THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 312/2023

In the matter between:

MICHELLE JACQUELINE SCHOLTZ FIRST APPELLANT
MICHELLE JACQUELINE SCHOLTZ NO SECOND APPELLANT

and

LEON DE KOCK NO FIRST RESPONDENT
THE MASTER OF THE HIGH COURT SECOND RESPONDENT
LEGAL PRACTICE COUNCIL THIRD RESPONDENT

Neutral citation: Scholtz & Another v De Kock NO & Others (312/2023) [2024]
ZASCA 132 (02 October 2024)
Coram: MAKGOKA, NICHOLLS, HUGHES and MOLEFE JJA and
MBHELE AJA
Heard: 02 May 2024
Delivered: This judgment was handed down electronically by circulation to
the parties’ representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The date and time for hand -down of the judgment is
deemed to be 11h00 on 02 October 2024.

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Summary: Deceased estate – whether executrix bears duty to account to
beneficiaries for deceased’s monies disbursed during the deceased’s lifetime.
Fiduciary relationship – attorney and client – mere deposit of money into attorney’s
trust account does not establish fiduciary relationship.
Relationship between sisters – whether the nature of their financial arrangement
established fiduciary relationship to warrant accounting – whether in fact such
accounting occurred.

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ORDER


On appeal from: Western Cape Division of the High Court, Cape Town (Saldanha,
Henney and Thulare JJ, sitting as court of appeal):
1 The appeal is upheld with costs including costs of two counsel.
2 The order of the full court is set aside and replaced with the following order:
‘The appeal is dismissed with costs.’


JUDGMENT


Makgoka JA and Mbhele AJA (Nicholls, Hughes and Molefe JJA concurring):

[1] The main issue in this appeal is whether the first appellant, Ms Jacquline
Scholtz, (Ms Scholtz), owed her deceased sister, and by extension the latter’s
testamentary beneficiaries, a duty to account for an amount of R5 600 000 which the
deceased had received from the Road Accident Fund (the RAF). Ms Scholtz received
the amount into her attorney’s trust account, and later transferred it into an investment
account managed by her.

[2] The full court of the Western Cape Division of the High Court, Cape Town (the
full court) held that Ms Scholtz was so obliged to account and overturned an order of
a single Judge of that Division (the court of first instance), which had dismissed the
application of the first respondent, Mr Leon De Kock (Mr De Kock) to account for the
money. Ms Scholtz appeals with the special leave of this Court.

[3] Mr De Kock and the deceased, Mrs Nicquelette Veronique de Kock, were
married to each other. Their marriage was terminated by her death on
26 September 2018. Two minor children were born of the marriage. The deceased
and Ms Scholtz were identical twins. Ms Scholtz is thus Mr De Kock’s former sister-in-

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law and the aunt of the two minor children. The minor children are the joint heirs in the
estate of the deceased (the deceased estate) . In t erms of the deceased’s Will,
Ms Scholtz is the executrix in the deceased estate. She is also a practising attorney.
Although she was cited both in her personal capacity and as an executrix, relief was
sought against her only in her personal capacity and as an attorney.

[4] Before the court of first instance, Mr De Kock brought the application in his
nominal capacity as the guardian of his two minor children who , as mentioned, are
joint heirs of the estate of their late mother. He based his right to seek the relief on the
so-called Beningfield exception.1 Mr De Kock sought an order compelling Ms Scholtz
to render an account for the R5 600 000 and for the debatement of that account, and
for the payment to the deceased estate of whatever amount was found to be due to it.
The application was dismissed by the court of first instance. On appeal to it, the full
court upheld Mr De Kock’s appeal.

[5] The factual background is briefly this. In Nove mber 2014 the deceased was
awarded R7 067 736.80 by the RAF following injuries she had sustained in a motor
vehicle accident. The funds were paid into the Trust account of her attorneys . On
28 November 2014, the deceased instructed her attorneys to pay ove r the nett
proceeds of R5 600 000 into the trust account of he r twin sister, Ms Scholtz . On
2 December 2014, the funds were transferred to an investment account managed by
Ms Scholtz. It is the amount of R5 600 000 that formed the basis of Mr De Kock’s
application in the court of first instance.

[6] Ms Scholtz denied that she had any duty to account to Mr De Kock. She
nevertheless, gave the following explanation as to how she disbursed the funds that
the deceased entrusted to her. In short, she stated that she too, was involved in the
same motor vehicle accident which gave rise to the deceased’s award from the RAF.

same motor vehicle accident which gave rise to the deceased’s award from the RAF.
Her injuries were less serious than those of the deceased. Both their respective claims

1 An exception to the general rule that only an executor of an estate has locus standi in relation to estate
assets and transactions was recognized. The exception has its genesis in the English decision in
Beningfield v Baxter (1886) 12 AC 167 (PC), and accepted into our law in Gross & Others v Pentz 1996
(4) SA 617 (A) at 628G-H.

