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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no: 4735/2024
In the matter between:
JOHANNES JURGENS BEZUIDENHOUT N.O
NICOLAAS JOHAN STEENKAMP N.O.
WILHELM ARNOLD STEENKAMP N.O
(cited in their capacities as trustees of the
ARNO STEENKAMP TRUST, I[...])
First Applicant
Second Applicant
Third Applicant
And
ENABLE CAPITAL ENTERPRISE (PTY) LTD
(Registration number: 2021/56840/07)
Respondent
IN RE (“The main application”)
ENABLE CAPITAL ENTERPRISE (PTY) LTD
And
Applicant
WILHELM ARNOLD STEENKAMP
WILHELM ARNOLD STEENKAMP N.O.
MELANIE WAIT N.O.
HERCULES VILJOEN HUGO N.O.
NICOLAAS JOHAN STEENKAMP N.O.
(in their capacities as trustees of the
ARNO STEENKAMP TRUST, I[...])
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Coram: JUSTICE J CLOETE
Heard: 14 August 2025, applicant’s supplementary note deli vered 19 August
2025
Delivered: 18 September 2025 (electronically / via email)
ORDER
1. The default judgment granted on 22 April 2024 in the main application under
the above case number against the second, third, fourth and fifth respondents
therein in their capacities as the trustees for the time being of the Arno
Steenkamp Trust, I[...] (the ‘Trust’) is rescinded and set aside;
2. The Trust is granted leave to oppose the main application;
3. The costs of the application for rescission, including any reserved costs orders
relating thereto, shall be costs in the cause of the main application; and
4. The costs incurred by the Trust in respect of the withdrawn counter -application
in the rescission application shall be paid by the applicant in the main
application (Enable Capital Enterprise (Pty) Ltd in business rescue) on party
and party scale B, and including the costs of senior and junior counsel where
so employed.
JUDGMENT
CLOETE J:
[1] The applicants are cited as the trustees of the Arno Steenkamp Trust (‘the
Trust’). They seek rescission of a default judgment granted inter al ia against the
Trust in favour of the respondent (‘Enable ’) on 22 April 2024. The rescission
application, which is opposed, is brought under the common law , and was issued by
the registrar on 20 August 2024. In turn, Enable also brought a counter -application
on 11 October 2024, seeking to have seven farms in the Karoo, registered in the
name of the Trust, declared to be the personal property of Mr Wilhelm Steenkamp
(‘Wilhelm’) as well as specially executable in its favour.
[2] However Wilhelm’s estate was provisionally sequestrated by order of this
court on 16 October 2024, which order was made final on 27 November 2024 , and
Enable failed to take any steps to join the trustees of Wilhelm’s insolvent estate
despite them having a direct and substantial interest in the outcome of the counter -
application. This resulted in Enable withdrawing the counter -application at the
hearing. Enable also tendered costs as a result of such withdrawal and left the scale
thereof for determination by the court , although it was submitted that scale A was
appropriate. Further, since the proceedings were launched Enable has been placed
in business rescue. At the commencement of argument, counsel for Enable handed
up the written consent of its business rescue practitioner, Mr Tumisang Kgaboesele,
to continue with the proceedings (now only its opposition to the rescission
application) in terms of s 133(1)(a) of the Companies Act1.
[3] The history of the litigation giving rise to the rescission application is as
follows. On 7 March 2024, Enable brought the main application against Wilhelm
personally as first respondent, and the Trust purportedly represented by Wilhelm, Ms
Melanie Wait, Mr Hercules Hugo and Mr Nicolaas Steenkamp in their capacities as
Melanie Wait, Mr Hercules Hugo and Mr Nicolaas Steenkamp in their capacities as
‘trustees’ as second to fifth respondents, for payment , jointly and severally, of
R20 882 272.61 plus interest and costs on the attorney and client scale. In the
founding affidavit its deponent, Mr Johannes Coet ser, one of Enable’s directors,
1 No 71 of 2008
alleged that the chos en domicilium citandi et executand i of both the Trust and
Wilhelm personally was 1[…] R[...] Street, Amandelrug, Malmesbury.
