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[2023] ZAFSHC 238
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T. T v D.T N.O and Others (1916/2023) [2023] ZAFSHC 238 (2 June 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Application
number: 1916/2023
REPORTABLE:
YES/NO
OF INTEREST TO OTHER
JUDGES: YES/NO
CIRCULATE
TO MAGISTRATES: YES/NO
In the application
between:
T[...]
T[...]
Applicant
(ID No. 4[…],
duly represented herein
by M[...] C[...] by
virtue of Power
of Attorney PA
18[…])
[In his capacity as
founder and Trust beneficiary of the
OLIVE TREE TRUST,
IT1[…]]
and
D1[...]
T[...] N.O.
1st
Respondent
(ID No. 7[…])
[In her capacity
nominee officio as trustee of the OLIVE
TREE TRUST, IT1[…]]
SAREL
LOUIS AUGUSTYN N.O.
2nd
Respondent
[In his capacity as
nominee officio as trustee of the OLIVE
TREE TRUST, IT1[…]]
MASTER OF THE
HIGH COURT, BLOEMFONTEIN,
FREE
STATE PROVINCE
3rd
Respondent
D1[...]
T[...]
4th
Respondent
[On behalf of and
in her capacity as guardian of
C[…] T[…],
a minor with ID No. 06[…],
a beneficiary of
the OLIVE TREE TRUST, IT1[…]]
D1[...]
T[...]
5th
Respondent
[On behalf of and
in her capacity as guardian of
I[…] T[…],
a minor with ID No. 08[…],
a beneficiary of
the OLIVE TREE TRUST, IT126/2012]
D1[...]
T[...]
6th
Respondent
(ID No. 7[…])
SAREL
LOUIS AUGUSTYN
7th
Respondent
FANIE
VAN VUUREN N.O.
8th
Respondent
[In his capacity
nominee officio as trustee of the
FC FIN TRUST]
THE
REGISTRAR OF DEEDS, PRETORIA
9th
Respondent
CORAM:
VAN ZYL, J
HEARD ON:
28
APRIL 2023
DELIVERED
ON:
2 JUNE 2023
[1]
This matter served before me as an urgent application in terms
whereof the applicant
is seeking urgent interim interdictory relief.
[2]
In addition to the usual condonation prayer, the applicant is seeking
a rule
nisi
, which rule
nisi
is to operate as an
interim interdict with immediate effect, pending the finalization of
this application, in the following terms:
“
2.1
Interdicting and restraining the first and second respondents from
passing transfer of the immovable property, better
known as Unit
1[…], L[…] Section Title, Sectional Title Scheme
number: 193 (situated at Wapadrand Extension
1 2[…]),
Diagram Deed Number: 19[…], 8[…] K[…] Crescent,
Wapadrand, Tshwane, Gauteng Province [Pretoria
Deed’s Office]
to the FC Fin Trust, alternatively in the name of the trustee(s) for
the time being of the FC Fin Trust or
any other nominated purchaser
pursuant to the agreement of sale of Sectional Title dated 1 March
2023, pending the finalization
of the application issued in the Free
State Division of the High Court of South Africa, Bloemfontein under
civil case cover number:
201/2023 and the resolution taken with
regards to the sale of the aforesaid immovable property at the first
meeting of trustees
to be held after finalization of immediately
aforesaid application.
2.2
Interdicting and restraining the first and second respondents from
entering into a purchase agreement to sell the
immovable property,
better known as Unit 1[…], L[…] Section Title, …
and passing transfer thereof to the FC
Fin Trust or any other
purchaser pending the finalization of the application issued in the
Free State Division of the High Court
of South Africa, Bloemfontein
under civil case cover number: 201/2023 and the resolution
taken with regards to the sale of
the aforesaid immovable property at
the first meeting of trustees to be held after finalization of
immediately aforesaid application.
2.3
Interdicting and restraining the ninth respondent from registering
the transfer of the immovable property, better
known as Unit 1[…],
L[…] Section Title, … in the name of the trustee(s) for
the time being of the FC Fin Trust,
alternatively in the name of the
FC Fin Trust or any other purchaser pending the final determination
of the application issued
in the Free State Division of the High
Court of South Africa, Bloemfontein under civil case cover number:
201/2023 and the
resolution taken with regards to the sale of the
aforesaid immovable property at the first meeting of trustees to be
held after
finalization of immediately aforesaid application.”
Background:
[3]
The applicant is a male pensioner, residing in Cape Town. The
applicant suffers
from Vascular Dementia. M[...] C[...] is the
applicant’s wife. She is representing the applicant in
the application
and deposed to the founding and replying affidavits
by virtue of a General Power of Attorney, dated 7 July 2021 and which
was registered
in the Deeds Office on 16 July 2021. She explained in
the founding affidavit that the applicant’s medical condition
affects
his speech and co-ordination, but that he fully understands
when he is spoken to. I will refer both to the applicant and
Mrs C[...] as “the applicant”, unless I mean to
specifically refer to Mrs C[...], in which instances I will refer to
her as “the applicant’s wife”.
[4]
According to the applicant he is the founder and an income- and
capital beneficiary
of the Olive Tree Trust (“the Trust”),
but the allegation that he is an income- and capital beneficiary of
the Trust,
is being disputed.
[5]
The first respondent is D1[...] T[...] in her capacity as a
co-trustee of the Trust.
She is also cited in her personal
capacity as the sixth respondent and in her capacity as guardian of
her two minor children (“the
two minor children”) who are
beneficiaries of the Trust, as fourth and fifth respondents.
For the sake of efficacy,
I will in general refer to her as “the
first respondent”, but will specify her capacity if and when
necessary when
same cannot be deducted from the context.
[6]
The second respondent is Sarel Louis Augustyn in his capacity as a
co-trustee of the
Trust. He is also cited in his personal capacity as
the seventh respondent. I will in general refer to him as “the
second
respondent", but will specify his capacity if and when
necessary.
[7]
When referring to both the first and second respondents in their
capacity as joint trustees, I
will refer to them as “the
trustees”.
[8]
The eighth respondent is Fanie van Vuuren, who is cited in his
capacity as trustee
of the FC Fin Trust. I will refer to Mr van
Vuuren and the FC Fin Trust by his/its names respectively.
[9]
The first respondent was married to the applicant’s son, D2[…]
T[…],
but they were divorced during 2009. The two minor
children were born from their marriage. The first respondent
was
awarded care and primary residence of the two minor children.
[10]
D2[…] was never in a position to assist the first respondent
to maintain the minor children,
which is currently still the
position. The applicant has consequently been financially
assisting the first respondent, on
behalf of this son. The
extent of the applicant’s financial assistance is in dispute.
[11]
The immovable property described in the notice of motion is presently
still registered in the
name of the Trust. I will refer to the
said immovable property as “the Trust property”.
