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[2019] ZAWCHC 56
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Joubert and Others v Joubert and Others (9168/2018) [2019] ZAWCHC 56; [2019] 3 All SA 551 (WCC); 2019 (6) SA 51 (WCC) (10 May 2019)

R E P O R T A B L E
THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION, CAPE
TOWN)
Case
No: 9168/2018
Before
the Hon. Mr Justice Bozalek
Hearing: 14 March
2019
Delivered:
10 May 2019
In
the matter between:
PAUL
JOZUA
JOUBERT                                                                                    1
st
Applicant
LIESEL
DE CANDIA
2
nd
Applicant
CHRISTIAAN
JOHANNES
JOUBERT                                                            3
rd
Applicant
MADRI
JOUBERT                                                                                             4
th
Applicant
and
SONIA
JOUBERT                                                                                            1
st
Respondent
PAUL
JOZUA JOUBERT
N.O.                                                                      2
nd
Respondent
(in
his capacity as trustee for the time being of the Chris Joubert Trust
– No. IT4455/96)
JURGENS
JOHANNES TUBB
N.O.                                                             3
rd
Respondent
(in
his capacity as trustee for the time being of the Chris Joubert Trust
– No. IT4455/96)
C2M
TRUST MANAGEMENT SERVICES (PTY) LTD                               4
th
Respondent
(Registration
no:  2008/026792/07)
Represented
by:
CAREL
GERT STEENKAMP
N.O.                                                                5
th
Respondent
(in
his capacity as trustee for the time being of the Chris Joubert Trust
– No. IT4455/96)
JURGENS
JOHANNES TUBB
N.O.                                                             6
th
Respondent
(in
his capacity as executor of the estate late CHRISTIAAN JOHANNES
JOUBERT
MASTER
OF THE HIGH COURT, CAPE
TOWN                                       7
th
Respondent
JUDGMENT
BOZALEK J
[1]
In
this matter a trustee and three beneficiaries of an inter vivos trust
seek certain declaratory relief relating to the trust,
principally
that a resolution of the trustees taken in September 2014 introducing
a further beneficiary is null and void.
[2]
The
trust in question, the Chris Joubert Trust, was established in July
1996 and the trust deed was duly registered with the Master.
The
founder of the trust was the late Paul Jozua Joubert (senior) (‘the
founder’) and the initial trustees were his
son, the late
Christiaan Johannes Joubert (hereinafter ‘the testator’)
and the latter’s son, Paul Jozua Joubert
(junior) (‘the
first applicant’), as well as Mr Oscar De Vries, a so called
independent trustee and a partner in a
firm of accountants,
Greenwoods.
[3]
The
trust deed initially provided that the income and capital
beneficiaries would be the testator, the first applicant and his
siblings, Liesl Joubert, Christiaan Joubert and Madri Joubert, who
are the second, third and fourth applicants, respectively.
[4]
In
terms of the disputed resolution the testator’s then wife, Mrs
Sonia Joubert, the applicants’ step mother, was added
as a
capital income and capital beneficiary.
[5]
Mrs
Sonia Joubert is cited as the first respondent, the remaining
respondents being the existing trustees of the Chris Joubert Trust

(‘the trust’), namely, Mr Paul Joubert N.O., Mr Jurgens
Tubb N.O., C2M Trust Management Services (Pty) Ltd (represented
by Mr
Carel Steenkamp N.O)  and Mr Tubb in his capacity as executor of
the testator’s estate. The sixth respondent is
the Master of
the High Court, Cape Town who abides the judgment of the Court.
[6]
The
first respondent opposes the declaratory relief sought; whilst the
remaining respondents, the present day trustees (apart, of
course,
from the second respondent who is also the first applicant), abide
the judgment of the Court. Affidavits setting out the
views of Messrs
Tubb and Steenkamp were filed.
[7]
The
declaratory relief sought is threefold: firstly, that the purported
amendment of the trust deed by means of a resolution of
some of the
trustees dated 19 September 2004 was null and void and of no force
and effect and that the applicants, being the original
beneficiaries,
are the only beneficiaries under the trust deed; secondly, that the
first respondent is neither an income nor capital
beneficiary of the
trust and, thirdly, that the founder did not have the power or
authority in terms of clause 19 or any other
provisions of the trust
deed to determine the manner in which the income derived from the
assets of the trust should be divided
or applied. This last prayer
was not opposed by the first respondent, it being common cause that
the testator did not have the
power in question.
Background
[8]
The
three original trustees accepted their appointments on the terms and
conditions set out in the trust deed. The initial beneficiaries
of
the trust were the testator and the second to fourth applicants who
are the only natural children of the testator, although
born from
different mothers. In the preamble to the trust deed it is recorded
that the founder intended to make an irrevocable
donation to the
beneficiaries for which purpose the founder intended to create a
trust on the terms and conditions contained therein.
[9]
The
trust deed provided further that the capital of the trust was to be
retained by the trustees until the termination date when
the capital
still in the trust would vest and be paid in the proportions as
determined in the last will and testament of the testator.
[10]
Clause
23 deals with variations to the trust deed and provides that its
terms could be amended by the trustees at any time during
the
lifetime of the testator in any manner or on any condition that the
testator in his discretion consented to. It further provides
that
after the death of the testator the terms of the trust deed could be
amended on condition that the trustees and the beneficiaries

