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[2018] ZANCHC 79
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Heinze v Burger and Others (1202/2012) [2018] ZANCHC 79 (2 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Case No
: 1202/2012
Date of
Hearing : 23 OCTOBER 2018
Date
Delivered : 02 NOVEMBER 2018
Not
Reportable
In
the matter between:
HEINZE,
BERNARD
WILLIAM
Applicant
and
BURGER,
JACOBUS
ADRIAAN
1
st
Respondent
BURGER
NO, ENGELA
SUSANNA
2
nd
Respondent
ABSA
BANK
3
rd
Respondent
REGISTRAR
OF
DEEDS
4
th
Respondent
DUNCAN
& ROTHMAN
INC.
5
th
Respondent
MASTER
OF THE HIGH
COURT
6
th
Respondent
SENEKAL
NO, FREDERIK
JACOBUS
7
th
Respondent
HEINZE,
KURT
JOCHEN
8
th
Respondent
CROZIER,
ANTHONY DONALD
WOOD
9
th
Respondent
HEINZE,
KLAUS
10
th
Respondent
Coram:
Olivier
ADJP
JUDGMENT
Olivier
ADJP:
[1.]
Mr W R
Heinze (“
the
testator
”)
died on 22 July 2004. In terms of his will all property in his
estate was bequeathed to a testamentary trust.
The fixed
property concerned in this matter was registered in the name of the
testator.
[2.]
An
agreement of sale was subsequently concluded between the erstwhile
executor in the deceased estate, Mr Kurt Jochen Heinze, at
the time
represented by Mr A D W Crozier, on the one hand, and the So-Ane
Boerdery Trust, represented by the trustees of that trust,
Mr J A
Burger and Mrs E S Burger, on the other hand, and the property was
indeed subsequently transferred from the deceased estate
to the
So-Ane Boerdery Trust.
[3.]
During
2012 Mr Heinze lodged an application claiming,
inter
alia
,
that the deed of sale be declared null and void and that the
Registrar of Deeds be ordered “
to
restore the property … to the deceased estate
”.
[4.]
Mr and
Mrs Burger were cited in their representative capacities as trustees
of the So-Ane Boerdery Trust, as respectively the first
and second
respondents. ABSA Bank Ltd was cited as third respondent,
because of the fact that a mortgage bond had in the
process been
registered in its favour over the fixed property concerned.
[5.]
The
Registrar of Deeds was cited as the fourth respondent.
[6.]
Duncan &
Rothman attorneys, who were involved in the sale and the transfer of
the property, were cited as the fifth respondent.
[7.]
The
Master was cited as the sixth respondent.
[8.]
Mr F J
Senekal was cited as the seventh respondent, in his capacity as the
executor at that stage in the deceased estate.
It appears that
he had in the meantime been appointed as executor, when Mr K J
Heinze, who was cited as the eighth respondent,
was removed as
executor.
[9.]
Mr
Crozier was cited as the ninth respondent and Mr Klaus Heinze, a
brother of the applicant, as the tenth respondent.
[10.]
The
application (which will in what follows be referred to as “
the
main application
”)
was opposed by only the first and second respondents, and the ninth
respondent, but an answering affidavit was filed on
behalf of the
fifth respondent, in order to answer to some very serious allegations
by the applicant against them.
[11.]
On 16 May
2014 the now retired Lacock J dismissed the main application with
costs, after having concluded:
11.1
that the applicant lacked the legal standing to apply for the relief;
11.2
that, contrary to what was in essence the applicant’s case, the
Master had issued a certificate as required by section
42(1) of the
Administration
of Estates Act
[1]
;
and
11.3
that in any event, as “
There
(was)
no
indication that either the executor or the purchasers … did
not intend the transfer of the domicilium in the property
… to
the purchasers
”,
the transfer of the property would be unassailable because of the
abstract theory of passing ownership of,
inter
alia
,
immovable property, in terms of which theory a defect in the sale
agreement would not have affected the subsequent transfer of
the
property.
[12.]
The
applicant now applies for leave to appeal. It is common cause
that his application for leave to appeal was filed late,
and he is
therefore also applying for condonation thereof.
[13.]
In
United
Plant Hire (Pty) Ltd v Hills and Others
[2]
the principles upon which a court exercises its discretion in respect
of applications for condonation in circumstances like these
were
explained as follows:
“
It
is well settled that, in considering applications for condonation,
the Court has a discretion, to be exercised judicially upon
a
consideration of all of the facts; and that in essence it is a
question of fairness to both sides. In this enquiry, relevant
considerations may include the degree of non-compliance with the
Rules, the explanation therefore, the prospects of success on
appeal,
the importance of the case, the respondent's interest in the finality
of his judgment, the convenience of the Court, and
the avoidance of
unnecessary delay in the administration of justice. The list is not
exhaustive.
