Erasmus NO v Estate Late Booysen

• Jurisdiction: South Africa
• Citation: 2014 (4) SA 1 (SCA)

Erasmus NO v Estate Late Booysen
2014 (4) SA 1 (SCA)

2014 (4) SA p1

Citation	2014 (4) SA 1 (SCA)
Case No	192/2013; [2014] ZASCA 27
Court	Supreme Court of Appeal
Judge	Mthiyane DP, Petse JA, Willis JA, Saldulker JA and Legodi AJA
Heard	March 17, 2014
Judgment	March 28, 2014
Counsel	JG Bergenthuin SC for the appellant.; GC Muller SC for the respondent.

Flynote : Sleutelwoorde

Will — Fideicommissum — Multiplex — Fiduciary, first and second fideicommissaries B — First fideicommissary dying before fiduciary — Property passing to second fideicommissary.

Headnote : Kopnota

Where a testator creates a fideicommissum consisting of a fiduciary, a first C fideicommissary and a subsequent fideicommissary, and where the first fideicommissary dies before the fiduciary, the property concerned will pass to the second fideicommissary. (Paragraphs [16], [19] – [20] and [25] – [26] at 6I – 7B, 7D – G and 9A – G.)

Cases Considered

Annotations D

Case law

Board v Titterton (1896) 13 SC 164: referred to

Coetzer NO and Another v Bester and Another 1952 (4) SA 73 (O): referred to E

Erasmus v Van der Hoven 1935 OPD 194: referred to

Executor of A Neveling v Executor of P Neveling and Others (1909) 26 SC 196: referred to

Ex parte Dell 1957 (3) SA 416 (C): referred to

Ex parte Honikman 1943 CPD 98: referred to

Ex parte Oakeshott 1910 TS 895: referred to

Ex parte Platt 1951 (4) SA 394 (N): referred to F

Ex parte Schroder, NO 1956 (2) SA 148 (E): referred to

Ex parte Swanepoel en Andere 1960 (2) SA 357 (O): referred to

Herold v Visser 1937 CPD 67: referred to

Hopkins v Estate Smith 1920 CPD 558: referred to

Human v Human's Executors 10 SC 172: dictum at 175 applied

In Re Estate Swanepoel 1929 OPD 98: referred to G

2014 (4) SA p2

Jansen NO v De Bruyn 26 SC 266: referred to A

Jewish Colonial Trust Ltd v Estate Nathan 1940 AD 163: dictum at 176 applied

Mahomed's Estate v Moosa 1946 NPD 516: referred to

Michau v Michau's Executor 11 SC 362: referred to

Parkin v Parkin's Estate 25 SC 346: dictum at 349 applied

Reek, NO v Registrateur van Aktes, Transvaal 1969 (1) SA 589 (T): referred to B

Stegmann v Board of Executors (1894) 11 SC 421: referred to

Tredgold v Arderne's Estate 1926 CPD 25: referred to

Wannenberg v Le Roux (1895) 12 SC 383: referred to.

Case Information

JG Bergenthuin SC for the appellant. C

GC Muller SC for the respondent.

An appeal from the Gauteng Division, Pretoria (De Vos J).

Order

1.

D The appeal is upheld.

2.

The order of the high court is set aside.

3.

The following order is substituted for that of the high court:

'(i)

The fideicommissa established in terms of the wills of the late Johannes Arnoldus Jacobus Booysen, dated 20 March 1969, and the late Jacomina Hendrina Booysen, dated E 26 March 1969, entitle Jonique Booysen (Identity No 000113 0114 083) to inherit such bequest as her late father, Josua Booysen, would have inherited were he still alive.

(ii)

The executor of the estate of the late Barend Christiaan Booysen is to distribute the properties subject to the fideicommissa F established in terms of the said wills to Johannes Arnoldus Jacobus Booysen and Jonique Booysen as fideicommissaries respectively, Jonique to inherit per stirpes.

(iii)

The fideicommissa established in terms of the aforesaid wills of the late Johannes Arnoldus Jacobus Booysen and the late G Jacomina Hendrina Booysen will terminate in respect of the fideicommissary bequest to Jonique, such that she receives ownership unrestricted by the considerations of any generation succeeding her.

