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IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 13493/06
DATE: 03/08/2007
UNREPORTABLE
In the matter between:
JOHANNES FREDERIK KLOPPER N.O			APPLICANT

VS
THE MASTER OF THE HIGH COURT				RESPONDENT

JUDGMENT
												
BOSIELO J
INTRODUCTION
1
This matter is about a trustee who is dissatisfied with his
remuneration in the amount of R6 7521, 51 determined in
terms of Tariff B of the Second Schedule B to the Insolvency
Act, 24 of 1936 amended ("the Act"). These fees in the
amount of R6 7521, 51 including value added tax (VAT) were
for services rendered in administering an insolvent estate. As
the applicant was of the view that the above-stated fees were

2
inadequate, he made representations to the respondent for
an increased remuneration in the further amount of R7 620,
00 in terms of Section 63 of the Act. The respondent,
purporting to exercise it's discretion in terms of section 63 (1)
of the Act, refused to increase the applicant's remuneration,
having found that there was no 'good cause' for such an
increase. This is what gave birth to what turned out to be an
ugly and scathing legal brawl between the applicant and the
respondent. It is regrettable that in the course of this bruising
skirmish, the professional reputation and integrity of both the
respondent and applicant were seriously tarnished.
2.
FACTUAL BACKGROUND
2.1
The facts of this case are not complex and, are, to great
extent, common cause. The applicant is an insolvency
practitioner employed as a director by a company called
Independent Trustees (PTY) LTD. The respondent is the
Master of the High Court, Pretoria who, amongst others, is
responsible for insolvent estates.
2.2 The estate of one Bill Oosthuizen was sequestrated on 12
August 2003 by an order of this court. On 24 November

2.3
2.4
3
2003, the applicant was appointed the trustee of this
insolvent estate by the Master. This estate was finally wound
up on 5 July 2005 on which dated the amended Final
Liquidation and Distribution and Contribution Account was
filed.
Pursuant to the Second Schedule to the Insolvency Act, and
in accordance with Tariff B thereof, the applicant calculated
his remuneration to be R6 752, 51. The applicant avers that
the amount of R6 752, 51 is too little and does not amount to
reasonable remuneration for the services which he rendered
in administering and winding up the insolvent estate. As a
result, the applicant wrote a letter to the respondent on 5 July
2005, wherein he sought an increase of his remuneration in
a further amount of R7 620, 63 in terms of section 63 (1) of
the Act.
In support for his request for an increase of his remuneration,
the applicant alleged, inter alia, that he had to use many
members of his staff to do various activies in administering
the insolvent estate, and further that he spent approximately
29 hours in the administration of this estate. The respondent

2.5
4
advised the applicant on or about 29 July 2005 that he
declined to increase the applicant's remuneration. The
primary reason advanced by the respondent was that this
estate was not complex; that there was only one asset in the
insolvent estate, to wit, an immovable property which was
sold by auction; that the applicant had already received a fee
from the sale of that asset; that there was only one secured
creditor, being ABSA and further; that ABSA already paid a
contri bution.
Relying on the respondent's refusal to increase his
remuneration,
the
applicant
launched
the
present
proceedings to this court to have the decision of the
respondent to refuse to increase his remuneration reviewed
and set aside.
3. THE STATUTORY FRAMEWORK
3.1
It is common cause that this matter is governed by section
63 (1) and (2) of the Act which provide as follows+
"63- Remuneration of trustee or curator bonis
(1) Every trustee or curator bonis shall be entitled to a
reasonable remuneration for his services, to be

5
taxed by the Master according to tariff B in the
Second Schedule to this Act: Provided that the
Master may, for good cause, reduce or increase his
remuneration, or may disallow his remuneration
either wholly or in part on account of any failure or
delay in the discharge of his duties or on account of
any improper performance of his duties:
(1) bis The Master may by notice in the Gazette
amend the said tariff B.
(2)
A person who employs or is a fellow employee or is
ordinarily in the employment of the trustee shall not be
entitled to any remuneration out of the insolvent estate, and
a trustee or his partner shall not be entitled to any
remuneration out of the estate for services rendered to the
estate, except the remuneration to which under this Act he is
entitled as trustee."
3.2 The parties were agreed that the applicant's remuneration
had to be in accordance with Tariff B of the second Schedule
to the Act. Furthermore, it was not in dispute that in terms of
section 63( 1) of the Act, the applicant as trustee of the

