SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy


IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)

Not reportable
CASE NO. 3021/2025

In the matter between:

ZINGA PHAKAMISA MEI First applicant

LINGELIHLE ASEMAHLE MEI Second applicant

ZINTLE BUTHANANI MEI Third applicant

NONYAMEKO MEI Fourth applicant

and

PHUMELELE MEI First respondent

VUYOKAZI MATIKA (born MEI) Second respondent

NOMTHUNZI MEI Third respondent

CANDICE JANINE MULLINS Fourth respondent

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MASTER OF THE HIGH COURT, BHISHO Fifth respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
LAING J

[1] This is an application for interim relief. The applicants seek to protect and
preserve the value of the estate of the late Mr Aubrey Mei, pending the appointment
of an executor.

[2] More specifically, the applicants seek a rule nisi to the effect that, pending the
above appointment: the first, second, and third respondents be interdicted from
dissipating the assets of the deceased, including any rental income; the respondents
in question be ordered to transfer all rental income for the Aubrey Mei Trust into the
account held by Aubrey Mei (Pty) Ltd; the status quo of the deceased’s estate be
preserved; only asset s required for day -to-day operations be permitted for use; and
the first respondent be ordered to collect all rental income owed to the deceased,
pay it into the account held by Aubrey Mei (Pty) Ltd, produce all records in relation
thereto, and account for and maintain all movable and immovable property owned by
the deceased.

[3] The application was brought on an urgent basis. It was opposed by the first,
second, and third respondents.

Applicants’ case

[4] In the founding affidavit, the first applicant explained that he, the second
applicant, and the third applicant are all siblings. The fourth applicant is their mother.
She is also the executrix for the estate of their late father, Mr Phakamisumzi Mei
(‘Phaki’), who had been the predeceased son of the late Mr Au brey Mei. The first,
second, and third applicants are the late Mr Aubrey Mei’s grandchildren.

[5] The first applicant explained further that the first respondent is his uncle, and
the son of the late Mr Aubrey Mei. The second and third respondents are his aunts,
and the daughters of the deceased.

[6] During his lifetime, the deceased acquired several commercial, agricultural,
and residential properties. The Aubrey Mei Family Trust is the registered owner of 17
such properties. The deceased was a founder and a trustee. The first applicant and
the first respondent are beneficiaries of the trust; so, too, is a private company, AG
Mei (Pty) Ltd, in relation to which the deceased was the sole shareholder and
director. The company is also the registered owner of seve ral properties. Its main
purpose, however, is the operation of a rental property business, which involves the
management of a considerable portfolio, including the properties owned by the trust,
the company itself, and the properties regarding which the fi rst applicant’s late father
(Phaki), the first respondent, or the deceased were joint owners. The rental derived
therefrom constitutes an important income stream for the company and is reflected
as such in its financial records.

[7] The first applicant stated that the deceased passed away on 21 May 2025.
The second respondent reported the death, which resulted in the fifth respondent’s
appointing her as executrix on 2 June 2025. The second respondent indicated that
the deceased left no will. This was incorrect. The deceased left a will, leaving it in the
care of the fourth applicant and bequeathing his entire estate to the trustees of a
testamentary trust to be created in terms thereof. The second respondent failed to
disclose the names of all the deceased’s ch ildren, as well as any predeceased
children and their surviving heirs. She was, moreover, never properly nominated as
executrix.

[8] It was the first applicant’s contention that the first, second, and third
respondents had taken possession or control of the d eceased’s immovable

respondents had taken possession or control of the d eceased’s immovable
properties. They had, he said, collected rental income in the amount of R 100 000
without accounting to the fifth respondent or the trust beneficiaries and without
paying it into the account of the estate, the trust, or the company. The y had,
moreover, taken possession and use of the motor vehicles that formed part of the
estate, and possibly dissipated or disposed of other movable property. The first

applicant’s attorneys requested undertakings from the respondents on 30 June 2025
and 2 July 2025. These were ignored.

