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[2019] ZAGPPHC 267
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Brouwer NO v Van Heerden and Others (62130/2014) [2019] ZAGPPHC 267 (27 June 2019)
IN THE HIGH COURT OF THE
REPUBLIC OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE NO: 62130/2014
27/6/2019
In
the matter between:
JOHAN
BOUWER N.O.
Applicant
and
MIRANDA
VAN HEERDEN
First Respondent
QUERIDE
JANSE VAN VUUREN
Second Respondent
QUINTELEN
VAN HEERDEN
Third Respondent
LINDA
MIFANWY VAN HEERDEN N.O.
Fourth
Respondent
LINDA
MIFANWY VAN HEERDEN
Fifth Respondent
JUDGMENT
LOUW,
J
[1]
The first respondent was previously
married in community of property to Mr. Petrus Arnoldus Van Heerden .
Their marriage was dissolved
by order of this court on 30 August
2016. The divorce order incorporated a settlement agreement in terms
whereof it was agreed
that their joint estate would be divided
equally between them. The settlement agreement recorded that the
parties could not agree
on the value of the joint estate and that the
applicant be appointed as referee to determine the value of the joint
estate and
then to divide it equally between the parties. The
applicant is a registered professional
forensic accountant. The settlement agreement provides that he shall
have the powers set
out in an annexure thereto, referred to as
"Aanhangsel 1".
[2]
The joint estate includes the following
assets:
•
A
small citrus farm near Brits on which the parties conducted a
business known as Harley 's Family Restaurant and Accommodation.
A
workshop/storage facility was rented out until recently. A variety of
citrus fruits are produced on the property and the joint
estate also
derived an income from a billboard on the premises.
•
Two
houses, one in Rustenburg and one in Hartbeespoort, that are rented
out.
•
Numerous
movable items such as vehicles, furniture, equipment and farming
implements.
[3]
The applicant attempted to negotiate a
settlement between the parties. Initially, the idea was to include
the assets of the Q2 Trust
in which the parties and their two
daughters, the second and third respondent s, were the beneficiaries.
No agreement could be
reached on the value of the trust assets and it
was then decided to exclude the trust assets. A problem then arose
that it could
not be established what the amount of the loan account
of the joint estate in the trust was. It appeared that the auditors
of the
trust would have to redo the financial statements of the trust
for a period of about 10 years in order to reflect the loan account
in the trust's financial statements.
[4]
By June 2017, it became clear that the
auditors would not be able to produce a new set of financial
statements for the trust as
they were unable to obtain the required
information from the parties. Negotiations between the parties
continued through the medium
of the applicant on the basis of certain
valuations provided by Mr. Van Heerden. On 11 September 2017, the
applicant prepared a
document titled "Composition and Value of
Estate ". This was the fourth such document which the applicant
produced, each
time giving the parties the opportunity to discuss the
content with their attorneys and to give him feedback. Mr. Van
Heerden responded
to the third document, dated 21 July 2017, stating
that if his proposals would be worked into the document he would
accept it.
Furthermore, that if the first respondent would accept the
document and agree on a division of the joint estate on the basis
thereof,
then he would put the farm up for sale, together with the
businesses conducted thereon, so that the proceeds thereof could be
divided
between them. He further proposed a value for the loan
accounts against the trust in the amount of R2,51 million.
[5]
Mr. Van Heerden's response to the third document caused the applicant
to prepare the
fourth document dated 11 September 2017 . On 21
September 2017, Mr. Van Heerden informed the applicant that he
accepted the document.
The first respondent, however, was not
prepared to accept it. She, instead, proposed that all the assets of
the joint estate should
be sold.
[6]
On 10 November 2017, the applicant
telephoned Mr. Van Heerden in order to obtain a comprehensive
settlement offer from him which
could obviate the need to resolve all
disputes between the parties. What gave rise to the telephone call
was that it appeared that
Mr. Van Heerden was to be hospitalised and
to undergo a serious operation on 12 November 2017. On the same day,
Mr. Van Heerden
sent an email to the applicant in which he objected
to the urgent request so shortly before his operation. He
nevertheless proceeded
to furnish some information and a proposal,
with some motivation, referring inter alia to discussions between him
and the first
respondent in respect of certain assets. The next day,
11 November 2017, Mr. Van Heerden addressed a further email to the
applicant
in which he requested the applicant to hold over the
division of the joint estate until he made contact wit h the
applicant after
his operation.
