SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE  HIGH COURT  OF SOUTH AFRICA

(GAUTENG  DIVISION, PRETORIA)

CASE  NO: 45323/2015
                                                                                     DATE: 1 JUNE 2016
In the  matter between:

PADAYACHY   NO,  SANTHAM GANESAN	Applicant

and

PADAYACHY,  RAMNADAN

CITY   OF  TSHWANE  METROPOLITAN  MUNICIPALITY
THE MASTER  OF THE  HIGH COURT, PRETORIA

First Respondent

Second Respondent Third Respondent

JUDGMENT

MULLINS AJ:

INTRODUCTION:

[1]	There  are two  applications  before me, viz:

[1.1]	The  applicant's  application  for  eviction  of the first  respondent (and all persons occupying  through  or under him) from  [Erf 4…  Laudium,

2

Tshwane, situated at ...Emerald Street, Laudium, Tshwane ]("the property"); and

[1.2] The first respondent's counter-application to interdict the applicant from selling or encumbering the property pending (a) the first respondent's bringing of an application to review the third respondent's approval in terms of Section 47 of the Administration of Estates Act 66 of 1965 ("the Administration of Estates Act") of the applicant's sale of the property, and (b) the first respondent's making an offer to purchase the property at a sworn evaluation within 30 (thirty) calendar days of the date of such evaluation subject further to the first respondent's being granted finance within 60 (sixty) further calendar days, or (c) the termination of a claim which the first respondent might make against the estate of which the applicant is the executor, the estate of the late Marioor Moonsamy ("the estate").

[2]	The applicant and the first respondent are brothers.

The applicant brings the application in his capacity as executor of the estate. The second and third respondents are the City of Tshwane (second respondent) and the Master of the High Court (third respondent), who are cited only for what interest in the matter they might have, and who have not involved themselves in the proceedings.

3

A   RELEVANT CHRONOLOGY:

[3]		It is useful to view the disputes between the parties with which I will  deal below against the background of a relevant chronology of events:

[3.1] The mother of the applicant and first respondent, Marioor Moonsamy ("the deceased"), was born on 9 April 1919. She was thus 85 years old at the time of her death on 21 June 2003.

[3.2] Born on respectively 17 March 1951 (the applicant) and 22 December 1953 (the first respondent), the applicant and the first respondent are now 65 (the applicant) and 62 (the first respondent) years old.

[3.3] The property was transferred into the name of the deceased on 30 May 1980, under Deed of Transfer T32673/1980. It is still registered in her name.

[3.4]	The deceased was at all material times resident in the property.

[3.5] At some stage, the first respondent and his family moved in to the property with the deceased.

I say "at some stage", because when this happened is in dispute. The applicant says  that it was only at the time of the   deceased's
4

death,	whereas	the	first	respondent	says	that	it	was	in approximately  1973, even before he got  married  in  1977.

I think  I can fairly  say that  both on the  rule  in  Plascon-Evans  Paints Limited v Van Riebeek Paints (Pty) Limited1984 (3) SA 623 (A) and on the probabilities, the first respondent's version in this  regard appears more likely, and I accept  that  the first  respondent and  his family    lived    with    the    deceased    in    the     property   for    some considerable  time  before the deceased's  death.

[3.6]	The deceased passed away on 21 June 2003.

[3.7] The deceased left behind a Will (signed by  her  on 2  February 1998) appointing the applicant as executor of her estate, and bequeathing same in the following terms in clause 3 thereof:

3.

I bequeath my entire estate to my four children, namely:

Santham Ganesan Padayachy Ramanadan Padayachy Sooboo Luxmi Padayachy

Vajay Luxmi Padayachy

in equal shares, subject to the following conditions:

3.1	If any one of my children shall predecease me such share accrue [sic] in equal shares to the remaining children;

3.2	All benefits accruing to any of my heirs out of my estate will not fall into or form part of the joint estate of any heirs and will remain free from the interference, control or debts of any spouse;

3.3	In the event of my immovable property being sold by my heirs my son RAMANADAN PADAYACHY will have the option to buy the property within 12 (twelve) months after my death at a sworn appraisement value and will the said amount be divided as per paragraph 3.