[12]
In the founding affidavit the applicant’s wife made the
following allegations:
“
9.
The trust was erected with the sole purpose to own an immovable
property where the children can reside.
10.
I was present when the applicant specifically said to the first
respondent (in personal capacity) when creating
the trust that the
immovable property must not be sold. It was never the intention
that the Trust’s property be sold,
and the proceeds of the sale
utilized as the first respondent (and the second respondent) intends
to do. The first respondent
agreed to this, and the immovable
property acquired in the Trust with the express intention to
safeguard the property for the benefit
of all the trust
beneficiaries, including the applicant.
11.
The house was purchased and put in Trust to provide a suitable place
to live for the children with good living conditions
to serve the
best interests of the children as envisaged by the Children’s
Act, 38 of 2005. The first house was sold
when the first
respondent moved, and a new property acquired as a result of the
intention with which the Trust property was bought.
The same
transpired when the first respondent moved to Gauteng and the Trust’s
property was purchased. In the removal
application the acquisition of
the Trust property is dealt with fully, namely that the applicant
(
sic)
sold the KwaZulu Natal property without informing the
applicant or me of the sale. We only learned of the sale after
the first
respondent had signed an offer to purchase on the Trust’s
property. There however was a shortfall on the purchase price
that needed to be paid and the first respondent approached the
applicant and myself for funding in this regard. An amount
was
lent to the Trust by Armist Wholesale (Pty) Ltd, a company in which
the applicant and myself have equal shares.
12.
It obviously benefits the first respondent in personal capacity as
she also has a place of residence as guardian
of the children for
which she need not pay rent.
13.
The first respondent’s (in personal capacity, thus the sixth
respondent) only expense with regards to place
of residence is
payment of the monthly municipal account in relation to the immovable
property. To this end, she receives as part
of the maintenance
contribution from the applicant, a contribution for the pro-rata
share of the children’s water and electricity
usage.
14.
The levy payable on the property also forms part of the maintenance
contribution. The applicant also pays
the household insurance
directly to the insurer monthly.”
The application
under case number 201/2023:
[13]
On 18 January 2023 the applicant issued an application under case
number 201/2023 (“the
main application”) in terms whereof
the applicant was initially seeking an order that the applicant’s
attorney of record,
Mrs Milton, and the applicant`s wife be appointed
as trustees of the Trust in addition to the first respondent, who, at
the time,
was the only trustee.
[14]
On 23 February 2023 the Court granted leave to the applicant to,
amongst other matters, amend
the Notice of Motion in those
proceedings to include a prayer for the removal of the first
respondent as trustee of the Trust and
to file a supplementary
founding affidavit. The respondents
in casu
, with the
exclusion of Mr Augustyn, in his personal capacity, Mr van Vuuren, in
his capacity as trustee of the FC Fin Trust, and
the Registrar of
Deeds, Pretoria, were cited as respondents in the main application.
The said respondents are opposing the
relief sought by the applicant
in the main application. The aforesaid respondents filed an answering
affidavit in the main application
which was deposed to by the first
respondent. The second respondent herein also deposed to a
confirmatory affidavit in support
of the opposition to the main
application. The applicant filed a replying affidavit, which was
deposed to by the applicant`s wife.
[15]
A lever arch file containing the papers which have been filed to date
in the main application,
was also placed before me during the hearing
of the application
in casu.
[16]
When the Trust was established on 23 February 2012, three trustees
were appointed. They
were the first respondent, the applicant
and one Anthony de Villiers, representing the Beta Trust Admin CC.
The applicant
resigned as trustee on 21 June 2012, allegedly since he
was advised that he should rather not be the founder, a trustee and
beneficiary.
The first respondent and the Beta Trust Admin CC
were then the appointed trustees. On 13 October 2020, Beta
Trust Admin CC,
represented by Anthony de Villiers, resigned.
Although the Letters of Authority was not revised to reflect only the
first
respondent as trustee, Beta Trust Admin CC’s resignation
was, however, accepted by the Master by means of a letter attached
to
the founding affidavit as annexure “N”.
[17]
According to the applicant, the first respondent, notwithstanding
demand, failed to appoint an
additional trustee in terms of the
provisions of the trust deed. According to the first
respondent, she was not aware that
the Beta Trust Admin CC had
resigned as trustee.
[18]
According to the applicant, on the day that the main application was
issued the applicant nominated
the second respondent and the Master
authorised him to represent the Trust on 19 January 2023. The
applicant he was not aware
of this fact and it only came to his
knowledge when the Master filed his report in the main application.
The sale of the
Trust property:
[19]
During the preparation of the main application the applicant and his
wife were informed by D2[…]
that the first respondent had
instructed an estate agency to sell the Trust property. It was
then ascertained that the Trust
property had indeed been placed in
the market by Remax Estate Agency and advertised on the Property24
website for R1 450 000.00.
A copy of the advertisement is attached to
the founding affidavit as annexure “C”.
[20]
On or about 3 March 2023 the applicant’s wife received
information that an offer to purchase
the Trust property had been
made. Thereafter correspondence followed between the applicant`s
attorney and the second respondent
and only after some time and much
effort, the applicant`s attorney eventually received a copy of the
document titled “Agreement
of Sale – Sectional Title”
(“the Deed of Sale”) from the second respondent via
e-mail on 22 March 2023.
A copy of the Deed of Sale, dated 1
March 2023, is attached to the founding affidavit as annexure “I”.
[21]
The applicant points out in the founding affidavit that at the time
of the drafting and filing
of the supplementary founding affidavit in
the main application, the sale had not yet been concluded.
[22]
At paragraph 46.7 of the founding affidavit in the present
application, the following is consequently
stated:
“
The
applicant has given notice to the … respondents in the removal
application that the applicant intends to amend the amended
notice of
motion to include as new prayer 11 the following, ‘Declaring
the agreement, styled Offer to Purchase – Sectional
Title,
dated 1 April 2023, with regards to the trust’s property be
declared (
sic)
void,
alternatively be set aside’, and renumbering the existing
paragraph 11 and 12 to prayers 12 and 13 respectively. Fanie
van
Vuuren N.O. in his capacity as trustee of the FC Fin Trust will be
joined to the application as eighth respondent and the Registrar
of
Deeds, Pretoria will be joined as ninth respondent to the
application.”
The removal of the
first respondent as trustee and/or the appointment of additional
trustees and the validity of the Deed of Sale:
[23]
It is the applicant’s case that the Trust was erected and the
immovable property in the
Trust was acquired to provide housing for
the minor children. This is why the immovable property in the
Trust was replaced
by another immovable property when it was sold in
the past in keeping with the intention with which the Trust was
established.
