Glazer v Glazer, NO
Jurisdiction | South Africa |
Judge | Steyn CJ, Van Blerk JA, Ogilvie Thompson JA, Williamson JA and Wessels JA |
Judgment Date | 15 August 1963 |
Citation | 1963 (4) SA 694 (A) |
Hearing Date | 17 May 1963 |
Court | Appellate Division |
H Steyn, C.J.:
The applicant is the widow of the late Samuel Lei Glazer. She married him on 24th April, 1958, and he died on 19th August, 1959. The marriage was out of community of property. In terms of the antenuptial contract he was to pay her R8,000 within a period of five years after the date of the marriage, i.e. on or before 24th April, 1963. He died testate having executed a will, some time before the marriage, on 5th December, 1953. The assets in his estate are said to amount to R3,612,400. He left his widow nothing.
By a summons issued on 11th October, 1960, the applicant instituted an action in the Witwatersrand Local Division against the respondent
Steyn CJ
in his capacity as executor testamentary in the deceased estate, claiming R500 per month by way of maintenance for herself. According to her declaration and further particulars supplied, she is unable to support herself. Although she has a son and a daughter by a previous marriage, they are unable to maintain her. The respondent excepted to A the declaration as being bad in law and disclosing no cause of action. The exception was upheld with costs by a judgment delivered on 28th March, 1962 (1962 (2) SA 548 (W)).
The applicant decided to appeal. A notice of appeal was served on the B respondent's attorney on 17th April, 1962, and lodged in the Court a quo on the same date. On 1st May the original of the notice was filed in the Transvaal Provincial Division. Because of some confusion in the mind of the applicant's attorney (not by any means obviously excusable), no notice of appeal was lodged with the Registrar of this Court. When C the attorney discovered his mistake, on 18th May, the time for doing so had expired. On 23rd May he approached the respondent's attorney and on 11th June he was informed that the respondent was not prepared to consent to any extension of time. He then drafted a petition for condonation of the late noting of the appeal which was signed by the applicant in Cape Town on 27th June. She did not, however, proceed with D that petition. It was only on 7th March 1963, more than seven months later, that a petition signed by the applicant on 5th February, 1963, was received in this Court. Her attorney's affidavit accompanying the petition was signed on 21st February, 1963.
E The explanation which the applicant offers for this inordinate delay is that she was not possessed of and was unable to raise the necessary funds. On 22nd May, 1962, the respondent had issued a writ against her for the costs in the Court below. There was a return of nulla bona and on 7th June he applied for an order authorising the attachment of the debt of R8,000 under the antenuptial contract. The applicant thereupon F used such money as she could raise to satisfy the writ and to pay the costs of the subsequent application. The respondent was not prepared to allow her any time to pay the latter costs, and in the result the funds which would have been available for her petition to this Court, were exhausted, and she could not proceed. She contends that, although she G approached several institutions and persons, she was unable to raise a loan on the security of a cession of her claim under the antenuptial contract. In this connection she states:
'The difficulty I encountered in raising money on my claim under the antenuptial contract was that there was no certainty as to when payment could be claimed, as the estate was substantial and complicated and the filing of the liquidation and distribution account was likely to be postponed and the Master of the Supreme Court had in fact already H granted such postponements and might be prepared to grant further postponements. Moreover, there had been no acknowledgment by the executor of the debt under the antenuptial contract and this created uncertainty in the minds of lenders as to the enforceability of my claim, which might, in view of the unco-operativeness of the executor towards me, necessitate the incurring of legal expense in order to enforce the claim.'
At a later stage she succeeded in borrowing money from friends and was then able to lodge her petition.
There is, however, certain correspondence which she had with the
Steyn CJ
Registrar of this Court, which raises some doubt as to whether this is the real or entire explanation of the delay. On 11th August, 1962, she wrote to him to enquire whether she would be allowed to file her A application on 24th April, 1963, i.e. the date upon which her claim for R8,000 would become payable. She mentioned that the respondent had attached her assets
'knowing full well that I am destitute and living on public charity',
and proceeded to say:
'Should I be unsuccessful in the Appellate Division the antenuptial contract asset of £4,000 again will be attached.
B For this reason only, my attorney, Mr. J. Behrman, cannot file the appeal in Bloemfontein until such time as the £4,000 is paid to me, or is at least due to me - so that their costs can be set off.
I appeal to you not to victimise me as 'being out of time' if I lodge my appeal 24 April, 1963. I cannot do so before this date for the reasons stated.'
She was informed of the provisions of Rule 5 (1) of the Rules of this Court and that she should lodge her petition at her earliest C convenience. In her reply, dated 23rd August, she appealed to the Registrar to assist and advise her as she was destitute and without funds to pay an attorney, and stated:
'If I set the petition down now as suggested by you - and costs are awarded against me, the benefits under the antenuptial contract which only become due at the end of April will be sold in execution. As I D pointed out to you in my previous letter, the only buyers would be the executor who would then buy my claim of £4,000 for very little. This was pointed out to me by my previous attorney.
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