THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 695/2023
In the matter between:
TERSIA JOOSTE NO FIRST APPELLANT
JENS LIEVENS NO SECOND APPELLANT
and
JANA ANNELISE PRETORIUS FIRST RESPONDENT
JANA ANNELISE PRETORIUS NO SECOND RESPONDENT
RHINO PRIDE FOUNDATION THIRD RESPONDENT
MASTER OF THE HIGH COURT FOURTH RESPONDENT
JOHANNESBURG
Neutral citation: Jooste NO and Another v Pretorius and Others
(Case no 695/2023) [2024] ZASCA 130 (1 October 2024)
Coram: SCHIPPERS, NICHOLLS, MOTHLE and UNTERHALTER
JJA and BAARTMAN AJA
Heard: 3 September 2024
Delivered: This judgment was handed down electronically by circulation
to the parties’ representatives by email, publication on the Supreme Court of
Appeal website and released to SAFLII. The time and date for hand -down is
deemed to be 11h00 on 1 October 2024.
Summary: Law of trusts – removal of trustee – provision in trust deed
empowering trustees to adopt resolution forcing trustee to resign – subject to Trust
Property Control Act 57 of 1988 – destructive conduct by trustee – continued
support of trust by donor imperilled – beneficiaries prejudiced – resolution by
trustees requiring resignation of trustee valid.

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_________________________________________________________________
ORDER
_________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Maumela J, sitting
as court of first instance):
1 The appeal succeeds with costs, which shall be paid by the first respondent in
her personal capacity.
2 The order of the High Court is set aside and replaced with the following:
‘(a) The application is dismissed.
(b) The counter -application succeeds . It is declared that the following
resolutions taken at the meeting of the trustees of the Rhino Pride
Foundation, Master’s reference number IT001464/15 (G) (the Trust), on
3 March 2022, are valid and enforceable:
(i) that the second applicant, Dr Jana Annelise Pretorius NO, is
required to resign and vacate the office of trustee, in terms of clause
11.1.5 of the Trust’s Deed of Trust; and
(ii) that Ms Marielle Borgström is appointed as a trustee of the Trust in
the place of the second applicant.
(c) The second applicant shall tender her resignation and vacate the office
of trustee within seven (7) calendar days of the date of this order, failing
which the Sheriff of the High Court, Pretoria, is authorised to sign the
necessary documents to give effect to that resolution.
(d) The first applicant shall pay the costs of the application and the counter-
application, in her personal capacity, including the costs of two counsel
where so employed.
(e) The second applicant is directed to sign all documents necessary to grant
the first and second respondents full access to all the bank accounts of

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the Trust, within seven (7) calendar days of the date of this order, failing
which the Sheriff of the High Co urt, Pretoria, is authorised to sign the
necessary documents in her stead.’
_________________________________________________________________
JUDGMENT
_________________________________________________________________
Schippers JA (Nicholls, Mothle and Unterhalter JJA and Baartman AJA
concurring)

[1] This appeal concerns the proper construction of a clause in a trust deed ,
which, subject to the Trust Property Control Act 57 of 1988 (the Act), provides that
the office of a trustee shall be vacated when the remaining trustees unanimously
require the resignation of any trustee. The appellants are trustees of the third
respondent, Rhino Pride Foundation (the Trust), a public charitable inter vivos trust
(created during the li fetime of a person) established in terms of the Act, and
registered as a non-profit and public benefit organisation.

[2] The first respondent, Dr Jana Annelise Pretorius (the respondent) , a
specialist wildlife veterinarian, is the founder and a trustee of the Trust. The main
objects of the Trust are the creation of a fund to put an end to the poaching of rhinos
for their horns; the advancement and protection of rhinos in South Africa; and the
provision of medical care and facilities to rhinos , including emergency relief and
rescue.

[3] On 3 March 2022, in terms of clause 11 of the Deed of Trust (the trust deed),
the appellants adopted a resolution by majority vote , requiring the respondent to
resign from her office with immediate effect (the impugned resolution) . On
16 March 2022 the respondent, in her personal capacity and as a trustee, applied to
the Gauteng Division of the High Court, Pretoria (the High Court), for an interdict

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to prevent the appellants from enforcing the impugned resolution, pending the
finalisation of an action to be instituted to set aside that resolution (the main
application). The appellants filed a counter -application for an order that the
impugned resolution be enforced; alternatively, that the respondent be removed
from office as a trustee, in terms of s 20(1) of the Act.

[4] The High Court granted the main application and dismissed the counter -
application, with costs, including the costs of two counsel. It issued an interdict
restraining the appellants from enforcing the impugned resolution , pending
finalisation of an action which was subsequently instituted by the respondent for
their removal as trustees.

