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[2018] ZAWCHC 123
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Seawright v Nedgroup Trust Limited NO and Others (A34/2018) [2018] ZAWCHC 123 (11 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
WCC
APPEAL A 34/2018
In
the matter between
CAROLYN
WINIFRED ANNE SEAWRIGHT
APPELLANT
And
NEDGROUP TRUST LIMITED
NO
FIRST RESPONDENT
RICHARD EDWARD HARRIS
NO SECOND
RESPONDENT
DAVID DAWSON COSGROVE NO
THIRD
RESPONDENT
JOHN FAULKNER SELDON
NO
FOURTH RESPONDENT
MASTER OF THE HIGH
COURT FIFTH
RESPONDENT
NEDGROUP TRUST
LIMITED SIXTH
RESPONDENT
RICHARD EDWARD
HARRIS SEVENTH
RESPONDENT
DAVID DAWSON COSGROVE
EIGHTH
RESPONDENT
JOHN FAULKNER
SELDON NINTH
RESPONDENT
CORAM: BAARTMAN J; PARKER J; THULARE AJ
JUDGMENT DELIVERED ON 11 SEPTEMBER 2018
THULARE
AJ
[1]
This is an appeal to the full bench of the Western Cape Division of
the High Court against a decision in which the Honourable
Judge
upheld an exception raised against amended particulars of claim,
struck out the amended particulars of claim and dismissed
a prayer
for the immediate termination of a trust.
[2]
Initially, the appellant sued for the removal of the trustees. The
allegations against the trustees relied upon by the appellant
for
their removal may be summarized as conflict of interest, impropriety
and improper exercise of their discretion. The appellant
later
amended her particulars to include a prayer for the immediate
termination of the trust. The exception is taken only to the
new
claim.
[3]
The thrust of the exception is that the antecedent allegations which
support the claim for the removal of the trustees and remain
as the
essential factual cornerstone of the new claim for the termination of
the trust, do not suffice to establish as a separate
cause of action
the new claim and are inimical to a claim under section 13 of the
Trust Property Control Act 57 of 1988 (the Act).
[4]
On 9 June 1994 Mr Robert Morton Felix Seawright (Roy) established the
Roy Seawright Trust (the Trust). The initial trustees
were Roy,
Richard Edward Harris (Harris) and Syfrets Limited (successor in
office to first respondent). Roy wished that Harris
remain a trustee
for Harris’ lifetime and after Roy’s death that he be
chairman of the trustees. The other trustees
assumed office over the
years. The second, fifth and seventh respondents are not party to
this appeal.
[4] The intention for the trust is set out as follows in
the preamble to the deed:
“
AND THE SAID APPEARER
DECLARED THAT
WHEREAS the DONOR is desirious of
establishing a Trust to be known as THE ROY SEAWRIGHT TRUST with the
intention of benefitting
the BENEFICIARIES on the terms and
conditions to the intents and purposes hereinafter set out”
[5] In determining who the beneficiaries are for whose
benefit the trust was intended, clause 4 and 5.1. and 5.2 of the deed
provide
as follows:
“
4. DISPOSAL OF INCOME
AND/OR CAPITAL
Until the termination date
hereinafter referred to, the nett income and/or capital of the Trust
Funds may in the absolute discretion
of the TRUSTEES, be used for the
benefit of any one or more of the DONOR, his descendants and their
spouses or any Trust of which
any of the aforegoing persons is or may
become a Beneficiary, as the Trustees shall deem fit and they shall
accumulate any income
not so used.
5 DISPOSAL OF CAPITAL AT TERMINATION DATE
5.1. The Trust shall terminate upon the date
(referred to as the (“TERMINATION DATE”) which shall be
50 (FIFTY) years
after the death of the DONOR or such other date
determined by the TRUSTEES in terms of CLAUSE 5.3
5.2. The balance of the capital (including any
accumulated income) held by the Trust as at the TERMINATION DATE
shall devolve upon
the DONOR’S children, CAROLYN WINIFRED ANNE
SEAWRIGHT and LINDA VERONICA SEAWRIGHT in equal shares, or if any one
shall have
predeceased the TERMINATION DATE, upon her issue per
stripes, failing issue, upon the surviving child of the DONOR with
issue of
any predeceased child taking in place of the parent per
stirpes.
