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
(WESTERN CAPE DIVISION)
REPORTABLE
Case number: 25519/2024
In the matter between:
TRACEY SUSAN ZURNAMER N.O. First Applicant
(in her capacity as Trustee of the Derek Kelynack
Family Trust – T[...])
MARION CORNELIA KELYNACK N.O. Second Applicant
(in her capacity as Trustee of the Derek Kelynack
Family Trust – T[...])
PATRICIA MERLE RIX N.O. Third Applicant
(in her capacity as Trustee of the Jack Kelynack
Family Trust – T[...]2)
And
JA CLIFT (PTY) LTD First Respondent
(Registration No 1939/012350/07)
TRUSTEES FOR THE TIME BEING OF THE
JAMES CLIFT TRUST Second Respondent
TRUSTEES FOR THE TIME BEING OF THE
JAMES ANDREW CLIFT TRUST Third Respondent
TRUSTEES FOR THE TIME BEING OF THE
TREVOR RICHARD CLIFT TRUST Fourth Respondent
TRUSTEES FOR THE TIME BEING OF THE
SECOND PETER CLIFT FAMILY TRUST Fifth Respondent
TRUSTEES FOR THE TIME BEING OF THE
SECOND MIKE CLIFT TRUST Sixth Respondent
(IT no 2[...])
TRUSTEES FOR THE TIME BEING OF THE
SECOND WILLIAM JOHN CLIFT TRUST Seventh Respondent
TRUSTEES FOR THE TIME BEING OF THE
WILSAN TRUST Eighth Respondent
Coram: Pangarker J
Hearing date: 8 August 2025
Judgment delivered: 6 March 2026
Summary: Trusts – whether locus standi established - locus standi issue addressed
in supplementary replying affidavit - Trust Deed requiring minimum number of
Trustees in office – Resolution to institute legal proceedings signed by one Trustee
only - whether subsequent ratification by Resolution of three Trustees is a remedy
where Trust suffered a lack of capacity at the relevant time
ORDER
a. Condonation is granted for the applicants’ non -compliance with the order
granted on 27 January 2025.
b. Leave is granted for the admission of the supplementary replying affidavit
dated 7 August 2025. No order as to costs.
c. The application is dismissed with costs, which shall include the costs of two
counsel (scale C).
JUDGMENT
PANGARKER J
Introduction
[1] JA Clift (Pty) Ltd, the company, is the first respondent in this opposed
application. James Andrew Clift (also known as Bill Clift) founded the company in
1906 in Paarl and operated it as a sole proprietorship . The company was
incorporated in 1939 and at the time of the application which forms the subject of this
judgment, it was the oldest monumentalist and granite business in Southern Africa.
[2] The company is a family-owned business with its shares passed down by
being held in certain Trusts. At its inception, the company’s business was concerned
with granite, which is still mined from the De Hoop Quarry on the slopes of Paarl
Mountain. Recently though, the company also ventured into the production of wine,
table grapes, table olives and olive oil on the De Hoop and Schoongezicht Farms.
[3] The Clift family has historically been the majority shareholders in the company
and directed the company’s business. The 2nd to 8th respondents constitute the Clift
family. In July 1946, Jack Kelynack was invited to become a shareholder in the
company and addressed correspondence to this effect to Bill Clift.1 Derek Kelynack,
a forebear of Jack Kelynack, was a former director of the company and resigned in
19962.
The parties
[4] As for the parties to the application, the position may be summarized as
follows: William Christopher Clift, a fourth generation Clift, is a director of the first
respondent (company), along with his brothers, James Andrew Clift, Trevor Richard
Clift and Derek Andrew Clift. He is the deponent to the respondents’ answering
affidavit and one of the Trustees to the 2 nd William John Clift Trust (7 th respondent)
and the Wilsan Trust (8th respondent).
[5] The applicants refer throughout to “minorities” and “majorities” , terms which
the respondents disagree with as their view is that it is not entirely correct . The
applicant Trusts, as represented by the cited Trustees , hold 15,94% shareholding in
the company and may thus be characterized as minority shareholders. The shares
are held and divided as follows:
Trust Applicant/Respondent % shareholding in JA
Clift (Pty) Ltd
Derek Kelynack Family
Trust
1st and 2nd applicants 3,94%
Jack Kelynack Family
Trust
3rd applicant 12%
James Clift Trust 2nd respondent 5, 18%
James Andrew Clift Trust 3rd respondent 1, 98%
Trevor Richard Clift Trust 4th respondent 1,98%
Second Peter Clift Family 5th respondent 22, 44%
1 AA4
2 JP3
Trust
Second Mike Clift Trust 6th respondent 26, 30%
Second William John Clift
Trust
7th respondent 22, 55%
Wilsan Trust
8th respondent 3,65%
[6] According to the applicants, the 2 nd respondent is cited due to its interest in
the proceedings only, and no relief is sought against it . From the above breakdown
of shares, it is evident that the 2 nd to 4 th and 8 th respondents are also minority
shareholders in the company. The 5 th to 7th respondents collectively hold 71,29% of
the company’s shares, thus the majority shareholding.
[7] As indicated, the applicants refer to themselves as “the minorities”. Having
regard to the shareholding set out in the founding affidavit , which the respondents
confirm, and as summarized in the above table , the respondents’ characterization is
not entirely correct , as the “minorities” would also include the 2nd to 4 th and 8 th
respondents.
