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[2024] ZAKZPHC 39
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R.R and Others v J.R and Others (16015/2022P) [2024] ZAKZPHC 39 (22 April 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
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO:
16015/2022P
In
the matter between:
R[...]
R[...]
FIRST APPLICANT
NIMLA
PILLAY
SECOND APPLICANT
R[...]
R[...]
N.O.
THIRD APPLICANT
NIMLA
PILLAY
N.O.
FOURTH APPLICANT
and
J[...]
R[...]
FIRST
RESPONDENT
B[...]
R[...]
SECOND RESPONDENT
MASTER
OF THE HIGH COURT:
PIETERMARITZBURG
THIRD RESPONDENT
ORDER
The
following order is granted:
1.
The application is dismissed with no order as to costs.
JUDGMENT
Delivered on 22 April
2024
Sibisi AJ
Introduction
[1]
This dispute revolves around the termination of the T[...]
and J[...]
R[...] Family Trust (‘the trust’) which was created on 27
March 1996. The late Mr T[...] R[...] (‘the
deceased’)
was married to the first respondent. Their children are the first
applicant, the second applicant and the second
respondent. The trust
deed provides for the first applicant, the second applicant, the
first respondent, and the second respondent
to be the beneficiaries.
The deceased and the first respondent were the initial trustees. The
trust was to terminate on 13 May
2008 but it was extended for a
further 20 years. On 26 August 2020, the third respondent issued
letters of authority confirming
the appointment of the current
trustees, namely the first applicant, the second applicant, the first
respondent, and the second
respondent. The trustees have equal votes
and the first respondent has the casting vote. The donor of the trust
was the deceased
and the trust was formed for the benefit of his wife
(the first respondent), the first applicant, the second applicant,
and the
second respondent.
[2]
It is common cause that the trust owns the following
immovable
properties:
(a)
5[...] E[...] Drive, Verulam;
(b)
6[...] E[...] Drive, Verulam;
(c)
[...] L[...] Place, Verulam;
(d)
[...] H[...] Drive, Umhlanga Rocks, Durban;
(e)
4[...] G[...] Crescent, Verulam;
(f)
4[...] G[...] Crescent, Verulam;
(g)
Buffelsdraai Farm, Roode Krans; and
(h)
Cotton Lands, Verulam.
[3]
The deceased and the first respondent divorced during
1998 and Mr
R[...] died on 24 November 2014.
[4]
The first applicant is the sole shareholder of JR and
Sand Plant
(Pty) Ltd (‘JR Plant’) and JR Plastics (Pty) Ltd. The
first respondent is a shareholder and director of
Pearl Star (Pty)
Ltd (‘Pearl Star’) and TJ Plastics (Pty) Ltd (‘TJ
Plastics’). The entities occupy the
buildings constructed upon
6[...] E[...] Drive, Verulam and [...] L[...] Place, Verulam which
belong to the trust. The first and
second respondents currently
reside at [...] H[...] Drive, Umhlanga Rocks since January 2020.
[5]
At the centre of the disputes amongst the trustees is
the control of
the properties and the funds of the trust.
[6]
The trustees have levelled criticisms against each other.
The
applicants seek an order for the removal of the trustees and/or the
winding-up of the trust. It is clear that the trustees
do not get
along.
[7]
The first and second respondents seek that the application
be
dismissed with costs and that the trustees be allowed to continue to
wind-up the trust in terms of a resolution taken on 21
September
2022. The third respondent does not oppose the application.
Submissions
by parties
Applicants’
case
[8]
According to the notice of motion dated 17 November 2022,
the
applicants seek relief in the following terms:
‘
1.
That
the Third Respondent is hereby directed to appoint a fifth
independent trustee to the
T[...] and J[...] R[...] Family Trust
,
with reference number IT:8[...] (“the trust”), to
administer the affairs of the trust jointly with the First and Second
Applicants and the First and Second Respondents.
Alternatively
2.
