SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case No.: 18815/2023
In the matter between:
AKASH MAHARAJ First Applicant
SANGEETA DEVI MAHARAJ Second Applicant
and
NISHENDRA MAHARAJ NO First Respondent
THE MASTER OF THE HIGH COURT, Second Respondent
KWAZULU-NATAL, PIETERMARITZBURG
MOLLICA DEVI SUKHDEV MAHARAJ NO Third Respondent
MID-MEDIC HOLDINGS (PTY) LTD Fourth Respondent
SHAAN KASIPARSAD Fifth Respondent
This judgment was handed down electronically by circulation to the parties’
representatives by email and released to SAFLII. The date for hand down is deemed
to be at 11:00 on the 19 December 2025.
ORDER
The following order is granted:
The application is dismissed with costs on scale C.
JUDGMENT
HARRISON J
[1] The applicants seek the removal of the first respon dent as a trustee of the
AKM Trust, together with orders for the first respondent to return his letters of
authority in respect of the Trust, as well as seeking an order that the Trust be
dissolved, contending it has no purpose and is defunct.
The applicants case
[2] The first applicant, Akash Maharaj (“the first applicant” or “Akash”), is the son
of the late Dr A K Maharaj (“Dr Maharaj” or “the deceased”). The second applicant,
Sangeeta Devi Maharaj (“the second applicant” or “Sangeeta”), is the ex -wife of the
deceased.
[3] The first respondent, Nishendra Maharaj, is cited in his capacity as the sole
trustee of the AKM Trust (the AKM Trust was formerly the Dr A K Maharaj Family
Trust, but changed its name, and will hereinafter be referred to as “the Trust”).
[4] The second respondent, the Master, is cited in his official capacity and
although referencing the Durban Master, it is common cause that the Trust is
registered with the Master in Pietermaritzburg.
[5] The third respondent, Mollica Devi Sukhdev Maharaj, is the wife of the first
applicant and executrix in the estate of the deceased. Her appointment as executrix
is disputed as the Will in terms of which she has been appointed, forms the subject
matter of litigation which is referred to hereunder.
[6] Mid-Medic Holdings (Pty) Ltd, the fourth respondent, is cited as an interested
party, as the 15 500 ordinary shares (“the shares”) allocated to Dr Maharaj form the
substantial and disputed asset in the estate of Dr Maharaj.
[7] The fifth respondent, Shaan Kasiparsad (“the fifth respondent” or “Shaan”), is
the sister of the Akash and daughter of Sangeeta and Dr Maharaj. She is a clinical
technologist residing in Australia.
[8] The founding af fidavit of Akash identifies that the removal of the first
respondent is brought solely in terms of s 20(1) of the Trust Property Control Act 57
of 1988, which section provides as follows:
‘A trustee may, on the application of the Master or any person havi ng an
interest in the trust property, at any time be removed from his office by the
court if the court is satisfied that such removal will be in the interests of the
trust and its beneficiaries.’
[9] The dissolution of the Trust is sought on the basis that:
(a) it has served no purpose;
(b) it has not come into being;
(c) it has failed to submit annual returns;
(d) it has failed to comply with the provisions of the Trust deed specifically
clause 5.3 (which is dealt with hereunder); and
(e) it has failed to open a trust banking account.
[9] The founding affidavit thereafter seeks to set out what is referred to as the
“Brief Factual Matrix”. That factual matrix, however, is not always set out in a
chronological fashion and the court has been left to piece to gether the chronology,
as there was a failure by both parties to furnish a useful chronology as is required by
the practice in this Division.
[10] The Trust was set up by Dr Maharaj. He was the settlor as well as one of the
first of three trustees, togeth er with the first respondent and Ramesh Harkoo
(“Harkoo”). The Trust was formed on 27 August 2004. The Trust had as its
beneficiaries Dr Maharaj, the applicants, and the fifth respondent.
[11] Clause 5.3 of the original Trust deed provided that there woul d at all times be
not less than three nor more than five trustees of the Trust.
[12] A first deed of amendment to the Trust was dated 25 November 2008, in
terms of which the then trustees, Dr Maharaj, the first respondent, and Garth Robert
Wiliamson (“Wi lliamson”)1 as nominee for Old Mutual Trust Limited, amended the
Trust deed.
