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IN THE HIGH COURT OF SOUTH AFRICA

[NORTH GAUTENG HIGH COURT, PRETORIA]

CASE NUMBER:  53177/13

DATE: 6/10/2015

In the matter between :

MAGDALENA ALETTA SAAIMAN NO                                        FIRST APPLICANT

MAGDALENA ALETTA ENGELBRECHT NO                                      SECOND APPLICANT

HERCULUS PHILLIPPUS SAAIMAN NO                                       THIRD APPLICANT

SUSANNA JOHANNA BIRKHOLTZ NO                                                FOURTH APPLICANT

NICOLAAS JACOBUS SAAIMAN NO                                                      FIFTH APPLICANT

MADALENA ALETTA SAAIMAN                                                                SIXTH APPLICANT

and

ANETTE ELIZABETH SAAIMAN                                                           FIRST RESPONDENT

PETRUS JAKOBUS VAN SCHALKWYK NO                                SECOND RESPONDENT

ANETTE ELIZABETH SAAIMAN NO                                                    THIRD RESPONDENT

PETRUS JAKOBUS VAN SCHALKWYK NO                                  FOURTH RESPONDENT

MASTER OF THE HIGH COURT, PRETORIA                                      FIFTH RESPONDENT

JUDGMENT

A.J. LOUW AJ

[1] On 23 April 2012 Vorster, AJ made an order in the following terms:

"1.  Die eerste respondent word ge/as om onmiddellik die bedrag van R1 393 222.00 aan die Saaiman Trust nommer IT2911/95 te betaal;

2. Die eerste respondent word gelas  om rente  op  die  vermelde bedrag te betaa/ teen die koers van 15,5% per jaar, bereken vanaf 5 Desember 2007 tot datum van beta/ing;

3. Die tweede respondent word verwyder as trustee van die Saaiman Trust IT2911/95;

4. Die eerste respondent word gelas om die applikante se koste betaa/." (Hereinfurther referred to as "the order).

[2] The First Respondent referred to in the order is the First Respondent in this application.

[3] At the inception of the argument in this matter Mr Van der Merwe SC who argued the matter on behalf of the Applicants informed me of recent developments in the matter. Firstly he handed up a letter dated 20 April 2015 from the Fifth Respondent explaining the actions of the First Respondent and which letter also has attached to it the latest letters of authority to the trustees of the Saaiman Trust IT2911/95 (hereinfurhter referred to as "the Saaiman Trust"). The Saaiman Trust is also the Saaiman Trust referred to in the order. In terms of the letter and the attached letters of authority the Fifth Respondent elected to add trustees to the as at 8th April 2015 existing five trustees of the Saaiman Trust. In terms of the 9 April 2015 letters of authority a total of eleven persons are the trustees of the Saaiman Trust.

[4] The non-joinder of the additional trustees was rectified in that written consents by the trustees who are not parties in this application to be bound by the judgment were handed up and are in the court file. Accordingly the question of non-joinder was rectified in this fashion and I accordingly am in a position to adjudicate the matter without the matter having to be postponed for a formal joinder of the additional trustees as appointed on the gth April 2015. This approach is in conformance with the approach in the judgment  in Amalgamated   Engineering  Union   v Minister of Labour 1949 (3) SA 637 (A).

[5] The eleventh trustee as appointed in terms of the letter of authority dated the 9th April 2015 is Mr Pieter Francois Wolmarans, being the attorney of record of the First to the Fourth Respondents. Mr Wolmarans indicated that he did not know of his appointment and undertook to resign as trustee and also abstained from voting at a meeting of the trustees of the 30^th April 2015.

[6] The purpose of the meeting of the 30th April 2015 was to decide upon the question whether these proceedings must be discontinued. Five votes were. in favour of proceeding and five votes were against these proceedings and accordingly a deadlock occurred. I must thus adjudicate the dispute.

[7] The Applicants apply for the following relief:

7.1         That the First Respondent be declared in contempt of paragraphs 1 and 2 of the order;

7.2         That the First Respondent be sentenced to imprisonment;

7.3         That the  Second Respondent be removed as a trustee of the Saaiman Trust;

7.4         That the First to the Fourth Respondents pay sufficient funds from the Jupiter Trust IT2912/95 to meet both the capital amount and the interest referred to in the order to the account of the attorneys of record of the Applicants;

7.5         That an interdict be issued against the First  Respondent prohibiting her from alienating immovable properties;

7.6         That the First Respondent be ordered to pay the costs of the application on an attorney and client scale and if there are opposition by the Second, Third and Fourth Respondents that they be ordered de bonis propriis to pay the costs on an attorney and own client scale.

