The law reports – July 2017

July 1st, 2017
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Heinrich Schulze BLC LLB (UP) LLD (Unisa) is a professor of law at Unisa.

May 2017 (3) South African Law Reports (pp 1 – 333); [2016] 1 All South African Law Reports March (pp 629 – 882); [2017] 1 All South African Law Reports February (pp 313 – 667); [2017] 2 All South African Law Reports April (pp 1–334)

This column discusses judgments as and when they are published in the South African Law Reports, the All South African Law Reports and the South African Criminal Law Reports. Readers should note that some reported judgments may have been overruled or overturned on appeal or have an appeal pending against them: Readers should not rely on a judgment discussed here without checking on that possibility – Editor.

Abbreviations:

CAC: Competition Appeal Court

ECP: Eastern Cape Local Division, Port Elizabeth

GJ: Gauteng Local Division, Johannesburg

GP: Gauteng Division, Pretoria

SCA: Supreme Court of Appeal

WCC: Western Cape Division, Cape Town

Child law

Validity of unlawful surrogacy facilitation agreement and surrogate motherhood agreement: The matter in Ex Parte HPP and Others; Ex Parte DME and Others [2017] 2 All SA 171 (GP) involved two applications for confirmation of surrogate motherhood agreements. Each application involved couples (the commissioning parents) who approached a so-called surrogacy co-ordinator (Strydom) who then introduced them to a potential surrogate mother (the surrogate). She charged them a fee of R 5 000 for her services, although the fee was said not to include the introduction to the surrogate. The question which arose was whether the payment contravened s 301 of the Children’s Act 38 of 2005 (the Act). Strydom was joined as a party to the proceedings and was called on to show why the agreements should not be declared unlawful and unenforceable.

In her affidavit, Strydom stated that she did not charge an introduction fee, and that the fee charged was for her services in arranging appointments with a clinical psychologist, arranging medical appointments, monitoring the surrogacy process, offering the surrogate emotional support and consulting with the parties regarding expenses. She stated that having acted as a surrogate mother six times, she was uniquely qualified to assist people in the process. She also stated that she explained complicated medical processes, debriefed the surrogate mother after invasive medical procedures and prepared her emotionally for the procedure.

The court was asked to decide on the lawfulness of two agreements, namely the –

  • ‘surrogacy facilitation agreement’ between Strydom and the commissioning parents; and
  • ‘surrogate motherhood agreement’ between the surrogate mother and the commissioning parents.

Tolmay J held that the services rendered by Strydom appeared to encroach on the professional fields of legal representatives, psychologists and medical practitioners, when in fact her only qualification was her personal experience as a surrogate mother.

Commercial surrogacy is un­­law­ful in South Africa and payments are limited to those specifically provided for in the Act. Section 301 provides for two distinct categories of expenses. The first consists of costs directly related to the artificial fertilisation and pregnancy, the birth of the child, and confirmation of the motherhood agreement. The second deals with bona fide legal and medical expenses. The costs on the first category had to be related to the processes in question. That could not be said of Strydom’s services. Her services did not fall within the second category.

Strydom’s right to exercise her chosen profession was not limited. What was limited was her right to ask for payment of expenses, which fell outside what was provided for in s 301. The limitation contained in s 301 was in the public interest and, therefore, justified. The agreements between Strydom and the commissioning parents were thus unlawful and unenforceable.

Next, the court had to decide whether the surrogate motherhood agreements could exist independently where the surrogacy facilitation agreements had been declared invalid. It held that the fact that a collateral unlawful agreement had been entered into tainted the surrogate motherhood agreements even though the relevant requirements of the Act had been complied with. Should courts declare surrogacy agreements valid despite the fact that they are tainted by unlawful surrogacy facilitation agreements, the whole purpose of s 301 might be tainted. However, the parties in the present case were all bona fide, and were unaware of the unlawfulness of the facilitation agreements.

The validity of the surrogate motherhood agreements were thus confirmed.

