IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case No: A169/2024

In the matter between:

LYDIA LOUISA EBELING Appellant

and

CECELIA TANJA KOCH First Respondent

RALF KOCH Second Respondent

THE REGISTRAR OF DEEDS, CAPE TOWN Third Respondent

THE MASTER OF THE HIGH COURT, PORT ELIZABETH Fourth Respondent

Coram: Justice R Henney, Justice J Cloete et Justice C N Nziweni
Heard: 20 January 2025 , judgment reserved 3 February 2025
Delivered electronically: 21 February 2025


JUDGMENT


CLOETE J :


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[1] This is an appeal with leave of the court a quo against its judgment and order
delivered on 22 January 2024, dismissing with costs the appellant’s
application to attach an immovable property situated in Mossel Bay (“the
property”) and currently registered in the name of the second respondent, in
order to confirm, alternatively to found and confirm, this court’s jurisdiction in
respect of an action to be instituted by her against the first and second
respondents (the “main action”). An interim order to this effect was also
discharged by the court a quo. The appeal is opposed only by the first and
second respondents. The third and fourth respondents have not participated
in the proceedings.

[2] The crisp issue for determination is whether the court a quo was correct in its
finding that the appellant lacks locus standi in the main action, and therefore
failed to make out a case to found and/or confirm jurisdiction by attaching the
property for this purpose.

[3] The appellant is the adopted daughter of the late Ms Edeltraud Eb eling (“the
deceased ”) who passed away on 31 December 2015. On 26 May 2013 the
deceased executed a last will and testament (“the will”) in which she
bequeathed her entire South African estate to the second respondent. (She
had a separate, substantial estat e in Germany as well). It is common cause
that one of the witnesses to the will was the first respondent, who is married to
the second respondent. It is also undisputed that, in the event of the will being
declared invalid, the deceased’s South African est ate would devolve upon the
appellant who is her sole heir under the laws of intestacy.

[4] The appellant has already launched an application in the Eastern Cape High
Court, Gq eberha, under case number 1989/2022 for the will (which was
accepted by the fourth r espondent) to be declared invalid on two principal
grounds. The first is that the deceased lacked the requisite mental capacity at
the time when the will was executed , and was unduly influenced by the first
and/or second respondents to do so . The second is that, in any event, the
second respondent is precluded from inheriting by virtue of s 4A(1) of the

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Wills Act.1 That application is opposed by the first and second respondents (it
is unclear why the first respondent is opposing it, but that is not somethi ng we
need consider for present purposes). In addition, and although not apparent
from the papers, we were informed by counsel during the hearing of the
appeal that the second respondent has brought a counter -application in those
proceedings in terms of s 4A(2)(a) of the Wills Act. I return to these statutory
provisions later in this judgment.

[5] Both the first and second respondents reside in Germany. The main action
which the appellant wishes to institute against them in this court is for the
recovery of at least R1 449 000 in respect of monies allegedly
misappropriated by, or on behalf of and at the instance of, the first and second
respondents from the deceased’s Standard Bank account held at its Somerset
West branch during the period 17 March 2014 to 8 May 2014 and which, so
the appellant alleges, was utilised in part to purchase the property which was
transferred jointly into the names of the first and second respondents on
16 September 2014.

[6] In her will, the deceased appointed Mr Marthinus Boyens, an at torney
practising in Jeffrey’s Bay, Eastern Cape, as the sole executor of her South
African estate. The fourth respondent issued letters of authority to Mr Boyens
on 26 February 2016 under Master’s reference number 999/2016. Mr Boyens
passed away on 22 November 2018 without having wound up the deceased’s
estate. The will makes no provision for the appointment of an executor in his
stead, and without a new executor being appointed, the deceased’s estate is
effectively hamstrung with no -one to take its winding -up further, or to pursue
any claims in its favour such as the one which the appellant maintains should
be advanced against the first and second respondents.

