Iprotect Trustees (Pty) Ltd N.O and Another v Ndlela, In re: Ndlela v Ndlela (43668/2014) [2015] ZAGPJHC 291 (10 December 2015)

Iprotect Trustees (Pty) Ltd N.O and Another v Ndlela, In re: Ndlela v Ndlela (43668/2014) [2015] ZAGPJHC 291 (10 December 2015)

The court found that the intervening parties, as trustees of the Ndlela Trust, had a direct and substantial interest in the interim order affecting trust assets and were entitled to intervene. However, the application to vary the order was not precipitated by a material change in circumstances, but rather by the trustees not being party to the original proceedings. The financial evidence presented by the trust did not demonstrate an inability to maintain the Audi A4, nor did the trustees provide sufficient justification for refusing Mrs Ndlela access to the household furniture. The trust was formed for the benefit of the family, and both the vehicle and furniture were acquired for their...

Citation
[2015] ZAGPJHC 291
Parties
Applicant: Iprotect Trustees (Pty) Ltd N.O; Applicant: Ndlela, Thabo Sipho N.O; Applicant: Ndlela, Mirriam Clemencia Khozya; Respondent: Ndlela, Thabo Sipho
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
10 December 2015
Case Number
43668/2014
Procedural Posture
Urgent Application / Application to Intervene and to Vary Interim Order Under Rule 43
Outcome
Application to intervene granted; application to vary interim order dismissed; original order declared binding on intervening parties; costs awarded against Mr Ndlela personally on attorney and client scale.
Judges
L Modiba
Legal Topics
Rule 43 Interim Relief, Trust Property Control Act, Joinder of Parties, Variation of Court Order, Maintenance Pendente Lite
Civil Procedure Family and Children Rule 43 Interim Relief Trust Property Control Act Joinder of Parties Variation of Court Order Maintenance Pendente Lite

Case Brief

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Parties

Iprotect Trustees (Pty) Ltd N.O

Applicant

Ndlela, Thabo Sipho N.O

Applicant

Ndlela, Mirriam Clemencia Khozya

Applicant

Ndlela, Thabo Sipho

Respondent

Procedural Posture

Urgent Application / Application to Intervene and to Vary Interim Order Under Rule 43

Legal Issues

  1. 1 Whether the intervening parties should be joined to the proceedings.
  2. 2 Whether the application to amend the order by Victor J ought to be determined in terms of rule 43(6) or as a normal opposed motion under rule 6.
  3. 3 Whether the intervening parties have shown cause for the variation of the order by Victor J.

Ratio Decidendi

The court found that the intervening parties, as trustees of the Ndlela Trust, had a direct and substantial interest in the interim order affecting trust assets and were entitled to intervene. However, the application to vary the order was not precipitated by a material change in circumstances, but rather by the trustees not being party to the original proceedings. The financial evidence presented by the trust did not demonstrate an inability to maintain the Audi A4, nor did the trustees provide sufficient justification for refusing Mrs Ndlela access to the household furniture. The trust was formed for the benefit of the family, and both the vehicle and furniture were acquired for their...

Court Disposition

Application to intervene granted; application to vary interim order dismissed; original order declared binding on intervening parties; costs awarded against Mr Ndlela personally on attorney and client scale.

Orders

  • The application to intervene is granted.
  • The application to amend paragraph 6 of the order granted by Victor J on 9 December 2014 is dismissed.