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[2020] ZAGPJHC 426
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Nebotalo NO obo Nebotalo Family Trust v Prime Furniture Group (Pty) Ltd (41972/2019) [2020] ZAGPJHC 426 (27 November 2020)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
CASE
NO
: 41972/2019
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
NOT
REVISED
1
DECEMBER 2020
In
the matter between
THOMSON
NEBOTALO
N.O Applicant
o.b.o
THE NEBOTALO FAMILY TRUST
(IT
No. […])
And
PRIME
FURNITURE GROUP (PTY)
LTD Respondent
JUDGMENT
COWEN,
AJ:
Introduction
[1]
This
is an application for summary judgment in terms of Rule 32 of the
Uniform Rules of Court. The applicant is Thomson Nebotalo
NO, who
cites himself as a trustee of the Nebotalo Family Trust with
Registration No […] and acting on its behalf. The respondent
is Prime Furniture Group (Pty) Ltd.
[2]
The
applicant is a plaintiff in an action instituted on 3 December 2019
for payment of R1 250 000.00 (one million two
hundred and
fifty thousand Rands), interest and costs. The amount claimed is
monies outstanding in terms of an acknowledgement
of debt, in which
the defendant acknowledged indebtedness to the plaintiff in the
amount of R2 050 000.00 (two million
and fifty thousand
Rands). The plaintiff pleads that the defendant performed by making
three payments totalling R800 000.00.
The remainder, it is
alleged, is outstanding, due and payable.
[3]
The
application came before me on the opposed roll on 26 November 2020.
Mr Bhima appeared for the plaintiff, the applicant for summary
judgment. Mr Sibuyi appeared for the respondent. The application was
argued via Microsoft Teams video-conferencing in view of the
ongoing
COVID-19 pandemic.
[4] The
question for decision is whether the defendant has a
bona fide
defence to the plaintiff’s action in the sense contemplated
by Rule 32. At the commencement of the hearing, Mr Sibuyi informed
me
that the only defence the respondent persisted with raising to defend
the application for summary judgment application concerned
whether Mr
Nebotalo NO had standing to institute and pursue these proceedings on
behalf of the trustees of the Trust, which the
defendant disputes in
its special plea. However, Mr Bhima addressed the issue as one of
authority and, viewed in that light, submitted
that the proper course
for the defendant to have pursued was to raise the issue in terms of
Rule 7 of the Rules of Court which
it has not done. Mr Sibuyi
addressed the issue as one of both standing and authority.
[5]
The
plaintiff is described in the particulars of claim as follow: ‘
The
plaintiff is Thomson Nebotalo NO o.b.o. the Nebotalo Family Trust (IT
No: […]
).’ The pertinent denial in the plea is
raised as part of a special plea. It reads, as a reason for asserting
that the plaintiff
has no
locus standi
: ‘
The
plaintiff (Thomson Nebotalo) has not been duly authorised by the
trustees (if any) of the alleged trust to institute this action.
’
It is common cause that there are three trustees of the trust, Mr
Nebotalo, Mulalo Brenda Rapao and a Susanna Elizabeth
Thatcher. There
is no allegation in the particulars of claim to the effect that
Thomson Nebotalo has been authorised to act alone
on behalf of all of
the trustees in these proceedings nor is there any authorisation to
that effect attached in the particulars
of claim or indeed in the
affidavit supporting summary judgment. The high water mark of the
evidence in that regard is a single
allegation in Mr Nebotalo’s
founding affidavit in the application for summary judgment stating
that he is duly authorised
to act on behalf of ‘the plaintiff’.
Mr Nebotalo urged me to interpret the reference to the plaintiff as a
reference
to the Trust itself. The trust deed has not been placed
before the Court.
[6]
It
is trite that, subject to the trust constitution, trustees in their
capacity as such (
nominee
officii
)
are the proper persons to bring and defend actions in relation to a
trust.
[1]
Moreover, the balance
of authority holds that unless one or more of the trustees are
authorised by the others, all the trustees
must be joined in suing
and all must be joined when action is instituted against a trust.
[2]
Where one or more trustees act without other trustees, their
authorisation to do so must be alleged,
[3]
and such authorisation (or delegation) must not be prohibited by the
trust deed.
[4]
[7]
These
legal principles derive from the non-juristic nature of a trust and
the nature of trustees’ joint ownership of trust
property.
[5]
And they ultimately concern whether a litigant is properly before a
Court and whether the Court will recognise the litigant. These
are
not ‘technical’ issues. Where trust property is
concerned, as in the present case, all of the trustees in whom
the
trust property vests have an interest in any judgment and a judgment
will not be effective against all trustees unless they
are properly
before the Court.
[8]
The
defence raised is thus one of legal substance and in the
circumstances of this case, I am satisfied that summary judgment
should
not be granted. The Court has not been placed in a position to
conclude, in line with the balance of authority as cited in footnote
two, that Mr Nebotala is indeed authorised by the other trustees to
pursue these proceedings on their behalf and there is no impediment
to this course under the trust deed.
[6]
Furthermore, in these circumstances, the Court dealing with that
issue is best placed to decide whether it must follow the cases
cited
in footnote 2 above (or any other relevant case) or the approach in
Van der
Westhuizen
’s
case, which appears to hold that all trustees should be joined.
[7]
It is neither necessary nor appropriate for me to decide that issue
now.