[9] The matter was urgent because estate property was being used and
dissipated or disposed of to the prejudice of the applicants. The first respondent was
a single trustee and could not collect rental income for his own benefit. The trust
stipulated, moreover, that no distributions could be made until three trustees were in
place. The applicants would not be afforded substantial redress in due course
because the respondents had no liquid assets. Pending the proper appoint ment of
an executor, the applicants had a right, as Phaki’s surviving children, to the
preservation of the value of the estate.

[10] The applicants also filed the affidavit of their attorneys, setting out the history
of their interaction with the applicants an d the steps taken to secure undertakings
from the respondents. These were to no avail.

Respondents’ case

[11] In an answering affidavit, the first respondent asserted that the applicants had
incorrectly conflated three classes of assets. There was, moreover, no proof that
they fell into the deceased’s estate. To that effect, some of the properties were
owned by the trust; other properties were owned by the company; and yet other
properties were jointly owned by the first respondent and Phaki. The first respond ent
denied that the deceased had been the sole shareholder and director of the
company, alleging that he was a co -shareholder and that he had been fraudulently
removed as a director.

[12] The properties owned by the trust, stated the first respondent, did not fall into
the company’s portfolio. The deceased merely deposited the rental income derived
therefrom into the company account for the sake of convenience after the closure of
the trust account. The same arrangement existed in relation to the remaining
properties, including those where there was joint ownership.

[13] The first respondent admitted that the second respondent had reported the
estate and that he, the third respondent, and their brother (Mr Mziwamadoda Mei)
had nominated her as executrix. He denied, however, that she had in fact been
appointed. He expressed surprise that the deceased had left a will, saying that the
respondents had been unaware of it. Furthermore, said the first respondent, it was
strange that the will stipulated only the fourth appl icant’s children as beneficiaries, to
the exclusion of the deceased’s remaining children and those of Phaki. The validity
of the will would be challenged.

[14] Regarding the alleged dissipation of assets, the first respondent denied that
this was so. He averred that, as the sole remaining trustee, he had a responsibility to
administer the trust assets and collect all rental income accruing in relation thereto.
The fourth applicant, said the first respondent, collected rental income for properties
owned by the c ompany. Neither the second nor the third respondent collected rental
income; they had no authority to that effect. The latter, moreover, had the deceased’s
permission to use his motor vehicle prior to his passing; it was currently kept at the
family homestead in Hamburg.

[15] The first respondent said that he was not legally represented when he
received the papers on 7 July 2025. He had been unaware of the applicants’ request
for undertakings or their intentions overall. The applicants’ concerns about the
possible dissipation of estate assets were groundless and based on pure
speculation. He reiterated his responsibility as a trustee, saying that he was obliged
to continue to administer the trust assets and to collect rental income. It was never
alleged that eit her the second or third respondent was doing so. The applicants,
moreover, never invoked the relevant provisions of the deed of trust if they had been
unsatisfied with the first respondent’s conduct. Furthermore, the applicants failed to

unsatisfied with the first respondent’s conduct. Furthermore, the applicants failed to
explain the delay of more than three weeks in launching the application, consequent
to their having become aware that the second respondent had reported the estate.

In reply

[16] The first applicant averred that, while preparing replying papers, his attorneys
received the comp any’s 2018 – 2020 annual financial statements from the fourth

respondent. She also provided them with an extract from the company’s share
register. In that regard, it was apparent that the trust, not the deceased, was the sole
shareholder. Furthermore, the most recent set of annual financial statements, for the
year ended 29 February 2020, indicated a loan from the deceased to the company in
the amount of R 3 470 081. The first applicant was unaware if the loan was
subsequently repaid.

[17] Regarding the first respondent’s conduct as a trustee, the first applicant stated
that the deed of trust obliged him to have opened an account for the trust into which
funds were to have been paid. This was also a statutory requirement in terms of
section 10 (1) of the Trust Property Control Act 57 of 1988 (TPCA). The first
respondent’s failure to have done so amounted to a breach of the deed of trust as
well as a contravention of the TPCA.

