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[2021] ZANCHC 43
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Derrick Giyose t/a Giyose Holding Consultants and Associates v Master of the High Court, Kimberly and Another (2137/2019) [2021] ZANCHC 43 (1 October 2021)
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IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO.: 2137/2019
Date heard: 12-03-2021
Date delivered:
01-10-2021
In
the matter between:
Derrick
Giyose t/a Giyose Holding
Applicant
Consultants
& Associates
and
Master of the High
Court,
Kimberley
1
st
Respondent
Longlands Development
Trust
2
nd
Respondent
CORAM:
WILLIAMS J:
JUDGMENT
WILLIAMS
J:
1.
During November 2017, the applicant, Mr
Derrick Gioyse t/a Giyose Holding Consultants and Associates who
renders consulting and
investigation services, was appointed by the
Master of the High Court, the 1
st
Respondent, as an investigator into the affairs of the 2
nd
respondent, the Longlands Development Trust (the Trust) as a result
of some conflict between the trustees of the Trust and other
alleged
irregular activities.
2.
The applicants’ appointment was made in terms of s 16 (2) of
the Trust
Property Control Act 57 of 1988 (the Act). For the sake of
convenience I reproduce the entire s 16 of the Act as follows
16.
Master may call upon trustee to account.
—
(1)
A trustee shall, at the written request of the Master, account to the
Master to his satisfaction and in accordance with the
Master’s
requirements for his administration and disposal of trust property
and shall, at the written request of the Master,
deliver to the
Master any book, record, account or document relating to his
administration or disposal of the trust property and
shall to the
best of his ability answer honestly and truthfully any question put
to him by the Master in connection with the administration
and
disposal of the trust property.
(2)
The Master may, if he deems it necessary, cause an investigation to
be carried out by some fit and proper person appointed by
him into
the trustee’s administration and disposal of trust property.
(3)
The Master shall make such order as he deems fit in connection with
the costs of an investigation referred to in subsection
2.
3.
During and upon conclusion of the
investigation the applicant submitted certain preliminary and
interim
reports and a final report on 30 May
2018 to the Master regarding the investigation. Thereafter the
applicant submitted an invoice
for his services to the Master in the
amount of R1 188 258, 35.
4.
The Master has to date refused to pay the applicant hence this
application in
which the applicant seeks the following relief:
(1)
An order declaring that the 1
st
respondent is liable for the payment of the invoice for the
investigation services rendered by the applicant to and in favour of
the 1
st
Respondent.
(2)
Alternatively, declaring whether paragraph
4 of this Honourable Court’s order granted by the Honourable
Acting Justice Coetzee
on the 31 May 2018, attached hereto marked
“DG-1”, has the effect of indemnifying the 1
st
respondent herein against liability and payment of costs incurred by
the 1
st
respondent payable to the applicant.
(3)
Ordering the 1
st
respondent to pay an amount of R1 188 258, 35 to the
applicant in terms of the invoice attached hereto marked annexure
“
DG
-2”
within 7 (seven) days from
the date of the granting of the court order.”
5.
The court order mentioned in the
applicant’s Notice of Motion relates to an application under
case no 143/18, which served
before Coetzee AJ regarding the dispute
between the trustees of the Trust, which gave rise to the appointment
of the applicant
by the Master. The Master was cited therein as the
12
th
respondent.
6.
The abovementioned application was brought
by nine of the trustees against ten of the trustees during January
2018, some two months
after the appointment of the applicant by the
Master. It appears from the portions of the application under case no
143/18 which
have been annexed to the application
in
casu
that that application had been
postponed on several occasions awaiting the finalization of the
applicant’s report.
7.
After the applicant’s final report
was delivered and on 31 May 2018, the parties negotiated a settlement
which was made an
order of court and of which paragraph 4 of the
order is relevant to these proceedings. It reads as follows:
“
4.
The Longlands Development Trust No IT6/2000 is hereby ordered and
directed to pay the investigation costs
incurred by the Twelfth
Respondent.”
8.
The applicant was not a party to the
application under case no 143/18, though he was by virtue of his
appointment as investigator,
aware of the proceedings. In fact, the
applicant in his address in court stated that he had met with the
trustees regarding the
application and had encouraged the settlement
of the matter.
