HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORlA)
CASE NO: 122672/2024
(I) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) R£V1SE0.
SIGNATURE:
In the matter between:
FREDERIKJOHANNESVANAS
FREDERIK JOHANNES VAN AS N.O.
FERDINAND SMARTENRYK DEVENIER N.O
OGOERION CONSTRUCTION CC
and
THE MASTER OF HIGH COURT, PRETORIA
WILLEM JACOBUS VENTER N.O.
SYBRAND ALRERTUS TINTINGER N .O .
PETER CLAUDE PAYNE N.O.
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
First Respondent
Second Respondent
T hird R espondent
Fourth Respondent
GETRUIDA SUSANNA JACOBS N.O.
JAN DIEDERICK POTGIETER N.O.
DAWID MATTHEE N .O.
STAR STONE CRUSHERS CC
KAREL JOHANNES VAN AS N.O.
CHRISTINE CATHERINE VAN AS N.O.
GETRUIDA SUSANNA JACOBS
KAREL JOHANEES VAN AS
DA WID MA TTHEE
JAN DIEDERICK POTGIETER
FERDINAND SMARTENRYK DEVENIER
DANIAL BARNARD
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Fifth Respondent
Sixth Respondent
Seventh Respondent
Eighth Respondent
Ninth Respondent
Tenth Respondent
Eleventh Respondent
Twelfth Respondent
Thirteenth Respondent
Fourteenth Respondent
Fifteenth Respondent
Sixteenth Respondent
Summary: Trust Property Control Act 57 of 1988 - Appointment of trustees by
the Master pursuant to an order of court - Court order
contemplating independent trustees to be appointed - determined
that court order superseded the provisions of the trust deed - Master
obliged to follow court order. Secondary issue - whether
appointment by Master subject to determination of obligation to
furnish security - Found that, in issuing letters of authority, Master
has exempted independent trustees from furnishing security
ORDER
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Part B of the applicants' application dated 25 October 2024 is dismissed
with costs.
JUDGMENT
The matter was heard in open court and the judgment was prepared and authored
by the judge whose name is reflected herein and was handed down electronically
by circulation to the parties' legal representatives by email and by uploading it
to the electronic file of this matter on Caselines. The date of handing-down is
deemed to be 25 November 2025.
DAVIS, J
Introduction
[1] On 27 March 2024, as part of the adjudication of a family feud spanning
many years, Kruger AJ directed that the Master nominate and appoint three
independent trustees for the Deelkraal Behuisings Trust (IT 4808/08) (the Trust).
[2] The Master complied with the court order and issued letters of authority on
21 October 2024 to the second, third and fourth respondents to the current
application.
[3] The applicants now seek the review and setting aside of the above
nominations and appointments. The basis of the attack is that the terms of the
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trust deed, requiring nominations of trustees by "groups" of beneficiaries, were
ignored by the Master, and that this was done contrary to the provisions of section
7(1) of the Trust Property Control Act1 (the Act).
[ 4] As secondary dispute, the applicants bemoan the fact that the Master had
issued letters of authority to the new trustees without requiring them to furnish
security.
Brief background
[5] The trust was created in 2008. It owns various adjoining portions of
immovable properties in the Northwest Province. The Deelkraal Estate,
comprising some 400 houses, has been established on the immovable properties.
The houses are leased to the public and produces a sizable income
[6] The beneficiaries of the Trust are the Sebenga Trust, the Rucinda Trust and
a close corporation Star Stone Crushers CC. Various members of the extended
and related Van As family were either trustees of the Trust or representatives of
the beneficiaries.
[7] From the rental income, the Trust pays its creditors, its employees and
makes distributions to the beneficiaries. The management of the Trust and the
distribution of income became a bone of contention between the various parties,
resulting in extensive and acrimonious litigation in this court. This included
interdictory and contempt of court proceedings.
[8] I need not, for purposes of this judgment, elaborate further on the history
of the disputes between the trustees and the beneficiaries respectively. This has
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59 of 1988 . Section 7(1) reads as follows: "If the office of trustee cannot be filled or becomes vacant, the Master
shall, in the absence of any provision in the trust deed, after consultation with so many interested parties as he
moy deem necessary, appoint any person as trustee".
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already been done in previous judgments, notably that of Kruger AJ, referred to
above.
[9] The conclusion reached by Kruger AJ regarding the issue of trusteeship,
was the following: "[56] Both Van As and Mrs Jacobs have indicated that they
are prepared to resign as trustees, if the other were to leave office. Both the main
application and the counterapplication seek the removal of the present trustees.
It is necessary to regularize the affairs of the Dee/kraal Trust. The appointment
o[independent trustees by the Master o(the High Court should achieve that" (my
emphasis).
