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[2021] ZAKZPHC 38
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Shepstone and Wylie Attorneys v Abraham Johannes De Witt N.O and Others (5140/2019) [2021] ZAKZPHC 38 (10 June 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Reportable/Not
Reportable
CASE
NO: 5140/2019
In
the matter between:
SHEPSTONE
& WYLIE ATTORNEYS
APPLICANT
and
ABRAHAM JOHANNES DE
WITT N.O
FIRST RESPONDENT
RAYMOND ERNST VOLKER
N.O
SECOND RESPONDENT
SEBASTIAN SYLVO VOLKER
N.O
THIRD RESPONDENT
THOMAS
PASCAL VOLKER N.O
FOURTH RESPONDNET
ORDER
1.
The respondents’ first point
in limine
is upheld with
costs, such costs to include costs of two counsel.
2.
It is declared that the deed of suretyship dated
23
May 2013
signed by the first respondent and Mrs Renata Mignon
Volker, in their capacities as trustees of the Penvaan Property Trust
in favour
of the applicant, was not duly authorized.
JUDGMENT
delivered on:10 June
2021
BEZUIDENHOUT
AJ
Introduction
[1]
The applicant, Shepstone & Wylie Attorneys, claims judgment
against the
four respondents in their capacities as trustees of the
Penvaan Property Trust (IT No 5932/94) (‘the trust’) for
payment
of various sums of money, totalling R2 589 208.49,
consisting mostly of legal fees and disbursements due to it, based
on a deed of suretyship signed on 25 May 2013.
[2]
The respondents oppose the application. Various factual
disputes emerge from
the papers. The parties, through their
respective counsel, have however agreed that I am at this stage only
required to deal with
and rule on one issue, raised as the first
point
in
limine
in
the respondents’ answering affidavit, namely whether the deed
of suretyship signed on 23 May 2013 by the first respondent,
Mr
Abraham Johannes de Witt (Mr de Witt), in his capacity as a trustee,
and Mrs Renata Mignon Volker (Mrs Volker), at the time
also a trustee
of the trust, was duly authorised by the trust, and hence legally
competent. .
[3]
In terms of the deed of suretyship, which bears the heading
‘Undertaking to
pay fees and suretyship’, the trust
(referred to in the document as the surety) would bind itself jointly
and severally in
favour of the applicant (referred to as the
creditor) as surety for and as co-principal debtor with Mrs Renata
Mignon Volker, (referred
to as the debtor), for
‘
the
due payment of any and all amounts which are now or which at any time
in the future may become due by the debtor to the creditor
in respect
of any indebtedness or obligation of the debtor to the creditor
arising from any cause whatsoever, including but not
limited to any
and all legal costs or disbursements due by the debtor to the
creditor on an attorney and own client basis.’
[4]
At the time the deed of suretyship was signed by the first
respondent and Mrs
Volker as trustees, the trust however also had a
third trustee, namely Mr Thomas Volker (Mr Volker).
[5]
Mr Volker and Mrs Volker were married to each other in community of
property, and
were at the time in the process of getting divorced.
Mrs Volker was being represented by Ms Estelle de Wet, employed as an
attorney
at the applicant. Both Mr Volker and Mrs Volker were also
beneficiaries of the trust.
The Penvaan Property
Trust Deed
[6]
Most clauses in the trust deed are preceded with a heading but I will
only refer to
particular headings when necessary to do so. In terms
of clause 4 of the trust deed, ‘[t]here shall at all times be
not less
than three Trustees of the Trust’.
[7]
In terms of clause 11, the powers of the trustees are set out as
follows:
‘
11.1
Any trustee shall have the power to deal with the Trust property and
Trust income
for the benefit and purpose
of the Trust
in their discretion for
which purpose they are granted all necessary powers and authority
including (but without limitation) the
powers stated in the Appendix.
