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[2015] ZAGPPHC 41
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Muller N.O. v Muller N.O. and Others (50560/2013) [2015] ZAGPPHC 41 (5 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER:
50560/2013
DATE: 5 FEBRUARY
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
LERNA BEATRIX
MULLER N.O.
…......................................................................
APPLICANT
AND
WILHELM KARL
MULLER N.O.
…...........................................................
1
ST
RESPONDENT
WILHELM
KARL
MULLER
.........................................................................
2
nd
RESPONDENT
ABSA BANK
LIMITED
.................................................................................
3
rd
RESPONDENT
WILKA BELEGGINGS
(PTY)
LTD
...........................................................
4
TH
RESPONDENT
MASTER OF THE
HIGH
COURT
.............................................................
5
th
RESPONDENT
JUDGMENT
LEPHOKO AJ
[1] This is an
application for leave to appeal the judgment removing the first
respondent as trustee of the Wilka Trust (the Trust)
and other
ancillary relief granted by the court. In this judgement the parties
are referred to as in the main application.
[2]
The applicant and the second respondent were previously married to
each other and were divorced on 25 November 2010. They signed
a
settlement agreement on 08 March 2011. The settlement agreement
provides,
inter
alia,
that
the applicant resigns as trustee and beneficiary of the Trust but the
resignation shall come into effect upon fulfilment of
certain
conditions by the second respondent on or before the 01 April 2011.
The applicant had resigned as a trustee on 25 February
2011 and
resigned as beneficiary on 10 March 2011.
[3]
The application for leave to appeal is primarily premised on the
interpretation of the settlement agreement regarding the applicant’s
resignation as trustee and beneficiary of the Trust as well as her
locus standi
to
bring the main application.
THE SETTLEMENT
AGREEMENT
[4]
It was contended by the first, second and fourth respondents (the
respondents) that the applicant in her founding affidavit
claims that
she is a trustee and beneficiary of the Trust and makes no mention of
the fact that she had unconditionally resigned
as a trustee and
beneficiary. It was contended that the settlement agreement was only
introduced by the applicant in her replying
affidavit after the
respondents in their answering affidavit took the point
in
limine
that
the applicant has no
locus
standi
as
she had resigned as a trustee and beneficiary of the Trust.
[5] The applicant’s
case is made out in her founding affidavit and the main relief that
was granted by the court is sought
in her notice of motion. The
settlement agreement was merely introduced as evidence to counter the
respondents’ allegation
that she lacks standing as she had
resigned as a trustee and beneficiary. The settlement agreement does
not introduce a new cause
of action. It was not necessary for the
applicant in her founding affidavit to give the historical background
that she had resigned
as trustee and beneficiary of the trust and
that the resignations had not come into effect. It is abundantly
clear from the conduct
of the applicant and the first respondent as
demonstrated throughout the papers that the applicant was at all
times recognised
and treated as a trustee.
[6] The alleged
resignation of the applicant as a trustee took place on 25 February
2011. The argument that the applicant had resigned
as a trustee and
that such resignation was unconditional is contrary to the deliberate
and unequivocal conduct of the applicant
and the first respondent
regarding the Trust. As on 7 February 2013, they still communicated
and negotiated with each other in
writing as co-trustees of the
Trust. On 16 August 2013 well over two years after the alleged
resignation, the applicant was in
her capacity as trustee invited to
the half yearly meeting of trustees scheduled for 23 August 2013. The
recognition of the applicant
as a trustee was also reinforced in
various correspondence exchanged between their respective attorneys.
The conduct of these parties
as well as that of their attorneys is in
line with the applicant and the second respondent’s intention
that is clearly set
out in the settlement agreement.
LOCUS STANDI
[7] The preamble to
the settlement agreement states that both parties are trustees of the
Elbie and Wilka Trusts and that they have
agreed to settle all the
claims between them as set out in the settlement agreement. The
settlement agreement deals amongst others
with claims arising from
the divorce order, the Elbie Trust, the Wilka Trust and the
resignation of the applicant as a trustee
and beneficiary of these
trusts.
[8] Clause 9 of the
settlement agreement provides that should any party fail to fully
perform in terms of the agreement, the other
party shall not be
compelled to give effect to the agreement and the parties shall
retain their rights which they had before signature
of the agreement.
It is common cause that the second respondent failed to fully perform
in terms of the agreement on or before
the 01 April 2011.