[7] The difficulties thu s faced by the appellant are two -fold. First, she is
challenging the validity of the deceased’s will in the pending application in the

1 No. 7 of 1953.

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Eastern Cape High Court. Second, the sole executor appointed in terms of the
impugned will has ceased to act as such. The outcome of the litigation in the
Eastern Cape High Court will determine whether the fourth respondent is to
exercise his or her powers, under the Administration of Estates Act ,2 in terms
of s 18(1)(a), i.e. the appointment of an executor where a person h as died
without having by will nominated an executor; or s 18(1)(e), i.e. the
appointment of a substitute executor where the appointed executor ceases for
any reason to act. In the meantime there is no -one to protect and advance the
interests of the potent ial sole intestate beneficiary of the deceased’s estate,
namely the appellant.

[8] It is for this reason that the appellant submits that she will have locus standi in
the main action. The court a quo correctly accepted that all the appellant has
to show , for p urposes of attachment of the property to found and/or confirm
jurisdiction, is a prima facie cause of action , and that the threshold for doing
so is relatively low. In Simon NO v Air Operations of Europe AB and Others3 it
was held that:

‘As Logans was an incola of the Court and ING Aviation a foreign
peregrinus , attachment of the monies in the bank account (which
belonged to ING Aviation) was necessary to found jurisdiction ( ad
fundandam juri sdictionem ) i.e. to confer a jurisdiction which did not
otherwise exist. All that remained for the appellant to establish was that
he had a prima facie cause of action against ING Aviation. The
requirement of a prima facie cause of action is satisfied if an applicant
shows that there is evidence which, if accepted, will establish a cause
of action. The mere fact that such evidence is contradicted will not
disentitle the applicant to relief —not even if the probabilities are against
him. It is only where it is quite clear that the applicant has no action, o r
cannot succeed, that an attachment should be refused . (MT Tigr:
Owners of the MT Tigr and Another v Transnet Ltd t/a Portnet

2 No. 66 of 1965.
3 1999 (1) SA 217 (SCA) at 228B -F.

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(Bouygues Offshore SA and Another Intervening) 1998(3) SA 861
(SCA) at 868 B -H). The remedy of attachment ad fundandam
jurisdicti onem in order to create jurisdiction is an exceptional remedy
and one that should be applied with care and caution (Ex parte Acrow
Engineers (Pty) Ltd 1953 (2) SA 319 (T) at 321G-H; Thermo Radiant
Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd 1969 (2) SA 295
(A) at 302C -D). But once all the requirements for attachment have
been satisfied a court has no discretion to refuse an attachment
(Longman Distillers Ltd v Drop Inn Group of Liquor Supermarkets (Pty)
Ltd 1990 (2) SA 90 6 (A) at 914E -G).’

[my emphasis]

[9] However the court a quo concluded that , despite the other requirements for
attachment having been satisfied, namely an incola applicant and peregrinus
respondent, and a property to be attached within the area of this court’s
jurisdiction: (a) the appellant is not the executor of the deceased’s South
African estate; and (b) unless and until the will is set aside, the appellant has
no legal interest in that estate. Having regard to the court a quo’s judgment
granting leave to appeal, it is apparent that its attention was not drawn by
either counsel to the Supreme Court of Appeal decisions in Gross and Others
v Pentz4 or Standard Bank of South Africa Ltd v July and Others .5

[10] In Gross and Others v Pentz one of the beneficiaries of a testamentary trust
had instituted action against, amongst others, one of the trustees of the trust
for his removal, and for an order that he be held jointly and severally liable,
together with certain of the defendants, for repayment to the trust of an
amount of approximately R530 000. The plaintiff’s cause of action was an
alleged breach by the trustee concerned of his fiduciary duties in which, it was
also alleged, certain of the other defendants knowingly participated. The
trustee resigned prior to the trial in the High Court, but the plaintiff persisted in

4 1996 (4) SA 617 (SCA).
5 [2018] ZASCA 85 (31 May 2018).

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his claim for monetary relief on behalf of the trust. At the commencement of
the trial the affected defendants took the point that, upon resignation of that
trustee, the remaining trustee (who was also a defendant but against whom
no specific relief was sought) was the only person who had locus standi to
pursue the action. Ultimately the High Court found in favour of the plaintiff on
this point.

