Ganie and Others v Ganie and Others (9657/2011) [2011] ZAKZDHC 66 (23 December 2011)

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[2011] ZAKZDHC 66
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Ganie and Others v Ganie and Others (9657/2011) [2011] ZAKZDHC 66 (23 December 2011)

IN THE KWAZULU-NATAL HIGH COURT DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NUMBER: 9657/2011
IN THE MATTER BETWEEN
HAROUN SIDDY GANIE
…..............................................................
FIRST
APPLICANT
ASIF MS GANIE
…......................................................................
SECOND
APPLICANT
AFZAL MS GANIE
….......................................................................
THIRD
APPLICANT
YUSUF MS GANIE
…...................................................................
FOURTH
APPLICANT
FARAZANA JHAVARY
…................................................................
FIFTH
APPLICANT
and
FAIZAL MAHOMED SIDDI GANIE
…..........................................
FIRST
RESPONDENT
FAWZIA AMOD SACOOR
…..................................................
SECOND
RESPONDENT
THE MASTER OF THE HIGH COURT
PIETERMARITZBURG
…............................................................
THIRD
RESPONDENT
THE REGISTRAR OF DEEDS
….............................................
FOURTH
RESPONDENT
JUDGMENT
Delivered on 23 December 2011
McLAREN J
In this opposed application, Mr Shaw and Mr Combrinck appeared for
the Applicants, while Mr A. Choudree represented the First
and
Second Respondents. The Third Respondent was not legally represented
at the hearing before me on 12 December 2011. At my
request, Ms
Moatlhudi (Deputy Master) and Ms Moodley (Assistant Master) were
present at court on 12 December 2011 and answered
certain questions
which I put to them. The other official at the office of the Third
Respondent whose presence I required at
court, is Ms Davel
(Examiner), but, she was due to undergo an operation and could not
attend the hearing. I mentioned the names
and the positions of these
three officials in descending order of seniority.
2. On 30 April 1981, Mahomed Siddy Ganie (“the testator”)
made a will and appointed his brother (the First Applicant)
and his
son (the First Respondent) as his executors and as administrators of
his estate. In clause 4 of his will the testator left
his entire
estate to his “administrators in trust for the uses, interests
and purposes hereinafter mentioned”. The
testator stipulated
that the trust which he created, would endure for a period of 20
years and that the said executors and administrators
must then
distribute the trust assets as follows: one half had to be divided
amongst his children from his first wife and the other
half had to be
divided amongst his children from his second wife. In each instance
the said share had to be divided amongst the
said children according
to the Islamic law of succession.
3. The testator died on 25 October 1988 and the First Applicant and
the First Respondent were appointed as the trustees of the
trust on
26 January 1990. It was common cause that the said 20 years had
lapsed and that the trust assets must be divided amongst
the
testator’s beneficiaries, who are the Second, Third, Fourth and
Fifth Applicants (children of the testator’s first
wife) and
the First Respondent, the Second Respondent and Farida Ahmed
(children of the testator’s second wife).
4. At the time of his death the testator owned a building which had
been erected on two immovable properties, namely Portion 1
of Erf 121
Tongaat and Rem of Erf 121 Tongaat (“the property”). It
was common cause that, as part of their duties as
trustees, the First
Applicant and the First Respondent had to sell the property after the
lapse of the said 20 years, in order
to distribute the proceeds of
the sale amongst the said beneficiaries.
5. On 25 October 2008 the trustees sold the property to KNA Property
Investments CC for a price of R6m and D. K. Singh, Vahed and
Partners
were appointed as conveyancers by the trustees to attend to the
transfer of the property to the purchaser. This agreement
was the
subject matter of litigation in this court under case number
4203/2010. In that application, the purchaser claimed transfer
of the
property and other relief from the trustees (cited as the First and
Second Respondents) and the said conveyancers, cited
as the Third
Respondent. The Registrar of Deeds was the Fourth Respondent.
6. On 3 May 2011 an order was made by consent in case number
4203/2010. By that time the Second, Third, Fourth and Fifth
Applicants
in this application had been given leave to intervene in
case number 4203/2010. The terms of the said consent order can be
summarised
as follows:
6.1 The trustees and the said conveyancers were directed to take all
the necessary steps to transfer the property to the purchaser,

against payment of R6.5m.
The trustees were directed to pay the purchaser’s costs.
The costs of the trustees and of the intervening beneficiaries and
of the daughters of the testator (the present Second Respondent
and
the said Ahmed) had to be paid by the trust.
On 3 May 2011 a so-called “supplementary agreement” was
concluded which regulated the manner in which payment of
the
increased price of R6.5m for the property had to be secured. This
agreement contained the following provision, which relates
to two
guarantees and which refers to the agreement of sale, dated 25
October 2008:
“
In the event of the guarantees not being
provided by 20 May 2011, the agreement of purchase and sale shall be
of no further force
and effect, and be deemed to have been
cancelled.”
8. The court order and the supplementary agreement, referred to in
paragraphs 6 and 7, respectively, above, gave rise to further

litigation in this court, namely in case number 5865/2011. This
litigation was brought by the four children of the testator’s

first wife (i.e. the Second, Third, Fourth and Fifth Applicants,
cited above) against the purchaser of the property, the trustees
and
the said conveyancers, cited as First, Second, Third and Fourth
Respondents, respectively. The testator’s brother (i.e.
the
First Applicant, cited above) is the Second Respondent and the
testator’s son (the First Respondent, cited above) is
the Third
Respondent. The application papers in case number 5865/2011 run into
268 pages, but the following is a very brief summary
of what that
case is about: the Applicants aver that the said guarantees were not
furnished at all, let alone timeously; the Second
Respondent sides
with the Applicants; the First Respondent and the Third Respondent
aver that proper guarantees were timeously
delivered; the Fourth
Respondent said that it abides the decision of the Court and
attorneys wrote on behalf of “Farida Ahmed
and Fawzia Sacoor
(and said) we record that our clients are not prepared to participate
in the proceedings … “
9. The application in case number 5865/2011 was issued and brought as
a matter of urgency on 23 May 2011. For reasons which will
become
apparent hereinafter, I quote paragraphs 1 – 3 of the Notice of
Motion:
“
1.
That a
Rule Nisi
do hereby issue calling upon the Respondents
to show cause on
JUNE 2011
why the following Order should not
be granted:
1.1 that the written agreement of sale concluded on 25 October 2008
between the First Respondent on the one hand and the Second
and Third
Respondents on the other hand be and is hereby declared cancelled;
1.2 that the First, Second and Third Respondents be and are hereby
interdicted from effecting transfer of the immovable properties
and
taking the steps contemplated in
paragraphs 1 and 2
of the
Court Order dated 3 May 2011 (annexed to the founding affidavit
marked ‘AG9’);
1.3 that a public auctioneer appointed by the Applicants,
alternatively
the Sheriff of the High Court be and is hereby
authorised to do all things necessary to sell the immovable
properties described
as:
Portion 1 of Erf 121, Tongaat, Registration Division FU, Province
of KwaZulu-Natal, in extent 772 (seven hundred and seventy
two)
square metres, which property is situated at 3 Watson Street,
Tongaat; and
Rem of Erf 121, Tongaat, Registration Division FU, Province of
KwaZulu-Natal, in extent 1814 (one thousand eight hundred
and
fourteen) square metres, which property is situated at 1 Watson
Street, Tongaat;
1.4 that the Fourth Respondent be and is hereby authorised to
transfer the immovable properties sold in terms of paragraph 1.3

above and to divide the proceeds in accordance with the provisions of
the will of the late Mahomed Siddy Ganie;
1.5 that the costs of the application be paid by any Respondent
opposing this application.
2.
That the relief set out in paragraph 1.2 above operate as interim
relief pending the outcome of the application.
3.
That any Respondent intending to oppose confirmation of the
Rule
Nisi
herein shall give notice of such opposition and file any
affidavit in support thereof by
JUNE 2011
.”
10. On 23 May 2011 the following order was made by consent in case
number 5865/2011:
“
1. That it is recorded that the second
respondent and the third respondent each undertakes to instruct the
fourth respondent not
to take any steps to effect transfer of the
properties referred to in the notice of motion to the first
respondent and not to take
any steps to cause such transfer to be
effected.
2. That accordingly the fourth respondent is ordered, until further
order, not to take any steps to effect such transfer.
3. That any respondent wishing to oppose the grant of an order in the
terms set forth in paragraph 1.1 to 1.5 of the order set
forth in the
Notice of Motion shall give notice of intention so to oppose and file
any affidavit in opposition by 17
th
June 2011.
That the application is adjourned sine die.
That the costs are reserved.”
11. Case number 5865/2011 was set down for hearing before me on 12
December 2011. On that day Mr Shaw and Mr Combrinck appeared
for the
Applicants and Mr Kemp represented the First Respondent. There was no
appearance for the Second, Third and Fourth Respondents.
I made an
order by consent, the matter having been settled.
The Applicants’ Notice of Motion in this application was
issued on 29 August 2011 and on that day the following order was

made:
“
1. That a rule nisi do hereby issue calling
upon the Respondents to show cause on the 19
th
day of SEPTEMBER 2011 why the following Orders should not be granted:
1.1 That the Master of the High Court’s appointment of the
Second Respondent as trustee in the Testamentary Trust , created
in
terms of Clause 11 of the Will of the Late Mahomed Siddi Ganie, be
and is hereby set aside;
1.2 That the First Applicant be and is hereby reinstated as trustee
of the trust;
1.3 That the First and Second Respondents be and are hereby
interdicted from seeking the removal of the First Applicant as
trustee
other than by the institution of legal proceedings on notice
to the First Applicant;
1.4 That the First and Second Respondents be and are hereby
interdicted from:
withdrawing or causing to be withdrawn or in any way transacting
with the funds standing to the credit of the M S Ganie Trust
in
its bank account held with Standard Bank, Albert Street Branch,
Durban under account number 250472791;
taking any steps to effect transfer of the immovable property
described as Portion of Erf 121 Tongaat and Rem of Erg 121,

Tongaat to KNA Property Investments CC;
1.5 That the Master of the High Court be and is hereby directed to
make available to the Applicants, within fifteen (15) days of
the
grant of this order, a record of the proceedings relating to its
decision to remove the First Applicant as trustee in the Estate
Late
Siddi Ganie as is recorded in annexure ‘HMT3’, ‘HMT4’
and ‘HMT5’ to the Founding Affidavit
herein;
1.6 That the Applicants be and are hereby granted leave to supplement
their papers upon receipt of such record;
1.7 That the costs of the application be borne by the First and
Second Respondents or if deemed appropriate, by the Office of the

