1. 1
IN THE NORTHERN CAPE HIGH COURT, KIMBERLEY
REPUBLIC OF SOUTH AFRICA
CASE No.1202/2012
In the matter between
BERNARD WILLIAM HEINZE APPLICANT
And
JACOBUS ADRIAAN BURGER N.O FIRST RESPONDENT
ENGELA SUSANA BURGER N.O SECOND RESPONDENT
ABSA BANK LIMITED THIRD RESPONDENT
REGISTRAR OF DEEDS FOURTH RESPONDENT
DUNCAN & ROTHMAN ATTORNEYS FIFTH RESPONDENT
MASTER OF THE HIGH COURT SIXTH RESPONDENT
FREDERIK JACOBUS SENEKAL N.O SEVENTH RESPONDENT
KURT JOCHEN HEINZE EIGHTH RESPONDENT
ANTHONY DONALD WOOD CROZIER NINETH RESPONDENT
KLAUS HEINZE TENTH RESPONDENT
APPLICANTS HEADS OF ARGUMENT

2. 2
TABLE OF CONTENTS
INTRODUCTION………….…………………………………..……….3
A RELEVANT BACKGROUND FACTS……………………..……..5
B THE TRUST PROPERTY CONTROLL ACT…………….…….10
C LEGAL DUTIES OF ATTORNEYS AND AUDITORS…….. 13
D SUSPENSIVE CONDITIONS……………………………….……..21
E GOOD FAITH…………………………………………………….…….24
F THE CONSTITUTIONAL PROPERTY CLAUSE……….…….28
G LIST OF AUTHORITIES……………………………………….......31

3. 3
INTRODUCTION
1. The applicant, Bernard William Heinze, is not represented in this matter
by neither attorney nor counsel. The applicant has sought legal
representation but could not afford the costs. The applicant has also
attempted to get legal aid from the Legal Aid Board as well as the South
African Human Rights Commission in Cape Town.
2. Only first, second, fifth and nineth respondents are opposing the
application and have lodged affidavits. The fourth and sixth respondents
have submitted Reports to the Honourable Court.
3. The relief sought by the applicant is in esse the return of the immovable
property in dispute.
4. These heads of argument are divided into the following parts:
A. Firstly a section will be devoted to briefly considering the
background facts and circumstances, as they appear from the

4. 4
affidavits and reports filed by the various parties, insofar they
are relevant to a determination of the application before the
Honourable Court.
B. Secondly a section will be devoted to demonstrate how the
eighth respondent was acting as trustee before authorised to
do so by the Master of the High Court, as required by the Trust
Property Control Act 57 of 1988 (the TPA), section 6(1). This
section will also illustrate other contraventions of the TPA
committed by the eighth and nineth respondents.
C. Thirdly a section will be dedicated to illustrate the legal duty of
attorneys and auditors has to their profession as well as to the
public in terms of their function.
D. Fourthly a section will be dedicated to suspensive conditions.
E. Fifthly a section will be dedicated to good faith in contracting
and the public interests in bona fidei.

5. 5
A. RELEVANT BACKGROUND FACTS
5. Werner Rolf Heinze (Rolf) died, testate on 22nd
July 2004. His entire
estate is to devolve unto a testamentary trust. The eighth respondent
(Jochen) was appointed as both the executor and trustee by the will dated
17th
October 2003. Jochen appointed the nineth respondent (Crozier) as
his agent. In terms of Section 22(2)(a) and 23(3) of the Estate Act 66 of
1965 Jochen not being in South Africa would have to put down security
to the satisfaction of the Master unless he had a South African
domicillium, Jochen gives Crozier as his domicillium and is appointed
executor on 28 July 2004.
6. By the 22nd
September 2004 the estate bank account No. 912 5200 994 is
opened with ABSA Bank. Various life policy pay-outs are made into the
estate bank account. On the 7th
October 2004 the first theft of R2300
000, 00 (R2, 3M) is committed and by the 14th
December 2004 the estate
bank account is closed after a total of R2 531 383.20 has been stolen.
7. A deed of sale is finalised by the 15th
of December 2004 for the alienation
of the property in dispute between the estate represented by Crozier and
the So-Ane Boerdery trust.
8. At the same time a deed of sale is finalised with a Mr A H Lourens, for the
property known as Portion 13 of farm Dorsfontein No.77 which was
owned by a closed corporation known as Kimberley Piggery. The selling
price was R125 000,00 (one hundred and twenty five thousand Rand) and

6. 6
the entire sum of R122 502,92 paid to Jochen, as the “sole owner” from
fifth respondents trust account.1
9. Mr Potgieter of the fifth respondent avers he confirmed with Crozier that
Jochen is a 50% owner of the farm “Kelfa” by means of a “partnership
agreement”, a letter dated the 30th
March 1984.2
In esse the letter states
that Jochen is the owner of a 50% interest of the partnership business
known as Star Pig Farming and that Kelfa forms an asset of the
partnership. The truth is that Star Pig Farming does not exist, thus
neither Jochen’s 50% ownership.
10. The deed of sale for “Kelfa” has a suspensive condition3
that the sale was
subject to the Master issuing a certificate in terms of Section 42(2) of the
Estates Act 66 of 1965. The conveyancer had to make an application to
the Master, whereby the conveyancer had to satisfy the stringent
requirements in terms of the JM33 form. The first application made by
Mr Potgieter was rejected3
. On the JM334
form at No.2 the conveyancer
needs to give clarity of any differences in the deed of sale and/or power
of attorney and the liquidation and distribution account, which was
questioned by the estate examiner, Mrs Marina Louw.5
1
Page 242 which is part of the applicants replying affidavit
2
Page 201 which is at par 24 of the fifth respondents answering affidavit
3 page 196 which is at par 10 of the fifth respondents answering affidavit
4 Page 198 of fifth respondents affidavit, par 14 and page 257 annexure BH3 of applicants
replying affidavit, page 113 annexure W par 4 A6 of the applicants founding affidavit
5 Page 264 annexure BH6 of the applicants replying affidavit

