THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 717/2021

In the matter between:
IZAK FREDERICK SPANGENBERG
First Appellant

MARIA CORNELIA
VAN DER WESTHUIZEN
Second Appellant

CHRISTINA ALETTA W LA COCK
Third Appellant

and

FRANKEL ENGELBRECHT NO
First Respondent

GERTRUIDA SPANGENBERG
Second Respondent

Neutral citation: Spangenberg and Others v Engelbrecht NO and Another
(Case no 717/21) [2023] ZASCA 100 (14 June 2023)
Coram:
PETSE AP, MBATHA, MATOJANE and WEINER JJA
and MALI AJA
Heard:

22 March 2023
Delivered:
14 June 2023
Summary:
Will – interpretation – context – terms clear and
unambiguous – appeal dismissed.

_____________________________________________________________
ORDER
_____________________________________________________________
On appeal from: Northern Cape Division of the High Court, Kimberley
(Lever J sitting as a court of first instance):
1 The appeal is dismissed with costs.
2 The costs are to be paid jointly and severally by the appellants, the one
paying the others to be absolved.
_____________________________________________________________
JUDGMENT
_____________________________________________________________
Weiner JA (Petse AP, Mbatha and Matojane JJA and Mali AJA
concurring):

‘Death is not the end. There remains the litigation over the estate.’1
Introduction
[1] This appeal emanates from a dispute between the appellants, Izak
Frederick Spangenberg (Mr Spangenberg), Maria Cornelia Van Der
Westhuizen (Ms van der Westhuizen) and Christina Aletta W La Cock (Ms La
Cock), and the respondents. The appellants are the children of Hendrik
Hermias Spangenberg (the deceased). The first respondent, Mr Engelbrecht
NO, is cited in his capacity as executor of the estate of the deceased (the
executor).
The
second
respondent,
Gertruida
Spangenberg
(Mrs
Spangenberg) is the widow of the deceased, and the step-mother of the

1 Ambrose Pierce.

appellants. The dispute concerns the interpretation of the deceased’s last will
and testament (the Will).

[2] The deceased executed his Will in July 1992. He died on 15 January
2010. The Master of the High Court accepted it as his last will and testament.
In the Will, the clause which is relevant to the litigation reads as follows:
‘1.
‘I give and bequeath my entire estate as follows: -
A…
B. To my daughters Maria Cornelia Van der Westhuizen and Christina Aletta
Spangenberg2…the following:
(i) My plots 243 and 741 subject to the right of habitatio in favour of my spouse3 until her
death or remarriage whichever may occur first.’4

[3] Several court applications followed the death of the deceased, including
one reviewing the decision of the Master to appoint Mr Engelbrecht as
executor. As matters presently stand, although some legal proceedings are still
pending, the executor’s power to bring the application for the declaratory
order was not challenged.

The dispute
[4] The dispute between the appellants and respondents centred around the
interpretation of clause B(i) of the Will. The executor held the view that, in
granting the right of habitatio over both plot 243 and 741 (the two plots) to

2 The third appellant is now Christina Aletta W La Cock.
3 The second respondent herein, Gertruida Spangenberg.
4 English translation of the clause which in Afrikaans reads – ‘B(i) my persele 243 en 741 Olyvenhoutsdrift,
distrik Keimoes, onderheweg aan die reg van habitatio (woonreg) ten gunste van my eggenote, GETRUIDA
SPANGENBERG tot by haar dood of hertroue, watter geval ookal eerste mag plaasvind.’

Mrs Spangenberg, she was entitled to all the benefits concomitant therewith,
including the right to receive all rentals for properties situated on the two plots.

[5] The appellants, on the other hand, contended that it could not have been
the deceased’s intention to grant Mrs Spangenberg a habitatio over plot 741,
as he and the appellants had informally agreed to divide plot 741 into three
portions with each sibling being allocated a specific portion. The deceased
paid for the construction of the homes on plot 741 for Ms van der Westhuizen
and Ms La Cock. Mr Spangenberg developed some flatlets on his portion of
plot 741, from which he collected rentals. Accordingly, the appellants asserted
that a habitatio would be inconsistent with this agreement.

