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[2010] ZASCA 108
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Lupacchini NO and Another v Minister of Safety and Security (16/2010) [2010] ZASCA 108; 2010 (6) SA 457 (SCA) ; [2011] 2 All SA 138 (SCA) (17 September 2010)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 16/2010
In the matter
between:
GABRIELLE
LUPACCHINI NO First Appellant
ROCHELLE CONRADIE
NO Second Appellant
and
MINISTER OF
SAFETY AND SECURITY Respondent
Neutral
citation:
Lupacchini v Minister of Safety and Security
(16/2010)
[2010] ZASCA 108
(17 SEPTEMBER 2010)
Coram:
NUGENT,
PONNAN, CACHALIA, BOSIELO and TSHIQI JJA
Heard:
30
AUGUST 2010
Delivered: 17
SEPTEMBER 2010
Summary:
Trusts
– s 6(1) of Trust Property Control Act – trustee
without authorisation of the Master to act in that capacity
commencing legal proceedings – effect of s 6(1) on validity of
the proceedings.
_____________________________________________________________________
ORDER
_____________________________________________________________________
On appeal from:
Free State
High Court, Bloemfontein (Van der Merwe, Van Zyl JJ and Claasen AJ
sitting as court of appeal):
The appeal is dismissed with
costs.
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
NUGENT JA (PONNAN, CACHALIA,
BOSIELO and TSHIQI JJA concurring)
[1] 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
1
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.’
In
Land
and Agricultural Bank of South Africa v Parker
Cameron JA elaborated:
2
‘
[A
trust] 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 . . . .
It follows that a
provision requiring that a specified 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.’
[2] By the
nature of the office of trustee the control and administration of the
trust property vests in each trustee individually.
It follows that
where there is more than one trustee they must act jointly unless the
trust instrument provides otherwise.
3
And because they have individual interests all must necessarily join
in litigation concerning the affairs of the trust (though
it seems
that one trustee might authorise another to sue in his or her name).
That was reaffirmed by
Parker
,
in which a petition to this court for leave to appeal, and the
consequent appeal, brought at the instance of trustees whose number
fell short of the minimum required by the trust deed, were held to be
a nullity.
4
[3] Although a
trustee’s appointment is effected by the trust instrument the
trustee is precluded from acting in that capacity
by s 6(1) of the
Trust Property Control Act 57 of 1988 until he or she has been
authorised to do so by the Master. The section
reads:
‘
Any
person whose appointment as trustee in terms of a trust instrument,
section 7 or a court order comes into force after the commencement
of
this Act, shall act in that capacity only if authorized thereto in
writing by the Master.’
The Master
will authorise a trustee to act in that capacity only if security has
been furnished for the due and faithful performance
of his or her
duties, except in various specified circumstances.
5
[4] It is not
controversial in this case that the effect of the section is that an
appointed trustee may not commence legal proceedings
relating to the
affairs of a trust – nor may one trustee authorise another to
institute proceedings on his or her behalf
– unless he or she
has the relevant authorisation.
6
What is controversial is the consequences for proceedings that are
commenced by a trustee without such authorisation. The Minister
of
Safety and Security (the respondent), who was the defendant in an
action commenced in that way, contends that the proceedings
are a
nullity. The trustees who commenced the action (the appellants)
contend that they are not.
[5] The
question arises in relation to the Lupacchini Family Trust. The trust
deed that established the trust provided for a minimum
of two
trustees. The first trustees were Ms Melinda Lupacchini and Mr
Gabrielle Lupacchini (the first appellant) who were both
authorised
by the Master to act in that capacity on 4 October 1994. At a meeting
of the trustees on 3 June 2003 Ms Lupacchini noted
her intention to
resign and it was resolved that Mr Luigi Lupacchini would act as
‘temporary trustee’. Ms Lupacchini
notified the Master of
her resignation in a letter that was received by the Master on 2
September 2003. On 8 September 2003 Messrs
Gabrielle and Luigi
Lupacchini resolved to pursue an action against the state for damages
arising from what was said to have been
an illegal raid by the police
at the property of a night club that was conducted by the trust. Then
in November 2003 they resolved
to appoint Ms Conradie (the second
appellant) as a trustee. A letter was written to the Master advising
him of the appointment
but the letter was not received. In August
2004 the foreshadowed action was commenced by the two appellants in
their capacities
as trustees against the Minister and those are the
proceedings that are now before us. It was only after the action was
commenced,
on 15 December 2004, that the Master authorised Ms
Conradie to act as trustee.
