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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AF RICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 8327/2023
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 07 July 2025
SIGNATURE:
In the matter between:
C[...] J[...] R[...] APPICANT
Identity Number: 4[ …]
And
H[...] W[...] R[...] 1ST RESP ONDENT
Identity Number: 7 […]
C[...] J[...] R[...] N.O 2ND RESPONDENT
In his official capacity as co -trustee of the
CJ R[...] TRUST MASTERS REF NO. IT163/2016(L)
GIDEON VENTER N.O 3RD RESPONDENT
In his official capacity as co -trustee of the
CJ R[...] TRUST MASTERS REF NO. IT163/2016(L)
PHILIPPUS COETZER N.O 4TH RESPONDENT
In his official capacity as co -trustee of the
CJ R[...] TRUST MASTERS REF NO. IT163/2016(L)
THE MASTER OF THE HIGH COURT, POLOKWANE 5TH RESPONDENT
JUDGMENT
DU PLESSIS AJ:
Introduction:
[1] This is an opposed application in terms whereof the Applicant applies for the
following relief:
1.1 That clause 1.5.2 of the Trust Deed dated 27 June 2016, Masters Ref
No. IT163/2016(L), be deleted and substituted with the following:
“1.5.2. C[...] J[...] R[...] , Identiteitsnommer 0 […] – 25% (vyf en
twintig persent) belang; en
1.5.3. H[...] W[...] R[...] , Identiteitsnommer 2 […] – 25% (vyf en
twintig persent) belang.”
1.2 That the Fifth Respondent be directed to amend or t o rectify its records
in accordance with the amendment envisaged in paragraph 1 supra ;
1.3 That the First Respondent be ordered to pay the costs of this
application;
[2] The amendment or variation of the trust deed can only be achieved with the
First Respondent’s consent or by virtue of a court order.
[3] Seeing that the First Respondent refuses to provide such consent, the
Applicant is obliged to bring this applicat ion.
Factual Background:
[4] The Applicant is the founder and the donor of the Trust, which Trust was
established on or about 27 June 2016 with Master’s Ref No. IT163/2016(L).
[5] The Applicant is seeking a substitution in terms whereof the First Re spondent
will be removed as a 50% beneficiary of the Trust and will be replaced by the First
Respondent’s two children.
[6] The First Respondent is the Applicant’s biological son and his children, whom
the Applicant seeks to substitute him with, are the Applicant’s grandchildren.
[7] It is common cause that the First Respondent has assaulted the Applicant on
various occasions. Due to these assaults, the Applicant suffered serious injuries to
the extent that the Applicant proceeded to obtain a protection order against the First
Respondent.
[8] After being appointed as a beneficiary of the Trust, the Respondent has been
found guilty of various criminal offences and in addition thereto various criminal
matters against the Respondent are currently being inve stigated.1
[9] As a result of the assaults and the habitual criminal behaviour of the First
Respondent, the relationship between the Applicant and the First Respondent has
broken down irretrievably.
Parties Submissions:
1 Founding Affidavit, para 29, p16 – 17.
[10] The Applicant submits that he has the necessary locus standi to bring this
application and to apply for the relief as set out in the notice of motion. The
Applicant’s locus standi is disputed by the First Respondent.
[11] The Applicant further submi ts that he is entitled to seek an amendment of the
trust deed as provided for by the common law principle of donations, revocation and
gross ingratitude, as well as by Section 13 of the Trust Property Control Act 57 of
1988.
[12] The First Respondent submits that the Applicant’s donation was to the
trustees and not the First Respondent, therefore the common law principle of gross
ingratitude does not apply.
[13] Even if the principle of gross ingratitude doe s apply, it is the First
Respondent’s submission that the gross ingratitude commenced prior to the founding
of the Trust and that it should therefore not be taken into consideration.
[14] The First Respondent further submits that the Applicant may not re ly on
Section 13 of the Trust Property Control Act, as it is not specifically mentioned in the
Founding Affidavit and it is further submitted that even if the Applicant were entitled
to rely on Section 13 of the Trust Property Control Act, the Applicant’s version does
not satisfy the requirements thereof.
[15] Finally, the First Respondent argued that Clause 20 of the Trust Deed
provides a jurisdictional impediment that the Applicant cannot heed, in that the First
Respondent must agree to any amendment to the Trust.
Discussion:
[16] At the onset it is important to consider the Respondent’s submission that the
Applicant had to specifically refer to Section 13 of the Trust Property Control Act in
its Founding Affidavit in order to rely on it.