[5] The appeal is with the leave of this Court. Although an interim order is
ordinarily not appealable, 1 this case is somewhat unique: the facts in the main
application and the counter-application are inextricably linked. Therefore, should
it be found that the impugned resolution is valid, the interdict cannot remain in
force.

The facts
[6] The facts are largely common ground and can be briefly stated. The
respondent founded the T rust in 2014. She met the appellants in 2017 , and they
became friends through their shared passion for rhino conservation. The first
appellant is an attorney who runs a non-profit organisation called Rhino Connect,
which raises funds for various rhino protection projects, and she is not a recipient
of any funds of the Trust. The second appellant is a Belgian banker who worked in
the defence industry, and has experience in rhino anti-poaching technology.


1 Zweni v Minister of Law and Order [1992] ZASCA 197; [1993] 1 All SA 365 (A); 1993 (1) SA 523 (A) at 536B;
TWK Agricultural Holdings (Pty) Ltd v Hoogveld Boerderybeleggings (Pty) Ltd and Others [2023] ZASCA 63;
2023 (5) SA 163 para 30.

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[7] In May 2019 the second appellant, who sources overseas funding for the
Trust, facilitated a substantial donation of some R50 million by a foreign donor
who has chosen to remain anonymous (the donor), to expand the then existing
sanctuary which was home to 50 rhinos. This donation constitutes about 90% of
all the funds received by the Trust through donations, its sole source of income .
The donor concluded a memorandum of understanding (MoU) with the Trust, valid
until 30 May 2026. In terms of the MoU, the donor agreed to fund the establishment
of a rhino sanctuary in a maximum amount of USD 5 540 000 over five years. The
MoU contains stringent reporting requirements by the Trust to the donor, and states
that the donor can terminate the MoU without any reason.

[8] At the respondent’s request, the first appellant was appointed as a trustee in
2019 and the second appellant, in 2020. The Trust bought a farm in Bela-Bela,
Limpopo (the farm), in July 2019, using the funds provided by the donor. A rhino
sanctuary was established on the farm, which was improved by the construction of
a veterinary hospital, animal enclosures, staff accommodation and a guardhouse.

[9] The operating costs of the T rust – about R675 000 per month – which
include staff salaries and extensive security costs to protect the rhinos, are funded
by the foreign donation. Without this funding the T rust cannot protect, treat and
rehabilitate rhinos on the farm.

[10] The respondent provides veterinary services to the Trust at a fee of R75 000
per month . Initially she was not going to live on the farm and concluded an
agreement to purchase her own property in Bela-Bela, but this did not materialise.
Subsequently the trustees agreed that she could live in a house on the farm.

[11] The parties had a good relationship until late 2021 , when the appellants
became concerned about the respondent’s administration of the Trust and

became concerned about the respondent’s administration of the Trust and
management of the farm. She failed to adhere to the budget for improvements on

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the farm , which created difficulties in report ing to the donor . Without the
appellants’ knowledge, the respondent’s fiancé became involved in the activities
of the Trust and its operations on the farm. She appointed her fiancé’s companies
as service providers to the Trust. Numerous staff members lodged grievances with
the appellants about the abusive behaviour of the respondent and her fiancé, and
what they claimed were inhumane working conditions (they were denied access to
kitchen and ablution facilities). As to the administration of the Trust, the appellants
did not have any access to its bank accounts at the time.

[12] These concerns were discussed at a meeting of the trustees on 18 January
2022. At the outset, the appellants made it clear that they were not there to attack
the respondent, but to work with her in addressing their concerns. The transcribed
minutes of that meeting state the following: that in the past few months the
respondent had acted as a sole trustee; that the appellants could not communicate
with her; that they had taken a decision that the respondent should take a leave of
absence for at least a month , during which they would manage operations on the
farm; and that her fiancé should leave the farm immediately . The meeting ended
with the respondent agreeing to go on leave and saying that the appellants should
tell her when they wanted her back. She recorded that she was being forced to do
so and that things could have been done differently. Two resolutions were taken at
the meeting. These were essentially that the respondent’s fiancé w ould leave the
farm immediately; and that the appellants would be granted access and added as
signatories to the Trust’s bank accounts, and all transactions in excess of R15 000
would be authorised by two trustees.

[13] The appellant s then made the necessary arrangements with the Trust’s
employees and service providers for the continued operation of the farm. They

employees and service providers for the continued operation of the farm. They
ensured that the rhinos were cared for; that the security was adequate; and that the
employees had access to the necessary facilities. The rhinos (which do not require
constant attention of a veterinarian) were cared for mainly by the veterinary nurses

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and staff who live on the farm. It was agreed that the respondent would be available
to provide medical care to the rhinos, and arrangements were made with Warmbad
Dierekliniek (animal clinic) for any ad hoc emergency assistance.

