IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: 4024/2024
In the matter between:
PETER OTTO ALBERT GEES Applicant
and
JOHN MARR REX DUTHIE First respondent
ANTHONY CRAIG PARKER Second respondent
THE MASTER OF THE HIGH COURT, CAPE TOWN Third respondent
JUDGMENT DELIVERED ON 10 OCTOBER 2024
Delivered electronically via email
VAN ZYL AJ:
Introduction
1. The facts of this matter are largely common cause. On 17 May 2001
Jean-Mary Duthi,1 as founder, executed the trust deed of the Woodbourne
1 The parties refer to her as “Jean-Mary” in the papers, and I shall do the same.
Trust, together with Craig Ian Tingle (“Tingle”) and the first respondent
(“Duthie”). The trust was duly registered by the third respondent. Duthie
and the second respondent (“Parker”) are currently the two trustees of the
trust.
2. On the day of the execution of the trust deed, 17 May 2001 , Jean-Mary
signed a declaration of appointment of the applicant as protector for the
purpose of and subject to the provisions of clause 33 of the trust deed,
which regulates amendments to the trust deed . I shall set return to the
provisions of clause 33 and its proper interpretation.
3. On 9 July 2002 Jean -Mary in wri ting nominated the applicant as her
successor as trustee, of the trust in terms of clause 4(b) of trust deed. She
repeated that nomination in clause 11 of her will. 2 Clause 4(b) deals with
the nomination of a person or persons to be appointed as a trustee or
trustees on the death or vacating of office of an existing trustee.
4. On 1 December 2020 Jean -Mary and Duthie , in their capacities as
trustees and beneficiaries o f the trust, and Parker in his capacity as a
trustee, concluded an agreement for the amendment3 of the trust deed.
5. Jean-Mary executed a last will on 2 October 2020, and died on
31 July 2023. The applicant is the executor of her deceased estate,
having been appointed as such in her will. He brings this application in
both his official and his personal capacity.
6. Two issues arise for determination: first, whether the applicant should be
appointed as a trustee of the trust; and second, whether the amendmen t
2 The formulation in the will is a w ider one, nominating the applicant as her successor as trustee in
respect of all trusts of which she is a trustee; but that obviously includes the Woodbourne Trust.
3 Entitled “Agreement of Variation”.
to the trust deed in 2020 was valid.
Principles of interpretation
7. The case turns on the proper construction of clauses 4(b) and 33(a) of the
trust deed. The principles that apply to the interpretation of documents
such as the trust deed are by now well -established. As appears from the
relevant case law, 4 the inevitable point of departure is the language of the
provision itself, with meaning to be attributed to the language used in the
light of the ordinary rules of grammar and syntax.
8. Regard must be had to the context in which the provision appears, and the
apparent purpose to which it is directed . F rom the outset one considers
the context and the language together. Context is provided by reading the
particular provision in the light of the document as a whole and the
circumstances attendant upon its comi ng into existence, including the
parties’ subsequent conduct.
9. The process of interpretation is objective, not subjective.
10. A sensible meaning is to be preferred to one that leads to insensible or
unbusinesslike results or undermines the apparent purpose o f the
document. The Court must however be alert to, and guard against, the
temptation to substitute what it regards as reasonable, sensible or
businesslike for the words actually used, that is, not to cross the divide
between interpretation and creating a contract for the parties.
4 See Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at paras
[18]-[19]; Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2)
SA 494 (SCA) at paras [10] -[12]; Tshwane City v Blair Atholl Homeowners A ssociation 2019 (3) SA
398 (SCA) at paras [61] -[64]; University of Johannesburg v Auckland Park Theological Seminary and
another 2021 (6) SA 1 (CC) at para [68] ; Capitec Bank Holdings Ltd and another v Coral Lagoon
Investments 194 (Pty) Ltd and others 2022 (1) SA 100 (SCA) at paras [47]-[50].
11. Meaning is ultimately the most compelling and coherent account the
interpreter can provide, making use of the words and sentences that
comprise the contested provision as they fit into the larger structure of the
document, its c ontext and purpos e. It is not a partial selection of
interpretational materials directed at a predetermined result.
