Richter N.O and Others v Richter and Others (1988/2017) [2021] ZAFSHC 294 (18 November 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 1988/2017

In the matter between:

CHRISTIAAN GEORGE

FREDERIK RICHTER N.O. First Plaintiff

JULIA HELEN VAN WYK N.O. Second Plaintiff

DEON PIETER

ROSSOUW N.O. Third Plaintiff

(In their capacities as joint trustees of the Verlaat Trust)

CHRISTIAAN GEORGE

FREDERIK RICHTER N.O. Fourth Plaintiff

JULIA HELEN VAN WYK N.O. Fifth Plaintiff

DEON PIETER

ROSSOUW N.O. Sixth Plaintiff

(In their capacities as joint trustees of the Leeuwkop Trust)

CHRISTIAAN GEORGE

FREDERIK RICHTER N.O. Seventh Plaintiff

JULIA HELEN VAN WYK N.O. Eighth Plaintiff

DEON PIETER

ROSSOUW N.O. Ninth Plaintiff

(In their capacities as joint trustees of the Leeuwkop

Boerdery Trust)

CHRISTIAAN GEORGE

FREDERIK

RICHTER Tenth Plaintiff

and

ELMINE

RICHTER First Defendant

ALBERTUS JACOBUS

SAAYMAN Second Defendant

JACOBUS FRANCOIS

DU

PLESSIS Third Defendant

HEARD ON: 12 NOVEMBER 2021

JUDGMENT BY: LOUBSER, J

DELIVERED ON: 18 NOVEMBER 2021

[1] The Plaintiffs in this matter make application for leave to appeal against the judgement of this Court upholding the Defendants’ special plea of compromise and dismissing the Plaintiffs’ claim with costs.

[2] The application is premised on the contention that there is a reasonable prospect that another court will come to a different conclusion. Section 17(1)(a) of the Superior Courts Act no. 10 of 2013 provides that leave to appeal may only be given where the appeal would have a reasonable prospect of success or where there is some other compelling reason why the appeal should be heard, including conflicting judgements on the matter on consideration. Since the Plaintiffs are not relying on any other compelling reasons why the appeal should be heard, the only question to be considered is whether they have shown that the appeal would have a reasonable prospect of success.

[3] In their application for leave to appeal, the Plaintiffs raise a number of issues on which they hold the view that this court has erred in its judgement. Mr Wickins, appearing for the Plaintiffs in the application before me, dealt with those issues by summarizing them as follows: Firstly, that the court has erred by not distinguishing between the family on the one hand, and the trusts on the other hand. They are different entities, he submitted. Secondly, that the cause of action in the two applications instituted by Chris Richter, was not the same as the cause of action in the present matter, because new trustees had come into the picture as the present Plaintiffs in the action. Those trustees are the Plaintiffs, and not Chris. Thirdly, and as far as the compromise agreement is concerned, the parties in the present action are missing on both sides. The new trustees are not bound by the acts of their predecessors in the compromise agreement. One of the new trustees, Julia van Wyk, testified that she had not even read the agreement, Mr. Wickins emphasized.

[4] In the fourth place, the Second and the Third Defendants were not at the table during the conclusion of the compromise agreement. In this respect this court had erred by coming to a different conclusion, it was submitted. In the fifth place, the agreement embodied only a family settlement, and by definition the trusts had not entered the agreement as parties thereto. This is so, it was submitted, because the agreement had as its only purpose the resignation of the trustees, the termination of the litigation and the payment of loan accounts by the trusts.

[5] In the sixth place, it was submitted that the court had erred by ratifying the agreement as far as unborn beneficiaries are concerned, inter alia because there was never a request from either side for such ratification. In the seventh place, the argument went that the court was wrong in relying on the opinions of Mr. Du Plessis, the Third Defendant. The court must decide itself. In addition, it is of crucial importance that Mr. Du Plessis nowhere raised a compromise in his correspondence with the Plaintiffs’ attorney when the present action was contemplated. Lastly, it was submitted that everything that the court has said, was in ignorance of the legal nature of a trust. It is the trusts litigating presently, and not Chris Richter, the argument went.

