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[2015] ZAFSHC 102
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Richter v Richter N.O. and Others (5278/2014) [2015] ZAFSHC 102 (21 May 2015)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Case
No.: 5278/2014
In
the matter between:
CHRISTIAAN
GEORGE FREDERICK RICHTER
Applicant
and
ELMINE
RICHTER
N.O.
1
st
Respondent
JACOBUS
FRANCOIS DU PLESSIS N.O.
2
nd
Respondent
ELMINE
RICHTER
3
rd
Respondent
ELRI
RICHTER
4
th
Respondent
CORAM:
LEKALE,
J
JUDGEMENT:
LEKALE, J
HEARD
ON:
21 MAY
2015
DELIVERED
ON:
28 MAY
2015
INTRODUCTION
AND BACKGROUND
[1] On the 28
th
November 2014 the applicant secured, on an urgent basis, an order
that:
“
1.
Die respondente
opgeroep word om redes aan te toon, indien enige, by genoemde Agbare
Hof op Donderdag, 12 Februarie 2015 om 09h30,
waarom die volgende
bevel nie verleen sal word nie:
1.1
Dat
eerste en tweede respondente gelas word om:
1.1.1 Nie met die bates
van die Leeukop Trust (IT 1495/95); Verlaat Trust (voorheen
Kareetrust)(IT1496/95); Leeukop
Boerdery Trust (IT464/04); Ecer
Eiendomstrust (IT 1079/12) en Jece Testamentêre Trust (MT
2941/99) te handel, te beswaar
of te vervreem nie;
1.1.2 Fondse uit die
rekening van die Verlaat Trust te Nedbank met rekeningnommer [……..]
of enige ander
bankrekening van die Verlaat Trust te onttrek of
daarmee te handel nie;
1.1.3 Nie met die
bankrekenings soos genommer as 1, 2,3,4,6, en 7 op Bylae “CR18”
te handel of daarteen
te onttrek nie sonder 12 ure vooraf skriftelike
kennis aan applikant;
2.2 Dat die
bevele verleen in paragrawe 1.1 (1.1, 1.1.1, 1.1.2 en 1.1.3 soos
gewysig) sal dien as tussentydse
interdik met onmiddellike werking
hangende die bring van ‘n aansoek ter verwydering van eerste en
tweede respondente as trustees
van die trusts soos verwys in
paragraaf 2.1.1 en welke gebring te word binne ses weke na die
verlening van bevele hierin;
2.3
Dat die bevel hierin verleen persoonlik beteken sal word.”
[2]
On the 12
th
February 2015 the interim order and the return day were extended to
the 21
st
May 2015. The applicant, on his part, eventually filed an
application for the removal of first and second respondents from
office as trustees of various trusts referred to in 1.1.1 of the
order and in which he is the beneficiary on the 21
st
May 2015.
[3]
The first and third respondent is the applicant’s mother and
also a beneficiary in most, if not all, of the trusts involved
and so
is the fourth respondent who is the applicant’s sister.
The second respondent is the applicant’s uncle
and husband to
the third respondent’s sister. No papers have been filed
by and for the second and fourth respondents
and they, as such,
effectively abide the order of the court.
[4]
The matter now serves before me on the extended return day of the
rule
nisi
and the first and third respondents (the respondents) oppose the same
in
limine
on,
inter
alia
,
the ground that the interim interdict lapsed when the applicant
failed to launch the application for the removal of the trustees
within six weeks calculated from the date of the above order viz. the
28
th
November 2014. The applicant, on his part, denies that he failed to
comply with the prescribed time period and maintains that he
was only
required to bring such an application within six weeks calculated
from the date of a final order which is yet to be made.
In the
alternative he contends in argument and from the bar that cause
exists for condonation by the court of the delay in launching
the
application in question and, further, seeks extension of the life of
the interim interdict until finalisation of such application.
At the end of the hearing the parties effectively requested judgment
on the issue but I deferred the same until I had considered
the
merits.
DISPUTE
[5]
The parties are
ante
omnia
at variance over whether or not the applicant failed to comply with
the condition attaching to the order to the effect that he
shall
bring an application for the removal of the trustees of the relevant
trusts within six weeks after the making of orders in
the matter with
Mr Burger, for the applicant, submitting that the prescribed six week
period will only start running after confirmation
of the orders. On
behalf of the respondents Mr Dorfling contends that the relevant
period clearly started to run immediately after
the interim order was
issued on the 28
th
November 2014.
[6]
The parties are, further, in dispute over whether or not the
applicant was and still is entitled to the orders sought regard
being
had to the purpose of the application as set out in the founding
affidavit as well as the onus on the applicant of establishing
his
prima
facie
right to the relief sought by showing, on a balance or probabilities,
that on available facts he should obtain the relief he seeks
in the
removal application.
