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[2016] ZAGPPHC 1232
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Pheiffer and Others v About it Pretoria (Pty) Ltd and Others (65188/2014) [2016] ZAGPPHC 1232 (10 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
Date
of hearing: 31 October 2016
Case
Number: 65188/2014
Date
of hearing: 11/11/2016
Reportable:
yes
Of
interest to other judges: yes
Revised
In
the matter between:
RUDI
PHEIFFER
First
Plaintiff
RUDI
PHEIFFER N.O
(in
his capacity as trustee of the Pheiffer Family
Trust)
Second
Plaintiff
CORNELIA
MARIA PHEIFFER N.O
(in
her capacity as trustee of the Pheiffer Family
Trust)
Third
Plaintiff
And
ABOUT
IT PRETORIA (PTY)
LTD
First
Defendant
GERHARDUS
MARTHINUS
OLIVIER
Second
Defendant
GERHARDUS
MARTHINUS OLIVIER N.O
(in
his capacity as trustee of the Reivilo
Trust)
Third
Defendant
MADELEIN
OLIVIER N.O
(in
her capacity as trustee of the Reivilo
Trust)
Fourth
Defendant
JUDGMENT
BRENNER
AJ
1.
This case involves an exception taken by the four defendants to the
declaration of the first to third plaintiffs.
2.
For convenience, the parties are referred to by name where relevant.
The first plaintiff is Rudi Pheiffer personally ("Rudi
Pheiffer"), Rudi Pheiffer N.O. as trustee of the Pheiffer Family
Trust ("Rudi Pheiffer N.O."), and Cornelia Maria
Pheiffer
N.O. as trustee of the Pheiffer Family Trust ("Cornelia Pheiffer
N.O."). The first defendant is About It Pretoria
(Pty) Ltd
("About It"), the second defendant is Gerhardus Marthinus
Olivier, personally ("Gerhardus Olivier"),
the third
defendant is Gerhardus Olivier N.O. as trustee of the Reivilo Family
Trust ("Gerhardus Olivier N.O."), and
the fourth defendant
is Madelein Olivier N.O., as trustee of the Reivilo Family Trust
("Madelein Olivier N.O."). It merits
mention that Cornelia
Pheiffer N.O and Madelien Olivier N.O. do not play any significant
roles in this matter.
3.
The matter finds its genesis in motion proceedings launched in 2014,
which culminated in material disputes. Accordingly, on 28
October
2015, the case was referred by order of Court to trial, with the
notice of motion standing as a simple summons and the
plaintiffs
being directed to serve a declaration. It is this declaration which
forms the subject matter of the defendants' exception
in casu.
4.
Prior to the hearing before this Court, the defendants launched an
application for condonation for the late service of their
heads of
argument. In the exception, the defendants were dominus litis and
should have served their heads before the plaintiffs
served their
heads. After hearing argument, I granted condonation, reserved the
costs for determination in this judgment, and afforded
Counsel for
the plaintiffs an opportunity to serve supplementary heads of
argument to cure the prejudice which they maintained
they had
suffered from not having had the benefit of the defendants' heads
before serving theirs.
5.
The supplementary heads of argument were duly served and considered
before this judgment was given. Having regard to the circumstances
under which there was non-compliance with the rules of Court and the
practice manual by the defendants, the plaintiffs appropriately
called for an explanation for condonation. A reasonable explanation
was given. An order for costs against the defendants on the
party and
party scale, including the costs of Junior Counsel, is warranted.
6.
Before traversing the five grounds of exception, the provenance of
the plaintiffs' action will be briefly summarised.
7.
On 22 April 2011, a written agreement was executed. It is described
at page one as an "Agreement of Sale of Shares"
in About
It, between the "Reivilo Trust (Reg.No. 9344/96)", as
seller, and "the Pheiffer Family Trust (Reg No.....)",
as
purchaser. Still part of the heading, at page two of the document, it
is described, in addition, as an "Agreement of Loan
for the
Purchase of Shares" in About It, between Gerhardus Olivier,
personally, and Rudi Pheiffer, personally. The document
will be
referred to below as "the agreement".
8.
It is noteworthy that the final signing page of the document bears
only two signatures. The first being that of Gerhardus Olivier
"for
and on behalf of the Seller who warrants that he is duly authorised
to do
so", and the second being Rudi Pheiffer,
"for
and on behalf of the Purchaser who warrants that he is duly
authorised to do
so". It is unambiguous from the agreement
that the purchaser is the Pheiffer Family Trust.