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against the RAF were lodged by their father, also a prac tising attorney at the time.
Their father expended professional time and defrayed their respective medical
expenses.

[7] Ms Scholtz further explained that a mistake occurred when the RAF processed
their claims, because of their almost similar identity numbers. The result was that her
claim ‘was effectively lost’ and treated as that of the deceased. In view of this the twin
sisters, and their parents , agreed that the deceased’s claim would be pursued and
Ms Scholtz’s claim abandoned. Furthermore, upon payment of the award for the
deceased, the award would be distributed as follows: (a) R500 000 thereof to their
father as compensation for his professional services; (b) the rest to be shared equally
between the twin sisters. Pursuant to th is agreement, R500 000 was paid to their
father and th e twin sisters each received R2 550 000. The deceased invested her
R2 550 000 portion into an investment venture in which both she and M s Scholtz
participated, which she managed.

[8] At the invitation of the court of first instance, Ms Scholtz explained how the
deceased’s award was expended. She stated that between December 2016 and
December 2017, and on the instructions of the deceased, she paid a total amount of
R4 144 250 to the deceased, or to persons nominated by the deceased . Ms Scholtz
stated that each such payment was made on the deceased’s specific instructions, and
to her satisfaction. Ms Scholtz emphasised that she never acted as the deceased’s
attorney in relation to her RAF award.

[9] Mr De Kock disputed Ms Scholtz’s explanation as being improbable. In
particular, he disputed that the deceased would have donated half of her award from
the RAF to Ms Scholtz. He contended that such conduct was irreconcilable with the
deceased’s conduct because she had created a testamentary trust for the benefit of
their minor children shortly upon receipt of the award from the RAF. He further argued

their minor children shortly upon receipt of the award from the RAF. He further argued
that Ms Scholtz provided no documentary proof evidencing the alleged donation
although the facts giving rise to the deceased’s generosity are all capable of objective
verification. Mr De Kock demanded production of documents evidencing the nature of
injuries suffered by both the deceased and Ms Scholtz, the content of their claim forms

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with the RAF, the money paid to Ms Scholtz for her medical costs by the RAF and all
other documents generated in the process of their claims.

[10] Mr De Kock asserted that those documents would confirm whether Ms Scholtz’s
injuries were indeed mistakenly attributed to the deceased. He contended that the
evidence would reveal that Ms Scholtz’s injuries were minor compared to those of the
deceased and that it was improbable that the deceased would have agreed to share
her award equally with Ms Scholtz.

[11] The court of first instance approached the matter on the basis of Mr De Kock’s
allegation that Ms Scholt z owed the deceased’s estate R5 600 000, being the RAF
payout. The court therefore proceeded on the footing that, on Mr De Kock’s allegation,
Ms Scholtz was a debtor of the deceased’s estate. Relying on this Court’s judgment
in ABSA v Janse van Rensburg 2 the court of first instance concluded that there was
no fiduciary relationship between the deceased’s estate (represented by Mr De Kock)
and Ms Scholtz as a debtor of the estate. As to the personal relationship between the
sisters, the court was prepared to accept that there could have been a fiduciary
relationship between them in relation to the deceased’s monies held in the investment
account. In this regard, the court accepted Ms Scholtz’s explanation that she had
expended the payments on the specific instructions of the deceased, and that the
deceased was satisfied with how the monies were disbursed. Accordingly, the court
dismissed Mr De Kock’s application.

[12] The full court took a different view. It held that the court of first instance erred
in its conclusion that Mr De Kock had failed to establish a du ty on Ms Scholtz to
account. According to the full court, that duty was two -fold. First, because there was
‘statutory obligation on [Ms Scholtz] to have accounted, as an attorney into whose trust
account an amount of R5 600 000 was deposited on behalf of the deceased.’ Second,

account an amount of R5 600 000 was deposited on behalf of the deceased.’ Second,
‘for the handling of the amounts in the Absa investment account in her name, in which
she purportedly assisted the deceased; and the investments she had made.’


