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2009
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[2009] ZAGPPHC 149
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Pretorius v Meyer NNO (1796/08) [2009] ZAGPPHC 149 (9 December 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: 1796/08
IN
THE MATTER OF:
ANDRIES
PETRUS PRETORIUS PLAINTIFF
AND
PETRUS
CORNELIUS MEYER NO
ABRAHAMA
DE KLERK NO
(In
their
capacity as co-trustees of the
MAHEMSRUS
TRUST) DEFENDANT
JUDGMENT
MAKGOBA.
J
[1]
An unfortunate disaster that gave rise to the present case occurred
on the 7
lh
of
September 2006 during which the property known as Plot 67 Cuckoo
Street, Irene Park, Klerksdorp belonging to a Trust, viz Mahemsrus
Trust was gutted by fire. The property was insured with ABSA
Insurance and a claim for compensation was subsequently lodged by
one
of the trustees with the assistance of their accountant, Mr Jan
Bothnia. The co-trustees of the aforesaid Trust are Mr Petrus
Cornelius Meyer and Mrs Abrahama De Klerk. The two trustees are cited
in these proceedings in their representative capacities as
trustees
of the Mahemsrus Trust.
[2]
The Plaintiff, an employee of a firm of liquidators but acting in his
personal capacity, sued out a summons against the defendant
trust for
payment of the sum of R247 898-55, being the balance of an amount
representing 10% commission on an insurance payout
from ABSA
Insurance totalling R2 524 951-20, allegedly due as a result of an
alleged oral agreement entered into between the plaintiff
and the
defendant on 29 November 2006. It is alleged that in terms of the
oral agreement the plaintiff would act as agent for the
defendant to
handle and process the insurance claim.
[3]
The main dispute between the parties is whether:
3.1
Mr Meyer, one of the trustees, at all material times duly represented
the defendant Trust;
3.2
there was a contract of mandate whereby plaintiff should have handled
and finalised the insurance claim on behalf of the defendant;
3.3
there was an undertaking to pay remuneration;
[4]
The plaintiff alleges in paragraph 3 of his particulars of claim that
the defendant, the Mahemsrus Trust, was duly represented
at all
relevant times by Petrus Cornelius Meyer who is one of the two duly
appointed trustees of the Defendant Trust.
The
defendant in paragraph 3 of its plea to paragraph 3 of the plaintiffs
particulars of claim, denies the averment that the defendant,
the
Mahemsrus Trust, was duly represented at all relevant times by Petrus
Cornelius Meyer and placed this averment to be proved
by the
plaintiff.
[5]
The defendant further denied the existence of the alleged oral
agreement. The defendant pleaded in paragraph 5.2 of its plea
that it
is specifically denied that the plaintiff had any influence at all on
the decision to pay any amount as compensation to
the Defendant
arising from the insurance claim and put the plaintiff to the proof
thereof.
[6]
In the light of the Defendant's denials as set out above, the
plaintiff bears the onus to prove that Mr Meyer was properly
representing the defendant trust and further that the plaintiff was
given and received any mandate to process the insurance claim
on
behalf of the defendant trust.
[7]
Should the plaintiff succeed in proving that the defendant trust was
duly represented by Mr Meyer, the matter does not end there.
He still
have to show that it was through his efforts or influence that the
amount of R2 524 951-20 was paid out by ABSA Insurance,
bearing in
mind that the claim had already been lodged through the assistance of
Mr Bothma when he, the plaintiff made his first
contact with Mr Meyer
regarding the claim.
[8]
The plaintiff testified personally and did not call any witness. He
testified that he had a conversation with Mr Meyer on 29
November
2006 during which conversation Mr Meyer complained that he. Mr Meyer,
does not know what is going on as ABSA paid an amount
for rent for
some months but then the rental payments stopped. During the
conversation the plaintiff indicated that he could assist
in his
personal capacity with the insurance claim relating to the fire
damage of the property insured by ABSA Insurance.
[9]
The Plaintiff requested Mr Meyer to bring all the relevant
documentation for the plaintiff to read. Mr Meyer responded
positively
and delivered some documents, namely, a copy of the
completed claim form, a copy of the Trust Deed and Master's
Authorisation letter
indicating who is appointed as trustees of the
defendant. Subsequent to the delivery of the document the plaintiff
studied same
and contacted Mr Meyer to come and sign a documents the
plaintiff had prepared.
[10]
The document which was prepared by the plaintiff and signed by Mr
Meyer is a power of attorney which is reflected on page 34
of Bundle
A. The following is the contents of the document:
"SPECIAL
POWER OF ATTORNEY
I,
the undersigned, Petrus Cornelius Meyer (Identity Number
4003315050088) Hereby nominate, constitute and appoint Andries Petrus
Pretorius ID. 6407235022085 to be my lawful agent, in my name, place
and stead to lodge a claim against ABSA Insurance, arising
from a
claim which occurred on 7 September 2006, to be done whatsoever shall
be requisite, as full and effectually, for all intends
and purposes,
as I might or could do if personally present and acting herein hereby
ratify in, allowing or confirming all whatsoever
my said Agent shall
lawfully do. or cause to be done, by virtue of these presents.