[3.8] What the reason was  for  the delay  is unexplained  in the papers, but the applicant was only appointed executor on 6 May 2011.

[3.9] On 4 February 2015, an appraiser of properties, Mr Nico Erasmus, furnished to the applicant, in his capacity as executor of the estate, an appraisal of the property, which he valued  as at that  date  at R1 500 000,00.

[3.10] On 6 May 2015, the third respondent authorised  the  applicant in terms of Section 47 of the Administration of Estates Act to sell the property  by public auction.

[4]   What  I outlined  in paragraph  [3] are the  bare  bones  of the  chronology  of the matter.  There  are of course other events  and, for the sake of   painting a more complete picture,  I list some of  them:

[4.1] On 6 February 2015, the applicant's attorneys wrote to the first respondent's attorneys. The letter is a long one, but it included the following  paragraphs 6 to 8:

6.	You will note from the attached valuation [Nico Erasmus' appraisal] that the property is worth R1 500 000,00. In terms of clause 3.3 of the Will your client were [sic] given a [sic] option to buy the property within 12 months after death at a sworn appraisement value....

7.	Our instructions are that your client has obstructed the executor to do the sworn appraisement up to date hereof. However we have now done an appraisement and are giving your client an option to buy the property at R1 500 000,00. This option period has already expired. Your client is now given the option to buy the property at R1 500 000,00 which option he must exercise within 10 days of date hereof being the 15th  of February 2015. Should we not receive an indication that your client wish [sic] to buy the property at R1 500 000,00 we will proceed to arrange a public auction of the property thereafter.

8.	Should your client not exercise this option by the 15th of February 2015 you are hereby informed that the property must be vacated not later than
6.	

h

the 30th of March 2015 ....

[4.2] The first respondent didn't exercise the aforementioned option. He says the following in this regard in paragraph 22.4 of his answering affidavit:

The value of R1 500 000,00 is in dispute. No sworn appraisement was  done and it is uncertain as to whether the appraiser [Nico Erasmus] has been appointed and complies with the provisions contained in Section 6 of the Act.

[4.3] The applicant and the first respondent either did or did not  enter into two simultaneous transactions, written on official SAPS documents in the form of affidavits, signed by each, as follows:

[4.3.1] The document signed by the first respondent:

That I Ramnadan Padayachy hereby agree to pay Santham Ganesan Padayachy the sum of fifteen thousand rand for 25% of his shares re Estate No 7343/2011 M Moonsamy.  I agree to pay

RS 000,00 at the end of May RS 000,00 at the end of June RS 000,00 at the end of July

does seem to suggest that there is truth to the first respondent's allegations.

This document serves as an official agreement between us and is legal and binding. The initials SGP to be signed next to each month, acknowledging receipts of amounts as indicated.

[4.3.2] The document signed  by the applicant:

That I Santham Ganesan Padayachy under sound mind and body hereby declare that I hereby withdraw my position as executor to the Will re Marioor Moonsamy dated 2-2-1998 with immediate affect [sic]. I also appoint Ramnadan Padayachy 5312225123086 as executor and give up and transfer of my 25% shares of Estate No 7343/2011 M  Moonsamy Erf No 436 to him. The property in question is situated at 233 Emerald Street Laudium. I also agree that this document is legal and binding that I also give up any claim whatsoever to the property - thank you.

THE ISSUES:

[5]	Against that background, these are the issues which I have to decide:

[5.1]	Whether	the  first	respondent	is  in   lawful  occupation	of  the property;

.

[5.2] If not, whether the applicant is entitled to an eviction order in  terms of Section 4(1) of the Prevention of Illegal Occupation from and Unlawful Occupation of Property Act 19 of 1998 ("PIE"); and

[5.3] Whether I should exercise my discretion  in favour  of granting the first respondent's counter-application.

[6]	I will address each of these issues in what follows.

GETTING  SOMETHING   OUT OF THE WAY  FIRST:

[7] Advocate  Fitzroy  (who  represented  the first  respondent)  and Advocate Nel (who represented the applicant) were in agreement before me that the transaction (or illusions of transactions) of 30 May 2013 adverted to by me in paragraph [4.3] above, whilst interesting, are legally irrelevant.