[18] The first applicant pointed out that the first respondent had not supplied
details about the amount of rental income collected. He had also not furnished proof
to substantiate his allegations either in relation to the validity of the will or his
removal as a director. The first applicant admitted that the fourth applicant had
agreed to the deceased’s request that she collect rental income for certain
properties; he had, however, never clarified the ownership thereof.

Issues to be decided

[19] The applicants seek urgent interim relief. The court must decide whether the
applicants have established a basis for urgency; if so, then the court must decide
whether the applicants have satisfied the usual requirements for an interlocutory
interdict. Costs, too, must be determined. A brief overview of the relevant principles
follows.

Legal framework

[20] The requirements for interim relief are trite. An applicant must demonstrate:
(a) a prima facie right; (b) a well -grounded apprehension of irreparable harm if the
interim relief is not granted and the ultimate relief is eventually granted; (c) a bal ance

of convenience in favour of the granting of the interim relief; and (d) the absence of
any other satisfactory remedy.1

[21] Regarding the question of urgency, rule 6 (12) (b) of the Uniform Rules of
Court stipulates that an applicant must set out explici tly the circumstances which
render the matter urgent. The applicant must also indicate the reasons why he or
she could not obtain substantial redress at a hearing in due course. In East Rock
Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd,2 Notshe AJ explained that:

‘. . . the procedure set out in rule 6 (12) is not there for the taking. An applicant
has to set forth explicitly the circumstances which he avers render the matter
urgent. More importantly, the applicant must state the reasons why he clai ms
that he cannot be afforded substantial redress at a hearing in due course. The
question of whether a matter is sufficiently urgent to be enrolled and heard as
an urgent application is underpinned by the issue of absence of substantial
redress in an appl ication in due course. The rules allow the court to come to
the assistance of a litigant because if the latter were to wait for the normal
course laid down by the rules it would not obtain substantial redress.’3

The above principles constitute a rudimenta ry framework for the determination of the
matter. Such additional principles as may arise will be discussed in greater detail
according to the context in which they appear.

Urgency

[22] Dealing, firstly, with the question of urgency, the applicants alleged that estate
assets were being used unlawfully. There was a likelihood that, in the event of delay,
they would be dissipated. The applicants’ concerns were based on the first
respondent’s failure to have accounted for the collection of rental income , the third
respondent’s private use of the deceased’s motor vehicle, and the respondents’

1 Setlogelo v Setlogelo 1914 AD 221, 227. The principles have remained largely unchanged for more

than 100 years of South African jurisprudence. See, most recently Tshwane City v Afriforum 2016 (6)
SA 279 (CC), 298F–306B.
2 2011 JDR 1832 (GSJ).
3 At para 6.

overall failure to have given any undertaking. They had, moreover, no personal
assets that could be realised to offset the possible dissipation of estate assets.

[23] The respondents argued that the urgency was self -created. It had taken the
applicants more than three weeks to launch the proceedings, calculated from the
date when the estate was reported.

[24] There was, viewed objectively, insufficient evidence to indicate t hat estate
assets were being dissipated. The applicants presented no proof of any financial
undertakings, transactions, or otherwise, to suggest that the assets would have been
reduced so significantly that, if the matter was enrolled in accordance with th e usual
timeframes contained in rule 6 (5), then no substantial redress would have been
possible. The procedural remedy available in terms of rule 6 (12) is notoriously
susceptible to abuse. It must be approached with extreme care. At a minimum, an
applicant must ensure that he or she clearly sets out the facts, accompanied by an
explanation, for why he or she would not secure meaningful and adequate relief
later.

[25] The court is, nevertheless, persuaded that the applicants have satisfied the
necessary requirements overall, notwithstanding any delay. As will be discussed in
the paragraphs that follow, it is evident that the conduct of the first respondent has
given rise to the concerns expressed by the applicants. He occupies a position of
exceptional power re garding the value and yield of a significant property portfolio in
relation to which the applicants have an interest. The lack of transparency that
characterises the first respondent’s conduct, as well as his attitude to their claims,
convinces the court t hat, left unchecked, he could well dissipate the assets, leaving
the applicants high and dry, so to speak, in the absence of immediate relief.

