IN
THE HIGH COURT OF SWAZILAND
Held
at Mbabane
Civil
Case No. 1973/2003
In
the matter between
BEUKES
LODEWIKUS WILLEMSE N.O. Applicant
And
JEREMIJA
DE LA ROUVIERE RENS N.O. First Respondent
THE
MASTER OF THE HIGH COURT, SWAZILAND Second Respondent
THE
MASTER OF THE HIGH COURT,
PIETERMARITZBURG
Third Respondent
Coram
Annandale, ACJ
For
Applicant Adv. P.Z, Ebersohn
Instructed
by P M Sbilubane.
For
First Respondent Advocate P.E. Flynn,
Instructed
by Robinson Bertram Attorneys
For
Second and Third Respondents No Appearance
6th
February 2004
2
This
is an application in terms of Section 84 of the Swaziland
Administration of Estates Act, 1902 (Act 28 of 1902) (the "Act")
wherein the applicant, one of the two co-executors, applies for the
removal of the other co-executor in the deceased estate of the late
Petrus Joubert van der Walt, estate No. E.H. 183/98. The deceased, a
farmer at Kubuta aged 93 at the time of his death, passed away on the
24th January 1998. The co-executor, Rens (first respondent)
vigorously opposes the application for removal while the two Masters
of the High Court, both in Swaziland and Pietermaritzburg, South
Africa, indicated in their papers filed of record that they will
abide by the decision herein reached.
Section
84 of the Act which regulates the removal of executors reads that:-
"Every
executor, tutor or curator shall be liable to be suspended or removed
from his office by order of the High Court, if such court is
satisfied on motion, that by reason of his absence from Swaziland,
other avocations, failing health, or other sufficient cause, the
interests of the estate under his care would be furthered by such
suspension or removal; provided that in every case of suspension the
court may substitute some fit and proper person to act during such
suspension, in his place... " (my emphasis).
The
terms of the Will of the deceased are not in issue as far as the
present matter is concerned. He therein nominated both the applicant
and first respondent as co-executors of his estate. Both were
eventually appointed as co-executors by the Masters of the High Court
in Swaziland and at Pietermaritzburg, South Africa, as assets were
left in both countries respectively estate number E.H. 183/98 and
1368/98.
As
is often done, but without any formal sanctioning or of legally
binding consequence, the co-executors made practical arrangements
inter partes to facilitate the business of winding up the estate.
Essentially, it entailed that the applicant would oversee and
administer the South African assets while the assets in Swaziland
would be administered and taken care of by the first respondent. Such
a working arrangement is practicable and in order, but it does not
dispense with any legal requirements or separate the estate. As
co-executors, mutual agreement on the affairs of the estate remains
to be kept intact and the co-executors do not acquire the powers
3
or
abilities that a sole executor may have had. They do not by such
working arrangement become two separate sole executors of one and the
same deceased estate.
A
South African accountant, Mr. Vos, was employed to assist in the
administration of the South African part of the estate. On the 11th
February 1999 the first liquidation and distribution account was
signed by the co-executors, Willemse and Rens, and approved of by the
Master in South Africa. Thereafter, on the 29th September 1992 the
second and final liquidation and distribution account was co-signed
by the applicant and first respondent in their nominal capacities as
co-executors of the estate, which was likewise approved by the Master
in South Africa.
Both
these accounts dealt with the assets of the estate in both Swaziland
and South Africa, except the farm at Kubuta, Swaziland.
Unless
an extension is granted by the Master, on application, the Act
requires under Section 52 that the liquidation and distribution
account of a deceased estate is to be filed by the executor within a
period of six months after his/her/their appointment, otherwise
liability for criminal prosecution arises.
Despite
this legal requirement, the first respondent prima facie did not
comply with the Act. Six months came and went without a liquidation
and distribution account being filed with the Master of the High
Court in Swaziland. Since their appointment to date, without any
extension having been applied for, as far as the papers before court
indicate, no account has yet been filed and there is no indication of
any steps taken by the Master to rectify the situation. The Registrar
of the High Court is directed to bring this to the attention of the
Master forthwith, who is to report within 7 days to the Court via the
Registrar why this matter was not expedited and why the appointed
co-executors were not compelled to comply with the requirements of
Section 52 of the Act, and what steps have been taken to avoid
recurrences. The dilatory conduct of duly appointed executors result
in the frustration of countless beneficiaries in Swaziland, causing
unnecessary hardship and costly delays to finalise deceased estates,
including expensive litigation like the matter under consideration.
4
Voluminous
papers have been placed before Court in this application. Applicant
filed a comprehensive and detailed founding affidavit supported by
detailed and explanatory annexures in support of the relief sought. A
bird's eye view of the surrounding circumstances, as placed before
this Court, is given to provide a perspective of the matter.
According
to the papers, during his lifetime the deceased formed a healthy
relationship with the applicant and his brother, one Gideon Trater
Willemse. This resulted in a codicil to his will wherein the deceased
made a bequest to the latter in that "the farm at Kubuta in
Swaziland is let to Mr. Gideon Willemse for 5 years (five years) at a
nominal amount." Following the death of van der Walt, Willemse
took occupation of the farm as tenant in terms of the bequest.
Apparently,
this bequest had a sting to the tail as the first respondent wrote in
the inventory furnished to the Master at Mbabane that the farm was
"abandoned for years, in bad condition." This seems to have
been the result of the farm not being given the proper care and
attention it required for a number of years by the deceased, prior to
his death. It is common cause that the farm was in a neglected state
at the time of dies venit.
The
will of the deceased also contained a complicating clause, dealt with
in the ancillary matter, under civil case number 1974/1993. It
purported to create a trust, namely the "R.O.C. Trust Fund".
The trustees thereof are the applicant, Saunders Douglas Wales and
the daughter of the first respondent, Ms. Madhi Rens. As was proper
to do, the applicant caused copies of the Notice of Motion and the
founding papers herein to be served on the other two trustees, both
of which chose not to apply to be co-joined in this matter.
In
the ancillary matter under civil case number 1974/2003, the same
applicant seeks a declarator that the R.O.C. Trust failed and did not
come into being. The papers in that application are incorporated into
the papers of this application by way of reference. This Court has
also heard that application and will deal with it in a
5
separate
judgment (Civil Case No. 1974/2003), which judgment will be handed
down together with this judgment.
