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[2010] ZASCA 163
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Ras NO and Others v Van der Meulen and Another (635/09) [2010] ZASCA 163; 2011 (4) SA 17 (SCA) (1 December 2010)
Links to summary
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 635/09
In
the matter between:
MARGARETHA ALETTA RAS NO
.........................................................
First
Appellant
MARGARETHA ALETTA VISSER (BORN RAS)
NO
.......................
Second
Appellant
PIETER VISSER NO
..............................................................................
Third
Appellant
v
NICOLINE VAN DER MEULEN
..........................................................
First
Respondent
MASTER OF THE HIGH COURT, PRETORIA
.............................
Second
Respondent
Neutral citation:
Ras v Van
der Meulen
(635/2009)
[2010] ZASCA 163
(1 December 2010).
Coram:
Lewis, Shongwe and Leach
JJA, Ebrahim and K Pillay AJJA
Heard:
9 November 2010
Delivered: 1 December 2010
Summary: Trust – first
respondent not entitled to seek removal of trustees unless a
beneficiary – issue whether she
is a beneficiary not decided by
high court – matter remitted to high court to determine the
issue.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
North Gauteng
High Court, Pretoria (Ledwaba J sitting as court of first instance).
The following order is made:
The applicants are granted leave to
appeal to this court.
The appeal is upheld to the extent
that the order made by the court a quo on 14 January 2009 is set
aside and replaced with the
following:
‘
(a) The
application is referred for the hearing of oral evidence on a date to
be arranged with the Registrar, on the questions whether
or not the
applicant, Nicoline Van Der Meulen, is a beneficiary of the
Bokfontein Trust or whether she has been validly removed
as a
beneficiary of such trust.
(b) The evidence shall be that of any
witness whom the parties or either of them may elect to call,
subject, however to what is
provided in para (c) hereof;
(c) Save for witnesses whose evidence
is already on affidavit in this application, neither party shall be
entitled to call any witness
unless:
(i) It has served on the other party
at least 15 (fifteen) days before the date appointed for the hearing
(in the case of a witness
to be called by the applicant), and at
least 10 days before such date (in the case of a witness to be called
by the respondent),
a statement wherein the evidence to be given in
chief by such person is set out; or
(ii) The court, at the hearing,
permits such person to be called despite the fact that no such
statement has been so served in respect
of his evidence;
(d) Either party may subpoena any
person to give evidence at the hearing whether such person has
consented to furnish a statement
or not;
(e) The fact that a party has served a
statement in terms of (c) above, or has subpoenaed a witness, shall
not oblige such party
to call the witness concerned;
(f) Within 30 (thirty) days from the
date of this order, each of the parties shall make discovery on oath
of all documents relating
to the issues referred to in para (a)
hereof, which are or have at any time been in the possession or under
the control of such
party. Such discovery shall be made in accordance
with Rules of Court 35(1) and 35(8) and the provisions of Rule 35
with regard
to the inspection and production of documents discovered
shall be operative;
(g) The incidence of costs incurred up
to date shall be determined after the hearing of oral evidence.’
3. The costs occasioned by the
application for leave to appeal and the appeal shall be costs in the
cause.
________________________________________________________________
JUDGMENT
________________________________________________________________
LEACH JA (Lewis and Shongwe JJA,
Ebrahim and K Pillay AJJA concurring):
[1] This is an application under s 21
of the Supreme Court Act 59 of 1959 which was set down for argument
in this court. The applicants
seek leave to appeal against a judgment
of the North Gauteng High Court, holding that the first respondent
has sufficient interest
in the subject of the proceedings to entitle
her to seek relief, the high court having refused leave to appeal.
[2] The applicants proceed in their
capacities as trustees of the ‘Bokfontein Trust’ (‘the
trust’). Established
inter vivos by the first respondent’s
late father, its principal asset is the farm Bokfontein in the
district of Brits. The
applicants are, respectively, the first
respondent’s mother (the first applicant), her sister (the
second applicant) and
her sister’s husband (the third
applicant). The Master, who is cited as second respondent, has played
no part in these proceedings
and for convenience I intend to refer to
the first respondent as ‘the respondent’ and to the
applicants, who were the
respondents in the court a quo, as ‘the
trustees’.
