IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

CASE NO: 26446/2015
REPORTABLE: NO
OF INTEREST TO OTHER JUDGES: NO
REVISED: NO
2 September 2022

In re:
CORNELIA GERTRUIDA FREEMAN				Applicant
and
MARIUS FREEMAN 						First Respondent 

MARIUS FREEMAN NO TRUSTEE OF THE FREEMAN 
BUSINESS TRUST							Second Respondent

MANDI FREEMAN NO TRUSTEE OF THE FREEMAN 
BUSINESS TRUST							Third Respondent

JOHN JAMES FREEMAN NO TRUSTEE OF THE FREEMAN 
BUSINESS TRUST							Fourth Respondent

RAMREF MANAGEMENT AND HOLDINGS (PTY) LTD	Fifth Respondent

FERMAR (PTY) LTD						Sixth Respondent

KAMEELDORING VLAKTE BOERDERY (PTY) LTD		Seventh Respondent

SCHWEIZER ABATTOIR (PTY) LTD				Eight Respondent

DRIVEN DIESEL ENTERPRISES (PTY) LTD			Ninth Respondent

FERMAR CAPE TOWN (PTY) LTD				Tenth Respondent

SABLE GRANITE (PTY) LTD					Eleventh Respondent
	
BHEJANE MINING AND CRUSHING (PTY) LTD		Twelfth Respondent

BHEJANE GRANITE (PTY) LTD					Thirteenth Respondent

MAXON SECURITY SERVICES (PTY) LTD			Fourteenth Respondent

R & M RANCH (PTY) LTD						Fifteenth Respondent
	
LEGAD (PTY) LTD							Sixteenth Respondent

AFROPULSE 177 (PTY) LTD					Seventeenth 
Respondent
  
NORTHERN SPARK TRADING (PTY) LTD			Eighteenth Respondent

SILVER SNAKES TRADING (PTY) LTD 			Nineteenth Respondent

BIG CEDAR TRADING 89 (PTY) LTD				Twentieth Respondent

HIGHLAND GATE BOERDERY (PTY) LTD			Twenty-first 
Respondent

GVDM COLLECTIONS (PTY) LTD				Twenty- second 
Respondent

EV PROPERTY HOLDINGS (PTY) LTD		Twenty-third 
Respondent

BLOEMFONTEIN EV PROPERTIES (PTY) LTD		Twenty-fourth 
Respondent

LOWVELD SPORTS INITIATIVE (PTY) LTD			Twenty-fifth 
Respondent

MIANDI FREEMAN							Twenty-sixth 
Respondent

JOHN JAMES FREEMAN						Twenty-seventh 
Respondent

THE MASTER OF THE HIGH COURT   				Twenty-eighth 
Respondent

In the matter between:

