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[2023] ZAKZPHC 109
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Vorster N.O v Buthelezi and Others (10754/2022P) [2023] ZAKZPHC 109; [2023] 4 All SA 889 (KZP) (13 October 2023)
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Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 10754/2022P
In
the matter between:
BENJAMIN
JACOBUS VORSTER N.O
APPLICANT
and
FELIX KHULEKANI
BUTHELEZI
1
ST
RESPONDENT
IPHRAIM MFUNENI
ZUNGU
2
ND
RESPONDENT
NONTOBEKO PRECIOUS
ANGELA BUTHELEZI
3
RD
RESPONDENT
NOMUSA ZETHU
QUNTA
4
TH
RESPONDENT
MABUTHO MIYA
N.O
5
TH
RESPONDENT
CYNTHIA THEMBA KHUMALO
N.O
6
TH
RESPONDENT
THE MASTER OF THE
KWAZULU-NATAL HIGH COURT 7
TH
RESPONDENT
PITERMARITZBURG
ORDER
1.
The first, second, third and fourth respondents’ powers
to act
as trustees of the Ubunye Be Afrika Development Trust (I[...]) are
suspended;
2.
The first, second, third and fourth respondents are removed
as
trustees of the Ubunye Be Afrika Development Trust (I[...]) with
immediate effect, and are directed to return their letters
of
authority to the seventh respondent.
3.
The first, second, third and fourth respondents are directed
to pay
the costs of the application on the attorney and client scale, such
costs to be paid jointly and severally, the one paying
the other to
be absolved.
JUDGMENT
E
Bezuidenhout J
Introduction
[1]
The applicant, Mr B J Vorster N.O, applies for relief in his capacity
as an independent
trustee of the Ubunye Be Afrika Development Trust
with registration number I[...] (the Ubunye Trust), against the first
respondent,
Mr Felix Khulekani Buthelezi, the second respondent, Mr
Ephraim Mfuneni Zungu, the third respondent, Ms Nontobeko Precious
Angela
Buthelezi and the fourth respondent, Ms Nomusa Zethu Qunta as
follows:
(a)
That the first, second, third and fourth respondents’ powers to
act as trustees of the Ubunye Trust be suspended;
(b)
That the first, second, third and fourth respondents are removed as
trustees
of the Ubunye Trust, suspended and directed to return their
letters of authority to the seventh respondent, the Master of the
High
Court, Pietermaritzburg; and
(c)
That the first, second, third and fourth respondents and/or any
respondent
who opposed the application, are directed to pay the costs
of the application on an attorney and client scale. In the event of
opposition by any respondent other that the first respondent, such
costs are to be paid jointly and severally, the one paying the
other
to be absolved.
[2]
The first to fourth respondents were cited in their personal
capacities (collectively
referred to as the respondents).
[3]
The fifth respondent, Mr Mabutho Miya N.O, and the sixth respondent,
Ms Cynthia Temba
Khumalo N.O, are cited in their capacity as trustees
of the Ubunye Trust, and no relief is being sought against them.
Issues
that require determination
[4]
The main issue that requires
determination is whether the trustees of the Ubunye Trust
were
entitled to pay or distribute certain amounts or funds to, amongst
others, the first to fourth respondents. It therefore needs
to be
determined whether the various payments authorised by the trustees
fall within the wide discretion afforded to the trustees
in terms of
the provisions of the trust deed. Ultimately, it must be decided if
the first to fourth respondents should be removed
as trustees.
Background
[5]
The Ubunye Trust was formed and registered with the Master on 21
October 1999. It
was initially known as the Uphaphe Empowerment Trust
(the Uphaphe Trust). The name was subsequently changed to the current
name,
Ubunye Be Afrika Development Trust. The terms of the trust deed
were amended on 26 February 2001, 11 September 2013, and again during
2017 when a so-called second amended trust deed replaced the previous
trust deed in its entirety. I will deal with the relevant
clauses in
the trust deeds in due course.
[6]
In terms of the various trust deeds, certain persons were listed as
trustees and certain
persons or entities as beneficiaries. During
2020, disputes arose between some of the trustees, which culminated
in litigation
which led to an order being granted by the late Mnguni
J on 30 April 2021, in terms of which seven individuals were
appointed as
trustees for a period of three years from the date of
issue of their letters of appointment by the Master. The second,
third, fifth
and sixth respondents were retained as trustees.
[7]
The applicant was appointed as an independent and impartial trustee
in order to assist
with a deadlock that existed between some of the
trustees. A meeting of trustees was held on 11 June 2021 and the
first and fourth
respondents were appointed as trustees after being
nominated by the so-called ‘Direct Beneficiaries’ as
provided for
in the trust deed. The Master subsequently issued
letters of appointment on 17 September 2021.
[8]
The applicant was elected as the chairperson of the Ubunye Trust. He
alleges that
two clear factions exist amongst the other trustees: the
Buthelezi faction, consisting of the first, third and fourth
respondents
and the Zungu faction, consisting of the second, fifth,
and sixth respondents.
[9]
The applicant alleges that since his appointment, he uncovered highly
concerning conduct
on the part of the first, second, third and fourth
respondents. Their conduct forms the subject matter of the
application for their
removal which is sought in terms of section
20(1) of the Trust Property Control Act 57 of 1988 (the Act). The
section reads as
follows:
‘
A
trustee may, on the application of the Master or any person having an
interest in the trust property, at any time be removed from
his
office by the court if the court is satisfied that such removal will
be in the interests of the trust and its beneficiaries.’
[10]
The conduct that concerned the applicant can be summarised as
follows:
(a)
The first respondent was elected by the board of trustees (the Ubunye
Board) to represent the Ubunye Trust at meetings held by its main
donor, the Peakers Trust. He received a gratuity payment from
the
Peakers Trust in the amount of R375 806 but has failed to
disclose the payment to the Ubunye Board. As a trustee, he is
duty-bound to declare all interests as soon as it is received.
(b)
During the first respondent’s disciplinary hearing, minutes of
a
meeting of trustees of the Ubunye Trust held on 7 June 2019
disclosed that various payments were made to the trustees, employees
and to the chairman of the Peakers Trust. The payments were referred
to as gratuity payments, which included inter alia, a so-called
dividend payment of R100 000 to each of the nine Direct
Beneficiaries. It was also resolved that the fifth respondent would
receive a once-off token of appreciation of R100 000. Two
administrative staff members would receive R20 000 each. Mention
was also made of a payment of R1 million to the first respondent. He
was, however, dissatisfied and it was recorded that an amount
of R4
million should be considered.
