THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

Case number: 126/08

In the matter between:

TABEA JACOBS                                                                  First Appellant
CLIFFORD JACOBS                                                       Second Appellant
TABIA INVESTMENT HOLDINGS CC                         Third Appellant

and

HERRN SEBASTIEN BAUMANN NO                           First Respondent
SAMUEL SPYCHER                                                    Second Respondent
JOHANNES SPYCHER                                                  Third Respondent
RAHEL SPYCHER                                                       Fourth Respondent
THERESE SPYCHER                                                      Fifth Respondent
DAVID SPYCHER                                                            Sixth Respondent

Neutral citation:  Jacobs v Baumann NO (126/08) [2009] ZASCA 43 (8
May 2009)

CORAM:  MPATI P, LEWIS, VAN HEERDEN, JAFTA et MAYA  JJA
HEARD:
5 March 2009
DELIVERED:
8 May 2009
Summary:  Whether summons issued in an action, launched by an executor
of a deceased estate subsequently found to have been
unlawfully appointed, a nullity – whether substitution of
executor having effect of adding a new party to the action and
prejudicing to the appellants.

_____________________________________________________________
ORDER
_____________________________________________________________
On appeal from: Cape Provincial Division (Bozalek J sitting as court of
first instance)
The appeal is dismissed with costs including those occasioned by the
employment of two counsel.

JUDGMENT

MAYA JA (MPATI P, LEWIS, VAN HEERDEN, JAFTA JJA
concurring):

[1] This appeal is against a judgment of the Cape High Court (Bozalek J)
which upheld the respondents’ application for the substitution of the first
respondent, Mr Sebastien Baumann NO (Baumann), as ‘representative of the
heirs’ of a deceased estate and for the joinder of the sixth respondent, one of
such heirs, in action proceedings instituted by the second to fifth respondents
(the respondents) against the appellants. The appeal is with the leave of the
court below.

[2] The essential facts may be briefly stated. The respondents are Swiss
nationals. The second to fourth and the sixth respondents are the children of
Mr Hans Rudolph Spycher (the deceased), also a Swiss national until his
death in Switzerland on 3 February 2004. The fifth respondent is his widow
and the first appellant is his daughter. All are heirs to his estate in terms of a
will dated 8 November 1995. The first and second appellants are married to
each other and reside in South Africa. They were members of the third
appellant, a close corporation, at the material time.

[3] The real bone of contention between the parties is a loan of CHF
600 000 (six hundred thousand Swiss francs) which the deceased granted the
third appellant nearly 21 years ago, on 2 December 1988. The first appellant
represented the third appellant in the transaction. The loan was to be repaid
with interest over a ten-year period from the time of its grant, but on the
deceased’s death 15 years later, more than the capital sum originally
advanced remained owing. The deceased had recorded the indebtedness in a
codicil to his will executed on 30 March 2001.1

1 The facts relating to the loan are alleged in the respondents’ particulars of claim to which the appellants
are yet to plead, but it does not appear from the papers filed in the interlocutory proceedings under
challenge that they are disputed.

[4] It appears that the non-payment of the loan became a very sore point
for the respondents as it adversely impacted on the administration of
immovable property in the deceased estate, to the extent that there was a
looming threat of a sale in execution. As a result, relations between the first
appellant and the respondents soured. The respondents consequently had a
Mr Wirz appointed as ‘representative of the heirs’, apparently a Swiss
equivalent of an executor of a deceased estate, by a Swiss district court on 5
December 2004. On 29 December 2004 they obtained another order (headed
‘Correction of the appointment dated 15 December 2004’) from the same
court, changing Wirz’s initial appointment to that of ‘administrator of the
estate’.  Both orders were obtained without notice to their co-heir, the first
appellant, apparently in breach of the relevant Swiss law.

