Reportable: NO
Circulate to Judges: NO
Circulate to Magistrates: NO
Circu late ro Regional Magistrates: NO
IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION , MAHIKENG
In the matter between:
LESSY TRUST
MARIA MARGARET HARRIS
in her capacity as trustee of the
LESSYTRUST
and
FORUM SA TRADING 129
(PTY) LTD
JOHANNESGROBBELAAR
CASE NUMBER:M270 /23
FIRST APPLICANT
SECOND APPLICANT
FIRST R ESPONDENT
SECO ND RESPONDENT
JOHANNES GORBBELAAR in
his capacity as trustee of the J
GROBBELAAR TRUST
GESINA ADRIANA
WILHELMINA GROBBELAAR
in her capacity as trustee of the J
GROBBELAAR TRUST
WILFRED FREDERICK
VORBECK in his capacity as
trustee of the J GROBBELAAR
TRUST
REGISTRAR OF DEEDS
Coram: WESSELS AJ
Date of hearing
Court file reconstructed
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THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
SIXTH RESPONDENT
: 19 September 2025
:23 January 2026
Delivered: This judgment was handed down electronically by circulation to the parties' representatives via email. The date and time for hand-down of the judgment is deemed to be 16:00 on 23 January 2026.
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Summary: Trusts - Locus standi - Authority to institute proceedings -Income beneficiary purporting to act on behalf of trust without proper authorisation - Power of attorney not authorising institution of proceedings. Civil procedure - Non-jo inder - Current registered owner of immovable property not joined-Trustee in personal capacity, being a party to impugned addendum, not joined - Parties having direct and substant ial interest -Application fatally defective.
Contract - Sale of immovab le property - Addendum to sale agreement -Applicant seeking to set aside addendum while simultaneously seeking enforcement of original agreement - Allegation of fraud vague and unexplained - Inconsistent relief - Relief incompetent.
Application dismissed with costs.
ORDER
1. The applicat ion is dismissed with costs on a party and party Scale C.
JUDGMENT
WesselsAJ
Introduction
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[l] In this application , the applicants apply for an addendum to a written sale agree ment ('the sale agreement') for the sale of immovable propert ies to be set aside , and that the immovable propert ies, consisting of two farms, be transferred to the Lessy Trust (cited as the first app licant) in terms of the provisions of the sale agreement.
[2] The first to fifth respondents oppo sed the app lication, to whom I will refer collective ly as ' the respondents '.
[3] The separate citation of the Lessy Trust as the first applicant assumes it possesses a separate legal personality from that of its trustee, the second applicant. Trustees of a trust instin1te legal proceedings in their representati ve capacities. The citat ion of the Lessy Trust in its own name is procedurally improper, howeve r, given that the second applicant has been correc tly c ited in her capacity as trustee of the Lessy Trust, I will permit the citation of the first applicant as a procedural indulgence. For clarity, I will refer to the Lessy Tmst as 'the Trust' .
Facts
[4] The deponent to the founding affidav it is Martha Sophia du Toit ('Mrs du Toit'). The Trust had two immovable properties ('the farms ') registered in its name. As a result of what is described by Mrs. du Toit as 'financial difficulties' experienced by the second applicant and her now deceased husband, a sale agreement ("the sale agreeme nt') was concluded between the secon d applicant and the first respondent for the sale of the farms to the first respondent. A conseq uence of the sale agreement was that the farms would be consolidated, after which a 52-hectare portion would be subdivided and transferred back to the Trust.
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[5] Mrs du Toit states that, to appease the financiers of the first respondent, the applicant entered into an addendum to the sale agreement ('the addendum'). The addendum described the second respondent and h er late husband, who were parties to the addendum, as usufructuaries of the 52-hecta re portion. This addendum appears to create a s uspens ive cond ition regard ing the subdi vision of the 52-hectare portion, subject to subdivision approval. It further provided that if the subdiv ision did not occur within 5 years of the date of signature, the first respondent wou ld pay the Trust the market value of the farms, less R500,000, being the value of the 52-hectare portion .
[6] The farms were transferre d to the first respondent. According to t he founding affidavit, the 52-hectare portion was never re-transferred to the first applicant.
[7] It is common cause that the first respon dent later sold and transferred the farms to a private company, namely Sterkr ivier Boerdery (Pty) Ltd (' Sterkrivier'). The applicants erroneously refer to Sterkrivier as Sterkfontei n Boerdery CC.
[8] In the answering affidavit, the respondents take severa l points in limine, all of which I am enjoined to consider . I f [ uphold these points, it would be dispos itive of the application, and the merits need not be considered.
No locus standi
[9] Mrs du Toit is an income beneficiary of the first applicant. In the founding affidavit, she alleges that her status as an income beneficiary of the Trust gives her a s ubstant ial interest in the application, which provides her
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with the required locus standi. Mrs du Toit's author isation to institute the applica tion on behalf of the Trust does not emanate from the found ing affidavi t at all.
[10] The respondent s filed a notice under Rule 7, assailing the applicants' failure to act. The seco nd applicant understood the notice different ly and answered this n otice by filing a power of attor ney of the seco nd respondent, wherein the applicant 's attorneys of record are authori sed to act on behalf of the applicants . The true intention of the Rule 7 notice was not to dispute the authority of the app licants' attorneys , but rather to dispute the authorit y of Mrs du Toit to institute the application on behalf of the Trust.
