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[2017] ZALMPPHC 20
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Jackson v Stanford Cawood and Others (3945/2016) [2017] ZALMPPHC 20 (18 August 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 3945/2016
Not
reportable
Not
of interest to other judges
Revised.
17/8/2017
In
the matter between:
MARGARETH
JOHANNA CONRADIE JACKSON
APPLICANT
and
STANFORD
CAWOOD
1
ST
RESPONDENT
STAR
CHOICE TRADING 38 (PTY) LTD
2
ND
RESPONDENT
JOHAN
BARRY CORNELIUS
3
RD
RESPONDENT
CHRISTO
QUINTUS NEL N.O
4
TH
RESPONDENT
FRANCOIS
NOLTE N.O
5
TH
RESPONDENT
THE
MASTER OF THE HIGH COURT, POLOKWANE
6
TH
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
There
are two applications before me brought under the same case number by
the Applicant against the Respondents. I shall refer
to the first
application issued on 7 September 2016 as the main application and
the second application issued on 4 October 2016
as an
ex
parte
urgent
application.
[2]
By means of the main application the Applicant claims final relief in
the form of a declaratory order that a contract entered
into between
the First or Second Respondent on the one side and the Third
Respondent in his capacity as executor in the deceased
estate of the
Applicant’s late husband be declared void and unenforceable. On
the back of the declaratory order sought, the
Applicant further
claims ancillary relief that the First and Second Respondents be
ordered to forthwith return any and / or all
items which they removed
from the property known as the Farm Doornhoek 342 K.R Naboomspruit,
Limpopo Province pursuant to the contract
sought to be declared void
and unenforceable.
[3]
In the alternative to the final relief sought in respect of the
aforementioned contract, the Applicant claims an interim interdict
pending the finalization of an action to be instituted within 30 days
from date of the order granted. In essence the interim relief
sought
is concerned with the stay and suspendance of the aforementioned
contract.
[4]
The First to Third Respondents opposed the main application. The
Fourth and Fifth Respondents deposed to confirmatory affidavits
in
support of the opposition of the main application.
[5]
In the second application, that is the
ex
parte
urgent application, the Applicant on an
ex
parte
basis
obtained an interim interdict against the execution of the
aforementioned contract pending the finalization of the main
application.
The First to Third Respondents, again supported by the
Fourth and Fifth Respondents opposed the final granting of the
interim interdict
sought by means of the
ex
parte
urgent
application.
The
interim application, that is the second application is set down for
hearing on the same day as the main application.
[6]
In my view for all intends and purposes, the interim application in
terms of which an interim interdict was granted on
ex
parte
basis pending finalization of the main application has thus become
obsolete and academic save for the issue of the costs thereof.
[7]
The first issue for adjudication is whether the Applicant in both
applications has the necessary
locus
standi in indicio
.
The Respondents specifically contend that the Applicant has no
locus
standi in indicio
to
claim any of the relief sought by means of the main application.
Accordingly, if it is found that the Applicant lacks
locus
standi in indicio
to
seek the relief sought by means of the main application, the
Applicant will also not have any
locus
standi in indicio to seek on an ex parte
basis an interim interdict pending the finalistion of the main
application.
[8]
The issue for adjudication is whether the Applicant has made out a
case on motion to obtain final declaratory relief that the
contract
entered into between on the one hand the First or Second Respondent
and on the other hand the Third Respondent, that is,
the executor in
the deceased estate of the Applicant’s late husband is void and
unenforceable.