[8] The Saaiman Trust, the Oudtshoorn Trust and the Jupiter Trust are three trusts wherein the First Respondent is involved. I do not regard it necessary to give a lengthy discussion as to the relationship between the said trusts and their trustees. Suffice to say that the Jupiter and the Oudtshoorn Trusts are both relevant in these proceedings in that the funds that Vorster AJ ordered to be paid to the Saaiman Trust eventually landed up as being invested under the Jupiter Trust and the Oudtshoorn Trust. In this regard the relevant documentation confirming the investment of monies with institutions known as Onecor and Cambist are attached to the founding papers at paginated papers 166 to 178.

[9] The numerous allegations and counter allegations  by the  parties are mostly not relevant for purposes of adjudication of this dispute.

[10] The case of the Applicants is that the First Respondent is in contempt of court in that she did not pay the amount of R1 393 220.00 plus interest thereon to the Saaiman Trust as ordered by Vorster AJ in the order. Mr Van der Merwe SC conceded that if the contempt is not proven, then the Applicants have no case in this matter. I agree with this concession. The First Respondent's defence is that she indeed did pay the amount referred to in the order plus interest and she explains in paragraph 41 of the answering affidavit as follows:

10.1       The order was made on the 24th April 2012.

10.2      She paid over the amount of R2 137 000.00 being the amount as ordered in prayer 1 of the order plus interest to the Second Respondent.

10.3       In terms of the order the First Respondent was removed as a trustee of the Saaiman Trust on the 24th April 2012.  That left Mr Van Schalkwyk as the sole trustee for the time being of the Saaiman Trust.

10.4      The First Respondent paid the amount of R2 137 000.00 to the Second Respondent in his official capacity as the then only trustee of the Saaiman Trust. The Second Respondent under his signature and the signature of the First Respondent acknowledged receipt of the R2 137 000.00 on the 1ih June 2012. The receipt is attached at page 64 of the paginated papers. It reads as follows:

"Hiermee erken ek, Petrus Jacobus van Schalkwyk, ontvangs van die bedrag van R2, 137,000.00 namens die Saaiman Trust IT2911/95, ter vereffening van die uitspraak van saaknommer 70566110."

10.5      The First Respondent says that at that moment the court order had been complied with.

10.6      Then the Second Respondent acting in the best interest of the Saaiman Trust invested the trust funds in two investment houses being Onecor (Pty) Ltd and Cambist (Pty) Ltd.

[11] The Second Respondent in a confirmatory affidavit confirms the evidence of the First Respondent.

[12]  The trust deed of the Saaiman Trust requires that there must always be at least two trustees. (Clause 4.2). In terms of clause 4.3, should the number of trustees fall below the minimum number (being two) the existing trustees must appoint further trustees within 60 days. Alternative possibilities are mentioned in clause 4.3 that are not relevant for purposes of the judgment. What is of importance is the final sentence of clause 4.3 of the trust deed that reads as follows:

"Tot tyd en wyl die vakatures aangevul is, is die oorblywende trustee of trustees gemagtig om alle magte van trustees uit te oefen vir die behoud van die trust bates."

[13] Additional trustees in the persons of the First to the Fifth Applicants were appointed together with the Second Respondent by the Fifth Respondent on the gth May 2013.

[14] Accordingly as at 17 June 2012 the only trustee of the Saaiman Trust was the Second Respondent. At the time he was the only person to whom the First Respondent could lawfully have made payment as ordered in terms of the order of Vorster AJ. In this regard a debtor is only discharged if he or she can show that he or she has made payment to a person recognised by law as competent to receive the payment in discharge of the particular obligation.

See:     Harrismith  Board  of Executors  v  Odendaa/ 1923 AD 530  at 539.

[15] If payment is disputed, the onus is on the debtor to prove that he or she has paid and that the payment relates to the debt in question.

See:     Pi/lay v Krishna 1946 AD 946 at 958.

[16] The Applicants dispute the payment and refer to a number of incidents demonstrating, according to the Applicants, ma/a fides on the part of the First Respondent and alleges that there was indeed no compliance with the order.

[17] I cannot agree with the Applicants. On the face of it there is under oath evidence that the amount was indeed paid. There is a receipt confirming acceptance of the payment of the amount ordered in terms of the order by the Second Respondent. The Second Respondent, as he was obliged to do received the payment and, on the documentation before me, invested the amount so received from the First Respondent with Messrs Onecor and Cambist. (Whether the decision to so invest was prudent, is not the question in this matter.)

[18] It is alleged that the Second Respondent is the puppet of the Applicant. On the papers this is disputed.  I cannot find in the disputed nature of this application that the Second Respondent is indeed a puppet of the First Respondent.