[13] Material to this application were:
(a) the beneficiaries of the Trust were extended to include the
descendants or any trust established for the benefit of the descendants o f the
first applicant and the fifth respondent;
(b) the Trust deed was amended to provide that there would be no less
than one trustee and not more than five trustees (the provision of the old
clause 5.3 was amended so that a single trustee could operate f or and on
behalf of the Trust); and
(c) within five years of the date of death of the last dying of Dr Maharaj and
Sangeeta, the Trust would be split into two equal parts and distributed to the
two children, the first applicant and the fifth respondent.
[14] A second deed of amendment was effected on 5 May 2011, signed by Dr
Maharaj and the first respondent, which had the effect of:
(a) retaining the capital in the Trust for five years after the death of Dr
Maharaj for the purposes of capital growth; and
(b) ensuring that Sangeeta would enjoy priority as an income beneficiary
during her lifetime over the distributions from the Trust.
1 Williamson had replaced Harkoo.
[15] These amendments to the Trust deed are described in the founding papers by
the first applicant, as being amendments “not just to create absolute powers,
usurping the powers of the initial trustees and to create terms that are most
favourably to himself [ the first respondent], …”. The complaint is that the purpose of
these amendments were to give the first respondent the widest powers with no
accountability, and remove the other trustees and any security requirements in terms
of the Trust deed.
[16] The first applicant, in the founding papers, references a Will dated 5 May
2011 (“the 5 May 2011 Will”). The crucial clause of that Will reads as follows:
‘4. I bequest my whole Estate to : My only son Akash Maharaj. He is to
benefit from all my assets including but not limited to, all my shares (esp MID -
MEDIC HOLDINGS) and dividends, my firearm, my primary residence (1 […]
C[…], 3[…] R[…]l Str, Durban) and all my movable property. My only daughter
Shaan Maharaj has already been settled during her wedding. Shaan and my
ex wife Sangeetha Devi Maharaj therefore will not benefit from my estate in
any way. I also acknowledge my indebtedness to my son in terms of a sale
agreement signed in 2000 in which he benefits as a creditor. I wish to dissolve
all trusts, companies, wills, and testamentary writings, as they were created
by Nishendra Maharajh (my financial advisor/accountant) who place me under
the influence of alcohol and coerced me to sign documents under great
duress. I hav e also made these facts and my intentions clear to my friend
Solly Goga and in a letter to AH Khan of Mid? Medic Holdings (14/01/2010) I
acknowledge my previous will signed with my son and his wife but feel that
Nishendra will contest it. Therefore this wi ll is left with my friend Tahera
Munshi for safe keeping and delivery to my son Akash directly upon my death.’
[sic].
[17] In his papers, the first applicant, rather than dealing with the documents
[sic].
[17] In his papers, the first applicant, rather than dealing with the documents
chronologically, then references a prior Will dated 8 May 2008 (“the 8 May 2008
Will”), and puts up a copy of same. In terms of that Will, paragraph 6 provided as
follows:
‘I bequeath an amount equal to the outstanding loan account due to me by the
AKM TRUST to the trustees in their representative capacity of t he AKM
TRUST. The trustees shall add this bequest to AKM TRUST to form part of
the trust capital. I specifically direct that my executors shall ensure that this
bequest is fulfilled by actual payment and not by way of set-off.’
[18] The 8 May 2008 Will ac cords with an agreement of sale in terms of which on
31 October 2008, Dr Maharaj sold 15 000 shares in Med-Medic Holdings to the Trust
and concluded a corresponding loan agreement for the purchase price at a sum of
R450 000. That sale of shares is disputed by the first applicant, on the basis that the
shares were sold to him in terms of a purchase and sale agreement and an
acknowledgement of debt signed in his favour on 18 September 2000 by Dr Maharaj.
[19] The first applicant concedes that the authenticit y of the purchase and sale
agreement and an acknowledgement of debt and the 5 May 2011 Will, is disputed.2
[20] The first applicant then references that in 2014 the first respondent instituted
action:
(a) to compel the fourth respondent to transfer all d ividends of the shares
into the estate late account; and
(b) direct the shares be transferred to the Trust.
[21] At paragraph 33 of the founding affidavit, the first applicant specifically sets
out:
‘33. Furthermore, the first respondent instituted further (action) legal
proceedings against the second to fourth respondents seeking:
33.1 To enforce the agreements mentioned above; and
33.2 To declare the will dated 05 May 2011 invalid and the will dated 08
May 2008 valid; and
2 Founding affidavit, page 14, para 31.
33.3 To interdict the fourth and third respondent from transferring the shares
held in the fourth respondent to any other party but the AKM trust.’