[11]
The applicant stated that it became clear that the Peakers Trust had
donated R10 million to the
Ubunye Trust in November 2019. It appeared
as if the June 2019 minutes were setting out how the funds would be
earmarked for the
aforementioned payments.
[12]
From the minutes of a meeting held on 5 July 2019, it appeared that
the second respondent, who
had apparently already received a payment
of R1 million, would receive a further amount of R2 million a soon as
funds became available.
[13]
The third respondent received a gratuity payment of R250 000.
She was also the chairperson
of the board of Direct Beneficiaries and
was adamant that the rights of the Direct Beneficiaries be
recognised. She allegedly led
meetings whereby decisions were taken
to claim R17,5 million from the Ubunye Trust, to appoint additional
trustees which would
result in the Buthelezi faction taking control
of the majority vote, and to disregard the applicant’s input as
an independent
trustee. I will deal with the issue of beneficiaries
below.
[14]
The fourth respondent was appointed as a replacement trustee after
the passing of Mr Freeman,
one of the previous trustees. She was
appointed as the treasurer and supports the Buthelezi faction. She
also received a gratuity
of R100 000.
[15]
The third respondent attested to the answering affidavit filed on
behalf of the first, second,
third and fourth respondents. It appears
from her affidavit, in which she refers to herself as the chairperson
of the ‘Original
Beneficiaries’, and the interim
chairperson of the Ubunye Trust, that the first to fourth
respondents’ defence against
the claims of the applicant is
mainly that the payments were lawful and ‘intra vires the trust
instrument’. The trustees,
in their discretion, were entitled
during the continuance of the Ubunye Trust to pay or distribute all
or part of the trust funds
to the beneficiaries.
[16]
The third respondent states that the Uphaphe Trust originally made
provision for four original
beneficiaries, namely the second
respondent, Mr S A Xulu, Mrs H B Yaka, and Mr A T Shange, who
subsequently resigned. The remaining
three beneficiaries agreed to
vary the trust deed in order to permit funds and assets to be used
‘only for disadvantaged
farmers and groups of farmers operating
principally in the northern regions of KwaZulu-Natal’. The
Uphaphe Trust was designed
as an entity that would receive grants in
aid, which it would then disperse to mainly farmers operating in
northern KwaZulu-Natal.
In 2001, an amended trust deed was drafted to
reflect these variations. It was attached to the third respondent’s
affidavit.
The original 1999 trust deed is not available. I will
return to provisions of the trust deed in due course, as it becomes
significant
in understanding the meaning of ‘beneficiaries’.
After disagreements between the remaining beneficiaries, the Uphaphe
Trust became dormant.
[17]
The trust was revived in 2005 when it tendered to become a possible
BEE partner to participate
in a transaction to purchase shares from
Sasol Oil Ltd (Sasol). The Uphaphe Trust was at the time trading as
the Ubunye Be Afrika
Development Trust, and in association with other
entities, purchased 25% of Sasol’s shares. The trust was
incorporated as
a partner in the Black Empowerment Scheme and was
issued with 6 500 shares. It has become common cause that it is
actually
another entity, Batho Trust, who holds the shares in Sasol.
The Uphaphe Trust was one of the beneficiaries of the Batho Trust.
The second respondent was the only active remaining beneficiary of
the original beneficiaries of the Uphaphe Trust. Over time, more
beneficiaries were added and the name of the trust was changed to the
present name.
[18]
The third respondent alleges that the beneficiaries listed in the
trust deed performed ‘an
assortment of tasks and obligations’
towards the Ubunye Trust and utilized their own funds to
‘operationalize’
it, travelling to meetings in
Johannesburg and in KwaZulu-Natal, providing equipment to deal with
the administrative requirements
of the Ubunye Trust and making
payments of ‘fungibles’ and the like to maintain its
operations. The original beneficiaries
and trustees worked together
to provide administrative and logistical support to the secondary
beneficiaries. The Ubunye Trust
also submitted bids for tenders and
the beneficiaries covered the expenses for preparing the bid
documents and travelling to Gauteng
to submit the bids.
[19]
It appears to be common cause that an amended trust deed was adopted
in 2017. The third respondent
states that they sought legal advice as
to what the original beneficiaries sought to do. The current
beneficiaries ‘wanted
to and have always used the trust as a
trading trust which also has charitable goals’. The third
respondent, however, concedes
that this was not properly reflected in
the trust deed.
[20]
In order to assess the complaints against the respondents, it is
necessary to closely examine
the relevant trust deeds, firstly the
amended trust deed of the Uphaphe Trust (the 2001 trust deed), signed
and adopted by the
trustees at the time on 26 February 2001, and
thereafter the second amended trust deed which refers to the Ubunye
Trust (the 2017
trust deed), signed and adopted in 2017. Although the
2001 trust deed was replaced in its entirety, it is in my view useful
to
consider it simply because it provides the background of how the
position of the beneficiaries evolved over time.
The
2001 trust deed
[21]
Para ‘D’ of the introduction stated that
‘
The
remaining Original Beneficiaries have agreed to amend the Original
Deed by replacing it in its entirety with this Trust Deed,
in order
to permit the funds and other assets of the Trust to be used only on
behalf of the disadvantaged farmers and groups of
farmers
contemplated in Clause 3 below (“the Beneficiary Farmers”).’
[22]
Clause 2, with the heading ‘Definitions and Interpretations’
contained a number of
significant definitions. In clause 2.1
‘Beneficiary Farmers’ were
inter alia
described as
those agricultural co-operatives whose members are disadvantaged
farmers carrying on farming activities in the designated
area, and
‘which are identified or selected by the Trustees in their
entire discretion . . . to benefit from the proceeds
of the Trust
Fund and/or the activities of the Trust’.
[23]
In clause 2.2 the ‘Designated Area’ was described as the
‘rural areas in and
adjacent to Dundee, Vryheid and Newcastle
in the Province of KwaZulu-Natal, inhabited, farmed and/or owned by
historically-disadvantaged
persons and communities’.
[24]
Clause 2.3 defined ‘Original Beneficiaries’ as ‘those
persons appointed as
Trustees in terms of the Original Deed, and
nominated also as the only beneficiaries under the Original Deed’.
These were:
Mr E M Zungu (the second respondent), Mrs H B Yaka and Mr
S A Xaba. In terms of clause 2.8, these three persons would also hold
office as trustees.
