About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2022
>>
[2022] ZAGPPHC 440
|

|

De Kock v De Kock N.O. and Others (26288/2020) [2022] ZAGPPHC 440 (15 June 2022)

IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
GAUTENG DIVISION,
PRETORIA
Case
number: 26288/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES/NO
In
the matter between:
HAROLD
LEE DE KOCK
APPLICANT
And
DE
VILLEBOIS ETIENNE DE KOCK N.O

FIRST RESPONDENT
SHIRLEY
ANN VAN WYK N.O

SECOND RESPONDENT
CELESTE
MARIE DAVEY
N.O

THIRD RESPONDENT
FREDERICK
FRANS VAN NIEKERK N.O

FOURTH RESPONDENT
JOHANNES
JURGENS POTGIETER N.O

FIFTH RESPONDENT
DE
VILLEBOIS ETIENNE DE
KOCK

SIXTH RESPONDENT
SHIRLEY
ANN
VAN
WYK

SEVENTH RESPONDENT
CELESTE
MARIE
DAVEY

EIGHTH RESPONDENT
FREDERICK
FRANS VAN NIEKERK

NINTH RESPONDENT
JOHANNES
JURGENS POTGIETER

TENTH RESPONDENT
THE
MASTER OF THE HIGH
COURT

ELEVEN RESPONDENT
MANYELETI
PROPRIETARYLIMKITED

TWELFTH RESPONDENT
JUDGMENT
PHAHLAMOHLAKA
A.J.
INTRODUCTION
[1]
The Applicant
seeks
an order against the respondent
in
the following terms:
1.1
That the First, Second, Third, Fourth and
Fifth Respondents (or any other person so nominated by the First,
Second, Third, Fourth
and Fifth Respondents to act as trustees of the
Arathusa Trust) be removed as trustees of the Arathusa Family Trust.
1.2
That the Eleventh Respondent be directed to
appoint independent trustees for the Arathusa Family Trust.
1.3
Cumulative and/or in the alternative to the
relief in paragraph 1.1 and 1.2 above, that the First, Second, Third,
Fourth and Fifth
Respondents are in contempt
of the court order granted by the Supreme
Court of Appeal on 06th
of
June 2019 under case number 334/2018.
1.4
Cumulative and/or in the alternative to the
relief in paragraph 1.1 and 1.2 above, that the First, Second, Third,
Fourth and Fifth
Respondents, jointly and severally, the one to pay
the other to be absolved, be ordered to pay a fine equal to such an
amount which
the Honourable Court deems fit and just in the
circumstances
due
to their contempt
of
the order of the Supreme Court of Appeal.
1.5
In the alternative
to
the relief set out in paragraph 1.1, 1.2, 1.3 and 1.4 above,
an
order
interdicting
the
First,
Second,
Third,
Fourth
and
Fifth
Respondents (as well as the trustees from time to time of the
Arathuisa Trust) not to frustrate
and/or
stop the Applicant
from gaining equal access to and enjoyment
of the farm Arathusa 241 K.I., Pilgrims Rest,
Mpumalanga, as was the practice before 14
January 2013.
1.6
An order that in accordance with the
provision of clause 13.6 of the Trust Deed, an arbitrator be
appointed in order to make a decision
and to implement the
arrangement whereby the beneficiaries of the Arthusa Family Trust are
given equal proportionate access to
the property known as Farm
Arathusa, District Pilgrims Rest, Mpumalanga. Without derogating from
the generally of the aforegoing,
that the following arrangement be
implemented, in order to regularise and implement the access to the
said farm by the various
beneficiaries:
1.6.1
As from the granting of this order
the trustees of the trust shall no longer be empowered to determine
whether by virtue of a roster
or otherwise, which beneficiary will be
visiting the farm on which date and for how long and under what
circumstances.
1.6.2
The authority to grant access to the
farm to beneficiaries is in terms of clauses 13.66 vested in the
arbitrator referred to below,
which is determined by virtue of a
roster or otherwise and after procuring submissions form the
beneficiaries, which beneficiaries
shall
visit the farm at which date, for how long and under what
circumstances.
1.6.3
The arbitrator so appointed shall be
a senior advocate practising in Pretoria of not less than 5 years
standing which will follow
an informal procedure in order to
determine
swiftly
and cost effectively
the
right of access of beneficiaries
to
the farm.
1.6.4
The
aforementioned
arbitrator
shall
be
remunerated
by
the
trust
and
the trustee ]s of the trust shall
