Louis van Vuren

The Fiduciary Institute of Southern Africa (FISA) has developed an extensive archive of court case summaries relating to fiduciary matters. The summaries are written by FISA CEO, Louis van Vuren. 

Below are two summaries. You can visit the archive at https://www.fisa.net.za/category/court-cases

1.     Court case on interpretation of a will – Strauss v Strauss and Others

Strauss v Strauss and Others [2023] ZAGPJHC 377

The plaintiff (H) instituted action in the South Gauteng High Court (Johannesburg) claiming that the joint will of his parents not only made provision for the situation where they died within 30 days of each other, but also if the survivor died after the expiry of the 30 day period without having made a subsequent will. The first (Z) and second (G) defendants are H’s siblings (sisters). Z is also nominated as the executor of the estate in the will, together with an independent person. The will is, in the words of the court, “… an inelegant and very badly drafted document.” The clause (4.2) in dispute reads:

“Slegs indien ons gelyktydig of binne 30(dertig) dae na mekaar te sterwe kom, in sodanige omstandighede waarin die langslewende nie ‘n verdere testament maak nie dan in daardie geval bemaak ons die geheel van ons boedel soos volg:…”

(“Only if we die simultaneously or within 30 (thirty) days of each other, in such circumstances in which the survivor does not make a further will, then in that case we will bequeath the entirety of our estate as follows.”) (our translation)

Certain bequests are then made to H. In a free-standing clause (5) the residue is bequeathed to Z and G. Z and G first averred that the will massed the estates of their parents, who were married in community of property, and argued that everything should fall into the residue bequeathed to them. Later they applied to change their pleas and abandoned this averment. They then argued that the part of the clause referring to the survivor dying without having made a further will must be interpreted only to apply if the parents died within 30 days of each other. Their mother died three years after their father. They argued that the estate must be divided equally between the three (H, Z and G) as an intestate estate. H was instrumental in building up the businesses left to him in the special bequests in clause 4.2.

The court (Moorcroft AJ) took cognisance of the common law presumption against intestacy as well as the principles of the interpretation of documents as set out in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)  The court held, with reference to authorities, that a court should always attempt to attach an interpretation to the wording of a will that will lead to a sensible and not a nonsensical meaning. The court also came to the conclusion that the fact that clause 5 is not dependent upon clause 4.2, that intestacy cannot be the result. The court held that the only sensible interpretation of clause 4.2 is to be found by reading in the word “of” (or) before the words “… in sodanige omstandighede … (in such circumstances)”. This results in the special bequests to H to be held to be valid, while the residue goes to Z and G. The court accordingly ruled in favour of H and awarded him costs, including the costs of senior counsel.

2.         Court case: Posthumous recognition of customary marriage – Khashane v Minister of Home Affairs and Others

Khashane v Minister of Home Affairs and Others [2024] ZAGPPHC 3

TK applied to the court for an order: 1) condoning the late registration of her customary marriage to NM; 2) ordering the Director-General of Home Affairs (2nd respondent) to register the customary marriage under the provisions of section 4 of the Recognition of Customary Marriages Act, 120 of 1998 (the Act); and 3) directing the Master of the High Court, Pretoria (3rd respondent), to register the estate of the late NM and appoint her as executor in the estate.

TK and NM met in 1990 and in December 1991 NM indicated his intentions to marry TK. Lobola negotiations were entered into and were conducted between late November 1992 and the beginning of February 1993. On the evening of 6 February 1993 TK was taken to NM’s family and was welcomed there as a daughter-in-law. The two families were represented by TK’s sister and NM’s sister, and they both confirmed TK’s version of these events in affidavits. TK and NM lived together, had two children together and stayed together until NM’s death on 27 February 2022. TK indicated that she was unaware that the customary marriage had to be registered and she and NM never took any steps to do so. The Act requires all customary marriages which existed before the promulgation of the Act in 1998 to be registered and sets out procedures for doing so within stated time frames, as well as for interested parties to approach the court. Importantly, section 4(12) provides that failure to register a customary marriage does not invalidate such marriage. After NM’s death TK approached the Master to register the estate and to appoint her as executor. The Master refused on the basis that the marriage was not registered prior to NM’s death, despite TK providing proof of the existence of the marriage, on the basis that the Act does not make provision for posthumous registration. The Master referred TK to Home Affairs, but Home Affairs refused to register the marriage. None of TK’s assertions in her application were disputed by either the Master or Home Affairs.

The court (Khwinana AJ) held that the interpretation of both Home Affairs and the Master of the provisions of the Act is too narrow and ordered the 1st (the Minister of Home Affairs) and 2nd respondents to: 1) condone the late registration of the customary marriage of TK and the late NM; 2) register the marriage as a valid customary marriage; 3) issue TK with a marriage certificate within 30 days from the date of the order (12 January 2024); and 4) pay the costs of the application. The court also advised both Home Affairs and the Master to facilitate closer co-operation between their departments on matters relating to customary marriages and to ensure proper training of their staff on the provisions of the Act.


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