Following
occupation of the farm, the R.O.C. Trust Fund, apparently in view of
the fact that the Trust was to utilise the income of the Trust only
to achieve the objectives of the Trust, entered into a lease
agreement with Willemse on the 29th July 1999 (annexure "N"
to the founding affidavit). With regards to the farm "...let to
(Willemse) for 5 years at a nominal amount", the following is
recorded in the heading:-
"As
per the codicil to the will dated 22 January 1998 the farm Kubuta
(Portion H of the farm Kubuta 222, situated in the Shiselweni
District, Swaziland) was to be leased by G.T. Willemse for a period
of five years at a nominal value. The parties hereto agree that the
codicil was not clear as to terms and conditions and the parties now
agree as follows:"
Conditions
of the lease contract were then set out in annexure "N" as
if the Trust were the owner of the farm.
According
to the papers, the co-executors of the estate did not themselves
enter into a lease of the farm with Willemse, Nor did they have an
agreement with Willemse to cancel the bequeathed five-year lease with
him. For all practical purposes, the testamentary clause prevails,
wherein the deceased bequeathed the farm to Willemse for a period of
five years at a nominal amount.
It
seems to me that the contracting parties laboured under a
misapprehension as to the legal position of their functions as
co-executors of a deceased estate and a beneficiary under the same
will. It is not the Trust, which was to enter into the lease
agreement with Willemse, but the applicant and first respondent qua
co-executors of the estate. The trust had no legal standing or locus
standi to enter into a lease contract with Willemse, who obtained the
right to lease "at a nominal amount" by virtue of a
testamentary codicil. The farm did not stand to be dealt with by the
R.O.C. Fund Trust, as if it was the owner.
6
Subsequently,
on the 30th July 1999, a further "Agreement" was entered
into between Willemse and the R.O.C. Fund Trust (annexure "O").
The
heading of the "Agreement" reads that: -
"The
R.O.C. Fund Trust are the owners of the farm Kubuta (Portion H of the
farm Kubuta 222, situate in the Shiselweni District, Swaziland) by
virtue of the will of the Late Petrus Joubert van der Walt, but the
Trust did not inherit any money from the Estate. The Trustees are
therefore at present not in a position to give effect to the
objectives of the Trust.
The
Trustees of the R.O.C. Fund Trust are wilful to continue with the
Trust as formed by the Late Petrus Joubert van der Walt per his will
dated 13th September 1991. As the Trust does not have financial means
to give effect to the objectives of the Trust, and as G.T. Willemse
is willing to assist the Trustees in obtaining these means, THE
PARTIES HEREBY AGREE AS FOLLOWS:"
It
is clear that the Trust never was the owner of the farm.
In
the "Agreement" it is recorded that the trustees would form
a company in Swaziland and transfer the property into the name of the
company and in the year 2000 the trustees would sell to Willemse 50%
of the issued shares of the company and would also appoint Willemse
as a director of the company. It is also recorded that as the
trustees did not have the finances to give effect to the winding up
of the estate and the formation of the company, Willemse agreed in
the "Agreement" to advance such sums as may be necessary to
give effect to the agreement and the price of the 50% shares would be
E400 000. Of this, E200 000 was payable upon the signing of the share
transfer forms and Willemse's appointment as a director, less amounts
already advanced by him. The further E200 000 was payable not later
than one calendar year after payment of the first amount of E200 000,
free of interest.
It
was further agreed between the parties as to which areas of the farm
would be allocated to the Trust and which to Willemse and that each
party would lease "their
7
part"
of the farm from the company at nominal rates to cover the costs of
the company as may be determined between the parties from time to
time.
Hereafter,
with "his portion" being so defined, Willemse started to
improve "his portion" of the farm at Kubuta. It is common
cause that he started to plant new trees, pruning others and that he
caused electricity to be laid on. Annexure "Q10 (a)" to the
founding papers sets out what Willemse considered to be improvements
and what he costs it out to be. In all, the (subjective) total of
listed improvements amounts to the princely sum of El 022 159 to
which no mora interest has yet been added. This figure is not audited
or otherwise substantially and independently verified, but suffice to
say that it represents a significant financial outlay.
This
agreement was, however, clearly against paragraph l(a)(iii) of the
will of the deceased, which paragraph prohibited the sale by the
Trust of fixed property found in the estate of the deceased.
As
happens in so many ventures, the exercise ran into difficulties. In
time, it transpired that the scheme to use a company as vehicle for
the "agreement" was not possible in terms of the laws of
Swaziland. To complicate matters, against advice, the deceased
foregone professional advice and drew up his complicated will in
"do-it-yourself fashion. A questionable or unworkable Trust was
involved and bequests that exhausted the funds available to the
estate were made. This made it effectively impossible for the Trust
to generate sufficient income to effectively achieve the objectives
of the Trust.
The
farm has two dwellings, one of which Willemse allowed the first
respondent and his wife, Churie to move into. At that stage, the
relationship between them seems to have been sound.
Thereafter,
events took a turn for the worse, with friction arising between
Willemse and the first respondent, as the latter seems to have
started interfering with Willemse's occupation and activities on the
farm. "The pot calls the kettle black", so to speak, as
allegations and counter allegations arose. The friction escalated to
such an extent that whereas the first respondent initially welcomed
Willemse on the farm, the first
8
respondent
apparently became antagonistic towards Willemse and wanted him off
the farm.
Subsequent
thereto, the Trust, by a majority decision, "cancelled" the
lease agreement (Annexure "O" to the founding papers)
basing the "cancellation" on an alleged late payment of the
rent, it allegedly being paid "late" despite the clause of
the codicil not providing for such a remedy and right against
Willemse, in the second place, following non-provision for the
"agreement of lease" in the first place. In this regard,
Willemse, instead of paying the rent on the 31st March 2000, did so
on the 3rd day of May 2000, with an explanation as to why it was
late. Payment was accepted by the Trust, yet it soon thereafter
decided to "cancel" the lease because of late payment. In
the previous year, the Trust also accepted a late payment, but
without such consequence. As said above, the purported "agreement
of lease" between Willemse and the Trust was ultra vires the
provisions of the codicil. It had no binding legal effect between the
parties, as Willemse occupied and leased the farm "at a nominal
rent" in terms of the codicil, and not under the conditions of
the purported lease agreement. Therefore, the Trust could not
lawfully cancel the lease with Willemse as it sought to do.