Company law

Effect of restoration of deregistered company on re-vesting of its prospecting rights: The matter in Aquila Steel (SA) Ltd v Minister of Mineral Resources and Others 2017 (3) SA 301 (GP) involved a dispute over prospecting and mining rights between competing applicants. It further dealt with various provisions of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), which fall outside the scope of the present discussion.

One of the companies involved in the dispute was a company from the United Kingdom (UK), which was established in 1893 and currently named ZiZa Ltd. The issue relevant here related to the legal effect that the de-registration of the company in 2010, and particularly its subsequent re-registration in 2014 on the companies register of England and Wales, had on a prospecting right granted to it in South Africa.

The status of that prospecting right impacted on the position of the applicant in the present case (Aquila). Previously, in Palala Resources (Pty) Ltd v Minister of Mineral Resources 2016 (6) SA 121 (SCA), the SCA held that mineral rights, which, according to s 56 of the MPRDA, lapse when a company is deregistered, are automatically revived when the company’s registration is restored.

Tuchten J held that the decision in Palala Resources must be distinguished on the facts. The difference between Palala Resources and the present matter is that in Palala the mining right was still current and could re-vest in the company on its re-registration. However, in the present case the prospecting right had lapsed due to the expiry of the time for which it had been granted.

The rights conferred by a prospecting right cannot survive the expiry of the period for which the right was granted.

The court thus concluded that the restoration of ZiZa Ltd did not result in the re-vesting of the expired prospecting right. As a result, the restoration also had no legal effect on Aquila’s prospecting rights.

In passing, it needs to be mentioned that Aquila also applied to have the minister’s decision that the existence of the ZiZa Ltd prospecting right precluded the grant of the Aquila mining right be substituted with that of the court. In this regard the court held that it could only do so if there were exceptional circumstances and if it would be fair, just and equitable to do so.

Delaying the grant of Aquila’s mining right any longer than was necessary would not advance the declared aim in the preamble to the MPRDA to build an internationally competitive administration and regulatory regime. Regard being had to these considerations the court held that Aquila had established its case for substitution.


Rights of directors to participate in the day-to-day running of a company:
In Kaimowitz v Delahunt and Others 2017 (3) SA 201 (WCC) the applicant was one of five directors of a company. The applicant was also an employee of the company. In May 2016 the applicant was informed by the respondents (his fellow-directors) that his employment with the company had been terminated, but that he would remain a director. His office would be that of a ‘non-executive’ director. He was further informed that he would be entitled to exercise all his rights as a director as provided in the Companies Act 71 of 2008 (the Act), as well as the company’s Memorandum of Incorporation (MOI). He could still attend all directors’ meetings, but he would no longer be involved in the day-to-day management of the company’s business. As a result of his consequent exclusion from the daily management of the company, as well as, he alleged, the board meetings thereof, the applicant instituted proceedings against the company and its directors. He sought an order in terms of s 163 of the Act, inter alia restraining them from preventing his taking part in the management of the company’s business, and demanding his participation in ‘management meetings’. The applicant argued that he was by right entitled to participate in the company’s daily management, save to the extent that the Act or the MOI provided otherwise, by virtue of s 66(1) of the Act.

Section 66(1) provided that the ‘business and affairs of a company must be managed by or under the direction of its board, which has the authority to exercise all of the powers and perform any of the functions of the company, except to the extent that this Act or the company’s Memorandum of Incorporation provides otherwise’.

The applicant averred that, the respondents were preventing him from carrying out his lawful obligations as a director. He further argued that such conduct was unlawful, oppressive and prejudicial to him, justifying an order in terms of s 163 of the Act.

Davis J held that a director was not as of right entitled to participate in the day-to-day running of the affairs of the company. The overall supervision of the management of a company resided in its board, which might well delegate such management to a managing director (as was the case here) and/or to a committee of the board.