That:
(a)
the First and Second Respondents are hereby removed as trustees of
the
T[...] and J[...] R[...] Family Trust
, with reference to
number IT:8[...] (“the trust”);
(b)
the First and Second Applicants are directed to resign as trustees of
the trust;
(c)
the Third Respondent is directed to appoint three independent
trustees
to jointly administer the affairs of the trust;
(d)
the following procedure is to be followed in the appointment of the
three
independent trustees, namely:
(i)
that the Third Respondent nominate five potential independent
trustees;
(ii)
that the First and Second Applicants, on the one hand, and the First
and Second Respondents
on the other, each nominate one of the
trustees from that list respectively; and
(iii)
that the Third Respondent then nominate the third trustee from that
list at his discretion.
3.
That
the First and Second Respondents are directed to pay the costs of
this application.
4.
Further
and/or alternative relief.’
[9]
During argument, the applicants’ counsel referred
to three
alternative draft orders for consideration.
[10]
The first version of the draft order reads as follows:
‘
1.
R[...] R[...], Nimla Pillay, J[...] R[...], B[...] R[...] who are
currently
the trustees to the T[...] and J[...] R[...] Family Trust,
with reference number IT: 8[...] (“the trust”) are in
terms
of the Section 20(1) of the Trust Property Control Act, 1988
remove (sic) as trustees (and shall be referred to below as the
“former
trustees”).
2.
The third respondent is directed, within one month of the granting
of
this order, to appoint a new independent trustee (“the new
trustee”).
3.
The new trustee shall:
3.1
within two weeks of his/her appointment call upon the former trustees
to account to him/her, within one month,
for their respective
dealings with the income, expenditure, use of assets and disposal of
the assets of the trust since 2018 and
in doing so provide vouchers
all supporting documentation in respect thereof;
3.2
within one month of receipt of the accounts from the former trustees
as contemplated in paragraph 3.1 call
upon the former trustees to
debate such accounts;
3.3
within 2 weeks of the debatement contemplated in paragraph 3.2 above,
determine the respective trustees net
claims against the trust
alternatively their respective liabilities to the trust.
4.
Upon appointment collect rentals or other income due to the trust
pending the final winding up and distribution of the trust.
5.
Proceed to immediately place all the immovable properties which
belong
to the trust on the open market with a view to selling of same
within six months of the new trustee’s appointment.
6.
In the event that in the opinion of the new trustee it is not in the
interests of the beneficiaries of the trust to sell any particular
property within six months, the new trustee is authorised to
approach
this Court for an extension of the time period contemplated in
paragraph 5 of this order.
7.
The new trustee shall be obliged to give the former trustees a first
right, for a period of 10 days, to purchase any assets of the trust
on the same terms and at the same price, as the new trustee
is able
to obtain from any
bona fide
third party.
8.
The costs of this application are ordered to be included in the costs
of the winding up of the trust and shall be payable as between
attorney and own client.
9.
The costs of the new trustee shall similarly be included in the
winding
up of the trust.
10.
The new trustee shall, having discharged its obligations to all of
its creditors,
draft a final account and pay the proceeds of the
trust to the beneficiaries.’
[11]
The second version of the draft order reads as follows:
‘
1.
R[...] R[...], Nimla Pillay, J[...] R[...], B[...] R[...] who are
currently
the trustees of the T[...] and J[...] R[...] Family Trust,
with reference number IT: 8[...] (“the trust”) are in
terms
of s20(1) of the Trust Property Control Act, 1988 removed as
trustees (and shall be referred to below as the “former
trustees”).
2.
A person to be agreed upon by the parties in writing within 14 days
of this order,
or failing such agreement, a practising chartered
accountant to be nominated by the chairperson for the time being of
the South
African Institute of Chartered Accountants (SAICA) (which
person is hereinafter referred to as “the new trustee”)
be
and is hereby appointed to sell and/or redistribute the assets of
the trust or pay to the former trustees such money as may be
necessary so that each former trustee is possessed of assets and/or
money equal in value to his/her share in the trust proceeds,
due
regard having been had to such amounts or benefits as such former
trustee has had from the trust since 2018 and any monies
owed by such
former trustee to the trust be such monies owed in the form of loans
or rental unpaid or rental not paid by any company
in which the
former trustee is a shareholder and/or director.