[1 OJ T he order granted by Kruger AJ, was the following:
"1. It is declared that the first respondent and the second
respondent in their representative capacity as trustees of the
Dee/kraal Behuisings Trust (IT 4808/08) are in contempt of
the court order issued by Retie/ AJ on 6 May 2019.
2. The first and second respondents are sentenced to three (3)
months imprisonment, suspended for a period of five (5) years
on the condition that they are not found guilty of contempt of
court in that period.
3. The first applicant and the first and second respondents are
removed as trustees of the Dee/kraal Behuisings Trust (IT
4808/08).
4. The Master of the High Court is directed to nominate and
appoint three independent trustees .for the D eelkraal
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Behuisings Trust {IT 4808/08) in the stead of the first
applicant and the first and second respondents.
5. The costs of the application shall be borne on the scale as
between attorney and client by the Dee/kraal Behuisings Trust
(IT 4808/08)".
[l l] Pursuant to the order, the following took place: on 17 May 2024, Mr
Bernhard van der Hoven , the legal representative for the 5t11, 7th, 11 th and 13th
respondents, addressed a letter to the legal representative of the gt11, 91\ 10th and
12th respondents, Mr Le Grange, in which he suggested that either the Fiduciary
Institute of South Africa ("FISA"), alternatively the Institute of Chartered
Accountants be approached to nominate independent trustees for appointment.
[12] On 24 May 2024, Mr Le Grange addressed an email to Mr van der Hoven
in which he stated that the gt11, 9th 10th and 12th respondents, are not opposed to
the idea of approaching the FISA , alternatively, the Institute of Chartered
Accountants to nominate independent trustees.
[13] Mr Le Grange further suggested that the two respective sets of respondents
(acting on behalf of the beneficiaries of the Trust) compile a list of suitably
qualified independent trustees.
[14] On 04 June 2024, Mr van der Hoven called Mr Le Grange and suggested
that a letter be addressed to the FISA to be circulated among their members to
determine who , if anyone, would be willing to accept the nomination to act as
independent trustees of the Trust. Mr Le Grange had no objections thereto and
this was done.
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[15] On 04 July 2024, Mr van der Hoven contacted Mr Le Grange and indicated
that he could not find anyone willing to accept the nomination acting as an
independent trustee of the Trust. Mr Le Grange informed him that he would
provide him with the contact details of possible nominations to Mr van der Hoven
to consider.
[ 16] On 05 July 2024, Mr Le Grange provided Mr van der Hoven with the
contact details of the 2nd, 3rd and 4Lh respondents.
[17] On the same day, Mr van der Hoven addressed an email to Mr Le Grange
in which he indicated that it was his instructions to agree to the replacement of
the former trustees of the Trust with the 2nd, 3rd and 4Lh respondents.
[ 18] Consequently, Mr Le Grange addressed a letter to the Master with all the
required documentation for the former trustees of the Trust to be removed and for
the appointment of the 2nd, 3rd and 4th respondents.
[19] On 22 August 2024 the Master addressed a letter to Mr Le Grange's offices
in which he requested the following: "In this regard we hereby request contact
details of the Deelkraal Behuisings Trust beneficiaries so that we can be able to
request a nomination .... Please note that the nominated individual must be
willing and able to accept the responsibilities of trusteeship".
[20] On 27 august 2024 Mr Le Grange addressed an email to Mr van der Hoven ,
attaching the Master's letter of 22 August 2024, in which he stated that ''you will
note that the Master requested that each Group, as defined in the trust deed, to
nominate two persons to act as trustees, from whom the Master will choose one
from each group, totaling three trustees".
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[21] It is evident that a refence to "Group" was a typing error, and should have
been "beneficiaries", as stated in the Master's letter. The applicants were clearly
well aware that the reference to "Group" was incorrect, as they were in possession
of the Marster's letter and, in paragraph 153 of the founding affidavit, stated that
"Each beneficiary of the DBT was accordingly requested to nominate two
individuals and the Master would then choose one trustee for each".
[22] The beneficiaries (Sebenza Trust, Rucinda Trust and Star Stone Crushers
CC) , having already agreed to nominate the 2nd, 3rd and 4th respondents, compiled
resolutions to that effect. The resolutions compiled and signed by the 5°1, 7th, 11 °
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and 13th respondents corresponded therewith and read as follows (also
nominating the 2nd, 3rd and 4th respondents):
"A nd whereas as the Master of the High Court R equired the beneficiaries
of the Deel kraal Behuisingstrust to nominate substituting trustees;
And whereas the beneficiaries of the De elkraal behuisingstrust are ad idem
as to the identity of substituting trustees.