[17] Rule 6(1) of the Uniform Rules of Court provides that “…every application
must be brought on notice of motion supported by an affidavit as to the facts upon
which the applicant relies for relief .2”
[18] There is no requirement that a founding affid avit should refer to specific
legislation in order for such legislation to apply, it is only required to contain the facts
upon which the Applicant relies. The Applicant is therefore entitled to rely on the
provisions of Section 13 of the Trust Property Co ntrol Act, even though it is not
specifically stated in the Founding affidavit.
[19] Section 13 of the Trust Property Control Act, No 57 of 1988 provides as
follows:
“13. Power of Court to vary trust provisions. –
If a trust instrument contains any pro vision which brings about consequences
which in the opinion of the court the founder of a trust did not contemplate or
foresee and which –
(a) Hampers the achievement of the objects of the founder; or
(b) Prejudices the interest of the beneficiaries; or
(c) Is in conflict of the public interest.
The court may, on application of the trustee or any person who in the
opinion of the court has a sufficient interest in the trust property, delete
or vary any such provision or make in respect thereof any or der which
such court deems just3, including an order whereby particular trust property
is substituted for particular other property, or an order terminating the trust.”
[20] It is common cause that the Applicant is the founder and donor of the Trust
and that the Applicant is also a trustee of the Trust. The Applicant therefore has a
direct and substantial interest in the Trust.
[21] The Applicant is therefore vested with locus standi in terms of Section 13 of
the Trust Property Control Act to bring this application.
2 My emphasis added.
3 My emphasis added.
Donation:
[22] Before the Court considers the arguments in respect of Don ation, it is first
necessary to look at the nature of a Trust.
[23] In Lupacchini NO & Another v Minister of Safety and Security the Court
stated that:4
”…A trust that is established by a trust deed is not a legal person – it is a legal
relationship o f a special kind that is described by the authors of Honore’s
South African Law of Trusts as “a legal institution in which a person, the
trustee, subject to public supervision, holds or administers property separately
from his or her own, for the benefit o f another person or persons or for the
furtherance of a charitable or other purpose.”
[24] It is evident that all assets that belongs to the legal institution or Trust is
merely held and administered by the Trustees, for the benefit of another pers on.
[25] In the preamble of the Trust the following is stated:
“…Die Trustees aanvaar en hou die trustbates sowel as alle byvoegings
daartoe (indien enige) vir administ rasie en uiteindelike verdeli ng, onderworpe
aan die ondervermelde voorwaardes, bepa lings en trustvoorskrifte.”5
[26] The above is an acceptance by the Trustees of the assets and a declaration
that the Trust assets will be held and administered for the purpose of final distribution.
[27] The most important provision in this respect is contained in paragraph 3 of the
Trusdeed, which provides as follows:
4 Lupacchini NO & Another v Minister of Safety and Security 2010(6) SA 457 (SCA) at para 1.
5 Founding Affidavit, Annexure “E”, page 31.
“Die trustbates vestig in the Trustees in hulle ampshoedanigheid van trustees
ten einde hulle in staat te stel om met die kapitaal en inkomste van die trust te
handel ten behoewe van die begunstigde en nie tot die persoonlike voordeel
van die trustees nie. Op geen stadium sal die trustees geag word om vir
hulleself of hul persoonlike rekening enige gevestigde reg tot die trustbates te
verkry nie.6”
[28] This paragraph translates as foll ows:
“The trust assets vest in the Trustees in their capacity as trustees in order to
enable them to deal with the trust capital and trust income for the benefit of
the beneficiary and not for the personal benefit of the trustees. At no stage will
the trustees be considered to have acquired a vested right to the trust assets
for themselves or for their personal account.7”
[29] This is evidence of the understanding that the Trustees never accepted the
trust assets to be a donation to themselves but rather a donation to the beneficiaries.
The trustees confirmed the fact that they are merely functionaries managing assets
on another person’s behalf.
[30] One should further consider Paragraph 1.5 of the Trustdeed, that states the
following:
“Die “begunstidges” van die Trust word die volgende persone benoem in die
verhouding soos teenoor die begunstigde se naam vermeld….