3.
For the purposes of giving effect to paragraph 2 hereof the new
trustee shall
be entitled:
3.1
to call upon any former trustee to produce any books or documents
which the
new trustee may require; and
3.2
to engage the services of any suitable qualified person or persons to
assist
him/her in determining the proper value of any of the trust
assets and to pay such person the reasonable fees which may be
charged;
3.3
to afford former trustees personally the opportunity to make
representations
to him/her about any matter relevant to his/her
duties and to this order and to the identity of any purchaser, as
well as the purchase
price of any assets, including but not limited
to:
3.3.1
the time and/or manner in which the assets should be realised;
3.3.2
the price for which any asset should be realised;
3.3.3
the sequence in which assets should be realised;
3.4
to give due consideration to the wishes of the former trustees
pursuant to representations
made by them and make such decision in
respect thereof as he/she may deem fit;
3.5
to prepare such interim and/or final accounts for the trust as he/she
may deem
fit;
3.6
to realise any asset of the trust either by public auction or private
treaty
and on such terms and conditions as may seem to him/her most
beneficial;
3.7
to sell any asset to any of the former trustees hereto for a price
that he/she
deems to be the true market price of such asset;
3.8
to postpone the realisation of any asset for a period not exceeding
six months
from the date when his/her appointment commenced provided
that he/she shall be entitled to postpone it for a period exceeding
six
months with the written consent of all the former trustees,
failing which by order of this court;
3.9
to sign any documents as may be necessary to effect transfer of any
trust asset
sold;
3.10
to apply to this court for any further directions that he/she shall
or may consider necessary;
3.11
to collect debts due to the trust;
3.12
to pay the liabilities of the trust;
3.13
to be paid the reasonable fees of the new trustee and to apportion
such fees between the parties
in the same proportion as they are
entitled to the profits of the proceeds of the trust;
4.
The new trustee shall be obliged to give to the former trustee
a
first right, for a period of 10 days, to purchase any assets of the
trust on the same terms and at the same price, as the new
trustee is
able to obtain from any
bona fide
third party.
5.
The attorney and own client costs incurred by any of the former
trustees in this application shall be costs of the winding up of the
trust.’
[12]
Finally, the third version of the draft order reads as follows:
‘
1.
R[...] R[...], Nimla Pillay, J[...] R[...], Bimla who are currently
the
trustees to the T[...] and J[...] R[...] Family Trust with
reference number IT: 8[...] (“the trust”) are in terms of
Section 20(1) of the Trust Property Control Act, 1988 removed as
trustees (and shall be referred to below as the “former
trustees”).
2.
A person to be agreed upon by the parties in writing within 14 days
of this order, or failing such agreement, a practising chartered
accountant to be nominated by the chairperson for the time being
of
the South African Institute of Chartered Accountants (SAICA) (which
person is hereinafter referred to as “the new trustee”)
be and is hereby appointed to sell and/or redistribute the assets of
the trust or pay to the former trustees such money as may
be
necessary so that each former trustee is possessed of assets and/or
money equal in value to his/her share in the trust proceeds,
due
regard having been had to such amounts or benefits as such former
trustee has had from the trust since 2018 and any monies
owed by such
former trustee to the trust be such monies owed in the form of loans
or rental unpaid or rental not paid by any company
in which the
former trustee is a shareholder and/or director.
3.
Such new trustee when appointed shall realise the whole of the
trusts’
assets, movable or immovable, and for that purpose to
sell them or any part of them, by public auction or by private
agreement
as may seem most beneficial, with leave to the former
trustees to bid.
4.
Where the new trustee is of the view that any of the assets be sold
by private
treaty, he/she shall be obliged to give to the former
trustees a first right, for a period of seven days, to purchase such
asset
of the trust on the same terms and at the same price, as the
new trustee is able to obtain from a
bona fide
third party.
