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
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case No: 3944/2024
In the application to intervene by:
ATLANTIC OIL (PTY) LTD INTERVENING PARTY
(Registration Number: 2001/018421/07
In re:
In the matter of:
A[...] C[...]2 APPLICANT
(Identity Number: 8[…])
In re:
J[...] J[...] M[...] C[...]
(Identity Number: 0[…])
F[...] S[...] M[...] C[...]
(Identity Number: 1[…])
A[...] C[...]
(Identity Number: 1[…])
Coram: Petersen ADJP
Date enrolled: 18 September 2025
Further Oral submissions delivered: 20 and 24 October 2025
Judgment deemed reserved: 24 October 2025
Delivered: This judgment was handed down electronically by circ ulation to the
parties' representatives via email. The date and time for hand -down of the judgment
is deemed to be 14h00 on 19 January 2026.
Summary: Practice — Applications — Intervention — Application for leave to
intervene in terms of Rule 12 — Direct and substantial interest — Judgment
creditor’s right to execute against property of a Trust prejudicially affected by an ex
parte order obtained by the Trust’s representative.
Practice — Urgent Applications — Ex parte orders — Duty of disclosure — Uberrima
fides (utmost good faith) — Applicant failing to disclose extensive litigation history
and existence of a final judgment and writ of execution — Failure to disclose material
facts justifying the discharge of the order.
Practice — Reconsideration of urgent order — Uniform Rule 6(12)(c) — Court’s
power to reconsider an order granted in the absence of an aggrieved party — Nature
of the hearing is de novo.
Constitutional Law — Rights of children — Section 28(2) of the Constitution — Best
interests of the child — Children as beneficiaries of a Family Trust — Whether the
interests of children can be used to stay execution of a valid debt where the debt
was properly incurred by the Trust — Interests of children not serving as an absolute
shield against creditors where alternative remedies against trustees exist.
ORDER
1. The points in limine raised by the Applicant ( C[...]2) in the application to
intervene, save for the striking out of the paragraphs relevant to the curatrix ad litem
in the founding affidavit, are dismissed.
2. Leave is granted to the Intervening Party (Atlantic Oil (Pty) Ltd) to intervene in
the application under case number 3944/2024 as a respondent.
3. The points in limine raised by the Intervening Party (Atlantic Oil (Pty) Ltd) in
the curator application are upheld.
4. The order granted on an ex parte basis on 01 August 2024 is hereby
reconsidered and set aside in its entirety.
5. The stay of execution against the immovable property of the Anja Family Trust
is lifted.
6. The costs of this application, i ncluding the costs of the intervention and the
reconsideration, are to be paid by the Applicant, A[...] C[...]2, on the scale as
between attorney and client.
JUDGMENT
Petersen ADJP
Introduction
[1] On 01 August 2024, the applicant (‘ C[...]2’), on an urgent ex parte basis
obtained an order (per Makoti AJ) in terms of Rule 6(12) of the Uniform Rules of
Court.
[2] The relief sought and granted on 01 August 2024, culminated in the
appointment of a curatrix ad litem Adv Sunette Lötter for three minor children, J[...]
J[...] M[...] C[...], F [...] S[...] M[...] C[...], and A [...] C[...], beneficiaries of the Anja
Family Trust (‘the Trust’). Adv Lötter was instructed to investigate whether the
children require protection following a legal action instituted by Atlantic Oil Inland
(Pty) Ltd (‘Atlantic Oil’) under case number 596/2020 in this Division. The
investigation by Adv Lötter was to cover the current status of the main legal action
and any existing judgments; the potential financial and legal implications for the
children; whether the children should join the action, defend it, or seek to rescind a
default judgment granted on 23 June 2023; the actions of the Trust’s attorneys (TF
Kruger Inc) and the potential liability or conflicts of interest involving current or
previous trustees; and potential settlements that would serve the children's best
interests.
[3] Adv Lötter in terms of the order of court was required to submit a report to the
court within thirty (30) days. She was further authori zed to obtain documentation
from the applicant ( C[...]2), TF Kruger Inc, and other relevant parties. The order
extended her powers beyond reporting by allowing her to represent the children in
the main action and appoint legal counsel and attorneys on their behalf.
[4] The order further provided for the stay of execution of the warrant in favour of
Atlantic Oil under case number 596/2020, until Part B of the application in casu was
finalised. The order was also to be served on the Master of the High Court (Pretoria)
who was ordered to comment on the validity of Letters of Authority issued on 21
June 2012. A copy of the order was to be delivered to Atlantic Oil) Ltd via their
attorneys, Lezanne Swanepoel Attorneys. Costs of the application in Part A were
reserved pending finalisation of Part B of the application.
[5] Atlantic Oil seeks to intervene in the application, following the order as
aforesaid. On 14 October 2024, it launched the intervention application, which is
opposed by C[...]2, seeking leave t o intervene in the application under case number
3944/2024 as a respondent; that the order granted on an ex parte basis on 01
August 2024 be reconsidered; and that the application be dismissed. In the
alternative, it seeks an order that any order granted a gainst Atlantic Oil be dismissed.
And finally, that the costs of this application including the costs in the main
application be paid by attorney H Lamprecht de bonis propriis, alternatively by C[...]2
on an attorney and client scale.
[6] The application could not be argued on 18 September 2025, as a result of my
[6] The application could not be argued on 18 September 2025, as a result of my
caseload. A proposal was put forward to counsel that the application be considered
on the papers, with an opportunity to file further arguments, predicated on oral
submissions counsel would have made, if the matter were argued in open court on
the day. The proposal was agreed to, with further oral submissions received, on 20
and 24 October 2025 respectively.
