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Administrators of the Estate of the late Samuel Marks, Ex Parte (21453/05) [2005] ZAGPHC 110 (21 October 2005)

IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
CASE NO: 21453/05

In the ex parte application of:

ADMINISTRATORS OF THE ESTATE
OF THE LATE SAMUEL MARKS Applicant

JUDGMENT

MULLINS AJ:

[1] SAMUEL ("Sammy") MARKS was a well-known figure in South African history. He passed away almost a century ago on 18 February 1920.

[2] This application relates to a particular clause in Sammy Marks' Will, and to the Immovable Property (Removal or Modification of Restrictions) Act, 94 of 1965 ("the Act").

[3] The relevant background to this application is the following:

[3.1] Sammy Marks left a number of Wills and Codicils to those Wills beginning, it would appear, with a Will in 1892.

[3.2] Ultimately, as decided by Wessels JP (with whom Mason and Bristow JJ concurred) in Re: Estate Marks 1920 TPD 180, a Notarial Codicil of 1913 had the effect of reviving the 1892 Will (read together with a 1906 Will, but that is not material to this matter).

[3.3] The relevant portion of the 1892 Will reads as follows:

... [in respect of] the portion of the Farm Zwartkoppies District of Pretoria whereon the said Appearers now reside in respect of which property the said Appearer declared his express will and desire to be that the same shall not be sold or disposed of but shall be burdened with the entail of fide-commissum during three generations of the descendants of him the said Samuel Marks so that only after the demise of the survivor of the third generation of his descendants shall the said property be sold and the proceeds paid out to his heirs then alive according to the laws in force in this State ab intestato.

And if any of the heirs of him the said Samuel Marks make any attempt to invalidate or set aside the above disposition or entail of fide-com- missum or claim his her or their legitimate portion then and in that case the executors and administrators afternamed shall pay such heir or heirs as the case may be the amount of the legitimate portion only due to such heir or heirs and the balance of the inheritance shall remain for the benefit only of such heir or heirs who do not so act contrary to the express wish and desire of him the said Appearer and such dissentient heir or heirs shall thereupon forfeit any right to participate further in the said estate.

[3.4] By virtue of the aforementioned 1920 TPD decision, the aforementioned provision is valid and prevails.

[3.5] I have also been referred to a provision in the 1913 Codicil, which reads as follows:

I hereby empower and authorise the executors of my will and administrators of my estate and effects both those appointed under my above referred will and under this codicil, also to invest the funds of my estate in Government Stock or securities of the Union of South Africa in addition to or in place of British Consols or British Government Stock as directed in my said will, if in their opinion or in the opinion of the majority of them it shall be desirable to so invest the said funds.

[3.6] The clear effect of the aforementioned provision of the 1892 Will is to create, in respect of the farm Zwartkoppies, a fideicommissum lasting through three generations (i.e. lasting to the last of Sammy Marks' great-grandchildren), during the period of which fideicommissum the property might not be sold. Only on the death of the last of the late Sammy Marks' great-grandchildren might the property be sold and the proceeds paid out to his heirs (in accordance, in terms of the provision in question, with the laws of intestate succession).

[3.7] Although we are into the fourth generation of Sammy Marks' descendants, there are clearly many years to go before the end of the three-generation fideicommissum:

[3.7.1] The last of Sammy Marks' children, Fanny Beatrice Maisels, passed away on 30th May 1992;

[3.7.2] At present, according to the papers, there are four surviving grandchildren (the second generation), the youngest of whom is 77 years old; and

[3.7.3] There are twelve great-grandchildren (the third generation). The youngest is 45 years old, and the oldest is 56.

[3.8] Completing the present picture in respect of Sammy Marks' descendants, is the fourth generation. In this regard:

[3.8.1] There are presently twenty six in this generation, Sammy Marks' great-great-- grandchildren;

[3.8.2] The youngest, Sean Patrick O'Dwyer, is not yet a year old. Thus, in time, there might be more of the fourth generation.