[25]
In clause 3 the objects of the trust were described. Clause 3.1
stated that
‘
The
Trust is a charitable institution of a public character, with the
Object of providing support and assistance to agricultural
co-operatives whose members are historically-disadvantaged farmers
and groups of farmers (“the Beneficiary Farmers”)
in the
rural areas of and adjacent to Dundee, Vryheid and Newcastle…
(“the Designated Area”), for the purpose
of helping those
Beneficiary Farmers to establish and improve farming and related
income-generating activities, with a view to
promoting the
alleviation of poverty and the creation of sustainable, profitable
farming operations in the area.’
[26]
Clause 5 set out the powers of the trustees. In terms of clause 5.1,
the trustees were ‘vested
with a complete and unfettered
discretion as to the manner in which they deal with, use and apply
the assets constituting the Trust
Fund’. The entire trust fund
would be at the disposal of the trustees to be applied as they deemed
appropriate ‘for
the fulfilment of the Object of the Trust’,
subject to certain limitations and constraints.
The
2017 trust deed
[27]
Clause 1, with the heading ‘Definitions and Interpretations’
and in particular clause
1.1.2, states that
‘
Beneficiaries
means the Beneficiary Farmers, Original Beneficiaries, Co-Operatives,
SMMEs, Trusts and any other juristic person
registered in terms of
the laws of South Africa’.
[28]
In terms of clause 1.1.3, ‘Beneficiary Farmers’ mean
South African agricultural co-operatives
‘whose members are
historically disadvantaged farmers and/or groups of farmers’
and ‘which are identified or
selected by the Trustees in their
entire discretion from time to time, to benefit from the proceeds of
the Trust Fund and/or the
activities of the Trust. . .’. It is
specifically recorded in clause 1.1.3.2 that the determination of the
agricultural co-operatives
that shall be identified as beneficiaries,
‘shall be needs based and selected each year on the criteria
specified in the
award policy as contemplated in terms of Clause
13.1’.
[29]
In terms of clause 1.1.7, ‘Original Beneficiaries’ mean
the following persons:
(a)
Mr E M Zungu (the second respondent);
(b)
Ms N P A Buthlezi (the third respondent);
(c)
Mr B S Mpulo;
(d)
Ms L E Khuzwayo;
(e)
Ms N P Zuma;
(f)
Mr A R Freeman;
(g)
Mr J P Gwala;
(h)
Mr B S P Xaba; and
(i)
Ms N L E Buthelezi.
[30]
Clause 1.1.14 deals with the trustees. The ‘current Trustees’
were the following
persons:
(a)
Ms N P A Buthelezi (the third respondent);
(b)
Mr A R Freeman;
(c)
Mr F K Buthelezi (the first respondent);
(d)
Mr E M Zungu (the second respondent);
(e)
Mrs N Z Qunta (the fourth respondent); and
(f)
Ms T L B Dinga.
[31]
Clause 2 sets out the establishment, objects and legal capacity of
the Ubunye Trust. In terms
of clause 2.1, the Ubunye Trust has been
established as ‘a charitable institution of a public nature’.
[32]
The objects and business of the Ubunye Trust are set out in clause
2.2 and are wide-ranging in
nature. In terms of clause 2.2.1, the
Ubunye Trust shall
‘
provide
support and assistance to Beneficiaries in the Territory
[1]
for the purposes of helping the Beneficiaries to establish and
improve their businesses, farming and related income generating
activities, with a view to promoting the alleviation of poverty and
creation of sustainable profitable businesses and farming
operations.’
[33]
In terms of clause 2.2.2, the assistance provided
by the Ubunye Trust will include, but will not be limited
to inter
alia providing ‘technical advice and support in relation to
businesses, farming and related income-generating activities’,
accessing business opportunities from the public and private sector
and accessing business finance and or funding opportunities.
[34]
Clause 2.2.3 deals with farming and related income-generating
activities undertaken by the beneficiaries
which includes inter alia,
the farming of maize, wheat and cattle farming, as well as
eco-tourism.
[35]
Clause 2.2.4 deals with the assistance to be provided to
co-operatives and so-called SMMEs ‘currently
undertaken or to
be undertaken by the Beneficiaries selected by the Trustees’,
and includes, inter alia, manufacturing, mining,
banking,
hospitality, tourism, primary health care and related fields.
[36]
It is specifically recorded in clause 2.2.5 that
‘
the
determination of the Beneficiary Farmers, Co-Operatives and SMMEs to
receive benefits shall be entirely on needs based and determined
annually by the Trustees on the criteria specified in the awards
policy and no such Beneficiary shall have a right to demand any
benefit.’
I
may add that the awards policy did not form part of the papers before
me.
[37]
Clause 5 deals with the trustees. In terms of clause 5.1, the
management of the Ubunye Trust
shall be undertaken by its Board.
Clause 5.2 states that ‘[t]here shall at all times be a minimum
of 6 (six) and no more
than 9 (nine) Trustees in office appointed by
the Original Beneficiaries in terms of clause 6’.
[2]
[38]
In terms of clause 5.3, ‘[t]here shall at all times be 3
(three) Trustees who are not Beneficiaries
and the remainder of the
Trustees shall come from the Original Beneficiaries’. The
trustees are to be appointed for a period
of three years, and not for
more than two terms of office.
[3]
[39]
In terms of Clause 5.6, the Ubunye Board must elect a chairperson, a
treasurer and a secretary.
Clause 5.7 stated that at all times, the
chairperson ‘must not be a beneficiary’.
[40]
Clause 5.15 states as follows:
‘
A
Trustee shall in the performance of his duties and the exercise of
his powers, act with the care, diligence and skill which can
be
reasonably expected of a person who manages the affairs of another.’
[41]
Clause 5.16 is in my view of particular importance. It reads as
follows:
‘
All
reasonable costs, charges, expenses and disbursements reasonably
incurred by the Trustees in or arising out of the administration
of
the Trust, shall be borne by the Trust Fund as a first charge. The
Trustees may, from time to time, be remunerated out of the
Trust Fund
in respect of their normal and reasonable fees for services rendered
in the execution of their duties as Trustees, and
any Trustee firm
shall be entitled to its normal professional fees in respect of any
services rendered by it to the Trust. Save
as provided for in this
Trust Deed, no further remuneration shall be paid to the Trustees.’
[42]
Clause 10 deals with the duties of trustees. Clause 10.1.4 states
that trustees shall ‘receive
and hold the Trust Fund for the
benefit of the Beneficiaries’. In terms of clause 10.1.6, the
trustees shall also ‘ensure
that proper books and records are
kept for the affairs of the Trust. . .’.
