IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA )
NOT REPORT ABLE
Case no: 617/2022
In the matter between :
LUCINDA WYNNE MUSELER N.O. Applicant
and
SHANNON LEE MOMBERG N.O. 0020 First Respondent
THE MASTER OF THE HIGH COURT,
MAKHANDA Second Respondent
MARTIN MUSELER Third Respondent
CHYNEE ELIZABETH MINNIE Fourth Respondent
CHAD ALEXANDER MOMBERG Fifth Respondent
SIOBHAN HELEN MOMBERG Sixth Respondent
__________________________________________________________________ _
JUDGMENT
___________________________________________________________________
Govindjee J
Background
[1] The applicant seeks the removal of the first respondent (the respondent) as
Trustee from the Wynhelee Trust (the trust) in terms of s 20(1) of the Trust Property
Control Act, 19881 (the Act). The second respondent (the Master) furnished a report
(the Master’s report) without participating in the proceedings.
[2] The Trust was founded in 1997 and the trust property consists solely of a
residential property in Kenton -on-Sea (the property) . Leaving aside the purported
citation of the parties in their representative capacities, a matter to which I will return,
the applicant and respondent (the pa rties) are siblings and serve as trustees,
together with an independent trustee (Minnie).2 The trust instrument (the deed)
divides the beneficiaries into two classes. ‘Class A’ beneficiaries consist of the
applicant, her spouse and descendants. ‘Class B’ beneficiaries comprise the
respondent, her spouse and descendants.3
[3] The applicant was in a stronger financial position than the respondent and
used her own funds to renovate the property between February and December 2019.
During 2019, the respondent occupied the property for a few months when she had
no other accommodation available, and the applicant lived in the premises during
October that y ear. The property was let when not in use by the parties, who agreed
that the respondent would vacate the property in December 2019 to generate rental
income. When the running expenses exceeded the rental income generated, these
expenses were mainly carrie d by the applicant.
1 Act 57 of 1988.
2 Paragraph 5.5 of the Trust Deed provides that a beneficiary may also be a trustee. Minnie was
married to the applicant until the marriage was dissolved by divorce in 1999. He was appointed as
trustee by the applicant and respondent and assumed this position on 7 November 2012.
3 The deed provides as follows:
‘Class entitlement to benefits
The trus tees shall allocate a percentage of not less than 62.5% of all trust benefits to the Class A
Beneficiaries and not less than 37.5% of all trust benefits to the Class B Beneficiaries…’
May-August 2020
[4] The relationship between the parties degenerated during this period . Early
during 2020, the applicant unsuccessfully approached the respondent with an offer
to purchase the respondent’s share of the property for R1,6 m illion. Whether or not
this constituted a fair market value for the property is in dispute, as is the value of the
applicant’s loan account.
[5] On the accepted facts, t he applicant reneged on an agreement to permit the
respondent to utilise the property for two weeks and an altercation resulted in the
respondent vacating the premises at approximately 22h00 on 4 May 2020 , in the
presence of members of the police , a neighbourhood watch and security company .4
[6] The applicant instructed a service provider to change the locks on the
property during May 2020. The respondent placed her own lock on the property
when she became aware of this on 24 June 2020. That lock was l ater removed by
the applicant to enable a n agent to access the premises . Pam Golding Properties
subsequently requested the respondent to sign a resolution granting the applicant
signing power in respect of the trust. The respondent refused to do so because of
her insistence that there was a dispute , so that the property could not be leased
during December 2020 . The respondent considered the dispute to be about the
property. She was not interested in selling her share to the applicant and offered only
R100 0 00 when pushed to make an offer herself. That offer was rejected by t he
applicant , who indicated, during August 2020, that she wanted nothing more to do
with the respondent.
[7] When the respondent communicated her refusal to permit the property to be
leased over the December 2020 period , the applicant convened a virtual trustees’
meeting on 19 August 2020. The applicant and Minnie failed to persuade the
respondent , who felt that Minnie was serving only the applicant’s inte rests. He
4 On the approach to considering factual disputes on the papers, see Plascon -Evans Paints v Van
Riebeeck Paints (Pty) Ltd [1984] 2 All SA 366 (A) 367 –368; 1984 (3) SA 623 (A) 634E –635D.
immediately informed the parties of his decision to resign as an independent
trustee .5
[8] On 21 August 2020 the applicant addressed lengthy correspondence to the
respondent. The tone was conciliatory, and various options were suggested to the
respondent, none of which appear to have resolved the impasse. The parties now
viewed their position as one of a hopeless deadlock, seemingly unable to agree on a
replacement independent trustee for Minnie. Thereafter, the applicant’s focus turned
to the Mast er and the appointment of a replacement independent trustee.
