South Africa Ruling

North Gauteng High Court, Pretoria

Pheiffer and Others v About it Pretoria (Pty) Ltd and Others (65188/2014) [2017] ZAGPPHC 71 (21 February 2017)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The application for leave to appeal is refused because the agreement dated 22 April 2011 is void for failure to comply with section 6(1) of the Trust Property Control Act. At the time of conclusion, the Pheiffer Family Trust was not registered and Rudi Pheiffer was not authorised to act as trustee. These facts are dispositive, and no factual context can cure the legal defect. The applicants do not enjoy reasonable prospects of success on appeal, nor is there any compelling reason for leave to appeal to be granted.

Court disposition

Application for leave to appeal dismissed with costs.

Orders

  • The applicants' application for leave to appeal against the judgment delivered on 10 November 2016 is dismissed.
  • The applicants are directed to pay the costs of this application jointly and severally.

02

Material facts

Parties

Rudi Pheiffer

Applicant Counsel: Adv JD Maritz SC

Rudi Pheiffer N.O (in his capacity as trustee of the Pheiffer Family Trust)

Applicant Counsel: Adv JD Maritz SC

Cornelia Maria Pheiffer N.O (in her capacity as trustee of the Pheiffer Family Trust)

Applicant Counsel: Adv JD Maritz SC

About it Pretoria (Pty) Ltd

Respondent Counsel: Advocate APJ Els

Gerhardus Marthinus Olivier

Respondent Counsel: Advocate APJ Els

Gerhardus Marthinus Olivier N.O (in his capacity as trustee of the Reivilo Trust)

Respondent Counsel: Advocate APJ Els

Madelein Olivier N.O (in her capacity as trustee of the Reivilo Trust)

Respondent Counsel: Advocate APJ Els

03

Procedural history

  1. Posture

    Leave to Appeal / Application for Leave to Appeal Following Judgment Delivered on 10 November 2016.

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicants contend that the grounds set out in their notice of application for leave to appeal demonstrate errors in the judgment and that there are reasonable prospects of success on appeal. They argue that the factual context surrounding the agreement dated 22 April 2011 should be considered and that the agreement is not void as found by the court.
Respondent
The respondents maintain that the agreement dated 22 April 2011 is void for non-compliance with section 6(1) of the Trust Property Control Act, as the Pheiffer Family Trust was not registered and Rudi Pheiffer was not authorised by the Master of the High Court at the time. They argue that no factual context can cure a void act and that there are no reasonable prospects of success on appeal.

05

Court’s reasoning

  1. 01

    Trust Property Control Act, section 6(1)

    An agreement is void if it fails to comply with section 6(1) of the Trust Property Control Act, and no factual matrix can validate an act that is void at law.

  2. 02

    Section 17(1) of the Superior Courts Act

    Leave to appeal should only be granted where there are reasonable prospects of success or other compelling reasons.

06

Ratio, limits and disposition

Ratio decidendi

The application for leave to appeal is refused because the agreement dated 22 April 2011 is void for failure to comply with section 6(1) of the Trust Property Control Act. At the time of conclusion, the Pheiffer Family Trust was not registered and Rudi Pheiffer was not authorised to act as trustee. These facts are dispositive, and no factual context can cure the legal defect. The applicants do not enjoy reasonable prospects of success on appeal, nor is there any compelling reason for leave to appeal to be granted.

Obiter and limits

  • It is unnecessary to traverse the various grounds for leave to appeal seriatim, as the central issue is the validity of the agreement.
  • There is no need to repeat the grounds for arriving at the decision in this judgment.

Court disposition

Application for leave to appeal dismissed with costs.

  • The applicants' application for leave to appeal against the judgment delivered on 10 November 2016 is dismissed.
  • The applicants are directed to pay the costs of this application jointly and severally.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment reading view

Judgment text

The complete available source text.

Source document

North Gauteng High Court, Pretoria

Ruling

[2017] ZAGPPHC 71

IN

THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

REPUBLIC

OF SOUTH AFRICA

Case number: 65188/2014

NOT

REPORTABLE

NOT

OF INTEREST TO OTHER JUDGES

REVISED

Date of hearing: 21 February 2017

In the matter between:

RUDI

PHEIFFER First

Applicant

RUDI PHEIFFER N.O

(in his capacity as trustee of the Pheiffer Family Trust) Second Applicant

CORNELIA MARIA PHEIFFER N.O

(in her capacity as trustee of the Pheiffer Family Trust) Third Applicant

and

ABOUT IT PRETORIA (PTY) LTD First

Respondent

GERHARDUS MARTHINUS OLIVIER Second

Respondent

GERHARDUS MARTHINUS OLIVIER N.O

(in his capacity as trustee of the Reivilo Trust) Third

Respondent

MADELEIN OLIVIER N.O

(in her capacity as trustee of the Reivilo Trust) Fourth

Respondent

JUDGMENT IN APPLICANTS' APPLICATION FOR LEAVE TO APPEAL

BRENNER AJ

1. This is an application for leave to appeal against the whole of my judgment delivered on 10 November 2016, and is brought by the above applicants. The applicants served a notice of application for leave to appeal on 28 November 2016 ("the notice").

2. Having duly considered the various grounds adumbrated in the applicants' notice, I disagree.

3. It is not necessary for me to traverse the various grounds ad seriatim. This is because the crisp issue hinges on the validity of the agreement dated 22 April 2011. This agreement is void for failure to comply with section 6(1) of the Trust Property Control Act. Any factual matrix against which it was concluded is toto caelo irrelevant and cannot redeem an act which is void at law.

4. At the time the agreement was concluded, the Pheiffer Family Trust had not been registered and Rudi Pheiffer was not duly authorised to act under letters of authority issued by the Master of the High Court. These facts simpliciter are dispositive of the matter.

5. Suffice it to say that there is no need to repeat the grounds for arriving at my decision in this judgment.

6. In the premises, I am of the view that the applicants do not enjoy a reasonable prospect of success on appeal, and that there is no other compelling reason why an appeal against my judgment should be heard. In my respectful view, leave to appeal should accordingly be refused, with costs following the result.

7. The following order is granted:

a. the applicants' application for leave to appeal against my judgment delivered on 10 November 2016 is dismissed;

b. the applicants are directed to pay the costs of this application jointly and severally.

________

T

BRENNER

ACTING

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

21 February 2017

Appearances

Counsel for the Applicants: Adv JD Maritz SC

Instructed by: Gerhard Botha and Partners Inc

Counsel for the Respondents: Advocate APJ Els

Instructed by: Van der Merwe and Associates Inc

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Trust Property Control Act, section 6(1)

Legislation

Legislation referenced in the available case record.

Superior Courts Act, section 17(1)

Legislation

Legislation referenced in the available case record.

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