9.
The parties are described at clause 1 as: the Reivilo Trust, the
Pheiffer Family Trust, Gerhardus Olivier and Rudi Pheiffer.
10.
I will summarise the operative clauses. The Reivilo Trust sold 50% of
the share capital in About It to The Pheiffer Family Trust
for a
purchase price of R50,00, being the
"nominal value of the
shares".
Vide clauses 4.1 to 4.2.
11.
The agreement goes further, because, in substance, the price was not
R50,00 but R1 500 000,00, and took the form of a leveraged
sale.
Clauses 4.3 to 4.11 are summarised as follows. The Pheiffer Family
Trust shall "receive finance from Pheiffer"
for the
purchase of the shares, such finance being a personal loan from
Gerhardus Olivier to Rudi Pheiffer in the sum of R1 500
000,00. Rudi
Pheiffer will pay the loan to the Pheiffer Family Trust. A
non-refundable deposit of R50 000,00 will be paid by Rudi
Pheiffer to
Gerhardus Olivier on or before 1 June 2011.
12.
The total loan was repayable over not more than six years from 22
April 2011. The instalments would be R250 000,00 for any twelve
month
period from 1 June of every year, plus accrued interest and any
arrears. The instalments would be payable within seven days
of the
declaration and payment of dividends which may accrue to the
shareholders, in proportion to their respective 50% shareholdings.
Accordingly, so the agreement reads, should Rudi Pheiffer receive a
dividend of R250 000,00, this would be ceded to Gerhardus Olivier
as
part-payment of the loan. One may observe from this that, if the
purchasing shareholder is the Pheiffer Family Trust, any dividends
should have been payable to it, and not to Rudi Pheiffer personally.
13.
The interposition of Rudi Pheiffer and Gerhardus Olivier regarding
the loan of R1 500 000,00 is peculiar. As I comprehend the
substance
of the document, 50% of the shares in About It were sold for R1 550
050,00. Rudi Pheiffer's only involvement would be
to pay R50 000,00
of the price to Gerhardus Olivier. Presumably the Pheiffer Family
Trust would owe the amount paid by him towards
the price, on its
behalf. In substance, this amount was part of the purchase price and
was payable by the Pheiffer Family Trust
to the seller, the Reivilo
Trust. I assume that payment of the nominal sum of R50,00 was of no
significance. The balance of R1
500 000,00 would come from the
Pheiffer Family Trust foregoing dividends declared by the company
from time to time over the next
six years, and permitting same to be
used to expunge the purchase price, until the full amount had been
paid. Since the seller
was the Reivilo Trust and the purchaser was
the Pheiffer Family Trust, as a matter of law, the payment for the
price of the shares
was owed by the Pheiffer Family Trust to the
Reivilo Trust, and not by Rudi Pheiffer to Gerhardus Olivier. The
agreement admits
of no other interpretation.
14.
Per clauses 5.1.1 to
5.1.3, on the effective date, being 1 June 2011, or within a
reasonable time, against payment of the purchase
price for the
shares, the Reivilo Trust would deliver to the Pheiffer Family Trust:
14.1.
the
share certificates, to enable the shares to be registered in the name
of the Pheiffer Family Trust;
14.2.
a
written cession by the Reivilo Trust to the Pheiffer Family Trust of
all their right title and interest in and to "the claims"
(the claims are not defined);
14.3. a board resolution of both the
Reivilo Trust and About It approving the agreement. As security and
surety for the loan, the
share certificates would be kept by
Gerhardus Olivier's legal representative and be available for
inspection by Rudi Pheiffer (Clause
5.1.4).
15.
I pause to mention that it was not an issue before Court that
Gerhardus Olivier was not authorised to represent the trustees
of the
Reivilo Trust, albeit that Madelein Olivier was not a signatory to
the agreement. Nor is a resolution of the trustees of
the Reivilo
Trust attached to the agreement.
16.
It was agreed that the Pheiffer Family Trust would be the "holder
in title of the allotted share amount" being 50%,
implying that
it became the half owner of the shares in About It, and all rights
and responsibilities accrued to it from 1 June
2011. These rights and
responsibilities would not be subject to the payment of the loan by
Rudi Pheiffer to Gerhardus Olivier.
17.
Ownership, risk and benefit in the shares would pass to the Pheiffer
Family Trust on 1 June 2011. However, the latter would
not be able to
trade in its shares without the written permission of the Reivilo
Trust (Clauses 5.1.5 to 5.1.6 and 5.2 and 5.3).