MARIUS FREEMAN 						Plaintiff

and

CORNELIA GERTUIDA FREEMAN				Defendant 

JUDGMENT

DE VOS AJ
Introduction
[1]	This is a joinder application in the context of ongoing divorce proceedings.  The applicant seeks the joinder of several companies and a family trust. 
[2]	The applicant wishes to seek relief against the trust and the companies.  The crux of this relief is that the assets owned by the trust and companies are to be considered for purposes of the divorce.  In order to seek this relief, the applicant requires, as a first step, to join them to the divorce proceedings. 
[3]	The relief ultimately sought by the applicant is competent relief. Our Courts have permitted the piercing of the veil of a company and the vesting of trust assets in a person's estate, in the context of divorce proceedings.  However, without the joinder of the additional parties the applicant cannot seek this relief.
[4]	The first respondent contends that the applicant has not made out a sufficient case to ground the joinder application. The case therefore turns on the test for joinder. 
LEGAL PRINCIPLES AT PLAY
Test for joinder
[5]	The applicant has to show a direct and substantial interest in the subject matter of the proceedings.  If the applicant shows that the entities to be joined have "some right which is affected by the order issued" then they are to be joined.  
[6]	The principle which belies the issue of joinder is that no court may make a decision "adverse to any person’s interests, without that person first being a party to the proceedings before it." The Court cannot grant relief, ordinarily, where any other person’s interests may be directly affected without formal judicial notice of the proceedings. 
[7]	Once the applicant shows a direct and substantial interest in the subject-matter of the case, the Court ought to grant leave to intervene.  In Greyvenouw CC the court held that if an applicant bases a claim on a direct and substantial interest in the subject-matter of the dispute, the Court has "no discretion: it must allow them to intervene because it should not proceed in the absence of parties having such legally recognised interests.” 
Facts 
[8]	The applicant is unemployed and the first respondent is involved in, and stands in control of, a large business empire. The applicant alleges that the first respondent is a "well-known and successful businessman and a director as well as shareholder in several profitable businesses".  The applicants sets out in the founding papers, the basis for the additional parties' direct and substantial interest.  There are three sets of additional parties.
[9]	First, the trustees and beneficiaries of the trust.  The applicant intends to seek relief against the trust. The applicant alleges that if the claim succeeds against the trust, it follows that benefits of the trustees and beneficiaries may be affected.  These parties have conceded, rightfully, that they have an interest in the proceedings. The 3rd, 4th, 26th and 27th respondents concede the substantive test for joinder have been met.  
[10]	Second, the trust.  The applicant alleges that the trust is the alter ego of the first respondent. During their marriage, the applicant was made to believe that the trust was used as a vehicle holding several shares and assets which the first respondent did not want to hold in his personal capacity. The applicant deposes that "all the assets held by the trust are de facto and de jure, part of the assets of the first respondent".  In addition, the applicant deposes that the trust and the companies are interlinked legal entities.   
[11]	Third, the companies. The applicant sets out the various shareholding of the first respondent in the companies, they range from 100% shareholding to 20% shareholding.  
[12]	These allegations are, in their substance, not disputed by the first respondent.  
The opposition
The applicant does not meet the test in REM v VM
[13]	The first respondent contends that in terms of REM v VM the applicant carries the onus to prove that the veil of the companies must be pierced, that the trust assets are de facto assets of the first respondent and that the creation of the entitles were invalid from the outset. 
[14]	The first respondent correctly identifies the hurdles the applicant has to overcome, however, misidentifies when these hurdles have to be overcome.  They are hurdles for the trial, not for the stage of joinder.  At this stage, the applicant seeks the joinder of the additional parties and the only standard to be met is that of a direct and substantial interest. 
[15]	Our courts have repeatedly expressed that these issues, the merits of the joinder and the merits of the relief sought at trial, must be kept separately.  
[16]	RP v DP and Others Alkema J refers to the applicant's contentions that the first respondent effectively used the trust as a vehicle to accumulate personal wealth, and to various transactions conducted through the trust for his personal benefit. These allegations are, "of course, vehemently denied by the first respondent "in his answering affidavit.  The Court holds "it is unnecessary for purposes of this application to make any factual findings in this regard — this is the function of the trial court and the less said the better."
[17]	In EEVW v PJVW Erasmus AJ held that "the issue of joinder should not be conflated with the issue whether the party seeking joinder has a good cause against the party sought to be joined".  The Court express held that it is "not required to assess the merits of the applicant's claim in the divorce action. As long as the relief may be claimed against such a party, and the latter's interest may be prejudicially affected, joinder becomes necessary".  Only if the relief sought is bad in law and/or cannot be supported by any reasonable interpretation of the amended particulars of claim.
