Kitshoff and another v Van Heerden NO and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Pretorius J |
| Judgment Date | 14 September 2023 |
| Citation | 2023 JDR 3520 (GP) |
| Hearing Date | 07 September 2023 |
| Docket Number | 085962/2023 |
| Court | Gauteng Division, Pretoria |
Pretorius J:
This is an urgent application for interim interdictory relief launched by the two applicants, who are beneficiaries of the trust. The applicants seek to preserve the VERITAS EKSEKUTEURSKAMERS SA TRUST (IT 11430/04), and its assets, pending the finalisation of the main proceedings for final relief.
THE PARTIES:
The first applicant is Tiaan Kitshoff, an adult male, who is the son of the deceased Mr A Kitshoff, who passed away on 19 August 2023 and was cotrustee of the Veritas Trust.
The second applicant Juan Kitshoff, an adult male, who is the son of the late Mr A Kitshoff.
2023 JDR 3520 p3
Pretorius J
The first respondent is Barend Jacobus Van Heerden N O, cited in his capacity as, at present, the sole trustee of The Veritas Eksekuteurskamers SA.
The second respondent is Barend Jacobus van Heerden, an adult male, cited in his personal capacity.
The third respondent is Barend Jacobus van Heerden cited in his capacity as the representative of his son, Ruan van Heerden, the fourth respondent.
The fourth respondent is Ruan van Heerden, an adult male, who is represented by his father, as he is currently serving a life sentence.
The fifth respondent are the trustees from time to time of the Veritas Trust, of which the first respondent is currently the sole trustee.
The sixth respondent is Master of the High Court, Pretoria. The seventh respondent is Veritas Eksekuteurskamer SA (Pty) Ltd, a private company registered in terms of the Company Laws of the Republic of South Africa. (“VERITAS TRUST, TRUST”)
No relief is sought against the Third, Fourth, Fifth, Sixth and Seventh Respondents who have been cited to the extent that they may have an interest in the matter.
PURPOSE OF THE APPLICATION
The purpose of the present application is to preserve the Veritas Trust and its assets, pending the finalisation of the application for final relief. The purpose of the intended main application will be to appoint Mr Tiaan Kitshoff, the first applicant as a trustee of the Veritas Trust, together with the first respondent. It is alleged that he will be appointed as the nominated succeeding trustee to his late father, alternatively that a suitable qualified and experienced person be appointed as an independent second trustee, as well as Mr JP Botha, or a suitable qualified and experienced independent as a third trustee.
2023 JDR 3520 p4
Pretorius J
BACKGROUND:
The first respondent and the late Mr Kitshoff were co-trustees of the Veritas Trust. The trust deed envisaged a 50/50 division of benefits between the deceased Mr Kitshoff, the applicants’ father, or his descendants, and the second Respondent, or his descendants.
Both applicants are beneficiaries of the Veritas Trust. The deceased nominated the first applicant and the second respondent as succeeding trustees of amongst other trusts, the Veritas Trust.
Since 2016 the relationship between the deceased and the second respondent deteriorated, which resulted in the first respondent managing the Veritas Trust. The deceased refused to accept any financial statements presented by the first respondent since 2016. The last financial statements approved by both trustees were for the financial year ending 28 February 2016.
According to the applicants no approved financial statements exist since 2016, leaving the financial affairs of the Veritas Trust in bad shape. This application became necessary as the first respondent threatened to:
reply to a letter of demand, dated 17 August 2023, in a manner that will constitute an act of insolvency;
to make decisions regarding the Veritas Trust, including to sequestrate or terminate the Trust;
to sell the Trust’s assets, or
to make other decisions that the first respondent wished not to disclose.
It is common cause that in his will, the deceased had nominated the first applicant as his succeeding trustee, which the first applicant had accepted.
The first respondent is objecting to the appointment of the first applicant as trustee. He further indicated on 25 August 2023 that he would make decisions regarding the Trust on 8 September 2023. This caused the applicants to launch
2023 JDR 3520 p5
Pretorius J
the urgent application to preserve the Veritas Trust and its assets in the interim, pending the institution of proceedings for final relief.
RELIEF:
The interim requested preservation relief includes that the first respondent be interdicted, prohibited, and restrained from, in any manner, directly or indirectly to:
act beyond the scope of clause 9.6 of the Trust Deed of the Trust;
commit any act of insolvency as envisaged by section 8 of the Insolvency Act, 24 of 1936;
take any steps or make any decision to terminate or sequestrate the Trust or to cause its termination or sequestration;
take any steps to alienate, dispose of, or encumber the Trust’s movable or immovable property, save with prior written consent of the first applicant failing which, the sixth respondent;
take any resolution to pay or make any payment to any trustees or beneficiary of the Trust; and
make any payments from, passing...
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