[6] The
question that was placed before the court of first instance by way of
a stated case was whether the absence of such authority
on the part
of Ms Conradie at the time the action was commenced rendered the
proceedings a nullity.
7
It was agreed between the parties in the stated case that if it did
then the action must be dismissed and if it did not then the
special
plea must be dismissed. I might add that nothing was sought to be
made of the validity of the decision taken by Messrs
Gabrielle and
Luigi Lupacchini on 8 September 2003 to pursue the action. But if
that decision was at all material the same question
would arise
because there is no suggestion that Mr Luigi Lupacchini had been
authorised by the Master to act in the capacity of
trustee (even if
his appointment as ‘temporary trustee’ was capable of
having been made) when that decision was taken.
[7] The court
of first instance (Rampai J) found that the action had been validly
commenced and he dismissed the special plea. Much
of his reasoning
was based upon the decision of Conradie J in
Watt
v Sea Plant Products Bpk.
8
On appeal to the full court (Van der Merwe and Van Zyl JJ and Claasen
AJ) that order was reversed. The present appeal against the
order of
the full court is before us with the special leave of this court.
[8] The
consequence for the validity of an act that has taken place in
conflict with a statutory prohibition has been considered
in numerous
cases. One of the earliest cases was
Schierhout
v Minister of Justice
,
9
in which Innes CJ said the following:
‘
It is a
fundamental principle of our law that a thing done contrary to the
direct prohibition of the law is void and of no effect.’
But that will
not always be the case. Later cases have made it clear that whether
that is so will depend upon the proper construction
of the particular
legislation. What has emerged from those cases was articulated by
Corbett AJA in
Swart
v Smuts
:
10
‘
Die
regsbeginsels wat van toepassing is by beoordeling van die geldigheid
of nietigheid van ‘n transaksie wat aangegaan is,
of ‘n
handeling wat verrig is, in stryd met ‘n statutêre
bepaling of met verontagsaming van ‘n statutêre
vereiste,
is welbekend en is alreeds dikwels deur hierdie Hof gekonstateer
(sien
Standard
Bank v Estate Van Rhyn
1925 AD 266
;
Sutter
v Scheepers
1932 AD 165
;
Leibbrandt
v South African Railways
1941 AD 9
;
Messenger
of the Magistrate’s Court, Durban v Pillay
1952 (3) SA 678
(AD);
Pottie
v Kotze
1954 (3) SA 719
(AD),
Jefferies
v Komgha Divisional Council
1958 (1) SA 233
(AD);
Maharaj
and Others v Rampersad
1964 (4) SA 638
(AD)). Dit blyk uit hierdie en ander tersaaklike
gewysdes dat wanneer die onderhawige wetsbepaling self nie uitdruklik
verklaar
dat sodanige transaksie of handeling van nul en gener waarde
is nie, die geldigheid daarvan uiteindelik van die bedoeling van die
Wetgewer afhang. In die algemeen word ‘n handeling wat in stryd
met ‘n statutêre bepaling verrig is, as ‘n
nietigheid beskou, maar hierdie is nie ‘n vaste of onbuigsame
reël nie. Deeglike oorweging van die bewoording van die
statuut
en van sy doel en strekking kan tot die gevolgtrekking lei dat die
Wetgewer geen nietigheidsbedoeling gehad het nie.’
[9] The
problem has generally arisen in relation to contracts that are
concluded in conflict with a statutory prohibition. It arose
in
relation to a contract that was concluded in conflict with the
section that is now before us in
Simplex
(Pty) Ltd v Van der Merwe NO
11
– which was later followed in similar circumstances by Griesel
J in
Van
der Merwe v Van der Merwe.