The relief sought
[8] The applicants seek orders in its Notice of Motion, based on oppressive or
unfairly prejudicial conduct committed by the majority shareholders/directors of the
company towards the m. The applicants purport to act on behalf of the Derek
Kelynack and Jack Kel ynack Family Trusts with a view to pursuing the respective
Trusts’ rights as shareholders in the company. The relief is thus premised on section
163 of the Companies Act 71 of 2008. Before turning to the various grounds
advanced to support their case, it i s necessary to summarize the relief/order sought
in the application.
[9] The following orders, as summarized, are requested:
9.1 that the company and 3 rd to 8 th respondents are directed to purchase
the applicants’ shares and loan accounts in the company at a fair value
to be determined3;
9.2 that the applicants and 3 rd to 8 th respondents agree upon the
appointment of a practicing -chartered accountant (CA) of no t less than
15 years’ standing to value the shares and loan accounts as per
paragraph 3 to 9 of the Notice of Motion; and to determine a purchase
consideration for the applicants’ loan accounts and shares;
9.3 the valuer is required to determine the fair value of the shares and loan
accounts within 30 days of date of the order;
9.4 costs of the valuer shall be paid by the 3rd to 8th respondents;
9.5 in determining the fair value, the valuer shall act as an expert and not
as an arbitrator4;
9.6 the parties are required to co -operate with the valuer and provide him
with the necessary information and documentation to undertake the
valuation;
9.7 the valuer would have specific powers5;
9.8 the parties shall be entitled to forward documents or make
representations to the valuer;
9.9 the determination of the valuer is final and binding upon the parties;
3 To be determined in accordance with para 2-9 of the Notice of Motion
4 Further detail as per par 5.1 – 5.3 of Notice of Motion
5 The powers are set out at par 7 of Notice of Motion
9.10 payment of the fair value of the shares and loan account shall be made
within one month of such determination being made;
9.11 on a full discharge of obligations by the party acquiring the shares and
loan accounts, the applicants shall transfer their shares to the
transferee shareholders or the company, as the case may be;
9.12 the respondents are directed to take all reasonable steps to p rocure
the applicants’ release from any liability under any guarantee given by
them for the company’s obligations, and until such guarantee is given,
the 3 rd to 8 th respondents shall be jointly and severally liable and
indemnify the applicants against such liabilities;
9.13 that costs are payable by the 1 st and 3 rd to 8 th respondents on an
attorney and client scale; and
9.14 further and/or alternative relief.
The grounds for section 163 relief
[10] The applicants’ case in terms of section 163 of the Companies Act, and for the
relief sought , is based on five grounds, namely: (i) that the applicants have not
received the company’s signed financial statements for the 2023 financial year ; (ii)
the majority shareholders have received undue benefit in relat ion to the company’s
properties, de Hoop Farm and Schoongezicht Homestead s, to the exclusion of the
applicants; (iii) the applicants have not received dividends since 2009 due to a
misappropriation of capital and profits by the company’s directors and a fa ilure to
declare dividends; (iv) a failure by “the majority” to communicate and/or notify the
applicants of meetings adequately and with a proper agenda(s); and , (v) the
directors’ failure to correspond timeously to correspondence from the applicants’
accountant.
[11] In their reply, the applicants allege further that Ms Zurnamer was intimidated
as she was the only woman at an AGM and that the directors’ offer to buy out the
applicants’ shares in 2013 was “absurdly low”6.
Issues to determine
[12] Having regard to the affidavits filed and the parties’ written and oral
submissions during the hearing, the issues between them may be distilled as follows:
i. condonation for non -compliance with the Mangcu -Lockwood J order
granted on 27 January 2025;
ii. whether leave should be granted to the applicants for the admission of
a supplementary replying affidavit deposed to by Ms Pienaar in August
20257;
iii. whether the applicant Trusts established their locus standi in relation to
the application;
iv. the merits of the application; and
v. costs.
[13] Considering the key issues in dispute , the record and the parties’
submissions, my view is that should the applicants fail to establish their locus standi,
then such finding would signal the end of the application as it would be fatal to the
applicants’ case. In view of the conclusion I reach in this matter, the questions of
condonation related to the January 2025 order, the application to admit the August
2025 supplementary replying affidavit and the Applicants’ locus standi, are dealt with
6 Replying affidavit, par 24.6, p692
7 The application for leave to admit the June 2025 supplementary replying affidavit which deals with
the estate agent’s property valuation becomes academic in view of the finding on locus standi
first. A further dispute as to whether Ms Pienaar, the applicants’ accountant and
deponent to their affidavits, has personal knowledge of the facts alleged in the
application, plays a secondary role and is not listed above.
Condonation for non-compliance with the 27 January 2025 order
[14] While there is no formal application for condonation, the applicants seek
condonation in their replying affidavit for non-compliance with the Mangcu-Lockwood
J C ourt order and agreed timeline for the delivery of the replying affidavit.
Condonation was not opposed.
[15] In summary, the applicants’ non-compliance with the order, and hence, delay
in delivering the replying affidavit , are attributed to: the timeline falling within public
holidays which made obtaining instructions challenging ; the answering affidavit plus
annexures totaled 30 0 pages and took some time to deal with; the applicants’
attorneys were simultaneously involved in a complex trial in April – May 2025, and
the applicants needed to engage the services of an estate agent to determine the
market value of the Schoongezicht and de Hoop farms in order to properly respond
to the respondents’ averments.
