About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 369
|
|
Hartmann and Others v Hacker N.O and Others (4720/2023) [2024] ZAFSHC 369 (25 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
interest to other Judges: NO
Circulate
to Magistrates:
NO
Case
no:
4720/2023
In
the matter between:
TRISTIAN
HARTMANN
1
st
Applicant
JEAN
-GABRIEL HARTMANN
2
nd
Applicant
MARK
KEISER HARTMANN
3
rd
Applicant
And
INGE
JOANNE HACKER N.O.
1
st
Respondent
TIMOTHY
JAMES HACKER N.O.
2
nd
Respondent
WENDY
FIONA HAY N.O.
3
rd
Respondent
THE
MASTER OF THE HIGH COURT BLOEMFONTEIN
4
th
Respondent
Coram:
DAFFUE J
Heard
:
11 OCTOBER 2024
Delivered
:
25 NOVEMBER 2024
This
judgment was handed down electronically by circulation to the
parties’ representatives by email and release to SAFLII.
The date and time for hand-down is deemed to be 15H00 on 25 NOVEMBER
2024.
ORDER
1.
Leave is granted to the applicants to appeal
to the Supreme Court of
Appeal.
2.
The costs of the application for leave to
appeal shall be costs in
the appeal.
JUDGMENT
Daffue
J
[1]
On 30 July 2024 an acting judge dismissed the applicants’
application with costs. The applicants filed an application for leave
to appeal which was allocated to me in accordance with the
provisions
of s 17(2)(a) of the Superior Courts Act 10 of 2013 (the Act), the
reason being that the acting judge’s acting
stint had come to
an end.
[2]
A family feud about the administration of the Hartmann
Family Trust
led to the litigation in the High Court. An application was brought
by two brothers and their father against the trustees
of the trust.
The founders of the trust were the late Mr and Mrs Hartmann,
respectively the grandparents and parents of the applicants.
In
terms of clause 12.1 of the trust deed the trust capital was to be
finally distributed to the capital beneficiaries six months
after the
death of the surviving founder unless the trustees determine a later
date. Mrs Hartmann happened to be surviving founder.
She died on 22
July 2021. The principal issue to be decided was the date of the
‘distribution event’. The applicants
are of the view that
the ‘distribution event’ occurred on 22 January 2022 as
contemplated in clause 12.1 of the trust
deed. Consequently, they
sought a declaratory order and a further order directing the trustees
to pay the trust’s income
and capital in accordance with clause
12.3 of the trust deed.
[3]
In case
the narrow question that had to be decided in the
application was whether the trustees of the Hartmann Family Trust
could lawfully
ratify an earlier decision taken to postpone the
‘distribution event’ after the date of the ‘distribution
event’
had passed. It is apparent from the papers that on 23
July 2021
, ie
more than six months after the surviving
founder’s passing, the third respondent purported to vary the
distribution date
to 29 February 2024. However, accepting that this
decision by the third respondent was invalid, the trustees apparently
purported
to ratify that decision on 31 October 2022. Therefore, on
the applicants’ version the ‘distribution event’
occurred
on 22 January 2022, but on the respondents’ version
the ‘distribution event’ had been scheduled to take place
on 29 February 2024 which last mentioned date had come and gone. The
application was heard on 22 February 2024, a week before the
aforesaid scheduled distribution date, although judgment was
delivered on 30 July 2024 only.
[4]
The grounds of appeal are the following:
a.
the court erred in finding that the applicants
lacked
locus
standi
.
b.
the court erred in failing to decide the issues
presented by prayers
1 and 2 of the notice of motion, being to declare that the
‘distribution event’ occurred on 22
January 2022 and that
the respondents be directed to forthwith pay the trust’s income
and capital in accordance with clause
12.3 of the trust deed.
[5]
I am acutely aware that I am not sitting as a court of
appeal on the
judgment and that I should place myself in the position of the acting
judge who adjudicated the application. Having
considered the judgment
and the issues involved I am satisfied that the appeal would have a
reasonable prospect of success.
[6]
Where an
act has to be done within a fixed time, performance of that act by an
unauthorised agent cannot be ratified by the principal
after the
lapse of such fixed time to the prejudice of another who has acquired
some right or advantage from non-performance within
the fixed
time.
[1]
A court of appeal
may well apply this principle
in
casu.
[7]
The court
of appeal may also find that the first and second applicants have
locus
standi
as they are income beneficiaries of the Hartmann Family Trust.
Reliance may be placed on
Potgieter
v Potgieter NO and Others.
[2]
I am also satisfied that there is a reasonable possibility that
another court may find that the first and second applicants
also have
locus
standi
as contingent capital beneficiaries. Even on the respondents’
own version, they must have been regarded as contingent capital
beneficiaries as payments from the trust capital were made to them in
the past. In any event, if the first and second applicants
lacked
locus
standi
,
then the third applicant as capital beneficiary had
locus
standi
.
It is reasonably possible that another court may find that although
the third applicant did not depose to a confirmatory affidavit
in
support of the founding affidavit, that was irrelevant. The facts
were fully presented and showed that the third applicant would
be a
capital beneficiary. Another court may well find that the applicants
did not try to make out a new case in the replying affidavit.
[8]
I conclude that another court may well find that the
court erred in
failing to consider and make a declaratory order pertaining to the
distribution event,
ie
that it occurred on 22 January 2022 as
alleged by the applicants.
[9]
During the application for leave to appeal it was strenuously
argued
on behalf of the respondents, relying on s 16(2)(a)(i) of the Act,
that leave to appeal should be dismissed as it would
have no
practical effect or result. It was submitted that our courts are
called upon to settle concrete controversies and as the
issue between
the parties are not ‘live’ anymore, no court of appeal
should deal with an appeal
in casu
. Such court shall not
concern itself with a matter that may be of importance in a
hypothetical future case only.
[10]
Although I considered the argument about mootness seriously, I have
not been
convinced that this is such a case. The administration of
the trust continued after 22 January 2022 for another two years. If
the
extension of the ‘distribution event’ is to be
declared unlawful by the court of appeal, it will have serious
repercussions
on the dealings of the trustees during this extra
two-year period. The consequences of the administration of the trust
may well
have a huge impact on not only the income, but also and in
particular the capital beneficiaries. Respondents’ counsel
submitted
that payments had been effected after 29 February 2024
whilst judgment was awaited and that nothing prevented the applicants
to
institute action if they would be in disagreement. Applicants’
counsel denied in reply that final payments had been effected.
No
final distribution account was placed before the court and except for
contradictory submissions from the bar, no evidence was
presented.
[11]
I am satisfied that the substantive issues raised and identified by
the applicants
warrant the attention of the Supreme Court of Appeal
and therefore, leave to appeal should be granted to that court.
Order
[12]
Consequently, the following order is made:
1.
Leave is granted to the applicants to appeal
to the Supreme Court of
Appeal.
2.
The costs of the application for leave to
appeal shall be costs in
the appeal.
DAFFUE
J
Appearances
For
Applicants:
Adv
D Watson
Instructed
by:
Hendre
Conradie Inc
BLOEMFONTEIN.
For
1
st
to 3
rd
Respondents:
Adv
A White
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN.
[1]
Fibro
Furnishers
(
Pty
)
Ltd
v
Peimer
1935
CPD
378 at 380, a decision by the full bench, cited with approval on
this point in
Smith
v Kwanonqubela Town Council
1999 (4) SA 947 (SCA) para 12.
[2]
2012 (1) SA 637
(SCA).