[6] The appellants sought to rely upon extrinsic evidence for the
interpretation of the clause. They submitted that the right of habitatio was
defined in clause 4 of the ante-nuptial contract (ANC) concluded between the
deceased and Mrs Spangenberg in 1985. It provided that Mrs Spangenberg
would have the right of habitatio over plot 243, until her death.5 Therefore,
the argument went, it was not necessary for the deceased to repeat such
definition and intention in the Will. Initially the appellants argued that clause

5 Clause 4 of the ante-nuptial contract reads as follows:
‘Dat voormelde HENDRICK HERMIAS SPANGENBERG aan voormelde CHRISTINA GETRUIDA
IMMELMAN ‘n bewoningsreg oor perseel 243, gedeelte van perseel 452, Olyvenhoutsdrift nedersetting
Afdeling Kenhardt verleen vanaf datum van die afsterwe van gesegde HENDRICK HERMIAS
SPANGENBERG tot die sterftedatum van gesegde CHRISTINA GETRUIDA IMMELMAN, mits dat die
huwelik tussen die partye nog van krag was onmiddellik voor die afsterwe van gesegde HENDRICK
HERMIAS SPANGENBERG.’
The English translation is: That the aforementioned HENDRICK HERMIAS SPANGENBERG grants to the
aforementioned CHRISTINA GETRUIDA IMMELMAN a right of occupancy over lot 243, part of lot 452,
Olyvenhoutsdrift settlement [township] Division Kenhardt from the date of the death of said HENDRICK
HERMIAS SPANGENBERG until the date of death of said CHRISTINA GETRUIDA IMMELMAN,
provided that the marriage between the parties was still in force immediately before the death of said
HENDRICK HERMIAS SPANGENBERG (own translation)... .

4 of the ANC should be incorporated into the Will by reference. This argument
was abandoned by the appellants in this Court.

[7] After failing to obtain a satisfactory response from the appellants,
regarding the payments of rentals from the properties on plot 741, to the
executor on behalf of Mrs Spangenberg, and having obtained an interdict in
this regard for the retention of such funds, the executor launched the
application for declaratory relief. Lever J, in the Northern Cape Division of
the High Court, Kimberley (the high court) granted the following order, in
favour of the executor against the appellants:
‘1.
It is declared that the right of habitatio granted to the Second Respondent in terms of
clause B(i) of the last will and testament of the late Hendrick Hermias Spangenberg extend
over the immovable properties described as Plot 243 and 741, Olyvenhoutsdrift, district
Keimoes, until her death or re-marriage, whichever may occur first.
2.
It is declared that the right of habitatio, referred to in paragraph 1 above, includes the
rights and entitlement of the Second Respondent to lease and sub-lease the said properties
and the rental proceeds generated from the lease of all buildings situated on the properties
referred to in paragraph 1 above, for the duration of the right of habitatio.
3.
It is declared that, for the duration of the right of habitatio, no other person can
occupy the properties referred to in paragraph 1 above, without the consent of the First
Respondent.
2. [sic] The costs of this application are to be borne by the Third, Fourth and Fifth
Respondents jointly and severally on the ordinary party and party scale, the one paying the
others to be absolved.’

[8] This appeal is with the leave of the high court. The respondents
contended that clause B(i) of the Will is clear – Mrs Spangenberg has the right
of habitatio over both plots. This is the ordinary and natural meaning of the
clause. There was no ambiguity in the provisions of the clause and, in such

circumstances, it was not permissible to incorporate the extrinsic evidence
referred to by the appellants, to determine the meaning of clause 4 of the
deceased's Will.