pro
rata
be obliged to ensure that the
arbitrator is properly remunerated,
alternatively
the arbitrator shall be remunerated by virtue of equal contributions
which the beneficiaries will be obliged to make, failing which
the
attorney or record for the Applicant shall be entitled to institute
on behalf of the trust recovery proceedings against any
beneficiary
and/or trustee who fail to make the required contribution in order to
pay the expenses of the arbitrator, to discharge
in effect a function
which the trustees are apparently incapable to perform themselves.
1.7
In the alternative
to
the appointment of the arbitrator as envisaged above, that
this Honourable
Court
grants
relief to
the
effect
that
the access
rights
of the beneficiaries of the trust, to the farm Arathusa, shall be in
accordance with
a
roster
to
be
compiled
by
either
the
newly
appointed
trustees
or
a roster which the above Honourable Court
deems fit.
1.8
Further and/or alternative relief which the
Honourable Court deems fit and proper under the circumstances in
terms of the factual
matrix of this application,
read with
the
Deed of Trust
of
the Arathusa
Trust,
as well as the Trust Property Control Act,
57 of 1988.
1.9
Costs of suit on attorney
and client scale.
FACTS AND BACKGROUND
[2]
On or about 09 May 1999, the Arathusa
Family Trust (IT4883/99)
("the
Trust") was established for the security, maintenance, education
and welfare of the beneficiaries of the trust.
Through its exclusive
shareholding in the Twelfth Respondent, the trust provides a form of
leisure to its beneficiaries - access,
on a rotational basis, to a
large private game farm known as the Sabi Sands Game Reserve.
-
The Applicant's brother and sister (De
Villabois Etienne de Kock and Celeste Marie de Kock) had been
appointed with their mother,
Shirley Ann van Wyk as trustees of the
trust.
-
The Applicant, together with his aunt, Joan
Cynthia Griessel, his mother brother and sister, are the
beneficiaries of the trust.
-
Manyelethi (Pty) Ltd, the Twelfth
Respondent ("the Company"), is a property holding entity in
which
the trust
is the only
shareholder.
The trust is the holder of all shares in
the company who in turn is the registered owner of the farm known as
Arathusa in the district
of
Pilgrims Rest, Mpumalanga
("the
farm").
-
The farm forms
part
of
a larger
game
reserve.
Although
the farm is registered in the name of the
company, the company does not trade and is directly under control of
the trust, its only
shareholder.
-
On or about 14 January
2013, the trustees resolved to amend the
Trust Deed.
-
According to the applicant the amendment of
the Trust Deed had the effect that the Applicant
was removed as a beneficiary
of the trust.
-
The Applicant instituted action under case
number 44989/2014 against the trustees
for
his reinstatement
as
a
beneficiary
of
the
trust.
Initially
the
action was defended,
however
the
trustees later made a settlement
proposal
to the Applicant which was accepted.
-  A settlement
agreement was entered into in terms of which the amendment of the
Trust Deed and the Applicant's removal as
a beneficiary of the trust
were declared of no force and effect and invalid.
-
On 26 January 2016 the settlement agreement
was made an order of the court.
THE APPLICANT'S
COMPLAINTS
[3]
The applicant contends that intention of
the settlement agreement was to reinstate the Applicant as a
beneficiary of the trust with
all the rights and interest he had
previously enjoyed prior to his removal as a beneficiary thereof.
However, despite the settlement
agreement being reached and same
being made an order of court on 26 January 2019, contents the
applicant, the trustees continued
to deny him enjoyment of such
rights which the trust\ holds for the benefit of its beneficiaries,
in particular
with
regard to access rights to the farm which is part of the larger Sabi
Sands Game Reserve.
[4]
The applicant argues that it is clear that the trustees settled the
matter with him, but by doing so, acted in bad faith as