The Master
[9] The Master’s report dated 4 March 2022 confirm ed receipt of notification of
Minnie’s resignation during January 2021. On 1 February 2021, t he Master wrote to
the applicant to seek clarification as to whether all beneficiaries had been informed
of the resignation, as well as the identity of a replacement independent trustee . That
correspondence s eemingly went unanswered for several months . During Octob er
2021, the applicant indicated that the matter was urgent , that the parties’ relationship
had broken down and that the Master was requested to appoint an independent
trustee. On 24 February 2022, in response to a query from the Master regarding the
possi ble appointment of the applicant’s Makhanda corresponding attorney as
trustee, her attorneys advised as follows:
‘Mr McCallum indicated to us that he is not prepared to be appointed as
Trustee in the mentioned Trust. We obtained instructions from our clien t to
propose a possible appointment but was instructed not to make any proposals
due to the impasse between herself and the other trustee, Mrs S L Momberg.
Our client is of the opinion that any proposal made by her will be countered by
the other trustee. H aving regard to the above, our instructions is therefore to
again request your office to make such an appointment … We further wish to
advise that we, following our client’s instructions, drafted an application for the
High Court…’. (Sic).
5 Minnie did so in writing on 25 August 2020.
The basis for removal
[10] The crux of the applicant’s argument is explained in the conclusion to the
founding affidavit , based on the respondent’s alleged failure to make decisions to
generate sufficient income for the trust, to resolve conflicts for the benefit of the trust
in compliance with the trust deed, to regard trust property as belonging to another
and to ensure t hat the trust ’s tax complian cy:
‘My contention is that the 1st Respondent’s actions are not to the benefit of the
trust nor is she acting in the best interest thereof. On numerous occasions did
she demonstrate an inability to keep her personal affairs sepa rate from the
trust and views the Trust Property as partly her own to do therewith as she
pleases, with the obvious detriment to me. I further contend that despite the
inaction of the 2nd Respondent, which may have contributed to the current
state of lockd own, a meaningful alternative could have been reached had the
1st Respondent “acted with the care, diligence and skill which can reasonably
be expected of a person who manages the affairs of another” as provided for
in terms of Section 9(1) of the Act.’
[11] As a result of the respondent’s refusal to permit the property to be rented, the
parties had to pay for monthly municipal rates and taxes themselves from November
2020. They did so based on their respective beneficiary percentages, as provided for
in the tr ust deed. By February 2021, however, the respondent could not cover her
portion of the monthly costs. As a result, she signed a resolution , on 4 April 2021,
permitting the applicant to appoint a n agent , and the property was rented from June
2021 . The appli cant accepts, in reply, that ‘[the dispute regarding] her refusal to have
the property rented out had been resolved with the resolution passed on 4 April
2021’.
[12] In explaining her failure to sign the financial statements, t he respondent
disputes the financ ial position of the trust after 2019. On 2 October 2021, the
respondent signed the 2019 Financial Statement , which reflected an amount of only
R122 000 in the applicant’s loan account. The 2021 financial statements reflected
the applicant’s loan account to be an amount of almost R430 000 and the
respondent submits that the applicant failed, despite numerous requests, to provide
proof of expenditure in res pect of renovations to the property. The respondent was
unable to verify the significant increase in the applicant’s loan account absent
evidentiary proof. The respondent also relied on an email from the applicant dated
15 November 2020. The contents indic ate that the applicant was, at this stage,
reconstructing financial records for 2017 and 2018 but had not kept receipts of
expenditure in cash. In reply, the applicant attached an affidavit deposed to by the
trust’s accountant , as well as a spreadsheet dep icting a summary of receipts, to
support the position reflected in the 2021 financial statements.
