Dear Colleague
We start this newsletter with heavy hearts. We are all shocked at and saddened by the loss of a great man and colleague, Paul Kirsten Louw, from the Efficient Port Elizabeth branch, who unexpectedly passed away on 12 October 2022. Our sincerest condolences go out to Paul’s loved ones, family, friends, colleagues, and all of those whose lives he influenced.
We would like to pay tribute to the man that Paul was. To those who knew him well, he was a true gentleman who treated everyone with respect. He was much-loved by his colleagues, service providers, and clients alike.
Since the establishment of EFBOE, Paul was loyal to and supportive of us. For three consecutive years, he received our annual Best Supporter of the Year Award. He will be sorely missed.
We would like to pay tribute to the man that Paul was. To those who knew him well, he was a true gentleman who treated everyone with respect. He was much-loved by his colleagues, service providers, and clients alike.
Since the establishment of EFBOE, Paul was loyal to and supportive of us. For three consecutive years, he received our annual Best Supporter of the Year Award. He will be sorely missed.
A voice that is loved so much is stilled,
a life from a household is gone.
A place is vacant in hearts that can never be filled,
but the life of one that is loved is never lost
and lives on in the hearts of all the lives
that he has ever touched.
a life from a household is gone.
A place is vacant in hearts that can never be filled,
but the life of one that is loved is never lost
and lives on in the hearts of all the lives
that he has ever touched.
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Disability Rights Awareness Month
We live in an era where the world has become a very small place, owing to advancements in communication technology. Our ‘oneness’ as a collective has further been solidified by the establishment of the United Nations (UN) in 1945.
Worldwide, November is Disability Awareness Month. This year, the UN proclaimed the international theme as: “Removing barriers to create an inclusive and accessible society for all.”
South Africa celebrates Disability Rights Awareness Month between 03 November and 03 December. This month affords individuals and institutions the opportunity to remove barriers and to improve the quality of life of people with disabilities through concrete action. Persons with disabilities include those who have long-term physical, mental, intellectual, or sensory impairments, who live with various barriers that may hinder them from their full and effective participation in society on an equal basis with others.
Worldwide, November is Disability Awareness Month. This year, the UN proclaimed the international theme as: “Removing barriers to create an inclusive and accessible society for all.”
South Africa celebrates Disability Rights Awareness Month between 03 November and 03 December. This month affords individuals and institutions the opportunity to remove barriers and to improve the quality of life of people with disabilities through concrete action. Persons with disabilities include those who have long-term physical, mental, intellectual, or sensory impairments, who live with various barriers that may hinder them from their full and effective participation in society on an equal basis with others.
SEE THE PERSON
not the disability
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‘DE BLOEDIGE HAND ERFT NIET’: PENSION FUND DISTRIBUTION
In our previous newsletter of September 2022, we addressed the ‘de bloedige hand erft niet’ principle in a short piece on a court case. In this newsletter, we look at a different court case involving this same principle and the extension of its application down the blood line. This particular case highlighted the ‘de bloedige hand’ principle and its application to the distribution of pension funds in this specific case.
The ‘de bloedige hand’ principle holds that no person who unlawfully causes the death of another person can derive any benefit from the Will of their victim. In the case Nel and Others v Netcare 1999 Pension Fund and Others (8142/2019) [2020] ZAGPPHC 423 (24 August 2022), the child of the deceased’s murderer was the beneficiary of a death benefit.
In the events around this case, the deceased’s stepdaughter, Bonolo, murdered the deceased and his wife. Bonolo had a minor child who lived with and was dependent on the deceased and his wife. The deceased nominated his mother and his wife as beneficiaries to his pension fund benefits and, should his mother not survive him, he nominated his wife as the sole beneficiary.
Despite his nominations, the pension fund made their own decision and awarded the entire benefit to Bonolo’s child in terms of Section 37C of the Pension Funds Act 24 of 1956, irrespective of the fact the child’s mother murdered the victim.
The deceased’s siblings contested the decision made by the pension fund and filed their complaint with the pension fund’s adjudicator who ordered a re-investigation of the allocation. After the pension fund conducted their re-investigation, their finding was that the siblings were not dependants of the deceased. The adjudicator thus confirmed the pension fund’s decision. The siblings then launched a further application at the Pretoria High Court to review the decision of the pension fund adjudicator on the basis of the principle that ‘de bloedige hand neem geen erfenis’. They felt that the common law ought to be extended in that the murderer’s child was equally not entitled to benefit.