If there is no such person in
esse, then the balance of the capital (including any accumulated
income) shall devolve upon the TRUSTEES
for the time being of THE
BARTON MARK TRUST failing such Trust for whatsoever reason, upon the
TRUSTEES for the time being of the
CLIFFORD HARRIS USUFRUCTUARY
TRUST, to be dealt with by, and subject to, the possession and
control of, the said TRUSTEES in terms
of the said TRUSTS. In the
event of the latter TRUST having terminated then the balance of the
capital shall be distributed in
accordance with the provisions of
that TRUST.”
[6]
Roy died in 2001 and as a result the ordinary termination date would
be 8 January 2051 unless the trustees made a decision to
terminate in
terms of clause 5.3 of the deed. The appellant is Roy’s
daughter. It is common cause that Linda, Roy’s
other daughter,
was divorced, had no children, died in 2009 and although a primary
beneficiary she had not received any benefits
from the trust. She
emigrated to the United States of America (USA) long before her
death.
[7]
The appellant alleged in her papers that the trustees conducted or
permitted a scheme calculated to ensure that the bulk of
the trust
patrimony devolved upon Harris or his family rather than herself as
the remaining income and capital beneficiary and
that the scheme is
premised fundamentally, if not exclusively, upon the trustees’
application of clause 5.2 of the deed.
The appellant’s case is
that neither the Barton Mark Trust nor the Clifford Harris
Usufructuary Trust (the trusts) nor any
other persons contemplated in
the second part of clause 5.2 has any interest of a fideicommissary
or residual nature, which could
justify the trustees, during her
lifetime, in preserving any part of the patrimony of the trust for
their eventual benefit. Nonetheless
the trustees have consistently
withheld benefits from her, or permitted only minimal benefits
because they want to secure future
benefits for the trusts, where
Harris and his family are beneficiaries as whatever is withheld from
her will, upon her death, accrue
to them. Appellant’s case is
that it is in Harris’ interest to minimize benefits to her so
as to maximize the eventual
benefits to the trusts. Further relying
on their implementation of clause 4, 5.1 and 5.2 of the deed,
appellant claims that the
trustees recognized the rights, benefits,
interests and encumbrances in favour of the substitution parties in
preference to or
in competition with her and Linda [para 110A of the
particulars of claim (the particulars)].
[8] Clause 3.3 of the deed reads as follows:
“
The TRUSTEES shall be
empowered to borrow money and to make loans to any person, including
any BENEFICIARY. Such borrowing may be
done from Bankers on overdraft
or from other persons and it shall be permissible to pledge or cede
Trust assets as security for
any advance. The TRUSTEES may lend Trust
funds, including borrowed money to the DONOR’s Estate for the
purpose of Estate
Duty payments, anywhere in the world.”
Appellant
alleges that in their implementation of this clause, the trustees
withheld benefits to her altogether,
inter
alia
upon the
pretext of making secured loans to her [para 117A of particulars].
[9]
In implementation of clause 4 of the deed, appellant claims that the
trustees minimized benefits to her,
inter
alia
upon the
pretext that she had to exhaust her personal, independently owned
patrimony before becoming eligible for such benefits
[para 119A of
the particulars]. They implemented clause 4 and or 3.7 of the deed to
make negligible payment of benefits to her
[para 125A of the
particulars].
[10] Clause 3.7 of the deed read as follows on the
powers of the trustees:
“
3.7 At their sole
discretion, to create or cause to be created a Trust or Trusts
anywhere in the world upon the same terms as this
Trust mutatis
mutandis, for the benefit of any BENEFICIARY of this Trust and to
transfer to any such Trust or Trusts such portion
of the Trust
Capital as shall in the sole and absolute discretion of the TRUSTEES
represent the share of the BENEFICIARY concerned
in this Trust.”
Appellant alleged that relying on this clause the
trustees established the Seawright Trust in Guernsey (the offshore
trust) and
thereafter endowed it with one half of the patrimony of
the Trust. However, the offshore trust was not established upon the
same
terms
mutatis mutandis
for the benefit of any beneficiary
of the trust. The terms differed in numerous material respects the
most notable being the addition
of other entities and persons to the
income and capital beneficiaries in clause 4 of the trust deed. The
beneficiaries of the offshore
trust are set out as follows in the
third schedule of its deed:
“
THE THIRD SCHEDULE
hereinbefore referred to
(The beneficiaries)
(a)
The children of
Robert Morton Felix Seawright and/or any trust/s of which any of the
aforegoing is or may become a beneficiary
(b)
After the death
of all the aforegoing natural persons
(i)
The trustees (in
their capacity as such) for the time being of Barton Mark Trust;
Failing such trust for whatsoever reason, upon
(ii)
The trustees (in
their capacity as such) for the time being of the Clifford Harris
Usufructuary Trust;
Failing which such trust for
whatsoever reason, upon
(iii)
The children of
Claire Elizabeth Harris (born Seawright) and any child failing, the
issue of such child per stirpes and failing
issue, the surviving
children with the issue of any predeceased child taken in place of
the parent per stirpes, and/or any trust/s
of which any of the
aforegoing persons is or may become a beneficiary;
(iv)
And/or any
company of which such aforegoing trust/s and/or persons specified in
sub-paragraphs (b)(i)-(ii) above is or may become
a majority
shareholder.