They are legally irrelevant for a number of reasons, including (a) the fact that any purported transfer of executorship from the applicant to the first respondent is not effective unless recognised by the third respondent, and
(b) the fact that both documents refer to a 25% share in the estate (or in the property), and not to a sale of the property as such.

IS	THE	FIRST	RESPONDENT	IN	LAWFUL	OCCUPATION	OF	THE PROPERTY?

[8]   The first respondent relied on two grounds for his contention that he was in lawful occupation of the property, viz that he has an enrichment lien , and the provisions of the Will quoted by me in paragraph [3.7] above. In this regard:

[8.1]		I agree with Mr Nel that the first respondent has failed to  establish the existence of a valid enrichment lien.  In this regard:

.

[8.1.1] The first respondent refers in this regard to the mortgage bond documentation to which I adverted in fn 5 above. He says that not only did he sign suretyship for the  debt, but that he in fact applied for the loan, and serviced the bond

[8.1.2] As Mr Nel points out, the suggestion that it was the first respondent who applied for the loan is contradicted by the very documentation which he attaches, which  shows (as one would expect, given the ownership of the property) that the loan was applied for in the name of the deceased, although the first respondent signed surety.
R58 695,00 for the improvements".

[8.1.3] I suspect that the loan was indeed for the benefit of the first respondent and his family, to enable them to renovate the property so as to be able to live in it with the deceased and, bearing in mind that he signed suretyship, the  loan was quite possibly serviced by the first respondent.

But suspicion is a far cry from proof. The first respondent's allegations cry out for better proof than his mere ipse dixit, which proof is completely lacking. I accept that 1983 was a long time ago, and that the documentation might be lacking, but detail, such as how the first respondent serviced  the debt  and  how  the  surprisingly  exact  figure  of "about R58 695,00" is comprised, is totally lacking.

In those circumstances, bearing in mind that it was for the first respondent to establish the existence of the lien, I am satisfied that he has failed to do so.

[8.2]	The second ground on which the first  respondent  contended  that he is in lawful occupation, was based on his interpretation of clause
3.3	of the Will, as quoted by me in paragraph [3.7]   above.	In this regard:

[8.2.1] If I understand Ms Fitzroy's argument in this regard correctly, it ran as follows:

(a)	Clause 3.3 of the Will is ambiguous. It doesn't tell us who was to obtain the "sworn appraisement value", it doesn't tell us how the first respondent was to
exercise the option in the absence of the appointment of an executor,  and it doesn't tell us whether   the
decision to sell the property must first be taken by the heirs before the option arises.

(b)	Meaning must be given to clause 3.3 of the Will, and the applicant is bound to give effect to that meaning.

(c)	That being so, the logical interpretation to be given to clause 3.3 is this:

(i)	First, the heirs need to decide to sell the property, rather than take ownership of it in equal shares.

(ii)	Only if and when the heirs take such a decision will the period of twelve months referred to in clause 3.3 of the Will commence, during which the applicant as executor will have to arrange for a sworn evaluation of the

 property, and the first respondent will have the opportunity to offer to purchase the property at that valuation.

[8.2.2) The first respondent put his standpoint slightly differently in paragraph 13 (the second paragraph 13) of his answering affidavit.  There he said the following:

In terms of the Will, in the event of the immovable property being sold, I have the first option to buy the property at a sworn appraisement value. The Applicant failed to afford me the opportunity to purchase the property at a sworn appraisement value.... The evaluation [of Nico Erasmus] ... is not a sworn appraisement value. I submit that the Applicant has no right to sell the property, or to evict me, before a sworn evaluation has not been done and I be afforded the opportunity to make an offer.

[8.3) I regret to say that I do not agree with  either  Ms Fitzroy's, or  the first respondent's, construction of clause 3.3 of the Will. To my mind, neither pays heed to the phrase "the option to buy the property within 12 ... months after my death" in clause 3.3.

[8.4) The following serves as background in construing clause 3.3 of the Will:

[8.4.1) The deceased was a lay person, and the Will doesn't bear the hallmarks of having been drafted by a professional.