The
decision to cancel the lease was not taken unanimously by the
Trustees, with the result that the decision was invalid. In COETZEE v
PEET SMITH EN ANDERE 2003 (5) SA 674 (TPA), a significant judgment
delivered sometime ago but only very recently reported, which I
respectfully agree with, van Dijkhorst J. found that there were good
grounds for the rule that trustees had to act jointly and decide
unanimously as assets of a trust were normally transferred in
co-ownership to trustees and that co-owners had joint right of
ownership, use and control of the joint property, that a majority
vote did not apply, and that decisions regarding the property had to
be taken jointly and unanimously to be valid when more than the pro
rata share of the separate co-owners was involved. It is clear that
the decision of the trustees to cancel the lease did not comply with
the norms set out in the COETZEE case. It is clear that the first
respondent actively involved himself in this decision through his
agent, his wife Churie.
9
More
bizarre events seem to have followed. According to Willemse, he was
threatened with forceful removal from the farm by way of legal
action. The court is not aware of any such legal action instituted
against Willemse, from the papers filed of record. Willemse further
claims that he and his workers were prevented from entering the farm
by armed guards, said to have been placed there by the first
respondent. By all accounts, the inescapable conclusion is that the
first respondent was the driving thrust behind the Trust in its
actions against Willemse. Such conduct cannot be condoned and it
reflects in the costs order infra, as a measure of censure of such
conduct. Following his compelled eviction from the farm, Willemse
lodged a substantial claim against the estate. Prima facie, it seems
as if Willemse may have positive prospects in succeeding for
recompense for improvements he effected on the farm bona fides as
well as the possibility of a claim for damages arising from a loss of
income from the farm during the remaining five year period of the
lease, following his eviction.
According
to the filed correspondence between the parties, there were
acknowledgements that Willemse had to be compensated for some of the
improvements, later to be disputed whether he should be compensated
at all. The first respondent also took part in this correspondence.
It should be noted that persons with no legal training caused
agreements to be entered into and caused acts to be done to serious
potential hazard and prejudice of the estate itself. When the
applicant called for professional legal advice Madhi Rens and Wales
scoffed at his suggestion.
Thereafter,
Willemse indicated that he considered taking legal action against the
estate. It is clear that such legal action could become protracted
and very costly. If successful, it could even have as a result that
the estate could lose the farm as an asset and a recovery of monies
paid out to beneficiaries in terms of bequests in the will and
codicils.
In
his founding affidavit, applicant sets out several aspects, which
caused him serious concern. The major one, and main subject of this
application, is to seek the removal of the first respondent as
co-executor of the estate. He tenders to thereafter relinquish his
own appointment as co-executor, seeking the appointment of a
professional executor to resolve the matters of the estate with
alacrity and in accordance with the
10
law,
to the best interest of the estate itself and all persons involved
and concerned. For this, he inter alia relies on the following
aspects and questions: -
A)
Whether the Trust actually came into being or whether it failed;
B)
Whether the Trustees were entitled to deal with the assets or the
estate of the deceased in Swaziland prior to the assets being awarded
to the Trust in an approved liquidation and distribution account, and
in any event without the trustees having had their appointments as
trustees of the Trust in South Africa recognised in Swaziland by the
second respondent.
C)
Should the theorem in "A" supra be answered in the
negative, what then is the legal position and consequences regarding
the "agreement" entered into between by the trustees with
regard to assets of the Swaziland estate which have not yet been
awarded to the Trust?
D)
Is it not so that the amount of the "nominal rent" that had
to be paid for the lease of the farm, was the only aspect that had to
be agreed upon between Willemse and the executors, and were the other
conditions imposed upon him by the "agreement of lease" not
invalid, vis-a-vis the codicil and could the Trust itself have
entered into the "lease" and "sale" with
Willemse, and were these "agreements" binding between the
contracting parties?
E)
Was the first respondent entitled to unilaterally deal with assets of
the estate in Swaziland without the knowledge and consent of the
applicant, qua co-executor, and could the first respondent utilise
assets of the estate in Swaziland for his own benefit?
F)
Was it in the best interest of the estate that the first respondent
acted in the manner in which he did and could the first respondent
impartially and unbiased act on behalf of the estate in view of his
differences of opinion with, and in clear antagonism towards
Willemse, in the way he did, as transpires from the heated
correspondence filed in this matter?
G)
Was it not fit and proper that first respondent be removed as
co-executor from the estate as provided for in Section 84 of the Act
and that the applicant thereafter resign as aforesaid, to have the
matter be dealt with professionally.
11
To
further compound matters, it appears as if the trustees of the Trust
in fact never had their appointments as trustees recognised in
Swaziland by the Master of the High Court in Swaziland, and that
their actions where they purported to act as trustees of the Trust in
Swaziland and to deal with assets of the Trust in the Kingdom were
null and void with the result that the "lease agreement"
(annexure "N") and the subsequent "agreement"
(annexure "O") appears to be null and void ab initio on
that ground alone. Furthermore, the "lease" in itself,
clearly contradicts clause 6 of the codicil, annexure "C3"
to the founding papers, and appears, in that regard, also to be
invalid.
Before
dealing further with the facts of the matter, it is useful to briefly
look at the law relating to the removal of an executor. Such
applications frequently feature on the rolls of this court and are
usually dealt with on an uncontested basis, with the Master filing a
semi-standardised reply.
Section
84 of the Act superseded the common law and the test regarding the
removal of an executor is rather light, the only requirement being
that the interests of the estate be furthered by such removal.
In
his argument on behalf of the first respondent, Mr. Flynn referred
the court to several South African reported decisions, stressing the
argument that the test was not light. These cases were, however,
based on the common law, as the South African administration of
Estates Act, 1913 (Act 24 of 1913), did not contain a clause similar
to that that appears in Section 84 of the Swaziland Act. Such a
clause was only introduced in Section 54(l)(a)(v) of the (new) South
African Administration of Estates Act, 1965 (Act 66 of 1965), which
sub-section reads as follows:-
"(1)
An executor may at any time be removed from his office -(a) by the
Court –
(v)
if for any other reason the Court is satisfied that it is undesirable
that he should act as executor of the estate concerned."
12
Thus,
the current South African test for removal is also light, with it
only being necessary for the applicant to prove on a balance of
probabilities that it is undesirable that the executor should further
act in such capacity.