[3.9] Sammy Marks' descendants have all but one chosen to live elsewhere than in the Republic. Only the deponent Samuel Maisels lives in the Republic. All of Sammy Marks' other descendants, including Samuel Maisels' children, live in other countries. None, including Samuel Maisels, have an interest in operating the farm.

[3.10] Not all of the property is still owned by the Estate:

[3.10.1] That portion of the farm (approximately 73 hectares in extent) on which the Marks' home stands, was expropriated by the State in 1995 for a total price of R1 045 000,00 inclusive of improvements. The house now serves as a national monument, the Sammy Marks Museum.

There might, judging from the papers, also have been other expropriations. Nothing turns on this, because what is important is what is left after the expropriation or expropriations;

[3.10.2] The expropriation or expropriations have left three portions of the farm Zwartkoppies in the Estate. They are:

[a] The Remaining Extent of Portion 2 of the farm Zwartkoppies No. 364 JR, measuring 677,124 hectares, held under Deed of Transfer T221/1884;

[b] Portion 8 of the farm Zwartkoppies No. 364 JR, measuring 3,5318 hectares, held under Deed of Transfer T2491/1893; and

[c] Portion 9 of the farm Zwartkoppies No. 364 JR, measuring 7309 square metres, held under Deed of Transfer T1231/1894.

[3.11] The three portions referred to in paragraph [3.10] are contiguous with one another, and effectively serve as one single property. They shall hereinafter, unless the context requires otherwise, be referred to simply as "the farm".

[3.12] The farm is situated within the area of the Metsweding district municipality. It is zoned for tourism and farming purposes only. There is no tourism potential, and it is in fact only used for grazing.

[3.13] The farm brings in very little income. The deponent Samuel Maisels explains that:

[3.13.1] Devoid of the expropriated portion, the farm cannot in itself support viable farming operations other than grazing;

[3.13.2] Although at the time of Sammy Marks' death the farm boasted irrigable lands, that is no longer so. The flow of water in the river on the farm has been impeded by the con- struction of a dam upstream;

[3.13.3] Consequently, the farm is presently let to the National Flagship Institution (the legal successor-in-title to the National Cultural History Museum) for an annual rental of R100,00 terminable on six calendar months' written notice.

It is a term of the lease agreement that the Estate contribute R1 800,00 per month to the upkeep of the museum.

[3.14] As the deponent Maisels puts it in paragraph 16 of his founding affidavit:

The rental received from the National Flagship Institute is only R100,00 ... per annum. On the other hand The Estate has an obligation to contribute R1 800,00 ... per month towards the upkeep and maintenance of the Museum.... This in effect means that The Property is at present a liability to The Estate.... Effectively The Estate's only income for the benefit of the beneficiaries is the return on the government bonds in which the proceeds of previous expropriations have been invested.

[3.15] There has been outside interest in the farm.

An enquiry was made in 2000. At the time, because of the enquiry, the Administrators approached a valuer, Mr MA South, for a valuation. His report is dated 6 July 2000, and it forms part of the papers before me. The report furnishes no valuation, but the deponent Maisels says in paragraph 9 of his founding affidavit that South orally gave him a valuation of R1 702 000,00. What is of importance is the last two paragraphs of South's report, which reads as follows:

I am of the opinion that within the next 10 years the subject farm ... will be ripe for the development of affordable housing due to the future demand for housing and the location of this subject property.... However, in the short term the Pretoria City Council has sufficient land to address the immediate needs....

Over the next 10 years the Administrators will have to stop all illegal occupation of land otherwise the Estate could be placed in a very precarious position....

The enquiry came to nothing, but in December 2003 an offer to purchase the farm (i.e. the three portions) for R6 000 000,00 (R8 900,00 per hectare) was received and rejected.

In 2004, prospective purchasers were granted an option at their request to purchase the farm for R9 180 000,00 (R13 700,00 per hectare), but the option lapsed because the prospective purchasers were unable to satisfy themselves that the farm could be rezoned for housing development.