[13] The applicant’s view is that it would be in the best interest of the trust to sell
the property so that both loan accounts may be repaid.6 The respondent pr efers a
referral to arbitration, alternatively an order compelling the Master to replace Minnie
with another independent trustee. On 19 August 2021, all three trustees signed a
resolution at Middelburg noting that Minnie had submitted his resignation in te rms of
the deed and adding the following:7
‘Presently the composition of the unit of trustees does not comply with the
above [paragraph 5.1 of the deed] and as the two remaining trustees are at an
impasse, it is respectfully submitted that in these circum stances an
independent third trustee ought to be appointed by the Master. ’
[14] Both parties seek a punitive costs order against the other.
Analysis
Standing
6 The applicant also sought an order terminating the trust in terms of s 13 of the Act. That relief was
abandoned during argument.
7 The emphasis was included in the resolution.
[15] An application for the removal of a trustee is properly brought as a claim
against a trustee in their personal capacity.8 Similarly, it is the applicant in her
personal capacity that appears to enjoy standing to bring the present application in
terms of s 20(1) of the Act . This on the basis that she, as a co -trustee and
beneficiary, has an interest in the property.9 Neither the applicant nor the respondent
appears to have been alive to the authorities on the point , so that the parties were
cited in the manner indicated, above .
[16] That principled issue aside, t he parties rightly accept that Minnie’s purported
resignation as trustee was ineffective and that he legally continued to serve in that
capacity.10 He and the applicant , if not the respondent, also considered this to be the
position in practical terms. The reason for this is that the deed contai ned specific
provisions for termination of trusteeship. In particular, ‘a trustee’s resignation
becomes effective as soon as the Master issues an amended letter of authority’. No
such letter has been issued by the Master. In addition, the Master’s query asking for
proof of compliance with s 21 of the Act ( to determine whether ascertained
beneficiaries with legal capacity had been informed of the resignation) had
seemingly not been addressed despite correspondence to the applicant on 1
February 2021. There is therefore no need, for present purposes, to enter the debate
as to whether a trustee who resigns must comply with s 21 and / or the requirements
prescribed in the deed:11 in the present circumstances the resignation was
ineffective in terms of bo th the Act and the deed and Minnie rightly considered
himself to remain an independent trustee notwithstanding the respondent’s
protestations and threats.
[17] Minnie deposed to a confirmatory affidavit in support of the application. And
yet, it must be emphas ised, the present application is restricted to the potential
8 Stander and Others v Schwulst and Others 2008 (1) SA 81 (C) (Stander ) paras 32–34.
9 See Kidbrooke Place Management Association v Walton 2015 (4) SA 112 (WCC) para 18; Cameron
et al Honoré’s South African Law of Trusts (6th Ed) (2018) at ch 4-270.
10 Paragraph 5.1 of the deed provides that, ‘At all times there have to be at least two trustees in office,
of whom at least one will not be a beneficiary of the trust.’
11 See Soekoe N.O. v Le Roux [2007] ZAFSHC 135; Meijer N.O. v FirstRand Bank Limited [2013] JOL
30560 (WCC); Sidwell N .O. v Du Buisson N .O. and Others [2016] ZAFSHC 82 para 17 ; Die Orffer
Landgoed (Pty) Ltd v Orffer N.O. and Others [2025] ZAWCHC 14 ; Van der Merwe N.O. and Others v
Hydraberg Hydraulics CC and Others , Van der Merwe N.O. and Others v Bosman and Others [2010]
ZAWCHC 129; 2010 (5) SA 555 (WCC) para 18 ; Cam eron et al above n 9 ch 4-264.
removal of the respondent in terms of s 20(1) of the Act , at the instance of the
applicant alone .12 Paragraph 6.3 of the deed, in terms of which ‘a trustee stops to be
a trustee should he be requ ested by the majority of all trustees to resign’ , was not
invoked . It is accepted that the respondent threatened to report Minnie and seek his
removal from his position as a magistrate during this time.
