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[2017] ZAFSHC 78
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Maree N.O. and Others v Van Rensburg and Others (1453/2014) [2017] ZAFSHC 78 (18 May 2017)
IN THE HIGH COURT OF SOUTH
AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1453/2014
In
the matter between:
NICOLAS
PETRUS MAREE
N.O.
1st
Applicant
(CURRENTLY
NO SECOND
TRUSTEE)
2nd
Applicant
(In
his/their capacity as trustees of the Annette Trust)
SANDRA
STRAUSS
3rd
Applicant
and
ANNETTE
JANSEN VAN
RENSBURG
1st
Respondent
MICHAEL
ANTONIE NICOLAAS JANSEN
VAN
RENSBURG
2nd
Respondent
EDUAN
JANSEN VAN
RENSBURG
3rd
Respondent
HEARD
ON:
23 MARCH 2017
JUDGMENT
BY:
RAMPAI, J
DELIVERED ON:
18 MAY
2017
[1]
This is an application for leave to appeal against the whole of the
judgment by Hancke J which was delivered on 1 December 2016.
The application, brought by the two applicants 14 December 2016, is
opposed by the three respondents. The judgment was given
in
respect of the interlocutory counter application filed by the
respondents in the main eviction application.
[2]
The order made by the court
a
quo
on
1 December 2016 reads:
“
1.
Die aansoek slag en word ‘n bevel verleen ingevolge Bylae “A”
aangeheg aan die uitspraak, gelewer op 1 Desember
2016.”
[3]
The applicants were aggrieved by the order and the underlying reasons
as set out in the judgment as a whole. On 14 December
2016 the
applicants filed a notice whereby they signalled their intention to
apply for leave to appeal, against the judgment and
the order.
[4]
The grounds of their appeal were encapsulated in the aforesaid
notice. There were 12 grounds of appeal. See pages
2-5 of
the indexed record. I deem it unnecessary to reproduce them
here. I shall deal with them along the way.
[5]
On 25 January 2017 the three respondents filed notice of their
intention to oppose the application for leave to appeal.
[6]
On 22 February 2017 I,
mero
motu
,
caused the application to be enrolled for hearing on Thursday 23
March 2017.
[7]
On 23 March 2017 the merits and demerits of the application were
argued before me. Having heard argument, I reserved judgment
in
order to digest, analyse and consider the submissions made for and
against the application for leave to appeal.
[8]
In an application for leave to appeal, the cardinal question is
whether the contemplated appeal would have a reasonable prospect
of
success or whether there is some other compelling reason why the
matter should be heard on appeal – See Section 17 Superior
Court Act 10 of 2013. In this particular matter the
crucial issue was whether the court
a
quo
committed material and appealable misdirection in taking into account
the contemporaneous context and the subsequent conduct of
the founder
in interpreting the trust instrument.
[9]
On the one hand Mr Heymans, counsel for the applicants, submitted
that the answer to the issue must be affirmative. The
submission was based on the contention that the trust deed, in this
instant, was essentially the will of the founder, the late
Frederick
Labuschagne Strauss and his wife, the late Maria Magaretha Strauss.
That being the case, so went the argument,
the court erred in relying
on authorities and caselaw applicable to the interpretation of
contractual documents instead of the
one applicable to testamentary
documents. Accordingly, counsel urged me to grant leave to
appeal.
[10]
On the other hand Mr Van der Merwe, counsel for the respondents,
sharply differed. He submitted that the court committed
no
material and appealable misdirection by interpreting the trust deed
as it did. He submitted that the answers to the general
question and the specific issue must both be negative. He
argued that the court had correctly taken into account the prevailing
circumstances at the time the trust was created, the structure of the
trust and the new global trends concerning interpretation
of trust
instrument. Accordingly, counsel implored me to refuse leave to
appeal.
[11]
The relevant statutory provision is section 13 Trust Property Control
Act 57/1988. It provides:
“
13.
Power
of
court
to
vary
trust
provisions.
