Ward v Sulzer

• Jurisdiction: South Africa
• Judge: Rumpff JA, Botha JA, Potgieter JA and Muller JA
• Judgment Date: 17 May 1973
• Hearing Date: 07 May 1973
• Court: Appellate Division

Holmes, J.A.:

This is an appeal against a decision by MULLER, J., sitting in the Durban and Coast Local Division, awarding the plaintiff certain relief relating to money and property, with costs on the attorney and client scale.

A A convenient starting point in unwinding the sorry snarl of facts is the year 1956. In that year Mrs. Ivy Hindshaw, of Johannesburg, made a will leaving her entire estate to her daughler, who was also to be executrix and administratrix. This daughter, now Mrs. Sulzer, was the successful plaintiff in the Court a quo and is the present respondent. B In 1958 Mrs. Hindshaw married George Robert Ward, out of community of property. He had witnessed the aforesaid will. He is a business man and is the appellant. In November, 1969, Mrs. Ward died. Her will was not found and Ward was appointed by the Master to administer her intestate estate. He drew the necessary estate accounts and wound up the C estate. The balance for distribution was R8 217. He paid this sum to himself in his personal capacity, as the surviving spouse and statutory heir under sec. 1 (b) of Act 13 of 1934, as amended. Anything in excess of R10 000 would have had to go to Mrs. Sulzer as the intestate heiress.

D In September, 1970, however, Mrs. Sulzer found her late mother's will among some old photographs. The Master properly re-opened the estate and appointed Mrs. Sulzer as executrix.

The liquidation and distribution accounts drawn by Ward did not reflect -

(a)

any right or title of the deceased to a half-share in property E known as stand 484 in Kew Township, Johannesburg, which had been purchased in 1960 for R15 000;

(b)

a sum of R5 000 said to be due by Ward to the deceased.

Accordingly, on 14th May, 1971, Mrs. Sulzer, in her capacity aforesaid, in effect sued Ward for -

(i)

Payment of the aforementioned sum of R8 217.

(ii)

Payment F of the sum of R5 000.

(iii)

An order declaring that the deceased was the owner of an undivided half share in stand 484, Kew Township, Johannesburg.

As to (i), this sum was paid by Ward after institution of the present G action. As to (ii), the defence was that this amount was paid during the deceased's lifetime. As to (iii), the defence was a denial that the deceased ever had a half interest in the property.

And so to trial. The evidence runs to several volumes. For the plaintiff, evidence was given by Mrs. Sulzer; her attorney, Mrs. Glover (sister of the deceased); and Mr. and Mrs. Sandars (family friends). The H defence witnesses were Ward; an attorney, and Ward's accountant.

After this full ventilation, the learned trial Judge made some very positive findings of credibility and fact in his judgment; ordered Ward to pay Mrs. Sulzer (in her aforesaid capacity) R5 000 with interest; declared her to be the owner of an undivided half share in stand 484, Kew Township, Johannesburg; granted certain ancillary relief; and awarded costs on the attorney and client scale.

With that prelude I turn more fully to the facts. According to the facts found proved, when the Wards were married in 1958 they lived

Holmes JA

in Johannesburg. He was a business man, interested in the dry cleaning business. She was a widow and had a little money of her own, with which she helped him. In the same year he bought a half share in a company which was carrying on a dry cleaning business on stand 484, Kew A Township. Then Mrs. Ward bought the other half share, so that they became joint owners of the business. They both worked in it. In 1960 they decided jointly to buy the property on which the business was carried on. The price was R15 000. The required deposit was R3 000, of which Mrs. Ward paid a substantial portion. A bond was passed in respect B of the balance. The instalments under the bond were paid by the jointly owned business. Ward had the transfer registered in his name on the pretext that it was not legally possible to register a property in the name of two persons. This became a bone of contention between them. The bond was discharged in June, 1964. In 1965 they sold their dry cleaning business (i.e. the assets of the owning company) for R24 000 C to a consortium which included John Jameson. The Kew property was leased to the consortium. It contained an option to purchase the property for R20 000. The rental was R200 per month. Ward paid half of it to Mrs. Ward every month until October, 1969. According to the evidence of the plaintiff (Mrs. Sulzer) this was because they owned the property jointly. According to Ward, this was in reduction of a loan of D R5 000 which his wife made to him. This issue was resolved by the Court against Ward's version. It is common cause that Mrs. Ward, out of her half share of the proceeds of the sale of the business in 1965, lent Ward R5 000, because he wanted to build a house near Durban and to start E a new business. The Court found that this loan was never repaid. The marriage relationship between the Wards began to deteriorate and there were frequent quarrels. Mrs. Ward often asked for her half share in the Kew property to be acknowledged formally and for the loan of R5 000 to be paid. It became almost an obsession with her. In June, 1969, she was far from well, and went to Johannesburg to consult her doctor and her F attorney. She returned with a typed sheet recording that she was entitled to a half share in the Kew property and to R5 000. Ward refused to sign it. She died in November of that year.

The foregoing resumé of the facts found proved was based on the accepted evidence of the plaintiff, Mr. and Mrs. Sandars, and Mrs. Glover (the G deceased's sister) and on a letter signed by Ward, and a record of his conversation with the plaintiff's attorney. I do not consider it necessary to deal with all this evidence in much detail because of the very positive and favourable findings of credibility made by the trial Court in respect of these witnesses, in which the learned Judge did not H lose sight of the plaintiff's own interest in the...