[4] The application was served by the sheriff at this address on 13 March 2024 .
The returns of service reflect that service was effected in the following manner: (a)
on Wilhelm, in both capacities ‘by affixing a copy thereof to the outer principal door
… the premises occupied by the respondent. Remarks: Nobody on the premises .
Affixed to door of dwelling garage /building as per attorney’ ; (b) on Ms Wait and Mr
Hugo in the same manner, but without any accompanying remark by the sheriff ; and
(c) on Mr Nicolaas Steenkamp in the same manner, but including the words ‘or
sliding a copy under the door’.
[5] The dies induciae expired on 28 March 2024, ie. after the elapse of 10 court
days, in terms of rule 6(5)(b)(iii) of the uniform rules of court, although the notice of
motion was defective in that it only afforded the respondents in the main application
5 court days in which to deliver notice of intention to oppose. However, nothing turns
on this for present purposes. On 12 April 2024 the matter was enrolled on the
unopposed motion court roll for hearing on 22 April 2024. A copy of the notice of set
down was emailed to ‘a[...]’ which, according to the candidate attorney who deposed
to the service affidavit, was the email address of Wilhelm. On 22 April 2024 the
Judge presiding in motion court granted the order in the terms sought , save that
costs were awarded on the party and party scale.
[6] On 23 July 2024 the sheriff attended at the Trust’s farms with a warrant of
execution against movable property to make an attachment pursuant to the default
judgment granted in Enable’s favour. He attached the Trust’s movable property to a
total value of R 3 234 500. According to the deponent to the Trust’s founding affidavit
in the rescission application , Mr Nicolaas Steenkamp (‘Nicolaas’), this was the first
in the rescission application , Mr Nicolaas Steenkamp (‘Nicolaas’), this was the first
occasion that the Trust became aware of the main application or that judgment had
been granted against it. The rescission application was launched within a reasonable
time thereafter, on 20 August 2024, and enrolled , again in the motion court, for
hearing on 19 September 2024. Given Enable’s opposition, it was postpon ed to the
semi-urgent roll for hearing and after two further postponements for reasons that are
not apparent, was allocated to me for hearing on 14 August 2025.
[7] The Trust seeks rescission on the basis that: (a) it did not receive notice of the
application as service took place at a n unauthorised address which was not its
chosen domicilium citandi et executandi and where none of the ‘trustees’ were
present; (b) the Trust did not authorise Wilhelm to conclude either of the two
agreements which Enable relied upon for its cause of action ; and (c) in the
circumstances the trustees did not act jointly, as requir ed by law, and cannot be
bound to those agreements. Enable opposes the rescission application on the
grounds that: (a) the Trust is estopped from denying that Wilhelm was not duly
authorised; and (b) the consent of Wilhelm’s co -trustees authorising him to conclude
the agreements was an act of the Trust’s internal management, which Enable was
entitled to assume had been duly and properly performed in terms of the Turquand
rule.
[8] The test for rescission at common law is trite , and w as succinctly restated in
the minority judgment of the Constitutional Court in Government of the Republic of
South Africa v Fick2 as follows:
‘[85] At common law the requirements for rescission of a default judgment are
twofold. First, the applicant must furnish a reasonable and satisfactory
explanation for its default . Second, it must show that on the merits it has a
bona fide defence which prim a facie carries some prospect of success . Proof
of these requirements is taken as showing that there is sufficient cause for an
order to be rescinded. A failure to meet one of them may result in a refusal to
rescind.’
[9] Before turning to deal with whether the Trust has met these requirements, it is
appropriate to briefly set out some undisputed background pertaining to the Trust. It
was established in 2009, with the donor being Wilhelm and the initial trustees being
Wilhelm, his father Nicolaas, and Mr Dabrie Saayman. On 8 March 2012, after Mr
Saayman resigned as trustee, Ms Wait (Wilhelm’s then wife) and Mr Hugo were
Saayman resigned as trustee, Ms Wait (Wilhelm’s then wife) and Mr Hugo were
appointed as additional trustees by the Master . On 22 March 2023, Mr Hugo
22013 (5) SA 325 (CC)
resigned as trustee , followed by Ms Wait on 24 January 2024 . In terms of clause
6.6.1 of the trust deed, a written notice of resignation ipso facto results in a trustee
ceasing to act as such. By the time Ms Wait resigned, the Trust had already applied
to the Master during July 2023 for the addition of Mr Johannes Bezuidenhout as
trustee. However, the Master only appointed him on 9 July 2024. The upshot of this
is that when Enable launched the main application on 7 March 2024 , neither Ms
Hugo nor Ms Wait were trustees in terms of the trust deed.
