THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 1543/2024
In the matter between:
TRISTAN HARTMANN FIRST APPELLANT
JEAN-GABRIEL HARTMANN SECOND APPELLANT
MARK KEISER HARTMANN THIRD APPELLANT
and
INGE JOANNE HACKER N O FIRST RESPONDENT
TIMOTHY JAMES HACKER N O SECOND RESPONDENT
WENDY FIONA HAY N O THIRD RESPONDENT
THE MASTER OF THE HIGH COURT:
BLOEMFONTEIN FOURTH RESPONDENT
Neutral citation: Hartmann and Others v Hacker N O and Others (1543/2024)
[2026] ZASCA 46 (8 April 2026)
Coram: UNTERHALTER and BAARTMAN JJA and KGANYAGO
AJA
Heard: 27 February 2026
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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 11h00 on 8 April 2026.
Summary: Law of Trusts – Distribution of Trust Assets – whether the
appellants established locus standi – beneficiary’s standing – mootness –
interpretation of the Trust Deed – whether a distribution event occurred – whether
the authorised trustee took a decision to extend the distribution event.
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ORDER
On appeal from: The Free State Division of the High Court, Bloemfontein
(Mgudlwa AJ sitting as court of first instance):
1 The appeal is upheld with costs, the costs to be paid from the Trust estate.
2 The order of the high court is set aside and replaced with the following:
‘(i) It is declared that the “distribution event” contemplated in clause
12.1 of the Hartmann Family Trust Deed (Reg No. TMP 679/1984)
occurred on 22 January 2022.
(ii) The costs of suit are to be paid from the Trust estate.’
JUDGMENT
Baartman JA (Unterhalter JA and Kganyago AJA concurring)
Introduction
[1] On 22 February 2024, the Bloemfontein Division of the High Court, per
Mgudlwa AJ (the high court) dismissed an application for a declarator to the
effect that a ‘distribution event’, as contemplated in clause 12.1 of the Hartmann
Family Trust (the Trust) had occurred on 22 January 2022, and consequential
relief directing the trustees to act in accordance with the declarator sought. The
high court held that the applicants lacked locus standi and dismissed the
application. Daffue J, in the absence of Mgudlwa AJ, granted leave to appeal to
this Court.
[2] The background facts are the following. I refer to the parties by their names
so as to make it easier to follow the family relationships, no disrespect is thereby
intended. In 1983, the late Mr and Ms Hartmann (the founders ‘Faith and Johan’)
established the Trust. Faith and Johan are the parents of Mark Keiser Hartmann,
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the third appellant, (Mark) and Inge Joanne Hacker, the first respondent, (Inge) .
The siblings are the Trust’s capital beneficiaries. On 21 February 2020, Mark was
removed as a trustee. The reasons for his removal are irrelevant to this judgment.
[3] Mark is the father of Tristan and Jean -Gabriel Hartmann the first and
second appellants, (Tristan and Jean -Gabriel). When the application was
launched Tristan and Jean -Gabriel were discretionary income and contingent
capital beneficiaries of the Trust. Ing e and her husband Timothy are also
beneficiaries under the Trust. At all relevant times, Inge, Timothy and Wendy
Fiona Hay, the third respondent, (Wendy) were the Trust’s trustees (the trustees).
[4] In terms of clause 12.1 of the Trust Deed, the Trust capital is to be finally
distributed to the capital beneficiaries six months after the death of the surviving,
founder unless the trustees determined a later date. 1 Faith, the last surviving
founder, died on 22 July 2021. Clause 6.1 of the Trust Deed disqualified Inge and
Timothy from taking a decision in relation to the distribution event. Only Wendy
could do so. Clause 6.1 provides that:
‘Proceedings of Trustees
6.1. Notwithstanding anything to the contrary herein contained, no power or discretion vested
in or granted to the trustees to pay any income or capital of the trust to any beneficiary who is
a trustee may be exercised unless a majority of the trustees, excluding the trustee who is a
beneficiary, vote in favour of that exercise. The same provisions shall apply in respect of
benefits to the spouse of a trustee.’