[7]
It subsequently appeared that Mr. Van
Heerden was undergoing treatment for cancer, that his prognosis was
not good and that he did
not want to spend his last days attending to
the division of the joint estate. He eventually passed away on 7
April 2018 without
having made any further attempt to take the
division of the joint estate forward.
[8]
Mr. Van Heerden married the fifth
respondent the day before he died. In terms of his last will, a Mr.
Austin, an insurance broker,
was appointed as executor of the
deceased estate. The fifth respondent was appointed as trustee of the
Q2 trust in the place of
the deceased.
[9]
Mr. Austin declined his appointment as
executor of the estate. The Master thereafter, on 17 May 2018,
appointed the fifth respondent
as executor of the estate. She is
cited in that capacity as the fourth respondent.
[10]
The relationship between the first
respondent and the fifth respondent has been strained all along. The
fifth respondent lived with
the deceased since 2 May 2014 when the
deceased left the common home in Buffelspoort Eco Park, a property
which belongs to the
trust, and moved to the farm.
[11]
On 20 June 2018, the fifth respondent 's
attorney in Plettenberg Bay, Mr. du Plessis, wrote a letter to the
applicant in which it
was suggested that the applicant should obtain
the signature of the first respondent to the settlement agreement
proposed by the
deceased before his operation in November 2017. The
letter stated that in the absence of such, the applicant would be
obliged to
refer this matter back to court. It was further proposed
in the letter that a round table meeting should be held in order to
avoid
litigation that would ensue for many years to come and which
would not be to the benefit of anyone concerned. The letter ended off
with a threat that an urgent application would be launched by the
fifth respondent if such a round table meeting did not eventuate.
[12]
The applicant thereupon requested the first respondent's attorney,
Mr. Wagenaar, to arrange a
round table meeting between all the
parties as proposed by Mr. du Plessis. Mr. Wagenaar took this up with
Mr. du Plessis who agreed
that it was urgent to do so, but first
wanted to go away for a few days. Mr. Wagenaar proposed that the
meeting be held before
6 July 2018, the date on which Mr. du Plessis
intended to depart and offered to travel to Mr. du Plessis in
Plettenberg Bay with
the applicant. Mr. du Plessis responded by
emailed letter on 5 July 2018, stating the following:
“
We have noted the
contents of your emails and wish to go as far as to say that we are
both ad idem that the
division of the
joint estate is paramount and of the utmost importance
to
all parties concerned. Any urgent application should in fact be,
requesting the court's assistance for such division in terms
of the
order of divorce. If Mr. Bouwer is of the opinion that he is not in a
position to finalise the values and division of the
assets of the
joint estate the court should be requested to assist on an urgent
basis.”
The following is also stated in
the letter:
“
Having said all of the
above we agree that a roundtable meeting should be convened. It is
imperative that Mr. Bouwer, our respective
clients and legal
representatives be present. If solutions and finalization of the (a)
values of the assets and (b) the distribution
thereof cannot be
agreed upon, your suggestion regarding the liquidation of the estate
would be a possible solution.”
Towards the end of the letter, Mr.
du Plessis stated that upon his return to office on 17 July 2018, he
would immediately make the
necessary arrangements with Mr. Wagenaar,
the applicant and his client to schedule a round table meeting.
[13]
On 12 July 2018, Mr. Wagenaar directed
an email to Mr. du Plessis in which he suggested three dates on which
a round table meeting
could take place after Mr. du Plessis' return
from holiday. On 18 July 2018, Mr. Wagenaar had a telephonic
discussion with Mr.
du Plessis who indicated that he would soon
inform Mr . Wagenaar regarding his availability for such a meeting.
When no response
was received by 23 July 2018, Mr. Wagenaar sent a
further email requesting Mr. du Plessis to provide some dates on
which he would
be available. There was never a response to this
request.
[14]
On 2 August 2018, the applicant directed
a letter to the fourth respondent in respect of certain expenses that
were incurred in
the business and had not yet been settled by the
business. On 3 August 2018, the applicant sent a further email to the
fourth respondent
in which he emphasised that, to date, no financial
information or reports of the business had been received from her as
requested
more than two months before. The applicant stated that, for
this reason, he could not determine any value of the business, do any
proposal to potential buyers or do a cash flow projection for the
current running of the business. He reprimanded her for being
obstructive and urged her to handle all further matters in a
professional way within her mandate.
