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[2022] ZAFSHC 261
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B.B v F.D.B and Others (135/2019) [2022] ZAFSHC 261 (11 October 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
135/2019
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
B[....]2
B[....]
Applicant
and
F[....]
D[....]
B[....]
1
st
Respondent
LIZA
KATHLEEN BOTES
N.O.
2
nd
Respondent
(In
her capacity as Trustee of the Mooigelegen Trust)
ANNA
VAN WYK
N.O.
3
rd
Respondent
(In
her capacity as Trustee of the Mooigelegen Trust)
IN
RE:
F[....]
D[....]
B[....]
Plaintiff
and
B[....]2
B[....]
1
st
Defendant
F[....]
D[....]
B[....]
2
nd
Defendant
(In
his capacity as Trustee of the Frans B[....] Family Trust)
SAREL
JOHANNES VENTER
N.O.
3
rd
Defendant
(In
his capacity as Trustee of the Frans B[....] Family Trust)
JUDGMENT
BY:
C
REINDERS, ADJP
HEARD
ON:
18
AUGUST 2022
DELIVERED
ON:
This judgment was
delivered in open court on 11 October 2022 at 13h45 and thereafter
distributed electronically.
[1]
On 15 January 2019 the plaintiff
in the main action (Mr FD B[....]) instituted divorce
proceedings
against the first defendant (Mrs B B[....]) under civil case number
135/2019, claiming a decree of divorce and ancillary
relief. The
parties were married in community of property on 25 March 2000. Mrs
B[....] defended the action and filed a counterclaim
praying, amongst
others, for certain declaratory relief.
[2]
Mr B[....] is cited as the first respondent in this interlocutory
application, whilst
Mss LK Botes and A van Wyk in their official
capacities as the trustees of the Mooigelegen Trust, are the second
and third respondents
respectively. Mrs B[....] (as applicant) seeks
to join the second and third respondents as the fourth and fifth
defendants respectively
in the claim in reconvention.
[3]
The second and third respondents oppose the relief claimed on several
grounds, praying
that the application be dismissed with costs.
[4]
The principles relating to an application for joinder is trite:
“…
a
third party who has, or may have, a direct and substantial interest
in any order the court might make in proceedings or if such
an order
cannot be sustained or carried into effect without prejudicing that
party, is a necessary party and should be joined in
the proceedings,
unless the court is satisfied that such a party has waived the right
to be joined.”
See:
Amalgamated Engineering Union v Minister of Labour
1949
(3) SA 637
(A)
[5]
Applicant in her founding
affidavit states that she intends to amend her counterclaim in
the
main action by introducing a claim for a declaration that certain
immovable properties purportedly held by the second and third
respondents in their capacities as trustees of the Mooigelegen Trust,
are those of the joint estate. She avers the basis for the
application for joinder to be that the said trustees will have a
direct and substantial interest in aforementioned declaratory
relief
sought.
[6]
The background to the application is mostly common cause between the
parties. During
2013 Mr B[....] was granted occupational disability
benefits (“the benefits”) from an insurance policy and in
tandem
with the application for such benefits, he established the
Frans B[....] Family Trust (“the B[....] Trust”). Mr
B[....]
and Mr SJ Venter are the trustees. A portion of the benefits
were used to purchase four adjoining plots from the farm Ballyduff
(the “Ballyduff properties”).
[7]
The divorce action was set down and on 28 February 2021 when it was
to commence, Mr
B[....] was confronted with the proposition that
certain loans that he had made to the B[....] Trust (in the aggregate
of R 12 840 469.00)
and the entity Spring Forest Trading
691 CC (in the aggregate of R 991 190.00) were purportedly
assets in the communal estate.
Mr B[....] moved for a postponement of
the trial in order to amend his particulars of claim to the extent of
introducing a claim
for a declaratory order that the disability
benefits fall to be excluded from the communal estate.
[8]
From the papers it appears that, shortly after the aforementioned
postponement of
the divorce action, the Trust Deed of the Mooigelegen
Trust was signed by the second and third respondents as trustees. On
8 April
2021 the Master issued a letter of authority to the second
and third respondents. The trustees of the Mooigelegen Trust
purportedly
held a meeting on 13 April 2021 where it was decided that
the Mooigelegen Trust would purchase portions 3, 6 and 7 of the farm.
On face value the resolution that is said to have been passed at that
meeting was signed on 9 April 2021. The Ballyduff properties
were
transferred into the name of the Mooigelegen Trust on 3 August 2021
(portion 3), 4 August 2021 (portion 7) and 21 September
2021 (portion
6) respectively.