Dated
at Klerksdorp on this 29
th
of November 2006
Signature
As
witnesses:
1.
2.
[11]
It should be noted at this stage that nowhere in the power of
attorney is the name of the defendant trust mentioned. Mr Meyer
does
not state that "I, in my capacity as the trustee of Mahemsrus
Trust ..." He states that he appoints plaintiff to
be "
my
lawful agent, in mv name
"
to lodge a claim against ABSA Insurance.
It
is significant to state that this power of attorney was drawn up by
the plaintiff who had the Trust Deed in his possession and
had
studied it. I shall return to this aspect later in my judgment.
[12]
The plaintiff gave evidence explaining that after he perused the
Trust Deed with specific purpose to determine the identity
of the
Trustees he made a telephonic contact with the other trustee, Mrs De
Klerk, who effectively did not want to discuss the
matter regarding
the fire damage claim with the plaintiff.
[13]
The power of attorney signed by Mr Meyer was forwarded to ABSA
Insurance by the plaintiff under a covering letter dated 29
November
2006. In the said letter the plaintiff clearly indicated that he is
acting on behalf of Mr P C Meyer. No mention is made
of the defendant
trust. This letter is reflected on page 32 of bundle A.
[14]
The plaintiff alleges that he agreed with Mr Meyer that he, the
plaintiff would be paid 10% of the amount ABSA Insurance would
pay
out.
The
plaintiff conceded that he never prepared any invoice, account or
written demand for payment of the amount calculated as 10%
of the
payment amount. It is common cause that ABSA Insurance ultimately
made a payout amount of R2 524 951-20 direct to the defendant
trust
and that the plaintiff was not paid any amount out of the aforesaid
payout.
[15]
Mr Meyer testified that he is the co-trustee of the Mahemsrus Trust
and that the trust owned the property that was damaged
by the fire on
7 September 2006. Mrs De Klerk is the other trustee. That he lodged
the insurance claim with ABSA Insurance through
the assistance of the
Trust accountant, Mr Bothma. After the claim was lodged an assessor
appointed by ABSA Insurance advised that
he would wait for about six
months for the finalisation of the claim.
[16]
According to Mr Meyer the plaintiff offered to help him to process
the insurance claim but he declined the offer and told the
plaintiff
that Mr Bothma would help. When the plaintiff approached him, he the
plaintiff informed him that he could get him a better
and higher
payout of up to R4 500 000-00 from ABSA Insurance. Although he did
not believe him Mr Meyer agreed that in that event
he would be
prepared to pay the plaintiff an amount of R500 000-00 as commission.
It
is against this background that he furnished the plaintiff with the
requested documentation and signed the power of attorney
on 29
November 2006.
[17]
Mr Meyer testified that he was informed by one Lily Fourie of ABSA
Insurance that an offer of R2 524 951-20 was made, which
offer he
accepted and signed the release form at ABSA. The amount was then
paid out into the Trust's bank account. Mr Meyer learnt
later that a
further amount of R4 596-57 in respect of his insurance premiums was
refunded by ABSA Insurance.
[18]
Upon insistence by the plaintiff Mr Meyer authorised ABSA Insurance
to pay the amount of R4 596-57 to the plaintiff. According
to Mr
Meyer he gave this amount to the plaintiff as a "bonus" not
as remuneration for any work done by the plaintiff.
[19]
Mr Meyer denies that he agreed to pay 10% of the insurance payout to
the plaintiff He went on to state that when he dealt with
the
plaintiff he did that without the authority of his co-trustee and
that as a trustee he is not supposed to act alone in matters
involving the affairs of the Trust. That on the 29
th
November
2006 he and the plaintiff never discussed anything involving the
trust.
[20]
Mr Meyer stated that he was extremely upset and confused after the
fire and did not think of obtaining the required permission
from his
cotrustee. Mrs De Klerk and that Mrs De Klerk would not have
given permission for the defendant Trust to engage the
services of
the plaintiff. Mr Meyer was never cross-examined on this extremely
important issue in dispute regarding the involvement
of the defendant
trust and/or Mrs De Klerk. On questions by the court he stated that
he did inform the co-trustee Mrs De Klerk
but the latter did not
expressly approve of his dealings with the plaintiff.
[21]
The plaintiff claims the amount sued for from the defendant, a trust,
based on an alleged oral agreement. It is trite law that
a trust can
only be represented by its trustee(s) and can only act through the
authority of its trustee(s) as it is regulated by
the contents of the
particular trust's deed.
[22]
The Supreme Court of Appeal confirmed in
Hoosen
and Others
v
Deedat
and Others
1999
(4) SA 426
(SCA) the principle that only actions authorised by
trustees are binding.
Smalberger
JA wrote as follows on page 433-434:
"It
is apparent from a consideration of the trust deed that no express
provision is made for the delegation by any individual
trustee of any
of his rights, duties or powers. The trust deed only provides for
collective action by the trustees. Control and
management of the
trust vests in the trustees jointly. Where specific provision is made
for the delegation of functions such delegation
is made by the
trustees acting in concert (or at least a majority of them). The
trust deed makes no provision for the exercise
of any powers or
functions by individual trustees unless authorised thereto by the
body of trustees. This is in keeping with the
general principle that
where the administration of the trust is vested in co-trustees they
must execute their duties in their joint
capacity."