[14] On 20 January 2022, two days after the trustees’ meeting, the respondent
approached the High Court urgently – without any notice to the appellants – for a
spoliation order and an interim interdict. The High Court (Millar J) issued an order
restoring the possession and use of the farm to the respondent; and granted an
interdict restraining the appellants from terminating her trusteeship, and interfering
with her right to occupy the house on the farm and her management of the T rust,
pending the outcome of proceedings to be instituted by the respondent for the
removal of the appellants as trustees (the ex parte order).

[15] After obtaining the ex parte order, the respondent excluded the appellants
from all aspects of the Trust. She denied them access to its bank accounts, email
server, accounting software , and to all documents relating to the Trust. She
prevented the Trust’s accountants from accessing its accounting software. She
removed the appellants from all of the Trust’s WhatsApp groups (which include
its employees and business associates) , posted a notice of the ex parte order on
WhatsApp and informed the recipients that the appellants were no longer trustees.
And she sent a copy of the order to the donor.

[16] The donor beca me extremely concerned about the ad ministration of the
Trust, enquired whether the remainder of the donation could be withdrawn and
stated that any future donations would not be made. The donor’s representatives
requested certain information from the respondent. She apparently did not respond
to this request.

[17] On 26 January 2022 the appellants launched an urgent application to the
High Court for an order that they be reinstated as trust ees. Prior to the hearing of

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that application, the respondent relented and the appellants’ trusteeship was
restored. The respondent also did not pursue her application for contempt of court,
which she had brought in the High Court in the interim.

[18] The parties and their legal teams met thereafter. The appellants proposed that
the litigation be resolved as follows. The respondent would return to the farm, but
not her fiancé. The appellants would be granted access to the computer platforms
and bank account s of the Trust. The concerns raised b y the appellants would be
resolved by mediation. The respondent however rejected this proposal.

[19] Meanwhile, the donor became increasingly concerned about the status of the
Trust. On 1 February 2022 the donor’s representatives sent an email to the trustees,
in which they expressed their dissatisfaction with the situation. They stated that all
investments should be postponed ; that a short -term solution should be
implemented; and that spending should be avoided.

[20] The appellants then applied to the High Court for the reconsideration of the
ex parte order. The application came before Janse Van Nieuwenhuizen J on
4 February 2022, who set aside that order, with costs. The court found that the
respondent ‘failed dismally in observing the utmost good faith when the ex parte
order was obtained’; that certain allegations in her affidavit were ‘blatantly untrue’;
that she had not been ‘unlawfully deprived of her undisturbed possession of the
farm’; and that the facts did not sustain the order excluding the appellants from
fulfilling their duties as trustees.

[21] The judgment in the reconsiderat ion application was sent to the donor,
whose representatives responded by email on 21 February 2022, as follows:
‘The Donor has asked us to express their concern in respect of the recent developments regarding
the court cases between the trustees.

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We have considered the judgement and are disappointed with the way Jana has handled the
situation. It is clear from the judgement that she acted dishonestly, and the donor has indicated
that their trust in Jana is lost.
The donor informed us that unless order is restored at the sa nctuary, the donor considers no
longer to support the Rhino Pride Foundation. Ther efore, we ask that Jana resign and/or to be
removed as Trustee.
In the meantime, all investments and/or expenses must be put on hold unless absolutely critical
for the safety and welfare of the rhinos.’

[22] The answering affidavit states that a loss of future donations from the donor
would be the death knell of the Trust, since other donations make up only some
10% of its income, which would not meet the Trust’s monthly expenses, even for
a few months. Consequently, there was a real possibility that the Trust would no
longer be able to continue its work without the financial assistance of the donor.

[23] The respondent’s reply to this is startling. She denied that ‘the Trust would
not be able to continue its work without the donations from this specific dono r’.
She said that ‘there are many other donors available to the Trust, and there are other
sources of income that could still be explored’.

[24] A meeting of the trustees was convened for 3 March 2022. One of the items
on the agenda for that meeting, prepared by the appellants, was that the respondent
should vacate the office of trustee in terms of clause 11 of the trust deed, and be
replaced by Ms Marielle Borgström, the donor’s representative.