[9]
According to the applicant, the aforementioned sale and transfer of
the Ballyduff
properties came to her attention on 20 October 2021
when her attorney of record received a letter from Mr B[....]’
former
attorney. The letter revealed that certain assets, including
the Ballyduff properties, were liquidated to enable the B[....] Trust
and Spring Forest Trading CC to settle their loan accounts with Mr
B[....].
[10]
The respondents’ grounds of opposition to the relief claimed by
the applicant are based
firstly thereon that the applicant (according
to the respondents) conflates the grounds upon which she (as a
defendant to the action)
moves for the joinder of the Mooigelegen
Trust and at the same time has failed to make out a case in the
founding affidavit for
the joinder of the said Trust. I was referred
to the judgment delivered by Makgoka JA in
PAF v SCF
(788/2020)
[2022] ZASCA 101
(22 June 2022) wherein the distinctness
of the two remedies in respect of a claim that a trust is a sham on
the one hand, and on
the other hand a claim to pierce the corporate
veil of a trust, was reiterated. It was submitted that the applicant
in any event
would not be entitled to the relief she seeks against
the second and third respondents (with reliance on
PAF
supra
at para [26]) on the basis that in the event it be found
that the trust is a sham, no effect would be given to the transaction
and
the founder will remain the owner of the assets. The respondents
lastly averred that there were no allegations or evidence of how
the
affairs of the Mooigelegen Trust, with reference to the terms of the
Trust Deed, were conducted.
[11]
From the papers the applicant seeks an order not only to join the
second and third respondents
as the fourth and fifth defendants, but
wishes to introduce a claim for declaratory orders that the Ballyduff
properties and any
assets purportedly held by the trustees of the
Mooigelegen Trust that were directly or indirectly purchased with the
proceeds of
a sale of these properties, form part of the communal
estate. On behalf of applicant it was submitted that the second and
third
respondents have a direct interest in the matter and as relief
is sought against the trust, they should be joined of necessity.
I
was referred to
VW v VW and Others
(627/2016)
[2017]
ZANCHC 26
(31 January 2017).
[12]
Where a defendant wishes to join a party in a counterclaim it would
need leave of the court to
join such a party. Rule 24(2) of the
Uniform Rules of Court regulates the procedure and the requisites for
such joinder. From the
discussion and authorities cited in Erasmus:
Superior Court Practise Volume 2 at D1-313 [Service 8, 2019] it is
evident that the
merits of the matter do not play much of a role at
this stage of the proceedings. Erasmus, with reference to case law,
states:
“
Entitlement
to take action is not the equivalent of a
prima facie
case of
potential success in an action against the persons concerned.”
See:
Hosch-Fömrdertechnik SA (Pty) Ltd v Brelko CC and Others
1990 (1) SA 393
(W)
Put
differently, the issue of joinder should not be conflated with the
issue of whether the party seeking joinder has a good case
against
the party sought to be joined.
See:
Gordon v Department of Health, Kwazulu-Natal
[2008] ZASCA 99
;
2008 (6)
SA 522
(SCA)
[13]
It is obvious that the defendant is in the position that it did not
issue the summons. The essence
of the application is to join with the
purpose of obtaining a declaratory order as alluded to herein above.
The respondents still
have to plead and I need not say more.
[14]
Having considered therefore the arguments by both parties (and I am
indebted to the legal representatives
for the ample and thorough
arguments and assistance) the application should succeed and leave be
granted to the applicant to join
the second and third respondents as
requested. Although the applicant prayed that any party opposing the
relief claimed herein
should be ordered to pay the cost of the
application, I am of the view that costs should be in the cause.
[15]
I therefore make the following orders:
15.1
The second and third respondents are
joined as the fourth and fifth defendants respectively in
the claim in reconvention
in the divorce action under case number
135/2019.
15.2
Should the fourth and fifth respondents
wish to defend the claim in reconvention, they are required to give
notice of their intention
to defend within 10 (ten) days of service
of this order.
15.3
Costs to be in the cause.
C
REINDERS, ADJP
On
behalf of the applicant: Adv
WA van Aswegen
Instructed
by: Phatshoane
Henney
BLOEMFONTEIN
On
behalf of the respondents: Adv
JG Gilliland
Instructed
by: Sarel
Venter Inc
c/o
Azar & Havenga Attorneys
BLOEMFONTEIN