[9]
The following facts are common cause in this matter:
9.1. The Applicant is the
widow of the late Hendry Jacob Jackson who died on 5 December 2015
(“the deceased”);
9.2. The Applicant is not
an heir or beneficiary in terms of the last will and testament of her
deceased husband;
9.3. The deceased was
married out of community of property to the Applicant. Accordingly in
addition of not being an heir or beneficiary
in terms of the last
will and testament of the deceased, the Applicant also does not have
any interest in the estate of the deceased
by virtue of the marital
regime that existed between the Applicant and the deceased;
9.4. In terms of clause 2
of the last will and testament of the deceased, the Third Respondent
was nominated to be the executor
of the deceased estate;
9.5. The Third Respondent
(an attorney) accepted the nomination and was appointed as the
executor by the Sixth Respondent on 8 February
2016;
9.6. The Applicant is not
the executrix of the estate of the deceased;
9.7. In terms of the last
will and testament of the deceased, he bequeathed his entire estate
to a
mortis causa
trust, known as the Boet Jackson Trust;
9.8. According to the
last will and testament of the deceased three trustees were appointed
for the
mortis causa
trust, namely the Applicant, Fourth and
Fifth Respondents;
9.9. The Sixth Respondent
issued the required letter of authority in favour of the three
trustees of the Boet Jackson Trust on 25
February 2016;
9.10. In
casu
the
majority of the trustees did not authorize the Applicant to bring the
present application. In fact the majority of the trustees
are in
support of the opposition of this application. Accordingly the
Applicant cannot rely on her capacity as a trustee of the
mortis
causa
trust to clothe her with the necessary
locus standi in
indicio
to bring this application;
9.11. The last will
and testament of the deceased identify the Applicant as one of the
five income and capital beneficiaries
of the
mortis causa
trust;
9.12. The Trust is a
discretionary trust and no beneficiary is entitled to any benefit
other than in the exclusive discretion of
the trustees. Accordingly,
the Applicant as capital and income beneficiary of the trust does not
have any vested right or interest
that will clothe her with
locus
standi in indicio
;
9.13. The present
application is not brought by the Applicant on the basis of the
improper execution or exercise of the discretion
of the trustees. No
relief is sought against the trustees of the Boet Jackson
mortis
causa
trust, that is the sole beneficiary of the deceased estate;
9.14. The principal
relief sought by the Applicant is a final declaration that a contract
concluded between on the one side,
the First Respondent or the Second
Respondent and on the other side the Third Respondent, the executor
is void. The Applicant is
not a party to the contract concerned.
Accordingly the Applicant does have
locus standi in indicio
as
a party to the contract concerned in respect of which she seeks a
declaration that the contract is void;
9.15. The contract
concerned is a sale agreement in terms of which the executor of the
deceased estate sells to the First or Second
Respondents certain
scrap, being the estate assets;
9.16. The contract
concerned was entered into during April 2016 and thus after the
executor (Third Respondent) was properly
appointed on 8 February
2016. Accordingly the executor, as the custodian of the entire estate
was entitled in fact and law to enter
into the contract;
9.17.
The last will and testament of the deceased makes provision for the
payment of maintenance to the Applicant in the absolute
and exclusive
discretion of the trustees of the
mortis
causa
trust.
[10]
It is the Respondents’ case that the Applicant lacks the
necessary
locus
standi in indicio
in
respect of the contract concerned to claim any relief in respect of
thereof more specifically to claim a declaration that the
contract is
void.
[11]
The Respondents’ denial of the Applicant’s
locus
standi in indicio
is based upon the submission that in law only
the trustee is entitled to take action to recover damages for injury
or loss to a
trust estate. A beneficiary has no standing to do so.
In
order to sustain a direct action the Applicant must have as
beneficiary a vested interest in the trust. In
casu
the Applicant’s interest in the future income and capital of
the Trust is merely contigent. Consequently, the Applicant in
this
matter lacks
locus
standi in indicio.
[12]
The Applicant in this matter did not approach the Court as trust
beneficiary for any relief against any of the trustees for
mal-administration of the trust estate or transferring to her as
trust beneficiary what is due to her. It is accepted as a general
rule of our law that the proper person to act in legal proceedings on
behalf of a deceased estate is the executor thereof and that
normally
a beneficiary in the estate does not have
locus
standi
to
do so. This was the conclusion reached by the Supreme Court of Appeal
in the decision,
Gross
& Others v. Pentz
[1996] ZASCA 78
;
1996 (4) SA 617
(A) at 623 B – 625 E
.
[13]
The principle applicable to the case of the executor applies equally
to the trustees of a testamentary trust since he is vested
with the
dominium of the trust assets.
It
follows that a beneficiary under a trust (like the Applicant herein)
who considers that the trustee has acted improperly by failing
to
recover assets on behalf of the trust, will not ordinarily be
entitled to take legal action himself and join the trustee as
a
nominal co – defendant in the proceedings against the third
party. See
Gross
& Others v. Pentz supra at 625 B – D
.
[14]
The Applicant has no vested interest, right and / or obligation in
respect of the
merx
sold by means of the contract concerned. Her interest and rights are
dependent upon the discretionary powers of the trustees of
the Trust.
