Harper v Absa Trust Limited NO and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Allie J |
| Judgment Date | 14 September 2023 |
| Citation | 2023 JDR 3440 (WCC) |
| Hearing Date | 14 September 2023 |
| Docket Number | 15794/2022 |
Allie J:
The applicant seeks the following relief, namely, to:
declare the written agreement of sale entered into between herself and the fifth respondent allegedly acting in his capacity as curator bonis of the patient at the time, on Andreas Jacobus Frederick Christoffel Bester, now deceased (“the deceased”) for the purchase of the immovable property
2023 JDR 3440 p2
Allie J
situate at 4 Louw Street, Elim, Kuilsriver, Western Cape (“the immovable property”) valid and enforceable; and
order that ABSA Trust Limited in its capacity as executor of the deceased estate of Bester, pass registration of transfer of the said immovable property into the name of the Applicant, subject to payment of all transfer and registration fees by the Applicant.
Third Respondent, who is a legatee to who the immovable property was bequeathed, in terms of the Last Will dated 16 October 2009 of the deceased, opposes the application.
The remaining Respondents abide the decision of this Court.
Henceforth, a reference to Respondent is a reference to Third Respondent who is the only Respondent that opposes this application.
It is regrettably necessary to record that the Applicant’s Counsel filed a Practice Note with the Acting Judge President of this Division that does not comply with the Practice Directions in this Division. More specifically, Practice Direction no. 43 which specifies how matters, where the papers exceed 200 pages, should be dealt with in a Practice Note so that the matter can become an early allocation.
The purpose of an early allocation is to grant the judge seized with the matter sufficient time to read and consider the papers where they exceed 200 pages.
2023 JDR 3440 p3
Allie J
In this case, the indexed and paginated papers are 391.
Practice Direction 43 reads as follows:
Early Allocation of opposed matters and filing of heads of argument in all Fourth Division matters
If any matter on the continuous roll requires early allocation, the legal representatives for the plaintiff, excipient or applicant (as the case may be), shall after compliance with the provisions of Rule 62 (4),deliver to the secretary of the Judge President, not less than seven (7) days before the date of hearing, the relevant court file, together with a practice note to that effect, setting out the case number, the names of the parties and their legal representatives, and the date of hearing. Practitioners are reminded that “days” means court days.
The practice note together with the heads of argument must be filed in the court file prior to the file being presented to the Judge President for allocation.
Parties must indicate which pages should not be read.
Matters will be deemed to require early allocation, as contemplated above: -
(a)
Where the papers (including annexures) in the matter exceed 200 pages; or
(b)
Where the issues are such that the Judge allocated to hear the matter would, in order to prepare for the hearing, reasonably need to receive the papers earlier than he or she would normally do so (that is, the day before the hearing).
Matters will not be allocated if the requirements are not met.
Where heads of argument have been filed electronically and acknowledgement of receipt via e-mail is not received within two (2) days, the duty remains on the person filing the heads of argument to ensure that such documents were in fact received.” (emphasis added)
The Practice Note filed on behalf of the Applicant is dated 28 August 2023 and stamped by the Registrar on 29 August 2023.
2023 JDR 3440 p4
Allie J
The matter was set down for hearing on 4 September 2023, therefore 7 court days before 4 September 2023, would be 24 August 2023.
Applicant’s attorney and counsel failed to ensure that the Practice Note was filed on 24 August 2023 in compliance with Practice Directions no. 43.
Applicant’s counsel failed to mention in the Practice Note that the pages exceed 200 and instead stated that the pages exceed 100, thereby creating the impression that the file ought not to be an early allocation.
I am of the view that since the indexed and paginated papers are contained in one arch lever file, it ought to have been strikingly obvious that the pages exceeded 200 and no reason has been advanced as to why Applicant’s counsel failed to mention that it exceeds 200 pages.
I fail to appreciate the purpose of the Practice Directions, if they are not being followed by the legal representatives nor are compliance with those directions being enforced by the office of the Acting Judge President.