As a result, the court rejected the application for an order in terms of s 163 of the Act. Further, no case had been made out that the directors and the company had otherwise impeded on the applicant’s capacity to act as a director and to fulfil his responsibilities to the company.

The application was thus dismissed with costs.

 

Rights of subscribers to shares: In Du Plooy NO and Others v De Hollandsche Molen Share Block Ltd and Another 2017 (3) SA 274 (WCC); [2016] 1 All SA 748 (WCC), the first and second applicants (on behalf of a trust) sought an order that the trust, as a registered owner of a series of shares of first respondent (the company), and alternatively, in the event of it being found that the trust has not been entered into the security register of the company as the owner of these shares, that the company be ordered to enter the name of the trust in the company’s security register as the owner of certain shares.

This case raised a number of intricate legal questions, including the following –

  • first, whether on incorporation, and without more, the subscribers had matured into members of the company; and
  • secondly, whether without taking up the shares, the subscribers could transfer their rights therein to the third to fifth applicants, who were the directors of the company.

In answering these questions, Davis J held that the relevant authorities appeared to draw a distinction between an allotment, which took place after the company had effectively been born and the position with regard to the initial subscribers who became members in terms of the founding memorandum of association. In this regard, Davis J referred with approval to the obiter comments in Moosa v Lalloo and Another 1957 (4) SA 207 (N) at 210D where the court stated that subscribers to shares in a company are ‘to “be deemed to have agreed to become members of the Company”, and upon its registration they should have been entered as members in its register of members … . Even, however, if they were not so entered, they are to be treated as having become members of the Company, without the need of any allotment of shares’.

In dealing with the second question, the court in Du Plooy referred with approval to Sammel and Others v President Brand Gold Mining Co Ltd 1969 (3) SA 629 (AD) at 666 where it was held that
‘[o]wnership of shares does not depend upon registration’.

The court accordingly answered both questions affirmatively and ordered that the share register be amended to reflect the trust as shareholder.

The company was ordered to pay the cost of suit.

Competition law

Certificates issued by the Competition Tribunal on merit are prima facie proof of prohibited practices: In Comair Ltd v South African Airways (Pty) Ltd [2017] 2 All SA 78 (GJ) the court provided important guidelines regarding the evidential value of certificates issued by the Competition Tribunal, as well as guidelines for the quantification of damages resulting from prohibited practices.

The parties to the present case were competing domestic airline businesses in South Africa. They made use of the services of travel agents in order to sell domestic airline tickets, for which they paid by way of commissions.

During the 2000 to 2005 period, South African Airways (SAA) concluded and implemented a so-called ‘override incentive schemes’ with travel agents in terms of which considerable sums of money were paid to travel agents to book passengers on SAA rather than a rival airline such as Comair or Nationwide.

This led to substantial foreclosure of the rivals in the market for scheduled domestic airline travel, causing such airlines to suffer loss of profit and consumers to be harmed.

The Competition Tribunal considered the effect of SAA’s schemes in two separate decisions and in each case ordered that it constituted prohibited practices in contravention of s 8(d)(i) of the Competition Act 89 of 1998 (the Act). The CAC dismissed SAA’s appeal.

The judgment in the matter extensively covers the Tribunal and CAC decisions and provides detailed consideration of the damages calculation by the experts.

The plaintiff, Comair, instituted a consolidated damages action to determine the exact amount of SAA’s incentive schemes for travel agencies, which caused Comair a loss of profits.

Matojane J held that in terms of s 8(d)(i) of the Act, it is prohibited for a dominant firm to require or induce a supplier or customer not to deal with a competitor, unless such firm can show technological, efficiency or other pro-competitive gains, which outweigh the anti-competitive effect of its conduct. Section 7 of the Act defines ‘dominance’ as having a certain market share, alternatively being viewed with market power.

The two actions by Comair were brought in terms of s 65(6) of the Act, which creates liability for the person found to have engaged in prohibited anti-competitive conduct for damages to any person harmed by that conduct. Comair filed their court documents with the court certificates from the Tribunal as contemplated in s 65(6)(b) of the Act.