[26] Notwithstanding the principles clearly enunciated by Kroon J in Caledon

[26] Notwithstanding the principles clearly enunciated by Kroon J in Caledon
Street Restaurants CC v D’Aviera ,4 this is not a matter where the applicants should
be non -suited for lack of urgency. The dispute has been fully ventilated.
Comprehensive heads of argument, supplemented at the invitation of the court, have

4 1998 JDR 0116 (SE), 9–11.

been filed and the matter argued. It would serve no purpose, at this late stage, to
strike the matter from the roll.

Prima facie right

[27] The proper approach for the determination of whether an appli cant has
established a prima facie right was set out in Webster v Mitchell,5 and subsequently
qualified in Gool v Minister of Justice and Another .6 The approach remains
unchanged and was conveniently summarised in Spur Steak Ranches Ltd and
Others v Saddles Steak Ranch, Claremont, and Others,7 where Selokowitz J stated:

‘In determining whether or not the applicants crossed the threshold, the right
relied upon for a temporary interdict need not be shown by a balance of
probabilities, it is enough if it is prima facie established though open to some
doubt.
The proper approach is to take the facts set out by the applicants together
with any facts set out by the respondents, which the applicants cannot
dispute, and to consider whether having regard to the inh erent probabilities
the applicants should, not could, on those facts obtain final relief at the trial.’8

[28] The applicants’ alleged right to the preservation of assets rests on two key
assertions. The first is that, in terms of the deceased’s last known wil l, he
bequeathed his entire estate to the trustees of a testamentary trust to be created in
terms thereof. To that effect, he appointed the first, second, and third applicants as
beneficiaries and nominated the first applicant, the fourth respondent, and a third
party (Mr Xolani Mgudlandlu) as the trustees. Whereas the respondents expressed
scepticism about the contents of the will and indicated their intention to challenge its
validity, they advanced no evidence to undermine the applicants’ claim to its
existence. They have not, moreover, brought any counter -application in that regard.
Absent anything to the contrary, the probabilities are that the document attached to

5 1948 (1) SA 1186 (W), 1189.
6 1955 (2) SA 682 (C), 688D–E.
7 1996 (3) SA 706 (C).
8 714D–F.

the founding papers is indeed the deceased’s will and must be interpreted and
implemented in accordance with the provisions thereof.

[29] The second assertion is that the deed of trust provided that the capital and
income beneficiaries of the trust included the deceased, the first applicant, the first
respondent, and the company. The respondents ad mitted the allegation. An
examination of the deed of trust supports this. From the definitions clause, the
beneficiaries of the trust are the following:

‘1.6 BENEFICIARY or BENEFICIARIES
refers to income or capital beneficiaries in so far as the reference to
beneficiary or beneficiaries relates to the capital of the trust and shall include
the following persons and trusts, namely:
1.6.1 CAPITAL BENEFICIARIES:
refers to the persons or institutions (including trusts) who, upon vesting of the
trust capital in terms of the discretionary powers of the trustees, shall become
entitled to the trust capital and who may be elected within the discretion of the
trustees from the following:
1.6.1.1 Gcinumzi Aubrey Mei [the deceased]; and/or
1.6.1.2 Phumelele Gcinumzi M ei [the first respondent] and his
lawful issue in perpetuity; and/or
1.6.1.3 Zinga Phakamisa Mei [the first applicant] and his lawful
issue in perpetuity; and/or
1.6.1.4 the lawful issue of Zinga Phakamisa Mei;9 and/or
1.6.1.5 any company, the shares of which (in whole or in part) are
held by any of the beneficiaries, as referred to above;
and/or
1.6.1.6 any company, the shares of which (in whole or in part) are
held by this trust; and/or
1.6.1.7 any company, the shares of which (in whole or in part) are
held by any company, whose ultimate shareholding (in

9 This provisions of clause 1.6.1.4 seem to be tautologous when compared with the preceding clause.

whole or in part) are held by any of the beneficiaries, as
referred to above, including this trust . . .’

