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[2015] ZAGPJHC 291
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Iprotect Trustees (Pty) Ltd N.O and Another v Ndlela, In re: Ndlela v Ndlela (43668/2014) [2015] ZAGPJHC 291 (10 December 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 43668/2014
DATE:
10 DECEMBER 2015
In
the matter between:
IPROTECT
TRUSTEES (PTY) LTD N.O
.......................................
FIRST
INTERVENING PARTY
NDLELA,
THABO SIPHO
N.O
...................................................
SECOND
INTERVENING PARTY
In
Re:
NDLELA,
MIRRIAM CLEMENCIA
KHOZYA
............................................................
APPLICANT
And
NDLELA,
THABO
SIPHO
............................................................................................
RESPONDENT
JUDGMENT
MODIBA
AJ:
[1]
This is an application to intervene as a party, as well as an
application to vary
an interim order granted by Victor J on 9
December 2014 in terms of rule 43 of the Uniform Rules of Court.
[2]
The intervening parties, iProtect Trustees (Pty) Ltd N.O. and Ndlela
Thabo Sipho (Mr
Ndlela) N.O in their capacity as trustees of the
Ndlela Trust (the trust) were not party to the rule 43 application.
Mr Ndlela
was the Respondent in the rule 43 application in his
personal capacity as the Applicant's spouse. The Applicant in the R43
application,
Mrs Ndlela Miriam Clementia Khoza (Mrs Ndlela) is
his wife.
[3]
The intervening parties seek to intervene
in the rule 43 application in order to vary certain parts of the
order granted in that
application that deal with the assets of the
trust
. They allege that Mr Ndlela
consented to the rule 43 application without the requisite authority
to bind the trust to that
order.
COMMON
CAUSE FACTS
[4]
The common cause facts are as follows:
4.1
Mr and Mrs Ndlela are party to a subsisting marriage. The trust was
formed for their sole
benefit and for the benefit of their minor
child.
4.2
An Audi A4 motor vehicle, as well as the furniture used in the
matrimonial home, are trust
assets. The Audit A4 was acquired by Mr
Ndlela for the sole use of the minor child and Mrs Ndlela. Mr Ndlela
donated the Audi A4
to the trust in October 2014. Mrs Ndlela
continued using the Audi A4 after it was donated to the trust. Mrs
Ndlela suffers from
a back condition. She specifically uses the Audi
A4 to accommodate her back condition.
4.3
On 15 August 2014, Mr Ndlela initiated divorce proceedings against
Mrs Ndlela in this court.
During the last week of November 2014, Mrs
Ndlela instituted a rule 43 application in this court on an urgent
basis under a different
case number from the divorce action. The
trustees of the trust were not party to the rule 43 application
despite the fact that
an order relating to the trust assets was
sought. The order in the rule 43 application was granted by consent
of the parties after
they had settled the matter amicably.
4.4
Prior to granting the order in the rule 43 application, Victor J
invited Mr Ndlela to call
on the trustees to come to court. Mr Ndlela
informed Victor J that it was not necessary for the trustees to come
to court because
he has the authority to bind the trust to the
settlement agreement entered into with Mrs Ndlela. He also undertook
to obtain a
written trust resolution rectifying his authority to
consent to the aforesaid order on behalf of the trust.
4.5
After Victor J granted the order, the trust refused to give the
resolution. Instead they
issued a resolution dated 11 December 2014
providing
inter alia
:
4.5.1
that the Ndlela Trust is a separate legal entity. Mr Ndlela and the
first intervening party are its trustees;
4.5.2
that no trustee shall have the unilateral power to appropriate or
dispose of any part of the trust for their
benefit;
4.5.3
no trustee shall be party to any decision that affects the
distribution of any benefit to them or their
estate;
4.5.5
for any decision of the trust to be effective, it must be taken by
the unanimous consent of both trustees;
4.5.6
an Audi A4 was donated to the trust on 17 October 2014;
4.5.7
Mr Ndlela did not have the authority to bind the trust to the draft
order granted by Victor J on 9 December
2014;
4.5.8
the trust cannot afford continue maintaining the Audi A4. Instead,
the trust will sell the Audi A4 and purchase
in the name of the trust
and for the benefit of the beneficiaries, a smaller motor vehicle
with a maintenance plan which will be
less expensive to maintain. The
trust will then lend the latter motor vehicle to Mrs Ndlela to be
used for the benefit of the Ndlela
minor child, pending the outcome
of the divorce proceedings between Mr and Mrs Ndlela.
