The law reports

August 29th, 2016
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Heinrich Schulze BLC LLB (UP) LLD (Unisa) is a professor of law at Unisa.

Heinrich Schulze BLC LLB (UP) LLD (Unisa) is a professor of law at Unisa.

July 2016 (4) South African Law Reports (pp 1 – 314); [2016] 2 All South African Law Reports June (pp 633 – 932); [2016] 1 All South African Law Reports February (pp 313 – 627); 2016 (6) Butterworths Constitutional Law Reports June (pp 709 – 838)

 

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

CC: Constitutional Court

ECG: Eastern Cape Division, Grahamstown

ECP: Eastern Cape Local Division, Port Elizabeth

GJ: Gauteng Local Division, Johannesburg

SCA: Supreme Court of Appeal

WCC: Western Cape Division, Cape Town

Agency

Ostensible authority: The decision in Makate v Vodacom Ltd 2016 (4) SA 121 (CC); 2016 (6) BCLR 709 (CC), enjoyed a fair amount of media attention. The court considered a number of legal concepts, including agency, ostensible authority and estoppel.

The crisp facts were as follows: During 2000 the appellant, Makate, was employed as a trainee accountant by the respondent, Vodacom. During his employment with Vodacom, and because his girlfriend at the time could not afford airtime to phone him, Makate conceived the idea of Vodacom’s lucrative ‘Please Call Me’ service. It allowed Vodacom’s prepaid users to send a free text message to other Vodacom users requesting that they call them back. Vodacom launched the service in February 2001. It was a major success, netting Vodacom several billion rands. Makate’s role in conceiving the idea was acknowledged shortly thereafter in Vodacom’s internal newsletter.

Geissler, Vodacom’s then director of product development, verbally agreed to remunerate Makate for his idea. The parties deferred negotiations on the amount of compensation to a later date. They further agreed that if no agreement was reached, compensation would be determined by Vodacom’s Chief Executive Officer (CEO). No agreement on compensation was, however, reached, and later the then CEO of Vodacom, Knott-Craig, falsely claimed that ‘Please Call Me’ was his idea. Having received no compensation for his idea at all, Makate left Vodacom late in 2003. In 2008, some four years after the launch of the ‘Please Call Me’ product, he instituted a High Court action to enforce his agreement with Geissler, which, according to the undisputed evidence of Makate, was that the parties would enter into bona fide negotiations over compensation. Vodacom disputed the existence of any such agreement and contended in the alternative that Geissler lacked actual or ostensible (apparent) authority to bind the company.

The High Court held that Makate had proved the compensation agreement between him and Vodacom and that Knott-Craig did not invent ‘Please Call Me’. However, it dismissed Makate’s claim on the ground that Geissler had lacked ostensible authority and also because the claim had prescribed under s 11(d) of the Prescription Act 68 of 1969 (the Prescription Act). It held that the word ‘debt’ had to be widely interpreted to include a claim that the defendant (here: Vodacom) comply with its obligations under a contract. Invoking the estoppel-as-shield analogy, the court found, moreover, that Makate should have pleaded ostensible authority in replication instead of raising it in his particulars of claim.

Mokate applied for leave to appeal to the CC.

In deciding the matter, the CC handed down both a majority and a minority decision.

The majority (per Jafta J; Mogoeng CJ, Moseneke DCJ, Khampepe J, Matojane AJ, Nkabinde J and Zondo J) held that interference with the factual findings of the High Court was not warranted. Instead, the majority held that the matter had to be approached on the basis that an agreement between Makate and Geissler was established. The majority rejected the High Court’s faulty conflation of estoppel and ostensible authority, which were distinct concepts. This conflation had resulted in the attribution of elements of estoppel to ostensible authority. However, estoppel was not a form of authority, but a rule that if the principal had conducted himself in a manner that misled a third party into believing that the agent had authority, he was precluded from denying it. It held that ostensible authority required the element of representation, but lacked the other elements of estoppel. Ostensible authority was the authority of an agent as it appeared to others while estoppel was no authority at all. Since Makate alleged in his particulars that Geissler had ostensible authority and Vodacom denied this in its plea, ostensible authority became one of the issues to be determined at trial.

The majority found that Geissler had indeed had ostensible authority to bind Vodacom. It reasoned that Geissler was Vodacom’s director of product development and thus in charge when dealing with third parties in relation to new products. He was further a member of Vodacom’s board, he had power over new products, and the role that he played within Vodacom’s organisational structure, gave the appearance that Geissler had authority to negotiate all issues relating to the introduction of new products at Vodacom.