7. 7
11.One of the reasons why the Master rejected the application in terms of
Section 42(2) was that the trustee first needs to be authorised in terms of
Section 6(1) of the TPA to give consent to the sale.6
12.Mr Potgieter with his first application for the 42(2) certificate had sent in
a consent dated the 22nd
September which is signed by the trustee before
he had been authorised by the Master to act as trustee.7
13.The JM21 memorandum for the trustees authorisation is submitted, in
terms of paragraph 2 (c) Crozier accepts the appointment as auditor of
the trust as well as the responsibility cast upon him (Crozier) to report
any irregularities to the Master; in terms of Section 15 of the TPA.8
14.The report of the fourth respondent, the Registrar of Deeds Kimberley,
states that there is no Section 42(2) certificate amongst the documents
to transfer ownership from the deceased to the So-Ane Boerdery trust.9
15.Mr Potgieter had corrected the property description in the estate
inventory on the 6th
of December 2004 and again had an opportunity to
declare Jochens’ 50% interest.10
6
Page 242 of applicants replying affidavit, page 87 annexure “O”’ and page 98 annexure “S” of
the applicants founding affidavit
7
Page 259 annexure “BH 4” of the applicants replying affidavit
8
Page 88 annexure “P” paragraph 2 (c)
9
Page 254 annexure “BH2” of applicants replying affidavit
10
Page 215 annexure “E” of the fifth respondents answering affidavit

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16.Despite there being no money in the trust estate Jochen submits a
liquidation and distribution account which reflects a balance for
distribution of R2 653 195,69.11
From the liquidation and distribution
account the difference in ownership of the farm “Kelfa” as in the deed of
sale and the power of attorney which Mr Potgieter handed to the Master
for the S42(2) certificate becomes apparent.12
17.The Master via its estate examiner, Mrs Marina Louw, had requested all
statements of the estate bank account and paid cheques to date, but
none was forthcoming.13
18.The Master in a report to the Honourable High Court stated that the
previous executor (Jochen) had embezzled the deceased assets14
and
was removed from both executor and trustee positions also that there is
no trustee because nobody wants to accept the trustees position.15
19.From email correspondence between Mr Crozier and Jochen it is evident
that Jochen in his mind was acting as “trustee” by writing to Crozier on
the 23rd
of January 2005, “ABSA estate bank account in trust with me.
You should know me good enough that it will well be looked after.” This
after Crozier discovered the estate account closed and the money
gone.16
11
Page 104 annexure “T” of applicants founding affidavit
12
Page 100 annexure “T” paragraph 1 attached to applicants founding affidavit
13
Page 113 annexure “W” paragraph A5 attached to applicants founding affidavit
14
Page 119 annexure “Z” paragraph 16 attached to applicants founding affidavit
15
Page 140 paragraph 4 of Report by the sixth respondent
16
Page 65 annexure “J” attached to applicants founding affidavit

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20.The first respondent, received additional R30 000,00 for electrical
repairs17
that the first respondent had done this apparently to satisfy a
condition with the first respondents bonding institution (ABSA). In the
deed of sale was a suspensive18
condition which the first respondent had
already fulfilled with a private mortgaged at a higher interest rate than
the ABSA mortgage bond. With regard to the R30 000,00 there is a major
discrepancy and a contradiction in terms of what Mr Potgieter says in his
answering affidavit, “…an was paid to the So-Ane Boerdery Trust in
respect of electrical defects in the property ”, and his statement of
account reflects an amount of R30 000,00 paid to “ELECTRICAL
CONTRACTOR” from the fifth respondents trust account.19
21.The tenth respondent (Klaus) had submitted an affidavit to inform the
Honourable Court, inter alia that Dresdner Bank has laid criminal charges
under case No. BY8671-000841-13/3. Jochen had taken loans in excess
of 50 million Rand from Dresdner Bank by falsifying financial statements,
the falsified financial statements had the falsified signature of Mr
Crozier. Christiaan and Wolfgang Heinze are in no way involved with the
crimes of Jochen.20
22.The first and second respondents were, until reading the applicant’s
founding affidavit, unaware that half the purchase price they had paid
into the fifth respondents trust account was paid to Jochen.21
The first
and second respondent’s intention was to pay the estate of Rolf the total
which they had secured by a mortgage bond. The mortgage bond was
given in terms of a sale agreement between estate WR Heinze as seller
and the So-Ane Boerdery Trust as purchasers.
17
Page 197 paragraph 12.2 of fifth the respondents answering affidavit
18
Page 210 annexure “ICP2” paragraph 19.1 of the fifth respondents answering affidavit
19
Page 115 annexure “X” attached to the applicants founding affidavit
20
Page 284 of the tenth respondent’s affidavit
21 Page 180 paragraphs 22 and 23 of the first respondents answering affidavit