9.
Be that as it may, the applicant states
that he submitted an invoice for his services to the Master on 4
September 2018, which invoice
has remained unpaid.
10.
On 8 July 2019 the applicant sought to have
his investigation costs taxed and served a Notice of Taxation on the
Master.
11.
On 29 August 2019 the Taxing Master of this
court notified the applicant that the bills presented fall outside
the ambit of a Taxing
Master’s powers and functions.
12.
This application was then launched. The
applicant’s main contentions in support of the relief sought
are (i) that the appointment
by the Master of the applicant to render
services to the Master created a contractual relationship between the
two parties to the
effect that once the applicant had rendered such
services he would be duly compensated by the Master; and (ii) that
the court order
of 31 May did not absolve the Master from his
contractual obligation to pay the applicant’s fees.
13.
In dealing with the applicants’ first
argument it is necessary to have regard to the letter of appointment
issued by the Master
on 7 November 2017. The relevant portion reads
as follows:
“
LONGLANDS
DEVELOPMENT TRUST
The abovementioned
trust refers;
You are hereby
appointed as an investigator in terms of Section 16(2) of the Trust
Property Control Act No 57/1988, as amended.
You need to
investigate the nomination procedure and the authenticity thereof and
the appointment of trustees in my office.
You also need to
investigate whether there is irregular administration taken place in
this trust.
You need to report
back to me on or before 31 January 2018, in order to consider whether
any further steps may be considered.
If necessary, you need
to apply to me timeously, for an extension of this investigation
report to be lodged with me.”
14.
The applicant is not ignorant of the
provisions of s 16 of the Act. In fact it would appear from his
address to court that he had
previous experience as an investigator
under s 16. The applicant is also well aware that s 16(3) empowers
the Master to make an
order he deems fit in connection with the costs
of an investigation. Nowhere in the letter of appointment does the
Master relinquish
this discretion.
15.
The high water mark for the applicant’s
submissions lies in the order granted by Coetzee AJ. In this regard
the applicant
takes the point that the order confirms that the Master
is contractually responsible for his fees in that paragraph 4 of the
order
directs the Trust to pay the investigating costs “
incurred”
by the Master. The argument goes a step further however in that by
abiding with the order made, the Master had abandoned his discretion
to determine who would be liable for the costs of the investigation.
16.
The argument appears to be rather
contradictory. If the Master is recognized to have had a discretion
in the matter when the applicant
accepted the appointment, when did
the contractual relationship between the parties ensue?
Surely
not when Coetzee AJ granted the order. The court is not there to make
contracts between parties and in any event the applicant
was not even
a party in that application. The Master in his answering affidavit
states that he had already at the time the order
was taken decided,
in the exercise of his discretion, that the Trust should pay the
costs of the investigation. This decision,
the Master states, was
made known to Coetzee AJ and was then by agreement between the
trustees incorporated into the order granted.
It is therefore not a
case of the Master having abandoned his discretion. The applicant had
chosen not to file a replying affidavit
and as such the Master’s
version stands uncontroverted and there is nothing in the Master’s
allegations which is so
far fetched or so clearly unentenable that it
warrants its rejection merely on the papers. (See
Plascon-Evans
Paints Ltd v V Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
AD at 634H
to 635 C).
17.
To compound matters for the applicant, the
trustees had written a letter which is attached to the Master’s
answering affidavit
and is stamp dated by the Master’s Office
on 2 August 2019, wherein they state
inter
alia
that:
“
It
was agreed in the aforementioned case (
before
Coetzee AJ
) and the said Agreement made
an order of court that the Longlands Development Trust shall bear the
costs of the investigator appointed
by the Master to look into the
affairs of the Trust.”
(own insertion in
brackets)
18.
I pause at this stage to mention that the
applicant had filed a supporting affidavit during November 2020,
deposed to by one of
the trustees, Mr Attie Gert, on behalf of four
of the trustees. The supporting affidavit is a diatribe against the
Master and the
continued shenanigans of one of the trustees and in
the main has nothing to do with the issues in this application. The
only aspects
relating to the application
in
casu
are that (i) these four trustees
quite opportunistically and cryptically state that they support the
applicant in this application
that the Master pay the investigation
fees, despite having agreed to the order made by Coetzee AJ; and (ii)
they ask to be joined
in the application whilst they are already
parties to the application. Ms Olivier for the Master correctly
requested that this
affidavit be ignored due to its irrelevance.
