THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 607/2024
In the matter between:
LENETTE JANSE DE WIT First Appellant
LENETTE JANSE DE WIT N O Second Appellant
MARYKE SMIT Third Appellant
and
TOERIEN DE WIT N O First Respondent
PHILIP RALL N O Second Respondent
TOERIEN DE WIT Third Respondent
PHILIP RALL Fourth Respondent
KARMIEN KRUTH Fifth Respondent
ELBERT DE WIT JR Sixth Respondent
THE MASTER OF THE HIGH COURT, CAPE TOWN Seventh Respondent
2
Neutral citation: Lenette Janse De Wit & Others v Toerien De Wit N O & Others
(607/2024) [2026] ZASCA 23 (06 March 2026)
Coram: MOLEMELA P and KEIGHTLEY and KOEN JJA and CHILI and
MODIBA AJJA
Heard: 29 AUGUST 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The date and time for hand -down of the judgment
is deemed to be 06 March 2026 at 11h00.
Summary: Trust Property Control Act – section 13 – application to terminate trust
and appoint receiver to distribut e trust asset s – whether appellant satisfied
jurisdictional requirements for relief.
3
ORDER
On appeal from: Western Cape Division of the High Court, Cape Town (Joubert
AJ, sitting as court of first instance):
1 The appeal is dismissed.
2 The first, second and third appellants are directed to pay the costs of the
respondents jointly and severally, the one or more paying the other s to be
absolved, which costs shall include those of senior counsel where so employed.
JUDGMENT
Keightley JA and Modiba AJA (Molemela P and Koen JA and Chili AJA
concurring):
[1] This appeal lies against the judgment and order of the Western Cape Division
of the High Court, Cape Town (the high court), handed down on 10 April 2024. The
high court dismissed an application by the appellants for relief in terms of s 13 of
the Trust Property Control Act 57 of 1988 (the TPCA). The appeal is with the leave
of the high court.
[2] All but the seventh respondent, the Master of the High Court, and the fourth
respondent, Philip Rall (Philip), are members of the De Wit family. The first
appellant, Lenette De Wit (Lenette), is the surviving spouse of the late Elbert De Wit
Snr (Elbert Snr) who passed away in February 2019. Elb ert Snr was the founder of
the De Wit Family Trust (the trust). The third appellant, Maryke Smit (Maryke), the
third respondent, Toerien De Wit (Toerien), the fifth respondent, Karmien Kruth
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(Karmien), and the sixth respondent Elbert De Wit Jnr (Elbert Jnr) are Lene tte and
Elbert Snr’s children. Toerien is also cited as the first respondent in his capacity as a
trustee of the trust. Lenette and Philip are also cited in their capacity as Trustees of
the trust as the second applicant, and the second respondent respectively. Another
person who features prominently in this application but is not cited as a party is Koos
Smit (Koos) who is married to Maryke.
Background
[3] Elbert Snr established the trust as a discretionary trust in 1995. Together with
Elbert Snr, Philip has been a trustee since the formation of the trust. Toerien became
a trustee in 2015. In terms of Elbert Snr’s will , Lenette replaced him as the third
trustee. In terms of the trust deed, Elbert Snr, Lenette and their children are income
beneficiaries. Elbert Snr nominated Lenette and the children as capital beneficiaries
in his will.
[4] Elbert Snr was a bourgeoning entrepreneur. He started a scrap metal business
in Worcester in 1967. In the ensuing years, he became a successful businessman. In
about 2014 he became seriously ill. At that stage, Elbert Snr requested Toerien, who
is a charte red accountant, and who was living in the United States of America, to
return to South Africa and to become involved in the businesses. As noted above, he
was also appointed by Elbert Snr as a trustee. At about the same time, with Toerien’s
assistance, the businesses were restructured , for tax and estate planning purposes ,
into a holding company, De Wit Group (Pty) Ltd (DWG), and its subsidiaries, Route
62 Investments (Pty) Ltd (Route 62) and Gasvoorsieners Boland (Pty) Ltd
(Gasvoorsieners). Koos holds 50% of the shares in Gasvoorsieners, with DWG
holding the balance.
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[5] Collectively, these entities are referred to as the De Wit Group. The trust holds
all the shares in the holding company. Therefore, the shares in and assets of the
entities constitute, directly and indirectly, trust assets. Except for Gasvoorsieners,
which is a cash business, the assets of the other subsidiary companies are largely in
the form of immovable properties. Some of the businesses conducted within the
group operate from these immovable properties. Other immovable properties are
occupied by Lenette and Maryke as their homes. In the immediate term, because of
the investment in immovable properties, DWG has limited returns on investment.
Since the trust derives its income from the dividends declared by the companies in
the group, this has an adverse effect on the liquid reserves of the trust.
[6] Before Toerien returned to South Africa, Elbert Snr largely managed the
companies with Koos. After Toerien returned to South Africa, reali sing that Koos
and Toerien approached business differently, Elbert Snr put them in charge of
different aspects of the business to avoid any potential conflict. As director, Koos
took charge of Gasvoorsieners, while Toerien became a director and the CEO of
DWG and Route 62.
[7] Elbert Snr remained seriously ill and, from January 2017 to February 2019,
he engaged in a series of discussions with Toerien, Philip and the other family
members about the future of the trust and , consequently, the companies , after his
death. What was discussed and, importantly, Elbert Snr’s expressed wishes, are
recorded in several emails and memoranda that were compiled over this period. It is
unnecessary to analyse them in any detail. Suffice to say that they demonstrate that
Elbert Snr wanted an equal distribution of trust capital between beneficiaries. He did
not want a liquidation of assets to achieve this purpose. He stated that he wanted the
businesses to continue to operate. Elbert Snr’s preference was for Toerien to build
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the businesses so that there could be sufficient liquidity for Toerien to ‘buy out’ the
remaining beneficiaries. At this stage, the value of the DWG group was over R100
million. However, as indicated earlier, most of the value was tied up in immovable
property. Elbert Snr accepted that his plan might take time to come to fruition. H e
stated that the goal was that there should be a distribution between beneficiaries as
soon as reasonably possible.
[8] As part of the discussion s between the family , Elbert Snr asked that each
beneficiary should indicate whether they were interested in a particular trust asset ,
or whether they would prefer a distribution in cash. There was some divergence
between the beneficiaries: Karmien preferred a cash payment, w hereas Maryke
preferred specific assets . It is important to note that these discussions were never
elevated to a formal distribution proposal to the trustees. The appellants originally
averred that a trust capital distribution plan was agreed upon and that all that
remained was for its implementation. However, in separate proceedings before the
high court, instituted by Karmien, it was subsequently found that no distribution
decision had been made.
[9] Notwithstanding that none of the companies had declared annual dividends
since inception, at a meeting in November 2018, Elbert Snr directed that dividends
should be declared for purposes of maintaining the trust beneficiaries. No dividends
were implemented, nor have the subsidiary companies declared dividends since
Elbert Snr passed away.
[10] Much acrimony developed after Elbert Snr’s death between the appellants and
Toerien. The acrimony is ongoing and has spawned litigation between the parties in
addition to the application that is the subject -matter of this appeal. Maryke and
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Karmien, with whom Lenette is aligned, have pressed for the trustees to declare a
vesting date and to distribute the capital of the trust. Lenette is the only trustee to
support this course of action. However, the majority, being Toerien and Philip (the
majority trustees), disagree. As, in terms of the trust deed, deci sions of the trustees
are decided by a majority vote in the event of a disagreement, Lenette’s view has not
found traction.
In the high court
[11] It was this impasse that led to the application before the high court. The
appellants applied for an order: terminating the trust in terms of s 13 of the TPC A;
appointing an identified receiver to take control of trust property; and giving the
receiver specified powers, including the power to liquidate and distribute trust assets.
In the alternative, the appellants sought an order removing Toerien and Philip as
trustees and according to Lenette, the power to appoint alternative trustees.
[12] The appellants’ complaint focused on clauses 1.8 and 7.3 of the trust deed (the
impugned provisions). The former clause defines1 ‘vesting date’ as:
‘The date which the trustees may determine as [the] vesting date, which shall indicate the time at
which [the] beneficiaries shall acquire vested rights with respect to the net trust assets.’
[13] Clause 7.3, which falls under the heading ‘utilisation of capital’, provides that
the trustees:
‘shall be entitled, in their sole discretion, to continue the trust indefinitely , but upon termination
thereof, [and] subject to the constraints imposed herein, shall allocate the capital to the
beneficiaries in accordance with clause 1.6 hereof. . .’ (Emphasis added.)
1 The trust deed was written in Afrikaans. The English translation contained in this judgment is as per that provided
in the appeal record.
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[14] The nub of the appellants’ case i n the high court was that the impugned
provisions were being used by the majority trustees to continue the trust indefinitely,
rather than to determine a vesting date an d distribut e the trust assets to the
beneficiaries. According to the appellants, the majority trustees’ reliance on the wide
discretion accorded to them under these clauses has caused a breakdown in
relationships among the family, and conflict between the trustees. These are
consequences that they aver red the founder, Elbert Snr, did not for esee or
contemplate.
[15] Further, according to the appe llants the breakdown in family relations was
hampering the object ives of the trust. Clause 3 of the trust deed defines these
objectives as follows:
‘3.1 The expansion of the trust benefits and the creation of sources of income for the Beneficiaries.
3.2 To pay such funds from the income of the Trust to the various Beneficiaries as may be
reasonable and desirable in the opinion of the Trustees and in accordance with the guidelines set
out in clauses 6 and 7.’
[16] Clause 6 deals with trust income and gives the trustees the entitlement ‘to use
the trust income in their discretion for the following purposes’. One of these
purposes is expressed in clause 6.6, which reads:
‘The trustees shall be entitled to pay to any of the Income Beneficiaries, in their sole discretion,
before payment to any such Beneficiaries of any part of the capital assets, such amounts from the
income as the Trustees in their sole discretion may deem reasonable and desirable ; provided that
the provisions of clauses 7.7 and 7.8 shall apply to the disbursement of Trust income.’
[17] Clause 7, as noted above, deals with the utilisation of the trust capital. Clause
7.1 gives the trustees, ‘in their sole discretion’ the entitlement to make capital
9
allocations ‘subject to the trustees acting in accordan ce with the provisions set out
herein when making such allocations.’
[18] To bolster their case, the appellants relied on the events, described above, that
transpired in the period prior to Elbert Snr’s death. They aver red that these
demonstrated that before he died Elbert Snr contemplated that there would be a
valuation of trust assets and a fair distribution among the beneficiaries. The
appellants contended that the majority trustees were using their powers under the
impugned provisions to extend the lifespan of the trust, contrary to Elbert Snr’s
express wishes, and the objectives of the trust . This, they sub mitted, is what was
causing the breakdown within the family which, they say, Elbert Snr did not foresee.
[19] They also contend ed that under the directorship of Toerien and his co-
directors of DWG, Messrs Mostert and Be yer, the companies in which the trust
assets are held have not declared dividends. As a result, the trust had not derived any
income, with the result that it could not fulfil its duty to maintain trust beneficiaries.
The averments went further . The appellants accused Toerien of acting in concert
with Philip and his co -directors, to run the trust and the businesses for his own
benefit. It is for that reason that the appellants sought Toerien and Philip’s removal
as trustees, in their alternative relief.
[20] The respondents denied these allegations and submitted that the appellants
had failed to satisfy the requirements for an order in terms of s 13 of the TP CA. In
the answering affidavit filed on the respondents’ behalf, Toerien disputed the factual
averments relied on by the appellants. He averred that he and Philip were doing no
more than acting within the powers accorded to them in the trust deed to further the
objectives of the trust. What the appellants wished to achieve, he contended, was not
10
possible: given the current absence of liquid trust assets, Karmien’s wish for a cash
capital distribution was irreconcilable with Maryke an d Lenette’s wish for a
distribution of trust assets in kind. As the beneficiaries could not agree on how to
achieve an equitable distribution, Toerien averred, the objectives of the trust were
properly served by delaying the determination of a vesting date.
[21] The high court considered whether the appellants had satisfied the
requirements for the grant of relief under s 13 of the TPCA. That section provides:
‘‘Power of Court to vary trust provisions
If a trust 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-
(a) hampers the achievement of the objects of the founder; or
(b) prejudices the interests of the beneficiaries; or
(c) is in conflict with 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
an order which such court deems just, including an order whereby a particular trust property is
substituted for particular other trust property, or an order terminating the trust.’
[22] The high court considered the two jurisdictional requirements inherent in s 13.
These are: first, whether the impugned provisions had brought about consequences
which the founder of the trust had not foreseen or contemplated ; and, second,
whether the impugned provisions had any of the three consequences listed in
subparagraphs (a), (b) or (c).
[23] As to the first jurisdictional requirement, it found that the appellants had
established that the impugned provisions had brought about the family breakdown,
which was not foreseen or contemplated by Elbert Snr. It concluded that the cause
11
of the appellants’ dissatisfaction (and hence the breakdown in relations) was that the
majority trustees:
‘have not given effect to Elbert Snr’s wishes, even if it means doing so in the alternative manner,
namely selling Trust assets and, instead, have simply continued to manage and operate the Trust
in terms of their discretionary powers which allow them to do so indefinitely.’
It was these discretionary powers tha t were the source of the family rift, according
to the high court, because they permitted the trustees to resist the appellants’ attempts
to persuade the majority trustees to fix the vesting date and distribute the net assets.
In the high court’s view, the appellants were justified in expecting this to occur once
it became clear that Elbert Snr’s alternative plan was not achievable.
[24] With respect to the second jurisdictional requirement , the high court found
that the appellants were required to establish that there was a causal relationship
between the family breakdown and the non-achievement of the trust objectives, or
prejudice to the beneficiaries. This they had failed to do on a balance of probabilities.
The high court found that, as a result, the jurisdictional requirement under s 13(a) or
(b) had not been satisfied and the court’s discretionary power was not triggered.
[25] The high court went further in finding that even if it was wrong in this
conclusion, it would not be appropriate, in the exercise of its discretion, to terminate
the trust. Termination of a trust was an extraordinary remedy which, according to the
high court, should only be invoked as a last r esort. The high court declined to
consider the alternative relief because it found it had no power to do so under the
auspices of s 13.
In this Court
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[26] The appellants contend that the high court correctly found that the impugned
provisions had brought about consequences that Elbert Snr had not foreseen. They
submit that there is thus no basis for interfering with the high court’s finding that the
first jurisdictional requirement of s 13 was satisfied. Where the high court had erred,
contend the appellants, was in its finding that there needs to be a causal link between
the family breakdown and the non-achievement of the trust objectives, or prejudice
to the beneficiaries . The appellants submit that the high court erred in its
interpretation of the jurisdictional requirements of s 13 in this regard. They contend
that on the common cause facts, the high court ought to have found that the second
jurisdictional requirement of s 13 had been met and that termi nating the trust is the
appropriate remedy . They expressly abandoned the ir alternative prayer for the
removal of the trustees which they had sought in the high court.
[27] The respondents take issue with the high court’s finding that the appellants
satisfied the first jurisdictional requirement. They contend that the appellants
presented no facts to support the conclusion that the impugned provisions have
brought about consequences that the founder did not foresee. In addition, they submit
that the high court was correct in finding that the appellants did not satisfy the
requirements of s 13 (a) or (b). On the contrary, according to the respondents, the
trust objectives, as set out in the trust deed, continue to be achieved. They also
contend that the high court correctly found that the termination of the trust would
not be an appropriate remedy.
[28] At the heart of the appeal is the question whether the high court erred in its
interpretation and application of s 13 of the TPCA. This section has expanded the
limited powers to vary trust provisions .2 The limitation of this power under the
limited powers to vary trust provisions .2 The limitation of this power under the
2 Cameron et al Honoré’ s South African Law of Trusts 5ed (2002) at 517 (Honoré).
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common law was founded on the public interest element of giving due respect to the
intention of the trust founder.3 Despite the wider powers of courts under s 13, the
importance of the founder’s intention is preserved. This is evident from the two
jurisdictional requirements that must be satisfied before a court may exercise its
discretionary power to vary or terminate.
[29] This Court, in Snyman v De Kooker N O and Others4 (Snyman), identified the
first criterion as the ‘anchor jurisdictional factor’ . This means that the inquiry into
the three requisites under subparagraphs (a), (b) or (c) can only ensue if the court is
satisfied that the impugned provisions have unforeseen consequences.5 This reflects
a deliberate choice by the Legislature to steer a middle path betw een the founder’s
underlying intention, on the one hand, and what may be in the beneficiaries’ interests
on the other.6 The Legislature has chosen ‘to respect the founder’s intentions to the
extent that the public interest or that of the beneficiaries prevails over the trust
instrument only when the court decides that the founder did not foresee the untoward
consequences that have arisen from its terms.’7
[30] Thus, it is not enough to show that the variation sought will better serve the
interests of the beneficiaries. Even if this is so, if the founder foresaw or
contemplated the consequences of the impugned provisions, the b eneficiaries must
live with the consequences. It follows that courts must be astute to respect and give
proper weight to the intentions of the founder . To do otherwise risks undermining
the underlying nature of a trust, in terms of which the rights of bene ficiaries in the
3 Ibid at 515.
4 Snyman v De Kooker N O and Others [2024] ZASCA 119; [2024] 4 All SA 47 (SCA); 2024 (6) SA 136 (SCA).
5 Ibid para 42.
6 Honoré at 517.
7 Ibid.
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trust property are determined by , and subject to , the terms of the trust deed. It is
important, too, to appreciate that the founder’s intention is that evinced in the trust
deed.
[31] Section 13 involves a factual inquiry into several relevant factors. These
include the background to the creation of the trust, the intention of the founder, the
purpose of the trust and its provisions. 8 It is for the applicant to establish, on a
balance of probabi lities, that the requirements of s 13 are met. 9 Absent the
jurisdictional requirements in s 13 being met, it is not competent for a court to
exercise its statutory powers.10 It is apparent from these general principles that, while
courts have a wide discretion to order appropriate relief under s 13, its discretionary
power may only be exercised if all the requirements of the section are satisfied.
[32] To succeed in this appeal, the appellants must demonstrate that the high court
erred in finding that they had failed to satisfy all the requirements of s 13. If they
succeed on this leg of the appeal, they will have to satisfy this Court, in addition,
that the high court committed a misdirection in the exercise of its discretion by
refusing to grant an order terminating the trust.
The anchor jurisdictional factor
[33] As regards the anchor jurisdictional factor, the high court found that the cause
of the family breakdown was the majority trustees’ reliance on the impugned
provisions. Instead of abiding by Elbert Snr’s wish that there be a vesting and
distribution of trust assets , the majority trustees were continuing the trust and
8 Snyman para 43.
9 Gowar and Another v Gowar and Others [2016] ZASCA 101; [2016] 3 All SA 382 (SCA); 2016 (5) SA 225 (SCA)
para 34.
10 Ibid para 35.
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postponing the vesting date. The high court accepted that these were consequences
that Elbert Snr had not foreseen.
[34] The first difficulty, in our view, is that the high court started from the incorrect
premise in reaching this conclusion. It focused its inquiry on Elbert Snr’s wishes as
expressed between January 2017 and February 2019 . This was erroneous. As we
observed earlier, the intention of a trust’s founder is critical to the question whether
the anchor jurisdictional factor has been satisfied. However, the relevant intention is
that reflected in the trust deed, not what the founder may have said decades later.
[35] The overall scheme of the trust as recorded in the trust deed envisages that it
may continue in existence at the discretion of the trustees. Significantly, the lifespan
of the trust is deliberately open-ended: the founder did not tie its continued existence
to any specific date or event, such as his death, or the children reaching a certain age.
On the contrary, it is the trustees who have the sole discretion to determine, among
many other things, if, and when, a final distribution should be made.
[36] This is consistent with the objectives set out in clause 3 : to expand trust
benefits and sources of income and to pay funds from the income of the trust to
beneficiaries. These objectives align with a trust that will potentially continue in
existence. So, too does clause 6.7, which specifies that trust income not utilised shall
be added to the capital for purposes of increasing it and earning further income. An
additional important feature of the trust is the very wide discretion accorded to the
trustees, which extends beyond that identified in clauses 1.8 and 7.3. The impugned
provisions are characteristic of, and consistent with, this scheme as a whole.
16
[37] As founder, Elbert Snr, too, was bound by the terms of the trust deed. He had
no power to alter the trust deed merely by an expression of verbal wishes. Nor did
Elbert Snr take steps to effect any formal variation of the terms of the trust deed to
fix a vesting date or otherwise limit the discretionary powers of the trustees.
[38] Thus, it must be accepted that he retained the intention, as expressed in the
trust deed, that it lay within the sole discretion of the trustees to determine the vesting
date. He contemplated that they would exercise their discretion reasonably, taking
account of all relevant circumstances. He understood that the trustees, and not the
beneficiaries, had the power to make that determination. He also contemplated that
not all trustees would agree when it came to decision -making. For this reason, the
trust deed provides for a majority decision to prevail.
[39] This intention of Elbert Snr, as clearly reflected in the trust deed, ought not
easily to be overridden. Where the high court erred was in its assumption that Elbert
Snr’s wishes , as discussed with his family, were determinative. The high court
assumed that these prevailed over the trust deed. This resulted in it reaching the
erroneous conclusion that the majority trustees had used their powers under the
impugned provisions in a manner that Elbert Snr had not contemplated or foreseen.
[40] The high court erred further in accepting that the appellants were justified in
expecting that the remaining two trustees would be persuaded to determine a vesting
date and distribute the trust assets. Under the scheme of the trust as constituted in
the trust deed, none of the appellants, as beneficiaries, have any right to insist that
the trustees exercise their discretion under the impugned provisions to declare a
vesting date. This was never the intention of the founder. The terms of the trust deed
leave this solely to the discretion of the majority trustees. The beneficiaries have no
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vested rights yet in the trust assets and thus no authority to insist that a vesting date
be fixed. Nor does Lenette have rights as a minority trustee to insist that her fellow
trustees decide trust matters in a particular manner. The high court’s approach was
based on an incorrect legal premise in this respect as well.
[41] It was also based on an incorrect factual premise. Even if Elbert Snr’s verbal
wishes were relevant to the inquiry , the minutes of meetings and communications
relied on by the appellants do not support an unequivocal desire by Elbert Snr that
the trust oug ht imminently to be terminated. The evidence in this regard
demonstrates that Elbert Snr did not wish assets to be sold and that he wished the
businesses to keep operating. It is common cause that he appreciated that any
distribution process would not be speedy. He also desired that Toerien should grow
the business to amass sufficient cash reserves in the tr ust to permit a gradual
distribution of trust assets so that ultimately, Toerien would acquire the businesses.
[42] What is more, in the answering affidavit, Toerien explains what lies behind
the majority trustees’ resistance to the appellants’ attempts to persuade them to fix a
vesting date now. In his later years, Elbert Snr focused on property -owning assets
that, while they held lower risk, also had a lower return on investment for the trust.
The main objectives of the trust , as we have observed, are to expand trust benefits
and create sources of income, rather than to distribute trust assets. To achieve this,
Toerien explains, it became necessary to grow the commercial entities held in the
trust, and develop new ones, to increase its income-producing capital base.
[43] Toerien returned to South Africa, on Elbert Snr’s invitation, to assist his
father, and ultimately to take over running the trust busin esses. They focused on
developing income-generating businesses. Some of these are still in the process of
18
growing into profitable businesses. Significantly, Toerien states in the answering
affidavit that it is not financially prudent at present for these businesses to be sold as
their optimal value will only be achieved later. He avers that were trust assets to be
distributed now, this would not be to the benefit of the beneficiaries for this reason.
[44] The answering affidavit also explains that the financial position of the trust
businesses, and hence of the trust, at present makes it impossible to meet the
distribution demands of Maryke and Kar mien. Their competing demands cannot
both be accommodated. According to Toerien, it is this that is causing the fall -out
between the beneficiaries. He indicates that he and Philip are willing to consider
different proposals for a possible distribution of trust assets in the future, but that the
current proposals are not feasible.
[45] The appellants present no substantiated evidence to refute the factual
averments regarding the financial position of the trust businesses and the inability of
the trust to meet the distribution demands of Maryke and Kar mien. The averments
are not far-fetched, nor untenable. On the application of the trite principles that apply
to disputes of fact in motion proceedings,11 Toerien’s averments must be accepted.
[46] The fact of the matter is that the distribution that the appellants contend the
majority trustees are irrationally resisting is objectivel y not possible, or prudent at
present. Moreover, a liquidation of trust assets, in the form of the current businesses,
will also not achieve an optimal return on investment for the trust, and hence the
beneficiaries, were this to be effected now for purpos es of a distribution. The
11 Plascon-Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd [1984] ZASCA 51; [1984] 2 All SA 366 (A);
1984 (3) SA 623 at 634G-635D.
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majority trustees’ present position, which is to decline to fix a vesting date, accords
with the objectives of the trust.
[47] Consequently, the appellants’ contention that it is the majority trustees’
conduct, using their powers under the impugned provisions, that is causing the
breakdown in family relations is unsustainable. It is not the existence, or exercise of
the powers under clauses 1.8 and 7.3 that is causing the unhappiness: it is the current
financial position of the trust, which makes it impossible, at this stage, to effect the
distribution that the appellants are seeking, that has given rise to the breakdown in
relations. Viewed differently, it is the appellants’ demands, which are legally and
factually untenable, that are causing this.
[48] Furthermore, in declining to fix a vesting date in the circumstances prevailing,
the majority trustees are acting in accordance with w hat is expected of them under
the trust deed: they are acting as contemplated by the founder. What did not lie in
the contemplation of the founder is that the beneficiaries would purport to enforce
rights they do not yet have to pressurise the trustees to declare a vesting date,
particularly where this would undermine the achievement of the trust objectives.
Elbert Snr would have contemplated that the beneficiaries would appreciate that they
had no right to insist on a vesting date, contrary to the decision of the majority
trustees. He would have expected them to accept the decision of the trustees, in
accordance with the clear terms of the trust deed. It is the appellant’s response to the
decision of the trustees, and not any provision in the trust deed, th at is causing the
family dispute and litigation.
[49] For these reasons, we find that the high court erred in concluding that the
appellants had satisfied the anchor jurisdictional factor. On the contrary, they failed
20
to establish that the impugned provisions have brought about consequences which
Elbert Snr did not contemplate or for esee. This, on its own, is grounds enough to
dismiss the appeal. However, for the sake of completeness, we proceed to consider
whether the appellants satisfied the remaining requirements of s 13.
Did the impugned provisions hamper the trust objects or prejudice the interests
of the beneficiaries?
[50] It was contended by the appellants that the high court incorrectly found that
s 13 requires a link to be established between both the impugned provisions and the
unforeseen consequences, on the one hand, and the second jurisdictional
requirement, identified in subparagraphs (a), (b) or (c), on the other. They submitted
that it was sufficient to show that the impugned provisions had one of these effects,
and that they had satisfied this requirement.
[51] In our view, not much turns on this point. In Snyman, this Court observed that:
‘Although s 13 has two components, the enquiry into the presence of the anchor jurisdictional
factor is intertwined with the requisites of s 13 (a), (b) and (c). In other words, it could well be that
a finding on the anchor jurisdictional factor indicates the presence of one or more of the requisites
of s 13 (a), (b) and (c). Even among the requisites in s 13 ( a), (b) and (c), there might be factors
which satisfy one or more of the requisites. … As a result, it might not always be practical, nor
desirable to have a discrete and isolated enquiry into each factor.’12
[52] This is one of those cases where the different components of s 13 are
inextricably intertwined. As we have noted, on the objective evidence, it would not
be in the interests of the beneficiaries at present for the trustees to determine a vesting
date and proceed to distribute the trust assets. First, it is not possible to give effect
12 Snyman para 42.
21
to the competing wishes of different beneficiaries. Second, the beneficiaries cannot
agree on a different distribution mechanis m, which puts the trustees in a difficult
position. Third, and importantly, if a distribution were to be effected now, the returns
on investment for the trust, and ultimately the beneficiaries, would not be optimal.
Contrary to the contentions of the appellants, they have failed to satisfy the requisites
of s 13(b).
[53] Nor can it be concluded that clauses 1.8 and 7.3 hamper the achievements of
the trust. The discretion accorded to the trustees in these provisions mirrors similarly
wide discretionary powers identified elsewhere in the trust deed. For example, they
have the power to determine whether and if so, how much, of the income shall be
paid to beneficiaries (clause 6.6); or to make capital allocations to capital
beneficiaries prior to the vesting date (clause 7.4). The discretionary nature of the
trust is one of its cardinal features. As noted earlier, whatever Elbert Snr’s verbally
expressed wishes may have been before he died, he took no steps to limit these
discretionary powers.
[54] It cannot be said that the exercise by the majority trustees of their discretion
under clauses 1.8 and 7.3, in the circumstances described above , hampers the
achievement of the trust objectives. The trust deed leaves it to the trustees, by way
of a majority vote, to determine whether a vesting date should be fixed. The majority
trustees, for rational reasons, have determined that as matters stand, this should not
yet be done. This accords with the aims identified in the trust deed, to expand trust
benefits and create sources of income.
[55] It follows that the high court correctly found that the appellants had not
satisfied the second jurisdictional requirement. This, too, is a sufficient basis to
22
dismiss the appeal. But even if this were not so, for the reasons set out below, the
appellants would nonetheless fail in establishing that the high court committed a
misdirection warranting an interference by this Court in the exercise of the high
court’s discretion under s 13.
The exercise of the discretion under s 13
[56] We agree with the submission by the respondents that s 13 establishes a
discretion in the true, or strict, sense, involving for the court a choice between
different but equally permissible alternatives.13 It is trite that in such a case, it would
ordinarily be inappropriate for an appellate court to interfere unless the lower court
has not exercised its discretion judicially. 14 The high court, correctly in our view,
acknowledged that the termination of a trust under s 13 is an extraordinary remedy
and is only to be applied as a last resort.15 It declined to make an order to this effect,
primarily for the reason that to force a termination of the trust would be antithetical
to the wishes of Elbert Snr as expressed in the trust deed.
[57] In our view, the high court cannot be found to hav e failed to exercise its
discretion judicially in reaching this conclusion: it was an entirely appropriate
conclusion to draw based on the applicable law and the facts of the case. Much was
made in the oral submissions before this Court of Toerien’s alleged conflict of
interest in managing the trust businesses and in being one of three trustees. This was
to boost the averments in the appellants’ supporting affidavits that Toerien
effectively controlled both the trust businesses and the trust.
13 Media Workers Association of South Africa and Others v Press Corporation of South Africa Ltd 1992 (4) SA 791
(AD) at 800E.
14 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another 2015 (5)
SA 245 (CC) para 88.
15 Nair NO v Nair NO and Others [2019] ZAKZPHC 23 para 40.
23
[58] Careful scrutiny of Toerien’s answering affidavit and of his supplementary
answering affidavit put paid to the correctness of these broad and unsubstantiated
averments. He is one of several directors of the trust companies and has no sole
control over them. In Toerien’s supplementary affidavit, he record s that Koos
abandoned his high court action in which he sought the removal of the additional
directors appointed after Elbert Snr’s death. This development undermines the
appellants’ case that Toerien exercises effective control over the trust businesses.
Toerien also disclosed the income he receives from the trust companies: it does not
appear prima facie to be out of sync with what a chief executive officer in his
position might expect to earn. The appellants provide no evidence to the contrary.
Moreover, Toerien is also not the only beneficiary to receive income from trust
businesses: Maryke receives a salary as an employee of Gasvoorsieners. Karmien
received a lump sum when she required cash relief and receives a monthly allowance
on an ongoing basis from the trust. Toerien is only one of three trustees. Philip has
been an independent trustee from inception and there is no evidence to support the
appellants’ contention that he has been unduly influenced by Toerien.
[59] As noted earlier, Toerien’s version pre vails. Clearly, the appellants are
unhappy about the way the majority trustees are exercising their discretion as
trustees, but this is not a justifiable reason to terminate the trust. In our view, the
appellants have failed to establish a basis to interfe re in the high court’s refusal to
grant an order terminating the trust. Even if the appellants have genuine concerns
about the present impasse between Lenette and the majority trustees, this is not
something that the Court can rectify as matters stand. As noted earlier, the appellants
abandoned their prayer for alternative relief in the form of a removal of Toerien and
abandoned their prayer for alternative relief in the form of a removal of Toerien and
Philip as trustees. That avenue is thus not open for consideration in this appeal.
24
Conclusion
[60] We conclude that the appeal fails on all possible bases. There is no reason
why the costs of the appeal should not follow the result.
[61] We make the following order:
1. The appeal is dismissed.
2. The first, second and third appellants are directed to pay the costs of the
respondents jointly and severally, the one or more paying the others to be
absolved, which costs shall include those of senior counsel where so
employed.
___________________________
R M KEIGHTLEY
JUDGE OF APPEAL
___________________________
L T MODIBA
ACTING JUDGE OF APPEAL
25
Appearances:
For Appellant: R F van Rooyen SC (with M M van Staden & L K
Farmer)
Instructed by: Mostert & Bosman , Bellville
McIntyre van der Post Inc, Bloemfontein
For 1st to 4th & 6th Respondents: P A van Eeden SC (with P Gabriel)
Instructed by: Marais Muller Hendricks Inc, Cape Town
Symington De Kok, Bloemfontein.