Such other person or persons as the Trustees shall by
deed or deeds in their absolute discretion appoint.”
Appellant’s
case is further that albeit through the offshore trust an entitlement
was created by the trustees, directly or
indirectly in favour of
Harris or his family in relation to one half of the patrimony of the
trust. Otherwise than with the trust,
the offshore trust would not
terminate upon the death of the appellant because its ongoing purpose
will be to benefit the new beneficiaries
[para 82A of the
particulars].
[11]
Appellant’s case is that relying further on their
implementation of clause 3.7, the trustees also wrongfully procured
the consent of the South African Reserve Bank for the exporting of
part of the patrimony of the trust exposing to attachment or
forfeiture [para 82T of the particulars] and engaged in the endowment
of the offshore trust, not being a trust envisaged for that
purpose
by the donor [para 95A of the particulars].
[12]
Appellant’s case is that from the date of the donor’s
death until 2012 the total capital value of the original
assets of
the trust more than doubled from R19 263 580 to R50 099 376 and that
the current total value is probably in excess of
R100 million. It is
undisputed that over the same period the trustees paid to the
appellant R1 745 317 and that they made unsecured
loans to her of
R283 495, that is a total payment of R2 028 812. They never paid
anything to any other beneficiary of the trust.
Since the death of
the donor the trustees paid the appellant the equivalence of about 2%
of the estimated present value of the
trust patrimony and if the
appellant dies before the trust terminates about 98% of the estimated
value of the patrimony will devolve,
directly or indirectly, upon
Harris and his family. This is how the appellant interprets what the
trust deed means to her.
[13]
The court a quo found that what is alleged by the appellant to have
brought about the consequences contemplated in section
13 (a) and (b)
of the Act is the alleged unlawful conduct of the trustees who are
alleged to have acted contrary to the provisions
of the trust deed.
The court a quo was of the view that this took the matter outside the
scope of section 13 of the Act, as it
was the conduct of the
trustees, and not the provisions of the trust deed which was alleged
to have brought about the consequences
contemplated in section (a)
and (b) of the Act. The court a quo further found that the submission
by appellant that in the event
of the trial court coming to the
conclusion that the trustees were not in breach of the provisions of
the trust deed, then it follows
that the applicable clauses brought
about consequences as contemplated in section 13(a) and (b) of the
case was not in line with
the case she pleaded.
[14]
The true issue between the parties is whether the trustees were
pre-occupied with advancing their personal interests at the
appellant’s expense as the sole remaining capital beneficiary
of the trust in breach of their fiduciary duties and as a result
the
time and circumstances have arisen to warrant the termination of the
trust as a whole or the removal of the trustees. The crisp
issue on
this appeal is whether the same allegations in support of the removal
of the trustees can also support, in the alternative,
a claim in
terms of section 13 of the Trust Property Control Act 57 of 1988 (the
Act).
[15] In
Telematrix (Pty) Ltd v Advertising Standards
Authority SA
2006 (1) SA 461
(SCA) at para 3 it was said:
“
[3] Exceptions should be dealt
with sensibly. They provide a useful mechanism to weed out cases
without legal merit. An over-technical
approach destroys their
utility. To borrow the imagery employed by Miller J, the response to
an exception should be like a sword
that ‘cuts through the
tissue of which the exception is compounded and exposes its
vulnerability’.”
In
Imprefed (Pty) Ltd v National Transport Commission
1993 (3) SA 94
(AD) at 107C-E it was said:
“
At the outset it need hardly
be stressed that:
‘
The whole purpose of pleadings is to bring
clearly to the notice of the Court and the parties to an action the
issues upon which
reliance is to be placed.’