Background
[7] The matter has a protracted history, at least relevant to Atlantic Oil and C[...]2
(formerly C[...]). It is therefore opportune to sketch this litigious history to appreciate
the present application by Atlantic Oil and the order obtained on an ex parte basis by
C[...]2. Notably C[...]2 skirts the history of t he litigation involving Atlantic Oil, herself
in her personal capacity and as a trustee of the Trust. Acting on legal advice as she
asserts, she dismisses the litigation history as being irrelevant to the relief sought
and granted ex parte on 01 August 202 4. For reasons adumbrated below, C[...]2’s
approach cannot be countenanced.
[8] The chronology sketched by Atlantic Oil provides a succinct overview of the
history of the litigation. The original trustees of the Trust, Mr Vorster and the late
husband of C[...]2, Mr C[...], served as trustees until June 2012. Mr C[...] and C[...]2
then served as trustees until the death of Mr C[...] on 01 May 2020. Mr C[...] and
C[...]2, on 20 July 2012, in their capacity as trustees of the Trust signed an
acknowledgment of debt, in terms of which the Trust bound itself as principal debtor
and guaranteed to pay Atlantic Oil R1, 200 000.00.
[9] On 24 July 2012, Mr C[...] and C[...]2 in their personal capacity executed a
suretyship agreement in terms of which they bound them selves jointly and severally
as surety and co-principal debtor in solidum with the Trust in favour of Atlantic Oil.
[10] On 25 July 2012, Rich Rewards 440 (Pty) Ltd (‘Rich Rewards’), applied for a
credit facility from Atlantic Oil. The deed of suretyship was incorporated in the
application for the credit facility. C[...]2 executed a suretyship agreement with Atlantic
Oil binding herself as surety and co -principal debtor in solidum with Rich Rewards in
favour of Atlantic Oil. On 13 August 2012, pursuant to and in execution of the terms
favour of Atlantic Oil. On 13 August 2012, pursuant to and in execution of the terms
of the guarantee, the Registrar of Deeds Pretoria registered a bond under number:
B[...] over the immoveable property of the Trust in favour of Atlantic Oil. C[...]2 was
instrumental in all these actions. On 12 November 20 19, Rich Rewards
acknowledged its indebtedness in writing and made an offer to pay its debt.
[11] On 10 March 2020, Atlantic Oil issued combined summons. The defendants
were required to serve and file their notice of intention to defend by 01 April 2020.
On 14 May 2020, Atlantic Oil delivered a notice of bar on the defendants to deliver
their plea. The defendants, rather than delivering their plea, delivered a notice of
exception to the particulars of claim of Atlantic Oil, on 27 May 2020. Atlantic Oil
consequently delivered a Rule 30 notice since the service and filing of the exception
constituted an irregular step, as the defendants were under bar.
[12] The defendants retorted and on 23 June 2020, launched an application for
upliftment of bar (‘the first application’). Atlantic Oil noted its intention to oppose the
first application on 30 June 2020; and on 17 July 2020, filed its answering affidavit
and counter application to the first application. On 28 July 2020, the first and second
defendants delive red a notice of withdrawal of the notice of exception to the
particulars of claim of Atlantic Oil.
[13] The defendants relentlessly pursued the first application by delivering a notice
of set down on 28 September 2021, for the opposed roll of 21 January 2 022.
However, on 12 January 2022, a notice of withdrawal of the first application was
delivered; followed on 14 January 2022 with a notice of removal of the first
application.
[14] In the ordinary course of the litigation process, Atlantic Oil delivered a n
application for default judgment on 24 January 2022, which was subsequently set
down for the adjudication on 17 February 2022. On 10 February 2022, a mere seven
days before the date set for the adjudication of the default judgment application,
C[...]2 and the second defendant delivered a new application for upliftment of bar
(‘the second application’) and had it set down on the unopposed roll of 22 February
(‘the second application’) and had it set down on the unopposed roll of 22 February
2022. Atlantic Oil opposed the second application by delivering its notice of
opposition on 17 February 2022 and duly delivered its opposing papers, to which the
defendants replicated. The second application was set down on the opposed roll of
25 November 2022.
[15] The second application was heard by Reddy AJ (as he then was), who on 09
June 2023, dis missed the second application with costs. The second application as
dismissed on a point in limine that C[...]2 did not have the requisite locus standi to
institute the application. The judgment, constituting a final order, precluding the
defendants from further participation in the litigation, was not appealed.
[16] On 20 June 2023, Atlantic Oil delivered an application for default judgment.
On 13 July 2023, default judgment was granted in favour of Atlantic Oil under case
number 596/2020, with a writ of execution against immovable property consequently
issued on 30 July 2023. Atlantic Oil proceeded with steps to execute on its order,
during which period C[...]2 unsuccessfully sought to engage Atlantic Oil on staying
execution.
[17] It must follow axioma tically that when C[...]2 realised that Atlantic Oil would
not engage her further on the matter, that she approached this court on a ex parte
basis on 01 August 2024, securing the order under hand of Makoti AJ. Following the
order of 01 August 2024, the Ma ster of the High Court appointed J[…] C[…] C[...]2
and Lize Daly as additional trustees on 07August 2024. A month later, on 12
September 2024, Andreas Petrus Du Preez was appointed as an additional trustee
following the removal of C[...]2. On eve n date, the curatrix ad litem delivered her
report; and on 31 October 2024 delivered a further report followed by subsequent
reports.
Points in limine raised by C[...]2
[18] C[...]2 assails the relief sought by Atlantic Oil mainly through points in limine,
including (1) lack of locus standi of Atlantic Oil; (2) an application to strike out in
terms of Rule 6(15) on the basis of alleged scandalous, vexatious and irrelevant
matter in the founding affidavit; (3) the failure to properly reference annexures; and
(4) non-joinder of the curatrix ad litem.