APPLICANT’S
CONTENTIONS
[7]
Mr Burger submits that the intention of the applicant was to apply
for the six week period to start running from the date of
the final
order and not from the date of the interim order. In his view
it was just a mistake that the word “
finale”
was omitted as a qualification to the word
“
bevele”
in paragraph 2.2 of the notice of motion. In the alternative he
submits that the appropriate course to follow in the circumstances
is
for the court to condone the delay in launching the relevant
application and to extend the lifespan of the interim interdict
so
that it operates until finalisation of the application for the
removal of the trustees.
[8]
On behalf of the applicant it is further painstakingly and
elaborately contended that the conduct of the trustees, particularly
the first respondent, clearly warrants their removal from office in
that they are not impartial in their treatment of beneficiaries,
they
conceal information from the applicant as a beneficiary, there exists
irretrievable breakdown of trust between the applicant
and the
trustees, the respondents do not exhibit care, diligence and skill in
their dealings with the applicant in so far as they
required him to
sign away his assets in favour of the fourth respondent and they,
further, prejudice the beneficiaries as well
as the intentions of the
founders of the trusts.
RESPONDENTS’
CONTENTIONS
[9]
Mr Dorfling eloquently submits that the principle of clean hands is
applicable in the instant matter in so far as the applicant
appropriated trust funds without the consent of the trustees and
without even first having informed them. He, thus, approaches
the
court with dirty hands and deserves no assistance whatsoever from the
court.
[10]
It is apparent
ex
facie
the launching papers that the six week period was intended to run
immediately after the interim orders were issued. The court
order is very clear on the issue and there exists no cause to depart
from its ordinary words according to the
respondents.
Failure by the applicant to comply with the compelling
resolutive
condition
requiring him to launch the removal application within six weeks of
the interim order resulted in the same lapsing.
There, thus,
exists no interim order to confirm. There, further, exists no
good cause for either condonation of the delay
in launching the
removal application or revival of the rule
nisi
as contemplated by rule 27 on the Uniform Rules of Court. The nature
of the interdict
in
casu
required maximum expedition on the part of the applicant.
[11]
The undisputed facts before the court show that the third respondent
did a sterling job of pushing the business of the trusts
in the right
direction by ensuring growth as opposed to prejudicing beneficiaries
and the interests of the relevant trusts.
The applicant failed
dismally to show that available facts should entitle him to the
relief he seeks in the main application according
to Mr Dorfling.
[12]
The applicant obstinately refused to follow sound advice from his
erstwhile attorney and arrogantly elected to pursue confrontational
litigation in a family matter which deserves amicable resolution.
APPLICABLE
LEGAL PRINCIPLES
[13]
The effect of a court order is ascertained from reading the order as
a whole by giving words their natural and ordinary meaning
as the
case is when interpreting other documents such as contracts. As
the court in
Firestone
South Africa (Pty) Ltd v
Genticuro
A
G
1977
(4) SA 298
AD pointed out at page 304D – H:
“…
The
basic principles applicable to the construction of documents also
apply to the construction of a court's judgment or order.
The court's
intention is to be ascertained primarily from the language of the
judgment or order as construed according to the usual
well-known
rules.”
[
14]
Failure to press on with the main action where an interdict has been
issued pendente lite may provide cause for questioning
the
bona
fides
and
genuineness of the applicant’s claim and may lead to the same
being regarded as an abuse of the procedure for obtaining
relief
pendent
lite.
(See
Chopra
v Avalon Cinemas SA (Pty) Ltd and Another
1974(1) SA 469 (D) 472E)
[15]
Rule 27 of the Uniform Rules of Court authorises and regulates
extension of time limits, removal of bar and condonation on
substantive applications and good cause shown. It further
specifically authorises revival by the court or a judge in chambers
of rules
nisi
discharged by default of appearance by applicants.
[16]
The court has no power to revive a rule
nisi
which has lapsed because of the fulfilment of a resolutive condition
such as failure to take a prescribed step timeously. (See
Williams
v Landmark Properties SA and Another
1998 (2) SA 582
(W) at 588C.)
[17]
An applicant for interim interdict must,
inter
alia
,
prove that he has a
prima
facie
right to the
relief
he
seeks by showing that on the facts before the court he should obtain
the relief he seeks in the main action or application.
(See
Webster
v Mitchell
1948
(1) SA 1186
(W) and
Gool
v Minister of Justice
1955 (2) SA 682
(C) at 688D – E.)