[4] What gives rise to this application is an offer made by a developer, Snowy Owl 90 (Pty) Limited ("Snowy Owl"). Snowy Owl has offered in writing to purchase the farm for a total purchase consideration of R10 000 000,00. The Ad- ministrators have accepted the offer, subject to the suspensive condition that this Court, in its discretion, removes the restriction on the sale of the farms outlined in paragraph [3.3] of this judgment.

[5] Terms of the Deed of Sale to Snowy Owl (a copy of which is amongst the papers before me) that are material hereto are the following:

[5.1] The purchase price is, as I have mentioned above, R10 000 000,00 to be secured by guarantee and payable against registration;

[5.2] Snowy Owl is to pay the transfer costs;

[5.3] The Estate is to bear the costs of this application, subject to a contribution by Snowy Owl in the amount of R15 000,00;

[5.4] Snowy Owl purchases subject to the lease with the National Flagship Institution;

[5.5] Snowy Owl agrees to allow access in perpetuity to the museum;

[5.6] Snowy Owl undertakes to contribute no less than R2 000 000,00 for the exclusive purpose of renovating, upgrading and maintaining the museum.

This contribution of R2 000 000,00 is not part of the purchase price, but is in addition to it. Clause 11 of the Deed of Sale provides, in this regard, as follows:

THE PURCHASER shall simultaneously with the registration of THE PROPERTY and in consultation with THE SELLER ensure that the Sammy Marks Museum receive a contribution of no less than R2,000,000 (Two million Rand) for the exclusive purpose of renovating, upgrading and maintaining the same in a manner fitting to THE SELLER. A memorandum detailing the form and content of the contribution shall be presented by THE PURCHASER to THE SELLER as soon as reasonably possible but before the Guarantees are to be delivered. THE PURCHASER exonerates THE SELLER from any Donation Tax that may be due and payable.

[5.7] There is no provision to the effect that the sale might be undone if rezoning for residential purposes (which is obviously Snowy Owl's aim) is not obtained. Thus, the risk in respect of that eventuality will be with Snowy Owl.

[6] The Administrators now bring application in terms of Section 3(1)(c) of the Act for removal of the restriction in respect of sale of the farm outlined in paragraph [3.3] of this judgment.

They do so with the unanimous support of every single one of the second and third generations of beneficiaries. Descendants in Eire, Scotland, France, Italy, England, Canada, the United States and Gabon have filed affidavits in support of the application. Every one of the beneficiaries in the second and third generations has filed an affidavit in support of the application.

[7] The fourth generation also supports the application, in that:

[7.1] At present, as per a list of all surviving descendants in the second, third and fourth generations attached to the founding affidavit as Annexure "J", there are (as I have mentioned above) twenty six members of this generation;

[7.2] Of these twenty six, eleven are presently adults (in South African terms. Bearing in mind that they are spread in other parts of the globe, it might be that the position as to majority is different in certain of the jurisdictions. To my mind, nothing turns on that and I shall proceed on the basis of the South African definition of majority). Applications of this type are in the nature of moving targets, and when the application was first launched in January of this year, three of those were still minors;

[7.3] The eight who were already adults when the application was launched have filed affidavits in support of the application;

[7.4] At the time, the remaining eighteen who were then minors (in South African terms) were represented by their parents and guardians who expressed their support for the application on their behalf.

[8] I turn now to consider the relevant provisions of the Act.

[8.1] Section 7(1)(a) of the Act provides as follows:

7. Limit on duration of any fideicommissum created before the commencement of this Act in respect of immovable property.-

(1) Any fideicommissum created before the commencement of this Act by any will ... in respect of immovable property in favour of more than two successive fideicommissaries, shall, notwithstanding the terms of such will ...-

(a) if at such commencement no fideicommissary substitution has taken place in terms of such will ..., be limited to two successive fideicommis- saries;

[8.2] The Act came into effect on 1 October 1965. At that date, no fideicommissary substitution had yet taken place: with reference to what I said in paragraph [3.7.1] above, Sammy Marks was at that stage still survived by at least one of his children.