[11] The procedure for establishing authority to institute legal proceed ings, in this context . involves a factual inquiry, a principle that was affirmed in Eskom v Soweto City Counci/ 1. In this judgment, which has been followed in numerous subsequent j udgments on the issue of a Rule 7 challenge, the court stated the following 2:
'However, even if the authority of Rossouw is to be assessed, respondent is on safe ground. In the absence of a prescribed mode of proof, it is a factual question whether a particular person holds a specific authority. It may be proved in the same way as any other fact. Adjudication involves consideration of what the credible evidence means and the extent of, quality of and sometimes the absence of contradict ion or other reason to remain unconvinced.'
(12] The respondents repeat ed their concer n raised in their Rule 7 notice in the answer ing affidavit. Although the application was issued on 18 May 2023, the seco nd app licant reacte d to the Rule 7 notice by producing a power of attorney dated 9 February 2024, executed by the seco nd applicant in her
1 Eskom v Soweto City Council 1992 (2) SA 703 (W) . 2 Idem at 706 C-E.
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capacity as the sole trustee of the first applicant. Mrs du Toit relies solely on the power of attorney to prove that she was authorise d to institute the app I ication.
[13] The challen ge of Mrs du Tait's authority to institute these proceedings on behalf of the Trust invokes the normal onus of proof, which the second applicant has to discharge on a balance of probab ilities. On any reading of the power of attorney, it does not authorise the institution of this app lication. The power of attorney confers genera l powers which authorise Mrs du Toit to do all lawfu l acts whic h the second respondent could do personally in her capacity as a trustee of the Trust. Conseque ntly, I conclude that Mrs. du Toit was not properly authori sed to institute this application.
Non-joinder
[ 14] The respondents also take the point of non-joind er. This object ion is two-fold in that it is taken on the non-joinder of Sterkriv ier as the current owners of the farms and the second applicant in her personal capac ity as a party to the addendum.
[15] The test for non-joinder had aptly been described by the Supreme Court of Appea l in Absa Bank Limited v Naude N. 0 and Others 3 as follows:
·The test whether there has been non-joinder is whether a party has a direct and substantial interest in the subject matter of the litigation \.Vhich may prejudice the party that has not been joined. [n Gordon v Department c?f Health, Kwazulu-Nutal it was held that if an order or judgment cannot be susta ined without necessarily prejudicing the interest of third parties that had not been joined. then those third parties have a legal interest.·
3 Absa Bank Limited v Naude N.O and Others (20264 /2014) [2015] ZASCA 97: 2016 (6) SA 540 (SCA) (1June2015) para 10.
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(16] The farms have been sold to Sterkrivier, which has become their registered owner. Sterkrivier has not been joined as a party to this application. It is an unassailable fact that Sterkrivier has a direct and substantia l interest in this matter, as the relief claimed (the transfer of the farms) directly affects Sterkrivier's rights.
[ 17] The other part of this point is that the founding affidav it states that the secon d app licant, in her personal capacity, was a party to the addendum that the applicants seek to set aside.
[18] The second applicant, in her personal capac ity (not only in her capacity as trustee of the Trust), has a direct and substant ial interest in the subject matter of the application and ought to have been joined as such. Consequently, this point is upheld.
Incompetent relief
[ 19] The following relief is claimed in the notice of motion:
'The Court make an order whereby the respondents are ordered to set aside an addendum which was concluded in terms of a written sale agreement of the properties situated at: ... '
1.1. ..
1.2 ...
2. That the respondents be ordered to comply with the provisions of the original sale agreement signed by the relevant parties, and in terms whereof the po11ion of the
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immovable property as described within the sale agreement be transferred to the applicants as agreed upon on conc lusion of the aforesaid agreement.·
[20] The respon dent s rely on the following statement contained m the founding affidavit, wherein Mrs du Toit states:
·I sub mit that the initial sale agreement for the immovable property from Lessy Trust to Forum SA 129 (Pty) Ltd was facilitated in a fraudulent manner. and it is therefore requested that the sale be set aside and that the Court make a declaratory order for the immovable property to be re-transferred back to the rightful owner being the Lessy Trust'
[21] The second app licant seeks to enforce the original sale agreement, yet alleges it was entered into fraudulently. An agreement induced by fraud may be voidable or vo id ab initio. If the alleged fraud rendered the agreement void ab initio, the applicant would not be able to rely on it. It is important to note that the second applicant does not indicate who fraudulently induced the conclusion of the sale agreement. Furthermore, the second applicant does not address the effect of the fraudulent agreement at all.
[22] The limited facts in the founding affidavit regarding the basis and origin of the alleged fraud further inten sify the confusion caused by the evident tension between the evidenc e and the relief sought in the notice of motion. This point has been well taken by the respondents and should be upheld.
Conclusion
[23] Whether viewed conjunct ively or disjunctively considered , upon the consideration of the above-mentioned points, I conclude that the app lication stands to be dismissed with costs.
Order
[24] Resultantly, the followin g order is made:
1. The application is dismissed with costs on a party and party Scale C.
M \VESSELS
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
APPEARANCES
Counsel for applicants
Instructed by
Counsel for the first to fifth
respondents
Instructed by
:Adv HJ Scholtz
:Theron Jordaan & Smit Inc
:Klerksdorp
:c/o CJP Oelofse Attorneys
:Mahikeng
:Adv FW Bates SC
:Tintingers lnc
:Pretoria
c/o LFS Attorneys
Mahikeng
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