[8.4.2] The deceased was probably blissfully unaware, when she signed her Will, of the way in which our law administers deceased estates, including of delays in the appointment of executors, and the fact that execution of a Will is impossible until an executor has been appointed. She just thought that her Will will be read and given effect to by her eldest son as her executor, on her death. And she drew clause 3.3 with that in mind.

[8.4.3] In law:

(a)	The four heirs, the deceased's children, were entitled to divide her estate (which appears to have been comprised primarily of the property) equally between them.

(b)	Consequently, the property would (unless it had for example to be sold to meet estate debts) be registered in the names of the heirs in equal shares .

This would be the case unless the heirs should decide to sell the property or unless, in the event of disagreement between them in this regard, the executor  should  choose  to  sell  the  property and.should obtain the approval of the third respondent to do so in terms of Section 47 of the Administration of Estates Act .

[8.5] To my mind, and against that background, it is apparent that what clause 3.3 of the Will intended was to afford the first  respondent the option to offer to purchase the property within twelve months of the deceased's death at a sworn appraisal value, which option would only be effective if the remaining heirs should, either before the first respondent's exercising of the option, or in response thereto, decide to sell the property as opposed to having it registered in their names in equal shares .

[8.6] This construction to my mind gives full effect to clause 3.3. It gives effect to the fact that it is conditional upon the property being sold by the heirs, and it gives effect to the fact that the option is to be exercised "within 12 ... months after my death". It also requires the first respondent (the party exercising the option), and not either the applicant (the executor) or the other heirs to obtain the sworn appraisal.

[8.7] Ms Fitzroy argued that  no steps could have been taken, and  thus no option exercised, until the appointment  of an executor, i.e. until

	

the applicant received his Letters of Executorship on 6 May 2011. disagree.  In this regard:

[8.7.1] I don't believe this matter turns on this, but it seems to me that the option granted by the deceased to the first respondent in clause 3.3 of her Will renders him a legatee. See,  by  analogy,  Secretary  for   Inland   Revenue  v   Estate Roadknight and Another 1974  (1) SA 253 (A) at 2598 and G.

[8.7.2] As  pointed out  by the Appellate  Division  in Greenberg  and Others v Estate Greenberg 1955 (3) SA 361 (A), in our law, heirs and legatees do not acquire dominium  in the  estate (heirs) or property (legatees) immediately on the  death  of the testator.  What they do acquire is a  vested  right to claim that dominium from the executor at a future  date.   See in this regard Centlivres CJ at 364G-365B:

The position under our modern system of administering deceased estates is that when a testator bequeaths property to a legatee the latter does not acquire the dominium in the property immediately on the death of the testator but what he does acquire is a vested right to claim from the testator's executors at some future date delivery of the legacy, i.e. after confirmation of the liquidation and distribution account in the estate of the testator. If, for instance, immovable property is bequeathed to a legatee, he acquires a vested right as at the death of the testator but he does not acquire the dominium in that property until it is transferred to him by the executor.  If that property has to be sold in order to pay   the

debts of the estate, the legatee may never acquire the dominium in that property.... It seems to me to be inaccurate to suggest ... that in ascertaining whether a legatee has acquired a vested right to his legacy as at the death of the testator one must enquire whether the  dominium in the property resides immediately after the testator's death. The futility of such an enquiry can, perhaps, best be illustrated by taking as an example a bequest of a sum of  money.  When  a testator bequeaths, say, £1 000 to A the dominium in that sum of money does not vest in A as at the death of the testator but A acquires a vested right to claim that sum from the executor at the future date I have indicated, provided that the estate is solvent.

[8.7.3] As Centlivres CJ said on p365B of Greenberg,

[t]he test [is] ... whether, on a true interpretation of a Will, the testator intended that a legatee should acquire as at [the testator's] death a vested right to his legacy.

To my mind, it is apparent from clause 3.3 of the Will, and particularly the reference therein to an "option to buy the property within 12 ... months after my death", that this is precisely what the deceased intended - that the first respondent would obtain a vested right to exercise the option within twelve months, commencing on her death.

