- November 22, 2023
- |Concise Law Reports (CLR), Wills And Estates
The facts are largely undisputed and not complex and are as follows: The farm was the property of the late grandparents of the defendants in the 2017 action (two of whom are the plaintiffs in the 2020 action). Upon the death of the defendants’ (in the 2017 action) grandmother, after she inherited the farm from her husband (the late grandfather of the defendants in the 2017 action), the farm was bequeathed to her seven children (some of whom are the defendants’ in the 2017 action, parents) in terms of the intestate succession laws.
The defendants’ (in the 2017 action) grandmother’s executor (the seventh defendant in the 2020 action) faced the legal challenge and limitations of s 3 of the Subdivision of Agricultural Land Act, 70 of 1970 (‘Subdivision of Agricultural Land Act’) whereby the law precludes the registration of the farm into the names of more than one person. Given this limitation, the seven children of the defendants in the 2017 action grandmother concluded a redistribution agreement on 4 January 1986 whereby the farm would be registered in the name of a certain Clemens Bezuidenhout (‘Clemens’) and as such the seven children acted by the said redistribution agreement until Clemens’ death on 7 March 2009.
Following the death of Clemens the farm was then awarded to a certain Charles Jakobus Cloete (‘Charles’) – the son of Clemens. Despite the defendants’ legal practitioners addressing correspondence to the Registrar of Deeds at Rehoboth not to register the farm in the name of Charles, an endorsement was registered on 7 February 2014 in terms of s 13 of the Registration of Deeds in Rehoboth Act 93 of 1976 (‘Rehoboth Deeds Act’) effectively transferring the farm to Charles. After such transfer, Charles sold the farm to the third plaintiff (the first defendant in the 2020 action) on 27 March 2017 and the endorsement in terms of s 13 of the Rehoboth Deeds Act was registered.
The court was tasked to determine whether the sale of the farm to the third plaintiff (the first defendant in the 2020 action) by Charles was valid given that the defendants argued that Charles (who sold the farm to the third plaintiff) knew that he was not the owner of the farm and that it was simply transferred to Clemens (Charles’ father) as the guardian of the farm as a result of the legal limitations imposed by the Subdivision of Agricultural Land Act. If found that the sale was invalid, the court was to further determine the consequences flowing from such invalidation.
Discussion
Ueitele J
‘[35] Deceased estates in Namibia are administered by several statutory instruments. Such instruments include the Administration of Estates Act 66 of 1965, Administration of Estates (Rehoboth Gebiet) Proclamation 36 of 1941 and the Native Administration Proclamation 15 of 1928 (as amended). When a person dies; his beneficiaries or heirs may inherit movable or immovable assets or both movable and immovable assets in terms of a valid will (testate succession) or intestate succession (in terms of the Intestate Succession Laws). However, not all the beneficiaries or heirs concerned may be thrilled with what they have inherited, or they may face legal limitations, particularly where movable or immovable property is left to more than one beneficiary or heir for instance.
[36] The common law’s response to prevent co-ownership of either movable or immovable property was to permit beneficiaries or heirs to conclude what has become known as redistribution agreements. The common law also subsequently developed and extended the causa for redistribution agreements to carry out the wishes of testators or to comply with certain legal limitations imposed by law such as the Agricultural Land Act 70 of 1970 and enable an individual heir to take sole ownership of certain assets in terms of such redistribution agreement.
[37] In essence, a redistribution agreement, subject to testate or intestate succession, provides a channel whereby beneficiaries or heirs can restructure or reshuffle the allocation of assets amongst themselves if desired.
[39] A redistribution agreement may not be contrary to the common law rule, in that the explicit provisions of a will may not be departed from, even though there was an agreement between the interested parties. According to our common law, it is thus clear that it will only be admissible to enter into a redistribution agreement to redistribute assets acquired by heirs or legatees by a will or ab intestate, and thus they cannot agree to alter the provisions of the will or law relating to intestate succession. However, s 14(1)(b)(iii) of the Deeds Registries Act 47 of 1937 has altered the common law position, but this section does not apply to the present matter.