4.6
The attorneys of record for the trust then addressed a letter to Mrs
Ndlela's attorneys
attaching the aforesaid trust resolution,
requesting Mrs Ndlela to consent to the amendment of paragraph 6 of
the order by Victor
J to give effect to the trust resolution, failing
which they will bring a formal amendment application. She did
not acquiesce
their request.
4.7
Paragraph 6 of the order by Victor J reads as follows:
“
6.
The Respondent shall deliver the Audi A4 motor vehicle bearing
registration number CW 75 WB GP to the Applicant in compliance
with
the court order of her ladyship the Honourable Judge Victor, of 28
November 2014 by no later than 18h00 on the 5
th
of December 2014. The Respondent undertakes within 7 (seven) days of
the grant of this order to produce a resolution by the Trustees
of
the Ndlela Trust IT392/05 resolving that it considers itself bound by
the terms of this Order and that the Applicant be entitled
to full
and unfettered use and possession of the Audi A4 motor vehicle
pending the outcome of the divorce action instituted under
the above
case number. The Applicant will not be entitled to take the Audi out
of South Africa.”
4.8
On 28 January 2015 Mrs Ndlela addressed a letter to Mr Ndlela's
attorneys informing them
that she has found accommodation and intends
moving out of the matrimonial home and that she requires from the
matrimonial home
certain listed furniture items in terms of paragraph
7 of the order granted by Victor J. The said paragraph reads as
follows:
“
7.
Pending the outcome of the divorce action, alternatively a variation
of this case by another court, in the ordinary course, the
Respondent
shall maintain the Applicant and Mbali as follows:
(c)
The Applicant and the Respondent will share on an equal basis the
furniture and effects currently situated in the former matrimonial
home so as to enable the Applicant to adequately furnish her
residence; and
(d)
The Respondent shall, in addition, make payment of the reasonable
motor vehicle maintenance and insurance and monthly instalments
on
the Audi motor vehicle set out in 6 above.”
4.9
In their letter written in response to the letter of 28 January 2015,
Mr Ndlela’s
attorneys contended that most of the listed
furniture items belong to the trust and that they cannot be released
to Mrs Ndlela
without a resolution by the trust consenting to their
removal. They attached a letter on the letterhead of MaxFin Chartered
Accountants
and Registered Auditors setting out a schedule of assets
for the Ndlela Trust as at 28 February 2014. Various household
furniture
items to the value of R460, 000, a 2014 BMW X1 motor
vehicle and investment property situated in Witkopen Ext are itemized
in the
schedule. Mr Ndlela did not acquiesce to Mrs Ndlela’s
request.
4.10
On 13 February 2015, the intervening parties launched the current
application.
THE
ISSUES TO BE DETERMINED
[5]
The following issues are to be determined:
5.1
whether the intervening parties should be joined to the proceedings;
5.2
whether the application to amend the order by Victor J ought to be
determined in terms of
rule 43(6) or whether it is a normal opposed
motion application brought in terms of rule 6 of the uniform rules of
court;
5.3
whether the intervening parties have shown cause for the variation of
the order by Victor
J.
THE
APPLICATION TO INTERVENE
[6]
Applications to intervene are determined in terms of rule 12 of the
Uniform Rules
of Court. This rule provides as follows:
"Any
person entitled to join as a plaintiff or liable to be joined as a
defendant in any action may, on notice to all parties,
at any stage
of the proceedings apply for leave to intervene as a plaintiff or a
defendant. The court may upon application make
such order, including
any order as to costs, and give such directions as to further
procedure in the action as to it may seem meet."
[7]
In terms of rule 6(14), Rule 12 is applicable to applications.
