THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No:  635/09

In the matter between:

MARGARETHA ALETTA RAS NO                                                First Appellant
MARGARETHA ALETTA VISSER (BORN RAS) NO              Second Appellant
PIETER VISSER NO                                                                     Third Appellant

v

NICOLINE VAN DER MEULEN                                                First Respondent

MASTER OF THE HIGH COURT, PRETORIA                    Second Respondent

Neutral citation:
Ras v Van der Meulen (635/2009) [2010] ZASCA 163
(1 December 2010).

Coram:
Lewis, Shongwe and Leach JJA, Ebrahim and K Pillay AJJA
Heard:
9 November 2010
Delivered:
1 December 2010

Summary:  Trust – first respondent not entitled to seek removal of trustees
unless a beneficiary – issue whether she is a beneficiary not decided by
high court – matter remitted to high court to determine the issue.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from: North Gauteng High Court, Pretoria (Ledwaba J sitting as court
of first instance).

The following order is made:

1.
The applicants are granted leave to appeal to this court.
2.
The appeal is upheld to the extent that the order made by the court a quo
on 14 January 2009 is set aside and replaced with the following:
‘(a)
The application is referred for the hearing of oral evidence on a
date to be arranged with the Registrar, on the questions whether or
not the applicant, Nicoline Van Der Meulen, is a beneficiary of the
Bokfontein Trust or whether she has been validly removed as a
beneficiary of such trust.
(b)
The evidence shall be that of any witness whom the parties or
either of them may elect to call, subject, however to what is
provided in para (c) hereof;
(c)
Save for witnesses whose evidence is already on affidavit in this
application, neither party shall be entitled to call any witness unless:
(i)
It has served on the other party at least 15 (fifteen) days
before the date appointed for the hearing (in the case of a
witness to be called by the applicant), and at least 10 days
before such date (in the case of a witness to be called by the
respondent), a statement wherein the evidence to be given
in chief by such person is set out; or

(ii)
The court, at the hearing, permits such person to be called
despite the fact that no such statement has been so served
in respect of his evidence;
(d)
Either party may subpoena any person to give evidence at the
hearing whether such person has consented to furnish a statement
or not;
(e)
The fact that a party has served a statement in terms of (c) above,
or has subpoenaed a witness, shall not oblige such party to call the
witness concerned;
(f)
Within 30 (thirty) days from the date of this order, each of the
parties shall make discovery on oath of all documents relating to
the issues referred to in para (a) hereof, which are or have at any
time been in the possession or under the control of such party.
Such discovery shall be made in accordance with Rules of Court
35(1) and 35(8) and the provisions of Rule 35 with regard to the
inspection and production of documents discovered shall be
operative;
(g)
The incidence of costs incurred up to date shall be determined after
the hearing of oral evidence.’
3.
The costs occasioned by the application for leave to appeal and the
appeal shall be costs in the cause.

________________________________________________________________

JUDGMENT
________________________________________________________________

LEACH JA (Lewis and Shongwe JJA, Ebrahim and K Pillay AJJA concurring):

[1] This is an application under s 21 of the Supreme Court Act 59 of 1959
which was set down for argument in this court. The applicants seek leave to

appeal against a judgment of the North Gauteng High Court holding that the first
respondent has sufficient interest in the subject of the proceedings to entitle her
to seek relief, the high court having refused leave to appeal.

[2] The applicants proceed in their capacities as trustees of the ‘Bokfontein
Trust’ (‘the trust’). Established inter vivos by the first respondent’s late father, its
principal asset is the farm Bokfontein in the district of Brits. The applicants are,
respectively, the first respondent’s mother (the first applicant), her sister (the
second applicant) and her sister’s husband (the third applicant). The Master, who
is cited as second respondent, has played no part in these proceedings and for
convenience I intend to refer to the first respondent as ‘the respondent’ and to
the applicants, who were the respondents in the court a quo, as ‘the trustees’.

[3] In October 2008, the respondent launched motion proceedings in the high
court in which she alleged that she was a capital beneficiary of the trust and
applied for an order removing the trustees, contending they had acted in bad
faith in the performance of their duties She also sought an order obliging the
Master to carry out an investigation into the trustees’ administration of the trust
under s 16 of the Trust Property Control Act 57 of 1988 (the Act) and to report
the findings of such investigation both to her and the court.

