Govender NO and Others v Gounden and Others

• Jurisdiction: South Africa
• Judge: K Pillay J, Koen J and Ploos Van Amstel J
• Judgment Date: 24 August 2018
• Citation: 2019 (2) SA 262 (KZD)
• Docket Number: AR 452/2015
• Hearing Date: 24 August 2018
• Counsel: DD Naidoo for the first and second appellants. H Gunase for the third and fourth appellants. S Morgan for the first and second respondents.
• Court: KwaZulu-Natal Local Division, Durban

Koen J (K Pillay J and Ploos van Amstel J concurring):

Introduction F

[1] The crisp issue arising in this appeal is whether a spouse who is married in community of property requires the consent of the other spouse to that marriage to validly renounce the benefits of an intestate inheritance which would otherwise accrue to such spouse and/or the joint community estate.

Relevant background G

[2] The first respondent was married to Mr Gopalsamy Gounden (Mr Gounden) on 2 October 1974. One child, the second respondent, was born of that marriage. The first respondent and Mr Gounden subsequently separated. They thereafter led separate lives for approximately 35 years, but never formally divorced. H

[3] After his separation from the first respondent Mr Gounden lived with the third appellant as his life partner. From that relationship the fourth appellant was born. I

[4] The first respondent's sister, Siva Lutchmi Somnaidoo (the deceased), died intestate on 19 August 2008. The first respondent is an intestate heir in the estate of the deceased.

[5] Mr Gounden died testate on 6 March 2012. The first and second appellants are the duly appointed executor and executrix to the estate of the late Mr Gounden and the first respondent. J

Koen J (K Pillay J and Ploos van Amstel J concurring)

[6] A The first respondent has renounced the inheritance from the deceased's estate. The formal renunciation in writing was signed by the first respondent at Isipingo on 11 July 2013 and records that she renounces 'any inheritance or bequests due to me as an intestate heir from the estate of the late Siva Lutchmi Somnaidoo, estate No 17603/2008 DBN'. B It appears that this document was executed, as it was formally required, but that the actual renunciation had occurred informally and that the intention to do so had been formed well prior to that date, although the exact date is not specified. It is that renunciation which gave rise to the application and judgment forming the subject of this appeal.

[7] C The Master of the High Court, Durban, is the third respondent. The third respondent appointed the fourth respondent as the executrix in the estate of the deceased on 25 May 2012.

[8] On 21 September 2012 a first liquidation and distribution account in D the estate of the deceased was lodged. It was examined by the third respondent and queries were raised. Further amended accounts were lodged subsequently. On 5 December 2012 a further amended account was lodged and examined. On 3 January 2013 the third respondent granted permission to advertise the account in terms of s 35(5)(a) of the E Administration of Estates Act 66 of 1965.

[9] An objection was then lodged to the account by the executors of the Estate Gounden. The basis of their objection is that the amount awarded to the first respondent vested in the joint estate of Mr Gounden and her, and subsequent to his death in the joint estate of the late Mr Gounden and the first respondent as his surviving spouse, which they administer. F An objection was also raised by the first respondent based on her renunciation which was not given effect to in the accounts.

[10] The third respondent ruled on the objections and on 20 August 2013 determined that the 'inheritance due to [the first respondent] . . . G forms part of her joint estate with her husband who has subsequently died'. The third respondent was not prepared to accept the renunciation signed by the first respondent alone as a valid renunciation.

[11] As a result of these rulings, the first and second respondents brought an application against the third respondent [1] , the fourth respondent, H [2] and the first and second appellants [3] as the executors in the estate of the late Gounden, claiming the following relief:

'1.

That the letter of renunciation by Lutchmi Gounden, [4] Annexure C to the founding affidavit is declared valid and binding and enforceable in respect of the estate of the late Sivalutchmee Somnaidoo, I estate No 17603/2008/DBN.

Koen J (K Pillay J and Ploos van Amstel J concurring)

2.

That the First Respondent [5] is hereby directed to accept the A aforesaid renunciation as valid and binding and enforceable.

3.

That the First Respondent is ordered to pay the costs of this application, alternatively, the First Respondent is ordered to pay these costs jointly and severely [sic] with the Second, Third and Fourth Respondents in the event of the Second, Third and Fourth Respondents opposing this application. B

4.

