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[2024] ZAFSHC 7
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T.T v D.T N.O and Others (201/2023; 1916//2023) [2024] ZAFSHC 7 (26 January 2024)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Application
number:   201/2023
In
the application between:
T[…]
T[…]
Applicant
(ID
No. 4[…], duly represented herein
by
M[…]-C[…] C[…]-T[…] by virtue of Power
of
Attorney PA 183/2021)
[In
his capacity as founder and Trust beneficiary of the
OLIVE
TREE TRUST, IT126/2012]
and
D[…]
T[…] N.O.
1
st
Respondent
(ID
No.  7[…])
[In
her capacity nominee officio as trustee of the OLIVE
TREE
TRUST, IT126/2012]
MASTER
OF THE HIGH COURT, BLOEMFONTEIN,
FREE
STATE PROVINCE
2
rd
Respondent
D[…]
T[…]
3
rd
Respondent
[On
behalf of and in her capacity as guardian of
C[…]
T[…], a minor with ID No. 0[…],
a
beneficiary of the OLIVE TREE TRUST, IT126/2012]
D[…]
T[…]
4
th
Respondent
[On
behalf of and in her capacity as guardian of
I[…]
T[…], a minor with ID No. 0[…],
a
beneficiary of the OLIVE TREE TRUST, IT126/2012]
T[…]
T[…]
5
th
Respondent
(ID
No. 4[….], duly represented herein
by
M[…]-C[…] C[…]-T[…] by virtue of Power
of
Attorney PA 183/2021)
[In
his capacity as a beneficiary of the
OLIVE
TREE TRUST, IT126/2012]
D[…]
T[…]
6
th
Respondent
(ID
No. 7[…])
SAREL
LOUIS AUGUSTYN N.O.
7
nd
Respondent
[In
his capacity as nominee officio as trustee of the OLIVE
TREE
TRUST, IT126/2012]
FANIE
VAN VUUREN N.O.
8
th
Respondent
[In
his capacity nominee officio as trustee of the
FC
FIN TRUST]
AND:
Application number:
1916//2023
In
the application between:
T[…]
T[…]
Applicant
(ID
No. 4[…], duly represented herein
by
M[…]-C[…] C[…]-T[…] by virtue of Power
of
Attorney PA 183/2021)
[In
his capacity as founder and Trust beneficiary of the
OLIVE
TREE TRUST, IT126/2012]
and
D[…]
T[…] N.O.
1
st
Respondent
(ID
No.  7[…])
[In
her capacity nominee officio as trustee of the OLIVE
TREE
TRUST, IT126/2012]
SAREL
LOUIS AUGUSTYN N.O.
2
nd
Respondent
[In
his capacity as nominee officio as trustee of the OLIVE
TREE
TRUST, IT126/2012]
MASTER
OF THE HIGH COURT, BLOEMFONTEIN,
FREE
STATE PROVINCE
3
rd
Respondent
D[…]
T[…]
4
th
Respondent
[On
behalf of and in her capacity as guardian of
C[…]
T[…], a minor with ID No. 0[…],
a
beneficiary of the OLIVE TREE TRUST, IT126/2012]
D[…]
T[…]
5
th
Respondent
[On
behalf of and in her capacity as guardian of
I[…]
T[…], a minor with ID No. 0[…],
a
beneficiary of the OLIVE TREE TRUST, IT126/2012]
D[…]
T[…]
6
th
Respondent
(ID
No. 7[…])
SAREL
LOUIS AUGUSTYN
7
th
Respondent
FANIE
VAN VUUREN N.O.
8
th
Respondent
[In
his capacity nominee officio as trustee of the
FC
FIN TRUST]
THE
REGISTRAR OF DEEDS, PRETORIA
9
th
Respondent
CORAM:
VAN ZYL, J
HEARD
ON:
31
AUGUST 2023
DELIVERED
ON:
22; 26
JANUARY 2024
[1]
Two applications serve before me. In the first application,
application number 201/2023
(“the main application” or
“the removal application”), the applicant is seeking the
following relief in
terms of his Amended Notice of Motion:
“
1.
The sixth respondent be removed as trustee of the Olive Tree Trust,
IT 126/2012.
2.
The sixth respondent shall return her letters of authority to the
Master without delay but
not later than 5 court days from date of
this order.
3.
The sixth respondent shall hand over all documents regarding the …
Trust …,
but not limited to the following:
3.1
Minutes of meetings of trustees of the … Trust, ….
3.2
Resolutions taken by the trustees of the … Trust, …
3.3
Bank cards related to all bank accounts or investments in the name of
the … Trust,
….  or the first respondent in her
capacity as Trustee …
3.4
Bank statements relating to all the bank accounts and/or investments
of the … Trust
or in the name of the first respondent in her
capacity as trustee of the … Trust, …
3.5
The assets register of the … Trust, …
4.
The sixth respondent must render an account to the applicant
regarding her administration
of the … Trust’s affairs no
later than 30 calendar days from date of this order, the first day to
be excluded and
the last day to be included in calculation of the
30-day period.
5.
In the event that the sixth respondent is not removed as trustee of
the … Trust, then
an order that the sixth respondent must
render an account to the applicant regarding her administration of
the … Trust’s
affairs no later than 30 calendar days
from date of this order, the first day to be excluded and the last
day to be included in
calculation of the 30-day period.
6.
Declaring that the … Trust lacked capacity from 13 October
2020 until 19 January 2023
due to the absence of a minimum of two
trustees.
7.
Declaring invalid and of no force and effect due to her lack of
authority as a trustee of
the … Trust the decision of the
sixth respondent to appoint Remax to list the … Trust’s
immovable property
for sale and the appointment of Remax pursuant to
the aforesaid decision and appointment.
9.
That M[…]-C[…] C[…]-T[…] … be
appointed as trustee of
the … Trust.
10.
That Deirdré Milton … be appointed as trustee of the
…Trust.
11.
That the second respondent be directed to issue letters of authority
in respect of the said M[…]-C[…]
C[…]-T[…]
and Deirdré Milton.
12.
Declaring the agreement, styled Agreement of Sale – Sectional
Title, dated 1 March 2023, with regard
to the Trust`s immovable
property, better known as Unit 18, L[…] Sectional Title,
Sectional Title Scheme number; 193 (situated
at W[…] Extension
1 270, Diagram Number; 193/89. 82 K[…] Crescent, Tswane,
Gauteng Province [Pretoria Deeds
Office], declared [
sic
] void;
alternatively, be set aside [
sic
].
13.
That the sixth respondent be ordered to pay the costs of this
application in her personal capacity on a scale
between attorney and
client, should she oppose this application. In the event that any
other respondent opposed the application,
then an order that such
respondents opposing the application shall pay the costs jointly and
severally, the one paying the other
to be absolved, on the scale as
between attorney and client and jointly and severally with the sixth
respondent in the event that
she opposed the application.”
[2]
The first, third, fourth, sixth and seventh respondents are opposing
the main application.
[3]
The second application, application number 1916/2023, is the return
date of a rule
nisi
, which initial application for the rule
nisi
previously served before me on an urgent basis (“the
interdictory application”). The first, second, fourth, fifth
and
sixth respondents opposed the application. However, on 2 June
2023, I granted the following order therein:
“
1.
The applicant`s non-compliance with the Court Rules pertaining to
form, service and time periods are
condoned and the application is
enrolled and heard as an urgent application in terms of the
provisions of Rule 6(12).
2.
A rule
nisi
is issued, calling upon the respondents to show
cause, if any, on 27 July 2023 at 9h30, or as soon thereafter as the
applicant`s
legal representatives may be heard, why the following
orders should not be made final:
2.1
Interdicting and restraining the first and second respondents from
passing transfer of the immovable property,
better known as Unit 18,
L[…] Section Title, Sectional Title Scheme number: 193
(situated at W[…] Extension 1 27),
Diagram Deed Number:
193/89, 82 K[…] Crescent, Wapadrand, Tshwane, Gauteng Province
[Pretoria Deed’s Office] to the
FC Fin Trust, alternatively in
the name of the trustee(s) for the time being of the FC Fin Trust or
any other nominated purchaser
pursuant to the Agreement of Sale,
Sectional Title, dated 1 March 2023, pending the finalization of the
main application issued
in this Court under case number:
201/2023 and the resolution taken with regards to the sale of the
aforesaid immovable property
at the first meeting of trustees to be
held after finalization of the aforesaid main application.
2.2
Interdicting and restraining the first and second respondents from
entering into a purchase agreement to sell
the immovable property, …
and passing transfer thereof to the FC Fin Trust or any other
purchaser pending the finalization
of the main application issued in
this Court under case number:  201/2023 and the resolution taken
with regards to the sale
of the aforesaid immovable property at the
first meeting of trustees to be held after finalization of the
aforesaid main application.
2.3
Interdicting and restraining the ninth respondent from registering
the transfer of the immovable property,
in the name of the trustee(s)
for the time being of the FC Fin Trust, alternatively in the name of
the FC Fin Trust or any other
purchaser pending the finalization of
the main application issued in this Court under case number:
201/2023 and the resolution
taken with regards to the sale of the
aforesaid immovable property at the first meeting of trustees to be
held after finalization
of the aforesaid main application.
2.4
That the costs of the application stand
over for determination by the Court hearing the main application.
3.
Paragraphs 2.1, 2.2 and 2.3 above are to operate as interim
interdicts with immediate effect pending
the finalization of this
application.
4.
A copy of this order is to be served forthwith by the applicant on
the respondents by means of
email.”
[4]
The said respondents are now also opposing the confirmation of the
rule
nisi
.
The
citation of the parties:
[5]
The parties have unfortunately been cited differently and in a
different chronological order
in the two applications, which can
cause confusion. I will therefore, for the sake of efficacy, refer to
the parties in both applications
as follows, unless I specifically
indicate the contrary:
5.1
The applicant in both applications is a male pensioner, residing in
Cape Town.  The applicant suffers from Vascular
Dementia.
M[…]-C[…] C[…]-T[…] is the applicant’s
wife.  She is representing the applicant
in both applications
and deposed to the respective affidavits by virtue of a General Power
of Attorney, dated 7 July 2021, and
which was registered in the Deeds
Office on 16 July 2021. She explained in the founding affidavits
filed in both applications that
the applicant’s medical
condition affects his speech and co-ordination, but that he fully
understands when he is spoken to.
I will refer both to the
applicant and Mrs C[…]-T[…] as “the applicant”,
unless I mean to specifically
refer to Mrs C[…]-T[…],
in which instances I will refer to her as “the applicant’s
wife”.
5.2
According to the applicant he is the founder and an income- and
capital beneficiary of the Olive Tree Trust 162/2012 (“the