[5] On 1 February 2005, the respondents instituted an action against the
appellants in the Cape High Court for the repayment of the loan and
ancillary relief. Wirz was also cited (reluctantly so it seems, but nonetheless
cited) as the first plaintiff in these proceedings in his nominal capacity as
‘trustee’ of the deceased estate. In response to the action, the appellants
entered appearance to defend and fired their first salvo by successfully
appealing Wirz’s appointment in Switzerland. They obtained an order from a

Swiss Canton Court on 25 April 2005 setting the appointment aside, having
earlier obtained an interim order, on 28 February 2005, effectively
interdicting Wirz from acting either as ‘representative of the heirs’ or
‘administrator of the estate’. The view of the Canton Court was that the
magistrate’s failure to grant the first appellant a hearing or arrange
negotiations between the parties had seriously infringed her procedural
rights. The matter was accordingly remitted to the district court for
reconsideration.

[6] Thereafter, on 21 September 2005, Baumann, a Swiss attorney
specializing in inheritance law, was appointed as the ‘representative of the
heirs’. The appellants sought to challenge this appointment too, but failed.
After certain preliminary processes, including communication with the
appellants, Baumann approved the pending action. The respondents then
attempted to substitute him for Wirz in the action and to join the sixth
respondent, who had been erroneously omitted, as a plaintiff.  It is the
appellants’ opposition to these proceedings that has brought the parties this
far.

[7] In the court below, as here, the appellants contended in the main that a
substitution of the executor was impermissible because (a) the summons in
the action was a nullity as there was no duly appointed executor when it was
issued and Wirz lacked authorisation to litigate on behalf of the deceased
estate; and (b) the running of prescription in respect of the repayment of the
loan had thus not been interrupted by the issue of summons and, as
Baumann would become plaintiff nunc pro tunc, allowing the substitution
would prejudicially deprive them of the opportunity of raising prescription
as a defence.

[8] The court below found, inter alia, that the issue of prescription was
not relevant as it had not been sufficiently pleaded or dealt with in the papers
and that the key considerations were whether the summons was a nullity and
whether the appellants would suffer any prejudice if the substitution – the
sixth respondent’s joinder was pegged on the success or otherwise of the
substitution – was allowed. The court then held that the summons was not a
nullity and that substitution would not change the essential nature of the
action because the heirs always intended to cite, as a party to the action, the
administrator or trustee of the deceased estate, which Wirz was when the

action was instituted, and that it remained open to the appellants to raise any
defence they wished in the progression of the action.

[9] In argument before us, the respondents challenged the appealability
of the judgment of the court below arguing that leave to amend a pleading,
such as was granted, is interlocutory and does not have the effect of
disposing of at least a substantial portion of the relief claimed in the action. I
do not agree. It is trite that, generally speaking, a judgment or order is
susceptible to appeal if it is (a) final in effect, ie unalterable by the court
which made it; (b) definitive of the rights of the parties in that it grants
definitive and distinct relief; and (c) dispositive of at least a substantial
portion of the relief claimed in the main proceedings.2 Therefore, a court
determining whether or not an order is final considers not only its form but
also, and predominantly, its effect.3 An order may not possess all three
attributes, but will nonetheless be appealable if it has final jurisdictional
effect4 or is ‘such as to “dispose of any issue or any portion of the issue in

2 Zweni v Minister of Law and Order 1993 (1) SA 523 (A).
3 South African Motor Industry Employers’ Association v South African Bank of Athens Ltd 1980 (3) SA 91
(A) at 96H; Zweni at 532H-I.
4 Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) at 10E-11B; Phillips
v National Director of Public Prosecutions 2003 (6) SA 447 (SCA) paras 18 and 19; Metlika Trading Ltd v
Commissioner for SARS [2004] 4 All SA 410 (SCA) para 24.

the main action or suit” or … “irreparably anticipates or precludes some of
the relief which would or might be given at the hearing” ’.5