[8.3] The plain effect of Section 7(1)(a) is, in the circumstances, to limit the fideicommissum to two successive fideicommissaries, viz. to the first and the second generations.

[8.4] Consequently, I am satisfied that, by virtue of the provisions of Section 7(1)(a) of the Act, the fideicom- missum created over the property by Sammy Marks' Will will come to an end one generation earlier than he decreed, i.e. on the death of the last of his grandchildren.

[8.5] It follows that, by virtue of the provisions of the Act, the sale of the farm and the distribution of the proceeds decreed in Sammy Marks' Will is to take place on the death of the last of his grandchildren for the benefit of his great-grandchildren and not, as he decreed, only on the death of the last of his great-grandchildren for the benefit of his great-great-grandchildren. See, by analogy, Ex parte Schnehage 1972 (1) SA 300 (O) at p.301.

[9] It follows from the aforegoing that the fideicommissum is still in existence and will not terminate before the end of the present generation. There is no telling when that might be: the ages of the four surviving members of that generation are 77 (Jill Louise Katzen. Born 22 December 1927, Ms Katzen is almost 78), 79 (Patricia Mary O'Dwyer), 80 (David Olivier Maisels) and 83 (the deponent, Samuel Maisels).

[10] Against that background and with reference to the provisions of Section 3 of the Act, the question which I am asked to consider is whether this is an instance justifying the Court's interfering yet further than did the Legislature by Section 7 of the Act, by removing the restriction on the sale of the property, whilst four members of the second generation are still alive.

Section 3 of the Act, in this regard, reads (insofar as is material) as follows:

3. Powers of court as to removal or modification of restrictions on immovable property and as to disposal of proceeds of such property.-

(1) If the court to which application is made under this Act, is satisfied -

(a) ....; or

(b) ....; or

(c) that since the taking effect of the will or other instrument imposing any restriction upon the immovable property concerned circumstances materially affecting the value of the property have arisen which in the opinion of the court were not contemplated or foreseen by the person who made and executed the will or instrument; or

(d) ....,

it may remove or modify any restriction ... and order the property to be sold in whole or in part or may make such further or other order as to it may seem just.

[11] Before I can go on to consider this question, there are certain preliminary issues that I must determine.

[12] The first such issue is whether the Administrators are empowered to bring this application, given the provisions of Section 2 of the Act.

Section 3 of the Act relates back to Section 2, sub-Section (1) of which provides (insofar as is material) as follows:

If any beneficiary interested in immovable property which is subject to any restriction imposed by will ... desires to have such restrictions removed or modified on the ground that such removal or modification will be to the advantage of the persons, born or unborn, certain or uncertain, who are or will be entitled to such property or the income thereof under such will ..., such beneficiary may apply to the court for the removal or modification of such restriction.

In this case, the application has been brought not by the beneficiaries as such, but by the Administrators. In my view, nothing turns on this. The Administrators do so for the benefit of the beneficiaries and, as I have outlined above, with their express support.

[13] The next preliminary issue which I must decide, is whether the penalty provision in the Will which I quoted in paragraph [3.3] of this judgment itself constitutes a bar to this application, or at least a threat to the Administrators and beneficiaries should they persist therewith. It does not. It was authoritatively decided in Ex parte Murison and Others 1967 (2) SA 617 (O) that a penal provision such as the one in question is of no force and effect where the provisions of the Act are concerned because, as Erasmus J pointed out at 618C-D, the Act is a statutory provision overriding the terms of the penalty clause.

[14] The next point to consider - which I raised with Mr Petty who appeared for the Administrators - is whether I ought not to appoint a curator ad litem to represent the interests of the minor members of the fourth generation, postponing the application pending receipt of such curator's report.