unanimously consented thereto.
[11]
On
19 September 2014, at which stage both the founder and the testator
were still alive, the trustees purported to pass a written
resolution
in the following terms:
‘
Daar
is besluit dat in terme van paragraaf 23
Wysiging
van die trustakte
van die trustakte gedateer 05.09.1966 soos volg te wysig:
Paragraaf
1.1.2 word as volg gewysig ‘Begunstigdes’ sal beteken:
‘Inkomste en Kapitaal Begunstigdes’
(a)
Christiaan
Johannes Joubert;
(b)
Paul
Jozua Joubert (jnr);
(c)
Liesl
Joubert;
(d)
Christiaan
Johannes Joubert,
(e)
Madri
Joubert;
(f)
Sonia
Joubert;
(g)
Al
die kinders gebore van die begunstigdes in paragraaf a - e of enige
Trust gevorm met enige een van die begunstigdes genoem in
paragraaf a
- e as bevoordeeldes;
(h)
Die
genoemde Begunstigdes sal begunstigdes wees teen (sic) opsigte van
beide Inkomste en Kapitaal’.
[12]
The
effect of this resolution was to add the testator’s then wife,
the first respondent, as an income and capital beneficiary
on the
same footing as the testator and his four children had been in terms
of the original trust deed, but to exclude the first
respondent’s
children as beneficiaries. The resolution reflects the signatories
thereto as being the founder, the testator
in his capacity as
trustee/beneficiary, the first applicant in the same capacities and
two further trustees, Mr JJ Tubb and C2M
Trust Management Services
(Pty) Ltd, the latter represented by Mr A Nel.
[13]
The
applicants’ challenge to the validity of the resolution rests
on two legs. Firstly, they contend that the resolution did
not
constitute a valid variation of the trust deed because although the
trust deed prescribed a minimum number of three trustees,
the
purported appointment of two of the trustees who were signatories had
been invalid, with the result that the remaining two
trustees in
office lacked the capacity to pass the resolution. Secondly, inasmuch
as the benefits conferred by the trust deed had
been accepted by or
on behalf of the original beneficiaries before 19 September 2014, the
trust deed could thereafter only be amended
with their consent, which
consent three of the original beneficiaries, namely, that of the
second, third and fourth applicants,
had not been provided.
The
issues
[14]
The
first set of main issues which arises therefore are whether the trust
deed requires a minimum of three trustees at any given
time, whether
all the signatory trustees were properly appointed and, if not, the
consequences thereof for the validity of the
resolution. The second
main issue is whether it was necessary for the second, third and
fourth applicants, as original beneficiaries,
to consent to the
variation to the trust deed sought to be affected by the disputed
resolution.
Was
the resolution passed with the necessary quorum of trustees?
[15]
In
order to deal with the first set of issues it is first necessary to
trace the sequence of the appointment process of trustees
since the
trust’s inception.
[16]
The
testator and the first applicant, father and son, accepted their
appointment as trustees when the trust was created. The testator