The majority further rejected the reasoning in the High Court that Makate’s claim had prescribed. In this regard it held that the term ‘debt’ as used in the Prescription Act had to be narrowly interpreted so that it least impaired the right of access to courts. But since Makate’s claim for an order forcing Vodacom fell beyond the scope of a ‘debt’ as defined by ruling precedent, namely an obligation to either pay money, deliver goods or render services, it was not necessary to precisely determine its meaning. The trial court had attached an incorrect meaning to the word. Because a ‘debt’ contemplated in s 10 of the Prescription Act did not cover the present claim, it did not prescribe.

Makate sought the enforcement of a pactum de contrahendo, that is, an agreement to agree, on fair compensation for his idea. Such pacta were enforceable if they provided a deadlock-breaking mechanism, should the parties fail to reach consensus. Here a deadlock-breaking mechanism was in place: If the parties disagreed on compensation, it would be determined by Vodacom’s CEO.

The majority confirmed that the CEO could not represent Vodacom at the negotiations, but could only be approached to break deadlock. It accordingly held that Vodacom was bound by the agreement between Makate and Geissler. Vodacom was ordered to commence negotiations in good faith with Makate within 30 days for determining reasonable compensation payable to him in terms of the agreement. Vodacom was further ordered to pay the costs of the present action.

Suffice it mention here that the minority (per Wallis AJ, Cameron, Madlanga and Van der Westhuizen JJ) agreed that Makate was entitled to the relief stipulated by the majority. However, the minority reasoned that it was settled law that, where there was no actual authority, ostensible authority was a form of estoppel.

Civil procedure

Citation of trust: In Pro-Khaya Construction CC v Trustees for the time being of the Independent Development Trust [2016] 2 All SA 909 (ECP) the applicant, Pro-Khaya, sought to have an arbitration award made an order of court, in terms of s 31(1) of the Arbitration Act 42 of 1965 (the Act), as well as an order for payment by the respondent, the Trust, of the various sums of money awarded to Pro-Khaya by the arbitrator.

The arbitration arose from an agreement between Pro-Khaya and the Trust in terms of which, the former was to construct a multi-storey classroom development and certain other buildings in Uitenhage, in return for payment by the Trust of R 27 586 305,69.

The Trust raised a number of objections to Pro-Khaya’s application. I will refer to only some of them here. The first of these objections was that the Trust was cited as ‘The Trustees for the time being of the Independent Property Trust’. The Trust took the point that all the trustees were not individually cited and that the Trust was not properly before the court.

Roberson J held that the notice of motion in the counter-application cited all 11 trustees by name. In those circumstances, the objection was highly technical and could not be upheld. Effectively, all the trustees were before the court in their capacities as trustees and there was no real failure to cite all the trustees.

A further objection was that there was no agreement to refer the disputes to arbitration. The court rejected that submission. It held that the Trust’s inactivity could not avail it in the circumstances.

It was concluded that the Trust had failed to establish any grounds for the setting aside of the arbitration award. The award was accordingly made an order of court.

Company law

Delinquent directors: In Gihwala and Others v Grancy Property Ltd and Others [2016] 2 All SA 649 (SCA) the court confirmed that a delinquency order against delinquent directors of a company is not unconstitutional.

The crisp facts in the Gihwala case were as follows: In 2005 an overseas investor, Mawji, accepted an invitation from Gihwala to invest in a joint venture with the Dines Gihwala Family Trust and Manala, using Seena Marena Investments (Pty) Ltd (SMI) (of which Gihwala and Manala were the directors and shareholders) as the front company.

In terms of this 2005 agreement, Grancy Property Ltd, Grancy, a company controlled by Mawji, acquired one-third of the shares in SMI. Grancy also made a loan to Manala to pay half of the amount he needed for his one-third contribution to SMI. SMI used the funds provided by the three investors (Grancy, Manala and the Trust) to acquire a 58% shareholding in Ngatana Property Investments (Pty) Ltd (Ngatana), the company registered for purposes of a BEE scheme enabling black investors to obtain shares in a listed company – Spearhead Property Holdings Ltd – at a reduced price. Eventually these were exchanged for shares in Redefine Income Fund Ltd after a takeover by the latter.

