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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2025 -066517
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
7 July 2025
In the matter between:
L[...] A[...] M[...] First applicant
L[...] A[...] M[...] NO Second appellant
and
E[...] M[...] First respondent
E[...] M[...] NO Second respondent
In re:
E[...] M[...] First Applicant
E[...] M[...] NO Second Applicant
and
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L[...] A[...] M[...] First Respondent
THE MASTER OF THE HIGH COURT OF Second Respondent
SOUTH AFRICA, PRETORIA
INVESTEC BANK LIMITED Third Respondent
HENDRIK CHRISTOFFEL DU TOIT NO Fourth respondent
THE REGISTRAR OF DEEDS, Fifth respondent
JOHANNESBURG
L[...] A[...] M[...] NO Sixth respondent
This Order is made an Order of Court by the Judge whose name is reflected herein,
duly stamped by the Registrar of the Court and is submitted electronically to the
Parties / their legal representatives by email. This Order is further uploaded to the
electronic file of this matter on Caselines/CourtOnline by the Judge’s secretary . The
date of this order is deemed to be 7 July 2025.
JUDGMENT (LEAVE TO APPEAL)
CORAM LIEBENBERG AJ:
[1] To avoid confusion, I refer to the parties as in the main application. Because
the first and sixth respondent were the only respondents to participate in the
proceedings, they are referred to as “ the respondents ” herein.
[2] The respondents are aggrieved by the orders I granted on 22 May 2025. The
impugned orders are dealt with separately.
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Order re urgency [paragraph 1 of the order]
[3] Both in the heads of argument and at the hearing of this application, Ms
Rodrigues , who appeared for the respondents, abandoned the application for leave
to appeal the order granted in paragraph 1 of the main judgment, to the effect that the matter was heard as one of urgency in terms of Rule 6 (12). Accordingly, nothing
more needs to be said on this score.
Order re matrimonial home [paragraph 2 of the order]
[4] Generally, for an order to be susceptible to an appeal, it must have the
following features :
1 (i) it must be final in effect and not susceptible to alteration by the
court of first instance; (ii) it must be definitive of the right of the parties, that is it must
grant definite and distinct relief; and (iii) it must have the effect of disposing of at
least a substantial portion of the relief claimed in the main proceedings. Exceptionally, interlocutory orders may be appealable if either the interests of justice demand it, or if the order has a final and definitive effect on the proceedings.
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[5] Neither of the parties apparently consider ed the appealability of paragraph 2.
Plainly, the order granted is an interim order, pending finalisation of the divorce
action. The first respondent, who bear s the onus to demonstrate exceptional
circumstances , did not contend that the order is final in effect or that the interests of
justice demand that the order be appealed against . Accordingly, no appeal lies
against the interim order.
[6] In any event, t he first respondent’s upset that the order did not include his
entire undertaking, l oses sight of the duty of a court to act in a stewardly manner
bearing in mind its institutional interests which are not subordinate to the wishes of
litigants.3 A competent and proper court order is one the terms of which must be
1 Zweni v Minister of Law and Order 1993 (1) SA 523 (A) and further developed in City of Tshwane
Metropolitan Municipality v Afriforum 2016 (6) SA 279 (CC) at [39] - [42].
2 DRDGold Ltd v Nkala 2023 (3) SA 461 (SCA) .
3 Eke v Parsons 2016 (3) SA 37 (CC) at [34] .
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from a legal and practical point of view , capable of being included in a court order.4
The first respondent’s undertaking was couched as mutually destructive alternatives
– not to sell the immovable property alternatively to sell the property and retain the
net proceeds in trust. This Court could not and was not prepared to incorporate s uch
alternatives in a court order.
[7] If and when changed circumstances demand it, the first respondent is at
liberty to seek a variation of the interim order. In the meantime, the order is not
susceptible to an appeal.
Orders re trust [paragraphs 3, 4 and 5 of the order]
[8] The relief sought in the notice of motion was phrased thus:
“4. That the second applicant is granted leave to approach this court for the
relief sought below as a single trustee of the M[...] Family Trust:
4.1 The fifth respondent is directed, within 3 court days from the granting of
the order, to sign and date a document (“ the letter of resignation”) in which he
shall record the following:
I, the undersigned, L[...] A[...] M[...] (with identity number […] ), do hereby give
notice to the Trustee(s) and Beneficiaries of the M[...] Family Trust
(IT001317/2022(T)) of my resignation as trustee of the trust with immediate
effect.
whereafter he shall, forthwith, deliver the original signed letter of resignation to the second applicant.
4.2 Should the fifth respondent fail to provide the letter of resignation within 3 court days, the Registrar of this Honourable Court is authorised to sign the letter of resignation on his behalf.
4.3 The second applicant shall deliver the original letter of resignation to the second respondent and the third respondent.
4.4 The third respondent shall, forthwith, remove the fifth respondent’s access
to and authorisation to transact on any and all bank accounts held by the M[...] Family Trust with Investec Bank Limited.
4 Eke v Parsons above at [26].
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4.5 Unless and until a further authorisation has been provided by the
trustees of the M[...] Family Trust, the third respondent shall, forthwith, allow
only the second applicant to access and transact on any and all bank
accounts held by the M[...] Family Trust with Investec Bank Limited.