18.
The Reivilo Trust warranted that the sold shares were free from
encumbrance and that it could deliver good title in same to
the
Pheiffer Family Trust (Clause 6).
19.
A proper construction of the agreement admits of no other
interpretation than that the loan agreement between Rudi Pheiffer
and
Gerhardus Olivier was inextricably intertwined with the funding of
the sale of the shares in About It, between the two Trusts.
If the
sale is found to be void, then the rationale for the financing of the
sale would automatically fall away. Neither the sale
nor the loan can
exist without its counterpart.
20.
I turn to the contents of the plaintiffs' declaration served on 30
November 2015. The relief sought against the defendants is
relevant.
In the first instance, the Pheiffer Family Trust claimed, as against
the Reivilo Trust, payment of the sum of R4 000
000,00 representing
the fair value of 50% of the shares in About it. This was based on
the cancellation of the agreement arising
from the plaintiffs'
acceptance of the purported repudiation thereof by the seller.
21.
Alternatively, the plaintiffs prayed for an order directing the
Reivilo Trust to transfer 50% of the shares to the Pheiffer
Family
Trust. Rudi Pheiffer claimed payment of R50 000,00 from Gerhardus
Olivier. All the plaintiffs prayed for a declaration against
Gerhardus Olivier to declare him a delinquent director for seven
years, alternatively, for an order that he be placed on probation.
Pending such declaration, it was prayed that Cornelius van Niekerk
should be appointed as independent director of About It. Such
appointee should be afforded the right to investigate the affairs of
About It. Moreover, an order was sought granting the plaintiffs
leave
to bring proceedings under
section 165
(b) of the
Companies Act, 71
of 2008
.
22.
It is plain from the above that the plaintiffs pleaded over. In the
first instance, the fair value of the 50% shareholding is
claimed. In
the alternative, assuming a finding that the cancellation was
invalid, specific performance of the agreement is demanded,
with
ancillary relief pertaining to the management of the affairs of About
It, the irresistible inference being that its affairs
were being
improperly managed.
23.
I turn to the exception. The first ground of complaint was that the
relief in the declaration contained additional prayers and
causes of
action which materially differed from those contained in the notice
of motion. This was apparently rectified by an amendment
to the
declaration. The defendants did not persist with this ground when the
exception was argued.
24.
The second to sixth grounds remained contentious, there being an
obvious overlap amongst grounds two, three, four, five and
six,
insofar as they pertained to the alleged voidness of the agreement,
the fact that an agent could not act for unauthorised
trustees, and
the absence of proof of a stipulatio alteri.
25.
I will deal with the second and third grounds together, because their
provenance lies in the same facts, namely, that the Master
of the
High Court had not issued letters of authority to the trustees of the
Pheiffer Family Trust when the agreement was signed,
and accordingly,
Rudi Pheiffer could not act as its agent at the time. Paragraphs 8
and 11 of the declaration are pertinent: Paragraph
8 reads:
"8.
On
or about
22
April
2011 and at or near Pretoria,
a
written agreement was
concluded between the first plaintiff acting in his personal capacity
and purportedly
as
agent
of the trustees of the Pheiffer Family Trust,(on the one hand) and
the second defendant acting in his personal capacity, and
as
agent of the trustees of the
Reivilo Trust (third and fourth defendants), on the other hand. A
true copy of this agreement is annexed
hereto
as
"A"."
26.
In paragraph 11 of the declaration, it is noted that the Pheiffer
Family Trust was registered, and letters of authority were
issued by
the Master of the High Court on 10 May 2011, (eighteen days after the
date of signature of the agreement), whereafter,
the second and third
plaintiffs purported to accept the benefits in terms of annexure "A",
and became parties thereto.
27.
In the second ground, it is argued that the agreement is void,
because, at the date of signature of the agreement, being 22
April
2011, letters of authority had not been issued to Rudi and Cornelia
Pheiffer NNO. The defendants argue further that, on a
plain reading
of the agreement, it was not concluded for the benefit of a third
party, by way of a stipulatio alteri.
28.
In the third ground, the defendants aver that the words that Rudi
Pheiffer was "purportedly" acting as "agent
of the
trustees" are vague and embarrassing. In support of this, they
contend that this does not appear from the agreement.
Under section
6(1) of the Trust Property Control Act, 57 of 1988, ("the Trust
Property Control Act"), a person may only
act as trustee if
authorised thereto in writing by the Master of the High Court.