The test for removal
[18] Turning to the crux of the matter, w here more than one trustee is specified in
the trust deed, they share a common fiduciary obligation towards the fulfilment of the
objects of the trust and must act jointly.13 Section 9(1) of the Act provides that ‘a
trustee shall in the performanc e of their duties and the exercise of their powers act
with the care, diligence and skill which can reasonably be expected of a person who
manages the affairs of another’. This standard is higher than that which an ordinary
person might generally observe i n the management of their own affairs.14
[19] A trustee may be removed from office by the court , in the exercise of its
inherent power, on the application of a person having an interest in the trust
property.15 The question is whether the court ‘is satisfied that such removal will be in
the interests of the trust and its benef iciaries’.16 The general principle is that a trustee
will be removed from office when continuance in office will prevent the trust being
properly administered or will be detrimental to the welfare of the beneficiaries.17
Although neither bad faith nor misconduct is considered a pre -requisite for removal,
it is settled that t he power of the court to remove a trustee ‘must be exercised with
circumspection’.18 The court will give weight to the fact that the founder selected the
12 Paragraph 6.3 of the deed, in terms of which ‘a trustee stops to be a trustee should he be
requested by the majority of all trustees to resign’, was not invoked.
13 Gowar v Gowar 2016 (5) SA 225 (SCA) (Gowar ) para 23.
14 Administrators, Estate Richards v Nichol and Another 1999 (1) SA 551 (SCA) at 557D –F. In the
context of investment of the money of beneficiaries, for example, emphasis has been placed on the
need not to expose fund s in any way to any business risks : Sackville West v Nourse and Another
1925 AD 516 at 534 –535.
15 Section 20(1) of the Act; Gowar above n 13 para 27.
16 Section 20 (1) of the Act.
17 Cameron et al above n 9 at ch4-271, cited with approval in Gowar above n 13 para 28.
18 Gowar above n 13 para 30.
trustee as a proper person to carry on the administration, without this consideration
being conclusive.19 The position has been explained , by analogy, as follows:20
‘(I)t is a matter not only of delicac y … but of seriousness to interfere with the
management of the estate of a deceased person by removing from the control
thereof persons who, in reliance upon their ability and character, the
deceased has deliberately selected to carry out his wishes. Even if the …
administrator has acted incorrectly in his duties, and has not observed the
strict requirements of the law, something more is required before his removal
is warranted. Both the statute and the case cited indicate that the sufficiency
of the cause for removal is to be tested by a consideration of the interests of
the estate…’
[20] The essential test is ‘whether such disharmony as exists imperils the trust
estate or its proper administration’ :21
‘[31]… Thus, the overriding question is always whether or not the conduct of
the trustee imperils the trust property or its proper administration.
Consequently, mere friction or enmity between the trustee and the
beneficiaries will not in itself be adequate reason for the removal of the trustee
from of fice…Nor, in my view, would mere conflict amongst trustees
themselves be a sufficient reason for the removal of a trustee at the suit of
another .
[32] Moreover, it must be emphasised that whilst a trustee is in law required to
act with care and diligence, the decisive consideration is the welfare of the
beneficiaries and the proper administration of the trust and the trust property.
And, sight must not be lost of the crucial fact that the court may order the
removal of a trustee only if such removal will, a s required by s 20(1) of the
Act, be “ in the interests of the trust and its beneficiaries ”’ (my emphasis). ’
19 Die Meester v Meyer 1975 (2) SA 1 (T), as cited in Cameron et al above n 9 at 4-274.
20 Volkwyn NO v Clarke and Damant 1946 WLD 456, cited with approval in Gowar above n 13 para
30.
21 Gowar above n 13 paras 31, 32.
[21] It may be emphasised that minor irregularities have been held to be
insufficient to justify removal.22 While the most usual basis for the removal of a
trustee is a breach of trust, not even every breach of trust justifies removal.23 In
Sackville West v Nourse , for example, the beneficiary succeeded in a claim for
damages for negligence against a trustee wh o had made an unwise investment. But
since no fraud or positive misconduct was present it was held that there was no
reason to think that the interests of beneficiaries would be prejudiced by leaving the
trustees to continue to manage the trust fund.24 In Tjimstra NO v Blunt -Mackenzie
NO, the court enumerated a number of specific grounds for a court’s removal of a
trustee in terms of s 20(1) of the Act , all indicative of the gravity required before a
court will accede to an application of this nature.25
Will the respondent’s removal be in the interests of the trust and its beneficiaries?