[43]
Clause 10.1.8 is also important. It states that trustees shall
‘
refrain
from holding or disposing of any assets of the Trust Fund for their
personal benefit, or for the benefit of their estates,
and generally
to act in a prudent and responsible manner as would be expected from
persons who are in charge of the affairs of
another person.’
[44]
Clause 13 addresses the distribution of the trust fund. A number of
clauses are relevant to the
issues to be decided. In terms of cause
13.1, ‘[t]he Trustees shall pass an award policy for purposes
of distribution to
the Beneficiary Farmers and SMMEs which will
outline the procedure to be followed in identifying Beneficiary
Farmers and SMMEs’.
As mentioned above, no such award policy
formed part of the papers and it is not stated when or if such a
policy was passed.
[45]
Clause 13.4 states that ‘[d]uring the continuance of the Trust,
the Trustees, entirely
in their discretion, shall pay or distribute,
from time to time, all or part of the Trust Fund (net income or
capital) to the Beneficiary’.
In terms of clause 13.5, ‘[t]he
Trustees shall have the right to retain income or capital . . . and
no income or capital
of the Trust shall vest in the Beneficiaries
until the said income or capital has been allocated by the Trustees
to the Beneficiaries
in the books of the Trust. . .’.
[46]
In terms of clause 13.8,
‘
The
trustees shall have the right, in their discretion, to effect any
distribution in cash or
in specie
and shall also have the
right to withhold any distribution of capital or income in their sole
and unfettered discretion; provided
always that in the event of the
Beneficiary resolving that a distribution of capital or income
already allocated shall be made,
then such distribution shall be
made.’
Clause
13.10 states that
‘
Prior
to the termination of the Trust, the Beneficiaries shall not have any
vested right to any of the capital of the Trust nor
shall the
Beneficiaries have any vested right in the income of the Trust which
has not been allocated to the Beneficiaries and
properly recorded in
the books of the Trust by the Trustees.’
[47]
In terms of clause 16, the trustees are obliged to keep proper books
of account which, together
with the Ubunye Trust’s financial
statements, must be audited and certified by an independent
practising chartered accountant.
The
complaints from Peakers Trust
[48]
The applicant attached a letter to his founding affidavit which he
received from the financial
trustee of the Peakers Trust’s
board of trustees, in which an explanation is requested in respect of
a number of matters,
which were apparently raised at its board
meeting. The applicant stated that this letter was the genesis of the
current application.
It was noted that a special distribution was
paid by the Peakers Trust to the Ubunye Trust ‘to be used . . .
in line with
its trust objectives’. Reference was made to
clause 2 of the 2017 trust deed, which contained the objectives of
the Ubunye
Trust. The Peakers Trust expected the R10 million
distribution to be used in accordance with these objectives.
[49]
The letter contained a table, setting out how the distribution of R10
million had been allocated.
It reflected 11 items, a description of
the person or entity, the nature of and the amount paid, and the
percentage of the total
distribution such amount represented. Under
section ‘A’, it is reflected that the second respondent
received an ‘outstanding
gratuity’ of R1 million and also
a distribution as a so-called direct beneficiary of R250 000
which amounted to 12,5%
of the total distribution. The first
respondent received on outstanding gratuity of R3 million, amounting
to 30% of the total distribution.
The late trustee, T Freeman,
received an outstanding gratuity of R500 000, amounting to 5% of
the total distribution. The
third respondent received an outstanding
gratuity of R500 000 and also a distribution as a direct
beneficiary in the amount
of R250 000, amounting to 7,2% of the
total distribution.
[50]
The other seven direct beneficiaries also each received a
distribution of R250 000 each,
equating to 17,5% of the total
distribution.
[51]
The table also reflected the payment of a gratuity of R500 000
to the CEO, amounting to
5% of the total distribution. A payment of
R500 000 was made as a gratuity to the Peakers Trust’s
chairperson, amounting
to 5% of the total distribution. Three
payments of R100 000 were made to the so-called three
independent trustees, being inter
alia the fourth respondent,
Khulekani Buthelezi and Thina Dinga. The last entry under section ‘A’
referred to ‘funded
other administration expenses’ in the
amount of R200 000. The total administration expenses were
reflected as R8 750 000,
amounting to 87,5% of the total
distribution.
[52]
Under section ‘B’, with the heading ‘Project
Funded’, reference was made
to only one project, namely ZBQ
Consulting (Logistics Project) in respect of which R1 million
was paid, amounting to 10% of
the distribution amount.
[53]
Finally, under section ‘C’, reference was made to
‘Taxation Paid’. A
payment of R250 000 to SARS was
reflected.
[54]
The applicant was requested to provide the resolutions and minutes of
the Ubunye Board where
the decisions to pay the aforementioned
parties were taken, and to highlight the relevant objectives used to
justify each payment.
The applicant was also requested to provide
answers to a number of questions posed by the Peakers Trust, which
included inter alia:
(a)
It was noted that 87,5% of the R10 million appeared to have been
utilised
to fund administration costs which is above 15%. An
explanation regarding the rationale behind spending 85,5% on
gratuities
for trustees instead of funding beneficiaries’
projects was requested.
(b)
An explanation was requested for the payment of R500 000 to the
Peakers
Trust’s chairperson and how such payment aligned with
the Ubunye Trust’s trust deed.
(c)
The Ubunye Board was asked to explain how it came to the decision to
declare
benefits to themselves and the direct beneficiaries, instead
of funding projects based on broad-based black economic empowerment.
[55]
The applicant was also asked to provide information on certain
projects which the Peakers Trust
had previously funded and in respect
of which no updates had been given. A report was requested detailing
what had happened to
the funds given to the listed beneficiaries and
businesses. Mention was made of the Nyawane Projects, which the
Peakers Trust funded
with R1 million. Although several reports were
filed, investigations by the Peakers Trust revealed that the project
does not exist.
A similar problem was discovered with the Zunco
Greenhouse. Despite providing funding of R1 million, it was
discovered that
the project did not exist.
[56]
The applicant requested the Ubunye Board to provide a detailed
statement of all payments made
from the R10 million donation received
from the Peakers Trust, which was done. It was attached to the
founding affidavit as annexure
‘P’. It makes for
disturbing reading. It reflects various payments made between March
2018 and February 2020. It should
maybe be mentioned that the Ubunye
Trust in 2019 also received a so-called dividend from Sasol through
the Batho Trust in the amount
of R4,7 million. At the time of the
meeting held by the Ubunye Board on 5 July 2019, the Ubunye Trust had
an amount of R6,7 million
in its bank account, as reflected in the
minutes of that meeting, under the heading ‘Treasurers Report’.
