other words, it is not something that is planned in order to make
them seem different from what they are. But because of their
experience of interaction with for instance the examiner, a patient
like Mrs Vermeulen for instance, she was an upstanding member of the
community. And she was very used to be approached in a certain manner
because of her standing in the community. And all of a sudden she
finds herself in a situation where she is approached fairly
critically in terms of her functioning and she is being asked
questions about “can you remember that you had breakfast”
for instance. That is a very different approach from what she has
been used to over the last sixty years. And it is a, I do not want to
call it a reflex but it is an automatic response that these people
attempt to hide some of the symptoms and to down play their
symptoms.’


 


[80]       
Next
the doctor was asked ‘in this context, these symptoms that you
have just explained to the court in all these phases, how easily do
lay people pick on that?’ and he answered:


 


Not
very easily because of, like I said it is now because of the
patient’s ability to go about his routine activities in the
same way that he did before. So, casual observation would probably
miss a lot of the obvious symptoms coupled with the tendency to
dissimilate these patients may seem to be much more normal than they
actually are.
So,
if a person does not pertinently look for symptoms the chances are
that you are going to miss them
.’
(My
underlining.)


 


In
answer to a question by the court, the doctor however said that the
problem is often brought to the attention of the psychiatrist by
family members and not by the family physician, because of the fact
that people who intimately know the patient or the person concerned
would be the first to notice changes in the activities.


 


[81]       
The
doctor testified about an occasion when he was consulted again by the
curator
ad
litem

and said that the question that time ‘was whether I would be
able to declare if transactions done by Ms Vermeulen prior to my
making the diagnosis, could have happened while she was already too
sick to act on her own in terms of business transactions’. This
of course is the critical issue in this matter, the issue that the
court
a
quo

was called upon to determine and this court must look at in the light
of the evidence as a whole.


 


In
answer to the above question and to a further question as to what
collateral or historical facts he had been provided with and which he
had taken into account to help him answer the question, he said the
information included:


 


1.   
What
Dr Burger had reported to him;


2.   
What
the patient’s daughter Engela and son Frikkie reported; and


3.   
The
report by the curator
ad
litem
.


He
took the report by the curator ad litem which he had gone
through because of the observation made during the curator’s
consultation with the deceased. The deceased seemed to be completely
compos mentis during the first half of the consultation
because there was nothing that indicated to the curator  that
there was anything wrong with her. The curator’s report was
handed in as exhibit ‘G’. The doctor analysed and
interpreted the report as follows:


 


The
curator describes the first half of her consultation with the patient
being fairly normal. After which she realised that the patient
started answering her questions with approximate answers. And she
also realised that at the time the patient was completely unaware of
her true financial status. She had the number of sheep for instance
that she had wrong. She overemphasised for instance her fuel
expenses. The notable symptom of that consultation is the repetitive
nature of a certain fixed response, which one can clearly see. If I
may refer to page 5 of that report, paragraph 12.7. The response was,
“It is difficult to say” and she repeatedly said that.
Also on the previous page, page 4 she says to the curator “I
cannot say right now it is difficult to say” and that is again
repeated on page 8, paragraph 12.23. That sort of response also
depicts a patient’s progressive poverty of speech where the
interaction becomes more and more concrete and where the response to
certain questions became shorter and shorter and more and more poor
in terms of content.’


 


He
was interrupted and referred to para 12.22 thereof where she
recorded: ‘she was not aware that portions of the farm had been
sold to a neighbour Mr Van Zyl.’ (The evidence going to be that
that contract was already signed in 2002.) ‘What would that
indicate to you?’ he was asked. He replied:


 


That
would indicate a loss of memory. . . .  and also this illness
often goes with confabulation. In other words, if I have a gap in my,
(memory) I will fill that with a confabulation. Her answer, that she
heard the rumour and that she does not know anything, is a typical
confabulation.’


He
said that kind of behaviour indicated stage 2. He clarified that what
the deceased said to the curator depicts a stage 2 dysfunction and
went on to say:


 


Information
from Dr Burger was that, as early as 1993 he had noted Ms Vermeulen
to be anxious and for which he had apparently treated her. The next
notable bit of information was in 1994 where he described her to be
not as well  groomed as he was used to seeing her, that she
seemed to not be able to groom herself on the usual standard. Then
there was mention in 1998 of Ms Vermeulen in terms of her dress where
she apparently had worn under garments in excess where it was noted
that she wore more than one under garment. . . .  In terms of
the pathology if that was the case at that time, it would depict that
a person is unaware that he had already put on a piece of clothing
and that unawareness is a formal memory loss.’


 


[82]       
It
would make this judgment unbearably too long to detail all the
references Dr Sieberhagen made in illustration of the progress of
Alzheimer’s disease. Suffice it to say he mentioned other
observations by Dr Burger of the changed or changing behaviour of the
deceased as well as other and similar changes observed by Engela and
Frikkie. In the course of all that he commented on two things he
described as ‘very important’, which I also think are
very important to always bear in mind. He said:


 


Firstly
that it can be very difficult to predict a patient’s progress
along this deteriorating course of illness. In the same vein, it can
be very difficult to associate a particular symptom to the illness.
What
in the end happens in the clinical terms is that because of the
knowledge that we have of the illness, we can state that in all
probability a patient would have had this illness during that time
.’
(Emphasis
added.)


 


From
what the doctor had said earlier for instances ‘if that was the
case at that time’ and repeated elsewhere, I think all that the
doctor was saying was that despite the advances in medical science,
the caution omnibus paribus (all things being equal) still
applied to this branch of science as well. At the end of his summary
of information made available to him the doctor concluded:


 


If
one considers that information, it paints a picture of a person who
is in the process of deteriorating ability to function on the same
level as she did before.’


 


The
Court asked if this (information) helped him ‘in forming an
opinion on her illness’, and he answered:


 


Yes
My Lord, if I look at the symptoms described during the course of
2000 it is fairly clear that Ms Vermeulen must have suffered from
significant symptoms of an illness already at the time. She seems to
have lost herself, to maintain her home and to maintain her vehicle.
Those would all place her in stage 2 of the illness as we have seen.’


 


He
said all that he had testified about now occurred in the dates
mentioned with end of 1999 to 2001. He also said in answer to a
question by Mr Dicks counsel for the appellants in the court below:


 


The
ability to conduct business depends on the cognitive ability to
consider different facts and to be able to make a decision based on
one’s knowledge and consideration of different facts.
I
really do not believe that Ms Vermeulen would have been able to do
that if she was at that time already unable to maintain self-care and
to maintain her person
.’
(My
emphasis.)


 


[83]       
Dr
Sieberhagen doubted that in August 2000 the deceased would have had
the testamentary capacity to execute the 18 August 2000 will and
further said:


 


.
. . if her illness was such that at that time she already displayed
her abnormalities in her activities of daily living what were
indicative of her ability to look after herself, being deteriorated
to a level that was notably poorer than before.
I
would be much surprised if she would have been able to conduct
business towards the second half of 2000
.’


 


The
doctor confirmed para 12 of the summary of his evidence, namely that,
based on the information he had received, the deceased had already
suffered from phase 2 for 5 years. He clarified to the trial judge:


 


If
we work on the assumption that these illnesses are known to last for
between eight to 10 years then we can assume that her having passed
away in 2007 that
she
most probably should have significant symptoms already in 1998, or
even earlier than that
.’
(My
emphasis.)


 


On
the basis of further information, other than the information he had
when he had a consultation with the curator ad litem he was
able to say:


 


.
. .  in probability this patient has been ill since I guess in
early 90’s or the mid 90’s. And that from that time until
her death there should have been a time when she
became
unable to conduct business, where her testamentary capability
disappeared

. . .
it
is diminished in phase 1 of the deceased already
.’
(My underlining.)


 


He
repeated that by the time he diagnosed the deceased she was in phase
2 for ‘approximately’ five years already. In regard to
the lucid intervals he talked about earlier he expanded:


 


What
I meant was that, a patient may have lucid intervals during which
they can appear to be completely normal or very close to normal. And
where people dealing with these patients has this lack of ability.
This does not mean that during lucid interval there is
disappearance
of the illness or the effects of the illness. The illness is a
constant
.’
(My
emphasis.)


 


Referred
to the observation (to be made) in evidence by Mr de Koning that at
the time she gave her instructions to him, the deceased ‘looked
fine to him’, the doctor said he did not know what Mr de Koning
meant, and went on to say:


 


If
a person is in regular contact with the patient, one has fairly
constant knowledge . . ., constant awareness and constant knowledge
of this person’s way of doing things. And as soon as things
change it becomes noticeable. When people who are not dealing with
the patient on a regular basis have a once off meeting it is not
impossible
for them to not realise that the patient is ill
.
In the same way that the
curator
mentions in her report that in the first half an hour or so of her
consultation with Ms Vermeulen she became convinced that there is
 nothing wrong with this patient.’
(My
emphasis.)


 


Short
of wanting the doctor to answer ‘yes’ or ‘no’
to the questions whether he could make a declaration that the
transactions done by the deceased prior to his diagnosis of her could
have happened while she was already too sick to act on her own in
terms of business transactions, what the doctor said above puts the
Court in a good position to decide that issue on the probabilities.


 


Interestingly
the respondents’ pleadings were brought to his attention, that
in 2003 the deceased still drove a motor vehicle, and in answer to
this he said:


 


.
. . the US had a President who had Alzheimer’s and he could
govern the country. Alzheimer’s disease does not disable one to
the extent that you cannot drive a motorcar because it is a routine
action that this person has done for many, many years. So, she does
not need much of an IQ to do that. So she could have been very ill
and still drive a car.’


 


The
evidence of Dr Sieberhagen under cross-examination


[84]       
The
cross-examination of Dr Sieberhagen was made somewhat complicated and
confusing by a number of factors – the tendency of counsel to
pose argumentative or speculative questions; the tendency of counsel
to put questions based on inaccurate facts, particularly dates; and
the tendency of counsel to put questions not based on a correct
understanding/appreciation of the witness’ evidence-in-chief
and the tendency of counsel to ask long and composite questions. I
will illustrate. By and large Dr Sieberhagen confirmed his
evidence-in-chief as to the progress and stages of Alzheimer’s
disease and its effects, and the information he received from Louisa
Vermeulen and Dr Burger before he made his diagnosis that the
deceased was in phase 2 of the illness (at the time she executed the
disputed will.)


 


[85]       
Counsel
for the respondents asked Dr Sieberhagen a series of questions which,
by and large, sought a clarification of the doctor’s
evidence-in-chief. Such questions concerned, for instance, the
various stages of the development of Alzheimer’s disease, how
it affected individual patients, the rate of development of the
disease and what happens in the various phases of the illness. He was
referred to his summary of evidence, where at para 4 thereof it says:


 


During
his examination of Mrs Vermeulen Dr Sieberhagen found that she
presented with
inter
alia

the following complaints, namely she experienced episodes of
disorientation, forgetting to close the doors of her home at night,
not switching off lights and intermittent inability to recognize
known surroundings. She became increasingly paranoid and suspicious
towards people and also family members. Her symptoms tended to be
worse after sunset in the evenings. Her personal hygiene and
self-care deteriorated significantly – she only bathed once a
week whereas she was always known to be very particular about her
appearance and used to dress meticulously.’


 


and
asked:


 


.
. .  would it be correct to recognise say that forgetfulness
would be one of the first signs that would present itself during the
first phase?’


 


The
doctor answered:


 


           
Yes, yes
Sir.’