[16] It is submitted that c umulatively, these factors prevented the timeous
compliance with the order with the result that the replying affidavit was delivered late.
The nature of the January 2025 order is procedural and time -related, rather than
substantive, or one which potentially impacts th e merits and disputes between the
parties8. Heher JA in Uitenhage Transitional Local Council v South African
Revenue Services 9 stated, with reference to the explanation for non -compliance
and delay, that:
8 City of Cape Town v ICT Works Proprietary Limited [2023] ZAWCHC 86 par 40
9 2004(1) SA 292 (SCA) par [6]- condonation related to the Supreme Court of Appeal Rules, though
the principle is the same
“It must be obvious that if the non -compliance is time -related then the date,
duration and extent of any obstacle on which reliance is placed must be
spelled out.”
[17] In view of the SCA’s guideline related to a time delay , it must be realized that
the delay in delivering the replying affidavit was only by 10 days, which by no means
amounts to a lengthy period in the circumstances. Given the timeline referred to in
the order, and having regard to the April-May 2025 calendar, it was most certainly the
case that there were public holidays falling between 16 April and 16 May 2025 10.
Furthermore, the answering affidavit with annexures relied upon is certainly
comprehensive, thus the explanation that time was needed to consider and obtain
instructions, is reasonable.
[18] I also take no issue with the explanation that the applicants’ legal
representative was engaged in a lengthy trial during the time that the replying
affidavit was due to be delivered . While it is expected of parties and their legal
representatives to comply with Court orders, the circumstances indicate that there
was little or no prejudice to the respondents because of the delay and non -
compliance with the Court order.
[19] As a result, I find the explanation provided by the applicants is in keeping with
the sentiments expressed in the Uitenhage judgment ( supra) and that it is
sufficiently full and detailed to cover the period and timeline in question. Accordingly,
the intere sts of justice dictates that I exercise my discretion in favour of granting
condonation for non -compliance with the Mangcu -Lockwood J order. The replying
affidavit is thus properly before the Court.
10 Agreed timetable for filing the answering and replying affidavits as per the order
Leave to admit the August 2025 supplementary replying affidavit
[20] The applicant Trusts seek leave by way of an application in terms of Rule
6(11) to admit into evidence the further supplementary affidavit of Ms Pienaar dated
7 August 2025. The application and affidavit were handed in d uring the hearing on 8
August 2025.
[21] It bears mentioning that in terms of Rule 6(5)(e), a Court has a discretion to
allow the filing of further affidavits . In the exercise of such discretion, the main
considerations are that the matter should be adjudicated upon all the facts relevant
to the parties’ disputes11, that fairness should be the benchmark and that there is no
prejudice to the opponent should the further affidavit be allowed12.
[22] It is trite that the Court should exercise its discretion judiciously when deciding
to allow a further affidavit. In my view, the admission of the August supplementary
replying affidavit would not be prejudicial to the respondents. It seeks to address the
point taken by the respondents that the applicants lack locus standi for the reasons
advanced in the answering affidavit, which are dealt with in more detail below.
[23] Rather than refus ing to admit the supplementary replying affidavit, the
principle of fairness dictates that I allow the affidavit to be admitted so that the issue
of locus standi of the applicants , which was fully ventilated during the hearing, may
be considered . In the circumstances, the supplementary replying affidavit of Ms
Pienaar, deposed to on 7 August 2025, is admitted as part of the application and
there shall be no order as to costs.
The Resolutions signed by Trustees: the founding affidavit
11 South Peninsula Municipality v Evans 2001 (1) SA 271 (C) 283 A-H
12 Erasmus Superior Court Practice, D1-68, Service 9, 2019
[24] It is necessary to set out the relevant parts of the applicants’ case related to
locus standi . In the founding affidavit, Ms Pienaar states that the Trustees of the
Derek Kelynack Family Trust are the 1st and 2nd applicants and the Trustee of the
Jack Kelynack Family Trus t is the 3rd applicant. They are collectively referred to as
“the applicants.” The applicants attach two Resolutions 13 in support of Ms Pienaar’s
averment that she acts under authority of Trust Resolutions from the applicants and
that the respective Trustees resolved to institute the application.
[25] The two Resolutions, set out in JP1, read as follows:
‘JP1’
RESOLUTION
of the Trustees of the
THE DEREK KELYNACK FAMILY TRUST
T[...]
________________________________________________________
IT IS RESOLVED AND AGREED AS FOLLOWS:
1. That the Trust pursues its rights as shareholder of JA Clift (Pty)
Ltd.
2. That Francois Pienaar Attorneys Inc. trading as FDP Law are
appointed for these purposes.
3. The Jeanne Gallaway Pienaar is authorized to represent the
Trust in these efforts, including to negotiate and sign a
Contingency Fee Agreement with FDP Law, and to sign
whatever documentation may be required including Cour t
Affidavits.
13 JP1
DATED at Melkbosstrand on 28 May 2024.
(SGD) MARION CORNELIA KELYNACK: TRUSTEE
(SGD) TRACEY SUSAN ZURNAMER: TRUSTEE
and
RESOLUTION
of the sole existing Trustee of the
THE JACK KELYNACK FAMILY TRUST
T[...]2
________________________________________________________
IT IS RESOLVED AND AGREED AS FOLLOWS:
1. That the Trust pursues its rights as shareholder of JA Clift (Pty)
Ltd.