they had no
intention of reinstating the rights he had enjoyed prior to his
removal as a beneficiary of the trust.
[5]
On 23 October 2017, the trustees were ordered by the Supreme Court of
Appeal to forthwith reinstate the Applicants rights as
a beneficiary
of the trust to enjoy equal access to the farm as was the practice
prior to 14 January 2013 when the Applicant was
unlawfully removed as
a beneficiary of the trust.
-
In the litigation envisaged in 3.14 above,
the Applicant
requested the removal of the then existing
trustees. The Respondents in the application opposed the application
on rather trivial
and technical grounds. It was argued by the
Respondents that it is in fact the company that can decide who enters
upon its land
and who will not.
-
The Applicant demonstrated with reference
to the facts that this is an artificial distinction, but the
Respondent contended that
the Applicant was trying to "pierce
the corporate veil". Be that as it may, none of the trivial and
technical defences
were upheld.
-
Regarding the Applicant's request for a
removal of the trustees, the Respondents pertinently argued that
there is already an
independent
trustee in office, namely Caryn Schultz N.O and that it is therefore
not competent to ask for the removal of the trustees.
-
My sister Justice Barn AJ, granted an order
directing the Master to appoint
additional
independent trustees so that there would be a majority of independent
trustees.
-
The trustees of the trust and the directors
of the company (who are essentially the same natural persons}, lodged
an application
for leave to appeal the judgment of Barn AJ. The
application for leave to appeal was dismissed. The trustees then
filed an application
to the Supreme Court of Appeal for leave to
appeal. The SCA granted leave.
-
The Supreme Court of Appeal granted an
order in the following terms;
" 3.1 The first,
second and third respondents are ordered to forthwith reinstate the
applicant's rights a beneficiary under
Arathusa Trust IT 4883/99,
in particular, equal access to and enjoyment of the farm
Arathusa
241 ku, Pilgrims Rest
in Mapumalanga the practice before 14
January 2013."
-
appeal by the trustees therefore failed
against what can be regarded as the main relied and that is namely to
achieve a restoration
of the Applicant's rights and a full
recognition of the Applicant as a beneficiary, but the appeal
succeeded against the order
whereby the court
a
quo
directed the Master to appoint
additional trustees.
-
In the Supreme Court of Appeal, very soon
after the hearing started, and when senior counsel on behalf of the
trust and the trustees
addressed the court on behalf of the
Appellants, the learned Presiding Justice of Appeal, his Lordship Mr
Justice Navsa JA, interjected
and posed the following to counsel for
the Appellants:
-
The learned judge intimated that the court
wants there and then for counsel to obtain an instruction from the
trust and the trustees
and to then state in open court whether the
trust and the trustees are prepared to recognise fully Applicants
rights and privileges.
The court continued to explain that if counsel
returns and court will regard that as an indication that the trustees
can manage
this trust and act independently,
but
if such an instruction cannot be achieved and given to the court
there and then, then such a failure will be regarded by the court
as
an
indication
that
the
then
existing
trustees
in
fact
needed the independent guidance of additional independent trustees.
-
Counsel then obviously requested a short
adjournment. The court then adjourned and counsel could be seen
making telephonic enquiries
to his instructing attorney who did not
himself attend the proceedings, namely Mr Henk Strydom. After a few
minutes the hearing
resumed and senior counsel for the Appellants
("the trustees") then said in open court that he procured
instructions
to
make the concession on record and gave an undertaking that the
Applicant's rights would be fully restored and that the Applicants