 


The
doctor was further referred to exhibit ‘D’ and ‘E’;
(the former being a comparison of an atrophied and normal brain and
the latter being photographic images of that brain.) He was asked to
explain the terms used in exhibit ‘F1’ that is
‘figure 2, three stages in the clinical course of Alzheimer’s
dementia’. He then explained the term apraxia as follows:


 


It
is an inability to do or complete certain tasks that one would
normally expect a person to do. If one should consider the sequence
of dressing oneself, I think one would be able to consider that term
as descriptive, yes.’


 


Counsel’s
questions on this aspect of Dr Sieberhagen’s evidence appears
to be based on a misunderstanding of his evidence. It should also be
noted that earlier the doctor had testified that the first stage may
continue for quite a number of years before people start to pick up
on subtle symptoms and that there is no definite rate of decline for
the disease within the first period.


 


[86]       
As
regards the incident during which the deceased was wearing four
panties, firstly, counsel put it to the doctor that Louisa Vermeulen
would testify that it was not uncommon for the deceased to wear two
panties; secondly, it was argued that accepting that she had put on
four panties would that be consistent with apraxia. The doctor
answered:


 


I
would rather consider it to be a dysfunction of memory than apraxia.
. . . With regards to the panties, I would rather say it is a memory
dysfunction, in other words an inability to remember something that
she has already done.’


 


In
a roundabout manner the suggestion was made that since Gawie lived 15
km from the deceased and since Ms Louisa Vermeulen would claim to
have had close relationship with the deceased, those were the family
members who were concerned and who would have picked up those signs
which Louisa said caused concern. In response the doctor said, inter
alia
:


 


But
it is a bit of a double-edged sword in the sense because when one is
in constant contact with a person and changes happen slowly and
insidiously, the observer, so to speak, would also make that
adjustment to the change in behaviour and one could argue that one
can for the same reason miss certain signs because of the joint
routine of the family. If I may use a very simple example. If you
live with yourself day by day and find yourself having become much
more grey over the last five years, it is not an observation that one
makes day by day. It is an observation that is made after a period of
time. So, certainly people having intimate knowledge of a person
changing in terms of those signs and symptoms would be the first
people to notice. But the observation need not be, the observation
itself, need not be gradual but will become apparent over time also.’


 


He
was asked what he meant by his own finding (in para 6 of the report
or summary of evidence) and his evidence that the deceased’s
sensorium was clear i.e. there was no sign of clouding. He answered:


 


Clouding
of one’s consciousness is a very important clinical sign in my
job, because it is an indication of organisity, in other words, an
indication of organic pathology. If I may put it like this, if one
should combine disorientation which can happen with a clear
sensorium, if you combine that with clouding of one’s
consciousness then you get a situation called delirium  which
constitutes confusion and that is why one tends to particularly look
for that sign.’


 


Yes,
he agreed, that at that time there was no sign of any clouding. He,
however, testified that she did appear a bit dishevelled and had
notably lost her social sensitivity at the time.


 


Counsel
then said  that Louisa, Gawie, Wollie, seventh and eighth
respondents had noticed for the first time in 2003 signs of change in
the deceased’s behaviour when her grandchildren reported to
Wollie that their grandmother’s driving was no longer good.
Then came argumentative and speculative questions about the
deceased’s cause of death, followed by really inconsequential
questions about Dr Sieberhagen’s report on the deceased
including one on 19 January 2004 where he concluded that the deceased
was currently in phase 2 of Alzheimer’s illness and unable to
grasp the implications of financial decisions, followed by repetitive
questions, still, apparently, trying to prove that the deceased, as
late as mid-2003, could do certain routine things ergo, she
was compos mentis in August 2000.


 


[87]       
Again
referring to the incident when the deceased was found to have worn
four panties, counsel tried to say that Dr Burger conceded that it
happened on 26 September 2003 instead of 1998. The court
a
quo

interjected and said ‘definitely not’ counsel was not
deterred by this correction by the judge
a
quo

and went on in the same line of argumentative comments till the
doctor finally responded:


 


My
Lord, I would not be able to make such a statement because of the
fact that the illness can have symptoms for a long period of time. I
do not think that I would be able to answer that question properly.
Certainly if the first time that her driving had become noticeably
affected only in 2003, one would not expect to have had symptoms as
early as 1998 but that may still fit into the pattern of a person
suffering from Alzheimer’s illness. I would not be able to say
it would not be possible that she had symptoms some years earlier.’


 


The
court a quo rightly remarked that this was something that can
be argued on the evidence.


 


[88]       
Lastly
the entire respondents’ case was put to the doctor, including
what the lawyer De Koning would say, and he was asked:


 


With
that in mind, and we can accept that the court will upheld that
version, can you say that on 18 August 2000 the late Mrs Vermeulen
was not in a position to understand the execution, the terms of the
last will and testament and the agreement entered into by her?’


 


The
doctor answered:


 


My
position as a clinician is such that I can only work with the
information that I was given. If that is the case, if Mrs Vermeulen
was still capable of conducting business
in
that way,

then certainly one would not be able to argue that she was too sick,
but I have to,
I
have to remind the Court that a description of what you have given me
now does not . . .  It implied that the patient was able to
conduct her business but it does not give any information about her
ability, her ability to remember facts.

What I think you said to me was that she was able to make a decision
that she would not, she would not accept the business proposition.
And that she was adamant that there be certain conditions to this
transaction.
That
does not constitute, necessarily constitute normal brain function
.
So, my answer is
I
would need more information in terms of what transpired during that
interaction of the parties before I would be able to give an
opinion.’
(My
emphasis.)


 


What
transpired during that interaction include what Mr de Koning revealed
under cross-examination (see his evidence hereunder). The questions
under cross-examination thereafter in substance sought to show that
the deceased was still compos mentis in 2003. I do not think
they add anything significantly different to the questions before. So
I need not repeat them.


The
court a quo then asked:


 


Just
to ask this question in a different way. If you had the information
that was just put to you, would you have come to the same conclusion
as you did, as you have testified yesterday?’


 


 


He
answered:


 


If
that information was given to me previously, I would still have to
deal with the other information that I have
that
contradicts her ability at that stage and once again, I would not be
able to give a clear answer
.
To my mind the information and I, it certainly is not my place to
question the information. The fact is that
if
she was dysfunctional to the extent that somewhere in 2000 like we
saw yesterday
,
she was unable to bake a cake that she had done for so many years,
to
my mind that is a fairly serious sign of dysfunction
.
And I would not be able to explain that away in any other manner than
to, you know, want to know whether she was dysfunctional because of
the fact that she suffered from Alzheimer’s which we know was a
fact or whether it was some other problem at that time.’
(Emphasis
supplied.)


 


He
added that he would not be able to ignore that information and


 


If
it can be proven that that information is wrong, if we have to
discard that information then any deduction that I make would only
start obviously from a later date and that would then exclude the
date on which you said this transaction had taken place.’


 


Asked
if the court accepts that as the correct version i.e. the information
that had been given to him he could not say that on 18 August 2000
she was not in a position to have entered into the agreement or have
executed the will, Dr Sieberhagen answered in the affirmative.


 


[89]       
As
a final fling respondents’ counsel referred to the curator’s
report and put it to the doctor that during the first half of her
consultation with the deceased, the deceased, was relaxed and could
give detailed information about her children and grandchildren. He
then asked:


 


Now,
given the fact that this is in April, or this is after the
application on 26 April and between the time when Advocate Vivier
filed her report on 8 April 2004. So, it is obvious and you cannot
dispute that she is clearly capable of recalling all her children,
her grandchildren. That cannot be disputed.’


 


The
doctor answered:


 


No
Sir. But one has to remember that patients suffering from Alzheimer
they prefer to dwell on old information. In other words, long term
memory is what they have left and they tend to revert back to old
knowledge when they find it difficult to accommodate new knowledge.
So it would still fit in with that fact that she had this illness at
that time, that she would be able to describe her earlier in life in
very fine detail.’


 


The
court a quo finally asked if with all that he heard and what
had been put to him ‘can you say in your opinion, expert
opinion, she could not, on 18 August 2000 execute that will?’
His answer was:


 


My
Lord, if the information that  I had been given in terms of the
symptoms that were notable before, if we can accept that that was
indeed the case, I would be fairly confident in saying that she in
all probability had significant dysfunction at  that time. But
should the situation be that the symptoms mentioned during the later
parts of 1998 and 2000 be not true, then I would not be able to make
that statement, and that was the reason why in that curator’s
report it was reported that at that time I was not prepared to make
any statement like that.’


 


That
information, as respondents’ counsel immediately recalled was
about events in 1998, 1999 and 2000 as related by Dr Burger as well
as by the plaintiffs.


 


 


[90]       
Dr
Sieberhagen was refreshingly honest in his opinions. He gave his
evidence completely honestly in my opinion, and made concessions, in
particular when he was not in a position to give a definite answer or
opinion. In the light of this assessment I feel quite confident to
accept his opinions; he clearly explained the bases thereof. Later in
this judgment this court will have to determine the main and only
issue on probabilities and in my opinion, Dr Sieberhagen’s
evidence and opinions will be of great assistance in that regard. For
example, the missing facts he alluded to vis-à-vis the
transaction between De Koning and the deceased would, in my view
include the omission by the deceased to specify which grandson she
had in mind when she executed the disputed will seeing that she had
three grandsons with the same name, and the complete disinheritance
and no mention of her only daughter and eldest child, Engela, in that
will, whom she had generously provided for in the 1994 will and what
Mr de Koning mentioned under cross-examination. Dr Burger was equally
an honest witness who was not shaken in cross-examination.


 


Retrospective
diagnosis necessarily involved an examination of action by the
testator in immediate periods post facto,  i.e. actions showing
changes in testator’s behaviour that confirm that the
testator’s testamentary capacity had gone. The evidence shows
that Dr Sieberhagen conducted such an exercise. In this regard see
the English case In the Estate of George Douglas Key
[2010] EWHC 408 (Ch) at paras 84 – 92.


 


The
evidence on behalf of respondents


The
evidence of Kornelius Johannes de Koning


[91]       
He
was the first witness called to testify on behalf of the
respondents.  He testified that his client was Gawie; the
deceased was a client of the late Mr Dawids who, at the time of the
drafting of the 18 August will, was practising in partnership with
him and was mainly in charge of the firm’s office at Outjo
where he worked on Wednesdays and Fridays; he was also in the
Otjiwarongo office for three days a week. He did not know the
deceased on a personal level, but through Gawie who probably visited
his firm (at Otjiwarongo) once or twice a year. At the time of the
drafting of the 18 August 2000 will, Mr Dawids was still part of the
practice. He drafted deceased’s will the same day she came to
see him. He continued:


 


She
and Mr Vermeulen, Mr Gabriel Vermeulen, the first defendant, we took
the instructions and I drafted and completed the will and had it
signed on the same date. Just in illustration, the client drove from
the farm so obviously to save her the bother of driving back we tried
to accommodate the client by finishing the will on the date.’


 


He
said that Gawie was present during the consultation. The deceased
gave the instructions. Asked what happened then, he said:


 


Basically
what we did is I took the instructions from her, then I told the
client that we will draft the will.  I took the notes that I
made during the consultation, I took it next door to my deeds, my
typist.
We
basically sat down, I quickly dictated the will to her.  When
the will was finished, I returned and had the will explained to her
and she then signed the will
.
(My underlining.)


 


He
was asked if deceased waited for the will after he had taken
instructions and he answered:


 


I
am not quite sure.  I believe it, I believe that they may have
come back at a later stage, because we had, we needed time to
complete the will, or the two documents but I cannot recall’.


 


Asked
‘if we accept she later came back . . . what happened?’.
He answered:


 


What
I did was basically, I went through each and every clause of the will
with her, I explained the clauses, she was happy with the will and
she then indicated that she wanted to sign the will.’


