REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
APPEAL CASE NO: A143/2024
HIGH COURT CASE NO: 2566/2021
( 1) REPORT AB LE: NO
(2) OF INTEREST TO O THER JUDGES: NO
(3) REVISED .
.V.07.2-5
DA TE
In the matter between:
' SIGNATU RE
THE TRUSTEES OF THE N GEORGIOU TRUST
Trust Registration Number: TMP 757
namely
MAUREEN LYNNETTE GEORGIOU N .O.
JOSEPH REYNOLDS CHEMAL Y N.O.
and
SYDNEY CLARENCE WILLIAM POOLE
L.B. SAFFY N .O.
(The executor of the deceased
estate of N. GEORGIOU)
In re:
THE TRUSTEES OF THE N GEORGIOU TRUST
Trust Registration Number: TMP 757
namely
MAUREEN LYNETTE GEORGIOU N.O.
JOSEPH REYNOLDS CHEMAL Y N.O.
First Appellant
Second Appellant
First Respondent
Second Respondent
The Intervening Party

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In re:
SYDNEY CLARENCE WILLIAM POOLE Applicant
and
L.B. SAFFY N.O.
(The executor of the deceased estate of N. GEORGIOU)
Respondent
JUDGMENT
This judgment was handed down electronically by circulation to the parties' legal
representatives by email and uploading it to the electronic file of this matter on case lines. The
date and time of hand down is deemed to be 10:00 on 21 July 2025.
TEFFO, J (MOTHA, J AND LENY Al, J CONCURRING)
Introduction
[1] The first respondent, Mr Poole obtained monetary judgment for an
amount of R4 400 000,00 plus interest and costs against Zephan (Pty) Ltd
("Zephan"), previously known as Zelpy 2095 (Pty) Ltd, Mr Georgiou ("the
deceased') and the N Georgiou Trust ("the Trusf') jointly and severally. Writs
of execution were obtained and executed against Mr Georgiou's properties to
which nu/la bona returns were issued. For the purposes of this judgment, it
suffices to mention that Mr Georgiou was the managing director and sole
shareholder of Zephan and that Zephan is currently under business rescue.
[2] On 20 January 2021 Mr Poole launched an application for the provisional
sequestration of Mr Georgiou. Mr Georgiou opposed the application. He filed
an answering affidavit in opposition of the sequestration application and a
counterapplication to stay the sequestration application. Subsequently in

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September 2021 Mr Georgiou died. Afterwards L.B. Saffy N.O. ("the executor
of the deceased estate") substituted Mr Georgiou as a respondent in the
sequestration application. Prior to his death, Mr Georgiou was one of the
trustees of the Trust.
[3] The application for the provisional sequestration of Mr Georgiou's
deceased estate was set down for argument in the opposed motion on 24
January 2024. On 23 January 2024 the trustees of the Trust (the first and
second appellant) brought an application for leave to intervene as the
respondents in the sequestration application to oppose it.
[4] The basis thereof was that Mr Poole was no longer a creditor of the
deceased estate in terms of clause 34 of the business rescue plan of Zephan.
If necessary, this clause will be dealt with later.
[5] On 24 January 2024 the court a qua heard the intervention application,
the counterapplication and the sequestration application. It dismissed the
intervention application and the counterapplication and granted the provisional
sequestration of the deceased's estate.
[6] The matter is before us on appeal. Leave to appeal has been granted to
the Full Court by the Supreme Court of Appeal ("the SCA ") against the judgment
and order(s) (including the order as to costs) of the court a qua.
[7] The second respondent ("the executor of the deceased estate") did not
participate in the appeal.
The findings of the court a qua