-If
a trust instrument contains any provision which brings about
consequences which in the opinion of the court the founder of a
trust
did not contemplate or foresee and which-
(
a
)
hampers the achievement of the objects of the founder; or
(
b
)
prejudices the interests of beneficiaries; or
(
c
)
is in conflict with the public interest,
the
court may, on application of the trustee or any person who in the
opinion of the court has a sufficient interest in the trust
property,
delete or vary any such provision or make in respect thereof any
order which such court deems just, including an order
whereby
particular trust property is substituted for particular other
property, or an order terminating the trust.”
[12]
The basis of the current application for leave to appeal is that the
respondents’ counter application should have failed.
See
par 12 applicants’ notice dated 13 December 2016 filed on 14
December 2016. On behalf of the respondents it was
submitted
that the attack on the judgment was so defective at every level of
reasoning that it cannot be reasonably expected that
another court
would follow such an approach to come to a different conclusion on
any of the alleged grounds.
[13]
It is necessary to analyse the reasoning of the applicants. The
crux of the argument appears to be that the court erred
in taking
into account the context and the subsequent conduct of the founder in
interpreting the trust instrument. This much
is apparent upon
reading pars 8, 9, 10, 13 and 14 applicants’ head of argument.
[14]
In developing their argument, the following motivation was given by
the applicants:
Firstly,
that the trust deed was essentially a testamentary will of the
founder and his now deceased spouse; secondly, that
the court
was, therefore, not supposed to have applied authorities dealing with
contracts but rather wills in interpreting the
trust deed and
thirdly, that in interpreting a testamentary clause in a will, a
court is precluded from taking the context into
account unless the
wording of such a clause is so vague and ambiguous that it renders
the clause senseless. In this instance
the focus under
consideration was clause 2.3.1 of the trust deed - vide pars 7, 8, 9
applicants’ heads of argument read with
par 14 thereof.
[15]
On that basis, it was contended that clause 2.3.1 read with clause 14
of the trust deed was clear. The effect was that
the trustees
had an unfettered discretion as regards the awarding or allocation of
trust assets to the beneficiaries. The
critique was that the
court put the card before the horses by considering the contextual
background and the surrounding circumstances
before interpreting the
particular clause in the trust deed.
[16]
The apparent implication of the aforesaid argument was that the
interpretation of the judge was allegedly in conflict with
the
trustee’s unfettered discretion. In short it was
contended that where a clause, at a glance, is clear – it
is
impermissible to take into account the contextual background of
prevailing circumstances as held in a series of caselaw to which
the
judge referred in par 3 and 4 of his judgment.
It
was further submitted that the court was so misled by contextual
facts that it allowed considerations of equity to becloud its
objective judgment.
[17]
I am not so persuaded. The applicants cited no authority in
support of their submission that
inter
vivos
trust deeds such as this one has to be interpreted as a will.
Moreover, no authority was cited for the proposition that the
new
approach of our courts as regards the methods of interpretation does
not apply to wills, codicils or testamentary documents.
Mr Van
der Merwe, submitted that the new approach of interpretation applies
to all types of documents whatever their legal nature.
[18]
I hasten to add that the new approach has not done away with the
old. Consequently, in a case where a document is very
clear it
may still not be made turbid now by blindly resorting to contextual
background or prevailing circumstance. The principle
remains as
valid here and now under the new approach as it was there and then
under the old approach.
[19]
The underlying justification or validation for the paradigm shift to
interpretation is that words tend to be better understood
when they
are considered against the complete contextual backdrop in which they
were uttered than when they are considered in a
vacuum confined to
the present but isolated from the past. In
Novartis South
Africa (Pty) Ltd v Maphil Trading (Pty) Ltd
[2015] ZASCA 111
(3 September 2015) par [28] the court, per Lewis JA, put it in the
following brief and robust manner:
“
Words
without context mean nothing.”
I
am in respectful agreement.
[20]
If it is true that to attach meaning to words without taking into
account the background from which they originated is unscientific
in
the case of contracts then, so too, it must also surely be
unscientific and dangerous to do so in the case of testamentary
documents. The law reports are replete with decided caselaw
which repeatedly stress that the new approach is applicable to
any
document whatever its legal character may be. The new approach
is not only domestically but also globally embraced and
used to
interpret documents.