 


[92]       
I
note the uncertainty of his answers. First he gives the impression
that preparing the will was a simple matter and the deceased waited
in his office while he went next door and dictated the will to his
typist. Then he doubts whether or not deceased waited or came back to
sign the will later. Next he talks of ‘the two documents’,
yet we know he had to prepare three. He came to mention the agreement
of sale that he also drafted that day much later when appellants’
allegation was put to him – that on 18 August 2000 deceased was
suffering from Alzheimer’s or dementia to the extent that she
was unable to understand the consequences of her action in executing
the will. He indeed, under cross-examination, stated that ‘the
will was fairly simple . . . it is a short will with not a lot of
bequests and as far as I am concerned a fairly simple will’.


 


The
uncertainty in his evidence also cropped up in regard to when he came
to know the deceased whom he initially said was unknown to him on a
personal level. He described the deceased in the familiar terms that
the children described her – as neat and well groomed.  He
testified that the deceased was lucid when he took instructions from
her and that she was specific as to what she wanted in the will, she
understood the will and he could not see any of the signs of dementia
or any other disease, conceding of course that he was not an expert
on medical matters.  He stated that both the deceased and Gawie
were present when they gave instructions about their respective
wills.  He, however, could not give definite answers on why
deceased came to him at Otjiwarongo whereas she and her husband had
been Mr Dawid’s clients for a very long time.  He could
only speculate which instructions were given first, i.e. whether for
the deceased’s will or for Gawie’s will or for the
agreement of sale of Chaudamus by the deceased to Gawie.


 


[93]       
In
cross-examination Mr de Koning was asked if the deceased had given
any other explanation regarding this will, her property and why she
was leaving it in this manner? He answered:


 


During
the course of the consultation it appeared, and I cannot say who
stated this or if it was Ms Vermeulen who stated it or Mr Vermeulen
who stated it, it appeared or I understood that Mr Frederik Antonie
Vermeulen had apparently either loaned an amount from her or received
an amount from her and he had not kept to a payment arrangement or
whatever the case may be and as a result thereof she had decided to
complete the will in this fashion, but I cannot recall who made the
statement, but that was the gist of the matter.  And that was
the reason why she had drafted the will as such nominating Mr Gabriel
Jacobus Vermeulen Senior as the heir of the estate.  I might
just add to this whenever I saw her Mr Vermeulen, Mr Gabriel
Vermeulen was always with her.  So he was always present with
her.  As far as I am concerned they had a very good
relationship.  I never saw Ms, well I cannot say that I ever saw
Mr Vermeulen alone, I think she always accompanied him and he was
always present with her.’ (sic)


 


The
question and answers continued as follows:


 


Mr
Dicks:                   
Yes and he was also present this day when this will . . . was
consulted on.


Mr
de Koning:            
Yes



Mr Dicks:                   
And you cannot remember whether it was him or her that said it. 
It could also have been Mr Gawie Vermeulen?


Mr
de Koning:            
It is possible


Mr
Dicks:                   
Yes


Mr
de Koning:            
I cannot say



Mr Dicks:                   
But about the statement that you just told us Mr De Koning, you have
no file notes.



Mr de Koning:            
None whatsoever.  This is a recollection from memory.’


 


[94]       
In
the course of further cross-examination, Mr de Koning made the
following startling statements about the deceased and Gawie:


 


She
was very specific that the other son, Mr Frikkie Vermeulen, should
not inherit in terms of the will.  So as far as that is
concerned she was very specific.  If I can explain that a little
further the reason for the deed of sale was also
they
wanted to make sure that if the deed of sale was completed that
Frikkie would not inherit the property and that was the reason why
the deed of sale was drawn up
’.
(My
emphasis.)


 


And,
later, in answering a question about the deed of sale and the 2000
will, he insisted that the deceased had a right to bequeath her
assets in terms of the will and stated further:


 


.
. . at the stage when this was executed I believe that she might have
had financial difficulty.  I recall that at some stage a client
had handed over an account to our office and a payment was made in
respect thereof.  So I assumed when this agreement was made that
the reason why the agreement was made was to either to refinance the
farm or to obtain funds in a different matter, in a different
manner.  That is the assumption that I made in respect thereof. 
The other thing which I clearly recall is that Mr Gawie Vermeulen
asked me when I executed this deed of sale,
he
questioned me, he asked whether I was certain that Frikkie would not
get the farm in respect of the will and the deed of sale and I
advised him that in terms of the will the farm is left to Mr Gawie
Vermeulen and the deed of sale obviously also gives him certain
rights as purchaser in respect of the farm
.’
(Emphasis
is mine.)


 


He
thereafter could not confirm or deny that the ‘sole purpose of
the visit’ to his office on 18 August 2000 was to ensure that
Frikkie does not inherit the farm firstly and secondly that Gawie 
inherits and obtains the farm. Further questions were put to Mr de
Koning on this issue by Mr Dicks, seeking concessions from him about
the motive of the visit on 18 August 2000.  These questions,
amounted, in my opinion, to flogging a dead horse. The passages which
I have just quoted above clearly show -


 



(a)      
That the consultations between Mr de Koning and the deceased, and
 Gawie were more detailed (in the sense that apparently more was
discussed) than Mr de Koning was prepared to say; they were
definitely not a matter of taking simple instructions about a simple
will as Mr de Koning wanted the Court to believe.



(b)      
That Gawie played such a role during the giving of the instructions
for deceased’s will as might have amounted to dictating what
the will should look like, otherwise why would he ask for assurances
from Mr de Koning that Frikkie was disinherited.  As is shown by
his inability to say the order (sequence) in which the instructions
for the three documents he drafted that day were given. Mr de Koning
was not prepared to reveal more of what transpired during those
consultations.


 


His
efforts to explain the rationale of the will is full of assumptions
and mere guessing.


 


[95]       
Earlier
in the cross-examination Mr de Koning had in fact conceded that Gawie
might have commented when the deceased gave her instructions. 
This was in answer to the question whether Gawie gave instructions in
regard to the deceased’s will? In light of De Koning’s
answers that I have quoted above this answer was obviously an
understatement, apparently designed to hide the full details of what
transpired during the relevant consultations. When the disputed will
was compared with the 1994 will and he was asked which grandson of
the deceased was meant and why Engela for instance was disinherited
in the disputed will, Mr de Koning had to admit that he had not been
given information about the three grandsons with the same names, nor
any information about the existence of Engela. He purported to
explain, for instance, that he had been given instructions that the
grandson meant was Gawie’s son. This is not reflected in the
will.


 


[96]       
I,
therefore come to the conclusion that Mr de Koning’s evidence
that the deceased was lucid and specific about her instructions
cannot be accepted on face value. It raises a lot of doubt about its
veracity, I say so for the following reasons -


 



(a)      
he confessed that he was not given instructions as to which of the
three grandsons of the deceased referred to in the disputed will;
both he and  Gawie could only at best speculate that Gawie’s
son was what she meant. The will does not say so;



(b)      
his evidence as to who gave the instructions regarding deceased’s
will can be interpreted at best to mean both deceased and Gawie gave
such instructions, that is, it appears more likely, if Gawie did not
play a dominant role in that regard;



(c)       
he did not remember who made the important statement about the
financial problems deceased had and the solutions thereof by the
agreement of sale;



d)        
of the curious questions he says Gawie addressed to him on that
occasion; and



e)        
his inability to say in what order the instructions to draw up the
three documents were given.


 


The
mention of Frikkie during the instruction of the deceased’s
will, and Gawie’s insistence that Frikkie should not inherit
Chaudamas should have alerted Mr de Koning to make some enquiring
regarding the deceased’s family. If he had done so, obviously
he would have been told of the deceased’s other children. As a
lawyer Mr de Koning knew the requirement that a testator had to
consider the equitable claim of those other family members, as the
authorities say.


 


The
second respondent, Wollie’s evidence


[97]       
 Wollie
testified that deceased’s 1994 will was drafted in accordance
with deceased’s late husbands will. He accompanied the deceased
to the bank where the will was drafted and there deceased who said
she trusted him and that he was honest asked him to inform the bank
manager ‘how the will should be drafted as your late father
explained to you how the will should look like’. The deceased
had then said ‘you are at least honest’ and that she
trusted him. He was taken through that will clause by clause to
confirm the bequests made therein.  He said after his father’s
death the livestock he left was sold.


 


[98]       
 Wollie
was next asked to comment on the evidence given by Dr Burger, Dr
Sieberhagen, and by Frikkie and Engela. On Dr Burger’s
testimony that he had noted in his clinical notes in 1993 that
deceased had severe anxiety with loss of concentration, he said ‘she
concentrated good enough on anything’ and later said ‘it
could have been that she had severe stress, because of financial
difficulties’. On Dr Burger’s evidence that in 1994 he
noted that the anxiety had started to affect deceased’s general
appearance; that she had started to neglect her usual spotless make
up; that her clothes were neglected, he said ‘that does not
exist’. He went on to say he recalled that deceased had started
neglecting her clothes ‘when she lived with my brother Gawie’
not before that (Gawie started living with deceased in 1994). He
added ‘she was not herself’.  Then there were some
questions about Dr Burger’s evidence that he knew deceased and
her late husband, he had visited them in 1995, that they had been
very good to their cattle, but deceased ‘had sold the stud’.
Wollie agreed that they had sold some cattle in 1995. Asked why they
had sold the cattle, he answered: ‘in all probability because
of the drought’ and also recalled the accident on 26 February
2001 that led to her being treated by Dr Burger for a rib injury and
bruising on the right side of her face. He confirmed the further
evidence by Dr Burger regarding the consultation with deceased on 7
October 2003 when the doctor made a preliminary diagnosis and
referred deceased to Dr Sieberhagen, and said that the consultation
was initiated because the children whom deceased used to take to
school had informed him that the deceased did not drive properly
anymore. He mentioned a quarrel he and the deceased had at that stage
when deceased had falsely claimed that she had won a good price for
sheep but later said that she made a mistake: He said:


 


It
was at that stage we decided that there is a big problem and we need
to make a decision.’


 


Prior
to that he had not observed ‘anything that was out of
character’ for his late mother, up to November 2003 there was
nothing that stood out in his observation of the deceased. He said
they could argue about anything, ‘but there was definitely
something wrong with her driving’.  She had good
communication with people.  As to the lack of inhibition noted
by Dr Sieberhagen his comment was:


 


It
is very possible – because she was a very outgoing person –
an extrovert’.


 


[99]       
In
cross-examination second respondent reaffirmed his evidence in chief
and confirmed what appellants said more or less. In brief he
described his parents as law abiding, fair, straight forward and God
fearing people. He described the deceased as a person who spoke her
mind and a person who would never lie, that she was a good farmer in
her own right and his late father’s right hand helper on the
farm. In short he repeated all her qualities and capabilities much in
the same way all the other children related ungrudgingly except for
Gawie.  He testified to the fairness of the parents in respect
of assisting each of their children to acquire farms and said Frikkie
was the only child who had not been assisted in that regard, it being
the father’s wish and the understanding of the whole family
including the deceased that Frikkie would inherit Chaudamas. Indeed
this wish and understanding was subsequently fulfilled in deceased’s
1994 will as well as in the joint will of the deceased and her
husband.


 


[100]    
 Wollie
admitted that deceased and Engela ‘were always extremely
close’.  He admitted that deceased had inherited ‘close
to six hundred head of cattle and two hundred and seventy small
stock’ and had continued farming after the father’s death
in 1992. He also admitted that by the year 2000 she had virtually
nothing left, and said Gawie had moved on to the farm Chaudamas in
September 1994 (together with his 4 children) and did not have a job
where he earned a salary. He did not admit, however, that deceased’s
financial position had deteriorated because of Gawie’s
presence, nor did he admit that Gawie’s presence had caused him
unhappiness, until the stage when he wanted Engela and Frikkie to buy
the farm.