6
insolvent estate, was entitled to a reasonable remuneration
for his services in winding up the estate. Of critical
importance, the parties were also agreed that for the
applicant to qualify, for an increase of his remuneration he
had to prove "good cause". It became common cause that
the real dispute revolved around the crisp question whether
the respondent acted properly in finding that the applicant
had not shown "good cause" for the increase of his
remuneration and consequently refusing same.
4.
SUBMISSIONS
4.1 Advocate Terreblanche S.C (assisted by Mr Smit) argued on
behalf of the applicant that the respondent misdirected
himself by, inter alia, refusing to acknowledge the principle of
time-based claims and, as a result failing to consider the
actual time which the applicant spent in administering this
insolvent estate (estimated to be 29hrs); further that the
respondent took irrelevant considerations into account, i.e.
the fact that there was only one asset in the insolvent estate
, viz, the immovable property; the fact that ASSA, the only
secured creditor in the insolvent estate had paid a
contribution as there was a shortfall and further that the

7
applicant had already received his fees from the sale of the
immovable property which was the only asset in the insolvent
estate.
4.2 On the other hand, Adv Neukircher SC, appearing for the
respondent, submitted that the respondent acted properly in
refusing to increase the applicant's remuneration as the
applicant failed to prove "good cause" as required by section
6(3) of the Act. In particular, Adv Neukicher argued that the
respondent was correct in finding that this insolvent estate
was a simple estate, consisting of one asset only and that
there were no complications involved in its administration
including the preparation of the First and Final Liquidation and
Distribution Account of 8 April 2005 together with the
Amended First and Final Liquidation Distribution and
Contribution Account dated 14 July 2005.
4.3 In further support of her submissions, Adv Neukircher pointed
out to a number of unsatisfactory features in the applicant's
account, i.e., the fact that the applicant claimed a fee for
attending the first meeting of creditors and travelling on 27
October 2003 when in fact there was no such attendance

8
either by the trustee or any of this employees; further that the
applicant claimed a fee for attending the second creditors
meeting; when in fact there was no attendance by the trustee
or any of his employees; that it was it was incorrect if not
improper for the trustee to claim a fee in his account for 130
minutes for meetings which did not attend.
5.
CONCLUSION
5.1
It is clear to me that the decisive concept herein is "good
cause". It is worth mentioning that both counsel were agreed
that the concept "good cause" is a nebulous if not elastic
concept which defies precise definition. However it is clear to
me that what is envisaged by section 6(3) are factors which
are exceptional or cogent enough to persuade the Master
that there is a need for an increase of a trustee's
remuneration to meet the threshold of "reasonable
remuneration "as required by section 6(3). To my mind, it is
axiomatic that in order to determine whether there is "good
cause" or not the Master has to consider all facts which have
a bearing on the administration of the estate. I have no doubt
that the actual time spent in the administration of such an
insolvent estate, is one of the crucial facts to be considered

5.2
9
together with other factors like the size and complexity of the
estate; the kind of assets in the estate (e.g. whether there
are movables, immovables, shares, securities etc); the
degree of any difficulties encountered by the trustee; the
amount of work done etc. However as the respondent
correctly pointed out in her affidavit, one cannot consider
time in vacuo. Merely to admit time-based claims in general
and indiscriminately would open the door for unscrupulous
trustees to abuse section 6(3) of the Act to the detriment of
the insolvent estate and/or the creditors. Contrary to the
submission made forcefully by Mr Terreblance, I did not
understand the respondent's stance to be that the actual
time spent is irrelevant when considering whether the
remuneration payable to a trustee is reasonable and further
whether there is "good cause" for increasing such
remuneration.
I agree with the respondent that, given the fact that both
parties are agreed that this was a simple estate, comprising
of one immovable property only which was sold on auction
and further that there was only one secured creditor who
paid a contribution, there is no justification for the amount of

10
time allegedly spent by the trustee on the administration of
this insolvent estate. I agree with the respondent that it would
be too risky to accept a general statement that it takes a
minimum of approximately 30hrs to finalise even the most
simplest of estate. Such an approach, without properly
considering the facts of each insolvent estate and any
peculiar problems which required special attention during the
administration of the estate, is in my view, a good recipe for
abuse of section 6(3) by unscrupulous trustees. In my view, it
is imperative that each insolvent estate be considered on its
own facts to determine the existence of “good cause" in
order to ensure that a trustee is paid 'reasonable
remuneration' for services rendered.
5.3
It was submitted by Adv Terreblanche for the applicant, that I
should take cognisance of the fact that the current fee
structure for trustees as provided for in the regulations is
inadequate to enable trustees to pay their overheads. It was
argued that as a result, trustees are unable to make their
practices lucrative. The applicant asserts in his replying
affidavit that in order for the trustees to be able to meet their
overhead expenses, they need a minimum remuneration of at