[30] The definitions clause proceeds, thereafter, to describe the income
beneficiaries who a re entitled to benefit from the income of the trust, subject to the
discretionary powers of the trustees. They are identical to the listed capital
beneficiaries. From the definition, the company is clearly a beneficiary of the trust,
irrespective of whethe r the deceased or the trust was its sole shareholder. The
implications of this are that the deceased’s estate, the first applicant, the first
respondent, and the company each have an interest as a beneficiary in the rental
income derived from properties owned by the trust.

[31] The same can be said regarding the rental income derived from properties
owned by the company. There is no real difference, for immediate purposes,
between a situation where either the deceased or the trust was the sole shareholder.
In the case of the former, as pleaded in the founding papers, the first, second, and
third applicants have an interest based on the provisions of the deceased’s will. In
the case of the latter, as became evident from the replying papers (which remain
undisputed), the first applicant has a direct interest based on the deed of trust while
the second and third applicants have an indirect interest based on the deceased’s
having been a listed beneficiary. The possibility of an outstanding loan owed by the
company to the deceased, as reflected in the replying papers, serves merely to
underscore the applicants’ interest in the preservation of the company’s properties
and the protection of the corresponding rental income.

[32] Regarding the rental income derived from prope rties where there is joint
ownership, the applicants have, admittedly, failed to clarify the nature of their
interest. They have not pleaded whether Phaki left a will, appointing them as heirs to

interest. They have not pleaded whether Phaki left a will, appointing them as heirs to
the properties in question; they have not pleaded whether th eir late father died
intestate, leaving his share in the properties to his surviving spouse, i.e. the fourth
applicant. At best, the first applicant alleged on their behalf that:

‘After my father passed away, the deceased demanded the use and
possession of these properties. He took possession of Phaki’s properties from

my mother [the fourth applicant]. I was very young at the time. In the past 20
years since my father’s passing, my mother, my siblings, and I have been
deprived of ay income which had been ge nerated by these properties, which
we were entitled to.’

[33] In response, the first respondent asserted that:

‘The contents of this paragraph are denied. The applicants were never
deprived of maintenance. The first to third applicants attended top private
schools in Grahamstown and vehicles were purchased for the fourth
applicant, all from rental proceeds.’10

[34] The applicants did not refute this in reply and merely protested that theirs was
not a maintenance claim. Whereas they failed to establish the nature of any interest
in the properties described, it is common cause that the deceased enjoyed
possession and control of the properties and that the applicants benefited from the
rental income generated. In the circumstances, it cannot be said that they have no
right to the continued administration and management of the properties.

[35] The respondents argued that the applicants incorrectly conflated three
classes of assets. That is not entirely so. The applicants recognised three distinct
sets of assets: properties owned by the trust; properties owned by the company, and
properties in relation to which there is joint ownership. They are not, for purposes of
an interlocutory interdict, required to demonstrate a clear right to the relief sought. All
that is required is that they prove a prima facie right to the preservation of the
properties as well as the rental income derived therefrom. This they have done.

[36] Regarding the motor vehicle, the respondents acknowledged that this
belonged to the deceased. They said that the third respondent had used it with the
deceased’s permission prior to his passing; it was currently at ‘the deceased’s and
our homestead’ in Hamburg. The applicants, as the appointed beneficiaries to the

10 Emphasis added.

testamentary trust described in the deceased’s will, have a prima facie right to the
preservation of the motor vehicle.

