Roux NO and another v Stemmet NO and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Pangarker AJ |
| Judgment Date | 22 August 2023 |
| Citation | 2023 JDR 3183 (WCC) |
| Hearing Date | 16 August 2023 |
| Docket Number | 17064/2022 |
| Court | Western Cape Division, Cape Town |
Pangarker AJ:
Introduction
The Plaintiffs are the Trustees of the Willemse Boerdery Trust and instituted an action in October 2022 against the Defendants, who are respectively, the Executor of the deceased estate of the late Leon Daniel Stemmet, the three adult children of the deceased and the Master of the High Court. The late Leon Daniel Stemmet is referred to as “the deceased” in this judgment. At this stage of the proceedings, the Master of the High Court does not participate in the matter.
I am called upon to determine four grounds of exception raised by the second to fourth Defendants, and in this regard, it is necessary at the commencement to set out the Particulars of Claim. In doing so, I exclude a reference to paragraphs 1 to 8 thereof which merely recite the parties’ details. The Plaintiff’s case as pleaded from paragraphs 9 to 32 plus the Orders sought, are set out below.
The Particulars of Claim and relief sought
The deceased executed a will on 23 October 2018 at Montagu in terms of which his entire estate was bequeathed to his children, the second to fourth Defendants. A copy of the Will is attached to the Summons and Particulars of Claim as “POC2”. The first Defendant was nominated as the Executor of the deceased estate [1] .
2023 JDR 3183 p4
Pangarker AJ
In July 2021, the deceased contracted the COVID 19 virus and as a result, he was admitted as a patient to the Medic-Clinic Hospital, Worcester. On 25 July 2021, the deceased indicated to Gawie Willemse [2] that he wished to revoke his 2018 Will and requested the latter’s assistance in this regard. This request was repeated to Willemse on 26 and 27 July 2021, respectively.
On 30 July 2021, and assisted by Medi-Clinic personnel, the deceased made contact with Willemse via video call. During this video call, the deceased again expressed to Willemse, his wish to revoke the 2018 will and that his final instructions regarding the disposal of his estate were that his entire estate was be left to the Willemse Boerdery Trust. It is pleaded that during the video call, the deceased requested Willemse’s help to engage attorneys for purposes of drafting a will reflecting his final instructions.
After the video call, and on 30 July 2021, the deceased was transferred to the intensive care unit (ICU) of the hospital. In accordance with the deceased’s wishes, Willemse conveyed the deceased’s final instructions regarding the disposal of his estate to attorney Louis Benade to prepare a will in accordance with the deceased’s instructions as expressed in the aforementioned video call.
Benade did as requested and on 31 July 2021, provided Willemse with a duly prepared will, “POC5”. On the same day, Willemse attended the Medi-Clinic to deliver “POC5” to the deceased, but he was refused access to the ICU and prevented from delivering it personally to the deceased due to the latter’s COVID 19 diagnosis and COVID
2023 JDR 3183 p5
Pangarker AJ
restrictions in place at the Medi-Clinic [3] . It is further pleaded that Willemse’s request to the hospital personnel to deliver “POC5” to the deceased, was refused.
Willemse left “POC5” in the care of the hospital personnel, with a request that it be delivered to the deceased as soon as possible. It is pleaded that during the evening of 31 July 2021, Medi-Clinic personnel attempted to deliver “POC5” personally to the deceased but the latter was unable to receive the document personally when it was delivered as he had been induced into a coma for purposes of being intubated.
The Plaintiffs plead that the deceased was unable to execute the 2021 will [4] or otherwise comply with the applicable formalities prescribed by the Wills Act 7 of 1953. The deceased did not recover from the coma and passed away on 8 August 2021.
At paragraph 31, it is pleaded that as a result of the deceased’s COVID 19 diagnosis and the COVID 19 policies in place at the Medi-Clinic, the deceased was prevented from receiving the 2021 will on 31 July 2021 and it was thus impossible for him to execute it or to otherwise comply with the applicable formalities prescribed by the Wills Act in connection therewith. The deceased intended the content of the 2021 will, and thus the 2021 will, to constitute his final instructions regarding the disposal of his estate.