remained a trustee until his death on 16 December 2016. The first
applicant has continued to occupy the office of trustee since
the
inception of the trust. The first so-called independent trustee was
Mr De Vries, but it is not clear from the papers when his
term of
office ended. Similarly, it is not clear what happened regarding the
independent trustee office until 2010 when, according
to a Master’s
certificate, C2M Consult Trust Management Services (Pty) Ltd (‘C2M’),
represented by Mr I Van Niekerk,
was authorised to act as a trustee.
In October 2011, according to another Master’s certificate, Mr
Van Niekerk was replaced
by Mr Els as representative of C2M. In
November 2012 C2M effected a minor change in its name, with Mr Els
continuing to act as
its representative.
[17]
On
22 May 2014 the trustees resolved that Mr Jurgens Tubb be appointed
as a trustee, that Mr Els would resign as representative
of C2M and
that a Mr A Nel would serve in his place as representative of C2M.
Documentation to this effect was presented to the
Master from which
it appeared that Mr Els had tendered his resignation with effect from
30 June 2014. On 22 September 2014 the
Master issued letters of
authority in terms of sec 6(1) of the Trust Property Control Act, 57
of 1988, certifying that the testator
and the first applicant were
authorised to act as trustees of the trust as well as C2M,
represented by Mr Nel and, as a fourth
trustee, Mr Jurgens Tubb.
However, these letters of authority were issued by the Master three
days after the disputed resolution
was passed bearing the signatures
of the founder, the testator, the first applicant and Messrs Tubb and
Nel, the latter representing
C2M. If, as a result of this timing,
either Mr Tubb or C2M was not authorised to act as trustee when the
resolution was adopted
on 19 September 2014, its validity may be
called into question.
[18]
The
starting point is section 6(1) and 6(4) of the Trust Property Control
Act, 57 of 1988 (‘the Act’) which provide
as follows:
‘
6.
Authorisation of Trustee and Security
(1)
any
person whose appointment as trustee in terms of a trust instrument, s
7, or a court order comes into force after the commencement
of this
Act, shall act in that capacity only if authorised thereto in writing
by the Master ...
(2)
...
(3)
...
(4)
If
any authorisation is given in terms of this section to a trustee
which is a corporation, such authorisation shall, subject to
the
provisions of the trust instrument, be given in the name of a nominee
of the corporation for whose actions as trustee the corporation
is
legally liable, and any substitution for such nominee of some other
person shall be endorsed on the said authorisation.’
[19]
In
Simplex
v Van Der Merwe
[1]
it was held that trustees appointed in terms of a trust deed who
accepted appointment as such, but whom the Master had not yet
granted
statutory authority to act in that capacity, could not validly
conclude a contract so as to bind the trust. Acts performed
without
the Master’s written authorisation were null and void and could
not be cured retrospectively by the trustees themselves
after
receiving authorisation, or by the Master or the Court. Goldblatt J
pointed out that the whole scheme of the Trust Property
Control Act
‘
is
to provide a manner in which the Master can supervise trustees in the
administration of trusts properly and section 6(1) is essential
to
that purpose’
.
That decision was referred to with approval in
Lupacchino
v Minister of Safety and Security
[2]
and must be taken to be our law. Accordingly Mr Tubb was not
authorised to act as a trustee as at 19 September 2014 and his role

in the passing of the resolution must be disregarded.
[20]
Turning
to the position of the independent trustee, C2M, Mr Muller SC, on
behalf of the first respondent, sought to distinguish
its position
from that of Mr Tubb based on the fact that there was no real dispute
that C2M had been a trustee at all material
times. He founded his
argument on an interpretation of the judgment in
Metequity
and Another v NWN Properties Ltd and Others
.
[3]
In that matter van Dijkhorst J had to deal with a situation in which
a trust with two corporate trustees had instituted action
in their
names for the recovery of monies allegedly due to the trust. The
defendants raised a preliminary objection that the plaintiffs
had no
standing, since in terms of section 6(4) of Act 57 of 1988 only the
nominees of the corporate trustees could institute action.
The Court
held that the argument that only natural persons could be trustees
was without merit as all companies acted through their
directors and
officials and duties imposed upon companies necessarily had to be
complied with by the natural persons involved in
acting on their
behalf.
[21]
The
Court held further that the provisions of section 6 of the Act
provided as a regulatory and control measure that such existing

trustee could not act without the Master’s authorisation;
furthermore that the fact that in the case of corporate trustees
the
authorisation was given in the name of the nominee did not detract
from the fact that section 6(4) by the words ‘
to
a trustee which is a corporation’
,
recognised that the trustee was the corporation itself. In this
regard the Court stated:
‘
The
fact that the authorisation to act is given in the name of a nominee
does not detract from this fact. This provision is an efficacious

measure to enable the Master to direct enquiries and issue directives
to a specific natural person rather than grope about in the
mist of
corporate anonymity.’
[22]
Based
on this last passage, Mr Muller submitted that the nominee
requirement in section 6(4) was intended primarily for the
administrative
benefit of the Master, in contrast to section 6(1),
which was aimed at the protection of third parties who may interact
with the
trust. He also pointed to the fact that section 6(4) does
not prescribe – in the clear prohibitory language of section
6(1)
– that the corporation shall act as trustee only through a
nominee named in the authorisation or endorsement thereof. He relied

also on the fact that at the time of the 19 September 2014
resolution, C2M, acting through its directors, intended for Mr Nel to

act as C2M’s functionary on the board of trustees and
furthermore that the other two trustees accepted Mr Nel as such. He