[10]  In this case, if the appeal succeeds, the validity of the summons,
which is crucial for determining whether or not the amendment of the
particulars of claim is to be allowed and would obviously impact on the
defence of prescription if raised, will not be reconsidered at the trial. And if
it is, it will not be on the same facts. This, in my view, renders the judgment
of the court below final and susceptible to appeal, inasmuch as the effect of
substituting an executor of a deceased estate for the deceased in proceedings
is final regarding whether the summons issued in the deceased’s name is
valid even though issued in the name of a non-existent party.6

[11]  Turning to the merits of the appeal, the issues remain those argued in
the court below as indicated in paragraph 7 above. In weighing up the
parties’ submissions, the first question to be considered, as correctly
observed by the court below, is the role of a ‘representative of heirs’ or, as
the respondents termed it in their particulars of claim, a ‘trustee’ of a
deceased estate in the context of Swiss law. Questions of foreign law are

5 Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd 1948 (1) SA 839 (A) at 870; Cronshaw
v Coin Security Group (Pty) Ltd  1996 (3) SA 686 (A) at 690E-F.
6 Van Heerden v Du Plessis 1969 (3) SA 298 (O) at 303B-F.

questions of fact in our courts and, although judicial notice of the law of a
foreign state may be taken under s 1(1) of the Law of Evidence Amendment
Act 45 of 1988, this may only be done in so far as such law can be
ascertained readily and with sufficient certainty.7

[12]  The difficulty here is that no evidence was led in this regard and the
only relevant material available on record are the two judgments of the
Swiss Canton Court, translated from Swiss German to English, in the
proceedings
challenging
Wirz’s
and
Baumann’s
appointments
as
‘representative of the heirs’. Regrettably, even though these documents
allude to some relevant aspects of Swiss statutory law, little can be gleaned
from them because of the poor quality of the translation. The language used
is far from clear and, on various occasions, the translator recorded her
difficulty stating that she ‘presumed’ the meaning of some of the words from
the general context of the documents as she could not trace them in any
dictionaries. This renders the translated documents unreliable.

7 Schlesinger v Commissioner for Inland Revenue 1964 (3) SA 389 (A) at 396G; Caterham Car Sales &
Coachworks Ltd v Birkin Cars (Pty) Ltd 1998 (3) SA 938 (SCA) at 954B-E; MV Heavy Metal Belfry
Marine Ltd v Palm Base Maritime SDN BHD 1999 (3) SA 1083 (SCA) para 65; MV Alam Tenggiri Golden
Seabird Maritime Inc v Alam Tenggiri SDN BHD 2001 (4) SA 1329 (SCA) para 21;

[13]  In that case, it must be presumed that Swiss law is the same as South
African law on this aspect.8 The rule in our law is that the only proper
person to litigate on behalf of a deceased estate, in the vindication of its
assets, is its executor even to the exclusion of the beneficiaries in the estate.9
This means that a Swiss equivalent of an executor of the deceased estate was
required to initiate and conduct the action instituted on 1 February 2005. It
must then be considered whether Wirz’s appointment as administrator of the
estate and involvement in the action meets this requirement.

[14]  As already indicated, the thrust of the appellants’ case was that the
summons instituting the action in February 2005 was invalid, and the
substitution requested consequently impermissible, as there was no legally
appointed executor with authority to litigate on the estate’s behalf until
Baumann’s appointment in September 2005. To fortify this contention, they
sought to draw a distinction between two forms of action – that taken by an
executor whose appointment is lawful but is subsequently revoked, and that
of an executor whose appointment is unlawful. They then argued that the
former type of action is valid until the appointment is set aside, but that the

8 Schapiro v Schapiro 1904 TS 673 at 677; Rogaly v General Imports (Pty) Ltd 1948 (1) SA 1216 (C) at
1227-1230; The MV Sea Joy Owners of the Cargo Lately Laden On Board; The MV Sea Joy v The MV Sea
Joy 1998 (1) SA 487 (C) at 493D.
9 Boland Bank Ltd v Roup, Wacks, Kaminer & Kriger 1989 (3) SA 912 (C) at 914G-H; Asmal v Asmal
1991 (4) SA 262 (N) at 264G-265D; Gross v Pentz 1996 (4) SA 617 (A).

latter is void ab initio and that Wirz’s appointment and institution of the
action fell into the latter category.