The Applicant does not have any interest to seek the relief sought in
respect of the mentioned contract. It is trite
that in order to claim
a declaration of right, as the Applicant does in prayer 1 of the
Notice of Motion, it is an essential requirement
that the litigant
must be an interested party. See
Muldersdrift
Sustainable Development Forum v. Council of Mogale City Local
Municipality 2015 JDR 1879 (SCA)
.
[15]
In terms of
section 21
(1) (c) of the
Superior Courts Act 10 of 2013
the Court has the power in its discretion and at the instance of an
interested person to enquire into and determine any existing,
future
or contigent right or obligation. In
Illovo
Opportunities Partnership v. Illovo Junction Properties (Pty) Ltd &
Others
[2014] ZASCA 119
at para
[14]
it was held that in order to obtain a declaratory order in terms of
section 21
(1) (c) of the
Superior Courts Act 10 of 2013
, the
Applicant must have a direct and substantial interest in the order
sought.
[16]
It was further specifically held in the aforementioned decision that
it is insufficient for the Applicant to have an indirect
interest
such as a financial or commercial interest in the outcome of the
litigation. It was also held that it is also inadequate
for the
interest to be derivative in the sense that it depends upon the
validity and existence of some other right. See also
Polokwane
Local & Long Distance Taxi Association v. Limpopo Permissions
Board 2017 JDR 0698 (SCA) at para [18]
[17]
The Applicant has not demonstrated that she has
locus
standi in indicio
to
claim any relief in respect of the contract concerned. In the
premises, the point
in
limine
of a lack of
locus
standi in indicio
is
upheld and the application is dismissed.
[18]
For the sake of completion I proceed to deal with the application on
the merits.
[19]
Regarding the merits of the main application the Applicant contends
that the contract entered into should be declared invalid
for one or
more of the following reasons or grounds alleged by her:
19.1. The
conclusion of the contract allegedly came about as a result of
material misrepresentation by the First Respondent;
19.2. The First
Respondent is allegedly an unrehabilitated insolvent;
19.3. The Third
Respondent (the executor) allegedly did not have the necessary
authority in terms of section 47 of the Administration
of Estates Act
66 of 1965 (“ the Estates Act”) to enter into the
contract ;
19.4.
The
merx
sold is allegedly not properly identifiable as a result of which the
contract is void because of it being vague.
[20]
I proceed to deal
seriatim
with the grounds upon which the Applicant relies in seeking a relief
declaring the contract void and unenforceable.
Material
Misrepresentation
[21]
The Applicant alleges that the First Respondent in negotiating the
contract concerned with the executor (the Third Respondent)
made
material misrepresentations in respect of the value of the
merx.
[22]
There exist various disputes of fact in relation to the
aforementioned ground relied upon by the Applicant which makes the
relief sought impossible by being granted by means of motion
procedure. The existence of these factual disputes was clearly known
or should have been foreseen by the Applicant.
[23]
At best for the Applicant, even if it is accepted that the First
Respondent fraudulently misrepresented material facts in respect
of
the value of the
merx
to the executor, (the Third Respondent), the contract will be
voidable at the election of the innocent party to the contract,
that
is the executor. The latter has an election whether to claim
cancellation of the contract concerned on the basis of the alleged
fraudulent misrepresentation or to keep the contact alive and claim
damages. It should be borne in mind that the Applicant is not
a party
to this contract.
[24]
In the circumstances the aforementioned ground relied upon for the
relief sought cannot give rise to the granting of the relief
sought
by the Applicant in the circumstances.
First
Respondent is an unrehabilitated insolvent
[25]
The Applicant alleges that the contract should be declared void on
the ground that at the time that the contract was entered
into, the
First Respondent was an unrehabilitated insolvent.
[26]
The allegations that the First Respondent is an unrehabilitated
insolvent are misconceived and factually inaccurate. The correct
facts are that the First Respondent is not an unrehabilitated
insolvent as he was rehabilitated by an order of Court granted as
far
back as 28 July 2005. Accordingly there is no merit in the allegation
and Applicant’s Counsel correctly conceded.
Non
– compliance with section 47 of
Administration of Estates Act
66 of 1965
[27]
The Applicant alleges that there was no written permission in terms
of
section 47
of the abovementioned Act granted by the beneficiaries
of the deceased’s will for the executor (Third Respondent) to
enter
into the contract concerned and that failing such written
permission the contract is void.