[24]
According to the applicant the first respondent fails to pay the
Trust’s creditors fully
every month, which puts the Trust
property at risk for attachment, more specifically by the
Municipality who threatened to take
legal action due to non-payment
of the municipal accounts. The applicant further alleges that
the levies were also not paid,
which means that Trust funds were not
used for the purpose for which it was paid over to the first
respondent.
[25]
It is further the applicant’s case that the first and second
respondent’s conduct
by selling the Trust property is not in
the interest of the Trust nor the Trust beneficiaries. The
Trust property was acquired
to secure a safe living environment for
the minor children. The costs of living in the Trust property
are negligible, especially
considering that the applicant pays the
levies each month.
[26]
With reference to the main application, the applicant also makes the
following averments in the
present founding affidavit:
“
58.
… the first respondent contends, in summary, in her affidavit
in the removal application that she is the children’s
mother
and she alone must decide what is and is not in their best interest.
Once more, if I understand her version correctly,
as set out in her
answering affidavit to the removal application, then the first
respondent states that Dimitri does not support
her or the children
and she denies, as stated, the extent of the appellant’s
financial support. Her denial of the applicant’s
financial support is palpably untrue and will be properly dealt
within those proceedings. She however goes further to state
that the applicant cannot force her to stay in the Trust’s
property and says that she and the children no longer want to
reside
there. She contends that the children only has (
sic
)
the Trust to look at for maintenance.”
59. Her
intention is however to sell the Trust property and to use the
proceeds to pay all the maintenance needs of
the children. She
in fact go so far as to state that the fact that she is living above
her means and her income is irrelevant.
She says this after
saying that the removal application in fact revolves around the
children’s maintenance. The first
respondent claims that
she and the second respondent will only use the proceeds of the sale
to pay for expenses of the daughters.
The first respondent
indicated that they (the trustees) intend to pay the proceeds of sale
into a bank account.
60. It
appears that the first respondent has decided that since the children
has almost reached the age of majority,
she will sell the Trust’s
only asset and see to it that the money is used up.
61. The first
and second respondents’ conduct, by selling the Trust property
is not in the interest of the Trust
or trust beneficiaries. The
reasons advanced for the decision simply does not pass muster.
62. …
63. …
64. The first
respondent will not be able to rent a property in a safe
neighbourhood for the amount of the municipal
account, which is what
she is liable to pay towards the current housing. In the result
she will have to rent a property and
she will use the Trust’s
funds to pay the rent. If she could not even pay her pro-rata
portion of the municipal account,
which was the only expense she had
to pay out of her own pocket to stay in the Trust property, she will
most definitely not be
able to pay a pro-rata portion of rental. She
will still be liable to pay a municipal account if she rents, but she
could not even
pay the municipal account for the Trust`s property on
her version.
65. As stated
above, it has also come to my knowledge that the applicant
(sic)
[moved] out of the Pretoria property and receives occupational
rent for the property. She did not disclose this fact to us.
66. The sale
of the property is not in the interest of the beneficiaries and this
issue is fully dealt with in the main
application. Suffice it
to say, the applicant’s interests for instance have not been
considered by the trustees.
They intend to sell the property
and then pay rental, obviously this will be put down as maintenance
obligation for the children
whilst they do not have such an
obligation. The applicant has appropriated trust funds for
herself in the past, as dealt
with in the main application and even
requested the applicant to consent to the registration of a bond over
the Trust’s property
to enable her to buy a car for herself
when she had to sell her Fortuner vehicle due to financial
constraints. The Court
is referred to the allegations in the
main application where this is dealt with in detail.”
[27]
The first respondent first qualified herself as an attorney and she
later decided to qualify
herself as an advocate and she joined the
Pretoria Society of Advocates after she moved to Pretoria. The
applicant points
out that the second respondent is the first
respondent’s attorney and condones her conduct as trustee.
According to
the applicant the second respondent has not been taking
issue with any conduct on her part in her capacity as trustee.
[28]
It is further the applicant’s case that the Deed of Sale does
not comply with the peremptory
requirements of
section 2(1)
of the
Alienation of Land Act, 68 of 1981
.
[29]
Furthermore, with regard to the first respondent’s decision to
sell the Trust property
and the mandate which was given to the estate
agent in this regard, the applicant alleges that the second
respondent informed the
applicant’s attorney that he ratified
the sale after the second respondent became authorised to act on the
Trust’s
behalf on 19 January 2023. According to the
applicant the Deed of Sale is, also on this basis, void.
[30]
According to the applicant the first and second respondents intend to
force the sale and the
registration of passing of ownership are
concerned so that regardless of the first respondent’s possible
removal as a trustee
and/or the appointment of any additional
trustees, such trustees will be faced with a
fait accompli
as
far as the sale of the Trust property is concerned.
[31]
The applicant is consequently seeking an interim interdict with
immediate effect pending the
finalization of the main application
and the first meeting of trustees to be held subsequent thereto.
Opposition of the
application:
[32]
The first, second, fourth, fifth and sixth respondents are opposing
the application (“the
respondents”). On 24 April
2023 a Notice in terms of
Rule 6(5)(d)(iii)
was filed on behalf of
the aforesaid respondents in which it was indicated that the
respondents would raise certain questions of
law in respect of the
relief applied for by the applicant. The relevant questions of
law were set out and dealt with in the
Rule 6(5)(d)(iii)
Notice.
On the same date the respondents also filed an answering affidavit in
opposition to the application. The questions
of law which were
set out in the
Rule 6(5)(d)(iii)
Notice, were also dealt with in the
answering affidavit. It is not clear why the respondents deemed
it necessary to file
both the Notice and an answering affidavit.
Be that as it may, although it may turn out to become an issue in
relation to
unnecessary costs, I will take cognisance of the contents
of both the documents for purposes of the adjudication of this
application.
Urgency:
[33]
In the
Rule 6(5)(d)(iii)
Notice the respondents refer to the
provisions of
Rule 6(12)(b)
and state that in terms of the
last-mentioned Rule, the following aspects should have been addressed
in the applicant’s founding
affidavit, which the applicant,
according to the respondents, failed to do:
1.
the circumstances which the applicant avers render the matter urgent;
and
2.
The reasons why the applicant claims that he cannot be afforded
substantial redress at a hearing in due
course.
[34]
In the said Notice the respondents refer to and rely on the
well-known judgment of
East Rock Trading 7 (Pty) Ltd v Eagle
Valley Granite (Pty) Ltd
2011JDR 1832 (GSJ), para [7]
thereof:
“
[7] It
is important to note that the rules require absence of substantial
redress. This is not equivalent to the
irreparable harm that is
required before the granting of an interim relief. It is something
less. He may still obtain redress in
an application in due course but
it may not be substantial. Whether an applicant will not be able
obtain substantial redress in
an application in due course will be
determined by the facts of each case. An applicant must make out his
cases in that regard.”