[4] The trustees opposed this relief, denying any improper conduct on their
part. For present purposes it is unnecessary to detail the merits of the dispute in
regard to their alleged mal-administration of the trust. Importantly, the trustees
specifically denied that the respondent was a trust beneficiary and contended
that she was thus not entitled to seek the relief she did. In regard to this issue
they relied upon a trustees’ resolution adopted on 25 March 1999 which
purported to amend the terms of the trust deed by removing the respondent as a
capital beneficiary.

[5] For completeness I should also mention that, on 24 December 2004, the
trust’s founder and the trustees passed another resolution in which they again
purported to vary the trust deed, this time by adding the name of the second
applicant (the respondent’s sister) as a beneficiary after the name of the first
respondent. The trustees have attempted to explain this by stating that all
concerned had forgotten about the March 1999 resolution. Furthermore, on 4
November 2008, after the institution of proceedings in the court below, the
trustees passed another resolution in which they purported to withdraw the
amendment of December 2004. This was clearly an ex post facto attempt to
ensure that there was no resolution inconsistent with that of 25 March 1999, and
I did not understand counsel for the applicants to place any reliance upon it.

[6] When the matter came before Ledwaba J in the court below, the trustees
requested him to determine whether the respondent was a trust beneficiary,
arguing that, if she was not, the application had to be dismissed. On the other
hand, the respondent argued that she is a beneficiary and that, before the merits
of the application be decided, the Master should be ordered to investigate the
affairs of the trust and report to the court.

[7] Faced with these conflicting arguments, the learned judge appears to
have attempted to steer a middle course. On 14 January 2009, he ruled that
even if the respondent is not a trust beneficiary, in respect of which he
specifically recorded he had made no finding, she has ‘sufficient interest in the
matter warranting that she can file this application and can request the Master to
carry on an investigation’. He then ordered the Master to carry out an
investigation in terms of s 16 of the Act and to report thereon, and postponed the
application sine die to be later enrolled once such report was available.  It is not
necessary to discuss the terms of further interim relief granted in regard to the
administration of the trust.

[8] The trustees applied unsuccessfully for leave to appeal against this order.
The judge concluded that his order was neither definitive of the rights of the
parties nor disposed of a substantial portion of the relief sought in the main
application, and was therefore not appealable. The trustees then applied to this
court for its leave to appeal.

[9] In opposing leave to appeal, the respondent argued that the order was not
appealable and it is necessary to deal with this issue at the outset. The court
clearly erred in finding that, short of being a beneficiary, the respondent had an
interest in the trust which justified her being entitled to seek the relief claimed. It
is only if she is a beneficiary that she would be entitled to seek the removal of the
trustees, and the respondent correctly did not seek to support the high court’s
contrary conclusion. If the trustees are correct and the respondent is not a
beneficiary, her application would fall to be dismissed. The issue of the
respondent’s status as beneficiary would therefore be determinative of the
parties’ rights, rendering the order granted in respect of those rights appealable.

[10] The court a quo also erred in ordering the Master to carry out an
investigation. Under s 16(1) of the Act, the Master has a wide discretion to call
upon trustees at any time to account to him.1 Section 16(2) further provides that
the Master may, ‘if he deems it necessary, cause an investigation to be carried
out . . . into the trustee’s administration or disposal of trust property’. The
discretion to call for such an investigation vests solely in the Master. It is not
alleged that the Master had in any way acted improperly in the exercise of that
discretion, and it was therefore not competent for the court a quo to direct him to
carry out an investigation.

[11] Accordingly, the appeal against the order must be allowed. It remains to
decide how the dispute should be resolved.

1 Administrators, Estate Richards v Nichol & another 1999 (1) SA 551 (SCA) at 561B.

[12] Counsel for the respondent submitted that the matter should be referred
back to the high court for it to hear evidence to determine whether the
respondent was a beneficiary. The trustees contended otherwise. Alleging that it
was common cause that the respondent had not accepted her nomination as
beneficiary before the 1999 resolution was taken, they relied upon well-known
authorities2 to submit that the trust founder and the trustees had been free to
amend the trust deed in March 1999 and replace the respondent as beneficiary.
They therefore argued that as the respondent had not been a beneficiary of the
trust after the resolution of March 1999, the appeal should be upheld and the
application dismissed.