[8.7.4] There are of course instances where, on a  true interpretation of a Will, it is apparent that an option granted in the Will was intended only to be exercised once an executor has been appointed.  A good example of this is the

Roadknight matter to which I referred in paragraph [8.7.1] above, where the Will specifically directed the testator's executors to grant an option to his nephew. Clearly, there, the intention was that the option could only be granted once the executors had been appointed. There is no such provision in this Will.

[8.7.5] We know that for an option to be validly exercised it must be communicated.  See Kahn v Raatz 1976 (4) SA 543 (A).

Ms Fitzroy's argument (as I understand it) is that the option extended to the first respondent in clause 3.3 of the Will had to be notified by him to the executor (the applicant), so that it couldn't possibly have been exercised within twelve months of the deceased's death. I do not believe this is a proper construction of matters.  In this regard:

(a)	It seems to me that the parties having an interest in the option were the other heirs.

Only once the first respondent exercised his option would they have to decide whether they want to sell the property, in which event they would be bound to sell to him at the appraisement value .

(b)	Thus it seems to me that, on a proper construction of clause 3.3 of the Will, what the deceased intended was that her son the first respondent should exercise his option within twelve months of her death by communicating same to her other children (her other heirs).

(c)	There is fairly clear authority for the proposition that an option granted by a Will can be exercised before the appointment of executors. See Glass and Others v Ker NO and Others 1953 (1) SA 550 (A).

What happened in Glass was that the deceased had what appears to have been a fairly large shareholding
in what was then a private company, H Lewis & Co (Pty) Limited . His Will directed that those shares "after my death shall first be offered for sale to Meyer
Lewis and Leon Lewis at their face value, and sold only should they refuse to purchase". For different reasons, the five members of the Appellate Division arrived at the same decision, which was that the two Lewis brothers obtained a vested right to be offered the shares at the date of the deceased's death. Important for present purposes is that Hoexter JA remarked at 564G that "[w]hat the testator had in mind was  that  the  executors,  if there  had  been no

	.

exercise of the option before their appointment, should immediately after their appointment, compel the Lewis brothers to make their decision by making an offer to them". By implication, Hoexter JA was satisfied that the two Lewis brothers could have exercised the option before the appointment of the executors, a view which the authors Corbett, Hofmeyr and Kahn say in fn 47 on p231 of their work The Law of Succession in South Africa (2nd ed) "would appear to be a correct conclusion".

(d)	There appears thus to be good authority for the proposition that depending on the wording of the Will, an option created in a Will can be exercised prior to the appointment of the executors. Reverting to the wording of clause 3.3 of the Will, I see no reason why this would not have been the case here.

[8.8]    Consequently, on my view of clause 3.3 of the Will, it was for the first respondent to exercise the option within twelve months of the date of his mother's death, which he failed to do, with  the result that it lapsed (the fact that the first respondent might, depending on the reading of the Will, have been unaware of the option is of no legal moment in this regard).

[9]		I add that, interesting though the aforegoing excursion into the interpreting of Wills and the administration of estates has been, the first  respondent's

claim to a legal right of occupation must in my view in any event fail, even if my aforegoing interpretation is wrong.

That is because the essential question remains whether the clause 3.3 option has lapsed or not? It seems to me that it has lapsed on any interpretation of the clause. If the running of the period of twelve months provided for in clause 3.3 was suspended until the appointment of the executor, then that happened on 6 May 2011. If it was suspended until the heirs decided that the property was to be sold, then it seems to me
that the decision to sell has been taken, expressly or by clear implication, well more than twelve months ago .

[1O]		I am consequently  satisfied that the first respondent has been unable  to establish that he is in lawful occupation of the property.

It follows from this that the first respondent is not in lawful occupation of the property.

THE FIRST RESPONDENT'S   POINT OF  NON-JOINDER:

[11]		It bears mentioning  at this stage that whereas  the first  respondent  had taken a point of non-joinder in his answering affidavit (the contention that

the other heirs should have been joined), this point was (in my view quite correctly) not persisted with by Ms Fitzroy.

IS  THE  APPLICANT  ENTITLED  TO  AN  EVICTION  ORDER  IN   TERMS   OF SECTION 4(1) OF PIE?

