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[2010] ZAWCHC 623
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Standard Bank of South Africa Ltd v Trustees for the time being of Smuts Family Trust (21687/2010) [2010] ZAWCHC 623 (10 December 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No.: 21687/2010
In
the matter between:
THE
STANDARD BANK OF SOUTH AFRICA LTD
…....................................
Plaintiff
and
THE
TRUSTEES FOR THE TIME BEING OF
SMUTS
FAMILY TRUST
…..............................................................................
Defendant
JUDGMENT
DELIVERED: FRIDAY 10 DECEMBER 2010
SALDANHA,
J
[1]
This is an unopposed application for Summary Judgment. Plaintiff
claims the following relief:
[1.1]
Payment of the sum of R9 409 138.45;
[1.2]
Interest on the sum claimed in 1 at the rate of 8.20% per annum from
2 September 2010 to date of payment, such interest to
be capitalized
monthly in arrear;
[1.3]
An order declaring Erf 10962 Somerset West, In the City of Cape Town,
Stellenbosch Division, Province of the Western Cape,
executable for
the said sums;
[1.4]
Costs of suit on the scale as between attorney and client; [1.5]
Further and/or alternative relief.
[2.]
The defendant was cited as "the Trustees for the time being of
the Smuts Family Trust". The court
mero
motu
raised
with counsel for the plaintiff whether the defendant had been
properly cited.
Mr.
Sievers
who
acted on behalf of the plaintiff referred to the Letters of Authority
attached to the Particulars of Claim which were issued
out by the
Master of the High Court on the 16
th
of
November 2005 which in terms of section 16(1) of the Trust Property
Control Act 57 of 1998 the Master certified that Zenita Smuts,
Jaco
Bekker and Nicolaas Michiel Smuts were authorized to act as trustees
on behalf of the Smuts Family Trust. The court was also
referred to
the Mortgage Bond in which the mortgagor was described as "The
Trustees for the time being of the Smuts Family
Trust IT4473/2005"
[3.]
It is trite that a Trust is not a legal persona but acts through its
trustees
nomine
officii,
see
Mariola
and Others v Kaye-Eddie NO and Others
1995 (2) SA 728
(W) at 731C-F;
"a
trust
is not a persona but a legal institution, sui generis. The assets and
liabilities of a trust vest in the trustee or trustees.
The trustee
is the owner of the trust property for purposes of administration and
the trust, but qua
trustee
he has no beneficial interest therein Unless one of the
trustees
is authorized by the remaining trustee or trustees, all the trustees
must be joined in suing and all must be joined when
action is
instituted against a trust In legal proceedings trustees must act
nomine officii
and
cannot act in their private capacities."
[4.]
Counsel
for the applicant referred to the text in
Honores
South African Law of Trusts 5
th
Edition
by Cameron and De Waal at page 420
in
which the following is said;
"In
legal proceedings the trustees must act nomine officii and cannot act
in their private capacities. It is usual for the
trustees to be cited
as 'A, B and C in their capacity as the trustees of the XYZ Trust'
but cases in which the trust as such is
cited are not unknown and
there should be no objection to a citation of 'the trustees for the
time being of the XYZ Trust".
The
decision referred to in the text is that of
Rosner
v Lydia Swanepoel Trust
1998 (2) SA 123
which
relates to the application for an amendment that was granted where
the Trust was cited and not the individual trustees. The
court stated
at page
129
paragraph c-d;
"Just
as the citation of a deceased estate, despite its not being a
persona, can be amended to reflect the executor, so can
the citation
of a trust which is not a persona be amended to reflect the trustee.
See Gross and Others v Penz
[1996] ZASCA 78
;
1996 (4) SA 617
(A) at 625B-H.
It
follows from all of this that the Court a quo correctly found that
'the plaintiff (had) been merely incorrectly cited' and that
the
amendment corrected this."
[5.]
Counsel also referred to the decision of Meer J in
Standard
Bank of South Africa Limited v The Trustees for the time being of
Kairos Investment Trust
an
unreported decision
Case
No.
23270/2009
Western
Cape High Court
handed
down on the 12
th
February
2010 where a point
in
limine
was
taken in an application for Summary Judgment that the Trustees in
their capacity
nomine
officii
had
not been cited but rather the Trust. The point was dismissed as being
of a highly technical nature and the court stated;
"If
cases cited in the name of a trust which has no legal persona are
accepted, I cannot find any logical reason, nor was I
provided with
any as to why a case against the trustees for the time being such as
the present, cannot be accepted, especially
where it is not disputed
that the assets of the trust vest in the trustees nor that the
identities of the trustees are unknown
or that there is confusion as
to who they are. It would seem to me in the circumstances that the
opposition is not well-founded
and smacks of unnecessary formalism."
[6.]
In this matter the names of each of the individual trustees are known
notwithstanding the mortgagor simply being referred to
as "The
Trustees for the time being of the Smuts Family Trust IT4473/2005."
[7.]
However in this matter the court has not had the benefit of any
opposing submissions with regard to the citation of the defendant
as
the application was undefended. I am of the view though that the
issue about the proper citation remains arguable especially
where no
amendment is sought in respect of the citation.
Nonetheless
the following order is made;
Summary
Judgment is granted as prayed for inclusive of prayers 2, 3 and 4 of
the Notice of Application for Summary Judgment.
SALDANHA,
J