4.6 The first respondent shall, within 24 hours of the granting of this order,
pay to the bank account held by the M[...] Family Trust with Investec Bank
Limited under account number 1[ …] the amount of R70 414.17 (seventy
thousand four hundred and fourteen rand and 17 cents) which he withdrew
from this account on 25 and 29 April 2025.
4.7 The first respondent shall deliver to the second applicant the Land
Rover Defender 110 AWD 3.0 D 221kW D300 X -Dynamic HSE vehicle (vin
number S […]) in his possession within 5 court days from the granting of this
order. ”
[9] The respondents argue that the notice of motion is to be interpreted to mean
that the only relief sought by the second applicant was for only leave to approach a
court in due course and not the actual relief contained in the subparagraphs of
paragraph 4. I am satisfied that the interpretation contended for is not supported by
the text of the notice of motion, which must be gauged in the context of the
allegations contained in the founding affidavit .
[10] On the applicants ’ uncontested version, on 21 August 2024 the fifth
respondent was removed as trustee b y majority vote of the trustees then in office at
a duly convened meeting of trustees . It follows that the fifth respondent cannot be
ordered to resign from an office he no longer occupies. The fourth respondent having
resigned in November 2024, prior to the launching of the main application, left the
second applicant as the sole trustee currently in office. It was i n so far as there may
be a contestation about the provisions of the trust deed,5 that the second applicant
sought recognition of her locus standi as sole trustee to protect the trust fund.6
[11] In their answering affidavit, the respondents did not respond meaningfully to
the allegations regarding the trust, the trustees , the first respondent’s most recent
5 Founding affidavit para 11.2.3 read with clause 6.4 of the trust deed .
6 Founding affidavit para 11.2.4.
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withdrawal of trust funds from the bank account , and the applicants’ fear that the
trust’s assets, including the motor vehicle, may be sold. There is also no suggestion
in the affidavit that the respondents viewed the relief as being a bifurcated
application or that they anticipated further proceedings in this regard. The highwater
mark of the defence is the assertion that ‘[t] here is no basis for the Honourable Court
to remove me as trustee of this Trust. ”7 Ms Rodrigues was constrained to concede
that the respondents’ answering affidavit does not support the argument nor the
interpretation contended for.
[12] I agree with Mrs Ossin, who appear ed for the applicants , that the
respondents’ argument appears to be opportunistic , and arose ex post facto
following questions posed by this Court during argument . Ultimately, the first
respondent ’s approach to the application was yet a further example of an
undesirable lack of frankness required in matrimonial litigation.8 Rather than
grappling with the merits of the relief sought, the answering affidavit contained
numerous technical points and ad hominem attacks on the applicants’ attorneys.
[13] Thus, there is no reasonable prospect of success on appeal against the
orders pertaining to the trust , nor is there any other compelling reason to grant leave
to appeal.
Order re costs
[14] The principle that a successful party should, as a general rule, have his costs
remains subject to the basic principle that an award of costs is in the discretion of the
presiding judicial officer, who may deprive such a successful party of his costs,
depending on the circumstances of the case.9 Being an order made in the exercise
of a judicial discretion , interference on appeal is ordinarily only justified where the
discretion was not exercised judicially ; where the decision was informed by wrong
principles; the decision was affected by a misdirection of facts; or the decision could
not reasonably have been reached by a court properly directing itself to the relevant
7 Answering affidavit para 12.1.
8 Para [8] of the main judgment.
9 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others [1996] ZACC 27;
1996 (2) SA 621 (CC) at [3].
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facts and circumstances.10 On appeal it is not enough to show that the lower court’s
order was wrong.11
[15] The sole basis for the first respondent ’s discontent with the costs order
granted against him , is that the applicants did not obtain “ substantial success ”,
having failed on the anti-dissipation issue12 and the disclosure issue.13
[16] As is evident from paragraph [21] of the main judgment, despite the
applicants’ limited success, in awarding costs against the first respondent, this Court was swayed by his actions and inactions which forced the applicants’ hand, and his
secretiveness. It was not contended that the Court’s consideration of the first
respondent’s uncontested behaviour was erroneous or capricious or otherwise
objectionable, or that it exercised its discretion in a manner where interference is
otherwise apposite .
[17] Accordingly, I am not satisfied that the first respondent ’s proposed appeal
against the costs order has reasonable prospects of success or that there is any
other compelling reason why the appeal should be heard.
Order
[18] In the result, the following order is granted:
(a) The application for leave to appeal is dismissed with costs, including
counsel’s fees on scale B.
SARITA LIEBENBERG
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Heard on 4 July 2025
10 Zuma v Office of the Public Protector 1447/ 2018 [2020] ZASCA 138 ( 30 October 2020) at para [20]
11 Public Protector v South African Reserve Bank [2019] ZACC 29 at [144]
12 Paras [4] – [12] of the main judgment.
13 Paras [13] – [14] of the main judgment.
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Judgment on 7 July 2025
For the applicants:
Adv Ilana Ossin (082 373 6002 / iossin@mweb.co.za )
Instructed by:
BERNADT VUKIC POTASH & GETZ ( REF: SVS/cm/161229 )
(021 405 3800 / sandra@bvpg.co.za chesneym@bvpg.co.za)
For the first and fifth respondents:
Adv M Rodrigues (072 202 5981/ michrodrigues@mweb.co.za)
Instructed by:
BKDS Attorneys (011 616 6306 / ursula@bkds.co.za)