[23]
In
casu
the
contents of the trust deed and specifically the definition of
"Trustees" in the introduction thereof and paragraphs
4.4,
5.5.1. 5.2. 6, 8, 12.1. 12.2. 12.3 and 13 clearly indicate that all
decisions regarding the trust have to be by all trustees
and only one
exception is provided for in paragraph 13 (the latter paragraph is
not applicable herein).
The
clear effect of the contents of the defendant Trust's Deed is that at
no stage any single trustee can represent or bind the
defendant
Trust. The deed simply makes no provision for any authority or
delegation to be provided to any one single trustee.
[24]
In
Niewoudt
and Another NNO
v
Vrystaat
Mielies (Edms) Bpk
2004
(3) SA 486
(SCA) it was held that any agreement or contract by a
trust not acted in jointly by the trustees renders the agreement
invalid
and unenforceable. The SCA stated that where no express
delegation exists, which is in any event not allowed by the defendant
Trust
there simply can be no binding agreement without a joint
decision by all the trustees.
See
also:
Coetzee
v
Peet
Smith Trust en Andere
2003
(5) SA 674
(T) where Van Dijkhorst J convincingly explained the
principle that trustees have to act jointly. And one should not
believe that
the ambit of authority conferred by a trust deed is a
matter of "internal management'' with which outsiders need not
concern
themselves.
[25]
The above judgments clearly indicate that every single act done by Mr
Meyer without the action been agreed to or confirmed
by the other
trustee, Mrs De Klerk, was invalid and unenforceable.
[26]
The above principle was again reiterated by the Supreme Court of
Appeal in
Land
and Agricultural Bank of SA v Parker and Others
2005
(2) SA 77
(SCA) where it was stated that the wording of the trust
deed must be adhered to strictly regarding the authority of trustees
to
act on behalf of trusts. Cameron JA, writing for the court, said
the following at page 85A-C:
"It
is a fundamental rule of trust law, which this court recently
restated in
Nieuwoudt
and Another NNO v Vrystaat Mielies (Edms) Bpk
that
in the absence of contrary provision in the trust deed the trustees
must act jointly if the trust estate is to be bound by
their acts.
The
rule derives from the nature of the trustees'joint ownership of the
trust property. Since co-owners must act jointly, trustees
must also
act jointly."
[27]
Further the SCA again reiterated in
Thorpe
and Others
v
Trittenwein
and Another
2007
(2) SA 172
(SCA) that any agreement by a trust or on behalf of a
trust must be authorised by all the trustees. It was further decided
that
the other contracting party wishing to hold the trust bound
would be obliged to prove the existence of that authority.
[28]
The discharge of such burden of proof by the plaintiff in the present
case is no easy matter. In his own version the plaintiff
indicates
that after he perused the trust deed he drafted the power of attorney
and the covering letter to ABSA Insurance (as reflected
on pages 32
and 34 of Bundle A) himself. The contents of these two documents
clearly indicate that the plaintiffs discussions,
whatever the
contents thereof, with Mr Meyer led the plaintiff himself to believe
that with the knowledge obtained from the contents
of the trust deed
he read and the conversation with Mrs De Klerk, the plaintiff was
dealing with Mr Meyer personally.
[29]
As mentioned earlier the contents of the power of attorney in
particular, does not refer to the defendant Trust (who is the
owner
of the property) but indicates that Mr Meyer acted in his own name or
personal capacity.
On
this ground alone, the plaintiff cannot succeed in his claim against
the defendant Trust.
[30]
Having found that Mr Meyer did not have the authority to bind the
defendant Trust, I do not deem it necessary to decide whether
there
was a valid agreement between the plaintiff and Mr Meyer in his
personal capacity. Such a finding will not take this matter
any
further in as much as Mr Meyer personally is not before court as the
defendant.
[31]
I accordingly come to the conclusion that the alleged oral agreement,
if ever existed, and which is at all times denied by
the defendant,
is simply void
ab
initio
and
unenforceable against the Defendant as it was, if ever it existed,
simply not authorised by both the trustees of the defendant.
The
plaintiff failed to provide any evidence that this required
authority, which was specifically denied in the plea, existed.
The
plaintiff has thus failed to discharge the onus of proving proper
authority on the part of Mr Meyer.
[32]
The plaintiffs claim against the defendant is dismissed with costs.
EM
MAKGOBA'J
JUDGE
OF THE HIGH COURT
Heard
on: 26-27 November 2009 & 2 December 2009
For
plaintiff: Adv A J Le Grange
Instructed
by: Van der Walt Rossouw Neethling Inc
c/o Stopforth Swanepoel & Brewis Inc
Pretoria
For
Defendant: Adv J C Klopper
Instructed
by: Erasmus Jooste Attorneys
c/o Savage Jooste & Adams Inc
Pretoria