2 Absa Bank Bpk v Janse Van Rensburg [2002] ZASCA 7; 2002 (3) SA 701 (SCA) paras 15-16.

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[13] The full court held that Ms Scholtz’s expla nation as to what happened to the
money, was ‘no more than skeletal . . .’, and referred to her explanation as an attempt
to ‘circumvent the onus which otherwise rested upon her to prove her explanation in a
contested debatement process.’ Consequently, the full court upheld the appeal with
costs and ordered Ms Scholtz to provide a full and proper accounting of the amount of
R5 600 000, supported by documentary evidence.

[14] In this Court, the parties persisted in their respective stances adopted in the two
lower courts. The issue remains whether Ms Scholtz was obliged to account for the
R5 600 000. It is to that issue we turn.

[15] A party who claims delivery of a statement and its debatement must assert their
right to receive such an account and the basis for such an entitlement – whether
through a contract, a fiduciary relationship or a statutory obligation. 3 They must
establish any contractual terms or other circumstances which have a bearing on the
accounting sought and a failure to render such an account.4

[16] In the present case, Mr De Kock predicated the duty to account on his allegation
that Ms Scholtz stood in a fiduciary relationship with the deceased. The nature and
basis of a fiduciary relationship was explained by this Court in Robinson v Randfontein
Estates Gold Mining Co Ltd 5 as follows:
‘Where one man stands to another in a position of confidence involving a duty to protect the
interests of that other, he is not allowed to make a secret profit at the other’s expense or place
himself in a position where his interests conflict with his duty. . .There is only one way by which
such transactions can be validated, and that is by the free consent of the principal following
upon a full disclosure by the agent . . . Whether a fiduciary relationship is estab lished will
depend upon the circumstances of each case.’

3 Absa Bank Bpk v Janse Van Rensburg [2002] ZASCA 7; 2002 (3) SA 701 (SCA) para 15.
4 Doyle and Another v Fleet Motors PE (Pty) Ltd 1971 (3) SA 760 (A) at 762-763.
5 Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 168 at 177-178.

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[17] The existence of a fiduciary duty, its nature and extent, can only be determined
after a thorough consideration of the facts. 6 Mr De Kock contends that the mere
payment of the funds into Ms Scholtz’s trust account qua attorney, without more,
established a fiduciary relationship between her and the deceased, and thus an
obligation for Ms Scholtz to account to the deceased. This content ion found favour
with the full court. But this is at odds with this Court’s judgment in Joubert Scholtz Inc
v Elandsfontein Beverage Marketing .7 There, it was held that there is no general
fiduciary duty on an attorney to account to her or his client merely because of payment
into an attorney’s trust account. Such a duty arises where there is an agreement of
mandate, and its bounds are determined with reference to the terms of the mandate
itself. There is no suggestion that there was such an agreement between the deceased
and Ms Scholtz.

[18] Furthermore, the argument ignores the fac t that the money was kept in
Ms Scholtz’s trust account only for four days. To the extent there m ight have been a
fiduciary duty and an obligation to account, she had fully accounted. This is evidenced
by the common cause fact that on 2 8 November 2014 she received R5 600 000 into
her trust account and that the same amount was transferred into the investment
account on 2 December 2014. Thus, the full amount and the four days during which it
was in her trust account, had been accounted for.

[19] Once the money was transferred to the investment account, Ms Scholtz ’s
mandate as an attorney, and any ancillary fiduciary relationship there might have
existed, was terminated. Beyond the attorney-client relationship which existed for a
short while, there remained a personal relationship between the identical twin si sters
with regard to how R5 600 000 was disbursed after it was transferred into the
investment account. Ms Scholtz, as the res pondent, explained that as per the family

investment account. Ms Scholtz, as the res pondent, explained that as per the family
agreement, the R500 000 was paid to their father, and the remainder was divided

6 Bellairs v Hodnett and Another 1978 (1) SA 1109 (A) at 1130E-F; Phillips v Fieldstone Africa (Pty) Ltd
2004 (3) SA 465 (SCA) para 27; Gihwala and Others v Grancy Property Ltd and Others [2016] ZASCA
35; [2016] 2 All SA 649 (SCA); 2017 (2) SA 337 (SCA) para 53; National Union of Metalworkers of
South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others
[2019] ZACC 25; 2019 (8) BCLR 966 (CC); (2019) 40 ILJ 1957 (CC); [2019] 9 BLLR 865 (CC); 2019 (5)
SA 354 (CC) para 58.
7 Joubert Scholtz Inc and Others v Elandsfontein Beverage Marketing (Pty) Ltd [2012] ZASCA 6; [2012]
3 All SA 24 (SCA) paras 93-94.

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equally between the deceased and her. This, Mr De Kock disputed. He asserted that
it was improbable that the deceased, having just est ablished a testamentary trust for
the benefit of her children, would donate half of her award to Ms Scholtz.