[25] The main reasons for the proposed resolution that the respondent vacate her
office of trustee, were the following:
(a) The respondent had deposed to the affidavit in the ex parte application
against the appellants, containing false statements . This irreparably
harmed the relationship between her and the appellants, imperilled the

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administration of the Trust, and jeopardised the financial support by the
donor.
(b) After obtaining the ex parte order, the respondent, through her
attorneys, addressed correspondence to the other trustees demanding
that they cease any contact or engagement with any known associates
of the Trust, including its sponsors, contractors, agents, suppliers and
any other affiliate of the Trust. This was unlawful and contrary to the
trust deed.
(c) The respondent unlawfully removed the appellants from all computer
platforms necessary to administer the Trust, and agreed to reinstate
their access to those platforms, only after the y launched an urgent
application to the High Court.
(d) The respondent falsely informed the trust’s employees, affiliates,
service providers and business associates, that the appellants were no
longer trustees, thereby damaging the Trust’s reputation.
(e) Certain employees of the Trust were seeking redress of their grievances
against the respondent , before the Commission for Conciliation,
Mediation and Arbitration (CCMA).
(f) The respondent’s continuance in office as trustee would prevent the
Trust from being properly administered , and was detrimental to the
welfare of the beneficiaries.
[26] In the answering affidavit , the first appellant states that th e impugned
resolution was not taken lightly, but in the interests of the Trust and its
beneficiaries, which could only be served if the Trust were properly administered.
These allegations were met with a bald denial in reply, and an assertion that ‘no
evidence was led’ to prove the allegations against the respondent; and that her
constitutional rights in s 34 of the Constitution had been violated.

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[27] As stated, on 16 March 2022 the respondent launched the main application.
On 14 September 2022 the High Court granted the interdict and dismissed the
counter-application.

The High Court’s judgment
[28] The High Court found that in seeking the relief which they did, there were
allegations and counter -allegations by the parties, which gave rise to disputes of
fact that could not be resolved without recourse to oral evidence. On this basis, the
court said, it would be premature to prevent a trustee from participation in the
affairs of the Trust ‘based on reasons that have not been substantiated’.

[29] The court held that the respondent was not given a fair hearing and that the
impugned decision ‘clearly amounts to an infringement of the constitutionally
enshrined rights of the Founding Trustee’. Then it said that it was common cause
that rhinos are an endangered species worldwide ; that they require security; and
that a ‘unilateral removal’ of the respondent in circumstances ‘where there is no
oversight at all’, undermined the basis for the formation of the Trust.

[30] The High C ourt reasoned that to remove a trustee, the appellants had to
comply with the requirements and procedure set out in the common law or s 20(1)
of the Act. It said, ‘the removal of a trustee cannot just be subject to the whims of
fellow members of the Trust’ ; the appellants had failed to show that the
respondent’s removal was ‘for the benefit of the Trust Property and the animals on
it’; and the court was loath to endorse the impugned resolution without the
application of the rules of natural justice. The court stated that that the impugned
decision was ‘arrived at on a unilateral basis’, which was ‘contrary to s 34 of the
Constitution’.2

2 Section 34 of the Constitution provides:
‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public

hearing before a court or, where appropriate, another independent and impartial tribunal or forum.’

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[31] The High Court concluded that the action instituted by the respondent should
run its course, to determine whether the impugned resolution was correctly taken.
The parties could then ‘substantiate fully’ the orders they were seeking.

Disputes of fact requiring oral evidence?
[32] It is convenient to deal first with the counter -application. The appellants
sought a final order, essentially that the impugned resolution is valid and
enforceable.

[33] In Zuma3 Harms JA said:
‘Motion proceedings, unless concerned with interim relief, are all about the resolution of legal
issues based on common cause facts. Unless the circumstances are special they cannot be used
to resolve factual issues because they are not designed to determin e probabilities. It is well
established under the Plascon-Evans rule that where in motion proceedings disputes of fact arise
on the affidavits, a final order can be granted only if the facts averred in the applicant's . . .
affidavits, which have been admi tted by the respondent . . . , together with the facts alleged by
the latter, justify such order. It may be different if the respondent’s version consists of bald or
uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far -fetched or
so clearly untenable that the court is justified in rejecting them merely on the papers.’

[34] The basic facts in the counter-application are common cause. The High
Court’s finding that there were disputes of fact that coul d not be resolved on the
papers is erroneous . So too, its conclusion that the reasons for the impugned
resolution are unsubstantiated.


3 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA); 2009 (1) SACR 361
(SCA); 2009 (4) BCLR 393 (SCA); [2009] 2 All SA 243 (SCA) para 26 , affirmed by the Constitutional Court in
Commercial Stevedoring Agricultural and Allied Workers’ Union and Others v Oak Valley Estates (Pty) Ltd and

Another [2022] ZACC 7; [2022] 6 BLLR 487 (CC); 2022 (7) BCLR 787 (CC); 2022 (5) SA 18 (CC) para 46.

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[35] The common cause facts are these. At the meeting of 18 January 2022, the
respondent agreed to take a leave of absence for a month on account of the
appellants’ concerns about her management of the farm . The a ppellants made
arrangements to take over operations on the farm and protect the rhinos. At no stage
was there going to be ‘no oversight at all’, as the High Court opined. Neither were
the rhinos left unprotected.