[5] On 26 September 2022, Tristan and Jean -Gabriel sought of the trustees
‘confirmation . . . when the final distribution of the trust capital per clause 12.1
of the Trust Deed would take place’. In correspondence, dated 15 November
2022, Inge replied as follows:
1 Clause 12.1 is quoted in para 15 below.
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‘. . . In accordance with clause 12.1 of the Deed of Trust, the trustees have decided that there
are good and sufficient reasons to determine a later date for the final distribution of the trust
capital. The decision to postpone the distribution date was made in the best interests of all the
beneficiaries.’
[6] Tristan, Jean-Gabriel and Mark disputed that a valid decision to extend the
distribution date had been taken. It appeared to them that Inge and Timothy had
taken part in the decision, despite being disqualified to do so by the provisions of
the Trust Deed, and further, that the decision had been taken after the six months
within which it could be taken. Despite the extensive exchange of
correspondence, the parties could not resolve their differences. Tristan, Jean -
Gabriel and Mark brought an application seeking the following order:
‘1 It is declared that the “distribution event” contemplated in clause 12.1 . . . occurred on 22
January 2022.
2. The respondents are directed forthwith to pay the Trust’s trust income and capital in
accordance with clause 12.3 of the Trust Deed.’
[7] As indicated above, the high court dismissed the application on the basis
that Tristan, Jean-Gabriel and Mark lacked locus standi and therefore it did not
pronounce on the merits. The central issues on appeal are as follows:
a. Whether Tristan, Jean-Gabriel and Mark had locus standi, and if so,
b. Whether declaratory relief should have been granted by the high court.
The merits turn on the following issue: whether a distribution event occurred on
22 January 2022 or whether a valid decision to extend the distribution event was
taken.
Standing
[8] The high court held that only Mark and Inge were beneficiaries in terms of
clause 12.3.2 of the Trust Deed. Further, that as Tristan and Jean -Gabriel were
only per stirpes ‘descendants of Mark …they can only qualify as descendants per
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stirpes in the context of the Distribution Event upon the death of [Mark] or once
[Mark] renounces his right as a beneficiary in accordance with clause 16 of the
Trust Deed.’ In respect of Mark, the high court held that he was not properly
before the court as he had not attested to a confirmatory affidavit in the founding
papers and that his attempt to remedy the defect in reply was futile.
[9] The issue of locus standi is resolved with reference to each of Tristan’s,
Jean-Gabriel’s and Mark’s status in relation to the Trust, at the institution of the
proceedings. Clause 2.4 of the Trust Deed defines beneficiary as ‘. . . any person
who may benefit under the deed’. It is common cause that Tristan and Jean -
Gabriel were discretionary income beneficiaries under the Trust and had accepted
and received benefits from the Trust. The trustees acknowledged this position,
but sought to minimise the effect of it by alleging that Tristan’s and Jean –
Gabriel’s ‘right to benefit has always been subject to the absolute discretion of
the Trustees’.
[10] In terms of clause 12.3.2, Tristan and Jean -Gabriel were also contingent
capital beneficiaries. The clause provides as follows:
‘12.3.2 the balance of the trust capital shall be paid to the descendants of JOHAN and FAITH
per stirpes but no descendant whose parent, being a descendant of JOHAN and FAITH, is alive
shall receive any payment except to the extent that that parent declines or refuses to accept
payment from the trust ’
[11] Mark was a capital beneficiary when the proceedings were instituted,
although during this litigation, he renounced his benefits as a capital beneficiary
in favour of Tristan and Jean -Gabriel who stepped into his shoes and became
capital beneficiaries as contemplated in clause 12.3.2.
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[12] In Potgieter and Another v Potgieter NO and Others (Potgieter),2 this
Court held that upon acceptance of a benefit under a Trust, the beneficiary
acquires rights under the Trust and he/she have standing to institute proceedings
relating to the administration of the trust. The high court’s finding that Tristan,
Jean-Gabriel and Mark lacked locus standi is contrary to the legal position
explained in Potgieter, where this Court clarified the position as follows:
‘I do not think it can be gainsaid that at the time of the variation agreement on 21 February
2006, the appellants enjoyed no vested rights to either the income or the capital of the trust.