Master of the High Court, on the scale as between attorney and client
such to include the costs consequent upon the employment
of two
counsel.
2. That the relief set out in paragraphs 1.3, 1.4 and 1.5 above,
operate as interim relief with immediate effect pending the outcome

of the application.”
13. On 19 September 2011 this application was adjourned by consent to
3 October 2011; the return date of the rule
nisi
was extended
accordingly and costs were reserved. On 3 October 2011 this
application was adjourned by consent to 19 October 2011;
the
Applicants were directed to deliver any replying affidavit by 17
October 2011 and costs were reserved.
14. On 17 October 2011 the Applicants delivered a notice relating to
“their affidavit in reply and in support of further
orders
sought by way of urgent interim relief”.
15. On 19 October 2011 the matter came before Vahed AJ and he made to
following order (which contains an error in paragraph 1,
inasmuch as
the case number should clearly have been “5865/2011”):
“
1. A rule nisi shall issue returnable on 12
December 2011, that date being on the Opposed Roll when this matter
will be heard together
with the application under case number
5861/2011.
2. In terms of rule nisi, the first and second Respondents are to
show cause why an order should not be made in the following terms:
(a) That the first and second respondents be and are hereby
interdicted from exercising their powers of trustee and in any way

dealing with the affairs of the testamentary trust created in terms
of clause 11 of the Will of the late Mahomed Siddy Ganie.
(b) That attorneys D K Singh Vahed & Partners by and is (
sic
)
hereby authorised, from monies held to the credit of the said trust,
to pay any outstanding accounts payable in respect of electricity,

water and rates in respect of the trust properties.
(c) That Wakefields (Pty) Limited be and is hereby authorised to:
(i) commence the collecting of rental in respect of the trust
properties;
(ii) hold such monies to the credit of the said trust until otherwise
ordered;
(iii) administer the affairs of the property of the trust, such to
include any necessary repairs and maintenance.
(d) That the first respondent be and is hereby directed to render to
the applicants, within fourteen (14) days of the grant of
this order,
an accounting in respect of the disbursements made from the trust
bank account number 250472791 in the name of M S
Ganie Trust held
with Standard Bank from 16 August 2011 to date.
3. The provisions of 2a, 2b and 2c shall operate as interim relief
pending the final resolution to this matter.
4. The first and second Respondents are given leave to anticipate the
return day of the rule nisi on 48 hours’ notice to
the
Applicants.
5. Should the matter not be anticipated, the first and second
Respondents are directed to file their answering affidavits within
14
days of today’s date and the Applicants are directed to file
their replying affidavits, if any, within 7 days thereafter.”
16. The next step in the feast of litigation occurred on 31 October
2011 when the First and Second Respondents in this application
gave
notice of their intention to anticipate the return date (i.e. 12
December 2011) and to make application on 9 November 2011
for the
following relief:
“
for the purpose of discharging paragraphs 2
(a) and 2 (b) of the Rule granted on 19 October 2011 and the
engraftment of additions
to paragraph (c) and for the further urgent
interim relief set out in the Order set out hereunder:
[1] That the First Applicant is interdicted and restrained from
exercising his powers as a Trustee and in any way dealing with
the
affairs of the Testamentary Trust created in terms of Clause 11 of
the Will of the Late Mohamed Siddy Ganie;
[2] That the First Applicant is interdicted from withdrawing or
causing to be withdrawn or in any way transacting with the funds

standing to the credit of M S Ganie Will Trust in its bank account
held with Standard Bank, Albert Street Branch, Durban, under
account
number 250472791;
[3] That attorneys D K Singh Vahed & Partners are hereby ordered
to pay all monies held to the credit of the said Trust to
Wakefields
(Pty) Limited forthwith;
[4] That Wakefields (Pty) Limited be and is hereby authorised to pay
any outstanding accounts payable in respect of electricity,
water,
rates and VAT in respect of the Trust properties from monies held to
the credit of the said Trust;
[5] That D K Singh Vahed & Partners are hereby directed to render
to the First and Second Respondents within 14 days of the
grant of
this Order, and accounting in respect of income received and
disbursed (
sic
) made from the monies held to the credit of the
Trust.
[6] That the Applicants be ordered to pay the costs of this
application jointly and severally, the one paying the other to be
absolved.”
17. On 9 November 2011, Lopes J made an order in the following terms
in this application:
“
The rule granted by Vahed AJ at Durban on
the 19
th
October 2011 is extended to 12
th
December 2011.
Paragraph 2(a) of that order is to continue.
Paragraph 2(b) is deleted and replaced with: ‘that attorneys D
K Singh Vahed & Partners are ordered to pay all monies
held to
the credit of the said trust to Wakefields (Pty) Ltd forthwith’.
Paragraph 2(c) is to continue save that there will be an additional
sub-para (iv) which will read ‘to include payments of

outstanding accounts payable in respect of electricity, water, rates
and VAT in respect of the said properties held to the credit
of the
said Trust’.
Paragraph 2(d) is to continue save that ‘Applicant’ will
read ‘Master’.
Paragraph 3 will continue.
Paragraph 4 is replaced with the following: ‘The first
applicant is interdicted and restrained from purporting to exercise

any powers as a trustee and in any way dealing with the affairs of
the testamentary Trust created in terms of Clause 11 of the
will of
Mohamed Siddy Ganie’.
Paragraph 5 will read: ‘The first applicant is interdicted from
withdrawing or causing to be withdrawn or in any way transacting
with
the funds standing to the credit of the MS Ganie Will Trust in its
bank account held with Standard Bank, Albert Street branch,
Durban in
account number 250472791’.
Paragraph 6 will read ‘D K Singh Vahed & Partners are
directed to render to the Master within 14 days of the grant of
this
order an accounting in respect of income received and disbursed (
sic
)
made from monies held to the credit of the Trust’.
Paragraph 7 will read that the costs of this application are reserved
for the decision of the court ultimately hearing the matter
on 12
th
December 2011.”
18. In my preparation for the hearing of this application, I had the
benefit of the assistance of counsel’s comprehensive
heads of
argument, for which I thank them. At the commencement of the hearing,
counsel agreed that:
18.1 The real issue, which had to be decided first, is the validity,
or otherwise, of the Third Respondent’s removal of the
First
Applicant as a trustee.
18.2 If the said issue is decided in favour of the Applicants, the
Third Respondent’s appointment of the Second Respondent
as a
trustee must be set aside. I agree with this view because it was
clearly not the testator’s intention that there should
be more
than two trustees and the only reason for the Second Respondent’s
appointment as a trustee, is the removal of the
First Applicant as a
trustee.
19. Against this backdrop, I turn to a consideration of the real
issue, namely the validity, or otherwise, of the Third Respondent’s

removal of the First Applicant as a trustee in the testator’s
trust.
20. The Third Respondent’s power to remove any trustee from
office is found in section 20 of the Trust Property Control Act,
57
of 1988 (“the Act”). It was common cause that the only
relevant provision of section 20 is sub-section (2)(e), in
terms of
which a “trustee may at may time be removed from his office by
the Master if he fails to perform satisfactorily
any duty imposed
upon him by or under this Act or to comply with any lawful request of
the Master”.
It is a convenient time to refer to certain other sections of the
Act.
Section 9 (1) provides that “a trustee shall in the performance
of his duties and the exercise of his powers act with the
care,
diligence and skill which can reasonably be expected of a person who
manages the affairs of another”.
Section 19 provides that “if any trustee fails to comply with a
request by the Master in terms of section 16 (
the heading of which
is, “Master may
call upon a trustee to account”
)
or to perform any duty imposed upon him by the trust instrument or by
law, the Master or any person having an interest in the
trust
property may apply to the court for an order directing the trustee to
comply with such request or to perform such duty”.
Section 23 provides that “any person who feels aggrieved by an
authorization, appointment or removal of a trustee by the
Master or
by any decision, order or direction of the Master made or issued
under this Act, may apply to the court for relief, and
the court
shall have the power to consider the merits of any such matter, to
take evidence and to make any order it deems fit”.
21. The founding affidavit in this application was deposed to by Mr
Timol, who is the attorney representing the Applicants. Timol

explained that the First Applicant was overseas at the time when this
application was launched and averred that he was duly authorised
to
act on behalf of the First Applicant. The affidavit evidence as a
whole satisfies me that Timol had the necessary authority
from the
First Applicant to institute this application.
22. Later in this judgement, I will carefully examine how it came
about that the First Applicant was removed as a trustee and why
he
was so removed. I think it will make for an easier understanding of
the judgment if I quote fairly extensively from Timol’s

affidavit in which he set out the relevant facts and made certain
submissions as follows:
“
22. I was astonished when on 19 August 2011
I received from G. H. Ismail & Associates a copy of a letter
indicating that the
Third Respondent had written letters to the First
Applicant on 6 and 13 June 2011 to which the Applicant had failed to
respond
and also that it was alleged that the First Applicant had
failed to comply with the Court order dated 3 May 2011. It was
further
stated that by reason of the First Applicant’s failure
to respond to those letters it was the Third Respondent intention to

remove the First Applicant from office as trustee on a date thirty
days from the date of notice sent which was 10 August 2011.
23. It is incomprehensible why these communications were directed to
G. H. Ismail & Associates. My office had been in communication

with the office of the Third Respondent in connection with the
affairs of the trust and in fact in connection with a complaint

against the First Respondent’s conduct as trustee in the year
2009.
24. When the letters were eventually received it appeared that they
had been sent to the First Applicant but that the address was

completely insufficient because it did not state the street in which
the building was situated. It was therefore unlikely that
they would
have been received by the First Applicant.
25. The First Applicant has never indicated to me that he received
any such communication and I verily believe that he would have
done
so if he had received the communication. I annex hereto marked HMT3
and HMT4 letters from the Master’s office dated
15 and 16
August.
26. On 22 August 2011 I telephoned the Master’s office and
spoke to a Ms Venecia Moodley an official at that office.
27. I was informed by her that Dr Ganie, the First Respondent, had
lodged a complaint with the Master’s office which I took
to be
the basis of the correspondence dated 6 June 2011 referred to in the
Master’s letter of 15 August. It appears therefore
that the
First Respondent’s complaint was made after the launching of
Application No. 5865/2011 which sought among other
things a
declaration that the agreement of sale had been cancelled and that
the properties concerned should be sold. As I have
pointed out this
necessarily meant that the order of 3 May 2011 Annexure AG9 in
Application No. 5865/2011 would not be carried
out in view of the
terms of the agreement referred to in paragraph 35 of the founding
affidavit of that application.
28. I asked for copies of the letters of 6 June 2011 and 13 June 2001
and also for a tracking number with regard to those letters
to enable
me to make enquiries at the post office. These numbers have yet to be
supplied. According to Moodley, the address for
the first applicant
appearing on the letter, was an address furnished to the Master’s
office by Dr Ganie, the first respondent.
29. Although the Master’s letter dated 15 August 2011 (annexure
‘HMT3’) said that the First Applicant would be
removed on
the expiry of thirty days from the date of that letter the next day a
letter was sent stating that the First Applicant
was removed
immediately. The reasons were, in both cases, failure to comply with
the requirements in the previous correspondence
in June 2011 and
non-compliance with the Order of Court date (
sic
) 3 May 2011.
30. I accordingly requested information as to who had been appointed
as trustee and was informed that the trustees are the First
and
Second Respondents. I annex hereto marked HMT5 a copy of the E-mails
reflecting the exchange between myself and Ms Moodley.
31. Thereafter I requested further information as set out in E-mail
contained in Annexure HMT6 which I annex hereto. As will be
seen it
is said that the removal of the trustee was done
‘
on the basis of the Order of Court dated
3/5/2011 which the trustee has failed to comply with to date and on
the basis that the
trust should have been terminated in 2008’.
32. So far as the Order of Court is concerned that is dealt with not
only in this affidavit but in more detail in Application No.