Freedom of testation
[9] Generally, it is accepted that testators have the freedom to dispose of
their assets in a manner they deem fit, except insofar as the law places
restrictions on this freedom. The Constitutional Court has accepted that
freedom of testation ‘is fundamental to testate succession’6 and that it forms
part of s 25(1) of the Constitution,7 in that it protects a person’s right to dispose
of his or her assets, upon death, as he or she wishes.

[10] This Court, in Harvey NO and Others v Crawford NO and Others8
referred to this this principle as follows:
‘The right of ownership permits an owner to do with her thing as she pleases, provided that
it is permitted by the law. The right to dispose of the thing is central to the concept of
ownership and is a deeply entrenched principle of our common law. Disposing of one’s
property by means of executing a will or trust deed are manifestations of the right of
ownership. The same holds true under the Constitution.’9[Emphasis added.]

[11] The principle of freedom of testation has been held to warrant
constitutional refuge through the right to privacy, coupled with the right to

6 Moosa N.O. v Minister of Justice [2018] ZACC 19; 2018 (5) SA 13 (CC) para 18.
7 Section 25(1) provides ‘no one may be deprived of property except in terms of law of general application,
and no law may permit arbitrary deprivation of property.’
8 Harvey NO and Others v Crawford NO and Others [2019] ZASCA 147; 2019 (2) SA 153 (SCA) (overruled
by the Constitutional Court in King N.O. and Others v De Jager and Others but not in relation to these general
principles).
9 Ibid para 56.

dignity, in terms of ss 14 and 10 of the Constitution, respectively.10 As stated
by Jafta J in King N O and Others v De Jager and Others;11
‘It cannot be gainsaid that private testamentary bequests (when juxtaposed to public trusts)
relate to our most intimate personal relationships and can very well be based on irrational
and erratic decisions which are located in the domain of the “most intimate core of
privacy”. It is, therefore, apposite for the right to privacy to play an active role in
determining whether judicial interference can enter the perimeter of private testamentary
bequests. This, in turn, buttresses the point that when courts intervene in private
testamentary bequests of this nature there ought to be a lower level of judicial scrutiny.’12

Principles of Interpretation
[12] The ‘golden rule’ for the interpretation of Wills and the inherent
limitation (that it should not contravene the law), was, as far back as 1914,
described in Robertson v Robertson thus:13
‘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.’14 [Emphasis
added.]

[13] Corbett J, in Aubrey Smith v Hofmeyer NO,15 referred to ‘the armchair
approach’ in dealing with the interpretation of a will. He stated that:
‘Generally speaking, in applying and construing a will, the Court's function is to seek, and
to give effect to, the wishes of the testator as expressed in the will. This does not mean that

10 Section 14 provides that: ‘Everyone has the right to privacy, which includes the right not to
have…(c) their possessions seized;’
Section 10 provides that: ‘everyone has inherent dignity and the right to have their dignity respected
and protected’. BOE Trust Ltd N.O. (in their capacities as co-trustees of the Jean Pierre De Villiers
Trust 5208/2006) [2012] ZASCA 147; 2013 (3) SA 236 (SCA) para 27.
11 King N.O. and Others v De Jager and Others [2021] ZACC 4; 2021 (4) SA 1 (CC).
12 King supra at para 144; Minister of Education v Syfrets Trust Ltd 2006 (4) SA 205 (C); Curators, Emma
Smith Educational Fund v University of KwaZulu Natal 2010 (6) SA 518 (SCA) para 46.
13 Robertson v Robertson 1914 AD 503.
14 Ibid at 507.
15 Aubrey Smith v Hofmeyer NO 1973 (1) SA 655 (C) (Aubrey Smith).

the Court is wholly confined to the written record. The words of the will must be applied
to the external facts and, in this process of application, evidence of an extrinsic nature is
admissible to identify the subject or object of a disposition. Evidence is not admissible,
however, where its object is to contradict, add to or alter the clearly expressed intention of
the testator as reflected in the words of the will. ... in construing a will the object is not to
ascertain what the testator meant to do but his intention as expressed in the will.
On the other hand, in addition to receiving evidence applying the words of the will to the
external facts, the Court is also entitled to be informed of, and to have regard to, all
material facts and circumstances known to the testator when he made it. As it has been put,
the Court places itself in the testator's armchair. Nevertheless, the primary enquiry still is
to ascertain, against the background of these material facts and circumstances, the
intention of the testator from the language used by him in his will’16 [Emphasis added.]