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B THE TRUST PROPERTY CONTROL ACT 57 OF 1988
23. Paragraph 3 of the will of the late WR Heinze is the operative
provision:22
“I give, devise and bequeath, in trust to my administrator, the whole
of my estate and effects, movable and immovable, whether in
reversion, remainder or expectancy, nothing excepted, subject to the
following conditions:”
24It is common cause that the deceased intended his entire estate to
devolve upon a testamentary trust. Honore23
at page 6 says, “If the trust
is created by will, once the will takes effect the executor is bound to hand
over the assets to the trustee in due course and the court has jurisdiction
to replace the trustee if necessary. The trust exist from the moment of
death, though it takes effect later”
24. “The act recognises and preserves the distinction between the
appointment of a trustee24
, which occurs in terms of the trust
instrument24
and a trustee’s written authorisation25
, which derives from
the Master by virtue of statutory powers. The trust instrument remains
the defining source of the trustee’s power and may have to be consulted
by persons dealing with the trustee.”26
22
An interpretation accepted by Desai J in EC01/09 Heinze v Crozier and Others
23
Cameron et al,“Honore’s South African Law of Trusts” fifth edition 2002,Juta Landsdowne
24
Section 1 of the Trust Property Control Act defines “trust instrument” as “a written agreement
or a testamentary writing or a court order according to which a trust was created”.
25
Section 6(1) of the Trust Property Control Act
26 Quoted verbatim from Honore at page 219

11. 11
25.Thus by Jochen saying to Crozier in the email that the ABSA bank account
is in trust with him he was already acting as a trustee without any written
authorisation from the Master.27
In terms of Section 10 of the Act which
states, “Whenever a person receives money in his capacity as trustee, he
shall deposit such money in a separate trust account at a banking
institution or building society.” Thus Jochen opening an estate bank
account with ABSA and claiming the insurance benefits was acts as an
executor. But as soon as he withdrew that money and closed the estate
bank account a metamorphosis took place and he was then acting as a
trustee.
26.In Simplex v Van der Merwe NO28
the Honourable court held that,
“Acts performed without the Master’s written authorisation were
null and void, could not be cured retrospectively by the trustees
themselves, after receiving authorisation, or by the Master or the
court.”
27.The consent to the sale of trust property (Kelfa) was given on the 22nd
September 2005 by Jochen, signing the consent to the sale thus acting as
the trustee before authorised by the Master to act. This act of consent
was an act of the heir giving consent to the sale in terms Section 42(2) of
the Estates Act 66 of 1965. It was not made known to the Master that
Jochen had claimed to have a 50% interest in the trust property he had
consented to selling on behalf of the trust. It was also not made known
to the Master that all hard currency (movable property) was moved to
Germany.
28.The Act at Section 9 places a duty of care, diligence and skill which is
required of a trustee.
29. “Two considerations in particular are decisive to establishing the
existence, nature and extent of a trustee’s fiduciary duty. First, the
principal focus of a trustee’s fiduciary duty is the manner in which he

12. 12
conducts the administration of trust property. Secondly, trust
administration occurs to the advantage of trust beneficiaries and they
are, consequently, beneficially interested in such administration. This
being the case, it is settled law that a trustee must, as a bonus et diligens
paterfamilias, conduct trust administration with the utmost good faith
and in the best interests of the trust beneficiaries.”29
30. A further duty is a trustee’s duty to act with the requisite impartiality,
which not only implies the avoidance of a conflict of interest between a
trustee’s personal interests and those of the beneficiaries, but also
prohibits a trustee from making any undue profit from his trusteeship
essentially the duty of loyalty as referred to in Jowell v Bramwell-Jones.30
31. In Doyle v Board of Executors31
, it was said that a trustee’s accountability
is, of course, facilitated through the trustee’s compliance with his duty
to separate trust property from his personal property.
32.Thus by Jochen claiming to be a 50% owner of the immovable property
he was in contravention of Section 12 of the Act which states, “Trust
property shall not form part of the personal estate of the trustee except
in so far as he as the trust beneficiary is entitled to the trust property.”
33.Crozier had accepted to be the auditor of the trust as early as 200427
.
The nineth respondent had contravened Section 15 of the Act, “If an
irregularity in connection with the administration of a trust comes to the
notice of a person who audits the accounts of a trust, such person shall,
if in his opinion it is a material irregularity, report it in writing to the
trustee, and if such irregularity is not rectified to the satisfaction of such
person within one month as from the date upon which it was reported to
the trustee, that person shall report it in writing to the Master.”
27
Page 65 of applicants founding affidavit
28
1996 (1) SA 111 (W)
29
François du Toit“THE FIDUCIARY OFFICE OF TRUSTEE AND THE PROTECTION OF CONTINGENT
TRUST BENEFICIARIES”, STELL L R 2007 3
30
2000 (3) SA 274 (SCA)
31 1999(2) SA 805 (C)

