BOE Bank Ltd v Ries

• Jurisdiction: South Africa
• Judge: Harms JA, Schutz JA, Cameron JA, Mthiyane JA and Conradie AJA
• Judgment Date: 27 November 2001
• Citation: 2002 (2) SA 39 (SCA)
• Docket Number: 247/2000
• Hearing Date: 22 November 2001
• Counsel: T D Potgieter for the appellant. E Fagan for the respondent.
• Court: Supreme Court of Appeal

Schutz JA:

[1] The first defendant (now the appellant) was Boland Bank PKS Ltd. It is now named BOE Bank Ltd (the bank). One Groenewald, for a B time the second defendant, was employed at its Somerset West branch as a broker. His functions were to see to the bank's insurance interests. One Ries wished to change the beneficiary in a policy on his life. He has since died and I shall refer to him as 'the deceased'. The intended beneficiary was the future Mrs Ries. She was the plaintiff C and is the respondent on appeal. At the time that the events giving rise to this appeal occurred in December 1994, she worked for the deceased. They had become engaged in November 1994, leading to their marriage in May 1995. The deceased died in 1996.

[2] The deceased kept his current account at the bank's Somerset West branch. He had dealings with Groenewald about two life D policies and only two. The one was with Liberty Life. This was taken out shortly before or after 22 December 1994 at the bank's instance to provide security for his overdraft. Before the deceased selected this policy Groenewald obtained quotations from several insurers. The other policy was an existing one, issued by Old Mutual. E The fact that the beneficiary under this policy was not altered so that Mrs Ries was named as beneficiary gave rise to this case.

[3] Groenewald first came to hear of the Old Mutual policy in the following way: a colleague at the bank's Strand branch asked him F to deliver a will which she had prepared for the deceased for him to sign. Groenewald had no prior knowledge of the will, nor did he become acquainted with its terms. After he had received it in an envelope, he made an appointment with the deceased and walked the few blocks to his office. This was on 22 December 1994. The deceased signed the will and Groenewald and someone from the deceased's workshop witnessed it. G According to Groenewald, the future Mrs Ries was present and, although he was not sure whether she read it, he insisted that she was well aware that her future husband was signing his will. Mrs Ries, on the other hand, denied she was present at the signing. H

[4] According to her she learned of the existence of a will only after her husband's death. The deceased, she said, was very secretive about his financial affairs and she also did not know of the intended change in her favour of the beneficiary named in the Old Mutual policy. The Court a quo made no express finding on this dispute between Groenewald and Mrs Ries, but on two other disputes the learned I Judge preferred Groenewald's version as being probable, whilst not holding Mrs Ries to be deliberately untruthful.

[5] Before Groenewald left with the completed will the deceased mentioned that he wished to change the beneficiary named in a policy, J

Schutz JA

the Old Mutual policy as became apparent. As Groenewald had not gone A armed to deal with such an eventuality he did not have the appropriate form with him. So he arranged with the deceased that he would return with the form that afternoon in order that it might be completed, signed and lodged. He went back to the bank where he took a form and filled in such particulars as he commanded. B

[6] When he returned to the deceased's office at the appointed time the deceased was not there, but Mrs Ries was. He was as sure as could be that she filled in the particulars pertaining to the beneficiary. She denied this. Be that as it may, those particulars were filled in by someone. But the form still lacked a signature. According to Groenewald he then arranged with her that she was to give the C deceased a message that he was to come into the bank to sign. He departed with the unsigned form, placed it in a file in his office and did not speak to the deceased about the matter again. Mrs Ries' version of the afternoon was different. She did not dispute that the deceased might have been out, as his work often took him abroad. Nor D did she dispute that she was at the office. But she disputed that Groenewald had left a message with her. If he had done so, however, she would certainly have passed it on, as both she and her future husband were meticulous about such matters.

[7] H J Erasmus AJ, the trial Judge in the Cape Provincial Division, found it probable that Groenewald's version as to whether he E left a message and whether Mrs Ries filled in the form was correct. The first finding was not challenged on appeal on behalf of Mrs Ries, although its correctness was not conceded. The inference is accordingly that the deceased received the message. F

[8] The new will made a bequest to Mrs Ries of the trading stock, vehicles, furniture and fixtures and fittings of the deceased's business, Action Dairy Equipment, subject to her paying R300 000 into the estate. The residue, which would have included this sum if the bequest were accepted, was to go to the deceased's three children by a G previous marriage. The Old Mutual life policy was also for R300 000 and the intended purpose of...