Goosen v Wiehahn (761/2018) [2019] ZASCA 137 (1 October 2019)

/ / 2019, Law of Succession


This case dealt with the will of one late Abhraham Gerhadus Geldenhuys (the “Testor”) executed on 27 November 1990 (the “Will”). Included in the Testor’s estate was 2 (two) farms described as Hunites and Holte (the “Farms”), which he bequeathed to his wife, Mrs Alberta Johanna Geldenhuys (“Mrs Geldenhuys”). The bequeath was subject to the following conditions in terms of the will:

2.1. The spouse of my daughter, Johanna Magrietha Goosen, born Geldenhuys, will, in the event of my spouse intending to sell the properties, have the first option to buy the farm Hunites and/or the farm Holte on the following terms: 2.1.1. The purchase price of the farm Hunites will be calculated at R20.00 per morgen and the purchase price of Holte will be calculated at R30.00 per morgen… 2.3.  If my spouse does not sell one or both farms during her lifetime, the spouse of my daughter, Johanna Magrietha Goosen (born Geldenhuys), shall have the option as described in clause 2.1 above, upon the death of my spouse and for a period of 3 months thereafter, to buy the property (one or both) on and subject to the same terms as described in clause 2.1 with sub-clauses above and subject to the conditions of clause 7 below…”

The Farms were transferred to Mrs Geldenhuys on 26 May 1997, subject to the above conditions. During June 2000, Mrs Geldenhuys, in terms of clause 2.1 of the Will, sold and transferred the farm Holde to Gert Johannes Scheepers Goosen (the “First Appellant”), being the spouse of the Testator’s daughter, Johanna Magrietha Goosen (the “Second Appellant”)

On 05 December 2017, Mrs Geldenhuys died. On 24 January 2017, the First Appellant addressed the below letter, in terms of clause 2.3 of the Will, to the executrix of the estate of the late Mrs Geldenhuys (the “Executrix”):

Exercise of Option – Farm Hunites
I hereby inform you that I am going to exercise the option on the farm Hunites, according to the terms of the Will of my late father-in-law, AG Geldenhuys.’
On 30 March 2017 the executrix entered into a written agreement of sale with the first appellant for the farm Hunites for the sum of R176 200, being R20.00 per morgen as stipulated in clause 2.1.1 of the will.”

Two months later, one of the Testator’s daughters, Elsa Wilhemina Wiehahn (the “First Respondent”), made an urgent application in the Northern Cape Division of the High Court, Kimberley (the “court a qua”). The First Respondent was aggrieved that the purchase price of farm Hunites (being the fixed price of the farm in terms of clause 2.1.1) was only a fraction of the actual value of the farm being R5.2million.

The First Respondent contended that Clause 2.3 of the Will constituted an option to purchase, which option was regulated by the Alienation of Land Act 68 of 1981.


The court a qua found in favour with the First Respondent and granted her the relief sought in the amended notice of motion. In arriving in its decision, the court a quo reasoned that Clause 2.3 was subject to formalities of the Alienation of Land Act 68 of 1981, which formalities were not complied with. As such, the court a quo held that the sale of the farm Hunites concluded between the First and the Fifth Respondent on or about 30 March 2017 be declared null and void in favour of the First Respondent.

On appeal, the SCA disagreed with the decision of the court a quo together with its reasoning. The SCA stated that a court must, when interpreting a will, determine the testator’s wishes based on the language used by the testator in the will, which language must be interpreted according to the circumstances that prevail at the time the will was executed.

The SCA further stated that there is a presumption that “in doubt as to the interpretation of testamentary writings, that construction should be adopted which would give effect to the voluntas of the testator, rather than that which would nullify the deed.”

The SCA held that Clause 2.1 and was applicable during Mrs Geldenhuys’ lifetime and Clause 2.3 was applicable upon her death. Mrs Geldenhuys did not adiate under the Will prior to the rights granted to her in terms of the will could become enforceable. Even though she obtained dominium on transfer, she was not entitled to dispose of the Farms as deemed appropriate. The rights to dispose of the Farms as she deemed fit was restricted by the right conferred onto the First Respondent in terms of the Will. Further, the First Respondent did not obtain a real right to immediately enforce transfer. Instead, he obtained a personal right that was firstly enforceable against Mrs. Gelfenhuys, during her lifetime and secondly against the Executrix.

Clause 2.3 of the Will compelled the Executrix to first offer the farm Holte to the First Appellant and for him to exercise his right to purchase it. There was no difference in terms of clause 2.3 and 2.1 in the nature of right conferred upon the First Appellant by the Testator. Accordingly, the ‘real source’ of the right in this case is the “disposition by the Testator”. The disposition by the Testator was not a pactum de contrahendo (an agreement to make a contract) but a “fons et origo” of the right in that it is regulated by a testamentary disposition.

In that regard, the SCA held that:
The eventual acquisition by the first appellant of the property bequeathed would be an ‘acquisition by succession’ and the fact that some ‘juristic act by the beneficiary is a prerequisite to his acquisition is not, per se, a bar to such acquisition being one by succession


A right to bequeath is personal in nature. As such, the personal right is not a pactum de contrahendo in that it is regulated by a will or testamentary disposition

Written by Mohau Ledwaba Checked by Omphile Boikanyo

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