The first point in limine: lack of locus standi of Atlantic Oil
The submissions of C[...]2
[19] C[...]2 contends that Atlantic Oil was provided a safeguard in paragraph 9.1 of
Part A of the order of 01 August 2024, to return to court for reconsideration of the
Part A order, which avenue she contends remains open. She further posits that Rule
6(12)(c) of the Uniform Rules whi ch provides for reconsideration of the order creates
a narrow, procedural remedy by permitting a party against whom an order was
granted in its absence to set the matter down for reconsideration; and does not
confer standing to intervene in separate proceedings.
[20] C[...]2 further maintains that the subject matter of the curatorship application
is not the enforcement of the judgment in favour of Atlantic Oil, but the protection of
the minor children as beneficiaries of the Trust through the appointment o f a curatrix
ad litem. Thus, contends C[...]2, relying on United Watch & Diamond Co (Pty) Ltd v
Disa Hotels Ltd 1, that Atlantic Oil has no direct and substantial interest in the
curatorship application.
[21] C[...]2 further asserts that the rights of Atla ntic Oil as judgment creditor in
case number 596/2020 remain intact and enforceable in that action. The only
temporary limitation in Part A is the stay of execution, which is designed to preserve
the investigative mandate of the curatrix ad litem . C[...]2 thus concludes that the
proper mechanism for addressing the stay of execution was a Rule 6(12)(c)
reconsideration, and not an application for intervention. She posits that allowing
intervention conflates two distinct remedies. A Rule 6(12)(c) reconsiderati on, which
is a procedural safeguard for affected parties; and intervention under Rule 12, which
requires a direct and substantial interest in the subject matter of the application.
[22] C[...]2 therefore seeks an order dismissing the application on this point in
limine, as being misconceived, overbroad, and abusive.
The submissions of Atlantic Oil
limine, as being misconceived, overbroad, and abusive.
The submissions of Atlantic Oil
1 United Watch & Diamond Co (Pty) Ltd v Disa Hotels Ltd 1972 (4) SA 409 (C).
[23] Atlantic Oil counters that the contention by C[...]2 that it does not need to be
granted leave to intervene is misplaced. Atlantic Oil maintains that Rule 6(12)(c)
provides a procedural mechanism for a party affected by an ex parte order to
approach t he court for reconsideration of such order, but that such an application
does not in itself confer locus standi. It argues that an applicant must first establish a
direct and substantial interest in the subject matter and must be recognised as a
party to the proceedings before it can invoke Rule 6(12)(c). Failing intervention being
granted, the affected party remains a legal stranger to the proceedings and cannot
rely on Rule 6(12)(c) to participate meaningfully.
[24] Atlantic Oil differs with C[...]2 that Rule 6(12)(c) offers sufficient procedural
protection to it. The contention by C[...]2 it charges, is both contradictory and legally
unsustainable, since the argument simultaneously concedes that the intervening
party is affected and may seek reconsider ation, yet denies the intervening party
standing to intervene and oppose the appointment or conduct of the curatrix ad litem.
[25] With reference to United Watch and Diamond Company (Pty) Ltd supra ,
Atlantic Oil points out that Corbett J highlighted the fact that the test of a direct and
substantial interest in the subject -matter of the action is the decisive criterion in
applications for intervention. Atlantic Oil further relies on SA Riding for the Disabled
Association v Regional Land Claims Commissione r2 where the Constitutional Court
held that:
‘[10] If the applicant shows that it has some right which is affected by the
order issued, permission to intervene must be granted. For it is a basic
principle of our law that no order should be granted against a party without
affording such party a pre -decision hearing. This is so fundamental that an
order is generally taken to be binding only on parties to the litigation.
order is generally taken to be binding only on parties to the litigation.
[11] Once the applicant for intervention shows a direct and substantial interest
in the subject matter of the case, the court ought to grant leave to intervene.”
2 SA Riding for the Disabled Association v Regional Land Claims Commissioner 2017(5) SA 1 (CC) at
paras 10 and 11.
[26] Atlantic Oil opposes the position taken by C[...]2 regarding its right to
intervene in the legal proceedings involving the Trust and minor children. Atlantic Oil
asserts it has a “direct and substantial interest” in the matter, satisfying the legal test
for intervention. This interest is based on the fact that there is an existing judgment in
its favour against C[...]2 and the Trust; with a writ of execution against the property of
C[...]2; and that the ex parte order has stayed execution of that judgment.
[27] Atlantic Oil argues that Rule 6(12)(c) does not provide sufficient protection
and that the current proceedings violate the audi alteram partem principle. Further its
rights under a valid court order have been suspended without giving them an
opportunity to be heard. This has resulted in ongoing prejudice si nce Atlantic Oil,
without intervention, cannot challenge the grounds of the stay or protect its vested
financial interests. Atlantic Oil further submits that C[...]2 failed to provide the court
with a full factual matrix, depriving the court of a proper assessment of the case.
The best interest of the minor children under the lack of locus standi point in
limine
[28] C[...]2 argues that Atlantic Oil has no locus standi to bring these proceedings,
as the sole purpose of the curatorship application is to f ocus on the best interest of
the children, and does not concern Atlantic Oil or affect the rights of Atlantic Oil in the
main action.