12
Both cases held that a contract that was concluded by unauthorised
trustees was invalid. I am not aware of the correctness of those
decisions having been questioned,
13
and their correctness has not been challenged before us. Goldblatt J
said the following in
Simplex
:
14
‘
[Section]
6(1) is not purely for the benefit of the beneficiaries of the trust
but in the public interest to provide proper written
proof to
outsiders of incumbency of the office of trustee. (Honoré’s
South
African Law of Trust
4
th
ed at 179.) The whole scheme of the Act is to provide a manner in
which the Master can supervise trustees in the proper administration
of trusts properly and s 6(1) is essential to such purpose. By
placing a bar on trustees from acting as such until authorised
by the
Master, the Act endeavours to ensure that trustees can only act as
such if they comply with the Act. This ensures that the
trust deed is
lodged with the Master and that security, if necessary, is lodged
with him before trustees start binding the trust’s
property.
It
was further submitted on behalf of the respondents that, because the
Act neither provided that unauthorised acts were invalid
nor that
such acts were criminal offences, it was not the intention of the
Legislature to have such acts visited with the penalty
of being
treated as a nullity. I do not agree with this submission. It seems
to me that the failure to provide for a criminal sanction
points to
the fact that the Legislature saw no need to punish a party
criminally for an act which could have no legal consequences.
Further, it seems to me that it was so self-evident to the
Legislature that an act by a person not having the requisite
authority
was of no force and effect that it did not deem it
necessary to spell out such a conclusion in the Act: “It is a
fundamental
principle of our law that a thing done contrary to the
direct prohibition of the law is void and of no effect.”
Per
Innes CJ in
Schierhout
v Minister of Justice
1926 AD 99
at 109.’
[10] It might
be noted that
Kropman
NO v Nysschen
15
later
held that a court has a discretion to retrospectively validate acts
of a trustee that are performed without the requisite
authority. That
proposition was persuasively rejected in
Van
der Merwe
16
and has been criticised by various authors.
17
No reliance was sought to be placed on it in this case and I need say
no more about it.
[11] The
effect of s 6(1) on the validity of legal proceedings arose
pertinently in
Watt
v Sea Plant Products Bpk.
18
That case differs from the present case in this respect that it was
the defendants who lacked the Master’s authority to act
in the
capacity of trustees. The terms of a special plea that was filed by
the defendants do not appear from the judgment but I
think it can be
inferred that it raised the objection that the trustees lacked the
capacity to be sued and that the proceedings
were thus a nullity.
[12] Conradie
J considered the problem to be one that went to the
locus
standi
(the standing) of the trustees to be sued. He explained what he meant
by that as follows:
19
‘
Locus
standi in iudicio
is an access mechanism controlled by the court itself. The standing
of a person does not depend on authority to act. It depends
on
whether the litigant is regarded by the court as having a
sufficiently close interest in the litigation.’
He went on to
pose the question before him as follows:
20
‘
The
question, then, to be posed
in
casu
is whether at the time summons was issued the trustees’
interest in the trust
21
was too remote.’
And this was
his answer to that question:
22
‘
The
answer to this question depends upon the nature of a trustee’s
appointment. Where a trustee has been appointed –
in a trust
deed or otherwise – the appointment is not void pending
authorization by the Master in terms of section 6(1) of
the Act (cf.
Metequity
Limited and another v NWN Properties Limited and others
[1997] 4 All SA 607
(T) at 611a-d). Although a trustee’s power
to act in that capacity is suspended by section 6(1) of the Act, he
or she would,
in my view, have a sufficiently well defined and close
interest in the administration of the trust to have
locus
standi in iudicio
.
Any conclusion that the second and third defendants were by section
6(1) of the Act deprived of
locus
standi in iudicio
(which would mean not only that they could not be sued but also that
they could not approach the court to protect the interests
of the
trust) would not give effect to the intention of the legislature.
Whilst recognising the desire of the legislature to regulate
the
rights and duties of trustees in the Act, one should, I think, be
slow to conclude that it would have desired to accomplish
this by
controlling their access to, or accountability in, a court of law.’