[22] In referencing this litigation, the first applicant fails to set out the case numbe r,
or take the court into any sort of confidence as to the proceedings which have been
instituted, as to the nature and extent of the pleadings in that litigation. The court, in
terms of the founding affidavit, is left guessing as to that action, which is a wholly
unsatisfactory state of affairs.
[23] The founding papers thereafter detail four grounds upon which the first
applicant seeks the removal of the first respondent as trustee.
[24] The first ground of comp laint is that the first respondent acted unilaterally in
making amendments to the Trust deed after the formation of the Trust to allow for a
minimum of one trustee, and that this was not in the best interests of the
beneficiaries.
[25] Ancillary to this, the first respondent is criticised for failing to submit records to
the Master and that, in 2014, he was removed by the Master pursuant to a complaint
letter.
[26] The founding affidavit records that on 17 July 2014, the Master queried with
the first appl icant’s attorneys whether there was any pending litigation, and the
founding affidavit specifically states, “the Master was informed there was no
litigation”. 3 The first respondent was removed by the Master and subsequently
brought an application for his r einstatement. In referencing the correspondence and
the removal of the first respondent in 2014, the first applicant annexed a report from
the Master which specifically records:
‘According to my file there was no notification by the applicant or any other
party of the litigation in the deceased estate matter before the removal was
3 Notwithstanding the paucity of the desc ription of the litigation, which is detailed in paragraph 22
above, the first applicant has put up a copy of the summons and particulars of claim in case number
5415/2014 in reply, from which it is apparent that that action was instituted on 11 April 2014.
issue. It is common practice before removal of a trustee to enquire if there is
no pending litigation, which practice I complied with.’
[27] The first applicant then details tha t there was a failure to account by the first
respondent, and that the first applicant has never received an account.
[28] The second ground for removal is the failure by the first respondent to open a
bank account. The first applicant puts up a set of fi nancials for the Trust furnished to
the Master in 2014. By virtue of those financials reflecting a donation of R1 000, the
first applicant contends that there is a breach of s 10 of the Trust Property Control
Act.
[29] The third ground for removal is that the first respondent misconducted himself
by allegedly placing Dr Maharaj “under the influence of alcohol and duress to sign
documents”, and that Dr Maharaj had left his “primary residence” (being a reference
to 1 […] C[…], 3 […] R[…] Street, Durban) to the first applicant, and that the first
applicant only realised after the death that the property belonged to the sole trustee,
being a reference to the first respondent. The first applicant complains that there was
never any disclosure how the property came to “fall under the ownership of the first
respondent’s trust which he had created specifically for this property …”.
[30] This third ground of removal is conflated with allegations that the second deed
of amendment was not signed by all trustees, and it was not signed by Harkoo.
[31] Additionally, the first applicant, under the third ground for removal, references
an affidavit by Dr Suliman Goga, a doctor with the fourth respondent an d which
includes a letter dated 14 January 2010, which reads as follows:
‘RE: MIDLANDS MEDICAL SHARES.
Please be advised that I do not want my shares or dividends to be sold or
transferred to any one without my written authority.
I am not prepared to sell or transfer my shares to anyone, should you have
I am not prepared to sell or transfer my shares to anyone, should you have
any queries kindly contact either me or Dr Solly Goga personally.’
----
[32] That letter is annexed by the first applicant on the pretext that letter “confirms
the facts in the will dated 5 May 2011” and, by vi rtue of not acting in accordance with
these two documents, the first respondent is not acting in the interests of the Trust’s
beneficiaries and the Trust.
[33] The fourth ground for removal complained of by the first applicant is that first
respondent is litigating against the first applicant. In the founding affidavit, the first
applicant refers to himself as the “sole heir and beneficiary of [Dr A K Maharaj] and a
beneficiary of the Trust and by virtue of the litigation there is a breakdown in trust
and by virtue of that breakdown in trust the first respondent should be removed as a
trustee.”
[34] The papers fail to deal with any grounds for the dissolution of the Trust, and
the court is left to draw “so called” inferences from the allegations as set out.
The Master’s report
[35] The Master has filed a report and records in that report that the amendment to
clause 5.3 of the Trust deed was effected on 25 November 2008, during the lifetime
of Dr Maharaj, and duly signed by the other trustees and Williams on, as a nominee
for Old Mutual Trust Limited.