[29] While acknowledging that a child’s best interests are of paramount importance
under s 28(2) of the Constitution of t he Republic of South Africa, 1996, Atlantic Oil
argues this right is not absolute. Citing, S v M 3 it argues that child interests do not
automatically override all other legitimate third-party interests:
‘[11] The wide formulation of section 28(2) is ostensibly so all -embracing that
the interests of the child would override all other legitimate interests of parents,
the interests of the child would override all other legitimate interests of parents,
siblings, and third parties… That clearly could not have been intended. In my
view, this provision is intended as a general guideline and not a rule of law of
3 S v M 2008 (3) SA 232 (CC) at para 11.
horizontal application. That is left to the positive law and any amendments it
may undergo.’ (emphasis added)
[30] The fact that the best interests of the child are paramount argues Atlan tic Oil
does not mean that they are absolute. Like all rights in the Bill of Rights, the
operation of the right must consider its relationship to other rights, which might
require that the ambit of the right be limited.
[31] When contextualising the factual matrix of the present matter, Atlantic Oil
highlights that the children are beneficiaries of a Trust, and the Trust deed
contractually determines their rights. If a trustee commits a breach of trust when the y
act outside their powers provided in the Trust deed; fail to act in the best interest of
the beneficiaries; mismanage, misuse or misappropriate trust assets; and fail to
comply with their fiduciary duties envisaged in the Trust Property Control Act 57 of
1988; and the beneficiaries are able a breach of the aforesaid, the remedy available
to the beneficiaries is to institute an action against the trustees or apply for the
trustees to be removed. Atlantic Oil notes that the curatrix ad litem does not address
this in her report.
[32] Resultantly, if the trustees have failed in their duties, the appropriate remedy
is to sue the trustees or seek their removal, rather than disrupting the lawful
judgment in favour of Atlantic Oil.
[33] Atlantic Oil therefore asserts that it does have locus standi even on this score.
Finding on locus standi of Atlantic Oil
[34] When broken down to the basic legal principles adumbrated in the authorities
referred to by C[...]2 and Atlantic Oil, C[...]2’s contention that Atlanti c Oil lacks locus
standi because it could simply use Rule 6(12)(c) is legally circular. Rule 6(12)(c) is a
procedural tool for reconsideration, but to participate in the broader litigation that
directly affects its rights, a party must be formally joined; or seek intervention.
[35] The procedural mechanism for reconsideration cannot trump the fact that
Atlantic Oil has to demonstrate that it has a direct and substantial interest in the
subject matter of the present application. C[...]2 essentially argues against herself in
this regard by contending that Atlantic Oil has no direct and substantial interest in the
appointment of the curatrix ad litem. Atlantic Oil holds a final judgment and a writ of
execution that were stayed by the ex parte order. This cons titutes a direct and
substantial interest in the subject matter, as the order interferes with its vested legal
rights.
[36] The best interests of the minor children relied on by C[...]2 is not an
immutable right to prevent Atlantic Oil having a vested int erest in the application.
When properly contextualised, the minor children as beneficiaries of the Trust have
alternative remedies to pursue against the trustees rather than seek through C[...]2,
who asserts acting in their interest, to circumvent a final order in favour of Atlantic Oil.
[37] The point in limine on lack of locus standi on the part of Atlantic Oil
accordingly stands to be dismissed.
The second and third points in limine: the application to strike out alleged
scandalous, vexatious and irrel evant evidence in terms of Rule 6(15); and the
failure to properly reference annexures
The submissions of C[...]2
[38] C[...]2 seeks to strike out paragraphs 19, 21-28, 65, 66, 68, 80-81, 84, 88, and
130 of the founding affidavit. C[...]2 argues that paragraphs 19 -23 impugn her
character (e.g., that it she “economical with the truth”) and are irrelevant to her
intervention. Paragraphs 24-28, 65, and 68 relate to the liquidation of Rich Rewards
and is irrelevant to the curatorship application and burdens the record. Paragraphs
80-84, 88, and 130 criticize the court-appointed curatrix ad litem. C[...]2 argues these
are scandalous and vexatious attacks on an officer of the court without factual basis.
are scandalous and vexatious attacks on an officer of the court without factual basis.
[39] C[...]2 argues that these paragraphs prejudice the proceedings by attacking
character rather than addressing the legal intervention. She further posits that, save
for a bare reference to the company search and a prior affidavit in other litigation, the
founding affidavit fails to indicate which portions are relied upon or how they are
relevant to the intervention application.
[40] Citing, Transnet Ltd v Rubenstein 4, r elevant to motion proceedings, C[...]2
argues that the case to be met must appear from the affidavits themselves, rather
than being left for the Court or the opponent to infer from the annexures. She further
relies on the dictum in Genesis Medical Aid Sche me v Registrar, Medical Schemes
citing Minister of Land Affairs and Agriculture v D &F Wevell Trust 5, where it was
stated:
‘It is not proper for a party in motion proceedings to base an argument on
passages in documents which have been annexed to the pape rs when the
conclusions sought to be drawn from such passages have not been
canvassed in the affidavits . … A party cannot be expected to trawl through
lengthy annexures to speculate on their possible relevance. Trial by ambush
cannot be permitted.’
[41] Ultimately, with reliance on trite principles emerging from case law, to bolster
the case for striking out, C[...]2 cites Helen Suzman Foundation v President of the
Republic of South Africa 6, where the Constitutional Court defined the core concepts
of Rule 6(15). Scandalous allegations were defined as being those that may be
abusive or defamatory; vexatious allegations as those worded with an intention to
harass or anno y; and irrelevant allegations as those that do not contribute to the
decision of the matter.
The submissions of Atlantic Oil
[42] Atlantic Oil argues the point taken by C[...]2 is ill -conceived and that the
impugned paragraphs are substantive responses t o the curator’s report and the
4 Transnet Ltd v Rubenstein 2006 (1) SA 591 (SCA) at para 28.
5 Genesis Medical Aid Scheme v Registrar, Medical Schemes 2017 (6) SA 1 (CC) citing Minister of
Land Affairs and Agriculture v D &F Wevell Trust 2008 (2) SA 184 (SCA ). TJ v TA (GJ) Case
Land Affairs and Agriculture v D &F Wevell Trust 2008 (2) SA 184 (SCA ). TJ v TA (GJ) Case
2019/22224 (31 March 2021); Kalisa v Chairperson, Refugee Appeal Board 2020 (4) SA 256 (WCC).