[57]
According to annexure ‘P’, the first respondent received
R3,1 million in December
2019 as a gratuity, and R1 million in June
2018 in respect of a project for the Emthunzi Trust, which was
apparently his own company.
[58]
The second respondent received gratuities in the amount of R1 million
in June 2019 and R1 million
in December 2019. He also received
dividends of R100 000 in May 2019 and R250 000 in December
2019. He received R1 million
for a project referred to as ‘Zunco’
in July 2018. It is not clear if this is the same non-existent
project referred
to by the Peakers Trust as Zunco Greenhouse.
[59]
The third respondent received a gratuity of R500 000 in December
2019. She also received
dividends of R100 000 in May 2019 and
R250 000 in December 2019. She received R1 million for a
project in October 2018,
referred to as Edu Block Pmb, which
apparently was her own company.
[60]
The fourth respondent received a gratuity of R100 000 in
December 2019 and also R1 million
for a project, ZBC Consulting,
which was apparently her own company.
[61]
It was clear from annexure ‘P’ that a
number of the original beneficiaries also received payments.
I will
only mention a few. Ms N P Zuma received dividends of R100 000
in May 2019 and R250 000 in December 2019. She
received R1
million for a project in respect of a company registered in her
daughter’s name.
[62]
Mrs N Buthelezi, the wife of the first respondent, received dividends
of R100 000 in May
2019 and R250 000 in December 2019. She
received R980 000 in July 2018 for a project in respect of her
own company.
[63]
Mr J Gwala, who is the first respondent’s brother-in-law,
received dividends of R100 000
in June 2019 and R250 000 in
December 2019. Mr B Xobo received dividends of R100 000 in May
2019 and R250 000 in
December 2019. He received R500 000 in
March 2018 towards a project in respect of a family company and a
further R500 00 in
December 2018 in respect of a project for his own
company.
[64]
Mr B Mpulo received dividends of R100 000 in June 2019 and
R250 000 in December 2019.
He also received R1 million in
December 2019 for a project in respect of a company apparently in his
wife’s name. Ms L Khuzwayo
received dividends of R100 000
in May 2019 and R250 000 in December 2019. She also received R500 000
in June 2018 for
a project in respect of her own company.
[65]
Annexure ‘P’ also reflected the gratuity of R500 000
paid to the chairperson
of the Peakers Trust, which, as mentioned
above, was questioned by the Peakers Trust.
[66]
The applicant stated that he also received a letter from ENGIE
Southern Africa (Pty) Ltd, one
of the shareholders of the Peakers
Trust, which was addressed to the Peakers Trust. In it, issues were
raised about possible breaches
of the Peakers Trust’s trust
deed by the beneficiaries of the Peakers Trust. Reference was made to
the misuse of funds by
the beneficiaries and their close family
members. The Peakers Trust was requested to select and appoint an
independent auditor
to perform an audit into
inter alia
the
process implemented by the beneficiaries to identify and select
projects and the use of funds granted to the Peakers Trust.
The
trustees of the Peakers Trust were instructed to refrain from making
any further distributions to its beneficiaries. In terms
of the deed
of trust of the Peakers Trust, which was attached by the third
respondent to a supplementary affidavit, the Ubunye
Trust was one of
its three beneficiaries.
The
third respondent’s answer
[67]
I have already briefly referred to the respondents’ defence to
the application and will
accordingly merely highlight a number of
allegations made in the answering affidavit.
[68]
The third respondent stated that the Peakers Trust’s board of
trustees allocated a special
distribution to each of its
beneficiaries after apparently receiving a commissioning fuel payment
from SARS. This special distribution
was not paid in
lieu
of
an application by the Ubunye Trust for an award. The third respondent
alleged that it was up to the trustees to ‘exercise
their
discretion and to distribute the special distribution to the
beneficiaries’. She added that this was a ‘first
return’
from all the investments which the original beneficiaries made over
the years. She did not say what these investments
were. It was
presumably a reference to the time and effort put in over the years.
No mention was made of any monetary or capital
investments and no
details were provided.
[69]
As far as the payment to the first respondent by the Peakers Trust is
concerned, the third respondent
alleged that the Ubunye Trust had no
control over payments made by the Peakers Trust. She also alleged
that the payment was not
an interest, and presumably implies that
there was no duty on the first respondent to disclose it to the
Ubunye Board.
[70]
The third respondent also alleged that the original beneficiaries are
at the core of the Ubunye
Trust and are entitled to receive
distributions from time to time in terms of clause 13.4. It was also
stated that there is nothing
wrong with describing payments or
distributions as gratuities. The third respondent reiterated that the
beneficiaries invested
time, effort, energy and money, and that the
special distribution made by the Peakers Trust and the Sasol
dividends were not meant
to be passed on to third parties. The
payment was not made by the Peakers Trust in consequences of any
applications for awards.
The original beneficiaries also ‘clearly’
rank above the ‘secondary beneficiaries’. Reference was
also
made to an incentive policy.
[71]
The third respondent stated that Sasol only paid the dividend for the
benefit of the Ubunye Trust
after a verification process. It is
important to note though that the previous trust deed provided to
Sasol, described the Ubunye
Trust as a charitable public trust, which
is still retained in the amended trust deed. The third respondent
appears to be unhappy
about this description in that it does not
accord with what the original beneficiaries want, namely a trading
trust.
[72]
In further defence of the first respondent’s receipt of the
gratuity of R3 million, the
third respondent related the first
respondent’s involvement in a transaction which ultimately lead
to the Ubunye Trust’s
shareholding in Sasol (via the Batho
Trust). Mention was made of a loan allegedly raised to fund a
consortium in the sum of R1,5
billion. According to the third
respondent, the asset which has since accrued to the trust is worth
over R100 million. She clearly
does not realise at what cost this
“asset” came. The applicant in reply stated that no
assets other than cash are reflected
in the Ubunye Trust’s
asset register. It is therefore unclear what this asset is.
[73]
The third respondent attached to her affidavit the decision schedule
of the Peakers Trust, in
respect of a meeting held on 14 November
2019, which deals with the R10 million special distribution referred
to above. It was
specifically resolved by the Peakers Trust that the
distribution would be paid to the beneficiaries (no qualification)
and that
the funds ‘would be managed in compliance with the
Beneficiary Trust Deeds objectives’.