[11] On appeal, the court referr ed to what is known as the Beningfield exception,
which is that while normally the executor or trustee of an estate is the proper
person to enforce rights of action on behalf of that estate, a beneficiary may
do so where the executor or the trustee will be the defendant, the rationale
being that a delinquent executor or trustee cannot sue him or herself. The
court held that:

‘Clearly a defaulting or delinquent trustee cannot be expected to sue
himself. The only alternative to allowing the Beningfield except ion
would be to require the aggrieved beneficiaries to sue for the removal
of the trustee and the appointment of a new trustee as a precursor to
possible action being taken by the new trustee for the recovery of the
estate assets or other relief for the re coupment of the loss sustained by
the estate. This, in my opinion, would impose too cumbersome a
process upon the aggrieved beneficiaries.’6

[12] The court then turned to consider whether a representative action in terms of
the Beningfield principle is available to beneficiaries who have no vested right
to the future income or capital of a trust. Corbett CJ held that: ‘(w)hile the
rights of such ben eficiaries are contingent, they do, as the Court a quo
observed… have vested interests in the proper administration of the trust.
Although there does not appear to be any authority directly in point, I am of
the view that such a beneficiary may bring a rep resentative action…’.7


6 At 628G -H
7 At 62 8I-629A.

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[13] Having considered the submissions made on behalf of the affected
defendants that this could never apply if there is another so -called innocent
trustee (i.e. the remaining trustee in that case who was also a defendant)
Corbett CJ stated:

‘The liability or immunity of such an "innocent" trustee is not in issue
in this case. What is in issue here is the procedural question of locus
standi in judicio . It seems to me that this is a matter which should be
settled, and be capable of bein g settled, in initio . If the law be that
a co-trustee is jointly and severally liable without exception, then cadit
quaestio , the argument of appellant's counsel necessarily fails. If on
the other hand, there is room for an exception to this general rule, then
in a case such as the present one the appellant's general contention, if
correct, would place the claimant in an invidious position. If, as
appellant would have it, the claimant cannot proceed if the one trustee
is innocent, then he would be compelled , in the absence possibly of
some admission, to prove in legal proceedings that the so -called
"innocent" trustee is in fact liable in law, even though he did not wish
to claim relief from such trustee; and all this merely to establish locus
standi to sue t he other "guilty" trustee. And if in the end it transpired
that the "innocent" trustee was in truth not liable, then he would have
eventually established his lack of locus standi , but it would have taken
a trial action to do so. This seems to me to be a wh olly impractical
and undesirable procedure. To obviate it I consider that the rule should
be that where in a case such as this there are joint trustees, then for
the purposes of deciding the issue of the locus standi of the claimant
both trustees must be a ssumed to be liable for the breach of trust. If
this rule be applied in the present case, then this disposes of the
question of locus standi in favour of the respondent ...’8


8 At 630H -631C.

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[14] The principles established in Gross and Others v Pentz were considered by
the Sup reme Court of Appeal in Standard Bank of South Africa Limited v July
and Others . That case involved the deceased estate of a Mrs Eunice Mbuqe,
who died intestate on 19 March 2003, leaving two children, Mrs Linda July
and Mr Ray Mbuqe. M rs July was married to Mr Mlungisi July and they in turn
had two children who were the third and fourth respondents on appeal.
Mrs July died, also intestate , on 13 June 2004 and her brother, Mr Ray
Mbuqe, on 5 November 2008. Mr Ray Mbuqe had been appointed by the
Master as th e executor of his late mother’s estate. He had caused her
deceased estate to transfer an immovable property to his wife, Mrs Tembisa
Mbuqe. The respondents applied to the High Court for (amongst other relief)
an order setting that transfer aside. The appli cation was launched after Mr
Ray Mbuqe’s death. Accordingly, at the time, there was no executor in the
deceased estate and no steps had been taken to ask the Master to appoint
another executor. Moreover the estate had not yet been wound up. The
consequence of Mrs Linda July having also died intestate was that her share
in her late mother’s estate devolved on her husband , Mr July, and their two
children. Mr July was also appointed by the Master as executor of Mrs Linda
July’s estate. The High Court, applying the Beningfield exception, held that
since the executor of Mrs Eunice Mbuqe’s estate was deceased, the
beneficiaries of Mrs July’s estate had locus standi to advance the claim to set
aside the transfer of the property.