[10] The dispute between Enable and the Trust arises from the conclusion of two
agreements, namely a deed of settlement signed on 8 and 12 December 2023 ,
respectively and a deed of suretyship executed on 8 December 2023. Wilhelm was
previously the sole director and controlling mind of Route2Fruit (Pty) Ltd (‘the
Company’) which conducted business at the address at which the main application
was served. On 1 August 2022 the Company concluded a bridging finance
agreement with Enable, in terms of which the latter advanced large sums of money
to the Company on certain terms and conditions. In concluding the bridging finance
agreement t he Company was represented by Wilhelm who also bound himself
personally as surety and co -principal debtor. The Company fa iled to meet it s
payment obligations under the bridging finance agreement, and following
negotiations between these parties, the deed of settlement and suretyship were
concluded.
[11] In terms of the deed of settlement of 12 December 2023, the Company
acknowledged its liability in the sum claimed in the main application and in respect of
which Enable obtained default judgment. Wilhelm bound himself as first surety and
co-principal debtor. However, at the same time Wilhelm purported to bind the Trust
as second surety and co -principal debtor for the due discharge of the Company’s
obligations to Enable arising from the deed of settlement , both in the deed of
obligations to Enable arising from the deed of settlement , both in the deed of
settlement itself and in the separa te deed of suretyship. About a week later, on 18
December 2023, the Company commenced voluntary winding -up (at Wilhelm’s
instance) in terms of s 352(2) of the Companies Act 3 by lodging a special resolution
3 No 61 of 1973, read with item 9 of Schedule 5 to the Companies Act 71 of 2008
to that effect at the CIPC 4, with the result that its status was changed to voluntary
liquidation on 19 December 2023. It was for this reason that Enable proceeded
against the Trust and against Wilhelm in his personal capacity.
[12] As far as the first requirement for rescission of the default judgment is
concerned, the following. In the main application , Mr Coetser alleged that
‘notwithstanding various demands, the respondents failed/refused to effect payment’.
In the rescission application, Nicolaas made clear that to the extent this included a
reference to the Trust, he had received no such demand . This was not denied in
Enable’s answering affidavit and accordingly Nicolaas’ a llegation stands
uncontested. Also uncontested are the Trust’s allegations that, as a fact, the main
application did not come to its notice before default judgment was obtained , and that
the Company and Wilhelm vacated the premises in question during January 2024 .
That they were vacant when the sheriff ‘served’ the main application accords with the
relevant returns of service. Neither Nicolaas nor Ms Wait ever occupied those
premises either. There is also no suggestion that Wilhelm brought the notice of set
down emailed on 12 April 2024 to the attention of Nicolaas, his only co-trustee at the
time in terms of the trust deed.
[13] Enable’s only retort of substance on this score is that the address at which
service was effected is the same as that chosen as domicilium citandi et executandi
by the Trust ‘in clause 2.4 of the deed of settlement ’. It is noted that clause 3 of the
deed of suretyship contains the same prov ision. Enable does not assert that the
main application did, or should have , come to the notice of the Trust in any other
manner, save for the notice of set down having been sent only to Wilhelm’s email
address. There can be little doubt in these circumstances that the Trust has
established the first requirement, namely a reasonable and satisfactory explanation
established the first requirement, namely a reasonable and satisfactory explanation
for its default.
