The background of Hart v Hart and Others [2025] 1 All SA 373 (WCC) is founded on Mr Hart’s second marriage to Mrs Hart, which marriage produced one son, and together with Mr Hart’s three sons from a previous marriage, a blended family of six was created. Mr Hart passed away in 2013, and in his will, he appointed his four sons as co-executors of his estate and left the residue of his estate to the same sons subject to a life usufruct in favour of Mrs Hart over a certain immovable property. The estate of the deceased was wound up and distributed, and the immovable property was registered in the Hart brothers’ names in 2015 subject to the usufruct right, also registered simultaneously with the inheritance transfer.

The immovable property in question was utilised and operated as leisurely alternative accommodation and continued to do so under the full supervision of Mrs Hart, by virtue of the usufruct granted in her favour. Due to her advanced age, Mrs Hart was unable to operate business on the property and sought to sell the property and thereafter invest the proceeds in an income-bearing investment portfolio that would ensure that her lifestyle is sustained by the interest earned thereon, but there was only one problem, the Hart brothers refused to consent to the sale of the immovable property.

Mrs Hart sought relief from the Western Cape Division of the High Court in Cape Town on the strength of the registered usufruct condition to compel the Hart brothers to consent to the sale of the property. Mapoma AJ narrowed the issue to be a determination of the correct interpretation of the will of the deceased, and held that the wording of the usufruct condition enabled the usufructuary holder to sell the property despite the objection of the registered owners, and held further that the will condition provided that the Hart brothers as executors could not unreasonably withhold consent to the sale of the bare dominium asset. The court thereafter ordered the Hart brothers to sign all necessary documents consenting to the sale of the immovable property and alternative investment of the proceeds from the sale.

The case before Mapoma AJ was determined on the interpretation of succession law, however, the laws of property ownership found greater application in the circumstances because the estate of the deceased had been wound-up, and the assets of the estate had been distributed to the heirs in accordance with the wishes of the testator. The common law differentiates between a real right and a limited real right, the former referring to a tangible and recognised right to the absolute discretion of the holder and enforceable against the world-at-large. The latter refers to a personal right over a real right enforceable by the holder of the limited right against the person who has granted such a right. It is evident that ownership falls into the category of a real right, whereas a usufruct is a limited real right over an asset owned by a third party. A person with a limited real right may not have more rights or legal protection than the person with a real right over the asset in question.

In the present case, Mrs Hart, as usufructuary holder, has a limited real right to reside in the property and enjoy the fruits of the property for the duration of her life without disturbance from the Hart brothers, the registered owners of the property and holders of real rights over the property. Mrs Hart, therefore, did not have more rights than the registered owners, and as a result, did not have locus standi to alienate the immovable property. The High Court erred in finding that the wording of the will allowed her to do so since the property had been inherited by the Hart brothers and a real right was registered in her favour. The court reduced the registered owners of the property to ‘interested parties’ when the right to alienate vests in the holder of the real right, and the usufructuary holder would constitute an ‘interested party’ who may consent to the disposal of the asset in question.

The High Court may have misapplied the law in overlooking property law rights in favour of succession law and the interpretation of the intentions of the will of the deceased for an estate that had been long finalised. In doing so, it attributed more rights to the usufructuary holder and issued an order that resulted in the automatic deprivation of property belonging to the Hart brothers, thereby violating their right to property in terms of s 25 of the Constitution.

Even if the argument of interpreting the intentions of the testator were to be considered, the court could have easily arrived at the same conclusion as set out above because the special bequest in the will was enforceable in part, the additional concessions of the usufruct bequest require it be utilised with the consent of the executors, that is, when the asset still forms part of the deceased estate. The remainder of the clause is legally unenforceable because the heirs are unable to inherit until the death of the surviving spouse, and thereby delaying the winding up of the estate, and this is in conflict with s 35(1) of the Administration of Estates Act 66 of 1965, which provision empowers the executor of the estate to finalise the deceased estate as soon as reasonably possible.

Further, it was an unnecessary avenue for the court to qualify the limited real right as a ‘full usufruct’ because there is no scale or grading thereof to suggest a ‘partial’ or a ‘full’ usufruct, as though such right is unfettered. At best, a usufruct right can be limited in its use by factors such as duration, remarriage, vacating the premises and other circumstances. The special bequest conflicts with the inheritance of the residue of the estate whereby such inheritance by the Hart brothers will be held in abeyance until the death of the surviving spouse, when the usufruct condition would lapse, and the inheritance would be free of any restrictions. The court order has also suggested that the inheritance is to be reverted to the deceased estate for Mrs Hart to exercise the rights fully granted to her in the will, with the consent of the executors.

In conclusion, whether considered through the lens of succession or property rights, the usufructuary holder has limited rights that do not outweigh the rights of the registered owners, under any circumstances, and the consequence of the judgment in this case is there has been an arbitrary deprivation of property from the registered owners, and even if the will of the deceased allowed such deprivation, the special bequest in itself was unenforceable and in conflict with the Hart brothers’ ownership of the property.

Vuyo Sobantu LLB (UKZN) is a legal practitioner at Stowell and Co Inc in Pietermaritzburg.

This article was first published in De Rebus in 2025 (April) DR 25.