would be treated equally just like any other beneficiary, and without
any discrimination against him.
-
That concession then dramatically shortened
the address on behalf of the Appellants.
-
It
was
clearly
on
the
strength
of
this
undertaking
given
in
open
court
o
the Supreme Court of Appeal that the
Supreme Court of Appeal interfered with the · order
granted
by
the
court
a
quo,
namely
to
direct
the
Master
to
appoint
a
majority number of independent trustees.
-
It is that unequivocal undertaking given to
the Supreme Court of Appeal which moved the Supreme Court of Appeal
to allow the appeal
to succeed in part, namely against only the order
directing the Master to appoint the additional trustees and the
consequent cost
order.
Unfortunately, the
subsequent conduct of the trustees is not conforming with the
undertaking which they have given in open court
to the Supreme Court
of Appeal. The trustees' act and their words are not the same.
-
The undertaking
given
to
the Supreme Court
of
Appeal was false and merely an attempt to save in part the day for
the trust at the hearing in the Supreme Court of Appeal.
-
Alternatively
and
if the undertaking was genuine and
bona
fide,
the practical reality of the
matter is that the hard and irrefutable facts show convincingly that
they are still in fact discriminating
against the Applicant; that
they, the trustees, are still not recognising
the Applicant's right fully and that the
undertaking given to the Supreme Court of Appeal was a hollow one,
which was not given
bona fide
by
the trustees of the trust.
-
In a similar fashion the trustees
reneged upon the settlement agreement which they entered into with
the Applicant
which
was made an order of court.
-
Despite all of this, the Applicant's
right are still not fully restored and the Applicant is still not
treated equalty, just like
any other beneficiary, without any
discrimination against him.
-
After the Judgment by the Supreme
Court of Appeal in June 2019, the Applicant via his attorney of
record, requested the attorney
of the trustees of the trust to comply
with the order
of
the Supreme
Court
of Appeal.
In
order to have done so, the trustees had to implement the following:
-
A new roster had to be issued by the
trustees of the trust to entitle the Applicant to gain access to the
farm; and
-
A vehicle entry disc whish registered the
Applicant's vehicle
for
the access to the Sabi Sands Games Reserve, needed to be issued in
the name of the applicant.
[6]
In
his
founding
affidavit
the
applicant
raises,
among
others,
the
following
complaints;
[1]
"
"Since
the order, the Trustees have frustrated,
delayed and manipulated the ruling
of the
SCA
The Trustees of the Trust at all costs
want to frustrate, delay, manipulate and stop me from gaining access
to the farm.
I
am however
of
the
opinion that even if such newly appointed trustees of the trust,
which have been nominated by the current Trustees
of
the Trust, are to be appointed by the
Master
of
the
High Court once a new letter of authority is issued, such newly
appointed trustees will merely carry on and continue to implement
the
mandate (of the current Trustees
of
the
Trust) to frustrate and stop me from gaining access to the farm.
I do not speculate if I
make this
allegation
because
there is cuffently
supposed
to be at least one "independent"
trustee and that is the current Third Respondent.
'
I
bring this application in circumstances where I have exhausted all
non­ litigious means in order to achieve
a
resolution. I therefore have no other
option but to lodge this application, which I regard as unfortunate
and necessary.
After the settlement
agreement was made an order of court on 26"1 of January 2016,
the trustees continued to deny me enjoyment
of such rights which the
Trust holds for the benefit of its beneficiaries, in particular, with
regard to access rights to farm,
which is part of the larger Sabi
Sands dame reserve.
Although I have been
reinstated as a beneficiary of the trust, I was effectively barred by
the trustees from visiting the farm.
The Trustees were blandly
discriminately against me in favour of the other trustees by not
allowing me or any family to visit the
farm."
Respondent did not
dispute that a roster existed.
RESPONDENT'S CASE
[7]
The Respondents say that a
practising Attorney and an Advocate were nominated as trustees. The
Applicant contends that "The
Trustees nominated other Trustees
(who would also be under their guidance and control)
to manage the affairs of the Trust,
however
no
letter
of
Authority has been issued by the Master of the High Court to this
end.
[8]
The respondents argue that the SCA
judgment does not give any other
rights
on the applicant
and
certainly
did not
elevate
him to
the position
of
trustee or gave him
locus standi to
