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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GQEBERHA
NOT REPORTABLE
Case No.: 440/2025
In the matter between:
R[...] M[...] M[...] Applicant
and
MASTER OF THE HIGH COURT, GQEBERHA First Respondent
B[...] M[...] M[...] Second
Respondent
In her capacity as Trustee of the
M[...] Family Trust, IT No. 6[...]
MONICA SAAYMAN Third Respondent
In her capacity as Trustee of the
M[...] Family Trust IT No. 6[...]
JUDGMENT
EKSTEEN J:
[1] This is an application (the review) to review and set aside the report of the first
respondent, the Master of the High Court, Gqeberha (the Master), filed in proceedings
before the Western Cape Division of the High Court (the high court).
Background
[2] The events givin g rise to the review are as follows. Mr M[...], the applicant, and
Mrs M[...], the second respondent, have at all material times been married to one
another, but are currently embroiled in divorce proceedings. They were also trustees in
the M[...] Family Trust, together with the third respondent. After the commencement of
the divorce proceedings relations between them soured, and the animosity spilled over
to the administration of the trust. When Mrs M[...] complained to the Master, they called
upon Mr M[...], as the accounting officer, to account to them in terms of s 16(1) of the
Trust Property Control Act, 37 of 1988, for certain income due to the trust. Mr M[...] did
not, at first, comply with the request. This did not assist to resolve the im passe between
Mr and Mrs M[...] and she, together with other parties, approached the high court
seeking the removal of the applicant as a trustee in terms of s 20 of the Trust Property
Control Act. At the initial hearing of the removal application, a rul e nisi was issued that
called upon Mr M[...] to show cause why the Master should not be ordered to remove
him as a trustee.
[3] Although the Master was cited as a respondent in the removal application, they
did not enter an appearance and they did not part icipate in the litigation. However, the
high court did direct that they file their report, presumably in terms of rule 6(9) (read with
rule 6(10)) of the rules of court on a stipulated date. This the Master did, and on the
return day the matter was fully argued and the high court ordered that Mr M[...] be
removed as a trustee.
[4] Mr M[...] was not content with the outcome of the litigation and he filed an
application in the high court for leave to appeal against the removal order, which is
currently pending. He also instituted the review in this court to review and set aside the
report delivered by the Master to the high court in the removal application. He
contended that the Master had been biased and had intentionally presented a
misleading report to the high court in which they had failed to disclose material
information known to them concerning the allegations that had been made to them in
respect of the dispute, and had ignored material information.
[5] The Master entered an appearance to defend the review, but they chose not to
file opposing affidavits. Instead, they delivered a notice in terms of rule 6(5)(d)(iii) of the
rules, declaring that they intend to raise only questions of law. Two questions were
raised in the notice, however, the first w as abandoned and it is not necessary to deal
with it. The second issue raised by the Master was that the report produced was not
reviewable as it was not a decision, but merely provided information for the benefit of
the court.
[6] I turn to the review. Neither the notice of motion nor the founding affidavit makes
mention of the Promotion of Administrative Act, 3 of 2000 (PAJA), but it is common
cause that a review of administrative action may only be brought in terms of PAJA. 1
The concept of administrative action is defined in s 1 of PAJA and a material portion
thereof records:
‘“administrative action” means any decision taken, or any failure to take a
decision, by-
1 Pharmaceutical Manufacturers Association of South Africa and Another: In re: Ex Parte The President
of the Republic of South Africa and Others 2000 (2) SA 674 (CC) at 692; Manong & Associates v Director
General: Department of Public Works and Others [2004] 1 All SA 673 (C) at 681; and Transnet Limited
and Others v Chirwa 2007 (2) SA 198 (SCA) at 207.
(a) an organ of state, when-
(i) exercising a power in terms of the Constitution or a provincial
constitution; or
(ii) exercising a public power or performing a public function in terms
of any legislation; …
which adversely affects the rights of any person and which has a direct,
external legal effect … .’
[7] A ‘decision’ in turn, is defined in PAJA to mean ‘any decision of an administrative
nature made, proposed to be made, or required to be made as the case may be, under
an empowering provision, including a decision relating to-
(a) making, suspending, revoking or refusing to make an order, award or
determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction,
approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, au thority or
other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing of an administrative nature,
and a reference to a failure to take a decision must be construed
accordingly.