(
Durbach v Fairway Hotel Ltd
1949 (3) SA 1081
(SR) at 1082)
This fundamental principle is similarly stressed in
Odgers’
Principles of Pleading and Practice in Civil Actions
in the High Court of Justice 22
nd
ed at 113:
“
The object of pleading is to ascertain
definitely what is the question at issue between the parties; and
this object can only be
attained when each party states his case with
precision.”
[16]
In order to succeed, an excipient on the grounds that the pleadings
does not disclose a cause of action has the duty to persuade
the
court that upon every interpretation which the pleading in question
can reasonably bear, no cause of
action
is disclosed;
failing this, the exception ought not to be upheld [
Ramatshimbila
v Phaswana
(199/13)
[2014] ZASCA 117
(19 September 2014) at para 6].
[17]
The effect of the appellant’s pleadings, in my view, is that
“
If a party
enters into an arrangement which can only take effect by the
continuance of a certain existing state of circumstances,
there is an
implied engagement on his part that he should do nothing of his own
motion to put an end to that state of circumstances
under which alone
the arrangement can be operative”
[
Truter
v Hanke
1923 CPD at
50]. The gist of this effect is that Roy relied on Harris’s
prudence and ability to assess situations and people
accurately and
trusted Harris’ ability to make good business judgments and
take quick decisions, and that Harris and the
other trustees are now
abusing that position of reliance and trust for Harris’ benefit
and that of his family to the prejudice
of Roy’s only remaining
capital beneficiary. Simply put, this effect is that the court should
intervene and enforce the principle
that a wrongdoer (in particular
Harris and in general the trustees) should not be allowed to profit
from their own wrong.
[18]
The appellant seeks the termination of the trust on the grounds that
the trustees in general and in particular Harris has a
beneficial
interest in the trust property and should the trust come to an end in
the manner that the trustees interpret what is
set out in the deed,
Harris and his elected beneficiaries will as a result acquire a
personal interest in the trust property contrary
to what Roy had
intended. This result came about because the trustees had abused a
discretionary power conferred upon them by the
terms of the trust
deed, in breach of their obligations and fiduciary duties and in
furtherance of their scheme to benefit others
other than the
appellant as a capital beneficiary. The termination is sought on the
grounds that the trustees do not manage the
affairs of the trust with
prudence, care, diligence and skill required for the benefit of Roy’s
remaining capital beneficiary,
but the affairs are managed to her
prejudice.
[19] This, if proved, in my view, stands in direct
contradistinction with the position of a trustee, which has been set
out as follows
in
Braun v Blann and Botha NNO and Another
[1984] ZASCA 19
;
1984
(2) SA 850
(AD) at 859G-H:
“
The trustee is the owner of
the trust property for purposes of administration of the trust but
qua trustee he has no beneficial
interest therein. Should the trust
fail or come to an end he does not as a result acquire a personal
interest in the trust property.
On his death the trust property does
not devolve on his heirs.”
In
Lupacchini NO & Another v Minister of Safety
and Security
2010(6) SA 457 (SCA) at para 1 the following was
said in relation to a trustee and the trust property:
“…
A trust that is
established by a trust deed is not a legal person –it is a
legal relationship of a special kind that is described
by the authors
of Honore’’s South African Law of Trusts as “a
legal institution in which a person, the trustee,
subject to public
supervision, holds or administers property separately from his or her
own, for the benefit of another person
or persons or for the
furtherance of a charitable or other purpose.””
[20]
In my view, it is clear that appellant’s case is that it cannot
be said that Roy must have been fully aware of the certainty
that the
trustees would continue to use the terms of the trust deed in
furtherance of a scheme to benefit the substitution and
income
beneficiaries envisaged in paragraph 2 of clause 5.2 of the trust
deed in preference and to the prejudice of the interest
of the
appellant who is a primary capital beneficiary as envisaged in
paragraph 1 of clause 5.2 of the trust deed.
I understand her
case further to be that it also cannot be said that the absolute
discretion that Roy conferred on the TRUSTEES
for the use of the net
income and/or capital of the Trust Funds was intended for the
TRUSTEES to use for the benefit of the substitution
and income
beneficiaries through preserving the bulk of that net income and/or
capital substantially intact and withholding from
the appellant and
other capital beneficiaries as provided for in paragraph 1 of clause
5.2, benefits due to them as envisaged in
clause 4 of the trust deed
before the termination date and during the subsistence of the trust.
The appellant suggests that the
respondents are preserving a large
bulk for Harris and his family and what appellant seeks to establish
through the courts is whether
this is what Roy had in mind when he
crafted the applicable clauses to the deed.
