SAFLII Note: Certain personal/private det ails 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
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 5165/2024
In the matter between:
THE TRUSTEES FOR THE TIME BEING
OF THE AMBER TRUST, I[...] Plaintiffs
and
OXBOW NORTH (PTY) LTD First defendant
OXBOW OMEGA (PTY) LTD Second defendant
OXBOW OFFICE EQUIPMENT (PTY) LTD Third defendant
UNITY ELECTRICAL ENGINEERING (PTY) LTD Fourth defendant/
Excipient
Coram: Van Zyl, J
Heard on: 3 September 2026
Judgment: : 3 September 2026
Summary: Exception – citation of plaintiff s as “trustees for the time being” as
opposed to individual trustees by name – excipient contending that, as a result,
plaintiff has no locus standi – general principles underlying exceptions – citation of
trust - usual for individual trustees to be cited by name but no objection to citation
such as “trustees for the time being of the XYZ Trust” – exception dismissed – costs
– exception vexatiously , or at least carelessly, raised – basic research not
undertaken or prevailing authorities ignored by legal representative – attorney and
client costs, with proviso that ex cipient’s legal representatives disallowed from
recovering any costs from their client in relation to exception
___________________________________________________________________
ORDER
1. The exception is dismissed.
2. The fourth defendant shall pay the costs of the exception (including the
wasted costs incurred as a result of the exception having to be postponed
on 22 May 2026) on the scale as between attorney and client.
3. The fourth defendant’s le gal representatives are not allowe d to recover
any fees or disbursements from the fourth defendant in relation to the
exception.
JUDGMENT
VAN ZYL, J:
Introduction
1. If one opens a standard textbook on the law of trusts, one sees the following:
“It is usual for the trustees to be cited as ‘A, B and C in their capacity as the
trustees of the XYZ Trust’ but cases in which the trust as such is cited are not
unknown and there can be no objection to that or a citation of ‘the trustees for
the time being of the XYZ Trust.’”1
1 Cameron, De Waal and Solomon Honoré’s South African Law of Trusts (6ed, Juta) p 467. My
emphasis.
2. This - the current state of the law - has been reflected in a series of cases
over the years. 2 In Hyde Construction CC v Deuchar Family Trust and
another,3 a full bench of this Division addressed the issue over 10 years ago:
“[47] As a fact, though, the removal application was not brought in the name of Mr
and Mrs Deuchar nomine officii. The applicant was cited as the Deuchar Family
Trust. Of course, a trust is not a juristic entity. Whether it is procedurally acceptable
to cite a trust by name as a litigant, and whethe r in that regard rule 14 is applicable
to trusts … need not be decided, because no objection was ever taken in the court a
quo or for that matter on appeal to this mode of citation. One commonly refers to a
trust by name even though it is not a juristic entity. Given the legal character of a
trust, the citation of a trust by name in litigation must, I think, be understood as a
reference to the trustees for the time being of the trust, whoever they may be.”
3. The approach followed in Hyde Construction was con firmed, more than 6
years ago, by the Supreme Court of Appeal in Tusk Construction Support
Services (Pty) Ltd and another v Independent Development Trust:4
“[16] It is trite that in legal proceedings by or against a trust the trustees must be
cited in their representative capacity and not in their private capacity. ….
Nonetheless, instances in which the trust was cited as such in legal proceedings are
not unknown (see, in this regard, Rosner v Lydia Swanepoel Trust already referred
to in this para at 127I; BOE Bank Ltd (formerly NBS Boland Bank Ltd) v Trustee,
Knox Property Trust [1999] 1 All SA 425 (D); First National Bank of South Africa Ltd
v Strachan Family Trust [2000] 3 All SA 379 (T)). And this practice has happened
with more frequency lately.
…
[21] In support of his contentio n that the summons in this case was not a nullity,
counsel for the appellants cited Rosner v Lydia Swanepoel Trust. 5 There the
counsel for the appellants cited Rosner v Lydia Swanepoel Trust. 5 There the
2 See, for example, Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006
(3) SA 138 (SCA); Bayer Trust v Bayer and others [2024] ZAWCHC 404 (2 December 2024)
paras 23-31.
3 2015 (5) SA 388 (WCC) para 47. My emphasis.
4 [2020] ZASCA 22 (25 March 2020) p ara 16, and see the discussion in paras 21 -26. My
emphasis.