They were clearly contingent beneficiaries only. But that does not render their acceptance of
these contingent benefits irrelevant. The respondents referred to no authority that supports any
proposition to that effect and I cannot think of a reason why that would be so. The import of
acceptance by the beneficiary is that it creates a right for the beneficiary pursuant to the trust
deed, while no such right existed before. The reason why, after that acceptance, the trust deed
cannot be varied without the beneficiary’s consent, is that the law seeks to protect the right thus
created for the first time. In this light, the question whether the right thus created is enforceable,
conditional or contingent should make no difference. The only relevant consideration is
whether the right is worthy of protection, and I have no doubt that it is. Hence, for example,
our law affords the contingent beneficiary the right to prot ect his or her interest against mal -
administration by the trustee.’3
[13] The trustees’ reliance on the fact that the income that accrued to Tristan
and Jean-Gabriel as income beneficiaries was subject to the Trustees’ absolute
discretion is irrelevant to their standing in these proceedings. Tristan and Jean -
Gabriel enjoyed rig hts as income beneficiaries and contingent capital
Gabriel enjoyed rig hts as income beneficiaries and contingent capital
beneficiaries. Whether the trustees chose to make distribution to them as income
beneficiaries matters not. Following Potgieter, it is their rights as beneficiaries
that secure their locus standi. I conclude that Tristan, Jean-Gabriel and Mark had
standing to institute these proceedings either individually or jointly, or in some
2 Potgieter and Another v Potgieter NO and Other [2011] ZASCA 181; 2012 (1) SA 637 (SCA) para 18.
3 Ibid para 28.
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combination, that suffices for the purposes of seeking the declaratory relief that
they have.4
Mootness
[14] In the high court, the trustees alleged that the appeal was moot. There is no
merit in this submission. There is a live dispute between the parties as to whether
a lawful decision was taken to postpone the distribution date. An authoritative
resolution of this dispute will have practical effect. Therefore, the defence of
mootness cannot be upheld.
The merits
[15] This brings me to the merits of the application. It is in issue whether a
‘distribution event’ occurred on 22 January 2022 or was postponed. Clause 12.1
provides for a ‘distribution event’ as follows:
‘THE TRUST CAPITAL
12.1. The trust capital shall be distributable 6 months after the death of the survivor of JOHAN
and FAITH (the date on which the period of 6 months expires being “the distribution event”)
– provided that if the trustees in their absolute discretion consider that there are good and
sufficient reasons for an earlier or later date being regarded as the distribution event they may
in their discretion determine an earlier date or (before the expiry of the said period of 6 month)
a later date which is not later than 50 years after the date of the death of the survivor of JOHAN
and FAITH and the date so determined shall then be deemed to be the distribution event.’
[16] The principles governing the interpretation of legal instruments and
statutes are now firmly established. 5 In Capitec Bank Holdings Ltd and Another
v Coral Lagoon Investments 194 (Pty) Ltd and Others,6 this Court cautioned that
4 Gross and Others v Pentz 1996 (4) SA 617 (A); [1996] 4 All SA 63 (A).
5 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA);
2012 (4) SA 593 (SCA) para 18; Airports Company South Africa v Big Five Duty Free (Pty) Ltd and Others
[2018] ZACC 33; 2019 (2) BCLR 165 (CC); 2019 (5) SA 1 (CC) para 29.
[2018] ZACC 33; 2019 (2) BCLR 165 (CC); 2019 (5) SA 1 (CC) para 29.
6 Capitec Bank Holdings Ltd and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others [2021] ZASCA
99; [2021] 3 All SA 647 (SCA); 2022 (1) SA 100 (SCA) para 25.
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‘. . . the triad of text, context and purpose should not be used in a mechanical
fashion. It is the relationship between the words used, the concepts expressed by
those words and the place of the contested provision within the scheme of the
agreement (or instrument) as a whole that constitutes the enterprise by recourse
to which a coherent and salient interpretation is determined’.
[17] The trustees relied on the bracket insets ‘(the date on which the period of 6
months expires being “the distribution event”)’ to contend that clause 12.1 ‘. . .
does not impose, as a material limitation on [their absolute discretion] that both
the decision to postpone the date, and the actual date be determined before the
expiry of the six -month period.’ Further that ‘there is no provision in the Trust
Deed which expressly requires the determination of a later date to be regarded as
the “Distribution Event”, to be fixed before the period of 6 months as contended
for by the appellants.’