[14] Turning now to the second requirement. In the main application Mr Coetser
stated he was placed in possession of the letters of authority and trust deed in order
to draft the deed of settlement and suretyship. He annexed the letters of authority
4 Companies and Intellectual Property Commission
issued by the Master way back in 2012. Of course, Mr Coetser cannot be blamed for
assuming they were a reflection of the true position. As previously stated, Wilhelm
signed both the deed of settlement and suretyship on behalf of the Trust purportedly
on the basis that he was duly authorised to do so. What is significant for present
purposes is that the exchange of correspondence in the main application papers
demonstrates unequivocally that Enable required a resolution of the trustees (at the
time Wilhelm, Nicolaas and Ms Wait) as proof that Wilhelm was indeed authorised to
conclude these agreements prior to signature thereof by Enable . It is not necessary
to refer to all the correspondence but as late as 28 November 2023, Enable’s
attorney communicated to W erksmans attorneys that ‘we are all aware of the
stringent requirements where trusts are involved and our client requires strict
compliance thereof’.
[15] This continued right up until 12 December 2023 when the last signature was
placed on the deed of settlement Mr Coetser, still without the ‘properly signed ’
resolution. There is a related dispute about whether or not Werksmans attorneys
were representing only Wilhelm at the time or both Wilhelm and the Trust , and
whether to the extent that it purported to represent the Trust as well it was authorised
to do so . On 12 December 2 023, a Ms Haynes of Werksmans attorneys advised
Enable’s attorney that ‘we note the trust resolution was incorrectly signed . As such,
and in excess of caution, the trustees and client will be resigning all documents at
our offices between tomorrow and Thursday … our further email with full set of
resigned documentation will follow soon’. The promised resolution was , however,
not forthcoming and a few months later on 20 February 2024 , a Mr Bos hoff of
Werksmans advised Enable’s attorney that ‘as you are aware, Route2Fruit (Pty) Ltd
has been liquidated. The … Trust is not prepared to sign any form of security in
has been liquidated. The … Trust is not prepared to sign any form of security in
favour of the company in liquidation, and our instructions are to proceed to close our
file herein’.
[16] According to Nicolaas, he was no t aware that Wilhelm had purported to bind
the Trust in respect of either the deed of settlement or suretyship. The Trust’s
attorney, Mr Pieters, deposed to an affidavit confirming he had sent a draft affidavit
to Ms Wait’s attorney in which Ms Wait confirmed her position was the same, but she
declined to sign it. In a supporting affidavit filed by Wilhelm he confirmed that Ms
Wait was unaware at the time , and that when he subsequently told her he had done
so and requested her to sign a resolution authorising conclusion of the agreements
she refused. Also important for present purposes is that Enable admitted that in
terms of clause 6.10 of the trust deed , and save as provided to the contrary therein,
valid decisions can only be taken by agreement between a majority of trust ees.
There are no contrary provisions which appear to be relevant to the issue before me.
It is undisputed that both the deed of settlement and suretyship bear o nly Wilhelm’s
signature ‘ on behalf of’ the Trust. It is accordingly the Trust’s contention that
although Wilhelm held himself out to be authorised , as an objective fact he had no
such authority.
[17] The Trust also subsequently obtained a copy of the so -called incorrectly
signed resolution sent by email on 8 December 2023 by Ms Haynes to Wilhelm
along with the deed of settlement and suretyship . It was annexed to Nicolaas’
founding affidavit. It is clear that this resolution is in truth no resolution at all, but a
document signed only by Wilhelm , and providing space for Ms Wait and Mr
Saayman (who had long since resigned as trustee) to sign. Nicolaas’ name is not
mentioned at all. The Trust’s undisputed allegations are further that it had no interest
in the bridging finance provided by Enable to the Company, and that no general
Trust authorisation exists for Wilhelm to bind the Trust as surety for the debts of the
Company.
[18] In his affidavit Wilhelm confirmed that neither Nicolaas nor Ms Wait were
aware that he had signed the deed of settlement and sur etyship purporting to bind
the Trust in favour of Enable on 8 December 2023; the first Nicolaas knew thereof, or
of the default judgment , was when the sheriff arrived at the farms to execute the
warrant on 23 July 2024; and he had not discussed either agreement with them
before appending his signature . He also disclosed that at the time he and Ms Wait
before appending his signature . He also disclosed that at the time he and Ms Wait
were contemplating divorce, and they were subsequently divorced on 28 March
2024. The first time Ms Wait became aware of the agreements was when he
approached her a few days after signature and requested her to sign the resolution .