[28]
Section 47 of the Estates Act provides as follows:
“
47
Sales by executor
Unless
it is contrary to the will of the deceased, an executor shall sell
property (other than property of a class ordinarily sold
through a
stock-broker or a bill of exchange or property sold in the ordinary
course of any business or undertaking carried on
by the executor) in
the manner and subject to the conditions which the heirs who have an
interest therein approve in writing: Provided
that-
(a)
in the case where an absentee, a minor or a person under curatorship
is heir to the property; or
(b)
if the said heirs are unable to agree on the manner and conditions of
the sale,
the
executor shall sell the property in such manner and subject to such
conditions as the Master may approve
”
.
[29]
Section 47 of the Act relates to the manner and conditions of sale of
estate property by the executor, and not to the decision
as to
whether or not to sell. That decision falls within the powers of the
executor alone. He merely requires approval as to the
way in which he
intend to carry it out.
See
Essack
v. Buchner NO & Others
1987 (4) SA 53
(N)
[30]
The allegation that there was no permission granted to the executor
is inaccurate. In any event the executor does not require
the
permission of the beneficiaries to enter into the contract concerned.
[31]
The undisputed evidence is that all the three trustees (thus also the
Applicant) authorised the contract which was entered
into by the
executor. In this regard the Applicant herself signed a resolution
and minutes of a meeting held by the trustees on
5 April 2016 in
terms of which the agreement was discussed and authorised. The said
resolution and minutes are contained in the
Annexures “C5”
and “C6” to the Opposing Affidavit.
[32]
The objection and ground relied upon herein is not only bad in law
but also factually inaccurate. Accordingly, there is no
merit in this
ground relied upon by the Applicant.
Contract
is vague
[33]
The last ground relied upon by the Applicant for her claim that the
contract (to which she is not a party) be declared void
is that the
contract is allegedly vague in respect of a material aspect, to wit,
the
merx
.
This ground can only be raised by one or both of the parties to the
contract, that is, the seller and / or the purchaser. The
Applicant
is neither of these two.
[34]
Here we have a situation where the parties to the contract and they
being the parties who should execute the contract are
ad
idem
that
they are willing and able to do so.
In
the circumstances it is rather odd that the Applicant who is not a
party to the contract wants to declare such contract void.
The
Applicant’s standpoint in this regard is ill–advised and
misconceived.
[35]
The requirement of law applicable to this ground relied upon, is that
the property sold must be ascertained or ascertainable.
It is trite
that meticulous accuracy in the description of the
res
vendita
is
not required. See
Clements
v. Simpson
1971 (3) SA 1
(A)
.
[36]
In
casu
the contract explicitly states the following:
“
Die
Verkoper verkoop hiermee aan die Koper, wie hiermee in
koop aanneem, die uitgewyste skroot eiendom gelee te:
DIE
UITGEWYSTE DEEL TE UNION TIN MYN, PLAAS DOORNHOEK
”
The
aforementioned
merx
agreed upon is in my view clearly
ascertainable and is in conformity with the principle enunciated in
Clements v. Simpson, supra at 7H to 8A
.
If
the
merx
is ascertainable as in
casu
clearly
is, the contract concerned is not void as contended by the
Applicant.
[37]
I come to the conclusion that none of the grounds relied upon by the
Applicant for her claim that the contract (to which she
is not a
party) is void, can in fact or in law give rise to a finding that the
contract is void.
[38]
In the premises of all the aforementioned and even if it is assumed
in favour of the Applicant that the Applicant has the necessary
locus
standi in indicio
(which she does not have) the interest of justice would not require
this Court to come to the assistance of the Applicant in granting
a
declaration that the contract concerned is void.
[39]
The fact that the Applicant does not have
locus
standi in indicio
is
also decisive of the second application, that is the interim
application brought on an urgent
and
ex parte
basis.
The
rule
nisi
in respect of the interim order obtained
ex parte
is accordingly discharged.
[40]
I therefore grant the following order:
(1)
The
main application is dismissed with costs.
(2)
The
Applicant to pay also the costs of the
ex
parte
urgent application.
(3)
All
costs payable shall be on party and party scale.
_________________________
E
M MAKGOBA
JUDGE PRESIDENT OF THE
HIGH
COURT, LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES
Heard
on
: 7 August 2017
Judgment
Delivered : 18 August 2017
For
Appellant
: Adv. R J Groenewald
Instructed
by
: Van Onselen & Partners
c/o
Steytler Nel & Partners
Polokwane
For
Respondents : Adv. G F
Heyns
Instructed
by
: Dawie Beyers Inc
c/o
Smit & Maree Attorneys
Polokane