[14] In Aubrey Smith,17 Corbett J presciently, espoused the interpretative
principles referred to in Natal Joint Municipal Pension Fund v Endumeni
Municipality,18 the seminal case, on interpretation of documents, where Wallis
JA stated that: ‘Interpretation is the process of attributing meaning to the words used in
a document, be it legislation, some other statutory instrument, or contract, having regard to
the context provided by reading the particular provision or provisions in the light of the
document as a whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must be given to the language used in
the light of the ordinary rules of grammar and syntax; the context in which the provision
appears; the apparent purpose to which it is directed and the material known to those
responsible for its production. … The inevitable point of departure is the language of the
provision itself, read in context and having regard to the purpose of the provision and the
background to the preparation and production of the document.’[Emphasis added.]

16 Aubrey Smith supra at 657 E-658C.
17 Aubrey Smith supra footnote 16.
18 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA)
para 18.

[15] Although Endumeni did not deal with the interpretation of a will, the
‘golden rule’ and the ‘armchair approach’ can now be seen in the light of the
principles enunciated in Endumeni. In his article published in the
Potchefstroom Electronic Law Journal (PELJ),19 Justice Wallis opined that:
‘There are areas of interpretation that are untouched by the contents of this paper, which
has concentrated on contracts and statutes, rather than other areas of law. Perhaps the most
obvious omission is the fertile field of the construction of wills and the extent to which the
Endumeni approach to interpretation can be adapted to that situation. That is a particular
omission, given that in articulating his golden rule Lord Wensleydale specifically said that
it applied to “wills and, indeed statutes and all written instruments”. Wills are of course
unilateral documents, but so are statutes, patent specifications and judgments, yet they all
demand a broadly similar approach.’

[16] Justice Wallis, in the PELJ article, referred to Raubenheimer v
Raubenheimer,20 which dealt with whether an implied term could be
incorporated into a will. Surprisingly, there was no specific reference to
Endumeni in Raubenheimer. Leach JA,21 however, held that a court is ‘guided
by the same principles as those applied when implying tacit terms into a
contract – it applies the well – known ‘bystander test’ in the light of the
express terms of the will and the relevant surrounding circumstances and
considers whether it is a term ‘so self-evident as to go without saying.’22 Leach
JA went on to adopt the ‘golden rule’ in his interpretation of the will. He held
that:
‘In interpreting a will, a court must if at all possible give effect to the wishes of the testator.
The cardinal rule is that “no matter how clumsily worded a will might be, a will should be

19 Wallis ‘Interpretation Before and After Natal Joint Municipal Pension Fund v Endumeni Municipality’
2012 4 SA 593 (SCA) 2019 PER / PELJ 22.
20 Raubenheimer v Raubenheimer [2012] ZASCA 97; 2012 (5) SA 290 (SCA).
21 With Mpati P, Nugent, Cachalia and Wallis JJA concurring.
22 Raubenheimer para 21.

so construed as to ascertain from the language used therein the true intention of the testator
in order that his wishes can be carried out.”’23