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[8] In dismissing the intervention application the court a quo found that the
Trust does not have locus standi to bring the intervention application. It also
found that the trustees of the Trust could not act on behalf of the Trust as they
were inquorate and failed to appoint another trustee when a vacancy occurred
after the death of Mr Georgiou as was required of them in terms of the Trust
Deed . The court a quo further found that the provisions of clause 34 of the
business rescue plan of Zephan do not exclude the right of Mr Poole to apply
for the compulsory sequestration of the deceased estate. In addition, it held that
Mr Poole had satisfied the requirements for the provisional sequestration of the
deceased estate,
Grounds of appeal
[9] Various grounds were raised in this appeal. However , the appeal will be
limited to the three grounds which we find pertinent:
(a) The trustees of the Trust contend that the court a quo erred by
holding that the Trust does not have locus standi to bring an
application for intervention to oppose the sequestration application
against the deceased estate.
(b) They claim that the court a quo misdirected itself by holding that they
cannot litigate on behalf of the Trust as they failed to comply with the
provisions of the Trust Deed which require them to appoint a third
Trustee when a vacancy occurred after the death of Mr Georgiou.
They assert that the court a quo ought to have found that the Trust
Deed , when read purposively and wholistically, does allow them to
bring the intervention application.

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(c) A submission was also made that Mr Poole lacked locus standi to
proceed with an application for the sequestration of the deceased
estate since the judgment debt he relies on for the application, had
been ceded to a third party ("the Proposer") under the business
rescue plan of Zephan.
Applicable legal principles
[1 OJ It is trite that a court of appeal may only interfere on appeal if there was
a misdirection of fact or a wrong principle of law.1
Locus standi of the Trust
[11] The trustees contend that the Trust is the sole heir and beneficiary in the
deceased estate. It would lose out on receiving an inheritance of not less than
R200 000,00 if the sequestration order is granted. It therefore has a direct and
substantial interest to intervene as a party in the sequestration application
against the deceased estate and oppose it.
[12) It is contended that the personal right that the Trust acquires as an heir
to claim against the executor of the deceased estate its inheritance and/or
benefits in the estate at some future date provides it with sufficient legal interest
to intervene in the sequestration application and to introduce a defence to the
sequestration application that the executor cannot rely on.
[13) I have read the cases the trustees relied on in support of their argument
and I find them to be distinguishable. One of the cases referred to is Jones and
1 Florence v Go vernment of the R epublic of South Africa 2014 (6) SA 456 (C C) at para 114

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Another v Beatty NO and Others2 where an executor was asked by the heirs to
amend a liquidation and distribution account. The court found that the heirs had
locus standi to seek such relief. The case is distinguishable in that it was
between the executor and the heirs which is not the case in the appeal before
us.
[14] The right of an heir to claim an inheritance in the estate of the deceased
was described by the authors in Wille's Principles of South African Law 3 as
follows:
"However, in the light of modern system of administration of estates that
replaced the common law system of universal succession, the right of
the beneficiaries to inherit is no longer absolute nor an assured one. If
the deceased estate, after confirmation of the liquidation and distribution
account, is found to be insolvent, none of the beneficiaries will obtain
any property or assets at all. In the case of a legacy, the legatee will only
obtain the property bequeathed to him, if, first the property belonged to
the testator, for the Will of one person cannot confer a real right in favour
of another person over property belonging to a third person, and if
secondly, the assets of the deceased not left as legacies are sufficient
to pay his debts. In any event, an heir cannot vindicate from a third
person property which the heir alleges form part of the deceased estate,
only the executor has power. It follows from the above considerations
that an heir does not upon the death of a testator acquire the ownership
of the assets of the deceased but merely has a vested claim against the
2 1998 (3) SA 1097 (T)
3 9th edition

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executor for payment, delivery or transfer of the property comprising the
inheritance, and this claim is enforceable only when the liquidation and
distribution account has been confirmed. The heir in fact becomes the
owner of movable property only on the delivery of it, or of immovable
property upon registration ... The modern position is therefore that a
beneficiary has merely a personal right ... against the executor and
does not acquire ownership by virtue of a Will."
[15] The above position has long been settled and confirmed in many
decisions of our courts. See Greenberg and Others v Estate Greenberg4 and
W v Williams-Ashman NO and Others5.
[16] It has by now become settled law that the joinder of a party is only
required as a matter of necessity - as opposed to a matter of convenience - if
that party has a direct and substantial interest which may be affected
prejudicially by the judgment of the court in the proceedings concerned.6 The
mere fact that a party may have an interest in the outcome of the litigation does
not warrant a non-joinder plea. The right of a party to validly raise the objection
that the other parties should have been joined to the proceedings, has thus
been held to be a limited one.7
[17] Relying on the decision in Ploughman NO v Pauw8 the appellant
contends that apart from a joinder out of necessity, a court can join a party
under the common law grounds of convenience, equity, the saving of costs and
4 1955 (3) SA 361 (AD) at 364-365
5 2023 (4) SA 113 (SCA ) at para 13
6 See Bowring NO v Vrededorp Properlies CC 2007 (5) SA 391 (SCA) para 21
7 See Burger v Rand Water Board 2007 (1) SA 30 (SCA) para 7
8 2006 (SA) 334 (C) at 341 E-F

