Republic of South Africa

IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE No:	
In the matter between:		
ELIZABETH ANDRINA VAN HEERDEN		
And		
PIETER JOHANNES VAN HEERDEN		
PIETER JOHANNES VAN HEERDEN NO	2nd Defendant's	
ELIZABETH ANDRINA VAN HEERDEN NO	3rd	
JOHANNES ANTHONIE MICHAEL PRINSLOO		
TAMSIN VAN HEERDEN		
JAN-PIERRE VAN HEERDEN		
THE MASTER OF THE HIGH COURT		

MANTAME, AJ:

[1] This is an action for divorce. On the 5 March 2008, Plaintiff issued summons against First Defendant for a decree of divorce and ancillary relief. Plaintiff alleged that the marriage had broken down irretrievably. For purposes of this judgment, it is worth mentioning that there are currently three (3) matters relating to the Plaintiff and First Defendant before me i.e. the divorce action. Rule 43 application and Rule 43 (6) application.

[4] Plaintiff's contention was that though she is a trustee on paper and in name, she never performed duties of a trustee. First Defendant was in total control of all the affairs of the trust In all matters relating to this trust, she acted contrary to her wishes, signed documents against her will and did whatever she was required to do on the instruction and or information of the First Defendant.

[8] In essence, Mr Van Niekerk SC is asking the court to strike out paragraphs 15, 16 and 17 of the Amended Particulars of Claim and Part B of the Plaintiffs prayers in the Plaintiffs Amended Particulars, and a cost order occasioned by such application to strike out.

[16] In Badenhorst and Jordaan decisions, he furthermore argued that neither one of those did the court consider transfer of assets

"From the evidence of the Appellant it is clear that in this conduct of the affairs of the trust the Respondent seldom consulted or sought the approval of his co-trustees, his brother. He was in short, in full control of the trust. Furthermore, he paid scant regard to the difference between trust assets and his own assets. So, for instance, in a written application for credit facilities with the local co-operative, dated 27 March 2002, he listed the trust assets as his own..."

[18] I am unable to agree with Mr Van Niekerk's submission that this is a legal point and is capable of being decided. If that were so. First Defendant should have brought the proceedings by way of motion, or in the alternative, led some evidence before arguing this legal point.

[20]   In all circumstances, the application should be dismissed.

[21]   There shall be no order as to costs.

[22] AN outstanding costs issues in case numbers, 27521/10, 15497/08 and 4012/08 to stand over for later determination by a trial judge.