REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 2023-079315
In the matter between:
JOAN CYNTHIA GRIESSEL FIRST PLAINTIFF
HAROLD LEE DE KOCK SECOND PLAINTIFF
and
DE VILLEBOIS ETTIENNE DE KOCK N.O. FIRST DEFENDANT
SHIRLEY ANN VAN WYK N.O. SECOND DEFENDANT
CELESTE MARI DOVEY N.O. THIRD DEFENDANT
FREDERIK FRANS VAN NIEKERK N.O. FOURTH DEFENDANT
JOHANNES JURGENS POTGIETER N.O. FIFTH DEFENDANT
DE VILLEBOIS ETTIENNE DE KOCK SIXTH DEFENDANT
SHIRLEY ANN VAN WYK SEVENTH DEFENDANT
CELESTE MARI DOVEY EIGHTH DEFENDANT
MASTER OF THE HIGH COURT, PRETORIA NINTH DEFENDANT
MANYELETI (PTY) LTD TENTH DEFENDANT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 1 June 2026 E van der Schyff
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Delivered: This judgment is handed down electronically by uploading it to the electronic file
of this matter on CaseLines. In the event that there is a discrepancy between the date the
judgment is signed and the date it is uploaded to CaseLines, the date t he judgment is
uploaded to CaseLines is deemed to be the date that the judgment is handed down.
JUDGMENT
VAN DER SCHYFF J
Introduction
[1] This matter concerns a protracted family dispute relating to the administration of the
Arathusa Family Trust(“the Trust”) and the affairs of its wholly -owned operating company,
Manyeleti (Pty) Ltd (“Manyeleti”). Manyeleti is the owner of the farm Arathusa. The plaintiffs
seek, inter alia , the removal of the current trustees , the reinstatement of monthly
maintenance payments to the first plaintiff, Ms. Griessel, and ancillary relief.
[2] Although the issues requiring determination arise in the context of trust
administration, corporate governance , and the parties' respective rights and obligations,
the litigation is, at its core, a family dispute of considerable depth. The evidence reveals
how disagreements over the management of trust assets and the administration of
structures established for the benefit of family members have escalated into protracted,
bitter litigation. It is a matter of genuine regret that persons who have demonstrated the
ability to discharge significant professional, commercial , and societal responsibilities have
been unable to resolve their differences outside the courtroom. While this court is required
to determine the legal issues presented to it, no judgment can restore the trust, goodwill ,
and familial harmony that appear to have been lost in the process. That is perhaps the most
unfortunate feature of this case.
The claims
[3] In claim 1, the first plaintiff, Ms. Griessel , seeks an order against the Trust,
alternatively Manyeleti, for the payment of a monthly amount of R36 981.75.
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[4] In claim 2, Ms. Griessel seeks an order against the Trust, alternatively Manyeleti, for
the payment of R1 627 197.00, representing the amount she would have received but for
the termination of payments.
[5] In claim 3, the plaintiffs seek an order for the removal of the present trustees of the
Trust, namely Mr. Ettienne de Kock, Mrs. Shirley van Wyk, and Mrs. Celeste Dovey.
Common cause facts
[6] Much of the factual background was common cause or not seriously disputed. The
Trust was established by the first plaintiff, Ms. Joan Griessel, and the seventh defendant,
Mrs. Shirley van Wyk, in 1999. The Trust subsequently acquired the sisters’ shares in
Manyeleti, which became its principal asset. The Trust is the sole shareholder of Manyeleti.
Manyeleti owns the farm, Arathusa.
[7] Ms. Griessel and Mrs. Van Wyk are sisters. The second plaintiff, Mr. Harold de Kock,
is Mrs. Van Wyk’s eldest son and Ms. Griessel’s nephew. The sixth and eighth defendants,
Mr. Ettiene de Kock and Ms. Celeste Dovey, are Mr. Harold de Kock’s siblings. Mrs. Van
Wyk, Mr. Et tienne de Ko ck and Ms. Dovey currently serve as trustees of the Trust and
directors of Manyeleti.
[8] It is common cause that Ms. Griessel received monthly payments from Manye leti
from approximately 2016 to July 2022. Those payments ceased in July 2022 and were not
resumed. When the decision was taken to make the monthly payments to Ms. Griessel, the
trustees of the Trust were simultaneously directors of Manyeleti. The decision to cease
making payments was made by Mrs. Van Wyk.