[36] As regards the second amendment, the Master records that Williamson
resigned on 28 April 2011, and the second amendment was signed on 5 May 2011,
after the resignation of Williamson. The Master records t hat clause 25 of the Trust
deed provides that the settlor, together with the consent of the majority of the
trustees, may revise or amend the Trust deed. The second amendment was
accepted by the Master as it was signed by the settlor and the majority of th e
trustees, namely, Dr Maharaj and the first respondent.
The first respondent’s answer
[37] The first respondent filed an answering affidavit which raised in limine that
there has been non-service on the fifth respondent, with her being in Australia.
[38] Two further points were raised in limine, one being the citation of the Durban
instead of Pietermaritzburg Master, and that certain of the annexures were
haphazard and illegible. However neither of these points were pursued in argument
and, accordingly, it is unnecessary to address them.
[39] The first respondent has pertinently raised that the first applicant is using this
application for an ulterior motive to terminate the litigation under case number
5415/2014, which is the action to declare the 8 May 2011 Will the valid will (“the
action”).
[40] The first respondent points out that the 5 May 2011 Will, if valid, would result
in the first applicant being the sole beneficiary of the estate and, thereby, excluding
any benefit going to the fifth respondent.
[41] In terms of the earlier 8 May 2008 Will, if it is declared valid in the action the
shares would vest in the Trust, and the capital benefit would be shared equally
between the first applicant and his sister, the fifth respondent, with Sangeeta
remaining an income beneficiary.
[42] The first respondent points out that the first applicant has approached the
court with unclean hands in failing to fully disclose the litigation, as well as other
disputes of fact warranting that the application be dismissed outright.
[43] In the answering affidavit, the first respondent has set out how Harkoo
resigned as a trustee and was replaced by Williamson.
[44] Upon Williamson’s resignation and the death of Dr Maharaj, the first
respondent was left as the sole trustee of the Trust. The suggestions that he
engineered the amendments is disputed.4
4 The first respondent’s version is corroborated by the Master’s report which demonstrates that Dr
Maharaj was clearly involved in all the amendments, and they were validly effected by the majority of
the trustees in accordance with the Trust deed.
[45] The first respondent challenges the 5 May 2011 Will and points out that its
validity is being challenged in the action. Similarly, the 2000 purchase and sale
agreement of the shares to the first applicant and the acknowledgement of debt, are
also challenged as being fraudulent and forming part of the challenge in the action.
[46] The first respondent goes further to deal with his removal as trustee in 2014,
pointing out that the removal occurred after a letter was sent to the Master on 17 July
2014, making a false declaration that there was no litigation between the parties.
Under case number 12498/2014, the first respondent was reinstated as trustee.
[47] The allegatio ns of maladministration are duly denied and as regards the
ownership of the “primary residence”, the first respondent points out that this was
never the property of Dr Maharaj.
[48] As regards to dealing with the R1 000 donation and the failure by the Tru st to
open a bank account, the first respondent sets out that this money was always
retained by Dr Maharaj. It forms part of his estate, and against the payment of the
money of the estate, it can be deposited into a bank account.
The reply
[49] In reply and as regards the point in limine regarding service on the fifth
respondent, the first applicant relies on service at a property owned by the fifth
respondent and refers to it as “the Fifth Respondent’s current registered address”.
[50] As regards the disputes over the Will, the first applicant contends that by
virtue of the 5 May 2011 Will having been accepted by the Master, it is in some way
immutable. In reply, the first applicant contradicts what was set out in his founding
affidavit at paragraph 33, contending that the 5 May 2011 Will has never been
challenged.
[51] The replying affidavit then alleges that there has been maladministration of
the Trust and the Trust assets by the first respondent, and raises allegations of the
first respondent disposing of assets of the Trust. The court is left to speculate as to
what these assets are, as they are unspecified.
The further affidavit
[52] The first applicant raised new material in reply, which prompted a further
affidavit from the fir st respondent which deals with certain Law Society complaints,
as well as the resignation of Williamson.
[53] That further affidavit was met with a Uniform rule 30 application, which was
disposed of and the matter presented before the court on the merits. In this regard,
the first applicant’s attorneys have specifically gone on record, both in affidavit and in
the certificate of readiness, contending that the matter was ripe for hearing. Similarly,
counsel for the first applicant confirmed that the matter was proceeding on the merits.