[6] Now, in its judgement this court has followed the principles laid down by the Supreme Court of Appeal when it comes to the interpretation of a document or an agreement, as we have in this case. These principles involve the process of attributing meaning to the words used in the document, but having regard also to the context provided by reading the particular provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. It also involves ascertaining the intention of the parties. To this end a court has to examine all the circumstances surrounding the conclusion of the agreement, that is the factual matrix or context, including any relevant subsequent conduct of the parties. By applying these principles, the court has in effect arrived at the following conclusions on the evidence presented at the trial and on the wording of the agreement, having had due regard to all the surrounding circumstances and the context of the matter:

[7] 1. An unsolvable rift came into being between Chris and his mother because

of his belief that she and her co-trustees of the three trusts had made themselves guilty of the maladministration and the mismanagement of the affairs of the trusts.

2. The alleged maladministration and mismanagement unmistakenly formed the very cause of action in both the applications launched by Chris as the beneficiary of the trusts.

3. Before the second application (for the removal of the trustees of the trusts) could be finalised, the attorney of Chris proposed a meeting to resolve all the disputes in the family. At the second meeting, the said attorney, Mr. Du Plessis, the mother, Chris and his sister Elri were also present. After discussing all the issues, including the alleged maladministration of the trusts, the attorney for Chris then prepared the agreement which formed the subject matter of the special plea in the present action. This document was signed by all present at the second meeting. At this time, Mr. Du Plessis and the mother (Elmine) were the only trustees of the trusts.

4. The parties to this agreement were the three trusts, and Elmine and Chris and Elri in their personal capacities. In the agreement, Elmine and Du Plessis acting in their capacity as trustees of the trusts, agreed to resign as the trustees of the trusts and to the appointment of new trustees, namely Chris and the Second and Third Plaintiffs. Chris undertook not to proceed with the first and second applications and to pay his mother a certain amount as a contribution to the costs of the trustees in opposing the applications.

5. At the same time, the loan account of Elri in one of the trusts was settled, and other issues in the family, such as the furniture and motor vehicles, were also settled.

6. It is crystal clear that the agreement settled issues relating to the trusts and to issues relating to the family as such. It would therefore be wrong to say that the agreement only served to settle family issues.

7. The present action was launched on the very same cause of action as the one underlying the two applications, namely the mismanagement and the maladministration of the affairs of the trusts. That cause of action became settled between the then trustees of the trusts and Chris. In the present action Chris and the two new trustees of the trusts are claiming damages from the erstwhile trustees, namely Elmine, Mr. Du Plessis and Mr. Saayman.

8. The cause of action in the action has become compromised. In the agreement, Chris did not reserve his right to claim from the trustees afterwards.

9. The fact that Du Plessis did not rely on the compromise in his later correspondence with the attorney of Chris, has no effect on the findings of the court. The court found Du Plessis to be an honest and truthful witness, and his undisputed evidence was that he had called the attorney of Chris and told him that the agreement has settled all claims and that it has disposed of the whole matter.

10. The total effect of the compromise was that Chris had settled his disputes with the trustees of the trusts, irrespective of the fact that Saayman was not physically at the table. The new trustees now litigating on the same cause of action, include Chris himself. It is in any event unacceptable for any set of new trustees to proceed against the erstwhile trustees after Chris had settled the original cause of action with them.

11. Chris has not denied the evidence at the trial of a compromise between the parties, and that evidence stands uncontradicted.

12. The change in trustees could not have any effect upon the binding effect of the compromise. In addition, it cannot be said that the present action was only the result of the forensic report that came to hand after the compromise agreement. That report only confirmed what Chris was alleging all the time in his two applications, and it brought nothing new to the table.

[8] In view of the above, I come to the conclusion that perhaps it can be said that some of the submissions made on behalf of the plaintiffs may find favour with a court of appeal when considered in isolation and individually. However, that is not the test here. When the compromise agreement is considered against all the circumstances and the factual matrix of the matter, then, in my view, it cannot be said that there is a reasonable prospect that another court would come to a different conclusion. The following order is therefore made:

[9] The application for leave to appeal is dismissed with costs.

P. J. LOUBSER, J

For the Plaintiffs:

Adv. G. D. Wickins SC

Instructed by: Brooks & Braatvedt Inc.

Johannesburg

C/O Mudzusi Majiedt Attorneys

BLOEMFONTEIN

For the Defendants:

Adv. J. G. Bergenthuin SC

Instructed by: Cilliers & Reynders Attorneys

Centurion

C/O Vanessa Graham Attorneys

/roosthuizen