[9] It is also common cause that litigation between Mr. Harold De Kock , the Trust ,
Manyeleti and related parties has persisted for many years. The litigation concerned, inter
alia, amendments to the Trust Deed, Mr. De Kock’s position as a beneficiary, and disputes
concerning access to Arathusa. The significance and legal consequences of that litigation
remain disputed.
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Issues arising from the pleadings
[10] The issues requiring determination must be identified from the pleadings before
regard is had to the evidence. Although the evidence traversed a lengthy history of family
disputes and litigation, the court's task is ultimately to determine the disputes raised on the
pleadings as amplified by the evidence properly admitted at trial.
[11] The first plaintiff's case is founded upon the allegation that one of the principal
objects of the Trust was to provide for her security, maintenance, and welfare. She pleads
that, following her resignation and removal as a director of Manyeleti and as a trustee of
the Trust, it was agreed that she would receive maintenance payments. Although those
payments were recorded in Manyeleti's records as consultancy fees, she alleges that they
were, in fact, maintenance payments made on behalf of the Trust. She further alleges that
the trustees unlawfully ceased those payments in July 2022 and thereafter failed to properly
consider requests for financial assistance.
[12] The defendants deny that the payments constituted maintenance payments or that
the first plaintiff acquired any vested entitlement thereto. While admitting that payments
were made by Manyeleti and recorded as consultancy fees in the company's financial
statements, they deny that the payments were made by the Trust as maintenance and deny
any obligation to continue making such payments.
[13] The second plaintiff's case is that the trustees failed to administer the Trust
impartially and in the interests of all beneficiaries. He relies on a series of events extending
over many years, including his removal as a beneficiary, the litigation which resulted in his
reinstatement, disputes concerning access to Arathusa, the alleged withholding of
information concerning the Trust and conduct which, according to him, demonstrates
ongoing discrimination between beneficiaries.
ongoing discrimination between beneficiaries.
[14] The defendants deny that they acted unlawfully, discriminatorily or in breach of their
fiduciary obligations. They admit certain aspects of the historical litigation but deny that the
conduct complained of justifies the relief sought. They further contend that earlier
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proceedings concerning the removal of trustees give rise to principles of res judicata and/or
issue estoppel.
[15] The plaintiffs ultimately contend that the cumulative conduct of the sixth, seventh
and eighth defendants demonstrates breaches of fiduciary duty, unequal treatment of
beneficiaries, and conduct detrimental to the welfare of the Trust and its beneficiaries ,
thereby justifying their removal as trustees.
[16] Against this background, the principal questions requiring determination are:
(a) Whether the payments made to the first plaintiff, Ms. Griessel, between 2016
and July 2022 were in substance, maintenance payments or consultancy
remuneration;
(b) whether the first plaintiff acquired any enforceable right to the continuation of
those payments;
(c) whether the trustees properly considered and exercised their discretion in
relation to requests made for financial assistance after July 2022;
(d) to what extent the historical events relied upon by the second plaintiff may
properly be considered in light of the defendants' pleas of res judicata and
issue estoppel;
(e) whether the conduct of the trustees towards the plaintiffs, viewed individually
or cumulatively, constituted a breach of their fiduciary obligations and duties
towards the beneficiaries of the Trust; and
(f) whether grounds have been established for the removal of the sixth, seventh
and eighth defendants as trustees.
[17] The evidence must therefore be evaluated against those pleaded issues and not
against the broader family grievances that have accumulated over many years.
Summary of the evidence
[18] The evidence was principally concerned with three related themes: the true nature
of the payments to Ms. Griessel; the trustees’ response after those payments ceased; and
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the treatment of Mr . Harold De Kock as a beneficiary. The witnesses were Mr . Harold de
Kock, Ms. Griessel, and Mrs. Van Wyk.
[19] Mr. Harold De Kock testified that the Trust and Manyeleti had, over many years,
been administered in a manner that excluded him and Ms . Griessel from meaningful
participation and benefit. He relied on the history of litigation concerning his removal as a
beneficiary, his subsequent reinstatement, and disputes about access to Arathusa. His
evidence was that, when these events are viewed together, they reveal a pattern of unequal
treatment.
[20] Mr. Harold De Kock further testified that the payments made to Ms . Griessel were
intended to provide financial support. After they ceased, he advanced substantial amounts
to or on behalf of Ms. Griessel. He also contended that the Trust and Manyeleti possessed
the practical ability to make funds available to her if the trustees and directors resolved to
do so.