The law and analysis
[54] The applicants have approached this court on motion and it is well established
that the affidavits constitute the pleadings and evidence. 5 An applicant is required to
make out his case in his foundi ng papers and may not do so in reply 6 and, in
proceeding on application, the applicant must produce in the founding papers all
evidence which would be led at a trial in order to make out his case. 7 Founding
papers must contain the evidence as would be needed at a trial.8
[55] The first applicant, in his founding papers, was well aware of the dispute
regarding the validity of the 5 May 2011 Will in terms of which the first applicant is
the sole beneficiary of the entire estate, as opposed to the of 8 May 20 08 Will, which
bequeaths the estate to the Trust and by virtue of the Trust deed, benefits both the
first applicant and the fifth respondent in equal shares.
5 Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa
and Others 1999 (2) SA 279 (T) at 323F-325C.
6 Poseidon Ships Agencies (Pty) Ltd v African Coaling and Exporting Co (Durban) (Pty) Ltd and
Another 1980 (1) SA 313 (D).
Another 1980 (1) SA 313 (D).
7 Die Bergkelder v Delheim Wines (Pty) Ltd 1980 (3) SA 1171 (C) at 1176A.
8 Hart v Pinetown Drive-in Cinema (Pty) Ltd 1972 (1) SA 464 (D) at 469C-E.
[56] The first applicant is well aware of this dispute, having alluded to it in the
founding papers, and yet fails to even mention the case number or put up copies of
the pleadings in case number 5415/2014 in the founding papers.
[57] The first applicant has clearly identified that the application is brought in terms
of s 20(1) of the Trust Property Control Act, which specifically provides that a court
may remove a trustee and references application proceedings.
[58] The dispute of fact as regards the validity of the Wills, is at the very heart of
this matter and, whilst I cannot criticise the applicants for proceeding by way of
application when referencing the Trust Property Control Act, when arguing before me,
and aware of the disputes of fact, the applicants have elected to proceed to argue
the matter on the papers and failed to make an election at the outset to refer the
matter to oral evidence.9
[59] It is well established that application proceedings are not designed for
determination of dispute of facts and, where an applicant elects to proceed on
application in such circumstances, he risks the dismissal of the application under rule
6(5)(g).10
[60] In light of the disputed litigation relating to the validity of the Wills, and the
dispute of facts on the papers which I have highlighted above, this application stands
to be dismissed for that reason alone. However, I deal hereunder with the further
fatal defects in the application.
[61] The applicants, through their attorneys, not only in two affidavits, but also in
the certificate of readiness, have indicated that the matter was ripe for hearing and
ready to proceed.
[62] In argument, when the issue of the first point in limine regarding the non -
service on the fifth re spondent arose, the first applicant’s argument was that service
9 Law Society, Northern Provinces v Mogami and Others [2009] ZASCA 107; 2010 (1) SA 186 (SCA)
para 23.
10 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) para 26
on the property owned by the fifth respondent was sufficient in circumstances where,
from the founding papers, it is clear that she resides in Australia. The first applicant
was unable to supply any authority as to why this was her “registered address”.
[63] This gives rise to the bizarre notion that a person, simply by virtue of
ownership of immovable property, can be served at that immovable property. This
would lead to the untenable situati on where default judgments would be granted
against defendants or respondents who never became aware of litigation because it
was served at an address other than one where it would come to their attention. This
offends against the principle of actor sequitur forum rei , i.e., you sue a defendant in
his forum.11
[64] Realising that the issue as raised by the first respondent regarding the non -
service was a problem, the first applicant then sought to adjourn the matter to bring
an application for substituted service. This approach is not to be countenanced as
the issue of the non -service was categorically and pertinently raised, and was
dismissed by the first applicant in his replying affidavit as being a non -issue. It is
clear that the fifth respondent has a direct and substantial interest in the litigation as
she is, effectively, a 50% capital beneficiary as well as being an income beneficiary
in the Trust and, if the 8 May 2008 Will is declared to be the valid Will, then, she will
not be disinherited of the benefits of the shares.12
[65] Faced with this situation, and having failed to request that the matter be
adjourned at the outset for the purposes of bringing an application for substituted
service, the application suffers from a fatal defect that an inte rested party has not
been properly served.
[66] This is a further reason why the application, as it presently stands, in light of
the applicants having elected to proceed on the papers and having advised that they
the applicants having elected to proceed on the papers and having advised that they
11 Sciacero & Co v Central South African Railways 1910 TS 119 at 121, as approved in Spendiff NO v
Kolektor (Pty) Ltd 1992 (2) SA 537 (A) at 549G-H.