Further and/alternative relief' [6]

[12] In the application the first respondent explained the events giving rise to her renunciation as follows:

'12.1

In the event that I accept the benefit from Siva Lutchmee's estate, C such benefit would, by virtue of my marriage to Gopalsamy, accrue to the joint estate of myself and Gopalsamy (Gopalsamy's estate since he's deceased).

12.2

Since Gopalsamy bequeathed his estate to his son [7] and to Miriam [8] and others the net result would be that half of the benefit that I am to receive from my sister, Siva Lutchmee would go to Gopalsamy's beneficiaries. D

12.3

For obvious reasons I am opposed to that.

13. 13.1

In order to avoid the benefit from my sister's estate accruing to the community of property estate of myself and Gopalsamy, I renounced my benefit from the estate Siva Lutchmee. [9]

13.2

A copy of the letters of renunciation is annexed hereto marked C.' E

[13] On 19 November 2014 D Pillay J granted the relief claimed in paras 1 and 2 of the notice of motion and directed that the costs of the application be borne by the appellants jointly and severally, one paying the other to be absolved. F

[14] The present appeal lies against that judgment. The grounds of appeal relied upon are as follows:

2.1

The learned Judge erred in finding that an inheritance vests in an intestate heir when dies venit occurs.

2.2

The learned Judge ought to have found that an inheritance vests in an intestate heir when dies cedit occurs. G

2.3

The learned Judge should have found that when dies cedit occurs the inheritance not only vests in the intestate heir but in the joint estate where the intestate heir is married in community of property.

2.4

The learned Judge should have found and erred in not finding that when dies cedit occurs the consent of the other spouse where the H parties are married in community of property is required in order to renounce any inheritance.

Koen J (K Pillay J and Ploos van Amstel J concurring)

2.5

A The learned Judge erred in applying a strict interpretation of the provisions of s 15(4)(ii) of the Matrimonial Property Act 88 of 1984.

2.6

The learned Judge ought to have interpreted the aforesaid section so as to read in the words or reject (renounce) in order to give the said section a sensible and businesslike interpretation.

2.7

B The learned Judge should have found that it was an implied provision of the aforesaid section that if the consent of a spouse is required to receive an inheritance such consent must be required to reject or renounce an intestate inheritance.'

The application to lead further evidence on appeal

[15] C Subsequent to the appeal being noted, the first respondent filed an application 'for leave to adduce further evidence by way of affidavit' at the hearing of the appeal. She alleges that the need for adducing such further evidence arises from the first and second appellants, in their heads of argument for the first time, introducing the argument that the D renunciation was filed out of time, although that was not raised before the court a quo and was not a ground of appeal. The affidavit records that, although the 'alleged lateness is not an issue before this hearing', it was 'imperative' that the first respondent explain 'the apparent lateness of the renunciation'. She then explains that the fourth respondent was personally informed on more than one occasion that she had elected to E renounce her intestate benefit long before the estate account was drawn, and that the liquidation and distribution accounts should have been amended to take account of that decision, but that the fourth respondent refused to do so. Her allegations in this regard were confirmed by her brother Krishna Naidoo in a confirmatory affidavit.

[16] F The application to adduce further evidence was opposed by the first and second appellants. They contend that the appeal court was not precluded from considering whether the first respondent's renunciation was filed out of time and whether the claim of a renunciation was inconsistent with various arguments advanced by the first respondent. G They submit that the renunciation was designed purely for the purposes of defeating the valid claim of her late spouse, Mr Gounden, or his estate.

[17] In an affidavit filed by the fourth respondent she explains that the intestate estate of the deceased was previously administered personally H by the first respondent's brother who on 9 January 2012 instructed her to attend to the finalisation thereof. On or about 1 June 2012 he instructed her to prepare a liquidation and distribution account on the basis that the first respondent had renounced her intestate inheritance in favour of the second respondent. The fourth respondent, however, I refused to do so based on her belief that the consent of the first respondent's spouse, Mr Gounden, was required and he had not presented a written renunciation by the first respondent, with the necessary spousal consent. It is...