contended that inasmuch as at 19 September 2014 the Master had
authorised C2M to act as trustee, and Mr Nel, as C2M’s
representative,
had signed the resolution, it had to be taken as
adopted unanimously and validly by all three authorised three
trustees.
[23]
I am unable to agree with this argument for which there appears to be
no direct or analogous authority.  By virtue of
the provisions
of section 6(4) of the Act, and judging also by the various Master’s
certificates issued in the present case,
the Master does not issue a
letter of authority to act as a trustee to a corporate trustee
without stipulating the name of the
person who will represent such
trustee. Given the provisions of section 6(4), this is entirely
understandable since once the Master
formally authorises that person
as the corporation’s nominee, it is legally liable for his or
her actions. Furthermore, if
the identity of the nominee is not known
or is in doubt this could have far-reaching consequences as regards
the validity of actions
purportedly taken by corporate trustees and
the consequences thereof for external parties dealing with the trust.
In my view the
reasons relied on by the Court in
Simplex
v Van Der Merwe supra
[4]
for holding that a trustee, not yet granted statutory authority to
act by the Master, cannot validly conclude a contract so as
to bind
the trust, apply equally to the position of a corporate trustee whose
nominee is not formally or properly authorised by
the Master. These
reasons include the factor that the whole scheme of the Act is to
ensure that the Master can effectively supervise
trustees and,
furthermore, that section 6(1) (and by extension section 6(4)) does
not exist solely for the benefit for the beneficiaries
of the trust.
Their provisions serve also the public interest by ensuring proper
written proof is available to outsiders of the
identity and authority
of trustees and, in the case of a corporate trustee, indicating the
identity of its authorised representative.
[24]
In my view, for reasons analogous to those underlying the ratio in
Simplex
, a corporate trustee cannot validly act until such
time as its chosen nominee has been authorised by a letter of
authority issued
by the Master. In particular, a corporate trustee
cannot be a valid signatory to a resolution of a trust until such
time as its
nominee has been duly authorised by the Master in terms
of section 6(4). To give any other interpretation to the relevant
provisions
of section 6 of the Act would be to invite disputes or, at
the least, confusion regarding whether a corporate trustee had
validly
acted in that capacity. This could have prejudicial
consequences both for third parties and for the Master who must
oversee the
actions of corporate trustees. Such difficulties are
illustrated in the present matter. If the interpretation contended
for on
behalf of the first respondent were adopted, the validity of
the resolution would turn on questions such as whether the existing

trustees accepted Mr Nel as the representative of the corporate
trustee, whether Mr Nel was acting
bona fide
, and a number of
other possible considerations.
[25]
It bears repeating that a corporate trustee can only act through an
authorised nominee and in order for the validity of the
corporate
trustee’s actions to be considered, the identity of its
authorised nominee must be clear and objectively determinable.
The
logical key to this question is, as in the case of natural persons
appointed as trustees, whether the Master has issued a letter
of
authority recognising the properly nominated representative of the
trustee.
[26]
The next issue to be determined is what the consequences of this
finding are vis-a-vis the corporate trustee’s action
in
purporting to pass the disputed resolution of 19 September 2014.
[27]
As at 19 September 2014, a letter of authorisation in respect of
C2M’s new nominee, Mr Nel, had not yet been issued by
the
Master. Furthermore, its previous authorised representative, Mr Els,
had tendered his resignation with effect from 30 June
2014 and he
played no role in the passing of the resolution in question. In my
view, as at 19 September 2014, C2M was an appointed
corporate trustee
but was unable to act as such since it had no authorised
representative by reason of Mr Els’ resignation
and the fact
that the Master had yet to appoint Mr Nel as its authorised nominee.
It follows further that when the resolution was
adopted only two
trustees validly participated in that decision, namely, the testator
and the first applicant.
[28]
The next question is what quorum was necessary for the resolution to
be validly adopted given that only two trustees participated
in the
decision. The argument advanced on behalf of the applicants was that
a quorum of at least three trustees was necessary for
the valid
passing of a resolution. The first respondent, on the other hand,
contended that no such quorum was required.
[29]
It is important to note, firstly, that the trust deed nowhere
prescribes a minimum number of trustees. As was pointed out on
behalf
of the first respondent, most reported cases dealing with the
question of the quorum necessary for valid action by trustees
–
a capacity defining condition – involve trust deeds with
express provisions stipulating the quorum requirements for
trustees
in office. Neither counsel was able to refer to any precedent in
which a trust deed which did not expressly provide for
a quorum of
trustees was nonetheless interpreted by a Court to mean that a
minimum number of trustees was required in order for
decisions to be
validly taken on behalf of the trust.
[30]
It is appropriate to construe the provisions of a trust deed in
accordance with the well-known rules regarding the interpretation
of
written contracts. These are summarised in
Endumeni
[5]
as follows:
‘
Whatever
the nature of the document, consideration must be given to the
language used in the light of the ordinary rules of grammar
and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material known to
those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the light of
all these
factors.’
[31]
On behalf of the applicants, Mr Olivier SC’s arguments for a
minimum quorum of three relied on a reading of clause 1.1.7
of the
trust deed read with clauses 5.2, 5.3 and 7. Clause 1.1.7 defines
‘
the trustees’
to mean and include the first
trustees or their successors in title from time to time. As
mentioned, three trustees were initially
appointed, namely, the
testator, the first applicant and Mr De Vries. Clause 5.2 provides
that trustees are empowered (‘
bevoeg’
) to nominate
a person to be appointed as trustee to replace any trustee who has
vacated his or her position. It reads in full as
follows:
‘
5.2.
Die Trustees sal bevoeg wees, onder skriftelike dokumente om ‘n
person te nomineer om as Trustee aangestel te word om
enige Trustee
te vervang wat sy amp as Trustee mag verlaat het vir enige rede
hoegenaamd. Die Trustee (sic) sal die reg hê
om by die
daaropvolgende skriftelike dokument enige nominasies so gemaak te
verander of te wysig, voordat effek aan sodanige nominasie
gegee is.
Die Trustees sal verplig wees om sodanige aanstelling as wat nodig
mag wees, om effek to gee aan sodanige nominasie in
terme van hierdie
sub-klousule, te maak’.
[6]
[32]
Clause 5.3 and 5.6 are also relevant and read as follows:
‘
5.3
Die Trustees, nieteenstaande enige iets tot die teendeel hierin
vervat, sal te alle tye die reg hê om sodanige verdere
Trustee
of Trustees te nomineer en aan te stel as wat hulle mag bepaal.’
[7]
‘
5.6.
In die geval van die oorlye of versuim andersins van Oscar Peter
Alexander de Vries om as Trustee op te tree, sal enige van
die
vennote van die firma van Rekenmeesters, Greenwoods, ten tye van
sodanige oorlye of versuim, aangestel word om onmiddelik op
te tree
as Trustee ten opsigte van hierdie Trustakte.’
[8]
[33]
In my view clause 5.2 is an empowering provision which, on its clear
wording, does not oblige the trustees, subject to the
provisions of
clause 5.6 to which I will return, to replace every trustee who has
vacated his office for whatever reason. The obligatory
provisions in
clause 5.2 relate to the procedure to be followed where there has
been a proper nomination of a replacement trustee
by the existing
trustees. Clause 5.3 provides for the appointment of multiple
trustees but makes no direct reference to a minimum
quorum.
[34]
Clause 5.6 stands as an exception to the dispensation which I have
set out above. Seen in context it amounts to a stipulation
by the
founder and the original trustees of the trust that there must always
be an ‘
independent’
trustee. The sub-clause speaks
in peremptory terms of the appointment of a replacement in the event
that Mr De Vries vacated his
position as a trustee. Such
interpretation is borne out by the fact that an ‘
independent’
trustee i.e. non family trustee, appears to have served ever since
the trust was established. Although not entirely clear, it would