The
latter version of the South African Act was judicially considered in
DIE MEESTER V MEYER EN 'N ANDER, 1975 SA 1 (T). In that case, the
executor was guilty of misleading and dishonest conduct. There was
also a clash of interest and the executor received benefits from the
estate to which he was not entitled. Margo J indicated at page 16 C -
E that section 54 introduced the "new" ground that in fact
superseded the common law approach. At page 16 E - I the court
referred to PORT ELIZABETH ASSURANCE AGENCY TRUST COMPANY LTD. V
ESTATE RICHARDSON 1965(2) SA 936(C) and quoted with approval what van
Winsen J stated at p 940: -
"/
have no doubt that in the exercise of its power to appoint or remove
an administrator the Court will pay close attention to the wishes of
the testator as expressed in or implied from the terms of the will.
The Court cannot, however, necessarily be bound by these wishes even
to the detriment of the beneficiaries to whose interest it must
equally clearly have regard. "
Margo
J then referred with approval to a passage from Story, Equitable
Jurisprudence: "Courts of Equity have no difficulty in
interposing to remove trustees who have abused their trust."
The
Court (per Margo J) summarily removed Meyer from his appointment as
Trustee stating that it was undesirable that Meyer should act any
further as executor. There is thus not much difference between the
Swaziland and the current South African acts in this regard and in
both countries the Court has a final discretionary say in the matter
of removal of a trustee.
Mr.
Flynn, in his well-prepared Heads of Argument, referred to further
South African cases. He conceded that in terms of the cases of ADAMS
AND OTHERS V JALALDIEN NO 1919 CPD 17 and EXPARTE SULEMAN 1950 (2) SA
373(C), an
13
executor
would be removed by the Court on the grounds of misadministration or
absence of administration.
It
must be pointed out that both cases were decided before the new South
African Administration of Estates Act, No. 66 of 1965, came into
operation, which Act lightened the onus resting upon an applicant. He
also referred to SACKVILLE WEST V NOURSE 1925 AD 516 where the court
dealt with mere negligence and did not remove the executor, the
executor having had an acceptable explanation. The facts of that case
are clearly distinguishable from the facts of the case before this
Court. Relying on the decisions in LETTERSTEDT V BROERS 9 A.C.370 and
the SACKVILLE case Mr. Flynn argued that the test this Court had to
apply was whether the continuance in office would prejudicially
affect the future welfare of the estate and that the first
respondent's removal was not necessary and called for. This Court
disagrees with Mr. Flynn in at least four respects with reference to
the two cases. Firstly, the facts of the two cases and the facts of
the case before this Court are clearly distinguishable, secondly, the
test set out in section 84 of the Swaziland Act is different from
what Mr. Flynn postulated the test to be, thirdly, the proven conduct
of the first respondent is such that he simply cannot remain on as a
co-executor, and, fourthly, the interests of the estate under his
care would be furthered vastly by his removal which is the test laid
down in section 84 of the Act. Mr. Flynn also referred to VOLKWYN NO
V CLARK AND DAMAST 1946 WLD 456 at 464. The facts of that case are
also distinguishable from the facts of the case before this Court. In
the VOLKWYN case the executor gave meticulously detailed answers to
all the allegations made in the papers against him, which reply the
Court accepted. The reference by the Court therein to proof required
of a "dishonest, grossly inefficient or untrustworthy person"
is obiter and given as a mere example and is not part of the ratio
decidendi of the case. The conduct of the first respondent in casu
can, however, and in any case, be classed as "dishonest, grossly
inefficient and untrustworthy". The case of EX PARTE HILLS
1959(4) SA 644 (E) at 547 to which Mr. Flynn also referred does not
assist the first respondent in this regard. With reference to EX
PARTE SULEMAN 1950 (2) SA 273(C) at 376 and 377, Mr. Flynn argued
that the authorities quoted by him indicate that the Court should not
lightly remove the first respondent and that the Court should be
satisfied that if he continued in office, the estate would not be
prejudiced. What Mr. Flynn set out was, however, not the test
14
according
to section 84 of the Act but this Court is in any event satisfied
that if the first respondent continued in office as co-executor the
estate would be seriously prejudiced. Mr. Flynn conceded with
reference to HARMS V FISHER N.O. 1956(4) SA 855 at 862, that an
executor's private interests should not conflict with those of the
estate and that he must not derive a personal benefit from the manner
in which he has managed the estate. The Court is satisfied that the
applicant succeeded in proving that the first respondent managed the
affairs of the Swaziland portion of the deceased's estate in such a
manner that he derived a personal benefit from the estate which
benefit he failed to disclose. None of the arguments raised by Mr.
Flynn persuaded the Court not to grant the application against the
first respondent, as will more fully appear infra
The
allegations against the first respondent now fall to be considered,
starting with the annexures contained in bundle "Q" of the
founding affidavit.
These
documents in toto seem to me to substantiate the allegations levied
against the first respondent. Despite this, in the answering
affidavit (paragraph 5 (a)) the first respondent replies bluntly to
paragraph 16, which incorporates bundle "Q", that "the
contents of this paragraph are (sic) denied. "
The
effect of this is also that by necessary implication, it repudiates
and denies the letters written by his attorney on his instructions,
letters written at his behest by, and signed on his behalf by his
wife, letters written by his daughter Madhi Rens, letters written by
Willemse, letters by the applicant, letters by Wales and letters by
his attorneys at the time, attorneys Millin and Currie. Attorney
Currie filed an affidavit to confirm the correspondence between
Millin and Currie and Attorneys Robinson Bertram. No affidavits to
contest that were filed by Robinson Bertram, Mrs. Churie Rens, Madhi
Rens or Wales. There is no allegation that they were not available or
not amenable to depose to affidavits disputing the correspondence.
The inevitable question then arises as to why the first respondent
would deny under oath before this Court the existence of and contents
of the various letters and documents that form part of the filed
correspondence. It lends credence to the applicant's case, not his.
He did not elaborate on this aspect.
15
His
denial is hard to find as genuine, if not impossible, bordering if
not moving into the category of a blatant lie and an attempt at
deception. It is not worthy of an administrator of an estate and
serves as a misguided attempt to frustrate the application and the
consequences of the documents.
Therefore,
this Court rejects the first respondent's denial of the
correspondence as false and untrue.
I
will now deal with the various annexures contained in annexure "Q":-
"Ql
(a)": This is an undated letter which was written apparently on
the 28th February 1999 by Willemse to the Trust wherein Willemse
gave an account of the income and attached a cheque in favour of the
Trust and Willemse raised 6 points of concern and then set out
proposals as to the planting of trees on the farm and asked the
Trust's consent thereto.