The powers conferred upon the Trustees shall be complete and absolute
and exercisable in the discretion
of the Trustees;
11.2
The Trustees shall have the power to ratify, adopt or reject in their
discretion, contracts made on behalf
or for the benefit of the Trust,
either before or after its formation.’
(My emphasis.)
Attached
to the trust deed is an appendix which sets out further powers
of the trustees, which will be discussed below.
[8]
Clause 13 deals with the meetings of trustees, and reads as follows:
‘
13.1
The Trustees may meet together for the despatch of business, adjourn
and otherwise regulate their meetings as they
think fit. Any Trustee
shall be entitled on reasonable written notice to the other Trustees
to summon a meeting of the Trustees.
All Trustees for the time being
in the Republic of South Africa shall be given reasonable notice of
any meeting of the Trustees.
13.2
Subject to 5 above, the quorum necessary at any such meeting shall be
three Trustees.
13.3 A
Trustee may be represented at a meeting of Trustees by a proxy
appointed as such in writing.
13.4 A
written resolution signed by all Trustees for the time being or their
respective alternates or proxies
shall be as effective as a
resolution taken at a meeting of Trustees.’
Clause
13.2 was amended in terms of an amendment to the trust deed signed on
or about 26 June 1998, to require a quorum of only
two trustees at a
meeting of trustees.
[9]
In terms of clause 14, all negotiable instruments, contracts, deeds
and other documents
which are required to be signed on behalf of the
trust, ‘shall be signed by at least two Trustees’.
[10]
Clause 16, under the heading ‘Disagreement between trustees’
deals with the eventuality
of a disagreement between trustees, and
states as follows:
‘
16.1
At and for each meeting of Trustees, the Trustees present, in person
or by proxy, shall elect a Chairperson, provided
for as long as
Thomas Wilhelm Volker is a Trustee, he shall be Chairperson.
16.2
In the event of any disagreements arising between the Trustees at any
time the view of the majority shall
prevail. Should there be an
equality of votes, the Chairperson shall have a second or casting
vote.’
[11]
In terms of clauses 23 and 24, under the heading ‘Distribution
of Income and Trust Property’,
the trustees were entitled to
use, pay or apply the income of the trust or the whole or portion of
the trust property for the ‘welfare’
of its
beneficiaries. ‘Welfare’ was included to mean ‘the
benefit, comfort, maintenance, education, advancement
and pleasure’
of the beneficiaries, as well as all purposes which the trustees may
consider to be in the interest or for
the advantage of the
beneficiaries.
[12]
The appendix attached to the trust deed sets out the powers of
the trustees in detail.
Its introduction reads as follows:
‘
Without
prejudice to the generality of any of the provisions of the
accompanying Deed constituting the above Trust the Trustees
shall
have the following powers which shall be exercisable in their sole
and absolute discretion
for the purpose
and benefit of the Trust
.’ (My
emphasis.)
[13]
In terms of clause 11 of the appendix, the trustees were given the
power ‘to defend, oppose,
compromise or submit to arbitration
all accounts, debts, claims, demands, disputes, legal proceedings and
matters which may subsist
or arise between the Trust and any person’.
[14]
Clause 19 of the appendix deals with the trustees’ power to pay
out of the funds of the
trust all debts incurred on behalf of the
trust by the trustees in the bona fide exercise of their powers.
[15]
Clause 25 of the appendix gives the trustees the power ‘to
contract on behalf of the Trust’
and to ratify, adopt or reject
contracts made on behalf of or for the benefit of the trust, either
before or after its formation.
[16]
Clause 26 of the appendix does not set out a particular power, but
rather appears to possibly
prescribe how the powers set out in the
preceding twenty five clauses should be exercised. It reads as
follows:
‘
Provided
the Trustees unanimously agree, to conduct business on behalf of and
for the benefit of the Trust, and to employ Trust
property in such
business.’