[15]
On 24 August 2018, the applicant sent an
email to the fourth respondent in respect of the Toyota bakkie which
had been used on the
farm but which the applicant had removed without
his consent. The applicant had been informed by the first respondent
that the
bakkie had been used for years on the farm and formed an
asset of the joint estate. On 27 August 2018, the fourth respondent
replied
that the bakkie was in her possession and would be sold and
the proceeds deposited into the account of the deceased estate. In
her letter, the fourth respondent demanded the handing over to her of
the spare keys of the bakkie and four other vehicles. Two
of these
are two motorcycles which belong to the Q2 trust . The other two
vehicles belong to the joint estate.
[16]
On 31 August 2018, the applicant 's
attorney addressed a letter to Mr. du Plessis in which it was stated
that, in order for the
sale of the business to be undertaken, it was
necessary for the applicant to properly evaluate the current value of
the business
and to draft a forecast of the business which can be
supplied to prospective purchases. In order for the applicant to
undertake
the exercise, it was stated that it was vital that the
applicant be supplied with the following documentation and
information for
at least the last three years which the fourth
respondent may have in her possession: signed financial statements
and, if not available,
any draft financial statements ; ledgers of
the business; bank statements; lists of both creditors and debtors,
including balances
and ledgers; salaries; VAT reconciliations; income
tax e-filing login credentials; and all contracts and commitments
which have
been concluded in the name of the business. The documents
and information requested were not provided by the fourth respondent.
[17]
The applicant thereafter concluded that
the fourth respondent was not prepared to co-operate. He accordingly
decided to launch the
present application in terms whereof he seeks
an order that the fourth respondent be ordered to furnish to the
applicant the information
as requested from her in the letter of 31
August 2018; that the fourth respondent the ordered to return the
Toyota bakkie to the
applicant at the Harley's business; and that the
applicant 's powers be extended by the court by authorising the sale
of all the
assets of the joint estate so that an equal division of
the joint estate can be achieved. The application is supported by the
first
respondent, but is opposed by the fourth and fifth respondents.
The fourth and fifth respondents have also filed a counter
application
for an order that the applicant be removed as referee in
respect of the division of the joint estate of the first respondent
and
the deceased, and for ancillary relief.
[18]
The fourth and fifth respondents oppose
the application on a number of legal grounds rather than on factual
issues. The first is
that the applicant's application for the
extension of his powers as referee is fatally flawed as same has been
instituted absent
the jurisdictional requirement prescribed in clause
1.15 of "Aanhangsel 1" to the deed of settlement. Clause
1.15 reads
as follows:
" Om in die afwesigheid
van 'n ooreenkoms tussen die partye die Agbare Hof te nader,
behoorlik verteenwoordig ,
om
enige verdere
magte bekom wat nodig mag wees om die Skeidsregter in staat te stel
om sy magte en pligte na behore uit te oefen."
[19]
The argument is that there is no
allegation by the applicant that he had approached the parties to
agree to the extension of his
powers as envisaged in clause 1.15 and
that one or both had refused to agree thereto. There is, however, no
requirement in clause
1.15 that the applicant must first approach the
parties to agree to the extension of his powers before he may
approach the court.
Factually, there is no agreement between the
parties to extend the applicant's powers. The fact that the fourth
and fifth respondents
oppose the application for extension of the
applicant's powers is a clear indication that no agreement in respect
thereof would,
in any event, have been reached. Clause 1.15 must be
interpreted in the context of the whole document. The following
clauses which
also deal with the applicant's powers are significant :
"1.14
Om enige aksie te neem en uit te voer welke die Skeidsregter in sy
alleen diskresie mag ag noodsaaaklik
te wees vir doeleindes daarvan
om
effek
te gee aan sy mandaat.
1.17
Om behoorlik oorweging te skenk aan die wense van die partye, en om
sodanige beslissings
en besluite te maak daaroor as wat hy mag goed
ag.
7.
Sou die partye nie op die waaarde en/ of verdeling daarvan kan
ooreenkom nie, sal die kwessie waarop die partye nie kan ooreenkom
nie, na die Agbare Hof verwys word vir finale beregting."
[20]
In my view, clause 15.1, properly
interpreted and in context of the document as a whole, does afford
the applicant the right, in
the absence of an agreement between the
parties, to approach the court for an extension of his powers in
order to give effect to
his mandate.