"Q2
(a)": This is a letter dated the 10th June 1999 by the Trust to
Willemse. In paragraph 4 thereof permission was granted to Willemse
to plant litchi, avocado and mango trees, as was suggested by
Willemse in Ms letters under reply.
"Q3":
This is a letter from Robinson Bertram, the attorneys of the first
respondent, dated the 24th February 2000, addressed to the one
trustee Madhi Rens. In the letter the late Mr. Bertram, of Robinson
Bertram attorneys, clearly details the interpretation difficulties
and practical problems regarding the will and the codicils.
"Q4":
This is a letter from Robinson Bertram dated the 7th July 2000,
addressed to Willemse. In the letter the problem of subdividing the
farm of the deceased is raised.
"Q5":
This is a letter from Robinson Bertram dated the 26th July 2000
addressed to the first respondent. In the letter the late Mr.
Bertram again clearly depicts the interpretation and practical
problems regarding the will and the codicils.
16
"Q6":
This letter dated the 11th September 2000 was sent by the Trust to
Willemse. It followed from a meeting of the trustees of the Trust
and the first respondent's wife Churie Rens, who is not a trustee
but who actively participated in the meeting and the deliberations,
held on the 8th September 2000 at which meeting:
The
one trustee, Madhi Rens, voiced her opinion to the effect that
there never would be a successful cooperation between her father,
the first respondent, and Willemse and that the position was
deteriorating continuously;
The
wife of the first respondent, Churie Rens, who wrote letters on
behalf of the first respondent and acted on his behalf, informed
the trustees that she and her husband, the first respondent, felt
that they could gather the harvest if Willemse leaves the farm.
This contention was in fact astounding in view of the fact that
Willemse was entitled to the harvest and it must be noted here that
the harvest apparently was in fact gathered after Willemse was
forcibly evicted from the farm but the harvest was not accounted
for in the liquidation and distribution account which was later
forwarded to the applicant to sign by the first respondent and the
question then arises as to what happened to the money realised from
the harvest;
The
applicant, who is also a trustee, voiced his concern about the farm
being managed by the Trust and was against it and stated that he
felt that things on the farm were not too bad;
Three
options were then discussed:
The
lease with Willemse being maintained and Willemse being notified
that certain matters on the farm be rectified;
17
In
view of the "breach" of the lease, annexure "N"
to the founding papers, by the late payment the lease be cancelled
forthwith and a new lease being entered into, despite the fact that
the Trust accepted the late payment of the rent made on the 3rd May
2000;
In
view of the "breach" of the lease, annexure "N",
the lease is cancelled and financial compensation is to be paid to
the lessee, Willemse, for capital expenditure.
v)
A vote was taken, in which vote Churie Rens most remarkably, also
voted, although she was not a trustee, and with a majority of 3 to 1
it was decided in favour of option (c) referred to in the preceding
paragraph. The applicant voted against the proposal. The decision was
clearly not unanimous as is required by law and is thus without any
legal effect. See in this regard COETZEE V PEET SMITH TRUST EN ANDERE
(supra). In terms of this judgment all decisions by trustees of a
Trust must be unanimous otherwise they are invalid. As was pointed
out above, Willemse in any case occupied the farm in terms of the
codicil and that right which was granted to him by the codicil to the
will was never cancelled.
"Q7":
The "Sale", annexure "O" to the founding papers,
was never cancelled and on the 14th December 2000 Willemse wrote
"Q7" to Robinson Bertram attorneys enquiring about the
progress made with the winding up of the estate and reminding them
of the fact that the Trust sold shares to him in a company which was
to take transfer of the farm and asking whether he should forward
more money to Robinson Bertram to finance the process.
18
"Q";
On the 10th January 2001 Robinson Bertram acknowledged per "Q8"
receipt of annexure "Q7" wherein Mr. Bertram advised that
he would communicate with the executors and trustees with regard to
the formation of the company and the transfer of the shares to
Willemse.
"Q9":
On the 19th January 2001 Robinson Bertram wrote to Willemse wherein
the late Mr. Bertram referred to a clash of interest the attorneys,
now professed to be between Willemse and the estate/first respondent
and which apparently didn't bother them before, and under cover of
which they returned the amount deposited with Robinson Bertram by
Willemse and wherein Mr. Bertram raised many problems and legal
aspects. In paragraph 7 of the letter stated the following:
"7.
The Trustees realise that you have made certain improvements such as
installing electricity and they are prepared to discuss reasonable
compensation to you to be paid on termination of the lease for the
improvements made by you."
"Q10":
It is a letter written by Willemse to an attorney Van der Walt who
wrote a letter to Willemse after the meeting of the trustees,
related to in paragraph f) supra, where annexure "Q6" was
dealt with, on behalf of the Trust and in the letter and the
annexures thereto Willemse gave particulars of amounts expended by
him on the farm.
k)"Qll":
Wales, the one trustee, then wished to resign as a trustee and
informed Madhi Rens thereof and she informed the applicant of his
attitude. The applicant considered the matter and then faxed the
letter annexure "Qll" to her on the 16th March 2001. In
the said letter the applicant informed Madhi Rens that the Trust was
a very complicated Trust with family ties making it very difficult
for the trustees to administer the Trust fairly and the applicant
suggested to her that they should rather appoint a professional
person with experience in the administration of Trusts. The
applicant asked her to consider it,
"Q12":
Madhi Rens then advised the applicant that Wales did not agree with
them about a professional person. The applicant then faxed the
letter annexure "QD12" to her on the 27th March 2001. In
the said letter the applicant informed Madhi Rens that it was in the
interest of the Trust to appoint a professional person
19
who
could see to it that the Trust was professionally managed and that
although he agreed with her that it would cost the Trust money the
Trust would benefit in the long run.
"Q13"
On the 20th April 2001 Millin & Currie wrote this letter to
Robinson Bertram wherein problems encountered on the farm by
Willemse was detailed.
"Q14"
On the 14th May 2001 Millin & Currie wrote this letter to
Robinson Bertram wherein problems encountered on the farm by
Willemse were again detailed and also the alleged role played by the
first respondent therein detailed.
"Q15"
On the 18th May 2001, Robinson Bertram wrote this letter to Millin &
Currie wherein the allegations of Willemse detailed in annexure
"Q14" were denied.
"Q16":
On the 18th May 2001, which date appears to be incorrect as the
letter was only received by Millin & Currie on the 29th June,
2001, Robinson Bertram wrote this letter to Millin & Currie,
wherein Robinson Bertram quoted verbatim remarks made by the first
respondent which clearly shows a clash of personalities between the
first respondent and Willemse.