On 13 December 2023 they attended at Werkmans where a draft resolution was
presented to her by his former attorney , Mr Boshoff . Ms Wait stated she was not
prepared to sign it and subsequently resigned as trustee in January 2024. Wilhelm
accepted he represented to Enable that he was duly authorised to conclude the
agreements on behalf of the Trust but knowingly misrepresented this to be the true
position. According to him, he was ‘desperate and overwhelmed’ by the dire financial
position in which the Company found itself at the time although he still had some
hope, albeit slim, that it might be possible to rescue the Company and was trying to
buy himself time. In turn, time will tell whether or not he was being candid about this
slim hope, given the special resolution lodged with the CIPC a mere 10 days later.
[19] In the answering affidavit, Mr Coetser pointed out that Wilhelm admitted
having acted fraudulently in his dealings with Enable. He also alleged that Wilhelm
acted in the same manner in relation to the trust assets . He asserted that on the
other hand Enable at all times acted in a bona fide manner , and relied on the
fraudulent misr epresentation to its detriment, hence the opposition to rescission
based on estoppel. He also contended that when regard is had to clause 6.13 of the
trust deed Wilhelm in any event had actual authority to have the final say over any of
the Trust’s dealings . This clause is to the effect that any decision of the trustees
taken without Wilhelm’s approval is not binding on the Trust. But as I see it, and for
purposes only of the application before me, that does not translate into actual
authority in the sense that Wilhelm ca n take decisions unilaterally , but rather a veto
right since otherwise clause 6.10 would be rendered superfluous. Mr Coetser further
maintained that Wilhem also has ostensible authority to bind the Trust because he
created that impression in his dealings with Enable (it is unclear whether this is an
alternative ground of oppo sition). Finally, he contended that Wilhelm abused the
Trust form.
[20] The Trust’s counter to this is that: (a) on Enable’s own version, it was aware a
[20] The Trust’s counter to this is that: (a) on Enable’s own version, it was aware a
trust resolution was required for purposes of the deed of settlement and sure tyship,
which should put paid to the estoppel issue ; (b) at rescission stage the court does
not determine the merits of the Trust’s defence (which is correct) ; (c) a trust estate
cannot be bound by the conduct of a trustee or trustees which goes beyond the
provisions of the trust deed 5; (d) trustees must act jointly for the trust estate to be
bound thereby (although as I understand it , this applies in the absence of any
5 Land and Agricultural Development Bank of SA v Parker and Others 2005 (2) SA 77 (SCA) at para
10
contrary provision in the trust deed6); and (e) the Turquand rule does not arise, since
on its own version, Enable did not rely on any internal Trust management rule . It
was aware that a properly concluded trust resolution was required for purposes of
the deed of settlement and suretyship, even if the Turquand rule applies to trusts.7
[21] Having regard to the parties’ competing contentions taken together with the
affidavit evidence, the Trust has clearly also met the second requirement for
rescission, particularly given that Enable elected to sue for final relief on motion
rather than by way of action , and the Plascon -Evans rule thus applies. There is
however one further aspect to deal with. Regarding Wilhelm’s intentional
misrepresentation, Enable relied on Absa Bank Ltd v Moore and Another 8 and
Moraitis Investments (Pty) Ltd v Montic Dairy (Pty) Ltd and Others9. In Moore it was
held that:
‘[39] … Brusson cannot avoid being bound by relying on its own fraud to
invalidate the loan agreement. Still less can a third party - the Bank [which
had provided the funds to settle the loan] - disregard the loan agreement
because of Brusson’s fraud . The maxim is not a flame -thrower, withering all
within reach. Fraud unravels all directly within its compass, but only between
victim and perpetrator, at the instance of the victim. Whether fraud unravels a
contract depends on its victim, not the fraudster or third parties.’
