Afriforum NPC and Others v Van Der Walt and Others (54318/2021) [2024] ZAGPPHC 203 (12 March 2024)

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

(GAUTENG DIVISION, PRETORIA)

Case Number: 54318/2021

REPORTABLE

OF

INTEREST TO OTHER JUDGES

REVISED

DATE:12/03/2024

In the matter between:

AFRIFORUM

NPC

First Applicant

SOLIDARITY

TRADE

UNION

Second Applicant

JOYCE

KATHRYN JANSEN VAN

RENSBURG

Third Applicant

(ID: 5[...])

IJAY

VAN DER

WALT

Fourth Applicant

(ID: 9[...])

BABSIE

SHARON KRUGER

Fifth Applicant

(ID: 7[...])

IGNATIUS JOHANNES DU PREEZ N.O. Sixth

Applicant

(ID: 6[…])

MARIUS WYNAND SCHOEMAN N.O.

Seventh Applicant

And

FREDERICK

JOHANNES VAN DER WALT First Respondent

IGNATIUS

JOHANNES VAN DER WALT

Second Respondent

ENGELA

CAROLINA

NEL

Third Respondent

THE MASTER OF THE HIGH COURT, PRETORIA

Fourth Respondent

WILLEM

FRANCOIS

BOUWER

Fifth Respondent

(ID: 5[…])

WILLEM

ANDRIES

FILMALTER

Sixth Respondent

This judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for handing down is deemed to be 12 March 2024.

JUDGMENT:

APPLICATION FOR LEAVE TO APPEAL

POTTERILL J

[1] The sixth and seventh applicants, two of the trustees of the Trust, are seeking leave to appeal against only the granting of prayers 4 and 5 of the judgment as well as the costs order of the judgment dated 16 January 2024. Prayers 4 and 5 related to declaratory relief to the effect that the removal of the first respondent as a trustee is in the best interests of the Trust and consequently the first respondent is to be removed as trustee.

[2] The first respondent opposes this application and raised two points in limine.

The sixth and seventh applicants are cited in their capacity as co-trustees of the Trust. Counsel for these applicants submitted that indeed they are not acting on behalf of the Trust. As it is common cause that they are not beneficiaries to the Trust

they do not have locus standi.[1]

[3] On this basis alone the application for leave to appeal must be dismissed.

[4] I do however feel compelled to address some of the other appeal grounds. It was conceded that paragraph 4 of the grounds of appeal incorrectly use the word “ulterior” as there was no recording of such word in my judgment. The ground is that I blemished the two applicants by finding that they interrogated the first respondent pertaining to the administration of the estate. This finding was based on issues ventilated in the papers; i.e. the minute of the meeting reflecting that one of the two agenda items was to obtain feedback from the first respondent in his capacity as executor. On this common cause fact the purpose of the meeting was not Trust business, but the administration of the estate

business.

[5] A ground of appeal is against the finding that at “this juncture a trustee’s powers cannot be executed.” It is common cause that the trustees have been appointed, but there are no trust assets yet transferred to the Trust. The seventh applicant himself opined that a Trust meeting will only be convened “as soon as there is a decision on the settlement of the estate as the Trust could not function until the assets has been transferred to the Trust.”

[6] For the other grounds of appeal the findings and ratio for the findings are deferred to as in my judgment.

[7] The application for leave to appeal is dismissed. The sixth and seventh applicants are to carry the costs, in their personal capacity as they are not acting on behalf of the Trust.

S.

POTTERILL

JUDGE

OF THE HIGH COURT

CASE NO: 54318/2021

FOR THE 6th and 7th APPLICANTS: ADV. Q.

PELSER SC

INSTRUCTED BY: Hurter Spies Incorporated

FOR THE 1ST RESPONDENT: ADV. A. COERTZE

INSTRUCTED BY: WF Bouwer Attorneys

HEARD ON: 8 March 2024

DATE OF JUDGMENT: 12 March 2024

[1] Ras NO and O]hers v Van der Meulen and Another (635/09) [2010] ZASCA 163; 2011 (4) SA 17 (SCA) (1 December 2010)