Leiman v Ostroff and Others

• Jurisdiction: South Africa
• Judge: Faure Williamson J
• Judgment Date: 24 August 1954
• Citation: 1954 (4) SA 457 (W)
• Court: Witwatersrand Local Division

Faure Williamson, J.:

The applicant has obtained a rule nisi calling B upon the respondents to show cause why she should not be granted an order declaring (a) that she is the owner of certain 15,599 shares in the fourth respondent, of certain 1,000 shares in the fifth respondent, of certain 200 shares in the sixth respondent and of certain 100 shares in the seventh respondent, (b) that she is entitled to have the shares registered in her own name in the share registers of the respective companies and (c) that as the owner of the said shares she is entitled C to exercise all the rights of a shareholder free from any control or interference by the first, second and third respondents. The rule dealt further with certain ancillary matters relating to the amendment of share registers, the invalidity of certain meetings and with costs and also operated as an interim interdict restraining any proceedings or resolutions at meetings of the companies in question at which the D applicant was not permitted to exercise full rights as the owner of the shares mentioned above. On the return day of the rule nisi, opposition to the rule was offered by the first three respondents.

These proceedings arise in the main out of a difference between the E applicant and the first three respondents as to the true meaning and effect of a joint will and codicil executed by the applicant and her former husband, one Solomon Ostroff, who died in Johannesburg on 13th February, 1947. The first three respondents are three of the six children of that marriage. The late Solomon Ostroff, who will be referred to as the testator, had in his lifetime conducted a large and F successful business as a general plumber and dealer in builder's requisites. Starting in 1925 under the name of General Plumbing, the business was later in 1938 converted into a company called the General Plumbing and Builders Supply Co. (Pty.) Ltd., herein referred to as General Plumbing. At the date of the testator's death the capital of this company was £33,000 divided into £1 shares, of which the testator G held 14,199 in his own name and 1,400 were owned by his wife, the present applicant, to whom he was married out of community of property. The remaining shares were held in different proportions by the six children of the testator and the applicant. Four of these children were sons and of these sons, one, the second respondent, had been associated with his father in the business from its beginning. The others had all H worked whole time in the business for some years prior to the testator's death. The first respondent was, with his father, an original director of the General Plumbing Company, not subject to rotation. In 1944 the company known as Genplum (Pty.) Ltd. was formed with headquarters in Durban. Its capital was 5,000 £1 shares of which the testator held 1,000 and the remainder were equally divided between the

Faure Williamson J

four sons. In addition to these two companies by means of which the 'family business' was respectively conducted in Johannesburg and Durban, two property owning companies were formed. The first, known as G.P. Properties (Pty.) Ltd., had a capital of 5,000 £1 shares of which 800 were held by each of the six children and 200 by the testator. The A second company, which owns the land and premises used for the business of General Plumbing, had a capital of 100 £1 shares of which 50 belonged to the testator and 50 to the applicant. These four companies are respectively the fourth, fifth, sixth and seventh respondents in the present proceedings.

The will, the terms of which constitute the germ of the dispute between the applicant and three of her sons, was executed by the testator and B the applicant on 12th June, 1941, and to it was added a codicil dated 2nd May, 1945. Clause 1 of the will (declared to be 'our joint and mutual last will') provided that

'subject to the conditions set out in the next succeeding paragraph, we hereby nominate, institute and appoint the survivor of us to be the sole and universal heir or heiress as the case may be, of all the property, C estate and effects left by the first dying of us'.

Clause 2 stated that

'we declare it as our will and desire and hereby direct that on the death of the first dying of us, an inventory of all the property, estate and effects of both of us shall be taken and the joint estate shall be massed and the survivor shall enjoy the usufruct of and the rents, income and profits of the joint estate with power to sell, mortgage, D alienate or otherwise dispose of during his or her lifetime the whole or any portion thereof and upon the death of the survivor, we do hereby nominate, institute and appoint our children alive at the date of the death of the survivor, to be the sole and universal heirs and heiresses of all the property, estate and effects which shall be left at the date of the death of the survivor'.

Provisions followed for the substitution of the issue of children in the event of children predeceasing and for the appointment of children as E heirs in the event of the simultaneous deaths of the testator and the testatrix. Clause 3 provided that in the event of the testator being the survivor, then in that event

'we do hereby nominate, institute and appoint the said Solomon Ostroff to be the sole executor and administrator of all the property, estate and effects of our joint estate . . . and he shall not be subject to the interference or control of any of our children'.

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