[22] In Moraitis it was reiterated that an applicant seeking rescission of an order
cannot rely on the possible fraud of its representative which led to it being granted.10
On the strength of th ese decisions, counsel for Enable submitted that the Trust
cannot avoid liability under the deed of settlement and suretyship . However, I am of
6 Land and Agricultural Bank above at para 15; Nieuwoudt NO and Another v Vrystaat Mielies (Edms)
Bpk 2004 (3) SA 486 (SCA) at para 16
Bpk 2004 (3) SA 486 (SCA) at para 16
7 Although the Turquand rule was held applicable to trusts in MAN Truck & Bus (SA) Ltd v Victor en
Andere 2001 (2) SA 562 (NC) , the Supreme Court of Appeal in Nieuwoudt (see fn 6 above) declined
to confirm this to be correct, finding on the facts of the case before it that it was not required to do so (
at para 9) : ‘ In my view , however, whether or not the Turquand rule should be applied to trusts -
particularly business trusts - a matter on which I express no opinion- it cannot be applied on the
present case.’ The MAN decision has also been the subject of some academic criticism: see Cameron
et al Honore’s South African Law of Trusts 5ed at para 198 where it is stated that the ambit of
authority conferred by a trust deed is not a matter of ‘internal management’.
8 2017 (1) SA 255 (CC)
9 2017 (5) SA 508 (SCA)
10 At para [11]
the view that, for purposes of this application, whether or not the Trust falls within the
‘compass’ of the misrepresentation is currently far from clear . Moreover, in Moraitis
the court made the point that:
‘[17] …in regard to [the appellants’] contentions based on Mr Moriatis’ alleged
lack of authority to conclude the settlement agreement on behalf of Moraitis
Investments and the Moraitis Trust, another principle comes into play. This is
that the court can only grant a consent judgment if the parties to the litigation
consented to the court granting it. If they did not do so , but the court is misled
into thinking that they did , the judgment must be set aside. This is something
different from avoiding a contract on the grounds of fraud , duress,
misrepresentation, or the like. In those cases, the injured party has an election
to abide by the agreement . When one is concerned with an absence of
authority to conclude the agreement in the first place , that is not a matter of
avoiding the agr eement, but of advancing a contention that no agreement
came into existence.’
[23] As I see it, and only for purposes of the present application, this is the Trust’s
defence viewed from a different angle, namely , that it too was an injured party
insofar as Wilhelm’s misrepresentation is concerned . It thus does not seek to avoid
the agreement as the party which made the misrepr esentation but rather advances
the defence that the absence of Wilhelm’s authority to bin d the Trust means that no
agreements came into existence between Enable and the Trust. This too is a bona
fide defence which prima facie carries some prospect of success.
[24] In all the circumstances, the application for rescission of the default judgment
granted against the Trust must succeed. As far as costs are concerned, given the
history of the matter and the fact that Enable is presently in business rescue, it is
prudent not to mulct it with costs at this stage, but rather to order they be costs in the
prudent not to mulct it with costs at this stage, but rather to order they be costs in the
cause. In respect of the costs attendant upon the withdrawal of Enable’s counter -
application, scale B is appropriate.
[25] The following order is made:
5. The default judgment granted on 22 April 2024 in the main application
under the above case number against the second, third, fourth and f ifth
respondents therein in their capacities as the trustees for the time being
of the Arno Steenkamp Trust, I[...] (the ‘Trust’) is rescinded and set aside;
6. The Trust is granted leave to oppose the main application;
7. The costs of the application for rescission , including any reserved costs
orders relating thereto, shall be costs in the cause of the main
application; and
8. The costs incurred by the Trust in respect of the withdrawn counter-
application in the rescission application shall be paid by the applicant in
the main application (Enable Capital Enterprise (Pty ) Ltd in business
rescue) on party and party scale B, and including the costs of senior and
junior counsel where so employed.
_____________________________
J I CLOETE
Judge of the High Court
Appearances
For applicants: Adv Pieter van Eeden SC
Adv Joseph R Whitaker
Instructed by: TSP Inc – Jean Pieters
For respondent: Adv Xavier T Van Niekerk
Instructed by: Mills & Groenewald Inc – Barry Mills