"Q17":
On the 13th June 2001 Madhi Rens e-mailed to the applicant a copy of
this letter received by her from the other trustee namely Wales. In
this letter Wales wrote as follows:
"Madhi
- Please inform Mr. B.L. Willemse that the thought that two people
should spend their time and own money improving Trust property
without any security or guarantee is obscene in the extreme and only
worthy of a Willemse, from whom we have come to expect such filth.
While the Trust has any assets to give as collateral for services
rendered it is obliged to do as such, or terminate the said service
with immediate effect,"
"Q18":
On the 13th June 2001 Millin & Currie wrote this letter to
Robinson Bertram wherein Millin & Currie enquired whether the
farm was transferred to the Trust.
"Q19":
On the 11th October 2001 Millin & Currie wrote this letter to
Robinson Bertram and again enquired whether the farm was transferred
to the Trust and
20
particulars
were given of Willemse's claim. The particulars of the claim are the
same as that contained in annexure "Q10" supra. Robinson
Bertram acknowledged receipt of annexure "Q19" and advised
that they were referring it to their clients, including the first
respondent, for instructions.
"Q20":
On the 26th February 2002 Millin & Currie wrote this letter to
Robinson Bertram and Attached thereto a copy of a letter received
from Willemse. In his letter Willemse set out his attitude with
regard to his claim.
"Q21":
On the 1st March 2002 Millin & Currie wrote this letter to
Robinson Bertram wherein a chronological background of the matter
was given and certain proposals were made to resolve the issue.
"Q22":
On the 7th March 2002 Robinson Bertram wrote this letter to Millin &
Currie wherein receipt of annexure "Q21" was acknowledged
and wherein it was stated that the Trust was considering a lease for
another year to Willemse.
"Q23":
On the 27th May 2002 the applicant sent an e-mail to Madhi Rens
wherein he complained about the attitude of Madhi Rens and Wales and
their lack of response to his various letters and calling for a
5-year business plan for the Trust to be drawn up to see what could
be done with the Trust. The applicant stated in this regard that
there were, in his opinion, too many unanswered questions about what
was going on and what the future held for the estate and the Trust.
"Q24":
On the 29th May 2002 Madhi Rens responded to the applicant's letter
by e-mail wherein she inter alia stated that the Trust had no
financial means to implement any projects and suggested that the
farm be let to a tenant, (other than Willemse.)
"Q25":
On the 7th June 2002 Madhi Rens, Wales and the applicant had a
meeting and the applicant drew up "Q25" being a summary of
what was discussed and in the summary the applicant placed on record
the reluctance on the part of the other two trustees, Madhi Rens and
Wales, to inform him about trust matters and the applicant again
refers to a professional person to be appointed to manage the trust.
21
"Q26":
On the 8th July 2002 Millin & Currie received this letter from
Robinson Bertram, which letter obviously could not have been written
on the 19th May 2001 being the date which appears on the letter and
which apparently was a computer mistake, wherein Robinson Bertram
stated that Willemse was to vacate the farm by the 31st July 2002,
otherwise eviction proceedings would be instituted against him.
Millin & Currie replied in writing to this letter on the 9th
July 2002 and informed Robinson Bertram that Willemse claims El 116
765.00 compensation and if it were not paid the matter would have to
go to arbitration,
"Q27":
The applicant then had a discussion with Madhi Rens about the
matters of the Trust and wrote her an e-mail letter wherein he
referred to the fact that letters were being written on behalf of
the Trust without him being aware of the contents thereof. He also
referred therein to the distrust between the trustees. In this
regard the applicant stated that Madhi Rens informed him that she
didn't want to be a trustee of the Trust with her father, the first
respondent, as he was too difficult to work with.
"Q28":
On the 23rd July 2002 the applicant had a telephone discussion with
the first respondent and the applicant thereafter, prima facie, on
the same day, wrote annexure "Q28" to him. In the letter
the applicant confirmed that the first respondent advised him that
he unilaterally decided to lease the farm to an acquaintance of his,
one Barry Forbes, and that he had entered into a written lease with
Forbes and that he took full responsibility for his actions. The
applicant stated that he told the first respondent that it was not a
question of taking responsibility but that he could not unilaterally
act in matters concerning the estate as he could only do it with the
applicant's knowledge thereof and consent which consent was not
obtained. The text of the letter reads as follows :-
"Dear
Rouviere,
In
1998 you were very keen to lease the farm to Gideon. On 1998-02-25 I
wrote a letter to you stipulating that we cannot lease trust property
without advertising and getting a few tenders in writing prior to
leasing the property (See paragraph number 3). Today I phoned you and
you gave me the following information.
22
You
made a unilateral decision to lease the farm to Barry Forbes. You
entered into a written lease agreement with Barry Forbes. You
informed me that you take full responsibility, personally, for these
actions. Please indicate in your reply if the above statements are
correct. I herewith also request that you inform me in writing of any
actions taken by yourself, as executor of the estate, during the last
2 years, including letters and agreements.
Temba."
"Q29":
On the 24th July 2002 the applicant received this fax from Madhi
Rens and the applicant was advised by her that she was requested by
her mother, Churie Rens, who normally conveyed messages on behalf of
the first respondent, to inform the applicant that they were busy
with a takeover of the operations on the farm by Forbes of OKH Farms
(Pty) Ltd in terms of a lease of 3 years and that the rent for one
year was paid in advance. The applicant in his founding affidavit
stated that he was never consulted about such an agreement and was
completely taken by surprise. The applicant stated further that he
telephoned the first respondent and asked him to explain to the
applicant what he was doing and what right he had to let the farm
unilaterally without his knowledge and consent. According to the
applicant the first respondent promised to send the applicant an
explanation and a copy of the lease but nothing had arrived at the
time the founding affidavit was deposed to.
"Q30":
On the 25th October 2002 the applicant sent this letter to Madhi
Rens. In the letter he referred to the fact that he suggested that
when Wales wanted to resign as a trustee in 2001 that they get a
professional as trustee but instead she and Wales wanted to appoint
the first respondent's son Imam as trustee in the place of Wales,
which was not acceptable to the applicant. In the letter the
applicant proposed an attorney O'Cornell as trustee. Madhi Rens and
Wales did not accept his suggestion.