5.
The attorney and own clients incurred by any of the former trustees
in this application
shall be costs in the winding up of the trust.’
[13]
The applicants point out that the trust deed provides for:
(a)
the first and second applicants and
the first and second respondents
to be the beneficiaries;
(b)
the deceased and the first respondent
to be the trustees;
(c)
the trustees to have the power of assumption;
(d)
the trust to terminate on 13 November
2014. The trustees, however,
were entitled through a unanimous resolution to extend the period of
the trust for such further period
or periods as they would decide
from time to time; and
(e)
the nomination of the first and second
applicants and the second
respondent as beneficiaries.
[14]
The applicants point out that the first and second respondents have
made
vicious personal attacks on them, which included:
(a)
twice calling the first applicant a trust fund baby;
(b)
saying that the applicants make no contributions to the
buildings
they occupy;
(c)
alleging that it is inequitable that only two of the
trustees (namely
the first and second respondents) carried the burden of the trust
themselves and subsidise the applicants;
(d)
alleging that the applicants were only employees on paper
and did no
work;
(e)
alleging that the applicants were merely on the payroll
to receive a
salary;
(f)
alleging that the applicants were not involved
in the business and
did not understand the rationale behind decisions taken;
(g)
alleging that the first applicant ran up debts by starting
a
Zimbabwean company, which he just left;
(h)
alleging that the first applicant was using the trust’s
funds
and was being subsidised by the respondents;
(i)
alleging that the first applicant mismanaged
the Zimbabwean company;
(j)
alleging that the first applicant siphoned
funds from the trust;
(k)
alleging that the first applicant left employees to run
the company;
(l)
alleging that the first applicant has the
mind-set for personal gain;
and
(m)
alleging that the first applicant took funds which needed to go to
the trust and instead raised fictitious expenses.
[15]
The applicants also criticised the first and second respondents on
the
bases that:
(a)
the first respondent bought an expensive motor vehicle
when the
company could not afford it;
(b)
Pearl Star was in dire financial straits, being R7 978
917 in arrears
with its rental and was not receiving an income;
(c)
Pearl Star stopped paying the applicants their salaries;
(d)
it was established in July 2020 that shares in Pearl
Star and TJ
Plastics were held by the first respondent and not the trust;
(e)
the first respondent disconnected JR Plant’s electricity
supply
out of malice;
(f)
the first respondent (through Pearl Star) reneged
on a settlement
agreement with the municipality for outstanding electricity accounts;
(g)
the applicants feared that monies would be paid by the
first and
second respondents for purposes other than reducing trust debts;
(h)
the first respondent was selling off Pearl Star’s
moveable
assets; and
(i)
the first and second respondents selectively
delivered bank
statements to prevent the applicants from determining present cash
reserves.
[16]
The applicants mentioned that the total outstanding rates on the
properties
is an amount of R2 036 022.49 and that Pearl Star is
indebted to the trust in the amount of R7 978 917.
[17]
It is the contention of the applicants that the trust cannot
function,
as the trustees are at war with each other, that it is not
in the interest of the trust that this situation be allowed to
continue,
and that it was time to wind-up the trust and to distribute
the proceeds between the beneficiaries.
Respondents’
case
[18]
The first and second respondents (‘the respondents’)
identified
the following material disputes of facts in the papers:
(a)
the operation of Pearl Star,
(b)
that the shareholding of Pearl Star was to be transferred
to a trust
to be formed by the applicants;
(c)
the applicants’ involvement in Pearl Star, where
the
respondents contended that the applicants were mere employees on
paper;
(d)
the termination of the electricity supply to TJ Plastics
as being the
fault of the first applicant and not the first respondent;
(e)
the applicants’ conclusion of lease agreements
with a
sub-tenant without the trustees’ consent, where the property
sub-let belonged to the trust;
(f)
the applicants’ failure to pay over to the
trust the rental
obtained from the sub-tenant and the applicants’ retention of
such rentals based on fictitious expenses;
and
(g)
that in September 2022, the trustees (the applicants
and the
respondents) resolved to terminate the trust, sell the assets and
liquidate the trust in terms of clause 30 of the trust
deed.