19.
One should not lose sight of the fact that an investigation under s
16(2) of the Act is
in furtherance of the Master’s statutory
entrusted supervisory role over trustees and not for his office’s
benefit.
The applicant, as already stated is not unaware of the
functions and powers of the Master but it would appear that his main
concern
is the alleged inability of the Trust to pay the costs of the
investigation. In his own words he argued that “
the Trust is
insolvent”
, “
the Trust is a person of straw”,
“
the trustees have no money to pay” and “they
always end up fighting.”
20.
The applicant therefore expects that the Master recover his fees from
the Trust and then
pay him, based on the perceived “
contractual”
relationship between the parties. In Honore’s The South African
Law of Trusts; 5
th
ed, the authors say the following at p
415 thereof:
“
The
Act provides that the Master is to make such order as he or she deems
fit in connection with the costs of the investigation.
Thus the
Master may order them to come wholly or in part out of the trust
property or the income from it, or may impose them wholly
or partly
on the trustee to be paid personally (de bonis propriis), or may
order them to be paid by the person at whose instance
the
investigation took place. The Master’s decision is subject to
challenge by a trustee who feels aggrieved.”
21.
Section 23 of the Act makes provision for any person who is aggrieved
by an order of the
Master to apply to court for relief. The section
reads as follows:
“
23.
Access
to court
. – Any person who
feels aggrieved by an authorization, appointment or removal of a
trustee by the Master or by any decision,
order
or direction of the Master made or issued under this Act, may apply
to the court for relief, and the court shall have the power
to
consider the merits of any such matter, to take evidence and to make
any order it deems fit.”
(Own underlining)
22.
What s 23 envisions is a form of judicial review at the instance of
any person aggrieved
by the Master’s decision. The provisions
of s 23 could have assisted the applicant in his quest to have the
Master’s
order reassessed. In
Fesi and Another v Trustees
Elect of the Ndabeni Comunual Property Trust (IT 1056/98
[2018]
JOL 39823
(SCA), the Supreme Court of Appeal discussed the nature of
the review envisioned in terms of s 23 of the Act in paragraphs 54
and
55 thereof. The SCA supports the view of Honore (at page 251 of
the work), that all the Master’s decisions in terms of the
Act
are subject to reassessment by the Court and “
that the
substantive justification for any action the Master may be
scrutinized. The applicant will in other words not have to establish
that the Master committed a reviewable irregularity but only that
there are grounds for the court to substitute a decision it considers
better. The court is expressly empowered to ‘consider the
merits’ of the matter, to take evidence and to make ‘any
order it deems fit’. This goes further than the entitlement to
administrative justice now embodied in statute under the
Constitution.”
23.
In the circumstances the relief sought by the applicant is
unsustainable and the application
must fail.
24.
The only outstanding issue is that of the costs of the application.
There is no reason why
costs should not follow the result. Ms Olivier
alerted me to the reserved costs of 9 October 2020, when the matter
served before
Mamosebo J. On that date the matter was postponed and
the applicant ordered to pay the wasted costs occasioned by the
postponement.
The issue of the costs of the service of the Notice of
Set Down was reserved for later determination. Ms Olivier submitted
that
after the applicant’s erstwhile attorneys withdrew, the
applicant failed to enrol the application. It became encumbent on
the
State Attorney (acting for the Master) to arrange dates for the
hearing of the application and serve a Notice of Set Down on
the
applicant. The sheriff then experienced certain difficulties in
serving the notice on the applicant’s stated address
contained
in the previous attorney’s notice of withdrawal. The applicant
in fact admitted that he had been evading the sheriff
because of
other legal difficulties he was experiencing. In these circumstances
it would only be fair and appropriate that the
applicant bear the
costs relating to the sheriff’s service of the Notice of Set
Down.
In
the circumstances the following order is made;
The
application is dismissed with costs, inclusive of the costs of the
service of the Notice of Set Down.
CC
WILLIAMS
JUDGE
For
Applicant:
In Person
For
1
st
Respondent: Ms M Olivier
Office of the State
Attorney