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[2022] ZAFSHC 355
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Mitchell and Another v Mitchell N.O. and Others (5380/2022) [2022] ZAFSHC 355 (29 December 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 5380/2022
In
the matter between:
NATALIE
MITCHELL
First Applicant
[Identity
Number: [....]]
NICOLE
MITCHELL
Second Applicant
[Identity
Number: [....]]
and
CORNELIA
ELIZABETH MITCHELL N.O.
First Respondent
[In
her capacity as Trustee of the RODNEY BRUCE
MITCHELL
TESTAMENTARY TRUST: MT12884/2008]
DISCOVERY
LIFE INVESTMENT SERVICES (PTY) LTD
Second Respondent
[Registration
Number: 2007/005969/07]
THE
MASTER OF THE HIGH COURT, FREE STATE
Third Respondent
DIVISION,
BLOEMFONTEIN
HEARD
ON:
22 DECEMBER 2022
CORAM:
MATHEBULA, J
DELIVERED
ON:
The judgment was handed down
electronically by circulation to the parties’ legal
representatives
by email and release to SAFLII on 29 DECEMBER 2022.
The date and time for hand-down is deemed to be 29 DECEMBER 2022 at
12H00.
[1]
On 28 October 2022 the applicants filed an urgent application wherein
the following
orders were sought: -
1.
That
the applicants’ failure to comply with the provisions of the
Rules of Court pertaining to notice, time limits, service
and process
be condoned and that this application be heard as an urgent
application in terms of the provisions of Rule of Court
6(12).
2.
The
first respondent be ordered/directed:
2.1.
2.1.1.
To pay to the first applicant her monthly stipend in the
amount of R6,000.00 for the month of October 2022 and in the amount
of
R6,000.00 for the month of November 2022 within five (5) days of
this order being granted;
2.1.2.
To pay to the second applicant her monthly stipend in the
amount of R4,000.00 for the month of October 2022 and in the amount
of
R4,000.00 for the month of November 2022 within five (5) days of
this order being granted; and
2.1.3.
To continue to pay the aforesaid monthly stipends to the first
and the second applicant for the month of December 2022 and the
months
following thereafter, said payments to be made on the 1
st
day of each month.
2.2.
2.2.1.
To pay the rent in the amount of R9,600.00 for October 2022
and in the amount of R9,600.00 for November 2022 in respect of No.
[....]
A [....] (townhouse), O [....] Street, Bloemfontein, into A
List Rentals’ ABSA cheque account, No. [....] within five (5)
days of this order being granted;
2.2.2.
To pay to the second applicant the sum of R7,000.00 for
October 2022 and an additional sum of R7,000.00 for November 2022 in
respect
of her rental obligations for the aforesaid two months within
five (5) days of this order being granted; and
2.2.3.
To thereafter continue to pay the monthly rental reasonably
required by the first and the second applicant to provide them with
adequate accommodation.
2.3.
To pay the first and the second
applicants’ medical aid premiums in the amount of R1,685.00 in
respect of each of the applicant’s
for the month of October
2022 and November 2022 within five (5) days of this order being
granted and to continue to do so as from
December 2022, and monthly
thereafter.
3.
That, in the event of the second
respondent being informed, in writing, by the applicants’
attorneys (Mr P Joubert and/or
Mr H Adam) that the first respondent
has failed and/or refuses to comply with any part or the whole of the
order as formulated
in paragraph 2 above, the second respondent be
authorized, directed and ordered:
3.1.
To pay out of the income and/or the
capital of the endowment policies with Investment Numbers [....]
and/or [....] the sum of R30,309.92
in respect of October 2022 and
the same sum in respect of November 2022 into the Trust account of
Symington & de Kok Attorneys,
held at First National Bank, with
Account Number [....] and under Reference Number [....], in order for
the said sums or any part
thereof to be paid to the first and the
second applicant and/or for their benefit in respect of their rental
needs and medical
aid premiums; and
3.2.
To continue to pay the aforesaid sum
into the aforesaid Trust Account of Symington & de Kok Attorneys
as from 1 December 2022,
and monthly thereafter, for as long as there
are funds available to do so, until the second respondent is
instructed by a letter,
signed by any of the applicants’
aforesaid attorneys to cease making further payments.