[15]  This seems to me a proper distinction to make. The crisp question it
raises is whether Wirz’s appointment was lawful. If it was, then the
institution of the action on 1 February 2005 was proper as his appointment
was set aside after this date. If it was unlawful, then the summons is a nullity
which cannot be amended.

[16]  In support of their argument the appellants referred us, inter alia, to
the decisions of Brand NO v Volkskas Bpk & another10 and Mngadi NO v
Ntuli & others.11 In the Brand case a document purporting to be the last will
and testament of the deceased was lodged with the Master, who duly
appointed an executor in terms thereof. In accordance with his powers, the
executor completed the administration of the estate, filed the relevant
accounts and handed the residue of the estate to an administrator appointed
in terms of the will to administer it in trust. Thereafter, another purported
will executed after the first document and revoking any other will was
found. It was lodged with the Master who accepted it as valid and recalled

10 1959 (1) SA 494 (T).
11 1981 (3) SA 478 (D).

the letters of administration he had previously issued in terms of the earlier
document. The new executor brought proceedings for an order directing the
first executor to hand over the assets of the estate and render to him an
account of its dealings therewith. The court refused to hold that the
revocation of the first executor’s appointment rendered the administration of
the estate conducted under the first will a nullity and reasoned that those
actions were legally performed under the authority of the Master given in
accordance with the law.

[17]  Mngadi, on the other hand, lies on the different side of the divide.
There, a deceased black man who had been twice married executed a will in
which his first wife, the plaintiff, was appointed executrix of his estate. He
did not revoke the will on his second marriage and, after his death, the
Master accepted and registered it in that form. Thereafter however, the
second wife, the first defendant, was appointed by an additional Bantu
Affairs Commissioner as representative of the deceased estate in terms of
regulation 4(1) of the Regulations for the Administration and Distribution of
Estates of Deceased Bantu. Both were unaware of the existence of the will.
The second wife then sold and transferred certain immovable property in the
estate to the second defendant who, in turn, sold and transferred it to the

third defendant. The first wife brought a vindicatory action against the
defendants and the Registrar of Deeds.

[18]  The court held that since the power of appointment conferred upon
the Commissioner by the Regulations existed only in relation to cases where
the deceased had died intestate, if the Commissioner purported to exercise
that power in respect of a deceased who had left a valid will, as in the
present case, he would not be mistakenly exercising a power he possessed,
but would be purportedly exercising a power he did not have at all in terms
of the relevant statute. The appointment of the second wife was thus found
to be void ab initio and the subsequent sale transactions invalid as the
ownership of the properties remained vested in the estate of which the
plaintiff was the duly appointed representative.

[19]  Both judgments are, in my respectful view, sound. Whither then falls
the present case? I am unable to see the similarity between Wirz’s
appointment by a competent court of law and the Mngadi facts pressed upon
us in argument on the appellants’ behalf. To my mind, the absence of the
very jurisdictional fact in Mngadi giving rise to the exercise of the

Commissioner’s power to appoint a representative of a deceased’s  estate –
the non-existence of a valid will – must surely distinguish the two cases.

[20]  The only flaw found by the appeal court in Wirz’s appointment was
merely procedural. That cannot detract from the court’s power to adjudicate
the application for his appointment and grant an order. Such order would
obviously stand until such time as it were properly set aside. In the words of
Lord Radcliffe in Smith v East Elloe Rural District Council:12
‘An order, even if not made in good faith, is still an act capable of legal consequences. It
bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken
at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will
remain as effective for its ostensible purpose as the most impeccable of orders.’13

Quite clearly, any steps taken by Wirz on the authority of the court order
appointing him as administrator of the estate before his appointment was
restricted by the interdict of 28 February 2005 and finally withdrawn on 25
April 2005 are not unlawful.14 The summons issued in his name on behalf of
the deceased estate is, therefore, not a nullity.