2. That Francois Pienaar Attorneys Inc. trading as FDP Law are
appointed for these purposes.
3. The Jeanne Gallaway Pienaar is authorized to represent the
Trust in these efforts, including to negotiate and sign a
Contingency Fee Agreement with FDP Law, and to sign
whatever documentation may be required including Court
Affidavits.
DATED at Melkbosstrand on 28 May 2024.
(SGD) PATRICIA MERLE RIX: TRUSTEE
[26] Ex facie JP1, Ms Zurnamer N . O. and Ms Kelynack N . O. signed the
Resolution related to the Derek Kelynack Family Trust while Ms Rix N.O. signed as
the sole existing Trustee of the Jack Kelynack Family Trust. Significantly, the
applicants attach no other documents to the founding affidavit related to the
authorization of trustees and the capacities of the two Family Trusts , for example,
Letters of Authority from the Master of the High Court and/or the Master’s Certificate
and copies of the Trust Deeds in respect of these two Family Trusts.
The respondents’ lack of locus standi point
[27] The respondents make the averment in paragraphs 111 and 112 of their
answering affidavit that Ms Pienaar does not confirm whether the Trusts were
quorate. They allege that the applicants failed to establish locus standi on the
affidavits and specifically refer to Ms Rix N.O., who indicated in the Resolution that
she was the sole existing Trustee of the Jack Kelynack Family Trust.
The applicants’ response
[28] Given the respondents’ stance in the answering affidavit that the founding
affidavit is silent on whether the Trusts were quorate 14 and their denial that the
applicants have established locus standi to litigate the matter, one must consider the
applicants’ reply thereto. In paragraph 50 of the replying affidavit, Ms Pienaar states
as follows:
“50. Ad paragraphs 111 and 112
14 See below
This submission carries no validity in law, and in any event it is denied
that there has been any non -compliance with the Trust Deeds and the
Applicants’ Trusts have locus standi.15”
[29] There are no documents attached to the replying affidavit which relate to the
issue of the applicants’ locus standi . As indicated earlier, it is the second
supplementary replying affidavit which attempts to address the lack of locus standi
objection in more detail.
[30] Ms Pienaar’s supplementary replying affidavit states that after the institution of
the application, Letters of Authority were collected from the Master’s office in terms
of which additional Trustees were appointed for the Jack Kelynack Family Trust. The
updated Letters of Authority issued by the Master’s office and dated 22 November
2024 are annexed to her affidavit16 wherein the Assistant Master certifies that
Patricia Merle Rix, Tracey Susan Zurnamer and Jeanne Gall away Pienaar are
authorised to act as Trustees of the Jack Kely nack Family Trust. The Letters of
Authority are signed by the Assistant Master.
[31] Furthermore, the applicants attach annexure SA2 to the supplementary
replying affidavit, a Resolution of Trustees which reads as follows:
‘SA2’
RESOLUTION
of the Trustees of
THE JACK KELYNACK FAMILY TRUST
I[...].
15 Replying affidavit, p275
16 SA 1
________________________________________________________
IT IS RESOLVED THAT
1. The Trust's participation as Third Applicant in the matter of
Tracey Susan Zurnamer N. O. and Others versus JA Clift (Pty)
Ltd and Others case number 25519/24, is hereby ratified.
2. That Jeanne Galloway Pienaar is authorised to represent the
Trust in introducing this Resolution to the court proceedings, and
to sign an affidavit on behalf of the Trust.
Dated at Pinelands on 6 August 2025.
(SGD) PATRICIA MERLE RIX: TRUSTEE
(SGD) TRACEY SUSAN ZURNAMER: TRUSTEE
(SGD) JEANNE GALLOWAY PIENAAR: TRUSTEE
[32] The third annexure to the supplementary replying affidavit is the Master’s
certificate dated 9 September 2011 in respect of the Jack Kelynack Family Trust
which indicates that Mandy Hamilton Dix-Peek resigned as Trustee and that Ms Rix
and Phillip Keith Kelynack would continue as Trustees of that Trust. The final
annexure is a copy of the Jack Kelynack Family Trust Deed17.
The parties’ submissions
17 SA 3
[33] Having set out the framework of the locus standi issue on the papers, I turn to
the parties’ main submissions in respect of locus standi. According to counsel 18 for
the respondents, the issue related to locus standi has nothing to do with a lack of
authority, but everything to do with a lack of capacity of both applicant Trusts. The
submission is that the respondents’ denial of locus standi followed a consideration of
the founding affidavit, which contained limited or no information. In respect of the
Resolution of the existing Trustee of the Jac k Kelynack Family Trust, Ms Rix N.O. ,
the submission is that she did not purport to act as agent of the other Trustees.
[34] It was further submitted that the Letters of Authority in relation to the Jack
Kelynack Family Trust19 cannot ratify that Trust’s participation as the 3rd applicant. In
support of these submissions, the respondents’ counsel referred to the Trust Deed
which states that the number of Trustees shall not fall below two 20 and argued that
the 3rd applicant failed to produce evidence that there were two Trustees of the Jack
Kelynack Family Trust at the relevant time.