[21]
The global trend or the new approach to interpretation was expressly
and supremely embraced in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) par [18] where the court, per Wallis JA, said
the following:
“
Over
the last century there have been significant developments in the
law relating to the interpretation of documents, both
in this country
and in others that follow similar rules to our own. It is
unnecessary to add unduly to the burden of annotations
by trawling
through the case law on the construction of documents in order to
trace those developments. The relevant authorities
are collected and
summarised in
Bastian
Financial Services (Pty) Ltd v General Hendrik Schoeman Primary
School.”
vide
2008 (5) SA 1
(SCA) pars [16-19].
[22]
Two years later, the above mentioned decision was reaffirmed in
Bothma-Batho
Transport v Bothma & Seun Transport
2014
(2) SA 494
(SCA) par [10] where Wallis JA:
“
The
present state of the law can be expressed as follows: Interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract,
having regard
to the context provided by reading the particular provision or
provisions in the light of the document as a whole
and the
circumstances attendant upon its coming into existence
.”
(the
emphasis is mine)
[23]
Still in
Bothma-Batho
,
supra
,
at par [12] the court went on to say:
“
That
summary is no longer consistent with the approach to interpretation
now adopted by South African courts in relation to contracts
or other
documents, such as statutory instruments or patents.”
The
summary referred to concerned the “golden rule” of
interpretation as discussed and summarised in
Coopers
& Leybrand & Others v Bryant
[1995] ZASCA 64
;
1995 (3) SA 761
(A).
It
is obvious, therefore, that the submission made by the applicants are
at odds with these supreme decisions.
[24]
The argument advanced on behalf of the applicant erroneously proceeds
from the standpoint that the trust deed, the subject
of
interpretation in this instance, was not a contract. Such a
point of departure was not entirely correct. An
inter
vivos
trust
is necessarily in a form of a contract.
Some eminent jurists regard an
inter vivos
trust as a contract
for the benefit of a third. See
Crooks N.O. v Watson &
Others
1956 (1) SA 277
(A) at 288A, 296F and 298G-H. I
pause here to mention that this is the decision on which the
applicants themselves relied.
It is not really authority for
their proposition. See
Cameron: Honorés South
African Law of Trusts
, 5
th
ed. P216, par 130 (first
par). See also
Wills and Trusts
, LexisNexis B5.1 (issue
20) par 5.2 under the heading ‘
Stipulatio Ulteri’
.
[25]
The following passage is opposite:
“
Under
Roman-Dutch Law influence, the South African trust created by means
of an agreement between the founder and the trustees (the
inter
vivos
trust or trust in the narrow sense) has the structure which is akin
to a contract for the benefit of a third party (stipulatio
ulteri).”
See
Wills
and Trusts
,
supra
.
See also
Potgieter
v Potgieter
2012 (1) SA 637
(SCA) par [18]. The trend in all these
authorities is against the argument of the applicants.
[26]
There were further reasons as to why I am not persuaded by the
argument that Hancke J erred by taking into account the contextual
circumstances. There was vigorous dispute on the papers
concerning the interpretation of the trust deed. The first
point of dispute was whether Annette and Erna were at all covered by
any of the specified classes of beneficiaries.
[27]
Their biological mother, Ms Strauss, had contended, in her affidavit,
that the founder’s intention was precisely to exclude
Annette
and Erna since, as she claimed, they had already received more
benefits than their little sister, Sandra. The bottom-line
of
her allegations boiled down to this: The real purpose of the
three trusts was that Sandra was not only supposed to enjoy
preference but that her elder sisters, Annette and Erna, were
supposed to be complete eliminated from the benefit equation.
Such construction obviously prejudices the interest of
potential beneficiaries.