12 I must mention that on the papers before me, there appears t o be in excess of R1 million worth of
dividends which have accrued to those shares and, hence, there is a substantial benefit in favour of
the fifth respondent.
intend to proceed on the papers, that the application be dismissed for the failure to
properly serve the fifth respondent.
[67] Turning to the grounds of removal as a trustee, th e Supreme Court of Appeal
in Gowar and Another v Gowar and Others13 set out as follows:
‘[30] For present purposes, two principles must be emphasised. First, the
power of the court to remove a trustee must be exercised with circumspection.
Second, neither mala fides nor even misconduct is required for the removal of
a trustee. As to the former, Murray J explained this in Volkwyn NO v Clarke
and Damant 1946 WLD 456 as follows (at 464):
“(I)t is a matter not only of delicacy (as expressed in Letterstedt’s case
[Letterstedt v Broers (1884) 9 AC 371 (PC) at 387]) but of seriousness to
interfere with the management of the estate of a deceased person by
removing from the control thereof person s 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 mor e 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 ”
[31] As to the latter, Murray J said the following at 471:
“It is of course true that proof of dishonesty or mala fides is not essential for a
case for the removal of executors or administrators. ”
The learned judge continued (at 474):
“(T)he essential test is whether such disharmony as exists imperils the trust
estate or its proper administration ”
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 office. (See also
itself be adequate reason for the removal of the trustee from office. (See also
in this regard Tijmstra NO v Blunt-MacKenzie NO and Others 2002 (1) SA 459
13 Gowar and Another v Gowar and Others [2016] ZASCA 101; 2016 (5) SA 225 (SCA) (‘Gowar’).
(T) at 47 3E-G.) 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.’
[68] The sta rting point is that the removal of trustee must be viewed with
circumspection and, furthermore, that frictional enmity between the trustees and the
beneficiaries is not an adequate reason for the removal from office.
[69] If one is to look at the nature o f the litigation, the action for the declaration of
the validity of the 8 May 2008 Will is clearly for the benefit of the Trust as it will
ensure that the Trust receives not only the dividends from the shares, but also the
shares themselves.
[70] If reference is had to the nature and manner in which the Trust was set up so
as to ensure that the second applicant received a priority regarding the income
during her lifetime, and that the benefits thereafter be shared equally between the
first applicant and th e fifth respondent, the two children, it is clear that the Trust was
set up on an equitable basis. By seeking to ensure that the Trust acquires the
dividends and shares, the first respondent can never be criticised for acting contrary
to the intention of t he Trust, but rather in the interests of all beneficiaries. Whilst this
may have the effect that the first applicant has to share the benefits with his sister,
the fifth respondent, rather than acquire the entire estate in terms of the 5 May 2011
Will, the litigation clearly benefits all the beneficiaries of the trust.
[71] The first ground of removal was not confined to allegations regarding the
amendments which allowed only for one trustee, but that the first respondent ought
to be removed because the Master removed him in 2014.
[72] The issue of the amendments to the Trust deed is closely linked to the third
ground of removal. However, it is clear from the Master’s report that the
amendments to the Trust deed were made by the then trustees and it was co nceded
amendments to the Trust deed were made by the then trustees and it was co nceded
that the Master’s report was unequivocally accepted. Accordingly, any suggestion
that the first respondent should be removed because he is a sole trustee and
amendments were made, is on the facts as presented, without any merit.
[73] As regards the convoluted allegation that the first respondent should be
removed because he was previously removed by the Master in 2014, that argument
cannot stand. The first respondent was reinstated by way of a court order. 14 To ask
this court to sit and reconsider t hat matter amounts to the applicants asking that this
court sit as a court of review. No grounds have been made out to review the Master’s
decision, and simply by referring to it and suggesting that it is correct and ought to be
“revived” to remove the fir st respondent is a case not made out on the papers and,
accordingly, the first ground for the removal of the first respondent is without merit.
[74] The second ground for removal is that there has been a failure by the first
respondent to open a bank acco unt to deposit the R1 000 which formed the initial
donation in this matter. In amplification and support of this argument, the first
applicant has specifically put up the 2014 financial statements which were furnished
to the Master.15
[75] Those accounts reflect the initial donation of R1 000 and is specifically put up
to demonstrate that the first respondent is in breach of s 10(1) of the Trust Property
Control Act, which provides:
‘Whenever a person receives money in his capacity as trustee, he shall
deposit such money in a separate trust account at a banking institution or
building society.’