[15] On appeal, the argument of the appellant bank was that the High Court
wrongly applied the Beningfield exception ; it should not have done so,
because there was no delinquent executor in place. There was no executor at
all, and similarly no impediment preventing the re spondents from approaching
the Master to make a new appointment. The bank further contended that Mr
July and the grandchildren, while heirs to Mrs Linda July’s estate, were not
direct heirs to Mrs Eunice Mbuqe’s estate and were more remote than the
conting ent beneficiaries in Gross .


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[16] The Supreme Court of Appeal rejected these arguments and held that
Mrs Linda July was herself an heir of that estate, and died intestate, and
accordingly Mr July and the grandchildren had an interest in the proper
administratio n of Mrs Eunice Mbuqe’s estate. While acknowledging that the
respondents would not have to sue for the removal of an executor, thus
making the process less cumbersome, and could merely request the Master
to make a suitable appointment to the position, the court found that the
Beningfield exception nonetheless applied . It held that:

‘[25] In my view, it is unnecessary for the respondents first to ask the
Master to appoint an executor to Eunice’s estate. There is no doubt
that Linda could have sued Ray for m aladministration of the estate and
would have been entitled to a declarator that the transfer of the first
immovable property was invalid. She would have had locus standi in an
action against him. The fact that she died before him should not
deprive her es tate of that locus standi . And the fact of his subsequent
death equally should not have deprived her estate of the standing to
sue. Equally, the executor of Linda’s estate (Mr July) and the
contingent beneficiaries in her estate, Mr July and the grandchild ren,
would then have standing in an action against the executrix of Ray’s
estate (Tembisa) and his heirs, Tembisa and their children.

[26] The bank is correct in saying that Eunice’s estate needs an
executor and that if the respondents are successful befo re the high
court, an executor would be needed to prepare a liquidation and
distribution account and to distribute the assets in the estate. However,
until a court finds that the transfer of the first immovable property
should be set aside, an executor wil l not know what assets there are to
distribute . It is unhelpful thus to assert that the proper remedy for the
respondents was to ask the Master to appoint an executor in terms of
s 18(1)( e) of the Act. If they fail in the high court there may be no
assets to distribute…’
[my emphasis]

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[17] In the present matter the appellant finds herself in a similar position. She is
presently not an heir of the deceased’s South African estate, but she will
become the sole intestate heir if the application pending in the Eastern Cape
High Court is determine d in her favour. She also makes the point that the
amounts withdrawn from the deceased’s bank account, and which she alleges
were utilised in part by the first and second respondents to purchase the
property in Mossel Bay, constitute almost the entire Sout h African estate of
the deceased ( if not included , its sole asset is the sum of R1 202.97
remaining in the Standard Bank account). The main action which the
appellant wishes to institute in this court is for recovery of the amounts
withdrawn from the Stand ard Bank account, as also any other amounts which
it may be found were misappropriated by the first and/or second respondents.
Until that issue is determined one way or the other, an executor will not know
what assets there are to distribute.

[18] As previousl y stated, the appellant relies on two principal grounds for the relief
in the pending application in the Eastern Cape High Court : the first is that the
deceased lacked the requisite mental capacity to execute the will and was
unduly influenced by the first and/or second respondents to do so; and the
second is based squarely on s 4A of the Wills Act. This provides in relevant
part as follows:

‘4A Competency of persons involved in execution of will

(1) Any person who attests and signs a will as a witness, or w ho
signs a will in the presence and by direction of the testator, or who
writes out a will or any part thereof in his own handwriting, and the
person who is the spouse of such person at the time of the execution
of the will , shall be disqualified from rece iving any benefit from that
will.

(2) Notwithstanding the provisions of subsection (1) ---

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(a) a court may declare a person or his spouse referred to in
subsection (1) to be competent to receive a benefit from a will if
the court is satisfied that that person or his spouse did not defraud
or unduly influence the testator in the execution of the will ;…’

[my emphasis]

[19] Reverting to what was held in Simon NO (supra ) I am persuaded that the
appellant has established a prima facie cause of action (in the intended main
action) against the first and second respondents. She has presented evidence
which, if accepted, will establish that cause of action. Moreover, and this is
sufficient for present purposes, the first and second respondents do not
dispute that the first respondent signed the deceased’s will as one of the
witnesses thereto which, if the ir counter -application in the Eastern Cape High
Court is dismissed, will result in the second respondent being disqualified to
inherit as well as the will being set aside, leaving the appellant as the sole
intestate heir of the deceased’s South African estate. In that event, she will
clearly have an interest in the proper administration of that estate. The
Eastern Cape court may only grant the counter -application if, having regard to
the plain wording of s 4A(2)(a) of the Wills Act, it is satisfied that the first
and/or second respondents did not defraud or unduly influence the deceased
in the execution of the will, which in turn falls squarely into the other part of
the appellant’s case before that court.