In terms of s 65(7) ‘a certificate referred to in ss 6(b) is conclusive proof of its contents, and is binding on a civil court’. The decision of the Tribunal was confirmed by the CAC – which has the same status as the SCA – and is accordingly binding on the present court.

The only issue before the court was the assessment of the quantum and awarding of damages suffered by Comair as a result of SAA’s prohibited practices. Comair claimed that its loss of profits suffered as a result of SAA’s abuse of its dominant position in the first claim amounted to at least R 104 million for the first period and R 700 million for the second period.

SAA denied that the loss was caused by its anti-competitive conduct. It was argued that any damages that Comair may have suffered would be negligible because there were other changes in the market taking place during the infringement period that might have had a negative impact on Comair’s market share.

There was broad agreement between the experts on the methodology to be used to calculate Comair’s damages. If SAA’s infringing schemes had an adverse effect on Comair’s profits, damages had to equal the revenues that Comair lost as a result of these schemes, adjusted for the costs that Comair might have avoided because of reduced passenger numbers. Put differently, in order to put Comair back into the financial position it would have been in but for SAA’s infringing schemes, a comparison of the position that Comair was currently in (the ‘actual scenario’) had to be made with the hypothetical position that Comair would have been in but for the anti-competitive agreements  (the ‘counterfactual scenario’). The experts agreed that damages equal lost revenues less avoided costs. Lost revenues were equal to Comair’s counterfactual revenues minus its actual revenue and avoided costs were equal to the difference between the costs that would have been incurred but for SAA’s conduct and actual costs.

In determining the period during which damages were sustained by Comair, the court took into account the lingering effect of the anti-competitive conduct of SAA. It accepted that Comair continued to suffer damages due to the infringing schemes after they ceased.

Applying the approach set out above, and taking into account all relevant factors, the court awarded Comair damages in the sum of R 104,2 million in the first action and R 450 million in the second.

 

Requirements for a competition issue to be referred to Competition Tribunal: A number of issues arose for decision in K2012150042 (South Africa) (Pty) Ltd v Zitonix (Pty) Ltd [2017] 2 All SA 232 (WCC). For space considerations the present discussion will deal with only some of them.

The facts were as follows: K2012150042 (the lessor) sought an order confirming the cancellation of written lease agreements concluded with Zitonix (the lessee). The parties concluded the lease agreements for certain commercial premises in the Gateway Shopping Mall (Gateway), north of Durban, from which the lessee traded under a number of well-known up-market fashion brands.

The lessor further sought an order directing the lessee to vacate the leased premises, failing which the deputy sheriff should be authorised to eject the lessee from the premises at the Gateway Shopping Mall, a shopping centre for which the lessor had substitute tenants (H&M) who were eager to occupy the premises.

H&M is a Swedish multinational retail company with over 3 700 stores in 61 countries and it aims to be a large participant in the fashion retail market in South Africa.

The lessee fell into arrears shortly after the lease agreements were concluded, and the lessor cancelled the lease agreements. The group of companies (Platinum) of which the lessee was part, experienced significant financial difficulties, and some of the companies had been placed under business rescue or wound up, or had become dormant. Because of these difficulties, most of the retail leases held by Platinum, including the present lease, were terminated.

Gateway is the largest shopping centre in Africa, also the largest mall in the southern hemisphere and one of the top 50 largest malls in the world. As such the allegation is that the lessor has dominance, within the meaning of the Competition Act 89 of 1998 (the Act).

The lessee raised a number of defences.

Firstly, the lessee argued that the application by the lessor to eject it (the lessee) in order to give occupation to H&M, amounted to an abuse of dominance and that the matter had to be referred to the Competition Tribunal (the Tribunal) in terms of s 65(2) of the Act.