Apprehension of irreparable harm

[37] The test for the satisfaction of the above requirement was set out in Nestor
and Others v Minister of Police and Others,11 where Berker JP held:

‘A reasonable apprehension of injury has been held to be one which a
reasonable man might entertain on being faced with certain facts . . . . The
applicant for an interdict is not required to establish that, on a balance of
probabilities flowing from the undisputed facts, injury will follow: he has only to
show that it is reasonable to apprehend that injury will result . . . . However,
the test for apprehension is an objective one . . . . This means that, on the
basis of the facts pre sented to him, the judge must decide whether there is
any basis for the entertainment of a reasonable apprehension by the
applicant.’12

[38] The erstwhile Appellate Division, per Hefer JA, cited the test with approval in
Minister of Law and Order v Nordien.13 The principle survives.14

[39] The applicants contended that the respondents’ unsupervised possession of
and control over estate assets presents a threat to the value of the estate. To that
effect, they alleged that the first respondent collects rental income without the
necessary authority, there is no record of such income having been deposited into an
estate account or the company account or that it is otherwise preserved, and the
third respondent has possession of the deceased’s motor vehicle. Interestingly , the
respondents merely denied the allegations and reiterated that the first respondent
has a responsibility to administer the assets of the trust. The first applicant, they
pointed out, had never requested the first respondent to account for rental incom e

11 1984 (4) SA 230 (SWA).
12 244.
13 1987 (2) 894 (AD) 896G–I.
14 See, for example, National Council of Societies for the Prevention of Cruelt y to Animals v

14 See, for example, National Council of Societies for the Prevention of Cruelt y to Animals v
Openshaw 2008 (5) SA 339 (SCA), 347D–E.

collected and had never invoked the relevant provisions of the deed of trust to check
the exercise of the first respondent’s powers as trustee or even terminate his
appointment.

[40] The respondents’ argument can only be described as cynical. Upon the
passing of the deceased, the first respondent, as sole trustee, assumed control over
the properties owned by both the trust and the company. From copies of the deed
searches attached to t he founding papers, admitted by the respondents, this
amounted to a total of 22 different properties scattered across the central region of
the Eastern Cape. The first respondent offered a bald denial to the allegation that
rental income was never deposite d into either the trust account or the company
account, without stipulating where it was held, how much was held, from where it
originated, or how it had been or was intended to be used. As sole trustee, the first
respondent enjoys extensive powers, as set out in the deed of trust. He cannot be
held personally liable for any loss suffered by the trust except in the case of fraud,
illegal conduct, or gross negligence. It is common cause that neither he nor the
remaining trustees opened a trust account, as re quired in terms of both the deed of
trust and section 10 (1) of the TPCA. Whereas the fourth applicant admitted that she
collected rental income from some of the properties, it was considerably less than
that collected by the first respondent.

[41] The cumulative impact of the above factors is to place the first respondent in a
position of unbridled control over trust and company properties alike, as well as the
rental income derived therefrom. This, as well as the absolute lack of transparency
about the exerc ise of his powers as trustee, his failure to have disclosed the actual
ownership of the company (as revealed in the extract from the share register), and
his stance regarding the deceased’s last will, demonstrate that the applicants’

his stance regarding the deceased’s last will, demonstrate that the applicants’
apprehension of irrepa rable harm to the value of the estate is, when viewed
objectively, entirely reasonable. It is of little consolation, moreover, for the first
respondent to suggest that any loss would be recoverable because he enjoys joint
ownership, with the late Phaki, of five immovable properties. These can hardly be
construed as liquid assets.

[42] In relation to the motor vehicle, the applicants have presented little, if any,
evidence that its continued possession by the third respondent will result in damage
or a decrease in value. They never refuted her allegation that the deceased had
permitted her the use thereof before his passing. There is nothing to suggest that it
cannot remain at the family homestead in Hamburg.

Balance of convenience

[43] In Eriksen Motors (Welkom) L td v Protea Motors, Warrenton ,15 Holmes JA
addressed the determination of the balance of convenience. He stated that it
required a court to weigh the prejudice to the applicant, if the interdict was withheld,
against the prejudice to the respondent to the respondent if it was granted. 16 Van
Loggerenberg observes that:

‘Usually this will resolve itself into a consideration of the prospects of success
in the main action and the balance of convenience — the stronger the
prospects of success, the less need for the balance of convenience to favour
the applicant; the weaker the prospects of success, the greater the need for
the balance of convenience to favour him.’17