6 Helen Suzman Foundation v President of the Republic of South Africa 2015 (2) SA 1 (CC). Jones v
John Barr & Co (Pty) Ltd 1967 (3) SA 292 (W); Gordhan v Public Protector [2021] 1 ALL SA 428 (GP)
application itself. Rule 6(1) of the Uniform Rules of Court it posits requires that any
application must be brought on notice of motion, supported by an affidavit setting out
the facts upon which the applicant relies. This do es not preclude annexures from
forming part of the affidavit record, provided the affidavit identifies the portions of the
annexures that are material to the case.
[43] On the contention by C[...]2 that Atlantic Oil is abusing the process of court by
burdening it with voluminous annexures, Atlantic Oil counters that our courts have
consistently held that an abuse of process entails conduct that is oppressive,
vexatious, or amounts to manipulation of procedure.7
[44] In a nutshell, Atlantic Oil argues that the founding affidavit with all the
annexures serves as an answering affidavit to the curator application and that the
targeted paragraphs are contextually relevant to the reports of the curatrix ad litem
and the history of the matter. As to the criticism of C[...]2’s litigation conduct and the
curatrix ad litem , Atlantic Oil maintains that this is directly linked to its locus standi
and the relief sought. As to the allegations regarding t he trustees’ conduct and
omissions, it is argued that it is relevant to determining if the curator application was
competent and bona fide, particularly regarding ex parte disclosures.
[45] Atlantic Oil emphasizes that relevance is the primary test, argui ng that even
critical facts are permitted if they relate to the issues. It places reliance on three
seminal cases. In Vaats v Law Society of Namibia 8 where the point was made that
the test for striking out is relevance, and that if material is relevant to an issue, it
must not be struck out, even if it is prejudicial, accusatory, or strongly worded. In S v
Suliman and Baxter v Minister of Justice 9, the principle that even if material is
scandalous or vexatious, it will not be struck out unless it is also ir relevant, was
highlighted.
highlighted.
[46] Atlantic Oil argues that the caution extended by our courts against overly
technical objections to form and annexures that detract from adjudication on the
7 Beinash and Another v Ernst & Young and Others 1999 (2) SA 116 (CC) at para 17.
8 Vaats v Law Society of Namibia 1991 (3) SA 563 (NmHC).
9 S v Suliman 1969 (2) SA 385 (A) and Baxter v Minister of Justice 1962 (3) SA 457 (C).
merits should not be countenanced, where there is no prejudice to t he opposing
party and where the substantive issues remain clear.10
[47] Atlantic Oil ultimately argues that C[...]2 has failed to demonstrate that the
annexures are irrelevant or that they prejudice her ability to meet the case. Most of
the annexures are documents authore d by or addressed to the very parties before
the Cout; and the prejudice argument is artificial and unsustainable. It seeks
dismissal of the objection and the adjudication of the application on its merits.
Finding on the alleged failure to properly refere nce annexures; and
scandalous, vexatious and irrelevant evidence
[48] The high watermark of C[...]2’s arguments under this rubric is alleged
impropriety on the part of Atlantic Oil which is prejudicial to the fair adjudication of
the matter. On the contrary, the case for Atlantic Oil hinges on basic tenet of the law
of evidence, predicated on relevance. While the language used by Atlantic Oil is
indeed robust, the test for striking out matter is whether it is both offensive and
irrelevant. In this instance, the allegations concerning the applicant’s litigation history
and the report of the curatrix ad litem are relevant to determining whether the ex
parte relief was obtained through a full and honest disclosure of facts.
[49] On the authorities cited by Atlantic Oil, it makes a stronger technical argument
than C[...]2, primarily because the legal threshold for striking out is extremely high.
C[...]2 was required to prove that the matter she seeks to strike out is irrelevan t, not
just that it is offensive. The relevance principle which has served the purpose in our
courts through the ages, as evidenced in Vaats and S v Suliman , establishes a
protective hierarchy for affidavit content. The basic rule evolved from these
authorities is that even if material is “scandalous or vexatious” it cannot be struck out
unless it is also irrelevant.
unless it is also irrelevant.
[50] The implication of the aforesaid authorities is that C[...]2 effectively has to win
two arguments: she must prove the content is offens ive and that it has absolutely no
10 Transvaal Racing Club v Jockey Club of South Africa 1958 (3) SA 599 (W) at 604G-H.
bearing on the case. Atlantic Oil only needs to win one: that the content is relevant.
The weakness in C[...]2’s argument is her attempt to narrow the scope of the affidavit
to a “narrow intervention question”. She argues that historical liquidation issues and
curatrix criticisms do not decide whether Atlantic Oil has a “direct and substantial
interest” in intervening.
[51] Atlantic Oil have framed the founding affidavit in the intervention application
affidavit as a “comp osite response” that simultaneously serves as an answering
affidavit to the main curator application. I accept this pragmatic approach by Atlantic
Oil to be correct, particularly when regard is had to the bona fides of the initial ex
parte order. Resultant ly, the history of the Trust and the conduct of the curatrix
become substantively relevant. Under Vaats, a party is entitled to allege all facts
relevant to the relief claimed, even if unflattering.
[52] The only possible exception in the present matter, leaving the conduct of
C[...]2 aside, is the attack on the curatrix ad litem in paras 80 -84, 88, 130. The
sentiments expressed in Gordhan, where terms like “corrupt, rogue and incompetent”
were struck out, resonate with this Court. Courts are generally pro tective of their
officers. If this court finds the attacks on the curatrix are “unfounded” and lack factual
basis, they may be struck out regardless of the broader relevance argument because
they would constitute abuse rather than argument.