Holderness AJ held that s 65(2) of the Act, which deals with referral by a civil court to the Tribunal, provides that: ‘[I]n any action in a civil court, a party raises an issue concerning conduct that is prohibited in terms of this Act, that court must not consider that issue on its merits, and –

(b) the court must refer that issue to the Tribunal … to be considered on its merits, if the court is satisfied that –

(i) the issue has not been raised in a frivolous or vexatious manner; and,

(ii) the resolution of that issue is required to determine the final outcome of the action.’

Secondly, the lessee averred that a civil court does not have jurisdiction to determine whether specific conduct contravenes the Act.

The court rejected this averment and held that a civil court does have the power to determine whether such an issue raised in the course of civil proceedings should be referred to the Tribunal or not.

Thirdly, the lessee argued that the lessor’s conduct amounted to market dominance.

In this regard the court confirmed that s 8 of the Act regulates the conduct of dominant firms. As a precursor to determining whether the applicants (here: the lessor’s) conduct amounted to an abuse of dominance, the respondent (here: the lessee) must first show that the applicant is dominant, as defined in the Act. The starting point is the identification of the market in which the respondent is alleged to meet one of the criteria in s 7. The boundaries of that market must be determined before a market share (or market power) can be attributed to a firm. The relevant markets are typically determined according to the dimensions of product and territory.

The lessee’s application for a referral to the Tribunal in terms of s 65(2) of the Act was accordingly refused. The court concluded that the matter should be determined without resolving the competition issues raised and without recourse to the Tribunal.

Credit law

Requirements for credit to be ‘reckless’: At stake in Wiese and Another v ABSA Bank Ltd [2017] 2 All SA 322 (WCC) was the question whether the National Credit Act 34 of 2005 (NCA) permits a credit provider to have regard to the projected income of a separate commercial entity when assessing a consumer’s ability to afford to repay a personal loan. More specifically, in circumstances where the loan to be advanced to the customer is for the specific purpose of purchasing that commercial entity.

In September 2013, the respondent bank (ABSA) issued summons against the appellants (the debtors) jointly and severally for payment in respect of money loaned and advanced together with interest and costs. ABSA also sought an order declaring the debtors’ jointly owned immovable property specially executable, given that it served as security for the loans in the form of mortgage bonds registered over the immovable property. The debtors failed to enter appearance to defend and default judgment was granted against them.

In December 2013, the debtors applied for rescission of the default judgment. It was accepted by the parties for purposes of the appeal that the debtors provided a reasonable explanation for their default. What was in issue was whether they set out a bona fide defence to ABSA’s claim which, prima facie, carried some prospect of success should rescission be granted and the matter referred to trial. The defence raised by the debtors was that of reckless credit as provided in ss 80 to 83 of the NCA. The debtors contended that ABSA granted the debtors reckless credit by approving fourth and fifth loans (the subject of the default judgment) during October 2008 in circumstances where it had failed to conduct the required assessment in terms of s 81(2) of the NCA, alternatively where it knew that the loans would render the debtors over-indebted.

The court a quo held that there was nothing before it to support the debtors’ allegation that ABSA had failed in any of its duties under s 81 of the NCA. It dismissed the debtors’ application.

Cloete J held that the requirement of a bona fide defence which prima facie carries some prospect of success is comprised of two elements. First, the defence must be raised in good faith. Secondly, on the face of it, the defence must have some prospect of success at trial. In the debtors’ founding affidavit, the defence of reckless credit was based squarely on ABSA having failed to conduct any assessment at all in terms of s 81(2). After being confronted with ABSA’s version, the debtors changed tack. Being unable to deny that an assessment had in fact been conducted, they claimed that the assessment had not been detailed and that the loans granted were personal rather than business in nature. The court rejected that submission.

The debtors’ defence had no prima facie prospect of success. It was incumbent on ABSA, when making its s 81(2) assessment, to have regard to the reasonably estimated future revenue flow of a franchise that the first debtor intended purchasing through the vehicle of another entity with funds to be loaned by it. That was what ABSA did.