[18]	In ML v AJ the Court held that the "issue of joinder should not be conflated with the issue whether the party seeking joinder has a good case against the party sought to be joined." 
[19]	The distinction is one that must be kept alive, and the Court dealing with the merits of the joinder application must not venture into the merits of the relief ultimately sought. This Court must not entertain the merits of the ultimate relief, and must confine itself to the issue of joinder.  
The applicant's allegations are unsubstantiated
[20]	The respondent contends that the applicant's allegations in support of the joinder application are vague and "unsubstantiated".  Essentially, the opposition is that the applicant has not proven the allegations made against the entities.  This argument has been repeatedly made, and consistently rejected as incorrect by our Courts. The correct approach is to assume that the applicant's allegations are correct, and based on that assumption, whether the legal requirements for joinder have been met. 
[21]	In RP v DP and Others Alkema J holds that -
"the correct approach in considering the application for joinder and amendment, is to decide whether, if the applicant's allegations are found to be proven by the trial court, she has met the legal requirements for a joinder and amendment." 
[22]	In BC v CC Dambuza J affirmed this test - 
"[i]n my view, if the plaintiff's allegations are proved to be correct, the plaintiff will have succeeded in proving that the assets ostensibly owned by the trust, or some of them, are de facto the property of the first defendant, and that their value ought to be taken into account in determining the extent of accrual of the estate of the first defendant."
[23]	Dambuza J affirms that "the approach is to accept the plaintiff's allegations as correct".  
[24]	In EVW the Court held that it must accept the "allegations of the plaintiff, as set out int he amended particulars of claim, as correct and determine whether these are capable of supporting a cause of action". The Court considers that as the relief sought by the applicant is legally competent, if the facts to substantiate the averments are proven during trial. 
[25]	In International Pentecost Holiness Church this Court, per Basson J, held that the applicant -
"does not have to satisfy the court at the stage of intervention that it will succeed. It is sufficient if such applicant make allegations which, if proven, would entitle it to relief". 
[26]	Based on this principle, the Court concludes that it is therefore not, for purposes of this application, necessary to consider the merits of the applicant’s case -  
"It should be noted that it is not necessary for the applicant to satisfy the court that it will succeed in this case. It is sufficient for the applicant to rely on the allegations made which, if established in the action, would entitle the applicant to succeed. In assessing the applicant’s standing, the court must assume that the allegations made by the applicant are true and correct. Further, the possibility that the applicant’s legal interest exists is sufficient. It is not necessary for the court to determine positively that it does indeed exist.
[27]	In the SA Riding Case the Constitutional Court held - 
"the applicant does not have to satisfy the court at the stage of intervention that it will succeed.  It is sufficient for such applicant to make allegations which, if proved, would entitle it to relief."
[28]	Ex Parte Moosa: in re Hassim v Harrop-Allin the Court emphasized that at the stage of the application for leave to intervene, the court need not be over concerned with the intrinsic merits of the dispute which can be fully canvassed in the main proceedings.
[29]	Of course, if the applicant fails to make out a substantive case against the additional parties, they are not without any remedy.  It will remain open to them to raise an exception if no cause of action is made out against them.  
[30]	The approach of our courts, to accept the applicant's allegations as correct for purposes of joinder, has been repeatedly applied in the context of divorce proceedings. This body of jurisprudence evinces a consistent rejection of the ground on which the first respondent has opposed the joinder relief.
COSTS
[31]	Costs must be considered in circumstances where - 
13. 1	The applicant sought costs only in the event of opposition.  
13. 2	The first respondent opposed the relief, despite the clear jurisprudence on the point.  
13. 3	The applicant was the defendant and therefore did not have the luxury of joining the necessary parties from the outset.  
ORDER
[32]	In the result, the following order is granted:
1.	The 2nd to 28th respondents are joined in the action instituted by the plaintiff against the defendant in case number 26446/2015.
2.	The first respondent is ordered to pay the costs of this application.

I de Vos
Acting Judge of the High Court

Delivered:  This judgment is handed down electronically by uploading it to the electronic file of this matter on CaseLines. As a courtesy gesture, it will be sent to the parties/their legal representatives by email. 

Counsel for the applicant: 				HF Fourie
Instructed by:  					Cronje de Waal Skhosana Inc
Counsel for the 3,4, 26 and 27 respondents: 	C van Schalkwyk
Instructed by:  					TMJ Attorneys
Counsel for the remainder of the respondents:	FW Botes SC
Instructed by: 					Schoeman Borman Inc
Date of the hearing:					01 August 2022	
Date of judgment:					02 September 2022