[28]
The three trusts were named Annette Trust, Erna Trust and Sandra
Trust. Those identificative labels by themselves strongly
militated against Ms Strauss’ proposition and related
submissions. It was common cause that clause 2.3.1, the clause
at the centre of this dispute, was ambiguous for that very reason
alone. It became necessary, therefore, to take the context
into
account in interpreting the testamentary clause. The so-called
“armchair approach” would, according to the
approach of
more than half a century ago, have been applicable. That in
itself would have meant that the context has been
taken into account.
[29]
Indeed a few days before the hearing of the application, the current
applicants formally conceded that the late Ms Strauss’
interpretation that Annette and Erna were excluded from inheriting
was wrong and that they were legatees in accordance with clause
2.3.1.2 and clause 2.3.1.3 of the trust deed. Notwithstanding
the concession, Hancke J obviously still found it necessary
to
determine whether such concession was correctly made or not.
[30]
During the course of his judgment Hancke J lamented the lack of good
draftsmanship in the drafting of the trust deed:
“
Dit
is duidelik dat hierdie klousule nie ‘n toonbeeld van elegansie
en duidelikheid is nie. Die vraag ontstaan wat Annette
se
status ten opsigte van die Annette Trust is. In die hoofaansoek
(om uitsetting) het Mev Strauss aangevoer dat Annette
glad nie ‘n
begunstigde van die trust is nie.”
Mr
Heymans considered the finding to be a misdirection. He argued:
“
The
court erred in finding that the trust deed is not an example of
elegance and clarity (“toonbeeld van elegansie en
duidelikheid”).
Mr
Van der Merwe disagreed. He argued:
“
16.5
Verder word aan die hand gedoen dat die submissie in verband met die
beweerde duidelikheid van die sogenaamde “
vrye
diskresie”
foutief is. Indien daar wel uitdruklike riglyne gegee was
waarbinne die sogenaamde vrye diskresie uitgeoefen moes word, kon
hierdie submissie moontlik gewig gedra het. Dit is egter tog
duidelik dat die trustees nie reg sou optree indien hulle byvoorbeeld
besluit het om uit die nageslagte na verwys die dogtertjie met die
mooiste glimlag uit te soek om al die bates van hierdie trust
(en dan
ook van die ander twee trusts) te ontvang nie.”
I
am persuaded by the latter’s submission.
[31]
If the clause has to be interpreted in the light of the prevailing
circumstances, as Ms Strauss herself did, then the applicants
in this
instance cannot now turn around and allege that the court erred by
doing precisely that. In their heads of argument
the applicants
reverted to their initial stance. They argued that the court
erred in finding that the late Ms Strauss wrongly
interpreted the
trust deed. The submission came as a surprise in view of the
previous concession made by the applicants.
Mr Van der Merwe
pointed out that the latest submission was in sharp conflict with the
argument advanced on behalf of the applicants
in court on 24 November
2016.
[32]
It is useful to highlight the contents of par 2 notice of intention
to apply for leave to appeal. It reads:
“
Hy
het die agtergrond,
konteks
en omringende omstandighede waaronder die Trustakte tot stand gekom
het
,
oorbeklemtoon teneinde tot ‘n bevinding te kom wat lynreg in
stryd is met die ondubbelsinnige bewoording van die Trustakte;”
Here
the applicants implicitly conceded that the court was entitled to
take the contextual matrix relative to the clause into account.
The only objection, which was narrowly circumscribed, was that the
court had “over-emphasized” the context. It
will be
readily appreciated, therefore, that the applicants were blowing hot
and cold.
[33]
Mr Heymans also submitted that the court should have interpreted
clause 2.3 read with clause 14 of the trust deed in a manner
that
respected and bolstered the absolute and unfettered discretion of the
trustees as to whom they would choose as beneficiaries.
To
illustrate the point, counsel made the following example: A
father promises to bequeath certains farms to his son.
On the
strength of the promise, the son works very hard, with great
expectation, to cultivate and to preserve those farms.
However,
the father ultimately bequeathes those farms to someone else.
The point was the father did so knowing that no court
would interfere
with his decision on the ground of its apparent unfairness.
This sort of thing happens all the time, counsel
said.