These
factors are not individually decisive but are interrelated and must
be weighed one against the other; thus a slight delay
and a good
explanation may help to compensate for prospects of success which are
not strong.
”
[14.]
The
applicant has not filed a substantive application for condonation, in
the sense of a notice that is supported by an affidavit
as envisaged
in Uniform Rule 6. His application for condonation is contained
in a document styled “
APPLICATION
FOR CONDONATION OF A LATE APPLICATION FOR LEAVE TO APPEAL
”.
In the document the applicant has set out his reasons or explanation
for the delay in filing the application for
leave to appeal as
follows:
14.1
He stated that, because he had no legal representation, he had to
“
research
the entire matter
”,
which according to him “
consists
of some very difficult legal principles and entails lots of case law
and various branches of South African law
”.
14.2
The applicant furthermore explained that he was a student “
and
was busy with exams and studies for same up to the mid of June and
again this semester
”.
14.3
He claimed that condonation would not prejudice the respondents and
advanced, as a reason for this submission, the fact that
the
respondents had been late in filing their answering affidavits in the
main application.
[15.]
The
applicant has not, importantly, therefore claimed to have been
unaware of the time restriction for the filing of an application
for
leave to appeal.
[16.]
The
document was on the face of it signed by the applicant, but it was
not commissioned and it is therefore not an affidavit.
[17.]
Although
the absence of legal assistance is obviously a relevant factor, it is
not a decisive consideration and will not necessarily
entitle an
unrepresented party to condonation
[3]
.
[18.]
It is not
entirely correct, furthermore, to say that the granting of
condonation could not prejudice the respondents. It would
entitle the applicant to proceed with his application for leave to
appeal which, if successful, would obviously lead to a further
delay
in this already protracted matter.
[19.]
It is
also important to bear in mind the extremely long delay from 23
January 2006, when the property was transferred, to the date
when the
applicant lodged the main application.
[20.]
The
respondents, like all parties in litigation, have a right to
finality. A further delay would result in prolonging the
uncertainty regarding the title of the So-Ane Boerdery Trust.
[21.]
Even if
regard is had to the applicant’s non-commissioned explanation
for the delay in filing the application for leave to
appeal, it is
far from satisfactory.
[22.]
As
regards the fact that the applicant prepared the application for
leave to appeal as a lay person, he has not explained why he
did not
obtain legal assistance, if that could have expedited the preparation
of the application for leave to appeal.
[23.]
In any
event, he also appeared in person at the hearing of the main
application, and the issues would therefore not have been new
to him.
[24.]
While the
period from the judgment until “
mid
June
”
could arguably be said to have been explained, the same cannot be
said for the more than three months thereafter when the
application
for leave to appeal was still not filed. It is unclear whether
the applicant is contending that he was equally
busy with “
exams
and studies
”
in the period between the two semesters, and during all of the second
semester up until he eventually filed the application
for leave to
appeal.
[25.]
In
argument Mr Heinze claimed also to have been part-time employed
during that period. Apart from the fact that his “
statement
”
is silent on this, Mr Heinze was relatively vague about this even in
argument, claiming to have been more of a student than
a part-time
employee.
[26.]
However,
in view of the fact that the applicant has had no legal assistance,
and he is still appearing in person, and in the interests
of justice,
I have decided to adopt “
a
robust attitude
”
as far as the application for condonation is concerned
[4]
and to proceed to consider the merits of the application for leave to
appeal.
[27.]
In my
view the appeal does not have a prospect of success, as required by
section 17(1)(a) of the
Superior
Courts
Act
[5]
,
and the issue of the applicant’s legal standing is decisive for
purposes of considering this requirement.
[28.]
It is
trite that an applicant in motion proceedings must make out its case
in the founding papers
[6]
.
This would also be the case as regards the requirement that an
applicant must have legal standing in respect of the issue/s
concerned, and for purposes of the relief claimed, and the applicant
bore the onus to prove this
[7]
.
[29.]
The only
allegation that the applicant had made in his founding affidavit
[8]
in this regard was that the fact that the testator had been his
father, gave him standing in the matter. Not surprisingly
this
allegation was denied by the first and second respondents. The
mere fact that the applicant had been the biological
son, but born
out of wedlock, of the testator would quite clearly not have given
him legal standing in circumstances where he was
not an heir in terms
of the will of the testator.
[30.]
The court
a quo
based its conclusion that the applicant lacked
locus
standi
on findings that the applicant was not an heir in the deceased estate
and had also not been a party to the impugned agreement of
sale.
The court
a
quo
considered these possible grounds for legal standing despite the fact
that the applicant had not in his founding affidavit made
any
reference thereto as grounds for him having legal standing.
[31.]