[3] In October 2008, the respondent
launched motion proceedings in the high court in which she alleged
that she was a capital beneficiary
of the trust and applied for an
order removing the trustees, contending they had acted in bad faith
in the performance of their
duties She also sought an order obliging
the Master to carry out an investigation into the trustees’
administration of the
trust under s 16 of the Trust Property Control
Act 57 of 1988 (the Act) and to report the findings of such
investigation both to
her and the court.
[4] The trustees opposed this relief,
denying any improper conduct on their part. For present purposes it
is unnecessary to detail
the merits of the dispute in regard to their
alleged mal-administration of the trust. Importantly, the trustees
specifically denied
that the respondent was a trust beneficiary and
contended that she was thus not entitled to seek the relief she did.
In regard
to this issue they relied upon a trustees’ resolution
adopted on 25 March 1999 which purported to amend the terms of the
trust deed by removing the respondent as a capital beneficiary.
[5] For completeness I should also
mention that, on 24 December 2004, the trust’s founder and the
trustees passed another
resolution in which they again purported to
vary the trust deed, this time by adding the name of the second
applicant (the respondent’s
sister) as a beneficiary
after
the name of the first respondent. The trustees have attempted to
explain this by stating that all concerned had forgotten about
the
March 1999 resolution. Furthermore, on 4 November 2008, after the
institution of proceedings in the court below, the trustees
passed
another resolution in which they purported to withdraw the amendment
of December 2004. This was clearly an ex post facto
attempt to ensure
that there was no resolution inconsistent with that of 25 March 1999,
and I did not understand counsel for the
applicants to place any
reliance upon it.
[6] When the matter came before
Ledwaba J in the court below, the trustees requested him to determine
whether the respondent was
a trust beneficiary, arguing that, if she
was not, the application had to be dismissed. On the other hand, the
respondent argued
that she is a beneficiary and that, before the
merits of the application be decided, the Master should be ordered to
investigate
the affairs of the trust and report to the court.
[7] Faced with these conflicting
arguments, the learned judge appears to have attempted to steer a
middle course. On 14 January
2009, he ruled that even if the
respondent is not a trust beneficiary, in respect of which he
specifically recorded he had made
no finding, she has ‘sufficient
interest in the matter warranting that she can file this application
and can request the
Master to carry on an investigation’. He
then ordered the Master to carry out an investigation in terms of s
16 of the Act
and to report thereon, and postponed the application
sine die to be later enrolled once such report was available. It is
not necessary
to discuss the terms of further interim relief granted
in regard to the administration of the trust.
[8] The trustees applied
unsuccessfully for leave to appeal against this order. The judge
concluded that his order was neither definitive
of the rights of the
parties nor disposed of a substantial portion of the relief sought in
the main application, and was therefore
not appealable. The trustees
then applied to this court for its leave to appeal.
[9] In opposing leave to appeal, the
respondent argued that the order was not appealable and it is
necessary to deal with this issue
at the outset. The court clearly
erred in finding that, short of being a beneficiary, the respondent
had an interest in the trust
which justified her being entitled to
seek the relief claimed. It is only if she is a beneficiary that she
would be entitled to
seek the removal of the trustees, and the
respondent correctly did not seek to support the high court’s
contrary conclusion.
If the trustees are correct and the respondent
is not a beneficiary, her application would fall to be dismissed. The
issue of the
respondent’s status as beneficiary would therefore
be determinative of the parties’ rights, rendering the order
granted
in respect of those rights appealable.
[10] The court a
quo also erred in ordering the Master to carry out an investigation.
Under s 16(1) of the Act, the Master
has a wide discretion to
call upon trustees at any time to account to him.
1
Section 16(2)
further provides that the Master may, ‘if he deems it
necessary, cause an investigation to be carried out .
. . into the
trustee’s administration or disposal of trust property’.