12 [1956] 1 All ER 855 at 871G-H.
13 See also Oudekraal Estates (Pty) Ltd v City of Cape Town  2004 (6) SA 222 (SCA) paras 27-31.
14 Brand NO v Volkskas Bpk 1959 (1) SA 494 (T) at 498F-G; Mvusi v Mvusi NO 1995 (4) SA 994 (TkS) at
1000F-G.

[21]  I see no further bar to the amendment application. Wirz purported to
sue on the estate’s behalf and the involvement of the respondents in the suit
does not change its representative nature. The effect of the substitution is not
to introduce a new party,15 but merely to replace an irregularly appointed
executor with the proper one. The possibility that the appellants may suffer
prejudice by being deprived of the opportunity to plead prescription simply
does not arise.16 This, in my view, is the end of the matter.

[22]  It was asked on the appellants’ behalf that, if the appeal fails, the costs
order made by the court below should be altered, as the respondents sought
an indulgence by seeking to amend their particulars of claim and were thus
not entitled to costs. It was also submitted that the appellants’ opposition to
the application was not unreasonable in view of the uncertainty relating to
Swiss law. However, I am not persuaded that there is any good reason to
interfere with the discretion of the court below in the circumstances of this
case. I am thus not amenable to accede to this request.

[23]  The appeal is dismissed with costs including those occasioned by the
employment of two counsel.

15 Sentrachem Ltd v Prinsloo 1997 (2) SA 1 (A) at 15H-16C.
16 Boland Bank Ltd v Roup, Wacks, Kaminer & Kriger 1989 (3) SA 912 (C) at 914H-I.

_________________
MML MAYA
JUDGE OF APPEAL

APPEARANCES:

For Appellant:

A G Binns-Ward SC

M Blumberg

Instructed by

Bisset Boehmke McBlain, Cape Town

Webbers, Bloemfontein

For Respondent:

F S G Sievers

Instructed by

Luitingh & Associates, Rondebosch

McIntyre & Van der Post, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

PRESS RELEASE
8 May 2009
STATUS: Immediate

Jacobs v Baumann NO (126/2008) [2009] 43 ZASCA  (8 May
2009)

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal today dismissed an appeal against the
judgment of the Cape Provincial Division (Bozalek J) which upheld the
application of the respondents, who are Swiss nationals, for the substitution of
Mr Baumann as their representative  (a Swiss equivalent of an executor of a
deceased estate) as the heirs of a deceased estate in Switzerland and the
joinder of Mr David Spycher , a co-heir in the estate, as one of the plaintiffs in
their pending action against the appellants for the repayment of a loan
granted to the first appellant by their deceased benefactor during his lifetime.

The only issue persisted with on appeal was Baumann’s substitution which
the appellants challenged on the basis that the summons commencing the
action was a nullity because the administrator of the deceased estate sought
to be replaced with Baumann, Mr Wirz, in whose name the summons was
issued on behalf of the deceased estate, had been irregularly appointed by
the relevant Swiss court and that the consequence of Baumann’s substitution
would be a resuscitation of the summons as he would become plaintiff nunc

pro tunc, thus depriving them of an opportunity to raise prescription, to their
prejudice. The SCA rejected these contentions holding that the procedural
flaw in Wirz’s appointment  – it was made without notice to the first appellant
who is a co-heir in the deceased estate – did not render it unlawful and that it
remained valid until it was properly set aside. The SCA held further that any
steps taken by Wirz, including the issue of the disputed summons, on the
authority of the court order appointing him before it was reversed were lawful
and that the summons was thus not a nullity. The effect of the substitution
could not therefore prejudice the appellants as its effect was not to introduce a
new party, as contended, but merely to replace an irregularly appointed
executor with the proper one.

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