About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 421
|
|
Hadaway v Master of The North Gauteng High Court, Pretoria and Others (49534/2013) [2014] ZAGPPHC 421 (5 June 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
Case number:
49534/2013
Date: 5 June 2014
Reportable
In the matter
between:
HADAWAY
HEIDI
.............................................................................................................................
Applicant
And
MASTER
OF THE NORTH GAUTENG HIGH
COURT,
..................................................
First
Respondent
PRETORIA
(Ref 27063/04)
ABSA
TRUST LIMITED (Reg. No.
1915/004665/06)
...........................................................
First
Respondent
PRINSLOO,
MARTHA MAGDALENA N.O
…..............................................................
Second
Respondent
ROETZ,
ANNA MARIA
ELIZABETH
...............................................................................
Third
Respondent
GREYLING
ALLAN
............................................................................................................
Fourth
Respondent
GREYLING
BAREND
CHRISTIAAN
.................................................................................
Fifth
Respondent
JUDGMENT
PRETORIUS J.
[1] In this
application the applicant applies for a final interdict preventing
the second and third respondents (“the Trustees”)
from
alienating or encumbering or disposing of certain immovable property
held by the trustees in trust.
Background:
[2] The applicant is
the daughter and only child of the deceased, her father. The deceased
passed away on 18 November 2004. He was
married and had been married
for 36 years to the fourth respondent, in community of property.
There were no children born from
this marriage. The fifth respondent
is one of the fourth respondent’s children born from a previous
marriage.
[3] On 13 May 2002
the deceased and fourth respondent executed a joint will which, inter
alia, provided:
“
Indien
die TESTATEUR die eerssterwende van ons is, bepaai ons dat ons
onderskeie boedei as saamgevoeg beskou moet word, ten opsigte
van die
bemakings in klousule 1.3 en 1.4 hieronder en beskik ons soos volg:”
[4] and
"
Om
die netto inkomste
aan die testatrise oor te dra en uit te betaal tot by haar afsterwe.
Om
soveel van die kapitaal as wat die trustee nodig mag ag,
aan
te wend vir die onderhoud en algemene welsyn van die testatrise of
vir enige ander doel in haar belang
(Court
s emphasis)
[5] A trust was
formed which included two properties belonging to the joint estate,
being business premises situated in Johannesburg
and a residential
property at 10 Cadogan Street, Bryanston.
Previous
Application:
[6]
A previous application was launched in the High Court, Witwatersrand
Local Division. The relief sought were declaratory orders
concerning
the interpretation of the will and two co-existent documents, which
was,
inter alia:
“
interdicting
(the Trustees) from alienating or encumbering the aforesaid
properties in the course of administering the estate of
the deceased
and/or the trust, or at all. ’’
That
the trustees of the testamentary trust created by the will of (the
deceased) be interdicted from selling, encumbering or in
any way
disposing of the immovable property in trust... pending the
termination of the trust
;
without the
consent of the Applicant and the leave of the Court.
”
[7] This application
was brought in 2006 and on 28 July 2006 Gildenhuys J made an order
which is not relevant to the present application.
He made the
following order which is relevant:
“
No
order is made on the other prayers for declaratory orders brought by
the applicant;”
[8] The court held
obiter in that matter:
“
The
will clearly authorizes the trustees of the trust to sell some or all
of the immovable properties
,
should it become
necessary for the maintenance or well-being of the fourth respondent
In my view this power is not limited or executed
by any provisions of
the trust
”
The present
application:
[9] The will makes
it quite clear that the trustee shall pay the net income of the trust
to the fourth respondent, until the date
of her death. It must be
stated that clause 1.4.3 does not only provide for maintenance for
the fourth respondent, but that the
capital should be applied for her
general well-being and any other purpose of interest of the fourth
respondent.
[10] Clause 5.2 of
the will provides:
"
Om
in belang van die
trust,
in sy diskresie, die bates te verhuur, te
verkoop oftegelde te maak,
of
om enige roerende en onroerende eiendom te huurofaan te koop.
”
[11] I must agree
with Gildenhuys J that it is evident that:
“
the
object of the trust is in the first instance to provide for
maintenance and general welfare of the (Fourth Respondent) during
her
lifetime. ”
[12] The trust
provides that as much of the capital, which the trustees deem
necessary, must be applied for the maintenance, well-being
and
general interest of the fourth respondent. The applicant’s
argument is that is not necessary to sell the property the
fourth
respondent is living in, as the trustees can rent a property in a
retirement home for the fourth respondent, whilst renting
out the
property at 1[...] C[...] Street, Bryanston.