[12]	The next question for me to decide, is whether the applicant is entitled   to an eviction order in terms of Section 4(1) of PIE?

[13]		Section 4 of PIE affords me a measure of discretion as to whether to grant the applicant's request for eviction.  In this regard:

[13.1]  Section 4(7) of PIE provides as follows:

If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including ... where the land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.

[13.2] I accept that Section 4(7) applies, given that the first respondent has clearly been in occupation of the property for many years.

[13.3] The aforegoing having been said, what is to my mind most remarkable about this  matter  is the fact that the first    respondent

23

relies on an option to purchase the property at an appraised value, without appearing to have ever taken any steps to obtain such an appraisal. As far as I can see, the closest the first respondent comes to an appraisal is his rather bald denial of the correctness of Mr Erasmus' appraisal, as referred to in paragraph [4.2] above.

It does not appear to me that the first respondent has ever made a good faith attempt to give effect to clause 3.3 of his mother's Will. Rather, he has sought to throw up objection after objection to the sale of the property (to anyone but him).

[13.4] In the premises, and on the papers before me, I am satisfied  that an eviction of the first respondent (and those occupying under  or by virtue of him) would indeed be just and equitable.

THE FATE OF THE COUNTER-APPLICATION:

[14] It also follows to my mind from the aforegoing that the first respondent's counter-application cannot be granted. It is in my view simply unfounded. In this regard:

[14.1] The third respondent furnished the Section 47 authorisation on 6 May 2015, and the first respondent will have become aware thereof at the latest on 29 June 2015, when the application was served upon him.

24

Yet the first respondent has taken no steps to review the third respondent's decision.

[14.2] The suggestion in the counter-application that the first respondent should be afforded an option to offer to purchase the property within thirty days of a sworn evaluation still to be obtained is, as I believe I have made plain above, contrary to the provisions of the Will. The Will gave the first respondent an option which was to be exercised within twelve months of the death of his mother. His mother passed away on 21 June 2003. The option has lapsed.

[15]		In the premises, the application must succeed and the counter-application must fail.

COSTS:

[16]	The applicant seeks costs on the punitive scale of attorney and client.

I am not disposed to granting punitive costs. It is so that the first respondent has failed, and that I have suggested that he has not acted entirely in good faith. But the length of this judgment shows (I think) that the first respondent put up an argument worthy of consideration, and in addition to that, I am not satisfied with the way in which the applicant in his papers approached the length of his brother's stay in the property, and

h

the transactions  (or non-transactions)  between the brothers of  301

May

2013.

25

The estate (represented by the applicant) is entitled to its costs, but on the ordinary scale.

THE ORDER:

[17]	In the premises, I grant the following order:

1.	The Applicant's application is granted.

2.	The First Respondent's counter-application is dismissed.
1.	

3.	3.1	The First Respondent (and all persons occupying the  property   through

or under him) is hereby ordered to be evicted from the property    known	
		as Erf 4.. Laudium, City of Tshwane Metropolitan Municipality, Gauteng, situated at … Emerald Street, Laudium, Tshwane, Gauteng ("the property").	
	
3.2	
The First Respondent (and all persons occupying the property    through	
		or under him) is ordered to vacate the property within 14 (fourteen) days	
		from date of service of this order.	
	
3.3	
Should  the  First  Respondent  (or  any  person  occupying  the property	
	through or under him) not comply with paragraph 3.2 above, then the
Sheriff is authorised and ordered to evict the First Respondent (and all persons occupying the property through or under him) from the property	
	within 3 (three) days after the expiry of the period of 14 (fourteen)   days

referred to in paragraph 3.2 above.  The Sheriff is authorised to   obtain	
	the  assistance  of  the  South  African  Police  Services  for  purposes of	
	complying herewith.	

26

4.	The First Respondent is ordered to pay the costs of the application and of the

   	Applicant’s opposition to the counter-application,  as  also the  costs of  the exparteapplication to authorise notice in terms of Section 4(2) of Act 19 of 1998.

ACTING JUDGE,

GAUTENG  DIVISION, PRETORIA
1

HIGH COURT OF SOUTH  AFRICA	1 JUNE 2016