[35]
As stated earlier, it is the applicant’s case that selling the
Trust property is neither
in the interest of the Trust nor the Trust
beneficiaries. The applicant pertinently states that the Trust
property should
consequently not be sold before the main application
is finalised, otherwise, should the main application ultimately be
successful,
“
any additional trustees will be faced with a
fait accompli”.
[36]
The applicant further explained the existence of the real risk of the
Trust property being sold
and registered in the name of the FC Fin
Trust prior to the finalisation of the main application if the matter
is not to be dealt
with on an urgent basis. In this regard it was
stated that the second respondent informed the applicant’s
attorney on 29
March 2023 that the purchase price of the Trust
property has been paid into trust and that they were only awaiting
clearance certificates,
where after they would be lodging the
necessary documents with the Registrar of Deeds for registration of
the transfer of ownership.
[37]
Mr Grobler, who appeared on behalf of the respondents, dealt in his
argument with the dates of
the correspondence and other
communications between the applicant’s attorney and the second
respondent, based upon which
he submitted that in so far as it may be
found that urgency is present, such urgency was self-created and can
therefore not be
relied upon by the applicant. In this regard Mr
Grobler relied on the well-known judgment of
Schweizer-Reneke
Vleis Mkpy (Edms) Bpk v Minister van Landbou
1971 (1) PH F11
(T).
[38]
Mr Snellenburg, however, who appeared on behalf of the applicant,
referred to the following
dictum
in the
East Rock
Trading
-judgment,
supra,
at para [8]:
“
[8] In
my view the delay in instituting proceedings is not, on its own a
ground, for refusing to regard the matter
as urgent. A court is
obliged to consider the circumstances of the case and the explanation
given. The important issue is whether,
despite the delay, the
applicant can or cannot be afforded substantial redress at a hearing
in due course. A delay might be an
indication that the matter is not
as urgent as the applicant would want the Court to believe. On the
other hand, a delay may have
been caused by the fact that the
Applicant was attempting to settle the matter or collect more facts
with regard thereto.”
Mr
Snellenburg referred to the explanations pertaining to the delay as
set out in the founding affidavit and submitted that the
applicant
could not have launched the application without first having obtained
a copy of the Deed of Sale, in order to ascertain
the identity of the
proposed buyer. Despite an earlier request thereto, the second
respondent only provided the applicant’s
attorney of record
with a copy thereof on 22 March 2023. Thereafter, on 29 March
2023, as stated earlier, the second respondent
advised the
applicant’s attorney that they were only awaiting clearance
certificates where after the necessary documents
would be submitted
with the Registrar of Deeds for registration of the passing of
ownership.
[39]
Mr Snellenburg further submitted that the delay between 29 March 2023
and 18 April 2023, when
the application was issued, has also been
duly explained in the founding affidavit.
[40]
I agree with Mr Snellenburg’s contentions. In my view,
the delays were reasonable
in the circumstances and considering the
explanations advanced by the applicant.
[41]
The fact remains that the applicant will not be afforded substantial
redress at a hearing in
due course should the application not be
dealt with on an urgent basis. It is clear that on 29 March 2023 the
registration of the
transfer of the Trust property was imminent,
which necessitated the drafting of the application on an urgent basis
and approaching
Court accordingly. In this regard it is trite law
that in terms of the abstract system of passing of ownership, even if
it is ultimately
found in the main application that the obligatory
agreement (the Deed of Sale) is void, the real agreement (the
transfer of ownership)
will, in the absence of any defect thereto,
remain valid. Therefore, if transfer of ownership is to be validly
registered prior
to the finalisation of the main application, the
applicant will not be able to have same be invalidated and will
therefore not
be afforded substantial redress in due course.
[42]
The applicant has therefore, in my view, made out a proper case for
urgency and the necessary
condonation is subsequently to be granted
toe the applicant.
Locus standi:
[43]
It is being alleged in the founding affidavit that the applicant is
the founder and an income-
and capital beneficiary of the Trust.
In paragraph 18 of the founding affidavit, it is pertinently averred
that “
the applicant makes this application in his capacity
as income and capital beneficiary of the Trust
”.
[44]
In the respondents’
Rule 6(5)(d)(iii)
Notice they state that on
a proper interpretation and analysis of the Trust Deed, it is evident
that the applicant is not an income
beneficiary or a capital
beneficiary of the Trust. He is only the founder of the Trust.
The respondents therefore contend
that the applicant is non-suited
since he has no direct or indirect interest in the Trust’s sole
asset, being the Trust property.
[45]
In his argument Mr Grobler firstly referred to the preamble of the
Trust Deed in which the following
is stated:
“
Whereas
the founder wishes to create a Trust by way of a donation to the
Trustees, with the purpose of establishing a Trust Fund
for the
benefit of the income and capital beneficiaries. …”
He
submitted that considering the legal nature of a “
donation
”,
a donor is not entitled to receive any benefit in exchange for the
donation. Mr Grobler submitted that one can therefore
not be a
donor/founder and a beneficiary.
[46]
I cannot agree with the aforesaid contention of Mr Grobler. In
Trust Law and Practice,
Dr PA Olivier
et al,
updated April 2023 – SI 8, chapter 2, the following is stated
at para 2.2.1:
“
A
trust is created through an action of the founder (also known as the
donor) who has the express intention of creating a trust.
Obviously, the founder’s intention to create a trust relates to
property which is awarded or conveyed to a trustee in order
for him
to hold and administer it for the benefit of beneficiaries.”
Furthermore,
chapter 5,
supra,
at
para 5.5.3.6.4:
“
Before
a valid trust can be established, the trust assets must be legally
removed from the control of the previous owner.
Although the
previous owner of the estate may still exercise a measure of control
over the assets as co-trustee, care must be taken
to ensure that the
control exercised in terms of the office of trustee is primarily
focused on the best interests of the beneficiaries.
Because the
law separates the trustee in his official capacity from the
individual holding the office, in his private capacity
he can be both
the founder and a beneficiary.”
[47]
The respondents are, secondly, relying on the provisions of clause 23
of the Trust Deed for purposes
of their aforesaid contention, which
provisions they aver are decisive and compelling:
“
23.
LIMITATIONS RELATING TO THE
FOUNDER.
Notwithstanding
anything to the contrary herein expressed or implied, no discretion
or power conferred upon the trustees or any
other person by this
Trust Deed, shall be so exercised and nothing in this Trust Deed
shall have the effect so as to cause or permit
that any part of the
capital and/or assets and/or liabilities and/or income and/or
expenses of the Trust to be or become payable
to or applicable
directly or indirectly for the benefit or disadvantage of
the
founder
or his estate.” (My
emphasis).