5865/2011. I submit it is clear that at the very lowest there is a
bona fide dispute as to whether in the circumstances the First

Applicant was obliged to carry out the terms of an order which on
good grounds it appears has fallen away. The interim Order granted
in
application number 5865/2011 on 23 May 2011 specifically prohibits
the First Respondent from giving effect to the Order of 3
May 2011 by
seeking the transfer the properties.”
23. In his affidavit, Timol also raised certain other matters, which
I summarise thus:
23.1 The First Respondent “terminated the First Applicant’s
authority and signing powers to the trust’s bank
account ….”
23.2 “Until the removal of the First Applicant as trustee, he
was responsible for the management of the trust’s affairs,
its
bank account and dealing with the tenants and collection of rental.”
23.3 The First Respondent may “cause payment to be made of
legal costs incurred in previous legal proceedings, from the bank

account, now that he has sole control over it.”
23.4 The First Respondent should be interdicted from dealing with the
said bank account, pending finalisation of this application.
24. The First Respondent delivered an answering affidavit of 40 pages
with more than 50 pages of annexures. The Second Respondent
delivered
a brief confirmatory affidavit. It is clear from the First
Respondent’s answering affidavit that it deals with
the
following three distinct subjects:
24.1 Two preliminary point are raised, namely the alleged
non-disclosure of material information in the founding affidavit and

the challenge of Timol’s authority to depose thereto.
24.2 The First Respondent’s support for the Third Respondent’s
removal of the First Applicant as a trustee.
24.3 The First and Second Respondents’ own case for the removal
of the First Applicant as a trustee in terms of section 23
of the
Act.
25. Although there is some overlapping between the matters referred
to in paragraphs 24.2 and 24.3, above, I think that I should
deal
with them separately and that I should do so in the sequence set out
in those paragraphs.
The point in paragraph 24.1, above, relating to the alleged
non-disclosure can be dismissed outright – there is simply
no
merit in it. I point out the following with regard to the so-called
five points in
limine
relating to the alleged non-disclosure
of material facts:
26.1 Not one of them is, in fact, a preliminary point which is
capable of being dealt with as such.
26.2 The said points (and others of a similar nature) were all raised
in Mr Choudree’s heads of argument in support of his
submission
that they “reflect a serious dereliction of duty by the First
Applicant warranting his removal by the Master …”
26.3 I deal fully with each of at points referred to in paragraph
26.2, above, in paragraph 46, below.
26.4 It is clear from paragraph 46, below, that there are serious
disputes of fact about the points referred to in paragraph 26.2,

above.
26.5 A further indication that the points referred to in paragraph
26.2, above, are not really points in
limine
, is Mr Choudree’s
submission that their effect is that “the Court can intervene
and consider those facts in denying
the First Applicant any relief
for re-instatement”.
One of the so-called points in
limine
relates to the First
Applicant’s failure to disclose that certain complaints had
been lodged against him by the First
Respondent with the Third
Respondent. The First Applicant answered this by denying receipt of
any correspondence from the Third
Respondent and, therefore,
denying any knowledge of the said complaints at the time when this
application was launched. I fully
examined all the relevant
evidence and, for reasons which will appear quite clearly from my
judgment, I came to the conclusion
that it is highly probable that
the First Applicant did not receive the said correspondence.
It is thus not surprising that the so-called points in
limine
were never argued on any occasion when this application came before
the Court and that, on 12 December 2011, the points referred
to in
paragraph 26.2, above, were relied on, not as real points in
limine
, but in support of the contentions set out in
paragraphs 26.2 and 26.5, above.
The point taken by the First and Second Respondents regarding Timol’s
alleged lack of authority is equally devoid of substance
- see also
paragraph 21, above. I should say that the First Respondent’s
answering affidavit is argumentative (witness, for
instance, “absurd
speculation”, “shadow boxing” and “the
Applicants have misdirected their arrows”)
and it is replete
with scathing references to the Applicants (such as, “the First
Applicant deliberately delayed the entire
process in collusion with
the Fourth Applicant” and “I submit that the underlying
reason for seeking the reinstatement
of the First Applicant is the
fear of the Applicants and more particularly the Fourth Applicant
that without the First Applicant
functioning as trustee, the
misappropriation of trust funds and acts of fraudulent non
disclosures will be indentified for the
attention of the prosecuting
authorities” and “The reason for the voluminous papers
and protracted litigation is a
direct result of the irrational,
unreasonable and arbitrary decisions of the Applicants …”.)
The First Respondent’s
invective is not limited to the
Applicants – of Timol he said: “the deponent fabricates
negative aspersions on the
Third Respondent”.
27.
The First and Second Respondents’ support for the Third
Respondent
27.1 In paragraph 22, above, I quoted fairly extensively from Timol’s
affidavit. In paragraphs 24, 25, 26 and 28 of his affidavit,
Timol
deals with the alleged non-receipt by the First Applicant of
correspondence addressed to him by the Third Respondent.
27.2 The First and Second Respondents’ support for the Third
Respondent’s decision to remove the First Applicant as
trustee,
consists of averments which suggest that the First Applicant did, in
fact, receive the said correspondence. The First
Respondent stated
that “to dispose of such contrived speculation” by Timol
that the First Applicant did not receive
the said correspondence, he
attached a letter from the First Applicant to him which reflected the
First Applicant’s address
as being 411 Lagoon Lodge, Riverside,
Durban. For the same purpose, the First Respondent also attached a
letter which he had written
to the First Applicant to the same
address and which he said the First Applicant had received. The First
Respondent denied Timol’s
averments in paragraph 24 of the
founding affidavit and said that Timol’s contention is “very
misleading in that it
suggests that service was defective”. The
vituperative tenor of the First Respondent’s answering
affidavit is plain
for all to see.
28. In paragraph 12, above, I quoted the order which was made in this
application on 29 August 2011. For present purposes, I direct
the
attention to paragraphs 1.5 and 1.7 of that order. The State Attorney
delivered a Notice to Abide, dated 3 October 2011, which
reads as
follows:
“
Kindly take notice that the Third
Respondent herein gives notice that it is its intention not to oppose
the relief sought by the
Applicants but to abide by the decision of
the above Honourable Court,
provided
that no Cost Order will be sought against the Third Respondent
herein
”. (Emphasis supplied).
29. The Third Respondent delivered an undated document which bears
the heading “Master’s Report” and an indexed
bundle
of documents consisting of 115 pages. The Applicants’ attorneys
prepared a separate indexed volume of papers which
bears the heading
“Index 2 – Master’s Documents”. In the said
volume the said bundle of documents is referred
to as “Record
of Proceedings”, but, for convenience, I will refer thereto as
“the record”. When the First
Applicant deposed to his
replying affidavit in this application on 17 October 2011, the
Master’s Report and the record had
been delivered.
30. There can be no doubt whatsoever about the fact that the record
is incomplete. I think that much was common cause at the hearing

before me on 12 December 2011. It will be a wasteful exercise for me
to identify (with reference to, for instance, the affidavit
evidence
and the record itself) which documents are clearly missing from it. I
will, however, comment on the omission from the
record of every
document which is of importance in this application.
31. Ms Moodley said that the “matter” was (if I remember
the word correctly) “contentious”. She was clearly

referring to the administration of the trust in the office of the
Third Respondent. She alluded to complaints which the trustees
(the
First Applicant and the First Respondent) had lodged with the Third
Respondent against each other. The record bears testimony
of these
“reciprocal” complaints. It is not my intention to refer
to or deal with every document in the record and
I will confine my
examination thereof to important documents which have a direct
bearing on the issue mentioned in paragraph 19,
above.
31.1 On 13 June 2011 Ms Davel wrote to G. H. Ismail, enclosing a copy
of a letter, dated 6 June 2011, “for your comments
within 21
days from date hereof”.
31.2 Ms Moodley confirmed what appears from the record, namely that
the Third Respondent did not write any relevant letter, dated
6 June
2011.
31.3 On 6 June 2011 the First Respondent wrote a letter to Ms Davel
which was delivered by hand to Ms Moodley on the same day.
I think it
can safely be accepted (and the probabilities point that way) that
this is the letter of 6 June 2011 (“the 6 June
2011 letter”)
referred to in paragraph 31.1, above. As will become very clear
hereinafter, nothing turns on this, in any
event. The 6 June 2011
letter from the First Respondent reads thus:
“
Madam
Thank you for your letter dated 20
th
May 2011. A formal
response to G. H. Ismail & Associates letter will be given by my
attorney Mr Gounder of Gounder & Associates.
The court order of
case no 4203/2010 has already been handed to you by myself on 30
th
May 2011. The court instructed that all costs has (
sic
) to be
paid by M.S. Ganie Will Trust and therefore very plausible grounds
exist to hold over the distribution of monies to the
beneficiaries
till all costs are paid. You will recollect that I, myself, am a 25%
beneficiary of the above trust and therefore
a responsible approach
has to be maintained.
Coming to more important issues, I enclose:
1) A factual findings report of outstanding rental income from
independent auditors, Sultan & Sultan. Some of these findings

were reported by me in November 2009 to the offices of the Master of
the High Court and Natal Law Society. The shortfalls have
continued
since then and have been repeatedly denied by Mr Sherlan Archary of
D. K. Singh Vahed & Partners and co-trustee,
Mr Haroun Ganie. Not
included in the report is outstanding monies by each tenant for
contribution towards operating costs and rates.
2) Copies of Case No 5962/11 involving M.S. Ganie Will Trust and
Dinesh Singh. The irresponsible attitude of co-trustee, Haroun
Ganie
acting without skill, care and diligence and the constant
interference by beneficiary, Yusuf Siddy Ganie has resulted in
this
mess.
One can understand the desperate action of the intervening
beneficiaries in Case No 5865/2011 (a copy was given to you on 30
th
May 2011) whereby a request is made to auction off the property and
the proceeds to be under control of attorney Sherlan Archary
hoping
to mask all the missing funds. My father, the Late M.S. Ganie led a
life of respectability and I hope to bring closure to
his trust with
respect and dignity.
I humbly request:
a) That co-trustee, Haroon Siddy Ganie is removed as trustee of M.S.
Ganie Will Trust with immediate effect.
b) That the sale of the Tongaat Properties to KNA Property Investment
CC is allowed to proceed with the sheriff signing in place
of Haroun
Siddy Ganie.
c) That all costs incurred by all parties in case 4203/2010 and case
5865/2011 be paid from the 50% share of intervening beneficiaries,

Yusuf Siddy Ganie, Afzal Siddy Ganie, Asif Siddy Ganie and Farzana
Jhavary.
d) That Mr Sherlan Archary, of D.K. Singh Vahed & Partners, be
removed as trust attorney and conveyancer and the mandate be
given to
Mr Gounder of Gounder & Associates.”
31.4 With regard to the 6 June 2011 letter, I draw attention to the
following important matters:
The court order, dated 3 May 2011, in case number 4203/2010 (as to
which, see paragraph 6, above) was handed to Ms Davel
on 30 May
2011. That order forms part of the record.
31.4.2 A “copy” of case number 5865/2011 (as to which,
see paragraphs 8 – 11, above) was handed to Ms Davel on
30 May
2011. Whatever was handed to Ms Davel is not in the record. When I
asked her about the court order in case number 5865/2011,
Ms Moodley
said that the only court order which she had seen, is the one in case
number 4203/2010, referred to in paragraph 31.4.1,
above.
31.4.3 The probabilities are that the “copy” to which the
First Respondent refers in the 6 June 2011 letter is, at
least, a
copy of the application papers in case number 5865/2011.
31.4.4 In paragraph 15 of his founding affidavit in the anticipation
application (referred to in paragraph 16, above) the First
Respondent
said:
“
I personally handed to the Third Respondent
a copy of the court order dated 23 May 2011, as well as the
application upon which the
order was obtained. This was done on 30
May 2011 …. I clearly remember Ms Moodley affixing the rubber
stamp imprint of the
Third Respondent on the application as well as
the court order …. The order dated 23 May 2011 was annexed to
the application
papers.”
31.5 On 12 August 2011, attorney Khan gave written instructions to
Adv. I. Rajah to represent the First Respondent “to investigate

in the Master’s office, the delay in removal of Trustee, Mr
Haroon Ganie”, i.e. the First Applicant. The brief to Adv
Rajah
was further: “Trustee to be removed with immediate effect”.
31.6 On 15 August 2011, the First Respondent wrote a full page letter
to Adv. Rajah in which he made averments of serious misconduct
on the
part of the First Applicant. The First Respondent referred to “rental
shortfalls since 2009”; that the First
Applicant is “silent
and not responding or clarifying the R100 000.00 missing” and
that the First Applicant “has
been colluding with (the Fourth
Applicant) who has been interfering in trust matters”. The
First Respondent’s letter
to Adv Rajah concluded as follows:
“
(g) The Master’s office must act now
and remove (the First Applicant) as trustee with immediate effect.
(h) If the Assistant Master does not remove him then reasons must be
given by her as to why she is protecting him with all the
offences
that he has committed.”
31.7 The terms of Adv. Rajah’s brief, as set out in paragraphs
31.5 and 31.6, above, are very clear – get Ms Moodley
(the
Assistant Master) to immediately remove the First Applicant as a
trustee.
31.8 On 15 August 2011, Adv Rajah wrote the following letter to the
Third Respondent:
“
The above mentioned Will’s Trust has
reference.
Thanks to your examiner, Ms Davel I was able to peruse the file. I am
instructed in this matter to investigate why the Master has
not been
able to remove the trustee Mr H Ganie after the other trustee, Dr
Faizel M S Ganie and the heirs of the Trust have lodged
numerous
complaints.
I have spoken to your Assistant Master, Ms Moodley, who explained to
me that she had sent a 21 day letter to the other trustee’s