11
least R25 00, 00 per estate. It is asserted that I should rule
that this amount represents what a reasonable remuneration
implies in terms of section 6(3) of the Act even in what one
might describe as small or simple estates. To my mind, this
argument is fallacious. A trustee is remunerated for actual
services rendered and not on the basis of a minimum fee
structure to enable him or her to pay overhead expenses or
even run a lucrative practice.
5.4 It should be abundantly clear that I am not called upon to
determine in general, what a reasonable remuneration is for
trustees of insolvent estate. In any event, even if I wanted to, I
do not think that I am authorised or competent to do that. As
Mr Terreblanche correctly conceded such determination
relates to policy decisions which fall outside the scope of my
judicial functions. All I am required to do in casu is to
determine on the cold facts of this case, whether the
respondent misdirected herself in finding that the applicant
failed to prove "good cause" to justify an increase of his
remuneration bearing in mind the circumstances of this case.
Alternatively, I have to determine whether in refusing to
approve the increase of the applicant's remuneration, the

12
respondent took irrelevant facts into consideration or failed to
consider relevant facts. For purposes of this case, I accept
that I have wide powers as provided for in section 151 of the
Act, which gives me a wide discretion than in ordinary reviews
to review the respondent's decision.
5.4
Having given this matter careful consideration, it is clear to
me that the respondent correctly and properly took into
account all relevant facts into careful consideration before
arriving at the decision that there is no "good cause" to
increase the applicant's remuneration. I do not think, even by
any stretch of the imagination, that it can be argued that the
respondent, was wrong or misdirected herself in considering,
amongst others, facts such as that this insolvent estate is
fairly simple; that there was one immovable property only;
that this property was sold on auction; that there was only
one secured creditor; that the secured creditor had to pay a
contribution and further that the applicant had already
received a fee for the sale of the immovable property.
5.5
It is abundantly clear that given the above-stated facts, the
respondent was of the view that the applicant was not

5.6
13
justified in expending 29 hours on such a simple estate. In
this regard, I am in respectful agreement with the respondent
that the size and nature of this insolvent estate does not
justify the time allegedly spent on its administration. Contrary
to what Mr Terreblanche submitted, I am satisfied that the
respondent duly considered and accepted the principle of
time-based claims as clearly set out in Nel and Another NNO
v The Master (ABSA BANK LTD & INTERVENING) 2005 (1)
SA 276 (SCA) where the following at p 284 i:
"	... The tariff serves as a point of point of departure for
the determine action of the appropriate fee. However, once
taxation is complete, the Master has a flexible discretion to
increase or decrease the amount of remuneration arrived at
by the previous application of the tariff- the jurisdictional facts
for the exercise of this discretion is the forming by the Master
of the opinion that "good cause" exist for doing so	..."
I find it necessary to emphasise that section 63(1) and (2)
like it's counterpart, to wit section 684(1) and (2) of the
Companies Act 61 of 1973, must be read carefully and in its
correct perspective. It is clear from the two sections that the

5.7
14
starting point for the Master is the tariffs which are statutorily
prescribed. The Master is obliged to determine "reasonable
remuneration" for the trustee or liquidator against the set
tariff. Once the Master has finalised the taxation, then he/she
can use his/her discretion either to increase or decrease
fees, depending on the existence of "good cause".
In order to be able to exercise his/her discretion properly, it
should be accepted that the Master must have a free hand to
determine which relevant facts to consider in determing
whether there is a "good cause" either to increase or
decrease the
remuneration.
As it was clearly and
authoritatively stated in Nel's case supra, the time spent by a
trustee or liquidator in administering the insolvent estate, is
but one of the facts from a myriad of other facts to be
considered by the Master. It is clearly wrong and improper to
suggest that time spent on the insolvent estate can be
considered in isolation or even be regarded as the dominant
or decisive factor. I venture to state that where excessive
time is spent on the administration of an insolvent estate
than is justified either by the size, nature or complexity of the
estate or where imaginary as opposed to real or genuine