[48]
Both Mr Snellenburg and Mr Grobler referred to the judgment of
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4)
SA 593
(SCA), in which judgment the approach to interpretation was
authoritatively stated at para [18] to be the following:
“
[18]
…
The present
state of the law can be expressed as follows: Interpretation is the
process of attributing meaning to the words used
in a document, be it
legislation, some other statutory instrument, or contract, having
regard to the context provided by reading
the particular provision or
provisions
in
the light of the document as a whole and the circumstances attendant
upon its coming into existence.
Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary rules of grammar
and
syntax; the context in which the provision appears;
the
apparent purpose to which it is directed and the material known to
those responsible for its production
.
Where more than one meaning is possible each possibility must be
weighed in the light of all these factors. The process is objective,
not subjective.
A
sensible meaning is to be preferred to one that leads to
insensible or unbusinesslike results or undermines the apparent
purpose of the document
.
Judges must be alert to, and guard against, the temptation to
substitute what they regard as reasonable, sensible or businesslike
for the words actually used. To do so in regard to a statute or
statutory instrument is to cross the divide between
interpretation
and legislation; in a contractual context it is to
make a contract for the parties other than the one they in fact made.
The
'inevitable point of departure is the language of the provision
itself', read in context and having regard to the purpose of
the
provision and the background to the preparation and production of the
document.
”
(My emphasis)
[49]
Mr Snellenburg pointed out that the applicant was at three different
instances specifically identified
and nominated in the Trust Deed as
one of the income- and/or capital beneficiaries, namely:
1.
In the preamble of the Trust Deed, p. 2
thereof, at paragraph III; and
2.
In the Trust Deed itself, p. 4 thereof, at
paragraph (a); and
3.
In the Trust Deed itself, p. 4 thereof, at
paragraph (b).
[50]
Mr Snellenburg submitted that if the founder of the Trust (the
applicant) had not been expressly
identified and nominated as a
beneficiary in the Trust Deed, then clause 23 of the Trust Deed would
protect the beneficiaries against
the founder operating the Trust or
manipulating the administration of the Trust in any manner that would
benefit him personally
instead of the beneficiaries. Where, however,
the Trust Deed specifically identifies and nominates the founder as
both an income
and capital beneficiary, the only businesslike and
sensible interpretation of the Trust Deed is that the applicant is
indeed an
income- and capital beneficiary and should benefit as such.
Clause 23 does therefore not apply in the present circumstances.
[51]
When clause 23 of the Trust Deed is considered in the context of the
totality of the said Deed,
and a businesslike approach pertaining to
the interpretation of the contents thereof is followed, I have to
agree with the interpretation
thereof as submitted by Mr Snellenburg.
To interpret clause 23 differently would be nonsensical since it
would result in the relevant
clauses being directly contradictory, in
the sense that the founder, on the one hand, be expressly identified
and nominated as
beneficiary, but thereafter be excluded from
receiving any benefit from the Trust.
[52]
In addition, the aforesaid interpretation is supported by the
available evidence pertaining to
the surrounding circumstances which
led to the formation of the Trust. In this regard the evidence
of the founder of the
Trust, being the applicant, is clear that it
was the intention that he be appointed as an income- and capital
beneficiary, as indeed
stated and recorded in the Trust Deed. In this
regard I find it very significant that in the main application the
respondents are
not disputing the applicant’s allegation that
he is an income- and capital beneficiary, and, consequently, his
locus standi
. In this regard the following allegations and
responses thereto are evident from the papers filed in the main
application:
1.
In paragraph 2 of the founding affidavit the following
allegations are made:
“
2.1.2
The applicant is the founder and an income and capital
beneficiary of the Olive Tree Trust …
2.1.3 The
applicant is also cited herein as the fifth respondent, as he is also
a beneficiary of the abovementioned
Trust.”
In response to the
aforesaid allegations, the respondents state as follows in paragraph
5.5 of the answering affidavit:
“
5.5
I admit the allegations herein contained, insofar as it accords with
the content of the Deed of Trust….”
2.
In paragraph 10.1 of the founding affidavit the following allegations
are made:
“
10.1
The founder of the Trust is my husband in my second marriage.
He is also an interest and capital beneficiary
in the said Olive Tree
Trust …”
The response to the
aforesaid allegations is contained in paragraph 5.17 of the answering
affidavit, which (unconditionally) reads
as follows:
“
5.17
I admit the allegations herein contained.”
[53]
Consequently, based on the information contained in the present
application, read with the contents
of the main application, I find
that the applicant is an income- and capital beneficiary in terms of
the Trust Deed and that he
consequently has
locus standi
for
purposes of the present application.
THE MERITS OF THE
APPLICATION:
The requirements
for an interim interdict:
[54]
The applicant is seeking an interim interdict pending the
finalisation of the main application
and, more particularly, pending
the finalisation of
the resolution taken with
regards to the sale of the aforesaid immovable property at the first
meeting of trustees to be held after
finalization of the main
application.
[55]
The requirements for an interim interdict are trite:
“
(a)
A
prima facie
right;
(b)
A well-grounded apprehension of irreparable harm if the interim
relief is not granted and the ultimate relief
is eventually granted;
(c)
That the balance of convenience favours the granting of an interim
interdict; and
(d)
That the applicant has no other satisfactory remedy.”
See
LAWSA
,
Vol. 11, 2
nd
Edition, at para 403.
Prima
facie
right even though
open to some doubt:
[56]
The first requirement for an interim interdict is a prima facie
right, namely prima facie proof
of facts that establish the existence
of a right in terms of substantive law. In
National
Gambling
Board
v
Premier
of
KwaZulu-Natal
[2001] ZACC 8
;
2002 (2) BCLR 156
(CC) at para
[41]
it was confirmed that an
applicant for an interim interdict must show a
prima facie
right to the main relief pending which the interim interdict is
sought. The test for such a
prima facie
right was set
out in
Simon N.O. v Air Operations of Europe AB
[1998] ZASCA 79
;
1999
(1) SA 217
(SCA) at 228G – H to be the following:
“
Insofar
as the appellant also sought an interim interdict
pendente
lite
it was incumbent upon him to
establish, as one of the requirements for the relief sought, a
prima
facie
right, even though open to some
doubt (
Webster v Mitchell
1948 (1) SA 1186
(W)
at 1189). The accepted test for a
prima
facie
right in the context of an
interim interdict is to take the facts averred by the applicant,
together with such facts set out by
the respondent that are not or
cannot be disputed and to consider whether, having regard to the
inherent probabilities, the applicant
should on those facts obtain
final relief at the trial. The facts set up in contradiction by the
respondent should then be considered
and, if serious doubt is thrown
upon the case of the applicant, he cannot succeed. (
Gool
v Minister of Justice and Another
1955
(2) SA 682
(C)
at 688B-F and the
numerous cases that have followed it.)”
