DIVORCE – PIERCING THE VEIL OF A TRUST
Divorce – Out of community of property subject to the accrual system – Determination of accrual – Whether assets of trusts of which the husband is a trustee and the close corporation of which he is a sole member should be regarded as belonging to husband for purposes of determining the accrual of his estate – Legal basis to pierce the veneer of trusts not established.
MJK v IIK [2022] ZASCA 116 at [31]-[40]
IIK sued MJK for divorce and sought an order declaring that the assets of three trusts and a CC be taken into account in determining the value of the accrual in terms of ss 3 and 4 of the Matrimonial Property Act 88 of 1984. She contended that the trusts and the CC were the alter ego of MJK and that during the marriage, he established the trusts and the CC over which he assumed sole de facto control. The High Court concluded that after the discovery of IIK’s infidelity, MJK transferred all the assets to the trusts, in some instances for no value, and that he transferred the assets with the dishonest and fraudulent purpose of frustrating IIK’s claim to the accrual of the estate. The High Court found that the veneer of all three trusts fell to be pierced to determine the accrual of MJK’s estate as he used the trusts as his alter ego.
Zondi JA discusses whether there was a factual or legal basis for the High Court to pierce the veneer of the trusts; that trusts have for years been used and will continue to be used as a convenient tool for estate planning; MJK’s evidence that the principal objective of creating the trusts was to protect their assets to ensure that IIK and his children, especially their mentally challenged daughter, would be cared for; that the High Court’s reliance on Badenhorst was misplaced; and that the evidence did not support IIK’s contention that the trusts were established with the fraudulent object of defeating any of her patrimonial claims.
The appeal is upheld and parts of the order of the High Court replaced such that the plaintiff’s claim for an order that the assets of the trusts and the CC are to be used to calculate the accrual of the defendant’s estate is dismissed.
* See also PAF v SCF [2022] ZASCA 101 which facts are found to be clearly distinguishable.
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EVICTION OF UNLAWFUL OCCUPIERS
Eviction – Unlawful occupiers – Service of notice of proceedings on occupiers – Peremptory procedural prescripts – According to Practice Manual and Act – Prevention of Illegal Evictions and Unlawful Occupation of Land Act 19 of 1998, s 4(2).
Meme-Akpta v Unlawful Occupiers, Nugget Street [2022] ZAGPJHC 482 at [13]
The owners of a block of flats, a husband and wife resident in Nigeria, acquired the property for investment purposes. They approach the court with an application for the eviction of approximately 200 people who have no right to occupy the property and pay no rental or expenses. The opposing respondents comprise eight households and their defence details that the occupiers are poor and that if evicted, at least in the short term, they would have no shelter at all. Some of the respondents have occupied the property since 2008.
Fisher J discusses the grossly derelict manner in which the application has been drawn and dealt with procedurally and that it exhibits a profound lack of appreciation for the importance of compliance with the legislative scheme enacted under the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998. The prescripts of the Act are in keeping with the recognition of the fundamental constitutional imperatives which an eviction entails and especially the right to housing in terms of section 26 of the Constitution and all that this involves. These measures are especially important in a country where extreme poverty and homelessness is endemic. From section 4 of the Act and the Practice Manual of the Division, the court sets out the peremptory procedural prescripts, particularly for effective service of notice on the occupiers, at para [13].
The application is dismissed.
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LEOPARDS – PAIA AND POPIA
Access to information – Held by government department – On permits issued to trap or kill leopards – Request refused on grounds of disclosure of personal information of third parties – Right to privacy – Interplay between PAIA and POPIA – Promotion of Access to Information Act 2 of 2000 – Protection of Personal Information Act 4 of 2013.
Smuts NO v MEC, Eastern Cape Dept of Economic Dev [2022] 1199-2021 (ECM) at [11]-[47]
The Landmark Foundation Trust is a conservation NGO and registered charitable trust. It focuses on effective predator management methods in support of a healthy ecosystem and the conservation of endangered species. One of its projects centres on the rescue and conservation of leopards. Leopards are a vulnerable species and any hunting or capturing of them requires a permit. The Foundation requested the information officer of the department to provide access to all applications received and permits issued by the department to trap, kill, hunt or translocate any leopards in the Eastern Cape. The request was made in terms of section 18 of the Promotion of Access to Information Act 2 of 2000 (PAIA) and was refused, also on appeal to the MEC, on the premise that it would entail the unreasonable disclosure of personal information of third parties and on an interpretation of section 34 of the Act.
Govindjee J discusses PAIA and its purposes; the Protection of Personal Information Act 4 of 2013 (POPIA); the interplay between PAIA and POPIA; the state management in conservation of threatened and protected species and public interest; access to information and the right to privacy; that POPIA reflects contemporary boni mores and gives further expression to the appropriate balance to be struck; whether the respondents have put forward sufficient evidence to conclude, on the probabilities, that the information withheld falls within the exemption claimed; The meaning of “unreasonable disclosure of information” in section 34 of PAIA; whether the respondents have discharged the burden; and the relief and an order that is just and equitable.
The information officer’s decision to refuse the Foundation’s request for access to information made in terms of section 18 of PAIA is set aside. The officer is directed to provide the Foundation with access to the specified records within fourteen days.
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ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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