[35] The respondents submit further that the ratification as contained in the
Resolution (SA2)21 was a nullity and that the additional attachments to the
supplementary replying affidavit do not assist the 3 rd applicant. In this regard the
respondents rely on the S upreme Court of Appeal (S CA) judgment in Land and
Agricultural Bank of South Africa v Parker and Others 22 and a judgment of this
Division, Meijer NO and Another v Firstrand Bank Ltd (formerly known as First
National Bank of Southern Africa) and Another, in re: Firstrand Bank Ltd and
Another v Meijer and Others23. The respondents are of the view that the judgments
of Desai-Chilwan NO v Ross and Another 24 and Baeck & Co SA (Pty) Ltd v Van
18 Adv P MacKenzie made submissions on locus standi and Adv G Woodland SC argued the merits.
18 Adv P MacKenzie made submissions on locus standi and Adv G Woodland SC argued the merits.
The written heads of argument bear both counsels’ names.
19 SA1
20 My reference
21 SA2
22 2005(2) SA 77 (SCA) para [11]
23 [2012] ZAWCHC 23
24 2003(2) SA 644 CPD
Zummeren and Another 25, do not assist the applicants, particularly the third
applicant.
[36] As far as the Derek Kelynack Family Trust is concer ned, the respondents
argue that the Resolution to the founding affidavit does not assist to establish locus
standi as there is no Trust Deed nor other documents attached and no evidence was
presented that the Trust was a properly constituted entity or had capacity. In addition,
it was submitted that the applicants’ reliance on Rule 7 does not assist them as the
issue is not about authority to act, but the capacity of the Trust at the time of
institution of the application. Accordingly, the respondents seek a dismissal of the
application on the grounds that the applicant Trusts have failed to establish locus
standi.
[37] Counsel for the applicants disagreed with her opponent and submitted that in
respect of the Jack Kelynack Family Trust, the Trust was quorate at the time of
instituting the proceedings . She s ubstantiates this view with reference to the
Resolution attached to the supplementary replying affidavit. In this regard, the
applicants rely on the Baeck judgment to support their viewpoint.
[38] In respect of the Derek Kelynack Family Trust, it is admitted that no Letters of
Authority nor Trust Deed are attached to the founding affidavit. In summary, the
applicants contend that the locus standi of the applicant Trusts has been established
and that all the Trustees of the various Trusts know each other . The further
submission is that the respondents should have utilized Rule 7 in circumstances
where they questioned the authority of the Trustees.
The Trusts’ locus standi: legal principles, discussion and findings
25 1982(2) WLD 112
[39] LAWSA’s description of locus standi or legal standing is that it is not merely a
procedural question but also a question of substance and that “it concerns the
sufficiency and directness of a litigant’s interest in proceedings which warrants his or
her title to prosecute the claim asserted”26. Similarly, Amler’s Pleadings27 confirms
the above definition in LAWSA and adds that locus standi also relates to the capacity
of a person to conclude a jural act.
[40] The general rule is that the party who /which institutes the proceedings must
allege and prove its locus standi 28 and furthermore, that the party’s legal standing
must appear ex facie the founding affidavit/pleading. In Trustees for the time being
of the Legacy Body Corporate v BAE Estates & Escapes (Pty) Ltd 29, the SCA
held that a lack of locus standi point should be raised pertinently in the answering
affidavit for the other party to address it.
[41] Having regard to the affidavits, it is safe to state that the respondents comply
with the BAE Estates view as they raised the lack of locus standi point clearly and
pertinently in their answering affidavit. From the above principles, it thus follows that
the applicants, as the parties instituting the application, are required to allege and
prove their locus standi on behalf of the Trusts, and that such legal standing must
appear ex facie the founding affidavit.
[42] Insofar as Trusts are concerned, the first point to make is that a Trust is not a
legal persona, but a legal institution siu generis30. The Trust assets and liabilities vest
in the Trustees who own the Trust property for the benefit of the beneficiaries . The
26 LAWSA Third Edition (4), par 70, p66
27 Tenth Edition, LTC Harms and MR Townsend, p250-251
28 Kommissaris van Binnelandse Inkomste v Van der Heever 1999(3) SA 1051 (SCA) par [10] Mars
Incorporated v Candy World (Pty) Ltd 1991(1) SA 567 (A) at p575; Four Wheel Drive Accessory
Distributors CC v Rattan No 2019(3) SA 451 (SCA) par [7]
Distributors CC v Rattan No 2019(3) SA 451 (SCA) par [7]
29 2022 (1) SA 424 (SCA) para [35]
30 Theron N.O and Another v Loubser NO and Others, In re: Theron N.O and Another v Loubser and
Others 2014(3) SA 323 (SCA) par [5].
Trustees are cited in their nomine officio capacities, as the Trusts, absent a legal
persona, cannot be a cited as a litigant in legal proceedings.
[43] On the citation of the parties, the respondents t ake issue that the citation of
the applicants is incorrect. I disagree with this view for the very reason that a Trust is
not a legal persona and hence, its Trustees bring and defend litigation on its behalf,
thus it is the Trustees who are cited on the issued process.31 Thus, I am satisfied that
ex facie the application, the Derek and Jack Kelynack Family Trusts , as 1 st to 3 rd
applicants, are correctly cited with reference to the names of Trustees in their
nomine officio capacities.
[44] At this juncture, I also stress that one should distinguish whether the
proceedings/application relate to the two Family Trusts or not. The distinction is
material because where litigation relates to the Trus t(s) and/or Trust affairs, such
proceedings should be instituted by the Trustees in their capacities as such32.