The
applicant has not, in his application for leave to appeal, taken
issue with the finding that he was not an heir in the deceased
estate. In his heads of argument he appears to contend,
however, that it would have been up to the executor in the deceased
estate to determine whether he was an heir in the deceased estate or
not. This contention is a complete fallacy, as the applicant
has himself conceded that the testamentary trust was the sole heir in
terms of the will.
[32.]
The
applicant has, however, in his application for leave to appeal now
claimed to have been a party to the agreement of sale.
He bases
this argument, apparently, on rights which he would according to him
have had to take decisions of the Master on review
or appeal and to
object to directions and decisions by the Master. In this
regard he has referred to sections 35(1), 42(2),
47 and 95 of the
Administration
of Estates Act
.
[33.]
Save to
point out that the provisions of section 47 apply to only heirs,
which the applicant, as already mentioned, is and was not,
and that
the applicant was also not on this case a creditor in the deceased
estate, I am not going to deal with the other provisions
referred to
by the applicant in any detail. The fact is that the applicant
did not, in his founding affidavit, make out a
case that he would, on
the basis of any of these provisions, have the required legal
standing.
[34.]
The court
a quo
went
on to consider whether the applicant would have had legal standing if
he was an income beneficiary of the testamentary trust
and had
brought the main application on behalf of that trust, and the court
a
quo
concluded, with reference to
Gross
& Others v Pentz
[9]
,
that the applicant would not have had legal standing on this basis,
and merely because there had not at that time been a trustee
for the
testamentary trust. It was found that the applicant should
under such circumstances have taken steps to have a trustee
appointed.
[35.]
In this
regard the applicant now says, in his application for leave to
appeal:
33.1
that he had attempted to have a trustee appointed, and he relies on
the “
Beningfield
principle
”
referred to in the
Gross
judgment, which would entitle trust beneficiaries to act on behalf of
a trust in circumstances where the trustee/s cannot or will
not take
steps; and
33.2
that the fact “
that
our common law limits beneficiaries to sue on behalf of trusts
”
is not “
in
terms of section 36 of the Bill of Rights … reasonable
(or)
justifiable
”
and “
infringes
on
(his)
fundamental
right to equality
”.
[36.]
The
applicant has also now, in his application for leave to appeal, made
reference to his rights in terms of the Constitution, and
more
specifically in terms of sections 9, 34 and 38 thereof, and he now
states that his standing “
is
supported by the Constitution
”.
[37.]
In the
first place, the applicant did not in his founding affidavit claim to
have standing as a beneficiary in terms of the testamentary
trust.
He did not in fact even make out a case that he was a beneficiary of
the trust. In the will, which would in
the circumstances be the
trust deed, he is not by name indicated as a beneficiary.
[38.]
In clause
3.6 of the will only the testator’s sons Christian Heinze and
Wolfgang Heinze are named as capital beneficiaries.
[39.]
Even if
the applicant was an income beneficiary who would have been entitled
to approach the court in a representative capacity
on behalf of the
trust, he had in his notice of motion claimed that the property be
restored to the estate, and not to the trust.
He would not, as
an income beneficiary in the trust, have had the right to claim this
relief on behalf of the deceased estate.
The sole heir in the
estate was the trust, not its beneficiaries, and his capacity as an
income beneficiary would not have clothed
him with the status of an
heir in the deceased estate.
[40.]
In his
heads of argument the applicant now submits that only the trustee of
a testamentary trust could “
determine
who the trust beneficiaries are
”.
This submission has not been explained and there is no indication in
the will that the trustee would have had any
discretion in this
regard. In the circumstances the will, as effectively the trust
deed, would be the sole source of this
information.
[41.]
In any
event, on the applicant’s own submission he could then not have
had legal standing in the capacity of a trust beneficiary,
because he
goes on to state that “
At
the date of the application and the date of the hearing there was no
trustee to determine whether the applicant
(was)
an
income beneficiary only or a capital beneficiary
”.
On his own argument, therefore, he could not have been identified as
a beneficiary at that stage and could therefore
not have had legal
standing in such capacity.
[42.]
In his
heads of argument the applicant now says that what the court
a
quo
remarked as regards the possibility of
locus
standi
on the basis of the applicant being a beneficiary, was “
quite
premature
”,
apparently because there had according to the applicant not yet at
that stage been a determination by a trustee of who
the beneficiaries
in the testamentary trust were. Once again, this possibility
was considered as an indulgence to the applicant,
and not because he
had made out any case whatsoever in his founding affidavit that he
had, or could in the future have, legal standing
in the capacity of a
trust beneficiary.
[43.]
The
applicant is also not entitled to raise constitutional issues at this
stage that he never referred to or relied upon his founding
affidavit, or in the court
a
quo
.
In
Prince
v President
,
Cape
Law Society and Others
[10]
the principle was affirmed that a party who intends raising
constitutional issues should do so “
at
the time they institute legal proceedings
”
and that in such a case “
information
relevant to the determination of the constitutionality … must
be placed before the Court of first instance
”
[11]
.