[34]
Once again Mr Van der Merwe disagreed. He articulated his
submission as follows:
“
Dit
word aan die hand gedoen dat die bogenoemde voorbeeld nie alleen
onvanpas nie, maar ook ongelukkig en defektief is. Dit
word aan
die hand gedoen dat terwyl ons reg, ter wille van die beginsel van
testeer vryheid, ‘n bedrog soos bovermeld moet
toelaat, word ‘n
trustees nie toegelaat in ons reg om sodanige bedrog te pleeg nie.
En dit nogal in die naam en ter
uitvoering van die doeleindes van die
oprigter nie. Dit blyk juis dat wyle Mnr Strauss reeds voor die
oprigting van die trusts
die plaas Beginsel aan Annette toevertrou
het met die klaarblyklike bedoeling dat dit permanent sou wees.”
[35]
It was undisputed that, long before the trust was created, the late
Mr Strauss entrusted the landed property called Beginsel
Farm to
Annette for her own beneficial occupation, use and enjoyment.
He did so with the apparent intention of letting her
permanently
occupy, exploit, use and enjoy the farm. That finding by the
court cannot be faulted. It would, therefore,
have been unjust
and unfair to dispossess Annette under the guise of a trustee’s
absolute and unfettered discretion.
In our law the principle of
freedom of testation is recognised but the scope of that principle is
restricted to testators only.
It follows, therefore, that a
trustee cannot invoke the protection of such testamentary principle.
[36]
The principles of trusteeship are clear. A trustee must act
objectively, impartially and with
bona
fide
intentions at all times according to our common law. A trustee
has to strive to attain the objectives for which the trust
was
created by the founder. To achieve that goal a trustee has to
put her own interest aside.
[37]
The legal commentator,
WM Van der Westhuizen; Wills and
Trusts
, Division D LexisNexis at B14 deals with the free
discretion of trustees. He comments:
“…
does
not allow them to do as they please. The trustees’
discretion is limited by common law and usually by the trust
deed.
Their discretion is limited by the trust deed by determining the
context in which the trustees exercise their ‘unfettered’
discretion, i.e. whether all three levels of discretion regarding the
benefit of beneficiaries referred to above are given to the
trustees
and by other possible contradicting stipulations in the trust deed.”
[38]
The writer continues further to outline the limitations of a
trustee’s discretion:
“
The
common law rules limiting the discretion of trustees stem from the
age old principles of Natural Justice. These rules
required
that whenever any discretion is legally given to anybody, such
person, - i.e. a trustee – must apply his/her mind
to the
actual exercise of any such power or discretion … the
exercising of any discretion therefore calls for a wider, or
more
comprehensive inquiry into matters by the trustee than he/she might
have applied in his/her personal decision making.”
[39]
The writer referred to
Wiid
and Others v Wiid & Others
[2006] ZAHSA (1571/2006) (NCK). Commenting on that decision the
writer made the following observation:
“
Trusteeship
requires far more than respecting the sentiments of a deceased
founder …”
[40]
In
Honore’s
South African Law of Trusts
,
5
th
ed p 315-6 the authors Cameron De Waal Wunsch deal in detail with the
requirement that a trustee must impartially act, avoid conflict
of
interests and fairly treat beneficiaries.
[41]
In her affidavit Ms Strauss stated that the trust deed formed part of
the couple’s estate planning. Indeed this
clearly appears
to be the case
ex
facie
the trust deed itself. The trust deed also refers to Erna Trust
and Sandra Trust – vide clause 2.3. It was also
mentioned
that other trustees would possibly have to be appointed by the
founder and his spouse in their lifetime by way of a written
document
– vide clause 6.1.1; the trustees would be entitled to
hand any assets of the trust to any trustee before
the termination of
the trust – vide clause 16.2 and that such beneficiaries would
be at liberty to freely deal with trust
assets so allocated to them
as their exclusive property – vide clause 16.3. Therefore
the submission made on behalf
of the applicants was incorrect.