[36] Despite agreeing to take a temporary leave of absence, in a remarkable volte-
face, the respondent obtained the ex parte order. She stated under oath that she had
been unlawfully removed from the farm; that the appellants had prevented her from
practising as a veterinarian and attending to rhinos under her care; that they had
unilaterally and for no reason, summarily terminated the security measures to
protect employees living on the farm, and the endangered rhinos; and that pursuant
to the appellants’ threats to remove the respondent as trustee, they had contacted
the Trust’s private banker to revoke her access to its bank accounts.

[37] All of these statements were false, as Janse Van Niewenhuizen J indeed
found. Consequently, the ex parte order was set aside. There is thus no factual
dispute about the respondent’s procurement of that order on the basis of false
statements, and its consequences – a complete breakdown of the relationship
between her and the appellants; the donor’s support being placed at risk; and the
sustenance of the beneficiaries being endangered. And the respondent’s statements
that the Trust could continu e its work without the support of the donor, and that
there are many other donors available to the Trust, could safely have been rejected
on the papers: they are far-fetched.4

[38] Then there are the common cause facts relating to the respondent’s conduct
in removing the appellants from all computer platforms necessary to administer the

4 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634H-635C, affirmed in Mamadi
and Another v Premier of Limpopo Province and Others [2022] ZACC 26; 2023 (6) BCLR 733 (CC); 2024 (1) SA
1 (CC) paras 22, 43-45.

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Trust; falsely informing the Trust’s employees, service providers and business
associates, that the appellan ts were no longer trustees; and causing the Trust to
become involved in a labour dispute at the CCMA. And she refused mediation to
settle the differences between the parties.

[39] Not a scintilla of evidence can change the truth about any of the events
described above. And t he common cause facts apply equally to the main
application. This is because the respondent was required to establish the requisites
for the grant of an interim interdict , more specifically, a prima facie right, though
open to some doubt.5 However, it is clear from the judgment that the High Court
did not address the issue as to whether the respondent had met the requirements for
an interim interdict. I revert to this aspect below.

Is the impugned decision valid?
[40] The first question that arises is whether the appellants were required to apply
the rules of natural justice in taking the impugned decision. These rules have their
origin in Administrative Law and are generally expressed in two maxims: audi
alteram partem (hear the other side, or the audi principle) and nemo iudex in
propria causa (no one may judge in his own cause). 6 Procedural fairness in the
form of t he audi principle is concerned with giving people an opportunity to
participate in the decisions likely to affect them, and to influence the outcome of
those decisions.7

[41] The impugned decision, however, does not constitute administrative action
as defined in the Promotion of Administrative Justice Act 3 of 2000. 8

5 The requirements of an interim interdict are a prima facie right; a well-grounded apprehension of irreparable harm
if the interim relief is not granted and the ultimate relief is granted; a balance of convenience in favour of the grant
of interim relief; and the absence of any other satisfactory remedy (11 Lawsa 2 ed para 403).

of interim relief; and the absence of any other satisfactory remedy (11 Lawsa 2 ed para 403).
6 L Baxter Administrative Law (1984) at 536.
7 C Hoexter and G Penfold Administrative Law in South Africa 3 ed (2021) at 502.
8 The Promotion of Administration Justice Act defines ‘administrative action’ essentially as:

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Consequently, procedural fairness in the context of administrative action, does not
arise, since a trust is a legal institution sui generis (of its own kind).9 Clause 11 of
the trust deed – the constitutive charter of the Trust to which all trustees are bound10
– sets out the circumstances in which the office of trustee shall be vacated. The
appellants took the impugned decision in terms of clause 11.1.5 of the trust deed,
which empowers trustees to unanimously call for the resignation of a trustee.

[42] That said, the removal of a trustee is a decision of considerable importance
for the governance of a trust. A trustee will ordinarily have no claim of right to
hold the office of trusteeship. But there is good reason to hear from a trustee before
a decision is taken to remove them. This is so because a decision to remove a trustee
must be well-informed and taken in the best interests of the trust and the fulfilment
of its objects. What the trustee has to say enhances good decision-making.

[43] Clause 11.1.5 may also not be invoked arbitrarily; nor on the basis of the
unreasoned exercise of majoritarian power; nor to settle good faith disagreements;
nor on the ground of minor irregular conduct by a trustee11 that does not affect the
administration of the T rust, its assets or the beneficiaries . What matters is the
proper administration of the Trust, to secure and carry out its objects, in the best
interests of the Trust and the beneficiaries. But where, as here, a breakdown in
relations makes the task of trustees diff icult or impossible, 12 coupled with a real
risk to the financial survival of the Trust and the welfare of the beneficiaries,
replacement of a trustee may be the only option.