Mr Petty urged on me that this would not be necessary, that it would simply increase the costs at the ultimate expense of the Estate. On reflection, I am satisfied that he is correct. In this regard:

[14.1] The proceeds of the sale of the farm (whether that sale takes place now in terms of Section 3(1) of the Act or after the death of the last of the second generation) will be distributed amongst the third generation and not, as decreed by Sammy Marks' Will, the fourth generation. That is the plain effect of Section 7 of the Act;

[14.2] Consequently, the only interest which members of the fourth generation can have in this matter, is this:

[a] It is of course notionally possible, but practically impossible, that the third generation might predecease the second generation, in which event the fourth generation would, to all practical intents and purposes, succeed to the third generation. This possibility is so far remote from reality that I need not consider it;

[b] Members of the third generation might waive their rights in favour of the fourth generation. There is no indication on the papers before me that this has occurred or is likely.

Consequently, the possibility that the fourth generation will have a material interest in the outcome of these proceedings, is in my view sufficiently remote that I need not consider same;

[14.3] Moreover, there is adequate authority to the effect that I am empowered to grant relief affecting the interests of minors without first obtaining the report of a curator ad litem where the relief is manifestly in favour of those minors. See Ex parte Broodryk 1944 TPD 57, Ex Parte Faul 1947 (1) SA 390 (T), Ex parte Jacobs 1950 (1) SA 129 (T), Martin and Another v The Master 1951 (1) SA 252 (T) and Ex parte Scheepers 1951 (1) SA 615 (T);

[14.4] As Mr Petty pointed out in his submissions to me, there is no reason to believe that the appointment of a curator ad litem for the minor children of the fourth generation would add anything save costs to this application.

In the premises, I am satisfied that the appointment of a curator ad litem - as asked for in the Notice of Motion but only as an alternative to the main relief - is unnecessary.

[15] This brings me to the main relief.

[16] This application is squarely based on the provisions of Section 3(1)(c) of the Act.

As Mr Petty fairly pointed out in his submissions, the discretion vested in me by Section 3(1)(c) is a narrow one. I may only exercise my discretion in favour of the Applicants if I am satisfied that the requirements of Section 3(1)(c) have been met. See, by way of analogy (dealing with the predecessor of the Act, Act 2 of 1916), Ex parte Coetzee 1949 (2) SA 533 (O) at 538.

[17] Having regard to the provisions of Section 3(1)(c) of the Act read together with the cases of Ex parte Stranack 1974 (2) SA 692 (D) (which dealt with Section 3(1)(c)) and Ex Parte Pienaar en 'n Ander 1981 (4) SA 942 (O) (which dealt primarily with Section 3(1)(d), but in which consideration was given to the provisions of Section 3(1)(c), and which is in any event analogous), it seems to me that before I exercise my discretion in favour of the Applicants I must be satisfied of the following:

[17.1] Firstly, that the requirements of Section 3(1)(c) have been met; and

[17.2] Secondly, that granting the relief will be in the interests of beneficiaries, both present and future.

[18] Turning to the first requirement, that of the provisions of Section 3(1)(c), I am satisfied that the requirements of that sub-section are met. In this regard:

[18.1] In essence the question is two-fold: Have circumstances arisen since Sammy Marks' death which materially affect the value of the property, and if so, are they circumstan- ces which were neither contemplated nor foreseen by him when he died without altering his Will?

[18.2] Sammy Marks could not have anticipated that a significant portion of the property would be expropriated by the State and that as a result of this expropriation and other factors, viable farming operations could not be undertaken on the farm. Nor, I would think, could Sammy Marks - astute businessman though he was - have anticipated the growth of Pretoria, and particularly the growth of Pretoria's east. When Sammy Marks passed away, the farm was well out of sight of any residential development. In effect, Sammy Marks could not have foreseen that the farm would, even within the second generation of his descendants, be such as to be significantly valuable only if it can be converted into residential property. Nor, I would think, could he have foreseen that so many of his descendants would leave the Republic, with the result that as the deponent Maisels says in his affidavit (paragraph 15.3), in effect none of his descendants are either interested in or able to conduct farming operations or even development on the farm. In sum, Sammy Marks could not have anticipated the situation which the deponent Maisels sketches in paragraph 16 of his founding affidavit as quoted in paragraph [3.14] above.