13. 13
C LEGAL DUTY OF ATTORNEYS AND AUDITORS
34.Mr Potgieter an attorney and conveyancer with the fifth respondent had
drafted the deed of sale for the alienation of the estate property in
dispute. After the deed of sale, Mr Potgieter had to acquire the Master’s
certificate in terms of Section 42(2) to transfer the property to the
purchasers, the So-Ane Boerdery Trust. Section 42(2) of the Estates Act
66 of 1965, states,“An executor who desires to effect transfer of any
immovable property in pursuance of a sale shall lodge with the
registration officer, in addition to any such other deed or document, a
certificate by the Master that no objection to such transfer exists. The
objection referred to here is one that the sale and transfer is free of
objection by the Master himself, as held by the court in Gray v The Master
and Others.” 32
35.The legislature did not intend that a valid transfer can take place without
the certificate from the Master. The fourth respondent, the Registrar of
deeds, as contemplated in Section 42(2) has confirmed that no such
certificate is amongst any of the documents for the transfer of the
property.
36.The fifth respondent says and is substantiated by the Master that such
certificate was issued. The applicant was informed by the fourth
respondent that the fifth respondent says he has the 42(2) certificate.
37.The Masters requirements for the 42(2) certificate is in terms of their
JM33 form. In this case the conveyancer made the application and was
assisted by the nineth respondent.
38.The fifth respondent omitted to inform the Master that half the proceeds
of the sale they are seeking approval for will not be paid into the trust
estate but instead to Jochen Heinze.
39. The Master via the estate examiner, Mrs Marina Louw, objected to the
estate only being paid half proceeds from the sale. The fifth respondent
had a legal obligation to disclose to the Master the information he had.

14. 14
40. In RAF v Shabangu Cloete JA said
“An attorney is not entitled nor obliged to advance his client’s
interests at all costs. But, generally speaking, it is no part of an
attorney’s function to protect the interests of the opposite party
by doing, or refraining from doing, something that might injure
that party. Something more is required.”33
41. Also in RAF v Shabangu34
, Cloete JA said,
“It is impossible to lay down an all-embracing test as to when an
attorney will be held to owe a legal duty towards a person other
than the client particularly where, as here, that person relies on a
negligent misrepresentation inducing a contract (here the
contract of settlement) , or on negligent omissions on the part of
the attorney to safeguard that person’s interests when the
attorney is performing the duty the attorney owes to the client.
The question of wrongfulness that pertinently arises in each of
such cases is essentially one of legal policy: Bayer South Africa
(Pty) Ltd v Frost 1991 (4) SA 559 (A) at 570D─F and J
(misstatement); Minister van Polisie v Ewels 1975 (3) SA 590 (A)
597A─B and Minister of Safety and Security v Van Duivenboden
2002 (6) SA 431 (SCA) [17] (omission).”
42. Mr Potgieter has made it clear that he was acting in his capacity as a
conveyancer and clearly both the beneficiaries and the Master was
relying on the skills of the conveyancer to save them from harm. In RAF

15. 15
v Shabangu, Cloete JA referred to Kruger v Coetzee35
. For the purposes
of liability culpa arises if-
(a) a diligens paterfamilias in the position of the defendant-
(i) would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss; and
(ii)would take reasonable steps to guard against such occurrence;
and
(b) the defendant failed to take such steps.
43. In Minister Van Polisie v Ewels the learned Judge said36
;“Dit skyn of
die stadium van ontwikkeling bereik is waarin n late as onregmatige
gedrag beskou word ook wanneer die omstandighede van die geval
van so n aard is dat die late nie alleen morele verontwaardiging
ontlok nie maar ook dat die regsoortuiging van die gemeenskap
verlang dat die late as onregmatig beskou moet te word en dat die
gelede skade verged behoort te word deur die person wat nagelaat
het om daarwerklik op te tree. Om te bepaal of daar
onregmatigheid is, gaan dit, in n gegewe geval van late, dus nie oor
die gebruiklike “nalatigheid” van die bonus paterfamilias nie, maar
oor die vraag of na aanleiding van die feite, daar n regsplig was om
redelik op te tree.”
32
1984 (2) SA 271 (T)
33
Road Accident Fund v Shabangu and Another 2005 (1) SA 265 at [11]
34
Road Accident Fund v Shabangu and Another 2005 (1) SA 265 at [12]
35
1966 (2) SA 428 (A) at page 430 paragraphs E-G
36
1975 (3) SA 590 (A) at 597 A-B

16. 16
44.In Minister of Safety and Security v Van Duiveboden 2002 (6) SA 431 SCA,
Nugent JA says at par [17],
“In applying the test that was formulated in Minister van Polisie v
Ewels the‘convictions of the community’ must necessarily now be
informed by the norms andvalues of our society as they have been
embodied in the 1996 Constitution. TheConstitution is the
supreme law, and no norms or values that are inconsistent with it
can have legal validity - which has the effect of making the
Constitution a system of objective, normative values for legal
purposes. In Carmichele v Minister of Safety and Security and
Another (Centre for Applied Legal Studies Intervening) 19 our
Constitution was likened to the German Constitution, of which the
German Federal Constitutional Court said the following:
‘The jurisprudence of the Federal Constitutional Court is
consistently to the effect that the basic right norms contain not
only defensive subjective rights for the individual but embody at
the same time an objective value system which, as a fundamental
constitutional value for all areas of the law, acts as a guiding
principle and stimulus for the Legislature, Executive and
Judiciary’.”
45.Also in Minister of Safety and Security v Van Duivenboden, Nugent JA
says,
“The classic test for negligence as set out in Kruger v Coetzee 47
has since been quoted with approval in countless decisions of this
Court: whether a person is required to act at all so as to avoid
reasonably foreseeable harm, and if so what that person is required
to do, will depend upon what can reasonably be expected in the
circumstances of the particular case. That enquiry offers
considerable scope for ensuring that undue demands are not
placed upon public authorities and functionaries for the extent of
their resources and the manner in which they have ordered their
priorities will necessarily be taken into account in determining
whether they acted reasonably. In the present case it was
reasonably foreseeable that harm might ensue if Brooks’s fitness
to be in possession of firearms was not enquired into in terms of s
11 and in my view a reasonable police officer would have taken the