[45] To be clear, w hile relief in this matter is based upon section 163 of the
Companies Act and several orders are sought pursuant to such case, it is common
cause that the shareholding in the company is held by the various Trusts, as I set out
above in the judgment. Furthermore, the Resolutions upon which the applicants rely
indicate that the Trusts instituted the application to enforce thei r rights as
shareholders in the company, an aspect which is also not disputed . In view of these
factors, it follows therefore that the merits of the application involve the various
Trusts as shareholders of the company (to varying degrees ) and that the Tru stees
are the correct persons to litigate on behalf of the Family Trusts.
[46] Turning then to the most crucial aspect of the lack of locus standi enquiry: the
capacity of the applicant Trusts. Ordinarily the Trustees’ powers are contained in the
capacity of the applicant Trusts. Ordinarily the Trustees’ powers are contained in the
31 Honore’s South African Law of Trusts, Fifth Edition, p419; Desai-Chilwan supra, para [27]-[28]
32 Honore’s South African Law of Trusts supra, p419
relevant Trust Deed33. To illustrate the significance of a Trust Deed, I refer to Parker
(supra)34, wherein Cameron JA35 described a Trust Deed as the “trust’s constitutive
charter”. Furthermore, Trustees must act jointly unless there is authorization in the
Trust Deed which allows a Trustee to act alone36.
[47] Importantly, Cameron JA also stated that:
“[11] It follows that a provision requiring that a specified minimum
number of trustees must hold office is a capacity –defining condition. It
lays down a prerequisite that must be fulfilled before the trust estate
can be bound. When fewer trustees than the number specified are in office,
the trust suffers from an incapacity that precludes action on its
behalf.”37
[48] The principles laid down in Parker are relevant to the locus standi issue in this
matter. Where the Trust Deed requires a minimum number of Trustees in office at the
time an action or decision is taken by them on behalf of the Trust, then in
circumstances where the minimum threshold is not met, it invariably means that the
Trust would lack capacity to take such action. In respect of the Jack Kelynack Family
Trust, the significant times are the first Resolution in May 2024 and at the institution
of the application. The question thus arises whether the two Trusts met the minimum
number of Trustees’ requirements at the time it acted. This goes to the heart of the
Trusts’ legal standing to institute the application.
33 Burger NO and Others v Bester NO and Others 2024(1) BCLR 1 (CC) para [37]
34 Supra, par [10]
35 As he was
36 Parker, para [9] – [10]; see also the recent judgment of the Constitutional Court in Shepstone and
Wylie Attorneys v De Witt N.O. and Others 2026 (1) SA 349 (CC) para [58] and the distinction
between unanimous-decision Trusts and majority-decision Trusts (which is not an issue in this matter)
37 Parker, para [11]
[49] I pause to emphasise that a litigant’s locus standi must appear ex facie its
founding papers, thus in my view, the following essential averments or allegations
are necessary in respect of locus standi in relation to the Trusts:
i. that the Trustees have the necessary capacity to act on behalf of the
Trust by virtue of their appointment in terms of Lett ers of Authority, a
Court order, or, the Master’s Certificate (copies should be attached to
the founding affidavit)38; and
ii. that at the time of acting in respect of Trust matters (whether
transacting or instituting legal proceedings), the number of Trustees
in office, met the minimum threshold requirement of the Trust Deed39.
[50] Any additional allegations would be secondary or may be considered as not
determinative of the Trusts’ legal standing ex facie the founding affidavit. Counsel for
the respondents submitted that the two Trusts were not quorate at the time the
application was instituted. “Quorate” means “having a sufficient number of officers or
members present to transact business” .40 As alluded to earlier , if the number of
Trustees fell below the minimum threshold provided for in the Trust Deed at the time
of taking an action on behalf of the Trust, then the Trust would no t be quorate as,
according to Parker41, it lacked capacity for a decision to be taken on its behalf. This
lack of capacity is fatal to the question of locus standi and has nothing to do with the
lack of authority of the Trustees.
The Derek Kelynack Family Trust
[51] The Trustees of the Derek Kelynack Family Trust allege in their confirmatory
affidavits that they are the Trustees of such Trust but fail to state that they were
38 See Honore, p419
39 My view is that a copy of the Trust Deed should be attached to the founding affidavit
40 See “Quorate”, definition and meaning, https://www.merriam-webster.com
41 Supra, par [11]
properly appointed by Letters of Authority and/or Trust Deed or any other given
instrument. Secondly, and having regard to the discussion on the legal principles and
requirements related to the Trust’s capacity, it was required of such Trust to indicate
in its founding affidavit that it had locus standi to litigate against the respondents or
at least, to institute the application. However, t he founding affidavit is silent on this
averment and merely refers to the Trust’s name, identifies the Trustees and mentions
that Ms Pienaar is authorized to depose to the affidavit. Having regard to the legal
principles discussed above, I am of the view that these averments are insufficient to
establish locus standi ex facie the founding affidavit.
[52] Furthermore, the Resolution signed by Ms Kelynack N .O. and Ms Zurnamer
N.O. in May 2024 does not assist the Trust because it simply indicates that it was
resolved by these Trustees that Ms Pienaar was authorized to depose to an affidavit
and enter a fee arrangement, and that the Trust was pursuing its rights as
shareholder of the company . The Resolution is , in my view, irrelevant when
considered against the requirements set out in Parker that the Trust Deed is the
“constitutive charter” of the Trust, which indicates the required quorum for decision -
making by Trustees on behalf of the Trust.