[42]
It follows from the integrated reading of the aforesaid clauses that
the trust deed itself formed part and parcel of a estate
planning
which was still work in progress. Should it appear that a
trustee, or better still a creator, has made an award
in the past as
envisaged in clause 1.3 of the trust deed, then the manner in which
he dealt with the previous award must surely
serve as a guideline to
his successors or later trustees in the future.
[43]
It is a basic principle of interpretation that a document under
consideration must be read as a whole. Where it becomes
apparent upon such complete reading that a document refers to other
document, such other documents must also be necessarily read.
They cannot simply be disregarded. In this instance the
document, which is central to the interpretation exercise, expressly
refers to two other trust instruments with labels that precisely
correspond with the real names of the founder’s two other
daughters. Those documents, relative to the two further trusts,
must be taken into account in interpreting the first trust.
[44]
It must be appreciated that clause 13 does not, in any way prescribe
to the court as to how it should go about to ascertain
the founder’s
objectives. The function of the court is not simply restricted
to the mere reading of the trust deed.
This much is clear from
the authorities already referred to earlier.
[45]
Now I turn to other miscellaneous grounds of the application.
In the first place, it was submitted that Ms MM Strauss
was property
appointed as the capital beneficiary – vide par 4 notice of
application and par 16 applicants’ heads of
argument.
[46]
This point was not at all argued before the court. The
trustees, Mr NP Maree N.O. and Ms MM Strauss N.O. decided that
the
latter was the capital beneficiary. Meanwhile a separate
application has been issued to set aside such decision on various
grounds. It would appeared that Ms Strauss represented to her
co-trustee that it was one of the objectives of the trust that
she
was earmarked by the founder to become the capital beneficiary.
On the strength of such representations the point of
departure
adopted by the trustees was that Annette and Erna as well as their
offsprings, were positively excluded from the benefit
stakeholding.
The basis of the decision taken by the trustees appears to me to have
been questionable. Because it is
for another time before
another court, I say no more about it.
[47]
In the second place, it was submitted that the court erred by
considering clause 3.5 of the will – vide par 20 of the
heads.
I am not persuaded by the submission. The clause is clear.
It indicates that the founder of the trust
strived to treat his three
daughters equally. Such equal adjudication or treatment was the
golden thread of the scheme designed
by the founder of the trust.
I am not persuaded that the court erred.
[48]
In the third place, it was submitted that the court erred by
interpreting clause 3.3 of the will as it did. – vide par
19 of
the heads. I had difficulty with the submission. It is
this: It was not at all clarified why the court
was wrong in
referring to the clause. In my view the clause indicated that
there was connective association between the child
Annette and the
entity affectionately named Annette Trust in the forefront of the
trust founder’s mind at the time he drew
up his will.
That point was a compelling consideration. On the contrary,
there was no such connective association through
which the entity
called Annette Trust could be mentally attached or associated with
the child named Sandra.
[49]
In the fourth place, it was submitted that the court erred in that it
attached a wrong meaning to clause 3.6.2 of the will
concerning the
option relative to the sale of Quaggafontein Farm – vide par 21
of the heads. Let me hasten to
say the submission had no
substance. The submission was premised on the argument that one
would have expected the founder
to have bequeathed the farm to
Annette straight away instead of giving her the first option to buy
it.
[50]
It was common cause that the founder had ten farms and three
daughters. We know ten is not mathematically divisible by
three. Therefore, the tenth farm did not fit in the founder’s
scheme of three equal distribution of the farms.
Quite
obviously bequeathing the one odd farm to Annette would certainly
have disturbed the equation. It was precisely the
founder’s
resolute to avoid perceptions of inequality that he testamentary
directed that the particular farm be sold and
that the proceeds of
its sale be equally shared by his three daughters. The one
child who had distinguished herself in the
farming tradition of the
family was Annette which was why the father gave her the optional
opportunity of buying the farm in question
without giving her any
unfair financial advantages.
[51]
All those were material consideration. They strongly fortified
the submission that the founder was committed to an equality
scheme
of wealth distribution among his children. He came up with the
idea of three possible ways for the sale of the farm.