representative.
I appeal to you to look at Sections 9 (1), 19 and 20 (2)(e) of The
Trust Property Control Act 57 of 1988.
In any event please allow me an opportunity to meet with you and
discuss this matter in order that effect may be given to the
provisions of the above-mentioned Act as a matter of urgency.”
31.9 I draw attention to the following matters:
The statement by Ms Moodley that “she had sent a 21 day
letter to the other trustee’s representative” appears

to be a reference to the letter referred to in paragraph 31.1,
above.
On 10 August 2011 Ms Moodley wrote a letter to the First
Applicant, which reads as follows (“the 10 August 2011

letter”):
“
In view of your failure to comply with my
requirements, as set out in my correspondence dated 13/06/2011 in
respect of the correspondence
dated 06/06/2011 I forwarded to
yourself, and in respect of you non compliance to the Order of Court
dated 03/05/2011 it is my
intention to remove you from office as
TRUSTEE on a date 30 days from date of this notice by virtue of the
provision of Section
20(2)(e) of The Trust Property Control Act 57 of
1988.
In terms of Section 20(2)(e) of the aforementioned Act you are at
liberty to apply to Court within the period stipulated in the

preceding paragraph for an Order restraining me from removing you
from office.
Your removal will not affect your liability for any act or omissions,
which may have taken place during the administration of the
Trust.”
In paragraph 20, above, I quoted the sections of the Act to which
Adv Rajah referred in her letter to the Third Respondent,
dated 15
August 2011.
31.10 Ms Moodley informed me that, on 15 August 2011, Adv Rajah spoke
to her and requested her to remove the First Applicant as
a trustee.
Ms Moodley refused to do so. Adv Rajah clearly did not give up easily
and, on 15 August 2011, went to see Ms Moatlhudi
and obtained from
her an undertaking that the First Applicant would be removed as a
trustee. This is what Ms Moodley said and it
was confirmed by Ms
Moatlhudi. Adv Rajah thus successfully carried out her mandate to
obtain the immediate removal of the First
Applicant as a trustee.
31.11 A copy of the 10 August 2011 letter was posted to Timol, but
his address on the letter and on the envelope was incorrect
and the
letter was returned to the Third Respondent. Not that it would have
mattered if the 10 August 2011 letter reached him or
the First
Applicant – that much should already be clear. The 10 August
2011 letter was addressed to the First Applicant at
411 Lagoon Lodge,
Riverside 4501 – i.e. it did not contain any street name or
street address.
31.12 On 16 August 2011 Ms Moatlhudi wrote a letter (which also bears
the Third Respondent’s official date stamp of 18 August
2011)
to the First Applicant at the same address as the one referred to in
paragraph 31.11, above, and said this:
“
By virtue of the authority vested in me by
section 20(2)(e) of the Trust Property Control Act No 57 of 1988, I
hereby remove you
from office as Trustee in the above estate
in
view of your failure to comply with my outstanding requirements, and
in view of your failure to comply with
the provisions of section 9(1) of the abovementioned Act
”.
(Emphasis supplied).
31.13 On 19 August 2011 the Third Respondent appointed the First and
Second Respondents as trustees of the testator’s trust.
On 22 August 2011 Timol wrote to Ms Moodley and asked:
“
May I please have copies of your letters
purportedly sent to my client as well as details of my client’s
failure to comply
with the Assistant Master’s outstanding
requirements”.
Obviously the “client” referred to by Timol is the First
Applicant.
On 22 August 2011 Ms Moodley wrote to Timol to advise him that, as
soon as the Deputy Master “consents”, Ms Moodley
“will
forward the correspondences”.
On 23 August 2011 Ms Moodley wrote as follows to Timol (the letter
is quoted
verbatim
, but with emphasis supplied):
“
I have been requested by the Deputy Master
L Moatlhudi to inform you that
the
removal of the Trustee was done on the basis of the Order of Court
dated 3/5/2011. Which, the Trustee has failed to comply with
to date
and on the basis that the Trust should have been terminated in 2008
.
No further correspondence will be entered into regarding this matter.
The Deputy Master may be contacted on 033 – 3413832.”
The less said about the penultimate sentence of this letter, the
better.
31.17 But what about the 10 August 2011 letter, referred to in
paragraph 31.9.2, above? That letter apparently presented no problem

for the Third Respondent because on 29 August 2011, Ms Davel wrote as
follows to D. K. Singh Vahed and Partners:
“
I have issued a Removal dated 18/08/2011.
The Contemplated Removal dated 15/08/2011 was sent in error.
I have appointed Dr F.M.S. Ganie and Mrs F. Sacoor as trustees on the
19/08/2011.”
I point out the following with regard to this letter, dated 29 August
2011:
31.17.1 The “Contemplated Removal” is clearly a reference
to the 10 August 2011 letter. The date “10 August 2011”

is typed on that letter, but it also bears the Third Respondent’s
official date stamp of 15 August 2011 and this explains
why, in her
letter, Ms Davel said the “Contemplated Removal” is dated
15 August 2011.
31.17.2 Ms Moodley said (and Ms Moatlhudi did not disagree) that,
although Ms Davel appears to be the official who performed the
acts
set out in the letter, the responsible official is Ms Moatlhudi.
31.17.3 There is no indication of what the alleged “error”
was or how it came to me made or who made it. It will be
apparent
from this judgment that there was no error made in “sending”
the 10 August 2011 letter, but, somehow or another,
that letter had
to be “undone” – after all, as long as it stood,
the First Applicant could still timeously comply
with it. And then he
could not be removed as trustee. But he was already removed as such
on 16 August 2011 in terms of the letter
referred to in paragraph
31.12, above. And on 19 August 2011 the new trustees were appointed.
That is why the letter of 10 August
2011 had to be “undone”
– so, it is said to have been “sent in error”.
On 13 September 2011, Timol wrote to Ms Moodley and said this:
“
Finally I refer to your letter dated 10
th
August 2011 wherein you refer to my client’s failure to comply
with your requirements set out in your letters dated 13
th
June 2011 and 6
th
June 2011.
I confirm your advice that these letters were never sent to my client
and instead was sent to attorneys GH Ismail, D. K. Singh
Vahed &
Partners and to my office. The letter to my offices was returned to
you as a result of an incorrect address being affixed
namely PO 21
instead of Box 211, Durban, 4000.”
I point out that Ms Moodley received this letter from Timol and did
not dispute his statement. Furthermore, on 12 December 2011,
Ms
Moodley confirmed that the letter of 6 June 2011 (there was no letter
of 13 June 2011 – see paragraph 31.2, above) had
not been
posted to the First Applicant.
32. To summarise the contents of the record, as considered in
paragraph 31, above:
32.1 The application papers in case number 5865/2011 and the court
order, dated 23 May 2011, were delivered to the Third Respondent
on
30 May 2011.
32.2 The letter referred to in paragraph 31.1, above (enclosing the
letter referred to in paragraph 31.3, above) was not posted
to the
First Applicant.
32.3 On 10 August 2011 (see paragraph 31.9.2, above) the Third
Respondent wrote to the First Applicant, putting him on terms to

comply, within 30 days, with the “requirements” set out
in the letter referred to in paragraph 31.1, above, and with
the
court order, dated 3 May 2011, in case number 4203/2010, failing
which he would be removed as trustee. We know, for a fact,
that the
letter referred to in paragraph 31.1, above, was not posted to the
First Applicant and, in my view, it is highly probable
that the First
Applicant did not have knowledge of the said requirements, until the
record was delivered.
32.4 On 15 August 2011, Adv Rajah unsuccessfully tried to persuade Ms
Moodley to remove the First Applicant as trustee, but she
had better
luck with Ms Moatlhui who wrote to the First Applicant on 16 August
2011 to remove him as trustee for
two clearly stated reasons
–
see paragraph 31.12, above.
32.5 On 23 August 2011, the Third Respondent wrote the letter
referred to in paragraph 31.16, above, and furnished
two other
reasons for the First Applicant’s removal as a trustee
.
33. To summarise, by 23 August 2011, the Third Respondent furnished
the following reasons for the First Applicant’s removal
as a
trustee:
33.1 Failure to comply with “outstanding requirements”
(see paragraph 31.12, above). These are presumably the same

“requirements” as those mentioned in the 10 August 2011
letter (quoted in paragraph 31.9.2, above) and referred to
in
paragraph 32.3, above.
33.2 Failure to comply with section 9(1) of the Act (see paragraph
31.12, above).
33.3 “ … on the basis of the order of court dated
3/5/2011 which the trustee has failed to comply with to date”

(see paragraph 31.16, above).
33.4 “ … on the basis that the trust should have
terminated in 2008” (see paragraph 31.16, above).
34. In the Master’s Report, Ms Moatlhudi, referred to the
“ongoing complaints from the trustees against each other
in
respect of the administration of the trust dating as far back as May
2009”. She then stated that “as a result”
she
decided on 15 May 2011 to remove the First Applicant as a trustee.
This statement conveys that the “ongoing complaints”
was
a further (i.e. a fifth) reason for the removal of the First
Applicant. The Third Respondent then finally articulated the
following reasons in the Master’s Report why the First
Applicant was removed as a trustee:
“
(1) The Trust should have terminated on the
24
th
of October 2008 as per Deceased’s Will on Paragraph 11
(Annexure ‘Z’ hereto).
(2) A Deed of Sale was concluded and signed on the 25
th
of
October 2008 and transfer did not take place because the Applicant
failed to consent to same.
(3) The prospective purchaser then sued the Trust for Breach of
contract and a Court Order against the Trust was granted on the
3
rd
of May 2011 (Annexure ‘V’ hereto).
(4) There was also a cost order against the Trust.
(5) The Trust and the Trust beneficiaries are severely prejudiced by
the action of the Applicant.
(6) The complaints from the beneficiaries date as far back as May
2009.
The Master made its decision on the backdrop of the Court Order
granted on the 3
rd
of May 2011.
The Master acted purely within the ambits of the law (Section
20(2)(e) of the Trust Property Control Act.)”
35. In his replying affidavit, the First Applicant made the following
averments regarding the events which led to his removal as
a trustee,
as set out in paragraph 31, above:
35.1 His “complete address” is 411 Lagoon Lodge, 16
Soofie Saheb Drive, Riverside, 4051.
35.2 The 10 August 2011 letter was sent to an “incomplete”
address and did not reach him.
35.3 He, therefore, did not have “the opportunity to state
(his) position in relation to the complaints raised against (him)”.
35.4 That he was, in any event, “not afforded the thirty days
stipulated in the” 10 August 2011 letter.
36. With regard to the Master’s Report, the First Applicant
said this:
“
(It) provides a very limited answer to the
Applicant’s case, is silent on the conduct of its officials and
provides vague
reasons for the decision … to remove me. The
relevance of the Third Respondent’s report quite frankly lies
more in
what is not said than what is”.
37. I am in general agreement with the First Applicant’s
averments and submissions, as set out in paragraphs 35 and 36, above.