[21]
It was submitted in the alternative on
behalf of the applicant, with reference to various authorities, that
the court has the inherent
power to make appropriate orders in
respect of how a joint estate should be dealt wit h in order to
divide it between the co-owners
thereof. Of particular assistance is
the judgment of Van Zyl J in
Revill v
Revill
[1]
in which the court referred with
approval to the following
dictum
by Rose-Innes CJ in the case of
Gillingham v Gillingham
[2]
:
"When two persons are
married in community of property a universal partnership in all goods
is established between them. When
a court of competent jurisdiction
grants a decree of divorce that partnership ceases. The question then
arises, who is to administer
what was originally the joint property,
in respect of which both spouses continue to have rights? As a
general rule there is no
practical difficulty, because the parties
agree upon a division of the estate, and generally the husband
remains in possession
pending such division. But where they do not
agree the duty devolves upon the Court to divide the estate, and the
Court has power
to appoint some person to effect the division on its
behalf. Under the general powers which the Court has to appoint
curators it
may nominate and empower some one (whether he is called
liquidator, receiver, or curator
-
perhaps curator
is the better word) to collect, realise and divide the estate."
[22]
If the court has the power to appoint a person to effect the division
of the joint estate on
its behalf, it obviously also has the power to
determine the manner in which such person shall effect the division.
The applicant's
alternative argument is therefore correct.
[23]
It was submitted on behalf of the fourth and first respondents, with
reference to the judgment
of the Supreme Court of Appeal in
Morar
NO v Akoo and Another
[3]
,
that the court's
power to extend the powers of the applicant is restricted. Reference
was made to paragraph 19 of the judgment,
but it is necessary to also
quote paragraph 18:
"[18] When the court
appoints a liquidator for a partnership it is remedying the failure
of the partners to attend to the liquidation
of the partnership by
agreement. Such failure may arise from disagreement over the need to
appoint a liquidator, or over the identity
of the liquidator or over
the powers that the liquidator should enjoy. That being so it is
logical to take as one's starting point
the powers that the partners
could themselves confer by agreement, if they were not in a state of
hostilities. The court is then
asked to do no more than resolve a
dispute between the partners over the appointment of the liquidator
or over the liquidator's
powers. It does so in a way that the parties
themselves could have done. The disagreement arises in consequence of
the one partner
refusing to agree to the liquidator being appointed
or the liquidator having a particular power and that can be
characterised as
a breach of the obligation of co-operation and good
faith that are central to all partnerships. The court is then merely
enforcing
the contractual obligations of the partners themselves.
[19] Once the court is asked to
go beyond this it is necessary to identify a source of its power to
do
so.
That
is central to the rule of law that underpins our constitutional
order. Courts are not free to do whatever they wish to resolve
the
cases that come before them. The boundary between judicial exposition
and interpretation of legal sources, which is the judicial
function,
and legislation, which is not, must be observed and respected. In
this case no such source was identified."
[24]
In the present matter, the court is not
being asked to do more than resolving a dispute between the parties
in a way which the parties
themselves could have done. The
Morar
judgment therefore supports the
applicant 's submission that the court has the inherent power to
extend the applicant 's powers
to selling all the assets of the joint
estate, something which the parties could themselves have agreed
upon.
[25]
Further grounds of opposition relied
upon by the fourth and fifth respondents are that the extension of
the applicant's powers as
sought by the applicant is in conflict with
the provisions of the rights afforded to the applicant in terms of "
Aanhangsel
1" and that the terms of the applicant's appointment
as a referee provide sufficiently for the applicant to have concluded
the division of the joint estate, including the sale of assets to the
extent allowed in terms of "Aanhangsel 1" and that
the
application for the extension of his powers is therefore totally
unnecessary. It was accordingly submitted that the applicant
has no
locus standi
to
request the court to grant an extension of his powers.
[26]
The argument that the extension of powers sought by the applicant is
in conflict with the provisions
of the rights afforded to him in
terms of " Aanhangs el 1" takes the matter nowhere. It is
common cause that he terms
of "Aanhangsel 1" do not permit
the applicant to sell all the assets of the joint estate. It is
therefore necessary for
the applicant to apply to court to extend his
powers to enable him to sell all the assets. He needs the authority
of the court
to exercise that power. I have found that the applicant
is entitled to approach the court for an extension of his powers and
that
the court, in any event, has the inherent power to determine, in
the absence of an agreement between the parties, the manner in
which
the joint estate should be dealt with in order to achieve an equal
division.
[27]
It is clear from all the evidence that an equal division of the joint
estate cannot be achieved
by doing a valuation of all the assets. It
will be an expensive exercise in futility as the parties are not able
to agree on anything.
It is common cause that the farm together with
the Harley business must be sold as a going concern. The two
Rustenburg properties
have unequal values. Neither of the parties has
shown any interest in retaining any of those properties or any of the
movable assets.