"Q31":
On the 12th December 2002 the applicant received this letter from
the first respondent, written and signed on his behalf by his wife
Churie Rens. In the said letter he referred to the fact that
Willemse wanted to visit the farm with some people. The applicant
stated that Willemse made such a request to him and that he
telephoned the first respondent whom he felt should be consulted and
the first respondent gave his permission and the applicant advised
Willemse accordingly. Apparently Willemse
23
wanted
to take his advisors along. The first respondent thereafter refused
them permission to enter the farm thus the letter by the first
respondent to the applicant. The applicant stated that he was of the
opinion that there ought to be nothing to hide from Willemse and his
advisors. In the letter the first respondent confirmed that there was
a new lessee. No lease contract was, however, attached.
"Q32":
On the 12th December 2002 the applicant received another faxed
letter from the first respondent with the heading "re: your
letter PROFESSIONAL AS TRUSTEE". In the letter the first
respondent stated that he failed to see any sense in appointing an
attorney, a certain O'Connell, as a trustee.
"Q33":
On the 21st December 2002 the applicant faxed this letter to the
first respondent calling for a copy of the agreement with Forbes and
for an account as to what happened to the alleged payment in advance
of the first year's rent by Forbes. The applicant stated that he did
not receive a reply thereto.
"Q34":
On the 5th February 2003 the applicant wrote this letter to the
first respondent and his wife calling for particulars regarding what
had happened and reiterated that Willemse was proceeding with his
claim against the estate.
Late
in April 2003 the applicant received annexure "R" from the
first respondent. Annexure "R" is a letter addressed by
Robinson Bertram to the first respondent and attached to it was a
draft Liquidation and Distribution account with regard to the estate
of the deceased's Swaziland assets.
On
annexure "R" the wife of the first respondent wrote a
handwritten note for the applicant that (translated) reads as
follows:
"Temba,
Sign
please and send as soon as possible back to Madhi. Please keep the
document confidential.
Churie."
The
applicant stated that he perused the draft liquidation and
distribution account and found it unacceptable to him in view of the
following:
24
The
rent paid by Forbes was not reflected therein;
The
first respondent, after Willemse left the farm, used and utilised
estate property, this being the house on the farm and the harvest
which was gathered after Willemse was forcibly evicted from the
farm, for his own benefit without accounting to the estate in that
regard;
The
amount of E9 914,00 could not have been paid to Robinson Bertram as
the farm had not yet been transferred;
The
estate was not liable for counsel's fees in the amount of E5 000.00;
No
provision was made for the claim of Willemse against the estate and
the estate could not be wound up until the claim was resolved.
The
applicant conveyed his refusal to sign the liquidation and
distribution account to the first respondent.
After
the applicant had deposed to the founding affidavit on the 26th June
2003, the first respondent's wife, Churie Rens, on behalf of the
first respondent, wrote a letter dated the 23rd July 2003. Therein, a
scathing attack was made on the applicant, accusing him of delaying
the winding up of the estate and stating that the farm was not leased
to Forbes but to a company called OKH (Pty) Ltd. First respondent
conceded in the letter that he didn't consult the applicant, his
co-executor, in the matter but that he took advice from a Mr,
Nxumalo, Madhi Rens and Wales, and that they had no objections to the
lease. The first respondent apparently did not enclose a copy of the
lease agreement with his letter but stated the following therein:-
"2,6
The lease agreement is at your disposal to be viewed at any time. We
(the other two trustees and I) are, and have always been, of the view
that we cannot risk sending you a copy/copies of any confidential
documents concerning the Trust, as well as the Estate, as your
loyalty does not lie with the Trust/Estate but with your brother. He
has no connection, and has nothing to do with the ROC FUND TRUST, and
is therefore not to have any insight in its affairs."
25
The
first respondent did not see fit to file a copy of this
"confidential" lease agreement with his answering affidavit
either.
With
regard to the eviction of Willemse by force from the farm, the first
respondent stated in his letter to the applicant, attached to his
answering affidavit as annexure "F", that no force was used
against Willemse and that he was also there together with the workers
of OKH (Pty) Ltd and also with workers of the ROC Fund Trust. In
paragraph 48 of the answering affidavit, the first respondent
contradicts himself, however, and stated that he was not even present
when Willemse "vacated" and that all workers on the farm
were employed by OKH (Pty) Ltd and that there was thus no way that he
could have instructed the guards to act against Willemse. It is a
worrying factor that even at the time when Willemse was forcibly
evicted from the farm, that workers of OKH (Pty) Ltd were already
present on the farm, bearing in mind that the first respondent
alleges that the lease with OKH (Pty) Ltd only came into being much
later. The question then arises as to what the armed guards of OKH
were doing on the farm much earlier than the time the lease was
allegedly entered into with OKH. Clearly, in this regard, the first
respondent again is not frank and open with the court. The absence of
candidness and a sparing application of the true facts raises the
inevitable question, as to whether the first respondent was not
perhaps in cahoots with others to have Willemse evicted from the farm
to enable the first respondent and those in favour with him, to
utilise the now improved farm. From the facts before court it is
difficult to come to any other conclusion.
There
is no basis from which the first respondent properly could have
entered into an agreement of lease with OKH (Pty) Ltd. One would
further be very hard pressed to accept that attorney Nxumalo of
Robinson Bertram would have been properly consulted by the first
respondent in this regard. It is trite that the first respondent
could not have properly entered into such a contract without the
assistance, knowledge and consent of the applicant, whether in his
capacity of co-executor or as trustee. As said, one would further be
hard pressed to accept that after proper consultations with him,
attorney Nxumalo could have given his professional go-ahead to such
an agreement.
Further,
it seems to be out of place and unacceptable that the first
respondent, despite the legal obligation upon him to consult with and
account to the applicant, his co-
26
executor
and co-trustee, with regard to matters of the estate, failed to
obtain the consent of the applicant before entering into the lease
agreement and his failure to furnish the applicant with a copy of the
lease agreement.