I will, in paragraph 38, below, subject each of the Third
Respondent’s “reasons” referred to in paragraph 34,

above, to a brief critical analysis, in the light of the affidavit
evidence, to demonstrate that those “reasons’ are
not
reasons at all – they are contrived and/or irrational and/or
factually incorrect. In short, the so-called “reasons”

cannot possibly justify the Third Respondent’s decision to
remove the First Applicant as a trustee – they should be
seen
for what they are, namely
ex post facto
and flimsy attempts to
justify an untenable decision.
38.
(1) The Trust should have terminated on the 24
th
of October 2008 as per Deceased’s Will on Paragraph 11
(Annexure “Z” hereto).
Of course, the trust terminated on or about 24 October 2008 –
see paragraph 3, above. The duty of the trustee to distribute
the
trust assets amongst the beneficiaries arose on or about 25 October
2008. The first agreement of sale of the property was concluded
on
that very day – see paragraph 5, above. There has been ongoing
litigation about the sale of the property, which culminated
in a
second settlement agreement on 12 December 2011. The irrationality of
the “reason” is demonstrated by the removal
of only one
trustee and by the appointment of another trustee in his stead. This
“reason” is a makeweight.
(2) A Deed of Sale was concluded and signed on the 25
th
of October 2008 and transfer did not take place because the
Applicant failed to consent to same.
The property was sold on 25 October 2008. The Third Respondent is in
no position at all the pass judgment on the cogency, or otherwise,
of
the First Applicant’s stance regarding the compliance, or
otherwise, by the purchaser with its obligations. The Third

Respondent cannot (and does not) criticise the First Applicant’s
refusal to transfer the property to the purchaser. The Third

Respondent never took up with the First Applicant his said stance and
his said refusal and never asked the First Applicant to explain
or
justify his conduct.
(3) The prospective purchaser then sued the Trust for breach of
contract and a Court Order against the Trust was granted on the 3
rd
of May 2011 (Annexure “V” hereto).
The order in case number 4203/2010 was taken by consent on 3 May
2011. This was clearly done in pursuance of an agreement of
settlement.
The purchase price of the property was increased from R6m
to R6.5m. By the time when the litigation was settled, the Second,
Third,
Fourth and Fifth Respondents had intervened in case number
4203/2010 as “Intervening Beneficiaries”. These
Respondents
are trust beneficiaries and they sided with the First
Applicant (cited as the First Respondent) in case number 4203/2010.
They
obviously did so because they believed that it was in their best
interest to do so. The court order of 3 May 2011 does not stand
on
its own, but must be read with the “supplementary agreement”
– see paragraph 7, above. In the supplementary
agreement the
purchaser was put on strict terms regarding the delivery of
guarantees. The Third Respondent cannot (and does not)
criticise the
role which the First Applicant (supported by the other four
Applicants) played in the litigation in case number 4203/2010.
The
Third Respondent never took up with the First Applicant his said role
and never asked the First Applicant to explain or justify
his
conduct.
(4) There was also a cost order against the Trust.
Indeed. But the purchase price was increased by R500 000.00 from R6m
to R6.5m. See paragraphs 6.1 and 6.2, above, for particulars
of the
cost order. In his founding affidavit, Timol referred to the
guarantee for the amount of R3.15m which is envisaged in the

supplementary agreement and then said the following in paragraph 38
and 40:
“
38. The fact that the amount was so held
was repeated to the representatives of the Applicants at the
discussions leading up to
the conclusion of the Supplementary
Agreement and was advanced by the purchaser and on behalf of the
First Respondent as being
a matter of considerable force in favour of
the settlement.
……
..
40. In the circumstances I respectfully submit that the First
Respondent herein procured the agreement of the parties for the
payment of all costs from the estate in circumstances in which the
Agreement of Settlement cannot be relied upon by the First
Respondent.”
The First Respondent simply denied the averments in paragraph 38, but
my impression is that this is not a
bona fide
denial. The
First Respondent likewise denied the averments in paragraph 40 and
added: “There was a Consent Order which was
taken”.
Precisely, all the costs of all the beneficiaries in the trust were
going to be paid out of the trust funds. All
the beneficiaries agreed
thereto, and so did the two trustees. The Third Respondent clearly
did not know the relevant background
facts and, judging by the
record, did not bother to ascertain them. There is absolutely no
evidence whatsoever of any misconduct
on the part of the First
Applicant in relation to the cost order. If the conduct relied on by
the Third Respondent justified the
removal of the First Applicant as
a trustee, the First Respondent should also have been removed as
such. The truth of that matter,
however, is that this so-called
“reason” is not a reason at all – it was an
afterthought to justify an indefensible
decision.
(5) The Trust and the Trust beneficiaries are severely prejudiced
by the action of the Applicant.
This is a “catch all” with no substance and should be
seen for what it is, namely a grasp at a straw in order to justify

the decision. Five “reasons” were previously advanced for
the First Applicant’s removal as a trustee –
see
paragraphs 33 and 34, above. This alleged reason is not one of those
given reasons. The four Applicants who supported the First
Applicant
in case number 4203/2010 and who are co-applicants in this
application clearly do not think that they were prejudiced
by the
actions of the First Applicant. Those four Applicants are entitled to
50% of the assets of the trust. One wonders where
the Third
Respondent got this alleged “reason” from.
(6) The complaints from the beneficiaries date as far back as May
2009.
This is just nonsense –the complaining beneficiaries are not
identified and since 2009 the First Applicant and the First

Respondent lodged complaints against each other with the Third
Respondent.
“
The Master made its decision on the
backdrop of the Court Order granted on the 3
rd
of May 2011.”
This “reason” (if it is that – which the Third
Respondent does not assert) is alluded to in paragraph 33.3, above,

where it is stated that the First Applicant failed to comply with the
said court order. The fact of the matter is that, on 23 August
2011,
Ms Moodley wrote to Timol and said that Ms Moatlhudi (the person who
wrote and signed the Master’s Report) had requested
Ms Moodley
to inform Timol of the two reasons why Ms Moatlhudi had removed the
First Applicant as a trustee. Those two reasons
are referred to in
paragraphs 31.16, 33.3 and 33.4, above. The one “reason”
is the non-sensical one that the trust
should have terminated on 25
October 2008. I will briefly consider the First Applicant’s
alleged non-compliance with the
court order, in case number
4203/2010, dated 3 May 2011.
Firstly, it is not stated in exactly what manner the First Applicant
failed to comply with the said order.
Secondly, the First Applicant was never given any opportunity by Ms
Moatlhudi to defend himself against any complaint (for instance,
by
Adv Rajah) that he had failed to comply with the said order.
Thirdly, paragraph 1 of the court order, dated 23 May 2011, in case
number 5865/2011 (see paragraph 10, above) in effect prohibited
the
trustees (i.e. the First Respondent and the Second Respondent in that
application) from passing transfer of the property to
the purchaser.
This court order clearly superseded paragraph 1 of the court order,
dated 3 May 2011, in case number 4203/2010 in
terms of which the
trustees and the said conveyancers were directed to pass transfer of
the property to the purchaser. If the Third
Respondent read the
application papers in case number 5865/2011 (even only the Notice of
Motion) it would have been obvious that
steps were afoot to stop the
transfer of the property, which had been ordered on 3 May 2011. If
the Third Respondent read the court
order, dated 23 May 2011 (which
the First Respondent said he personally delivered to Ms Moodley with
the application papers in
case number 5865/2011 – see paragraph
31.4.4, above) the Third Respondent would have known that the
transfer of the property
to the purchaser had been interdicted.
Fourthly, and regardless of whether the Third Respondent knew it or
not, after 23 May 2011 it could not possibly be said that the
First
Applicant breached the terms of the court order, dated 3 May 2011, by
refusing to take any step to transfer the property
to the purchaser.
Fifthly, and to the extent that it could be said that the First
Applicant breached the court order of 3 May 2011 by refusing to
give
effect to the cost orders thereof (see paragraphs 6.1 and 6.2, above)
I refer to the following: the averments in Timol’s
affidavit
referred to in paragraphs 23.3 and 23.4, above, and the further
averments in paragraphs 38 and 40 of Timol’s affidavit,
quoted
paragraph 38(4), above. In paragraph (5) of his instructions to Adv
Rajah, dated 15 August 2011 (see paragraph 31.6, above)
the First
Respondent said the following with reference to the First Applicant:
“
(He) has not responded to calls by me or
the accountant, rather at this crucial time of the trust debts to be
paid,
I am told he has skipped the
country
and may be back perhaps in
seven weeks time”. (Emphasis supplied).
In his replying affidavit the First Applicant said this with regard
to the payment of the costs in case number 4203/2010:
“
50.
The payments made (as alleged in paragraph 20.9) in respect of
attorney’s and counsel’s fees were made before such
costs
were taxed or agreed as contemplated in the 3 May 2011 Court order.
The first respondent could not agree his own costs and
would need my
agreement before making payment of those costs from the trust monies.
The reality is that the first respondent was
not prepared to pay his
legal fees from his own pocket to then recover upon taxation.
51.
What is further apparent is that the first respondent knew I was
abroad on pilgrimage and could not agree his fees or deal with
his
calls and that of the accountant (page 110 of the record) and used
this to his advantage when making representations to the
third
respondent to have me removed as trustee.”
From the aforegoing, it is clear that, if the Third Respondent was of
the view that the First Applicant had failed to comply with
the cost
order in case number 4203/2010 (which the Third Respondent did not
say anywhere) such a view was one-sided and, on the
affidavit
evidence, probably erroneous. But I am speculating – the Third
Respondent had ample opportunity to state the reasons
for the First
Applicant’s removal as a trustee and in the Master’s
Report such a failure was not advanced as a reason.
In the letter
referred to in paragraph 31.16, above, the Third Respondent, in
effect, refused to furnish any particulars regarding
the manner in
which the First Applicant had allegedly failed to comply with the
court order, dated 3 May 2011, in case number 4203/2010.
In the
Master’s Report there is a vague statement that the “Master
made its decision on the backdrop” of the
said court order.
This is gibberish and counts for nought with me. If the Third
Respondent relied on the First Applicant’s
alleged failure to
give effect to the cost order in case number 4203/2010, it would have
been a very simple matter to say so -
and to have said so to Timol.
This did not happen and I will draw the logical inferences which flow
from the way in which the Third
Respondent referred to the court
order in case number 4203/2010 in the Master’s Report.
In paragraph 15, above, I referred to the court order, dated 19
October 2011, in which a rule
nisi
was granted, returnable on
12 December 2011. That order was sought in terms of the notice,
under cover of which the First Applicant
delivered his replying
affidavit. In that replying affidavit, the First Applicant dealt
with the circumstances surrounding his
removal as a trustee by the
Third Respondent, including the relevant correspondence. In support
of the claim for the relief set
out in paragraphs 2 and 3 of the
court order, dated 19 October 2011, the First Applicant made the
following averments in his
replying affidavit:
“
66.
Presently there exists a state of confusion where the tenants in the
trust properties are not making payment of rental, they being
unsure
as to whom payment of rental should be made.
67.
In the past I have dealt with tenants on a daily basis and for
obvious reasons cannot do so presently. The first respondent has

sought to terminate the mandate of the D K Singh Vahed & Partners
to collect rentals. The first respondent instead wishes to
appoint
Wakefields to collect the rental for him and the second respondent to
control.
68.
The other applicants and I do not trust the first respondent and the
manner in which he is dealing and in the future will be dealing
with
trust affairs. The trust bank account, despite our best efforts to
prevent payments being made from it, has been denuded of
funds, its
credit balance of approximately R1,040,000.00 being reduced to a mere
R250,000.00 as a consequence of the unauthorised
payments made by the
first respondent from that account.
69.
Until the litigation between the applicants and the first respondent
is resolved, the first and second respondents must be prevented
from
exercising the powers of trustee in their dealings with trust
property.
70.
As an interim arrangement, fair to both parties, Wakefields should be
appointed to collect rentals and to keep same in trust and
to
administer the properties of the trust, subject to the money,
currently held in trust with D K Singh Vahed & Partners being