 


[101]    
 Wollie
agreed that Frikkie had made the following suggestions to the
deceased:


 


(a)      
that he and Engela could pay off her debt;



(b)      
that her account must be closed because Gawie must not have signing
powers on it ;



(c)       
that they (Frikkie and Engela) must take all responsibilities of her
over on them;


(d)      
that the farm stays in her name;


(e)      
that she stays on the farm; and


(f)       
that Gawie must go and find himself a job for a change.


 


He
said deceased became very angry over the proposals. Explaining why
deceased would be angry with Frikkie, he said Frikkie had called
Gawie a crook and said he did not want him on the farm. Later he said
he himself was still satisfied that Gawie lived on the farm ‘because
he hunted day and night to pay all the debts and they went through
hell . . . he and my mother together sold the cattle.’ It was
possible that ‘most of that money went into his account’,
‘because they worked together and there was at some stage
Gawie’s son’s sheep was sold and they paid the money into
my mother’s account to cover her debts’. He said at the
time Gawie had the business at Khorixas. He confirmed that the 2000
will was executed a month or so after the meeting on the farm where
the deceased got angry.


 


[102]    
Wollie
gave some speculative explanation why deceased would prefer her
grandchild in the disputed will to her own children and agreed that
the will basically disinherits the other four children of the
deceased and that it was strange that Engela ‘is not even
mentioned’, that the disputed will was a radical departure from
what he understood his parent’s wishes were.


 


[103]    
 He
confessed his inability to remember dates. In this regard I find that
where he purports to dispute dates of events related by Engela for
instance, Engela’s evidence is more reliable than his. This
finding is fortified by the ability of Engela to link the events she
related to specific events like her wedding anniversary or the
millennium. I make the same finding with regard to events related by
Dr Burger, such as when he noted that deceased had started to neglect
grooming herself as previously. This finding is important because in
my assessment of the credibility of the witnesses for the
respondents, Wollie gives the impression of being the most credible
of all of them. But the problem with his evidence is that he tended
to tell long stories ‘which have nothing to do with what the
question was’, as the learned judge
a
quo

pointed out at a certain stage in the cross-examination of him by Mr
Dicks. He was also somewhat evasive and defensive in his answers when
counsel questioned him about deceased’s deteriorating driving
ability, about accidents deceased started having in 2000 whereas
before she was an excellent driver, whom he himself described as
‘better than a man’.


 


The
evidence of Louisa Jacoba Vermeulen


[104]    
Respondents’
witness Louisa Jacoba Vermeulen as mentioned already is the ex-wife
of Wollie. On 26 September 2003 she accompanied deceased to the
consultation with Dr Burger. Her description of what kind of person
deceased was before her illness is almost in every respect similar to
that of all of the deceased’s children, in particular, to that
given by Engela. I therefore need not repeat it here.


 


[105]    
Louisa
testified that she used to see deceased on Mondays and Fridays ‘and
in the week between’.  When she attended deceased’s
consultations with the doctor the deceased had intestine infection. 
She asked the doctor to investigate deceased
‘because
she is not normal, there are things that she is not doing in a normal
way or she is not herself
’.
In July that year the children had told her that deceased was not
driving well, something was not correct with her personality or her
character. She had told the doctor then and he asked her to bring the
deceased. It was then that the doctor noticed that deceased wore four
panties. She was asked about a visit by deceased to Engela in
November 1999, when according to Engela, her suitcase was chaotic,
and she said she would not know, she was not present. 
She
said deceased’s eating habits changed in July/August 2003. 
‘That’, she said, ‘was one of the reasons why I
told Burger that something is not okay with her, because she started
moving from one place to the other from point A to point B without
knowing she was doing that
’.
(My underlining.)


 


It
was in late 2003, ‘starting from 2004’ that she
experienced that deceased ‘started to present problems
communicating with people’. In January 2000 deceased’s
garden was still in good condition.  It was also at the end
of 2003 that one could observe that deceased was not herself, she was
not as neat as she was before. They observed that deceased’s
garden was neglected in 2002; during that time the deceased and Gawie
had financial and other constraints
. (Underlining for emphasis.)


 


[106]    
Louisa
said with hindsight the first time, deceased showed signs of
Alzheimer was in 2002 when she got lost while she and her were
visiting Engela, and Engela had to send people to look for her. 
She confirmed that deceased’s financial position was a struggle
in January 2000.  In brief counsel put to her all that Engela
said. While she in respect of these events gave different dates or
said she was not there, she, by and large, seemed to say the problems
with deceased started in 2003. I think if one had to accept the dates
she mentioned one has to do so bearing in mind Dr Sieberhagen’s
description of the stages of Alzheimer’s disease and its
effects at the various stages, and also his comment about why people
in close contact with the patient only realise late when they then
refer patients for further medical enquiry. Her comment on Engela’s
evidence that in 2001 deceased could not look after herself is quite
interesting and somewhat evasive.  Asked if she agreed with that
evidence she said:


 


No,
that was, it was not like that. I know, I know that when she went to
visit Engela, Engela took good care of her, she Engela took good care
of her mother, she could provide her food and shoe(s), clothes and
shoes. Ja and she also used to bath with Engela with a very nice warm
water and she washed her back and her feet as well.  That was to
show her love to her mum.’


 


Asked
when was the first time that deceased required assistance in bathing,
she answered:


 


During
late 2003 that was the last time that she was with her sister Engela
Maritz, she stayed for a week with her sister so she could help her
with her income tax returns and auntie Engela observed it and she
realized that and she discussed it with me.’


 


She
was not with deceased in October 1998 when Dr Burger observed that
deceased wore four panties.


 


[107]    
Under
cross-examination Louisa agreed that the fact that they only noticed
symptoms in 2002 and 2003 did not mean that is when deceased fell
ill. She admitted she could not deny that in 1998 deceased wore four
panties when she was examined by Dr Burger since she was not there,
although she said she did not believe it. She also admitted that
‘that would be totally out of character for her’. 
The time they went to Dr Sieberhagen what bothered her
(a)
was the children complaining about deceased’s driving; (b) the
fact that deceased regularly forgot that she had eaten and asking for
food again;

and (c)
the
fact that she did not do her tax returns anymore
,
‘small things like that,’ she said.  She admitted
that she was not there in July 2000 when Engela found jam and
condensed milk in deceased’s cupboard and that she too in
2003/2004
experienced
that deceased was hiding food

She knew about the accident in November 2000 when deceased did not
stop and said it was ‘not at all’ like her. I underlined
(a) to (c) to emphasise the several causes of the concern expressed
and the near similarity of this evidence to that of Engela.


 


Juanita
Amanda Vermeulen’s evidence


[108]    
Respondents’
witness Juanita Amanda Vermeulen is Gawie’s daughter. She
denied that on a visit to Dr Burger on 15 October 1998 deceased wore
four panties. She also denied that in January 2001 deceased’s
garden was very neglected and told a long story about hiking a lift
with some tourists that day who stopped to admire the garden and were
seen taking photographs of it.


 


In
cross-examination she said in 1998 she was eleven years old and in
2001 fourteen years. Initially she said she could not recall the
number of times she had been to Dr Burger. Asked what happened on the
visit to Dr Burger in 1995, at first she said:


 


.
. .  I feel that that is personal and I wish not to relate
that’.


 


Later
she said:


 


I
was there. Perhaps I was ill’.


 


Later
still she gave a reason why she was at Dr Burger, she also said:


 


.
. . but the reason why I can recall the date when my grandmother was
examined is because my grandmother was a pretty shy person and I was
not comfortable to witness my grandmother as a shy person being
examined.’


 


[109]    
To
be brief this witness was asked several questions to test her
veracity, and I would say her answers were not convincing. She could
not remember when it was that she visited Dr Burger again after the
15 October 1998 visit. She said that she was with the doctor again on
22 December 1999 ‘according to his patient’s sheets’,
and what she was treated for then.


 


She,
however, purported to remember how the deceased was dressed on that
occasion in 1998 when she was only seven years old and also how the
doctor proceeded with the examination including the setting in the
examination room.  Yet in her evidence in answer to a question
as to what happened that day she said:


 


If
I cannot recall precisely what happened that day how can I remember
how the consulting rooms looked (like) at that stage.’


 


I
accept Dr Burger’s evidence in preference to hers.


 


Gabriel
Jacobus Vermeulen’s evidence (6th respondent)


[110]    
Gabriel
Jacobus Vermeulen was in 1999 fifteen years old. He is the son of
Gawie. In a long-winded fashion he stated that the deceased taught
him many things and did many things for him. The deceased carried on
with ironing clothes for him and other children up to the end of
2003. He recalled the accident with Mr Garoeb on 6 November 2000. His
description how the accident happened was unnecessarily long. In
brief he claimed to have been with the deceased up to Frikkie’s
house where Garoeb caught up with them and when Frikkie came to the
house. He said when Frikkie came he told him what happened. That he
was at Frikkie’s house is denied by Frikkie, Garoeb and Louisa.
As to the day the deceased was found on the road by Mr Prinsloo he
claims to have been with the deceased at a garage in Otjiwarongo
where petrol was put in the diesel tank, but did not know the name of
the garage although he said it was near the school he used to attend.
Gabriel Jacobus Vermeulen commented on Engela’s evidence about
the deceased being restless but mentioned dates completely different.
Like the other respondents’ witnesses his evidence was that the
problems of deceased’s changed behaviour were first observed in
2003.


 


[111]    
In
cross-examination he said he could not agree that by the middle of
2003 deceased’s illness had already advanced. He admitted he
was not at Engela’s house in 2001, 2000 or in 1999, i.e. he was
not in a position to deny the incidents mentioned by her. He showed
himself at his worst as a witness, prevaricating about the petrol
into the diesel tank incident and about the incident when deceased
hit a donkey. As to the incident where deceased hit into the back of
Garoeb’s car he contradicted what was put to appellants’
witnesses. He said the witnesses Garoeb, Frikkie and Vera Vermeulen
(Frikkie’s former wife) were all lying when they testified that
he was not present at Frikkie’s house where Garoeb followed the
deceased after the accident on 6 November 2000. The credibility of
this witness is seriously dented first by his long winded and
sometimes irrelevant answers to questions, secondly by being
contradicted on some crucial points by other witnesses including
 Wollie and his ex-wife and thirdly by his prevarications on a
number of points.


 


Gabriel
Jacobus Vermeulen’s (Jnr) evidence


[112]    
Gabriel
Jacobus Vermeulen, the seventh respondent was 13 years in November
2000. He testified about the incident when deceased hit a donkey. He
also said the first time he realized that something was wrong with
deceased was in 2003, when deceased would be driving slower than
usual when she took them to school.  He is Wollie’s son.


 


The
first respondent’s (Gawie’s) evidence


[113]    
He
testified that before he moved to the farm Chaudamas he lived at
Onduri Farm. He related how he got Onduri from his brother-in-law,
Jan Oelofse, Engela’s first husband. He was referred to
deceased’s 1994 will and said in terms of clause 1(a) thereof
Frikkie would have inherited the farm Chaudamas. He also stated what
Engela would have inherited in terms of that will and who would have
inherited the rest of deceased’s property. He described the
position in terms of possessions of all his siblings and how he fell
into a financial crisis after he sold his cattle apparently to help
Frikkie in the trucking business that they jointly ran in
Johannesburg before the death of their father in 1992. He sold Onduri
and moved to Chaudamas farm in 1994. At Chaudamas he did various
things in connection with the running and maintaining of the farm
including hunting for the deceased to get some income. He lived in
the old house at Chaudamas together with his four children for whom
deceased did everything including cooking, attending to their
clothing and taking them to and from school till late 2003.