The discretion to call for such an investigation
vests solely in the
Master. It is not alleged that the Master had in any way acted
improperly in the exercise of that discretion,
and it was therefore
not competent for the court a quo to direct him to carry out an
investigation.
[11] Accordingly, the appeal against
the order must be allowed. It remains to decide how the dispute
should be resolved.
[12] Counsel for
the respondent submitted that the matter should be referred back to
the high court for it to hear evidence to determine
whether the
respondent was a beneficiary. The trustees contended otherwise.
Alleging that it was common cause that the respondent
had not
accepted her nomination as beneficiary before the 1999 resolution was
taken, they relied upon well-known authorities
2
to submit that the
trust founder and the trustees had been free to amend the trust deed
in March 1999 and replace the respondent
as beneficiary. They
therefore argued that as the respondent had not been a beneficiary of
the trust after the resolution of March
1999, the appeal should be
upheld and the application dismissed.
[13] In advancing their argument, the
trustees relied on an allegation they had made in applying to this
court for leave to appeal
where they averred that it had been common
cause at the hearing in the high court that the respondent had not
accepted the benefits
under the trust before the resolution of 25
March 1999. Although that allegation was not disputed by the
respondent in her answering
affidavit, it is not to be viewed in
isolation but in the context of the averments in the main
application. There the respondent
alleged that she was a beneficiary
of the trust and, in response, the trustees alleged that although she
had been a beneficiary
at the outset (‘aanvanklik ‘n
begunstigde van die Bokfontein Trust was’), she had been
removed as she had indicated
that she did not want to farm
Bokfontein. It was never suggested either that the respondent had
never been a beneficiary or that
she had been removed before
accepting any benefit under the trust. The issue in the high court
was never that on which the trustees
now seek to found their case;
rather it was whether the respondent had been lawfully removed as a
beneficiary.
[14] It was only when counsel for the
trustees filed his heads of argument in the high court that it was
first contended that the
respondent had not accepted the benefits
under the trust before the March 1999 resolution and that the founder
and the trustees
had therefore been fully entitled to amend the trust
deed by removing her as a beneficiary. In supplementary heads of
argument,
counsel for the respondent conceded that the founder and
trustees of a trust ‘are entitled to cancel or amend the
contract
concluded between them at any time prior to the third party
accepting the benefits in terms of the trust deed’. Presumably
it was this concession that gave rise to the allegation in the
application for leave to appeal in this court that it was common
cause that the respondent had not accepted the benefit of the trust.
But the matter was then argued not on the basis that the amendment
of
the trust deed had taken place before the respondent had accepted the
benefits under the trust but, rather, in regard to the
validity of
the resolution of 25 March 1999 in the light of further provisions of
the trust deed (an argument raised in this court
as well). It is
clear from this that the respondent’s alleged failure to accept
the benefits under the trust before the crucial
date of 25 March
1999 was neither a live issue on the papers nor the subject of the
debate in regard to whether she is a beneficiary.
There was certainly
no formal admission made by the respondent in that regard, and the
bald allegation made in the trustees’
founding affidavit in the
application for leave to appeal in this court that the issue was
common cause, albeit not denied, cannot
amount to a final
determination of the issue.
[15] We do not know what information
would have been forthcoming had the issue been properly raised, and
it is not without relevance
that the respondent alleged that she
conducted part-time farming operations on Bokfontein and paid certain
farming expenses at
a time after the trust had been created. At the
very least, these facts are consistent with her having accepted the
benefits of
the trust, but one is left to speculate on what further
information she could have relied upon had the issue been properly
raised.
[16] Blame for the
failure to raise the issue is not something which can be placed at
the door of the respondent. She made the positive
averment that she
was a beneficiary, to which the trustees replied that although she
had been a beneficiary, she had been removed.
If the trustees wished
to dispute that the respondent was a beneficiary, it was for them to
have raised the allegation that she
had been removed before she
accepted her nomination. As they now seek to build a case on a
foundation not previously laid, they
should be precluded from doing
so.