Trust”).
5.3
The first respondent in both applications is D[…] T[…]
N.O. in her capacity as a co-trustee of the Trust.
She is also
cited in her personal capacity as the sixth respondent in both the
applications and in her capacity as guardian of
her two minor
children (“the two minor children”) who are beneficiaries
of the Trust, as the third and fourth respondents
in the main
application and the fourth and fifth respondents in the interdictory
application. For the sake of clarity, I will in
both applications
generally refer to her as “the first respondent”, but
will specify her capacity if and when necessary
when same cannot be
deducted from the context.
5.4
The seventh respondent in the main application is Sarel Louis
Augustyn N.O. in his capacity as a co-trustee of the Trust.
He is
also cited as such as the second respondent in the interdictory
application. He is furthermore cited in his personal capacity
as the
seventh respondent in the interdictory application, but he has not
been cited in his personal capacity in the main application.
I will
in both applications refer to him in his personal capacity as “Mr
Augustyn" and in his representative capacity
as “Mr
Augustyn N.O.”.
5.5
When referring to both the first respondent and Mr Augustyn N.O. in
their capacity as joint trustees, I will
refer to them as “the
trustees” in both the applications.
5.6
The eighth respondent in the main application and the interdictory
application is Fanie van Vuuren N.O., who
is cited in his capacity as
trustee of the FC Fin Trust.  I will refer to Mr van Vuuren and
the FC Fin Trust by his/its names
respectively in both the
applications.
Background:
[6]
On 20 July 2023 my colleague, Van Rhyn, J granted an interim
application of the applicant
in the main application, in which she
inter alia,
ordered that “
the notice of motion and
all the affidavits deposed to by the parties thereto”
in
the interdictory application “
be incorporated by reference
in the main application”
.
The two applications are
very intertwined, hence this order. I will consequently also be
referring to allegations contained in
both applications.
[7]
I have fully dealt with the background to the interdictory
application and in effect to
the main application too, in my judgment
delivered in the interdictory application on 2 June 2023. For ease of
reference and clarity
I consider it apposite to repeat the greater
part thereof herein.
[9]
The first respondent was married to the applicant’s son, D[…]
T[…],
but they were divorced during 2009.  The two minor
children were born from their marriage.  The first respondent
was
awarded care and primary residence of the two minor children.
[10]
D[…] was never in a position to assist the first respondent to
maintain the minor children,
which is currently still the position.
The applicant has consequently been financially assisting the first
respondent, on
behalf of this son.  The extent of the
applicant’s financial assistance is in dispute.
[11]
The immovable property described in the Notice of Motion is presently
still registered in the name
of the Trust.  I will refer to the
said immovable property as “the Trust property”.
[12]
In the founding affidavit of the interdictory application the
applicant’s wife made the following
allegations:
“
9.
The trust was erected with the sole purpose to own an immovable
property where the children can reside.
10.
I was present when the applicant specifically said to the first
respondent (in personal capacity) when creating
the trust that the
immovable property must not be sold.  It was never the intention
that the Trust’s property be sold,
and the proceeds of the sale
utilized as the first respondent (and the second respondent) intends
to do.  The first respondent
agreed to this, and the immovable
property acquired in the Trust with the express intention to
safeguard the property for the benefit
of all the trust
beneficiaries, including the applicant.
11.
The house was purchased and put in Trust to provide a suitable place
to live for the children with good living
conditions to serve the
best interests of the children as envisaged by the Children’s
Act, 38 of 2005.  The first house
was sold when the first
respondent moved, and a new property acquired as a result of the
intention with which the Trust property
was bought.  The same
transpired when the first respondent moved to Gauteng and the Trust’s
property was purchased.
In the removal application the acquisition of
the Trust property is dealt with fully, namely that the applicant
(
sic)
sold the KwaZulu Natal property without informing the
applicant or me of the sale.  We only learned of the sale after
the first
respondent had signed an offer to purchase on the Trust’s
property.  There however was a shortfall on the purchase price

that needed to be paid and the first respondent approached the
applicant and myself for funding in this regard.  An amount
was
lent to the Trust by Armist Wholesale (Pty) Ltd, a company in which
the applicant and myself have equal shares.
12.
It obviously benefits the first respondent in personal capacity as
she also has a place of residence as guardian
of the children for
which she need not pay rent.
13.
The first respondent’s (in personal capacity, thus the sixth
respondent) only expense with regards to
place of residence is
payment of the monthly municipal account in relation to the immovable
property. To this end, she receives
as part of the maintenance
contribution from the applicant, a contribution for the pro-rata
share of the children’s water
and electricity usage.
14.
The levy payable on the property also forms part of the maintenance
contribution.  The applicant also
pays the household insurance
directly to the insurer monthly.”
The
main application under case number 201/2023:
[13]
On 18 January 2023 the applicant issued the main application under
case number 201/2023 in terms whereof
the applicant was initially
seeking an order that the applicant’s attorney of record, Mrs
Milton, and the applicant`s wife
be appointed as trustees of the
Trust in addition to the first respondent, who, at the time, was the
only trustee.
[14]
On 23 February 2023 the Court granted leave to the applicant to,
amongst other matters, amend the Notice
of Motion in the main
application to include a prayer for the removal of the first
respondent as trustee of the Trust and to file
a supplementary
founding affidavit.  The respondents in the interdictory
application, with the exclusion of Mr Augustyn, in
his personal
capacity, Mr van Vuuren, in his capacity as trustee of the FC Fin
Trust, and the Registrar of Deeds, Pretoria, are
also cited as
respondents in the main application.  The said respondents are
opposing the relief sought by the applicant in
the main application.
The aforesaid respondents filed an answering affidavit in the main
application which was deposed to by the
first respondent. Mr Augustyn
N.O. also deposed to a confirmatory affidavit in support of the
opposition to the main application.
The applicant filed a replying
affidavit, which was deposed to by the applicant`s wife.
[16]
When the Trust was established on 23 February 2012, three trustees
were appointed.  They were
the first respondent, the applicant
and one Anthony de Villiers, representing the Beta Trust Admin CC.
The applicant resigned
as trustee on 21 June 2012, allegedly since he
was advised that he should rather not be the founder, a trustee and
beneficiary.
The first respondent and the Beta Trust Admin CC
were then the appointed trustees.  On 13 October 2020, Beta
Trust Admin CC,
represented by Anthony de Villiers, resigned.
Although the Letters of Authority was not revised to reflect only the
first
respondent as trustee, Beta Trust Admin CC’s resignation
was, however, accepted by the Master by means of a letter attached
to
the founding affidavit in the interdictory application as annexure
“N”.
[17]
According to the applicant, the first respondent, notwithstanding
demand, failed to appoint an additional
trustee in terms of the
provisions of the Trust Deed.  According to the first
respondent, she was initially not aware that
the Beta Trust Admin CC
had resigned as trustee.
[18]
The first respondent later nominated Mr Augustyn to be the second
trustee and the Master authorised
him to co-represent the Trust on 19
January 2023.
[19]
During the preparation of the main application the applicant and his
wife were informed by Demetrios
that the first respondent had
instructed an estate agency to sell the Trust property.  It was
then ascertained that the Trust
property had indeed been placed in
the market by Remax Estate Agency and advertised on the Property24
website for R1 450 000.00.
A copy of the advertisement is attached to
the founding affidavit in the interdictory application as annexure
“C”.
[20]
On or about 3 March 2023 the applicant’s wife received
information that an offer to purchase
the Trust property had been
made. Thereafter correspondence followed between the applicant`s
attorney and Mr Augustyn, in his capacity
as the attorney of the
first respondent, and only after some time and much effort, the
applicant`s attorney eventually received
a copy of the document
titled “Agreement of Sale – Sectional Title” (“the
Deed of Sale”) from Mr
Augustyn via e-mail on 22 March 2023.
A copy of the Deed of Sale, dated 1 March 2023, is attached to the
founding affidavit
in the interdictory application as annexure “I”.
[21]
The applicant pointed out in the founding affidavit that at the time
of the drafting and filing of
the supplementary founding affidavit in
the main application, the sale had not yet been concluded.
[22]
At paragraph 46.7 of the founding affidavit in the interdictory
application, the following is consequently
stated:
“
The
applicant has given notice to the … respondents in the removal
application that the applicant intends to amend the amended
notice of
motion to include as new prayer 11 the following, ‘Declaring
the agreement, styled Offer to Purchase – Sectional
Title,
dated 1 April 2023, with regards to the trust’s property be
declared (
sic)
void, alternatively be set aside’, and
renumbering the existing paragraph 11 and 12 to prayers 12 and 13
respectively. Fanie
van Vuuren N.O. in his capacity as trustee of the
FC Fin Trust will be joined to the application as eighth respondent
and the Registrar
of Deeds, Pretoria will be joined as ninth
respondent to the application.”
[23]
It is the applicant’s case that the Trust was erected and the
immovable property in the Trust
was acquired to provide housing for
the minor children.  This is why the immovable property in the
Trust was replaced by another
immovable property when it was sold in
the past in keeping with the intention with which the Trust was
established.
[24]
According to the applicant the first respondent fails to pay the
Trust’s creditors fully every
month, which puts the Trust
property at risk for attachment, more specifically by the
Municipality who threatened to take legal
action due to non-payment
of the municipal accounts.  The applicant further alleges that
the levies were also not paid, which
means that Trust funds were not
used for the purpose for which it was paid over to the first
respondent.
[25]
It is further the applicant’s case that the first and second
respondent’s conduct by selling
the Trust property is not in
the interest of the Trust nor the Trust beneficiaries.  The
Trust property was acquired to secure
a safe living environment for
the minor children.  The costs of living in the Trust property
are negligible, especially considering
that the applicant pays the
levies each month.
[26]
With reference to the main application, the applicant also makes the
following averments in the founding
affidavit in the interdictory
application:
“
58.  …
the first respondent contends, in summary, in her affidavit in the
removal application that she is the children’s
mother and she
alone must decide what is and is not in their best interest.
Once more, if I understand her version correctly,
as set out in her
answering affidavit to the removal application, then the first
respondent states that D[…] does not support
her or the
children and she denies, as stated, the extent of the appellant’s
financial support.  Her denial of the applicant’s

