REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, PRETORIA
Case No: 40294/2018
Reportable: No
Of interest to other Judges: No
Revised: No
__________________________
SIGNATURE
Date: 29 April 2026
In the matter between:
G KOTZE Applicant
and
NATASJA MELINDA ROODT N.0. 1st Respondent
FREDA VENTER 2nd Respondent
THE MASTER OF THE HIGH COURT, PRETORIA 3rd Respondent
JUDGEMENT
_____________________________________________________________________________________________
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MOOKI J
1 The applicant seeks relief stemming from the court having au thorised the
appointment of a referee to determine the monetary value of an interest in
a partnership.
2 The court appointed the second respondent as referee in terms of section
38 of the Superior Courts Act, 10 of 2013. The terms of appointment are
detailed in the court order of 13 November 2020 . The essence of the
appointment was that the referee determines the monetary value of the
interest of the applicant’s partner in a partnership between the applicant
and the late Mr Wessel Cornelius Mostert (the decea sed/decedent), now
represented in these proceedings by the first respondent as executor of his
estate.
3 The referee prepared the report as contemplated in the 13 November 2020
court order. The report is dated 17 September 2021. The referee
determined that the value of the deceased’s interest in the partnership was
R387 196.00. The applicant disagreed with the valuation . The applicant
thereafter appointed Mr J J Rossouw to appraise the decedent’s interest in
the partnership. This was a unilateral appointmen t. Mr Rossouw prepared
a report dated 3 July 2024. He determined in that report that the decedent’s
interest in the partnership was “a negative R481 285,62.”
4 The applicant seeks the following relief:
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4.1 That the report by the second respondent be adopted in part or with
modifications.
4.2 That the monetary value of the late Mr Wessel Cornelius Mostert ’s
interest in a partnership between him and the applicant be declared
to be minus R 481 285.62, and that the first respondent be ordered to
pay the applicant the amount of R 481 285.62, with interest.
4.3 Alternative relief that:
4.3.1 The report by the second respondent be set aside and be
replaced by a report prepared by Mr J J Rossouw.
4.3.2 A declaration that the deceased’s interest in the partnership
be found to be minus R 481 285.62, as determined in the
report prepared by Mr J J Rossouw.
4.3.3 the first respondent be ordered to pay the applicant the
amount of R 481 285.62; with interest.
4.4 Further alternative relief that the report by the second respondent be
remitted to the referee for further enquiry and/or further report
and/or for the consideration, with reference to several considerations
as detailed in the founding affidavit. Those considerations include the
court order of 13 November 2020 and the written partnership
agreement between the applicant and the deceased.
4.5 The executor be ordered to pay the applicant the amount of R600
000.00, together with interest.
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5 The applicant essentially seek relief on the bases that the executor is to pay
the applicant the amount of R 481 285.62, being the value arising from the
valuation of the deceased’s interest in the partnership. The applicant also
seeks payment in the amount of R600 000.00 as proceeds of a policy which
the deceased took as contemplated in the partnership . The applicant
contends that the partnership prescribed that the proceeds of the policy be
paid to the applicant.
6 The second respondent, the referee, did not participate in the proceedings.
The first respondent, who was appointed executor of the estate of the late
Mr Wessel Cornelius Mostert, opposes the relief being sought.
7 The executor agrees that the referee made some errors in her report. The
executor made a tender to the applicant, before the applicant instituted the
proceedings, that the parties jointly instruct the r eferee to adjust her
report. The applicant rejected the proposal. The execu tor contends that
the offer would essentially accommodate the applicant ’s relief that the
report be remitted to the referee , to make corrections as agreed by the
parties.
8 The executor’s primary objection to the relief sought is that Mr Rossouw is
a unilateral appointment by the applicant. This was contrary to the court
order, namely that the interest s in the partnership be determined by an
expert agreed to by both parties. The ex ecutor also contends that Mr
Rossouw made several fundamental errors in his computations. Those
errors are said to be due to the applicant not having instructed Mr Rossouw
in accordance with the proper terms of the partnership agreement.
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9 The relief that t he applicant be paid the amount of R481 285,62, together
with interest, is premised on the court accept ing the findings in the report
by Mr Rossouw. This relief is sought by way of a declarator. Declaratory
relief is discretionary relief on the part of a court. The limits and nature of
the power are regulated by s 21(1)(c) of the Superior Courts Act 10 of
2013.