[8] Thus, at the core of the definition of administrative action is the idea of a decision
of an ‘administrative nature’ taken by a public body or functionary.2
2 Grey’s Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others 2005 (6) SA 313
(SCA) at para 22.
[9] Accordingly, for conduct to be revie wable in terms of PAJA it must constitute a
‘decision’ which must be of an administrative nature affecting the rights of a person and
having an external legal effect.
[10] Mr Mphahlwa, on behalf of Mr M[...] has referred to authority that a decision
taken by the Master of the High Court is reviewable. The statement is not contentious,
but it must be a decision. Numerous statutes, including the Trust Property Control Act,
confer powers on the Master that he is entitled to exercise 3. On each occasion that th e
Master decides to invoke his powers under a statutory provision it involves a decision,
usually of an administrative nature, in terms of the empowering provisions. Mr
Mphahlwa contended that the Master had taken a decision to submit the report to the
high court in the exercise of powers conferred on him in terms of the Trust Property
Control Act. The Trust Property Control Act contains no such provision.
[11] In the present matter the Master has taken no decision. He was called upon to
report to the high court in respect of information which may assist the court in resolving
the dispute before it. It is not an unusual request and it seems to me, as I have said,
that it flows from the rules of court. The Master does not purport to have taken any
decision at all and the report is not of an administrative nature. It is neutral in its terms
and it disclosed Mr M[...]’s responses to various administrative enquiries posed to him.
The report contains no recommendations which may be harmful to Mr M[...]. Even if it
had contained such a recommendation it would not constitute administrative action.
The dispute was pending before the high court and the high court was called upon to
decide the issue. Mr M[...] had every procedural opportunity to p ut forward his case in
the high court so that the report of the Master had no external legal effect.4
3 The Trust Property Control Act authorises the Master:
3 The Trust Property Control Act authorises the Master:
(1) in terms of s 7 to appoint trustees;
(2) in terms of s 16 to call upon trustees to account to him in accordance with his requirements;
(3) in terms of s 20 to remove a trustee in certain circumstances.
4 Corpclo 2290 (CC) t/a U -Care and Another v Registrar of Banks [2013] 1 All SA 127 (SCA) at para 26;
and Greyvenstein and 2 Others v The South African Legal Practice Council and Another (unreported
judgment of Eastern Cape Division, Makhanda, case number 1193/2023 dated 22 April 2025 at para 31).
[12] Accordingly, I consider the report submitted by the Master to the high court did
not constitute a decision nor was it an act of an administrative nature . The Master did
not act in terms of an empowering provision in the Trust Property Control Act, but
submitted the report at the direction of the high court in terms of the rules of court.
Moreover, the report did not adversely affect Mr M[...]’s rights nor did it have a direct
external effect as the decision was pending before the high court and Mr M[...] had
every opportunity to place his case before the high court. Thus, the ‘report’ is not
reviewable and it is not necessary to consider the further arguments raised.
Costs
[13] Ms Morris, for the Master, urged me to make a costs order against Mr M[...],
because, so it is argued, the review was ill -conceived. Mr Mphahlwa argued that in the
event that I find against the applicant the principle laid down in Biowatch5 should find
application to the matter and that I should make no order for costs. In Biowatch the
Constitutional Court substantially adapted the established approach to cost orders for
constitutional litigation. It held that the general rule should be not to award costs
against an unsuccessful litigant when litigating against state parties in matters of
genuine constitutional import. In the present matter, while the application was ill -
conceived, the applicant sought to vindicate his perceived right to fair administrative
action as set out in the Constitution. I have found that the application was bad in law,
but I cannot find that it was mala fide or that the manner in which it was pursued was an
abuse of the process. Accordingly, I intend to make no order as to costs.
[14] In the result, the application is dismissed.
J W EKSTEEN
JUDGE OF THE HIGH COURT
5 Biowatch Trust v Registrar, Genetic Resources and Others 2009 (6) SA 232 (CC).
Appearances:
For Applicant: Mr Y Mphahlwa
Instructed by: Mphahlwa and Co Inc
c/o Rwexana Attorneys
GQEBERHA
For 1st Respondent: Adv K M Morris
Instructed by: State Attorney
GQEBERHA
Date Heard: 21 August 2025
Date Delivered: 26 August 2025