financial support is palpably untrue and will be properly dealt
within those proceedings.  She however goes further to state

that the applicant cannot force her to stay in the Trust’s
property and says that she and the children no longer want to
reside
there.  She contends that the children only has (
sic
) the
Trust to look at for maintenance.”
59.
Her intention is however to sell the Trust property and to use the
proceeds to pay all the maintenance needs
of the children.  She
in fact goes so far as to state that the fact that she is living
above her means and her income is irrelevant.
She says this
after saying that the removal application in fact revolves around the
children’s maintenance.  The first
respondent claims that
she and the second respondent will only use the proceeds of the sale
to pay for expenses of the daughters.
The first respondent
indicated that they (the trustees) intend to pay the proceeds of sale
into a bank account.
60.
It appears that the first respondent has decided that since the
children has almost reached the age of majority,
she will sell the
Trust’s only asset and see to it that the money is used up.
61.
The first and second respondents’ conduct, by selling the Trust
property is not in the interest of the
Trust or trust beneficiaries.
The reasons advanced for the decision simply does not pass muster.
62.
…
63.
…
64.
The first respondent will not be able to rent a property in a safe
neighbourhood for the amount of the municipal
account, which is what
she is liable to pay towards the current housing.  In the result
she will have to rent a property and
she will use the Trust’s
funds to pay the rent.  If she could not even pay her pro-rata
portion of the municipal account,
which was the only expense she had
to pay out of her own pocket to stay in the Trust property, she will
most definitely not be
able to pay a pro-rata portion of rental. She
will still be liable to pay a municipal account if she rents, but she
could not even
pay the municipal account for the Trust`s property on
her version.
65.
As stated above, it has also come to my knowledge that the applicant
(sic)
[moved] out of the Pretoria property and receives
occupational rent for the property. She did not disclose this fact to
us.
66.
The sale of the property is not in the interest of the beneficiaries
and this issue is fully dealt with in
the main application.
Suffice it to say, the applicant’s interests for instance have
not been considered by the trustees.
They intend to sell the
property and then pay rental, obviously this will be put down as
maintenance obligation for the children
whilst they do not have such
an obligation.  The applicant has appropriated trust funds for
herself in the past, as dealt
with in the main application and even
requested the applicant to consent to the registration of a bond over
the Trust’s property
to enable her to buy a car for herself
when she had to sell her Fortuner vehicle due to financial
constraints.  The Court
is referred to the allegations in the
main application where this is dealt with in detail.”
[27]
The first respondent first qualified herself as an attorney and she
later decided to qualify herself
as an advocate and she joined the
Pretoria Society of Advocates after she moved to Pretoria.  The
applicant points out that
the second respondent is the first
respondent’s attorney and he condones her conduct as trustee.
According to the applicant
the second respondent has not been taking
issue with any conduct on her part in her capacity as trustee.
[28]
It was further the applicant’s case in the interdictory
application that the Deed of Sale does
not comply with the peremptory
requirements of
section 2(1)
of the
Alienation of Land Act, 68 of
1981
.
[29]
Furthermore, with regard to the first respondent’s decision to
sell the Trust property and the
mandate which was given to the estate
agent in this regard, the applicant was the sole trustee at the time.
The applicant alleges
in the interdictory application that the second
respondent informed the applicant’s attorney that he ratified
the sale after
the second respondent became authorised to act on the
Trust’s behalf on 19 January 2023.  According to the
applicant
the Deed of Sale is, also on this basis, void.
[30]
In the interdictory application the applicant averred that the first
and second respondents intended
to force the sale and the
registration of passing of ownership so that regardless of the first
respondent’s possible removal
as a trustee and/or the
appointment of any additional trustees, such trustees will be faced
with a
fait accompli
as far as the sale of the Trust property
is concerned.
MERITS
OF THE APPLICATIONS:
[31]
It is recorded that at the time when the adjudication of the
interdictory application served before
me, all the papers in both the
applications had already been filed and the lever arch file which
contains the main application
was also placed before me at that
stage. No subsequent affidavits on the merits of the two applications
followed the issuing of
the rule
nisi
in the interdictory
application.
The
appointment of the estate agent and the validity of the Agreement of
Sale:
[32]
Mr Snellenburg, who appears on behalf of the applicant in both the
applications, and Mr Reinders, who
presently appears on behalf of the
relevant respondents who are opposing the two applications, indicated
in their respective heads
of argument that the Agreement of Sale
pertaining to the Trust property has since been cancelled by Mr Van
Vuuren on behalf of
the FC Fin Trust. Mr Snellenburg consequently
indicated that the declaratory order regarding the validity of the
appointment of
the estate agent and the subsequent Agreement of Sale,
need not be adjudicated anymore. Mr Snellenburg confirmed same at the
commencement
of the hearing of oral arguments.
[34]
For the sake of clarity I record that Mr Grobler previously appeared
on behalf of the relevant opposing
respondents during the hearing of
the interdictory application on 28 April 2023.
The
locus standi
of the applicant:
[35]
I have already dealt with the alleged lack of
locus standi
of
the applicant in the interdictory application.  I consequently
request that my findings in this regard contained in paragraphs
[43]
to [51] of my judgment dated, 2 June 2023, be read herein as though
mutatis mutandis
set forth in this judgment.
[36]
When dealing with this issue in relation to the main application, I
wish to pertinently repeat the
contents of paragraph [52] of my said
judgment herein:
“
[52]
In addition, the aforesaid interpretation is supported by the
available evidence pertaining to the surrounding circumstances
which
led to the formation of the Trust.  In this regard the evidence
of the founder of the Trust, being the applicant, is
clear that it
was the intention that he be appointed as an income- and capital
beneficiary, as indeed stated and recorded in the
Trust Deed. In this
regard I find it very significant that in the main application the
respondents are not disputing the applicant’s
allegation that
he is an income- and capital beneficiary, and, consequently, his
locus standi
. In this regard the following allegations and
responses thereto are evident from the papers filed in the main
application:
1.
In paragraph 2 of the founding affidavit the following allegations
are made:
‘
2.1.2
The applicant is the founder and an income and capital beneficiary
of the Olive Tree Trust …
2.1.3
The applicant is also cited herein as the fifth respondent, as he is
also a beneficiary of the
abovementioned Trust.’
In
response to the aforesaid allegations, the respondents state as
follows in paragraph 5.5 of the answering affidavit:
‘
5.5
I admit the allegations herein contained, insofar as it accords with
the content of the Deed of Trust….’
2.
In paragraph 10.1 of the founding affidavit the following allegations
are made:
‘
10.1
The founder of the Trust is my husband in my second marriage.
He is also an interest and capital beneficiary in the said
Olive Tree
Trust …’
The
response to the aforesaid allegations is contained in paragraph 5.17
of the answering affidavit, which (unconditionally) reads
as follows:
‘
5.17
I admit the allegations herein contained.’
”
[37]
Consequently, based on the information contained in the interdictory
application, read with the contents
of the main application, I again
find/persist with my finding that the applicant is an income- and
capital beneficiary in terms
of the Trust Deed. In his capacity as
such he has the right to approach the Court if a trustee is
delinquent. The right vests in
all trust beneficiaries, including
contingent trust beneficiaries. See
Gross v Pentz
[1996] ZASCA 78
;
1996
(4) SA 617
(A)
[38]
The applicant consequently has
locus standi
for purposes of
both the interdictory application and the main application.
[39]
For the sake of completeness I need to mention that Mr Reinders,
during his oral argument, expressed
his doubt as to whether the
General Power of Attorney, attached to the founding affidavit as
Annexure “CCT1”, on which
the applicant`s wife relies for
her authority to have deposed to the respective affidavits on behalf
of the applicant, is worded
wide enough to provide her with such
authority. However, as correctly submitted by Mr Snellenburg, this
point has not been raised
in either the interdictory application or
the main application and will grossly prejudice the applicant should
I allow the point
to be raised at this late stage of the proceedings.
In any event, I have to remark, even though
obiter,
that in my
view the said Power of Attorney is indeed worded wide enough for her
to rely upon it for present purposes.
Approach
to the factual allegations contained in the affidavits:
[40]
The approach to be followed when an applicant seeks final relief on
motion has been determined in
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) at para
[12]
to be the following:
“
[12] Recognising
that the truth almost always lies beyond mere linguistic
determination the courts have said that an applicant who
seeks final
relief on motion must, in the event of conflict, accept the version
set up by his opponent unless the latter's allegations
are, in the
opinion of the court, not such as to raise a real, genuine or
bona fide dispute of fact or are so far-fetched
or clearly untenable
that the court is justified in rejecting them merely on the
papers:
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A)
at 634E - 635C. See also the analysis by
Davis J in
Ripoll-Dausa
v Middleton NO and Others
2005
(3) SA 141 (C)
at 151A - 153C
*
with which I respectfully agree.”
See
also
Recycling and Economic Development Initiative of South
Africa NPC v Minister of Environmental Affairs
2019
(3) SA 251
(SCA).
[41]
I must however state that in this matter most of the findings are