After a payment was made by Ngatana to SMI of R 6 657 673, a total of R 4 million was paid to the Trust, Gihwala and Manala but nothing to Grancy. R 2 million was invested in a company in which Gihwala’s wife had an interest, but this company was liquidated and the money was lost. Ngatana also paid R 750 000 each to Gihwala and Manala as ‘directors’ fees’ because of SMI’s assistance in setting up the original BEE scheme. SMI also made two loans to Manala without the knowledge of Grancy.

Ngatana eventually sold all its shares in Redefine and SMI received a dividend of R 5 572 727. This amount was paid in equal shares to the Trust and Manala. The relationship between Mawji and Gihwala became acrimonious and several High Court actions followed. (See also law report ‘Companies’ for Grancy Property Ltd v Manala and Others 2015 (3) SA 313 (SCA); [2013] 3 All SA 111 (SCA) (2015 (Aug) DR 46).)

A number of issues arose for determination on appeal. For space considerations I will restrict my discussion to only two of these issues, namely:

  • Whether the 2005 agreement was breached and, if so, in what respects?
  • Whether the High Court was correct to make orders of delinquency in relation to Gihwala and Manala.

Wallis JA held that the 2005 agreement contained various tacit terms, inter alia, that Grancy was to become holder of one-third of the shares in SMI. Although it was not a partnership agreement, it was similar to one in many respects. Gihwala and Manala stood in a fiduciary relationship to Grancy to protect its interest as a shareholder.

There were clear breaches of the agreement, inter alia, by Gihwala and Manala refusing to acknowledge Grancy as a shareholder; and by refusing the latter to exercise certain rights of a shareholder.

Finally, the court upheld the orders of delinquency in relation to Gihwala and Manala. It held that they had acted with gross negligence and in breach of their fiduciary duties to SMI by appropriating benefits received from Ngatana for themselves while it should have gone to the company and then to its three shareholders. Their actions fell squarely within the grounds for a delinquency order as described in s 162(5)(c) of the Companies Act 71 of 2008 because they grossly abused their position as directors and intentionally or, at the very least, through gross negligence, caused harm to SMI.

The court further held that s 162(5) was not a penal provision but intended to protect the investing public against directors who engage in serious misconduct and act in breach of the trust that shareholders place in them. This is not an arbitrary or capricious provision limiting their right to choose a profession but is in the public interest.

The appeal was dismissed and Gihwala, Manala and the Trust were declared liable, jointly and severally to Grancy.

Contempt of court

Failure to follow direction: At stake in MT v CT 2016 (4) SA 193 (WCC) was the question whether a plaintiff, the mother, who appeared for herself in a divorce matter, was guilty of contempt of court where the presiding judge gave the mother directions in terms of Uniform Rule 37(8)(c), but she failed to adhere to.

The principle issue in the divorce action was the care and contact arrangements in relations to the parties’ minor son (the son). The son was living with the mother. At a pre-trial hearing on 6 November 2015 the court directed the mother in terms of r 37(8)(c) to facilitate a meeting with a representative of the family advocate’s office in order to allow the latter to complete an assessment of the son in his domestic environment. The mother failed to adhere to the direction.

The mother was ordered to appear before the present court to answer to charges of contempt of court for her failure to answer to the direction given by the court.

In the contempt of court charge the mother was represented by an advocate who appeared amicus curiae.

It was argued on behalf of the mother that a direction in terms of r 37(8)(c) is not an order of court and that contempt proceedings were accordingly not appropriate.

Gamble J held that, provided the mother has acted with wilfulness or mala fides, her failure to adhere to the direction given on 6 November 2015 is indeed capable of being addressed through contempt proceedings.

The mother’s assumptions of bias on the part of the representative of the office of the family advocate were manifestly unreasonable in the context of clear directions to participate in the obligatory investigation being conducted by the family advocate.

The court accordingly held that the mother acted in contempt of court. It decided to afford an opportunity to the parties to address the court afresh on the aspect of an appropriate sanction, before handing down such action. The matter was accordingly postponed to a later fixed date.

Credit law

Reinstatement of credit agreement: In Nkata v FirstRand Bank Ltd 2016 (4) SA 257 (CC); 2016 (6) BCLR 794 (CC), the CC brought clarity on the vexed question whether debtors can reinstate a credit agreement in terms of s 129(3) of the National Credit Act 34 of 2005 (the NCA).

The facts were that a consumer, Nkata, who was in default of a mortgage loan agreement, paid all overdue instalments, but did not make separate payment of the ‘costs of enforcing the agreement’, which the credit provider FirstRand Bank (the bank) had debited to her account. She brought an application for the rescission of a default judgment obtained against her by the bank, together with an application for the cancellation of the sale in execution of her immovable property.