See
also
Spur Steak Ranches Ltd v Saddles
Steak Ranch, Claremont
1996 (3) SA
706
(CPD) at 714G – H.
[57]
The nature of a trust is described as follows in
Griessel N.O.
v De Kock
2019 (5) SA 396
(SCA) at para [11]:
“
[11]
It is trite that a trust is not a legal person. An inter vivos trust
is governed by the terms of a trust deed as well as the
provisions of
the Trust Property Control Act 57 of 1988. In its strictly technical
sense, a trust is a legal institution
sui
generis. In
Lupacchini v
Minister of Safety and Security
Nugent
JA observed:
'A
trust that is established by a trust deed is not a legal person —
it is a legal relationship of a special kind that is
described by the
authors of
Honoré's South African Law of Trusts
as
a legal institution in which a person, the trustee, subject to
public supervision, holds or administers property separately
from his
or her own, for the benefit of another person or persons or for the
furtherance of a charitable or other purpose . . .'”
[58]
It is trite that it is the duty of a trustee(s) to administer a trust
for the benefit of the
beneficiaries. In
Trust Law and
Practice
,
supra,
at para 3.4.2 this principle is
stated in the following terms:
“
The
object of the powers given to a trustee is to enable him to do
justice to the fiduciary duties which attach to his office. It
is
self-evident that there is a duty to exercise all powers in such a
manner that the beneficiaries reap the benefits. Although
the
trustee’s duties can be listed under a number of headings, the
dominant consideration inherent in all the duties is the
benefit of
the beneficiaries.”
[59]
Also in the preamble of the Trust Deed it is specifically stipulated
that the Trust Fund is for
the benefit of the income- and capital
beneficiaries:
“
Whereas
the Founder wishes to create a Trust by way of a donation to the
Trustees, with the purpose of establishing a Trust Fund
for the
benefit of the income- and capital beneficiaries (herein later
jointly referred to as the ‘beneficiaries’)
…”
[60]
The Trust Deed furthermore contains the following provisions in this
regard:
“
9.
POWERS OF THE TRUSTEES:
9.1 The
powers of the Trustees defined in this Trust document, are
ex
officio
powers relating to that of the office of Trustees, to
enable them to administer the Trust Fund,
on behalf of the
beneficiaries, and not for the personal benefit of the Trustees
.
The extent of the powers vested in the Trustees, must always be
interpreted so that
the main objective of the Trust is, namely, to
benefit the beneficiaries, and not to do harm
.” (My
emphasis)
“
13.
DUTIES OF TRUSTEES:
Apart
from the common law duties which attach to the office of Trustee, the
Trustees shall be subject to all the duties of a Trustee
as
enunciated in the Trust Property Control Act No. 57 of 1988, namely
to:
13.1
…
…
13.7
To not dispose of any assets of the Trust, for their own benefit
or for the benefit of their estates
, and to continuously act in a
prudent and diligent manner as can be reasonably expected from a
person who is in charge of the affairs
of another person.” (My
emphasis)
[61]
I am not called upon at this stage to make definitive findings with
regard to the conduct of
the first and second trustees in their
administration of the Trust and whether they, especially the first
respondent, is exercising
her
fiduciary duty
owed to all the beneficiaries, in a proper manner and to the benefit
of the beneficiaries. However, when applying
the test
pertaining to a
prima facie
right
in the context of an interim interdict, as enunciated in
Simon
N.O. v Air Operations of Europe AB
,
supra,
I am
satisfied that in view of the totality of the factual allegations
made by the applicant, considered with the factual allegations
as set
up by the respondents, having regard to the inherent probabilities,
the applicant should on those facts obtain final relief
at the trial.
When I then consider the facts set up in contradiction by the
respondents, there is, in my view, no serious doubt
thrown upon the
case of the applicant. In fact, there are a number of crucial issues
which seriously begs the question whether
the first and second
respondents, and especially the first respondent, are complying with
their fiduciary duty owed to all the
beneficiaries, or whether the
first respondent is using and/or is attempting to use the Trust/Trust
funds/Trust property as a “maintenance-provider”
for the
two minor children for the payment of all their expenses. Although
the respondents correctly pointed out in the answering
affidavit that
the Trust Deed,
inter alia,
determines that the Trustees are
empowered to pay such amounts to any beneficiary as the Trustees may
deem reasonable and desirable
for maintenance, the first and second
respondents still have the duty
to
exercise this power for the benefit of all the beneficiaries. Even if
only the interest of the two minor children is considered,
it can
hardly be to their benefit if the Trust property is to be sold in
order for the proceeds thereof (then Trust funds) to be
used to pay
expenses which are in actual fact part of the maintenance obligation
of the first respondent in her personal capacity
towards the two
minor children. It is not necessary for me to determine at this stage
of the proceedings what the interest income
would be on the proposed
investment of the proceeds of the sale, since that will be fully
dealt with during the hearing of the
main application. However, if
such interest is utilized to make payments which are in actual fact
part of the first respondent`s
maintenance obligation (in her
personal capacity), it will probably result in the necessity to also
utilize the capital to the
point that it will become, to the
detriment of the Trust beneficiaries, completely depleted.
[62]
In addition to the aforesaid there are a number of allegations made
by the applicant in respect
of the first respondent`s failure in the
past to have properly complied with the provisions of the Trust Deed
and/or with her fiduciary
duties as a Trustee. One of these alleged
transgressions is the fact that the applicant was the only trustee
for a period of approximately
2 years and two months, which is in
direct contravention of clauses 5.2 and 5.3 of the Trust Deed.
Although the first respondent
responded to those allegations (or to
most of them), the responses did not, in my view, cast serious doubt
on the applicant`s case
in this regard.
[63]
The proposed selling of the Trust property forms part and parcel of
the merits of the issue whether
the first respondent is to be removed
as trustee and/or that further trustees be appointed. The Court
hearing the main application
will have to determine whether the
proposed sale is in the interest of the Trust beneficiaries and if
not, whether the Court can
interfere with the exercise of the
Trustees’ discretion in this regard.
[64]
In addition to the aforesaid basis of seeking an order that the
proposed sale of the Trust property
be set aside, the applicant is
also relying on two additional grounds. In terms of the Amended
Notice of Motion the applicant is
also seeking an order in the
following terms:
“
7.
Declaring invalid and of no force and effect due to her
lack of authority as a trustee of the Olive Tree Trust the
decision
of the sixth respondent to appoint Remax to list the Olive Tree
Trust`s immovable property for sale and the appointment
of Remax
pursuant to the aforesaid decision as well as all steps consequently
taken as a result of the aforesaid decision and appointment.”