The 2013 litigation
[17]
It is important to deal with the events that led to the signing of
the deed of suretyship. In
2013, Firstrand Bank Ltd brought an
application in this court under case no 4035/2013 for the
sequestration of the trust. The three
trustees at the time were Mr
Volker, Mrs Volker and Mr de Witt.
[18]
Mr Volker was cited as first respondent in his capacity as trustee
and did not oppose the application.
Mrs Volker and Mr de Witt, cited
as second and third respondents, opposed the application on behalf of
the trust. Poyo Dlwati AJ,
dealt with the question as to
whether the second and third respondents had the authority to
instruct Shepstone and Wylie
to act for the trust and to oppose the
application for sequestration. It was raised by Firstrand Bank Ltd as
a point
in
limine
,
which point Poyo Dlwati AJ dismissed.
[19]
When dealing with her reasons for dismissing the point
in
limine
,
Poyo-Dlwati AJ referred in detail to a meeting of trustees held
on 25 May 2013, at which meeting it was inter alia resolved
to oppose
the proceedings instituted by Firstrand Bank Ltd, appoint
Shepstone and Wylie to represent the trust in those proceedings,
and
to sign the deed of surety which is the subject of the current
proceedings.
[20]
It appears that around 16 May 2013, Mrs Volker gave notice of a
meeting of trustees to be held
on 23 May 2013 for the purpose of
debating and passing three resolutions namely that:
(a)
the trust resolves to oppose the
sequestration proceedings instituted by Firstrand Bank Ltd;
(b)
the trust ratifies the signature of the
power of the attorney signed by Mrs Volker and Mr de Witt on 16 May
2016; and
(c)
the trust resolves to sign ‘the
attached suretyship agreement’.
[21]
Poyo Dlwati AJ said the following at para 3 of her judgment:
‘
The
first respondent supports the sequestration of the trust and in my
view nobody could have expected him to arrange a meeting
that would
be contrary to his wishes. The second respondent then took it
upon herself to facilitate a meeting of the trustees
as urgently as
possible but the first respondent was constantly unavailable despite
the urgency of the meeting . . . If the first
respondent wanted to
attend any trust meeting, he would have attended the meeting or at
least sent a proxy once he realized his
difficulty in attending the
meeting. He knew of the looming meeting as early as 14
th
May 2013 but instead of suggesting earlier dates he suggested dates
further from those upon which respondents were to file their
answering papers.’
[22]
From the papers before me and from the judgment, it is clear that
after the meeting of trustees
was scheduled for 23 May 2013, it was
moved to Saturday, 25 May 2013 as a result of Mr Volker’s
unavailability. It
is common cause that the meeting on 25 May 2013,
at which the resolutions referred to above were taken was
attended only
by Mrs Volker and Mr de Witt..
[23]
Poyo Dlwati AJ made the following finding regarding the meeting, and
the consequences thereof:
‘
As
held in
Van der Merwe NO and Others v
Hydraberg Hydraulics CC and others; Van der Merwe NO and others v
Bosman and others
2010(5) SA 555 (WCC)
at para 16 that in order to qualify as a meeting all trustees in the
office would have to receive notice thereof
so as to be able to
participate in it if they so wished. The first respondent did
receive such a notice but was not available
to attend the meeting
instead he sent an email dated 21 May 2013 outlining his views.
Accordingly, I have no doubt in my
mind that the first respondent has
participated and his views were known in the meeting. In my
view, therefore, the trustees
acted jointly even though there was no
unanimity.’
[24]
Poyo Dlwati AJ also dealt with an argument raised relating to the
absence of Mr Volker at the
meeting with reference to clause 16.1 of
the trust deed, in terms of which ‘he shall be Chairperson’
at and for each
meeting of trustees. It was argued that the meeting
on 25 May 2013 was void as a result of Mr Volker’s absence. The
learned
judge held:
‘
Clause
16.1 in my view envisages a situation where the first respondent is
in fact present in a meeting otherwise one will have
to accept that
the trustees cannot hold a meeting in the absence of the first
respondent. The trust deed does not provide for this.’