The High Court refused rescission, but at its own instance reinstated the credit agreement in terms of s 129(3)(a) of the NCA. This section allows reinstatement if a consumer pays all overdue amounts, including the default administration costs and reasonable enforcement costs. This right may, however, only be exercised before –

  • the creditor cancels the agreement; and
  • where, the property has been sold in execution or the execution of any other court order enforcing that agreement, as provided for in subss 129(3) and (4).

The application for rescission was preceded by a previous application for rescission. That application was settled by the parties on condition that Nkata would pay all arrears and, in the event of failure to do so, the bank would be entitled to proceed forthwith with the execution sale. The settlement was never made an order of court. Although Nkata paid all of the arrears on the account, she did not make any payments towards the agreed default administration costs or the reasonable costs in enforcing the agreement that the bank had incurred. The bank at no stage made a separate claim for these costs, but simply added them to the outstanding amount on her bond account. When Nkata again fell into arrears, the bank caused the property to be sold in execution.

The High Court held that a judgment was only actually executed when money was raised pursuant to a sale of attached property and paid to the judgment creditor. Accordingly, s 129(4) was no bar to the reinstatement of the agreement in terms of s 129(3). It also held that on the facts the agreement had been reinstated and it accordingly cancelled the execution sale.

The bank appealed to the SCA. The SCA held that for a consumer to be able to reinstate a credit agreement, the debtor did not need to pay the full accelerated debt, but only the arrear instalments and the costs. It also held that since the property had been sold in execution, the agreement could not be reinstated.

Nkata appealed to the CC where the Cameron J, for the majority held that the main objective of the NCA is the protection of consumers. This protection, however, must be balanced against the interests of credit providers. The court emphasised that the NCA was a clean break from the past and encourages dialogue between consumers and credit providers.

It is trite that subss 129(3) and (4) introduced a novel relief of reinstatement. A consumer is entitled to reinstate the agreement if it has not been cancelled and is also entitled to return of the attached property. Cancellation can only take place after the credit provider has initiated enforcement proceedings by issuing a s 129 notice. Section 129(3) requires only the arrear instalments to be paid, and not the full accelerated amount of the debt as the latter approach would make the remedy meaningless.

Section 129(3) requires the consumer to pay all the amounts that are overdue plus the permitted default charges and reasonable costs of enforcing the agreement. The legal costs, however, only becomes due and payable when they are reasonable, and agreed or taxed, and on due notice to the consumer.

Reinstatement takes place by operation of law when the consumer has made the necessary payments. There is no requirement that the reinstatement needs to be communicated to the credit provider to be effective.

In the present case the bank never demanded payment of the costs. It simply added them to the bond account without any notice to the consumer. The costs were never agreed or taxed and had therefore never become due. The court held that the bank should have demanded payment of the reasonable costs of enforcing the agreement separately from Nkata’s arrears, and brought them to her attention.

The appeal was accordingly allowed and the court held that the agreement was validly reinstated and the execution sale rescinded. It ordered the bank to pay Nkata’s costs in the High Court, the SCA and the present court.

Education

Provision of textbooks: In Minister of Basic Education and Others v Basic Education for All and Others 2016 (4) SA 63 (SCA); [2016] 1 All SA 369 (SCA), the court was asked to consider the parameters of the constitutional right to education. The salient facts were that the Department of Basic Education (the department) adopted a new curriculum for schools. The new curriculum included new textbooks. However, the department failed to provide textbooks to certain public schools in Limpopo. The respondent, Basic Education for All (BEFA), was a voluntary association based in Limpopo and was formed in response to the education crisis in Limpopo.

BEFA obtained a High Court order declaring the constitutional rights of the affected children. The court ordered the department to deliver the books. The department appealed to the SCA.

Navsa JA held that the issue at stake here was whether the constitutional right to a basic education as enshrined in s 29(1)(a) of the Constitution included a right of each learner to be given the textbook prescribed for each subject before the start of teaching of that subject. Although s 29(1)(a) does not spell out the details of the right to basic education, the centrality of textbooks in the realisation of the right to a basic education is uncontested. Clearly learners who do not have textbooks are adversely affected. The failure to provide textbooks to learners in the present circumstances was a violation of the rights to a basic education, equality, dignity and of s 195 of the Constitution.

The appeal was dismissed with costs and the department was ordered to provide every learner with every textbook prescribed for his or her grade before commencement of the teaching of the course for which the textbook is prescribed.