On that basis
his conclusion was that ‘the prohibitory phrase “…
shall act in that capacity only if authorised
thereto …”,
wide as it is, must be interpreted to mean that a trustee may not,
prior to authorisation, acquire rights
for, or contractually incur
liabilities on behalf of, the trust…. I do not …
believe that the legislature intended
with a provision of this kind
to regulate questions of
locus
standi in iudicio.
’
23
[13] Little
fault can be found with the views expressed by the learned judge in
the context of the question that he posed but I
do not think he posed
the right question. The court below pointed out that a person might
lack standing to sue or be sued in either
of two circumstances. The
first is where the law does not recognise the person as being capable
of suing or being sued –
examples are unassisted minors and
mentally disordered persons without a curator.
24
The second is where a person indeed has such capacity but has no
sufficient interest in the proceedings. Quite clearly a trustee
has
sufficient interest in legal proceedings relating to the affairs of
the trust to enable him or her to sue or be sued –
indeed, it
is only the trustee who might sue or be sued. I suggest that the true
question in
Watt
– as it is in this case – was not whether the trustees
had a sufficient interest but instead whether they were capable
of
suing or being sued at all.
[14] Nonetheless,
some of the cases that were referred to by the learned judge have
some bearing on the question before us and it
is as well to consider
them at this point. One was
Patel
v Paruk’s Trustee.
25
In that case the trustee of an insolvent estate commenced proceedings
without the consent of the creditors or the Master, in conflict
with
s 73(1)
of the
Insolvency Act 24 of 1936
.
26
Tindall JA rejected the contention that the proceedings were a
nullity, expressing his reasons for doing so as follows:
27
‘
The …
proviso, prohibiting the trustee from instituting or defending any
legal proceedings without the prescribed consent,
was enacted, as
between the trustee and the creditors, in order to protect the estate
from being dissipated in litigation. The
Legislature could not have
intended that steps taken by a trustee to institute or defend
proceedings must necessarily be a nullity
because the prescribed
consent had not been obtained. An interpretation to the contrary
would bring about the result that, where
there is not enough time to
enable the trustee to obtain such consent, he may be powerless to
issue a summons timeously in order
to prevent a claim due to the
estate from becoming prescribed or to file a plea in order to prevent
a default judgment from being
obtained against him. The estate of the
insolvent being vested in the trustee by
sec 20(1)(a)
, it would
require different language from that contained in
sec 73(1)
in
its original form to justify the Court in upholding an interpretation
leading to the results mentioned … But under the
proviso in
its amended form the argument in support of the validity of the
objection is even weaker than it would have been under
the original
….’
[15] Similar
circumstances arose in
Waisbrod v
Potgieter.
28
In that case proceedings were brought by a liquidator without the
authority of creditors and contributories in conflict with s
130(2)
and 142(4) of the Companies Act 46 of 1926. Ramsbottom J said the
following:
‘
I
think that the provisions of secs 130(2)(a) and 142(4) were
enacted for the protection of creditors and contributories and
to
prevent the assets of the company from being squandered in useless
litigation. As between himself and the company the liquidator
requires to be authorised before he embarks on litigation, and if he
does so without the prescribed authority the Court may refuse
to
allow him his costs out of the assets of the company and he may have
to pay them himself.’
29
(Followed
in
Sifris & Miller NNO v Vermeulen
Bros
.
30
See, too,
Tannenbaum’s Executors
and Tannenbaum v Quakley and Liquidator of Varachia Store (Pty)
Ltd
.
31
)
[16] While
those cases are instructive they are by no means decisive. The cases
that I referred to earlier make it clear that the
consequences that
attach to the performance of an act contrary to a statutory provision
depend upon the construction of the particular
statute. And although
a trustee of the kind that is now in issue might share some
characteristics of a trustee in insolvency they
do not altogether
coincide. One distinction that immediately comes to mind is that the
acts that were in issue in those cases were
capable of being
performed with the authorisation of the creditors, from which it is
plain that the restriction existed solely
in the interests of
creditors. But as Goldlatt J said in
Simplex
32
,
s 6(1) ‘is not purely for the benefit of the beneficiaries
of the trust but in the public interest to provide proper
written
proof to outsiders of incumbency of the office of trustee’.