29.
Section 6(1) of the Trust Property Control Act reads:
"6(1) Any person whose
appointment as trustee in terms of a trust instrument, section
7
or a court order comes into
force after the commencement of this Act, shall act in that capacity
only if authorised thereto in writing
by the Master."
30.
It is trite that the written authorisation by the Master takes the
form of the issue of letters of authority to the trustees.
Taking
both the second and third grounds together, the defendants contend
that the agreement is void at law, and that an agent
cannot act for
an unauthorised trustee, or trustees.
31.
I am satisfied that the agreement relied on by the plaintiffs is ab
initio null and void. Rudi Pheiffer had no legal capacity
to act for
unauthorised trustees or for the unregistered Pheiffer Family Trust
when he signed the agreement on 22 April 2011.
32.
I have relied on a line of cases mentioned below, and, more recently,
the ratio in
Lupacchini v Minister of Safety and Security
2010(6) SA 457 SCA.
The facts in
Lupacchini
were
as follows. The Lupacchini Family Trust was registered with the
Master and its deed required a minimum of two trustees. Its
first
trustees, Ms Melinda and Mr Gabrielle Lupacchini, were issued with
letters of authority on 4 October 1994. On 3 June 2003,
Gabrielle
resigned as trustee and duly notified the Master. It was resolved to
appoint Luigi Lupacchini as temporary trustee in
her place. On 8
September 2003, Gabrielle and Luigi decided to sue the Minister for
damages arising from an allegedly illegal raid
of a nightclub owned
by the Trust. In November 2003, they decided to appoint Ms Conradie
as second trustee in lieu of Luigi. A
letter was apparently written
to the Master to apprise him of Conradie's appointment but it was not
received.
33.
In August 2004, the action for damages against the Minister was
commenced by Gabrielle Lupacchini and Ms Conradie in their capacities
as trustees. It was only after the action against the Minister had
commenced that Conradie was appointed as trustee, on 15 December
2004. The SCA found that the legal proceedings were invalid ab initio
despite the fact that Conradie's letters of authority were
issued
shortly after the proceedings had been initiated.
34.
Reference is made in
Lupacchini
to one of the earliest
cases on the subject, that of
Schierhout
v Minister of Justice
1926 AD 99
at 109
in
which Innes CJ noted:
"It is
a
fundamental
principle of our law that
a
thing done contrary to the direct
prohibition of the law is void and of no effect.
"
35.
In both
Simplex (Pty) Ltd v van der Merwe and others NNO
1996 (1) SA 111
and
Van der Merwe v van der Merwe en
Andere
2000 (2) SA 519
C,
the Court declared a contract
concluded by unauthorised trustees as invalid. In
Simplex,
the
Court held that section 6(1)
"is not purely for the benefit
of the beneficiaries of the trust but in the public interest to
provide proper written proof
to outsiders of incumbency of the office
of trustees.
"
36.
The SCA in
Lupacchini
supported the criticism levelled
at the decision in
Kropman and others NNO v Nysschen
1999 (2)
SA 567
T at 576F
which found that the Court had a discretion
to retrospectively validate acts of a trustee performed without the
requisite authority.
37.
At paragraph 17G to Hat page 465 of
Lupacchini,
Nugent
JA held:
"(17) One notable feature of
s6(1) that seems to me to lead strongly to the conclusion that the
acts of
a
trustee
who lacks authorisation were intended to be invalid, is that there is
no criminal sanction for acting in that way. When
there is
a
criminal sanction the
question will arise whether that was considered by the legislature to
be of sufficient consequence for contravening
the prohibition or
whether nullity was to be
a
consequence
as
well."
38.
And finally, at paragraph 23 E, page 468, the SCA quoted Fagan
JA in
Pottie v Kotze
1954 (3) SA 719
A at 726H:
"the
usual reason for holding
a
prohibited act to be invalid is not
the inference of an intention on the part of the Legislature to
impose
a
deterrent penalty for which it has not expressly
provided, but the fact that recognition of the act by the Court will
bring about,
or give legal sanction to, the very situation which the
Legislature wishes to prevent."
39.
A conspectus of
Lupacchini
makes it plain
that any steps taken ex post facto the void act serve of no
assistance in regularising same, whether retrospectively,
or at all.
In other words, an act performed by a trustee prior to receipt of
letters of authority is null and void and incapable
of ratification.
It matters not that the trustee was appointed under the trust deed.