The conduct described above concerning non-compliance with Practice Directions, undermines the efficient administration of justice in this Division.
2023 JDR 3440 p5
Allie J
Common cause facts
It is not in dispute that he Applicant went to live with the deceased who cared for her when she was approximately 12 years old and that she completed her studies in 2009 while living with the deceased at the immovable property.
It is common cause that the deceased operated a business at that time and he closed the business in 2011.
The deceased’s two adult children relocated to New Zealand many years ago.
The deceased and his former wife, Maria Elizabeth Bester were divorced before the applicant went to live with the deceased.
After closing his business, the deceased was diagnosed with dementia.
On 4 September 2015, the fifth respondent was appointed by the court as curator bonis of the deceased subject to the fifth respondent holding a valid Fidelity Fund certificate.
The Fifth Respondent failed to apply to the Master of the High Court in terms of section 72 of the Administration of Estates Act for the issuing of Letters of Curatorship to him.
2023 JDR 3440 p6
Allie J
According to the Fifth Respondent, a practising attorney, he did not know that he had to apply for Letters of Executorship and upon realising that, he sought to do so after the deceased had passed away.
The deceased passed away on 3 June 2021.
A different immovable property is bequeathed to the applicant in terms of the Will.
In the Will, the deceased bequeathed R1000 000 to each of his two children, R1000 000 to his former wife, R15000 000 to the third respondent and R750 000 to his brother.
Applicant’s allegations
According to applicant since 2009, she took it upon herself to care for the deceased by doing all the shopping, purchasing his medication and preparing meals in the evenings.
During 2012, the deceased allegedly became forgetful, therefore Applicant took him to a doctor who diagnosed him with dementia.
During 2013, the deceased’s condition deteriorated to the point where he could no longer be left alone and required full time care.
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Allie J
In April 2013, the applicant allegedly took the deceased to a mental health care specialist who provided the necessary note and later affidavit in support of an application for the appointment of a curator bonis.
In June 2013, the applicant employed a full time live-in nurse at a cost of R5000 per month, for which applicant allegedly paid.
Thereafter the deceased didn’t want anyone in his personal space, so the Applicant employed her mother, who had previously been in a romantic relationship with the deceased, to take care of the deceased. Applicant allegedly paid her mother R3000 per month to do so.
On 4 December 2014, the specialist again diagnosed the deceased with dementia and recommended that a curator bonis be appointed for the deceased.
During February 2015, the general practitioner doctor that the deceased usually saw, said that the deceased’s dementia had deteriorated over the last 6 months and recommended that the deceased receive 24 hour care in a specialised environment.
The deceased was moved to various care facilities such as Klaradyn retirement village between 2014 and 2021 and later to Huis Marie Louw in 2021.
The applicant alleges that she paid for all the care facilities that the deceased was admitted to.
2023 JDR 3440 p8
Allie J
On 31 May 2016, the Applicant concluded a written agreement of purchase and sale with the Fifth Respondent, in terms of which she sought to purchase the immovable property owned by the deceased.
The purchase price for the immovable property is stated in the agreement as being R1361 000,00 less a purported value of a usufruct in favour of the deceased of R726 223,61, leaving a cash portion of R634 776,39 of which Applicant is alleged to have paid R150 000 already as at the date of execution of the agreement, leaving a balance of R484 776, 39.
The Fifth Respondent signed a letter on 16 October 2021, stating that the Applicant had paid the full purchase price of R634 776,39.
Applicant alleges that she paid the full purchase price over a period of years stretching from 2009 until 2021 when the deceased passed away by paying certain expenses for the deceased.
That allegation amounts to a period of 12 years in which the Applicant allegedly paid all the deceased’s expenses.
As proof of those payments, applicant annexes her own summary of amounts paid without primary source vouchers and without her bank statements reflecting that she had paid expenses to the value of R634 776, 39.
The agreement of sale contains the following suspensive conditions:
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Allie J
SUSPENSIVE CONDITION
This Agreement is subject to the suspensive condition that the Master of the High Court approve the purchase of the immovable property by the Purchaser on these terms and...
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