(iv)

The costs of the application and counter-application, as well as the costs of Jonique's curator ad litem, are to be borne by H the estate of Barend Christiaan Booysen.'

4.

Any pending rule nisi in this matter is discharged.

5.

The costs of this appeal are to be borne by the estate of Barend Christiaan Booysen.

Judgment

Willis JA (Mthiyane DP, Petse JA, Saldulker JA and Legodi AJA concurring): I

[1] This case is concerned with the interpretation of two separate but related wills of two different persons. These two persons were the great-grandfather and great-great-grandmother of a minor child J (Jonique). The great-grandfather was the father of Jonique's paternal

2014 (4) SA p3

Willis JA (Mthiyane DP, Petse JA, Saldulker JA and Legodi AJA concurring)

grandfather. The great-great-grandmother was the mother of A that great-grandfather. Jonique's father, Josua Booysen (Josua) had predeceased his father, the late Barend Christiaan Booysen (the deceased).

[2] The deceased was a fiduciary of fideicommissa established by the respective wills of his father (the minor child's aforesaid great-grandfather) B and grandmother (the minor child's previously mentioned great-great-grandmother). The issue for determination in both the high court and this court was whether Jonique could inherit, as a fideicommissary, when her father had predeceased the deceased. In the judgment of the high court (De Vos J) on 23 February 2013 it was found that Jonique could not. On 4 March 2013 it granted the appellant leave to appeal to C this court. The appellant was Nicolette Erasmus, the mother and surviving natural guardian of Jonique who was born on 13 January 2000.

[3] Johannes Arnoldus Booysen (the excecutor), who is the son of the deceased and the duly appointed executor of the deceased's estate, brought an application before the high court for an order declaring D that the fideicommissum established in favour of Josua Booysen, in terms of the wills of the late Johannes Arnoldus Jacobus Booysen (the first testator) dated 20 March 1969 and the late Jacomina Hendrina Booysen (the testatrix or second testator) dated 26 March 1969, terminated upon the death of Josua. Josua died on 26 August 2001. Josua was the son of E the deceased and the brother of the executor. The deceased died on 22 February 2009. Josua therefore predeceased his father, the deceased. The deceased was the son of the first testator and the grandson of the testatrix. The testatrix was the mother of the first testator. The executor has two children. The elder is Johannes Arnoldus Jacobus Booysen, born on 7 July 1998, who was named after his paternal grandfather, the first F testator. The younger is Ane Booysen, born on 8 January 2000. These two children are still living. The first testator is Jonique's great-grandfather to whom reference has already been made. The testatrix is Jonique's aforesaid great-great-grandmother.

[4] The executor brought the application ex parte. At the instance of the G executor, a rule nisi was issued and served on all interested parties, including the appellant. Consequent upon the issue of the rule nisi, the appellant received notice of the application and successfully applied to be joined as a party. The appellant opposed the application and brought a counter-application for an order that Jonique should inherit that part of H the deceased's estate which her father, had he still been alive, would have inherited. An advocate, Ms Elani Botha, was appointed as curator ad litem for Jonique on an interim basis. Ms Botha was, by agreement, discharged from her duties before the hearing of the application.

[5] The will of the first testator dated 20 March 1969 was comprehensive. The first testator provided in clause 6 thereof: I

'Ek bemaak my plaas Grootpan, 378 morge groot, aan my seun Barend Christiaan Booysen onderhewig aan die voorwaarde dat dit by sy dood sal gaan na sy kinders by wie se dood die plaas weer sal oorgaan na my seun se kleinkinders. Indien my seun te sterwe sou kom, sonder om kinders na te laat óf indien sy kinders geen kinders nalaat nie sal J

2014 (4) SA p4

Willis JA (Mthiyane DP, Petse JA, Saldulker JA and Legodi AJA concurring)

A gemelde plaas oorgaan na Cornelia Maria Bezuidenhout (gebore De Jager), my half-suster Johanna de Jager se dogter, by wie se dood die plaas na...