[18] I disagree. The principles of interpretation require that the words of the
text, even those in brackets, must be given meaning. Applying the above
principles to clause 12.1, I am persuaded that a composite decision: (1) to extend
the distribution date and (2) to set a new date for distribution of the trust capital,
is envisaged. Contrary to the trustees’ contention, that decision must be taken
within six months of the death of the last surviving founder. It is instructive th at
clause 12 is introduced with the words ‘[t]he trust capital shall be distributable 6
months . . .’ (own emphasis). It is inconceivable that the founders would thereafter
introduce an open -ended discretion to be exercised up to 50 years hence. The
interpretation that within the 6 -month period, the trustees must make a decision
as to whether a shorter or a longer period will apply and, if so, to fix the
distribution date, in addition to being sensible, does no violence to the trustees’
distribution date, in addition to being sensible, does no violence to the trustees’
discretion; it only compels them to take the decision within the stipulated period.
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[19] Clause 6.1 of the Trust Deed is an example of the founders’ intention to
create certainty. The clause in unambiguous terms excludes certain trustees from
taking the decision under discussion. Only Wendy was authorised to take the
decision. That was common cause between the parties. The circumstances
surrounding the apparent decision to extend the distribution event appear from
the answering affidavit, attested to by Inge, to be as follows:
‘36.3. On 23 July 2021, the day after my mother died, the Trustees discussed the circumstances
surrounding the occurrence of the Distribution Event. At this time, the precarious financial
circumstances of the Third Applicant which had been caused by the agreements which he had
personally concluded on 27 September 2017 in favour of New Dawn Investments (Pty) Ltd
were of notable concern to the Trustees, as the extent of the Third Applicant’s liabilities which
had since arisen would unquestionably damage the degree to which he and the First and Second
Applicants would be able to benefit from the Trust upon the occurrence of the Distribution
Event.
36.4. Over and above the challenges posed by the Third Applicant’s financial position, the
structural matrix of the Trust’s capital asset base, consisting of Bex Hotel (Pty) Ltd (at that
point in Final Liquidation), John Michael (Pty) Ltd, and Mandalay Inv estments (Pty) Ltd,
would require the Trustees to take further legal and professional advice in order to determine
the most efficient and cost effective methods of distributing the Trust Capital that would be to
the best benefit of the Trust beneficiaries, and accordingly fulfil the statutory duty imposed on
the Trustees by Section 9(1) of the Trust Act.
36.5. As such, and in accordance with Clause 6.1 and Clause 12.1 of the Trust Deed, the
decision of the Third Respondent was to postpone the occurrence of the Distribution Event.
This decision of the Third Respondent was later ratified in accordance with C lause 6.4 of the
This decision of the Third Respondent was later ratified in accordance with C lause 6.4 of the
Trust Deed on 31 October 2022.’
[20] Wendy filed a formulaic confirmatory affidavit. More was needed. This is
so as she was the only trustee authorised to take the decision. It is unclear when
she took the decision, assuming she did. Clause 6.2 read with clauses 6.3.1, 6.3.3
and 6.4, provides that the trustees may make decisions for the Trust either at a
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meeting of trustees duly called at which decision-making is by majority vote, or
by taking a decision by resolution in writing signed by all the trustees.
[21] The 23 July 2021 meeting does not meet any of these requirements. It is of
no assistance that Inge alleges that Wendy took the decision in accordance with
clauses 6.1 and 12.1. The decision-making authority was time-bound. Wendy had
to indicate when and in what circumstances she took the decision. She did not;
there is therefore no evidence that a valid decision was taken to postpone the
distribution event.
[22] In the exchange of correspondence preceding litigation, the trustees
annexed a list of trustees’ decisions taken from which it appeared that the trustees
had on 31 October 2022: ‘. . . resolved to ratify [their] decision taken on 23 July
2021 to postpone for the time being the final distribution date of the HFT’. In
addition, in correspondence dated 2 June 2023, Inge indicated that ‘[t]he trustees
had resolved that the distribution of the trust capital will take place on 29 February
2024’. The explanation given in the answering affidavit that Wendy took the
decision to postpone the final distribution date is also at odds with the 31 October
2022 decision, which indicates that the trustees had taken a decision on 23 July
2021 to postpone the final distribution date.