The only practical way of achieving an equal division
of the joint estate is to sell all the assets and to divide the net
proceeds
equally between the first and the fourth respondents.
[28]
Prayer 1 of the applicant's notice of motion is for an order
directing the fourth and fifth respondents
to furnish to the
applicant the information requested from her in terms of the letter
of 31 August 2018. The fourth respondent
expressly states in her
answering affidavit that she has supplied the information requested
from her by the applicant by means
of emails dated 24 July 2018 and 9
July 2018 and that she does not have any of the documentation or
information referred to in
the 31 August 2018 letter. In terms of the
Plascon-Evans"
rule, her evidence in this regard has to
be accepted. An order in terms of prayer 1 of the notice of motion
can therefore not be
granted.
[29]
In prayer 2 of the notice of motion, the
applicant applies for an order directing the first respondent to
return the Toyota bakkie
to the applicant at the Harley's business. I
was informed by counsel that the bakkie has in the meantime been sold
by the fourth
respondent and that it was not necessary to make any
order in respect of the· proceeds of the sale.
[30]
In prayer 4 of the notice of motion, the
applicant seeks an order against the first respondent to pay a
further amount to the applicant
as a deposit to be held in trust from
which payments can be made of expenses incurred or to be incurred in
the execution of the
applicant's mandate and of his remuneration as
it becomes due from time to time. In prayer 5, the applicant applies
for an order
against the fourth respondent in her official capacity,
alternatively in her personal capacity, to pay a similar deposit in
an
amount of R900 000.00 to the applicant's trust account. In prayer
6, the applicants seeks an order that the full costs of the present
application may be paid to the applicant from the deposit or any
other receipts of funds from assets of the joint estate, subject
to
the right of any respondent to review the amount of such costs.
[31]
Clause 4 of "Aanhangsel 1"
provides that the joint estate will be liable for the applicant's
account on presentation thereof
but that he will be entitled, at the
final hearing of the action by the court, to request the court to
make a suitable order in
this regard. There is no provision that the
applicant may require the first or fourth respondents to pay any
deposit to him. What
the applicant is entitled to claim is payment of
his account from the joint estate on presentation thereof. I agree
with counsel's
submission that he can present his account for
expenses incurred as and when they are incurred and that .he does not
have to wait
until he has completed his mandate before claiming
payment.
[32]
Counsel for the fourth and fifth
respondents informed me during argument that he had been instructed
that it would not be in the
interest of the winding up of the joint
estate that the applicant be removed as referee. The
counter-application for his removal
was accordingly withdrawn.
[33]
As to costs, Adv. Van der Merwe SC, who appeared for the applicant,
submitted that the applicant
's costs of the application should be
paid by the joint estate. I agree . Mr. Wagenaar, who appeared for
the first, second and
third respondents, submitted that the fourth
respondent unilaterally took control of assets belonging to the joint
estate. He referred
in this regard to the Toyota bakkie and to the
income from the billboard on the farm which was paid to the fourth
respondent. He
submitted that it would not be fair if the first
respondent had to pay any costs as she would then have to pay to get
her property
back. He submitted that the costs of the application
should be paid by the first respondent personally or from that
portion of
the joint estate to which she is entitled in her capacity
as wife and heir of the deceased. In my view, the two instances
mentioned
by Mr. Wagenaar do not justify such a cost order to be
made. I believe that the fairest cost order will be that the costs of
all
the parties be paid by the joint estate.
[34]
In the result:
(a)
An order is granted in terms of prayer 3
of the notice of motion.
(b)
The
applicant 's costs of the application and the costs of the first,
second, third, fourth and fifth respondents are to be paid
by the
joint estate of the first respondent and the late Mr. Petrus Arnoldus
Van Heerden.
(c)
The
fourth and fifth respondents are ordered to pay the costs of the
counter-application jointly and severally.
Counsel for applicant: Adv. J L
van der Merwe SC.
Instructed by: Martin Attorneys,
Pretoria.
Attorney
for 1
st
, 2
nd
and 3
rd
respondents:
Mr. G Wagenaar
of
Gerhard Wagenaar Attorneys, Pretoria.
Counsel for fourth and fifth
respondents: Adv. D L van der Merwe.
Instructed by: HORS Attorneys Inc,
Plettenberg Bay.
[1]
1969 (1) SA
325
(C)
[2]
1904 TS 609
[3]
2011 (6) SA 311
(SCA)