[74]
The third respondent also attached the Ubunye Trust’s financial
statements for the year
ending 31 March 2020. The objects of the
Ubunye Trust are stated on page 1 as follows:
‘
The
trust has been established to be a charitable institution of a public
nature. The objects and business of the trust shall be
to provide
support and assistance to beneficiaries in the territory for the
purpose of helping to establish and improve their businesses,
farming
and related income generating activities, with a view to promoting
the alleviation of poverty and creation of sustainable
profitable
business and farming operations in KwaZulu- Natal.’
The
nature of the business was stated as being a ‘public benefit
organisation whose main business is to uplift or develop
small
business’.
[75]
The financial statements showed that in addition to payments of the
dividends and gratuities
to the trustees and beneficiaries, as
mentioned above, the trustees and beneficiaries also received
remuneration, described as
meeting fees and other expenses. The CEO,
Mr Mabutho Miya, received remuneration of R1 189 415 in 2020, in
addition to his
gratuity payments totalling R850 000.
The
applicant’s reply
[76]
The applicant in his replying affidavit inter alia attached the
Ubunye Trust’s financial
statements for the years ending March
2019 and March 2018, which reflected payments to the trustees in
respect of remuneration,
travelling and accommodation.
[77]
The applicant, with reference to the letter from the Peakers Trust
demanding an explanation,
stated that the respondents in essence
admitted that they paid the various amounts to themselves. It was
submitted that the trustees
disregarded the fact that once funds are
donated to a trust, it becomes a trust asset which must be
distributed in terms of the
provisions of the trust deed.
[78]
The applicant pointed out that any amounts contributed by the
respondents to the Ubunye Trust
in respect of its workings, would be
reflected as loans to be repaid by the Ubunye Trust. There were no
such loans or any personal
investments made by the trustees or the
beneficiaries recorded in the financial statements.
[79]
The applicant stated that the respondents did not dispute that the
first respondent received
R375 000 from the Peakers Trust and
that he failed to disclose receipt thereof. It has in the meantime
come to light that
the Peakers Trust has realised that a mistake was
made and that arrangements have been made for the repayment of the
money by the
first respondent.
[80]
The applicant agreed that the trustees were entitled to distribute
trust assets in accordance
with clauses 13.4 and 13.8 of the trust
deed but pointed out that only the second and third respondents are
beneficiaries of the
Ubunye Trust. Any payments made by the trustees
need to be made bearing in mind the objectives of the Ubunye Trust
and that it
is a community trust. The respondents, in essence, paid
amounts to themselves as a return on the investment of their time and
effort
(of which no record or proof is provided) spent in the
execution of their duties as trustees. It was stated that these
payments
were to the detriment of all the other beneficiaries and
that the respondents conflate their rights of income to that of a
capital
trust, which the Ubunye Trust is not. It is a charitable
trust and not a trading trust.
[81]
The applicant dealt with the so-called incentive policy, used inter
alia as justification for
the payments received, and stated that
although it appears to have been discussed and accepted, it does not
accord with clauses
10.1.3, 10.1.7, and 10.8 of the trust deed. The
policy was furthermore agreed to by the respondents long after the
events described
by the third respondent occurred. No details are
furthermore provided of the transactions which the first respondent
had facilitated
to entitle him to the substantial amount he is
claiming with reference to this policy.
Legal
principles
Removal
of a trustee
[82]
Counsel appearing on behalf of both the applicant and the respondents
filed extensive heads of
argument which proved helpful and which is
appreciated. Not all the points raised will be dealt with but have
nonetheless been
carefully considered by me.
[83]
As mentioned above, the applicant seeks the removal of the first to
fourth respondents in terms
of section 20(1) of the Act. The basis
for him doing so is set out in detail above but in essence revolves
around the handling
of the R10 million donation received by the
Ubunye Trust from the Peakers Trust, and whether the trustees were
entitled to distribute
the donated funds to themselves and the
original beneficiaries.
[84]
It was submitted on behalf of the applicant that, in addition to the
provisions of section 20(1)
and (2) of the Act, the court also has in
terms of common law the inherent power to remove a trustee from
office. In
Honoré’s
South
African
Law of Trusts
[4]
the following is stated:
‘
The
general principle developed in the exercise of the court’s
common-law jurisdiction is that the trustee will be removed
when
continuance in office will prevent the trust being properly
administered or will be detrimental to the welfare of the
beneficiaries.’(Footnote
omitted.)
[85]
A court’s common law power to remove a trustee has been
confirmed by the majority in
Fey
NO and Whiteford NO v Serfontein and another
[5]
and is now considered trite as per Petse JA in
Gowar
and another v Gowar and others
.
[6]
[86]
Section 20(1) of the Act does not specify any grounds for removal,
other than that the court
should be satisfied that the removal will
be in the interests of the trust and its beneficiaries. I was
referred to
Tijmstra
NO v Blunt-Mackenzie NO and others
[7]
where it was inter alia held that ‘[w]henever trust assets are
endangered a trustee should be removed’.
Duties
of trustees
[87]
Section 9(1) of the Act states that ‘[a] trustee shall in the
performance of his duties
and the exercise of his powers act with the
care, diligence and skill which can reasonably be expected of a
person who manages
the affairs of another’.
[88]
In
Honoré
,
[8]
reference is made to
Sackville
West v Nourse and
another
[9]
where Kotzé JA held that a trustee must observe greater care
in dealing with and handling trust property than he might in
dealing
with his own property. It was further stated that
[10]
‘
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.’
See
also
Administrators,
Estate Richards v Nichol and another
[11]
where the principle was elaborated on by adding inter alia that a
trustee must ‘adopt the standard of the prudent and careful
person’.
[89]
One of the duties of a trustee which is discussed in
Honoré,
relates to impartiality which in turn includes the avoiding of a
conflict of interest and the duty to treat beneficiaries
impartially.
[12]
The authors,
in dealing with the conflict issue, state that where a trustee is
also a beneficiary, and acts in a way so as to benefit
him or herself
at the expense of the other beneficiaries, the trustee’s
conduct will be narrowly scrutinized.
[13]
Reliance was placed on
Colonial
Banking and Trust Co v Estate Hughes
,
[14]
which approach was followed in
Harris
v Fisher NO
.
[15]
[90]
Counsel for the applicant also referred me to
Grobbelaar
v Grobbelaar
[16]
and
Die
Meester v Meyer
[17]
where it was held that a conflict between interest and duty is a
ground for removal.
