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[2020] ZAGPJHC 413
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Hitge v Hitge and Others (13342/19) [2020] ZAGPJHC 413 (25 May 2020)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
Number: 13342/19
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
25/5/2020
In
the matter between:
LEE
HITGE
Applicant
and
MICHAEL
CONRAD
HITGE
First Respondent
MICHAEL
CONRAD HITGE N.O.
Second Respondent
(in
his capacity as trustee for the time-being of the
MC
HITGE TRUST No. [....])
REGISTRAR
OF DEEDS, PRETORIA
Third Respondent
MASTER
OF THE HIGH COURT, PRETORIA
Fourth Respondent
CURRO
HOLDINGS
LIMITED
Fifth Respondent
DE
KLERK & VAN GEND INC
Sixth Respondent
ROBERT
DAVID
LEES
Seventh Respondent
ROBERT
DAVID LEES
N.O.
Eighth Respondent
(in
his capacity as trustee for the time-being of the
MC
HITGE TRUST No. [....])
JUDGMENT
WINDELL
J:
INTRODUCTION
[1]
This application concerns the alleged maladministration of a family
trust, the MC Hitge Trust, (“the Trust”). The
application
is opposed by the trustees of the trust (the first, second, seventh
and eight respondents), collectively referred to
in the judgment as
(“the respondents”).
[2]
The applicant is the daughter and the only child borne of the first
respondent, “Mr Hitge”, who was the sole trustee
of the
Trust from the time it was established in 1995, until the appointment
of the seventh respondent, (“Mr Lees”),
as co-trustee on
4 July 2019. The events material to the application principally
concern the tenure of Mr Hitge as trustee.
[3]
The sole object of the Trust is to provide for the maintenance and
care of the applicant, her parents and the applicant’s
dependants. The applicant, Mr Hitge and applicant’s mother are
therefore all beneficiaries of the Trust. The applicant was
14 years
old when the Trust was established. She is currently 38 years old and
has no dependants. She is the sole capital beneficiary
of the Trust.
[4]
The Trust has one asset, an immovable property, previously known as
Holding [....] L[....] Park Agricultural Holdings (“the
property”) that was transferred into the Trust by the
applicant’s grandmother in 2000. The property consists of a
main house, a large warehouse, an office premise and 12 one-bedroom
cottages. It is a valuable, income-producing asset. According
to the
applicant the property was valued nine years ago, in 2001, at
R9 000 000 (nine million rand). For the last 25
years or
more, the main house on the property has been Mr Hitge’s
primary residence. It is common cause that the office premises,
cottages and warehouse generate a monthly rental income. The
applicant contends that for the last 15 years, at least, Mr Hitge
has
applied the income generated from the property towards his expenses
and lifestyle. In December 2018, the applicant became aware
that Mr
Hitge wants to sell the property to the fifth respondent, (“Curro”),
and use the proceeds of the sale mainly
for his own benefit. The
applicant told Mr Hitge that she did not agree with the sale of the
property. The conversation ended in
an argument and the parties have
not spoken verbally since that date.
[5]
The applicant contends that the Trust is to provide for the
maintenance of the beneficiaries up until the “
distribution
event”
, as defined in the Trust Deed, namely when the
applicant turned 25 years of age. It is contended that, despite the
fact that the
applicant turned 25 years old in 2007, Mr Hitge failed
to give effect to the “
distribution event
” as
required under the Trust Deed, nor has he indicated any basis upon
which to exercise a discretion not to do so. Consequently,
the
applicant has not received the benefits to which she is entitled
under the express terms of the Trust Deed. The applicant contends
that she has been compelled to bring the application because of her
increasing sense of disquiet at the manner in which Mr Hitge
(and now
Mr Lees as well) are running the Trust.
[6]
The applicant seeks an order directing the transfer of the property
into her name, pursuant to the express terms of the Trust
Deed. If
the applicant does not succeed in obtaining specific performance of
the Trust Deed, then she asks that Messrs Hitge and
Lees be removed
from their office as trustees of the Trust, and that independent
trustees be appointed in their stead, so that
proper effect can be
given to the Trust Deed. The basis of this claim is the allegation
that Mr Hitge has abused his fiduciary
position and allowed his own
personal interests to conflict with the applicant’s. In either
event, whether the applicant
is granted the relief in in the form of
specific performance of the Trust Deed, or paragraph removal of the
trustees, it is submitted
that she is also entitled to the
interdictory relief sought in the amended notice of motion, namely,
an order interdicting any
transfer of the property without her
written consent.