utilised for the payment of rates, water and electricity and
maintenance and repair of the properties. This aspect, and the
matters
referred to in the previous paragraph are urgent and require
immediate attention.
71.
The other applicants and I are further entitled to insist on the
first respondent giving an accounting of the monies disbursed
by him
and the second respondent from the trust account pursuant to my
removal as trustee and the appointment of the second respondent
as
trustee.”
40. In paragraph 16, above, I referred to the relief which the First
and Second Respondents claimed when they gave notice of their

intention to anticipate the return date of 12 December 2011, referred
to in paragraph 39, above. In paragraph 17, above, I set
out the
court order which was granted on 9 November 2011, when the
anticipation application was heard.
41. At the hearing on 12 December 2011, I debated with counsel the
question whether there were any “outstanding” issues
with
which I had to deal in my judgment. I did so because, as will be
clear from this judgment, the application papers are voluminous;

there were references to the applications in case number 4203/2010
and 5865/2011 and a number of court orders were made. I understood

counsel to say that, leaving aside cost orders which were reserved,
there was no other outstanding matter or issue with which I
needed to
concern myself. It was in this context that counsel agreed that the
real issue was the validity, or otherwise, of the
removal of the
First Applicant as a trustee by the Third Respondent – see
paragraph 18.1, above. I point out that on 19 October
2011 no cost
order was made and, therefore, the cost of the proceedings on that
day must, in my view, be regarded as being costs
in the cause of this
application.
42. At the commencement of the hearing on 12 December 2011, counsel
further agreed that, with the exception of the costs of the

anticipation application, all the reserved costs should follow the
result of this application – in other words, that all
such
costs will be costs in the cause of this application. In my view this
arrangement is fair and practical and I agree with it.
I am concerned that I may have misunderstood the matter dealt with
in paragraph 41, above, and to cater for such a possibility
I will
make provision in my order for leave to be granted to any party who
asserts that I failed to deal with an outstanding
issue, to set such
matter down for hearing by me by not later than 27 January 2012.
44. The matters which I have to decide on are the following:
44.1 The validity, or otherwise, of the First Applicant’s
removal as a trustee by the Third Respondent. The answer to this

question will determine the validity, or otherwise, of the Second
Respondent’s appointment as a trustee by the Third Respondent
-
see paragraph 18.2, above.
44.2 The application by the First and Second Respondents in terms of
section 23 of the Act.
The issue of costs, which has many facets.
The terms of an appropriate order to give effect to my findings.
45.
The validity, or otherwise, of the Third Respondent’s
removal of the First Applicant as a trustee.
45.1 Earlier in this judgment, I set out all the relevant facts and I
considered the Master’s Report in the light of those
facts.
45.2 In his argument on the issue of costs, Mr Shaw described the
Third Respondent’s conduct in this matter as “appalling”.

I am inclined to agree with Mr Shaw and my reasons for saying so
appear clearly from this judgment. To re-cap the evidence in one

sentence: the 13 June 2011 letter was not posted to the First
Applicant; the 10 August 2011 letter was not received by the First

Applicant; on 15 August 2011, Adv Rajah unsuccessfully tried to
persuade Ms Moodley to remove the First Applicant as a trustee;

directly thereafter Adv Rajah spoke to Ms Moatlhudi who took the
decision to so remove the First Applicant and on 29 August 2011
it
was said that the 10 August 2011 letter had been sent in error.
45.3 The real error was the precipitate decision by Ms Moatlhudi to
remove the First Applicant as a trustee:
before he had an opportunity to respond to the 10 August 2011
letter;
and/or
without affording the First Applicant an opportunity to deal with
any complaints or charges which Adv Rajah may have levelled
(and
probably did level) against the First Applicant during her
discussion with Ms Moatlhudi on 15 August 2011;
and/or
without ensuring that the First Applicant had been given proper
and effective notice of the precise grounds (including those
on
which Adv Rajah relied) for the proposed removal of the First
Applicant as a trustee;
and/or
without ensuring that the First Applicant had been given proper
and effective notice of her intention to remove him as a
trustee;
and/or
without ensuring that the First Applicant had been given a proper
and effective opportunity to state his case in respect
to any
complaints or charges , on the strength of which she contemplated
his removal as a trustee;
and/or
without taking all the steps which were reasonably necessary to
ensure that the First Applicant was afforded procedural fairness

in the matter of his removal as a trustee.
45.4 Authority for the conclusions stated in paragraph 45.3, above,
is the following statement in
Honore’s South African Law of
Trusts
(fifth edition) by Cameron, de Waal and Wunsh, 236 –
237:
“
Although it has been held that when the
Master applies to court under s 20(1) of the statute for the removal
of a trustee there
is no preceding requirement of natural justice,
since the trustee will in the court application itself enjoy a full
hearing, there
can be no doubt that when the Master him- or herself
acts to remove a trustee under s 20(2), the trustee concerned would
have to
be given proper notice and be informed of the grounds for the
proposed removal. Removal from office would in most if not all cases

constitute an impairment of the trustee’s good name and
character as well as depriving the trustee of the right to
remuneration
arising from the office (ch 7). These interests
undoubtedly entitle the trustee at common law and under just
administration clause
of the 1996 Constitution to procedural fairness
before the Master acts.”
See also
Administrative Law (1984)
by Baxter, 570 et
seq
.
Administrative Law
by Wiechers, 225 – 227.
45.5 I considered all the affidavit evidence in the light of the
probabilities, inherent or otherwise; I carefully read and considered

the Master’s Report; I listened to Ms Moodley and Ms Moatlhudi;
I heard helpful submissions from counsel and I evaluated
the Third
Respondent’s acts and omissions in the light of the authorities
referred to in paragraph 45.4, above. There is
no doubt that the
removal of the First Applicant as trustee by the Third Respondent is
invalid and that, therefore, it must be
set aside.
46.
The
First and Second Respondent’s application in
terms of section 23 of the Act.
46.1 I quoted section 23 in paragraph 20, above.
46.2 I assume in their favour that the First and Second Respondents
both have the necessary
locus standi
under section 23 and that
no formal application, bought by them in accordance with the Uniform
Rules of Court, is necessary for
section 23 to come into operation.
46.3 I, therefore, accept that I have “the power to consider
the merits of any (complaint against the First Applicant), to
take
evidence and to make any order” which I deem fit.
46.4 In view of the wide powers which I have under section 23 to
consider “the merits of any such matter” and “to

take evidence”, I am of the view that, in performing my
judicial functions in terms of section 23, I may have regard to all

the affidavit evidence which is properly before me in this
application.
46.5 The nub of Mr Choudree’s submission regarding the section
23 application is set out as follows in his heads of argument:
“
Consequently, regardless of whether the
Master stipulated grounds in the correspondence addressed to the
First Applicant, the grounds
referred to above reflect a serious
dereliction of duty by the First Applicant warranting his removal by
the Master in terms of
section 20(2)(e) of the Trust Property Control
Act, 57 of 1988”.
46.6 It is also clear from the First Respondent’s answering
affidavit that he avers “there are several grounds to warrant

the removal of the First Applicant”.
46.7 I will hereinafter deal with each of the “grounds”
referred to in paragraph 46.5, above.
46.8
The First Applicant’s “bias and partiality
towards the Fourth Applicant”.
The First Applicant said this in paragraph 24 of his replying
affidavit by way of a general statement:
“
The allegations of mismanagement (in
paragraph 3.4.1.1) misappropriation of trust funds, fraud and
collusion are repeatedly raised
in the answering affidavit
(paragraphs 20.9, 20.11, 28 and 39.3). I deny all of these
allegations.”
46.9 “
The failure to observe general good governance and
transparency ……”
This alleged failure is denied in paragraph 24 of the First
Applicant’s answering affidavit. More specifically with regard

to an alleged shortfall of R76 000.00, The First Applicant said the
following in his replying affidavit:
“
25.
Neither I nor Sherlan Archary are guilty of financial mismanagement.
D K Singh Vahed & Partners have for some time been the
collecting
agents for the trust receiving instructions from the first respondent
and from me. The report of Sultan & Sultan
Chartered Accountants
is not a forensic report, is incomplete (annexure ‘B’ is
not attached) and presents no more than
a list of outstanding rentals
which D K Singh Vahed & Partners are in the process of
collecting. It does not suggest misappropriation
of funds. I refer in
this regard to the affidavit of Sherlan Archary delivered evenly
herewith explaining the reasons for the rentals
outstanding.
26.
The first respondent is and has always been aware of arrear rentals
owing to the trust and recorded in the trust’s financial

statements prepared by Sultan & Sultan, and has never suggested
any misappropriation of funds on my or on the part of the D
K Singh
Vahed & Partners.”
46.10 “
The unilateral action by the First Applicant”
relating to the letting of immovable properties.
The First Applicant dealt as follows with this averment in paragraph
27 of his affidavit:
“
I deny the allegations made in paragraph
3.4.1.2. No decision was made recklessly nor without the approval of
the first respondent.
Neither the decisions complained of nor the
letter of complaint referred to is identified. As indicated the
letters of complaint
were never brought to my attention.”
46.11 “
The frequent delegation of the powers of the First
Applicant to the Fourth Applicant, effectively allowing him to
conduct the affairs
of the trust.”
The First Applicant responded as follows to the First Respondent’s
averments:
“
I deny the very bald allegations in
paragraph 3.4.1.3. Absent any specific incident – I cannot
elaborate on my denial”.
In paragraph 38 of his replying affidavit the First Applicant said
this:
“
For the record I deny the suggestion that
the fourth applicant represented himself to be a trustee of the trust
and any untoward
conduct on the part of the fourth applicant as is
suggested in paragraphs 8.6.1 to 8.6.6.”
46.12 “
Leaving signed blank cheques in the custody of the
Fourth Applicant without consulting the First Respondent.”
The First Applicant responded as follows to this averment in
paragraph 29 of his replying affidavit:
“
I deny the allegations made in paragraphs
3.4.1.4. No cheques were left blank and all cheques required my and
the first respondent’s
signature and were signed by us both. I
deny any untoward conduct on the part of the fourth applicant, and
deny the similar allegations
about the fourth applicant repeated in
paragraph 8.6.”
46.13 “
Clearly ignoring his fiduciary duties and
responsibilities …”
The alleged breach of his fiduciary duties by the First Applicant on
which Mr Choudree relied, is set out in paragraph 3.4.1.4
of the
First Respondent’s answering affidavit. The First Applicant
denied those averments in paragraph 29 of his replying
affidavit. In
paragraph 24 of his replying affidavit (quoted in paragraph 46.8,
above) the First Applicant denied every averment
of mismanagement
made by the First Respondent.
See also paragraph 38 of the replying affidavit (quoted in paragraph
46.11, above) for the First Applicant’s denial of any
“untoward
conduct” by the Fourth Applicant.
46.14 “
The frequent action by the First Applicant in not
paying the rates and other utility charges timeously …”
For this submission, Mr Choudree relied on an averment by the First
Respondent in paragraph 19 of his founding affidavit in the

anticipation application that “the First Applicant simply
allowed the payment of the utility bills to be made after due date
…”
In paragraph 22 of his answering affidavit in the anticipation
applicaton, the First Applicant said:
“
For the reasons stated I deny the
allegations made in paragraph 19.”
46.15 “
His actions in placing the trust property at risk by
insisting on an auction.”
This is a reference to the stance which the First Applicant took in
case number 5865/2011, in which he was cited as the Second

Respondent. The First Applicant sided with the Applicants in that
case and the present First Respondent (who was cited as the Third

Respondent in that case) supported the First Respondent in that case.
As I pointed out in paragraph 11, above, that case (which
I was due
to hear on 12 December 2011) was settled on that day. In order to
determine who took the correct position in that case
(which was a
very complex one) I would have to write a moot judgment, which I am
not prepared to do. Suffice it to say, there were
clearly two sides
to that case.
46.16
The grant to the Fourth Applicant of a first right of
refusal is “clear evidence of bias and prejudicial conduct by
the First
Applicant.”
I point out the following:
46.16.1 The First Applicant denied any averment of mismanagement on
his part.
46.16.2 The First Applicant denied any averment, of “bias and
partiality to the Fourth Applicant”.
46.16.3 The First Applicant denied any averment of improper conduct
by the Fourth Applicant.
46.16.4 The resolution to which Mr Choudree referred in his heads of
argument (“FMS9” on page 123 of the application
papers)
was signed by only the First Applicant and could not be implemented,
without the First Respondent’s consent.
46.16.5 The letter to which Mr Choudree referred in his heads of
argument (also in support of the submission set out in paragraph

