THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 489/2025
In the matter between:
STEPHEN MALCOLM GORE APPELLANT
and
ABDURUMAN MOOLLAJIE N O FIRST RESPONDENT
EILEEN MARGARET FEY N O SECOND RESPONDENT
ABDURUMAN MOOLLAJIE THIRD RESPONDENT
EILEEN MARGARET FEY FOURTH RESPONDENT
STEPHEN MALCOLM GORE N O FIFTH RESPONDENT
THE MASTER OF THE HIGH COURT,
WESTERN CAPE DIVISION, CAPE TOWN SIXTH RESPONDENT
Neutral citation: Gore v Moollajie NO and Others (489/2025) [2026] ZASCA 82 (1
June 2026)
Coram: MAKGOKA and MATOJANE JJA, and SERITI, STEYN and MOLITSOANE
AJJA
Heard: 14 May 2026
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, published on the Supreme Court of Appeal website,
and released to SAFLII. The date and time for hand-down are deemed to be 11h00 on
1 June 2026.
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Summary: Insolvency – s 63(1) of the Insolvency Act 24 of 1936 – remuneration of
trustees – joint provisional trustees subsequently appointed as final trustees together
with an additional final trustee who was not a provisional trustee – whether the
additional final trustee is entitled to share in remuneration earned for services rendered
before his appointment. Review of Master’s decision under s 151 of the Act.
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ORDER
On appeal from: Western Cape Division of the High Court (Allie J sitting as court of
first instance):
The appeal is dismissed with costs, including the costs of two counsel .
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JUDGMENT
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Matojane JA (Makgoka JA and Seriti, Steyn and Molitsoane AJJA concurring):
Introduction
[1] This appeal raises a narrow but practically significant question in the law of
insolvency: whether a final trustee of an insolvent estate, who was not a provisional
trustee, is entitled to share equally in the remuneration earned by the provisional
trustees for work done before their appointment. The Master of the High Court, Cape
Town, ruled that the trustees’ remuneration must be reflected in the liquidation and
distribution account (the L&D account) as a single composite amount, without
distinguishing be tween work done during the provisional and final stages of
administration. On review, the Western Cape Division of the High Court (the High
Court) set aside that ruling. It held that the appellant , Mr Gore , was not entitled to
share in the remuneration earned by Mr Abduruman Moollajie and Ms Eileen Margaret
Fey, respectively the first and second respondents, during the period when they alone
administered the estate as provisional trustees. The appeal is with the leave of the
High Court. The Master did not oppose the appeal.
[2] The appeal turns on the one hand, a proper construction of s 63(1) of the
Insolvency Act 24 of 1936 (the Act), read with Tariff B in the Second Schedule to th e
Act, and on the other, the scope of the principle in Cooper v The Master of the
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Supreme Court 1 that, in the absence of agreement, co -trustees share their
remuneration equally.
Factual background
[3] The salient facts are largely common cause. On 14 December 2016, the estate
of Mr Mohamed Ismail Patel (the insolvent) was provisionally sequestrated, and on 18
April 2017, it was finally sequestrated. Mr Moollajie and Ms Fey were appointed as
the joint provisional trustees on 22 December 2016. They were joined in the High Court
in the ir individual capacities; hence, they were cited as the third and fourth
respondents, respectively.
[4] The estate proved to be complex. The insolvent had absconded, having left the
country, and his family were uncooperative. Substantial work was required to trace
and recover assets, to hold enquiries, and to institute and defend litigation. By the end
of November 2017, Mr Moollajie and Ms Fey had substantially completed the winding-
up. On 30 November 2017, they lodged a first L&D account, and on 4 December 2017,
they requested a special fee from the Master under the proviso to s 63(1) of the Act.
