Spangenberg and Others v Engelbrecht NO and Another [2023] ZASCA 100
‘Death is not the end. There remains the litigation over the estate.’ (Ambrose Pierce, quoted by Weiner JA)
The deceased (HS) executed a will in 1992 in which, among others, he bequeathed two pieces of land to his three children, IS, MW and CC, subject to a right of habitatio in favour of his spouse, GS, until her death or remarriage, whichever happened first. The one piece of land was where HS and GS resided until HS’s death, while on the other HS had several buildings erected in the years after his will was executed and up to a year before his death in 2010. In their ante-nuptial contract (ANC) entered into in 1985, HS granted a right of habitatio to GS over the land on which they resided. In 1991, before the execution of the will, HS came to an agreement with IS to divide this second piece of land into three portions – one for each of the three children. In 1996 HS had a house erected for MW on one portion. In the same year IS erected several flats on another portion and started to reside there. In 1998 HS had a house erected for CC on the third portion. In 2009 HS requested IS to erect a storage facility for himself on the portion he occupied to enable IS to remove his plant and equipment from the erf on which HS and GS resided. IS erected the storage facility.
A dispute arose about the interpretation of the will. The executor (FE), who is the first respondent in the appeal, held the view that the will clearly extends a right of habitatio over both the pieces of land to GS. The three children disputed that the habitatio was also given over the second piece of land and contended that it was only over the erf with the residence in which HS and GS resided. FE approached the Northern Cape High Court for a declaratory order. The court (Lever J) gave an order confirming FE’s interpretation. IS, MW and CC appealed against this order with leave of the Northern Cape High Court.
The Supreme Court of Appeal (Weiner JA, with Petse AP, Mbatha, Matojane JJA and Mali AJA concurring) dismissed the appeal with costs. The appellants argued that the surrounding circumstances, including the agreement between HS and IS, the wording of the ANC as well as the events following the execution of the will in 1992, led to the inescapable conclusion that HS never had any intention to extend the habitatio to the second piece of land. The court referred to the so-called golden rule as set out in Robertson v Robertson 1914 AD 503 which states:
‘The golden rule for the interpretation of testaments is to ascertain the wishes of the testator from the language used. And when these wishes are ascertained, the court is bound to give effect to them, unless we are prevented by some rule or law from doing so.’
The court also referred to Natal Joint Municipal Pension Fund v Endumeni Municipality in which the principle was laid down that documents must be interpreted by attributing meaning to words within the context of the document. The court came to the conclusion that the will is unambiguous in its granting of the habitatio to GS over both properties and that nothing in the context suggests otherwise.