12. The issues in dispute are discussed against this background.
The applicant’s nomination as trustee in the context of clause 4(b) of the trust
deed
13. Clause 4(b) of the trust deed reads as follows:
“The Trustees shall be entitled, under a written instrument, to nominate
the person or persons who shall be appointed as Trustee or Trustees to
take the place of any Trustee dying or vacating office for any reason and
to provide for the order of priority in which any persons so nominated shall
be appointed. They shall further have the right by subsequent written
instrument to change or vary any nomination so made before effect is
given thereto. The Trustees shall make such appointments as shall be
necessary to give effect to any nomination or nominations made in terms
of this sub-clause.”
14. Clause 4(b) of the trust deed entitles the trustees, in writing, to nominate the
person or persons who shall be appointed as trustee or trustees to take the
place of any trustee dying or vacating office. The trustees must make such
appointments as shall be necessary to give effect to any nomination or
nominations made in terms of the provision. There are accordingly two
stages to the process of substituting a deceased trustee or one who has
'
vacated office. At the first stage, a replacement trustee is nominated. At the
second stage, a replacement trustee is appointed.
15. The second-stage appointment is c learly to be made by the remaining
trustees – this is indicated by the last sentence of clause 4(b). Self-
evidently, the remaining trustees, acting collectively, are tasked with taking
the steps necessary to give effect to a nomination.
16. What is in dispute between the parties is whether the first-stage nomination,
too, must made by the trustees collectively , or whether instead each trustee
is entitled individually to nominate his or her successor, to which effect will
be given by the remai ning trustees once the office of the nominating trustee
falls vacant. Duthie and Parker contend for the former interpretation . The
applicant argues that, because of his nomination by Jean-Mary as trustee in
her stead, on her death Duthie and Parker (the r emaining trustees ) were
obliged to give effect to that nomination by appointing him a s trustee in
terms of clause 4(b).
11. It is necessary to look at the wider context appearing from the trust deed.
12. Clause 4(a) of the trust deed provided for the appointment as the first
trustees of Jean -Mary, being the founder, of Duthie (who is one of Jean -
Mary's four children ), and of Tingle. Clause 19(b) of the trust deed
provided5 that the trust beneficiaries were JeanMary, her children, and
the grandchildren born or to be born of Jean -Mary and their further
descendants. The first trustees thus comprised the founder, a trust
beneficiary trustee, and an independent trustee.
13. In terms of clause 34 (the interpretation clause in the trust deed) the
5 Prior to an amendment in September 2001.
trustees are defined as meaning the trustees for the time being of the
trust. In terms of clause 4(d), there shall at all times be not less than two
trustees.
14. The powers of the trus tees are set out in clause 7 of the trust deed .
Clause 7(j) provides for wide residual powers:
“Without in any way derogating from the powers and authorities
hereinbefore vested in the Trustees, they shall have such ancillary and/or
additional powers as s hall be necessary or requisite to enable them from
time to time to deal with all matters appertaining to the Trust in such
manner as they shall deem advisable in the interest of the Trust.”
15. It is a fundamental rule of trust law that , in the absence of contrary
provisions in the trust deed, the trustees must act jointly if the trust is to be
bound by their acts (referred to as the joint action requirement).6 The rule
is of general application to the exercise of trustee powers. Thus, for
example, the residual powers conferred by clause 7(j), absent any
provision to the contrary, are to be exercised collectively by virtue of the
joint action requirement.
16. In terms of clause 12 of the trust deed , in the event of any disagreement
between the trustees, the decision of the majority of them shall prevail . In
the event of an equality of votes, the matter under discussion shall be
dropped.
17. If the language of clause 4(b) is the point of departure, the clause is clear
and unambiguous. The trustees (plural) are empowered to nominate a
person or persons to take the place of any trustee dying or vacating office.
6 Land and Agricultural Bank of South Africa v Parker and Others 2005 (2) SA 77 (SCA) at para [15].
They (that is, the trustees) also have the right by subsequent written
instrument to change or vary any no mination before effect is given thereto.
The language is consistent with the joint action requirement.