The trustee may not act until authorised to
do so by the Master, in
writing.
40.
The fourth ground is two-pronged. Regarding paragraph 10 of
the declaration, the defendants argue that the plaintiffs have failed
to explain the nature of the "peculiar factual matrix"
against which the agreement was concluded, which attempts to
introduce a stipulatio alteri in favour of the Pheiffer Family Trust
once registered.
41.
Paragraph 10 reads:
"10. Upon a proper
construction of annexure "A" (the agreement), viewed within
its peculiar factual matrix, the parties
thereto bestowed certain
benefits upon the Pheiffer Family Trust, with the intention that, as
soon as the Pheiffer Family Trust
is registered and Letters of
Authority are issued to the trustees thereof, those trustees may
accept such benefits whereupon those
trustees will become parties to
annexure "A".
42.
As pointed out by the defendants' Counsel, there is not a
single term in the agreement which refers to such a contract. No such
inference can be drawn from a proper construction of the agreement.
This is probably why the plaintiffs refer to a "peculiar
factual
matrix", to attempt to contextualise the agreement. In argument,
Senior Counsel for the plaintiffs contended that
one of the facts in
the matrix was the knowledge by all contracting parties that the
Pheiffer Family Trust had not yet been registered
with the Master and
that letters of authority had not yet been issued. Hence the
effective date of 1 June 2011 being in advance
of the signing date of
22 April 2011, to afford the Pheiffer Family Trust the chance to
regularise matters. Even if this was the
case, it is of no relevance.
It does nothing to render valid what was a nullity to start with.
43.
The act of ratification is not possible where the agent is
obliged, by statute, to obtain authority from his principal prior to
concluding the contract. In
Thorpe and others v Trittenwein and
another 2007(2) SA 172 SCA,
a single trustee signed a sale
agreement in respect of immovable property. His act was ratified
thereafter by the remaining trustees.
The SCA found that
ratification, ex post facto, could not validate the sale because
section 2(1)
of the
Alienation of Land Act, 1981
, required prior
written authorisation of the agent.
44.
As mentioned in
Crookes NO and another v Watson and
others 1956(1) SA 277 A,
"the typical contract for
the benefit of a third person is one where A and B make a contract in
order that
C
may be enabled, by notifying A, to become a party
to a contract between himself and A."
This does not appear
in the agreement in casu. On the contrary, the agreement
unequivocally refers to Rudi Pheiffer as an agent
for the Pheiffer
Family Trust. When a trustee acts on behalf of a trust, the trust
will only become bound if all necessary trustees
had the legal
capacity to grant him the authority, at the date on which he
purported to bind the Trust.
45.
Secondly, based on a reading of paragraphs 12.1 to 12.8, which
appear to define the salient terms of the agreement, the plaintiffs
plead "express, implied and tacit terms" of the agreement
without specifying which terms are express, implied and tacit.
Moreover, implied or tacit terms at entirely at variance with the
"non-variation" and "whole agreement" clauses
at
9.1 and 9.2 respectively of the agreement. These clauses would by
their very nature exclude an implied or tacit stipulatio alteri.
At
paragraph 43 page 411 of the judgment in
KPMG v Securefin
Limited
2009 (4) SA 399
SCA,
Harms DP said:
"whether a tacit term can be
inferred depends on an interpretation of the document and not on the
evidence."
46.
I refer to the argument based on there being a relevant
"factual matrix" against which the agreement should be
viewed
and evidence should be adduced at trial. I was referred to the
KPMG
case as authority for the principle that this
approach was applicable to the facts in casu. The statements of
Harms, DP, at paragraph
39 page 409 of the judgment are inciteful,
but serve to fortify, and not negate, my reasoning in this judgment,
and the finding
in
Lupacchini
:
"39.
First, the integration
(or parol evidence) rule remains part of our law. However, it
is
frequently ignored by practitioners and seldom enforced by trial
courts. If a document
was
intended to provide a complete
memorial of a Jura/ act, extrinsic evidence may not contradict, add
to or modify its meaning (Johnston
v Leal
1980 (3) SA
927
A at
9438).
Second. interpretation
is
a
matter of law and not of fact and, accordingly, interpretation
is
a matter for the court and not for witnesses
......Third,
the rules of admissibility of evidence in this regard do not depend
on the nature of the document., whether statute,
contract or patent
(Johnson and Johnson (Pty) Ltd v Kimberley-Clark Corporation and
Kimberley-Clark of South Africa (Pty) Ltd 1985
BP 126 A.... Fourth,
to the extent that evidence may be admissible to contextualise the
document (since "context
is
everything") to
establish
its
factual matrix or purpose or for the purposes of
identification, "one must
use
it
as
conservatively
as
possible."