 


[114]    
 Gawie
talked about the deceased’s upkeep etc. and said it was in 2004
when she returned from Engela that deceased’s ‘dressing
and things were not proper anymore’. As to Engela’s
evidence that in 1999 deceased got into a bath and got out without
bathing herself, he commented:


 


           
. . . that
is the biggest nonsense’.


 


He
said he realised for the first time in the middle of 2003 that
something was wrong with the deceased, ‘when she had forgotten
to pour water into the batteries’ and the children complained
about her driving. In 2004 he noticed that there was ‘a slight
descent in her communication’. In 2001 deceased’s garden
was still beautiful and deceased ‘did not have a problem at
that time’. Asked about Engela’s evidence about
deceased’s dirty chamber pot under the bed, he answered:


 


           
That is the
biggest lie’.


 


Asked
why he said so he went on:


 


That
incident occurred in 2003 December.  That was after I telephoned
Engela and informed her that she may come and fetch my late mother to
go and live with her while she was still okay.’


 


Asked
if it was after Dr Sieberhagen’s diagnosis of deceased he
replied:


 


That
was after the diagnosis, and when Engela came to fetch her I was
together to assist packing her things. And then we then saw that the
maid had not taken out or removed the pot in the morning.’


 


This
evidence was never put to Engela to comment on when she was cross-
examined by counsel for the respondents who was at every turn very
astute to indicate what respondents’ witnesses would say
against what appellants’ witnesses said they had observed about
deceased’s changed or changing behaviour.


 


He
was asked what happened in July 2000, he answered:


 


In
July 2000 a purchase cheque of my mother bounced, and then next I
heard Frikkie and Engela will then buy the farm and that they would
take over the debt, however the land would still be in my mother’s
name’.


 


[115]    
 Gawie
confirmed the arrangements regarding his siblings and him taking out
insurance policies on deceased’s life and said the purpose was
to enable them to ‘buy cattle and animals’. He said ‘I
took my share and offered, I gave it up as security to the bank.
Engela and Frikkie then stopped paying. They stopped paying in 2001’.
In July 2001 the financial position of deceased was ‘in
detriment,’ he said, ‘her cheques bounced’.


 


[116]    
 Gawie
gave a completely different version of events preceding the stage
where deceased got angry and chased Frikkie and Wollie out of her
house. His version was that after the meeting between the deceased
and his two brothers he went to the deceased who was then very upset:


 


And
I did not want further problems between herself and Engela.  And
I suggested to Engela that she can buy a piece of land. She did not
have cash to pay the entire camp and so she asked my mother whether
she could pay it off and they agreed that the amount she can then pay
off would be three thousand five hundred (N$3500) per month.’


 


No
further questions were put to him to clarify, for example when or
where Engela and deceased agreed the price to be paid or what
problems existed between Engela and the deceased.


 


[117]    
 Gawie
was asked ‘how it came about that your late mother at the time
executed this last will and testament.’ He answered:


 


She
and Frikkie experienced problems.  She also had financial
problems.  She informed me that she must go and have a testament
drawn and also advised me to have one drawn for myself, because at
that stage mine was still on my ex-wife.’


 


He
said he was present at the consultations when deceased gave her
instructions and he also gave instructions for his own will. After
the draft they were asked to come back in the afternoon to sign the
wills. He was asked which Gabriel Jacobus Vermeulen was to inherit
the 30.06 rifle and he said ‘my son Gawie Vermeulen’ and
that the deceased had said ‘Klein Gawie’ and that the
other grandsons are called Gabes and Abri. He went on to say that
deceased ‘was as always neat and tidy, full of jokes and in
full consciousness . . . full state of mind and very specific’. 
He said that when he and the deceased returned to sign the will, Mr
de Koning:


 


.
. . browsed the documents and read it and asked whether we are all
satisfied with it, both hers and mine’.


 


 Gawie
was asked if he had had a discussion with Frikkie about the meeting
whereafter deceased ‘had chased Frikkie and Wollie out of the
house’, he answered:


 


Frikkie
came to the old house and he said to me, you must just make your
calculations, because you must sell the farm.  Just count on
your calculator.  That is what he said to me.’


 


[118]    
He
was referred to the agreement of sale drawn on 8 August 2000 and
asked who had given the instructions for it to be drafted. He said
deceased had given the instructions and that he also had ‘an
input in it’. Still with reference to the agreement (clause
1.1) he said the purchase price of N$380 000 ‘is the debt of
Agribank’ and that where the agreement says ‘payable by
purchaser to the seller by taking over the existing liabilities on
the property at Agribank and First National Bank’, what was
meant was that he could only take possession of the farm once the
debt was paid off. He amplified:


 


It
remains my mother’s possession up until I have then paid the
debt, she will remain the owner of everything.’


 


In
answer to a question by counsel he said if deceased had passed away
before he paid, ‘I would have taken over ownership of the
farm’, i.e. inherited the farm. I pause to highlight some
factors that should be noted at this stage:


 


(a) 
It
is common cause that deceased was in financial difficulties in 2000,
even earlier; the evidence on this by both parties is very clear (see
also De Koning’s evidence);


(b) 
 Gawie
claimed, according to his own evidence, that he was trying to help
deceased out of this chaotic financial situation;


(c) 
Both
Engela and Frikkie as well as Wollie were trying to extricate
deceased from this situation;


(d) 
To
the extent that one might say deceased was really involved in the
agreement of sale, the whole arrangement smacks of a conspiracy
between her and  Gawie to disinherit  Frikkie who, by all
accounts, was to inherit the farm;


(e) 
Deceased
also inherited the farm from her husband whose wishes were well known
to her that Frikkie should inherit the farm;


(f)  
The
deceased in acting the way she did was either being dishonest or had
lost her memory;


(g) 
She
completely forgets her only daughter and eldest child, Engela, whose
only blame was to want to help her out of her chaotic financial
situation; what deceased did was contrary to her reputation as a
straight forward and God fearing person; and


(h) 
She
angrily rejected the proposal by Wollie that would have solved her
financial problems, and instead tried to solve those problems by
selling the farm to Gawie, knowing very well, or completely unaware,
that Gawie was not in a position to perform the agreement of sale of
the farm. Yet at the stage he was consulted by the curator
ad
litem

he claimed that deceased no longer owned the farm.


 


All
these factors speak of deceased not acting according to character or
as she had acted in 1994. In acting the way deceased did, as outlined
above, to repeat, she was either dishonest or it was because she had
lost her memory or cognitive function. The fact that she denied the
rumours that she had made a new will makes her loss of memory or
cognitive function the more plausible inference.


 


[119]    
Gawie
was referred to amounts paid by Engela, which Engela had testified
were meant to help the deceased and which she said she stopped paying
when they discovered what Gawie had done. His explanation of those
payments was that they were ‘for the farm that she purchased’.
There is no evidence that Engela purchased the farm either as
proposed by Wollie or as claimed by Gawie.  He did not pay the
purchase price in terms of the sale agreement.  Gawie was also
taken through documents including cheques signed by deceased from
1996 or so, to refute the import of Engela’s evidence that
deceased made spelling mistakes and also to refute Engela’s
evidence that deceased was unable at some relevant stage to do her
own tax returns and that this was done by deceased’s sister,
Engela Maritz. In answer to the last mentioned, Gawie denied that
evidence and said:


 


However
once she (deceased) has completed it then Engela would then you know
transfer that onto her computer, I do not know whether it is for
security reasons to be kept saved or whatever.’


 


He
was asked about the agreement signed on 9 December 2000 between
deceased and Mr Kornelius Van Wyk, how it came about deceased entered
into that agreement, and he said:


 


The
financial difficulties were tremendous at that stage; she had no
other option but to sell.’


 


[120]    
Some
further cheques were presented to refute the appellants’
evidence that at some stage deceased could not do anything for
herself. The cheques were dated 7 May 2001, 17 May 2003 etc. He said
deceased wrote the cheques.  The questions on these were more
correctly to refute what was stated by the appellants in the
affidavit in support of the application for the appointment of the
curator
ad
litem

He was finally taken through appellants’ evidence and his stock
response was either ‘highly improbable’, ‘it is
impossible’, ‘it is all nonsense’, or ‘that
is non-existent’, ‘a bundle of nonsense’, and on
evidence of self-neglect by the deceased he insisted that deceased
was very neat at the relevant stages.


 


[121]    
Gawie
was the only family witness who would not admit that deceased and her
husband were fair to all their children. Even on the issue whether
the parents were consistently fair as far as giving their children
animals; he said ‘I cannot remember’. His admission in
this regard was to the statement that deceased was referred to as the
Iron Lady of Outjo. According to him she ‘was a straight
forward strong woman’. He, however, admitted to the statement
in the joint will of deceased and her husband which in clause 3
provides that in the event that the parents should die simultaneously
‘all the children would inherit equally’. His admission
as to the fairness of his parents wherever made was grudgingly made
even in regard to his, being assisted by his father to buy Onduri
farm ‘in the mid 80’s or 1986’. But he admitted
that it was his father’s wishes ‘that Frikkie should one
day inherit Chaudamas after he, Wollie and Engela had been assisted.
He also admitted that clause 1(a) of deceased’s 1994 will
(whereby Frikkie was to inherit Chaudamas), was according to his
father’s wishes.


 


[122]    
Significantly
Gawie admitted that by the time the 1994 will was drafted he ‘had
already sold Onduri,’ he ‘had already moved back to
Chaudamas and the trucking business in which he and Frikkie were
involved had already been disposed of’. Onduri was sold in
August 1994. He admitted he sold Onduri because he was ‘in
financial dire straits’. He said when he settled at Chaudamas
he had livestock at the farm.  He was also grudging about the
deceased being an experienced farmer, his father’s right hand,
referring to her ungratefully as follows:


 


.
. . there is a difference between farming yourself and being there
and watching how others farm.  One can compare it to a truck
driver, the one seated next to him only goes along with the driver,
however he is acquainted with changing of flat tyres.’


 


When
reminded of all his siblings’ views about the deceased, he
insisted he knew better. He said deceased’s financial position
went downhill long before he moved on to the farm Chaudamas. His
disparaging remarks about deceased continued when he related how she
supported him and his children:


 


Yes
my Lord, yes, we both supported each other.  I worked for my
mother and she, loved her grandchildren a lot.  She took care of
them, paid their school fees, took care of the meals and all of that,
and she took very good care of them.  She loved her
grandchildren.  And so I hunted for her and I made income for
her through that.  With the farming and the cattle, my mother
was allergic to the sun and she could not stand in the sun for long
or in the kraals.’


 


Later
he claimed:


 


           
I brought
more in for her than what she gave out to me’.


 


All
these claims despite admitting that after he had been at Chaudamas
for six years deceased had no livestock left, whereas when her
husband’s estate had been finalised in 1993 the deceased
‘started with five hundred and ninety two (592) cattle and two
hundred and seventy (270) small stock’ and also despite
admitting, grudgingly, that deceased had paid his ‘part of this
policy that we have been hearing about in this matter.’ He said
he was aware that on a number of occasions Wollie asked Frikkie and
Engela whether they would not buy Chaudamas as he was afraid deceased
‘would lose the farm’. He deviously admitted that he was
not asked to buy the farm because he was not in the financial
position to do so. He said:


 


           
Wollie did
not approach me first my Lord that is correct’.