After discussing the
language used in clause 13.1 and 16.1 and the authorities dealing
with the interpretation of clauses, she found:
‘
As
required by the provisions of the trust deed two trustees resolved
that the sequestration application of the Trust be opposed
and for
this purpose Shepstone and Wylie attorneys were duly authorised to
oppose the application, hence I dismiss the point in
limine.’
[25]
It was submitted by Mr Skinner SC, appearing on behalf of the
applicant before me, that I was
bound by the findings of Poyo Dlwati
AJ and that the deed of suretyship signed by Mrs Volker and Mr de
Witt was duly authorised.
It is clear from the judgment that the
validity of the resolution to sign the deed of suretyship was at no
stage considered by
Poyo Dlwati AJ.
[26]
Whereas the resolutions dealing with the opposition of the
sequestration proceedings were clearly
to the benefit of the trust,
and in fact proved to be well taken as the application for
sequestration was dismissed, thus saving
the assets of the trust from
creditors, the same cannot be said of the deed of suretyship, which
would be saddling the trust with
Mrs Volker’s debts.
[27]
As far as Poyo Dlwati AJ found that that Mr Volker participated in
the meeting, I respectfully
disagree. In the email dated 21 May 2013,
upon which reliance was placed, Mr Volker informs Mrs Volker and Mr
de Witt inter alia
that he is not able to attend the meeting that
week and that he will supply dates ‘well in advance’.
Nothing is mentioned
about what is set out in the notice of the
meeting of trustees sent out by Mrs Volker nor is any view expressed
in relation thereto.
One can however infer from the fact that he was
not opposing the sequestration application that he would also not be
agreeable
to the resolution proposing the opposition thereof. But
that is as far as it goes.
[28]
The deed of suretyship potentially imposes a significant obligation
on the trust in that it accepts
liability as surety and co-principal
debtor for Mrs Volker’s debts to the applicant. Mr
Volker’s views regarding
the deed of suretyship which was
attached to the notice of the meeting are not known.
Discussion
[29]
It is the applicant’s case that decisions by the trustees must
be made jointly but not
unanimously. Poyo Dlwati AJ also found that
the trustees acted jointly ‘even though there was no
unanimity’.
[30]
Counsel for the applicant also placed great reliance on another
decision of this division, namely
that of D Pillay J in
Le Grange
and another v The Louis and Andre Le Grange Family Trust and others
[2017] ZAKZPHC 2 paras 20-21:
‘
.
. . the fourth respondent was aware of these proceedings when the
application was served on him in July 2016. If not by 22 July
2016
when second and third respondents adopted the resolution to litigate
then certainly by 11 January 2017 when they sought ratification
he
had an opportunity to participate in the decision on behalf of the
first respondent. He consciously chose to abstain. The same
attorneys
for the first to third respondents represent him. His attorneys asked
him to support their case with a confirmatory affidavit
but none has
been forthcoming. Even though the fourth respondent did not attend
meetings of the trustees he was aware of resolutions
that were being
proposed and had an opportunity to participate in the decision by
abstaining.
[21]
He has a fiduciary and professional duty to respond to these
proceedings and he has done so by abstaining. . .’
[31]
It appeared from the facts of that case that the fourth respondent
actively abstained from voting on any
matters pertaining to the
particular case, and also did not sign the relevant resolution. The
trust deed also contained a specific
clause requiring resolutions to
be supported by majority vote. D Pillay J sounded a warning against
the ‘tyranny of the majority’
and also over putting form
over substance, and said the following at para 23:
‘
In
these circumstances the decision of the trust to litigate and to
appoint attorneys is manifest from the resolution signed by
the
majority of two trustees, the emails from the fourth respondent and
his conduct in allowing the litigation to proceed unimpeded.