[5] Certain creditors objected to the lodging of the L&D account on the ground that
only the final trustees may lodge such an account. The Master upheld th e objection,
and a subsequent review of the decision failed in the High Court. The administration
of the estate thereafter went into hiatus while disputes about the appointment of a final
trustee were resolved. A creditor, Mr Glaum, was elected by the majority in value to
be the final trustee, but proved to be disqualified, as he was himself a debtor of the
estate. After further proceedings, Mr Glaum’s firm nominated the appellant, Mr
Stephen Malcolm Gore (Mr Gore), in his place. On 19 October 2021, almost four years
after the work giving rise to the application for a special fee had been completed , the
Master appointed Mr Moollajie, Ms Fey and Mr Gore as joint final trustees. Like Mr
Moollajie and Ms Fey, Mr Gore was joined in his personal capacity, hence his citation
Moollajie and Ms Fey, Mr Gore was joined in his personal capacity, hence his citation
as the fifth respondent.
[6] A dispute promptly arose. Mr Moollajie and Ms Fey contended that they alone
were entitled to the tariff remuneration and special fee for the work performed by them
1 Cooper v The Master of the Supreme Court [1998] 1 All SA 158 (Cooper).
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as provisional trustees, since Mr Gore had played no part in that work and had not
held office at the time. Mr Gore took the contrary view that, once appointed as a joint
final trustee, he was entitled to a one -third share in all the remuneration generated in
the estate, including remuneration for work performed before his appointment.
[7] The dispute was referred to the Master under s 56(5) of the Act. On 13 June
2022, the Master held that no distinction could be drawn ‘between the services
conducted by the provisional trustees and the final trustees, at least when it comes to
reflecting the trustees’ remuneration in a liquidation account ’. The Master added that
the apportionment of trustees’ fees inter se was not a matter relating to the estate
within the meaning of s 56(5) of the Act. In reaching that conclusion, the Master relied
on Cooper. On 9 November 2022, the Master allowed a special fee of R600 000.00, a
substantial reduction from the R1.5 million applied for and stated that she was
awarding ‘the trustees an increase in remuneration of R600 000 accordingly’.
[8] The trustees could not agree on how the remuneration was to be reflected in
the L&D account. Mr Moollajie and Ms Fey drafted an account reflecting separate
amounts for the provisional and final periods; Mr Gore objected and insisted upon a
single, undifferentiated trustees’ fee. On 31 March 2024 , Mr Moollajie and Ms Fey
referred the matter to the Master again and on 17 April 2024, the Master ruled that the
trustees were ‘once again’ to amend the draft L&D account to reflect their total fee as
a single amount, without distinguishing between the special fee and the tariff fee. This
is the decision which Mr Moollajie and Ms Fey took on review.
[9] On 25 February 2025, the High Court set aside the Master’s decision. The court
declared that a trust ee of an insolvent estate, whether provisional or final, may only
claim or receive remuneration earned during the term of their appointment . It
claim or receive remuneration earned during the term of their appointment . It
accordingly remitted the matter to the Master to apply Tariff B separately to the periods
during which two provisional trustees administered the estate, and three final trustees
administered the estate, respectively.2
Issues for determination
2 Moollajie N O and Another v The Master of the High Court Western Cape Division, Cape Town and
Another [2025] ZAWCHC.
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[10] Three issues fall for determination, which I consider in turn, are whether:
(a) On the proper interpretation of s 63(1) of the Act read with Tariff B, a final trustee
is entitled to share in remuneration earned in respect of services rendered before he
was appointed;
(b) The principle in Cooper that, absent agreement, co -trustees shar e their
remuneration equally applies where the contending co -trustees were not jointly
appointed throughout the period to which the remuneration relates; and
(c) The Master’s decision of 17 April 2024 was reviewable on the grounds set out
in PAJA and the test in Nel and Another NNO v The Master (Absa Bank Ltd and Others
Intervening) (Nel).3
Whether a final trustee is entitled to share in remuneration earned in respect of
services rendered before being appointed
[11] Section 63(1) of the Act provides:
‘Every trustee … shall be entitled to a reasonable remuneration for his services, to be taxed
by the Master according to tariff B in the Second Schedule to this Act: Provided that the Master
may, for good cause, reduce or increase his remuneration, or may disallow his remuneration
either wholly or in part on account of any failure of or delay in the discharge of his duties or on
account of any improper performance of his duties.’
[12] The word ‘trustee’ includes a provisional trustee. 4 Tariff B sets out the
percentages at which the trustee’s remuneration is to be calculated upon various
categories of realisations, and concludes with a separate provision for the
remuneration of a provisional trustee, which is to be ‘a reasonable remuneration to be
determined by the Master, not to exceed the rate of remuneration of a trustee under
this tariff’.5
[13] Two textual features of these provisions are important. First, the right to
remuneration is conferred upon ‘every trustee’ for ‘his services ’. The remuneration is
3 Nel and Another NNO v The Master (Absa Bank Ltd and Others Intervening) [2004] ZASCA 26; 2005
(1) SA 276 (SCA) (Nel).
(1) SA 276 (SCA) (Nel).
4 Section 2 of the Act.
5 Final line of Tariff B in the Second Schedule to the Act.
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the trustee’s personal entitlement, earned by reference to the services rendered in his
capacity as trustee. Second, Tariff B itself distinguishes the remuneration of a trustee
and that of a provisional trustee. The latter is determi ned separately by the Master,
subject only to the ceiling that it must not exceed the trustee’s tariff.
[14] Section 56(4) of the Act requires joint trustees to act in concert; and s 56(5) of
the Act empowers the Master, where co -trustees disagree on ‘any matter relating to
the estate of which they are trustees’, to determine the disagreement. Section 151 of
the Act confers upon ‘any person aggrieved by any decision, ruling, order or taxation
of the Master’ the right to bring it under review by the court.
Proper construction of s 63(1) and Tariff B
[15] The starting point is the plain language of s 63(1). A trustee is entitled to
remuneration for his services. The provision presupposes both an appointment qua
trustee at the time the work was done and the trustee's rendering of services. The
Master’s function in taxing remuneration is, in the ordinary case, to ensure that the
correct tariff percentages have been applied to the various realisations: see Cooper.6
But the antecedent question , whose remuneration is being taxed , is governed by s
63(1), which requires that the trustee must have rendered services. A trustee who was
not appointed when the work was done cannot have rendered services in respect of
that work.
[16] Mr Gore contended that the tariff operates as a form of commission, accruing
automatically upon realisations and falling to be shared among whoever happens to
hold office as final trustee when the L&D account is confirmed . I disagree, as this
construction is inconsistent with the provision's text. The tariff is the measure of
remuneration, not its source. The source remains s 63(1), which ties remuneration to
services rendered. As this Court observed in Nel, the overarching consideration is that
services rendered. As this Court observed in Nel, the overarching consideration is that
the trustee must receive ‘reasonable remuneration for his services’.7
[17] Tariff B confirms this conclusion. By providing separately for the remuneration
of a provisional trustee, it acknowledges that a provisional trustee’s entitlement to
6Cooper above fn 1 at 3.
7 Nel above fn 2 para 20.
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remuneration is a discrete one, arising from the services r endered by him in that
capacity. On behalf of Mr Gore, reliance was placed on Meskin’s opinion that, where
the provisional trustee subsequently becomes the final trustee, his entitlement as
provisional trustee ‘becomes absorbed in his entitlement to remuneration as trustee’.8
That submission proceeds on the unstated but obvious assumption that the same
person holds both offices. Absorption is a matter of accounting convenience: there is
no need for two taxations when the entitlement vests in the same person. The doctrine
has no application where, as here, the provisional trustees and one of the final trustees
are different people.
[18] Mr Gore’s argument, taken to its logical conclusion, would entitle a person
appointed for the first time as a final trustee on the eve of confirmation of the L&D
account to a one-third share of all remuneration generated by the provisional trustees.