[44] The decision to replace the respondent, the evidence shows, was not taken
arbitrarily. There were compelling reasons for her removal, and she was treated

‘any decision taken, or any failure to take a decision, by . . . an organ of state, when . . . exercising a public power
or performing a public function in terms of any legislation . . . which adversely affects the right of any person and
which has a direct, external legal effect . . .’
9 Braun v Blann and Botha NNO and Another 1984 (2) SA 850 (A) at 859E.
10 Land and Agricultural Development Bank of South Africa v Parker and Others 2005 (2) SA 77 (SCA) para 10.
11 Volkwyn NO v Clark & Damant 1946 WLD 456 at 467-9.
12 McNair v Crossman and Another [2019] ZAGPJHC 298; 2020 (1) SA 192 (GJ) paras 35 and 36.

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fairly. She had scheduled a meeting of the trustees for 24 February 2022. She
agreed that the meeting be postponed to 3 March 2022, for the appellants to prepare
a list of agen da items, which included a proposed resolution that the respondent
vacate the office of trustee , and that Ms Borgström be appointed to that position .
The list of agenda items was given to the respondent on 21 February 2022.

[45] The proposed resolution was discussed and debated at the meeting on
3 March 2022, after which the impugned resolution was adopted. A resolution
appointing Ms Borgström in place of the respondent was also taken. The answering
affidavit states that Ms Borgström’s appoin tment as trustee ensures both that the
donor’s rights in the operations of the Trust are protected, and that the substantial
funds donated are utilised in accordance with the MoU, in the interests of the
beneficiaries.

[46] What is more, in terms of the MoU, the Trust agreed ‘to collaborate with the
Donor in accordance with the Donor’s desires relating to participation in the
sanctuary activities and operations’. This unquestionably, renders Ms Borgström’s
appointment appropriate. The respondent’s assertion that this appointment is not in
the Trust’s best interests, or that it creates a conflict of interest, is unsustainable on
the evidence.

[47] What all of this shows, is that the respondent’s s 34 constitutional right to
have a dispute that can be resolved by the applic ation of law decided by a court,
was not infringed. The High Court’s conclusion to the contrary, is incorrect. In fact,
the respondent’s approach to the court for an interdict, constitutes the exercise by
a dissenting minority to refer a decision by the ma jority to an appropriate forum
for determination, as envisaged in the trust deed.

[48] This brings me to the proper co nstruction of clause 11 of the trust d eed. It
provides:

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‘11. TRUSTEES – DISQUALIFICATION AND VACATION OF OFFICE
11.1 Subject to the Trust [Property] Control Act, the office of a Trustee shall be vacated if:
11.1.1 he or she resigns his or her office by notice in writing to his or her co-Trustees;
11.1.2 as a natural person, he or she becomes insolvent or is convicted of any offence
involving dishonesty;
11.1.3 he or she shall become of unsound mind and mentally incapable of managing his or
her own affairs;
11.1.4 he or she shall become disqualified in terms of the Companies Act 71 of 2008 or its
predecessor or successor in force from time to time, to act as a director of a company,
or
11.1.5 the remaining Trustees shall unanimously agree in writing that any Trustee(s) be
required to resign.’

[49] The disqualifying criteria in clauses 11.1.2 and 11.1.3, also constitute
grounds upon which the Master of the High Court may remove a trustee from office
under the Act.13 For present purposes, the relevant provisions of the Act are ss 9(1)
and 20, which read:
‘9. Care, diligence and skill required of trustee
(1) 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.’
‘20. Removal of trustee
(1) A trustee may, on the application of the Master or any person having an interest in the trust
property, at any time be removed from his office by the court if the court is satisfied that such
removal will be in the interests of the trust and its beneficiaries.’

[50] The proper approach to the interpretation of the above provisions is settled:
‘It is the language used, understood in the context in which it is used, and having regard to the
purpose of the provision that constitutes the unitary exercise of interpretation . . . [T]he triad of
text, context and purpose should not be used in a mechanical fashion. It is the relationship

text, context and purpose should not be used in a mechanical fashion. It is the relationship
between the words used, the concept expressed by those words and the place of the contested

13 Section 20(2)(a), (c) and (d) of the Act.

18


provision within the scheme of the agreement (or instrument) as a whole that constitute the
enterprise by recourse to which a coherent and salient interpretation is determined.’14

[51] The inevitable starting point is the language of the statutory provisions and
clause 11 of the trust deed.15 Section 20(1) of the Act empowers a court to remove
a trustee from office, if it is in the interests of the Trust and the beneficiaries.
Section 20(1) does not state that this power is exclusive to the court. Nor is there
any reason to read such limitation into s 20(1). Thus, s 20(1) does not detract from
the principle that a founder may reserve the right to remove a trustee, or may confer
it on some other person, if that right is stipulated in the trust instrument. 16 The
principle is illustrated by this very case: clause 10.7 of the trust deed provides, inter
alia, that the founder, with the support of at least a 66% majority o f trustees, is
entitled to remove a trustee.