prescribe to the trustees of the trust
or the twelfth respondent how to manage the farm. That prior to 14
January 2013, the applicant
did not visit the farm Arathusa 241 FU,
Pilgrims Rest, Mpumalanga, regularly.
[9]
That the applicant in his replying
affidavit filed under case number 50776/2016 signed and dated 11
August
2016,
stated that for the period 2002 to 2012 he and his family only
visited the farm twice.
[10]
The respondents argued that a roster was made and it included the
applicant. However, the respondents
argue further that the roster is
developed at the beginning of the year and therefore it is difficult
to ament as dates have already
been allocated.
[11]
The respondents contend that they are not
the ones issuing the car permits and therefore cannot be held liable
if the applicant
is unable to obtain a permit.
APPLICABLE LAW
[12]
Section 20 of the Trust Property
Control Act 57 of 1988 provides as follows:
(i)
A trustee may, in the
application of the Master or any person having interest in the trust
property,
at
any time be removed from his office by the court if the court is
satisfied that such removal will be in the interest of the trust
and
its beneficiaries.
(ii)
A trustee may at any time be
removed from office by the Master of the High Court:-
(a)
If he has been convicted in the
Republic or elsewhere of any offense of which dishonesty
is an element or of any other
offense for which he has been sentenced
to imprisonment without the option
of
a
fine;
or
(b)
If he fails
to give security
or additional
security,
as
the
case may be,
to
the satisfaction of the Master of the High Court within two months
after having been requested thereto
or
with such further period
as
is allowed by the Master of the High
Court; or
(c)
If his estate is sequestrated or
liquidated
or
placed under judicial management;
or
(d)
If he has been mentally
ill or incapable
of managing
his own affairs or if he is virtue
of the Mental Health
Act,
1973 (Act 18 of 1973),
detained
as a patient in an institution or
as
a State Patient,· or
(e)
If he fails to perform satisfactorily
any duty imposed
upon
him by under this Act or to comply with any lawful request of the
Master of the High Court.
[13]
the
most recent authority on the removal of trustees is the judgment of
the Supreme Court
of
Appeal,
Fletcher
v
McNair.
[2]
In
paragraph
19
of
the
Fletcher
judgment
Makgoka JA
lists
the requirements
for
the removal of trustee as follows"
"[19]
Our
jurisprudence on the removal of trustees is neatly collated in
Gowar
at paras 31-32. Petse JA undertook
a
useful
examination of authorities,
from which the following
principles can be distilled;
(a)
The court my order the removal of
the trustee only of such removal will,
as
required by section 20(1) of the Act, be
in the interst of the Trust and its beneficiaries;
(b)
The power of the court to remove
trustee must be exercised with
circumspection;
(c)
The sufficiency
of the cause for removal is to be
tested
by
a
consideration
of the interests of the estate;
(d)
The deliberate wishes of the
deceased person to select persons in reliance upon their ability and
character to manage the estate,
should be respected, and not be
lightly interfered with;
(e)
Where there is disharmony, the
essential test is whether it imperils the Trust estate or its proper
administration;
(f)
Mere friction or enmity between the
trustee and the beneficiaries will not in itself be an adequate
reason for the removal of the
trustee from the office;
(g)
Mere conflict amongst
trustees
themselves
is not
a
sufficient
reason
for the
removal
of
a
trustee
at the suit of another;
(h)
Neither ma/a fides nor even
misconduct are required for the removal
of a trustee;
(i)
Incorrect decisions and
non-observance of the strict requirements
of the law, do not of themselves,
warrant the removal of a trustee;
(j)
The decisive consideration
is the welfare of the beneficiaries
and the proper administration of
the
Trust and the Trust Property."
REMOVAL
OF TRUSTEES
[14]
The court also has common law jurisdiction
to remove a trustee. The general principle is that the court will
exercise its common
law jurisdiction to remove a trustee if the
continuing offence of the trustee will be
detrimental
to the beneficiary
or will prevent the
trust from being properly administrated.
[15]
Counsel
for the applicant referred me to
Gowar
&
Another
v Gowar
&
Others
[3]
•
It
was argued by the applicant that the facts of this case justify the
removal of the trustees. It is clear that the trustees by
their
conduct, not only are in contempt of the order by the Supreme Court
of Appeal, but their continuance in office is detrimental
to the
Applicant, a beneficiary. It will therefore be correct that the
trustees be removed and that the Master be ordered to appoint

