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2021
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[2021] ZAGPJHC 603
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Diale and Another v Diale and Another In re: Diale v Gallery Momo Johannesburg (Pty) Ltd (2019/23347) [2021] ZAGPJHC 603 (23 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2019/23347
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
NOT
REVISED.
23/03/2021
In
the matter between:
DIALE,
MARRIAM
N.O.
First
Applicant
MORRIS,
SAFEIYA ROBYN N.O.
Second Applicant
and
DIALE,
MARRIAM
N.O.
First
Respondent
GALLERY
MOMO JOHANNESBURG (PTY) LTD
Second Respondent
In
re:
DIALE,
MARRIAM
N.O.
Applicant
and
GALLERY
MOMO JOHANNESBURG (PTY) LTD
Respondent
JUDGMENT
YACOOB
J:
1.
The applicants are the trustees of the
Dumile Feni Family Trust. They seek an order joining them, in their
capacity as trustees,
as applicants in the main application, which
has been brought by the first respondent in her capacity as the
executrix of the estate
of the late Dumile Mexaji Feni (“Feni”),
a renowned South African artist who died in exile in New York in
1991. The
first applicant and the first respondent in the joinder
application are the same natural person, acting in different legal
capacities.
The first applicant is the late Feni’s daughter,
2.
The second respondent is a Gallery with
which either the estate or the Trust has or had an agreement
regarding Feni’s artwork.
3.
In this judgment I shall refer to the
applicants as “the Trust”, the first respondent as “the
estate”, and
the second respondent as “the Gallery”.
Where it is necessary to refer to the first applicant/ first
respondent as
a natural person, I shall refer to her as “Ms
Diale”.
4.
The estate brought an application seeking
the return of any of Feni’s artwork in the Gallery’s
possession, and seeking
an order that a mandate given to the Gallery
had been validly terminated; that the Gallery render a complete
account to the estate
of all relevant transactions; that the Gallery
pay to the estate the proceeds of the sales of two specific works,
and that the
Gallery be interdicted from dealing with Feni’s
works or holding itself out as authorised to deal with Feni’s
works.
5.
The Gallery in its answering affidavit
denies an agreement with the estate and pleads an agreement with the
Trust. It claims a rectification
of the terms of the agreement with
the Trust, and denies that Ms Diale was acting in either her personal
capacity or as executrix
of the estate when she collected Feni’s
work and delivered it to the Gallery for sale or “commercialisation”.
It contends that Ms Diale must have been authorised by the estate to
collect and realise the works through the Trust, and that
the
agreement with the Trust is still in existence.
6.
The Gallery seeks that the dispute be
determined on the basis of the agreement it allegedly has with the
Trust, and that the application
be dismissed.
7.
It is for this reason that the Trust seeks
to intervene or be joined as an applicant in the main application.
The Trust contends
that it has a substantial interest in the matter
since, if the mandate between the estate and the Gallery is found not
to exist,
the Trust contends it would then be entitled to the relief
sought by the estate in terms of the agreement between the Trust and
the Gallery.
8.
The Gallery opposes the joinder of the
Trust on the basis that the notice of motion in the main application
does not seek the return
of works and payment of money to the Trust,
but to the estate, and therefore that the Trust does not have a real
and substantial
interest.
9.
It is contended on the Gallery’s
behalf that if there is no plea of non-joinder, the Gallery’s
defence of an agreement
between it and the Trust does not have any
effect on whether the Trust has an interest in the main application.
The Gallery’s
version, it is submitted, is irrelevant.
10.
The Trust, on the other hand, contends that
it clearly has an interest in the subject matter of the main
application, which may
be affected by the judgment of the court in
the main application and is therefore entitled to be joined. It only
has to show some
right which will be affected.
11.
In my view, it is clear that the only
reason the Gallery opposes the joinder of the Trust is because it
relies on the agreement
it has with the Trust as a defence, and
wishes its own version to be the only version before the court
dealing with the main application.
It is clear that the Trust has an
interest in the subject matter of the main application. It is not
sufficient for the Gallery
to say that the Trust does not seek relief
for itself in the main application. The Trust does not need to in
order to have an interest.
The Trust certainly does have an interest
if someone is relying on the Trust’s alleged actions to avoid
an obligation to
someone else.
12.
In addition, if the Trust wishes to seek
the alternative relief it refers to in the application for joinder,
after the main application
is determined, and if the main application
is determined in the Gallery’s favour, it is open to it to do
so. However I do
not see why it should. It is in the interests of
justice that the issues be fully ventilated and determined at the
same time.
13.
Since the Gallery’s opposition of
this application has been in vain I see no reason why it should not
bear the costs, nor
was any submission made that costs should not
follow the result.
14.
For these reasons I grant the following
order:
1.
Marriam Diale N.O. and Safeiya Robyn Morris
N.O. in their capacity as the trustees of the Dumile Feni Family
Trust are joined as
the second and third respondents in the main
application.
2.
The second respondent in the joinder
application is to pay the costs of the joinder application.
S.
YACOOB
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances
Counsel
for Applicants:
NS Nxumalo
Instructing
Attorneys:
Mthembu Inc
Counsel
for Second Respondent: M Smit
Instructing
Attorneys:
Mohamed Randera & Associates
Date of hearing:
Determined in the absence of oral argument by agreement
Date
of judgment:
23 March 2021