[21] The established law is set out in section 13 (a)
and (b) of the Act which reads as follows:
“
13 Power of court to vary
trust provisions
If a trust instrument contains any provision which
brings about consequences which in the opinion of the court the
founder of a
trust did not contemplate or foresee and which –
(a)
Hampers the achievement
of the objects of the founder; or
(b)
Prejudice the interests
of beneficiaries; or …
The court may, on application of the trustee or any
person who in the opinion of the court has a sufficient interest in
the trust
property, delete or vary any such provision or make in
respect thereof any order which such court deems just, including an
order
whereby particular trust property is substituted for particular
other property, or an order terminating the trust.”
In
Gowar v Gowar
2016 (5) SA 225
(SCA) at para 34
it was said:
[34] … Cameron et al state
that the provisions have both subjective and objective criteria. The
former relate to the founder’s
lack of foresight or
contemplation and the latter relate to prejudice to the trust object,
beneficiaries or public interest. These
criteria must be satisfied
before the court can intervene. Accordingly, as I see it, for the
purposes of s 13 of the Act the appellants
had to establish on a
balance or probabilities that any provision of the trust deed has
brought about any one of the consequences
mentioned in s 13(a), (b)
and (c) of the Act and that the founder of the trust did not, at the
time the trust was established,
contemplate or foresee such a result.
…
Consequently, absent the
jurisdictional criteria required in terms of s 13 of the Act, it
would not be competent for the court to
exercise the statutory power
conferred on it by s 13.”
[22]
What is sought to be decided in this case is not only the proper
approach of a court to the application of the general principles
in
section 13 of the Act in these types of circumstances. The court has
to determine whether the section is sufficiently flexible
to respond
to the demands of this case. In other words, the exception seeks an
order that is a definitive authority on the application
of section 13
of the Act. The court is called upon to determine whether the
exceptional circumstances of the category allowed by
section 13 of
the Act can be founded on the same antecedent allegations for the
removal of trustees. The exception raises a clear,
distinct, critical
and classic issue of the appropriate test for the application of
section 13 which will be applicable in every
matter of such dispute.
[23] It cannot be gainsaid that the appellant does not
generally enjoy vested rights to either the income or the capital of
the
trust [
Potgieter v Potgieter NO
2012 (1) SA 637
(SCA) at
para 28]. Normally the trustee is the proper person to enforce rights
of action vested in the estate [
Krige and Others v Scoble and
Others
1912 TPD 814].
Equally, it must be borne in mind that our
law makes provision for a representative action and a direct action.
The distinction
between the two types of action was set out as
follows in
Gross and Another v Pentz
[1996] ZASCA 78
;
1996 (4) SA 617
(AD) at
625 E-F:
“
At this point, however, I
should stress that a distinction must be drawn between actions
brought on behalf of a trust to, for instance,
recover trust assets
or to nullify transactions entered into by the trust or to recover
damages from a third party, on the one
hand, on the other hand,
actions brought by trust beneficiaries in their own right against the
trustee for maladministration of
the trust estate, or failing to pay
or transfer to beneficiaries what is due to them under the trust, or
transferring to one beneficiary
what is not due to him.”
[24]
In order to sustain a direct action a plaintiff must have as
beneficiary a vested interest in the trust [
Gross
supra
at 626H
;
Estate Bazley v Estate Arnott
1931
NPD 481
at 490]. The principle is now established in our law, as an
exception to the general rule, that where a trustee cannot sue,
because
his own acts and conduct with reference to the trust property
are impeached, relief which could be sought by the trustee alone may
be obtained at the suit of a beneficiary [
Beningfield
v Baxter
(1886) 12
AC 167
(PC)]. The rationale for the exception was identified as being
the impossibility of the delinquent trustee to sue himself [
Gross
supra
at 628F-G].
The appellant, as a beneficiary who has no vested right to the future
income of the trust, has vested interests in the
proper
administration of the trust, and has contingency rights, and has the
authority to bring a representative action [
Gross
supra
at 628H-J].
[25]
From the same facts, appellant’s amendments introduce a
two-pronged approach. The claim for the removal of the trustees
is
premised on the allegations that the trustees breached the terms of
the deed. On the other hand, the claim for the termination
of the
trust is premised on the allegations that the terms of the deed as
applied by the trustees brought about consequences not
contemplated
of foreseen by the donor, which consequences hamper the achievement
of the objects of the founder or prejudice the
interests of the
beneficiaries. This is the distinction which, with respect, the court
a quo
did
not discern.