[13] In advancing their argument, the trustees relied on an allegation they had
made in applying to this court for leave to appeal where they averred that it had
been common cause at the hearing in the high court that the respondent had not
accepted the benefits under the trust before the resolution of 25 March 1999.
Although that allegation was not disputed by the respondent in her answering
affidavit, it is not to be viewed in isolation but in the context of the averments in
the main application. There the respondent alleged that she was a beneficiary of
the trust and, in response, the trustees alleged that although she had been a
beneficiary at the outset (‘aanvanklik ‘n begunstigde van die Bokfontein Trust
was’), she had been removed as she had indicated that she did not want to farm
Bokfontein. It was never suggested either that the respondent had never been a
beneficiary or that she had been removed before accepting any benefit under the
trust. The issue in the high court was never that on which the trustees now seek
to found their case; rather it was whether the respondent had been lawfully
removed as a beneficiary.

[14] It was only when counsel for the trustees filed his heads of argument in
the high court that it was first contended that the respondent had not accepted

2 In particular Crookes NO & another v Watson & others 1956 (1) SA 277 (A) 285E-G and Hofer
& others v Kevitt NO & others [1997] 4 All SA 620 (A) at 623-624.

the benefits under the trust before the March 1999 resolution and that the
founder and the trustees had therefore been fully entitled to amend the trust deed
by removing her as a beneficiary. In supplementary heads of argument, counsel
for the respondent conceded that the founder and trustees of a trust ‘are entitled
to cancel or amend the contract concluded between them at any time prior to the
third party accepting the benefits in terms of the trust deed’. Presumably it was
this concession that gave rise to the allegation in the application for leave to
appeal in this court that it was common cause that the respondent had not
accepted the benefit of the trust. But the matter was then argued not on the basis
that the amendment of the trust deed had taken place before the respondent had
accepted the benefits under the trust but, rather, in regard to the validity of the
resolution of 25 March 1999 in the light of further provisions of the trust deed (an
argument raised in this court as well). It is clear from this that the respondent’s
alleged failure to accept the benefits under the trust before the crucial date of
25 March 1999 was neither a live issue on the papers nor the subject of the
debate in regard to whether she is a beneficiary. There was certainly no formal
admission made by the respondent in that regard, and the bald allegation made
in the trustees’ founding affidavit in the application for leave to appeal in this
court that the issue was common cause, albeit not denied, cannot amount to a
final determination of the issue.

[15] We do not know what information would have been forthcoming had the
issue been properly raised, and it is not without relevance that the respondent
alleged that she conducted part-time farming operations on Bokfontein and paid
certain farming expenses at a time after the trust had been created. At the very
least, these facts are consistent with her having accepted the benefits of the
trust, but one is left to speculate on what further information she could have
relied upon had the issue been properly raised.

[16] Blame for the failure to raise the issue is not something which can be
placed at the door of the respondent. She made the positive averment that she

was a beneficiary; to which the trustees replied that although she had been a
beneficiary, she had been removed. If the trustees wished to dispute that the
respondent was a beneficiary, it was for them to have raised the allegation that
she had been removed before she accepted her nomination. As they now seek to
build a case on a foundation not previously laid, they should be precluded from
doing so.3 Although it may be open to a party to raise a point of law which
involves no unfairness to the other party and raises new factual issues, a point
raised for the first time on appeal on factual considerations not fully explored in a
court below should not be allowed.4

[17] In the light of these considerations, this court should not now dispose of
the appeal by having regard to a point not raised in the court below and in
respect of which the relevant facts have not been properly explored in the
papers.

[18] Moreover, disposing of the matter on the basis that the respondent had
not accepted her benefit, would preclude her from relying on her contention that
no matter what the effect of the March 1999 resolution may be, she was
nominated as a beneficiary by way of the resolution of 7 December 2004.

[19] In these circumstances, it seems to me to be appropriate to remit the
issue whether the respondent is indeed a beneficiary of the trust to the high court
for the hearing of evidence. That would enable the parties to place before court
whatever evidence they consider is relevant to the issue. Although the
respondent suggested a referral should only be made in respect of certain
specified issues, in the light of the uncertainty as to the factual matrix under
which this issue will be decided, it is probably best to grant an order in broad
terms.