5 1998 (2) SA 123 (W).
respondent, being a trust, sued in its name and did not cite the trustees in their
representative capacity. The defendant’s argument that the summons was a nullity
and thus could not be amended was resoundingly rejected by the court on the
ground that what obtained was a case of misdescription. Goldstein J had this to say
(at 128D-E):
‘In casu the situation is quite different. The t rust exists as a discrete legal
institution. Indeed, cases in the name of a trust are not unknown, the Goolam
Ally Family Trust case being an example (cf 987D -E). Had the citation
remained unchanged and unnoticed, the effect of any judgment granted in
the proceedings would be no different from what it will be now that the
amendment has been granted. Any amount to be payable by or to the
trustees will remain payable out of or into the same fund as it would
otherwise have been. In these circumstances nothing of the substance has
changed and all that the amendment does is to give linguistic effect to the
legal rule that a trust lacks legal personality.’
…
[25] In Hyde Construction CC v The Deuchar Family Trust and Another … the full
court of the Western Cape Division of the High Court was called upon to determine,
amongst other things, whether the Deuchar Family Trust which had sued in its own
name was properly before the court as a lit igant. After analysing several judgments
of our courts dealing with the legal standing of a trust, Rogers J, writing for a
unanimous court, had this to say (para 47):
‘[T]he applicant was cited as the Deuchar Family Trust. Of course, a trust is
not a juristic entity. Whether it is procedurally acceptable to cite a trust by
name as a litigant, and whether in that regard rule 14 is applicable to trusts
… need not be decided, because no objection was ever taken in the court a
quo or for that matter on appeal t o this mode of citation. One commonly
refers to a trust by name even though it is not a juristic entity. Given the legal
refers to a trust by name even though it is not a juristic entity. Given the legal
character of a trust, the citation of a trust by name in litigation must, I think,
be understood as a reference to the trustees for the time being of the trust,
whoever they may be.’
I fully endorse that observation. To the extent that it can be said to be a departure
from existing authority, it is appropriate that our law of trusts, as it has been evolving
over the years, is developed along these lines.
[26] At the hearing of this appeal counsel for IDT was asked as to what would have
happened if the belated point relating to IDT’s status as a defendant had not been
raised. And whether in those circumstances it would have been open to IDT to
impugn the validity of the ensuing judgment purely because IDT lacked legal
personality. Understandably so, counsel did not embrace such a proposition. The
reason therefor is not far to seek. It is so because where a trust has been cited in its
name (in line with the burgeoning trend mentioned earlier) such citation is generally
understood as a reference to the trustees. This is, however, not to say that a trust as
such is possessed of legal personality. It does not, but remains ‘a legal institution sui
generis.’ Consequently, a trust’s citation as such in legal proceedings does no more
than take cognisance of its existence as a legal institution sui generis.”
4. I have quoted Tusk Construction at some length because what is stated there
puts an end to the dispute before me.
5. The fourth defendant and its legal representatives nevertheless, in May
2024,6 delivered a notice of exception to the plaintiff’s particulars of claim on
the basis that they lacked averments to sustain a cause of action because the
plaintiffs, as cited, had no locus standi. The ground for the exception reads
as follows:
“1. It is trite in our law that a Trust itself cannot sue or be sued because t is not
recognised as a legal persona, but rather a legal persona sui generis.
2. The Trustees, in their official capacity, can, however, sue. All the Trustees
must join in the institution of legal actions. Therefore, when a Trust institutes
legal proceedings, the names of all trustees, rather than the trust itself, are to
be cited in the pleadings.
3. The Plaintiff is cited as ‘THE TRUSTEES FOR THE TIME BEING OF THE
AMBER TRUST, I[…]’.
4. The Plaintiff is neither the Trust, nor the actual trustees in their official
capacity as trustee.
5. Thus, the action falls to be dismissed in that the Plaintiff lacks the necessary
locus standi to institute this action.”
6. The plaintiffs (indicated in the plural on the face of the summons and in the
6. The plaintiffs (indicated in the plural on the face of the summons and in the
particulars of claim) were described in the particulars of claim as follows:
6 The action was instituted in March 2024.
“The Plaintiffs are THE TRUSTEES FOR THE TIME BEING OF THE AMBER
TRUST, I[...] (‘the Trust’), a discretionary trust duly constituted in terms of the laws of
the Republic of South Africa, …”
7. Apart from the manner of citation, no objection was raised against the
particulars of claim, which set out (as a main claim) a contractual cause of
action. There was no suggestion that the p leading was vague and
embarrassing in any way.
8. Two weeks before the hearing of the exception (at which stage no heads of
argument had yet been delivered) I caused an email to be sent to the parties,
requesting that they address the import of, amongst other authorities, Tusk
Construction and Hyde Construction . I also asked that they make
submissions on the nature of the costs order to be granted in the event of the
exception being dismissed, in particular, whether this was an app ropriate
case for the imposition of costs de bonis propriis.