appear that at some point in time C2M became the independent trustee
successor to a Greenwoods partner.
[34]
Another provision relied on by the applicants was clause 5.3 which
provides that the trustees at all times retain the right
to nominate
further trustees as they may consider appropriate in their
discretion. Notably, however, clause 5.3 is couched in permissive

terms. Finally, Mr Oliver called in aid clause 7 which reads as
follows:
‘
7.
Besluite van die Trustees
Geen
besluit deur die Trustees geneem sal geldig wees nie, tensy die
trustees by wyse van meerderheidsbesluit daartoe toegestaan
het.’
[9]
[35]
Having regard to all these provisions it would appear that the
founder and the original trustees initially envisaged that there

would be at least two trustees one of whom would at all times be an
‘
independent’
trustee. More than this cannot be
sensibly read into the provisions of the trust deed. In my view,
looking at the trust deed as
a whole, there is no room to interpret
it as impliedly requiring a minimum of three trustees at all times
and, in particular, for
valid resolutions to be passed.
[36]
I have found that, although the trust deed does not make provision
for a minimum quorum of three trustees, when the disputed
resolution
was passed there were in fact three properly appointed trustees,
namely, the testator, the first applicant and C2M,
the corporate
trustee. Since two of these trustees endorsed the resolution in
question there was compliance with clause 7 of the
trust deed which
requires any decision of the trustees to be passed by a majority. In
the light of these findings it is unnecessary
to address Mr Muller’s
alternative argument on behalf of the first respondent, namely that
the Master’s endorsement
of the authority granted to C2M to
also reflect a substitution of its nominee was not a prerequisite for
C2M to validly act as
a trustee. As I have indicated, however, in my
view this does not correctly reflection the legal position. Whilst
C2M was a validly
appointed trustee at the relevant date, and
recognised as such by the Master, it was unable to act as such at the
trustees’
meeting because of a lack of an authorised nominee
formally recognised by the Master through a letter of authority.
Acceptance
of the benefits by the beneficiaries
[37]
This leaves the remaining issue, namely, whether the resolution
passed by the two trustees on 20 September 2014 lacked validity