 


He
admitted he was not at the meeting with the deceased nor was Engela
present in June/July 2000. What he said in his evidence-in-chief was
not put to Frikkie to deny, namely that Frikkie had come to his house
after that meeting and told him to make his calculations.  He
said:


 


They
were there with Wollie or his car, I cannot remember whose vehicle;
but they passed by my house and as they drove by he said that, he
yelled that out from the car’s window’.


 


Asked
if he was saying Wollie was there too, and he would have heard that,
he answered, contradicting what he had just said:


 


           
I cannot
remember if Wollie was there also’.


 


The
questions and answers continued as follows:


 


Mr
Dicks:                   
Because Wollie did not mention anything about this either.  Can
you explain that? - - -



First respondent:        
I do not know whether he was asked, whether it was put to him.


 



Mr Dicks:                   
It was not, because we heard about it for the first time when you
testified. You see Mr Vermeulen there was no reason for your mother
to be angry with Frikkie and I will put it to you why I say so. - - -


           
First
respondent:         I am
listening.


 



Mr Dicks:                   
He did not suggest that your mother sells her farm.  That was
Wollie’s suggestion.


           
First
respondent:         But he
wanted to buy the farm.


 



Mr Dicks:                   
Those were not my instructions.  My instructions are that he and
Engela offered to settle your mother’s debt with the banks but
that the farm will stay on her name.



First respondent:        
My Lord before Frikkie went to my mother he came to me at the old
house by the scrap yard, and he took from the scrap there and loaded
that. . . . Then he said to me that if he obtains a market for meat
then he would also hunt. And he said to me that the trucks and the
implements he would then sell so that he could then pay the debt. I
asked him whether mother knows about it.  He said there is no
choice. He wanted to buy the farm and he said to me all that they
have is a piece of paper.  The land or the farm will still be in
my mother’s name.’


 



Mr Dicks:                   
Did you tell this to your legal representatives during consultation?


           
First
respondent:         I cannot
remember my Lord.’


 


[123]    
As
Mr Dicks rightly pointed out, it was not put to Frikkie that Gawie
met him before and after the meeting with the deceased. It will serve
no purpose to go on exposing more contradictions in Gawie’s
evidence. Suffice it to say if you compare his evidence-in-chief to
his evidence under cross-examination (with the additions thereto) you
can easily see that he was lying. Even his evidence under
cross-examination is full of contradictions that show that he was
lying. I have earlier in this judgment referred to what I called
stock answers given by Gawie when incidents related by appellants’
witnesses regarding change in the behaviour of the deceased were put
to him for comment, such as for instance ‘improbable’,
‘nonsense’.  These answers were given without
further comment. Apart from all this, Gawie resorted to giving new
evidence when cornered, evidence which was never indicated he would
give when those witnesses were cross-examined. Also in many instances
he gave vague answers, clearly suggesting he was evading questions.
For instance, he was asked if he had signing powers on deceased’s
account as alleged by appellants and his answer was:


 


I
am not sure.  At that stage I do not think I had’ or ‘I
can go back and check whether I had signing powers then but I do not
think that I had.’ ’


 


The
allegation that he had signing powers on deceased’s account was
first made in the affidavit supporting the application for the
appointment of the curator ad litem which application he was
aware of and, according to him, about which he tried to do something.


 


[124]    
Although
Gawie’s evidence was that deceased gave her own instructions
for the disputed will, he purported to give explanations for the
provisions in the will–


 



(a)      
Why Frikkie and Wollie were bequeathed the mouser rifle and the .22
rifle respectively;


(b)      
Why Engela was not even mentioned and did not get anything;


(c)       
Why Frikkie was no longer getting the farm Chaudamas; and


(d)      
Why Wollie was no longer getting the farm implements.


 


This
implies that the deceased discussed these provisions with him
beforehand although when and where such discussion took place was not
canvassed. He said that he was aware of the existence of the 1994
will but had not seen its contents before. He agreed though that the
disputed will was a radical departure from the 1994 will.  The
disputed will did not specify which of the three grandchildren called
Gabriel Jacobus Vermeulen was referred to in clause 3.5 thereof and
Gawie’s evidence that it was his son is based on deductions. It
appears that De Koning was not made aware that there were three such
grandsons either. Gawie said that he was not concentrating when
deceased gave her instructions on this aspect of her will. This is
surprising and appears as an effort to evade the questions. He denied
what De Koning said namely that when he was giving instructions for
the sale agreement he wanted an assurance that ‘Frikkie would
definitely then no longer inherit Chaudamas’. Of the two
witnesses I prefer De Koning’s evidence to that of his on that
score.


 


[125]    
It
was Gawie’s evidence that Louisa Vermeulen took deceased to Dr
Sieberhagen because he had noticed that she forgot to fill her
batteries and, because of the report by the children that deceased
was driving poorly in 2003.  He did not notice the many changes
Louisa Vermeulen related to the doctor though he said he saw deceased
‘everyday basically’. He ended up admitting that he was
not present when in July 2000 Engela found a dirty chamber pot under
deceased’s bed or when Engela found tins of condensed milk in
deceased cupboards in June 2000.  He gave the following
nonsensical answer in this regard:


 


           
I was not
present, because there was no such incident’.


 


He
admitted that he did not witness the deceased getting into the bath
tub and out without bathing herself as testified to by Engela. His
explanation why Engela did not buy a camp as he suggested was also
quite illogical. In connection with the dirty chamber pot incident,
the following was specifically put to Engela in cross-examination:


 


My
instructions are that somebody was in fact present during that
particular incident and that particular person who was present during
that incident was the first defendant.’


 


The
questioning about the chamber pot incident was repeated several
times.  At last it was said Gawie was present and;


 


.
. .
will
testify that this particular incident happened in December 2003 after
your late mother was diagnosed with Alzheimer’s and you came to
fetch her
.’


 


Engela
clearly denied that and repeated that the incident was in July 2000.
When Gawie came to testify, he was asked why he was saying the
incident occurred in December 2003. As previously mentioned, he
answered that he had telephoned Engela to come and fetch the deceased
after the diagnosis by Dr Sieberhagen. He went on:


 


When
Engela came to fetch her I was together to assist her, packing her
things, and then she saw that the maid had not taken out or removed
the pot in the morning.’


 


This
last statement was not put to Engela to admit or deny when she was
cross-examined.


 


[126]    
It
should be noted that although Louisa Vermeulen gave no dates of the
observations she told Dr Sieberhagen she made about deceased’s
changed behaviour, the majority of her observations correspond or are
similar to what Engela said she observed at various stages of
deceased’s life. I have already listed the observations Louisa
Vermeulen relayed to Dr Sieberhagen in para [69] above.


 


[127]    
My
consideration of the evidence as a whole convinces me on a balance of
probabilities that Gawie’s heavy financial dependence on the
deceased was a cause of great concern on the part of the other
children, including Wollie. The other children tried to do something
to alleviate deceased’s debt-ridden situation, of which, for
whatever reason, Gawie was part of the cause. In para 58 of his
judgment the learned trial judge said that deceased’s reaction
to the proposals of Frikkie and Wollie to lessen the deceased’s
dire financial situation had nothing to do with her testamentary
capacity. I disagree. My disagreement is fortified by how Roper J
treated a similar situation in
Lewin
v Lewin, supra
.
In that case the learned Judge first analysed the evidence regarding
the testator’s grievances against his wife, whom the testator
had disinherited, and came to the conclusion


 


.
. .  that the motives which led the deceased to disinherit the
plaintiff were such as would probably not have had that result had it
not been for the mental impairment and emotional disturbance
associated with the aphasia which followed upon his stroke.’


 


Evidence
had been given by a doctor (expert) in that case that ‘the
action of an aphasic to a grievance might be more extreme, and that
it might result in an unreasonable reaction’. In the present
matter the so-called motive for the deceased to change her mind and
disinherit Engela, in particular, can only be described as extreme
and unreasonable and would not have produced that result if one
considers further that the deceased was diagnosed to be suffering
from stage 2 of Alzheimer’s disease already in 2003.


 


[128]    
In
the
Lewin
v Lewin
matter,
 the passage, I have already quoted therefrom in full context
states at 253:


 


According
to the experts the degree of impairment of the intellect can only be
determined in any individual case by an exhaustive and lengthy
neurological examination, such as was never carried out in the case
of the deceased. It was accordingly contended on behalf of the
defendant that the plaintiff had not discharged the
onus
of proving that the deceased had no testamentary capacity when the
disputed will was made. The Courts are, however, almost daily called
upon to decide disputed issues of fact without the aid of scientific
proof. When that is the case they must take such evidence as is put
before them and decide the issue upon the probabilities.’


 


The
Law on testamentary capacity


[129]    
Section
4 of the Wills Act 7 of 1953 (the Act) provides:


 


4.       
Competency to make a will


 


Every
person of the age of sixteen years or more may make a will unless at
the time of making the will he is mentally incapable of appreciating
the nature and effect of his act and the burden of proof that he was
mentally incapable at that time shall rest on the person alleging the
same.’


 


[130]    
Over
the years a number of tests for testamentary capacity has been
formulated. It is apparent that all these tests are an elaboration of
the principles spelt out in s 4 of the Act. Because the parties in
this matter accept these tests it may not be necessary to refer to
all of them. It is the application of these tests to the facts of
this matter as revealed by the evidence that is of cardinal
importance. A classic statement of testamentary capacity was provided
by Cockburn CJ in the English case of
Banks
v Goodfellow

[1987] LR 5 QB 549 at 564. His Lordship explained the law as follows:


 


[A]
testator shall understand the nature of the act and its effect; shall
understand the extent of the property of which he is disposing; shall
be able to comprehend and appreciate the claims to which he ought to
give effect; and, with a view to the latter object, that no disorder
to the mind shall poison his affections, pervert his sense of right,
or prevent the exercise of his natural faculties – that no
insane delusion shall influence his will in disposing of his property
and bring about a disposal of it which if the mind had been sound,
would not have been made.’


 


[131]    
A
further account of the concept was provided by Dixon J in
Timbury
v Coffee
[1941]
HCA 22 [1941] LR 66 277 where his Lordship said at 283:


 


Before
a will can be upheld it must be shown that at the time of making it
the testator had sufficient mental capacity to comprehend the nature
of what he was doing, and its effects, that he was able to realize
the extent and character of the property he was dealing with,
and
to weigh the claims which naturally ought to press upon him
.
In order that a man should rightly understand these various matters
it is essential that his mind should be free to act in a natural,
regular and ordinary manner . . . “If a will rational on the
face of it is shown to have been executed and attested in the matter
prescribed by law, it is presumed, in the absence of any evidence to
the contrary, that it was made by a person of competent
understanding.
But
if there are circumstances in evidence which counterbalance that
presumption, the decree of the court must be against its validity,
unless the evidence on the whole is sufficient to establish
affirmatively that the testator was of sound mind when he executed
it.

. . . In the end the tribunal – the court or jury

– must be able, affirmatively, on a review of the whole
evidence, to declare itself satisfied of the testator’s
competence at the time of the execution of the will
.
. .’


 


[132]    
In
the present matter the onus of proving that the testator was not
capable of making a will remains on the appellants despite the
court’s order that deceased was incapable of managing her own
affairs. See
Smith
and Others v Strydom and Others

1953 (2) SA 799 (T).


 


[133]    
I,
with respect, accept, as the court
a
quo

did, that the test for testamentary capacity is as stated in the
South African Appeal Court case of
Tregea
and Another v Godart and Another 1939

AD 16 at 49. There Tindall JA said:


 


.
. . in cases of impaired intelligence caused by physical infirmity,
though the mental power may be reduced below the ordinary standard,
yet if there be sufficient intelligence to understand and appreciate
the testamentary act in its different bearings, the power to make a
will remains. Voet (28.1.36) states that not only the healthy but
also those situated in the struggle of death, uttering their wish
with a half-dead and stammering tongue, can rightly make a will
provided they are still sound in mind.’