[52] Clause 11 states that its provisions are subject to the Act. The purpose of the
phrase ‘subject to’, in the field of legislation,
‘is to establish what is dominant and what subordinate or subservient; that to w hich a provision
is “subject”, is dominant – in case of conflict it prevails over that which is subject to it.’17

[53] The meaning and effect of this phrase in relation to clause 11.1.5 of the trust
deed is no different, h aving regard to the plain wording, context and purpose of
that provision. Clause 11.1.5 is subordinate to both s 20(1) and s 9(1) of the Act.
Section 20(1) authorises the removal of a trustee if it is in the interests of the trust
and the beneficiaries ; and where a trustee fails to fulfil h er duties in accordance

14 Capitec Bank Holdings Ltd and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others [2021] ZASCA
99; [2021] 3 All SA 647 (SCA); 2022 (1) SA 100 (SCA) para 25, with reference to Natal Joint Municipal Pension

Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA) para 18;
University of Johannesburg v Auckland Park Theological Seminary and Another [2021] ZACC 13; 2021 (8) BCLR
807 (CC); 2021 (6) SA 1 (CC).
15 Natal Joint Municipal Pension Fund fn 14 para 18.
16 E Cameron, M de Waal and P Solomon Honoré’s South African Law of Trusts 6 ed (2018) at 268; Badenhorst v
Badenhorst 2006 (2) SA 255 (SCA) para 10; Raath v Nel 2012 (5) SA 273 (SCA) para 12.
17 S v Marwane 1982 (3) SA 717 (A) at 747H-748A, affirmed in Zantsi v Council of State, Ciskei, and Others 1995
(4) SA 615 (CC) para 27.

19


with the standard set out in s 9(1), that trustee may be required to vacate her office
in terms of clause 11.1.5.

[54] In other words, and in the particular circumstances of this case, the power in
clause 11.1.5 must be exercised for a reason sanctioned by the Act. That is why it
may not, without more, be invoked by a simple majority. It follows that
clause 11.1.5, for the reasons set out above, may also not be invoked arbitrarily,
irrationally, or capriciously, for example, based on the will, preference or
convenience of the majority of trustees; or where there is no evidence that the
interests of the trust and its beneficiaries would be prejudiced.

[55] This construction is buttressed by the context of clause 11 in the scheme of
the trust deed, in relation to the powers of trustees and the objects of the Trust, and
the purpose of clause 11 within that scheme. Thus, clause 12.1 provides:
‘The powers of the Trustees as set out in this Deed of Trust are powers which are conferred upon
them as Trustees of the Trust and to enable them to administer the Trust Fund for the benefit of
Rhinos in South Africa in accordance with the Trust Objects, and not for their personal benefit.
The extent of the powers vested in the Trustees must be construed in accordance with and subject
to the Trust Objects.’

[56] The main objects of the Trust include the creation of a fund to combat rhino
poaching, the protection of the lives of rhinos in South Africa; the esta blishment
of a rhino protection zone; the provision of funding for the acquisition of land to
establish that zone for the safekeeping of rhinos; and support of sanctuaries and
rehabilitation projects relating to rhinos. Where these objects are subverted or
threatened by the conduct of a trustee, or where a trustee exercises her powers
contrary to clause 12.1, the remaining Trustees are empowered to call for the
resignation of that trustee in accordance with clause 11.1.5, without the need to

resignation of that trustee in accordance with clause 11.1.5, without the need to
approach a court for the removal of a trustee, in terms of s 20 (1) of the Act. This
plainly, was the intention of the founder – the respondent, no less. Otherwise
construed, clause 11.1.5 is rendered meaningless.

20


[57] Clause 11.1.5 thus provides an expeditious method for the removal of a
trustee, in the interest of the Trust and its beneficiaries . It obviates the lengthy
delays, exorbitant costs and uncertainties associated with litigation. It is
supplementary to the disqualification criteria in clauses 11.1.2 to 11.1.4 of the trust
deed. And it does not oust the right of trustees to apply to court for the removal of
a trustee in terms of s 20 (1) of the Act, or under the common law, which permits
the removal of a trustee when continuance in office would prevent the proper
administration of a trust, or be detrimental to the welfare of beneficiaries .18 In
Gowar19 this Court stated that the common law principle is endorsed in s 20(1) of
the Act.

[58] Returning to the present case, on the common cause facts outlined above,
the appellants have established that the resolutions that the respondent vacate the
office of trustee, and that Ms Borgström be appointed to that position, are valid and
enforceable. The removal of the respondent as trustee is plainly in the interests of
the Trust and its beneficiaries. The papers are confined to these resolutions, and it
is therefore inappropriate to con firm all the resolutions taken at the meeting of
3 March 2022, as sought by the appellants.