A
further aspect raised by the applicant was that the first respondent
was utilising an asset of the estate for his own purpose and benefit,
without accounting to and compensating the estate for it. Clearly,
the first respondent occupied the one house on the farm during the
tenancy of Willemse, with Willemse's permission, while the latter
occupied the farm during the lease. When the lease with Willemse was
"cancelled" by the Trust, the right granted by Willemse in
favour of the first respondent to occupy the house on the farm would
ipso facto have fallen away, if Willemse occupied the farm in terms
of the lease with the Trust. Thereafter, the first respondent would
have had to vacate the house and leave the farm, or he would have had
to seek and obtain the consent of the estate, as represented by the
co-executors, to continue with his occupation. There is no indication
that the first respondent had done so. He carried on with his
occupation of the house on the farm of the estate and he thus, on his
own version, become indebted to the estate for the value of his
occupation of the house. He did not disclose this fact in the draft
liquidation and distribution account, nor is it shown that he
compensated the estate with what was due to it. This negatively
impacts on his capacity as co-executor of an estate in his fiduciary
role and on the face of it, smacks of improper conduct.
A
further aspect remains to be dealt with. In his papers the first
respondent tried to make out a case that the applicant was
endeavouring to further the aims, claim and position of Willemse, his
brother, and that the applicant in that fashion was thus bringing the
application with an ulterior motive. Advocate Flynn raised the same
argument in his heads of argument. That this cannot be found as a
correct position is abundantly clear. The allegation is unfounded and
stands to be rejected as false and malicious, an attack made in
desperation to cloud the merits of the application. The Court
unequivocally rejects the allegation. It is the applicant's endeavour
to have a neutral, impartial and professional person appointed to
administer the estate and bring it to finality, not to favour himself
or his kin. It is the first respondent who does not wish such a
person to be appointed. It is the unacceptable conduct of the first
respondent in his capacity as co-executor that is the cause of this
application. In my
27
view,
there is ample cause to sustain the prayer for removal of the first
respondent as co-executor, in the best interests of the estate.
From
what has been dealt with supra in the judgment of this Court the
following is found: -
The
first respondent did not properly fulfil his obligations as
co-executor in the estate of the deceased;
The
first respondent utilised assets of the deceased's estate, inter
alia the house on the farm, without any quid pro quo or accounting
for it to the estate;
The
first respondent was not candid with the court and forwarded
untruths for consideration in an attempt to frustrate the
application. He furthers his own personal aims to the detriment of
the estate;
The
proven conduct of the first respondent is such that he is found to
be unfit to continue being a co-executor in the estate;
The
interests of the estate would best be furthered by the first
respondent's immediate removal from his appointment as co-executor
and that the estate would in fact be prejudiced if this is not done
forthwith;
The
applicant was not only entitled but duty bound to bring this
application in view of the unacceptable and improper conduct on the
part of the first respondent;
The
application should therefore be granted.
Regarding
the question of costs, applicant indicated that a costs order was
sought against the first respondent on the attorney-client scale.
Such costs are only ordered in exceptional and deserving cases. In
NEL V WATERBERG LANDBOUWERS KO-OP VEREENIGING 1946 AD 597, Tindall
J.A. stated the following with regard to such costs:
"(t)he
true explanation of awards of attorney and client costs not expressly
authorised by Statute seems to be that, by reason of special
considerations
28
arising
either from the circumstances which give rise to the action or from
the conduct of the losing party, the Court in a particular case
considers it just, by means of such an order, to ensure more
effectually than what it can do by means of a judgment for party and
party costs, that the successful party will not be out of pocket in
respect of the expenses caused to him by the litigation. "
In
view of the conduct of the first respondent as indicated in this
judgment, his untruthfulness, his failure to be candid with the Court
and furnishing untruths under oath, his failure to carry out his
obligations as co-executor and his unwarranted attack on the
applicant, the Court finds that this matter is such an exceptional
case where such costs should be granted against the first respondent.
In the opinion of this Court the first respondent should not have
opposed the application in the first place but should have conceded
that he was not fit to retain his appointment as co-executor. His
conduct which caused the application to be brought exacerbated the
situation by his vigorous but misplaced opposition to the
application, clutching to his appointment to the detriment of the
estate in respect of which he has a fiduciary and legal duty to
administer like a bonus paterfamilias (see the MEESTER case (supra)
at page 19-G).
The
applicant further seeks a declarator to the effect that he was
entitled to bring the application on behalf of the estate. I have no
hesitation in making such an order, which makes the estate liable for
the legal costs incurred by the applicant in the event that the first
respondent fails to pay the costs. Prior to this taking effect, the
Registrar of the High Court of Swaziland will first be required to
certify that all remedies taken against the first respondent to
recover the costs have failed and that in his opinion, it could not
be prudent or viable to further proceed with execution for costs,
against the first respondent.
Mr.
Flynn argued in his Heads that the application should not have been
brought against the first respondent nomine officio, but against him
in his private capacity. This is cosmetic dressing and nothing much
turns on this point. The applicant and first respondent were both
before court and the matter was properly ventilated and arg ued. In
any event, the first respondent was not brought to court for what he
did in his personal and private capacity but for his conduct qua
co-executor in the estate. The whole object of this matter was to
seek his removal from appointment as co-executor. This argument falls
to be rejected.
29
The
following is ordered: -
The
application succeeds and Jeremija de la Rouviere Rens is removed
with immediate effect as co-executor in the estate of the late
Petrus Joubert van der Walt, Swaziland estate number EH 1974/03, in
terms of the provisions of Section 84 of the (Swaziland)
Administration of Estates Act, 1902 (Act 28 of 1902). The first
respondent is ordered to submit to and hand over to the Master of
the High Court his letters of executorship and all relevant
documents and papers that relate to the administration of the
Estate, within a period of 21 (twenty one) days after this judgment.
The
applicant is ordered to tender his resignation as co-executor in the
Estate described above, within one calendar month following the date
of this order. The Master of the High Court of Swaziland is not
obliged to accept the resignation. The Master is however enjoined to
give proper consideration to the appointment of an independent
professional executor with legal qualifications and with expertise
in the field of the administration of deceased estates.
It
is declared that the applicant was entitled to approach the Court on
behalf of the estate of the said deceased and to bring this
application and the estate of the said deceased will be liable for
all legal costs incurred by the applicant in the event of the first
respondent not paying the costs of the application, subject to
certification by the Registrar of the High Court as set out in this
judgment. For the sake of clarity, it is ordered that the first
respondent is not entitled to have his costs of the application paid
by the Estate of the Late Petrus Joubert van der Walt.
The
first respondent is ordered to pay the costs of this application on
the scale of attorney and client, out of his own pocket. The costs
are also to include the costs of counsel, both in the drawing of the
papers and appearing in court at the hearing, also for the drawing
of Heads of
30
Argument.
Counsel's costs are certified to fall under the provisions of Rule
68(2) of the High Court Rules.
ANNANDALE,
ACJ