The distinction which the debtors sought to draw between a personal home loan and a business loan was of no avail. It is the purpose of the loan that determines what needs to be considered in assessing whether a loan may be granted to a prospective consumer, and not the mechanism of the loan itself. As a result, so the court reasoned, any evidence adduced by the debtors at trial to the mechanism of the loan would be irrelevant in the context of the defence raised to defeat ABSA’s claims.

The appeal was dismissed with costs.

Euthanasia

Legality of assisted suicide: In Minister of Justice and Others v Estate Stransham-Ford 2017 (3) SA 152 (SCA); [2017] 1 All SA 354 (SCA) the court was asked to pronounce on the legality of the highly emotional subject of euthanasia. In the court a quo Stransham-Ford (the patient), who had terminal cancer, applied for an order that a doctor could administer or prescribe a lethal agent to end his life; that the doctor would be exempted from criminal or disciplinary proceedings; and that the common law be developed to allow for such euthanasia or assisted suicide. On 4 May 2015 the court a quo handed down its reasons for allowing the order. Unbeknown to the court, the patient had died two hours before the granting of the order.

The Ministers of Justice and Health, the National Director of Public Prosecutions, and the Health Professions Council of South Africa appealed to the SCA.

In setting aside the order Wallis JA reasoned as follows: First, the patient’s cause of action died with him, and on his death there was no claim that could be passed to his estate or that could be adjudicated on by the court. This was not disturbed by the fact that his case raised constitutional issues.

Secondly, the order was based on an inadequate consideration of, and a misunderstanding of the law, and the issues were insufficiently canvassed. So, for instance, in relation to euthanasia, there was no consideration whether the position on consent should be changed; and the cases did not suggest that assisting suicide would be unlawful in all circumstances.

Thirdly, the factual basis for the order was not established. Thus, the patient’s prediction of the manner of his death, absent assisted suicide or euthanasia, was not confirmed; nor was his mental capacity or willingness to go through with either course (indeed this was disconfirmed by later evidence); and there was no evidence that there was a doctor willing to assist.

Further, so the SCA pointed out, there was, in addition, inadequate evidence on which to decide the constitutional issues.

The appeal was upheld, and the court a quo’s order authorising euthanasia was set aside.

  • See other articles pertaining to the Stransham-Ford matter:

– Nomfundo Manyathi-Jele ‘Judge’s ruling in assisted suicide case divides South Africa’ 2015 (June) DR 4.

– Nomfundo Manyathi-Jele ‘Update on assisted suicide case’ 2015 (July) DR 23.

– Law reports ‘Euthanasia’ 2015 (Sept) DR 42.

– Rinie Steinmann ‘Law and human dignity at odds over assisted suicide’ 2015 (Nov) DR 24.

– Sipho Tumelo Mdhluli ‘Your life, your decision? The Constitution and euthanasia’ 2017 (June) DR 25.

Immigration

Qualification for refugee status: In Okoroafor v Minister of Home Affairs and Another 2017 (3) SA 291 (ECP) the court was asked to consider the circumstances under which an applicant may qualify for refugee status in terms of the Refugees Act 130 of 1998 (the Refugees Act).

The applicant was a Nigerian national who entered South Africa (SA) in June 2013 on a visitor’s permit. He stayed for an extended period in SA and in 2016 he was convicted of two offences under the Immigration Act 13 of 2002, and was sentenced to a fine or imprisonment; and to imprisonment, which was suspended. He was subsequently arrested and detained pending deportation as an illegal foreigner. He then indicated an intention to apply for asylum, and asked to be released and issued with a permit to enable him to approach a refugee reception office in order to do so. However, the immigration officers refused, apparently on the basis that he did not qualify as a refugee under s 4(1)(b) of the Refugees Act. This provides that a person will not qualify for refugee status if there is reason to believe that he or she has committed a crime, which is not of a political nature and which, if committed in SA, would be punishable by imprisonment.