[18.3] There is, to my mind, a further factor which, although not clearly adverted to by the deponent Maisels, does emerge from the annexures which he attaches to his affidavit, and of which I can take cognizance. This is the factor to which the valuer Mr South had made reference in 2000 as per paragraph [3.15] above, viz. the danger that an undeveloped property in the midst of other developments will be susceptible to illegal occupation with all the expenses and complications that would be associated therewith. In this regard:

[a] That this is a real risk is evident from Mr South's report (as quoted by me in paragraph [3.15] above);

[b] It is also evident from a letter addressed by the National Cultural History Museum to the deponent Maisels dated 25 November 1998 and which is to be found on p.183 of the papers. The fourth paragraph of that letter reads as follows:

I would also like to bring under your attention that inhabitants of the Nellmapius extension being build [sic] adjacent to the Mamelodi road have been seen and chased off Zwartkoppies while they were looking for firewood. A sociologist ... recommended a cement fencing being put up by the City Council to keep away elements from Zwartkoppies which has been earmarked as a sensitive area. I wonder what happened to her suggestions?

[c] Common sense dictates that if the Estate holds out whilst other areas develop around the farm, the danger of illegal occupation increases. I have already mentioned the state of the Estate's income, which is not good. Were the Estate to find itself having to deal with illegal occupiers who have to be evicted at considerable expense, none of which one could expect to recover, the results could be very adverse to the Estate.

[19] In the premises, I am satisfied that the requirements of Section 3(1)(c) of the Act are met.

[20] Would it be in the interests of the beneficiaries (by which term I refer to all beneficiaries, present and future, actual and potential) for the transaction with Snowy Owl to be authorised? In this regard:

[20.1] Miller J (as he then was) said at p.696 of Stranack that in arriving at a decision in this regard the Court should

take a cautious but realistic view of the situation and of the future prospects in regard to the property.

I respectfully agree.

[20.2] Is the purchase price a fair one which is beneficial to the beneficiaries, or should they hold out and wait for a better price? In favour of the aforegoing conclusion are a number of factors, including the following:

[a] The offer is the highest yet received;

[b] The point is made in the papers that, although property prices have burgeoned in recent years, this is not necessarily a continuing trend;

[c] I cannot but be influenced by the fact that every single one of the descendants who are most directly influenced by this question, viz. the surviving four grandchildren and the twelve great-grandchildren, is in favour of the sale at the price and on the terms offered by Snowy Owl. What is there in the papers - or, indeed, elsewhere - to suggest to me that their judgment in this regard is wrong? Nothing. On the contrary, whilst it might of course be that letting the Snowy Owl offer go will result in a more favourable transaction at a later stage, quite the converse might also be the case, as I have sketched above.

[20.3] I raised with Mr Petty the absence of a valuation of the property. He indicated that Snowy Owl's bankers, ABSA Bank Limited, had caused the property to be valued for purposes of their decision as to whether to finance the purchase, and he undertook to obtain this valuation. This he did, filing a supplementary affidavit by the candidate valuer in question, Theodorus Rademan.

In his affidavit, Rademan tells me the following:

[a] He has 11 years' experience in the field;

[b] He was asked by ABSA Bank Limited to value the farm during October 2004;

[c] He did so, arriving at a total market value of R12 500 000,00, with which value his mentor, Danie"l Rademan, agreed;

[d] ABSA Bank Limited on 14 October 2005 asked him whether a value of R9 500 000,00 would not be realistic. To this he responded by letter dated 17 October 2005 to the effect that such a value

can still be regarded as market related, even though perceived to be towards the lower end of market parameters....