 


[134]    
The
judge
a
quo

in this matter quoted the passage in
Bank
v Goodfellow

where Cockburn CJ also stated the following at 568:


 


The
testator must, in the language of the law, be possessed of sound and
disposing mind and memory. He must have memory; a man in whom the
faculty is totally extinguished cannot be said to possess
understanding to any degree whatever, or for any purpose. But his
memory may be very imperfect; it may be greatly impaired by age or
disease; he may not be able at all times to recollect the names, the
persons, or the families of those with whom he had been intimately
acquainted; may at times ask idle questions, and repeat those which
had before been asked and answered, and yet his understanding may be
sufficiently sound for many of the ordinary transactions of life. He
may not have insufficient strength of memory and vigour of intellect
to make and to digest all the parts of a contract, and yet be
competent to direct the distribution of his property by will. This is
a subject which he may possibly have often thought of, and there is
probably no person who has not arranged such a disposition in his
mind before he committed it to writing. The question is not so much
what was the degree of memory possessed by the testator as this: Had
he a disposing memory? Was he capable of recollecting the property he
was about to bequeath; the manner of distributing it; and the objects
of his bounty?’


 


[135]    
The
passage as quoted, with approval, by Tindall JA in
Tregea
and Another v Godart and Another
at
49 ends up with the following sentence:


 


To
sum up the whole in the most simple and intelligible form, were his
mind and memory sufficiently sound to enable him to know and to
understand the business in which he was engaged at the time he
executed his will?’


 


[136]    
In
Kirsten
and Another v Bailey and Others

1976 (4) SA 108 (CPD) at 110 Vivier AJ, referred to two cases i.e.
Harwood
v Baker
,
3 Moo. P.C. 282 and
Battan
Singh and Others v Amirchand and Others
,
1948 A.C. 161. In
Harwood
v Baker

the testator made a will in favour of his wife to the exclusion of
other members of his family, while suffering from a disease which
affected his brain and impaired his mental ability, the learned judge
quoted what Erskine J said at 290 of the report, namely:


 


But
their Lordships are of opinion that, in order to constitute a sound
disposing mind, a testator must not only be able to understand that
he is by his will giving the whole of his property to one object of
his regard; but that he must also have capacity to comprehend the
extent of his property,
and
the nature of the claims of others, whom, by his will, he is 
excluding from all participation in that property;

and that the protection of the law is in no cases more needed than it
is in those where the mind has been too much enfeebled to comprehend
more objects than one, and most especially
when
that one object may be so forced upon the attention of the invalid as
to shut out all others that might require consideration;

and, therefore, the question which their Lordships propose to decide
in this case is not whether Mr. Baker knew when he was giving all his
property to his wife, and excluding all his other relations from any
share in it, but whether he was at that time capable of recollecting
who those relations were, of understanding their respective claims
upon his regard and bounty, and of deliberately forming an
intelligent purpose of excluding them from any share of his
property.' (Emphasis added.)


 


In
Battan Singh and Others v Amirchand and Others the testator,
whose mental state was weakened through illness, left all his
property to the respondents to the exclusion of his four nephews. At
170 of the report Lord Norman said:


 


'A
testator may have a clear apprehension of the meaning of a draft will
submitted to him and may approve of it, and yet if he was at the time
through infirmity or disease so deficient in memory that he was
oblivious of the claims of his relations, and if that forgetfulness
was an inducing cause of his choosing strangers to be his legatees,
the will is invalid
.'
(Emphasis added.)


 


[137]    
Vivier
AJ also drew attention to
Lewin
v Lewin

1949 (4) SA 241 (T) where at 280 Roper J said:


 


.
. . It is abundantly clear from the authorities that it is not
sufficient that the testator understood and intended the dispositions
which he was making in his will (see on this point in our own Courts
Estate
Rehne and Others v Rehne

(1930 OPD 80 at p. 91
);
Lange v Lange

(1945 AD 332, at p. 342)); it is necessary further that he shall have
been able
to
comprehend and appreciate the claims of his various relations upon
his bounty, without any poisoning of his affections, or perversion of
his sense of right, due

to mental disorder; and generally, to use the language of the
American case referred to by COCKBURN, C.J., that he shall have had
the ability


 


clearly
to discern and discreetly to judge of all these things, and all those
circumstances, which enter into the nature of a rational, fair and
just testament”.'
(My
emphasis.)


 


[138]    
It
is also quite clear that
Banks
v Goodfellow

and all the other cases referred to above propound several tests of
capacity, each of which, separately, has to be satisfied for a will
to be regarded as valid. In the present case sight must not be lost
of the fact that the disputed will in many respects presents a
remarkable departure from deceased’s earlier will, the 1994
will. Nor must the diagnosis of Dr Sieberhagen be forgotten, that in
2003 the deceased was already suffering from Phase II of Alzheimer’s
disease, or his description of the various stages of the disease or
his evidence that the capacity of a testator suffering from
Alzheimer’s disease is affected in Phase I. The doctor’s
diagnosis was not challenged.


 


[139]    
Lastly,
in
Lerf
v Nieft NO and Others
2004
NR 184 (HC) at 190J van Niekerk J referred to a dictum in
Harlow
v Becker NO and Others

1998 (4) SA 639 (D) at 644A-B where it was stated as follows:


 


'Obviously,
it is a prerequisite to the execution of a valid will that the person
who executes the will has to intend it to be his will. But the mental
capacity or competency to execute a valid will embraces more than a
mere intention on the part of the testator that the draft will to
which he puts his signature should be his will. He may appreciate
the meaning of the document and approve of its contents and yet may
lack the understanding or mental capability necessary for the
execution of a valid will
.' (Emphasis added.)


 


After
an examination of the case law on the point Van Niekerk J then
proceeded to express the Court’s view on the matter as follows
at 191B-C of her judgment:


 


In
order to show that the deceased in this matter did not have the
necessary mental capacity it must be shown that he failed to
appreciate the nature and effect generally of the testamentary act;
or that he was at the time unaware of the nature and extent of his
possessions; or that he did not appreciate and discriminate between
the persons, whom he wished to benefit and those whom he wished to
exclude from his bounty; or that his will was inofficious in the
sense that it benefited  persons to the exclusion of others
having higher equitable claims to the estate. (See
Cloete
v Marais

1934 EDL 239 at 250.)’


 


The
court a quo’s judgment


[140]    
Considering
the evidence which I have analysed above, it is surprising that in
para 46 of his judgment the learned judge
a
quo

came to the conclusion that ‘the evidence of the defendants and
witnesses named who corroborated each other in most instances are on
a balance of probabilities more acceptable than that of the
plaintiffs in regard to the changes and incidents’, whatever
that means. If that is meant to give a blanket cover of credibility
to the evidence of the witnesses called on behalf of the respondents,
I beg to differ. To begin with the evidence analysed above in this
judgment shows that the only area where respondents’ witnesses
seem to corroborate one another is the claim that deceased’s
problems (the changes in her conduct etc.) only started in 2003 or
after Dr Sieberhagen’s diagnosis of deceased as in Phase II of
Alzheimer’s disease. With respect, I find the conclusion that
respondents’ witnesses corroborated each other in this respect
is not supported by the evidence at all. The evidence shows that
respondents’ witnesses either admitted that the incidents
related by appellants in regard to deceased’s changed or
changing behaviour occurred, but, unconvincingly, sought to explain
away such changes, or allege that the incidents happened on different
dates or in some unspecified manner, or deny that the incidents
happened at all; respondents’ witnesses do not corroborate each
other in such explanations. Secondly, with respect, I find the points
mentioned by the judge
a
quo

as support for his conclusion to be mere makeweights. I comment on
them seriatim -


 


(a) 
The
plaintiffs allege that they (in particular the second plaintiff)
notices a deterioration in the behaviour of the deceased, the upkeep
of her garden and house, her personal hygiene and grooming since 1993
and more pronounced since 1998 and during 2000, yet they did nothing
in that regard.’


 


The
affidavit was sworn to on 21 January 2001. In para 6 thereof, to
repeat, first appellant stated:



 


With
the benefit of hindsight I now realise that soon after the death of
my father my mother’s mental well-being began to deteriorate. I
do not think any of us children observed the aforegoing, probably due
to our inexperience in this regard. It has only been over the past
three years that particularly my sister, Engela, has noticed a marked
deterioration in the patient’s mental capability and capability
of managing her own affairs.’


 


That
was after Dr Sieberhagen’s diagnosis of the deceased on 23
November 2003. What first appellant said is in line with Dr
Sieberhagen opinion, inter alia, that ‘. . . the
diagnosis of Alzheimer’s disease is dependent upon the
behaviour of the patient, which is often only detected when the
illness has already progressed to the point where treatment would
have very little effect’. In the light of all this with
respect, the remark by the judge a quo that appellants did
nothing is simply gratuitous.


 



(b)      
‘The first plaintiff (supported by the second plaintiff)
unequivocally states in his founding affidavit to the application to
appoint a curator ad litem that for the past 3 years
these changes in the behaviour and person of the deceased had been
observed.’


 


The
evidence shows that this was also the case with other members of the
deceased’s family. Obviously the words stressed by the court a
quo
are quoted wrongly and out of context. In any case how this
supports the court’s decision is beyond my comprehension. Dr
Sieberhagen’s unchallenged opinion on how lay persons close to
an Alzheimer’s patient come to realise what is happening is
apposite in this regard.


 



(c)       
‘The application for the appointment of a curator ad litem
was based on the fact that the deceased did not have the ability to
manage her own affairs and not that she was of unsound mind. The
court only declared her to be unable to manage her own affairs.’


 


That
application is neither here nor there. What appellants were required
to prove is what they allege in the particulars of claim in this
matter.


 



(d)      
‘Ms Louisa Vermeulen took the deceased to Dr Burger and when he
referred her to Dr Sieberhagen, she accompanied her to Dr
Sieberhagen.’


 


I
fail to see how the fact that Louisa Vermeulen took the deceased to
Dr Burger or accompanied her to Dr Sieberhagen supports the blanket
conclusion reached by the court a quo on the credibility of
respondents’ witnesses.


 



(e)      
‘The undisputed evidence of the seventh defendant is that the
deceased drove them (grandchildren) regularly to school on Monday and
fetched them on Fridays and the first indication of any deterioration
in her mental condition was when they became concerned of her driving
skills during 2003.’


 


That
may be so, but Dr Sieberhagen was specifically asked a question in
connection with that, namely:


 


.
. . the evidence will be that in 2003, that she still drove a motor
vehicle. . . Would that be an indication that (she) does not have
Alzheimer’s disease? Can you comment on that?’


 


He
replied as already noted and I repeat:  ‘My comment will
be that the US had a President who had Alzheimer’s and he could
govern the country. Alzheimer’s disease does not disable one to
the extent that you cannot drive a motorcar because it is a routine
action that this person has done for many, many years. So, she does
not need much of an IQ to do that’.


 


So
that evidence albeit undisputed does not prove that the deceased did
not have Alzheimer’s disease before 2003 or that the disease
did not affect her mental capacity before 2003.


 


(e) 
Only
after the deceased’s death in 2007, more than 6½ years
after the disputed will was executed and when the appellants
discovered that there was such a will, did they commence legal
proceedings in 2008 on the basis that the deceased was not mentally
capable to execute the 2000 will.’