[20] Turning now to the position of the first respondent in relation to the attachment
of the property in Mossel Bay to found and/or confirm this court’s jurisdiction.
It is common cause that the property was initially transferred into the joint
names of the first and second respondents; that following her release from a
correctional facility in Germany in 2022 (on the version of these respondents
this occurred in January 2022) the first respondent (purportedly ) sold her
undivided half share in the property to the second respondent on 4 July 2022
for R1 250 000; and registration of transfer pursuant thereto occurred on

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22 September 2022. The first and second respondents allege there was
nothing untoward about this sale ‘as it was done purely for business and
economical reasons due to the first respondent’s pressing financial
circumstances’. What has not escaped my notice however is that: (a) the
purported sale and transfer occurred around the time the appellant launched
the proceedings in the Eastern Cape High Court; and (b) despite having had
the opportunity to do so, neither respondent produced any objective evidence
of the actual payment of the alleged purchase price.

[21] In their answering affidavit the first and second respondents alleged that
‘(f)urthermore, by virtue of the abstract system of transfer, it has become
irrelevant how it came about that first respondent’s 50% share has been
transferred to me as it has been done in full compliance with our instructions
and intentions. Further lega l argument will be presented in this regard on our
behalf at the hearing…’ . No such argument was presented before us during
the appeal. In any event, although the abstract theory of ownership does not
require a valid underlying contract, for example a sale , ownership will not pass
– despite registration of transfer – if there is a defect in the real agreement.
The essential elements of such an agreement are an intention on the part of
the transferor to transfer ownership and the intention of the transferee to
become the owner of the property: Legator McKenna v Shea.9

[22] The appellant has not yet been able to institute the main action given that her
application to found and/or confirm the jurisdiction of this court failed in the
court a quo. It is open to her , in the main action, to seek to have that sale and
transfer set aside on the basis of the absence of any real intention on the part
of either the first or second respondents in relation thereto, or on any other
ground she chooses to rely upon . It would thu s be premature for me to
assume, without more, that the mere fact of transfer of the first respondent’s
undivided half share in the property to the second respondent will pass
muster. It is thus my view that, for present purposes, the attachment of the

9 2010 (1) SA 35 (SCA) at para [22].

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property is sufficient to found and/or confirm jurisdiction in respect of both the
first and second respondents. If a later court finds there was indeed a real
agreement between the first and second respondents in relation to the
property, then so be it.

[23] I would thus propose the following order:

1. The appeal succeeds with costs, including the costs of counsel, on
Scale C (party and party) , and the first and second respondents shall
pay such costs jointly and severally, the one paying, the other to be
absolved;

2. The order granted by the court a quo on 22 January 2024 dismissing
the application with costs , and discharging the interim attachment
order and rule nisi issued on 25 January 2023 , is set aside and
substituted with the following:

“The interim attachment order and rule nisi issued on
25 January 2023 and extended on 24 March 2023 and 11 May
2023 is confirmed. The first and second respondents shall pay
the costs of this application jointly and severally, the one
paying, the other to be absolved, on the party and party scale
(Scale C) and including the costs of counsel as well as all
reserved costs orders. ”


_________________
J I CLOETE

I agree and it is so ordered .
_________________
R C A HENNEY


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I agree.
_________________
C N NZIWENI



For appellant : Adv C. Tait
Instructed by : Hildebrand Attorneys ( Mr J. Hildebrand)

For 1st & 2nd respondents : Adv L. J. Joubert
Instructed by : Oosthuizen Marais & Pretorius Inc. ( Mr J. Kruger)

For 3rd & 4th respondents : no opposition and no appearance