9. In response, t he fourth defendant’s legal representatives delivered heads of
argument in which the exception was persisted with in reliance upon the very
case law to which they had been referred so that they could reconsider the
merits of the case. The salient aspects of the case law (the email identified
the relevant paragraphs of the judgments in question) were either not dealt
with or glossed over. The court’s question on the issue of costs was not
addressed at all . When I asked the fourth defendant’s counsel during oral
argument about the failure to address the directives, his explanation was that
the fourth defendant’s heads of argument were drafted on the day that the
email had been received. The heads therefore did not deal with the court’s
questions.
10. I received those heads of argument a day after the email had been sent by
my registrar . What this means is that the fourth defendant’s legal
representatives did not consider it at all necessary to respond , whether by
way of revised heads or a separate note. to the court’s request for
way of revised heads or a separate note. to the court’s request for
submissions on the issues identified in the correspondence. This is
unacceptable behaviour from officers of the court. A legal representative
would, at the very least (if not for the sake of one’s client, then out of courtesy
to the court), make some attempt to respond to concerns raised by a judicial
officer in relation to a case that is destined to serve before such officer.
11. In any event, I refer briefly to the principles underlying exceptions before
dealing with the parties’ contentions.
The relevant principles relating to exceptions
12. These principles are trite. An exception is a legal objection to an opponent's
pleading, which complains of a defect inherent in the pleading. As stated in
Pretorius and another v Transport Pension Fund, 7 admitting for the purpose
of the exercise that all the allegations in the pleading under attack are true,
the complaint is that even with such admission the pleading does not disclose
a cause of action or a defence, as the case may be. The object of an
exception is to dispose of the case, or a portion thereof, in an expeditious
manner, or to protect a party against an embarrassment which is so serious
as to merit the costs of an exception.8
13. In Living Hands (Pty) Ltd v Ditz 9 the court summarised the principles that
pertain to exceptions, as follows:
“(a) In considering an exception that a pl eading does not sustain a cause of action,
the Court will accept, as true, the allegations pleaded by the plaintiff to assess
whether they disclose a cause of action.
(b) The object of an exception is not to embarrass one's opponent or to take
advantage of a technical flaw, but to dispose of the case or a portion thereof in an
expeditious manner , or to protect oneself against an embarrassment which is so
serious as to merit the costs even of an exception.
(c) The purpose of an exception is to raise a substa ntive question of law which may
have the effect of settling the dispute between the parties. If the exception is not
7 2019 (2) SA 37 (CC) para 15.
7 2019 (2) SA 37 (CC) para 15.
8 Van Loggerenberg et al Erasmus Superior Court Practice [Service 22, 2023] at D1 Rule 23-3
to 23-5, and the cases cited at footnote 1.
9 2013 (2) SA 368 (GSJ) at 374G. My emphasis.
taken for that purpose, an excipient should make out a very clear case before it
would be allowed to succeed.
(d) An excipient who alleges that a summons does not disclose a cause of action
must establish that, upon any construction of the particulars of claim, no cause of
action is disclosed.
(e) An over -technical approach should be avoided because it destroys the
usefulness of the exception procedure, which is to weed out cases without legal
merit.
(f) Pleadings must be read as a whole and an exception cannot be taken to a
paragraph or a part of a pleading that is not self-contained.
(g) Minor blemishes and unradical embarrassments caused by a pleading can and
should be cured by further particulars."
14. An excipient must satisfy the court that it would be prejudiced if the offending
pleading were allowed to stand, and an excipient is required to make out a
very clear, strong case before the exc eption can succeed. 10 Courts are
reluctant to decide exceptions in respect of fact -bound issues. Where an
exception is raised on the ground that a pleading lacks averments necessary
to sustain a cause of action, the excipient is required to show that upon every
interpretation that the pleading in question can reasonably bear, no cause of
action is disclosed. It is trite that when pleading a cause of action, the
pleading must contain every fact which would be necessary for the plaintiff to
prove, if traversed, in order to support his right to judgment ( facta probanda).
The facta probanda necessary for a complete and properly pleaded cause of
action do not, however, include every piece of evidence (the facta probantia)
which is necessary to prove the facta probanda.
15. When an exception is allowed, the court will usually give the party against
whom the exception has been raised an opportunity to remove the cause of
complaint and deliver an amended pleading (if it is able to do so) within a
stated time period.11
stated time period.11
10 Merb (Pty) Ltd and others v Matthews and others [2021] ZAGPJHC 693 (16 November 2021)
para 10.
Merb supra paras 11-12.
11 Erasmus op cit at D1 23-9, and the cases cited in footnote 4.
16. I turn to the fourth defendant’s exception against this background.
The fourth defendant’s exception
17. I have already indicated what the ground for the fourth defendant’s exception
against the particulars of claim is. I have also referred to the case law that, in
my view, is dispositive of the dispute.