actually based on common
cause facts.
[42]
Because of the voluminous nature of the two applications (2 lever
arch files, consisting of a total
of 815 pages, excluding the four
sets of heads of argument), it goes without saying that I cannot deal
with each and every allegation.
I have, however, worked through all
the papers more than once and will be addressing the most pertinent
issues and averments.
Request
for removal of the sixth respondent (first respondent N.O.) as
trustee:
1.
General Principles:
[43]
The nature of a trust is described as follows in
Griessel
N.O. v De Kock
2019 (5) SA 396
(SCA) at para [11]:
“
[11]
It is trite that a trust is not a legal person. An inter vivos trust
is governed by the terms of a trust deed as well as the
provisions of
the Trust Property Control Act 57 of 1988. In its strictly technical
sense, a trust is a legal institution
sui
generis. In
Lupacchini v Minister of Safety and
Security
Nugent JA observed:
'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
Honoré'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 . . .'”
(My
emphasis)
[44]
I
t is the duty of a trustee(s) to administer a trust for the
benefit of the beneficiaries. In
Trust Law and Practice
,
Dr PA Olivier
et al,
updated April 2023 – SI 8, Chapter,
at para 3.4.2 this principle is stated in the following terms:
“
The
object of the powers given to a trustee is to enable him to do
justice to the fiduciary duties which attach to his office. It
is
self-evident that there is a duty to exercise all powers in such a
manner that the beneficiaries reap the benefits. Although
the
trustee’s duties can be listed under a number of headings, the
dominant consideration inherent in all the duties is the
benefit of
the beneficiaries.”
[45]
In the preamble of the Trust Deed it is also specifically stipulated
that the Trust Fund is for the
benefit of the income- and capital
beneficiaries:
“
Whereas
the Founder wishes to create a Trust by way of a donation to the
Trustees, with the purpose of establishing a Trust Fund
for the
benefit of the income- and capital beneficiaries (herein later
jointly referred to as the ‘beneficiaries’)
…”
[46]
The Trust Deed furthermore contains the following provisions in this
regard:
“
9.
POWERS OF THE TRUSTEES:
9.1
The powers of the Trustees defined in this Trust document, are
ex
officio
powers relating to that of the office of Trustees, to
enable them to administer the Trust Fund,
on behalf of the
beneficiaries, and not for the personal benefit of the Trustees
.
The extent of the powers vested in the Trustees, must always be
interpreted so that
the main objective of the Trust is, namely, to
benefit the beneficiaries, and not to do harm
.” (My
emphasis)
“
13.
DUTIES OF TRUSTEES:
Apart from the common law
duties which attach to the office of Trustee, the Trustees shall be
subject to all the duties of a Trustee
as enunciated in the Trust
Property Control Act No. 57 of 1988, namely to:
13.1
…
…
13.7
To not dispose of any assets of the Trust, for their own benefit
or for the benefit of their estates
, and to continuously act in a
prudent and diligent manner as can be reasonably expected from a
person who is in charge of the affairs
of another person.” (My
emphasis)
[47]
In terms of section 20(1) of the Trust Property
Control Act, 57 of 1988 (“the Act”) a trustee may, on the
application
of any person having an interest in the trust property,
at any time be removed from his/her office by the court if the court
is
satisfied that such removal will be in the interests of the Trust
and its beneficiaries.
[48]
An application for the removal of a trustee is to be made against the
relevant trustee in his/her personal
capacity, hence the sixth
respondent
in casu
, Ms Theodorellis Debbie. In
Stander v
Schwulst and Others
2008 (1) SA 81
(C) the following is
stated in this regard at paras [32] – [34.5]:
“
The
legal position
[32]
An application for the removal of a trustee is a claim against the
trustee in his personal capacity, in much the same way as
is a
beneficiary's claim against a trustee for damages for breach of
trust.  The trustees accepted this in their founding

affidavit and it is borne out by authority.
5
[33]
The contention by Mr
Olivier
that they should have
been sued in the main case in their representative capacities would
not affect the costs issue now under
consideration and their
contention is, incorrect in law. It is contrary to the cases cited
in n5 above and to the views of
the learned authors mentioned
there.
[34]
It is also not correct to describe this state of affairs as
illogical. On the contrary, it is sound:
[34.1]
A claim should be brought against a trustee in his representative
capacity where he is alleged to be liable in that capacity,
eg
on a contract concluded on behalf of the trust or a delict committed
by the trust or to effect payment due under the Trust deed
to a
beneficiary.
[34.2]
In such cases, where there is more than one trustee, the trustees in
their representative capacities must act together and
any
claim in such cases must cite all the trustees in their
representative capacities. One of several trustees cannot be cited
as
a representative of the trust. Accordingly, in proceedings of the
kind envisaged in 34.1 above, all the trustees in their
representative
capacities would have to be sued. That is the hallmark
of a claim brought against trustees in their representative
capacities.
[34.3]
Where a trustee is sued for breach of trust (whether for removal or
damages), the claim is obviously against him personally.
The
claim arises because the trustee assumed the office of trustee, but
the complaint is that he violated the trust or the
office. The
whole point in such proceedings is that the trust (as represented by
its trustees in their representative capacities)
is not liable. If it
were otherwise, beneficiaries would always be the ultimate losers
where trustees act in breach of trust.
[34.4]
Particularly in the case of removal, the claim is personal. A trustee
as a representative of the trust (as distinct
from his personal
capacity) cannot be removed. The correct metaphor is that of an
office (cf s 20 of the Trust Property Control
Act 57 of 1988; cf
Honoré (op cit) in para 8 at 22). The office is unaffected by
the removal. It is the individual
who is removed from the
office.
[34.5]
That claims for removal are personal is clear from the fact that a
removal application can properly be brought against
only one of
several trustees. The claim arises from conduct personal to the
particular trustee and not from conduct which
binds the trust.”
See
also
Price and Another v Kaplan N.O. and Others
(44937)
[2022] ZAGPPHC 429 (14 June 2022) at para [66].
[49]
Section 20(3) of the Act determines that if a trustee authorized to
act under section 6(1) is removed
from his office or resigns, he/she
shall without delay return his/her written authority to the Master.
[50]
In
LAWSA,
Volume 43(3ed), at para 216, the following
approach to an application for the removal of a trustee and the
circumstances in which
such an application may be successful, are set
out as follows:
“
A
trustee may be removed even if his or her conduct was
bona
fide
, since neither
mala
fides
nor even misconduct are
necessary requirements for removal. When a court exercises its power
to remove a trustee it must do so with
circumspection. Whenever
trust assets are endangered, a trustee should be removed. Some
circumstances which justify the
removal of a trustee by the court
are:
(a)
where the trustee, without explanation, removes
trust funds from an apparently safe investment with a financial

institution and transfers them to his or her personal account, for
the courts have often laid down
that any person in a position of
trust has no business to mix his or her own funds with trust funds –
it is a very improper
procedure for such a person to pay trust funds
into his or her personal account;
(b)
where the trust deed requires that, if a decision is to be taken
(especially the sale of immovable property)
notice must be given to
all the trustees so that they can make a decision in this regard, and
the trustee deliberately refrains
from informing one of his or her
trustees of the intended decision;
(c)
where the trustee does not ascertain from the trust deed what the
rights and obligations of the office of trustee entail;
(d)
where the trustee treats the trust and its assets as his or her
own, for example by selling the trust assets without the proper
approval of the other trustees as required by the trust deed
;
(e)
where a trustee, without objection allows grave misconduct on the
part of a co-trustee in the administration
of trust property and
thereby exercises no control at all over the trust property; and
(f)
when continuance of the trustee in
office prevents the trust being properly administered or will be
detrimental to the welfare of
the beneficiaries.
”
(My emphasis)
[51]
The following applicable
dicta
are contained in the judgment
of
Kidbrooke Place Management Association and Another v Walton
and Others NNO
2015 (4) SA 112
(WCC) at paras [47] –
[49]   thereof:
[47]
The conflict-of-interest situation in which the first respondent
and Badenhorst placed themselves as trustees in respect
of the
transactions involving HMS and Codé was stark. This was in
manifest breach of their duties to the Trust and the rights-holders

as beneficiaries.
[48]
Not only was their conduct in conflict with the duties of a trustee
at common law, it was also in breach of express provisions
of the
trust deed that reiterated the common-law duties of trustees. …
[49]
As stated in Cameron et al op cit supra para 223, '(a) trustee,
even though innocent, whose position involves a conflict
of
interest and duty may be removed from office by the court'.  …”
2.
The required number of trustees:
[52]
The relevant provisions of the Trust Deed with regard to the required
number of trustees and their
decision-making processes, are the
following:
“
5.2
There shall be at least TWO (2) but preferably THREE (3) and at most
SIX (6) trustees in office, with the understanding
that in case only
TWO trustees remain as a result of the resignation of or death of
co-trustees, the remaining Trustees will be
authorized to exercise
sole powers as Trustees for the maintenance and administration of the
Trust, until such time as a further
Trustee is appointed.
5.3
Should there be only
ONE trustee
in office,
such
Trustee is obliged to appoint further Trustees within 90 (NINETY)
days of the retirement/resignation
or death
of the
co-trustees
.  While there is only one Trustee in office,
such Trustee will, whilst he/she acts alone, not be entitled to pass
a valid
resolution, regarding the distribution of income, capital or
amendment of the Trust Deed.” (My emphasis)
“
8.2
Resolutions made by the Trustees, occur:
8.2.1
Where there are more than two Trustees, by way of an ordinary
majority of votes;
8.2.2
Where there are only two Trustees, by way of a unanimous decision
from both of them.”
[53]
The first respondent and Beta Trust Admin CC, represented by Anthony
de Villiers, used to be the two trustees of
the Trust.  The
last-mentioned trustee resigned on 13 October 2020, as evident from
his letter of resignation. On the applicant`s
version the first
respondent told her about the trustee`s resignation shortly after he
had resigned. According to the first respondent
she only became aware
of his resignation on 15 April 2021 when she contacted Meditax in
Bloemfontein to request a copy of the Trust
Deed, since her copy had
a few pages missing. Helena at Meditax then emailed her the letter of
resignation and the Master`s letter
confirming same. I will approach
these facts based on the first respondent`s own version.
[54]
In her answering affidavit in the main application the applicant
admitted that she did not immediately appoint
another trustee at the
time “
because it took time to find a fit and proper person
to act as a trustee …and not everyone wanted to accept the
appointment
to act as trustee.”
She further stated that
fortunately her attorney, Mr Augustyn (the seventh respondent)
,
“whom I have worked with previously in other matters, was
satisfied to accept the appointment as trustee …
”
[55]
It is common cause that on 31 January 2022 the applicant`s attorney
of record, Mrs D Milton, emailed a letter to
the first respondent in
which letter Mrs Milton,
inter alia,
pointed out to the first
respondent that she, the first respondent, was the only trustee at
the time and that she had failed to
appoint additional trustees as
determined by the Trust Deed.  She was placed on terms to comply
with the Trust Deed in relation
to the appointment of further
trustees on or 28 February 2022. Mrs Milton also advised the first
respondent that whilst she is
the only trustee she may not make any
resolutions or decisions in relation to the trust and should she do
so, same will be void.
[56]
Despite the aforesaid, on the first respondent`s own version, she
only signed a resolution on 16 November
2022 for the nomination of Mr
Augustyn as second trustee of the trust.
[57]
On her own version it therefore took the first respondent from 15
April 2021 until 16 November 2022
to have taken a resolution
regarding the nomination of a second trustee, despite having even
been placed on terms by Mrs Milton
to do so by 28 February 2022. In
addition, the said resolution and other relevant documents were only
received by the Master on
18 January 2023 (which version is supported
by the fact that Mr Augustyn was only appointed as co-trustee by the
Master on 19 January
2023).
[58]
The first respondent`s version that she took from 15 April 2021 until
16 November 2022 to have found
a fit and proper and willing trustee,
is so untenable that it can outright be rejected. The first
respondent further failed to
provide any explanation for the delay
between the date of the resolution and the date when the Master
received same.
[59]
It is consequently evident that the first respondent failed to comply
with the provisions of the Trust
Deed in this regard.
[60]
Mr Snellenburg relied on the
Price
-judgment,
supra,
wherein it was held that a trustee who failed to comply with the
terms of the Trust Deed, and specifically the obligation to see
to
the appointment of a trustee where the number of trustees fell below
the required minimum necessary for the trust to have capacity,