[19]
The respondents acknowledge that there may be rates owed on some of
the
properties. Further, they mention that the applicants have been
trustees since August 2020 and have consequently since that date
been
involved in the day-to-day running of the trust. According to the
respondents, the applicants ignore the fact that the resolution
signed in September 2022 amounts to a settlement of all the
disagreements between the trustees, and demonstrates the fact that
the trustees had decided to terminate the trust and all that remains
is the winding-up of the trust in terms of clause 30 of the
trust
deed. The respondents point out that the first respondent’s
casting vote means that the first and second respondents
can outvote
the applicants at a meeting of the trustees because the trust deed
gives the first respondent the casting vote. The
respondents argue
that there is no suggestion on the applicants’ version that the
winding-up of the trust cannot occur.
[20]
It was
contended on behalf of the respondents that because there is a
dispute of fact, the version of the respondents ought to be
accepted.
[1]
According to the
respondents, the application has to be dismissed with costs and that
the trustees be allowed to continue to wind-up
the trust in terms of
the trust deed.
[21]
It is the
contention of the respondents that the power of the court to remove
trustees is constrained by s 20 of the Trust Property
Control Act 57
of 1988 (‘the Act’) and that such power must be exercised
with circumspection. It is further contended
that ‘mere
friction or enmity’ between trustees and ‘mere conflict
amongst trustees themselves is not a sufficient
reason for the
removal of a trustee’ and that ‘incorrect decisions and
non-observance of the strict requirements of
the law, do not of
themselves, warrant the removal of a trustee’.
[2]
[22]
According to the respondents, the applicants bear the onus to
demonstrate
on the common cause facts that the respondents’
actions imperil the assets of the trust to the prejudice of the
beneficiaries.
Furthermore, the respondents point out that there are
disputes of facts and that in the absence of a referral to oral
evidence,
the version of the respondents ought to be accepted in
respect of those material disputes of fact.
Legal
principles
[23]
Section 13 of the Act provides as follows:
‘
13. Power
of court to vary trust provisions.
—
If a trust instrument
contains any provision which brings about consequences which in the
opinion of the court the founder of a
trust did not contemplate or
foresee and which—
(a)
hampers the achievement of the objects of the founder; or
(b)
prejudices the interests of beneficiaries; or
(c)
is in conflict with the public interest,
the court may, on
application of the trustee or any person who in the opinion of the
court has a sufficient interest in the trust
property, delete or vary
any such provision or make in respect thereof any order which such
court deems just, including an order
whereby particular trust
property is substituted for particular other property, or an order
terminating the trust.’
[24]
According to s 20(1) of the Act:
‘
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.’
[25]
It was held
in
Gowar
and another v Gowar and others
,
[3]
that the court’s power to remove a trustee must be exercised
with caution. A court should consider whether the trustee’s
conduct jeopardised the trust assets or its proper administration.
[26]
Conflict between the trustees and/or beneficiary is therefore not a
sufficient
reason for a court to remove a trustee. The overriding
factor is the protection of the beneficiaries and the proper
administration
of the trust and its assets.
[27]
The
following was said in
Fletcher
v McNair
:
[4]
‘
(a)
the court may order the removal of a trustee only if such removal
will, as required
by s 20(1) of the Act, be in the interests of the
Trust and its beneficiaries;
(b)
the power of the court to remove a trustee must be exercised with
circumspection;
(c)
the sufficiency of the cause for removal is to be tested by a
consideration of the
interests of the estate;
(d)
. . .
(e)
where there is disharmony, the essential test is whether it imperils
the Trust estate or
its proper administration…
’
[28]
It was held
in
Fletcher
v McNair
[5]
that the breakdown of a relationship between co-trustees, resulting
from outside the trust, is not a sufficient reason to remove
a
trustee. The test is whether the trust’s assets and its affairs
are placed at risk. It cannot be assumed that as a result
of ‘a
lack of trust, respect or compatibility amongst trustees’, the
trust assets are placed at risk and therefore
the trustee has to be
removed.
