Van Niekerk v Clarke and Another (14791/07) [2010] ZAWCHC 169 (31 August 2010)

Van Niekerk v Clarke and Another (14791/07) [2010] ZAWCHC 169 (31 August 2010)

The court found that the deed of cession upon which the plaintiff relied was void and invalid because it was signed by Timo Voges, who was not a trustee and therefore lacked authority to cede the Trust's claim. The trust deed did not permit delegation of the power to cede trust assets to a third party, and the trustees were required to act jointly in disposing of trust assets. The subsequent ratification by the trustees could not cure the invalidity of the cession, as the act was not capable of ratification. Consequently, the plaintiff did not have locus standi to bring the action, and absolution from the instance was granted.

Citation
[2010] ZAWCHC 169
Parties
Plaintiff: Gerrit Jacobus Van Niekerk; Defendant: Edward John Clarke; Defendant: Johanna Katrina Clarke
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
31 August 2010
Case Number
14791/07
Procedural Posture
Civil Trial / Absolution From the Instance After Close of Plaintiff's Case
Outcome
Absolution from the instance granted with costs.
Judges
D H Zondi
Legal Topics
Trust Deed Interpretation, Locus Standi, Delegation of Trustee Powers, Cession of Claim, Absolution From Instance
Land and Property Civil Procedure Trust Deed Interpretation Locus Standi Delegation of Trustee Powers Cession of Claim Absolution From Instance

Case Brief

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Parties

Gerrit Jacobus Van Niekerk

Plaintiff

Edward John Clarke

Defendant

Johanna Katrina Clarke

Defendant

Procedural Posture

Civil Trial / Absolution From the Instance After Close of Plaintiff's Case

Legal Issues

  1. 1 Whether the plaintiff had locus standi to sue for the refund of the deposit paid under the sale agreement.
  2. 2 Whether the deed of cession signed by a non-trustee was valid and capable of ratification by the trustees.
  3. 3 Whether the trustees of the Newflo Trust could delegate the power to cede trust assets to a third party.

Ratio Decidendi

The court found that the deed of cession upon which the plaintiff relied was void and invalid because it was signed by Timo Voges, who was not a trustee and therefore lacked authority to cede the Trust's claim. The trust deed did not permit delegation of the power to cede trust assets to a third party, and the trustees were required to act jointly in disposing of trust assets. The subsequent ratification by the trustees could not cure the invalidity of the cession, as the act was not capable of ratification. Consequently, the plaintiff did not have locus standi to bring the action, and absolution from the instance was granted.

Court Disposition

Absolution from the instance granted with costs.

Orders

  • Absolution from the instance is granted.
  • Plaintiff is ordered to pay the costs.