1.5.1 C[...] J[...] R[...] , - 50% (vyftig persent ) belang;
1.5.2 H[...] W[...] R[...] , -50% (vyftig persent) belang.
Indien H[...] W[...] R[...] voor ontbinding van die Trust te sterwe kom sonder
om wettige afstammelinge na te laat, sal sodanige belang ‘n bate in sy boedel
vorm, met dien verstande dat in dien H[...] W[...] R[...] te sterwe kom na die
ontbindingsdatum van die Trust soos bepaal in Klousule 14.1 en sou verkies
6 Founding Affidavit, Annexure “E”, pag e 33.
7 My translation.
om die Trust voort te sit en dan te sterwe kom, sal sodanige belang in die
Trust ‘n bate in sy boedel vorm8.
[31] The First Respondent has been donated a 50% interest as a beneficiary of
the Trust, with the specific instruction that his interest in the Trust will form a part of
his estate.
[32] The animus donandi of the Applicant towards the First Respondent is quite
evident if the trust deed is considered wholistically, and is expressly stated in
paragraph 3 thereof. Such animus donandi does not exist towards the trustees.
[33] The Applic ant has argued that both the donation of the assets to the trust as
well as the Act of appointing the First Respondent as a beneficiary of the trust
constitutes a “pure donation” from the Applicant to the Trust as well as to the First
Respondent. In terms thereof, the First Respondent benefits substantially from such
donation.
[34] In the Full bench decision in the matter of Commissioner, South African
Revenue Services v Marx , Van Zyl J dealt with the issue of donation in detail. The
Court confirmed the following9:
‘A donation is an agreement which has been induced by pure (or disinterested)
benevolence or sheer liberality, whereby a person under no legal obligation
undertakes to give something... to another person, called the ‘donee’, with the
intentio n of enriching the donee, in return for which the donor receives no
consideration nor expects any future advantage.’
[35] It must be noted that this decision provides th at in order for a donation to be
induced the donor must have the intention of enriching the donee .10 As discussed
supra this intention to enrich the donee, is absent in respect of the trustees, further
confirming that no donation has been made to the trust ees.
8 My emphasis added.
9 Commissioner, South African Revenue Services v Marx NO 2006 (4) SA 195 (CPD).
10 My emphasis.
[36] However, this intention to enrich was present towards the First Respondent in
his capacity as beneficiary of the trust.
[37] At paragraph 23 of the judgment the Court further held that11:
‘[24] The donor’s intention to make a donation (animus donandi) must arise
from generosity (liberalitas) or liberality (munificentia) and be expressed as a
promise (offer) to donate, which promise (offer) must be accepted by the
donee before a binding contract of donation comes into existence. Once this
happe ns the donation is perfected and it may be revoked only under certain
circumstances.’
[38] If the Act of appointing the First Respondent as a beneficiary of the Trust is
viewed through the requirements of a binding contract of donation as set out above,
the following is evident:
25.1 The Applicant or the Donor intended to make a donation to the First
Respondent, out of generosity or liberality, by offering to appoint the First
Respondent as a beneficiary of the Trust;
25.2 The offer of appointing the First Respondent as a beneficiary of the
Trust, had to be (and was) accepted by the First Re spondent as the donee.
The First Respondent never indicated that he did not want to be appointed as
a beneficiary of the Trust;
25.3 As a result thereof a binding contract of donation came into existence
between the Applicant and the First Respondent.
[39] This Court is thus of the view that both the trust assets as well as the act of
appointing the First Respondent as a beneficiary of the trust constitutes a donation
as set out supra .
Revocation and Gross Ingratitude:
11 Commissioner, South African Revenue Services v Marx NO 2006 (4) SA 195 (CPD) at para 24.
[40] It was further argued that, in the premises, the Applicant is entitled to revoke
his donation by virtue of the First Respondent’s gross ingratitude.
[41] However, a dona tion may only be revoked under certain circumstances. In
order to establish these circumstances, it is necessary to consider the principle of
gross ingratitude and its application to this set of facts.
[42] In the matter of D.E and Another v. C.E and Other s12 the Court has held that
the following constitute sufficient grounds of revocation:
‘(1) the donee physically attacks the donor; (2) the donee intentionally causes
the donor a loss of property; (3) the donee attempts to take the life of the
donor; and (4) the donee fails to comply with the conditions stipulated by the
donor. The above do not constitute an exhaustive list of the grounds
which entitle a donor to resile from the contract due to ingratitude. The
donor may demand the return of a gift on any act of ingratitude13. The
ingratitude must be of a sufficiently serious nature (for example it must have
caused the donor considerable financial loss) and must be accompanied by
dolus.’