[91]
In
Numsa
obo Nganezi v Dunlop Mixing And Technical Services (Pty) Ltd and
others
[18]
it was held that fiduciary duties must be exercised for the sole
purpose of promoting the beneficiaries’ interests and that
it
is one of the core duties ‘to avoid all potential
conflict-of-interest situations’.
The
trustees’ remuneration
[92]
Section 22 of the Act states that ‘[a] trustee shall in respect
of the execution of his
official duties be entitled to such
remuneration as provided for in the trust instrument or, where no
such provision is made, to
a reasonable remuneration. . .’.
[93]
Honoré
states that the general principle is that a trustee is entitled to be
indemnified out of trust property for expenses incurred during
the
course of administration and to remuneration for services, as
provided for in the trust instrument. A trustee is not entitled
to
make a profit from the administration of the trust and must account
to the trust for any such profit. A trustee is also entitled
to be
indemnified in respect of travelling expenses incurred in attending
meetings or when conducting trust business. Loss of remuneration
resulting from time properly spent on trust affairs can also be
claimed.
[19]
Discussion
and analysis
[94]
Counsel for the applicant, Mrs Ploos van Amstel, and counsel for the
respondents, Mr Nxusani
SC, made lengthy submissions before me.
Bearing in mind the issues to be decided, it is perhaps more
expedient to first highlight
and discuss the submissions made on
behalf of the respondents.
[95]
It was submitted by Mr Nxusani that, over the years and through the
amendments to the original
trust deed, the definition of
beneficiaries evolved to what it is at present. It was submitted that
the so-called original beneficiaries
enjoy a preference over the
other beneficiaries because they are entitled in terms of the trust
deed to appoint trustees. It was
also submitted that they rank above
all the other beneficiaries because those beneficiaries, being the
beneficiary farmers, co-operatives
and SMMEs, are only entitled to
access funds by way of a written application submitted in terms of
the award policy. Reference
was made to clauses 1.1.3.1.2 and 1.1.3.2
of the 2017 trust deed and it was submitted that such beneficiary
farmers have to apply
for funding from the Ubunye Trust. In terms of
clause 1.1.3.1.2, only those beneficiaries identified or selected in
the entire
discretion of the trustees shall benefit from the trust
fund.
[96]
As mentioned above, the award policy is not before me and it is
uncertain if such a policy has
indeed been passed. I will for the
sake of argument accept that such a policy exists and that it applies
to beneficiary farmers
and SMMEs. The argument on behalf of the
respondents is that the beneficiary farmers and SMMEs would only
become eligible to an
award by the trustees if they had applied for
an award for funds. If I understand the argument correctly, the
respondents are saying
that if the Ubunye Trust has R10 million in
its trust fund but no application has been made on behalf of any
beneficiary farmer
or SMME for funds, the trustees will make no
awards to any beneficiary farmer or SMME. The trustees are, however,
free to make
distributions to the original beneficiaries from time to
time in their discretion and, by implication, also to themselves as
trustees.
More so because the special distribution of R10 million was
not meant to be shared.
[97]
Reliance was also placed on clause 13.4 and it was submitted that it
entitles the trustees to
pay or distribute part of the trust fund to
beneficiaries ‘entirely in their discretion’, which
justifies the payments
made.
[98]
The difficulty with clause 13.4 is the use of the word ‘beneficiary’.
The respondents
clearly want the reference to ‘beneficiary’
to only mean the original beneficiaries and not to include the other
beneficiaries,
which are so clearly spelt out in the definition of
‘beneficiaries’ in clause 1.1.2 of the 2017 trust deed.
It was
submitted that the difference in approach as to beneficiary
farmers and SMMEs in clause 13.1 and the approach in clause 13.4, is
indicative that clause 13.4 relates to the original beneficiaries
only and not to all beneficiaries.
[99]
It was also submitted that clause 13.4 permitted the distributions
made by the trustees and it
does not matter whether it was in respect
of gratuities or paid in recognition for past efforts. It was further
submitted that
the original beneficiaries had a contingent right to
receive distributions from time to time in their capacities as such,
although
one might hold a dim view of how it is done. It has to be
accepted that it is permitted in terms of clause 13.4 and that it is
in line with the intention as reflected in the trust deed.
[100]
It was submitted by Mr Nxusani, in his written heads of argument,
that the trustees and original beneficiaries
had agreed that the
payments were to be made and that there was therefore no conflict or
breach of trust between them. Reference
was made to
Hoppen
and others v Shub and others
[20]
and it was submitted that it is trite that where trustees conclude a
transaction for value with the full knowledge and consent
of the
co-trustees and the beneficiaries, but which is not prejudicial to
the trust, then in those circumstances, the court will
not remove the
trustees.
[101]
In my view the issue of prejudice to the Ubunye Trust has largely
been ignored by the respondents. It is so that
the payments of
gratuities and disbursements to the original beneficiaries can be
justified on a reading of the wide powers granted
to the trustees. It
is unfortunately a hallmark of most trust deeds. This however does
not include the payments the trustees made
to themselves. But
ultimately, I must decide whether in doing so, the trustees
administered the trust properly and not in a manner
that is
detrimental to the beneficiaries, being all the beneficiaries.
[102]
The payments made by the trustees and the way it has been motivated
for by the relevant parties does not do anything to promote
the
objects of the Ubunye Trust which include inter alia the alleviation
of poverty and creating sustainable businesses.
[103]
The respondents seem to think that because the original beneficiaries
became involved in certain projects, towards which millions
of rands
appear to have been channelled, that would satisfy the objects of the
Ubunye Trust. However, almost without fail, these
projects and the
companies or businesses registered to do these projects, belong to or
are linked to the original beneficiaries
themselves or their spouses
or relatives, which leads to the inescapable conclusion that the
funds paid for these projects are
simply for the benefit of those
original beneficiaries and their relatives.
[104]
The respondents want to blame the applicant for failing to understand
how the Ubunye Trust conducts its business and accused
him of siding
with one or the other faction but he clearly had reason to be
concerned about the conduct of business by the trustees.
He was not
the only one concerned. The letter from Peakers Trust confirms in my
view that there were serious, justifiable concerns
about how the
donation of R10 million was utilised by the trustees. Peakers Trust
was concerned that the objectives of the Ubunye
trust as set out in
the 2017 trust deed were being disregarded when the decision was made
on how to distribute the donation, and
quite rightly so. The payment
to the chairman of Peakers Trust comes to mind as no justification
for it will be found in the 2017
trust deed.