4.
That the first respondent be ordered
to personally pay the costs of this application.
5.
That the first and the second
applicant be granted leave to supplement their founding affidavit, if
necessary, in order to apply
for further relief.
6.
Further and/or alternative relief.
[2]
After hearing counsel for the applicants Mhlambi J ordered prayer 2
to operate with
immediate effect. A return date of 8 December 2022
was ordered by the court as to why the order should not be made
final. On the
last mentioned date, the rule
nisi
was extended
to 22 December 2022 by Daniso J because of administrative glitches.
In the present proceedings, the applicants seek
confirmation of the
rule
nisi
with costs to be borne personally by the first
respondent. The first respondent, who is the only one opposing the
application, is
arguing for the discharge of the rule
nisi
with
costs.
[3]
It is disheartening to witness a family bound together by common
interests being ripped
apart by disputes that are capable of amicable
settlement. The applicants and the first respondent have been at each
other in this
court on different facets of the same issue. The
reality is that the very funds that each profess to be protecting are
being depleted
by spiralling litigation costs. Nevertheless, their
appetite to litigate seems to be on the rise instead of waning. The
proceedings
before me are just another round.
[4]
The facts that can be obtained from the papers are fairly clear and
simple. The first
respondent is the paternal grandmother of the
applicants. On 16 October 2006, their parents namely Rodney and
Louise Mitchell,
executed a joint Will. In terms of the joint Will
the applicants were nominated as beneficiaries to inherit the sum of
R1,500,00.00
each. The joint Will stipulate that the aforesaid amount
must be kept in a Testamentary Trust (“Trust”) to be
established
with the applicants as beneficiaries. The first
respondent was appointed as the joint Trustee together with a certain
C.J. Terblanche.
The Testator died in September 2009 and the joint
Will was accepted by the third respondent and its provisions given
effect to.
It is common cause that C.J. Terblanche resigned as a
Trustee which left the first respondent firmly in control of the
Trust.
[5]
It is self-evident that from a tender age until recently, the
applicants lived off
the income generated from their inheritances to
cover for daily expenses. As they grew older, the applicants were
dissatisfied
in the manner that the first respondent was controlling
the funds and therefore launched an application for her removal as
the
Trustee. That application which is opposed is still pending
before this court.
[6]
The pith of their case is that the first respondent committed certain
irregularities
and did not act in accordance with the edicts of her
office. On the other hand, the first respondent avers that all her
actions
were according to the dictates of her office as a Trustee and
in the interests of the applicants. Her main point is that confronted
with the rising costs and shrinking income, the Trust is unable to
meet its monthly obligations towards the applicants.
[7]
The applicants contend that the Trust has sufficient cash assets to
meet their needs.
The first respondent is simply refusing to do so
because she is vindictive and generally acting
mala fide
.
Counsel for the applicants argued that the first respondent must
borrow or even beg in order to comply with her obligations as
a
Trustee. He launched a broadside at the conduct of the first
respondent by investing the Trust funds in her own name. The climax
of his submissions is that the impossibility of performance (if any)
is self-created and the first respondent cannot be allowed
to benefit
from it.
[8]
Counsel for the first respondent
raised a point
in limine
with regards to non-compliance with
Uniform Rule 41A. The first respondent had filed a notice as per the
Uniform Rule and the applicants
did not even seek a condonation. On
these bases the first respondent moves for an order that the
application must be dismissed
or I make an appropriate costs order.
[9]
He also raised the defence of impossibility of performance. Counsel
pointed out that
the Trust coffers have run dry and therefore she
could not meet her obligations. This aspect, it was contended, was
brought to
the attention of the applicants on numerous occasions in
the past. The funds were depleted because of wrong choices made by
the
applicants and their insistence of audited financial statements
which cost money. In a nutshell, they brought this dire situation
upon themselves.
[10]
Mediation as a dispute resolution mechanism is fairly in its
embryonic stage. It is applicable
to both actions and application
proceedings that are brought before court. Urgent applications are
not an exception. It stands
to reason that non-compliance should
attract some kind of sanction. The objection, valid as it may be,
cannot be the ground upon
which this matter can be dismissed. The
principle that the rules are for the Courts not the Courts for the
rules must apply. I
am inclined to condone non-compliance simply
because this matter requires urgent attention of the court.