18. The plaintiff’s counsel point ed out, at the outset, that the fourth defendant is
wrong in stating in the notice of exception that the plaintiff “ is neither the
Trust, nor the actual trustees in their offici al capacity as trustee”. The citation
can only be interpreted as referring to the trustees of the Amber Trust who
are cited in their official capacities – as explained in Hyde Construction.12 The
failure to cite them individually, although not the usual practice, does not
mean that no cause of action has been disclosed, or that they do not have
locus standi.
19. I agree. The issue complained of is fact -bound, relating to facta probantia, as
referred to in Merb13 and in BOE Bank (formerly NBS Boland Bank) Ltd v
Trustees, Knox Property Trust 14 (BOE Bank was confirmed by the Supreme
Court of Appeal in Tusk Construction):15
“It may well be that it would have been more correct to describe the principal debtor
as the named Trustees, in their capacity as Trustees of the Trust or as the Trustees
for the time being of the Trust. Certainly, as appears from Rosner's case (supra),
where there is litigation against a trust, the trustees in their representative capacity
and not the trust, as such, ought to be cited. That howeve r, is not the end of the
matter because it is clear that, notwithstanding the requirement of the provisions of
12 Hyde Construction supra para 47: “ … Given the legal character of a trust, the citation of a
trust by name in litigation must, I think, be understood as a reference to the trustees for the
time being of the trust, whoever they may be.”
13 Merb supra para 12.
14 [1999] 1 All SA 425 (A) at 436f-g.
13 Merb supra para 12.
14 [1999] 1 All SA 425 (A) at 436f-g.
15 See Tusk Construction supra para 23. In para 23 of Tusk the court pointed out: “ [24] The
principle to which McCall J referred in BOE Bank has been confirmed by this Court in several
cases (see, for example, Sapirstein and Others v Anglo African Shipping Co (SA) Ltd 1978
(4) SA 1 (A) … at 12B -E; Kohlberg v Burnett NO and Others … 1986 (3) SA 12 (A) … at
25F-26B).”
section 6 of Act 50 of 1956 that the identity of the creditor, the surety and the
principal debtor must be capable of ascertainment by reference to the provisions of
the Deed of Trust, extrinsic evidence, other than the evidence of the parties as to
their negotiations and consensus may be led in order to identify one of those
parties.”
20. The extrinsic evidence that may be led to identify the parties falls in the
definition of evidential issues, or facta probantia. This may be done at trial.
In Desai-Chilwan NO v Ross and another16 it was held that:
“[21] If it is permissible that the trustees can delegate or authorise one of them to
sign a power of attorney for all of them to institute legal proceedings, surely it must
be correct to authorise one of them to consult with a lawyer and to depose to an
affidavit and bring an action to court on their behalf. If this is correct, then what is the
magic in the citation of all the trustees in their legal proceedings. While it is
preferable and ideally all the trustees must be cited in legal proceedings, I do not
think that where one of the trustees has not been properly cited that this omission
should non-suit the trust where there was clear authority to bring the proceedings to
court. It should be noted that, unlike directors in a company, the trustees,
irrespective of their number, hold one office. Even if they hold different views, they
still bind one anoth er, regardless of the dissenting views. The powers, which the
trustees have, vest in them jointly.
…
[28] I hold that it would be in the circumstances of this case unconscionable if the
Court were to shut its doors to the plaintiff on a technicality which is no more than
clutching at a straw. For these reasons I am satisfied that the applicant is properly
before Court and the point in limine falls to be dismissed.”
21. I have already referred to the approach taken in , and quoted the relevant
extract from, Hyde Construction CC v Deuchar Family Trust and another,17 a
extract from, Hyde Construction CC v Deuchar Family Trust and another,17 a
decision of the full bench of this Division , which was approved of by the
Supreme Court of Appeal in Tusk Construction .18 Tusk concluded that
“where a trust has been cited in its name (in line with the burgeoning trend
16 2003 (2) SA 644 (CPD) paras 21 and 28. My emphasis.
17 Hyde Construction supra para 47.
18 Tusk Construction supra para 25.
mentioned earlier) such citation is generally understood as a reference to the
trustees.”19
22. The Supreme Court of Appeal in Tusk Construction further held that:20
“[33] It must be emphasised that we no longer live in the Justinian era wh en, if a
mistake was made by a litigant, a claim or defence would be forfeited. That courts
have to eschew undue formalism was aptly explained by Wessels J more than a
century ago in Whitaker v Roos and Bateman 1911 TPD 1092 at 1102 -3 in these
terms:
‘The object of the Court is to do justice between the parties. It is not a game
we are playing in which, if some mistake is made, the forfeit is claimed …
[W]e all know … that mistakes are made in pleadings, and it would be a
grave injustice, if for a slip of t he pen, or error of judgment … litigants are to
be mulcted in heavy costs … Therefore the Court will not look to
technicalities, but will see what the real position is between the parties.’