The
request for the aforesaid relief is based on the fact that the first
respondent was, at the time, the only trustee of the Trust
in direct
contravention of clause 5.3 of the Trust Deed and that she
consequently could not have validly bound the Trust by means
of the
said decision. The applicant further alleges that the second
respondent informed the applicant’s attorney that he
ratified
the sale after the second respondent became authorised to act on the
Trust’s behalf on 19 January 2023. According
to the
applicant the Deed of Sale is, also on this basis, void.
[65]
As indicated earlier in the judgment, the applicant also intends
seeking an order “
Declaring
the agreement, styled Offer to Purchase – Sectional Title,
dated 1 April 2023, with regards to the trust’s
property …
void, alternatively [that it] be set aside”
.
(The date appears to be an error, since the Deed of Sale is dated 1
March 2023, but that is neither here nor there.) In this regard
it is
the applicant’s case that the Deed of Sale does not comply with
the peremptory requirements of
section 2(1)
of the
Alienation of Land
Act, 68 of 1981
.
[66]
The relevant provisions of the Trust Deed with regard to the required
number of trustees and
their decision-making processes, are the
following:
“
5.2
There shall be at least TWO (2) but preferably THREE (3) and at most
SIX (6) trustees in office, with the understanding
that in case only
TWO trustees remain as a result of the resignation of or death of
co-trustees, the remaining Trustees will be
authorized to exercise
sole powers as Trustees for the maintenance and administration of the
Trust, until such time as a further
Trustee is appointed.
5.3 Should
there be only ONE trustee in office, such Trustee is obliged to
appoint further Trustees within 90 (NINETY)
days of the
retirement/resignation or death of the co-trustees. While there
is only one Trustee in office, such Trustee will,
whilst he/she acts
alone, not be entitled to pass a valid resolution, regarding the
distribution of income, capital or amendment
of the Trust Deed.”
“
8.2
Resolutions made by the Trustees, occur:
8.2.1 Where there are
more than two Trustees, by way of an ordinary majority of votes;
8.2.2 Where there are
only two Trustees, by way of a unanimous decision from both of them.”
[67]
It is by now trite that
where there is more
than one trustee they must act jointly, unless the trust instrument
provides otherwise. See
Lupacchini
NO and Another v Minister of Safety and Security
2010 (6) SA 457
(SCA) at para [2].
[68]
In
Land and Agricultural Bank of South Africa v Parker and
Others
2005 (2) SA 77
(SCA) at para [15] the aforesaid
principle was confirmed as follows:
“
[15]
… It is a fundamental rule of trust law, which this Court
recently restated in Nieuwoudt and Another NNO v Vrystaat
Mielies
(Edms) Bpk, that in the absence of a contrary provision in the trust
deed the trustees must act jointly if the trust estate
is to be bound
by their acts. The rule derives from the nature of the trustees'
joint ownership of the trust property. Since co-owners
must act
jointly, trustees must also act jointly. Professor Tony Honoré's
authoritative historical exposition has shown
that the joint action
requirement was already being enforced as early as 1848. It has thus
formed the basis of trust law in this
country for well over a century
and half.”
[69]
When the applicant`s attorney received the Deed of Sale from the
second respondent via e-mail
on 22 March 2022 as indicated earlier in
the judgment, it was evident that only the second respondent in his
capacity as trustee
of the Trust signed the Deed of Sale on behalf of
the Trust. No resolution was attached to it. The applicant points out
in the
founding affidavit that although the answering affidavit filed
in the main application was deposed to on 9 March 2023 and although
the first respondent, as confirmed by the second respondent, states
therein that the trustees concluded the Deed of Sale, relying
on the
fact that they as trustees are authorised by the Trust Deed to sell
the property, the first and second respondents failed
to attach a
copy of the Trust Deed to the said answering affidavit. No mention
was made by any resolution in this regard either.
It was only after
the applicant attached a copy of the Deed of Sale, as received from
the second respondent, to the founding affidavit
in the present
application, relying on the allegation that the Deed of Sale does not
comply with the peremptory requirements of
section 2(1)
of the
Alienation of Land Act, that
the first respondent attached a
resolution accompanied by the Deed of Sale to the answering affidavit
filed in the present application.
In this regard the applicant states
as follows in the replying affidavit:
“
41.
There is now a resolution, purportedly taken on 1 March 2023 for the
sale. That is something different from ratifying
the decision to
sell.”
[70]
Section 2(1)
of the
Alienation of Land Act determines
as follows:
“
No
alienation of land after the commencement of this section shall,
subject to the provisions of
section 28
, be of any force or effect
unless it is contained in a deed of alienation signed by the parties
thereto or by their agents acting
on their written authority.”
[71]
The aforesaid resolution, on face value thereof dated 1 March 2023,
and signed by both the first
and second respondents in their capacity
as trustees of the Trust, reads as follows:
“
RESOLUTION:
IT IS RECORDED THAT
1.
C[…] and I[…] T[…] whom reside at Unit 1[…],
SS L[…] (the ‘Trust
Property’) as beneficiaries of
the Trust together with their mother, D[…] T[…],
desires alternative accommodation/residence
closer to their school.
2.
The children’s needs have changed, and will in future require
financial assistance from the Trust
such as
inter alia
the
provision of tertiary education etc.
3.
The Property does not produce income and only provides for a benefit
to the beneficiaries who reside
there.
4.
The question arose whether such investment contributes to a long term
benefit of all the beneficiaries.
5.
The trustees have certain options to generate income in respect of
the Trust Property and compared the
letting out of the Trust Property
as opposed to liquidating the asset and investing the proceeds from
the sale in an interest earning
fixed investment.
6.
The trustees are of the opinion that an interest earning fixed
investment would outperform the nett income
achievable from letting
of the Trust Property especially taking into account that the levies
and rates and taxes alone amount to
approximately R5 000.00 per
month in respect of the Trust Property.
7.
The trustees further considered the risk associated with the returns
on a fixed investment which guarantees
income upon maturity, as
opposed to non-payment of rental and the costs and time eviction
proceedings may entail.
8.
Had the Trust owned more than one property, the risk associated with
non-payment of rental and eviction
proceedings could be hedged with
other rental income. This is however not the case.
IT IS RESOLVED THAT:
1.
The Trust sells the following property owned by the Trust:
A
unit consisting of
(a)
Section No. 1[…] … L[…] …
(b)
An undivided share in the common property in the scheme apportioned
to the said section in accordance
with the participation quota as
endorsed on the said sectional plan.
HELD
BY Deed of Transfer Number ST1[…]
to
FC FIN Trust, Registration Number IT3[…]
on
similar terms and conditions therein as stated in Annexure “A”
hereto which is initialled for identification purposes.
2.
That the nett proceeds from the sale of the property be invested in
an interest earning fixed investment,
the interest received to be for
the benefit of all beneficiaries of the Trust.
AND THAT
3.