2023 JDR 3183 p6
Pangarker AJ
The Plaintiffs’ claims are thus the following [5] :
|
|
Prayer (a) - |
an order declaring “POC2” (the Will signed by the deceased on 23 October 2018) to be the revoked in accordance with section 2A(c) of Act 7 of 1953; |
|
|
Prayer (b) - |
an order directing the fifth Defendant to accept “POC5” as the will of the deceased. |
The Rule 23 (1) Notice
Subsequent to service of the Summons, the Defendants gave notice in terms of Rule 23(1) that they intend to except to the Particulars of Claim on the basis that the pleading is vague and embarrassing. I pause to point out at this juncture that the objections were also that the pleading lacks averments necessary to sustain a cause of action. The Defendants raised seven grounds of complaint initially and requested the Plaintiffs to remove the cause of complaint. Some of the complaints were minor and by virtue of a Notice of Amendment to the Particulars of Claim, three of the complaints were indeed addressed.
During argument, counsel for the Defendants confirmed that these minor issues were not proceeded with and this is in fact the case in the Defendants exception dated 28 November 2022, where they persist with four grounds of exception. It is these
2023 JDR 3183 p7
Pangarker AJ
exceptions which form the subject of this judgment. Before considering the exceptions in more detail, the principles relevant to exceptions warrant consideration.
Legal principles related to exceptions
An exception is a legal objection to a defect in the opponent’s pleading. The Court’s approach to exceptions should be a sensible one and not overly technical [6] . Furthermore, an exception is a mechanism “to weed out cases without legal merit [7] ”. The facts as pleaded must be assumed to be correct [8] .
In respect of an exception taken on the basis that the pleading lacks averments necessary to sustain a cause of action, it is perhaps useful to be reminded of the test as expressed by Wallis JA in Trustees for the time being of Children’s Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others [9] , as follows:
“The test on exception is whether on all possible readings of the facts no cause of action is made out. It is for the defendant to satisfy the Court that the conclusion of law for which the plaintiff contents cannot be supported upon every interpretation that can be put upon the facts.”
2023 JDR 3183 p8
Pangarker AJ
The main purpose of an exception is to avoid a situation where unnecessary evidence is lead [10] . Furthermore, the pleading must be considered holistically and no paragraphs should be read in isolation. A pleading which is vague and embarrassing is one which is capable of more than one meaning or the meaning is not capable of reasonable ascertainment. Furthermore, where averments are contradictory or the meaning thereof is so unclear that the opponent (excipient) is unable to determine ex facie the pleading, the case he/she has to meet, the pleading is regarded as vague and embarrassing [11] .
In the event that the excipient fails to discharge the onus on him where the objection is that the pleading discloses no cause of action (or no defence), the exception should not be upheld. [12]
The exceptions taken to the Particulars of Claim
For reasons which become evident during the judgment, I discuss the second exception first, thereafter the first and fourth exceptions and lastly, the third exception.
2023 JDR 3183 p9
Pangarker AJ
The second ground of exception
The second exception is that the Plaintiffs have applied for an order declaring the 2018 will to be revoked in accordance with section 2A of the Act. The Plaintiffs rely specifically on section 2A (c) of the Act which provides that a Court may declare a will to be revoked if it is satisfied that a testator, in this (sic) the deceased [13] :
“. . .drafted another document or before his death caused such document to be drafted by which he intended to revoke his will or part of his will” and the court shall the (sic) “declare the will or part concerned, as the case may be, to be revoked.”
Furthermore, the Plaintiffs plead that the deceased never had sight of the 2021 will, being the document that was allegedly intended to have revoked the 2018 will, it was accordingly not possible for the deceased to have clothed the 2021 will with the necessary animus revocandi. The 2021 will accordingly does not satisfy the requirements for the revocation of the 2018 will as set by section 2A (c) of the Act as the deceased had not drafted or caused the 2021 will to be drafted. The Defendants state that this renders the Plaintiffs’ Particulars of Claim vague and embarrassing, alternatively, it lacks the averments to sustain a cause of action for the relief prayed for in prayer (a) of the Particulars of Claim.
2023 JDR 3183 p10
Pangarker AJ
This exception relates to the Plaintiffs’ prayer that the 2018 will be revoked by “POC5”. The Defendants rely on Henwick v the Master and Another [14] and Letsekga v The Master and Others [15] that the requirements of section 2 A (c) of the Act were not met in relation to “POC5”. The submission was further that the deceased never saw “POC5”, hence could not have clothed it with the requisite animus revocandi. Furthermore, it is submitted on behalf of the Defendants, that the intention of the testator to revoke a previous will must have been communicated in written form.
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