[29]
In
Wightman
t/a JW Construction v Headfour (Pty) Ltd
,
[6]
the court stated that the party raising a dispute of fact in motion
proceedings must ‘seriously and unambiguously’
address
that fact. The court further found that this will indicate that the
dispute is real, genuine or bona fide and that if the
disputing party
necessarily possesses the knowledge and ability to show the facts in
question to be untrue or inaccurate, but nonetheless
fails to do so,
instead relying on a bare or ambiguous denial, then there is no bona
fide dispute of fact.
Trust
deed provisions
[30]
According to clause 17 of the trust deed, the quorum necessary for
the
transaction of the business of the trust shall be two trustees.
The clause also provides that questions arising at any meetings
of
the trustees shall be decided by a majority of votes. In the case of
any equality of votes, the chairperson shall have a second
or casting
vote.
[31]
No trustee is to be disqualified by his or her office from
contracting
with the trust or with any contract entered into by or on
behalf of the trust in which any trustee had an interest. The
trustees
are obliged to apply as much of the income and revenue
derived from the trust fund as they, in their sole discretion, decide
to
and for the benefit, credit, maintenance support, education, and
advancement in life of the beneficiaries and would accumulate the
balance of any income not so used and add some to the capital of the
trust fund.
[32]
In terms of clause 29 of the trust deed, the date of termination of
the
trust is 13 November 2014 but it allows for a unanimous
resolution to be taken to extend the period of the trust for such a
further
period. It also provides that if circumstances have arisen to
warrant their doing so, the trustees are empowered in their sole,
absolute, and unfettered discretion to either terminate the trust in
whole or in part at such time or times prior to the aforementioned
date of termination.
Analysis
[33]
At the hearing of this matter, counsel for the applicants indicated
that
the applicants were not seeking relief in terms of the motion
dated 17 November 2022 but in accordance with the draft orders
referred
to above in the alternative.
[34]
The administration of trusts is governed by the provisions of the
Act.
The Act does not make provision for the termination of a trust
but common law does
‘
by
operation of law, for example by statute, fulfilment of the object of
the trust, failure of the beneficiary, renunciation or
repudiation by
a beneficiary, destruction of the trust property without fault on the
part of the trustee, or the operation of a
resolutive condition.’
[7]
(Footnotes omitted.)
[35]
The trustees are empowered in terms of clause 29
(b)
of the
trust deed to terminate the trust.
[36]
A resolution was taken after the parties reached an agreement to
terminate
the trust. However, a dispute arose relating to the manner
in which the assets of the trust were to be divided. The stance of
the
first and second respondents is that:
‘
We
are of the opinion that the assets should be collated on a schedule
and split all at once and not in a piecemeal fashion…There
is
no dispute regarding the termination of the Trust, just the basis on
which the assets need to be distributed.’
According
to the respondents, the allegations that the first respondent
recanted on her stance regarding the division are immaterial
to the
termination because it was a majority decision and the resolution to
terminate the trust still exists.
[37]
Paragraph 1 of the resolution taken on 21 September 2022 states:
‘
1]
The trust hereby authorizes the sale of Portion 178 of ERF 8[...] of
ROODE KRANS NO.
8[...] to be sold to Mr R[...] R[...] as part of the
first stage of splitting and dissolving of the T[...] and J[...]
R[...] Family
Trust.’
[38]
Four resolutions taken on the same date confirm that the sales were
the
first stage of splitting and dissolving the trust. However, there
is an email dated 3 October 2022 which was addressed to Michael
Govindasamy and Company Attorneys by Atkinson Attorneys, who were
acting on behalf of the first respondent, which reads as follows:
‘…
1.
We refer to the two Resolutions signed by J[...] R[...] dated 21
st
September 2022.
2.