17. 17
initiative to cause such an enquiry to be held. The police officers
who had knowledge of what had occurred on 27 September 1994
were thus clearly called upon to do so and in the absence of an
explanation their failure to do so was negligent.”
46.In terms of statutory law the JM33 at No. 2 it imposes a legal obligation
on the conveyancer, “ Aktevervaardiger se sertifikaat wat alle verskille en
onduidelikhede in beskrywing van eiendomme in Likwidasierekening,
koopakte en/of Prokurasie verduidelik.
47.A further legal obligation is placed on Mr Potgieter when he amends the
inventory, the J243, the Estates Act 66 of 1965 at section 102 Penalties-
(1) Any person who- (b) wilfully makes any false inventory under this act;
Also ss (g) contravenes or fails to comply with the provisions of section
9(3) (a) and (b) and shall be guilty of an offence and liable on conviction-
in the case of an offence referred to in paragraph (b) to a fine or to
imprisonment for a period not exceeding five years.
48.In terms of section 78 of the Attorneys Act 53 of 1979, a legal practitioner
must keep a separate trust bank account at a banking institution in the
Republic, and in this account must deposit the money held or received
by him or her (the attorney) on behalf of any person. The money was
paid in on behalf of the purchaser by the person/institution he became
indebted to. The obvious purpose as far as the first respondent was
concerned was to pay the purchase price to the seller who in terms of
the agreement he had signed was the estate of late WR Heinze. It was
unethical of Mr Potgieter to take secret instructions from Jochen.
49.Essop v Abdullah 1988 1 SA 424 (A), see also HEG Consulting Enterprises
(Pty) Ltd and others v Siegwart and Others 2000 (1) SA 507 (C)
Rights and duties- Ethical conduct of profession- Attorney
subject to code of ethics concerning conduct of profession, in
terms of such code, interests of client subject to attorneys duties

18. 18
to Court. As officer of Court attorney obliged to maintain
highest standards of honesty and integrity.
50.In Case No. 579/2009 Coetzee v Steenkamp in the Northern Cape High
Court, Kgomo JP said the following;
“I therefore conclude that the plaintiff cannot invoke his professed
ignorance of the law to excuse his illegal hunting.” And at par [13]
“the plaintiff (Mr Coetzee) conspired with the entire group of
hunters to hunt a particular species of wild animal. They did not
have a permit or licence to hunt. The plaintiff indeed hunted and
shot one spring-hare. The hunting could not take place without
the vehicle that capsized. The vehicle had to be driven to ferry
the hunters, their rifles and the hunting shooting-lamp which was
monitored to a heavy battery. The search light was manually
swivelled by plaintiff and those at the back of the van to focus the
light on fleeing or stationary quarry. It is these various
components or elements that made the hunt possible. Jettison
one set, least of all the vehicle, and you end up with a farce.”
51.I wish to emphasise Honourable Kgomo JP at par [9] in same case;
“…this raw display of ignorance is devoid of all credence,
particular regard being had to plaintiff’s curriculum vitae
narrated by himself. When it comes to life’s experiences one can
justifiably ask: Where does this man come from? Does he not
listen to the radio or watch TV (50/50 programme) or read
newspapers or other reading material related to his occupation or
what is his farming background or agricultural training and
experience worth? This is the sought of knowledge that less
sophisticated people also glean from the mouths of the populace
they interact with on a daily basis. I would have pondered a bit if
plaintiff endeavoured to persuade me that he was a hunter-
gatherer member of the Khoisan group who have not come into
contact with what we (who think we know better) would like to
call “civilization”.

19. 19
52.The eighth respondent “removing” the money, closing the estate bank
account. The nineth respondent amplifying the theft as a “loan” and
getting the third respondent to re-open the deceased’ current account
and to rename it, the “Estate Account, late WR Heinze”. The fifth
respondent acting as attorney, notary and conveyancer who had prior
knowledge of the executor and trustees “interest”, transferring two
farms in what he in affidavit says the one held only in the deceased’
name was partnership property. In affidavit the fifth respondent says
he confirmed this “instruction” from Jochen with Crozier and tested the
veracity with a “partnership agreement” signed before a notary. Giving
the entire proceeds of the sale of the farm sold to Mr AH Lourens to
Jochen, after he had satisfied his mind that a “partnership agreement”
was in place. The real test was that which the Estate Examiner, Mrs
Marina Louw, had done after receiving the liquidation and distribution
account, was requesting the past 3 years financial statements of the
entity known as Star Pig Farming. This as Honourable Kgomo JP said,
“Jettison one set and you end up with a farce.”
53.FINANCIAL INTELLIGENCE CENTRE ACT 38 OF 2001 which was assented
to 28th
November 2001, date of commencement the 1st
FEBRUARY 2002.
The purpose of the Act is:
To establish a Financial Intelligence Centre and a Money
Laundering Advisory Council in order to combat money laundering
activities and the financing of terrorist and related activities; to
impose certain duties on institutions and other persons who might
be used for money laundering purposes and the financing of
terrorist and related activities; to amend the Prevention of
Organised Crime Act, 1998, and the Promotion of Access to
Information Act, 2000; and to provide for matters connected
therewith.
Schedule 1
LIST OF ACCOUNTABLE INSTITUTIONS
Section 1 states an attorney as defined in the Attorneys Act, 1979
(Act 53 of 1979).