Nuisance

Neighbour disputes: The facts in BSB International Link CC v Readam South Africa (Pty) Ltd and Another 2016 (4) SA 83 (SCA); [2016] 2 All SA 633 (SCA) were as follows: The first respondent, Readam, successfully applied for an order in the court a quo directing that a building owned and constructed by the appellant, BSB, in Parkmore, Sandton be demolished to the extent necessary to ensure compliance with the applicable town planning scheme. The primary relief sought by Readam in terms of r 53 of the Uniform Rules of Court, was directed at reviewing and setting aside the building plans approved by the municipality in terms of s 7 of the National Building Regulations and Building Standards Act 103 of 1977 (the Act). Despite that, the second respondent – the Johannesburg Metro Municipality (the municipality) – filed no answering affidavit and took no part in the proceedings.

In response to Readam’s application, BSB launched a counter-application founded on the complaint that it was prejudiced in its defence of the main application, by the inadequate record furnished by the municipality. It also sought orders against Readam and the municipality directing Readam to itemise all documents and other information, which Readam contended were missing from the record filed by the municipality. Finally, an order was also sought staying the review proceedings pending the municipality’s furnishing of the missing portions of the record. The counter-application was dismissed, and on appeal, BSB sought leave to appeal primarily on the basis that the court a quo had erred in dismissing its counter-application, asserting that it had been denied a proper opportunity to be heard and defend itself against the challenges made by Readam.

BSB also submitted that there was a dispute of fact on the papers as to whether the requirements of the scheme had been contravened with regard to the permissible coverage of the building on the site, and the provision of adequate parking.

On appeal to the SCA Ponnan and Swain JJA in a joint judgment decided that BSB’s submissions were without merit. It held that it was clear that BSB’s construction had infringed on the relevant zoning provisions in respect of coverage and parking. A court hearing an application in terms of s 21 of the Act, has no latitude not to order the complete demolition of a building once the jurisdictional fact, namely that the building was erected contrary to the Act, was established. Only a local authority or the minister has locus standi to bring an application in terms of s 21 before a magistrate. The statutory right to seek the remedies provided for in s 21 is clearly intended to enable local authorities and the minister, to ensure compliance with the provisions of the Act in relation to town planning schemes. Consequently, an individual with standing to bring an application to review and set aside the unlawful approval of building plans by a local authority would not have locus standi to pursue the remedies provided for in s 21.

However, Readam was not without a remedy. In the case of encroaching structures, the owner of the land which is encroached on can approach the court for an order compelling his or her neighbour to remove the encroachment. Despite the above rule the court can, in its discretion, in order to reach an equitable and reasonable solution, order the payment of compensation rather than the removal of the structure. This discretion is usually exercised in cases where the cost of removal would be disproportionate to the benefit derived from the removal. The court a quo failed to appreciate that it was possessed of that kind of discretion. BSB was warned that it was acting illegally and in spite of such warning, it deliberately persisted with its construction. The order granted by the court a quo which directed that the property be demolished to the extent necessary to ensure compliance with the scheme was correct.

The appeal was dismissed with costs.

Sale

Implied term: In Grainco (Pty) Ltd v Van der Merwe and Others 2016 (4) SA 303 (SCA) the facts were as follows: Grainco Investments (old Grainco) sold its business assets, including its goodwill, as a going concern to BKB Ltd. Old Grainco was subsequently liquidated. Although the contract refered to certain shareholders, that is, Thembeka Capital and two family trusts, they were not cited as parties to the agreement. Old Grainco was represented by Van der Merwe and Kitshoff, who were instrumental in the success of old Grainco.

The sales agreement included a five-year restraint of trade on Van der Merwe and Kitshoff. BKB then sold the business assets to a new company, which was renamed Grainco. Grainco employed both Van der Merwe and Kitshoff during the five-year period that their restraint of trade was valid.

On the lapsing of the restraint of trade, both Van der Merwe and Kitshoff resigned and formed a new company, Perdigon, which started trading across the street from Grainco. A number of other staff members also resigned from Grainco and joined Perdigon. Perdigon, as a direct competitor of Grainco, immediately started to canvass the customers of Grainco.

Grainco applied for an interdict against Van der Merwe and Kitshoff, relying on the implied term in the sales contract that where goodwill was sold as part of a going concern, the seller was not entitled to canvass the customers of the buyers.

The High Court refused the interdict because the implied term only bound the seller and not any other party. Neither Van der Merwe nor Kitshoff was a seller in terms of the sale. The contract of sale was concluded between BKB and old Grainco.