[21] Ms. Griessel testified that she is elderly, financially dependent , and no longer
involved in the affairs of either the Trust or Manyeleti. Even when she was a trustee and
director, she trusted Mrs. Van Wyk to manage the affairs of the structures and played little
practical role in their administration.
[22] Ms. Griessel accepted that her memory of historical events was limited. She was,
however, clear about her understanding of the payments she received. She testified that
they were not remuneration for defined services and that no duties or responsibilities were
explained to her. She regarded the payments as financial support after she had exhausted
her personal resources.
[23] Ms. Griessel also explained the role she had played at Arathusa, particularly in
relation to the gardens. Her evidence did not establish a conventional employment
relationship. Rather, it showed that she had contributed to Arathusa because of her
affection for the property and the family enterprise.
affection for the property and the family enterprise.
[24] Mrs. Van Wyk’s evidence was directed principally at the historical development of
the Trust and Manyeleti, the financial structure of both entities, and the circumstances in
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which payments were made to Ms . Griessel. She denied that the payments were Trust
maintenance payments. She maintained that they were made by Manyeleti and were
reflected in its records as consultancy remuneration. Mrs. Van Wyk nevertheless accepted
that the arrangement arose against the background of Ms. Griessel's deteriorating financial
position and that steps were taken to generate an income for her.
[25] Mrs. Van Wyk also denied that the trustees acted from malice or partiality. She
emphasised the financial and administrative responsibilities that had over many years fallen
mainly on her shoulders. Her evidence was that she carried the practical burden of
managing the family structures while others, including Ms . Griessel, benefited from
arrangements she administered.
[26] Mrs. Van Wyk accepted, however, that the payments to Ms . Griessel ceased after
the Kaizer incident and that requests for assistance were made thereafter. She also
accepted that the requests were ignored and that no positive relief was provided in
response to them. Her explanation was that the Trust had no independent income and that
any financial benefit depended on decisions concerning dividends, loan accounts, and the
affairs of Manyeleti.
Analyses of the evidence
The payments made to Ms. Griessel
[27] The parties agree that payments were made to Ms. Griessel for about six years and
that they ceased in July 2022. They disagree as to their true character.
[28] The plaintiffs' case is that the payments were maintenance or support payments.
They rely on Ms . Griessel’s financial position in 2016, the absence of any defined duties,
the fact that she was not required to account for work performed, and the fact that the
payments continued monthly irrespective of whether she rendered any identifiable services.
Mr. Harold de Kock claimed that the payments defrauded SARS.
[29] The defendants submit that this overstates the evidence and the pleaded case. They
[29] The defendants submit that this overstates the evidence and the pleaded case. They
rely on the 18 February 2016 meeting, the presence of professional advisers, the recording
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of the payments as consultancy remuneration, the payment of PAYE, and the fact that Ms.
Griessel had historically contributed to Arathusa.
[30] I do not accept that the evidence establishes an intention to defraud SARS. That
allegation is serious and requires clear proof. The evidence does not justify such a finding.
The presence of professional advisers at the 2016 meeting, the recording of the payments
in Manyeleti’s financial records, and the payment of tax are inconsistent with a finding of
deliberate tax fraud.
[31] At the same time, the evidence does not support the defendants’ characterisation of
the payments as ordinary remuneration for defined consultancy services. Ms. Griessel was
not given written duties. There was no job description, no measurable deliverables, no
invoices, no performance assessment, and no ordinary termination process. Mrs. Van Wyk
accepted that Ms. Griessel was not working in any conventional sense throughout the year.
[32] The more probable conclusion is that the parties adopted a practical structure
through which Ms . Griessel could receive regular financial support, with the payments
recorded and administered as consultancy fees by Manyeleti. That conclusion recognises
both sides of the evidence: Ms. Griessel had made valuable contributions to Arathusa, but
the payments were not truly remuneration for defined consultancy services. They were
support payments clothed in the form of consultancy remuneration. The consultancy
remuneration through Manyeleti was the mechanism, or source, through which Ms. Griesel
was maintained.
[33] The evidence further proves on a balance of probabilities that either the Trust was
the controlling mind behind Manyeleti, or that Manyeleti was the alter ego of the Trust. It
must be emphasised that the finding does not constitute a piercing of the corporate veil.