[7]
The applicant stated that she took a number of steps prior to
launching the application to resolve this very personal family
matter. She has exchanged correspondence with two sets of lawyers
acting on Mr Hitge’s behalf in which she set out her concerns
in detail, but these were dismissed out of hand. She also wrote to
the Master to seek his assistance, but that too did not yield
any
results. She contends that in the circumstances, she had no
alternative but to approach this court for relief and without’
the relief being granted, the property will be sold and the sale
proceeds dissipated to nothing by Mr Hitge, to the applicant’s
obvious prejudice.
[8]
The respondents contend that the relief sought by the applicant,
namely for the property to be transferred into her name, is
incompetent because the prayers sought do not flow from the
provisions of the Trust Deed. The respondents submit that there is
simply no basis for such a drastic order and it would be to the
detriment of the respondent as it would effectively leave the
respondent homeless from the date of the order until the date on
which he passes away. The respondents deny any allegations of
maladministration of the Trust and contend that the applicant failed
to establish the requirements for a final or interim interdict.
[9]
The various orders sought in the amended notice of motion are dealt
with in turn below.
SPECIFIC
PERFORMANCE OF THE TRUST DEED
[10]
The Trust is a discretionary trust. In this
respect, the Trust Deed
provides the trustees with the sole
and absolute discretion and powers to,
inter
alia
,
sell property, reimburse
themselves from the trust fund for all expenses incurred by them in
or in respect of the execution of the
Trust, to sign and execute
transfers and cessions of property, enter into contracts on behalf of
the Trust and distribute the trust
capital at any time and in any
manner that they deem fit.
As such, the trustees
of the Trust discretion is not merely regarding the mode of applying
the terms of the Trust but extend even,
as to whether or not to
distribute any benefit to a particular beneficiary.
[11]
As stated before, the applicant is the sole capital beneficiary of
the Trust. Clause 2.5 of the Trust Deed describes capital
beneficiary
as “
any person whom a share of the trust capital may devolve
in terms of clause 12 ....”.
Clause 12.6 of the Trust Deed,
which is central to the application, reads as follows:
“
12.6
All distributions to a beneficiary shall be subject to the following:
12.6.1 No
beneficiary shall receive his share of the income or capital until he
reaches the age of 25 years. Instead,
the trustees shall continue to
hold his portion in trust until he reaches such age.
12.6.2
Once a beneficiary has reached the age of 25 years his share of the
capital as well as any accumulated income,
shall be paid to him, but
subject to clause 12.6.3.
12.6.3 If
the trustees decide for any reason whatsoever that it would be in the
best interests of the beneficiary not
to pay out their share of the
capital until a later stage, then the beneficiary shall be bound by
such decision.
”
[12]
The applicant contends that in terms of clause 12.6.2 she should have
received the property (being the Trust’s only capital
asset)
some twelve years ago in 2007, when she turned 25. She further
submits that in accordance with clause 12.6.3, it is clearly
in her
best interest to receive the property and that Mr Hitge has never
suggested nor articulated any reason why this is not so.
[13]
The respondents contend that clause 12.6 should be read in
conjunction with Clause 12.3. Clause 12.3 reads:
“
Upon
termination of the trust, the total value of the trust capital shall
be determined and disposed of for the benefit of the children
born of
Hitge failing then their dependants, equally subject to clause 12.6”.
[14]
The respondents contend that the Trust has not terminated nor has a
distribution event been decided/resolved by the trustees.
As such the
applicant has no claim whatsoever to any benefit from the Trust. Even
less so does she have a claim to seek transfer
of any trust asset(s)
to her in the past or present. Moreover, any alleged claim to a
transfer or interdicting the sale by the
trust of its assets to the
exclusion of the trust and/or the trust creditors is absurd. Mr Hitge
further states that the applicant
is not a trustee and does not have
any decision-making authority or power with regard to the Trust. He
also says that the Trust
Deed provides the trustees with sole and
absolute discretion and power
inter alia
with regard to the
property and that the Trust Deed allows the trustees to distribute
the Trust capital at any time and in any
manner which they deem fit.
[15]
Firstly, on a proper reading of the Trust Deed, it is clear that
clause 12.6 is not reliant on the termination of the Trust.