[9] The respondents
contended that as the applicant had resigned as trustee on 25
February 2011 and as beneficiary on 10 March 2011
this meant that
when the set conditions were not met, the resignations remained
intact. The respondents contended that the resignation
as trustee on
25 February 2011, the settlement agreement signed on 08 March 2011
and the resignation as beneficiary on 10 March
2011 were independent
and separate agreements. It was contended that if the three documents
were read independently the effect
of clause 9 of the settlement
agreement would be that once the settlement agreement became
unenforceable the resignations of the
applicant on 25 February 2011
and on 10 March 2011 would stand. I disagree with this approach.
[10] The resignation
on 25 February 2011 partly reads as follows:
“
Die
Trustees besluit dat Mev Lema Muller sa[ bedank as Trustee met
onmiddelike effek na ondertekening van hierdi Besluit”
(my
emphasiss)
"Die
Trustees onderneem verder om vir Mev Lema Muller vry te spreek as
borg en ook verder vry te spreek van enige eis in haar
hoedanigheid
as Trustee
”
[11] The actual act
of resignation was effected through clause 3 of the settlement
agreement. The above two clauses quoted from
the resignation are
directly in line with clause 3 of the settlement agreement which
reads as follows:
“
AD
BEDANKING; ELBIE TRUST EN WILKA TRUST
Die partye kom
hiermee ooreen dat Mev Muller bedank as Trustee uit die Elbie Trust
en Wilka Trust. Die bedanking van Mev. Muller
as trustee hou
outomaties in dat sy ook geensins verder ‘n begunstigde van
enige van die twee trusts sal wees nie. Hierdie
bedanking sal in
werking tree na registrasie van bovermelde aandeelhouding in die naam
van Mev Muller asook by betaling val alle
bedrae verskildig aan Mev
Muller van hierdie ooreenkoms.
Mnr Muller sal
ook aan Mev Muller skriftelike bewys lewer dat sy onthef is as borg
ten opsigte van beide die twee trusts voorofop
1 April 2011."
[12] The resignation
of the applicant as beneficiary of the Wilka Trust dated 10 March
2011 reads as follows:
“
Hiermee
dien ek, Lema Beatrix Muller, my bedanking as begunstigde in van die
Wilka Trust met ingang 1 April 2011. ”
[13] In my view the
resignation of the applicant as beneficiary of the trust is not an
independent act from the settlement agreement
as contended by the
respondents. It was merely intended to give effect to clause 3 of the
settlement agreement which required the
applicant to resign as
beneficiary of the two trusts. The wording of the resignation ties
perfectly with the stipulations in the
settlement agreement that the
second respondent had to meet the conditions set out in the
settlement agreement on or before the
01 April 2011, in particular
clause 9 thereof which reads as follows:
'GELYKTYDIGE
PRESTASIE:
Die partye kom
ooreen dat Mnre Tom Dryer & Stassen Prokureurs, genomineer
word as die prokureurs wat moet toesien dat lewering
van dokumentasie
in hierdie ooreenkoms vervat, asook betaiings gemaak te word deur Mnr
Muller, alles gelytydig te die kantoore
van Mnre Tom Dryer & Stassen
Prokureurs geskied voorofop 1 April 2011. Sou enige van die partye
nie volledig presteer
in terme van hierdie ooreenkoms nie, sal die
ander party nie verplig wees om uitvoering te gee aan die ooreenkoms
nie. Meer spesifiek
en sonder om afbreek te dien aan die algemeenheid
van voorgande, kom die partye ooreen sou enige van die dokumentasie
(Insluitende
die bank waarborg) nie behooriik gelewer word voor of op
1 April 2011 nie sal daar nie effek gegee word aan die ooreenkoms nie
en sal die partye al hulle regte hou vir wat hulle gehad het voor die
ondertekening van hierdie ooreenkoms, waarook hulle alle regte
in
terme van hierdie ooreenkoms. Hierdie ooreenkoms stel dus nie ‘n
Novatio daar nie. ”
[14] The applicant
and the respondents are in agreement that the settlement agreement
became unenforceable on 01 April 2011 when
the second respondent
defaulted. That being the case, the resignations of the applicant as
trustee and beneficiary of the trust
are also not enforceable as in
reality they are a direct consequence of the settlement agreement.
The respondents can therefore
not rely on the resignations that are a
direct consequence of a settlement agreement that they contend is of
no force or effect.