[22] The parties, their spouses and descendants are the beneficiaries of the trust ,
which was created for their benefit in the ratio specified in the deed. Leaving aside
the suggestion that Minnie could not act independently, it appears from the papers
that the trust functioned without incident for several years. The property was not
utilised purely for purposes of income generation although , courtesy of an informal
arrangement, the property was leased when not in use by the parties. As an aside,
there is little to suggest that Minnie played an active role in the administration of the
trust during the time that the parties were able to reach agreement on t he use of the
property.
22 Cameron et al above n 9 at 4-271.
23 Cameron et al above n 9 at 4-273.
24 Sackville West v Nourse above n 14 at 536.
25 Tijmstra NO v Blunt -Mackenzie NO 2002 (1) SA 459 (T) at 473E –F. The possible grounds were
paraphrased in the headnote to the reported judgment as follows: (a) where a trustee without
explanation transfers trust funds from a safe investment into his or her personal account; (b) where a
trustee deliberately refrains from advising a co -trustee of a decision to be taken on behalf of the trust;
(c) where a trustee fails to ascertain what rights and obligations the office entails; (d) where a trustee
treats trust propert y as their own; (e) where a trustee relies entirely upon a dominant co -trustee and
approves of their wrongful conduct; or (f) where a trustee allows grave misconduct by a co -trustee in
the administration of trust property.
[23] Between May and August 2020, however, the relationship between the parties
soured to the point that the applicant decided to institute the present litigation, and
the impasse has remained unresolved for more than four years. That said, the
parties appear to have managed to move on from the respondent’s refusal to permit
the property to be leased during December 2020 , at least to some extent . Absent
income, both parties took responsibility to settle the monthly municipal rates and
taxes from November 2020 and used their respective beneficiary percentages to
calculate the amounts due. By February 2021 the respondent could no longer cover
her portion of the costs. The trustees then all signed a resolution on 4 April 2021 ,
permitting th e applicant to appoint a long-term letting agent for the property.
[24] Further commonality followed.26 On 19 August 2021, a year to the day after
the virtual trustees’ meeting, all three trustees signed a resolution drawing attention
to Minnie’s resignation as well as paragraph 5.1 of the deed and the stand -off
between the parties . The resolution specifically drew attention to the need for the
Master to intervene by appointing a replacement independent trustee.27
[25] The correspondence from the applicant’s attorneys to the Master reiterated
that plea on 24 February 202 2. That letter also reflects that the applicant had now
decided not to make any proposals to the respondent regarding a possible suitable
replacement for Minnie, being of the opinion ‘that any proposal made by her will be
countered by the other trustee’. By now the applicant had resolved to proceed with
the pr esent applicatio n and the Master was informed of this . The Master ’s non -
interventionist stance persisted . It must be added that t he Master’s report fails to
acknowledge the e -mail correspondence from the applicant, during October 2021,
requesting intervent ion. There is also nothing on record to suggest that the Master
has even been in direct contact with the respondent.
[26] This summation reveals that the trust’s difficulties, and indeed the applicant’s
frustration to the point of litigation, is largely due to the inability to reach consensus
on a replacement independent trustee for Minnie, coupled with the position adopted
26 Cf McNair v Crossman 2020 (1) SA 192 (GJ) para 34.
27 A month later, the respondent also signed a resolution providing the applicant with the power to act
as the main trustee with regards to SARS trust registration and correspondence.
by the Master. The groundwork for what occurred may well be traced all the way
back to Minnie’s appointment. Having been previously marri ed to the applicant, and
the father of one of the trust’s beneficiaries, he was in a compromised position, even
though it must be accepted that he was selected as an ‘independent trustee’ by both
parties given his legal expertise. Once the parties locked h orns, however, and the
respondent perceived him to be biased in favour of the applicant, his hands were
effectively tied, and it is unsurprising that he made the decision to resign. Instead of
pursuing an alternative dispute resolution solution pathway to identify a replacement ,
and without any attempt to compel the Master to intervene, the applicant has chosen
to launch the present application .
[27] This is lamentable given that e ither course would likely have obviated the
present proceedings. That notwithstanding, the applicant and Minnie were alive to
the rea lity that the resignation was, in terms of the deed, ineffective, absent receipt of
an amended letter of authority from the Master.28 Assuming that to be the position,
for present purposes, a nd given the parties’ breakdown in relationship, the applicant
would have been unable to obtain a majority vote in respect of any disputed matter,
such as whether the prepared financial statements accurately reflected the trust’s
financial position. That b eing the case, there appears to be no justification for the
applicant not to have triggered the referral of such a matter for arbitration to an
independent party in terms of paragraph 9.2 of the deed.29 The applicant’s
protestations, in reply, that pursuing this route would have been futile are
unpersuasive and based mainly on speculation. That the respondent did not herself
trigger the arbitration clause takes matters no further.