Secondly,
clause 12.6 is mandatory and clearly states that once a beneficiary
has reached the age of 25 years his or her share
of the capital as
well as any accumulated income,
shall
be paid to her,
subject to clause 12.6.3. If it is not paid out it must be because
the trustees have
decided
that it is not in the best
interest of the beneficiary to pay out her share of the capital until
a later stage. It is only when
such a decision had been made that the
beneficiary shall be bound by such decision. (Own emphasis added)
[16]
The respondent is correct. The applicant does not have any decision
making authority with regard to the Trust. But, that is
not the
point. Mr Hitge, as trustee, has failed to give effect to the clear
provisions of clause 12.6, as he is obliged to do,
and has never
given any explanation whatsoever for this failure, even though the
applicant turned 25 many years ago. The discretion
granted to the
trustees is not without limit and Mr Hitge is bound to follow the
provisions of the Act and the Trust Deed and act
in the best
interests of the beneficiaries in making decisions.
[17]
More importantly, simple reliance y on the wide discretion accorded
to him does not answer the specific complaint formulated
in the
founding papers, which is this: If Mr Hitge, for any reason, did not
think it was in the applicant’s best interest
to pay out the
accumulated income and capital of the Trust to her when she turned
25, he was not obliged to do so and the applicant
would be bound by
the exercise of his discretion under clause 12.6.3. The respondents
did not give any answer addressing this cardinal
point. The court is
given no detail as to whether a decision was taken and if so, on what
basis. The only reasonable inference
to draw is that Mr Hitge did not
apply his mind to his obligations under the Trust Deed. He has
certainly never conveyed any reason
why it was not in the applicant’s
best interests to pay out the capital of the Trust to her when she
turned 25 or any time
thereafter.
[18]
The applicant seeks an order for the transfer of the property into
her name. In the specific circumstances of this case I am
not
convinced that such an order would be justified.
REMOVAL
OF MESSRS HITGE AND LEES AS TRUSTEES
[19]
The applicant alleges that Mr Hitge has patently abused his fiduciary
position and allowed his own personal interests to conflict
with the
applicant’s. It is further alleged that Mr Lees is not
independent as he is closely allied to Mr Hitge and this
necessitates
the appointment of independent trustees to take control of the
Trust’s affairs and assets in order to protect
the interests of
the beneficiaries and especially those of the applicant. It is
contended that in such circumstances, Mr Hitge
could still be
maintained out of income from the Trust, as could the applicant’s
mother, as beneficiaries of the Trust.
[20]
The removal of a trustee from his or her office is expressly provided
for under the Act. In terms of section 20, a trustee
may, on the
application of any person having an interest in the trust property,
at any time be removed from his office by the court
if the court is
satisfied that such removal will be in the interests of the Trust and
its beneficiaries.
[21]
The general principle is that a trustee will be removed where
continuance in office will prevent the trust being properly managed
or will be detrimental to the beneficiaries.
[1]
The respondent argues that there is no evidence to show that the
continuance in office of the respondent will prevent the trust
being
properly managed or be detrimental to the applicant. The respondents
submit that there is therefore no basis for removal
of the respondent
as trustee. I disagree. The applicant raised a number of grounds upon
which she relies. They are summarised hereunder.
No
records
[22]
In terms of section 9(1) of the Act:
“
A trustee shall
in the performance of his duties and the exercise of his powers act
with care, diligence and skill which can reasonably
be expected of a
person who manages the affairs of another.
”
[23]
In terms of section 10, “
[w]henever 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
”.
[24]
In terms of section 11, a trustee is obliged to:
“
(a) Indicate
clearly in his bookkeeping the property which he holds in his
capacity as trustee and which is in his personal capacity;
and
(b)
If applicable, he must register trust property or keep it
registered in such manner as to make it clear from the registration
that
it is trust property;”
[25]
In terms of section 12, trust property shall not form part of the
personal estate of a trustee except insofar as he, as the
trust
beneficiary, is entitled to the trust property.
[26]
Clause 7.1 of the Trust Deed provides that:
“
7.1
Proper books of account of the trust shall be kept and such books,
together with all other papers and documents
connected with or
relating to the trust, shall be kept at such place as may be agreed
upon by the trustees and the same shall at
all times be accessible to
each of the trustees. The trustees may engage such secretarial or
accounting assistance as may be required
for the purposes of the
trust.
”.
[27]
Section 16 of the Act provides that:
“
16.
Master may call upon trustee to account
. ̶
(1) A trustee shall, at the written request of the Master, account to
the Master to his satisfaction and in accordance
with the Master’s
requirements for his administration and disposal of trust property
and shall, at the written request of
the Master, deliver to the
Master any book, record, account or document relating to his
administration or disposal of the trust
property and shall to the
best of his ability answer honestly and truthfully any question put
to him by the Master in connection
with the administration and
disposal of the trust property.