20. 20
Section 12 states A person who carries on the business of
rendering investment advice or investment broking services,
including a public accountant as defined in the Public Accountants
and Auditors Act, 1991 (Act 80 of 1991), who carries on such a
business. I mentioned only sections relevant to respondents who
is opposing the application before the Honourable Court.
54.The Constitution of the Republic of South Africa Act 108 of 1996
CHAPTER 1
FOUNDINPG PROVISIONS
1. Republic of South Africa.-The Republic of South Africa is one,
sovereign, democratic state founded on the following values:-
(a) Human dignity, the achievement of equality and the advancement
of human rights and freedoms
2. Supremacy of Constitution.-This Constitution is the supreme law of
the Republic; law or conduct inconsistent with it is invalid, and the
obligations imposed by it must be fulfilled
CHAPTER 2
The Bill of Rights (certain relevant sections only)
32. Access to information.-(1) everyone has the right of access to-
(a) any information held by the state; and
(b) any information that is held by another person and that is required
for the exercise or protection of any rights.
The right to access of information needs to apply in the context that the
applicant had lodged an urgent application with this Honourable Court to
prevent transfer based on the facts which were placed before the Master,
same facts for public record
Section 239. Definitions.-In the Constitution, unless the context
indicates otherwise-
“organ of state” means-

21. 21
(a) any department of state or administration in the national, provincial
or local sphere of government; or
(b) any other functionary or institution-
(i) exercising a power or performing a function in terms of the
Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of
any legislation,
but does not include a court or a judicial officer
In terms of ss (b)(ii) both the fifth respondent and the nineth respondent
in terms of legislation contained in the Attorneys Act 53 of 1979 and the
Accountants and Auditors Act 80 of 1991, respectively.
D. SUSPENSIVE CONDITIONS AND FULFILLMENT
55.A suspensive condition suspends or postpones the full operation of the
obligation which it qualifies until certainty is reached, in that condition is
fulfilled or in that it fails. Under certain circumstances a suspensive
condition, although in fact unfulfilled, will be deemed to have been
fulfilled. This is called the doctrine of fictional fulfilment of the condition.

22. 22
56.Since fictions are instruments of legal policy, it may be assumed that the
doctrine of fictional fulfilment is based on considerations relating to what
is fair and equitable. The doctrine can be explained in a more straight
forward fashion: it can be, which receives its construed as a legal rule,
which receives its content and sets its requirements to good faith as a
value that protects the reasonable expectations of contractants.
Whatever the explanation may be, it seems to be that resort to the
doctrine will not be allowed if the effect would be to countenance an
unlawful agreement.37
57.Logically, it is therefore possible to speak of a doctrine of fictional
fulfilment or non-fulfilment of a condition.38
58.The contract signed by the Estate and the first respondent had 2
suspensive conditions. The first was that the first respondent
(purchaser) should get a mortgage bond within 21 days. The purchaser
had secured a private mortgage bond at a high interest rate. The original
bond was replaced with one from ABSA at a lower interest rate. The
saving that the purchaser received in replacing his mortgage was at the
cost of the seller. The purchaser had already fulfilled the condition.
Stegman J said,39
“The proposition that by our law all contracts are bonae fidae is not
confined to matters that arise after consensus. A party who adopts
an ambivalent posture with a view to manipulating the situation to
his own advantage when he can see more clearly where his best
advantage lies has a state of mind that falls short of the
requirement of bona fides”.
37
Van der Merwe et al “Contract General Principles” fourth edition Juta page252
38
Van der Merwe at page 253
39
Savage and Lovemore Mining (Pty) Ltd v International Shipping Co (Pty) Ltd 1987
2 SA 149(W) at page 198 A-B

23. 23
59.In Premier,Free State, and Others v Firechem Free State (Pty) Ltd40
;
regarding a contract deemed to have a suspensive condition where one
party relies upon fictional fulfilment of condition amounting to unlawful
conduct, Schutz JA at [38];
“The unlawfulness which would be involved in the fulfilment of the
provision on Firechem’s terms is not the only ground for concluding
that fictional fulfilment cannot operate. As a matter of
interpretation of the acceptance letter, seen against its
background, it could not have been the intention of the parties that
the tender contract should bind the province without its receiving
the collateral benefits which had all along been an important, even
decisive, factor in the award of the tender. The accepted tender
was never intended to stand on its own as a contract.”
60.The fifth respondent had fraudulently brought about the fulfilment of
the suspensive condition. Our common law makes provision by giving
contractants a remedy against persons who are frustrating the
fulfilment of a suspensive condition by means of the doctrine of fictional
fulfilment. Similarly the common law remedy to assist contractants
where a suspensive condition has already been illegally been fulfilled,
the doctrine of non-fulfilment is applied.
40
2000 (4) SA 413 (SCA) at page 432