[53] Atlantic Oil argues that the criticism levelled against the curatrix ad litem relate
to “competence”. However, if the language mirrors the “abusive” nature described in
Helen Suzman Foundation without hard evidence, the Vaats defence might fail to
assist Atlantic Oil in relation to these specific paragraphs.
[54] The answer on this score is by no means an easy one. The allegations
levelled against the curatrix ad litem might at first blush appear to be merely critical,
levelled against the curatrix ad litem might at first blush appear to be merely critical,
but upon a careful reading, borders on being abusive. On the authority of Gordhan,
paragraphs 80-84, 88 and 130 stand to be struck out.
[55] The objection by C[...]2 in respect of the remainder of the paragraphs
complained about stands to be dismissed.
The fourth point in limine: non-joinder of the curatrix ad litem
The submissions of C[...]2
[56] C[...]2 argues that the failure to join the curatrix ad litem is a fatal defect that
should result in the dismissal of the intervention application. The core of this
argument is that the curatrix was appointed on 01 August 2024 to represent the
minor children who are beneficiaries of the Trust. She has produced three reports
(the latest on 31 July 2025) detailing trust non -compliance, potential
maladministration, and recommendations for the rescission of the default judgment.
[57] C[...]2 consequently argues that the curatrix ad litem is a party with a direct
and substantial interest in the subject matter, who had to be joined; that the curatrix
is the officer through whom the minors participate; excl uding her effectively excludes
the children, violating the audi alteram partem principle; and that relief sought by
Atlantic Oil would undermine the curatrix’s reports and curtail her mandate. On this
ground alone, C[...]2 submits the intervention application should be dismissed.
The submissions of Atlantic Oil
[58] Atlantic Oil contends that the point in limine is misplaced and should be
dismissed. Its argument is that the curatrix was appointed solely for “Part A” of the
court order and is not a party to the main action or the intervention application. She
lacks locus standi regarding the legal rights of the judgment and writs of execution.
[59] C[...]2 argues that Atlantic Oil attempts to elevate the investigative and
settlement efforts of the curatrix ad litem, as documented in her reports, into a legal
interest justifying joinder which conflates fact -finding or advocacy roles with legal
standing. Citing, Ex Parte Campher11, Atlantic Oil submits that the authority confirms
that the authority of a curator ad litem is limited solely to the scope of the court order;
and that it is not that of a litigant or party. Further, that Ex Parte Campher and Ex
and that it is not that of a litigant or party. Further, that Ex Parte Campher and Ex
11 Ex Parte Campher 1951 (3) SA 248 (C).
Parte Glendale Sugar Millers (Pty) Ltd 12 makes it plain that the role of a curator is to
investigate and inform the court, not to act as a litigant or substitute party.
[60] Atlantic Oil points out that C[...]2 in any event, admitted in her answering
affidavit, that the actions of the curatrix are irrelevant to the intervention application,
which focuses on the enforcement of judgments. It posits that this point in limine
should be dismissed.
Finding on the non-joinder of the curatrix ad litem
[61] On the authorities cited by Atlantic Oil; and considering t he very nature of the
appointment of the curatrix ad litem, relevant to Part A of the order, it is clear that the
terms of the order of 01 August 2024 placed the curatrix ad litem appointed by the
Court, in an investigative role to represent the interests of minors. She is not a
litigant with a personal interest in the lis. Her role is to investigate and report, not to
be a necessary party to every application that might affect her mandate. The failure
to join her in my view is not a fatal defect.
[62] The point in limine on non-joinder of the curatrix ad litem accordingly stands to
be dismissed.
Conclusion on the application for leave to intervene by Atlantic OIL
[63] By way of summary and having considered the papers filed of record and the
arguments of counsel, the points in limine raised by C[...]2, save for finding in
respect of the striking out of the paragraphs relevant to the curatrix ad litem , are
dismissed. I am satisfied that Atlantic Oil has made a case for leave to be granted to
intervene in t he application as a respondent and is Atlantic Oil is accordingly joined
as respondent.
[64] I now turn to the curator application of 01 August 2024.
12 Ex Parte Glendale Sugar Millers (Pty) Ltd 1973 (2) SA 653 (N).
The points in limine raised by Atlantic Oil in respect of the curator application
of 01 August 2024
[65] Atlantic Oil, in turn, raises points in limine predicated on (1) non-joinder of the
intervening party; (2) res judicata; and (3) that the appointment of the trustees stands
until set aside and ostensible authority.
The first point in limine: non-joinder of the intervening party
[66] Atlantic Oil deals with its argument on this point extensively under the issues
of locus standi raised as a point in limine by C[...]2. It merits no further attention in
light of this Court’s finding in joining Atlantic Oil as respondent in the application.
The second point in limine: res judicata
The submissions of Atlantic Oil
[67] Atlantic Oil posits that this Court is functus officio in respect of the judgment
against the Trust and C[...]2.13 It contends that th e beneficiaries of the Trust are
faced with a multitude of unassailable problems.
[68] These include, inter alia , lacking locus standi to act on behalf of the Trust,
which includes the curatrix ad litem . They have no locus standi as beneficiaries to
bring an application for rescission since the judgment was not given in the absence
of the Trust which was a party to the main action. That as a general rule, a person
who was not a party to the o riginal proceedings, has no standing to ask the court to
rescind or vary an order, and that this court has already granted a judgment and writ
of execution against the Trust, rendering this court functus officio to reconsider the
order.