constitutes a dereliction of his/her duty as trustee and amounted to
grossly inefficient administration of the estate rendering
the
trustee unfit to hold the office of trustee.
[61]
Furthermore, if it took the first respondent months to find out that
her co-trustee had resigned, it
begs the question how much, if any,
co-operation existed between them as co-trustees or did the first
respondent proverbially “run
the show” on her own.
3.
Ascertaining from the trust deed what the trustees` rights and
obligations entail:
[62]
As already indicated earlier, the first respondent stated that she
contacted Helena at Meditax on 15
April 2021 to request a copy of the
Trust Deed because “
my copy of the Trust Deed had a few
pages missing”.
An email from the said Helena is attached
to the answering affidavit in the main application as annexure “DT14”
from
which it is evident that she (the first respondent indeed
requested a copy of the Trust Deed.
[63]
What the first respondent did not explain is for how long period of
time she has been without a complete
copy thereof and/or how it
happened that she lost or misplaced some of the pages thereof. She
has been holding the office as trustee
of the trust since 23 February
2012. Theoretically, and without an explanation by the first
respondent, it may have been a number
of years during which she did
not have a complete copy of the Trust Deed.
[64]
The further ramification is that even after the first respondent
obtained a complete copy of the Trust
Deed, she still failed to
comply with the time period within which she had to nominate a new
co-trustee.
[65]
As indicated earlier in the judgment, one of the obligations of a
trustee is to ascertain from the
Trust Deed what his/her rights and
obligations as the trustee entail, which the first respondent could
not have done “properly
during the (unknown) time period when
she was not in possession of a complete copy of the Title Deed.
4.
Conflict of interest and/or where the trustee treats the trust and
its assets as his/her own:
[66]
The aforesaid heading actually constitutes two different grounds upon
which a trustee can be removed
from office. However, due to the facts
and circumstances in the present matter, I deem it apposite deal with
these two grounds
under one heading.
[67]
I have already referred to the general principle that a trustee
should keep trust assets and money
at all times separate from his/her
own and that there should be no conflict of interest between the
personal capacity and the repetitive
capacity of a trustee.
[68]
In terms of the Trust Deed the duties of the trustees,
inter alia,
entail the following:
“
13.3
Immediately open a Trust account with a bank or building society in
the name of the Trust, in which all money received
by the Trust,
shall be deposited.
13.4
…
13.5
To keep proper books or allow proper bookkeeping to be kept of the
affairs of the Trust;
13.6
To continuously keep all trust property separate or to register it so
can be identified as Trust property.
13.7
To not dispose of any assets, for their own benefit or for the
benefit of their estates, and to continuously
act in a prudent and
diligent manner as can reasonably be expected from a person who is in
charge of the affairs of another person.”
[69]
At the outset I need to record that the first respondent, nor Mr
Augustyn N.O., presented any evidence
of the existence of such
separate bank account in the name of the trust, nor of any
bookkeeping in relation to the affairs of the
trust.
[70]
To a certain extent the two applications developed as though they
entail a maintenance dispute, which
they definitely do not. I do
however comprehend why this development occurred in the
circumstances. However, I wish to accentuate
the fact that these two
applications do not constitute maintenance disputes and I will
consequently attempt to restrict myself
to what I consider to be the
real issues for purposes of the nature of the two applications.
[71]
The first respondent and Demetrios got divorced in 2010. The
applicant offered and undertook to pay
maintenance in support of the
two minor children in lieu of their father, the applicant`s son,
Demetrios, who was and is not financially
able to do so.
[72]
It is common cause that after the first respondent`s and Demetrios
divorce in 2010, she resided in
Bloemfontein with the two minor
children in a house which belonged to the applicant. When the first
respondent relocated to KZN
in July 2012, the applicant sold the said
house and bought a house in Pietermaritzburg, which was subsequently
registered in the
name of the trust during or about October 2012.
When the first respondent and the minor children thereafter relocated
to Pretoria,
the property in KZN was sold and the Trust property was
acquired and registered in the name of the trust on 28 February 2014.
The
first respondent and the minor children took occupation of the
property in Pretoria on 1 March 2014. The first respondent became
a
member of the Pretoria Society of Advocates during 2016 and she has
since been practising as an advocate, after she previously
qualified
herself as an attorney. It is. However, it is not clear whether she
still holds chambers at the bar.
[73]
Already in the founding affidavit filed in the main application,
paragraph, 10.9.7 thereof, the applicant
referred to a time period
when the first respondent moved into a different townhouse and the
payments which he made in respect
of the said townhouse in favour of
her personally, in spite of rental which she was receiving at the
time for the Trust property.
In the answering affidavit filed in the
main application, the first respondent admitted the aforesaid
averments.  At the same
time the first respondent, more than
once in her answering affidavit in the main application, averred how
she struggled financially
during the Covid-pandemic in 2020. I accept
unconditionally that the pandemic had a huge negative impact on the
first respondent`s
practice. However, when the aforesaid averments
are read in conjunction with the replying affidavit, it is evident
that it was
during the very same year, 2020, that the first
respondent moved out of the Trust property in January 2020 to live
with a third
party with whom she had a relationship.  The
relationship did not work out and during March 2020 she had to move
out and find
alternative accommodation because she had rented out the
Trust property. During that stage the applicant paid a deposit of
R17 000.00
for a furnished flat of the first respondent`s choice
where they went to live temporarily, called L’Breeze.
Thereafter the
applicant also paid the rental for L’ Breeze for
the next 10 months in the amount of R17 000.00 per month. Not
only
did the applicant and the minor children lived free of charge,
but the applicant also continued to pay her a monthly amount of
R16 286.00 for maintenance, as well as the insurance for her
vehicle and household assets. Whilst the applicant was paying
these
amounts, the first respondent also received an amount of R15 000.00
per month for 11 months for the rental of the Trust
property. The
said rental money which she received for the Trust property obviously
belonged to the Trust, but instead of paying
it into an account in
the name of the Trust or paying the creditors of the trust, she kept
the rental amounts for herself and used
same for her personal needs.
She made no distinction between the money of the Trust and her
personal money. I need to also mention
that the first respondent did
not pay the R17 000.00 which the applicant paid in her favour as
a deposit for L’Breeze,
back to him when she moved back to the
Trust property. She used it like it was her own money.
[74]
It is common cause that during 2021 the first respondent divulged to
Ms T[…] that she was experiencing
financial difficulties,
despite the applicant`s monthly contributions. She was in arrears
with the levies and the Municipal accounts
of the Trust property. Ms
T[…] herself checked the arrears at the time with the
respective authorities. On 6 December 2021
the monthly rates were R3
286.00 and the outstanding amount was R30 166.49. The monthly
levy was R1 500.00 and the levies
outstanding were R25 496.79.
From two invoices, dated July 2021, which the first respondent
attached to her answering affidavit
in the main application, it is
evident that the rates were in arrears in the amount of R37 048.55
and that the monthly rates
were R1 066.79 at the time. The
levies were in arrears in the amount of R22 876.98 and the
monthly levy at the time was
R3 257.00. According to a letter
from Ms Milton addressed to the first respondent, dated 31 January
2022, as at 6 December
2021 the monthly rates were still R1 066.79
with a total amount of R30 166.49 outstanding. At the time the
Municipality
handed the account over to its lawyers. The said lawyers
contacted Mrs T[…] and informed her that they will issue
summons,
take judgment and attach the Trust property if the account
is not brought up to date.
[75]
In a follow-up letter from Mrs Milton, dated 24 March 2022, addressed
to the first respondent`s attorney
of record, Mr Augustyn, Mrs
Milton,
inter alia,
recorded the following:
“
4.1
Mr T[…] and your client had an oral agreement that he would
over and above the maintenance payable for his two granddaughters

also pay the monthly levies of the said property, which he has been
doing since the property was purchased.
4.2
Included in the maintenance of the children, provision was made for
their pro-rata share of the water and
lights, which enabled Mrs D[…]
T[…] to pay the two accounts monthly, and should not have been
in arrears, arrears
which our client also had to from time to time
pay on behalf of your client. We are sure that your client will be
able to verify
these payments.
4.3
Monthly our client therefore pays over to Mrs T[…] the
following:
4.3.1
The levies in the amount of
R3 286.00
4.3.2
Household insurance in the amount of
R2 040.00
4.3.3
Maintenance for the two granddaughters
R13 000.00
(Maintenance
R6 500.00 for each child)
Total
amount of:
R18 326.00
per month.”
[76]
At the time of the attestation of the founding affidavit in the main
application, 17 January 2023,
the applicant`s wife stated as follows
at paragraph 12.5 thereof:
“
The
first respondent is not paying the Trust`s creditors fully every
month and the levies and municipal accounts is presently R3 539.09

and R42 392.61 respectively. It would seem that the first
respondent has neglected to address the municipal accounts for some

time, but has brought the levies up to date after she made an
arrangement with the Trustees of the Governing Board of the Sectional