[44] The respondents have rejected the applicants’ claim to an interest in the
estate assets based on the deceased’s last will. They have not, however, presented
any evidence to undermine such claim or brought any counter -application to have
the will declared i nvalid. It is common cause, moreover, that the applicants have an
interest in the trust assets because of the provisions of the deed of trust. As
demonstrated earlier, they must, by implication, also have an interest in the company
assets. Applying the principles set out in Webster and Gool, and summarised in Spur
Steak Ranches ,18 it cannot be said that the respondents have set up any facts in
contradiction to the above such that serious doubt has been thrown on the

15 1973 (3) SA 685 (A).
16 691F–G.
17 D E van Loggerenberg Erasmus: Superior Court Practice (Jutastat e -publications, RS 26, 2025)
D6–30A–31.

D6–30A–31.
18 Spur Steak Ranches, n 7 above.

applicants’ case. Their prospects of succ ess regarding final relief are, if not
overwhelmingly strong, then certainly far from weak.

[45] The relief sought by the applicants, moreover, creates little inconvenience for
the respondents. They seek merely the protection and preservation of estate assets,
pending the appointment of an executor. This does not prevent the first respondent
from continuing to exercise his powers and perform his functions as trustee. The
assets can still be used on a day -to-day basis; the collection of rental income can
continue. Whereas payment is to be made into the company account, this was, on a
balance of probabilities, the account into which rental income was previously paid
before the deceased’s passing. The keeping of a proper record of the condition and
whereabouts of assets, as well as a record of the rental income collected, cannot, in
any way, be construed as an inconvenience. As a trustee, the first respondent has an
elementary duty to do so.

No other satisfactory remedy

[46] The above requirement, as Van Loggerenberg n otes, is closely linked to that
of irreparable harm. If the envisaged injury will be irreparable if allowed to continue,
then an interdict will be the only remedy. 19 During argument, the respondents
contended that several alternatives presented themselves. The applicants could,
inter alia, report the alleged maladministration to the fifth respondent, seek the
removal of the first respondent in terms of section 20 of the TPCA, invoke the
relevant provisions of the Companies Act 71 of 2008, or institute action proceedings.

[47] This ignores, however, the imminent risk posed by allowing the first
respondent to continue, unchecked. A formidable set of powers is available to him as
the sole trustee in possession or control of 22 different properties, with little to no
personal exposure, and in circumstances where he has refused to act transparently,

personal exposure, and in circumstances where he has refused to act transparently,
failed to disclose the true ownership of the company, and rejected the validity of the
deceased’s last will. To expect the applicants to embark upon the costly and time -
consuming alternatives suggested is unreasonable at best, derisive at worst.

19 Van Loggerenberg, n 16 above, D6–31–2.

Relief and order

[48] The respondents argued that the applicants impermissibly shifted their attack
to the first respondent’s mismanagement of trust assets and infringement of the
TPCA, resulting in the abandonment of their initial focus on their right to the
protection and preservation of the assets. This is not, however, supported by the
papers. The applicants have consistently framed their approach as an application for
an interlocutory interdict that was directed primarily at the first respondent’s conduct
in relation to the assets, especially the rental income derived from the properties
already mentioned. They have satisfied the requirements for urgency and interim
relief.

[49] From the evidence presented, the relief sought in terms of paragraph 2.1 of
the notice of motion must be extended to the rental income derived from properties
owned or controlled by the trust, the company, and the deceased himself at the time
of his passing. Reg arding where the funds must be deposited, as envisaged under
paragraph 2.2, there may well be a basis upon which to insist that the first
respondent pays the income derived from properties belonging to the trust into a
trust account, as required by the leg islation in question. That is not, however, what
the applicants sought. For the purposes of interim relief, it suffices that the funds be
paid into the company account, as was the situation previously. No information was
supplied about the motor vehicles indicated in terms of paragraph 2.3, other than the
vehicle kept in Hamburg. The order must be tailored accordingly.