”.
[28]
Despite these provisions, no proper books of account (or indeed any
books of account) for the Trust have been kept since its
inception.
Accordingly, there is no record
inter alia
of:
(a)
what assets the Trust owns, besides the property;
(b)
what business the Trust is involved in;
(c)
what income the Trust receives and has received in the past and to
whom such income has been paid;
(d)
what expenses the Trust incurs and for whom, and what it has expended
in the past;
(e)
what investments the Trust has, how they are performing and how they
have performed in the past;
(f)
to whom the Trust has paid money in the past;
(g)
by whom the Trust has been paid money in the past; and
(h)
what the Trust’s tax liabilities are and if its tax obligations
have been met in the past.
[29]
Before the applicant launched the application she repeatedly
requested the books of account to be made available to her, but
none
were ever provided and none were attached to Mr Hitge’s
original papers. Instead, Mr Hitge’s attorneys stated
in a
letter dated 7 March 2019, that a new accountant had been “
nominated
”
earlier that year and that “
financials for the Trust are in
the process of being prepared
”.
[30]
“Financial statements” for the Trust were eventually
produced for the first time on 15 July 2019 under cover of
Mr Hitge’s
supplementary affidavit. They are fundamentally defective. Firstly,
the Trust has not produced any annual financial
statements for the
period 1996 to date. Secondly, the document that has now been
produced does not begin to reflect the necessary
information, and is
an entirely self-serving attempt to remedy an obvious breach.
[31]
The “accounting documents” that were produced by Mr Lees,
which purport to reflect the income and assets of the
Trust from 1996
– 2018, is a patent reconstruction and does not evidence
fulfilment of the trustees’ obligations in
relation to
accounting matters. It is noteworthy that Mr Lees was apparently the
Trust’s auditor for 23 years and thus well
placed to give a
comprehensive account of financial matters according to the Trust. He
has failed dismally to do so. It is telling
that he denies that he
“
in fact
had any obligations in terms of the Trust
Deed
”. Accordingly, the applicant’s allegation that
financials were in the process of being manufactured in an attempt to
legitimise Mr Hitge’s administration of the Trust
retrospectively, was completely justified.
Taking
all monies for himself
[32]
It is common cause that the Trust had been leasing out the cottages
and rooms in the main house of the property, as well as
the office
premises and warehouse. There can be little doubt that the Trust has
generated substantial income over the years from
the leasing thereof.
The applicant has speculated about the precise quantum of that
income, which must be material by any standards.
However, despite
requests for information on this score, absolutely none has been
forthcoming. Instead, Mr Hitge contented himself
with the baldest of
denials in his answering affidavit, saying simply: “
I have
not taken the income from the Trust for myself and the income has
been utilised to pay for the bond, improvements, upkeep
and
maintenance of the property as a whole, as well as to maintain me as
beneficiary and trustee of the Trust
”. No itemisation of
the amounts is given in his answering papers. Mr Hitge’s
response is evasive and highly unsatisfactory.
Attempts
to alienate the Trust’s only asset
[33]
On 12 December 2018, the applicant first learnt that her father
intended selling the property to Curro. Although Mr Hitge as
trustee
has the discretion to sell the property, he had to exercise that
discretion responsibly, pursuant to the provisions of
the Trust Deed,
and in the best interests of the applicant. It is apparent that this
is not so for several reasons.
[34]
Firstly, the applicant expressed grave reservations in correspondence
that the sale price of the property was less than its
market value.
Despite the detailed concerns made out in her founding papers, Mr
Hitge merely stated in his answering affidavit
that he had obtained
independent advice “
from estate agents and neighbours in the
area
who have advised that the amount offered by Curro is
above the market price for the
property
”. He
attached a municipal valuation of the property and affidavits from
neighbours but failed to attach the valuation report
from estate
agents as he was “
advised this is confidential information
which cannot be published
”.
[35]
I agree with the applicant that this answer is unsatisfactory. A
municipal valuation is not evidence of the market value of
a property
and Mr Hitge’s neighbours are hardly in a position to express
an expert opinion about the value either, even if
their valuations
were disclosed. Whilst the views of estate agents may well be of
evidential value (although, of course, a sworn
valuation is what one
would have expected to be attached to the answering affidavit), the
valuations by the estate agents are not
even given to the court, on
the thin pretext that they contain confidential information.