46.8, above) is “FMS5” on page 111 of the application
papers and is one which the First Applicant wrote to the First

Respondent on 23 October 2008. The first sentence thereof reads:
“
I am writing to you as both your uncle and
as a co-trustee …..”
The tenor of this letter is conciliatory. It states that the testator
would not “lightly” have sold the property; and
that the
author thinks “that if he were to do so willingly he would have
liked to sell the property to a member of his family”;
that
this view “is borne out by the fact that the buildings are
named in his honor (
sic
) and then comes the alleged “bias,
partiality and breach of fiduciary duty” paragraph which reads
thus:
“
It is for this reason that I am asking you
as a Muslim and as my nephew to reconsider your decision to sell the
family property
to an outsider and to agree that your brother and his
siblings be given an opportunity to purchase the property. I think
that this
is what your father would have wanted us to do.”
46.16.6 It is far-fetched in the extreme to construe the letter
referred to in paragraph 46.16.5, above, as being indicative of

“bias, partiality and breach of fiduciary duty”.
46.17 In addition to the grounds for the removal of the First
Applicant as a trustee on which Mr Choudree relied in his heads of

argument, the First Respondent raised the following further such
grounds in his answering affidavit (emphasis supplied):
46.17.1 “
The First Applicant made several reckless and
highly prejudicial decisions
relating to the letting of ….
the property, without first consulting and obtaining approval from“
the First Respondent. The First Respondent said that “such
decisions are set out in the letter of complaint to the Third

Respondent.”
The First Applicant answered these averments as follows:
“
I deny the allegations made in paragraph
3.4.1.2. No decision was made recklessly nor without the approval of
the first respondent.
Neither the decisions complained of nor the
letter of complaint referred to is identified. As indicated the
letters of complaint
were never brought to my attention.”
46.17.2 “
The First Applicant’s long and frequent
absences from attending to the affairs of the trust
was deemed
not to be in the best interests of said trust and/or its
beneficiaries in that he conducted himself without the requisite

care, skill and due diligence.”
The First Applicant denied the averments and said the following in
his replying affidavit:
“
Again the allegations are bald and without
reference to any incident or factual circumstances. Save for my first
overseas trip in
nine years, when I recently went on pilgrimage, I
have always been available to and attended to, the affairs of the
trust. Instead,
it was the first respondent who pursued his medical
practice and who had little involvement in the affairs of the trust.”
46.17.3 Finally, the First Respondent made the following averment in
support of the claim for the First Applicant’s removal
or, at
least, the refusal of his application for his re-instatement as a
trustee as a trustee:
“
The First Applicant, notwithstanding a
notice by the Third Respondent, failed or neglected to comply with
Section 9 (1) of the Trust
Property Control Act 57 of 1988 and was
subsequently removed from office by the Third Respondent.”
I point out the following:
46.17.3.1 The First Applicant denied the averments by the First
Respondent.
46.17.3.2 The notice to which the First Respondent refers, is not
identified and no such notice appears in the record.
46.17.3.3 The 13 June 2011 letter (referred to in paragraph 31.1,
above) was not posted to the First Applicant and he did not receive

it. See also paragraph 32.3, above.
The 10 August 2011 letter was not received by the First
Applicant.
The removal of the First Applicant as trustee by the Third
Respondent is invalid – see paragraph 45.5, above.
46.18 I point out that there are material conflicts of fact between
the affidavit evidence of the First Respondent and that of
the First
Applicant. There was no request by any party that any such dispute
should be referred for the hearing of oral evidence.
If I do the best
I can on the affidavit evidence, I am probably favouring the First
and Second Respondents by adopting such a “robust”

approach. Another way of resolving the dispute of fact would be to
apply the principles set out in
Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
,
[1984] ZASCA 51
;
1984 (3) SA 623
(A). I think it will
be appropriate to apply the said principles to the section 23
application of the First and Second Respondents.
This is so because
they are the
de facto
applicants for the removal by this Court
of the First Applicant as a trustee. If I apply the said principles
in deciding the section
23 application, it must fail – that
much is plain from my analysis of the affidavit evidence.
If I evaluate the affidavit evidence as best I can, I am inclined to
agree with Mr Shaw’s submission that, by and large,
the
evidence of the First Applicant is more probable, more cogent and
more persuasive than the evidence of the First Respondent.
The First and Second Respondents failed to satisfy me, on a balance
of probabilities, that they are entitled to any order in terms
of
section 23.
My aforesaid conclusion will stand, even if I err in rejecting some
parts of the evidence of the First Applicant. The removal of
the
First Applicant as a trustee involves a value judgment. In my view
the First and Second Respondents did not remotely prove
a case for
such relief. If I erred in rejecting some parts of the evidence of
the First Applicant (which I do not say I did) I
doubt very much if
that evidence will constitute sufficient proof to warrant the drastic
relief claimed by the First and Second
Respondents, namely the
removal of the First Applicant as a trustee.
46.19 For these reasons, I conclude that the application in terms of
section 23 must fail and it is dismissed.
47. In paragraph 44.3, above, I indicated that there are a number of
facets to the issue of costs. In due course, I will consider
the
terms of appropriate orders to give proper effect to my findings –
compare paragraph 44.4, above. From paragraphs 45.5
and 46.19, above,
it is clear that the Applicants have been successful in this
application and that they successfully resisted
the First and Second
Respondents’ application in terms of section 23 of the Act. I
propose dealing with the costs of the
anticipation application first;
then with the question whether the Third Respondent should be held
liable for the costs of any
party; then with the scale of costs and,
finally, with the question of whether the fees of two counsel are
justified.
48.
Costs of the anticipation application
Mr Choudree submitted that, even if the Applicants succeed in
obtaining an order setting aside the removal of the First Applicant

as a trustee by the Third Respondent, the Applicants should still be
held liable for the costs of the anticipation application.
Mr Shaw
submitted that, regardless of the outcome of this application, the
costs of the anticipation application should be costs
in the cause of
this application. In support of his submission, Mr Shaw contended
that the anticipation application in reality
forms part and parcel of
the litigation with which I am seized and that the First and Second
Respondents achieved minimal success
in the anticipation application.
Mr Choudree conceded that, if I were to order that the costs of the
anticipation application,
are costs in the cause of this application,
he would be hard put to submit that such an order would amount to an
improper exercise
of my discretion. Mr Choudree, however, submitted
that a fairer order for costs in the anticipation application, will
be that the
First and Second Respondents should pay those costs.
In order to determine to what extent the First and Second Respondents
achieved success in the anticipation application, one should
look at
the court order, dated 19 October 2011 (quoted in paragraph 15,
above) and at the relief claimed by the First and Second
Respondents
in the Notice of Anticipation, dated 31 October 2011 (quoted in
paragraph 16, above) and at the court order, dated
9 November 2011
(quoted in paragraph 17, above).
It is not my intention to do a detailed analysis of the relevant
documents in order to determine precisely what success the First
and
Second Respondents achieved in the anticipation application. I also
do not intend to subject the affidavit evidence in the
anticipation
application to a comprehensive examination. I do, however, wish to
draw the attention to the fact that, to a large
extent, the
anticipation application is inextricably tied up with this
application. It cannot, by any stretch of imagination, be
said that
the anticipation application is a separate and distinct case. I will
refer to some aspects of the affidavit evidence
in the anticipation
application to illustrate this point.
48.1 The First Respondent deposed to the founding affidavit in the
anticipation application. He said that Vahed AJ refused to grant
to
the First and Second Respondents an adjournment on 19 October 2011,
thereby “ignoring the
audi alteram partem
principle as
the replying affidavit contained new facts”. After averring
that “the Applicants are not strangers to
utilising ambush
tactics in this application”, the First Respondent said that he
and the Second Respondent “require
the imbalances in and
injustices and oppression flowing from (the court order, dated 19
October 2011) to be redressed” and
that this “of
necessity involves the deletion of paragraphs (a) and (b) of (that
order) and the engraftment of additions
thereto”. The principal
relief which the First and Second Respondents claimed in the
anticipation application was, in effect,
their immediate
re-instatement as trustees. They failed in this bid.
The First Respondent then said:
“
I now deal with the untruths contained in
the (replying) affidavit of the First Applicant and more especially
those in paragraphs
47 to 49.”
It is clear that the First Respondent dealt in his founding affidavit
in the anticipation application with averments contained
in the First
Applicant’s replying affidavit in this application.
48.3 The First Respondent then complained about Mr Archary of the
firm D K Singh Vahed and Partners and said that he had reported
Mr
Archary to the Natal Law Society and to the South African police
Service. The First Respondent continued and said:
“
This was pointed out to the Judge on 19
October and he refused to take cognisance of the background
information which was conveyed
to him by our counsel”.
The First Respondent suggested that Wakefields (Pty) Ltd (which had
been appointed in terms of paragraph 2(c) of the court order,
dated
19 October 2011) should also attend to the payment of certain amounts
due by the trust in respect of the property and that
D K Singh Vahed
and Partners should be ordered to pay over to Wakefields (Pty) Ltd
any money which they held for the trust. These
suggestions were
carried out in the substitution amendment of paragraph 2(b) of the
court order, dated 19 October 2011, by the
court order, dated 9
November 2011, and by the addition of sub-paragraph (iv) in paragraph
2 (c) of the court order, dated 19 October
2011.
48.4 The First Respondent dealt further with paragraph 2(a) of the
court order, dated 19 October 2011, and suggested that, inasmuch
as
“the court has seen fit to make serious inroads into my powers
of trusteeship, it should have done the same to the First
Applicant …
(who) can simply go about exercising his powers as trustee in any way
in which he deems fit without checks and
balances”.
48.5 In his answering affidavit in the anticipation application the
First Applicant briefly dealt with the background history of
this
application and said that “it was appropriate for the interim
relief to be granted on 19 October 2011 (because) the
practical
management of the trust’s affairs required regulation pending
the return date on 12 December 2011”. The First
Applicant
pointed out that the First Respondent is under the incorrect
impression that the First Applicant is a trustee. The First
Applicant
then said this in paragraph 6 of his answering affidavit:
“
(a) I am not a trustee of the trust. The
First Respondent engineered my removal and the issue of my
reinstatement will only be dealt
with on 12 December 2011.”
(b) With my removal I lost any capacity to deal with the trust bank
account and that position still pertains.
(c) There is therefore no need for the grant of the orders in [1] and
[2] of the notice of anticipation nor is a case made out
for such
relief.”
48.6 In the light of the First Applicant’s unchallenged
averments referred to and quoted in paragraph 48.5, above, it is

readily understandable that he could not have had any real objection
to an order being made on 9 November 2011 which “forbids”

him to perform any act which he denies performing and for the
performance of which he, in any event, claims he has no authority.
It
is clear how paragraph [1] of the Notice of Anticipation was watered
down in the “new paragraph 4” of the court
order, dated 9
November 2011.
48.7 It is also clear that there is a very substantial difference
between the relief claimed in paragraph [5] of the Notice of