[20] There was clearly a dispute of fact on the papers. One of the tools available to
a court when faced with dispute s of fact is to apply the well -known Plascon-Evans .8
The principle is to the effect that an applicant who seeks final relief on motion must in
the event of conflict, accept the version set up by the respondent. That is, the
respondent’s version must be accepted, unless it is, in the opinion of the court, it is so
far-fetched or clearly untenable that the court is justified in rejecting it merely on the
papers.9

[21] It is so that a donation is not easily inferred. However, on the facts of the present
case, regard must be had to the undeniably strong bond between the identical twin
sisters and the fact that Ms Scholtz had abandoned her own claim against the RAF.
There is also nothing untenable about the version that R500 000 was paid to their
father for his professional services. On these bases, Ms Scholtz’s version that the
deceased had paid her father R500 000 for his professional services, and made an
irrevocable donation to her, cannot be described as far-fetched or untenable. In all the
circumstances, on the application of the Plascon-Evans principle, Ms Scholtz’s version
should have been accepted.

[22] One of the bases upon which the full court held that Ms Scholtz was obliged to
account to Mr De Kock is that she received the awarded funds into her investment
account. Assuming for present purposes that such a duty arose, there is nothing to
gainsay Ms Scholtz’s exp lanation of how the funds were expended. What gives
credence to her explanation is that she would have managed the funds for almost four
years before her death. The funds were paid into her investment account in

years before her death. The funds were paid into her investment account in
December 2014, and the deceased passed away on 28 September 2018. The bank

8 Developed by this Court in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA
623 (A) at 634E-635C.
9 Wightman t/a J W Construction v Headfour (Pty) Ltd and Another [2008] ZASCA 6; [2008] 2 All SA
512 (SCA); 2008 (3) SA 371 (SCA) para 12.

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statements of the relevant account show that Ms Scholtz operated the relevant bank
account for approximately four years.

[23] The records reveal that the bulk of the money was paid to the decea sed. This
is a break -down of the transactions. R2 550 000 was received into the account on
2 December 2014. For the per iod December 2014 and September 2018, t he
investment account earned R1 287 515 as interest. R3 000 000 was paid to the
deceased in tranch es of R1 000 000, respe ctively on 8 December 2016;
January 2017, 19 January 2018 . The la st payment, of R606 735, was made to the
deceased shortly before her passing, on 19 July 2018. The rest of the payments,
totalling R537 515, were made to various people nominated by, or on the instruction
of, the deceased . In sum, between December 2014 and September 2018, the
investment account had credits of R3 837 515 and debits of R4 144 250. This left a
debit balance of R306 735 as at the time of the deceased’s passing, which, ordinarily,
would be a debt against the deceased estate.

[24] It is common cause that the twin sisters shared a warm, close and trusting
relationship. There is no suggestion that at any stage between the payment of the
funds into the investment account and the deceased’s death, the latter had expressed
dissatisfaction about how the funds were managed. Similarly, there is no suggestion
that by the time she passed away, the deceased had considered that there was any
money due to her by Ms Scholtz, or that there was any accounting outstanding on
Ms Scholtz’s part.

[25] It must be emphasised that the funds were under Ms Scholtz ’s control for
approximately four years before the deceased’s passing. This is sufficiently long
enough for the deceased to have demonstrated her di ssatisfaction, if any, about
Ms Scholtz’s management of her funds. There is no hint of that. It is also important to
bear in mind that t he deceased was a person with full mental capacity . She was

bear in mind that t he deceased was a person with full mental capacity . She was
entitled to dispose of her assets in a ma nner she deemed fit during her lifetime. Her
children, in whose interests Mr De Kock purports to act, have no right at law to question
her financial decisions during her lifetime.

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[26] Accordingly the appeal must succeed. Costs should follow the result.

[27] The following order is made:
1 The appeal is upheld with costs including costs of two counsel.
2 The order of the full court is set aside and replaced with the following order:
‘The appeal is dismissed with costs.’




______________________

T MAKGOKA
JUDGE OF APPEAL



N M MBHELE
ACTING JUDGE OF APPEAL

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Appearances:

For appellants: R W F MacWilliam SC (with him A Van Aswegen)
Instructed by: Spamer Triebel Inc., Belville
Symington & De Kock Attorneys, Bloemfontein

For first respondent: S P Rosenberg SC (with him T Tyler)
Instructed by: Snijman & Associates Inc., Cape Town
Honey Attorneys Inc., Bloemfontein