independent trustees for the trust. The trustees frustrate, delay and
manipulate the order by the Supreme Court of Appeal. They
have one
goal which they want to achieve and that is to prevent the Applicant
gaining access to the farm. Even after the Supreme
Court of Appeal's
order, there was yet again a further attempt to deny that the
Applicant is a beneficiary of the trust. The relief
sought will also
have the effect that the trustees will not be in a position to
nominate other individuals to take over their responsibilities,

duties and rights,
vis
a
vis
the
trust and its beneficiaries. This will prevent the situation where
newly appointed trustees will merely carry on and frustrate
the
Applicant. If the master is ordered to appoint new independent
trustees, then hopefully the matter will be resolved as there
will be
no underlying relationship between the current and old trustees and
trustees nominated by them.
[16]
It is apparent that that the high water
mark of the applicant's case for the removal of the independent
trustees is that they will do what the
existing
trustees
dictate. This is in my view speculation
that is not supported by ay facts. Two independent trustees who are
members of the legal
profession have been appointed and I am of the
view that as lawyers they are aware of their fiduciary duties.
[17]
I
am
not
satisfied
that
the
applicant
has
made
out
a
case
for
the
removal
of
the trustees and therefore
the relief sought in this regard should
fail.
CONTEMPT OF COURT:
[18]
For the applicant to succeed in a contempt
of court claim the applicant must prove that the respondents had the
necessary intention
to disobey the order of the Supreme Court of
Appeal. I agree with the respondent's contention that the applicant
has not advanced
independent and separate facts to support his claim
that the first to third respondents be found guilty on contempt of
court. I
am not satisfied therefore that the applicant
has made
out
a case for me to find that the respondents
were in
contempt.
[19]
Counsel for the applicant referred me to
Fakie N.O v CCII System (PtyJ Ltd,
[2006] ZASCA 52
;
2006
(4)
SA 326
(SCA}, Mafiabeng Local Municipality v Eskom Holdings (PtyJ
Ltd,
2018
(1)
SA 1
(CC),
where
the Constitutional Court at 27A to C,
held the position to be as follows:
"Summing
up, on a reading of Faki, Pheko and Burchell, I am of the view that
the standard of proof must be applied in accordance
with the purpose
sought to be achieved or differently put, the consequences
of the various remedies. As I
understand it, the maintenance of a distinction does have a practical
significance: the civil contempt
remedies of committal or a fine have
material consequences on an individual's freedom and security of the
person. However, it is
necessary in some instances because disregard
of a court order not only deprives the other party of the benefit of
the order, but
also impairs the effective administration of justice.
There the criminal standard of proof- beyond reasonable doubt
-
applies. A fitting example of this is
Fakie. On the other, there are civil contempt remedies
-
for example
-
declaratory
relief,
mandamus
or
a structural
interdict that
do
not have the
consequences
of depriving an individual of their right
to
freedom and security of the person.
A fitting example
of
this is Burchell. Here, and I stress,
the civil standard
of
proof
-
a
balance
of
probabilities
-
applies."
[20]
I am of the view that the two judgments referred to are
distinguishable to this matter and therefore do not take the
applicant's
case any further.
INTERDICT
[21]
The applicant contents that to force
compliance with not only the Supreme Court of Appeal's order, but
with the rights that the
Applicant has as a beneficiary of the trust,
the Applicant also seeks interdictory relief to the effect that the
trustees be interdicted
from frustrating
and/or stopping the Applicant
gaining access
and enjoyment
to
the farm as was the practice before 14 January
2013. The SCA judgment by NAFSA
JA addresses the issues the applicant is
raising and therefore it is my view that the applicant has not made
out a case for the
relief sought in this regard.
ARBITRATION
.:.
[22]
The trust Deed in clause 13.6 makes
provision that an arbitrator be appointed. The applicant avers that
the respondents deliberately
frustrates him with a roster that does
not favour him. As a beneficiary I am of the view that the applicant
should enjoy the same
as other beneficiaries. The applicant has
failed to demonstrate that the existing roster and procedure does not
give him equal
access to the property.
[23]
The respondents
have demonstrated
how the roster
works and according
to them the applicant is included and they
say it has been a practice that the roster cannot be amended at the
wink of an eye. Nothing
came forth to contradict this and therefore I
agree that the respondent's
version
falls to be accepted in terms of the
Plascon-Evans
rule.
[24]
I am not satisfied that the applicant has
made out a case for the relief sought in this regard.
COSTS
[25]
The applicant cotends that I should award
punitive costs in his favour should I find against the respondent.
There is no justification
for me to ward costs on a punitive scale
against either of the parties.
CONCLUSION AND ORDER
[26]
In the premises I am of the view that the
applicant's application has no merit and it should fail
[27]
Consequently I make the following order:
The application is
dismissed with costs.
KGANKI
PALAMOHLAKA
ACTING JUDGE OF THE HIGH
COURT
Delivered:
this judgment was prepared and authored by the judge whose name is
reflected and is handed down electronically and by
circulation to the
parties/their legal representatives by email and by uploading it to
the electronic file of his matter on Caselines.
The date for handing
down is deemed to be 15 June 2022.
JUDGMENT
RESERVED ON
: 02
February 2022
FOR
THE PLAINTIFF
:
ADV M P VAN DER MERWE SC
INSTRUCTED
BY
: JARVIS JACOBS RAUBENHEIMER INC.
FOR
THE RESPONDENT
: ADV T.A.L.L. POTGIETER SC
INSTRUCTED
BY
: GELDENHYS
MALAT
JI
INC.
DATE
OF JUDGMENT
: 15 June2022
[1]
Founding
Affidavit paragraph 2.6
[2]
(1350/2019)
(2020)
ZA5CA 135 (23 October 2020)
[3]
[2016]
ZASCA
101;
2016
All
SA 382
; 2016(5)
SA
225
(SCA)