[50] In terms of paragraph 2.4 of the notice of motion, the applicants sought an
order to the effect that the respondents only be permitted to u se those assets that
were reasonably required for the day -to-day operation of the deceased’s business.
They did not indicate which business, notwithstanding the first applicant’s allegation
in the founding papers that the company, not the deceased, operate d the rental

in the founding papers that the company, not the deceased, operate d the rental
property business. Similarly, the applicants failed to specify what assets were
intended, whether immovable or movable property or both. There is insufficient detail
to grant the relief in question.

[51] Regarding the contents of paragraph 2.5, the applicants stipulated payment of
the income into a company account held at Standard Bank, rather than ABSA Bank.
The discrepancy was not explained. There seems to be no reason why the account
should not be the same as that indicated under paragraph 2.2. The remainder of the
relief sought in terms of paragraph 2.5 pertains to responsibilities more appropriately
carried out by the executor, rather than the first respondent. It is not unreasonable,
however, to require the first respondent to maintain record s and make these
available to the applicants in relation to the rental income collected, as contemplated
under paragraph 2.6.

[52] No evidence has been presented to justify the granting of an order against the
second or third respondents. Their conduct, as described in the papers, does not
give rise to a reasonable apprehension of irreparable harm in relation to the assets.

[53] The appl icants did not seek costs at this stage of the proceedings. The
general rule applies, however, regarding the second and third respondents. They are
entitled to the recovery of their expenses incurred to date.

[54] Consequently, the following order is made:

1. The forms and service provided for in the rules are dispensed with and the
matter is disposed of as one of urgency.

2. A rule nisi is hereby issued, calling upon the first respondent to show
cause, if any, on Tuesday, 21 October 2025, at 09h30 or as soon
thereafter as counsel may be heard, why an order in the following terms
should not be made final:

(a) that, pending the appointment of an executor for the estate of the
late Mr Aubrey Gcinumzi Mei (the deceased):

(i) the first respondent and any agent or pe rson instructed on his
behalf, be interdicted and restrained from destroying,
dissipating, or diminishing, in any manner, the assets of the

deceased, including (but not limited to) the rental income
derived from the properties under the ownership (either i n
whole or in part) or control of the Aubrey Mei Family Trust
(registration number I […](E)), AG Mei (Pty) Ltd (registration
number 1982/090070/07), and the deceased himself, at the
time of the latter’s passing;
(ii) the first respondent be ordered to c ollect the rental income
described in sub -paragraph (i) and to deposit the funds into
account number 9 […], held by the above company at ABSA
Bank, branch number 63200500;

(iii) the status quo regarding both the immovable and movable
property of the deceased, including (but not limited to) the
rental income described in sub -paragraph (i) and the motor
vehicle kept at the family homestead in Hamburg, be protected
and preserved;

(iv) the first respondent be ordered to maintain proper records of
the rental i ncome described in sub -paragraph (i) and to make
these available to the applicants upon reasonable request; and

(b) that the first respondent be ordered to pay the costs of the
application.

3. It is hereby ordered that paragraph 2 (a) shall have immediate effec t,
pending the return date indicated.

4. The applicants are directed to pay the costs of the second and third
respondents, as incurred to date, on a party - and - party scale.


_________________________
JGA LAING
JUDGE OF THE HIGH COURT

APPEARANCE

For the applicants: Adv Mafu
Instructed by: Mihlali Labase Inc.
14 Steward Road
Berea
EAST LONDON
Tel no. 043 001 6126
c/o Kawondera Alex Attorneys
1 Glanville Street
MAKHANDA
6139
Email: attorney@kaatorneys.co.za
Tel: 046 307 0046

For the 1st, 2nd and 3rd respondents: Adv Mvinjelwa
Instructed by: Boqwana Burns Inc
84 – 6th Avenue
Newton Park
GQEBERHA
Ref: Ms M Masipa/aa
Emal: mmbale@boqwanaburns.com
Aneesa@boqwanaburns.com
c/o NN Dullabh & Co.
5 Bertram Street
MAKHANDA
Ref: Mr Dullabh

Date heard: 11 July 2025.
Date delivered: 26 August 2025.