18. The applicant contends, however, that clause 4(b) should be understood to
mean that any trustee (individually) shall be entitled to nominate the person
who shall be appointed as the trustee to take the place of the nominating
trustee on the latter’s dying or vacating office. He argues that t he
employment of the plural word "Trustees" at the beginning of the first
sentence of clause 4(b) gives rise to two possible meanings. One is that all
the trustees, acting jointly, are entitled to nominate a successor trustee. The
other is that each of the trustees, acting singly, is entitled to nominate his or
her successor trustee. The former meaning is , according to the applicant,
contradicted by the immediate context, the wider context, and the purpose
of the provision. It results in superfluity and absurdity. The latter meaning
gives rise to none of those difficulties. It is accordingly to be preferred.
19. There is no dispute that the power of assumption or subrogation 7 may be
given to trustees. Where such power is conferred on trustees it is to be
exercised by all of the trustees in office at the time of the assumption,
unless the trust deed indicates the contrary. 8 I agree, however, with the
submission made by couns el for the respondents that the applicant’s
problem is textual : the applicant’s interpretation would require a material
reworking of clause 4(b) along the following lines ( counsel usefully
included a version in his heads of argument where strikethrough indicates
deletion and underlining indicates addition , and I replicate his version
here):
7 The power of assumption combined with the power of to resign from the trust: Cameron et al
Honor’s South African Law of Trusts (6ed) at p 218.
8 Honore supra at p 214.
“The Trustees Any Trustee shall be entitled, under a written instrument, to
nominate the person or persons who shall be appointed as Trustee or
Trustees to take the place of any that Trustee dying or vacating office for
any reason and to provide for the order of priority in which any persons so
nominated shall be appointed . They He or she shall further have the right
by subsequent written instrument to change or vary any nomination so
made before effect is given thereto. The Trustees shall make such
appointments as shall be necessary to give effect to any nomination or
nominations made in terms of this sub-clause.'
20. The applicant argues that a construction based on the plain language of
clause 4(b) as advanced by Duthie and Parker renders the nomination to
which the trustee was to be a party meaningless, and has the result that
clause 4(c) cannot co -exist with clause 4(b). Clause 4(c) provides as
follows:
“Anything to the contrary hereinbefore contained notwithstanding, the
Trustees shall at all times have the right to nominate and appoint such
additional Trustee or Trustees as they shall determine.”
21. I do not agree that clauses 4(b) and (c) cannot co -exist on the plain
language construction preferred by Duthie and Parker. The purpose,
respectively, of clause 4(b) and of clause 4(c) is different.
22. The applicant contends that on the respondents’ interpretation clause 4(b)
would be meaningless when regard is had to the second sentence of
clause 4(b): "They shall further have the right by subsequent written
instrument to change or vary any nomination so made before effect is
given thereto."
23. The initial pronoun "[t]hey' of this sentence would, on the interpretation of
Duthie and Parker, be a reference to the trustees collectively. But effect
is only given to a nomination after a trustee has died or vacated office.
Thus, by the time effect is given, the trustee who is to be replaced is no
longer a trustee. On the interpretation favoured by Duthie and Parker,
therefore, the nomination to which that trustee was a party is
meaningless, as t he remaining trustees can simply change such
nomination before giving effect to it. If the clause is purposively
interpretated, the purpose of clause 4(b) being to permit a trustee to
nominate a successor, it means that each trustee may nominate his or
her successor, and the remaining trustees must gi ven effect to such
nomination once that trustee has died or vacated office.
24. The applicant’s argument seems to me to be a bridge too far given the
clear wording of the clause. Clause 4(b) permits the trustees to nominate
one or more replacement trustees, and to stipulate for the order of priority
in which such persons are to be appointed. It provides for “succession
planning” by nominating designated persons to replace the donor trustee,
the beneficiary trustee , or the independent trustee. This is a power which
must be exercised by the trustees collectively, in line with the joint action
requirement.