[20.4] Thus, I have a valuation at between R9 500 000,00 and R12 500 000,00.

The purchase price of R10 000 000,00 falls at the lower end of these parameters.

[20.5] Should I in the circumstances decline to authorise the sale because it appears from Rademan's affidavit that perhaps a better price could be negotiated? In my view, no. In this regard:

[a] To say that the purchase price of R10 000 000,00 is at the lower end of the spectrum overlooks Snowy Owl's undertaking, mentioned above, to contribute at least a further R2 000 000,00 to the renovation and upkeep of the museum;

[b] Rademan's estimation of value remains but an estimation. The fact is, no higher offer has yet been received;

[c] Not one of any of the beneficiaries, in any of the generations concerned, has any interest in operating the property. They want to sell, and they want to sell at this price. It is appropriate in this regard to quote the words of De Vos Hugo JP at 106E-F of Ex parte Wallace 1970 (1) SA 103 (NC):

Dit is mi ook in die openbare belang dat mense nie verplig moet word om 'n bedrywigheid voort te sit waarvoor hulle geen lus of begeerte voor het nie en verhinder word om die' dinge te doen wat hulle voel hulle graag wil doen. Hulle lewens moet nie deur die "dooie hand" in 'n rigting gestuur word waarin hulle voel dat hulle nie gewillig is om te gaan nie.

[21] In the premises, I am satisfied that this is a case where I should exercise my discretion in favour of the Applicants and beneficiaries by removing the restriction on the sale of the farm.

[22] I agree with the Applicants that it would be sensible and in keeping with the intentions of Sammy Marks for the proceeds to be invested in government stock rather than being deposited into the Guardian's Fund, as suggested by the Master of the High Court in his report of 22 August 2005.

[23] In the premises, I grant relief in terms of Prayers 1 to 4 of the Notice of Motion, which read as follows:

1. Granting the Administrators of the Estate of the late Samuel Marks leave to sell the following immovable property, namely:

1.1 The Remaining Extent of Portion 2 of the farm Zwartkoppies No. 364 JR, district Pretoria
Measuring 677,124 Hectares
Held under Deed of Transfer No. T221/1884; and

1.2 Portion 8 of the said farm Zwartkoppies
Measuring 3,5318 Hectares
Held under Deed of Transfer No. T2491/1893; and

1.3 Portion 9 of the said farm Zwartkoppies
Measuring 7309 square metres
Held under Deed of Transfer No. T1231/1894,

(hereinafter collectively referred to as "the property")

to Snowy Owl 90 (Pty) Limited in terms of the Deed of Sale which is Annexure "P" to the Founding Affidavit, free of the fideicommissum created in the 1892 Will of the late Samuel Marks.

2. Granting the Administrators of the Estate of the late Samuel Marks leave to pay the following out of the proceeds of the sale:

2.1 The selling commission and the Value Added Tax thereon in an amount of R684 000,00 (SIX HUNDRED AND EIGHTY FOUR THOUSAND RAND);

2.2 Any Capital Gains Tax which may become payable by the Estate of the late Samuel Marks as the result of the aforesaid sale of the property;

2.3 Any costs of this application on the attorney and client scale which will not be paid by Snowy Owl 90 (Pty) Limited.

3. Ordering the Administrators of the Estate of the late Samuel Marks to invest the proceeds of the sale, after deduction of the amounts payable as set out in Prayers 2.1, 2.2 and 2.3 above in Government Stock and to furnish proof to the Master of this Honourable Court that this has been done.

4. Ordering and authorising the Registrar of Deeds in Pretoria to register the transfer of the property into the name of Snowy Owl 90 (Pty) Limited, upon lodgment with him of all of the necessary documentation enabling him to effect such registration.

[24] Finally, I must thank Mr Petty for drafting Heads of Argument. This being an unopposed application he was under no obligation to do so, but I found them most helpful.

__________________________
J F MULLINS (ACTING JUDGE) 21 OCTOBER 2005