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the avoidance of multiplicity of actions. The court therefore has an inherent
power to order the joinder of further parties in an action or application which
has already begun, to ensure that that person's interest in the subject matter of
the dispute, and whose rights may be affected by the judgment, are before
court.
[18] In my view the decision in Ploughman NO v Pauw9 , does not support the
trustees' case. In that case the second respondent who was joined as a party
to the proceedings had acquired ownership of the property which was the
subject matter of the dispute between the parties, together with her brother, the
first respondent by acquisitive prescription.
[19] The Trust as an heir and beneficiary in the deceased estate does not
acquire ownership of the assets of the deceased upon the deceased's death. It
merely has a vested claim against the executor for payment, delivery or transfer
of the property and its claim is only enforceable when the liquidation and
distribution account has been confirmed. The Trust merely has a personal right
which is of a financial nature against the executor. This right which I regard as
contingent is deferred until the determination of a preceding interest. It is for
the time being uncertain if it will ever take effect.
[20] Although it is trite that a party with a direct and substantial interest should
be joined to the proceedings, the qualification for joinder is that the interest must
be a legal interest as opposed to a financial interest. The interest of the Trust
being a financial interest and not a legal interest does not confer it locus standi
in indicio to intervene as a party in the sequestration application. In my view
9 Supra

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the court a quo's finding that the Trust does not have the right to the assets of
the estate or a "sufficient legal interest'' to afford it locus standi in judicio to
succeed with the intervention application is correct and cannot be faulted.
[21] Having said that I therefore deem it unnecessary to deal with the other
remaining grounds. Consequently, the appeal must fail.
[22] Mr Poole also brought an application to adduce further evidence in the
appeal which related to a matter that is pending before the Free State High
Court and has to do with the setting aside of the business rescue plan of
Zephan. The application was not proceeded with.
[23] Mr Poole sought costs de bonis propriis against the Trust and the
trustees jointly and severally the one paying the other to be absolved. He
contends that the defence that the trustees intended to raise in the intervention
application to the effect that in terms of clause 34 of the business rescue plan
of Zephan , Mr Poole's claim against the deceased estate has been ceded to
the proposer and therefore he would not succeed to sequestrate the deceased
estate, is the same as those rejected by the SCA in the precious matters which
dealt with the provisions of the business rescue plan in respect of the other
companies, where the deceased was involved. It was submitted that reliance
by the trustees on the effect of the business rescue plan of Zephan as a defence
to the sequestration application against the deceased estate is an abuse of the
court's processes and therefore justifies a punitive costs order against the Trust
and its trustees.

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[24] Having considered the matter, I am not persuaded that the appeal
justifies a punitive costs order against the Trust and the trustees.
[25] Regarding the costs in the application to adduce further evidence in the
appeal I find no reason that justifies the granting of a cost order against Mr
Poole.
Order
[26] In the result the following order is made:
1. The appeal is dismissed with costs.
2. The appellants are ordered to pay the costs of the appeal on a party
and party scale C.
3. The application to adduce further evidence in the appeal is dismissed
and there shall be no order as costs in this application.
M J TEFFO
JUDGE OF THE HIGH COURT
- M MOTHA
JUDGE OF THE HIGH COURT

Appearances
For the appellant
Instructed by
For the first respondent
Instructed by
Heard on
Delivered on
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MM LENYAI
JUDGE OF THE HIGH COURT
R du Plessis SC
Cooper & Associates Inc
c/o Couzyn Hertzog & Horak
L Bolt
Le Grange Attorneys
23 January 2025
21 July 2025