[76] In reply, the first respondent has pointed out that this R1 000 was retained by
Dr Maharaj, and that upon his death would have formed part of his estate. The first
respondent has never received this money from the executrix, the third respondent.16
[77] The applicants have chosen to proceed by wa y of motion and, in
circumstances such as these where there is a dispute of fact, the respondents’
14 Index papers, at 156, annexure “B”.
15 That the first applicant, Akash, can put up financial statements destroys his argument that there has
been no accounting to him because he ca nnot complain that he does not have the accounts when,
quite clearly, he seeks to rely on them for other reasons.
16 The third respondent is also the wife of the first applicant, Akash, and there is no expl anation by her
in reply as to why she has never paid this R1 000 over to the first respondent.
version has to be examined in accordance with the Plascon-Evans rule and, quite
clearly, the first respondent was never a person who received the money and,
accordingly, the obligation in terms of s 10 of the Trust Property Control Act, on him
did not arise.
[78] As has been pointed out by the first respondent, it hardly makes any sense to
incur banking charges to invest R1 000. However, as set out above, the first
respondent was never in receipt of the money and, accordingly, the obligation to
deposit same could not have arisen, and will only arise when he is in receipt of this
money.
[79] In putting up the 2014 financial statements, it is clear that the onl y real assets
in the Trust are the shares and the dividends derived therefrom. Those shares, it is
common cause, have never been transferred into the Trust and, accordingly, the
vitriolic language used by the first applicant in describing the first respond ent as
maladministering the Trust, is not only difficult to understand, but misplaced. The
Trust has never received the assets it contends it is entitled to and, accordingly, if
there are no assets, they could not have been maladministered. That the truste e is
litigating to acquire the assets is not grounds for criticism. He should be praised for
seeking to fulfil his duty to ensure that the Trust is vested with the assets which were
intended for it, and for which all beneficiaries can benefit. This not onl y includes the
first applicant, but also his mother, the second applicant, and sister, the fifth
respondent.
[80] The second ground of removal accordingly fails.
[81] The third ground of removal referred to conflates the issue of allegedly placing
Dr Maharaj under the influence of alcohol and duress, as well as suggestin g that
there was some sort of undue benefit from the “primary residence”. This ground is
then coupled with the allegation that the second amendment was not signed by
Harkoo. This is then supposedly “supported” by the letter from Dr Suleman Goga of
Harkoo. This is then supposedly “supported” by the letter from Dr Suleman Goga of
14 January 2010, which is quoted above.
[82] The issue of the amendments has been abandoned by the applicants and has,
in any event, been dealt with above.
[83] As regards the allegations regarding the “primary residence”, no evidence has
been placed before this court that any trust funds were used by the first respondent
or from any source emanating from Dr Maharaj.
[84] Absent any such proof, this ground is not substantiated in the founding papers,
and the bald allegation is not sufficient to establish the facts in the matter. 17 The
applicants have never shown that any Trust assets were used to acquire the
property and, i ndeed, the very financials put up by the first applicant demonstrate
that no such Trust funds could have been used as the Trust is yet to come into
possession of the dividends or the shares. The very financials put up by the first
applicant demonstrate that there is no such maladministration and, demonstrate that
the accusation of the first respondent disposing of assets, is equally unsubstantiated
on the papers.
[85] There is no substantiation of the allegations regarding alcohol or duress. As
pointed out above, bald allegations without substantiation does not make out a case
for the relief sought. Accordingly, the third ground for removal fails.
[86] The fourth ground of removal is that the first respondent is litigating against
the sole heir in the esta te. This proposition has the seeds of its own self -destruction
in the very founding affidavit of the first applicant, who concedes that there is a
dispute as between the 8 May 2008 Will and the 5 May 2011 Will. If the 8 May 2008
Will is declared to be the true Will, then, the dividends and shares will be paid into
the Trust for the benefit not only of the second applicant as an income beneficiary,
but together with the two children as income and capital beneficiaries.