Plasket AJA held that the implied term at stake is often referred to as the ‘Trego prohibition’, referring to the origin of this term in English law in Trego v Hunt [1896] AC 7 (HL). The principle is that the seller of goodwill is prohibited from taking it back by canvassing the old business’ customers.

The existence of the ‘Trego prohibition’ in South African law was confirmed in A Becker & Co (Pty) Ltd v Becker and Others 1981 (3) SA 406 (A), namely if a seller disposed of the goodwill of a business he or she was not allowed thereafter to act contrary to the sale. In that case, Becker entered the agreement as director, but also in his personal capacity.

In this case, neither Van der Merwe nor Kitshoff, was a seller and the implied term can accordingly not be enforced against them. They were also no longer bound by the restraint of trade under the original contract of sale.

The appeal was dismissed with costs.

Sale in execution: In Sheriff of Johannesburg North and Another v Yellow Dot Property Investments and Another; In re: Absa Bank v Van den Berg [2016] 2 All SA 927 (GJ) the applicants sought the cancellation of a sale in execution of a property in the Johannesburg suburb of Westdene as a result of an alleged breach of conditions of sale by the respondents. The sale was concluded following an attachment in satisfaction of a debt due to the second applicant. The conditions of sale required the respondents to, inter alia, pay a deposit of 10% of the purchase price and to provide a guarantee to secure the purchase price within a specified time. The first respondent was also required to pay all municipal rates required for the issue of rates clearance certificate. Although the deposit was paid on time, the other obligations were not met by the respondents. The late payment of the amounts relating to those outstanding obligations led to the first applicant seeking the cancellation of the sale.

Siwendu AJ held that an agreement concluded pursuant to sale in execution may only be cancelled by a court order on application by the Sheriff. However, the Sheriff in this case overlooked the first respondent’s various breaches. A failure to cancel a contract within a reasonable time after breach may signify an election to abide by the contract. The legal principle that a failure to cancel a contract within a reasonable time after the breach may provide evidence of an election to abide by the contract applies in our law. In this regard the court referred with approval to the decision in Paradyskloof Golf Estate (Pty) Ltd v Municipality of Stellenbosch 2011 (2) SA 525 (SCA); [2010] 4 All SA 591 (SCA).

Moreover, the Sheriff had not fulfilled his own obligations in terms of the agreement. In this regard the court relied on the long standing principle that where a defence is raised against a party, it is incumbent on the applicants to prove that they have complied with their obligation (BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A)). Applied to the present facts the court held that the first applicant was obliged to demonstrate compliance. It failed to do so.  The series of errors relative to the exact amount payable by the respondents in respect of the rates left the applicants’ case dissatisfactory.

The application was accordingly dismissed with no order as to costs.

Wills

Execution: In Mlanda v Mhlaba and Others 2016 (4) SA 311 (ECG) the testatrix, or a person purporting to be the testatrix, signed her will by making a mark. The applicant averred that she is the stepdaughter of the testatrix and the sole beneficiary of the intestate estate of the testatrix. Section 2(1)(a)(v) of the Wills Act 7 of 1953 (the Act) requires in such a situation that the attending commissioner of oaths attach a certificate to the will, in which he or she certifies that he or she was satisfied as to the identity of the testatrix, and that the will was indeed her will. Section 2(1)(a)(v) is intended to prevent an imposter marking the will; or when the mark-maker is genuine but unable to read, ensuring the document reflects his or her wishes. Section 2(1)(a) provides that if the certificate does not comply with the Act’s requirements, then the will is invalid.

In the present case the commissioner wrote in his certificate that ‘[t]he testator signed in my presence and of the two witnesses’. The question was whether the certificate complied with the requirements of the Act.

Pickering J held that use of the precise words of the Act was not required. What was required was that from the words used it could be inferred without doubt that the commissioner was satisfied of the facts stipulated in the Act. From the words used, doubt remained as to whether the commissioner had satisfied himself of the testatrix’s identity.

Because one of the statutory formalities requirements was not complied with, the court found the will to be invalid and of no effect.

The application was dismissed.

Other cases

Apart from the cases and topics that were discussed or referred to above, the material under review also contained cases dealing with: Administration of justice, civil procedure, criminal law, customs and excise, delict, divorce, immigration, lease, local authority, marine insurance, prescription and provincial governments.

This article was first published in De Rebus in 2016 (Sept) DR 35.