28 Had the position been different, so tha t the number of trustees had in fact fallen below the minimum
number, paragraph 5.2 of the deed provided that ‘the remaining trustee(s) will be authorized to
exercise all the powers of trustees for the maintenance and administration of the trust fund until such
time as another trustee(s) has been appointed, which appointment shall be made within 90 (NINETY)
days after the resignation or demise of the other trustee. Should the remaining trustee(s) neglect to do
so or if no trustee is alive, then the appointe d accounting officer of the trust may either acts self as
succeeding trustee or appoint a succeeding trustee of his own choice.’ (sic) There is nothing on the
papers to suggest that this paragraph was ever invoked.
29 Paragraph 9.2 of the deed provides: ‘Wh en a majority vote, or a unanimous decision cannot be
obtained concerning a matter, the matter has to be referred for arbitration to an independent party.
Failing consensus of an independent party, the matter has to be referred to senior counsel or a retir ed
Appeal Court Judge, chosen by the trustees. Failing unanimity in this regard, to a senior counsel
assigned by the chairman of the applicable Bar Council. The arbitrator, who has to decide the matter,
determines the procedures to be followed and this dec ision is final and binding on all the trustees.’
[28] The Master’s inaction is similarly perplexing and disconcerting. Sec tion 7 of
the Act provides:
‘(1) If the office of trustee cannot be filled or becomes vacant, the Master
shall, in the absence of any provision in the trust instrument, after consultation
with so many interested parties as he may deem necessary, appoint an y
person as trustee.
(2) When the Master considers it desirable, he may, notwithstanding the
provisions of the trust instrument, appoint as co -trustee of any serving trustee
any person whom he deems fit.’
[29] The Master, without proper explanation, failed to exercise either of these
powers and maintained a hands -off approach . What is perturbing is the Master’s
failure , in the Master’s report, to acknowledge the correspondence which appears to
have been sent by e-mail to the Estate Contro ller and Deputy Master during October
2021, noting the breakdown in the relationship between the parties and desperately
requesting intervention. In addition, and s eemingly contrary to the applicable Chief
Master’s directive (the directive) ,30 the Estate Controller in the Master’s office only
appears to have communicated with the applicant as to the possible identity of an
independent trustee. This appears to fall short of the directive’s prescripts: the
Master ought to have consulted the exist ing trustees and beneficiaries with a vested
right in the trust assets, in order ‘to obtain nominations for an independent trustee’.31
[30] Absent alternative dispute resolution or the Master’s intervention, this court is
seized with the matter and must consi der whether the applicant has made a case for
the respondent’s removal as trustee in terms of s 20(1) of the Act , or perhaps the
common law . Considering the relief sought by the applicant , this court is obliged to
apply the Plascon -Evans rule in resolving disputes of fact evident on the papers.
30 See Cameron et al above n 9 at ch4 –229.
31 The Master would not have been bound by any nomination received and was even at liberty, in
exceptional circumstances, to appoint a suitable person other than tho se nominated.
[31] But even on the applicant’s own version of events there is little to justify the
removal of the respondent as trustee in the interests of the trust and its beneficiaries.
The trust property is currently generating income courtesy of a long -term rental. On
the accepted facts, the respondent contributed to the running and upkeep of the
property by marketing and advertising the property, management of the property,
performing renovations, arranging cleaning of the pro perty between rentals and
general upkeep. While sibling disharmony in relation to the property appears to have
festered since 2020, it cannot be said that the respondent’s conduct has endangered
either the property or the proper administration of the trust. Rather, the applicant
takes umbrage based largely on isolated historical incidents , particularly in relation to
the respondent’s conduct that resulted to loss of rental for December 2020 . That
approach loses sight of both the context in which the respondent’s refusal arose,
including the events of May 2020, as well as the subsequent events that resulted in
the financial position of the trust being stabilised, via the parties ’ agreement. While I
agree that the respondent acted incorrectly in believing that she had the ‘right’ to
refuse rental for December 2020, and that this expression of enmity fell short of due
exercise of power with the level of care prescribed , something more was required to
justify removal in the interests of the trust . As for the issue of tax compliance, the
respondent was entitled to receive a satisfactory explanation, including supporting
documentation, for the financial position evinced in the statements after 2019. The
papers reflect that t his was only forthcoming as part of the applicant’s reply in the
present proceedings. In my view there is no basis for concluding that the respondent
utilised the property as if it belonged to another and the parties are equally
responsible for failing to utilise the mechanisms contained in the deed to resolve
their quarrels.