Title Scheme.”
[77]
In the first respondent`s answering affidavit filed in the main
application, dated 9 March 2023, she
explains that there is a
municipal account for the electricity in the name of the trust and a
municipal account for the property
rates in the name of the trust.
[78]
In the said answering affidavit, the first respondent also stated
that the current levies amount to
R3 257.00 per month and conceded
that she and the applicant agreed that she will pay the levies from
the money he paid to her in
support of the children. She further
stated that at the time there was no outstanding levies. She also
conceded that they agreed
that she will pay the electricity account
in her personal capacity and stated that at the said date of the
answering affidavit,
9 March 2023, there were no outstanding amounts
in respect of the electricity account of the Trust. She has in the
meantime also
settled the levy account. According to the first
respondent, at the time when she deposed to the answering affidavit
in the main
application, she has in the meantime also settled the
levy account
in toto
, but that the rates account has not been
settled yet. She avers that there was no agreement that she will pay
the property rates
each month.
[79]
Where the money came from to have paid the arrears in relation to the
levies and the electricity, has
not been explained by the first
respondent. I, however, agree with the contention of Mr Snellenburg
that it was probably paid up
as a result of the two applications.
[80]
Be that as it may, the fact remains that the money which the first
respondent entrusted to the first
respondent to pay the relevant
creditors of the Trust, which was to be considered to be Trust funds
and earmarked to be utilized
in favour of the Trust, was not utilized
for that purpose or in any other way in favour of the Trust. In the
absence of any explanation,
the only reasonable inference is that the
first respondent used it for her own personal expenses/purposes, to
the detriment of
the Trust, putting the Trust property at risk for
attachment.
[81]
The very disturbing part about the aforesaid figures, is the fact
that at the time the applicant was
actually paying the money for the
monthly levies over to the first respondent in order for her to pay
the monthly account. She
clearly failed to do so and therefore
utilized money which was meant for the Trust, for her own personal
purposes. The applicant
at the time paid R18 326.00 per month to
the first respondent, which was calculated as follows:
1.  Monthly Levy

R3 286.00
2.  Household and
Vehicle insurance
R2 040.00
3.  Maintenance for
the two minor children
(Maintenance R6 500
for each child)
R13 000.00
The
maintenance includes their pro-rata share of the municipal
electricity account.
[82]
At one stage the first respondent wanted the applicant to consent
that a bond be registered over the
Trust property to enable her to
buy a new car for herself and to pay her personal debt – to the
detriment of the Trust. The
applicant obviously declined her request.
[83]
In the answering affidavit in the main application the first
respondent constantly bemoans her alleged
financial constraints. At
paragraph 2.8 of the answering affidavit in the main application, the
applicant states as follows:
“
The
Applicant is by no means committed to contribute meaningfully to my
minor children`s maintenance, as he only contributes an
amount of
R8 000.00 in total for the maintenance of both my minor
children. The aforementioned contribution is wholly insufficient
to
maintain my minor children and I, as my minor children`s primary
caregiver and guardian, am duty bound to attend to their best

interests, hence the decision to sell the property and to safeguard
the nett proceeds derived therefrom for my minor children’s

benefit, as more fully alluded to and described herein
infra”.
[84]
In subsequent paragraphs of the first respondent`s answering
affidavit in the main application,
the first respondent herself
partly explains why the applicant reduced his direct monthly payments
to her:
“
5.32.5.
Over and above the monthly maintenance amount, the Applicant pays the
premium of the short-term insurance in respect
of household contents
and all risk items directly to the service provider. The current
premium is approximately R2 000.00 per month.
5.32.6.
Until the end of October 2022, the Applicant paid maintenance towards
both children in the amount of R16 286.00 per
month, which amount was
split into two payments:
(a)
on the 29th day of the month
R8 286.00
(b)    on
the 4th day of the month
R8000.00
5.32.7.
From the maintenance amount of R16 286.00 supra, I had to pay

the levies of the property in the amount of R3 257.00 per
month.
5.32.8.
After deduction of the levies of the property, the remainder of the
maintenance for both children
amounts to R13 029.00, being  R6
514.50 per month per child.
5.32.9.
From the balance of the maintenance of R13 029.00 supra, I
have to pay the
children's school fees, medical aid, transport,
personal care, toiletries, clothes, shoes, electricity, cell phones,
airtime/data,
wifi, school lunches, pocket money, groceries, and so
the list goes on.
5.32.10.
The school fees for both children amounts to R8 980.00 per
month,
which amount excludes the children’s extramural
activities, extra classes,
8th subject fees, school uniform,
sport          clothes
and sport gear. I annex hereto
a copy of the account of Die Hoërskool
Menlopark confirming the school fees, marked as Annexure "DT7".
I also annex
a copy of the account of Die Hoërskool Menlopark,
confirming the extramural and extra subjects, marked as Annexure

"DT8".
5.32.11.
The property's rates and taxes amounts to R1 175.00 per month which
is currently in arrears in the amount of R43 620.03.
5.32.12.
As from November 2022, the Applicant unilaterally decided to
reduce the maintenance

amount of R16 286.00 to R8 000.00 per
month for both children, leaving a shortfall
of R8 286.00.
5.32.13.
With the R8 000.00 maintenance for both children, the
Applicant
expects me to pay the expenses of the trust property, being
the          levies of

R3 257.00 and the property rates (current and arrears) together with
all the other expenses of the children as mentioned

supra.
5.32.14.
When I noticed at the end of November 2022 that the Applicant
made a short payment of R8 286.00, I sent text
messages to
Celeste and to Dimitri. Celeste never responded. Dimitri phoned me
later to inform me that the Applicant
are withholding R8 286.00 in
order to pay directly to the school as from the end of November 2022.
5.32.15.
Conveniently and interesting to note that no payments are
reflecting on the school account for the months of November
and
December 2022 for the amount of R8 286.00 per month. The
Applicant only made a payment of R4 650.00
on 18 January  2023
and of R4 650.00 on 25 February 2023.
5.33.
AD PARAGRAPH 10.9.2 THEREOF:
5.33.1.
I admit that the levy amount was included in the maintenance  amount
of R8 286.00 until the end of October 2022,
the remainder of this
paragraph is noted.
5.33.2.
Save as aforesaid, I deny the remainder of the allegations herein
contained as if specifically traversed.
5.33.3.
I informed Celeste that I was in arrears.
5.33.4.
The amount for the property rates and taxes was never included
by the Applicant in the maintenance amount
for my minor
children.
5.33.5.
The Applicant and C[…] was fully aware of my financial
position at the time and they knew about the
arrear levies, rates and
taxes, however, they decided not to assist me by paying the arrear
levies, rates and taxes in respect
of the property.”
[85]
Although I do not want to unnecessarily burden the judgment, I deem
it essential to also quote the
response of the applicant in the
replying affidavit in the main application regarding the payment of
maintenance and more specifically
also the payment of the school
fees:
“
11.3
As at October 2022 the applicant was
paying the amount of R16 286.00 monthly to the first respondent.
11.4
The payment included the
following:
11.4.1
The monthly levy regarding the Trust's property payable to the
body corporate. This portion was earmarked
for the Trust's
obligation and was entrusted to the first respondent to use for that
purpose
only. The Court will appreciate that the
levy was less in    the preceding years and is
determined by the Body Corporate  annually.
11.4.2
A maintenance contribution towards the minor children
which,    includes:
11.4.2.1
The pro-rata share of the children regarding
the  municipal account;
11.4.2.2
R8000.00 earmarked for payment by the first    respondent
towards the school fees of the children.
11.5
The monthly premium
payable for the first respondent's household insurance (which
also
included her Fortuner vehicle before she sold it) was (and is still)
paid directly per debit order to the insurer monthly
in addition to
the aforesaid payment.
11.4
[
sic
] An amount was included in the contribution annually for
payment of the school fees based on what the first respondent'
represented
to the applicant the school fees cost per
month.  The amount of   R8000.00 rand earmarked for
payment towards the
children's school fees was based on what the
first respondent told the applicant Dimitri's pro-rata contribution
was for the 2022
school year.
11.5
During November 2022 the
applicant no longer included the amount of R8000.00, (which
had been
earmarked for the school fees) as part of the amount that was paid to
the first respondent monthly. The reason why the
amount earmarked for
payment towards the children’s school fees was no longer
included in the amount paid to the first respondent
was twofold.
Firstly, the first respondent had not paid the contribution of
R8000.00 per month   to the school towards
the school fees
and the applicant subsequently learned that the applicant had
successfully applied for exemption of the liability
to pay school
fees.
11.6
The amount of R8000.00 was
earmarked for Dimitri's portion of the school fees, thus
entrusted
for the specific purpose; was received   by the first
respondent but not used for the purpose it was paid to
her. The first
respondent thus received amount of R8000.00 per month which was
earmarked for a specific purpose, but she did not
use the money for
that purpose and later got exemption. The first respondent never
disclosed the I fact that she was not paying
the school fees, nor the
fact that she intended to or did apply for exemption, nor did the
first respondent disclose the fact that
her application for exemption
was successful.
11.7
In light thereof the first
respondent applied for exemption and in any event did
not make
payment towards the school fees, the reason for payment of payment of
the additional amount of R8,000.00 earmarked for
payment of school
fees was not necessary for November and December as it would not be
used for that purpose. The first respondent
also had the monthly
contribution for school fees that was paid during the year.
11.8
The balance without the
R8,000.00 was paid from November 2022. I realised during
preparation
of this replying affidavit that there was a short payment of R286.00
per month since November 2022. I paid the shortfall,
in the amount of
R1716.00 to the first respondent on 5 April 2023.
11.9
Secondly, the
applicant’s own financial position has changed. The challenges