[19] This is a case where the principles enunciated in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) 634 - 635 are applicable. Where in motion proceedings disputes of fact arise on the affidavits a final order can be granted in favour of the applicant only if the facts averred in the applicant's affidavits, which have been admitted by the respondent, together with the facts alleged by the latter, justify such order. Where the respondent's version consists of bold or uncredit­ worthy denials and raises fictitious disputes of fact, is clearly implausible, farfetched or so clearly untenable that it could be rejected on the papers, then and only in those cases can an order be made in favour of the applicant.

[20] Accordingly, insofar as there is a dispute of fact regarding the payment, the matter must be adjudicated on the papers. In the circumstances it is principally adjudicated on the version of the First Respondent and the Second Respondent except if I can find that I can reject their version without more. That Isimply cannot do. There may be suspicions against the First Respondent. That does not necessarily also apply to the Second Respondent. On the evidence the Saaiman Trust received the funds as ordered in the order. The evidence is that those funds were invested with Onecor and Cambist and supporting documents support that version. No party (especially not the Applicant) requested that the matter be referred to evidence or trial and the Applicant did not exercise its right to apply for discovery in terms of Rule 6 read with Rule 35(13).

[21] In the circumstances there simply is nothing,  except allegations and counter allegations, to refute the version of the First Respondent as supported by the Second Respondent. I take into consideration that the Second Respondent is a trustee of the Saaiman Trust who acts under threat of liability for breach of fiduciary duties both in terms of the common law and in terms of the Trust Property  Control Act 57 of 1988.

[22] To this must be added the fact that the onus of proof of contempt of court is since the judgment of Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 the criminal onus of proof, namely beyond reasonable doubt.

See: par 90 of the Fakie-judgment

[23] In this case the Applicants failed to prove non-compliance with the order. There accordingly cannot be any question of contempt of court on the evidence before me.

[24] The matter was not raised in argument but on the evidence it appears to me to be questionable whether the application was properly authorised having regard to the requirements of the number of trustees and in particular the fact that all trustees must have the opportunity to take part in the  decisions  of  the  trustees  where  they  may  decide  matters  by majority vote.

See:     Land and Agricultural   Development  Bank  of SA v Parker and Others 2005 (2) SA 77 (SCA) at par 9 - 12.

[25] Insofar as Parker's case is concerned, Mr Van der Merwe SC argued that the Second Respondent could not make the investment. On the trust deed I find that he could have done so, him being the only trustee at the time who is entitled in terms of the trust deed to act to preserve the trust's assets. Again I say that whether it was a good or a bad decision to make the particular investment is not the question at this time.

[26] I leave aside the question whether the order obliges the First Respondent to make payment of a money debt or whether the order is an order ad factum praestandum as it is not necessary to decide that question for purposes of the matter in the light of my findings above.

[27]  Where the Applicants have not proved contempt of court, the foundation for all the relief sought falls away and the Applicants are not entitled to any relief.

[28] The First to the Fourth Respondents made submissions, through Mr Niemann who argued the matter on their behalf, that the appointment of the First to the Fifth Applicants by the Fifth Respondent is irregular.   In terms of the Trust Property Control Act 57 of 1988 ("the Act"), the Fifth Respondent is entitled to appoint further trustees if he considers it desirable.

See:   Section 7(2) of the Act.

I find that there is no merit in this argument.

[29] Secondly Mr Niemann argued that there must be a stay of proceedings for purposes of an order that the Fifth Respondent file a comprehensive report on the actions of the Fifth Respondent in this matter.

[30] The High Court has inherent jurisdiction to stay proceedings where there is an abuse of the court process.  Hudson  v Hudson 1927 AD 259 at

268. There is no case made out for a stay of proceedings and accordingly there is no merit in this contention.

[31] The Sixth Applicant's locus standi is attacked. Locus standi is not to be equated to authority and quite clearly, in view of her position as a beneficiary listed in the trust deed of the Saaiman Trust, the Sixth Applicant would have locus standi to bring this application.

See:     Harris and Others v Rees and Others [2010] 4 All SA 603 (GSJ) at p606 - 607.

Accordingly there is also no merit in this contention.

[32] The question of costs remains. There is no reason to deviate from the normal rule, namely that the unsuccessful party is liable for the costs incurred. In the circumstances the First to the Sixth Applicants must be found liable for the costs of the application.

[33] I accordingly make the following order:

1.      The application is dismissed.

2.      The First, Second, Third, Fourth, Fifth and Sixth Applicants are ordered to pay the costs of the applicat.

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LOUW AJ

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