Anticipation and the relief which was granted in the “new
paragraph 6” of the court order, dated 9 November 2011.
48.8 As I have said in paragraph 48.1, above, the real relief which
the First and Second Respondents sought in the Notice of Anticipation

was their immediate re-instatement as trustees. The First Applicant
dealt as follows with that claim in his answering affidavit:
“
16.
Contrary to what is suggested in paragraph 13 there was a need to
obtain the order framed in paragraph 2(a). The first respondent,

through his conduct has shown that he simply cannot be trusted in his
dealings with the affairs of the trust.
17.
Telling is his failure to deal with the payments he made from the
trust banking account and the allegations I make in paragraphs
50 to
52 of my replying affidavit. I submit this is a crucial aspect for
him to address.”
I point out that the averments in paragraphs 50 – 52 of the
First Applicant’s replying affidavit in this application
are
quoted in paragraph 38(6), above.
48.9 In his answering affidavit, the First Applicant dealt with other
matters which were raised in this application – for
instance
whether the First Respondent handed a copy of the court order of 23
May 2011 to the Third Respondent and whether the First
Applicant
received “the correspondence” from the Third Respondent.
48.10 It is not easy to draw a clear cut line between those parts of
the papers in the anticipation application which deal only
with the
anticipation application and those parts thereof which deal only with
this application. This is not surprising, because
the anticipation
application and this application are closely interlinked – to
the extent that the replying affidavit (with
its claim for interim
relief) resulted in the order of court, dated 19 October 2011, which
in turn, resulted in the anticipation
application.
48.11 What is clear, is that the First and Second Respondents appear
to have misunderstood the position of the First Applicant.
To further
demonstrate this unassailable conclusion, I refer to the following
statements in the First Respondent’s founding
affidavit in the
anticipation application:
48.11.1 “It is therefore necessary to level the playing field
so to speak, and to interdict the First Applicant from exercising
his
powers as Trustee and in any way dealing with the affairs of the
Trust, alternatively for this Honourable Court, to reinstate
those
powers which previously vested in me in order to strike a balance
which should apply equally to both the First Applicant
and myself.”
48.11.2 The First Respondent referred to the First Applicant’s
“subterfuge” in connection with the latter’s
2009
application to the Third Respondent for the former‘s removal as
a trustee; then the First Respondent referred to the
court order,
dated 19 October 2011, which “effectively denuded my rights and
powers as a trustee, whilst ensuring that (the
First Applicant’s)
powers remain intact”.
48.12 In my view the First and Second Respondents misconceived the
entire basis for their main claims in the anticipation application,

namely that the First Applicant’s “powers remain intact”
(which is also said to be “unconstitutional”)
and that,
to “level the playing field”, the First Applicant should
be interdicted “from exercising his powers
as trustee”,
alternatively “to re-instate those powers which previously
vested in“ the First Respondent.
48.13 I agree with Mr Shaw’s submissions regarding the costs of
the anticipation application. My reasons for doing so appear
clearly
from my analysis of the affidavit evidence in the anticipation
application and the effect of the court orders, dated 19
October 2011
and 9 November 2011. Furthermore, as will be seen from my said
analysis there is a very close link and considerable
“overlapping”
between this application and the anticipation application.
48.14 Having regard to all the relevant facts and considerations, I
am of the view that it will be fair if I order that the costs
of the
anticipation application (which were reserved in the court order,
dated 9 November 2011) should be costs in the cause of
this
application.
49.
The Third Respondent’s liability for costs
49.1 A state official, such as the Third Respondent, may be ordered
to pay the costs of litigation in which he or she is a party.
Such an
order is envisaged in paragraph 1.7 of the court order, dated 29
August 2011, which is quoted in paragraph 12, above, and
it may be
made if the Third Respondent’s “action has been
mala
fide
or grossly irregular” – LAWSA, volume 3, part 2,
paragraph 267. See also
J and Another v Commissioner of Child
Welfare, Durban
,
1979 (1) SA 219
(N) 223.
49.2 Mr Choudree submitted that, if this application succeeds, the
Third Respondent should be ordered to pay the Applicants’

costs. The main thrust of Mr Choudree’s submission was that the
First and Second Respondents should not, as he put it, be
“penalised”
for opposing this application. In his heads of argument, Mr Choudree
made the following submissions regarding
the costs:
“
12.
Insofar as costs are concerned, the concerns raised by the First
Respondent which were conveyed in his letter of complaint to the

Master, were valid and serious concerns and do not justify any Costs
Order being made against the First and Second Respondents
when the
Master made the final decision.
13.
The circumstances relating to the First Applicant claiming that (
sic
)
especially in view of the fact that the First Applicant cited the
very same address as was used by the Master in the First Applicant’s

letter dated 23 October 2008, Annexure ‘FMS5’ at page 111
is significant and does not justify such a Cost Order.
14.
In addition thereto, the First and Second Respondents cannot be held
liable for any action by the Master who decided the matter

independently.”
49.3 It was during the course of his reply to Mr Choudree’s
submissions that Mr Shaw described the conduct of the Third
Respondent as “appalling” and suggested that, as an
alternative to an order that the First and Second Respondents should

pay the Applicants’ costs, jointly and severally, I should make
such order against all three the Respondents.
I do not think that I can make any order for costs against the
Third Respondent, who was not legally represented at the hearing
on
12 December 2011. Although Ms Naidoo of the office of the State
Attorney (who kindly assisted me to ensure the attendance
at court
of Ms Moatlhudi and Ms Naidoo) was initially at court on 12
December 2011, she did not appear for the Third Respondent.
I think
I placed that fact on record, but, if I did not, it does not
matter. Because the settlement negotiations in case number

5865/2011 took quite some time, Ms Naidoo came to see me in
chambers and, although she was, in the first place, not obliged
to
attend court, I “excused” her from further attendance.
Ms Naidoo was not present at the hearing of this application.
49.5 In paragraph 28, above, I quoted the Third Respondent’s
Notice to Abide. In my view, the effect of the Notice to Abide
is
such that no other partly could claim any order for costs against the
Third Respondent, without giving due notice to the Third
Respondent.
I do not have to determine what would constitute “due notice”.
At the hearing on 12 December 2011 no party
claimed to have given any
form of notice whatsoever to the Third Respondent that a cost order
would be sought against that official.
Absent any such notice, I do
not think I can make a cost order against the Third Respondent.
49.6 I may be wrong in the view expressed in paragraph 49.5, above,
and, therefore, I also consider the issue on the footing that
I can
make a cost order against the Third Respondent. Even if I can do so,
I do not think that I should make any such order. I
consider the
positions of the First and Second Respondents and of the Applicants
in, respectively, paragraphs 49.7 and 49.8, below.
49.7 I think the answer to the question of the Third Respondent’s
liability for costs, lies principally in Mr Choudree’s

submission (quoted in paragraph 49.2, above) that the Third
Respondent “decided the matter independently”. That
submission
is, in my view, factually incorrect. The affidavit
evidence (supported by the correspondence and the statements by Ms
Moatlhudi
and Ms Moodley on 12 December 2011) considered in the light
of the probabilities, point unerringly to the conclusion that it was

Adv Rajah who “persuaded” (Ms Moodley’s word, with
which Ms Moatlhudi did not disagree) the Third Respondent
(in the
person of Ms Moatlhudi) to remove the First Applicant as a trustee.
Ms Moodley simply confirmed the inescapable conclusion
that Adv Rajah
spoke to somebody in the office of the Third Respondent on 15 August
2011 and that she fulfilled her mandate, which
was “trustee to
be removed with immediate effect”. Ms Moodley elaborated and
gave me a clearer picture of what really
happened, by informing me
that Adv Rajah went to speak to Ms Moatlhudi after Ms Moodley had
refused Adv Rajah’s request for
the First Applicant’s
removal as a trustee.
Having achieved the removal of the First Applicant as a trustee, the
First and Second Respondents vigorously opposed this application.

Their opposition was not restricted to their support of the Third
Respondent’s decision, but they claimed the removal of
the
First Applicant in their section 23 application. I dealt with that
application in paragraph 46, above. I am quite satisfied
that I
should not exercise my discretion in favour of the First and Second
Respondents to order the Third Respondent to pay the
costs of the
litigation which the First and Second Respondents caused and which
they fought hammer and tongs all the way.
Even if the Third Respondent’s conduct in removing the First
Applicant as a trustee was grossly irregular (which I think
it was) I
am not prepared, in the exercise of my discretion, to make any order
for costs against the Third Respondent. I say so
for the following
reasons:
49.7.1 The Third Respondent’s said conduct was a direct result
of the representations and/or submissions which Adv Rajah
made to the
Third Respondent, in the person of Ms Moatlhudi.
49.7.2 The Third Respondent delivered a Notice to Abide at an early
stage of the litigation.
49.8 There is no suggestion at all that the Applicants will not be
able to recover all their costs from the First and Second Respondents

and that, therefore, they require the security of an additional
co-principal debtor for their costs, namely the Third Respondent.
I
am not prepared to exercise my discretion in their favour by making
any order for costs against the Third Respondent.
50.
The scale of costs
Though it may be a borderline case, I am not satisfied that the
conduct of the First and Second Respondents in the litigation was
so
reprehensible that a punitive order for costs against them is
warranted.
51.
Fees of two counsel
Mr Choudree submitted that the fees of only one advocate should be
allowed. In my view, it was a wise and reasonable step to engage
two
advocates in the litigation. The papers (in this application, case
number 4203/2010 and case number 5856/2011) are voluminous;
the
stakes were high; the removal of the First Applicant as a trustee may
well have carried with it as least some “impairment
of (his)
good name and character” (see paragraph 45.4, above); the First
Respondent and the Second Respondent made very serious
averments of
misconduct (“misappropriation of trust funds, fraud and
collusion”) against the First Applicant in the
litigation and,
taking a holistic view of the matter and all that it involved, I
would say that it was a complex one, justifying
the briefing of two
counsel.
In
Davis v Caledon Municipality and Another
,
1960 (4) SA
885(C)
, 887H the following was said:
“
In my view if the main action justifies two
counsel then two counsel must be allowed in all interlocutory
applications.”
I do not regard
Davis
as laying down an inflexible rule, but I
am satisfied that the engagement of two counsel was justified in this
application and,
to avoid any misunderstanding, I specifically state
that the briefing of two counsel in the anticipation application was
justified.
52.
The appropriate orders
52.1 In their heads of argument, Mr Shaw and Mr Combrinck asked for
confirmation of paragraphs 1.1, 1.2 and 1.3 of the court order,
dated
29 August 2011. In view of my conclusion that the removal of the
First Applicant as a trustee was invalid, it logically follows
(see
paragraph 18.2, above) that the appointment of the Second Respondent
as a trustee must also be set aside and confirmation
of the said
paragraphs 1.1 and 1.2 of the rule
nisi
, granted on 29 August
2011, will achieve this. Confirmation of paragraph 1.3 of the said
rule will prevent any attempt by the First
and Second Respondents to
seek the removal of the First Applicant as trustee, otherwise than in
terms of section 20 of the Act.
52.2 The Third Respondent will undoubtedly do whatever is necessary
to give effect to my order and, therefore, I do not intend
making a
specific order to that effect.
52.3 I will make cost orders to give effect to this judgment.
For the above reasons, I make the following order:
1. Paragraphs 1.1, 1.2 and 1.3 of the rule
nisi
granted on 29
August 2011 are confirmed.
2. All the costs which were reserved in the application, are costs in
the cause of the application.
3. The costs of the hearing of the application on 19 October 2011 are
costs in the cause of the application.
4. The First Respondent and the Second Respondent are directed,
jointly and severally, to pay the Applicants’ costs of the

application, including the fees of two counsel.
5. Leave is granted to any party who contends that this order is
incomplete because it does not deal with an issue which should
have
been decided, to set the application down, on 5 (five) days’
notice to any other interested party, by not later than
27 January
2012, for the determination of any such issue.
________
McLaren J
Date heard: 12 December 2011
Date of judgment: 23 December 2011
For the Applicants: Adv D J Shaw QC and Adv P J Combrinck
Instructed by: Timol & Associates
Suite 1005
Nedbank House
30 Albert Street
Durban
For the First and Second Respondents: Adv A Choudree SC
Instructed by: Azgar Ally Khan & Associates
Suite C11
1 Victoria Embankment
Durban