The applicant relied on the unconditional nature of the usufruct and contended that her rights vested and became enforceable immediately upon death (a morte testatoris), entitling her to use, enjoy, and lease the property, including receipt of rental income. Authorities such as Willemse v Cronje and Others were invoked to support the proposition that a usufructuary holds the right to derive benefit from the property to the exclusion of the bare dominium holder.
The first respondent distinguished between dies cedit (vesting) and dies venit (enforceability), relying on De Leef Family Trust and Others v Commissioner for Inland Revenue and Govender NO and Others v Gounden and Others to contend that, in deceased estate administration, enforceability is deferred until confirmation of the liquidation and distribution account. On joinder, reliance was placed on Wassung v Simmons, which defines a direct and substantial interest as a legal interest in the subject matter of litigation.
Allen West
Property Law Consultant
HANNES GOUWS AND PARTNERS INC.
Attorneys, Notaries & Conveyancers
Tel: 012 321 1008
Cell 078 7655928
E-mail: allen@hannesgouws.co.za
Author of The Practitioners Guide to Conveyancing and Notarial Practice 3rd Edition