[9]
Mr
Bhima submitted that the Court should postpone the application for
summary judgment to allow his client to supply an affidavit
to cure
the difficulty and submitted that the Court is entitled to receive
such evidence notwithstanding the provisions of Rule
32(4). Mr Sibuyi
submitted that, whatever discretion the Court may have to receive
further evidence, it should not enter the fray
to come to the aid of
one party. It is not necessary for me to decide whether it would be
open to the Court to receive such further
evidence because, in the
circumstances of this case, I am of the view that the defence is
bona
fide
and justice between the parties requires that it should be
ventilated in the ordinary course by recourse to pre-trial, or if the
matter does not settle as a result, trial process.
[10]
Finally,
Mr Bhima submitted that the issue is one that ought to have been
raised in terms of Rule 7 of the Uniform Rules of Court
which
provides a procedure for a party to challenge the authority of anyone
acting on behalf of a party to so act. The Rule applies
not only to a
challenge to authority of an attorney acting for a party in
litigation but to the authority of a person allegedly
acting on
behalf of the purported litigant.
[8]
But this submission does not assist the applicant for two reasons.
First, the protections of Rule 7 can be invoked at any time
before
judgment. It can be invoked as of right within ten days after it
comes to the notice of a party that such person is so acting
and with
the leave of the Court thereafter. Accordingly, to the extent that
Rule 7 may provide a procedural device to raise the
defence, which I
need not decide, it remains available to the defendant with the leave
of the Court which can be sought. Second,
even to the extent that
questions of authority as contemplated by Rule 7 are raised when a
Trust is cited by name
[9]
or
when one trustee is cited to the exclusion of others, the issue
raised is not solely one of authority. In
Desai-Chilwan
NO
,
Ngwenya J framed the issue as one of non-joinder rather than
locus
standi
.
[10]
However, in
Van
der Westhuizen
,
in this division, Streicher J framed the issue as one of standing.
Either way, in the circumstances of this case, the defendant
has, in
substance, raised the defence.
[11]
In
the result, I conclude that the application for summary judgment must
be refused. I make the following order:
1.
The application for summary judgment is refused.
2.
The defendant is granted leave to defend the action.
3.
The applicant shall pay the costs of the summary judgment application
on a party and party scale.
S
COWEN (Ms)
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Electronically
submitted therefore unsigned
The
judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to
the
Parties/ legal representatives by email and by uploading it to the
electronic file of this matter on Case lines. The date for
hand down
is deemed to be November 2020.
Date
of hearing: 26
November
2020
Judgment
delivered: 27
November 2020
APPEARANCES:
In
the case number 34482/2018
For
the Applicant: Adv
R Bhima
Instructed
by: E
Botha and Y Erasmus Incorporated
For
the Respondent: D
Sibuyi, DMS Attorneys.
[1]
Cameron, De Waal and Solomon,
Honore’s
South African Law of Trusts
(6
ed) at 465.
[2]
Id
at 466.
Goolam
Ally Family Trust v Textile, Curtaining & Trimming
1989(4)
SA 985 (C) (
Goolam
Ally
)
988.
Rosner
v Lydia Swanepoel Trust
1998(2)
SA 123 (W) at 127A-B.
Deutschmann
NO and others v Commissioner for the SARS; Shelton v Commissioner
for the SARS
2000(2)
SA) 106 (ECD) at 119F-H;
Luppacchini
v Minister of Safety and Security
2010(6)
SA 457 (SCA) at para 2.
[3]
Goolam
Ally
at
988.
Desai-Chilwan
NO v Ross and another
2003(2)
SA 644 (C) (
Desai-Chilwan
NO
) at
para 21;
Van
der Westhuizen
at
497A-D albeit subject to the findings at 494G-495E.
[4]
Goolam
Ally
at
988C-D;
[5]
Honore’s
South African Law of Trusts
at
405;
Parker
at
para 15;
Van
der Westhuizen
at
495D-E.
[6]
Though obiter, see
Hyde
Construction v Deuchar Family Trust,
supra
at para 47 on whether a citation in the name of a trust rather than
its trustees is competent.
[7]
In
Van
der Westhuizen NO v Sandwyk
1996(2)
SA 490 (W) at 494G-495E
,
this
Court adopted the view that all trustees must be joined. The authors
of
Honore’s
South African Law of Trusts,
supra,
at 466 fn 21 regard this approach to be incorrect and favour the
approach in the balance of authority cited in fn 2 above
and other
cases.
[8]
Unlawful
Occupiers, School Site v City of Johannesburg
2005
(4) SA 199 (SCA);
ANC
Umvoti Council Caucus and Others v Umvoti Municipality
(AR
392/2009) [2009] ZAKZPHC 47; 2010 (3) SA 31 (KZP) (25 September
2009)
and
s
ee
Bafokeng
Land Buyers Association and Others v Royal Bafokeng Nation and
Others
(CIV
APP 3/17) [2018] ZANWHC 5; [2018] 3 All SA 92 (NWM); 2018 (5) SA 566
(NWM) (9 March 2018)
.
[9]
As
in
Hyde
Construction,
supra,
where the full bench held
obiter
at
para 47: “
Given
the legal character of a trust, the citation of a trust by name in
litigation must, I think be understood as a reference
to the
trustees for the time being of the trust, whomever they may be.”
[10]
Supra
at para 30.