To
insist on having the fourth respondent’s signature on the
resolution would amount to putting form over substance.’
[32]
The learned judge continued to address the constitutional issue of
access to courts and said
the following at para 26:
‘
All
the objections the applicants raise against the resolutions are
formal; substantively the fourth respondent received notice
and
participated in the decision on behalf of the first respondent by
abstaining. Therefore they are not reasonable and justifiable
limitations sufficient to occlude the first to fourth respondents
from exercising their right of access to the court.’
[33]
The facts of
Le Grange
differ from those of the present matter before me, as the relevant
trustee in
Le Grange
by all accounts actively abstained from taking part in any voting
regarding the particular matter, which cannot be said of Mr Volker.
[34]
The principle that trustees must act jointly is part of our common
law, and was reaffirmed in
the decision of
Land Agricultural Bank
of South Africa v Parker and others
2005 (2) SA 77
(SCA) para 15,
where the following was said by Cameron JA (footnotes omitted):
‘
It is a
fundamental rule of trust law, which this Court recently restated
in
Nieuwoudt and Another NNO v Vrystaat Mielies (Edms)
Bpk
, that in the absence of contrary provision in the trust
deed the trustees must act jointly if the trust estate is to be bound
by their acts. The rule derives from the nature of the trustees'
joint ownership of the trust property. Since co-owners must act
jointly, trustees must also act jointly.’
Joint
(‘jointly’ being an adverb of ‘joint’) has
been defined in legal terms as ‘A combined, undivided
effort or
undertaking involving two or more individuals. Produced by or
involving the concurring action of two or more.’
(see The Free
Dictionary-Legal –Dictionary,
https://legal-dictionary.thefreedictionary.com/joint
)
The Oxford Paperback
Thesaurus 3ed (2006) lists the following similar words for jointly.
‘
Together,
in partnership, in cooperation, cooperatively, in conjunction, in
combination, mutually’.
In
the present matter before me, it appears that only two of the three
trustees acted jointly.
[35]
The writers Cameron, De Waal and Solomon in
Honoré’s
South African Law of Trusts
6 ed (2018) discuss the conduct of
trust affairs and in particular its internal business at page 375
onwards and in particular
seek to draw analogies from the law
relating to voluntary associations. The following is said at page 377
(footnotes omitted):
‘
The
conduct of a voluntary association rests on the basis that, apart
from contrary provision in its constitution, the majority
can bind a
minority of dissentients. In procedural questions, such as the
appointment of a chairperson, a similar rule clearly
applies to
trustees. But unless the trust instrument so provides- as it usually
does- it is doubtful whether matters of substance
can be regulated by
majority decisions.’
And also further at 378:
‘
.
. . it has been inferred, in our view correctly, that the basic rule
for the conduct of a trust is that decisions of substance
must be
reached unanimously, and that in order to bind the trust the trustees
must act jointly.’
The
writers at 379-380 referred to the decision of
Coetzee
v Peet Smith Trust en andere
2003 (5)
SA 674
(T) where the court confirmed the principle of unanimity, in
the absence of the trust instrument being clear as to whether a
decision
could be taken
validly
b
y a majority of trustees..
[36]
When dealing with outsiders, ‘. . . trustees must act jointly
in their dealings . . .
if they are to bind the trust
estate by their acts’. (
Honoré
supra
at
page 380) The authors refer extensively to the decision of
Parker
supra,
and state at pages 381-382 that
‘[a] trust instrument which makes provision that decisions can
be taken by a majority vote
consequently partly abrogates the
joint-action principle.’ (footnotes omitted.)