25. Conferring a power to change or vary a nomination by subsequent written
instrument befo re effect is given to it preserves a necessary power to
change the succession plan, as circumstances may require. The only
limitation on the power to change or to vary a nomination is that this must
be done prior to effect being given thereto. Regard being had to the fact
that clause 4(b) obliges the trustees to make suc h appointments as shall
be necessary to give effect to any nomination, a variation can only be
made prior to the death of or the vacating of office by the trustee in
question.
26. Clause 4(c) provides for the appointment of an additional trustee or
trustees, as opposed to a replacement trustee or trustees. The trustees
have the power to appoint additional trustees at any time during the
existence of the trust, should it be necessary. The clause thus caters for a
different situation. There is no reason why c lauses 4(b) and 4(c) should
not co-exist, given that they address different situations.
27. In these circumstances, there is no basis to contend, as the applicant
does, that the ordinary language of clause 4(b) renders the nomination
process meaningless. The presumption against superfluity 9 does not
come into play.
28. The applicant argues that, in the broader context, there is one fact of great
significance: Jean-Mary twice nominated the applicant to succeed her as
trustee, and acted alone in doing so. She therefore certainly was of the
view that clause 4(b) authorised her to nominate her own successor. The
importance of this lies therein that in seeking to ascertain the intention of
the parties, a court must examine all the circumstances surrounding the
conclusion of the contract - in this case the execution of the trust deed -
"including any relevant subsequent conduct of the parties".10
29. In Kooij v Middleground Trading 251 CC and another11 the Supreme Court
of Appeal held that:
“It is true that a Court can, when interpreting a contract, have regard to the
9 See Wellworths Bazaars Ltd v Chandler’s Ltd and another 1947 (2) SA 37 (A) at 43.
10 G4S Cash Solutions (SA) (Pty) Ltd v Zandspruit Cash and Carry (Pty) Ltd and another 2017 (2) SA
24 (SCA) at para [12].
11 [2020] ZASCA 45 (23 April 2020) at para [16].
parties' subsequent conduct in order to determine what they
intended. This Court has, however, made it clear that the use of such
evidence is circumscribed. It laid down that such evidence may be
accepted subject to three provisos. First, the evidence must be indicative
of a common understanding of the terms and meaning of the contract.
Second, the evidence may be used as an aid to interp retation and not to
alter the words used by the parties. Third, that evidence must be used as
conservatively as possible.”
30. When considering the language of clause 4(b) in the context of the trust
deed as a whole and the joint action requirement, I do not think that the
way in which Jean -Mary saw her powers of nomination carries great
weight. There is no evidence as to her understanding of the clause other
than her unilateral nominations. She may well have done so mistakenly.
As appears form the discussi on below, s he further acted on her own
(without the assistance of the protector she had appointed under clause
33) on two occasions in amending the trust deed. Her conduct, whether in
nominating her successor or appointing a protector, therefore does not
add much of value to the debate.
31. In the circumstances, I find that Duthie and Parker are not obliged to
appoint the applicant as trustee of the trust.
The December 2020 amendment of the trust deed
32. Clause 33 of the trust deed provides the following:
“AMENDMENT OF TRUST DEED
(a) During the lifetime of the DONOR this Trust Deed may be amended
from time to time in such manner as shall be agreed upon between
the DONOR or such person (hereinafter referred to as "the
Protector”) should the DONOR have appointed same during her
lifetime per sub-clause 33(c) hereunder, as the case may be, and the
Trustees.12
(b) After the death of the DONOR this Trust Deed may be amended
from time to time in such manner as may be agreed upon between
the Trustees and the Protector who shall be nominated in terms of
the provisions of the next succeeding sub-clause.
(c) The Protector shall be:-
(i) Such person as shall be nominated by t he DONOR by written
instrument during her lifetim e or in her Last Will and
Testament;
(ii) If the DONOR shall have failed during her lifetime to nominate
the Protector then the Protector shall be nominated in writing
by the Executors of the DONOR'S Estate;
(iii) The Protector nominated in terms of ( i) or (ii) above shall be
entitled by written instrument to nominate his successor and
such successor and each subsequent successor shall
similarly have the right to nominate his successor.