[23] As indicated above, a composite decision is envisaged in the Trust Deed.
Consequently, only Wendy could decide to postpone the distribution event and
only she could determine a new date. Absent evidence that Wendy took a decision
to postpone the distribution and fixed a date within the prescribed six months, the
decision envisaged in clause 12.1, no decision to extend the distribution event
took place in terms of the Trust. Inge’s version of events suggests that she and
Timothy were involved in the decision to set a date for the distribution event. If
they did, that would have been irregular, as neither was authorised to take that
decision.
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[24] At the hearing, the trustees wisely abandoned reliance on ratification.
Therefore, Inge and Timothy’s possible involvement does not arise, and it is
unnecessary to deal with ratification. However, I observe that a principal can only
ratify an act of his or her agent within the time that the act can lawfully be
performed. Wendy’s decision could therefore not have been ratified after the
prescribed six-month period as the answering affidavit suggests. In addition, Inge
and Thimothy had no authority to take the decision, and so had no power to ratify
it.
[25] It follows that in the absence of a valid decision by Wendy to extend the
final distribution event to a specified date, no decision to extend was taken.
Therefore, the distribution event occurred on 22 January 2022.
[26] As indicated above, Tristan, Jean -Gabriel and Mark sought declaratory
relief. In terms of s 21(1) (c) of the Superior Courts Act, 10 of 2013, high courts
have jurisdiction to grant declaratory relief. The section provides as follows:
‘(1) A Division has jurisdiction over all persons residing or being in, and in relation to all causes
arising and all offences triable within, its area of jurisdiction and all other matters of which it
may according to law take cognisance, and has the power –
. . .
(c) in its discretion, and at the instance of any interested person, to enquire into and determine
any existing, future or contingent right or obligation, notwithstanding, that such person cannot
claim any relief consequential upon the determination.’
[27] To succeed, an applicant must satisfy two requirements: (a) the applicant
has an interest in an existing, future or contingent right; (b) once a court is so
satisfied, it must consider whether to grant the relief. In the exercise of the court’s
discretion, it is permissible to consider whether other remedies are available to
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the applicant. However, the availability of other remedies is not a bar to granting
declaratory relief.7
[28] In the circumstances of this matter, it is obvious that Tristan and Jean -
Gabriel have an interest in the relief sought. Whether Mark renounced his rights
under the Trust in favour of Tristan and Jean-Gabriel before or after the initiation
of proceedings makes no difference. It is plain that the appellants, whether
individually or jointly have a clear interest in securing an authoritative ruling as
to whether and when the distribution event took place. As a result, I am persuaded
that these are appropriate circumstances in which to grant the declarator sought.
[29] Tristan, Jean-Gabriel and Mark sought costs against the trustees in their
personal capacity. In the absence of mala fides, trustees should not readily be
saddled with costs orders. In the circumstances of this matter, there is no
suggestion that the trustees acted mala fide. Although they were mistaken in their
interpretation of the Trust Deed, their opposition to the relief sought was not mala
fide. Accordingly, although the costs must follow the result of this appeal, those
costs should be paid from the Trust estate.
[30] I, for the reasons stated above, make the following order:
1 The appeal is upheld with costs, the costs to be paid from the Trust estate.
2 The order of the high court is set aside and replaced with the following:
‘(i) It is declared that the “distribution event” contemplated in clause
12.1 of the Hartmann Family Trust Deed (Reg No. TMP 679/1984)
occurred on 22 January 2022.
(ii) The costs of suit are to be paid from the Trust estate.’
7 Trinity Asset Management (Pty) Ltd and Others v Investec Bank Ltd and Others [2008] ZASCA 158; 2009 (4)
SA 89 (SCA); [2009] 2 All SA 449 (SCA).
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E BAARTMAN
JUDGE OF APPEAL
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Appearances:
For appellants: D Watson
Instructed by: Keith Sutcliffe and Associates Inc, Johannesburg
MM Hattingh Attorneys Inc, Bloemfontein
For respondents: J J Nepgen SC with A White
Instructed by: Kaplan Blumberg Attorneys, Gqeberha
Honey Attorneys, Bloemfontein.