[37]
Both Poyo Dlwati AJ in the sequestration application judgment
and D Pillay J in
Le Grange supra
, as well as counsel for the
applicant, placed great reliance on
Van der Merwe NO and others v
Hydraberg Hydraulics CC and others; Van der Merwe NO and others v
Bosman and others
2010 (5) SA 555
(WCC) para 16, where the
following was said by Binns-Ward J (footnote omitted):
‘
It
is evident, however, that, in order to qualify as “a meeting”,
all the trustees in office would have to receive notice
thereof so as
to be able to participate in it if they so wished. Slabbert did not
receive any such notice and was therefore not
afforded an opportunity
to participate in the decision by the Trust to sell the fixed
property. The terms of the trust instrument
which provide for the
trustees to make decisions by a majority vote at a quorate meeting do
not provide an exception to the
rule that all the trustees must act
jointly; they merely provide that, subject to the indemnity in clause
5.7, a majority decision
will bind the dissenting or absent trustees.
The minority is obliged to act jointly with the other trustees
in executing the
resolution adopted by the majority.’
The
trust instrument contained a clause which made it clear that the
decisions of the majority of trustees present at a meeting
shall
prevail (see
Van der Merwe supra
para
15).
[38]
Mr Roberts SC, counsel for the respondents, referred me to
Steyn
and others NNO V Blockpave (Pty) Ltd
2011 (3) SA 528
(FB) paras
37-38 where Rampai J said the following:
‘
[37]
I wish to add . . . that a trust operates in two different
spheres. Internally, trustees may disagree. A matter on the
agenda
may be debated. If the trustees are not unanimous, a matter must be
put to a vote. The majority vote then prevails as the
decision of the
trustees. The dissenting trustee has to subject himself to the
democratic vote of the majority.
[38] Externally, trustees
cannot disagree. The internal split decision becomes the resolution
of the trust in its dealing with the
world at large. The dissenting
trustee is just as bound by the resolution as those who had supported
it all along during the debate
in the internal sphere. In the
external sphere the trust functions by virtue of its resolutions,
which have to be supported by
its full complement of the trust body.
A quorate meeting of trustees may take a valid decision on the
internal front. However,
such a decision will remain only a decision,
and not a valid resolution, unless it also enjoys the support of an
absent trustee(s)
in whose absence it was taken.’
The
trust deed in that matter contained a clause requiring a unanimous
decision when there were three trustees in office.
Analysis
[39]
In returning to the trust deed in the matter before me, two clauses
are material, namely clause
16.2, in terms of which the view of the
majority shall prevail, and clause 26 of the appendix which requires
the trustees to agree
unanimously.
[40]
Clause 16.2 appears under the heading ‘Disagreement between
Trustees’. Clause 26
appears in the appendix setting out the
powers of the trustees in the preceding 25 clauses.
[41]
Counsel for the applicant relied on clause 16.2 for his submissions
that the decision of the
two trustees, Mrs Volker and Mr de Witt, at
the meeting of 25 May 2013 to sign the deed of suretyship, was
validly taken and binding
on the trust, together with the fact that a
quorum of only two trustees was provided for. It was also submitted
that clause 26
in the appendix relied upon by counsel for the
respondents, only related to when the trust was conducting its
business and was
employing trust property in such business, which the
decision to sign the deed of suretyship was not.
[42]
It was also submitted on behalf of the applicant that one of the
purposes of the trust was to
act for the benefit of its
beneficiaries, of whom Mrs Volker was one.
[43]
Counsel for the respondents referred me to clauses 11.1 and 11.2 of
the trust deed which made
it clear that the powers of the trustees
had to be exercised for the benefit of the trust. He submitted that
agreeing to pay the
debts of a trustee can never be for the benefit
of the trust. I agree with this submission but one has to bear in
mind that the
trust deed makes provision for applying income for the
‘welfare’ of beneficiaries. It is debatable as to whether
this
would include accepting liability for a beneficiary’s
legal fees especially when there is no indication that any amount was
mentioned to indicate the extent of this liability. The overall
powers of the trustees are however directed towards the benefit
of
the trust.
[44]
With reference to clause 26 of the appendix, counsel for the
respondents further submitted that
it is clear that the powers of the
trustees had to be exercised through a unanimous decision for the
benefit of the trust.