[15] The resignation
of the applicant as trustee on 25 February 2011 has additional
difficulties. In terms of the Trust Property
Control Act 57 of 1988
(the Act) a trustee vacates office when:
(a) He is removed by
the court in terms of section 20 of the Act, that is, on the
application of the Master or any person having
an interest in the
trust property; or when
(b) He resigns by
notice in writing to the Master and the ascertained beneficiaries who
have legal capacity, or to the tutors or
curators of the
beneficiaries of the trust under tutorship or curatorship as provided
in section 21 of the Act.
[16]
In the present case the applicant did not give notice of his
resignation as trustee to the ascertained beneficiaries of the
trust
as required by section 21 of the Act. No evidence was accepted by the
court to the effect that the applicant had indeed notified
the Master
of her resignation. It is common cause that the conditions set out in
the settlement agreement that were to validate
the resignation of the
applicant as trustee were not met. Even if the interpretation
proffered by the respondents concerning the
resignation of the
applicant as trustee was accepted, that would not avail the
respondents as the resignation of the applicant
as trustee had not
come into effect as she had failed to comply with the provisions of
section 21 of the Act.
1
[17]
The respondents raised the point that paragraph two of the judgment
states that the application is opposed by the first and
second
respondents whilst it was also opposed by the fourth respondent. It
was conceded by the respondents that on a proper reading
of the
judgment it is clear that it is opposed by the first, second and
fourth respondents. The respondents also contended that
in
determining the issue the court did not apply the considerations in
the Plascon Evans case. A judgment or order and the court’s
reasons for giving it must be read as a whole in order to ascertain
its intention.
2
The import of the judgment is to the effect that the respondents’
version is untenable.
[18]
Section 17 (1) of the Superior Courts Act 10 of 2013 (the
Superior
Courts Act)
inter
alia
provides
that leave to appeal may only be given where the court hearing the
application is of the opinion that the appeal would
have a reasonable
prospect of success.
Section 16
(2) (a) (1) of the
Superior Courts
Act provides
that when at the hearing of an appeal the issues are of
such a nature that the decision sought will have no practical effect
or
result, the appeal may be dismissed on this ground alone.
[19] In my view
there is no reasonable prospect that another court would find that
the resignation of the applicant as trustee had
come into effect
notwithstanding non-compliance with the provisions of section 21 of
the Act. Compliance with section 21 of the
Act is a statutory
requirement that is not dependent on the interpretation of the
settlement agreement.
[20] I am of the
view that there is no reasonable prospect that another court would
find that the applicant resigned as a beneficiary
of the Trust and
lacks standing. The applicant has made a compelling case for the
removal of the first respondent as trustee of
the Wilka Trust. Even
if another court was to find that the applicant had not resigned as
trustee, I do not foresee any reasonable
prospect that it would
condone the serious breach of his fiduciary duty by the first
respondent who has abused and misappropriated
Trust assets for his
personal benefit to the serious detriment of the Trust and its
beneficiaries.
[21]
Granting leave to appeal on the basis that there was a reasonable
prospect that another court would interpret clause 9 of the
settlement agreement differently would render the appeal of no
practical effect or result as the outcome would still be that the
applicant as beneficiary of the trust has
locus
standi
to
bring the application and that on the facts of the case it is in the
best interest of the trust and its beneficiaries that the
first
respondent be removed a as trustee.
3
Accordingly the application for leave to appeal fails.
I make the
following order:
1. The application
for leave to appeal is refused.
2. The first, second
and fourth respondents are ordered to pay the costs of this
application.
For the Applicant:
Adv C Zietman Instructed by: Desire Koch Attorneys
For
the 1
st
-
2
nd
& 4
th
Respondents:
Adv J Rust Instructed by: Dawie De Beer Attorneys
1
Weiss
N.O. v Standard Bank of South Africa Ltd. In re: Standard Bank of
South Africa v Fourie N.O. and Another ZANWHC 56 (16 May
2013) at
[18] - [19]; Van der Merwe N.O. and Others v Hydraberg Hydraulics CC
and Others; Van der Merwe N.O. and Others v Bosnian
and Others
2010
(5) SA 555
(WCC) at [17] – [23].
2
Firestone
South Africa (Pty) Ltd v Genticuro A.G. 1977(4) SA 298 (AD) at 304E-F
3
Capendale
and Another v Municipality of Saldanha Bay and Others, In re;
Capendale and Another v12 Main ST, Langebaan (Pty) Ltd and
Others
ZAWCHC 3 (29 January 2014)