The principle has been applied consistently ever since.”
23. Ironically, the fourth defendant relies heavily on Tusk Construction in arguing
that the exception is meritorious. He contends that the Supreme Court’s
observations in relation to the citation of a trust, in particular the dictum at
paragraph 25 where Rogers J’s comments in Hyde Construction are
approved of 21 are merely obiter dicta , and that this court is accordingly not
bound by them.
24. I do not agree. Tusk squarely dealt with the question of how a trust should be
cited. It held that the court a quo had erred in disallowing the appellants’
application for the amendment of their combined summons by substituting all
references to the trust involved in the action with a reference to the trustees
19 At para 26.
20 At para 33. My emphasis.
21 Tusk Construction supra para 25: “… ‘One commonly refers to a trust by name even though
it is not a juristic entity. Given the legal character of a trust, the citation of a trust by name in
litigation must, I think, be understood as a reference to the trustees for the time being of the
trust, whoever they may be.’ I fully endorse that observation. To the extent that it can be said
to be a departure from existing authority, it is appropriate that our law of trusts, as it has been
evolving over the years, is developed along these lines.”
for the time being in their representative capacity.22 The application had been
disallowed on the basis that the trust as initially cited (“Independent
Development Trust”) had no legal standing, and that the summons was thus
a nullity which could not be amended. In coming to its conclusion the
Supreme Court of Appeal discussed the principles relevant to the standing
and citation of a trust, and expressly approved of the view that – although not
the usual course – the citation of a trust by name or by reference to the
trustees in their representative capacity, without citing t hem by name –
constitutes a development in our law, and does not deprive the trust of
standing. Rather, it “does no more than take cognisance of its existence as a
legal institution sui generis”.23
25. In Bayer Trust v Bayer and others,24 upon which the fourth defendant also
strongly relies, it was held (under the heading “ Does the applicant lack
standing to bring this application? ”) the court held, albeit in the context of an
application, not an action:
“[23] The first respondent challenged the standing of t he applicant because a trust
lacks legal personality and cannot litigate in its own name. The first respondent
contended that the trust’s improper citation as the applicant rather than the trustees
is fatal to the applicant’s case. The first respondent contended that the trustees of
the applicant should have been cited in their representative capacity. …
[24] … A trust does not have legal personality. A trust is certainly not a legal person.
A trust is a legal institution sui generis. .. Who the trustees a re, their number, how
they are appointed, and under what circumstances they have the power to bind the
trust estate are matters defined in the trust deed, which is the trust's constitutive
charter.
[25] I accept that it is important to cite the applicant in the manner proposed by the
first respondent. Specifically, when initiating legal proceedings in the name of the
first respondent. Specifically, when initiating legal proceedings in the name of the
trust, it is imperative to include all trustees of the trust in the citation. Furthermore, it
is generally impermissible merely to cite the name of the trust. This is because the
general rule is that trustees must act jointly, and unless provided for otherwise, a
22 Tusk Construction supra paras 5-6, read with paras 30-31 .
23 Tusk Construction supra para 26.
24 [2024] ZAWCHC 404 (2 December 2024) paras 23-30. My emphasis.
trust is not a legal person. The rights and obligations comprising the trust estate do
not bestow legal personality on the trust. …
…
[27] It is not in dispute that the names and identities of the trustees involved in this
application are clearly discernible from the Letters of Authority attached to the
founding affidavit of the applicant. The failure to cite the trustees, in my view, does
not automatically mean that such a failure is fatal to the applicant's case. To assert
otherwise would emphasise form at the expense of substance . The situation would
have been markedly different had the Letters of Authority, containing the names of
the trustees, not been included in the applicant’s founding affidavit. To this end, I
agree with the views expressed in Villon Family Trust v Kirby, 25 in which a similar
argument was raised and rejected by the court. The court found that to uphold the
respondent's argument would be to adopt an overly technical approach in the
circumstances of the matter.
[28] Significantly, in Standard Bank of South Africa Ltd v Swanepoel NO, 26 the court
dealt with a case where a trust was cited as a party to a loan agreement, instead of
the individual trustees in their official capacities. After examining various authorities,
the court held that if the identity of all the parties can be ascertained by having
regard to a trust deed or extrinsic evidence, a suretyship (as in th at case) must be
read accordingly. The court went on to say that even in construing a will where an
estate, or its residue, is left to a trust, or a bequest is made to a trust, regard may be
had to the trust deed to ascertain the identities of the trustees.