The applicant then applied for a declaration that his detention was unlawful.

The issues were, inter alia, whether the ‘crime’ referred to in s 4(1)(b) of the Refugees Act was restricted to a crime committed outside SA, or whether it covered a crime committed either outside or inside the country; and who is the correct official to decide that there was ‘reason to believe’ an individual did not qualify for refugee status.

In deciding the first issue, Eksteen J held that it was restricted to crimes committed outside SA. As regards the second issue, the court held that only the Minister of Home Affairs or his delegate could do so.

The application was accordingly granted. The minister or his delegate was further directed, in terms of reg 2(2) of the Regulations in terms of the Refugees Act, forthwith to issue the applicant with an appropriate permit valid for 14 days within which the applicant had to approach a refugee reception office and complete an asylum application.

Wills

Effect on will when death is within three months of  dissolution of marriage: The crisp facts in Louw NO v Kock and Another 2017 (3) SA 62 (WCC) were that Ms Kock (the respondent) and Mr Koekemoer (the deceased) had been married for some 29 years and had executed a joint will. They did not have any children but adored animals.

The relevant clauses of their will provided as follows:

1. Death of the first-dying

We nominate the longer-lived of us as the sole and complete heir of the estate of the first-dying of us.

2. Death of the longer-lived

If the longer-lived of us dies without leaving behind a further valid will, then the longer-lived bequeaths his or her property as follows:

2.1 We bequeath to the father of the testator … the immovable property, or if he does not outlive the longer-lived of us, then to the animal protection society.

2.2 The residue to the animal protection society.’

They eventually divorced, and Mr Koekemoer (the deceased) died less than three months after the divorce. It appeared as though the respondent had remarried before the deceased’s passing. On the night that the deceased passed away the respondent and her present spouse took occupation of the deceased’s residence where they still reside.

The Master had refused to give effect to clause 1 of the will, by reason of s 2B of the Wills Act 7 of 1953 (the Act). Section 2B deals with the effect of divorce or annulment of a marriage, on a will. It provides that: ‘If any person dies within three months after his marriage was dissolved by a divorce or annulment by a competent court and that person executed a will before the date of such dissolution, that will shall be implemented in the same manner as it would have been implemented if his previous spouse had died before the date of the dissolution concerned, unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding the dissolution of his marriage’ (my italics).

Section 2B in effect provided a three-month grace period for divorcees to draft new wills. This matter was apparently the first case to test the provisions of s 2B.

This had prompted the respondent to bring an action to compel the Master to give effect to clauses 1 and 2 of the will.

The applicant executrix (Louw) excepted to the respondent’s claim, and ultimately brought the present application to dismiss it. The executrix’ assertion was that the claim was bad in law.

The matter turned on whether ‘it appear[ed] from the will that the testator [here: the deceased] intended to benefit his previous spouse notwithstanding the dissolution of his marriage’.

The respondent argued there was such an intention. The words of the will said she should inherit, and did not say she should not inherit in the event of divorce.

Meer J held that there was no such intention, had there been, it would have had to have been expressly stated. For the intention the respondent advocates to have appeared, the will would have had to provide for the longer-lived to be the sole heir of the estate of first dying notwithstanding the dissolution of their marriage, or words to that effect. The will simply could not be construed to enable a surviving spouse like the plaintiff to inherit after divorce, and thereby not only rebut the statutory presumption created by s 2B of the Act but also circumvent its provisions.

The executrix’ application was accordingly granted, and the respondent’s claim dismissed with costs.

Other cases

Apart from the cases and topics that were discussed or referred to above, the material under review also contained cases dealing with: Administrative law, business rescue, civil procedure, constitutional practice, criminal procedure, education, equality, evidence, fishing and sealing, insolvency, international criminal law, interpretation of statutes, labour law, lease, local authorities, mining and minerals, property, revenue and shipping.

This article was first published in De Rebus in 2017 (July) DR 39.

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