Now therefore it is resolved as follows:
The following persons are nominated to serve as trustees of the D ee/kraal
Be huis ingstrust:-
Willem Jacobus Venter
Sybrandt A lbertus Tintinger
Peter Claude P ayne".
[23] The 8th respondent compiled a similar resolution.
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[24] It is therefore evident that all the beneficiaries of the Trust nominated the
2nd, y d and 4th respondents to replace the former trustees. The Master, having
made enquiries from the beneficiaries, appointed these respondents as trustees, in
compliance with the order of Kruger AJ.
The applicants' subsequent attack on the appointment of the new trustees
[25] Clauses 5 .1 and 5 .2 of the trust deed provide for three "groups" of
beneficiaries. Each "group" is represented by a "group representative". Clause
5.3 provide for the manner in which the groups nominate successive
representatives for the respective groups from time to time.
[26] Clause 5.4.l provides as follows (my translation): "Each group
representative is entitled to appoint ONE trustee, with the understanding that
where a group has more than 45% interest (in the Trust), such a group is also
entitled to remove a trustee from time to time and appoint another in his (or her)
stead''.
[27] None of the groups had more than 45 "interest" in the Trust at any relevant
time.
[28] The applicants' complaints are twofold: firstly, the Master did not consider
any group representative for appointment as a trustee and secondly, the Master
paid no heed to any nomination put forward by the group representatives, but had
regard to the representations of the beneficiaries themselves, through Messrs Van
der Hoven and Le Grange, as indicated above.
[29] The applicants contend that the Master, m acting as aforementioned,
breached the provisions of section 7(1) of the Act. The corollary of this argument
is that the order of Kruger AJ had not and could not oust the application of said
section 7(1).
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Evaluation
[30] It is clear that section 7(1) contemplates the occurrence of a vacancy in the
position of a trustee in two circumstances. The first is where the vacancy "cannot
be filled". This might be, for instance, where there is no-one available from a
pool of trustees dictated by a trust deed. The second circumstance is in the event
of an ordinary vacancy, say as a result of the passing or resignation of a trustee.
[31] In both the above two circumstances, section 7( 1) dictates that the Master
shall appoint a replacement trustee. Such replacement would firstly have to be
done in accordance with the provision of the trust deed ("instrument") or,
secondly, if the trust deed does not contain provisions about who may or should
be a replacement trustee, then the Master may only appoint such a trustee "after
consultation with so many interested parties as he may deem necessary".
[32] The first question to be asked, is whether Kruger AJ contemplated that,
pursuant to his order, the Master should apply the provisions of the trust deed?
In the circumstances of this case, that would result in the appointment of trustees
nominated by the group representatives of the three "groups" defined in the trust
deed.
[33] The result of the above would be that the warring parties, being groups of
beneficiaries who had been at each others' throats about how the Trust should be
run by trustees nominated by them and about how distributions should be made
by those trustees, would be right back where they started before litigation ensued.
Even if new trustees may were to be nominated, that does not take away the fact
that history has shown that, despite the fiduciary duties of the trustees, the
"groupings" brought about by the structure of the trust deed and the Trust's
beneficiaries, constantly lead to trustees being partisan. The proposition put
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forward by the applicants would therefore undennine the very solution
determined by Kruger AJ .
(34] It is further trite that judgments and orders, like other legal instruments
must be interpreted with due regard to the language used, the context in which it
is used and the purpose of the impugned clause or provision. The evaluation of
these concepts should furthennore not be done in a mechanical fashion. Our
courts have held that "it is the relationship between the words used, the concepts
expressed by those words and the place of the contested provision within the
scheme of the agreement (or instrument) as a who!, e that constitutes the
enterprise by recourse to which a coherent and salient interpretation is
determined''2 .
(35] The interpretational starting point is therefore the words used in the order
under consideration. The words used by Kruger AJ were "independent trustees".
He further indicated that these trustees should be in the stead of the three
(partisan) trustees previously nominated by the three group representatives at the
time. When these words are read with the context of the judgment in which they
were used, they could only mean that Kruger AJ contemplated that the Master
should appoint trustees other than those nominated by the groups. This would in
turn mean that the court ordered the Master not to follow provisions of the trust
deed.
[36] The above circumstances are exactly those expressly contemplated in
section 6(1) of the Act. This section provides as follows: "Any person whose
appointment as trustee in terms of a trust instrument, section 7 or a court order,
... shall act in that capacity only if authorized thereto in writing by the Master".
2
Capitec Bank Holdings Ltd v Coral Lagoon Investments 194 (Pty) Ltd 2022 (1) SA 100 (SCA) per 26, with reference
to Natal Joint Municipal Pension Fund v Endumeni 2012 (4) SA 593 (SCA) par 18.