…
[30] In my opinion, it would be unconscionable to dismiss the applicant's application
solely on the technicality that it should have been filed in the name of the trustees,
particularly given that the application explicitly identifies the trustees in volved. It
particularly given that the application explicitly identifies the trustees in volved. It
would be putting form over substance to uphold the first respondent's technical
argument, as the trustees of the trust have been correctly identified in the Letters of
Authority, and the first respondent has not challenged their Letters of Authority.
[31] Furthermore, had the citation remained unnoticed, the effect of any judgment
granted in the proceedings would be no different from what it would have been had
the trustees been cited in their official capacities. … In the circumstances, I firml y
believe that the applicant’s application is properly before the court, and the
respondent's first preliminary point must be rejected.”
25 Also a judgment of this court: [2012] ZAWCHC 45 (18 May 2012).
26 2015 (5) SA 77 (SCA) (22 May 2015) paras 7-12, and paras 18-20.
26. The fourth defendant’s counsel argued that, because this court has a
discretion, the merits of the exception are necessarily arguable . T he raising
of the exception could therefore never have been bad. This argument misses
the point. This court’s discretion relates to whether an exception is well-taken
in the context of the relevant pleading. The existence of such discretion
cannot, in itself, transform a bad exception into a good one.
27. Counsel further argued that he had himself successfully taken this exact
objection against a trust’s citation in prior cases. Many a senior counsel, so
the argument went, had done the same. It suffices to say that I – respectfully
- do not regard this as persuasive authority. Upon questioning, moreover, it
appeared that those successes mostly involved summary judgment
proceedings predating the Hyde and the Tusk judgments.
28. I was referred, for example, to the judgment in this Division in Standard Bank
of South Africa Ltd v The trustees for the time being of the Smuts Family
Trust.27 The court held, in the context of a n unopposed summary judgment
application, that the issue of the proper citation of the trust remained
arguable, and dismissed the application. In the unreported decision of
Standard Bank of South Africa Ltd v The trustees for the time being of the
Kairos Trust,28 on the other hand, a point in limine was taken in an application
for summary judgment that the trustees in their official capacity had not been
cited. The point was dismissed as overly technical:
“"If cases cited in the name of a trust which has no legal persona are accepted, I cannot find
any logical reason, nor was I provided with any as to why a case against the trustees for the
time being such as the present, cannot be accepted, especially where it is not disputed that
the assets of the trust vest in the trustees nor that the identities of the trustees are unknown
or that there is confusion as to who they are. It would seem to me in the circumstances that
or that there is confusion as to who they are. It would seem to me in the circumstances that
the opposition is not well-founded and smacks of unnecessary formalism."
29. As I have stated, these applications were considered prior to the
development of the law as set out in the later authorities. Summary judgment
27 [2010] ZAWCHC 623 (10 December 2010).
28 Case number 23270/2009, delivered on 12 February 2010, Meer J presiding.
applications are in any event decided upon principles that differ from those
relating to exceptions.
30. The fourth defendant’s legal representatives would, one hopes, have known
that, in accordance with the trite principles underlying exceptions, the c ourt
would accept as true the allegations pleaded by the plaintiff s to the effect that
the trustees of the trust are who they are cited to be . They would have
known that the object of an exception is not to take advantage of a technical
flaw. The legal representatives must have known that the fourth defendant
would not be seriously prejudiced if the particulars of claim were allowed to
stand.
31. Importantly, the legal representatives would (or should) have recognised the
fact that the fourth defendant’s exception raised no substantive question of
law that may have had the effect of bringing an end to the litigation. The
exception is therefore simply bad in law, because it fails to achieve the
purposes of an exception, which is aimed at weeding out unmeritorious
claims. It cannot be said that, accepting that the allegations in the particulars
of claim are true, that the plaintiffs have no case on any reasonable
interpretation of the particulars of claim.
32. In the fourth defendant’s heads of argument, after referring to the “saving
grace” in Bayer Trust that letters of authority were attached to the application
papers in that matter, the fourth defendant complains that there is no such
extrinsic documentation attached to the particulars of claim in the present
matter. This is an admission on the fourth defendant’s part that the complaint
in the present matter relates to issues that are fact -bound, in other words to
facta probantia . The distinguishing feature, of which the fourth defendant
was clearly aware, is that Bayer Trust was decided on motion, whereas the
present matter is to be decided by way of action, where it is open to the fourth
present matter is to be decided by way of action, where it is open to the fourth
defendant to request trial particulars, or to insist that discovery be made, in
order to resolve the factual issues concerning the identities of the individual
trustees. Put differently, the fourth defendant was clearly aware that the facta
probantia could be established by way of extrinsic evidence.
33. I respectfully agree wi th the approach in Bayer Trust, to which I am in any
event (and apart from the precedent set by the Supreme Court of Appeal)
bound unless I regard it as clearly wrong. 29 Given the relevant case law,
including the judgments quoted in the fourth respondent’s own heads of
argument, its legal representatives should have been well aware, from the
outset, that the exception was bound to fail. At the very least a consideration
of the case law referred to by the court in the correspondence addressed to
the parties before the hearing of the exception should have alerted them to
undertake an investigation into the merits of the exception.