As mentioned above, the clause commenced
with the word ‘Provided’.
The
word ‘provided’ appears to have been used as a
conjunction, meaning generally ‘on condition that’ or
‘on
condition or understanding that’ (see R D Claasens
Claasen’s
Dictionary of Legal Words and Phrases
(Service Issue 23, June 2020), and
Oxford
South African Concise Dictionary
2 ed
(9
th
impression (2010)) and the question will be whether it relates to all
the powers set out in the preceding clauses or simply to
what is
contained in the remainder of clause 26.
[45]
It is in my view clear from the wording of the heading to clause 16.1
and 16.2 and clause 16.2
itself, that the view of the majority shall
only prevail in the event of a disagreement between the trustees.
In
Sentinel Mining Industries Retirement
Fund V. Waz Props
2013 (3) SA 132
SCA
at
para 10 it was held that in the absence of express provisions to the
contrary, headings in contracts can be taken into account
in
interpreting a contract and that where the heading and provisions can
be read together, it should be done.
[46]
There is no indication that the trustees disagreed on the issue of
the signature of the deed
of suretyship. It was not referred to in
the email written by Mr Volker on 21 May 2013, and there is no
indication that he chose
to abstain from the particular decision. He
simply did not participate in the meeting.
[47]
D Pillay J in
Le Grange supra
para 11 stated, with reference
to the decision of
Van der Merwe supra
paras 16-7, that
‘
even
if the majority of trustees arrive at a decision but without the
participation of all the trustees, unless the trust deed authorises
otherwise, the ensuing decision albeit a decision of the majority is
not a decision on behalf of the trust’.
[48]
In my view, the trustees had to act unanimously when it came to
exercising a power which had
the effect of making the trust liable
for Mrs Volker’s debts. Even if I am wrong, and clause 26 is in
fact not applicable
to the exercise of the trustees’ powers in
this regard, in the absence of any other clauses in the trust deed,
the general
principle prevails, namely that decisions must be reached
unanimously and the trustees must act jointly. This was not the case
with the decision and the subsequent resolution authorising the
signing of the deed of suretyship. The signing of a deed of
suretyship
is furthermore clearly a matter of substance as envisaged
in by
Honoré
supra
at
377, and at 381. As mentioned above, there was no indication of a
disagreement and accordingly clause 16 does not come into
play.
[49]
I am accordingly of the view that the deed of suretyship signed by
Mrs Volker and Mr de Witt
was not duly authorised and is not legally
competent.
[50]
I was not addressed on the question of costs. In my view there is no
reason to deviate from the
general rule that costs follow the
event.
[51]
I make the following order:
1.
The respondents’ first point
in limine
is upheld with
costs, such costs to include costs of two counsel.
2.
It is declared that the deed of suretyship dated
23
May 2013
signed by the first respondent and Mrs Renata Mignon
Volker, in their capacities as trustees of the Penvaan Property Trust
in favour
of the applicant, was not duly authorized.
BEZUIDENHOUT
AJ
APPEARANCES
Date of hearing
: 30
April
2021
Date
of judgment :
10 June 2021
For Applicant :
Adv. B Skinner
Instructed by :
SHEPSTONE & WYLIE ATTORNEYS
c/o:
SHEPSTONE & WYLIE ATTORNEYS
First
Floor, Absa Building
15
Chatterton Road
PIETERMARITZBURG
Tel:
033 – 355 1780
Fax:
033 – 355 1799
Email:
jmanuel@wylie.co.za
Ref:
VOLK19866.1
For Respondents:
Adv.M G Roberts SC & Adv E
Roberts
Instructed by :
MOOLMAN & PIENAAR ATTORNEYS
c/o:
TATHAM WILKES INC.
200
Hoosen Haffejee Street
PIETERMARITZBURG
Ref:
MD Harris/Gisela/13T0736/18