[1]
A person who has a substantial interest in a matter in which he was
joined as a party may apply to intervene in that application
in terms
of Rule 12.
(United
Watch & Diamond Co (Pty) Ltd v Disa Hotels Ltd)
.
[2]
The court has a wide discretion to grant or refuse the application to
intervene.
[8]
The intervening parties contend that the order by Victor J affects
several trust assets
namely, an Audi A4 motor vehicle being used by
Mrs Ndlela, maintenance of the said motor vehicle by Mrs Ndlela as
well as household
furniture which is being used in the matrimonial
home.
[9]
The Audi A4 and the furniture assets are assets of the trust as
defined in section
1 of the Trust Property Control Act 57 of 1998.
The trustees have a statutory duty to manage the assets of the trust
in the interests
of the beneficiaries. See
PPWAWU
National Provident Fund v Chemical Energy Paper Printing Wood and
Allied
Workers Union.
[3]
Given
that the use of the trust assets are affected by Victor J's order,
I'm satisfied that the trust has a direct and substantial
interest in
the order granted by Victor J.
[10]
In the premises, the intervening parties have made out a proper case
for the trust to intervene
in the rule 43 (1) application.
VARIATION
OF THE RULE 43 ORDER
[11]
Strictly speaking an order granted in terms of rule 43(1) can only be
amended in terms of rule
43(6). Rule 46(3) only allows for variation
of the order under limited circumstances, where there has been a
material change in
the circumstances of the parties and minor child.
[12]
Although it seeks to vary an order granted in terms of rule 43(1),
the variation application
brought by the intervening parties is not
an application envisaged by rule 43(6) in that it was not
precipitated by a change in
the circumstances of the parties or the
minor child. The intervening parties brought this application because
they were not party
to the rule 43 application. Therefore this
application falls squarely within the purview of rule 42(1)(a). In
terms of this rule,
the court may
mero motu
or on application
by any of the parties set aside or vary one of its judgements or
orders erroneously sought or granted in the
absence of any party
affected thereby.
[13]
I consider the variation application bearing in mind that the order
sought to be varied was granted
pursuant to a circumscribed
application brought under the strict rubric of rule 43. This rule as
already stated only allows for
an order granted under it to be varied
only in the event of a material change in the circumstances of the
parties. The rule does
not permit a rehearing of the rule 43
application. I am mindful not to allow the letter of rule 42(1)(a) to
encroach on the limitations
imposed by rule 43. I therefore limit my
consideration of the variation application to circumstances that
prevailed when the order
in the rule 43 application was granted. I
confine the variation application to solely consider the interests of
the trust because
the intervening parties did not have an opportunity
to represent the trust interests when the rule 43 application was
heard.
[14]
The purpose of a rule 43 application is primarily to allow the
parties to maintain the lifestyle
they have enjoyed prior to
commencing divorce proceedings unless the breakdown in their marriage
justifies a lifestyle change,
for example where the parties’
living expenses have increased as a result of living apart while
their income remained constant.
It is for this reason that an order
granted pursuant to such an application only operates
pendente
lite.
[15]
The Audi A4 was purchased for Mrs Ndlela’s use. She continued
using it for her benefit
and for the benefit of the minor child after
it was donated to the trust in October 2014. The intervening parties
submit that the
trust cannot afford to maintain the Audi A4 or to
purchase furniture for Mrs Ndlela. They want to purchase for the use
of the minor
child and Mrs Ndlela a smaller motor vehicle which is
cheaper to maintain. Mrs Ndlela contended that a smaller vehicle will
not
accommodate her back condition. For this reason she wants to
continue using the Audi A4.
[16]
To substantiate their contention that the trust cannot afford to
maintain the Audi A4, the intervening
parties have attached trust
financial statements for 2013 and 2014. During this period, the trust
incurred a financial surplus
in the amount of R19, 788 and R74, 107
respectively. Counsel for the intervening parties contended that
although the trust incurred
a surplus in 2013 and 2014, it has an
accumulated loss which is indicative of its weak financial position.