5.8
15
difficulties were encountered in the administration of the
estate, the Master is free to refuse to accept that as "good
cause", otherwise unscrupulous trustees would be able to
record more time than they can justify. I believe the same
holds true for the number of people assigned to work on an
insolvent estate. In my view, it is senseless and illogical to
have many people, some with high qualifications to
administer a simple estate where there is no need for such.
Self-evidently, the people working on a particular estate must
be justified by the size and complexity of the estate. These
are the kind of dynamics or considerations which make it
imperative for the Master to be vigilant and to apply his/her
mind properly to all facts which may be put before him as
"good cause" to justify an increase of the trustee's
remuneration. I am satisfied, on a careful perusal of the facts
of this case that the respondent applied her mind properly to
all the relevant facts which were put before her.
I am furthermore satisfied, contrary to what was asserted by
Mr Labuschange that the Master, in determing whether the
applicant had shown "good cause" for an increase of his
remuneration, in casu, was actually aware and properly

6.
6.1
16
considered the judgement in Nel's case (supra). This is clear
from the respondent's letter dated 29 September 2005
marked "Annexure L" and which is attached to the papers. I
find that the criticism against the respondent was ill
conceived and unjustified. It follows, in my view, that the
respondent acted correctly in the manner in which she dealt
with the applicants request for an increase of his
remuneration.
COSTS
Adv Neukircher argued for a punitive cost order against the
applicant. Amongst others, Adv Neukircher argued that the
applicant proved himself to be less frank and candid with the
court by claiming payment in respect of services which he
knew he did not render. She argued that the applicant, being
a
and
attorney-cu m-i nsolvency
experienced
senior
practitioner should have known better that he has a duty of
uberrima fidei to the court. Furthermore, she submitted with
vigour that the conduct of the applicant amounts to an abuse
of the process of this court. She pointed out to the fact that
the applicant raised new and irrelevant material in his
replying affidavit which unnecessarily made this application

6.2
17
prolix and voluminous. I agree with Adv Neukircher, that for
instance, issues relating to the alleged BEE component of
the applicant; the opinions of other senior trustees regarding
the reasonable minimum fees of trustee; the overhead
structure of the applicant's practice were patently irrelevant
for purposes of determing the issue in this matter.
Regrettably, some of those facts impelled the respondent to
seek leave to file a duplicating affidavit to deal with the new
issues raised by the applicant in his replying affidavit. The
end-result of this is that the court was forced to read
irrelevant material.
In the course of his submissions, Mr Labuschagne
contended that I should find that this matter is of great
significance not only to the applicant but to the entire
profession of trustees and liquidators. Based on this, he
contended that I should consider this case as a test case for
them. With respect, I disagree with Mr Labuschagne. Firstly,
there is no indication on the papers that this is a class action.
On the contrary, it is clear from the papers that this
application was brought by the applicant in his own personal
capacity and for his own personal benefit for an increase of

18
his remuneration. It is abundantly clear that what the
applicant seeks is an increase of his remuneration for the
benefit of his practice. Evidently, the applicant is not acting
on behalf of any other person or entity except himself. I
venture to state that even the citation Johannes Frederick
Klopper NO is erroneous and seriously misleading as the
applicant is not acting on behalf of the insolvent estate nor in
the interests of the creditors of the insolvent estate. There is
no doubt that the applicant acted in his personal capacity
and for his own personal interests. As it was aptly remarked
by Van Heerden AJA (as she then was) in Nel's case (supra)
at p 298 F:
"Indeed, the appellant was -and still are-acting
against the interests of the creditors, solely for
their benefit. This being so, there is no reason why
the costs of the review application or of the appeal
should be borne by the company in liquidation."
Suffice to state that I am in respectful agreement with the above
quoted dictum.

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To sum up, I am satisfied, on the admitted evidence that the
respondent properly considered all the facts put before him by the
applicant. I am furthermore satisfied, given the circumstances of
this case, that the respondent was correct in finding that the
applicant failed to prove "good cause" to justify an increase of his
remuneration and in refusing to approve such an increase of his
remuneration.
In the result, and for the reasons adverted to above, the following
order is made:
"The application for review is dismissed with costs, including
the costs consequent upon the employment of senior
counsel, such costs to be paid by the applicant in his
personal capacity and on the attorney and client scale"
L O BOSIELO
JUDGE OF THE HIGH COURT

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Heard on the: 30 May 2007
For the Applicant: F. H Terblanche SC
Instructed by: Van Zyl Le Roux & Hurter ING
13de Vloer, Salu Gebou
h/v Andries & Schoeman Strate.
For the Respondent: B Neukircher SC
Strydom & Bredenkamp ING
Groenkloof Forum Kantoor Park
George Storrar Rylaan 57
JUDGEMENT DELIVERED: