ORIGINAL
DITTO
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
ELIZABETH CHRISTINA BEUKES N.O.
[In her capacity as Trustee of the Beukes
Familie Trust (IT748/04)]
SARAH PETRONELLA MEIRING
(nee BEUKES) N.O.
[In her capacity as Trustee of the Beukes
Familie Trust (IT748/04)]
and
MATTHEUS GERHARDUS BEUKES N. 0
[In his capacity as Trustee of the Beukes
Boerdery Trust (IT1097/99)]
PETRUS JACOBUS VENTER N.O.
[In his capacity as Trustee of the Beukes
BoerderyTrust (IT1097/99)]
Unreportable
Case number: 1970/2024
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
In re:
In the matter between:
ELIZABETH CHRISTINA BEUKES N.O.
[In her capacity as Trustee of the Beukes
Familie Trust (IT748/04)1
SARAH PETRONELLA MEIRING
(nee BEUKES) N.O
[In her capacity as Trustee of the Beukes
Familie Trust (IT748/04)]
and
MATTHEUS GERHARDUS BEUKES N.O
[In his capacity as Trustee of the Beukes
Boerdery Trust (IT1097/99)1
PETRUS JACOBUS VENTER N.O.
[In his capacity as Trustee of the
Beukes Boerdery Trust (IT1097 /99)1
2
Case number: 1970/2024
FIRST PLAINTIFF
SECOND PLAINTIFF
FIRST DEFENDANT
SECOND DEFENDANT
Neutral citation: EC Beukes N.O and Another v MG Beukes N.O and Another
(1970/2024) [2026] ZAFSHC 50 (11 February 2026)
Coram: BOONZAAIER AJ
Heard: 26 January 2026
Delivered: 11 February 2026
Summary: Court dismissed an application to amend and join co-trustees - held that
the failure to cite all trustees of a trust and non-service on trustees in their official
capacity renders the proceedings fatally defective.
p
3
ORDER
The application for leave to appeal is dismissed, with costs. Counsel's fees to be taxed
on scale B
JUDGMENT
[1] The Applicants seek leave to appeal the judgment and order of this Court handed
down on 23 October 2025. Leave is sought to the full bench on the grounds embodied
in its notice of application for leave to appeal dated 13 December 2025. The Respondents
opposed the application. Leave to appeal is sought in terms of ss 17(1)(a)(i) and
17(1 )(a)(ii) of the Superior Courts Act 10 of 2013. The applicants rely on a number of
grounds which are discussed in their notice of appeal. Section 17(1) of the Superior
Courts Act provides that leave to appeal may only be granted where the Judge or Judges
concerned are of the opinion that -
'(a) (i) the appeal would have a reasonable prospect of success; (ii) there is some other compelling reason
why the appeal should be heard, including conflicting judgments on the matter under consideration.'
[2] The primary case made out in support of the application is that the court
misdirected itself by failing to have regard to the following:
'1. That the Honourable Court erred, alternatively misdirected itself in dismissing the
Applicants' application for leave to amend, in terms of Rule 28(4), with costs and finding
that it is not necessary to adjudicate the application to strike out, in terms or Rule 6(15).
2. The Honourable Court erred, alternatively misdirected itself in finding that failing to cite all trustees of a
Trust, render the proceedings fatally defective, as the Trust is not properly before Court whilst the Trust, as
represented by two of its trustees, knew about and in fact defended the action, which could only transpire
if all the trustees resolved to defend the action.
3. The Honourable Court erred, alternatively misdirected itself in concluding that the defendant trust as
represented by two (2) of its trustees was "not before Court - in causa a misjoinder" and that no finding or
judgment against the Respondents - two Trustees representing the Trust, would be valid.
4
4. The Honourable Court erred, alternatively misdirected itself, in dismissing the applicant for amendment
where all the trustees were and ought to have been aware of the action and the application for amendment
in absence of any prejudice to the trustees to be joined.
5. The Honourable Court erred, alternatively misdirected itself, in finding that additional trustees, cannot
be added to proceedings through amendment in terms of Rule 28, simply because the trustees who were
cited objected to the amendment and in doing so preferred form over substance.
6. The Honourable Court erred, alternatively misdirected itself, in finding that a notice of amendment
must always be served on a party who is to be joined, whilst in the circumstance of this case, where the
parties are aware of the application and no prejudice can possibly arise from the amendment (the
defendants raise the fact that 2 other trustees were also authorised who had not been joined to the
proceedings) it was not necessary to serve the application on the trustees to be joined an no prejudice
existed.
7. The Honourable Court erred, alternatively misdirected itself in finding that the adding of two further
trustees to the action, to cite all the trustees of the Beukes Boerdery Trust, will cause prejudice to the
Beukes Boerdery Trust.'
[3] The applicants contend that the appeal would have reasonable prospects of success
and the test is simply whether there is any reasonable prospect of success in an appeal.
Leave to appeal in terms of s 17(1)(a)(ii) to the full bench should therefore, be granted.
Leave to Appeal
[4] Counsel on behalf of the applicant contends that in Ramakatsa and Others v African
National Congress and Another 1 it was stated that:
'[10) Turning the focus to the relevant provisions of the Superior Courts Act (the SC Act), leave
to appeal may only be granted where the judges concerned are of the opinion that the appeal
would have a reasonable prospect of success or there are compelling reasons which exist why
would have a reasonable prospect of success or there are compelling reasons which exist why
the appeal should be heard such as the interests of justice. This Court in Caratco, concerning the
provisions of s 17(1 )(a)(ii) of the SC Act pointed out that if the court is unpersuaded that there are
prospects of success, it must still enquire into whether there is a compelling reason to entertain
the appeal. Compelling reason would of course include an important question of law or a discreet
issue of public importance that will have an effect on future disputes. However, this Court correctly
added that "but here too the merits remain vitally important and are often decisive". I am mindful
of the decisions at high court level debating whether the use of the word "would" as oppose to
"could" possibly means that the threshold for granting the appeal has been raised. If a reasonable
1 Ramakatsa and Others v Arican National Congress and another [2021] ZASCA 31.
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prospect of success is established, leave to appeal should be granted. Similarly, if there are some
other compelling reasons why the appeal should be heard, leave to appeal should be granted.
The test of reasonable prospects of success postulates a dispassionate decision based on the
facts and the law that a court of appeal could reasonably arrive at a conclusion different to that of
the trial court. In other words, the appellants in this matter need to convince this Court on proper
grounds that they have prospects of success on appeal. Those prospects of success must not be
remote, but there must exist a reasonable chance of succeeding. A sound rational basis for the
conclusion that there are prospects of success must be shown to exist.'
[5] I am also mindful of what the SCA in Smith v S,2 per Plasket AJA, had occasion to
consider what constituted reasonable prospects of success in section 17(1 )(a)(i) and held:
'What the test of reasonable prospects of success postulates is a dispassionate decision, based
on the facts and the law that a court of appeal could reasonably arrive at a conclusion different to
that of the trial court. In order to succeed, therefore, the Respondent must convince this court on
proper grounds that he has prospects of success on appeal and that those prospects are not
remote but have a realistic chance of succeeding. More is required to be established than that
there is a mere possibility of success, that the case is arguable on appeal or that the case cannot
be categorised as hopeless. There must, in other words, be a sound, rational basis for the
conclusion that there are prospects of success on appeal.'3
[6] As such, in considering the application for leave to appeal, it is crucial for this court
to remain cognizant of the higher threshold that needs to be met before leave to appeal
may be granted. There must exist more than just a mere possibility that another court,
may be granted. There must exist more than just a mere possibility that another court,
the full bench in this instance, will - not might - find differently on both facts and law. It is
against this background that I consider the most pivotal grounds of appeal.
[7] Central to this issue is the settled principle in South African law that a trust has no
juristic personality and therefore cannot sue or be sued in its own name; a trust is not a
separate juristic person; it is a legal institution sui generis. The trust itself cannot sue or
be sued in its own name unless otherwise provided by statute. Therefore, trustees must
be cited nomine officio. Because a trust lacks legal personality , any action by or against
a trust must be brought by or against its trustees in their representative capacities (nomine
officil).
2 Smith v S [2011] ZASCA 15; 2012 (1) SACR 567 (SCA).
3 Ibid para 7.
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[8] The principle of joinder of trustees is that all trustees must be joined.4 The settled
common-law position is that all trustees must be joined in litigation where a trust is sued
or sues, unless the trust deed or a resolution expressly authorises one trustee to act on
behalf of all.5 This rule embodies the traditional requirement that trustees act jointly in
administering trust affairs and in litigation.
a. Trustees must be cited by name in their representative capacities. Non -joinder
of trustees is critical relevant as a necessary party. Under rule 10 of the Uniform Rules of
Court and common law authority, a party is a necessary party if:
i) the person has a direct and substantial interest in the subject of the litigation;
ii) the court cannot make a binding order without affecting that person's interests; or
iii) failure to join may prejudice the absent person;
iv) In the context of a trust, each trustee has such an interest because the trust estate
and its administration are indivisibly vested in the trustees.
[9] There is a limited exception where one or more trustees act on behalf of all, such as
instances where the trust deed expressly permits it, or a resolution by all trustees
empowers one trustee to litigate on behalf of the board. However, absent such authority,
the general rule applies. The impact of a non-joinder is that a failure to cite all trustees
can render the proceedings procedurally defective and excipiable, and the possibility
could very well exist that the proceedings are rendered fatally defective if a necessary
party is missing. Whether the defect is curable (e.g. by amendment) or fatal often depends
on whether the absent trustees are prejudiced or have a direct and substantial interest.
The fact that the two cited trustees knew of, and defended, the proceedings does not
substitute for proper joinder of all trustees. The court still has a discretion. The applicants'
contention that knowledge and defence of the proceedings by two trustees validates the
contention that knowledge and defence of the proceedings by two trustees validates the
summons is not legally sufficient in the absence of proper authority or joinder.
[1 O] In the present matter, the court held that a notice of intention to amend should have
been served on the trustees sought to be joined, particularly where the amendment
entails the joinder of a necessary party. This requirement is not a mere formality but flows
from the audi alteram et partem principle and the rules governing joinder and amendment.
The fact that the parties sought to be joined were allegedly aware of the proceedings, do
4 Bayer Trust v Bayer and Others (2024] ZAWCHC 404.
5 T. T v 0. TN. 0 and Others (2024] ZAFSHC 7.
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not dispense with the requirement of formal service. Knowledge of proceedings is not
equivalent to being properly cited as a party, nor does it confer upon such party the
procedural rights attendant upon joinder, including the right to object to the amendment ,
raise defences, or place relevant facts before the court. In circumstances such as these
- where the trust has no juristic personality and all trustees are required to be joined in
their representative capacities - the amendment sought was not merely cosmetic but
went to the very identity of the parties before court. The proposed amendment therefore
necessitated service of the Rule 28 notice on the trustees sought to be joined.
[11] The respondents contend that the applicants have provided no explanation for their
failure to cite and serve the remaining trustees. The applicants, however, submit that only
two trustees were initially cited because a prior letter of authority indicated that there were
only two trustees; they only became aware of the existence of the other two trustees after
the special plea had been filed. In response, the respondents argue that the Master of
the High Court had already issued the letter of authority prior to the issuing of the
summons, and therefore the applicants' explanation is untenable.
Prejudice
[12] The applicants' contention that no prejudice could arise is misplaced. The applicants
contend that the trustees knew of the matter and they even opposed it. Prejudice in the
context of joinder is not confined to actual harm suffered, but includes the deprivation of
a party's right to be heard before being bound by litigation. Absent proper service, the
court would be unable to make a binding order against the absent trustees, thereby
rendering the proceedings irregular and potentially unenforceable. Hence, the court found
that failure to serve the notice of intention to amend on the trustees sought to be joined
that failure to serve the notice of intention to amend on the trustees sought to be joined
was fatal to the amendment application , and that the procedural defect could not be cured
by the mere assertion that the parties were aware of the proceedings or that no prejudice
would ensue.
Appea/ability of the matter
[13] The respondents further submit that refusing a rule 28 amendment is ordinarily
interlocutory and not appealable, because it does not finally dispose of the main dispute.
The defect can be cured with a later amendment and a joinder which can be served on
all the parties. The applicants, on the other hand, argued that the matter is, in fact,
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appealable and referred to Media 24 (Pty) Ltd v Nhleko and Another6 (Media24) which is
similar to this matter. Here, the Supreme Court of Appeal (SCA) grappled not only with
the merits of a refusal of an application to amend a plea and the underlying civil-procedure
principles, but also with whether that refusal was appealable.
[14] While the judgment does not directly address a joinder issue (i.e. the appealability
of refusal to join a party), its reasoning on appealability of procedural rulings is useful for
similar contexts. In the high court, the application by Media 24 to amend its plea in a
defamation action was refused, largely because the court found that the proposed
amended plea was vague, evasive, and sought to justify the underlying article rather than
respond to the particulars of claim. That refusal was treated (in the High Court) as
definitive of the issues to be litigated and such that the defence could not be properly
ventilated. By framing the high court's decision as final in effect - because it effectively
would preclude the defence at trial - the SCA implicitly confirmed that the order was
appealable as a final procedural determination affecting substantive rights.
Conclusion
[15] In South African procedure, an order refusing to allow an amendment can be
appealable if it is final in effect and definitive of rights. The SCA's approach in Media24
confirms that such procedural refusals, when they go to the core of litigants' rights to
present their case, are not mere interlocutory rulings but appealable orders. This court's
order was final in effect because the defect cannot be remedied within the same
proceedings, hence the matter is appealable. Regarding the amendment, even if it had
been granted and the trustees were permitted to be joined nomine officii, the summons
was not served on all the parties, and the amendment therefore remained defective. A
reasonable prospect of success was not established for leave to appeal to be granted.
Order
reasonable prospect of success was not established for leave to appeal to be granted.
Order
In the circumstances, the application for leave to appeal is dismissed, with costs.
Counsel's fees to be taxed on scale B.
6 Media 24 (Pty) Ltd v Nhleko and Another (2023] ZASCA 77.
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S OONZAAIER
ACTING JUDGE OF THE HIGH COURT
Appearances
On behalf of the Applicant:
Instructed by:
On behalf of the Respondent:
Instructed by:
GSJ van Rensburg
Van den Berg Van Vuuren Attorneys
Bloemfontein
H Kriel
Hugget Relief Attorneys
Bloemfontein