Glazer v Glazer, NO

JurisdictionSouth Africa
JudgeSteyn CJ, Van Blerk JA, Ogilvie Thompson JA, Williamson JA and Wessels JA
Judgment Date15 August 1963
Citation1963 (4) SA 694 (A)
Hearing Date17 May 1963
CourtAppellate 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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38 practice notes
  • Public Policy in Family Contracts, Part I: Agreements about Spousal Maintenance
    • South Africa
    • Juta Stellenbosch Law Review No. , January 2021
    • 26 January 2021
    ...3(2) and 10(4) of the RCMA pr ohibit coexisting c ivil and customar y marriages , except between the same people 44 Glazer v Glazer 1963 4 SA 694 (A); Copelowitz v Copelowitz 1969 4 SA 64 (C)45 The right to su pport ends at separat ion only in respect of the spous e whose blameworthy conduc......
  • MV Snow Delta Serva Ship Ltd v Discount Tonnage Ltd
    • South Africa
    • Invalid date
    ...v Corlett (1858) 12 Moo PCC 169 Essa v Divaris 1947 (1) SA 753 (A) Estate Agents Board v Lek 1979 (3) SA 1048 (A) Glazer v Glazer NO 1963 ( 4) SA 694 (A) I Congresso del Partido [1979] 1 All ER 1169 (QB) Industrial Council for the Furniture Manufacturing Industry) Natal v Minister of Manpow......
  • Daniels v Campbell NO and Others
    • South Africa
    • Invalid date
    ...to Fraser v Children's Court, Pretoria North, and Others 1997 (2) SA 261 (CC) (1997 (2) BCLR 153): referred to H Glazer v Glazer NO 1963 (4) SA 694 (A): referred Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA) (2001 (11) BCLR 1197): referred to Harksen v Lane NO and Others ......
  • Du Plessis NO v Strauss
    • South Africa
    • Invalid date
    ...Sien Leyds NO v Noord-Westelike Koöperatiewe Landboumaatskappy Bpk en Andere 1985 (2) SA 769 (A) op 780E - G. In Glazer v Glazer NO 1963 (4) SA 694 (A) op 706H - 707A was hierdie Hof per Steyn HR bereid, ten spyte van 'n foutiewe lesing van Groenewegen De J Legibus Abrogatis ad D 34.1.15 19......
  • Request a trial to view additional results
33 cases
  • MV Snow Delta Serva Ship Ltd v Discount Tonnage Ltd
    • South Africa
    • Invalid date
    ...v Corlett (1858) 12 Moo PCC 169 Essa v Divaris 1947 (1) SA 753 (A) Estate Agents Board v Lek 1979 (3) SA 1048 (A) Glazer v Glazer NO 1963 ( 4) SA 694 (A) I Congresso del Partido [1979] 1 All ER 1169 (QB) Industrial Council for the Furniture Manufacturing Industry) Natal v Minister of Manpow......
  • Daniels v Campbell NO and Others
    • South Africa
    • Invalid date
    ...to Fraser v Children's Court, Pretoria North, and Others 1997 (2) SA 261 (CC) (1997 (2) BCLR 153): referred to H Glazer v Glazer NO 1963 (4) SA 694 (A): referred Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA) (2001 (11) BCLR 1197): referred to Harksen v Lane NO and Others ......
  • Du Plessis NO v Strauss
    • South Africa
    • Invalid date
    ...Sien Leyds NO v Noord-Westelike Koöperatiewe Landboumaatskappy Bpk en Andere 1985 (2) SA 769 (A) op 780E - G. In Glazer v Glazer NO 1963 (4) SA 694 (A) op 706H - 707A was hierdie Hof per Steyn HR bereid, ten spyte van 'n foutiewe lesing van Groenewegen De J Legibus Abrogatis ad D 34.1.15 19......
  • Minister of Safety and Security v Van Duivenboden
    • South Africa
    • Invalid date
    ...at 339C - D Calveley and Others v Chief Constable of the Merseyside Police and Other Appeals [1989] 1 All ER 1025 E Glazer v Glazer NO 1963 (4) SA 694 (A) at 702H Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294 Hughes v National Union of Mineworkers [1991] 4 All ER 278 (QB) Immelman v......
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5 books & journal articles
  • Public Policy in Family Contracts, Part I: Agreements about Spousal Maintenance
    • South Africa
    • Juta Stellenbosch Law Review No. , January 2021
    • 26 January 2021
    ...3(2) and 10(4) of the RCMA pr ohibit coexisting c ivil and customar y marriages , except between the same people 44 Glazer v Glazer 1963 4 SA 694 (A); Copelowitz v Copelowitz 1969 4 SA 64 (C)45 The right to su pport ends at separat ion only in respect of the spous e whose blameworthy conduc......
  • Erfregtelike Onwaardigheid: Enige Lesse te Leer vir die Suid-Afrikaanse Reg uit die Nederlandse Reg?
    • South Africa
    • Juta Stellenbosch Law Review No. , August 2019
    • 16 August 2019
    ...het nie) ’n a anspraak op ’n geldsom uit die erat er se best orwe 67 Carelse v Esta te De Vries 1906 23 SC 532; Glazer v Glaze r NO 1963 4 SA 694 (A) 706H-707A68 1952 4 SA 43 (T)69 45B en 48F70 52G71 Corbett et al L aw of Succession 8 472 Sien, byvoorbe eld, Hof ‘s-Hertogenbosc h (23 Septe......
  • A grandchild’s claim to maintenance from a deceased grandparent’s estate
    • South Africa
    • Juta Acta Juridica No. , August 2019
    • 15 August 2019
    ...III below.3Act 27 of 1990. This Act was passed as the legislative response to theAppellate Division’sdecision in Glazer v Glazer,NO 1963 (4) SA 694 (A). The Glazer case is discussed in Part III(2)below. TheAct has been subject to constitutional scrutiny in: Robinson and Another v Volks NOan......
  • Testamentary freedom versus testamentary duty: in search of a better balance
    • South Africa
    • Juta Acta Juridica No. , August 2019
    • 15 August 2019
    ...and Nov 117.5.91The extent to which Justinian’s protections were adopted as part of Roman-Dutch law isdiscussed in Glazer v Glazer,NO 1963 (4) SA 694 (A), in which Steyn CJ concluded that theyhad either never formed part of the Law of Holland or had been abrogated by disuse. Maine(n 65) att......
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