(d) No amendment of the Trust Deed made pursuant to the above
provisions shall be of any force or effect to the extent that:-
12 Emphasis supplied.
(i) Any benefit shall be conferred by such amendment on the
DONOR or her Estate or
(ii) Such amendment shall enable or make it possible for the
Trustees to confer any benefit on the DONOR or her Estate.'
33. As appears from the respondents’ papers,13 on 28 September 2001 (four
months after the execution of the trust deed) the then trustees of the trust,
being Jean-Mary, Duthie and Tingle, resolved to distribute trust property to
three of the beneficiaries, being Duthie's siblings Lynne, Caroline and
Andrew. On receipt of this property, th ose siblings and their descendants
would no longer participate in any further trust distributions. On the same
day the trustees resolved to amend clause 19(b) of the trust deed by
substituting clause 19(b) to provide that the trust beneficiaries would be
Jean-Mary, Duthie, and Duthie's children (“the beneficiary resolution”).
34. At no time relevant to the beneficiary resolution did Jean -Mary indicate to
Tingle or Duthie as her co -trustees that she had nominated the applicant
as the protector, or that it was necessary to obtain the protector's consent
to the beneficiary resolution.
35. At the time of the trust deed amendment in December 2020 Jean-Mary,
Duthie and Parker discussed the appropriateness of increasing the
minimum number of trustees from two to three; the fact that provision for
the appointment of a protector was no longer necessary, given changed
circumstances, and in particular the fact that Duthie's siblings and their
descendants were no longer trust beneficiaries. Again, Jean-Mary did not
mention that the applicant had been appointed as protector, or that the
protector had any role to play.
13 The applicant seeks final relief on motion: Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd 1984 (3) SA 623 (A) at 634E-635C.
36. The applicant says that, because of his appointment as the protector, any
amendment of the trust deed during Jean -Mary's lifetime required
agreement between himself, as protector, and the trustees . This
argument rests solely on the phrase “as the case may be” in clause 33(a).
This phrase, so the argument goes, i ndicates that there may or may not
be a protector: it depends on whether Jean-Mary has appointed one. If the
case is that there is a protector, then the agreement to amend must be
between the protector and the trustees.
37. I agree with counsel for the respondents, however, that the phrase does
not have the effect contended for by the applicant. It seems to me that the
phrase “ as the case may be ” in this context simply means “either/or”.
Thus, in terms of clause 33(a) amendments to the trust deed during Jean-
Mary’s lifetime may be done in two ways:
37.1. By agreement between Jean -Mary (as donor) and the remaining
trustees; or
37.2. if a protect or has been appointed, by agreement between the
protector and the trustees.
38. There is no sensible reason why , at the time of establishing the trust and
simultaneously signing the declaration of the applicant’s appointment as
protector, Jean -Mary would have intended that trust deed amendments
should require not only the agreement of herself and the remaining
trustees, but the agreement of the protector in addition. The sensible and
businesslike construction of clause 33(a) is that the role of the protector, if
appointed by the donor during her lifetime, was to participate in
considering proposed amendments where this was considered necessary ,
for example, in the case of a deadlock between two trustees.
39. The fact that when the agreement to amend was concluded , Jean-Mary
was 92 years of age, does not advance the applicant’s case. It is
speculation to say that it would have been sensible for her to have the
protection of the applicant. There is no evidence on record indicating
that Jean-Mary required protection.
40. Irrespective of the competing constructions of clause 33(a), any
participation of the protector in considering trust deed amendments would
not be on the basis that his consent was a prerequisite for a trust deed
amendment. The provisions of clause 12 of the trust deed 14 would in any
event apply to any consideration of an amendment by the trustees and the
protector. In the present case, the trust deed amendment was approved
by all three of the trustees, constituting the necessary majority, as well as
the donor.
41. In the circumstances, the December 2020 amendment to the trust deed is
valid.
42. As indicated, on the papers the applicant’s appointment as protector on
17 May 2001 was never acted upon or communicated to the other
trustees. It only came to the attention of Duthie and Parker after Jean -
Mary's death. In fact, the protector did not take part in the amendment to
the trust deed effected on 28 September 2001 (amending clause 19(b) in
relation to beneficiaries), four months after his appointment.