The Pretoria High Court refused to extend the principle to the child of the deceased’s murderer. Their reasons were:
The ‘de bloedige hand’ principle holds that no person who unlawfully causes the death of another person can derive any benefit from the Will of their victim. In the case Nel and Others v Netcare 1999 Pension Fund and Others (8142/2019) [2020] ZAGPPHC 423 (24 August 2022), the child of the deceased’s murderer was the beneficiary of a death benefit.
In the events around this case, the deceased’s stepdaughter, Bonolo, murdered the deceased and his wife. Bonolo had a minor child who lived with and was dependent on the deceased and his wife. The deceased nominated his mother and his wife as beneficiaries to his pension fund benefits and, should his mother not survive him, he nominated his wife as the sole beneficiary.
Despite his nominations, the pension fund made their own decision and awarded the entire benefit to Bonolo’s child in terms of Section 37C of the Pension Funds Act 24 of 1956, irrespective of the fact the child’s mother murdered the victim.
The deceased’s siblings contested the decision made by the pension fund and filed their complaint with the pension fund’s adjudicator who ordered a re-investigation of the allocation. After the pension fund conducted their re-investigation, their finding was that the siblings were not dependants of the deceased. The adjudicator thus confirmed the pension fund’s decision. The siblings then launched a further application at the Pretoria High Court to review the decision of the pension fund adjudicator on the basis of the principle that ‘de bloedige hand neem geen erfenis’. They felt that the common law ought to be extended in that the murderer’s child was equally not entitled to benefit.
The Pretoria High Court refused to extend the principle to the child of the deceased’s murderer. Their reasons were:
- The ‘de bloedige hand’ principle does not extent down a bloodline. Therefore, it cannot exclude anyone else than the murderer themself from receiving the benefit.
- They agreed that the pension fund correctly awarded the benefit in accordance with Section 37C of the Pension Funds Act. Even though the child had no biological link to the deceased, he was factually dependent on the deceased.
- The court agreed that the trustees correctly compared the child’s position to that of the siblings. The siblings were not dependent on the deceased, neither were they poor nor needy, and their need was premised on what could be categorised as speculative future contingencies.
The position was that only the culprit, in this case, Bonolo, should be prejudiced by her actions and the judgement be aligned with this position. Any other decision by the pension fund or the court would have been to the detriment of the child despite him being innocent.
https://www.financialinstitutionslegalsnapshot.com/2020/09/de-bloedige-hand-principle-and-its-application-in-s37c-pension-fund-distributions/
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CECIL GEORGE HARRIS’ UNIQUE HOLOGRAPHIC WILL
Cecil George Harris was a hardworking Canadian farmer. On 8 June 1948, he was working on his land and accidentally became trapped under his tractor. Harris realised that he would probably not survive the ordeal and used his pocket-knife to scratch a Will onto the tractor’s fender. It read: “In case I die in this mess I leave all to my wife. Cecil Geo Harris”.
After 10 hours, he was discovered by neighbours who took him to hospital, but he, unfortunately, did not survive. Harris passed away the next day. Even though he told no one about his unusual Will, it was eventually found, and the fender was taken off of the tractor and was presented in court. The court ultimately awarded the estate to his wife and determined that Harris created a valid holographic Will.
The tractor Will is on display at the University of Saskatchewan’s Law Library.
Note: A holographic Will is a handwritten Will created by a testator with no witnesses present. In some countries abroad, it is acceptable, but the requirements of such a Will are very strict. The Wills Act in South Africa does not directly provide for holographic Wills, but the Law of Succession Amendment Act 43 of 1992 allows a court to waive any formal requirements if the court is satisfied that the testator intended for a document to serve as their last Will and Testament.
After 10 hours, he was discovered by neighbours who took him to hospital, but he, unfortunately, did not survive. Harris passed away the next day. Even though he told no one about his unusual Will, it was eventually found, and the fender was taken off of the tractor and was presented in court. The court ultimately awarded the estate to his wife and determined that Harris created a valid holographic Will.
The tractor Will is on display at the University of Saskatchewan’s Law Library.
Note: A holographic Will is a handwritten Will created by a testator with no witnesses present. In some countries abroad, it is acceptable, but the requirements of such a Will are very strict. The Wills Act in South Africa does not directly provide for holographic Wills, but the Law of Succession Amendment Act 43 of 1992 allows a court to waive any formal requirements if the court is satisfied that the testator intended for a document to serve as their last Will and Testament.
Until next month!
The Let’s Talk EFBOE Team