The
underlying idea was to ensure that the farm would be entrusted to one
and the same person. That, in my view, was of paramount
importance. What emerges from all this is that it was
self-evident to the founder that Annette had to inherit the assets
of
Annette Trust unless, of course, she should fall by the way side
before the awarding was done.
[52]
In the fifth place, it was submitted that the trust documentation as
demanded by the respondents was not really needed.
The main
application concerns the eviction of Annette and her family from the
Beginsel Farm. On behalf of the respondents,
it was contended
that they required such documentation in order to resist their
eviction. Clause 16.3 of the trust deed makes
provision for the
handing over of trust assets to the appointed beneficiaries even
before termination of the trust. It was
further contended that
the respondent have to ascertain what decision were taken by the
trustees prior to the initiation of the
eviction proceedings.
It is unclear why trustees would withhold such documentation.
[53]
In the sixth place, it was alleged that it was unnecessary to have
additional trustees appointed. In the meantime, the
Master:
High Court, has appointed three new trustees, in addition to Nicolas
Petrus Maree, namely: Samuel Jakobus Maritz;
Abraham Johannes Louw;
and Patrick Ellis.
See
the letters of authority issued on 17 March 2017.
Therefore,
the point requires no further comments.
[54]
In the seventh place, it was submitted that the matter be referred to
trial for oral evidence – vide par 30 heads.
The
court was never asked, prior to the hearing of the application, to
refer the matter for oral evidence. That is the one
thing.
It was not indicated which pertinent points in dispute existed which
must be so referred. Indeed all the points
that were tabulated
as background facts and contextual facts were undisputed. This
is another thing.
[55]
The rest of the grounds of appeal which I did not specifically deal
with in this judgment, were not overlooked or disregarded.
I
considered them all. I found each of them to be devoid of any
substantive merit.
[56]
Section 17 Superior Court Act 10 of 2013 provides that leave to
appeal
shall
only be given
where the judge concerned is of the opinion that the appeal would
have a reasonable prospect of success or where there is some
other
compelling reason why it should be heard. Although the courts
are not unanimous in their interpretation of the section,
they are
nonetheless
ad
idem
that
the
test is now more stringent than before the section was enacted
.
[57]
It will be readily appreciated, therefore, that it is no longer
business as usual, in considering an application for leave
to
appeal. The applicant now bears a comparatively more onerous
burden than ever before to establish, on a balance of probabilities,
that a reasonable prospect exists that the appeal would succeed.
The threshold for granting leave to appeal against a provincial
decision has been purposefully raised. The
Mont
Chevaux Trust v Tina Goosen & 18 Others
[2014] ZALCC (3 November 2014) (LCC14R/2014) (WCT) par 6 per
Bertelsmann J. The purpose is to curtail the ever-increasing
influx of appeals to the Supreme Court of Appeals
[58]
Given the peculiar circumstances of this particular case and the
reasons given by the court for the order – I could find
no
truly convincing and objective grounds to sustain the submission that
a reasonable prospect or possibility exists to persuade
another court
to come to a different conclusion. Consequently I am inclined to
decide the issue in favour of the respondents.
[59]
The real driving force behind the current proceedings is Ms Sandra
Strauss, the third applicant. She is the only person
with real
and substantive interest in the pursuit of an appeal now that her
mother, and the first applicant in the eviction proceedings
is no
longer alive. On behalf of her sister Ms Annette Jansen Van
Rensburg and her family, the respondents herein, I was
urged to
direct the third applicant to pay the costs of this application.
On the facts, I am persuaded that she has to be
held liable for the
payment of the costs of this unsuccessful application.
[60]
Accordingly I make the following order:
60.1
The application for leave to appeal is dismissed with costs.
60.2
The costs shall be borne and paid by the third applicant.
____________
M.H.
RAMPAI, J
On
behalf of the applicants: Adv PJ Heymans
Instructed
by:
Cooper-Majiedt
Bloemfontein
On
behalf of the respondents: Adv JL Van der Merwe
Instructed
by:
Horn
& Van Rensburg
Bloemfontein