The Supreme Court of Appeal,1 in the earlier litigation between these parties, observed that
The Supreme Court of Appeal,1 in the earlier litigation between these parties, observed that
there was no need for the court a quo to have pierced the corporate veil as it purported to
do, given that the voting rights in Manyeleti were exercised by the trustees qua trustees in
their capacity as the sole shareholder of the Trust:
1 Joan Cynthia Griessel NO & others v De Kock (334/18) [2019] ZASCA 95 (6 June 2019) at para 14..
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“It is common cause that the trust is the sole shareholder of the company, which
is a registered private company. Given that scenario, the trust qua shareholder,
has voting rights in the company. It is trite that a trustee is the owner of the trust
property for purposes of the administration of the trust. Equally trite is that where
more than one trustee have been specified in the trust deed, they must act jointly
in the fulfilment of the objects of a trust, Given all these well -established
principles, it c annot be gainsaid that the first, second and third applicants, as
trustees, jointly exercise the voting rights in the company, which have been
conferred by the shares owned by the trust. They therefore make decisions
pertaining to the farm, including granting access rights. The upshot of this finding
is that there was no need for the court a quo to pierce the corporate veil as it
purported to do.”
[34] The present finding proceeds on the same basis. It is not the separate legal
personality of Manyeleti that is disregarded. Rather, it is the practical and operational reality
that the persons who controlled the Trust were simultaneously those who controlle d
Manyeleti that is relevant to the assessment of fiduciary conduct. The legal distinction
between the entities is maintained, it is the practical interrelationship that is material to the
inquiry
The termination of payments and the requests for assistance
[35] The termination of the payments must be considered in its factual context. The
evidence established that the payments ceased following an incident in which Ms. Griessel,
upon being informed by Mrs. Van Wyk of damage concerning a game viewing vehicle,
responded dismissively, stating words to the effect that Mrs. van Wyk should “tell somebody
who cares” (the Kaizer incident). Mrs. Van Wyk regarded Ms. Griessel ’s response as
demonstrating a lack of respect for the Arathusa enterprise, and against the background of
demonstrating a lack of respect for the Arathusa enterprise, and against the background of
a deteriorating personal relationship , she decided that the payment arrangement should
end. That reaction might be understandable on a human level.
[36] The difficulty is that a humanly understandable decision is not necessarily a proper
fiduciary response. Once the payments ceased and requests for support were made , the
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trustees were required to consider those requests properly, in their capacity as trustees,
and with regard to the interests of the Trust and all beneficiaries.
[37] The evidence establishes that several requests for assistance were made after July
2022. Mrs. Van Wyk accepted that such requests had been made and that she did not
respond to them in substance. The defendants’ answer is that the Trust had no legal
obligation to maintain Ms. Griessel and no independent income from which to do so. That
answer addresses the alleged obligation to pay; it does not fully answer whether the
trustees properly considered the request.
[38] The factual significance of the non -response lies not in proving an automatic
entitlement to payment, but in what it reveals ab out how the trustees approached the
interests of a beneficiary in financial distress.
The financial position of the Trust and Manyeleti
[39] The Trust and Manyeleti are legally distinct. That distinction cannot be ignored. The
defendants are correct that Manyeleti’s directors, not the trustees qua trustees, decide
whether dividends are declared.
[40] The evidence, nevertheless, shows a close practical relationship between the Trust
and Manyeleti. The Trust is Manyeleti’s sole shareholder. The same family members
occupied key positions as trustees, directors and beneficiaries. Decisions concerning
dividends, loan accounts, access to Arathusa and financial benefits were therefore not
made in entirely separate practical spheres.
[41] The plaintiffs’ contention that the structures were closely intertwined is therefore not
without force. But it does not follow that the Court may disregard the separate existence of
Manyeleti for all purposes. The proper approach is to recognise the formal distinction while
assessing whether those who controlled both structures exercised their powers in a manner
consistent with their fiduciary obligations.
consistent with their fiduciary obligations.
[42] The financial enquiry is therefore not simply whether the Trust had cash on hand at
any particular moment. The more relevant question is whether the trustees gave proper
consideration to the request for assistance, having regard to the Trust’s assets, its
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shareholding in Manyeleti, the interests of all beneficiaries, and the practical ability of the
relevant decision-makers to influence the flow of funds.
Mr. Harold de Kock’s complaints concerning the administration of the Trust
[43] A substantial portion of the evidence concerned Mr. Harold de Kock’s longstanding
complaints regarding his treatment as a beneficiary. Those complaints cannot be assessed
by isolating each incident from the broader history. At the same time, this Court must avoid
relitigating matters finally determined in earlier proceedings.
[44] The evidence revealed a series of disputes extending over many years. They
included the amendment of the Trust Deed, Mr. Harold de Kock’s removal as a beneficiary
and his reinstatement, disputes over access to Arathusa, and the allocation of access
periods following the earlier litigation.