inasmuch as the existing beneficiaries had accepted the benefits
provided by the trust but had not consented to the amendment of
the
trust deed.
[38]
It is well established that the founder of an inter vivos trust i.e.
one created between living persons, may reserve a right
to revoke or
vary the terms of the trust deed during his or her lifetime. The
founder may also confer on trustees inter vivos the
right to vary the
trust, at least within limits. See
Honore the South African Law of
Trusts
, 5
th
ed, page 492 and the authorities cited in
footnote 4.
[39]
The power of a founder to revoke or vary the terms of a trust deed
with the consent of the trustees is established in two decisions
of
the Appellate Division namely
,
Commissioner for Inland Revenue Appellant v Estate Crewe and Another
Respondent
[10]
and
Crookes
N.O. and Another v Watson and Others
.
[11]
However a founder’s power, with the consent of the trustee or
trustees, to revoke or vary an inter vivos trust is limited
when a
beneficiary has already accepted benefits conferred under the trust.
In reaching this conclusion in
Crookes
Centlivres CJ reasoned that: ‘
A
trust deed executed by a settlor and a trustee for the benefit of
certain other persons is a contract between the settlor and
trustee
for the benefit of a third person ... and the settlor and the trustee
can cancel the contract entered into between them
before the third
party has accepted the benefits conferred on him under the settlement
since the beneficiary has no right until
acceptance
’.
[40]
This issue was raised in the matter of
Potgieter
and Another v Potgieter NO and Others
.
[12]
That matter too concerned an inter vivos trust with the central issue
in the appeal being the question of whether a purported variation
of
a trust deed pursuant to an agreement between the founder and the
trustees of the trust was legally binding.
[41]
Brand JA on behalf of the Court stated as follows in paragraph 18:
‘
Logic
dictates that I deal with the cross-appeal first. This is so because,
if the variation agreement were found to be valid and
enforceable,
that would be the end of the matter. … As I see it, the legal
principles that find application are well settled
and I did not
understand any of the parties to contend otherwise. I believe these
principles can be formulated thus: a trust deed
executed by a founder
and trustees of a trust for the benefit of others is akin to a
contract for the benefit of a third party,
also known as a stipulatio
alteri. In consequence, the founder and trustee can vary or even
cancel the agreement between them before
the third party has accepted
the benefits conferred on him or her by the trust deed. But once the
beneficiary has accepted those
benefits, the trust deed can only be
varied with his or her consent. The reason is that, as in the case of
a stipulatio alteri,
it is only upon acceptance that the
beneficiaries acquire rights under the trust (see, for example,
Crookes NO and Another v Watson
and Others
1956 (1) SA 277
(A) at
285F; Ex parte Hulton
1954 (1) SA 460
(C) at 466A – D; Hofer
and Others v Kevitt NO and Others
[1997] ZASCA 79
;
1998 (1) SA 382
(SCA) ([1997]
4 All
SA 620)
at 386G – 387E;  G Cameron, De Waal, Kahn, Solomon
& Wunsh Honoré: South African Law of Trusts 5 ed (2002)

para 304).’
[42]
The Court in
Potgieter
dismissed the respondent’s
argument that the original beneficiaries had not accepted the
benefits conferred upon them in
the original trust deed. In making
this finding the Court was primarily influenced by a provision in the
preamble to the original
trust deed which reads as follows:
‘
and whereas the beneficiaries have indicated
(Afrikaans
– ‘aangedui’)
their acceptance of the benefits
conferred upon them in terms hereof
’. In so doing the Court
found that the ‘
clear meaning’
of the second
pronouncement thus recorded, was that the deceased, who was their
father and natural guardian as they were still
minors at the time,
had indicated his acceptance of the benefits conferred upon them, as
the sole capital beneficiaries, on their
behalf.
[43]
In the present matter clause 23 of the trust deed provides for
amendments and reads as follows:
‘
23.
Die terme van die Trustakte mag gewysig word deur die Trustees te
enige tyd en te enige wyse op voorwaarde dat sodanige wysiging

toegestem word toe deur CHRISTIAAN JOHANNES JOUBERT (the testator) in
sy diskresie en op voorwarde dat hy op die tyd van sodanige
wysiging
nog lewe. In die geval dat CHRISTIAAN JOHANNES JOUBERT reeds oorlede
is, mag die terme van hierdie Trustakte gewysig word
te enige tyd op
voorwaarde dat sodanige wysiging eenparig toegestem word toe deur die
Trustees en die Begunstigdes in esse.’
[13]
[44]
The testator was a trustee at the time the resolution was passed and
was a signatory thereto. As I have as already found, since
two of the
three authorised trustees were signatories to the resolution it would
appear on the face of it that the amendment was
validly effected in
terms of the trust deed. However, on behalf of the applicants, it was
contended that this was not the case
since the trust’s
beneficiaries had by then accepted the benefits under the trust or
had such benefits accepted on their
behalf. This raises the issue of
whether in fact the beneficiaries had accepted their benefits at the
relevant date.
[45]
In support of his argument that all beneficiaries had accepted their
benefits under the trust deed, Mr Olivier cited its preamble

recording that the founder intended to make an irrevocable donation
to the beneficiaries by means of the trust and that the trustees

accepted the benefits granted in terms of the trust deed both in
their own right and, in the case of the testator, as a representative