[36]
Although Mr Hitge confirms that the property has been sold to Curro,
he did not attach a copy of the sale agreement in his
answering
affidavit and did not tell the court anything about the mechanics of
the sale, including for instance, what amounts have
been paid thus
far by Curro, if any, when transfer is to take place, when occupation
is to be given, or any such detail.
[37]
Secondly, it is clear from Mr Hitge’s response that he does not
intend to replace the property with another investment
but to spend
most of the proceeds of the sale on himself. The applicant alleged in
her founding affidavit that Mr Hitge had told
her and other people,
including her ex-husband whose confirmatory affidavit is attached to
her papers, that his plan was to sell
the property so that he could
travel with his girlfriend and enjoy his life. In answer to this, Mr
Hitge simply stated that the
Trust is a discretionary Trust and the
decision to sell the property does not breach the Trust Deed and that
the sale of the property
is in the best interests of the Trust and
the proceeds of the sale will be invested. He then stated the
following:
“
The proceeds of
the sale will be invested so as to provide firstly for my living
expenses until my passing and secondly, to provide
an inheritance for
my daughter, the Applicant, as she would have received had I passed
away and the Trust owned the property…
At the time that the
proceeds of the sale of the property are to be invested, Lees and I
as trustees of the Trust will obtain independent
advice as to the
best possible method of investing the proceeds of the sale. Taking
into account that my daughter resides in the
United Kingdom, it will
be best that at least part of the funds are invested in offshore unit
trusts and in British Pounds in order
to mitigate against the falling
value of the Rand as compared to the British Pound in order that when
I pass my daughter, the Applicant,
will receive the best possible
amount as an inheritance
”.
[39]
Given the circumstances and Mr Hitge’s past conduct there is no
guarantee that the proceeds of the property would indeed
be invested,
whether prudently or at all. In the absence of any concrete facts
these “assurances” are simply empty
assertions,
especially if one has regard that he also stated that the proceeds of
the sale will only being vested “
after deducting the amounts
due to me in respect of the costs of maintenance, repairs and
development of the property
”. He gives no detail whatsoever
of the quantum of any of these costs or expenses in his answering
affidavit. Although Mr
Hitge denies that he has any intention to use
the proceeds of the sale “
for frivolous overseas vacations
”
he gives no comfort in relation to the other expenses which he says
he will meet out of the proceeds of the sale.
[40]
I am satisfied that all of the above facts clearly shows that Mr
Hitge has failed in his duties as trustee in every material
respect,
and that he cannot be trusted to property administer the Trust’s
affairs. Mr Lees’ appointment gives no comfort
since he fails
to address the complaints in any meaningful way and makes common
cause with Mr Hitge. I am further satisfied that
if Mr Hitge is
permitted to pursue his intended course of action, there will be
nothing left to distribute and the Trust will have
failed. The
paucity of information in the answering affidavit coupled with the
bald denials of the applicant’s detailed allegations,
simply
confirms these fears.
INTERDICTORY
RELIEF IN RESPECT OF THE PROPERTY
[
41]
The applicant seeks an order interdicting the sale of the property.
The respondents contend that the applicant had failed to
establish
the requirements of a final interdict.
[42] The applicant is
required to show: (a) that the right which it seeks to enforce is
clear; (b) an injury actually committed
or reasonably apprehended;
(c) the absence of any other satisfactory remedy.
[43] I am satisfied that
the applicant has established a clear right to the proper
administration of the Trust and a right to insist
that Messrs Hitge
and Lees be prevented from acting contrary to their duties as
trustees by concluding or executing the envisaged
sale.
[44]
The applicant has also established a real apprehension that if the
envisaged sale transaction is allowed to proceed, she will
suffer
irreparable harm as the sole capital beneficiary of the Trust. The
property is a valuable asset and has the capability to
generate a
significant income, yet it is alleged that it not being sold at its
true market value. Furthermore, even if the trustees
intend to invest
the proceeds of the sale for the benefit of the Trust the applicant
will suffer grave prejudice given the fact
that the property will not
have realised the price which it ought to have on the open market and
such loss can never be recouped.
If the relief sought is not granted,
then the Trust and the applicant will suffer irreparable harm since
there is no remedy other
than interdictory relief which is
satisfactory in the circumstances.
CONCLUSION
[45]
In the founding papers, the applicant made detailed and serious
allegations of maladministration of the Trust by Mr Hitge.