[17] One
notable feature of s 6(1) that seems to me to lead strongly to
the conclusion that the acts of a trustee who lacks
authorisation
were intended to be invalid is that there is no criminal sanction for
acting in that way. Where there is a criminal
sanction the question
will arise whether that was considered by the legislature to be a
sufficient consequence for contravening
the prohibition or whether
nullity was to be a consequence as well. As Bowen LJ said in
Mellias
v The Shirly and Freemantle Local Board of Heath,
33
cited with approval in
Swart
:
34
‘
[In] the end
we have to find out, upon the construction of the Act, whether it was
intended by the Legislature to prohibit the doing
of a certain act
altogether, or whether it was only intended to say that, if the act
was done, certain penalties should follow
as a consequence’.
[18] But
where there is no criminal consequence it is difficult to see how the
legislature could have intended anything other than
that the act
should be a nullity because otherwise a contravention of the
prohibition would have no consequences at all. As Golblatt
J said in
Simplex
:
35
‘
It
seems to me that the failure to provide for a criminal sanction
points to the fact that the Legislature saw no need to punish
a party
criminally for an act which could have no legal consequences.’
Force
is added to that construction by the fact that the supervisory regime
that is created by the Act expressly applies only to
trustees who
have been authorised by the Master to act.
36
If neither criminal sanction nor nullity was the consequence of
contravening the prohibition that would be an invitation to trustees
to ignore the Act altogether.
[19] I have
drawn attention to two cases that have held that contracts concluded
in breach of the prohibition are invalid. One needs
then to ask
whether there is any indication in the statute that the section was
intended to visit nullity on some acts but not
upon others. Although
counsel for the trustees submitted that a distinction should be drawn
he advanced no persuasive reasons why
that should be so. Indeed, it
would seem to me to be anomalous if a trustee were to be capable of
engaging in litigation, but yet
be incapable of concluding contracts
required to pursue the litigation. And as the court below trenchantly
pointed, it would be
even more anomalous if a trustee were to be
capable of conducting major litigation from beginning to end, with
major consequences
for the trust, but yet not be capable of
contracting for the purchase of a pen.
[20] Counsel
for the trustees referred us to academic writing that he submitted
was in support of his view but I think that states
the matter too
strongly. The authors of
Honoré
assert that ‘[it] is therefore wrong to argue that a trustee
who has not yet received the Master’s authorization has
no
capacity to sue or to be sued on behalf of the trust’
37
but they rely solely upon the decision in
Watt
for that assertion. And although they also express the view that the
decision in
Watt
is persuasive
38
they provide no independent reasons why that is so. MJ De Waal:
‘Authorisation of Trustees in terms of the Trust Control
Act’
39
reviews the decided cases that I have referred to without pertinent
comment on the correctness of
Watt
.
Michael Cameron Wood-Bodley: ‘The Transactions of Unauthorized
Trustees: Section 6(1) of the Trust Property Control Act
1988’
40
advances reasons in favour of the trustees’ construction but
concludes rather tentatively as follows:
‘
In
light of the above considerations the proper interpretation of the
section is problematic. However, it seems probable that the
acts of a
trustee who lacks the Master’s s 6(1) authority are void …
although in terms of the decision in
Watt
there may be some room for a trustee to perform certain limited
duties prior to authorization, if this does not entail acquiring
rights for, or contractually incurring liabilities on behalf of, the
trust.’
[21] It was
observed in
Patel
that one of the consequences of finding litigation by a trustee to be
invalid would be that he or she might then be incapable of
preventing
a claim from prescribing or from filing a plea so as to prevent a
judgment being taken by default, which the learned
judge considered
to be anomalous. I am not sure that those objections are
well-founded. The first objection seems to me to be overcome
by s
13(1)(a) of the
Prescription Act 68 of 1969
, which, amongst other
things, extends the running of prescription ‘if a creditor…is
prevented by…any law…from
interrupting the running of
prescription’.