13 Firestone SA (Pty) Ltd v Gentruco AG 1977 (4) SA 298 (A).
[69] Atlantic Oil further submits that only an affected party can rely on Rule 42 to
rescind a judgment and does not extend to third parties. The only party vested with
locus standi relevant to Rule 42 is the Trust.
[70] The judgment granted on 23 June 2023 finally resolve d the rights and
obligations of the parties in the main action. C[...]2, who was a party to that action
both in her capacity as a trustee and co -principal debtor, through the curator
application now seeks indirectly to challenge the judgment, framed as pro tective of
the best interests of the children who are beneficiaries of the Trust. This submits
Atlantic Oil necessarily calls into question the legitimacy and consequences of the
main judgment.
[71] The curatrix ad litem, who acts as an officer of the cou rt, has been instructed
to investigate the impact of the judgment on the beneficiaries of the trust. This
includes considering rescission or alternative settlements. Such a mandate
impermissibly assumes the authority of a review body, which neither the cur ator nor
the applicant possesses. A curatrix ad litem may not reopen litigation that has been
finally decided, nor act as a vehicle for impermissible collateral review.
[72] Atlantic Oil concludes that the curator application is an impermissible
collateral attack on a final judgment under the guise of a protective mechanism. It
seeks, either directly or indirectly, to revisit issues that have been adjudicated, and
for which the appropriate remedy would have been an appeal against the order
dismissing the application to uplift the bar by Reddy AJ (as he then was).
The submissions by C[...]2
[73] C[...]2 contends that the plea of res judicata cannot be sustained. The
curatorship application she posits is sui generis and protective, making it distinct
from the enforcement proceedings in the main action under case number 596/2020.
Further, that there was no identity of cause or relief between the two matters, and
Further, that there was no identity of cause or relief between the two matters, and
the minors’ interests were never ventilated in the prior proceedings.
Finding on the res judicata point
[74] The core of this point in limine rests on whether the curator application seeks
to relitigate the same “thing” ( res) already decided. For res judicata to apply, the
previous proceedings must have involved the same parties, the same cause of
action, and the same relief.
[75] I agree with Atlantic Oil that the “ultimate object” o f C[...]2’s current move is to
set aside the consequences of the judgment of Reddy AJ (as he then was). Even if
framed as a “procedural appointment”, the real issue remains the enforcement of the
default judgment granted in favour of Atlantic Oil conjuncti vely with the June 2023
judgment.
[76] It is common cause that the Trust was a party to the main action; therefore,
the judgment was not given in its absence.
[77] The curatrix ad litem is an officer of the court. Her mandate cannot exceed the
law. As a rgued by Atlantic Oil, a curator cannot be used as a vehicle for
“impermissible collateral review” of a final order. To allow a third party to reopen a
final judgment under the guise of “investigating impacts” would undermine the finality
of litigation.
[78] I conclude that the curator application is inherently linked to the judgment
granted in the main action. The issues C[...]2 seeks to raise are matters that have
already been adjudicated. Consequently, this Court remains functus officio.
[79] I would dismiss the curator application on this point alone. However, out of an
abundance of caution, I traverse the remainder of the points in limine raised by
Atlantic Oil.
The third point in limine: the appointment of trustees stands until set aside
and ostensible authority
[80] The law regarding the appointment of trustees is trite and non -contentious.
C[...]2 as Atlantic Oil argues has not sought the setting aside of the appointment of
the erstwhile trustees who were responsible for the conduct in the main ac tion.
Consequently, the trustees’ authority remains intact and their conduct, including the
conclusion of the credit facility with Atlantic Oil on behalf of the trust, was legally
permissible.
[81] It cannot be gainsaid that the legal consequences of the trustees’ conduct, in
binding the trust in their capacity as duly authorised representatives, cannot be
undone through collateral argument in an application brought ostensibly for the
protection of the beneficiaries. To permit otherwise would circumvent p rinciples
established of administrative and trust law and invite legal uncertainty.
[82] As Atlantic Oil posits, in the absence of any formal challenge to the trustees’
authority, the agreements concluded with the intervening party must be recognised
as valid and enforceable.
The Beningfield Exception
[83] The parties in their additional heads of argument, in the main focus on what
has come to be known as the Beningfield Exception. This principle of law was first
articulated by the Privy Council in the 1886 case of Beningfield v Baxter . The
exception is formulated as follows:
‘When an executor cannot sue, because his own acts or conduct, with
reference to the testator’s estate, are impeached, relief, which (as against a
stranger) could be sought by the executor alone, may be obtained at the suit
of a party beneficially interested in the proper performance of his duty.’
[84] According to Honorés South African Law of Trusts:
‘The rationale for the rule is the impossibility of the delinquent trustee being
both plaintiff and defendant.’
[85] Atlantic Oi l argues that what the Beningfield Exception does not allow is
where a judgment has already been granted, to allow the beneficiaries, a right to
institute a derivative action or representative action against the third party on the
same trust cause. It posi ts that the Trust opposed the main action and the
Beningfield Exception is confined to the impossibility of a delinquent trustee suing
himself.
[86] It further argues that the relief C[...]2 intends to obtain via the backdoor is
representative relief as t he relief flows from the Trust; and the Beningfield Exception
is not a backdoor to a do -over of a case already decided. Atlantic Oil maintains that
to do so would open Pandora’s box and create uncertainty in the commercial sphere
when contracting with trus ts, as it would entail (on the proposition of C[...]2), that
minor children or for that fact, any beneficiaries may at any time launch proceedings
to nullify judgments where the matter has already been decided based on the
ostensible infringement of the beneficiaries’ rights.
[87] Atlantic posits that the litmus test is that C[...]2 had to prove that she was the
wrongdoer or that the trust had no office bearer. This is what she failed to do. It was
never her case that she was a wrongdoer. At best, C[...]2 contended that the Trust
may have been incapable of concluding an agreement with the intervening party, as
one of the trustees was not an accountant as required by the trust deed. This does
not avail her, as the Master duly appointed the two trustees, ther e can and is
accordingly no question that the trust had office bearers.