[17] In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs &
Others,24 the Constitutional Court held that ‘the emerging trend’ in
interpretation of documents is ‘to have regard to the context in which the
words occur, even where the words to be construed are clear and
unambiguous.’25 The appellants latched onto this principle, in contending that,
in interpreting the clause in the Will, even if there is no ambiguity, the
surrounding circumstances and background facts will establish that the
intention of the testator was not as it appears in clause B(i). They referred to
the following chronology of events, in this regard:
a.
The ANC was concluded on the 29th March 1985;
b.
In 1991 the deceased and his son, Mr Spangenberg, entered into an
agreement in respect of erf 741. The deceased and the appellants informally
agreed to divide erf 741 into three portions with each sibling being allocated
a specific portion;
c.
The deceased executed his Will in 1992;
d.
Plot 741 was at that stage undeveloped. In 1996 the deceased paid for
and erected a house for Ms van der Westhuizen on her portion of erf 741. She
has lived on that property from 1996 to date;
e.
In 1996 Mr Spangenberg began to reside on his portion of erf 741 and
developed a number of flats thereon. From 1996 to date, he has seen to the
upkeep of the units that he caused to be erected and has collected the income
generated by those units;

23 Raubenheimer supra para 23.
24 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & Others [2004] ZACC 15; 2004 (4) SA
490 (CC) para 89.
25 Ibid para 90.

f.
In 1998 the deceased erected and paid for the house for Ms La Cock on
her portion of erf 741. She has lived in that house from that date until the date
of the application;
g.
In 2009 the deceased requested Mr Spangenberg to erect a storage
facility for himself on erf 741 in order to enable him to remove his plant and
equipment from erf 243 which he did; and
h.
The deceased passed away on the 15 January 2010.

[18] In KPMG Chartered Accountants (SA) v Securefin Ltd,26 this Court held
that ‘…to the extent that evidence may be admissible to contextualise the
document (since “context is everything”) to establish its factual matrix or
purpose or for purposes of identification, ‘one must use it as conservatively
as possible’ …The time has arrived for us to accept that there is no merit in
trying to distinguish between ‘background circumstances’ and ‘surrounding
circumstances’. The distinction is artificial and, in addition, both terms are
vague and confusing. Consequently, everything tends to be admitted. The
terms ‘context’ or ‘factual matrix’ ought to suffice.’27

[19] The appellants contended that, having regard to the chronology of
events, outlined in para 17 above, the language of the clause and the use of
the term habitatio did not demonstrate an intention to bequeath the
undeveloped property (as erf 741 was at the time of the execution of the Will)
to Mrs Spangenberg. If the deceased had intended to afford Mrs Spangenberg
any right in respect of erf 741, he would have used the word usufruct as
opposed to habitatio in order to provide for her maintenance.

26 KPMG Chartered Accountants (SA) v Securefin Ltd 2009 (4) SA 399 (SCA).
27 KPMG para 39.

[20] The distinction sought to be drawn by the appellants is not understood.
A person who has a usufruct has the right to occupy a property which belongs
to someone else. It grants the right to a person to make use of another person’s
property, enjoying the fruits (profits and other advantages of ownership) for a
limited period of time whilst ensuring that the property itself is preserved. The
holder of a habitatio has the lifelong right to live on the property or to let the
property out, but without the right to enjoy the fruits (profits or other
advantages of ownership). It allows the holder of such right to live in the house
of another without detriment to the substance of the relevant property.28 The
holder of such right may sublet.29 She may also let the right of habitatio.30

[21] There is no reason why a usufruct would have been a more appropriate
right to bequeath as the appellants would have it. Mrs Spangenberg in
exercising her rights of habitatio is entitled to all the benefits that right
bestows upon her. Her maintenance was to be catered for from the rentals of
the properties on the two plots, as a right of habitatio grants her.