The opposing respondents were never given the opportunity of
addressing this in their answering affidavits, and in the main
application, and it would in my view not be in the interests of
justice to consider these arguments at this stage and under the
present circumstances.
[44.]
The fact
that the applicant may have prepared his affidavits in the main
application himself cannot, in these circumstances, justify
an
approach whereby this court would now have regard to new issues like
these.
[45.]
In my
view, therefore, there is no reasonable prospect of success with an
appeal against the finding that the applicant lacked legal
standing.
In the circumstances it is not necessary to consider the prospects of
success in respect of the other findings
of the court
a
quo
,
because the applicant would not be entitled to pursue an appeal in
respect thereof without legal standing.
[46.]
It has
also not been argued that leave to appeal should nevertheless be
granted on any other ground in terms of section 17(1) of
the
Superior
Courts
Act
.
[47.]
As
regards the fact that the court
a
quo
awarded costs against him, the applicant has, in his application for
leave to appeal, pointed out that he had not been legally
represented
in the main application and that Lacock J had at that hearing agreed
with his submission that such an order would be
“
detrimental
”
to him.
[48.]
The fact
that the costs order would be “
detrimental
”
to the applicant could not have been a decisive consideration.
His application resulted in legal costs for the opposing
respondents,
and the fact that an award of costs against the applicant would
impose a financial burden on him could not in itself
have detracted
from the general and trite principle that costs follow the result.
The applicant simply has not shown that
the court
a
quo
misdirected itself in making the costs order.
[49.]
In his
heads of argument the applicant now contends that the opposing
respondents had themselves brought about their legal costs
in the
main application, by “(choosing)
deception
over honesty
”
in the course of the events that were the basis of the main
application. This submission really misses the point.
Whether there had been deception and dishonesty was, in the first
place, in dispute and never found to have been proven.
Furthermore, the fact would in any event remain that the applicant
had lacked the legal standing to raise those allegations in
his quest
for the relief claimed in the notice of motion.
[50.]
There is
absolutely no basis upon which it could be said that the court
a
quo
had not exercised its discretion in this regard properly.
[51.]
This
brings me to the costs of the present applications.
[52.]
None of
the opposing respondents are to blame for the delay that necessitated
the application for condonation, and it was the applicant
that was
obliged to bring that application in order to seek the indulgence of
this court. The opposition of this application
can most
certainly not be said to have been unreasonable, when regard is had
to the above.
[53.]
The costs
concerned in the application for condonation are in any even
inextricably linked to the costs in the application for leave
to
appeal, and should in my view for all practical purposes be treated
as part thereof.
[54.]
As far as
the application for leave to appeal is concerned, the applicant has
not pointed out anything that would justify a deviation
from the
general rule already referred to.
[55.]
In the
premises the following orders are made:
1.
THE
LATE FILING OF THE APPLICATION FOR LEAVE TO APPEAL IS CONDONED.
2.
THE
APPLICATION FOR LEAVE TO APPEAL IS DISMISSED.
3.
THE
APPLICANT IS ORDERED TO PAY THE COSTS IN BOTH THESE APPLICATIONS.
JUDGE
C J OLIVIER
ACTING
DEPUTY JUDGE PRESIDENT
NORTHERN
CAPE DIVISION
For the
applicant:
IN PERSON
For the 1
st
and
2
nd
ADV. D C JANKOWITZ
respondents:
(Instructed
by
Haarhoffs
Inc.
)
For the 5
th
respondent: ADV. I GREEN SC
(Instructed by
Duncan
& Rothman Inc.
)
For the 9
th
respondent: MS J SNYDERS
(
Engelsman
Magabane Inc.
)
[1]
66 of 1965
[2]
1976 (1) SA 171
(A) at 720E - G
[3]
See
Viljoen v Federated Trust Ltd
1971 (1) SA 750
(O) at 757
[4]
Compare
High School Ermelo & another v HOD Mpumalanga Dept of
Education & others
[2007] JOL 20474
(T) para [9];
Viljoen
v Federated Trust Ltd,
supra
[5]
10 of 2013
[6]
Compare
Democratic Alliance v Kouga Municipality and others
[2014] 1 All SA 281
(SCA) para [18]
[7]
Compare
Mars Incorporated v Candy World (Pty) Ltd
[1990] ZASCA 149
;
1991 (1) SA
567
(A) at 575H – I;
Kommissaris van
Binnelandse Inkomste v Van Der Heever
1999 (3) SA 1051
(SCA) para [10]
[8]
Paragraph 12 thereof
[9]
[1996] 4 All SA 63 (A)
[10]
2001 (2) SA 388 (CC)
[11]
Ibid
, para [22]; See also
Manqele v Durban
Transitional Metropolitan Council
2002 (6) SA 423
(D) at 427