[17]
The trust was formed for the benefit of the Ndlela's and their minor
child. By implication, the
trust expenses are incurred for their
benefit. The trust financial statements reflect a 275% increase in
financial surplus between
2013 and 2014. This is indicative of a
positive cash flow. The trustees did not disclose trust management
accounts from the beginning
of the 2014 financial year to December
2014. They have also failed to take the court into their confidence
regarding the cost of
maintaining the Audi A4. They have not
disclosed who was responsible for maintaining the Audi A4 before it
was donated to the trust
as well as trust expenses spent towards the
Audi A4 since Mr Ndlela donated it to the trust in October 2014. They
have failed
to show that the trust cannot afford to maintain the Audi
A4. In my view, it is appropriate that Mrs Ndlela is allowed to
retain
the Audi A4 pending divorce.
[18]
I also do not agree with the reasons for refusal by the trust to
allow Mrs Ndlela to remove some
of the trust furniture from the
matrimonial home. The furniture was bought for the benefit of the
Ndlela family. She has vacated
the matrimonial home because of the
pending divorce. She is equally entitled with Mr Ndlela and the minor
child to enjoy the use
of the furniture. I do not see why she must be
deprived of using the furniture pending the divorce. It is not the
case of the intervening
parties that if she moves the furniture it
will be destroyed or that she will alienate it. The intervening
parties have not made
out a case why Mrs Ndlela should be deprived of
using the household furniture pending the divorce.
[19]
I find it incongruous that the intervening parties claim that the
trust cannot afford to maintain
the Audi A4, yet it can afford to
incur capital acquisitions by purchasing an alternative car and
furniture for Mrs Ndlela. If
it is indeed true that on the strength
of the disclosed financial statements of the trust, the trust is
running at a loss, the
Trust would not have the means to buy an
alternative car and furniture for Mrs Ndlela.
[20]
In the premises, the Applicants have failed to make out a case for
the variation of the order
by Victor J. The variation application
stands to be dismissed.
[21]
Having allowed the intervening parties to intervene in the rule 43
application and in the light
of their failure to show cause for the
variation of the order granted in that application, it is appropriate
that I declare the
order granted by Victor J on 9 December 2014 to be
binding on the intervening parties.
COSTS
[22]
Although the intervening parties succeeded in bringing the
application to intervene, that application
only opened the door for
them to seek a variation of the order granted by Victor J on 9
December 2014. Having been unsuccessful
in the variation application,
the intervening parties are not substantially successful in this
litigation. On the trite principle
that costs follow the course, the
intervening parties are not entitled to any costs.
[23]
The application to intervene would not have
been necessary had Mr Ndlela heeded the invitation by
Victor J to
obtain a trust resolution authorising him bind the trust in the
settlement agreement entered into with Mrs Ndlela prior
to the
settlement agreement being made an order of court. There is no reason
why Mrs Ndlela should be out of pocket as a result
of the
misrepresentation that Mr Ndlela made to Victor J. To express my
disapproval of Mr Ndlela's conduct in this regard, it is
appropriate
that I order Mr Ndlela in his personal capacity to bear the costs of
this application on an attorney and client scale.
ORDER
[24]
In the premises, I make the following order:
24.1.
The application to intervene is granted.
24.2.
The application to amend paragraph 6 of the order granted by Victor J
on 9 December 2014 is dismissed.
24.3
The entire order granted by Victor J on 9 December 2014 is declared
binding on the intervening parties.
26.3.
Mr Ndlela shall pay in his personal capacity, the costs of both the
application to intervene and the variation
application on an attorney
and client scale.
L
MODIBA
ACTING
JUDGE OF THE HIGH COURT
Appearances
:
Counsel
for Applicant: Adv L Segal
Instructed
by: Lowndes Dlamini
Counsel
for the First and Second Intervening Parties: Adv Fouche
Instructed
by: Savage Hurter Louw & Uys
Date
of hearing: 13 October 2015
Date
of judgment: 10 December 2015
[1]
Erasmus
Superior Court Practice 2nd Ed Vol 2 (2015) D1-137.
[2]
1972
(4) SA 409
(C) 416A.
[3]
[2007] ZAGPHC 146
;
2008
(2) SA 351
(W).