[13] The trustees
set out the reasons why they deem it necessary to sell the property,
which are inter alia; the fourth respondent
and her husband, the
deceased, had been married for 36 years in community of property,
which would have entitled her to a half
share of all the assets. She,
however, accepted the provisions of the will and thus forfeited her
joint ownership of the assets,
against the benefits accruing to her
from the trust. The fourth respondent and her late husband maintained
quite a high standard
of living as can be gleaned from the facts that
they regularly travelled overseas and they lived in the Bryanston
property. The
Bryanston property is a huge residential property that
was the family home where the fourth respondent and her late husband
raised
the applicant and the fourth respondent’s two sons. The
house is situated on a 4200 square meter erf and consists of, inter
alia, a billiards room, a library, four bedrooms and five bathrooms.
There is a swimming pool and a tennis court on the property.
The
property has been valued at R 5.4 million.
[14] The fourth
respondent, who is 78 years old, does not want to live in this huge
property on her own any more. She has decided
to move to a retirement
home, where she will enjoy security and support.
[15] The
trustees came to the decision to sell the property as they regard her
decision to move to a retirement home as a
responsible decision,
which is reasonable under the circumstances, having regard to her age
and the large house she is living in
all by herself.
[16] The fourth
respondent has been spending R6000 per month out of her own pocket to
maintain the trust property, thereby depleting
her savings of R1.2
million continuously. The trustees pay out the whole net income of
the trust to the applicant and the fourth
respondent. The trust has
no surplus funds to maintain the property.
[17] It is clear
from the papers that the trustees had considered all the options,
including renting out the Bryanston property
as suggested by the
applicant, before deciding to sell the house. The reasons they set
out for not renting out the property are
cogent and reasonable under
the circumstances. They have weighed all the options and only came to
a decision when they had all
the facts. I am satisfied that the
trustees did consider all the options available to the trust in a
responsible and reasonable
manner, which I cannot reproach in any
way.
[18] There is no
reason to interfere with the will of the deceased where the
discretion was afforded to the trustees to determine
which actions
would be necessary for the maintenance and general wellbeing of the
fourth respondent.
[19]
The applicant contends that she has a
prima
facie
right
in the preservation of the trust assets, but cannot allege that she
has a clear right in this regard. She can thus not request
a final
interdict.
[20] The wording of
the will is explicit and clear. The deceased endeavoured to ensure
that the fourth respondent would be able
to live in the comfort she
had enjoyed whilst he was alive, therefore he did not only provide
for her maintenance in the trust,
but also for her wellbeing and any
other purpose in her interest.
[21]
Joubert, W.A., ed,
The Law of South Africa, Volume 11, Second Edition,
paragraph
398 describes an injury as:
"The
term
“
injury”
should be
understood to mean infringement of the right which has been
established and resultant prejudice
.
Prejudice is not
synonymous with damages and it is sufficient to establish potential
prejudice
.
A reasonable
apprehension of injury is one which a reasonable man might entertain
on a balance of probabilities that injury will
follow”
[22] In this
instance the applicant has not proved an injury actually committed or
reasonably anticipated and must fail in the request
to grant a final
interdict.
[23] The court finds
that, after considering the trustees reasons for selling the
immovable property and all facts put forward by
the applicant, that
the decision to sell the property is reasonable and does not infringe
any right of the applicant in any way.
Res
iudicata
:
[24]
In
National Sorghum
Breweries v International Liquor Distributors
[2000] ZASCA 159
;
2001 (2) SA 232
SCA
Oliver
JA found on 239 H -
I:
“
The
fundamental question in the appeal is whether the same issue is
involved in the two actions: in other words
,
is the same thing
demanded on the same ground, or, which comes to the same, is the same
relief claimed on the same cause, or, to
put it more succinctly
;
has the same issue now before the Court
been finally disposed of in the first action
?”
(Courts
emphasis)
[25] The court has
taken into consideration that Gildenhuys J expressly did not make any
declaratory orders as requested by the
applicant in the previous
application. The same issue now before court had not been finally
disposed of in the first application.
[26]I
have considered the plea of
res
iudicata,
but
due to the fact that Gildenhuys J did not make an order on these same
issues, I am of the opinion that the plea of
res
iudicata
should
not be upheld.
[27] I have
considered all the arguments, affidavits and evidence. I cannot find
that the applicant has proved her case on a balance
of probabilities
and that she is entitled to the relief sought. There is no reason for
this court to interfere with the decisions
of the trustees.
[28] Therefor the
following order is made:
1. The application
is dismissed with costs.
Judge C Pretorius
Case number :
49534/2013
Heard on : 2 June
2014
For the Applicant :
Adv Haskins SC
Instructed by :
Shapiro & Ledwaba INC
For the Respondent :
Adv Wagener SC
Instructed by :
Weavind & Weavind
Date of Judgment : 5
June 2014