24. 24
F. GOOD FAITH
61.In Kriel v Terblanche NO and Others41
in this Honourable Court before
the Honourable Buys J, where the applicant sought an order setting aside
inter alia the deed of sale which the trustee had signed before he was
authorised by the Master to act, as well as the transfer by the registrar
of deeds. The Court struck down the deed of sale as the legislature says
it is expressly null and void. The Court accepted that we have an abstract
system of immovable property transfer, meaning that even if the
underlying agreement is void the transfer shall remain it will however all
depend on the real agreement. The iusta causa as Voet says at 41.1.35.
62.The applicant agrees with decision in Kriel v Terblanche NO and others
and will rely on it; JAC Thomas42
says of Metus and Dolus;
“ The delictual and other consequences of duress and fraud may be
considered hereafter, the present concern is their effect upon
contracts to the conclusion of which they were an inducement.
Dolus Malus was trickery designed to induce a course of conduct, for
present purposes, the conclusion of a contract. As defined by Labeo,
whos view was adopted by Ulpian, it consisted in; any guile, chicanery
or trick used to circumvent, defraud or dupe another person.
Both Metus and Dolus Malus had a similar pattern in their effects
upon contracts.
The only qualification on this general proposition would be that fraud
might have been so gross as to preclude agreement by inducing error,
e.g. through impersonation of the person with whom the victim of the
fraud really intended to contract.”
41
case No. 191/2001
42
JAC Thomas “Text Book ON Roman Law” First Edition Fifth Printing 1986 North Holland
Publishing Company page 227

25. 25
“But the consensual and later real contracts were enforced by bonae
fidai actions and the expression ex fide bona in the intention of the
relevant contractual action would enable the aggrieved party to seek
redress for or, as defendant, to the fraud or duress to which he had
been subjected.” JAC Thomas verbatim
63.Peter Spiller writes;43
“D 4.3.1.2 Ulpianus: Labeo’s own definition of dolus malus is that it is any
craft, deceit, or contrivance, employed with a view to circumvent,
deceive, or ensnare other persons”
“Could the defrauded person avoid the contract on the basis of the fraud?
“One must distinguish between the two types of contracts in Roman Law:
(i) Stricti iuris contracts:
(ii) Bonae fidei contracts: these were bilateral contracts (sale or lease)
here the presiding judge had jurisdiction to investigate all matters
concerning good.
64. Some other Roman Dutch authorities wrote;
Grotius on Causa at 3.1.43 says: “Contracts which spring from a
dishounarable cause or purpose,[een oneerlijke oorzaeck ofte
inzicht] are void.
Pothier saus “[w]here an engagement has no cause, or, which is
the same thing, where the cause for which it is contracted is false,
the engagement is null, and so is the contract which includes it.”
65.The portrayal of public policy as a question of fact rather than of law
suggests that the focus of the operation of fundamental rights in this
way is in reality not contract law itself, but the acts or conduct of the
parties as manifested in a contract of a particular import.44
43
Pete Spiller “ A Manuel of Roman Dutch law” Butterworths Durban 1986
44
SALJ 2004 Vol121 Lubbe, “Taking fundamental rights seriously: the Bill of Rights and its
implications for the development of contract law” at page 404 where he quotes note 50 from
Rylan v Edros supra see also Applicants Heads par 66 below quoted verbatim from Lubbe p421.

26. 26
66.“At the bedrock of understanding of dignity lies the Kantian tenet that
human beings are autonomous subjects that ‘cannot be used merely as
a means to an end by any human being… but must always be used at the
same time as an end’. From the premise of the inherent worth of
individuals and the resultant injunction as being treated as objects,
spring both notions of dignity referred to above. Irrespective of whether
the law is to take cognisance of all the implications of the notion of
dignity as constraint, it seems that our concept of dignity should be
informed by the precept that an individual ought not to.”
67. Olivier JA in EErste Nasionale Bank Van Suid Africa v Saayman NO says;45
“Die bona fides, wat gebaseer is op die redelikheidsopvattinge
van die gemeenskap, speel dus n wye en onmiskenbare rol in
die kontraktereg. Zimmermann in sy bydrae ‘Good Faith and
Equity’ in Zimmermann en Visser(reds) Southern Cross – Civil
Law and Common Law in South Africa (1996) op 217-60 toon
oortuigend aan dat gemelde beginselkompleks onderliggend is
aan bekende regsinstellings soos estoppel, rektifikasie,
onskuldige wanvoorstelling, die kennisleer, onbehoorlike
beinvloeding en dat dit n belangrike rol speel by die uitleg van
kontrakte, die inlees van stilswyende en geimpliseerde bedinge,
die oopenbaringsplig by kontraksluiting, fiktiewe vervulling van
n voorwaarde en erkenning van repudiering as n vorm van
kontrakbreuk. Dit blyk ook dat daar n innige verband bestaan
tussen die begrippe bona fides, openbare belang, openbare
beleid en justa causa. Dit blyk uit die analise van Smalburger
AR in Sasfin (Pty) ltd v Beukes (supra op 7I- 8G); uit die woorde
van Hoexter AR in Botha (now Griessel) and Another v
Finanscredit (Pty) Ltd (supra op 783 A-B) dat openbare belang
gerig is op die noodsaklikheid dat simple justice between man
and man gedoen moet word, en uit wat gese is in Magna Alloys
and Research (SA) (Pty) Ltd v Ellis (supra).
45
EErste Nasionale Bank Van Suid Africa v Saayman NO 1997(4) SA 302