Our client withdraws her signature of such documents with immediate
effect.
3.
Our client was placed under extreme duress by R[...] R[...] at the
time and her
consent to the Resolutions is unenforceable.
4.
We do remind you that earlier in the matter…we pointed out to
our opposing
attorneys that R[...] R[...] is an ill-tempered,
explosive personality and prone to violence.
5.
Indeed, we recorded in earlier correspondence that he threatened to
cut of (sic)
his mother’s hands if she came to his home…’
[39]
According to the answering affidavit:
(a)
the termination of the trust occurred by majority decision;
(b)
even if the first respondent recanted, the two remaining trustees’
votes served as the majority vote for the purpose of terminating the
trust;
(c)
the trust has already been terminated; and
(d)
the relief sought in this application cannot be granted.
[40]
The first respondent committed her signature, authorising the
termination
of the trust, which was to be done in phases. On the
other hand, the first respondent distanced herself, in writing and
through
her attorneys, from the same resolution by alleging duress.
According to the answering affidavit, the resolution stands.
[41]
A resolution to terminate the trust suffices because it is provided
for
in the trust deed and it reflects the intention of the trustees.
[42]
The failure of the trustees to reach a consensus on the distribution
of assets does not warrant the court’s intervention. The trust
deed provides for a deadlock mechanism. If the matter is put
to a
vote, and there is no consensus, the deadlock mechanism is put into
effect and the person who has the casting vote resolves
the deadlock.
Nothing was brought to my attention suggesting that the first
respondent has an unfair advantage which is detrimental
to the trust
because she has a casting vote.
[43]
As demonstrated above, there are a number of disputes of facts herein
and there is no reason to deviate from the approach adopted by the
courts insofar as the disputes of facts are concerned. I cannot
find
in favour of the applicants.
Costs
[44]
The general rule is that the successful party is entitled to costs.
[45]
The basis upon which the applicants approached this court was wrong.
However, the conduct of the first respondent cannot be ignored. The
first respondent agreed to the termination of trust, only to
recant a
few days later. I doubt that the applicants would have approached
this court but for the conduct of the first respondent.
Accordingly,
there is reason to depart from the general rule of awarding costs to
a successful litigant.
Order
[46]
In the circumstances, the following order is made:
1.
The application is dismissed with no order as to costs.
Sibisi
AJ
Appearances:
Counsel
for the first, second
third and fourth
applicants:
Mr A. Collingwood
Attorney for the
applicants:
R.K. Nathalal and
Company
Suite 1, Nathco
Centre,
99 Wick Street,
Verulam
c/o Charmane Pillay
and Company
431 Jabu Ndlovu
Street,
Pietermaritzburg
Ref: Mrs
Pillay/PZ/R609
Counsel
for the first and
second respondents:
Mr J.P. Broster
Attorney for the
respondents:
Pather and Pather
Attorneys
3 Nollsworth
Crescent
La Lucia,
Umhlanga
Ref: E.A./CR/R1237
c/o Botha and
Oliver Inc,
239 Peter Kerchoff
Street,
Pietermaritzburg
Ref: P1153
Dates of hearing:
22 November 2023
Date of judgment:
22 April 2024
[1]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E–635C.
[2]
Fletcher
v McNair
[2020]
ZASCA 135
para 19;
Gowar
and another v Gowar and others
[2016]
ZASCA 101
;
2016 (5) SA 225
(SCA) paras 31-32.
[3]
Gowar
and another v Gowar and others
[2016]
ZASCA 101
;
2016 (5) SA 225
(SCA) paras 30-32.
[4]
Fletcher
v McNair
[2020]
ZASCA 135
para 19.
[5]
Fletcher
v McNair
[2020]
ZASCA 135
para 26.
[6]
Wightman
t/a JW Construction v Headfour (Pty) Ltd and another
[2008]
ZASCA 6
;
2008 (3) SA 371
(SCA) para 13.
[7]
E
Cameron et al
Honoré’s
South African Law of Trusts
6
ed (2018) at 564-565.