43. The respondents argue that, for there to be an effective appointment of a
14 “In the eve nt of a disagreement between the Trustees at any time, the decision of the majority of
them shall prevail and be of the same force and effect as if it were a unanimous decision of the
Trustees. In the event of an equality of votes, the matter under discussion shall be dropped. ”
protector by the donor during her lifetime in terms of clause 33(a), the
nomination by the protector in terms of s 33(c)( i) must at least have been
notified to the trustees. Failing this basic requirement, amendments to the
trust deed might be agreed to by the trustees and implemented (as was
the case here), only to be met with a hitherto undisclosed appointment of
a protector made over 20 years previously.
44. I agree with this proposition, although it is not strictly necessary to decide
given the interpretation that I regard as proper in relation to clause 33(a).
Parker’s authority as trustee
45. In further support for the argument that the 2020 amendment to the trust
deed was not validly done, t he applicant challenges Parker’s authority as
trustee on the basis that, to the applicant’s knowledge, no letters of
authority had been issued by the Master to Parker prior to 5 May 2022 .
This was the date on which the Master had issued letters of authority to
Jean-Mary, Duthie and Parker.
46. In the answering affidavit Duthie puts up a Master's certificate of 14 April
2014 authorising Parker to act as a trustee, together with Jean -Mary and
Duthie after Tingle’s resignation, such resignation being specifically noted.
The certificate is dispositive of the challenge to Parker's authority.
47. In his replying affidavit the applicant speculates as to why the Master
issued the letters of authority of 5 May 2022 , and suggests that absent an
explanation it may be inferred on the probabilities that Parker was not a
duly authorized trustee at the time of the amendment of the trust deed in
2020. The applicant also strenuously criticizes the way in which Duthie
dealt with the issue in the answering affidavit, effectively saying that
Duthie said too much when he could have gone straight to the 2014
certificate.
48. I do not think that the inference suggested by the applicant is justified. As
counsel for the respondents point ed out, one obvious possible reason for
the issuing of fresh letters of authority to the trustees collectively would
have been because of the change in the composition of the trustees when
Parker replaced Tingle. The 2014 certificate refers to Tingle’s resignation;
the 2022 certificate is simply issued to Parker, Duthie and Jean -Mary.
Disputes of fact in motion proceedings are, in any event , not decided on
the probabilities.15 Parker’s evidence that he was authorized at the time is
supported by the Master’s certificate . His evidence , and Duthie’s, in this
respect is not so bald, sketchy or far -fetched as to fall to be rejected on
the papers. On Plascon Evans, that is the end of the matter.
49. On the papers I find that Parker was duly authorized as trustee at the time
of the December 2020 amendment of the trust deed.
Conclusion, and costs
50. In all of these circumstances, I am not inclined to find i n the applicant’s
favour.
51. The applicant submits that, in the event of his application being
unsuccessful, the costs of the application should be born by Jean -Mary’s
deceased estate. This is because his nomination as trustee was repeated
in the will, and because Jean -Mary had appoi nted him as protector. His
case is not frivolous, and he brought it to fulfill Jean -mary’s wishes in
relation to the trust as evident from her will.
15 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at para [26].
52. The applicant’s claim for his appointment as trustee to the trust relies on
the nomination of 9 July 20 02 (albeit repeated in Je an-Mary’s will), whilst
his dispute about the amendment of the trust deed rested on his
appointment as protector on 17 May 2001. These aspects involve the
trust, and are not related to Jean -Mary’s deceased estate. The applicant
did not have to bring this application in his capacity as executor of the
estate, and there is no reason why the estate should bear the costs.
Order
53. I accordingly make an order as follows:
53.1. The application is dismissed.
53.2. The applicant is to pay the costs of the application in his
personal capacity, including the cost of counsel on Scale C.
__________________
P. S. VAN ZYL
Acting judge of the High Court
Appearances:
For the applicant: E. Fagan SC and M. Smit, instructed by MacGregor Stanford
Kruger Inc.
For the first and second respondents: S. P. Rosenberg SC , instructed by Kaplan
Blumberg Attorneys Inc.