with his health have brought about more medical expenses. The first
respondent is well aware of the applicant's health issues.
The
applicant has his own obligations that he must comply with and also
have other children and   grandchildren. He has
and is
contributing within his means.
11.10
The first respondent also has a maintenance
obligation, but she expects the applicant to pay for
everything which
the applicant is not bound to do nor is it reasonable.
11.11
The applicant sold his own property after the
divorce and bought the house which was registered in the
Trust's name
to provide housing for the children. He had made substantial
contributions over the years which are not said to be
‘very
limited’.”
[86]
On the first respondent`s own version she would have applied for
exemption before the end of February
2022. For the year 2022 she
received an 83% exemption and the applicant was supposed to only pay
the balance that was left after
the exemption. However, she did not
tell the applicant about the exemption and he continued for the year
until October 2022 to
pay R8 000.00 over to the first respondent
which was earmarked for school fees, but which she used for other
purposes. That
is why the account for school fees which the first
respondent referred to earlier, annexure “DT9” attached
to the answering
affidavit, showed that the school fees outstanding
at 3 March 2023 were R31 664.00
[87]
A further incident which is indicative of the pattern the first
respondent follows, is the following.
As a result of the (unlawful)
decision which the first respondent took as single trustee to put the
Trust property in the market
to sell it and the consequent sale
thereof (which sale has since been cancelled by the buyer), resulted
in her receiving rental
from the purchaser. The rental was supposed
to have been deposited into the Trust`s bank account or, considering
that she knew
that the sale is being contested, in an interest
bearing account in the name of the Trust in case the money had to be
refunded.
This was not done. According to the first respondent it is
not clear what happened to the said rental money –money which
belongs to the Trust.
5.
Selling of the Trust property/best interest of the Trust:
[88]
One of the golden threads that run throughout the two answering
affidavits of the first respondent filed in the
two applications, is
the first respondent lamenting her financial constraints, her
struggling to make ends meet and her blaming
of the applicant for
allegedly not maintaining the minor children properly. A second
golden thread is the complete absence of
any
indication by her
of her average monthly income, her lack of insight that she also has
a primary duty and obligation to maintain
the minor children and her
general lack of taking responsibility for anything.
[89]
Although the papers are riddled of examples of the aforesaid, I wish
to point to certain examples:
1.
Answering affidavit, paragraph 2.6, the proceeds from the sale of the
Trust property are to pay everything:
“
The
Seventh Respondent and I undertake to deposit the nett proceeds
derived from the alienation of the property into the Trust`s

designated bank account, which funds will be earmarked for the
benefit of the trust beneficiaries. …
My
minor children are entirely dependent on the Trust
,
as the proceeds from the sale of the property are earmarked to
maintain my minor children and to assist them in pursuing their

tertiary studies and further education”
(My
emphasis)
2.
Answering affidavit, paragraph 5.32.9, all monies for the children`s
maintenance and expenses have to
come from the applicant, no
contribution from her side:
“
From
the balance of the maintenance of R13 029.00 supra, I have to pay the
children's school fees, medical aid, transport, personal
care,
toiletries, clothes, shoes, electricity, cell phones, airtime/data,
wifi, school lunches, pocket money, groceries, and so
the list goes
on.”
3.
Replying affidavit, paragraph 11.12, the applicant is experiencing
the same conduct from her:
“
The
children are entitled to reasonable maintenance. The applicant has
stood in, bona fide, without any duty, for D[…]. But
the first
respondent, whilst pleading poverty, has lived an extravagant
lifestyle, above her means, creating the situation that
whilst the
contributions should be more than enough if the first respondent also
contributes, she fails to pay creditors and put
the trust`s property
in jeopardy.”
[90]
On the first respondent`s own version, on the second page of her
answering affidavit in the main application,
she stated that the
Trust is a “classical property holding trust and owns only one
immoveable property”. Previously
when the Trust property was
sold, a replacement property was bought and that was and is the
intention of the Trust founder, the
applicant, in the best interest
of the minor children. I repeat paragraphs 9 – 11 of the
founding affidavit:
“
9.
The trust was erected with the sole purpose to own an immovable
property where the children can reside.
10.
I was present when the applicant specifically said to the first
respondent (in personal capacity) when creating
the trust that the
immovable property must not be sold.  It was never the intention
that the Trust’s property be sold,
and the proceeds of the sale
utilized as the first respondent (and the second respondent) intends
to do.  The first respondent
agreed to this, and the immovable
property acquired in the Trust with the express intention to
safeguard the property for the benefit
of all the trust
beneficiaries, including the applicant.
11.
The house was purchased and put in Trust to provide a suitable place
to live for the children with good living
conditions to serve the
best interests of the children as envisaged by the Children’s
Act, 38 of 2005.  The first house
was sold when the first
respondent moved, and a new property acquired as a result of the
intention with which the Trust property
was bought.”
[91]
I repeat and persist with following findings I made in my previous
judgment of 2 June 2023 at paragraph
[61]:
“
In
fact, there are a number of crucial issues which seriously begs the
question whether the first and second respondents, and especially
the
first respondent, are complying with their fiduciary duty owed to all
the beneficiaries, or whether the first respondent is
using and/or is
attempting to use the Trust/Trust funds/Trust property as a
“maintenance-provider” for the two minor
children for the
payment of all their expenses. Although the respondents correctly
pointed out in the answering affidavit that
the Trust Deed,
inter
alia,
determines that the Trustees are empowered to pay such
amounts to any beneficiary as the Trustees may deem reasonable and
desirable
for maintenance, the first and second respondents still
have the duty
to exercise this
power for the benefit of all the beneficiaries. Even if only the
interest of the two minor children is considered,
it can hardly be to
their benefit if the Trust property is to be sold in order for the
proceeds thereof (then Trust funds) to be
used to pay expenses which
are in actual fact part of the maintenance obligation of the first
respondent in her personal capacity
towards the two minor children. …
However, if such interest is utilized to make payments which are in
actual fact part of
the first respondent`s maintenance obligation (in
her personal capacity), it will probably result in the necessity to
also utilize
the capital to the point that it will become, to the
detriment of the Trust beneficiaries, completely depleted.”
[92]
The first respondent and the
minor children are currently living in a proper house at minimal
cost. The first respondent, on her
version, does not make ends meet.
If a house is to be rented, the first respondent will not be able to
afford the rent. That means
that already the rent of a new house will
have to be paid from the interest on the proceeds or, more likely,
from the capital itself,
since I cannot foresee that the interest
will be enough to fund the first respondent`s lifestyle of living
above her means.
[93]
With the current facts and circumstances in this matter, I cannot
find that it will be in the best
interest of the minor children and
the applicant, as a co-beneficiary, that the Trust property be sold.
[94]
Since paragraphs 2.1, 2.2 and 2.3 of the rule
nisi
issued on 2
June 2023 in the interdictory application make provision for “
any
other purchaser
”, I deem it appropriate that the rule
nisi
be confirmed. It is also to include the present reference to FC
Fin Trust, since in the absence thereof, the said Trust will
theoretically
be entitled to conclude a new sale agreement with the
trustees.
6.
Incapacity of the trust:
[95]
The
principles governing the capacity of a trust where the number of
trustees has fallen below the number prescribed in the Trust
Deed are
set out in
Land
Agricultural Bank of SA v Parker and Others
2005
(2) SA 77
(SCA) at paras [10] – [14]:
“
[10]
The first principle accounts for the fact that the trust could not be
bound while there were fewer than three trustees. Except
where
statute provides otherwise, a trust is not a legal person. It is an
accumulation of assets and liabilities. These constitute
the trust
estate, which is a separate entity. But though separate, the
accumulation of rights and obligations comprising the trust
estate
does not have legal personality. It vests in the trustees, and must
be administered by them- and it is only through the
trustees,
specified as in the trust instrument, that the trust can act. Who the
trustees are, their number how they are appointed,
and under what
circumstances they have power to bind the Trust estate are matters
defined in the trust deed, which is the trust
constitutive charter.
Outside its provisions the trust estate cannot be bound.
[11]
It follows that a provision requiring that a specific minimum
number of trustees must hold office is a capacity defining
condition.
It lays down a prerequisite that must be fulfilled before the trust
estate can be bound. When fewer trustees than the
number specified
are in office, the trust suffers from an incapacity that precludes
action on its behalf.
[12]
… but it does not follow that a sub-minimum of trustees
can bind a trust.
[13]
In the present case, the Parkers alone were not ‘the
trustees’ as defined in the trust deed, Nor, while
fewer than
three trustees were in office, were there ‘trustees’ on
whose behalf the Parkers could act, or from whom
they could receive
authority to bind the Trust estate. The fact that they acted jointly
in signing the contracts does not change
this, because
the trust’s
incapacity during this period
does not
arise
from the
joint action requirement, but
from the trust’s incapacity
while a sub-minimum of trustees held office
.
[14]
The Parkers in other words could not bind the trust because no one
could. This does not mean that their duties as trustees
ceased. On
the contrary their obligation to fulfil the trust objects and to
observe the provisions of the trust deed continued.
These required
that they appoint a third trustee when a vacancy occurred - a duty
they signally failed to fulfil. But until they
did so the trustee
body envisaged in the trust deed was not in existence, and the trust
estate was not capable of being bound.
For the Parkers to purport to
bind the trust estate during this period was an act of usurpation
that simply compounded the breach
of trust they committed by failing
to appoint a third trustee, such conduct may, as I indicate later
(para 37.3), provide the basis
for impugning the very existence of
the trust, but that was not the bank’s case.”
[96]
The applicant is consequently entitled to an order regarding the
incapacity of the trust as set out
in prayer 6 of the Amended Notice
of Motion in the main application.
7.
Conclusion regarding removal of sixth respondent as trustee:
[97]
I will from here on refer to the sixth respondent instead of the
first respondent, hence, in her personal capacity.
[98]
In addition to the case law and principles which I have already
referred, I wish to also refer to the following
authorities.
[99]
In the
Price-
judgment,
supra,
at para [44] the
principles governing a trustee`s administration of a Trust is set out
with reference Honore`s South African Law
of Trust:
[44]
Three principles govern a trustee's administration of a Trust and
these are discussed by Cameron
et al in Honore's South African Law of
Trust.
44.1
Firstly the trustees must give effect to the trust instrument
properly interpreted.
44.2
Secondly, a trustee must exercise proper care and skill. Section 9 of
the Act provides that a trustee must act with care, skill
and
diligence which can reasonably be expected of a person who manages
the affairs of another. This standard has been described
as
"scrupulous care" which is-
‘
Higher
than that which an ordinary person might generally observe in the
management   of his or her own affairs. Such
a person was
free to do what he liked with his property and not infrequently
selected investments which were of a speculative nature,
particularly
when the potential profits were high.
A
person in a fiduciary position such as a trustee, on the other hand,
was obliged to adopt the standard of the prudent and careful
person,
that is to say the standard of the
bonus et diligents
paterfamilias
of Roman Law, and was accordingly, obliged, in
dealing with and investing the money of the beneficiary, to observe
due care and
diligence, and not to expose it in any way to any
business risks. The need to avoid risks was emphasised.
44.3
Thirdly, a trustee must always exercise an independent discretion, a
sub-minimum of trustees cannot bind the trust."
[100]
In
Sackville West v Nourse
and Another
1925 AD 516
it
was stated at 534 – 535 that:
“…
a
tutor must observe greater care in dealing with his ward's money than
he does with his own, for, while a man may act as he pleases
with his
own property, he is not at liberty to do so with that of his ward.
The standard of care to be observed is accordingly
not that which an
ordinary man generally observes in the management of his own affairs,
but that of the prudent and careful man,
or, to use the technical
expression of the Roman law, that of the
bonus
et diligens paterfamilias
. The
investment of the ward's property must accordingly be made with
safety and security, and is not to be placed in anything involving