Conclusion, and costs
34. In the circumstances, the exception falls to be dismissed. There is no reason
for costs not to follow the event, in accordance with the general rule. The
exception was persisted in despite the fact that it clearly had not merit, and
the question accordingly arises what the appropriate scale of costs would be.
35. A costs order on the scale as between attorney a nd client is extraordinary ,
and is usually reserved for cases where the court finds that the
circumstances warrant it showing its displeasure with the conduct of a
litigant.30 This is the case, for example, where a party instituted unnecessary
or frivolous proceedings , or brought an entirely pointless application “that
brought the matter no further” ,31 or where the litigation was reckless or
vexatious.32
29 See, for example, Robin Consolidated Industries Ltd v Commissioner for Inland Revenue
1997 (3) SA 654 (SCA) at 666D-H.
30 Tjiroze v Appeal Board of the Financial Services [2020] ZACC 18 (21 July 2020) para 27 ;
Paulsen v Slipknot Investments 777 (Pty) Ltd 2015 (3) SA 479 (CC) para 84.
31 Vilikazi v Malevu 1979 (1) SA 737 (N) at 746G-H.
32 See, for example, Wraypex (Pty) Ltd v Barnes and others 2011 (3) 205 SA (GNP) at 20 6A-
207D where the weak merits of the case became obvious during the trial, and where the
207D where the weak merits of the case became obvious during the trial, and where the
litigation was purposeless; Wingate-Pearse v Commissioner, South African Revenue Service
2019 (6) SA 196 (GJ) paras 82-86, which held that “vexatious” in this context means that the
effect of the litigation is vexatious, although the intent may not have been that they should be
vexatious. There are people who enter into litigation “with the most upright purpose and most
firm belief in the justice of their cause, and yet whose proceedings may be regarded as
vexatious when they put the other side to unnecessary trouble and expense which the other
side ought not to bear”.
36. The court may , on the facts, consider it just to ensure that the successful
party will not be out of pock et in respect of the expenses caused to him by
the litigation. 33 In the present matter, and in light of the weak merits of the
exception from the outset, and the considerations of which the fourth
defendant’s legal representatives were or should have been aware, I am of
the view that the plaintiffs are entitled to their costs on the scale as between
attorney client.
37. There is also the matter of the costs of a postponement of the argument on
exception, which was to have taken place on 22 May 2025.
38. After having taken the exception on 20 May 2024, the fourth defendant failed
to set it down or to do anything to advance the hearing thereof. The plaintiffs
accordingly approached the Judge President for an order, which was granted
on 27 January 2025, setting the exception down for hearing on 22 May 2025.
39. The fourth defendant was informed of the hearing date, but failed to deliver
heads of argument. This resulted in the matter not being allocated to a judge
for hearing on 22 May 2025. Counsel for the fourth d efendant argued that
the non-allocation was not the fourth defendant’s fault, because the plaintiffs
also did not deliver heads of argument. This is an incorrect submission,
because the plaintiff did deliver heads on 15 May 2025, in time for the
hearing. The plaintiffs, yet again (because of the fourth defendant’s inaction),
had to apply again for the set down of the exception for hearing on 3
September 2026. Almost two and a half years have elapsed since the
delivery of the notice of exception.
40. Counsel for the fourth respondent argued that, well, the plaintiffs could have
set the matter down earlier, and saved themselves some time. This
approach ignores the provisions of Rule 23, as read with Rule 6, in relation to
an excipient’s entitlement (and duty) to enrol the exception for hearing. It was
an excipient’s entitlement (and duty) to enrol the exception for hearing. It was
33 Nel v Waterberg Landbouwers Ko-Operatieve Vereeniging 1946 AD 597 at 607.
only after the relevant time periods had elapsed for the excipient to do its duty
in this respect that the plaintiffs could do so – as they did.
41. The wasted costs occasioned in the process , including the wasted costs of
the aborted hearing of 22 May 2025, was incurred purely as a result of the
fourth defendant and its legal representatives’ failure to comply with the Rules
and practice directions of this court. There has been no explanation for this
careless approach to the litigation. Costs on an attorney and client scale is
therefore warranted.