(my emphasis)
47.
In this case, there is no warrant to have regard to any
"peculiar factual matrix". The only facts that matter, and
that
are common cause are that, on the date the agreement was signed,
being 22 April 2011, letters of authority had not been issued to
the
trustees of the Pheiffer Family Trust. When signing the agreement,
Rudi Pheiffer purportedly acted as trustee of this trust
when he
lacked authority from duly appointed trustees to do so.
48.
T
he case of
Natal Joint Municipal Pension Fund v
Endumeni Municipality
2012 (4) SA 593
SCA,
also relied
upon by plaintiff's Counsel, is of no assistance to them, since its
facts have nothing to do with a contract which fails
to comply with
peremptory statutory formalities.
49.
In the fifth ground, the defendants contend that the
plaintiffs lack locus standi under
section 162
of the
Companies Act,
71 of 2008
, to apply for relief under
section 162.
This because only
a shareholder, director, company secretary, prescribed officer,
registered trade union or representative of employees
of a company
may apply to declare a person delinquent. This claim is premised on
the second alternative for specific performance
of the terms of the
agreement. Based on this claim, the Pheiffer Family Trust is a
shareholder of About It and therefore enjoys
locus standi to invoke
section 162.
50.
However, yet again, this claim is predicated on the validity
of the agreement in the first place. The claim is unsustainable if
the agreement is found to be void.
51.
The sixth ground constitutes a complaint that paragraph 19 of the
declaration repeats the wording of
section 162
of the
Companies Act,
17 of 2008
, without providing the facta probanda on which the wording
is based. Paragraph 20 of the declaration also falls foul of the
requirement
to provide the relevant facta probanda by simply
averring:
"20.
Further particulars about
the said conduct of the second defendant is contained in the Founding
Affidavit of the first plaintiff
filed under the
same case
number."
52.
Counsel for the
defendants quoted the decision in
Honikman
v Alexandra Palace Hotels (Pty) Ltd
1962 (2) SA 404
C at 406H to
407A:
“
to say that the defendant
failed to exercise proper care and skill is merely to say again that
he was negligent, and to refer to
the matter of the valuation of the
works executed takes the case no further. That is obviously the whole
and only dispute between
the parties .....
In
the result it seems to me that the defendant has pleaded the
inference of law on which he relies, without setting out the facts
on
which such inference is to be drawn."
(my
emphasis)
53.
This is precisely what has occurred in casu, in conflict with
the requirements of Rule 18(4) of the Uniform Rules. It is not facta
probantia, but facta probanda, which are missing from the contents of
the declaration.
54.
However, yet again, this claim is predicated on the validity
of the agreement in the first place. The Pheiffer Family Trust is not
a shareholder if the agreement is void for non-compliance with
section 6(1) of the Trust Property Control Act. And certainly, Rudi
Pheiffer, personally, has no locus standi for such relief in any
event. The claim is still born if the agreement is void.
55.
In the final analysis, based on the established case law on
the subject, the agreement which constitutes the plaintiffs' cause of
action is a nullity and ab initio null and void, for non-compliance
with section 6(1) of the Trust Property Control Act.
56.
No "peculiar factual matrix" can resuscitate what
was a nullity from the outset.
57.
Judgment is granted as follows:
a. The defendants are granted
condonation for the late service of their heads of argument;
b. The defendants are directed,
jointly and severally, to pay the costs of the condonation
application on the opposed party and
party scale, confined to the
costs of one Junior Counsel;
c. The defendants' second, third,
fourth, fifth and sixth grounds of exception are upheld;
d. The paragraphs of the declaration
relating to the above grounds of exception are struck out;
e. The plaintiffs are directed,
jointly and severally, to pay the defendants' costs of the opposed
exception;
f. The plaintiffs are afforded leave
to serve an amended declaration within 15 days of the date of this
judgment, failing which,
the defendants shall be entitled to apply
for the dismissal of the plaintiffs' claims, with costs.
Appearances
For
the Defendants (on Exception): Advocate APJ Els
Instructed
by: Van der Merwe and Associates Inc
Counsel
for Plaintiffs (on Exception): Adv JD Maritz SC with Adv PL Uys
Instructed
by: Gerhard Botha and Partners Inc