[45] Viewed individually, a number of the trustees’ decisions are capable of explanation.
The trustees advanced legal, practical, and administrative reasons for the steps they took.
The access roster, for example, was defended as formally equal and consistent with
previous court orders. The defendants also submitted that Mr . Harold de Kock could
approach individual beneficiaries to exchange allocated periods.
[46] Those explanations cannot be dismissed out of hand. But they are also not
conclusive. Mr. Harold de Kock’s case is cumulative. He contends that the trustees
repeatedly adopted technically defensible positions which, in practical effect, operated to
his disadvantage and reflected little willingness to accommodate him as a beneficiary.
[47] The probabilities do not justify a finding that every decision taken by the trustees
was motivated by hostility towards Mr. Harold de Kock. Nor is it necessary to make such a
finding. What emerges is a pattern in which his requests and concerns often received a
technical response rather than a constructive fiduciary response.
technical response rather than a constructive fiduciary response.
[48] That distinction matters. Trustees are not required to accede to every request made
by a beneficiary. They are, however, required to consider requests properly, impartially and
in good faith. Formal compliance with a roster or previous order does not, with out more,
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answer whether the trustees administered the Trust in a manner that promoted the interests
of all beneficiaries.
[49] The cumulative effect of the evidence is therefore more important than any single
event. The evidence reveals a longstanding relationship marked by distrust, repeated
litigation and an inability to accommodate Mr. Harold de Kock’s interests within the
administration of the Trust. Whether that state of affairs justifies removal is a question for
the legal analysis that follows.
Overall factual assessment
[50] The evidence does not support the extremes advanced by either side. I do not
accept that the consultancy structure was proven to be a fraudulent device to defraud
SARS. I also do not accept that the payments to Ms. Griessel were ordinary remuneration
for defined consultancy services.
[51] Similarly, I do not accept that every historical complaint raised by Mr. Harold de Kock
may simply be relitigated. But neither can the history be ignored. It forms part of the factual
matrix against which this court must determine whether the present trustees can continue
to administer the Trust impartially and in the interests of all beneficiaries.
[52] The legal analysis must therefore proceed from the following factual conclusions:
first, the payments to Ms. Griessel were support payments administered through Manyeleti
as consultancy remuneration; second, the trustees did not meaningfully engage with the
requests made on her behalf after those payments ceased; third, the Trust and Manyeleti,
though legally separate, operated in a closely interconnected practical setting; and fourth,
Mr. Harold de Kock’s complaints, viewed cumulatively, reveal a persisten t failure to
accommodate his interests constructively as a beneficiary.
[53] The Trust Deed concluded between Ms. Joan Griessel and Ms. Shirley van Wyk
contains the following important clauses:
(a) The purpose for which the Trust was created – “… (‘the Settlors’) out of the
(a) The purpose for which the Trust was created – “… (‘the Settlors’) out of the
affection they bear for their family, wishes to create a trust to enable them to
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arrange their personal affairs in such a way as to provide for their security,
maintenance, education and welfare.”
(b) “‘Beneficiary’ shall mean that person or those persons who may from time to
time be selected by the Trustees in their entire and absolute discretion to be
a beneficiary in respect of the income or capital or both under this trust, from
among the following potential beneficiaries - …”
(c) “The Trustees shall have the power, in their entire discretion, from time to
time and at any time to pay to, or to apply the whole or any part of the income
of the trust fund for the general advantage of any one or more of the
beneficiaries as the Trustees may decide, and in such proportions and from
such source as the Trustees may determine, and any income so paid or
applied shall accrue to the beneficiary”
(d) The right of a beneficiary to payment of any income or capital under this trust
shall, unless the Trustee otherwise determines, vest in such beneficiary only
on the date of such payment or transfer.
(e) It is the express wish of the Settlors that all decisions of the Trustees shall be
by consensus among the Trustees. If any difference or dispute shall at any
time arise in regard to the interpretation of this Trust Deed or the respective
rights of any person hereunder , or should any dispute at any time arise
between the Trustees, then and in such event, the matter in dispute may be
referred to arbitration in accordance with the succeeding provisions:…
The legal consequences of the 2016 support arrangement
[54] The evidence establishes that by 2016, the trustees had resolved that Ms. Griessel
should receive ongoing financial support. The decision was implemented through Manyeleti
and the payments were recorded as consultancy remuneration. I have already found,
however, that the payments were not ordinary remuneration for consultancy services. Their
true purpose was to provide Ms . Griessel with a regular source of financial support after
true purpose was to provide Ms . Griessel with a regular source of financial support after
she had exhausted her personal resources.