3
Although it may be
open to a party to raise a point of law which involves no unfairness
to the other party and raises new factual
issues, a point raised for
the first time on appeal on factual considerations not fully explored
in a court below should not be
allowed.
4
[17] In the light of these
considerations, this court should not now dispose of the appeal by
having regard to a point not raised
in the court below and in respect
of which the relevant facts have not been properly explored in the
papers.
[18] Moreover, disposing of the matter
on the basis that the respondent had not accepted her benefit, would
preclude her from relying
on her contention that no matter what the
effect of the March 1999 resolution may be, she was nominated as a
beneficiary by way
of the resolution of 7 December 2004.
[19] In these circumstances, it seems
to me to be appropriate to remit the issue whether the respondent is
indeed a beneficiary
of the trust to the high court for the hearing
of evidence. That would enable the parties to place before court
whatever evidence
they consider is relevant to the issue. Although
the respondent suggested a referral should only be made in respect of
certain
specified issues, in the light of the uncertainty as to the
factual matrix under which this issue will be decided, it is probably
best to grant an order in broad terms.
[20] In the result, the following
order is made:
1. The applicants are granted leave to
appeal to this court.
2. The appeal is upheld to the extent
that the order made by the court a quo on 14 January 2009 is set
aside and replaced with the
following:
‘
(a) The
application is referred for the hearing of oral evidence on a date to
be arranged with the Registrar, on the questions whether
or not the
applicant, Nicoline Van Der Meulen, is a beneficiary of the
Bokfontein Trust or whether she has been validly removed
as a
beneficiary of such trust.
(b) The evidence shall be that of any
witness whom the parties or either of them may elect to call,
subject, however to what is
provided in para (c) hereof;
(c) Save for witnesses whose evidence
is already on affidavit in this application, neither party shall be
entitled to call any witness
unless:
(i) It has served on the other party
at least 15 (fifteen) days before the date appointed for the hearing
(in the case of a witness
to be called by the applicant), and at
least 10 days before such date (in the case of a witness to be called
by the respondent),
a statement wherein the evidence to be given in
chief by such person is set out; or
(ii) The court, at the hearing,
permits such person to be called despite the fact that no such
statement has been so served in respect
of his evidence;
(d) Either party may subpoena any
person to give evidence at the hearing whether such person has
consented to furnish a statement
or not;
(e) The fact that a party has served a
statement in terms of (c) above, or has subpoenaed a witness, shall
not oblige such party
to call the witness concerned;
(f) Within 30 (thirty) days from the
date of this order, each of the parties shall make discovery on oath
of all documents relating
to the issues referred to in para (a)
hereof, which are or have at any time been in the possession or under
the control of such
party. Such discovery shall be made in accordance
with Rules of Court 35(1) and 35(8) and the provisions of Rule 35
with regard
to the inspection and production of documents discovered
shall be operative;
(g) The incidence of costs incurred up
to date shall be determined after the hearing of oral evidence.’
The costs occasioned by the
application for leave to appeal and the appeal shall be costs in the
cause.
____________
L E LEACH
JUDGE OF APPEAL
APPEARANCES
APPELLANTS: J W Louw SC (with him J J
Botha)
Instructed by Van der Merwe Attorneys,
Pretoria
Naudes Attorneys, Bloemfontein
RESPONDENT: M Helberg SC
Instructed by Louis Benn Attorneys,
Pretoria
Lovius Block, Bloemfontein
1
Administrators,
Estate Richards v Nichol & another
[1998] ZASCA 82
;
1999
(1) SA 551
(SCA) at 561B.
2
In
particular
Crookes NO & another v Watson & others
1956 (1) SA 277
(A) 285E-G and
Hofer & others v Kevitt NO &
others
[1997] ZASCA 79
;
[1997] 4 All SA 620
(A) at 623-624.
3
Administrator,
Transvaal & others v Theletsane & others
[1990] ZASCA 156
;
1991
(2) SA 192
(A) at 195F-196E and 200G.
4
Naude
& another v Fraser
[1998] ZASCA 56
;
1998
(4) SA 539
(SCA) at 558A-E.