[22] The appellants also argued that as the residences were situated on two
different pieces of land, a right of habitatio can only be applicable to one piece
of land, that is the one on which the matrimonial residence was situated. They
relied on Endumeni31 in submitting that having regard to the context
surrounding the execution of the Will, the habitatio could only apply to plot
243, as set out in the ANC. They contended that the Will was indeed
ambiguous and ‘uncertain in application from collateral circumstances’. They

28 Hendricks v Hendricks [2015] ZASCA 165; 2016 (1) SA 511 (SCA) at 514F.
29 LAWSA, 2nd Edition, vol 24 para 605.
30 Arend v Estate Nakiba 1927 CPD 8 at 10.
31 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593
para 18.

relied further on the ‘bystander test’ and submitted that the court should take
into cognisance the relevant surrounding circumstances in determining that
the term of the will ‘is so self-evident as to go without saying’.32

[23] This, however, is not the position in the present case. There is no
ambiguity. The appellants claim that, if this Court took cognisance of the
surrounding circumstances or factual matrix referred to in the chronology of
events, it would find that it ‘goes without saying’, that the deceased did not
intend to grant a right of habitatio over plot 741 to Mrs Spangenberg. This
argument would require this Court to ignore the clear wording of the Will,
seen in the light of the circumstances prevailing at the time of its execution.

[24] It is trite that when a patent or latent ambiguity appears from a written
document, including a will, a court would be entitled to consider extrinsic
evidence in order to evaluate, interpret and make a finding on a clause in a
document. This Court in Engelbrecht v Senwes Ltd33 held:
‘The intention of the parties is ascertained from the language used read in its contextual
setting and in the light of admissible evidence. There are three classes of admissible
evidence. Evidence of background facts is always admissible. These facts, matters probably
present in the mind of the parties when they contracted, are part of the context and explain
the ‘genesis of the transaction’ or its ‘factual matrix’. Its aim is to put the Court ‘in the
armchair of the author(s)’ of the document. Evidence of ‘surrounding circumstances’ is
admissible only if a contextual interpretation fails to clear up an ambiguity or uncertainty.
Evidence of what passed between the parties during the negotiations that preceded the

32 Mulaudzi v Old Mutual Life Assurance Company (South Africa) Limited [2017] ZASCA 88; 2017 (6) SA
90 (SCA) para 26.
33 Engelbrecht v Senwes Ltd 2007 (3) SA 29 (SCA).

conclusion of the agreement is admissible only in the case where evidence of the
surrounding circumstances does not provide ‘sufficient certainty’.34[Emphasis added.]

[25] Mrs Spangenberg did not oppose the appeal, not by choice but due to a
lack of funds. This Court required assistance and Mr H van Zyl of the local
Society of Advocates, to whom we owe a great debt of gratitude, was
appointed as the amicus curiae for the hearing. He contended that if the intent
of the testator can be ascertained from the language used, there is no reason
to further consider the further requisites as set out in Endumeni,35 because the
interpretation of the will is based only on the subjective intention of the
testator as can be ascertained from the words used by the testator. It is only,
so the argument went, in cases of ambiguity that the principles in Endumeni
would become applicable.

[26] Endumeni is a general exposition on the interpretation of documents. It
does not exclude a will. Whether one adopts the ‘golden rule’, the ‘armchair
approach’ or the unitary approach, in the interpretation of a will, a court must
ascertain the wishes of the testator from the language used. In endeavouring
to ascertain these wishes, the will must be read in the light of the
circumstances prevailing at the time of its execution.36

[27] There is no ambiguity in the words used in the Will. Thus, relying on
the contextual interpretation of the words in the Will, there is no place for the
introduction of the 'surrounding circumstances’ relied upon by the appellants.
What the appellants seek to do is use the wording of the clause in the ANC to

34Ibid paras 6-7 (footnotes ommitted), referred to with approval by the Constitutional Court in Eke v Parsons
2016 (3) SA 37 (CC) para 30.
35 Endumeni para 18.
36Aubrey Smith supra; Strauss v Strauss and Others [2023] ZAGPJHC 377 paras 30-31.

create an ambiguity in the Will and thus introduce extrinsic evidence of
surrounding circumstances. The ambiguity does not emanate from the Will
itself. It has been contrived through the reference to external documentation.