[26]
In their conduct of the affairs of the trust, the trustees purported
to act in terms of the provisions of the deed. Appellant’s
case
is that the terms of the deed, if interpreted and applied correctly
by the trustees, brought about consequences which the
donor did not
contemplate or foresee. In my view, the amendment raised the issue
relating to the interpretation of the terms of
the deed. A just
and reasonably prompt resolution of the real issues between the
parties includes a proper interpretation
of the terminology that Roy
employed in the construction of the deed to determine his intentions.
[27]
Appellant and the respondents’ interpretation of the terms of
the deed showed that the terms have different connotations.
Each has
a different meaning which they attach to the terms of the deed. The
appellant interprets the terms of the deed in the
ordinary strict
sense, limiting the power of the trustees and narrowing the intention
of the donor. On the other hand, the respondents
interpret the terms
of the deed in the wide sense, that is, they bring a fresh
determination to the power of the trustees and extend
the intention
of the donor.
[28]
Interpretation can be a vexed issue. To convey the correct thoughts
from the original source of production can be an intrinsically
difficult issue. The answer, from the parties, as to what the
thoughts of Roy were as expressed in the deed, is not the same. The
decision of the respondents on what Roy said, according to
appellant’s amendment, produced results that are inconsistent
with Roy’s intention. I understand appellant’s claim to
be that the inconsistency exists because the limits of the
trustees
have been shifted by the respondents’ interpretation of the
deed. The two interpretations on what the same term
means are
inconsistent as they cannot stand together or cannot both be obeyed
at the same time. They cannot operate together harmoniously
in the
same field [
Ex parte
Speaker of the KwaZulu-Natal Provincial Legislature: In re
Certification of the Constitution of the Province of KwaZulu-Natal
1996,
1996 (4) SA
1098
(CC) at para 24].
[29]
In order to arrive at a finding as to which of the interpretations
should prevail, it is necessary to analyse the interpretations
of the
deed. The language, purpose and context are important considerations
in interpretation [
Provincial
Minister for Local Government, Environmental Affairs and Development
Planning
,
Western
Cape v Municipal Council of the Oudtshoorn Municipality and Other
[2015] ZACC 24
at
para 12]. The context, which can only be properly assessed after a
proper consideration and evaluation of the facts, helps identify
the
scope, purpose and intended effect [
Bertie
van Zyl (Pty) Ltd and Another v Minister for Safety and Security and
Others
2010 (2) SA
181
(CC) at para 21].
[30]
The appellant’s case in the alternative claim is that the terms
of the deed were material factors to the consequences
that befell
her. The terms of the deed enabled the trustees to act to her
detriment. The consequences are set out in the conduct
of the
trustees and the impact thereof on her. The appellant alleged a
causal link between the provisions of the deed and the consequences
in the interplay between the affected provisions of the deed and the
conduct of the trustees. In the amendment, the appellant placed
the
provisions of the deed and the conduct of the trustees as concurrent
causes of the consequences which hampered the achievement
of the
objects of the founder or prejudiced her interests as a beneficiary.
[31]
In my view, where the provisions of a deed are capable of being
interpreted and implemented in a manner which brings about
consequences which in the opinion of the court the founder did not
contemplate or foresee and which when interpreted and applied
as such
bring about the untoward consequences contemplated in section 13 (a)
or (b) of the Act, the section is applicable. The
appellant’s
averments reveal a cause of action based on the provisions of section
13 of the Act. There is no reason to conclude
that the claim for the
termination of the trust is bad in law. The two causes of action, for
the termination of the trust and alternatively
for the removal of the
trustees, are based on the same factual matrix, mutually consistent
and are pleaded in the alternative.
The allegations made by the
appellant suffice to establish as a separate cause of action the new
claim.
For
these reasons, I make the following order with which Baartman, J and
Parker, J have concurred. See the concurring judgment of
Parker, J:
“
The appeal is upheld with
costs, such costs to include the costs of two counsel.”
The order of the court
a quo
is set aside and
replaced with the following order:
“
The exception is dismissed
with costs, such costs to include the costs of two counsel.”
………………………………………………………
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT
Applicants’
Attorneys:
Lamprecht
and Associates INC.
Applicants’
Counsel:
Adv
TR Tyler
Respondents’
Attorneys:
SB
Levetan (For 1, 3,4,6,8 and 9 respondents)
Harmse
Kriel Incorporated (For 2 and 7 respondents)
First
Respondent’s Counsel
:
Adv JG Dickerson (SC)
Adv
AD Brown