Sarel Louis Augustyn, identity number 73[…] in his capacity as
trustee of the Trust be and is
hereby authorized in his sole and
absolute discretion to give effect to the aforesaid resolutions.”
[72] I
have to point out that I noticed that the two Deeds of Sale, one
attached to the founding affidavit and
one attached to the answering
affidavit, differ, without any explanation provided by the first and
second respondents, despite
the fact that both the copies originate
from them. The Deed of Sale attached to the founding affidavit,
contains two initials next
to every amendment and was indeed signed
by the second respondent. However, the one which the first and second
respondents are
relying upon, attached to the answering affidavit,
together with the resolution, has not been signed by the second
respondent and
also only contains one initial. This is despite the
fact that the resolution refers to “
Annexure “A”
hereto which is initialled for identification purposes.
”
[73]
Like I have already indicated, I am only to determine at this stage
whether the applicant has
shown a
prima facie
right even open
to some doubt pertaining to the relief sought in the main
application, in this regard more specifically with regard
to the
validity of the first respondent`s decision to sell the property and
to appoint Remax as the estate agent for purposes thereof
and alleged
invalidity of the Deed of Sale. These are mostly a legal questions
and not factual ones as is the situation with regard
to the relief
pertaining to the removal of the first respondent as trustee and/or
the appointment of further trustees. Since the
Court hearing the main
application is still to finally adjudicate upon these legal issues, I
am weary to detail the reasons for
my conclusion in this regard. It
will be improper for the Court adjudicating the main application to
be bound by my reasoning pertaining
to the legal questions.
[74]
I have, however, duly considered the aforesaid legal issues. In my
consideration I considered
the case law pertaining the authority of
trustees already referred to above. In addition, I also considered
the following case
law and article:
1.
Northview Shopping Centre (Pty) Ltd v
Revelas Properties Johannesburg CC
2010
(3) SA 630
(SCA)
2.
Van Der Merwe NO v Hydraberg
Hydraulics CC
2010 (5) SA 555
(WCC)
3.
Thorpe v Trittenwein
2007
(2) SA 172
(SCA)
4.
Section 2(1)
of the
Alienation of
Land Act, Trusts
, Trustees and Agency
(Thorpe
v Trittenwein [2006] SCA 30 (RSA), DJ Lötz
et
CJ Nagel, 2006 (69) THRHR, at p. 698 -
704
[75] In
my view the applicant has made out a proper case with regard to the
requirement of showing a
prima facie
right (even though open
to some doubt) to the main relief pertaining to the selling of the
property.
Further
requirements for an interim interdict
:
[76]
With regard to the further requirements for an interim interdict,
namely a well-grounded apprehension of
irreparable harm if the
interim relief is not granted and the ultimate relief is eventually
granted, that the balance of convenience
favours the granting of an
interim interdict and that the applicant has no other satisfactory
remedy, I am satisfied that the applicant
has also made out a proper
case in respect of all three requirements.
[77] If
the property is not to be preserved pending the finalization of the
main application and the applicant
is to be successful with the main
application in one or more respects, he will clearly suffer
irreparable harm. Therefore, the
balance of convenience also favours
the applicant.
[78]
The applicant clearly has no other satisfactory remedy.
Costs:
[79]
In my view the appropriate order is that the costs of the application
are to stand over for determination
by the Court who is to hear the
main application.
Order:
[80]
The following order is made:
1.
The
applicant`s non-compliance with the Court Rules pertaining to form,
service and time periods are condoned and the application
is enrolled
and heard as an urgent application in terms of the provisions of Rule
6(12).
2.
A rule
nisi
is issued,
calling upon the respondents to show cause, if any, on 27 July 2023
at 9h30, or as soon thereafter as the applicant`s
legal
representatives may be heard, why the following orders should not be
made final:
2.1
Interdicting and restraining the first and second respondents from
passing transfer of the immovable property, better
known as Unit
1[…], L[…] Section Title, Sectional Title Scheme
number: 1[…] (situated at Wapadrand Extension
1 2[…]),
Diagram Deed Number: 19[…], 8[…] K[…] Crescent,
Wapadrand, Tshwane, Gauteng Province [Pretoria
Deed’s Office]
to the FC Fin Trust, alternatively in the name of the trustee(s) for
the time being of the FC Fin Trust or
any other nominated purchaser
pursuant to the Agreement of Sale, Sectional Title, dated 1 March
2023, pending the finalization
of the main application issued in this
Court under case number: 201/2023 and the resolution taken with
regards to the sale
of the aforesaid immovable property at the first
meeting of trustees to be held after finalization of the aforesaid
main application.
2.2
Interdicting and restraining the first and second respondents from
entering into a purchase agreement to sell the
immovable property,
better known as Unit 1[…], L[…] Section Title,
Sectional Title Scheme number: 1[…]
(situated at
Wapadrand Extension 1 2[…]), Diagram Deed Number: 19[…],
8[…] K[…] Crescent, Wapadrand,
Tshwane, Gauteng
Province [Pretoria Deed’s Office] and passing transfer thereof
to the FC Fin Trust or any other purchaser
pending the finalization
of the main application issued in this Court under case number:
201/2023 and the resolution taken
with regards to the sale of the
aforesaid immovable property at the first meeting of trustees to be
held after finalization of
the aforesaid main application.
2.3
Interdicting and restraining the ninth respondent from registering
the transfer of the immovable property, better
known as Unit 1[…],
L[…] Section Title, Sectional Title Scheme number: 1[…]
(situated at Wapadrand Extension
1 2[…]), Diagram Deed Number:
19[…], 8[…] K[…] Crescent, Wapadrand, Tshwane,
Gauteng Province [Pretoria
Deed’s Office] in the name of the
trustee(s) for the time being of the FC Fin Trust, alternatively in
the name of the FC
Fin Trust or any other purchaser pending the
finalization of the main application issued in this Court under case
number:
201/2023 and the resolution taken with regards to the
sale of the aforesaid immovable property at the first meeting of
trustees
to be held after finalization of the aforesaid main
application.
2.4
That the costs
of the application stand over for determination by the Court hearing
the main application.
3.
Paragraphs
2.1, 2.2 and 2.3 above are to operate as interim interdicts with
immediate effect pending the finalization of this application.
4.
A copy of this
order is to be served forthwith by the applicant on the respondents
by means of email.
C.
VAN ZYL, J
On
behalf of the applicant:
Adv
N. Snellenburg SC
Instructed
by
:
Bezuidenhouts
Inc/Ref Mrs D Milton
BLOEMFONTEIN
On
behalf of the 1
st
, 2
nd
, 4
th
, 5
th
and
6
th
respondents:
Adv
S. Grobler SC
Instructed
by:
Phatshoane
Henney Inc/Ref I Strydom
BLOEMFONTEIN