[28] What is evident from the chronology of events referred to by the
appellants is that the deceased was at all times fully aware of the activity
surrounding the development of plot 741. He executed his Will after the
agreement between him and the appellants that each would be allocated a
portion of plot 741. He paid for the construction of his daughters’ residences
and was aware of all the developments on the plot. But, he still saw fit not to
change his Will, which provides for the habitatio to apply to both plots.
Mrs Spangenberg is and will probably be in need of maintenance for a number
of years. This averment was not denied by the appellants in the application. It
is therefore probable that the inclusion of plot 741 by the deceased, was in
order to see to the financial well-being and maintenance of Mrs Spangenberg,
as found by the high court.

[29] The contention of the appellants was that the interpretation relied upon
by the respondents, means that they will be evicted from their homes. But this
is not necessarily so. They will have to come to an agreement with the
respondents in regard to the rentals payable. On their own version, the houses
were, in the main, built by the deceased and essentially at the cost of the
deceased.

[30] Accordingly, the appeal must fail. The issue that remains is that of
costs. The appellants submitted that the costs should be borne by the estate
but there seems to be no rationale for this. Mrs Spangenberg also has an

interest in the estate and there is no reason why she should be prejudiced by
the appellants’ ill-fated application and appeal.

[31] Accordingly, the following order is made:
1 The appeal is dismissed with costs.
2 The costs are to be paid jointly and severally by the appellants, the one
paying the others to be absolved.

________________________
S E WEINER
JUDGE OF APPEAL

Appearances

For appellants:

B Knoetze SC (with Boonzaier)
Instructed by:

Honey Attorneys, Bloemfontein

For respondents:
H van Zyl

(heads of argument prepared by H E De La Rey)
Instructed by:

Kramer Weihmann Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
14 June 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and
does not form part of the judgments of the Supreme Court of Appeal
Spangenberg and Others v Engelbrecht NO and Another (717/21) [2023] ZASCA 100
(14 June 2023)
Today the Supreme Court of Appeal (SCA) dismissed an appeal against the judgment of the
Northern Cape Division of the High Court, Kimberley (Lever J sitting as a court of first
instance).

The dispute concerned the interpretation of the deceased’s last will and testament. It
emanates from a dispute between the appellants – the children of deceased, and the
respondents – the executor of the deceased estate (Mr. Engelbrecht) and the widow of the
deceased, who is also the step-mother of the appellants. The deceased executed his Will in
July 1992, He died on 15 January 2010.

Clause 2B(i) of the Will, which is the clause in issue, provided for the bequest of two plots (plot
423 and 741) to his daughters, subject to a right of habitatio over the plots, in favour of his
wife, the second respondent. The appellants argued that prior to his death, they and the
deceased had informally agreed to subdivide one of the plots (plot 741) amongst the three of
them, and that their homes and other flatlets had been constructed thereon. The first appellant
received rentals from the flatlets. They also referred to the fact that in the ANC concluded
between the deceased and the second respondent, in 1985, the habitatio was granted only in
respect of one of the plots on which the matrimonial residence was situated (plot 423). The
appellants argued that these surrounding circumstances should be taken into account in

interpreting the Will and that, based on the context, the deceased could only have intended to
grant the habitatio over plot 423.

In arriving at the decision to dismiss the appeal, the Court addressed the principle of freedom
of testation which states that testators have the freedom to dispose of their property in any
manner they deem fit, unless the law places restrictions thereon. The SCA considered the
context in which the Will was to be interpreted. The deceased executed his Will after the
agreement between him and the appellant had been concluded. The rentals from plot 741
were to be utilised as maintenance for his widow. His intention in the Will was clear and
unambiguous. Utilising either the ‘golden rule’, or ‘the armchair approach’, or the ‘unitary
approach’ as set out in Endumeni, to interpret the Will, there was no place to admit extrinsic
evidence to contradict the clear words of the Will. The SCA therefore dismissed the appeal
with costs (to be paid jointly and severally by the appellants, the one paying the others to be
absolved).