[87] The first applicant has specifically referenced Gowar and, as set out in Gowar,
simply because there is enmity between parties, does warrant their removal. In any
simply because there is enmity between parties, does warrant their removal. In any
event, the litigation is to the benefit of all beneficiaries of the Trust, not merely the
17 A M Moolla Group Ltd and Others v The Gap Inc and Others 2005 (6) SA 568 (SCA) para 31.
first applicant. The declaration as to which is the valid will will resolve the issue and
is for decision in the trial under the action, but it demonstrates that this entire
application was predicated upon and designed to remove the first respondent as the
sole trustee of the Trust which is litigating against the first applicant.
[88] At the heart of that litigation is the 5 May 2011 Will, a Will deposed to
purportedly on the same day that the secon d deed of amendment was signed in
terms of which the Trust undertook to retain the benefits of the shares for a period of
five years for the purposes of capital growth. That clearly is an issue which must go
to trial. However, the first applicant’s content ion that he is the sole heir, is entirely
based on the 5 May 2011 Will. What is clear from the manner in which that Will is
framed, if it is indeed a valid Will, is that it is clear that as at 5 May 2011, Dr Maharaj
by referring to “all my shares (esp Mid -Medic Holdings) and dividends”, viewed the
shares as being his possessions. That clearly contradicts the alleged 18 September
2000 purchase and sale of shares agreement and acknowledgement of debt in terms
of which the first applicant purports that Dr Maha raj acknowledged his indebtedness
to him and sold the shares to him. If disposed of in 2000 to the first applicant, why
would Dr Maharaj claim ownership of the shares in the 5 May 2011 Will unless he
did not consider himself bound by the 18 September 2000 agreement, or it did not
exist. That contradiction is never explained in the papers. This highlights a dispute of
fact warranting the dismissal of the application.
[89] The validity of the 18 September 2000 purchase and sale of shares
agreement and ackno wledgement of debt is equally undone by the purported letter
of 14 January 2010, which Dr Maharaj allegedly wrote to the accountant at Mid -
Medic Holdings. If that is a valid letter then clearly, even in 2010, Dr Maharaj never
Medic Holdings. If that is a valid letter then clearly, even in 2010, Dr Maharaj never
considered the sale and acknowledgement of debt of 18 September 2000 to be valid
and binding. I have mentioned these contradictions in order to demonstrate that the
fourth ground of removal is without merit. The dispute regarding the litigation, is
clearly well -founded and, absent this application having been referred to oral
evidence, the dispute of fact cannot be decided on these papers.
[90] In the circumstances, the fourth ground of removal also stands to be
dismissed.
[91] As set out above, the basis for the deregistration of the Trust is not dealt with
in the founding papers. The only specific reference is the amendment to clause 5.3
of the Trust deed which was the clause requiring there to be a minimum of three
trustees. That clause was validly amended and the Master’s report is definitive in this
regard. Accordingly, the ground for the deregistration of the Trust is without merit
[92] As regards the Trust being defunct or without assets, that contention is
equally illusory as the trustee is clearly seeking to ensure that the Trust benefits from
the shares, as well as the dividends which have accrued. That litigation, in any event,
is under a separate case number, but I mention it for the reason that the Chief
Master’s Directives relating to deregistration of trusts, requires tha t there must be
proof that all beneficiaries have received the benefits of the Trust. 18 No such proof
can be given, as the litigation is ongoing and outstanding. There is, accordingly, no
basis made out in the papers for the deregistration of the Trust and , accordingly, this
relief must also fail.
[93] On the issue of costs, the first respondent has requested th at costs be
awarded on an attorney and client scale. In this regard further, the first respondent
argues that the application is nothing more than a stratagem to avoid the litigation
under case number 5415/2014. That in itself is a dispute of fact.
[94] As application proceedings are not designed to decide disputes of fact, I
simply award costs on the party and party scale C.
Order
[95] I, accordingly, make the following order:
The application is dismissed with costs on scale C.
18 See: Chief Master’s Directive 2 of 2017, s 3.4.
HARRISON J
Appearances
For the applicants: W M SITHOLE
Instructed by: IQBAL MAHOMED ATTORNEYS
Address: Deus Exorno, Block B
1st Floor, Bondev Park
128 Cattle Egret Road
Cnr. Willem Botha Drive and Wierda Road
Ref: M06230
Tel: 012 324 2203
Email: ammaarah@imattorney.co.za
For the respondents: C RODEL
Instructed by: ALVINA MOODLEY ATTORNEYS
77 Deeside Drive
Bonela
Mayville
Email: alvinamoodley@yahoo.com
Date reserved: 29 May 2025
Date of delivery: 19 December 2025