[32] Importantly, the parties, and indeed Minnie, jointly resolved, as recently as
August 2021, to request the Master’s assistance in replacing Minnie for the
administration of the trust to move forward. It appears to have been the nature of the
Master’s responses , rather than any breach of trust, misconduct or the like on the
part of th e respondent, that necessitated the present application. Considering the
replying papers, however, the applicant approbates and reprobates, persistently
requesting the Master’s intervention on the one hand yet claiming that the
appointment of a replacement independent trustee would make no difference to the
impasse. Give the manner in which the deed regulates the decisions of trustees, and
bearing in mind the circumstances that placed Minnie in a compromised position, the
latter approach is unjustified.
[33] On my assessment, the papers reveal nothing more than minor instance s of
questionable conduct on the part of the respondent , wholly insufficient to justify
removal.32 This conclusion finds support when considering that the court is enjoined
to be circumspect prior to granting an application of this nature, and bearing in mind
the likely reason for the respondent’s appointment as trust ee as well as the
respondent’s position in relation to the ‘Class B’ beneficiaries. While sale of the
property may well be desirable for the applicant and the ‘Class A’ beneficiaries, the
test for removal requires proper consideration of the interests of t he trust and all its
beneficiaries.
[34] In my view, t he conduct of the respondent cannot be said to imperil the
property. On the probabilities, a llowing the respondent to continue in office neither
prevent s the trust from being properly administered, nor is it detrimental to the
welfare of the beneficiaries. Applying the test , the application must be dismissed. I
consider it appropriate, in the circumstances, to also order reconsider ation of the
Master’s approach to the possible appointment of a trustee in terms of s 7 of the Act
on an expedited basis. The Master is directed specifically to paragraphs 28 , 29 and
34 of this judgment.
Costs
[35] The respondent’s conduct and the breakdown in the relationship between the
parties has been held to be insufficient to justify the respondent’s removal as trustee.
Ordinarily, this would have entitled the respondent to her costs.33 On my
assessment, the parties have both, at times, failed to act with the care, diligence and
skill reasonably expected of persons in their position . A punitive costs order is
unwarranted in the circumstances. There is also no basis for saddling the trust with
32 Cf McNair v Crossman and Another 2020 (1) SA 192 (GJ) para 29 and following.
33 Stander above n 8 para 26 , 36.
any of the costs associated with this litigation, which could result in dep letion of the
trust’s estate. Bearing in mind , in particular, the threats levelled against Minnie and
the loss of trust income caused by the respondent’s refusal to permit the property to
be leased during December 2020 and for a few months thereafter , it is appropriate to
limit the respondent to recovery of 50 per cent of her costs as a mark of disapproval .
These costs are to be paid by the applicant in her personal capacity.34
Order
[36] The following order is issued:
1. The application is dismissed.
2. The applicant shall , in her personal capacity, pay 50% of the first respondent’s
costs of the application on a party and party scale.
3. The applicant is directed to serve a copy of this judgment on the second
respondent , highlighting paragraphs 28, 29 and 34.
4. The second respondent is directed to reconsider the exercise of power in
terms of section 7 of the Trust Property Control Act, 1988, and to do so on
within 14 (fourteen) days of receipt of this judgment.
_______________ __________
A GOVINDJEE
JUDGE OF THE HIGH COURT
Heard: 13 February 2025
Delivered: 18 March 2025
34 Stander above n 8 para 27 , 30 and following .
Appearances:
For the Applicant : Adv S Sephton
Instructed by: Mccallum Attorneys
Office No. 10
Fidelity Building
87 High Street
Makhanda
For the Respondent : Adv S Cole
Instructed by: De Jager Lordan
2 Allen Street
Makhanda