[53] Added to this, there is also no reference in the founding affidavit to the Trust
Deed nor any other documents submitted by way of a supplementary replying
affidavit, nor any averm ents which indicate the minimum required number of
Trustees in office. Having regard to all these factors, I simply have no idea what the
required minimum was, whether the Trust was quorate in May 2024 when it was
resolved to institute the application and when the application was instituted in
November 2024 , and whether the Trustees had the necessary capacity to act on
behalf of the Trust.
behalf of the Trust.
[54] These failures a re f atal, with the result that I find that the 1st and 2nd
applicants have failed to allege and prove the locus standi of the Derek Kelynack
Family Trust in respect of the application. As a result, the point taken by the
respondents that such Trust h as failed to establish and prove its locus standi ,
succeeds with the result that the application in re lation to the 1 st and 2nd applicants
falls to be dismissed.
The Jack Kelynack Family Trust
[55] In respect of the Jack Kelynack Family Trust, the situation is slightly different.
Here, the documents ex facie the founding affidavit are a Resolution signed on 28
May 2024 by Ms Rix N .O. as sole existing Trustee, similarly resolving to authorize
Ms Pienaar to pursue the Trust’s rights as shareholder in the company . The
additional documents attached to the supplementary replying affidavit , sought to
meet the no locus standi point raised by the respondents , are: (i) a new Resolution
signed by Ms Rix, Ms Zurnamer and Ms Pienaar N .N.O on 6 August 2025 resolving
to ratify the Trust ’s participation in this matter and authorizing Ms Pienaar to
represent the Trust and sign affidavits; (ii) the Master’s certificate dated 9 September
2011 indicating the resign ation of a Trustee but that two Trustees (Ms Rix and Mr
Kelynack N.N.O) remain, and (iii) the Trust Deed signed by four Trustees on 17 June
1994.
[56] The question to answer is whether the averments in the 3rd applicant’s
affidavits plus the documentary evidence, allege and prove the Trust ’s locus standi?
There is no averment that the Jack Kelynack Family Trust was quorate at the time
Ms Rix N.O. resolved in May 2024 that proceedings should be instituted against the
respondents nor a similar a verment related to the institution of the application in
November 2024. Having regard to clause 5.3 of the Trust Deed, the requirement for
a quorum is a minimum of two Trustees at the time of performance of an action on
behalf of the Trust.42
[57] Having regard to the founding affidavit, the Trust Deed, the Resolution and
citation of Ms Rix N.O., I conclude that at the time of resolving to institute
42 See Parker supra, para [9] – [11]
proceedings in May 2024, the number of Trustees fell below two, meaning that the
Trust lacked capacit y. According to Parker, in those circumstances, any action
taken/made on behalf of the Trust was precluded. In addition, clause 5.3.1 of the
Trust Deed prescribes that where the number falls below the minimum of two
Trustees, the sole Trustee retains power to appoint an additional Trustee to increase
the number to meet the threshold. In this regard, there is no evidence that Ms Rix
N.O., who is described as the sole exi sting Trustee in the May 2024 Resolution,
acted in accordance with her duty in clause 5.3.1 . In addition, there is no evidence
that Ms Rix N.O. acted as agent on behalf of a co -Trustee and she clearly failed to
comply with clause 14.2 of the Trust Deed wh ich required t he Resolution to be
signed by all the Trustees.
[58] Thus, in respect of the action taken by Ms Rix N.O. – the Resolution to
institute the application – my finding is that the Trust Deed’s requirement in clause 5
was not fulfilled, which led to the Trust suffering an incapacity which precluded action
on its behalf. Th ese findings should be the end of the matter for the Jack Kelynack
Trust except that the supplementary replying affidavit then attempts to salvage the
situation by introducing Letters of Authority and a second Resolution, SA2, as
indicated above.
[59] The Letters of Authority, SA1, purport to authorize Ms Rix N.O., Ms Zurnamer
N.O and Ms Pienaar N.O, as Trustees and is dated 22 November 2024, about five
days prior to the launch of th is application. Ms Pienaar explains as follows in
paragraphs 3 to 5 of her supplementary replying affidavit:
‘3. Subsequent to the institution of these proceedings, Letters of Authority
were collected from the Master of the High Court in terms of which new
trustees were appointed for the Jack Kelynack Family Trust
(I[...]). The updated Letters of Authority dated 22 November
2024 are annexed marked “SA1”.
4. I annex hereto marked “SA2” a Resolution of the Trustees of the Jack
Kelynack Family Trust, ratifying the actions taken by the Third
Applicant in these proceedings to date.
5. Furthermore, for the sake of completeness I annex a copy of the Trust
Deed for this Trust marked “SA3”.’
[60] From the above, I conclude that on 22 November 2024 and by virtue of the se
Letters of Authority 43, there were three Trustees in office . The Letters of Authority
were only collected after the institution of proceedings, but nothing much turns on
this fact. The Trust relies on the second Resolution, dated two days before the
hearing and some 9 months after the institution of the application, to allege that the
three Trustees resolved to ratify the Trust’s participation in the proceedings.
[61] From the evidence presented by the 3rd applicant, and in view of my earlier
findings regarding the May 2024 Resolution and the Trust’s lack of capacity, it must
be recalled that the Trust suffered from a lack of capacity in May 2024. This brings
me to whet her the three Trustees were entitled in August 2025, to ratify the Trust’s
participation in the proceedings and thus, Ms Rix N.O.’s action in May 2024 resolving
to institute the application.