[11]
The battle royal between the parties is about the sum of R800,000.00
which is invested in a fixed
financial instrument with the second
respondent. According to the applicants there is no conceivable
reason why these funds cannot
be used for their upkeep. Even if it
means terminating the investment and incurring penalties if
applicable. The first respondent
avers that the policy matures in
December 2024 and the funds will be available to the applicants.
Although the investment is made
in her name and not the Trust, the
beneficiary thereof is the Trust. The explanation is that it could
not be done in the name of
the Trust and the primary benefit is a
life insurance called the “booster plan” attached to it.
All the same, this
kind of investment was previously made in 2012,
2014 and the current one in 2019. This explanation which in my view
makes sense,
disavow any allegations of impropriety.
[12]
The applicants essentially seek maintenance from the Trust. This
issue can be dealt with adequately
by the relevant Maintenance Court.
The parties can do so by ventilating their issues there and
presenting evidence to support their
assertions. Earlier I briefly
alluded to the long litigation history between the parties. This is
evidenced by a flurry of strongly
worded letters emanating from both
sides about a number of issues. The matter is riddled in material
factual disputes incapable
of being resolved in motion proceedings.
Only oral evidence will do. The principles well established under the
Plascon-Evans rule
find application in this matter.
[1]
[13]
The applicants’ case deals with the
dereliction of duty on the part of the first respondent. There
is
also broadside allegations that she may have misappropriated their
funds. As a result, she is unfit to remain in office. This
is a
dispute that is still pending and not really an issue before me. The
averments in the papers before me do not justify the
making of any
conclusion to that effect. It is far from clear on what basis the
first respondent is implicated at all.
[14]
The parties differ on their understanding of what the Trust must do.
According to the applicants
it must cater for their needs until it is
dissolved and any remaining funds paid to them. The first respondent
is of the view that
it was not the intention of the testator that
applicants will be supported after they have been equipped with the
necessary tools
to look after themselves. The contention is that she
acted in their interests when she invested the funds. There is no law
that
she could not have made the investment in her name. The
determination of this point is not within the purview of the
application
before me.
[15]
Courts have repeatedly held that the golden rule in the
interpretation of Wills is that the court
shall seek to ascertain the
wishes of the testator. This can be detected from the language used
in the Will. The main question
is to determine what was meant by the
testator. Certainly if this does not resolve the difficulty,
extrinsic evidence does play
a role. One would have expected the
surviving spouse to file an affidavit to deal with this point.
[16]
The law is trite that applications are about common cause facts and
applicable law. They are
not about probabilities. That said, there
are significant difficulties as discussed above in the case of the
applicants. Therefore,
the is no cogent reason why the rule
nisi
should not be discharged.
[17]
What remains is the issue of costs. Both parties desired punitive
costs order against each other.
This is indicative of the hostile
environment that exists between them. The applicants are impecunious
and it was mentioned that
their attorneys are acting
pro bono
.
On the other hand, the first respondent will undoubtedly pay her
legal team with the funds belonging to the Trust. She is sued
in her
representative capacity as the Trustee. The loser in the long run is
the very Trust. Perhaps it is opportune for the parties
to stand back
a bit and endeavour to arrest the unnecessary haemorrhaging of cash.
A costs order that each party pays its own costs
is deemed to be an
appropriate one.
[18]
In the result I make the following order: -
18.1. The application is
dismissed, the rule
nisi
is discharged.
18.2. Each party pays its
own costs.
M.A.
MATHEBULA, J
On
behalf of the applicants:
Adv. J.G. Gilliland
Instructed
by:
Symington & de Kok Attorneys
BLOEMFONTEIN
On
behalf of the 1
st
respondent:
Adv. C.L.H. Harms
Instructed
by:
Grundlingh & Associates
CENTURION
C/O
Badenhorst Attorneys
BLOEMFONTEIN
On
behalf of the 2
nd
& 3
rd
respondents:
No appearance
/TKwapa
[1]
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A).