That cannot be reconciled with s 63(1)’s express linkage of remuneration to services.
The contrary construction would create the very mischief of which Mr Moollajie and
Ms Fey warned: an incentive for the late appointment of additional trustees not for the
proper administration of the estate but for the enrichment of the late appointee.
The scope of the principle in Cooper
[19] Mr Gore placed considerable reliance on Cooper, in which it was held that, in
the absence of agreement, co -trustees share their remuneration equally. 9 It was
further held that the apportionment of trustees’ remuneration inter se was not a matter
relating to the estate, with the consequence that it fell outside the Master’s power of
determination under s 56(5).10
[20] Two features of Cooper must, however, be kept in mind. First, the trustees in
that case had been jointly appointed from inception, and the disput e concerned only
how their joint remuneration was to be divided between them. Second, the court’s
how their joint remuneration was to be divided between them. Second, the court’s
reasoning rested explicitly on a contractual analysis: the obligation to share equally
was a natural consequence of the relationship between persons who had jointly
accepted office. Sharrock states the position in the same terms:
8 P M Meskin Insolvency Law and its Operation in Winding -up (loose-leaf, issue 59, 2023) para 4.21
at 4-30 (Meskin).
9 Cooper above fn 1.
10 Cooper above fn 1.
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‘In the absence of actual consensus, express or tacit, to the contrary, joint trustees are obliged
to divide the remuneration between them equally, irrespective of the nature and extent of the
services rendered by each’.11
[21] Neither feature is present here. Mr Gore was not a party to the joint appointment
between Mr Moollajie and Ms Fey during the period December 2016 to October 2021.
As such, he could not have been a party to any agreement, express or tacit, regarding
the sharing of remuneration for that period because he was not yet a trustee. The
implied naturale upon which the equal-division rule rests cannot operate to bind a non-
party retrospectively. The default rule in Cooper is thus inapplicable to remuneration
earned before Mr Gore’s appointment.
[22] The holding in Cooper that the Master cannot apportion remuneration inter se
is similarly confined to the situation it addressed. Where the contention is not about
apportionment between joint trustees who served together, but about whether a
person is entitled to share in remuneration at all, the question is anterior to
apportionment. It concerns the entitlement under s 63(1), and that is a matter relating
to the estate within the meaning of s 56(5): the L&D account by which the estate is
wound up must reflect the trustees’ remuneration accurately, and the resolution of
competing claims as to those entitlements is plainly connected with the administration
of the estate.
[23] It follows that Cooper is distinguishable on its facts and on its principle. The
High Court was correct to hold so.
Whether the Master’s decision was reviewable
[24] The review proceeded under s 151 of the Act, rea d with the Promotion of
Administrative Justice Act 3 of 2000 (PAJA). In Nel, this Court held that a court will not
lightly interfere with the Master’s exercise of the discretion conferred by s 63(1) of the
Act; it will do so only where the decision is ‘wrong’ or ‘clearly wrong’.12 That standard
Act; it will do so only where the decision is ‘wrong’ or ‘clearly wrong’.12 That standard
reflects the Master’s institutional expertise in the administration of insolvent estates
and the discretionary nature of the proviso to s 63(1) of the Act.
11 A Smith, K van der Linde and J Calitz Hockly’s Law of Insolvency Winding -Up & Business Rescue
10th ed (2022) para 10.7 at 156.
12Nel above fn 2.
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[25] On the construction set out above, the Master’s dec ision proceeded on a
material error of law. The Master applied Cooper to a situation to which it does not
extend and, in doing so, failed to give effect to the requirement in s 63(1) of the Act
that remuneration must be for services rendered. That is an er ror of the kind
contemplated by s 6(2)(d) of PAJA and rendered the decision reviewable.