[40] There exists no prescribed form for a redistribution agreement, however, from the wording contained in regulation 5(1)(e) of the Administration of Estates Act 66 of 1965, a redistribution agreement must be in writing. Furthermore, s 2(1) of the Alienation of Land Act 68 of 1981 also provides that if immovable property is involved in such redistribution, then the redistribution agreement must be in writing. Even though no form is prescribed for a redistribution agreement, a redistribution agreement may not, as mentioned earlier, be contrary to the common law. In De Wet v De Wet and Others 1951 (4) SA 212 (C) at 216 the court held that:
‘… a legatee’s interest under a will is limited to what has been given to him thereunder, and the second is that an executor must administer and distribute the estate of a deceased person in strict accord with the terms and directions contained in such person’s will, if any. It is also, I think, implicit from the numerous cases which have been decided in our Courts upon applications for relief, whether by beneficiaries under a will or by executors, that acts and agreements by and between them which vary or modify the terms of a will are invalid and unenforceable unless sanctioned by the Court, which sanction is given only in certain excepted cases.’
[45] The conclusion I have arrived at is fortified by Article 16(1) of the Namibian Constitution which holds that ‘all persons shall have the right in any part of Namibia to acquire, own and dispose of all forms of immovable and movable property individually or in association with others and to bequeath their property to their heirs or legatees: provided that Parliament may by legislation prohibit or regulate as it deems expedient the right to acquire property by persons who are not Namibian citizens.’ To disinherit legitimate heirs by way of redistribution agreement, as the redistribution agreement in this matter does, is just untenable.
[46] This is not the end of the matter. The finding that the redistribution agreement is void gives rise to another question namely whether it follows, as contended by the plaintiffs, that the transfer of the Farm to Clemens and subsequently to other third parties must be regarded as a nullity. Put in another way, did the registration of the transfer of the Farm to Clemens effectively transfer dominium in the Farm to him?
[47] What was, in principle then necessary so that dominium in the Farm must pass? Badenhorst et al discuss and deal with this matter. They argue that one of the requirements is that the parties to an agreement to pass ownership in a thing must be in a position to pass and acquire ownership, which means normally that the transferor must be the owner or authorised by the owner. Another requirement listed by the learned authors is that the parties must be legally competent to give and receive ownership. And the third requirement is that the parties must intend the passing of ownership. In this regard, the learned authors deal with the difference between the ‘abstract’ and ‘causal’ approaches to the transfer of dominium.
[49] By parity of reasoning, the executor in the estate of the late Christina, when transferring the Farm to Clemens, purported to exercise that power in terms of the redistribution agreement he was not mistakenly exercising a power which he had but was purporting to exercise a power which he did not have at all in terms of the Administration of Estates (Rehoboth Gebiet) Proclamation 36 of 1941. Not only was the redistribution agreement void but that agreement also made it clear that Clemens was holding the Farm in trust for the other interstate heirs and dominium could thus not pass to him. The executor in the estate of the late Christina thus had no power to transfer the Farm to Clemens. Ownership of the Farm therefore never passed from the estate of the late Christina to Clemens and all subsequent transfers are therefore void.
[50] The conclusion that I have arrived at, namely, that the executor in the estate of the late Christina did not have the power to pass ownership in the Farm to Clemens makes it unnecessary for me to consider whether, based on the ‘abstract’ or ‘causal’ theories, dominium in the property was transferred.
Therefore, the court held the following:
a) a redistribution agreement, subject to testate or intestate succession, provides a channel whereby beneficiaries or heirs can restructure or reshuffle the allocation of assets amongst themselves if desired.
b) a redistribution agreement may not be contrary to the common law rule, in that the explicit provisions of a will may not be departed from, even though there was an agreement between the interested parties.
c) in the present matter, the redistribution agreement does not amount to an equitable variation or reshuffle of the estate assets in terms of intestate succession laws nor does each beneficiary who is a party to the redistribution agreement contribute something and receive something. The redistribution agreement amounts to a covert donation and nothing more.
d) the redistribution agreement concluded by the executor and the intestate heirs of the defendants’ grandmother is invalid and void ab initio.
e) the executor in the estate of the defendants’ grandmother thus had no power to transfer the farm to Clemens, ownership of the farm therefore never passed from the estate of the defendants’ grandmother to Clemens and all subsequent transfers are therefore void.
As a result, the court declared the redistribution agreement concluded, on 4 January 1986, between the executor in the estate of the late Christina Martina Bezuidenhout and the intestate heirs to that Estate, void ab initio.