the element of uncertainty and risk.”
“
We
may accordingly conclude that the rule of our law is that a person in
a fiduciary position, like a trustee, is obliged, in dealing
with and
investing the money of the beneficiary, to observe due care and
diligence, and not to expose it in any way to any business
risks …
It is the duty of a trustee to avoid all investments which a man of
prudence would regard as attended with hazard.”
[101]
In the judgment of
Jowell
v Bramwell-Jones
2000 (3) SA 274
(SCA) the court stated that the trustee has a duty to avoid any
conflict between trustee’s personal interests and those of

beneficiaries. Allegations capable of supporting evidence of a
conflict of interests, establishes a breach
of trustee's fiduciary
duty.
[102]
In
Doyle v Board of Executors
1999 (2) SA 805
(C) it
was explained that the duty which fell upon those who occupied a
fiduciary position to keep
proper accounts
was often said to
be
sui generis
. By virtue of that alone it owed the
utmost
good faith towards all beneficiaries
, whether actual or
potential, in all things done.
It imposes a duty to account to
trust beneficiaries
. (My emphasis)
[103]
The first respondent showed a wilful, or at best for her, a grossly
negligent and reckless attitude towards her
failure to have acted in
terms of the Trust Deed and to have complied with the very basic
principle of appointing a trustee where
the number of trustees fell
below the required number. As evident from the case law, that, in
itself, constitute sufficient grounds
for her removal. In my view the
facts and circumstances in the present matter make it even more
serious, considering not only the
long period of time that lapsed
before she complied, but also the fact that she was forewarned about
the situation by Mrs Milton,
which warning she blatantly ignored.
[104]
Further, it is evident that on her own version, the first respondent
blatantly and wilfully approbated funds which
were earmarked for the
Trust and entrusted to her for that purpose. The disturbing factor is
that despite the fact that the sixth
respondent is legally trained as
both an attorney and an attorney, she is showing no insight into or
comprehension of the seriousness
of her conduct as trustee. She also
fails to distinguish between her personal interest and that of the
Trust and the beneficiaries.
[105]
The sixth respondent does not exercise her powers and obligations as
trustee with the required care, diligence
and skill as determined as
determined in section 9(1) of the Act. As submitted by Mr Snellenburg
she made her guilty of breach
of trust and maladministration of the
Trust.
[106]
The sixth respondent is abusing her fiduciary position as trustee to
her own benefit. Her conduct does not comply
with the required
standard of
bonus et diligens paterfamilias.
Mr Reinders did
his utmost best to convince me to the contrary, especially since the
sixth respondent is also the mother of two
of the Trust beneficiaries
and he submitted that she would not do anything which will not be in
the minor children`s best interest.
I cannot agree – her
conduct shows the opposite.
[107]
The appointment of the seventh respondent did also not cure the
problem. It is clear that he, in his capacity
as her attorney of
record, and in his capacity as co-trustee of the Trust, associates
with her and was not taking any steps from
preventing her from
continuing on her unacceptable path.
[108]
In my view it is evident that her conduct in more than one way
constituted a dereliction of her duties sand obligations
as trustee
rendering her unfit to hold office.
Appointment
of new trustees:
[109]
The applicant is requesting that his wife and Ms Milton be appointed
as trustees of the Trust in addition to Mr
Augustyn. Mr Snellenburg
submitted that it would be best for three trustees to hold office
since it will ensure an uneven number
of votes for purposes of
resolutions which are to be taken in future.
[110]
The applicant`s wife explained in the founding affidavit that the
applicant is desirous that she be appointed
since she has been doing
all the negotiations with and payments to the sixth respondent since
the Trust property was acquired.
She is also the one who deals with
the maintenance payments for the minor children.
[111]
The applicant is also desirous that Mrs Milton be appointed as
trustee. She is their family attorney. Because
of her qualifications
and experience of trusts she will be able to see to the proper
administration of the Trust.  Mrs Milton
is also willing to
accept the appointment.
[112]
In my view both the applicant`s wife and Mrs Milton are fit and
proper to hold the office of trustee.
[113]
The two trustees to be and Mr Augustyn are to hold a meeting of
trustees as soon as possible,
inter alia,
in order to decide
the issue of the selling of the house. With the new trustees to be
appointed, together with Mr Augustyn, there
may be new facts and
considerations in deciding whether to sell the Trust property or not.
Costs
of the two applications:
[114]
In application number 196/2023, the interdictory application, I
ordered on 2 June 2023 that the costs of the application
are to stand
over for determination by the Court who is to hear the main
application.
[115]
On 27 July 2023 Reinders, J extended the rule
nisi
to 31
August 2023 in order to be heard simultaneously with the main
application. Those costs stood over for later adjudication.
In my
view the said costs are to be costs in the cause in the interdictory
application.
[116]
In application number 201/2023, the main application, I am of the
view that the same order as to costs is to be
made than in the
interdictory application. The two applications are completely
intertwined and overlap to the extent that they
are actually to be
considered as one.
[117]
On 20 July 2023 van Rhyn, J granted the interlocutory application in
the main application which,
inter alia,
dealt with the
amendment of the applicant`s Notice of Motion. The costs were ordered
to be costs in the cause.
[118]
With regard to the costs of the interdictory application and of the
main application, I gave serious consideration
to an order that the
first respondent and/or the first respondent and Mr Augustyn be
ordered to pay the costs of the two applications
in their personal
capacities, which type of costs order is often granted in removal
applications. However, due to the fact that
Mr Snellenburg indicated
during his oral argument that he no longer holds instructions to ask
for such an order ánd because
of the specific facts and
circumstances in these applications which involve two minor children
and their mother, I, in exercising
my discretion, decided that the
Trust is to pay the costs of both applications.
[119]
With regard to the costs
of the application for
condonation for the late filing of the applicant`s replying affidavit
in the main application, I deem it
appropriate that the said costs
are to be paid by the applicant, since he sought an indulgence and
there was no opposition thereto.
[120]
In respect of
the costs of the application for
condonation for the late filing of the first, third, fourth, sixth
and seventh respondents’
heads of argument, I deem it
appropriate that the sixth respondent, Ms D[…] T[…] in
her personal capacity, is to
be ordered to pay the costs thereof,
including the costs of the opposition thereto. The reasons for the
delay were ill-founded
and the application contained inadmissible
averments regarding settlement negotiations between the parties. The
necessity for the
applicant to have opposed it, is therefore obvious
and
bona fide.
The
Orders:
[80]
The following orders are made:
Application
number 196/2023:
1.
Paragraphs 2.1, 2.2 and 2.3 of the rule
nisi
,
dated 2 June 2023, are confirmed.
2.
The Olive Tree Trust, IT 126/2012 is ordered to pay the costs of the
application, including the costs of 27
July 2023.
Application
number 201/2023:
1.
The sixth respondent is hereby removed as trustee of the Olive Tree
Trust, IT 126/2012 (“the Trust”).
2.
The sixth respondent shall return her letters of authority to the
Master without delay, but no later
than 10 court days from date of
this order.
3.
The sixth respondent shall hand over to the applicant all documents
regarding the Trust, including, but
not limited to the following:
3.1
Minutes of meetings of trustees of the Trust.
3.2
Resolutions taken by the trustees of the Trust.
3.3
Bank cards relating to all bank accounts and/or investments in the
name of the Trust and/or the first respondent
in her capacity as
trustee of the Trust.
3.4
Bank statements relating to all bank accounts and/or investments in
the name of the Trust and/or in the name
of the first respondent in
her capacity as trustee of the Trust.
3.5
The assets register of the Trust.
4.
The sixth respondent must render an account to the applicant
regarding her administration of the Trust’s
affairs within 1
(one) month from date of this order.
5.
It is declared that the Trust lacked capacity from 13 October 2020
until 19 January 2023 due to the absence
of a minimum of two
trustees.
6
Mrs M[…]-C[…] C[…]-T[…], ID number 5[…],
is appointed as trustee
of the Trust.
7.
Mrs Deirdré Milton, ID number 5[…] is appointed as
trustee of the Trust.
8.
The Master of the High Court, Bloemfontein, is directed to issue
amended Letters of Authority in respect
of the said Mrs M[…]-C[…]
C[…]-T[…] and Mrs Deirdré Milton.
9.
The Olive Tree Trust, IT 126/2012, is ordered to pay the costs of the
application, which costs are to include:
9.1
The costs of the interlocutory application which served before
Van Rhyn, J on 20 July 2023, which costs were ordered
to be costs in
the cause.
10.
The costs of the application for condonation for the late filing of
the applicant`s replying affidavit, is to be paid
by the applicant.
11.
The sixth respondent, Ms D[…] T[…] in her personal
capacity, is ordered to pay the costs of the application for

condonation for the late filing of the first, third, fourth, sixth
and seventh respondents’ heads of argument, which costs
are to
include the costs of the opposition thereto.
________________
C.
VAN ZYL, J
On
behalf of the applicant:
Adv N. Snellenburg SC
Instructed by
:
Bezuidenhouts Inc/Ref Mrs
D Milton
BLOEMFONTEIN
On
behalf of the 1
st
, 3
rd
, 4
th
, 6
th
and
7
th
respondents:
Adv
S. J. Reinders
Instructed
by:
Phatshoane Henney Inc/Ref
I Strydom
BLOEMFONTEIN