RB v ES (2321/2016) [2025] ZANCHC 68 (1 August 2025)

Case Note

RB v ES (Case No. 2321/2016) (29 July 2025, High Court of South Africa, Northern Cape Division, Kimberley)

Reportability

Although marked “Not Reportable” by the Court, the judgment is nonetheless significant as an illustration of the heightened threshold for obtaining leave to appeal under section 17(1)(a) of the Superior Courts Act 10 of 2013. The decision confirms that mere repetition of arguments rejected at first instance will rarely suffice to found reasonable prospects of success, particularly in matrimonial property disputes involving trusts. Practitioners dealing with accrual calculations, trust asset inclusion, and settlement agreements gain guidance on when an appeal will be considered frivolous and cost-inefficient.

Cases Cited

Schierhout v Minister of Justice 1926 Appellate Division 99
Buffalo City Metropolitan Municipality v Asia Construction (Proprietary) Limited 2019 (4) South African Law Reports 331 (Constitutional Court)

Legislation Cited

Matrimonial Property Act 88 of 1984
Trust Property Control Act 57 of 1988
Superior Courts Act 10 of 2013

Rules of Court Cited

Uniform Rules of Court, Rule 67 A

HEADNOTE

Summary

The applicant, RB, sought leave to appeal against a 29 November 2024 judgment that had made an arbitrator’s award an order of court, ordered him to pay R 3 311 897 to the respondent ES as an accrual claim, and dismissed his counter-application.
He argued that the trial court erred in including trust assets in his estate for the accrual calculation, relying on section 12 of the Trust Property Control Act and on certain clauses of the trust deed. He further contended that the settlement agreement embodied a common error of law and exceeded the trustees’ powers.
Deputy Judge President Phatshoane dismissed the application, finding no reasonable prospects of success or compelling reason to hear the appeal. Costs, including senior-junior counsel fees on scale B, were awarded against the applicant.

Key Issues

Whether the applicant demonstrated reasonable prospects of success on appeal under section 17(1)(a) of the Superior Courts Act.
Whether trust assets were unlawfully included in the applicant’s estate for accrual purposes contrary to section 12 of the Trust Property Control Act and the trust deed.
Whether the parties’ settlement agreement was void due to a common error of law or ultra vires the trustees’ powers.

Held

The Court refused leave to appeal. It held that the applicant merely replicated arguments already ventilated and rejected in the main judgment, none of which disclosed reasonable prospects of success or any compelling reason justifying appellate intervention.

THE FACTS

The parties were married out of community of property with accrual. During divorce proceedings they concluded a deed of settlement which, inter alia, treated assets of a family trust associated with the applicant as part of his personal estate for determining the accrual.
An arbitrator, Mr Andre Heyns, later issued a final award on 30 July 2021 quantifying the respondent’s accrual claim at R 3 311 897. On 29 November 2024 the High Court made that award an order of court, dismissed the applicant’s counter-application, and ordered costs against him.
Dissatisfied, the applicant sought leave to appeal. He insisted that, absent proof of trust abuse, section 12 of the Trust Property Control Act insulated the trust assets from his estate, rendering the inclusion unlawful and the settlement agreement void for a material error of law.

THE ISSUES

The Court had to decide whether leave to appeal should be granted. That inquiry distilled to two legal questions: first, whether the contemplated appeal carried reasonable prospects of success; second, whether some other compelling consideration—such as a novel or conflicted point of law—warranted an appellate hearing notwithstanding the perceived merits.

ANALYSIS

Phatshoane DJP began by reciting the statutory threshold in section 17(1)(a) of the Superior Courts Act: leave may be granted only if the Judge is of the opinion that the appeal would have reasonable prospects of success or that some other compelling reason exists.
The applicant’s grounds were, in substance, those already canvassed in the main proceedings. He invoked Schierhout v Minister of Justice and Buffalo City Metropolitan Municipality v Asia Construction, yet the Court considered those authorities distinguishable and previously addressed. The argument that section 12 of the Trust Property Control Act absolutely immunises trust assets, absent abuse, was rejected in the main judgment; the applicant provided no fresh jurisprudence or factual nuance to unsettle that conclusion.
Turning to the alleged common error of law and ultra vires settlement, the Court held that these contentions had been fully ventilated, assessed against the wording of the settlement and trust deed, and found wanting. Re-assertion of the same points does not metamorphose them into arguable appeal grounds. Consequently, there were neither reasonable prospects of success nor any wider jurisprudential importance that could justify certification.

REMEDY

The application for leave to appeal was dismissed. The Court ordered the applicant to pay the costs of the application, including the fees of senior and junior counsel on scale B, in terms of Rule 67 A of the Uniform Rules of Court.

LEGAL PRINCIPLES

An applicant for leave to appeal bears the onus of demonstrating reasonable prospects of success; mere reiteration of previously rejected arguments will not satisfy section 17(1)(a) of the Superior Courts Act.
Section 12 of the Trust Property Control Act does not, by itself, prevent trust assets from forming part of an accrual calculation where the parties have consensually agreed otherwise or where factual circumstances justify piercing of the trust veneer.
Courts will not lightly interfere with settlement agreements reduced to arbitral awards and made orders of court; allegations of common error or ultra vires conduct must be substantiated with cogent evidence.