[43] It is evident that a donor, or the Applicant in this instance, may re voke a
donation in circumstances where the donee, or the First Respondent in this instance,
acts with gross ingratitude towards the donor, or the Applicant herein.
[44] It is the Court’s view that Gross ingratitude finds application herein in that the
First Respondent has physically attacked and assaulted the Applicant on more than
one occasion, and that he also attempted to take the Applicant’s life.
[45] The First Respondent’s conduct did not stop after the physical attacks on the
Applicant, but it has escalated into criminal acts which occurred regularly after the
12 D.E and Another v C.E and Others [2020] 1 All SA 123 (WCC) (10 October 2019) para 43 to 48;
See also LAWSA Vol 8 Part 1 2nd ed at para 310.
13 My own emphasis.
donation was made by the Applicant by appointing the First Respondent as a
beneficiary to the Trust as well as donating assets to the Trust.
[46] In the matter of D.E and Another v. C.E and Others14 the Court further held
that the grounds of revocation as set out and which entitles a donor to resile from a
contract due to ingratitude, is not an exhaustive list.
[47] Therefore, the fact that the Applicant is severely prejudiced by the First
Respondent’s history and tendency to commit criminal acts is also taken into account
by this Court.
[48] The First Respondents conduct has resulted in the relationship between the
Applicant and the First Respondent being broken down irretrievably.
[49] This conduct of the First Respondent has continued after being appointed as
a beneficiary, negating the First Respondent’s argument that the assaults which
happened prior to the appointment cannot serve as a basis for the Applicant’s
reliance on the c ommon law principle of gross ingratitude.
[50] The First Respondent argued that the decision of the South Gauteng High
Court, Johannesburg must take the case of C.A.W v D.H.W and Another15 into
account. The Court in this matter held that:
”These assaults preceded the donation. If the assaults preceding the donation
were not of such a nature as to prevent the donation, assaults post the
donation can hardly be relied upon to demonstrate gross ingratitude.”
[51] This matter does not have a similar set of fa cts as the one in casu seeing that
it deals with a divorce. There is not an exhaustive list of facts to take into
consideration when dealing with gross ingratitude and the prejudice suffered by one
person may not necessarily be the same for another.
14 D.E and Another v C.E and Others [2020] 1 All SA 123 (WCC) (10 October 2019) para 43 to 48;
See also LAWSA Vol 8 Part 1 2nd ed at para 310.
15 C.A.W. v D.H.W and Another (16760/2018) [2023] ZAGPJHC 811 (21 July 2023).
[52] This Court is therefore of the view that this case do not find application due to
the fact that in casu , the behaviour of the First Respondent is not only directed at the
Applicant, but that the conduct of the First Respondent continued and escalated to
such an extent that he is now habitually committing violent criminal acts. The First
Respondent has been found guilty of at least six criminal offences and are currently
being investigated in respect of at least four more criminal matters.
[53] There is nothing preventing this court from considering acts of ingratitude that
happened prior to the donation.
[54] The habitual criminal conduct of the First Respondent is therefor e taken into
consideration and the Court finds that it also constitutes gross ingratitude as it has
far reaching prejudicial consequences for the First Applicant.
[55] By virtue of the fact that Gross ingratitude finds application, the Applicant is
entitled to revoke his donation to the Trust as well as his donation of appointing the
First Defendant as a beneficiary to the Trust.
Clause 20 of the Trust Deed:
[56] The First Respondent submitted that there is a Jurisdictional impediment in
clause 20 of the Trust deed in that no amendment may be made without the
agreement of the First Respondent.
[57] Clause 20 of the trust deed reads as follows:
“Die meerder heid van die Trustees mag met toestemming van die
Begunstigde van hierdie trustakte hersien of wysig met dien verstande dat
sodanige wysiging nie die herroeping van die trust tot gevolg het nie. Die
trustees het verder die reg om hierdie trustakte in die g eval dat enige
wetgewing dit genoodsaak te wysig of the hersien om sodoende aan die
vereistes van sodanige wetgewing te voldoen. Die skadeloosstelling soos na
verwys in 13 hierbo sal mutatis mutandis van toepassing wees in vebrand met
enige skade wat gel y word as gevolg van die wysiging of die hersiening.”
[58] This clause provides that the trust deed may be amended with the consent of
the First Respondent insofar as it does not repeal the trust.
[59] The First Respondent submits that Clause 20 of the Trust Deed renders the
allegations in the founding affidavit to naught and that the Applicant is not entitled to
any relief sought.