41
The second objection does not seem to me insuperable in that a court
is not obliged to grant judgment by default, and will no doubt
refrain from doing so if it is brought to its attention that the
trustee lacks capacity to defend the proceedings, and might in
any
event rescind such a judgment once those facts become known. But that
apart, once it is recognised that at least some acts
of an
unauthorised trustee are invalid then problems of that kind are
capable of arising just as much in relation to those acts
– for
example, the trustees will be unable to exercise a valuable option
that is about to expire, or to exercise a right
to renew a lease. The
practical problems that were referred to by Tindall JA – if
they exist – and other practical
difficulties raised in
argument before us, do not seem to me to be sufficient ground to
import an intention that legal proceedings
are to be treated
differently to other transactions.
[22] I regret
that I can find no indications that legal proceedings commenced by
unauthorised trustees were intended to be valid.
On the contrary, the
indications seem to me all to point the other way. Unless it were to
be the case that all transactions performed
in conflict with the
section are to be treated as valid – which clearly cannot be
the case, because otherwise the Act would
be altogether ineffective –
then I find nothing to distinguish its effect on legal proceedings.
Indeed, it would seem to
me that the case is even stronger for
finding legal proceedings to be a nullity. Conradie J sought to
reconcile his finding in
Watt
with his expressed view that unauthorised trustees are not capable of
validly contracting as follows:
42
‘
In
entering appearance to defend this action the [trustees] incurred no
contractual liability on behalf of the trust save possibly
for
payment of their attorneys’ fees; that, however, is not
something which arises in these proceedings. The trust incurred
no
contractual liability for costs to the plaintiff. It did not even
incur any liability for potential, judicially imposed, costs.
If the
[trustees] were not authorised to conduct the litigation they would
incur personal liability for any adverse costs order’.
While it is
open to third parties to conclude contracts with trustees at their
peril, they are left no choice when it comes to being
sued. If the
only consequence of trustees suing in conflict with the section is to
be that the trust is not bound to pay the costs,
which is what
Conradie J seems to suggest, that would be cold comfort to those who
are sued by a wealthy trust that is administered
by impecunious
trustees.
43
I do not think the legislature could have intended to submit third
parties to litigation at the hands of unauthorised trustees
with the
consequence that they are precluded from looking to the assets of the
trust for recompense if the trust were to lose.
[23] Fagan JA
pointed out in
Pottie
v Kotze
44
that
‘
[t]he
usual reason for holding a prohibited act to be invalid is not the
inference of an intention on the part of the Legislature
to impose a
deterrent penalty for which it has not expressly provided, but the
fact that recognition of the act by the Court will
bring about, or
give legal sanction to, the very situation which the Legislature
wishes to prevent.’
The section
makes it clear that a trustee may not act in that capacity at all
without the requisite authorisation. If we were to
find that acts
performed in conflict with the section are valid it seems to me that
we would be giving legal sanction to the very
situation that the
legislature wished to prevent.
Parker
makes it clear that legal proceedings commenced by persons who lack
capacity to act for the trust are a nullity and I see nothing
in the
section to suggest that trustees who are prohibited from acting in
that capacity are in a better position. In my view the
court below
was correct and the appeal must be dismissed.
[24] That
leaves a question that relates to the costs. The Minister is entitled
to the costs of the proceedings, both in this court
and the courts
below. It follows from my finding that the trustees were not
authorised to bind the trust for payment of the costs
of launching
the proceedings but I do not think that we are able to interfere with
the substituted order of the court of first
instance in that regard.
By the time the matter was heard in the court of first instance and
the appeals were brought the trustees
had both been authorised to act
and the trust is bound to pay the costs of this appeal. The costs of
the application for leave
to appeal to this court have already been
ordered to be costs in the appeal.
[25] The
appeal is dismissed with costs.
_________________
R W NUGENT
JUDGE OF APPEAL
APPEARANCES:
For
appellant: A J R van Rhyn SC
M
D J Steenkamp
Instructed
by:
Kramer
Weihmann Joubert, Bloemfontein
For
respondent: M H Wessels SC
Instructed
by:
S
Chetty, State Attorney, Bloemfontein
1
5ed
(2002) by Edwin Cameron with Marius de Waal, Basil Wunsh and Peter
Solomon para 1.