3  Administrator, Transvaal & others v Theletsane & others 1991 (2) SA 192 (A) at 195F-196E and
200G.
4 Naude & another v Fraser 1998 (4) SA 539 (SCA) at 558A-E.

[20] In the result, the following order is made:

1.
The applicants are granted leave to appeal to this court.
2.
The appeal is upheld to the extent that the order made by the court a quo
on 14 January 2009 is set aside and replaced with the following:
‘(a)
The application is referred for the hearing of oral evidence on a
date to be arranged with the Registrar, on the question whether or
not the applicant, Nicoline Van Der Meulen, is a beneficiary of the
Bokfontein Trust or whether she has been validly removed as a
beneficiary of such trust.
(b)
The evidence shall be that of any witness whom the parties or
either of them may elect to call, subject, however to what is
provided in para (c) hereof;
(c)
Save for witnesses whose evidence is already on affidavit in this
application, neither party shall be entitled to call any witness unless:
(i)
It has served on the other party at least 15 (fifteen) days
before the date appointed for the hearing (in the case of a
witness to be called by the applicant), and at least 10 days
before such date (in the case of a witness to be called by the
respondent), a statement wherein the evidence to be given
in chief by such person is set out; or
(ii)
The court, at the hearing, permits such person to be called
despite the fact that no such statement has been so served
in respect of his evidence;
(d)
Either party may subpoena any person to give evidence at the
hearing whether such person has consented to furnish a statement
or not;
(e)
The fact that a party has served a statement in terms of (c) above,
or has subpoenaed a witness, shall not oblige such party to call the
witness concerned;

(f)
Within 30 (thirty) days from the date of this order, each of the
parties shall make discovery on oath of all documents relating to
the issues referred to in para (a) hereof, which are or have at any
time been in the possession or under the control of such party.
Such discovery shall be made in accordance with Rules of Court
35(1) and 35(8) and the provisions of Rule 35 with regard to the
inspection and production of documents discovered shall be
operative;
(g)
The incidence of costs incurred up to date shall be determined after
the hearing of oral evidence.’
3.
The costs occasioned by the application for leave to appeal and the
appeal shall be costs in the cause.

____________
L E LEACH
JUDGE OF APPEAL

APPEARANCES

APPELLANTS:

J W Louw SC (with him J J Botha)
Instructed by Van der Merwe Attorneys, Pretoria
Naudes Attorneys, Bloemfontein

RESPONDENT:

M Helberg SC
Instructed by Louis Benn Attorneys, Pretoria
Lovius Block, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT
OF APPEAL
From:  The Registrar, Supreme Court of Appeal
Date:
1 December 2010
Status:  Immediate

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal

MARGARETHA ALETTA RAS NO & OTHERS
V
NICOLENE VAN DER MEULEN & ANOTHER

The first respondent, Mrs Nicolene van der Meulen, instituted proceedings in
the North Gauteng High Court for an order removing the appellants as trustees
of a trust. When the matter came before court, the judge hearing the matter
was first asked to rule on whether respondent was in fact a beneficiary of the
trust as, if she was not, she was not entitled to seek the removal of the trustees.

While specifically recording that he made no finding in regard to whether the
first respondent was a trust beneficiary, the judge concluded that she had
sufficient interest in the matter to warrant her bringing the application. He then
ordered the Master of the high court to carry out an investigation into the affairs
of the trust’s administration under s 16 of the Trust Property Control Act 57 of
1988, and postponed the application to enable that report to be filed before
finally dealing with the matter.

The appellants appealed against this order. The respondent argued that the
order was not appealable. The SCA today concluded that the matter was
appealable. It also concluded that in order to be entitled to seek the trustees’
removal, the first respondent had to be a beneficiary of the trust and that the
court a quo had erred in concluding that without her being a beneficiary she
was entitled to seek relief. Finally it concluded that the high court had erred in
granting an order against the Master without it having being alleged that the
Master had acted improperly in any way.

The order of the high court was therefore set aside and the matter remitted to
the high court to hear evidence to determine whether the first respondent was a
beneficiary of the trust.