for other beneficiaries. This is, however, not what the preamble
records since it reads as follows:
‘
Weshalwe
die Skenkers
(sic)
‘
n
onherroepbare skenking wil maak tot voordeel van die Skenkers
(sic)
se
begunstigdes, soos hierin verwys na en soos hierna meer volledig
uiteengesit, tot welke doeleinde die Skenkers (sic) van voorneme
is
om ‘n Trust tot stand te bring op die terme en voorwaardes soos
hieronder uitgeensit;
Weshalwe
CHRISTIAAN JOHANNES JOUBERT (the testator), PAUL JOZUA JOUBERT (JNR)
EN OSCAR PETER ALEXANDER DE VRIES toegestem het om
op te tree as
Trustees en die voordele aan hulle hiervolgens verleen te aanvaar’.
[46]
Accordingly, as I read these provisions, at best for the applicants,
the testator and the first applicant accepted the benefits
conferred
upon them in terms of the trust deed.  There is no reference in
the trust deed, express or implied, to the testator’s
three
other children, Liesl Joubert, Christiaan Johannes Joubert (Jnr) and
Madri Joubert (the second, third and fourth respondents)
accepting
any benefits or to the testator accepting such benefits on their
behalf.
[47]
At a factual level, it was stated by the first applicant that at the
time the trust was established the third and fourth applicants
were
minors. An attempt was made by the applicants to rely on a loan
allegedly made by the trust to the fourth applicant according
to the
2014 financial statements, but the first respondent’s opposing
affidavit established conclusively that no such loan
had been made.
Apart from that, no detail was furnished as to how the second to
fourth applicants accepted the benefits or how
these may have been
accepted on their behalf when they were minors.
[48]
The high water mark of the applicants’ case regarding the
acceptance of benefits by the beneficiaries was the statement
in the
first applicant’s founding affidavit that ‘
the
benefits conferred by the trust deed were accepted by or on behalf of
the original beneficiaries before 19 September 2014’.
This
broad and unsubstantiated claim was denied by the first respondent in
her opposing affidavit. In the face of this denial the
applicants
were only able to riposte, in the first applicant’s reply, that
‘
there is no indication that the benefits were not accepted
by the testator for or on behalf of the minor beneficiaries’
.
As I have already pointed out, the preamble to the trust deed is
equivocal at least as far as an acceptance of benefits by or
on
behalf of the second, third and fourth applicants is concerned.
[49]
Accordingly the applicants have failed to establish, at least
vis-à-vis the second, third and fourth applicants, that
they
indeed accepted the benefits conferred upon them by the trust deed.
At best for the applicants, two of the five beneficiaries,
namely,
the testator and the first applicant accepted their benefits by
virtue of their appointment as founding trustees and the
terms of the
preamble to the trust deed. However, both of them consented to the
variation by signing the September 2014 resolution
in their
capacities as trustees and beneficiaries. In both cases each of their
signatures appears above the description of their
capacity, namely,
‘
Trustee/Begunstigde’
. It was the second, third
and fourth applicants who did not consent to the variation effected
by the resolution but no evidence
was presented of any of them having
accepted their benefits prior to 19 September 2014.
[50]
In the result, accepting that it was of legal prerequisite that the
consent of any beneficiary who had accepted his or her
benefits under
the trust deed was necessary before the 19 September 2014 variation
to the trust deed, no case has been made out
that the second to fifth
applicants, who now object to the variation, had accepted their
benefits by the relevant date.
[51]
Had the evidence indicated that the second to fourth applicants
accepted their benefits under the trust deed prior to the 19

September 2014 resolution, the interesting question would arise
whether the consent of such beneficiaries to the resolution was
in
fact necessary.  There is a persuasive argument – based on
the terms of the trust deed, the principles underlying
a
stipulati alteri
,
and apparently supported by
Potgieter’s
case
[14]
- that such consent
was not necessary.
[52]
In the first place clause 23 of the trust deed specifically reserved
to the testator and the trustees a wide power to vary
its terms
during the former’s lifetime.  The further provision in
the clause that, after the testators death, any variation
to the
trust deed can only be effected with the consent of all
beneficiaries, would appear to emphasise that their consent was
not
necessary during the lifetime of the testator.
[53]
Secondly, it is in the very nature of a
stipulation alteri
that the third party who accepts the benefit of the contract between
the
stipulans
and the
promittens
cannot do so
selectively, but subject also to any limitations and/or onerous
provisions.  Thus, in the present circumstances,
where the
founder bestowed certain benefits on members of his family through
the trust deed but reserved to the testator and trustees
a wide power
of variation of its terms, the beneficiaries would accept their
benefits subject to that limitation i.e. their benefits
could be
diminished, or perhaps even lost, pursuant to a subsequent variation
in the trust deed where this carried the approval
of the testator and
the trustees.
[54]
In regard to
Potgieter’s
case, Professor Claassen has argued that it is not authority for the
proposition that, even where the trust deed empowers the trustees