In my
view, she has succeeded in showing that the trustees have acted in
breach of the Act
[2]
and The
Trust Deed. Right from the outset in 1995, no proper books of account
for the Trust have been kept and accordingly, there
is no record
inter
alia
of
what income the Trust receives and has received in the past and to
whom such income has been paid, and what expenses the Trust
incurs
and for whom, and what has been expended in the past.
[46]
Mr Hitge has not informed the court whether the Trust holds a bank
account and if so, with which bank and what the balance
is in that
account. This is notwithstanding the explicit provisions of clause
7.4 of the Trust Deed in section 10 of the Act. The
so-called
“financials” that were attached to the supplementary
affidavit are wholly unsatisfactorily and was a contrived
attempt to
purge the trustees’ default. In addition, Mr Hitge has
apparently concluded a sale agreement with Curro on behalf
of the
Trust and intends to dispose of the Trust’s sole (and very
valuable) income-producing asset to a third party. This
step was
seemingly taken by Mr Hitge without proper advice and without a
proper valuation of the property to establish its true
market price.
Even more worrying is that Mr Hitge has said he intends to live off
the proceeds of the sale and use them to pay
himself compensation for
various unspecified “
expenses
” which he says he
has incurred.
[47]
Despite detailed correspondence, requests for specific information,
requests for specific documentation and requests for particular
undertakings, none of this has ever been satisfactorily dealt with by
Mr Hitge or his attorneys, and the applicant was dismissed
out of
hand as being a nuisance and despite the serious allegations in the
founding affidavit Mr Hitge has responded in the most
perfunctory
way. His lack of response exacerbates the applicant’s fears and
justifies her decision in bringing the application.
[48]
Mr Hitge has not put up a single income statement or balance sheet
for the Trust or any other book of account showing the Trust’s
state of affairs, its income, assets, expenses, payments or anything
of the like for the entire period of its existence, from 1995
to
date. This is notwithstanding the explicit provisions of clause 7 of
the Trust Deed and section 16 of the Act. The applicant
was further
told, for the first time on 4 January 2019, that the Trust Deed had
apparently been amended to include Mr Hitge as
a capital beneficiary.
Despite numerous requests for a copy of the purported amendment to
the Trust Deed, it has not been produced
or any documentation from
the Master evidencing registration and approval of such amendment,
despite the provisions of section
4(2) of the Act. Mr Hitge has also
not given details of the circumstances in which a new trustee was
suddenly appointed in 2019,
nor did he attach to his answering papers
any documentation, including letters of authority evidencing such
appointment, notwithstanding
requests and his obligations under
section 6 of the Act. Crucially, Mr Hitge has given no explanation
for his non-compliance with
clause 12.6.2 of the Trust Deed and has
not explained to the court why, notwithstanding the explicit
provisions of the Trust Deed,
the property has not been transferred
to the applicant as capital beneficiary. The same criticisms are true
of Mr Lees, who simply
associates himself with Mr Hitge and makes no
explanation for the lack of financials, despite his apparent role as
auditor of the
Trust. Mr Lees attempts in his answering papers to
cure the obvious defects in Mr Hitge’s affidavit, but does not
succeed
in doing so.
[49]
Mr Hitge is manifestly in breach of the duties of care, diligence and
skill required of trustees under section 9 of the Act
and the Trust
Deed. Furthermore, Mr Lees has made common cause with Mr Hitge and
cannot be relied upon to curb Mr Hitge’s
errant ways.
[50]
In the result the following order is made:
(a) The second and eighth
respondents are removed as trustees of the Trust.
(b) Trust Project (Pty)
Ltd represented by Phia van der Spuy is appointed as trustee of the
Trust.
(c) Any transfer of the
property to the fifth respondent, or anyone else, sold under the
authority of the second and eight respondents,
is interdicted pending
the appointment and subsequent approval of any such sale and transfer
of the property, by Trust Project
(Pty) Ltd represented by Phia van
der Spuy.
(d) The first and seventh
respondents to pay the costs of the application.
L.
WINDELL
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEARANCES
Counsel
for the applicant:
Adv. A.E. Franklin SC
Attorney
for the applicant:
Rossouws, Leslie Inc
Counsel
for the 1
st
, 2
nd
, 7
th
and 8
th
respondents:
Adv. C. B. Garrvey
Attorney
for the respondents:
Kekana Hlatshwayo Radebe Attorneys
Date
of hearing:
17 March 2020
Date
of judgment:
May 2020
[1]
See
Honore's
South Africa Law of Trusts
6
th
Edition on page 271, para 141.
[2]
Trust Property Control Act No. 57 of 1988 (“
the
Act
”).