[105]
The respondents clearly regarded the donation of R10 million as
some sort of bonus, for want of a better word, that
could be
distributed amongst themselves and the original beneficiaries with no
regard to the objectives of the Ubunye trust and
to the obvious
exclusion of the other beneficiaries. R10 million could have gone a
long way to alleviate poverty.
[106]
The trust deed makes provision for the remuneration of the trustees
and bearing in mind the authorities referred to above,
that is all
the trustees are entitled to, more so in the absence of any detailed
and specific descriptions as to what expenses
were in fact incurred
to justify the payments made.
[107]
I find it difficult to agree with the submissions made on behalf of
the respondents that the original beneficiaries enjoy
a preference
over the other beneficiaries. If this was the intention, the 2017
trust deed clearly would have reflected such a preference,
which it
does not do, even on the most liberal interpretation of the relevant
clauses.
[108]
It was also submitted that the focus on the complaints by Peaker
Trust is unwarranted and that the resolutions taken to distribute
the
funds were made long before receipt of the Peakers Trust donation.
This is not borne out by the papers. The decisions and discussions
regarding the various payments were reflected in the July 2019
minutes. At the time only an amount of R 6,7 million was available
but the payments discussed and decided upon were in excess of that
amount, which is a clear indication that the R10 million was
expected
and therefore taken into account.
[109]
It was also submitted on behalf of the respondents that not every
breach of a trust deed justifies a removal. The authorities
referred
to above makes it clear that trustees will be removed when their
continuance in office will be detrimental to the trust
property and
the beneficiaries. In terms of the Act, I must be satisfied that that
the removal will be in the interest of the trust
and the
beneficiaries. That clearly means all the beneficiaries, not just the
select few.
[110]
I have not said much about the submissions made on behalf of the
applicant. I agree with applicant’s counsel that the
applicant
was justified in bringing the application and that the respondents
breached their fiduciary duties in respect of the
Ubunye trust by
depleting the trust fund in the way they did. I also agree that the
respondents’ continuance in office would
indeed be detrimental
and prejudicial to the welfare of the Ubunye trust and all its
beneficiaries.
[111]
In returning to the issues that had to be decided, I am of the view
that the trustees were not entitled to pay or distribute
the funds in
the way they did and that these payments were made contrary to the
objects of the Ubunye trust and accordingly prejudicial
to the trust
property and the beneficiaries. I therefore have no hesitation to
conclude that the first to fourth respondents should
be removed as
trustees of the Ubunye trust.
Costs
[112]
The applicant has cited the first to fourth respondents in their
personal capacities. This is in line with the authorities.
In
Honore
,
at page 235, it is stated that an application for the removal of a
trustee should be brought against the trustee in his or her
private,
and not representative, capacities. A trustee who is removed may be
ordered to pay the costs out of his or her own pocket
(de bonis
propriis) failing which the court may order the costs to be borne by
the estate. Bearing in mind the facts and circumstances
of this
particular matter, I can find no reason to order that the costs
should rather be recovered from the trust fund, instead
of the
respondents. The applicant has prayed for an order that the
respondents pay the costs on the attorney and client scale.
In my
view this would be appropriate bearing in mind that the application
is brought by the applicant in his representative capacity
and any
costs not recovered from the respondents would by implication come
out of the trust fund which in my view should not be
permitted.
Order
[113]
The following order is granted:
1.
The first, second, third and fourth respondents’ powers
to act
as trustees of the Ubunye Be Afrika Development Trust (I[...]) are
suspended;
2.
The first, second, third and fourth respondents are removed
as
trustees of the Ubunye Be Afrika Development Trust (I[...]) with
immediate effect, and are directed to return their letters
of
authority to the seventh respondent.
3.
The first, second, third and fourth respondents are directed
to pay
the costs of the application on the attorney and client scale, such
costs to be paid jointly and severally, the one paying
the other to
be absolved.
E
BEZUIDENHOUT J
Date
of hearing:
14 April 2023
Date
of judgment:
13 October 2023
Appearances:
For
the applicant:
Mrs J
Ploos Van Amstel
Instructed
by:
Jacques
Roos Attorneys
Shop
23, Tiffany shopping Centre
Old
Main Road
Salt
Rock
Tel:
032 525 4552
c/o
Viv Greene Attorneys
132
Roberts Road Clarendon
Pietermaritzburg
For
the first, Second, Third and Fourth respondent:
Mr J
Nxusani SC
Instructed
by:
Diedricks
Attorneys
78
Taunton Road
Wembley
Pietermaritzburg
Tel:
033 342 9808
Email:
admin@fiedricksattorneys.co.za
[1]
Defined as the province of KwaZulu-Natal.
[2]
Clause
6 provides that ‘[
t]he
Original Beneficiaries shall appoint the Trustees in a meeting of
Original Beneficiaries solely constituted for the appointment
of
trustees’.
[3]
Clause
5.4.
[4]
E Cameron et al
Honoré’s
South
African
Law of Trusts 6 ed
(2018)
at 271 (
Honoré
).
[5]
Fey NO
and Whiteford NO v Serfontein and another
1993 (2) SA 605
(A) at 614.
[6]
Gowar
and another v Gowar and others
[2016] ZASCA 101
;
2016 (5) SA 225
(SCA) para 27.
[7]
Tijmstra
NO v Blunt-Mackenzie NO and others
2002
(1) SA 459
(T) at 473E-F.
[8]
Honoré
at
306.
[9]
Sackville
West v Nourse and
another
1925 AD 516
at 534.
[10]
Ibid
at 535.
[11]
Administrators,
Estate Richards v Nichol and Another
[1998] ZASCA 82
;
1999 (1) SA 551
(SCA) at 557D-F.
[12]
Honoré
at
370.
[13]
Ibid.
[14]
Colonial
Banking and Trust Co Ltd v Estate Hughes and others
1932 AD 1
at 16.
[15]
Harris
v Fisher, NO
1960 (4) SA 855
(A) at 862C.
[16]
Grobbelaar
v Grobbelaar
1959 (4) SA 719 (A).
[17]
Die
Meester v Meyer en andere
1975 (2) SA 1 (T).
[18]
Numsa
obo Nganezi v Dunlop Mixing And Technical Services (Pty) Ltd and
others
[2019]
ZACC 25
;
2019 (5) SA 354
(CC) para 55.
[19]
Honoré
at
409-410.
[20]
Hoppen
and others v Shub and others
1987
(3) SA 201
(C).