42. Who should pay these costs?
43. The principles applicable to costs de bonis propriis were summarised as
follows in Multi-Links Telecommunications v Africa Prepaid:34
“[35] It is true that legal representatives sometimes make errors of law, omit to
comply fully with the rules of court or err in other ways related to the conduct of the
proceedings. This is an everyday occurrence. This does not, however, per se
ordinarily result in the court showing its displeasure by ordering the particular legal
practitioner to pay the costs from his own pocket. Such an order is reserved for
conduct which substantially and materially deviates from the standard expected of
the legal practition ers, such that their clients, the actual parties to the litigation,
cannot be expected to bear the costs, or because the court feels compelled to mark
its profound displeasure at the conduct of an attorney in any particular context.
Examples are dishonesty, obstruction of the interests of justice, irresponsible and
grossly negligent conduct, litigating in a reckless manner, misleading the court, gross
incompetence and a lack of care.”
44. The aim of the order is to indemnify a litigant against an account for c osts
from his own representative, by compelling the representative to pay the
costs himself.35
34 2014 (3) SA 265 (GP) para 35. My emphasis. See also Road Accident Fund v Le Roux 2002
34 2014 (3) SA 265 (GP) para 35. My emphasis. See also Road Accident Fund v Le Roux 2002
(1) SA 751 (WLD) at 754H -755A: “… This was plainly a misconceived application, wa s
doomed from the start and can with justification be termed vexatious and frivolous. …”
35 Kenton-on-Sea Ratepayers Association v Ndlambe Local Municipality 2017 (2) SA 86 (ECG)
at 118F.
45. Procedural fairness requires that an attorney against whom a personal costs
order is sought must be afforded a proper opportunity to respond to the
allegations giving rise to the proposed order. In the present matter th e
parties were requested, by way of the correspondence addressed to them on
20 August 2026, to make submissions36 on the nature of the costs order to be
granted in the event of the exception being d ismissed, and in particular
whether this matter might be an appropriate case for the imposition of costs
de bonis propriis. The fourth defendant’s representatives ignored the court’s
request.
46. In its heads of argument, the fourth respondent states glibly that “ the solution
in this matter is simple. Should the Plaintiff agree to simply amend, the
Fourth Defendant will not object to the amendment and the action can move
forward”. It is not that simple. As counsel for the plaintiffs remarked: “ Die
reg wyk nie voor die onreg nie ”.37 Why, if the fourth defendant takes a
vexatious step, should the plaintiffs grin and bear it? It appears that the fourth
defendant approached the matter as “a game we are playing”, in the words of
the Supreme Court of Appeal Tusk Construction.38 This is not an attitude that
should be met with judicial approval.
47. The fourth defendant’s counsel asked the question: “Why are we here? ” His
own answer was that we were here because of the plaintiffs’ failure to amend
their particulars o f claim, and because of their delay in setting the matter
down for hearing. I have addressed these contentions, which are without
merit. We are here because the fourth defendant raised a bad exception .
They took , in the words of the Supreme Court of Appeal, a “ miserable,
pettifogging point”39 which ignored the basic principles underlying exceptions,
and the development in the law relating to the citation of trusts. It clogged the
overburdened opposed motion roll, and prevented the determination of
overburdened opposed motion roll, and prevented the determination of
36 See Public Protector of South Africa v Chairperson of the Section 194(1) Committee and
others 2025 (4) SA 428 (SCA) paras 41-42.
37 “The law does not yield to injustice” (my loose translation).
38 Tusk Construction supra para 33.
39 Public Protector supra para 48, and see the admonition at paras 46 -47 regarding the dutie s
resting on legal practitioners.
meritorious matters to the prejudice not only of the plaintiffs, but also to other
litigants, and the administration of justice.
48. On considerat ion of all of these circumstances , I am of the view tha t the
fourth defendant’s legal representatives, who clearly drove the exception,
conducted themselves in a manner that warrants censure. At best for them
they did not investigate the law and thus did not know the relevant principles,
but this is no excuse. I gave serious consideration to the grant of a costs
order de bonis propriis. I considered, however, and in their favour, that while
it may be so that they did not know the law, they should nevertheless not be
subjected to a costs order de bonis propriis . They can however not escape
an order that they be disallowed from recovering any costs from their client in
relation to the exception.
Order
49. In the premises, it is ordered as follows:
1. The exception is dismissed.
2. The fourth defendant shall pay the costs of the exception (including
the wasted costs incurred as a result of the postponement on 22 May
2026) on the scale as between attorney and client.
3. The fourth defendant’s legal representatives are not allowed to
recover any fees and disbursements from the fourth defenda nt in
relation to the exception.
P. S. VAN ZYL
Judge of the High Court
Appearances:
For the plaintiffs: Mr A. J. van Aswegen (the heads of
argument were prepared by Mr R. B.
Engela)
Instructed by: Enderstein Malumbete Incorporated
For the fourth defendant (excipient): Mr M. Holland (the heads of
argument were prepared by Ms N.
Essa)
Instructed by: Boucher Attorneys Incorporated
No appearance for the first to third defendants