[18]
Trustees may be removed from office in terms of either section 20(1)
of Trust Property Control Act, No 57 of 1988 if the court
is
satisfied that such removal is in the interests of the trust and its
beneficiaries or the common law if the welfare of the beneficiaries
warrants such a move by the court. (See
Sackville
West v Nourse and Another
1925 AD 516.)
APPLICATION
OF THE LAW TO THE FACTS AND FINDINGS
[19]
The purpose of the instant application when it served before the
court on the 28
th
November 2014 and as set out in the
founding affidavit was:
“…
om
die bevoegdhede en die magte van eerste en tweede respondente te
beperk hangende die bring van ‘n aansoek vir die vervanging
van
die trustees (eerste en tweede respondent).”
(See
paragraph 7.1 of the Founding Affidavit at p13 of indexed bundle)
[20]
The court order was granted in the language of and the terms set out
in the notice of motion and is clear insofar as paragraph
2.2 thereof
reads:
“
Dat
die bevele sal dien as tussentydse interdik met onmiddellike werking
hangende die bring van ‘n aansoek ter verwydering
van Eerste en
Tweede respondente as trustees van die trusts soos verwys in
paragraaf 2.1.1 en welke gebring te word binne 6 weke
na die
verlening van bevele hierin.”
That
much was not disputed by Mr Burger who was quick to point out that
the qualification “
finale
”
was erroneously left out in the notice of motion.
[21]
In my view “
bevele
hierin”
mentioned in both the order and the notice of motion clearly
refers to the order itself and not to any final orders that
may be
issued in the future on return day. In the circumstances of the
present matter the court would not, in my opinion, reasonably
possibly have premised the operation of an interim order on some
future uncertain event falling totally outside its control such
as a
final order the making of which depends on the facts that would serve
before a court entertaining the matter on return day
and which may or
may not be issued.
[22]
A reading of the order against the motion which precipitated it
leaves no doubt that the six week period was intended by both
the
applicant and the court to run from the 28
th
November 2014. The filing of an application for the removal of
the first and second respondents from office as trustees within
that
prescribed time period was a condition on which the life of the
interim interdict which was adjunct to the rule
nisi
depended. It is possible that the delay, on the part of the
applicant, to bring the relevant application had its genesis
in the
realisation by the applicant that the life of the interdict, which
was obviously to his advantage and to the concomitant
prejudice of
the respondents as trustees, was in his hands. The longer he delayed
in launching the application the longer the interdict
operates with
first and second respondents
prima
facie
remaining restrained in their powers and activities as trustees for
much longer.
[23]
The order, however, did not leave the matter entirely in the
discretion of the applicant because it obliged him to launch the
relevant application within a specified time period after its issue.
Failure on his part to comply with the order had negative
consequences and did not
per
se
extend the life of the interdict at all because the order included an
implicit preservative and compelling resolutive condition
to the rule
regard being had to the explicit purpose of the rule as set out in
the motion. Failure to comply with the prescribed
time period
amounts to abuse of process and effectively deprives the rule of its
raison
d’etre
as
opposed to preserving the same so as to sustain the rule. Such a
dilatory attitude on the part of the applicant effectively fulfils
the resolutive part of the condition and triggers the lapse of the
rule
nisi
regard
further being had to the maxim
cessante
ratione legis cessant lex ipsa.
[24]
There is no application contemplated by rule 27 of the Uniform Rules
of Court before me for condonation of the late filing
of the removal
application and/or for the extension of the life of the interim
interdict.
[25]
The rule
nisi
,
thus, lapsed at the end of the prescribed six week period calculated
from the 28
th
November 2014 without the applicant having launched the removal
application. There is, as such, nothing to confirm.
[26]
Even if I am wrong in the preceding finding, I am persuaded by the
facts that the applicant has failed to discharge the onus
on him of
establishing a
prima
facie
right to restraining orders against first and second respondents
regard being had to
inter
alia
the fact that the first respondent indisputably took the affairs of
the trusts to greater heights as opposed to prejudicing the
trusts
and their general bodies of beneficiaries. The applicant simply did
not manage to show that he has reasonable prospects
of success in the
main application launched.
COSTS
[27]
There exists no cause before me for departing from the general
practice of allowing costs to follow the event regard being
had to
the fact that the applicant had ample opportunity to reflect on the
merits of the matter and to stop the process
in
favour of amicable settlement of the dispute, which essentially
strikes at the heart of the Richter
family
of which the parties are members.
ORDER
[28]
The order of the 28
th
November 2014 has lapsed alternatively same is hereby discharged.
[29]
The applicant shall pay first and third respondents’ costs
inclusive of reserved costs.
______________
L.
J. LEKALE, J
On
behalf of the applicant: Adv. A. H.
Burger SC
Instructed
by:
W
J Botha Attorneys
BLOEMFONTEIN
On
behalf of the first and
third
respondents:
Adv.D.F
Dorfling SC
Instructed
by:
Maartens
Attorneys
BLOEMFONTEIN
/EB