 


How
this supports the court a quo’s finding, to say the
least, also passes my understanding.


 


With
respect, I conclude that the criticism of the appellants by the
learned trial judge, bolstered by the points (a) – (f) above,
was based on specious reasoning.


 


[141]    
The
learned judge
a
quo
,
with respect, did not analyse the evidence of all the witnesses in
detail or individually or as I have done in this judgment. He merely
summarised the evidence, including that of Dr Sieberhagen. I find
this approach fraught with danger in that thereby one may put oneself
in a situation where one is unable to focus on particular aspects of
the evidence that may have a very significant bearing on the issues;
I think this happened in this case. This is particularly so in a case
like the present where one, in the absence of direct medical proof,
has to rely on probabilities. The judgment
a
quo

reflects this lack of focus in a number of respects. For instance –


 


(a) 
In
para 41 (i) the court
a
quo

states:


 



Despite the
evidence of the first and, in particular, the second defendant to the
effect that the deceased’s behaviour revealed strong
indications that she was not
compos
mentis

before August 2000, neither of them discussed it with other family
members, or the family doctor, Dr Burger, or did anything about it in
terms of having the deceased medically examined.’


 


Apart
from incorrectly referring to second respondent, the time when the
appellants should have had the deceased medically examined is not
indicated. According to Louisa Vermeulen none of the family members
(including the respondents, it would seem) were able to do anything
of that nature until only in 2003.


 


(b) 
There
is no mention or consideration of the two important statements by Mr
de Koning (quoted above) under cross-examination, which statements
cry out for interpretation as to what deceased and Gawie were up to
when giving their instructions to him or why the deceased would have
her will drafted in that manner, and why the first respondent took
the deceased to Otjiwarongo, to his own lawyer, instead of to Outjo
to Mr Dawids, the lawyer who had dealt with her and her husband
before.


 


(c) 
Then
there is the misdirection on facts regarding the meeting in June or
July 2000 between Frikkie and Gawie and the deceased which in para 58
of the judgment
a
quo
the
court relied on to explain the deceased’s radical change of
intentions. The radical departure of the disputed will from the
deceased’s 1994 will also cry out for interpretation. (See
Nicholson’s
case, at 51.)


 


[142]    
The
court
a
quo,

as already mentioned, also merely summarised the evidence of Dr
Sieberhagen. While I have no problem with the summary per se, the
difficulty is that the summary does not mention important statements
of opinion by Dr Sieberhagen as to the testamentary capacity of the
deceased. These opinions are quoted above in this judgment. The one
quotation of what Dr Sieberhagen said that the court
a
quo

refers to appears in para 39 of the judgment
a
quo

referring to para 13.9 of Ms Vivier’s report.


 


[143]    
In
para 41 the trial judge summarised observations in respect of the
expert medical evidence after which he stated in para 42:


 


These
observations confirm my decision that, although I accept Dr
Sieberhagen’s evidence in respect of Alzheimer’s disease
in general and his diagnosis based on the factors that I have set out
above, the expert evidence given by him and Dr Burger
do
not assist me to determine whether the deceased had the testamentary
ability to execute a will on 18 August 2000. For such a determination
I am reliant on the acceptable evidence of the witnesses who
testified what the deceased’s mental condition was at the
time
.’
(My
own emphasis.)


 


Almost
the whole of that para 41 of the judgment is devoted to observations
by Dr Sieberhagen, yet the learned trial judge concluded as quoted
above, without distinguishing what Dr Sieberhagen said from what Dr
Burger testified about. In my opinion, the summary of the evidence
that followed the above statement did not do justice to the evidence
as analysed the way I have done in this judgment. It looks at pieces
of the appellants’ evidence in isolation instead of looking at
the evidence as a whole, including that given by the respondents. It
ignores the evidence of Dr Burger who, by the way, was not a family
member of the deceased. It says absolutely nothing about the
probabilities. It ignores or pays lip service to what was stated in
para 28 of the respondents’ heads of argument viz:


 


It
is submitted the Court a quo realised that the opinion of Dr
Sieberhagen was dependent on certain facts and failing such facts or
based on the acceptance of contrary facts, a different opinion would
have followed.
It
was thus important to establish the true facts in an attempt to
establish if Alzheimer’s affected the testatrix at all or to
such an extent that she lacked testamentary capacity in August 2000
when she executed the contested will.

(My
emphasis.)


 


[144]    
If
one accepts, as the court
a
quo

did, the correctness of Dr Sieberhagen’s diagnosis that
confirmed that in 2003 the deceased was suffering from Phase II of
Alzheimer’s illness, his evidence that each phase of the
illness can last many years and that a patient’s capacity or
ability to make a will will be affected in Phase I, it seems
completely illogical to determine whether the deceased had the
testamentary capacity to execute a will on 18 August 2000 solely on
the evidence of respondents’ witnesses (such as it was) without
looking at the probabilities. In regard to the testimony and opinion
of Dr Sieberhagen, for instance, in re-examination, when he was
specifically asked as already noted:


 


Now,
with all that you have heard or that you have testified, all that has
been put to you, can you say that in your opinion, expert opinion she
could not, on 18 August 2000 execute that will?


 


and
he answered:


 


My
Lord, if the information that I had been given in terms of the
symptoms that were notable before,
if
we can accept that that was indeed the case,

I would be fairly confident in saying that she in all probability had
significant dysfunction in saying that time. But should the situation
be that the symptoms mentioned during the later parts of 1998 and
2000
be
not true
,
then I would not be able to make that statement, and that was the
reason why in that curator’s report it was reported that at
that time I was not prepared to make any statement like that.’
(My
underlining.)


 


That
answer necessarily required the court a quo to ask itself the
question, what was the truth? The answer would, in my opinion,
require an assessment of the evidence by Dr Burger and the evidence
by the appellants particularly that of Engela. The incidents
mentioned by Engela as I have shown above, were either not directly
denied, by the respondents, and the cross-examination by counsel
thereon merely sought to explain the incidents or to allege different
dates as to their occurrence; the four panties and the dirty chamber
pot incidents, for instance.


 


[145]    
A
proper assessment of the evidence would require that sight is not
lost of the fact that in making his diagnosis that in 2003 the
deceased was already in Phase II of Alzheimer’s disease, Dr
Sieberhagen relied also on his own observation of the deceased’s
actions and the result of the MRI scan of the deceased’s brain.
In other words, all factors must be put in the scale before deciding
as to the balance of probabilities. These factors would include para
12 of the curator
ad
litem’s

report, what Louisa Vermeulen told Dr Sieberhagen on 20 November 2003
(listed above and in the judgment
a
quo

at para 27) which observations, albeit no dates were mentioned, it
would be ridiculous to claim were all made in one day, one week or
one month period. Also sight should not be lost of the seeming
emphasis by witnesses for the respondents that deceased’s
mental problems only started at the end of 2003. The evidence of Mr
de Koning under cross-examination (quoted above) should also be taken
into consideration. Lastly, Dr Sieberhagen’s remarks on
probabilities should also be kept in mind in this regard, viz:


 


At
the time I had the consultation with the curator, the information
that was available to me was only that I had after having diagnosed
her. And I did not have any information concerning the development of
her symptoms previously. And that put me in a position where it would
have been not possible to make any retrospective statement in terms
of the patient’s ability on a specific date and also with
regard to a specific transaction.
I
would like to emphasize that the best that I can do today is again to
say that in probability this patient has been ill since I guess early
90’s or the mid 90’s. And that from that time until her
death there should have been a time when she became unable to conduct
business, where her testamentary capability disappeared. My guess is
that it was end of 1999 or during 2000. But I do not think that I
will be able to get any closer than that
.’
(My emphasis.)


 


[146]    
It
is trite that the court is not bound by the opinion of medical
experts but itself not being an expert in the psychiatric field, it
will not lightly reject the opinions of expert witnesses. See
S
v McBride

1979 (4) SA 313 (W) where at 317H it was stated:


 


.
. .  On the other hand the Court, which is not an expert in the
psychiatric field, will not lightly reject the opinions of the
specialist witnesses. It will do so only if in its view the
specialists based their opinion upon an inadequate knowledge of the
relevant facts or ignored such facts. (See
S
v Kavin

1978 (2) SA 731 (W) at 736F-737A.)’


 


In
my view the rejection of Dr Sieberhagen and Dr Burger’s
opinions (and evidence) in this matter was completely unwarranted.


 


[147]    
The
standard of proof in civil cases was succinctly spelt out by Lord
Denning in
Miller
v Minister of Pension

[1947] 2 ALL ER 372 at 373:


 


If
the evidence is such that the tribunal can say that it is more
probable than not the burden is discharged.’


 


In
Govan v Skidmore 1952 (1) SA 732 (N), Selke J said p 734C:


 


.
. . for, in finding facts or making inferences in a civil case, it
seems to me that one may, as Wigmore conveys in his work on Evidence
(3
rd
ed, para 32), by balancing probabilities select a conclusion which
seems to be the more natural, or plausible, conclusion from amongst
several conceivable ones, even though that conclusion be not the only
reasonable one.’


 


[148]    
On
the evidence in this matter, I am satisfied that the probabilities
are overwhelming in favour of a finding that on 18 August 2000 the
deceased was suffering from Alzheimer’s illness to the extent
that she lacked testamentary capacity. The deceased, in all
seriousness did not pass the test spelt out in the various cases I
have quoted above. To repeat, I find the judge a
quo’s
remark in para 58 of his judgment that the incident which occurred
approximately July 2000 had nothing to do with the deceased’s
testamentary ability, untenable when one properly has regard to how
the disputed will came to be made, particularly when one accepts Mr
de Koning’s revelations in his evidence under
cross-examination. Therefore, the appeal must succeed.



 


Costs


[149]    
The
court
a
quo

dismissed the appellants’ claim with costs which costs were to
include the costs of one instructing and one instructed counsel. On
appeal the appellants asked for costs against the first, second,
seventh and eighth respondents; they asked in the alternative that
costs be paid out of the estate. I do not think that the estate be
mulcted in costs in the circumstances of this case. The only asset of
note in the estate is the farm. Moreover, other than giving evidence
on behalf of the respondents, the executor (Mr de Koning) did not
take an active part in the proceedings. I think, therefore, that the
respondents concerned should bear the costs of the appeal as well as
the costs of the action in the High Court.


 


[150]    
In
the result I make the following order:


 


1.   
The
appeal succeeds.


2.   
The
order of the High Court in Case No [P] I 3284/2007 dismissing the
appellants’ claim is set aside and is substituted for the
following order:


 


(a)           
The will of Fransina Katharina Elizabeth Vermeulen dated 18 August
2000 is hereby declared
null
and
void.



(b)            
The will of Fransina Katharina Elizabeth Vermeulen (the testatrix)
dated 1 October 1994 is declared the valid will of the testatrix.



(c)             
The first, second, seventh and eighth respondents are ordered to pay
the costs of the action, such costs to include the costs of one
instructing and one instructed counsel.’


 


3.   
The
first, second, seventh and eighth respondents are ordered to pay the
costs of the appeal jointly and severally, the one paying the other
to be absolved. Such costs are to include the costs of one
instructing and two instructed counsel.


 





MTAMBANENGWE
AJA





SHIVUTE
CJ





MAINGA
JA


 


APPEARANCES


 


APPELLANTS:                                                        
R Tötemeyer (with him G Dicks)


                       
                                                           
Instructed
by Kirsten & Co Inc


 


 


1ST,
2ND, 6TH, 7TH, 8TH
RESPONDENTS:              
T J Frank SC                        


                                                                                   
(with
him J Schickerling)


                                                                                   
Instructed
by Etzold-Duvenhage