[26] Mr Gore contended that the Master had only ever made one substantive
decision, namely, the decision of 13 June 2022, and that the impugned decision was
no more than a reaffirmation of the first. Since the 13 June 2022 decision was never
taken on review, so the argument ran, the standing position must be that the trustees’
remuneration is a single composite fee. This argument cannot be sustain ed. The
Master herself acknowledged on 17 April 2024 that she was being called upon to
provide directions in respect of an ongoing dispute and did so. That ruling was a fresh
exercise of power under s 56(5) and was susceptible to review on its own terms. I n
any event, even if the 13 June 2022 decision were treated as the operative ruling, it
was open to challenge on the same grounds: it embodied the same error of law.
[27] Mr Gore further contended that the High Court’s order obliging the Master to
apply Tariff B separately to the two periods would impose an ‘untenable hardship’ on
the Master of the kind warned against in Cooper. The objection is overstated. Tariff B
operates by reference to specific realisations and amounts collected. The date upon
which each realisation occurred is a matter of record. To allocate realisations to the
period preceding 19 October 2021 and the period following that date is no more
demanding than the exercise already required of the Master in every estate in which
a provisional trustee does not become a final trustee. The High Court held that the
Master is not called upon to undertake any qualitative assessment of ‘which work is
Master is not called upon to undertake any qualitative assessment of ‘which work is
worth what’; the Master is called upon to apply the tariff to the realisations attributable
to each period. The High Court so held, and that conclusion is unimpeachable.
[28] As to the special fee of R600 000, the High Court correctly found that the
Master’s ruling of 9 November 2022 must be read in the context in which it was made.
The application for the special fee was made on 4 December 2017 by Mr Moollajie
and Ms Fey alone, in respect of work performed by them during the period 22
December 2016 to 30 November 2017. Mr Gore was not yet a truste e and could not
have been a party to that application. The Master’s reference to ‘awarding the trustees
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an increase in remuneration of R600 000’ must, when read with the rest of the ruling
and the application to which it responded, be understood as referring to the applicants
for the special fee, namely, Mr Moollajie and Ms Fey. The reasons given by the Master,
the complexity of the estate, the recalcitrance of the insolvent and his family, and ‘the
amount of time spent in exercising their duties’ over a pe riod of six years , are
exclusively referable to work done by Mr Moollajie and Ms Fey, much of it during their
tenure as provisional trustees alone.
[29] Finally, it must be observed that this Court’s decision in Nel does not assist Mr
Gore. Nel concerned t he conditions under which the Master may exercise the
discretion under the proviso to s 63(1) of the Act to increase or reduce remuneration.
It did not concern the apportionment of remuneration between trustees and, a fortiori,
did not address a trustee 's entitlement to share in remuneration earned before his
appointment. The general statement in Nel that the Master’s function in taxing
remuneration deals with which assets were sold, not when they were sold, was made
in the context of a dispute about the qu antum of remuneration in a single -trustee
insolvency. It cannot be transposed, without qualification, to a context in which
different trustees held office at different times.
Conclusion
[30] The High Court correctly held that Mr Gore is not entitled to sha re in the
remuneration earned for services rendered before his appointment as a final trustee.
An error of law vitiated the Master’s decision of 17 April 2024 and was rightly set aside.
The remittal of the matter to the Master for the application of Tariff B separately to the
two periods of administration involves no untenable burden. It gives proper effect to s
63(1) of the Act.
[31] Costs must follow the result. The matter was complex and raised a question of
some general importance for the administration of insolvent estates. The employment
some general importance for the administration of insolvent estates. The employment
of two counsel was justified.
Order
[32] The following order is made:
The appeal is dismissed with costs, including the costs of two counsel.
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KE MATOJANE
JUDGE OF APPEAL
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Appearances:
For the appellant: G W Woodland SC (with him C Morgan)
Instructed by: Edward Nathan Sonnenbergs Inc., Cape
Town
MM Hattingh Attorneys, Bloemfontein
For the first to fourth respondents: R van Riet SC
Instructed by: De Waal Grobbelaar Fischer Inc., Bellville
McIntyre van der Post, Bloemfontein.