10 The exercise of this power requires a two-stage approach:
During the first leg of the inquiry the Court must be satisfied
that the applicant ha s an interest in an “existing, future or
contingent right or obligation”. At this stage the focus is only
upon establishing that the necessary conditions precedent
for the exercise of the Court’s discretion exist. If the Court is
satisfied that the existen ce of such conditions has been
proved, it has to exercise the discretion by deciding either to
refuse or grant the order sought. The consideration of
whether or not to grant the order constitutes the second leg
of the enquiry.1
11 An applicant for declaratory relief must satisfy a court that their interest
pertains to the legal right or obligation to which the order will relate. 2 I
accept that the applicant has the requisite interests that must be shown
1 Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd 2005 (6) SA 205
(SCA), para 18.
2 Preston v Vredendal Co -operative Winery Ltd and Another 2001 (1) SA 244 (ECD) at
249 A-D and the cases cited therein
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when a court is asked to consider granting declaratory relief. The applicant
satisfies the first leg to the test as stated above.
12 The applicant has not met the second leg to the test for the grant of
declaratory relief. The dispute between the parties pertains to the valuation
of an interest in the partnership . The parties agreed that the second
respondent be appointed the referee for purposes of establishing that
value. The second respondent was a joint appointment endorsed by the
court. The applicant would then have the court grant relief based on a
valuation arising from a unilateral appointment.
13 There is simply no basis upon which this court could give its imprimatur on
a unilateral report, when the court previously ordered that the valuation of
the parties’ respective interests be conducted by a person a pproved jointly
by parties to a dispute.
14 The executor contends for various flaws in Mr Rossouw ’s report . It is
unnecessary to address this complaint, given the relief which I intend to
grant. The applicant has not made -out a case for relief that the execut or be
ordered to pay the applicant an amount of money based on the valuation by
Mr Russouw.
15 I now consider the relief that the applicant be paid the amount of
R600,000.00. The applicant made his case as follows. The partners agreed
to obtain life insura nce policies against their respective lives and to cede
the proceeds of those policies to each other. The policies were to benefit the
surviving partner. The deceased took out a policy with ABSA, valued at
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R600,000.00. The ABSA policy was intended to fulfi l the obligations of the
deceased under the partnership agreement. The policy, according to the
applicant, was wrongly made payable to the estate of the deceased . The
applicant contends that the proceeds of the policy cannot be distributed
amongst beneficiaries of his then partner’s estate.
16 The executor raised several defences to this claim. The partnership
agreement called for the respective partners to each take a policy and to
cede such policy to the other partner. The ABSA policy was not a policy
contemplated in the partnership agreement . The executor also contended
that the applicant’s claim under the policy had prescribed, pointing out that
the deceased died on 4 November 2012 and that ABSA paid the policy to
the estate on 5 December 2013 . The executor contended that the period
within which the applicant may have had a claim expired by June 2016 ,
whereas the applicant claimed for the first time on 18 October 2024.
17 The issue of whether the applicant is entitled to proceeds of the policy is
intrinsically tied to a determination of the deceased’s interest in the
partnership. This question must be dealt together with the whole mandate
extended to a referee pursuant to the previous court order. This is to avoid
a piecemeal determination of issues arising ess entially from the same
framework, namely, the proprietary consequences of the partnership
between the applicant and the deceased. I therefore decline to exercise my
discretion to grant declaratory relief on this point.
18 Both parties agree that the referee made errors in the report. The applicant
sought as further alternative relief that the report be remitted to the
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referee to address the errors agreed to by the parties. The court will grant
this relief. I must mention that the applicant does not impute mala fides or
any objectionable behaviour or conduct by the second respondent that
would disqualify the second respondent from further involvement in the
determination of the value of the deceased interest in the partnership.
Remitting the matter to the second respondent has the further benefit, to
the advantage of both parties, that the second respondent is familiar with
the dispute and that, with the parties jointly hav ing identified errors made
by the second respondent, those errors would be more easil y addressed.
Furthermore, remitting to the second respondent will have the benefit of
expedition.
19 The applicant ought to bear the costs in the application. The executor
succeeds in the main part in this application, in having resisted the relief
that the court adopt the findings in the report by Mr Rossouw. I also had
regard to the executor having tendered that the matter be remitted to the
second respondent, given part of the relief sought by the applicant.
20 I make the following order:
(1) The matter is remitted to the second respondent for consideration.
(2) The parties are to submit a joint statement to the referee, as to their
respective agreement as set out in the papers.
(3) The referee is to have regard to the joint statement for purposes of the
evaluation as ordered on 13 November 2020.
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(4) The second respondent, as part of the consideration by the second
respondent, shall report on the proceeds of the ABSA policy; namely
whether such constitute part of the partnership.
(5) The applicant is ordered to pay costs, on scale B.
__________________
O MOOKI
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Counsel for the applicant: ASL van Wyk
Instructed by: Cronje Attorneys Inc.
Counsel for the first respondent: H van Der Vyver
Instructed by: Glover Kannieappan Inc.
Date heard: 11 March 2026
Date of judgment: 29 April 2026