and/or founder to amend the deed, the common law requirements for
such amendment must still be met where the beneficiaries have

accepted their benefits.
[15]
Professor Claasen contends that
Potgieter
turned entirely on the common law and not on the question of whether
the common law should also be complied with where the trustees
have
amended the trust deed in accordance with the power of amendment they
enjoyed in terms of the deed.  Professor Claasen
concludes that
in such circumstances the founder or trustee enjoying an express
power of variation, can exercise same to the detriment
of a
beneficiary notwithstanding that such person has accepted their
benefits under the trust deed since this is the contract to
which the
beneficiary became party by “accepting” his or her
benefits.
[55]
However as I have stated, given the finding that the second to fourth
applicants failed to prove that they accepted their benefits
under
the trust deed, this question does not need to be determined.
[56]
In the result, the conclusion is inescapable that the resolution of
19 September 2014 in terms of which the first respondent
was added as
a capital and income beneficiary, is unassailable. In short, not only
did the testator agree to the variation of the
trust deed but first
applicant, in his capacity as a trustee, was also party to the
resolution which was validly taken by a majority
of the trustees.
Even assuming that consent to the variation of those beneficiaries
who had accepted their benefits was necessary,
the second to the
fourth applicants have failed to make out a case they had so accepted
their benefits in circumstances where this
was put in dispute.
[57]
The relief sought by the applicants in terms of prayer 1.1 and 1.2,
namely, that the purported amendment of the trust deed
must be
declared null and void and a declaration that the first respondent is
neither an income nor a capital beneficiary of the
trust, must
therefore be dismissed. The relief sought in prayer 1.3, namely that,
notwithstanding the provisions in his will to
the contrary, the
testator did not have the power or authority in terms of the trust
deed to determine whether the income derived
from the assets of the
trust should be divided or applied was never in contention and was
not disputed by the respondents. This
conclusion is borne out by the
clear provisions of the trust deed. The first respondent did not
object to such an order being made
provided there were no cost
implications
[58]
Costs must follow the event and be awarded to the first respondent.
In this regard I can see no justification for an order
that the costs
should be costs in the estate.
[59]
In the result the following order is made:
1.
The
application for the relief in prayers 1.1 and 1.2 of the notice of
motion is dismissed with costs
2.
Such
costs are those incurred by the first respondent and are to be borne
by the applicants jointly and severally, the one paying
the others to
be absolved, and shall include the costs of two counsel where so
employed. These costs will include the costs of
the postponement on
16 November 2018.
3.
The
declaratory relief sought in paragraph 1.3 is granted.
____________________
BOZALEK J
For
the Applicants: Adv L Olivier (SC)
For
1
st
Respondent: Adv J Muller (SC)
Adv
H Du Toit
[1]
1996 (1) SA 111 (W).
[2]
2010 (6) SA 457 (SCA).
[3]
1998 (2) SA 554 (T).
[4]
Note 1 above.
[5]
Natal Joint Municipal Pension
Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) para 18.
[6]
Agreed English translation
“5.2 The Trustees shall have the power, under written
documents, to nominate a person to be appointed as Trustee to
replace
any Trustee why may vacate his office as Trustee for any
reason whatsoever.  The Trustee (sic) shall have the right to
vary
or amend by subsequent written document any nominations so made
prior to any effect having been given to such nomination.
The
Trustees shall be obliged to make such appointment as may be
necessary to give effect to such nomination in terms of this

sub-clause.”
[7]
Agreed English translation
“5.3 The Trustees, notwithstanding anything to the contrary
contained herein, shall at all times have the right to appoint
such
further Trustee or Trustees as they may determine.”
[8]
Agreed English translation
“5.6 In the event of the death or failure otherwise of Oscar
Peter Alexander de Vries to act as Trustee, any of the partners
of
the firm of Accountants, Greenwoods, at the time of such death or
failure, shall be appointed to act immediately as Trustee
in respect
of this trust deed.”
[9]
Agreed English translation
“7. No decision taken by the Trustees will be valid, unless
the Trustees agreed thereto by majority decision.”
[10]
1943 AD 656.
[11]
1956 (1) SA 277 (A).
[12]
2012 (1) SA 637 (SCA).
[13]
Agreed English translation
“23 The terms of the trust deed may be amended by the Trustees
at any time and in any manner on condition that such amendment
is
consented to by CHRISTIAAN JOHANNES JOUBERT in his discretion and on
condition that he is still alive at the time of such
amendment.
In the event that CHRISTIAAN JOHANNES JOUBERT has already passed
away, the terms of this trust deed may be amended
at any time on
condition that such amendment is consented to unanimously by the
Trustees and the Beneficiaries in esse.”
[14]
Supra
[15]
Die Wysiging Intervivos –
Trust Aktes: Evalueerende Perspektief op die Potgietersaak, Acta
Juridica 201 (4), page 243.