[60] The Applicant argued that this contention is not supported by law or by fact. In
terms of the Trust Property Control Act 57 of 1988, the Court is clothed with the
power to vary trust provisions.
Section 13 of the Trust Property Control Act 57 of 1988:
[61] Finally, it is necessary to deal with the application of Section 13 of the Trust
Property Control Act 57 of 19 88, which reads as follows:
“13. Power of Court to vary trust provisions. –
If a trust instrument contains any provision which brings about consequences
which in the opinion of the court the founder of a trust did not contemplate or
foresee and which –
(d) Hampers the achievement of the objects of the founder; or
(e) Prejudice s the interest of the beneficiaries; or
(f) Is in conflict of the public interest.
The court may, on application of the trustee or any person who in the opinion
of the court has a sufficient interest in the trust property, delete or vary any
such provi sion or make in respect thereof any order which such court deems
just, including an order whereby particular trust property is substituted for
particular other property, or an order terminating the trust.”
[62] As previously stated, the trust was establi shed due to the fondness and
affection that the Applicant had for the beneficiary, to wit the First Respondent.
[63] Unfortunately due to the First Respondent having assaulted the Applicant on
more than one occasion as well as the First Respondent’s incl ination towards
criminal behaviour, which escalated after being appointed as a Beneficiary of the
Trust, there is no longer any fondness or affection between the Applicant and the
First Respondent.
[64] The Applicant submitted in paragraph 19.6.1 of the Replying Affidavit that:
“The First Respondent is a habitual criminal and his aggression violates the
ethos, the fama and the integrity of what I had in mind in respect of the
Trust.”16
[65] And further in paragraph 19.6.2 that:
“I never envisaged a beneficiary to be a criminal and to act in a violent
manner, so as to violate the good intentions that I envisaged…”17
[66] Based on this the inclusion of the First Respondent as a beneficia ry, hampers
the achievement of the objects of the founder of the trust, to wit the Applicant. The
Applicant therefore seeks to achieve his object by removing the First Respondent as
a beneficiary of the Trust and substituting him with the Applicant’s grand children as
the beneficiaries of the trust.
[67] The Applicant finally submitted that the First Respondent’s entitlement or right
of being a beneficiary of the trust, with assets to the value of approximately R30
million, in light of his inclination for criminal behaviour and the assaults he has
committed upon the Applicant, is in direct conflict with the public interest.
[68] It is the opinion of this Court that the Applicant did not contemplate or foresee
that the First Respondent would become a habit ual criminal, hampering the
achievement of the objects of the Applicant as founder of the Trust nor that the First
16 Replying Affidavit, para 19.6.1, p188
17 Replying Affidavit, para 19.6.2, p188
Respondent would be prone to violent behaviour which is in conflict with the public
interest.
[69] The Court is satisfied that the Applicant ’s application has fulfilled the
requirements provided in Section 13 of the Trust Property Control Act 57 of 1988.
[70] The Court is further of the view that the Applicant has made a donation to the
First Respondent, both directly and indirectly, and that in terms of the principle of
gross ingratitude, the Applicant may revoke the donation made to the First
Respondent.
[71] The Applicant is therefore entitled to the relief prayed for.
Costs:
[72] There is no reason why the costs should not follow the outcome of the
proceedings, and the Applicant is thus entitled to costs.
Order:
[73] In the result the following order is made:
1. That clause 1.5.2 of the Trust Deed dated 27 June 2016, Masters Ref
No. IT163/2016(L), be deleted and substituted with the following:
“1.5.2. C[...] J[...] R[...] , Identiteitsnommer 0 […] – 25% (vyf en
twintig persent) belang; en
1.5.3. H[...] W[...] R[...] , Identiteitsnommer 2 […]– 25% (vyf en
twintig persent) belang.”
2. That the Fifth Respondent be directed to amend or to rectify its records
in accordance with the amendment envisaged in paragraph 1 supra ;
3. That the First Respondent be order to pay the costs of this application.
S DU PLESSIS
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
FOR THE APPLICANT : Adv. FW Botes S.C.
INSTRUCTED BY : Stephan van Rensburg Attorneys
stephanproc@mweb.co.za
FOR THE RESPONDENT : Adv. NG Louw
INSTRUCTED BY : Stewart Maritz & Basson Attorneys
maryka@tslegal.co.za
DATE OF HEARING : 21 February 2025
DATE OF JUDGMENT : 7 July 2025