[62] In Hyde Construction v Deuchar Family Trust 44, Rogers J ( Traverso DJP
and Bozalek J concurring) had an opportunity to consider the question of ratification
in relation to the actions of a Trustee. Briefly, the issue before the Court a quo was
whether the Trust was properly before the Court. In the founding papers, Mr
Deuchar, Trustee, alleged that he and his wife were the only Trustees and they had
resolved to bring a particular application , the detail of which is not relevant in this
43 SA1
44 2015(5) SA 388 (WCC) para [31] – [42]
matter. It subsequently came to light that this was incorrect and that his children
were co-Trustees. It was alleged in a supplementary replying affidavit that by virtue
of a Resolution, all the Trustees had ratified the institution of the proceedings.
[63] The Court a quo in Hyde Construction held that the Trust was properly
before the Court, on the basis that any deficiency in authority was cured by
subsequent ratification. Rogers J distinguished between a lack of authority, as was
the case in the appeal, and a lack of capacity of the Trust, as discusse d in Parker.
Whilst a lack of authority of a Trustee may be ratified, it was held that a lack of
capacity as where the Trust Deed required a minimum number of Trustees in office ,
and where at the time of an action, that number fell below the minimum, the act
would be a nullity and not capable of ratification45.
[64] Rogers J in Hyde Construction46 makes it clear that in principle, there is no
reason why a decision taken in the Tru st’s name by (for example) two of four
Trustees should not subsequently be ratified by a full complement of Trustees. I align
myself with the learned Judge’s view and finding on ratification in the case of a
decision taken where there was a deficiency in authority.
[65] The problem for the third applicant , however, is that this matter does not
revolve around a lack of authority issue. Clause 5.3 of the Trust Deed is, to use
Cameron JA’s words in Parker47, a “capacity-defining condition” which is a
requirement before the Trust can be bound. The action taken by Ms Rix N.O. in May
2024, on behalf of the Trust, was a nullity. Thus, the reliance on Baeck & Co. SA
(Pty) Ltd v Van Zummeren and Another48 which held that the absence of authority
can be ratified, is misplaced.
45 Hyde Construction, supra, p388
46 Supra, par [32]
47 Supra, par [11]
48 1982(2) SA 112 (W) at 119 C-D – the matter dealt with ratification of an unauthorised act by a
company
[66] The Master’s certificate of September 2011 , SA3, indicates that one trustee
had resigned and two remained, one of whom was Ms Rix N .O. At the time of
institution of the application on 27 November 2024, it is anyone’s guess as to t he
total complement of Trustees in office and the fact that Letters of Authority dated 22
November 2024 indicates that there were three Trustees appointed, does not assist
the 3rd applicant because no new Resolution was taken by at least two Trustees
prior to the institution of the action in late November 2024.
[67] Where a new Resolution was taken by two or three Trustees prior to the
institution of the application, my view is that the Trust would have had the necessary
capacity and the issue of locus standi would not have arisen. However, this w as not
the case.
[68] The very late second Resolution, dated 6 August 2025, many months after the
institution of the application, which seeks to ratify the Trust’s involvement in the
application, also does not assist the 3rd applicant for the reason that the initial
action/decision/Resolution to institute the action , was a nullity due to the Trust
suffering from an incapacity which precluded an action on its behalf. In view of
Parker, Hyde Construction, Meijer N. O.49, such nullity cannot be ratified.
[69] In view of the above findings, I thus conclude that the 3rd applicant has failed
to establish and prove its locus standi, and in such circumstan ces, the application
shall be dismissed.
Remaining aspects
[70] The argument regarding Rule 7 does not take the matter further nor save the
applicants from the lack of capacity/ locus standi findings. In as much as the
49 Supra, pars [18]-[21]
applicants argued that the respondents also failed to provide copies of Trust Deeds
and letters of Authority, which may be the case, the applicants elected to institute the
application and were dominus litis and thus, any failures on the respondents’ side do
not cure the insurmountable problem of a lack of locus standi of the applicants. In
such circumstances, the application shall be dismissed and I thus do not consider
the merits of the section 163 dispute. Furthermore, it would be pur ely academic to
grant leave to admit the first supplementary replying affidavit (which deals with the
estate agent valuation) considering the finding regarding locus standi.
[71] On the issue of costs, while the respondents requested a punitive costs order,
I am not so inclined to grant an attorney and client costs order. The reason being that
it would, likely, involve a consideration and findings as to whether the applicants’
abused the process, whether a material dispute of fact exists, and the merits . As
indicated, no finding is made on the merits and related issues , and thus the usual
order will follow, and costs on scale C is warranted as the issue of lack of capacity of
the Trusts was not straightforward . The issue involved conside rable research and
consideration of additional authorities.
Order
[72] In the result, the following order is granted:
a. Condonation is granted for the applicants’ non -compliance with the order
granted on 27 January 2025.
b. Leave is granted for the admission of the supplementary replying affidavit
dated 7 August 2025. No order as to costs.
c. The application is dismissed with costs, which shall include the costs of
two counsel (scale C).
__________________________
M PANGARKER
JUDGE OF THE HIGH COURT
Appearances:
For Applicants: Adv A Janssen
Instructed by: Francois Pienaar Attorneys
t/a FDP Law
CAPE TOWN
For Respondents: Adv GW Woodland SC
Adv P MacKenzie
Instructed by: Boy Louw Incorporated
PAARL