[88] It further argues that the Trust defended the action brought by Atlantic Oil; and
the beneficiaries cannot relitigate the matter on behalf of the Trust, where the Trust
already t ook part in the litigation. A further problem for C[...]2 or the Trust or the
beneficiaries of the Trust (of which C[...]2 is part) is that on 07 August 2024, there
were three trustees appointed by the Master, one of whom was an accountant.
During September 2024, the applicant was removed as a trustee. On the improbable
During September 2024, the applicant was removed as a trustee. On the improbable
construction that the Trust could not have acted (which it did), then the Trust could
have acted from August 2024 onwards. The impediment, if any, thus fell away from
07 August 2024.
[89] Atlantic Oil highlights that C[...]2, as the mother of the minor children, who
brought this application, was a trustee of the Trust until September 2024 and
remains a beneficiary; this the exception was never intended to benefit an ostensible
errant trustee.
[90] C[...]2’s argument on the Beningfield Exception is essentially grounded on the
same argument posited on s28 of the Constitution, in that the intervention of the
minor children, via the curatrix ad litem, is grounded in the Court’s inherent protective
jurisdiction and the paramountcy of the child’s best interests. C[...]2 argues that the
Beningfield Exception is not a rigid procedural hurdle confined to pre -litigation
scenarios. Insofar as the purpose of the curatorship is said to be protective: to
address the consequences flowing from the Trust’s alleged past delinquency namely,
operating in breach of its trust deed (fewer trustees than required, absence of a
mandatory professional trustee) and alleged conflicts of interest, C[...]2 argues that
the fact that the Trust opposed the action is immaterial, as the opposition occurred
during a period when the Trust was allegedly improperly constituted and
compromised, failing to adequately safeguard the minor beneficiaries’ interests.
[91] C[...]2 refutes mootness due to the appointment of new trustees, by asserting
that the curatrix ad litem’s role is precisely to ensure that the minors’ rights were not
irrevocably compromised by that prior, potentially flawed, litigation process. The
appointment of new trustees during August and September 2024 she argues does
not apply where the prejudice (the final judgment) flows directly from the antecedent
alleged breaches of fiduciary duty; and the need for curatorial protection did not
dissipate merely because new trustees were appointed.
Finding on the Beningfield Exception
[92] The Beningfield Exception , allows beneficiaries to sue a third party when a
trustee cannot do so because their own conduct is impeached. To summarise the
core arguments by the parties. Atlantic Oil posits that the exception is inapplicable
core arguments by the parties. Atlantic Oil posits that the exception is inapplicable
because the Trust actually defended the original action; that the exception is not a
“backdoor” to relitigate a decided case; and that the impediment to the Trust acting
fell away on 07 August 2024, when new trustees (including an accountant) were
appointed. C[...]2 argues that the Trust's prior opposition was immaterial because the
Trust was “improperly constituted and compromised” at the time.
[93] The Beningfield Exception is confined to the impossibility of a delinquent
trustee suing themselves. In this matter, the Trust was a party to the main action and
actively participated. Furthermore, the appointment of three trustees by the Master
on 07 August 2024, one of whom is an accountant, addressed the alleged
constitutional defects of the Trust.
[94] In my view, th e attempt to use a curator application to revisit the
consequences of a final judgment, rather than appealing the original order of Reddy
AJ, constitutes an impermissible collateral attack. Legal certainty in commercial
dealings with trusts would be severe ly undermined if beneficiaries could nullify
judgments through procedural means after the matter has been adjudicated.
[95] The Beningfield Exception does not avail C[...]2.
Conclusion
[96] The application for the appointment of a curatrix ad litem on an ex parte basis,
should not have been granted. Atlantic Oil, having been allowed to intervene as a
respondent in the application, has successfully opposed the relief sought by C[...]2
on an ex parte basis. The application for the appointment of the curatrix as litem
accordingly stands to be dismissed.
Costs
[97] C[...]2 in my view has not litigated with ‘clean hands’. That she has in
acquiescing with her legal representatives engaged in legal gymnastics through
complex legal manoeuvres and str ategies, to avoid liability for the judgment granted
in the main action is beyond dispute. The issues this Court has had to engage in,
brought about by her actions is demonstrated in the length of the judgment itself,
which could not be skirted through a r edaction of the issues. An order as to costs of
a punitive scale in undoubtedly merited.
Order
[98] I accordingly make the following order:
1. The points in limine raised by the Applicant (C[...]2) in the application to
intervene, save for the striking out of the paragraphs relevant to the curatrix
ad litem in the founding affidavit, are dismissed.
2. Leave is granted to the Intervening Party (Atlantic Oil (Pty) Ltd) to
intervene in the application under case number 3944/2024 as a respondent.
3. The points in limine raised by the Intervening Party (Atlantic Oil (Pty)
Ltd) in the curator application are upheld.
4. The order granted on an ex parte basis on 01 August 2024 is hereby
reconsidered and set aside in its entirety.
5. The stay of execution against the immovable property of the Anja
Family Trust is lifted.
6. The costs of this application, including the costs of the intervention and
the reconsideration, are to be paid by the Applicant, A[...] C[...]2, on the scale
as between attorney and client.
A H PETERSEN
ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG
Appearances
For the intervening party: Adv JD Matthee
Instructed by: Lezanne Swanepoel Attorneys
c/o Maree & Maree Attorneys
Mahikeng
For the applicant: Adv JAH May
Instructed by: Huibré Lamprecht Attorneys
c/o CJP Oelofse Attorneys
Mahikeng