[59] The common cause facts also show that the respondent did not establish a
prima facie right for the grant of the interim interdict: in essence, she failed to show
that she has good prospects of success in the action in which she asks for an order
that the appellants be removed as trustees. 20 Had the High Court applied the test
for a prima facie right, it ought to have concluded that in light of the inherent
probabilities, the respondent is unlikely to succeed in her action. Consequently, the
main application should have been dismissed.


18 Sackville West v Nourse and Another 1925 AD 516 at 527; Honoré’s op cit fn 16 at 271.

18 Sackville West v Nourse and Another 1925 AD 516 at 527; Honoré’s op cit fn 16 at 271.
19 Gowar and Another v Gowar and Others [2016] ZASCA 101; [2016] 3 All SA 382 (SCA); 2016 (5) SA 225
(SCA) para 28.
20 Economic Freedom Fighters v Gordhan and Others [2020] ZACC 10; 2020 (6) SA 325 (CC); 2020 (8) BCLR
916 para 42.

21


Costs
[60] Trustees must act honestly and reasonably. They have a duty to protect the
assets of the trust for the benefit of the beneficiaries. For these reasons, as a general
rule a trustee should not be ordered to pay costs de bonis propriis (out of own
pocket), whether as an applicant or respondent, unless she has acted in bad faith,
negligently or unreasonably.21

[61] This is such a case. The ex parte order, based on falsehoods, was obtained
in bad faith. In that application the respondent sought an order that the appellants
who opposed it, should pay costs on an attorney and client scale. The respondent
then prevented the appellants from fulfilling their duties as trustees. Consequently,
they were compelle d to apply for a reconsideration of the ex parte order, which
was set aside on the basis that it had no foundation, in fact or in law. The respondent
was ordered to pay the costs of the ex parte application.

[62] The respondent restored the appellants’ administration of the Trust, only
after they launched a separate urgent application on 26 January 2022 for her to do
so. In the meantime, the respondent had brought an application for contempt of
court by the appellants, which she subsequently withdrew. She then launched the
main application which, on the common cause facts, was doomed to failure from
the outset. In that application, she also sought an order that the appellants pay the
costs of her contemplated action for their removal, on an attorney and client scale.
Throughout, the respondent paid scant r egard to Trust’s continued existence and
the welfare of the beneficiaries, regardless of their utter dependence on the donor.

[63] In these circums tances, the only appropriate order is that the respondent
should pay the costs of these proceedings in her personal capacity. She acted in bad
faith and recklessly.

faith and recklessly.

21 Grobbelaar v Grobbelaar 1959 (4) SA 719 at 725B; Honoré’s op cit fn 16 at 476-477; See 3 Lawsa 2 ed para
377 and the authorities there collected. See also Pheko and Others v Ekurhuleni Metropolitan Municipality [2015]
ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC) para 51.

22


Conclusion
[64] In the result, the following order is issued:
1 The appeal succeeds with costs, which shall be paid by the first respondent in
her personal capacity.
2 The order of the High Court is set aside and replaced with the following:
‘(a) The application is dismissed.
(b) The counter -application succeeds. It is declared that the following
resolutions taken at the meeting of the trustees of the Rhino Pride
Foundation, Master’s reference number IT001464/15 (G) (the Trust), on
3 March 2022, are valid and enforceable:
(i) that the second applicant, Dr Jana Annelise Pretorius NO, is
required to resign and vacate the office of trustee, in terms of clause
11.1.5 of the Trust’s Deed of Trust, and
(ii) that Ms Marielle Borgström is appointed as a trustee of the Trust in
the place of the second applicant.
(c) The second applicant shall tender her resignation and vacate the office
of trustee within seven (7) calendar days of the date of this order, failing
which the Sheriff of the High Court, Pretoria, is authorised to sign the
necessary documents to give effect to that resolution.
(d) The first applicant shall pay the costs of the application and the counter-
application, in her personal capacity, including the costs of two counsel
where so employed.
(e) The second applicant is directed to sign all documents necessary to grant
the first and second respondents full access to all the bank accounts of
the Trust, within seven (7) calendar days of the date of this order, failing
which the Sheriff of the High Court , Pretoria, is authorised to sign the
necessary documents in her stead.’

23






__________________
A SCHIPPERS
JUDGE OF APPEAL

24


Appearances:

For appellants: N Marshall
Instructed by: Visser Inc Attorneys, Pretoria
Honey Attorneys, Bloemfontein

For first and second respondents: A van der Walt
Instructed by: Krige Attorneys Inc, Pretoria
Phatshoane Henney Attorneys,
Bloemfontein