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

Case No.: 3842/09

In the matter between:
RIANA LEMMER						Applicant
and
KLAUS DIETER BORNGRABER NO			First Respondent
HEINDRE KEITH RADEMAN NO				 Second Respondent
MELISSA RADEMAN NO 					Third Respondent

KOEN AJ.

1. This is an application for the provisional sequestration of the Klaus and Laureen Trust ("the trust").

3. Although the first Respondent has been declared by this Court to be incapable of managing his own affairs, and ought therefore to be removed from his office as trustee by the Master, this has not happened. The second and third Respondents are cited in their capacity as trustees of the trust. In the affidavits filed by them they tender their resignation as trustees, but do not allege that notice of such resignation has been given to-the Master of this Court, and the trust beneficiaries, as is required by the provisions of section 21 of the Trust Property Control Act. 57 of 1988. it follows, as I see it, that they continue to be trustees.

5. In the event, on 19 May 2009, the first and second Respondents filed affidavits. But it was not averred in either of those affidavits that the trust intended to oppose the application, or that it had resolved to do so. Indeed, it is clear that the trust could not properly have taken a decision to oppose the application because the provisions of the trust deed required that the first Respondent be part of any such decision and it was not in dispute that this had not occurred.

7. Be this as it may. I have had regard to the arguments put up on behalf of the second and third Respondents by counsel. They are, after all, trustees, and I consider that they have sufficient of a legal interest in the matter to be heard

9. The Applicant contends that Mrs Borngraber has a claim against the trust for repayment of the amount of R 600 000 owed by the trust to her on loan account. These funds came from the proceeds of a mortgage bond. The second Respondent admits in his affidavit that an amount of R 600 000 was transferred by him from the bond account in Mrs Borngraber's name to the trust.

11. Payment of the R 600 000 was demanded by way of an electronic mail sent by the Applicant to the second Respondent on 29 April 2008. The demand is in unequivocal terms, claiming payment of the amount of R 600 000 owed by the trust to the Mrs Borngraber on loan account before 5 May 2008. under threat of proceedings against the trust. In response to this demand the second Respondent wrote a letter from which it is apparent that the trust was unable to repay the amount claimed.
12. In his affidavit the second Respondent appears to contend that the demand ought not to have been made of the trust, but of the Applicant's husband. He states that the funds originated from the bond, and that they were paid to the first Respondent, concluding that the demand ought therefore to have been directed at the first Respondent. But he does not attempt to reconcile this version with the admission by him that he had effected payment electronically, ostensibly on the written authority of the first Respondent, who was - he says - acting under a power of attorney given to him by Mrs Borngraber. of the amount claimed directly from the Applicant's bond account to the trust. It seems to me that on the second Respondent's own version it is clear that the R 600 000 belonged to Mrs Borngraber. After all it is she who had borrowed it from ABSA.

14. I do not think that there is any merit in this argument. The second Respondent wrote the letter not on behalf of a principal, but as a trustee And there is no suggestion in the affidavit he filed that he did not intend to convey to the Applicant that the trust was unable to repay the amounted of R 600 000 claimed from it.

16. Having regard to the facts put up by the Applicant, and those contained in the affidavit made by the second Respondent, I am satisfied that the balance of probabilities favours the conclusion that the requirements of s 10 have been satisfied. It follows that a provisional order of sequestration must be made.
17. In the circumstances I make the following order:

a)	
b)	that a rule nisi is hereby issued in terms whereof the Trust and all interested parties are called upon to appear before this Court on Wednesday 14 April 2010 at 10h00 to show cause why a final order in the following terms should not be granted:

(i)     on second and third Respondents personally by the Sheriff of this Court;