27. 27
68.In Sasfin (Pty)Ltd v Beukes Smalburger JA says;46
“ No Court should therefore shrink from the duty of declaring a
contract contrary to public policy when the occasion so
demands. The power to declare contracts contrary to public
policy should, however, be exercised sparingly and only in the
clearest of cases, lest uncertainty as to the validity of contracts
result from an arbitrary and indiscriminate use of the power.”
69. In Emfuleni Local Municipality v Builders Advancement Services CC47
,
Willis J on the Judgment of in Philani-Ma-Afrika & Others v W M Mailula
& Others (674/08) [2009] ZASCA 115 says;
“The appeal was heard by the Supreme Court of Appeal (“the
SCA”). The SCA found that a Mr Mkhumbuzi, who signed the
deed of sale in respect of which Mr Mailula was the buyer, was
not authorised “to sell the building or to sign the conveyancing
documents for the property to be transferred to Mr Mailula”.7
Accordingly, the orderswhich I had made had to be set aside and
replaced with orders which set aside the sale and the transfer of
the property.8 The SCA did not refer to any of the statutory or
common law authorities or any of the academic literature with
which I had engaged when delivering my judgment. Although it
did not say so explicitly, the SCA seems to have applied the
principle that “fraud unravels all”. This principle is one of English
law, although it has been adopted in Phillips and Another v
Standard Bank of South Africa Ltd and Others 1985 (3) SA 301
(W) at 303D-I.”
46
Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A)
47
CASE No. 2009/51258 SAFLII, JDR (Juta) and JOL (LexisNexis).

28. 28
G. THE CONSTITUTIONAL PROPERT CLAUSE
70. THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA Act 108 of
1996 Section 25. Property.- (1) No one may be deprived of property
except in terms of law of general application, and no law may permit
arbitrary deprivation of property.
(2) Property may be expropriated only in terms of law of general application-
(a) for a public purpose or in the public interest; and subject to
compensation, the amount of which and the time and manner of payment
of which have either been agreed to by those affected or decided or
approved by a court.
(3) The amount of the compensation and the time and manner of payment
must be just and equitable, reflecting an equitable balance between the
public interest and the interests of those affected, having regard to all
relevant circumstances, including-
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(e) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and
beneficial capital improvement of the property;
(e) the purpose of the expropriation.
(4) For the purposes of this section-
(a) the public interest includes the nation’s commitment to land reform, and
to reforms to bring about equitable access to all South Africa’s natural
resources; and
(b) property is not limited to land.
(5) The state must take reasonable legislative and other measures, within its
available resources, to foster conditions which enables citizens to gain
access to land on an equitable basis.
(6) A person or community whose tenure of land is Iegally insecure as a
result of past racially discriminatory laws or practices is entitled, to the

29. 29
extent provided by an Act of Parliament, either to tenure which is legally
secure or to comparable redress.
(7) A person or community dispossessed of property after 19 June 1913 as a
result of past racially discriminatory laws or practices is entitled, to the
extent provided by an Act of Parliament, either to restitution of that
property or to equitable redress.
(8) No provision of this section may impede the state from taking legislative
and other measures to achieve land, water and related reform, in order to
redress the results of past racial discrimination, provided that any departure
from the provisions of this section is in accordance with the provisions of
section 36 (1).
(9) Parliament must enact the legislation referred to in subsection (6).
71.Section 25(1) requires that a deprivation of property should be imposed
in terms of law of general application, which law should not permit
arbitrary deprivation of property….However, this requirement is more
complex than it appears at first’ because it raises difficult questions like
substantive due process and the meaning of ‘arbitrary’.48
72.The property clause has often been said that it is not a right to property
like for example a right to housing, but merely a right to protection of
property, this however can be debated in terms of the limitations clause
at section 36. Be that as it may section 21(1) clearly has a horizontal
application compared to s 21(2).
73.Section 25(4) (a) the public interest includes the nation’s commitment to
land reform, and to reforms to bring about equitable access to all South
Africa’s natural resources. Does/could this mean that where a sale takes
place it should become a public event, that the public needs to be
informed as to the sellers intention to sell, obviously putting it to the
public would ensure a higher offer, that the germination of the decision
to sell should be just as public as the end resulting in publication at the
deeds office.

30. 30
74.Section 25(4) (b) property is not limited to land.
In Evelyn-Wright v Pierpoint and Another NNO “an action in which the
validity or legal effect of a will is to be determined is really an action relating
to the right to or in property. Similarly, an application for rectification of a
will which will have an effect on the devolution of assets is, in my view, an
action relating to the right to or in property”49
48
AJ Van Der Walt, “The Constitutional Property Clause”Juta Kenwin 1997
49
1987 (2) 111, quoted by the court from Pollack The SA Law of Jurisdiction (1937) at 138

31. 31
G LIST OF AUTHORITY
Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A)
Evelyn-Wright v Pierpoint and Another NNO 1987 (2) 111
Philani-Ma-Afrika & Others v Mailula & Others (674/08) [2009] ZASCA 115
EErste Nasionale Bank Van Suid Africa v Saayman NO 1997(4) SA 302
Kriel v Terblanche NO and others Case 191/2001 (NC)
Premier,Free State and Others v Firechem Free State (Pty) Ltd 2000 (4) SA
413 (SCA)
Savage and Lovemore Mining (Pty) Ltd v International Shipping Co (Pty) Ltd
1987
Coetzee v Steenkamp Case No. 579/2009 (NC)
Essop v Abdullah 1988 1 SA 424 (A)
Road Accident Fund v Shabangu and Another 2005 (1) SA 265
Minister van Polisie v Ewels 1975 (3) SA 590 (A)
Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA)
Simplex v Van der Merwe NO 1996 (1) SA 111
EErste Nasionale Bank Van Suid Africa v Saayman NO 1997(4) SA 302
HEG Consulting Enterprises (Pty) Ltd and others v Siegwart and Others 2000
(1) SA 507 (C)
Kruger v Coetzee 1966 (2) SA 428 (A)
Gray v The Master and Others 1984 (2) SA 271 (T)