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[37] This section therefore contemplates three distinct manners of appointment
of a trustee: 1) in terms of a trust deed, 2) in terms of section 7 ( as discussed
above) or 3) in terms of a court order. In respect of all three manners of
appointment, it only takes effect once the Master issues a letter of authority to
such a trustee or trustees.
[38] The use of the word or denotes that the three possibilities are distinct
alternatives to each other. In the present matter, the latter of the three possibilities
found application. As a separate and distinct alternative manner of appointment,
a court order can therefore, as it did in this case, validity give directions to the
Master which may be contrary to the terms of a trust deed and which would take
the matter outside the realm of section 7(1 ).
[39] If that is the case, the applicants then argued as a further string to their bow ,
that section 6 finds no application as the appointment of the new trustees
contemplated in that section was not done "by the court", but by the Master. This
argument is mere wordplay. Section 6 provides for an "appointment as trustee
in terms of ... a court order". The nomination and appointment by the Master
was clearly "in terms of a court order". That is the only manner in which the
direction by Kruger AJ can properly and purposely be interpreted.
[40] I therefore find that the applicants' attack on the appointment of the new
trustees must fail.
[ 41] By wa y of yet a further attack, the applicants argued that only trustees
appointed in terms of the provisions of the trust deed are exempted from
furnishing security. In all other instances, such a trustee is obliged to furnish
security.
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[42] For purposes of this argument, the applicants rely on section 6(2) of the
Act, which provides as follows: "The Master does not grant authority to the
trustees in terms of this section, unless - (a) he has furnished security to the
satisfaction of the Master ... or (b) he has been exempted from furnishing security
by a court or by the Master under subsection (3)(a) or, subject to the provisions
of subsection 3(d), in terms of a trust instrument".
[43] In this case, the court has not exempted the new trustees from furnishing
security and the applicants allege that neither has the Master done so. The
enabling provision for the Master to grant such exemption is Section 6(3)(a),
which provides that "the Master may , if in his opinion there are sound reasons to
do so - (a) whether or not security is required by the trust instrument (except a
court order) dispense with security by a trustees".
[ 44] The simple fact of the matter in this case, is that the Master "does not grant
authority" to trustees unless security has been either required and furnished, or
dispensed with. In this case, the new trustees had tendered security ( despite them
being either attorneys or persons in the employee of a corporation which performs
trustees work regularly). The Master has however not insisted on this tender
being fulfilled, but has issued letters of authority without demanding such
security. The only logical conclusion is that the Master has dispensed with
security.
[ 45] The applicants bemoan the fact that there was "no proof" of such
dispensing and neither has the Master confirmed it. This complaint must be
viewed against the backdrop of the applicants' notice of motion. Therein not a
word was said about the issue of security or any decision to dispense therewith.
It is only in a single paragraph of the 219 paragraphs comprising the applicants'
founding affidavit that one finds a refence to the issue of security. Even then, the
founding affidavit that one finds a refence to the issue of security. Even then, the
issue was not raised as a basis for setting aside the appointment of the new
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trustees, but only on the basis that there was "no indication" that the said trustees
had been exempted and, if they had, the deponent found it "incomprehensible".
In these circumstances, I find that this issue has insufficiently been "pleaded" as
a cause of action to warrant a setting aside of the appointment of the new trustees.
Conclusion
[ 46] I find that Kruger AJ had, by his order, intended that the Master nominate
and appoint independent trustees and that the Master was not bound by
nominations of the defined "groups" of beneficiaries. The independent trustees
appointed, in any event appeared to have the blessing of the beneficiaries, albeit
not by way of their "groupings". In acting in this fashion, the Master had not only
complied with a court order, but the appointments were in accordance with
section 6(1) of the act. I further conclude that such trustees had been exempted
from furnishing security, when the Master had issued their letters of authority.
Costs
[47] I find no reason to depa1t from the customary rule that costs should follow
the success or failure of an application or action.
Order
[48] In the premises, an order is made in the following terms:
Part B of the applicants' application dated 25 October 2024 is dismissed
with costs.
Judge of the High Co urt
Gauteng Division, Pretoria
Date of Hearing: 08 October 2025
Judgment delivered: 25 November 2025
APPEARANCES:
For the Applicants:
Attorney for the Applicants:
Adv R Grundlingh
Scheepers & Aucamp
Attorneys, Potchefstroom.
c/o Alers van Aardt Bester
Inc., Centurion
For the St\ 91h 10111 & 12th Respondents: Adv A Vorster
Attorney for the 8th, 9th 10111 & 12111 Respondents: Jaco le Grange Attorneys,
Pretoria
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