2
2005
(2) SA 77
(SCA) paras 10 and 11.
3
Parker,
above, para 15.
4
Parker
,
above, para 41.
5
Sections
6(2) and (3).
6
See
Honoré
, above at p 219: ‘The language of
the section is emphatic: someone appointed as trustee “shall
act in that capacity
only if authorized thereto in writing by the
Master”.’
7
It
was not expressed in those precise terms but that was the effect of
the stated case and the basis upon which it was argued.
8
[1998]
4 All SA 109
(C).
9
1926
AD 99
at 109.
10
1971
(1) SA 819
(A) at 829C-G. That principle has since been repeated by
this court in numerous cases: see, for example,
Palm Fifteen
(Pty) Ltd v Cotton Tail Homes (Pty) Ltd
1978 (2) SA 872
(A) at
885E-G;
Metro Western Cape (Pty) Ltd v Ross
1986 (3) SA 181
(A) at 188F-189C;
Absa Insurance Brokers (Pty) Ltd v Luttig
NO
[1997] ZASCA 61
;
1997 (4) SA 229
(SCA) at 238G-239B
Geue v Van der Lith
[2003] ZASCA 118
;
2004 (3) SA 333
(SCA) para 18.
11
1996
(1) SA 111
(W).
12
2000
(2) SA 519
(C).
13
See
Honoré
, above, pp 220-221;
Annual Survey of South
African Law
1996 pp 198 and 467-468;
Annual Survey of South
African Law
2000 pp 479-481; MJ De Waal: ‘Authorisation of
Trustees in terms of the Trust Control Act’
(2000) 63
THRHR
472
; Michael Cameron Wood-Bodley: ‘The Transactions of
Unauthorized Trustees: Section 6(1) of the Trust Property Control
Act
1988’
(2001) 118
SALJ
374.
14
At
112J-113E.
15
1999
(2) SA 567
(T) at 576F.
16
Para
20. See, too, the criticism in
Honoré
, above, pp
220-221.
17
See
Honoré
, above, p 220-221; MJ De Waal, above, at 476;
Michael Cameron Wood-Bodley, above, at 377.
18
[1998]
4 All SA 109
(C).
19
At
113h.
20
At
114a.
21
The
reference to the trust seems to have been inadvertent. The true
question is whether he or she has sufficient interest in the
litigation, as the learned judge observed in the earlier passage I
have referred to.
22
At
114a-114d.
23
At
112 i-j.
24
Herbstein
and Van Winsen:
The Civil Practice of the High Courts and the
Supreme court of Appeal of South Africa
5ed (2009) by Andries
Charl Cilliers, Cheryl Loots and Hendrik Christoffel Nel pp 160-174.
25
1944
AD 469.
26
At
that time the section permitted a trustee to take legal advice and
institute proceedings subject to the following proviso:
‘Provided
that … the trustee shall not act as aforesaid unless he has
been authorised thereto by the creditors or
the Master.’
27
At 475.
28
1953
(4) SA 502
(W).
29
Page
507G-H.
30
1973
(1) SA 729
(T).
31
1940
WLD 209.
32
At 112J-113B.
33
(1885)
16 QBD 446.
34
At
829H-830A.
35
At
113D.
36
Section
1 of the Act defines a ‘trustee’ to mean ‘any
person … who acts as trustee by virtue of an authorization
under section 6 …’. In s 4(1) the context shows that
the term was intended to apply to a trustee who has yet to
be
authorised, but the remaining regulatory provisions apply, in terms,
only to trustees who have been authorised.
37
Page
419. The authors note that that view is contrary to the view
expressed in the previous edition.
38
Page
221.
39
(2000)
63 THRHR 472.
40
(2001)
118
SALJ
374
at 387.
41
Section
7(1)(b) of the Prescription Act 18 of 1943 had a similar effect, in
that it suspended extinctive prescription ‘during
the period
of disability of the creditor’.
42
At
113a-c.
43
See Harms JA in
Nieuwoudt NO v Vrystaat Mielies (Edms) Bpk
2004 (3) SA 486
(SCA) para 24.
44
1954
(3) SA 719
(A) at 726H.