[55] The defendants contend that Ms . Griessel acquired no enforceable rights because
the payments were discretionary in nature and were made by Manyeleti rather than the
Trust. The submission cannot be accepted without qualification.
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[56] The defendants also rely upon the Trust Deed provision that the right to payment
vests in a beneficiary only on the date of payment, unless the trustees determine otherwise.
That provision correctly reflects the discretionary nature of the trustees' powers and
confirms that no beneficiary acquire s a vested right to future payment by reason of past
payments alone. That proposition is accepted. The present conclusion does not rest upon
the creation of a vested right in Ms . Griessel to future maintenance. It r ests upon the
existence of an operative decision, made by the trustees in 2016, which had been
continuously implemented for approximately six years and which had never been lawfully
reconsidered or withdrawn. The vesting clause does not address the obligations that attach
to trustees when they seek to resile from an existing decision made in the exercise of their
powers. It governs the beneficiary's right, it does not govern the manner in which trustees
must conduct themselves when they seek to alter or ter minate a course of dealing they
have themselves established.
[57] The same individuals who controlled the Trust controlled Manyeleti. The
arrangement was devised by those persons acting simultaneously as trustees and
directors. The decision was implemented continuously for approximately six years. It was
not presented as a temporary act of benevolence revocable at whim. It was adopted
because the trustees considered it necessary to provide for Ms . Griessel's welfare and
maintenance.
[58] The significance of the arrangement does not lie in the creation of a perpetual and
immutable right to maintenance. The trustees retained fiduciary powers and discretions
under the Trust Deed. What the arrangement did create, however, was an existing and
operative decision in favour of Ms. Griessel.
[59] A discretionary power, once exercised by a trustee in a particular manner, gives rise
to consequences that cannot be undone by mere inaction or unilateral reversal. The
to consequences that cannot be undone by mere inaction or unilateral reversal. The
principle that trustees who have settled upon a course of conduct in the exercise of the ir
powers are required to act consistently with that course until they have properly
reconsidered it is consonant with the broader fiduciary obligation of good faith and even -
handedness towards beneficiaries. While trustees are not permanently bound by pri or
exercises of discretion and may legitimately reconsider and change course, such
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reconsideration must itself constitute a genuine exercise of fiduciary judgment, directed at
the interests of the Trust and all beneficiaries, and not merely a response to personal
grievance or a change in personal relations. The operative decision could not lawfully be
terminated without proper consideration by the trustees acting in the discharge of their
fiduciary obligations.
[60] The evidence does not establish that such a reconsideration occurred. The
payments ceased because Mrs . Van Wyk concluded, after the Kaizer incident and the
deterioration of her relationship with Ms. Griessel, that the arrangement should end. While
that reaction may have been understandable on a personal level, the evidence does not
establish that the trustees collectively reconsidered the existing support arrangement with
due regard to the interests of the Trust, Ms. Griessel and the other beneficiaries.
[61] The failure lies not merely in the termination of the payments, but in the absence of
a proper trustee decision directed at whether the support arrangement should continue, be
amended or be terminated.
Relief consequent upon the termination
[62] The conclusion that the financial support arrangement was improperly terminated
does not mean that the first plaintiff acquired a perpetual and immutable entitlement to
maintenance. The Trust Deed confers discretionary powers upon the trustees and the court
must be slow to substitute its own decision for that of fiduciaries entrusted with the
administration of the Trust.
[63] The present case is, however, unusual. The trustees exercised their discretion in
favour of the first plaintiff during 2016. That decision was implemented continuously for
approximately six years. The arrangement remained operative until it was terminated. For
the reasons already explained, the evidence does not establish that the termination
followed a proper trustee reconsideration of the arrangement.
followed a proper trustee reconsideration of the arrangement.
[64] In those circumstances, the support arrangement remained operative until lawfully
reconsidered by trustees acting in accordance with their fiduciary obligations. The first
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plaintiff is accordingly entitled to the payments that would have accrued to her from the date
upon which the payments ceased until the date of this judgment.
[65] The consequence of this conclusion is not merely that the first plaintiff is entitled to
payment of the arrears that accrued after July 2022. The support arrangement established
during 2016 remains operative. It was never lawfully reconsidered or terminate d by the
trustees acting in accordance with their fiduciary obligations. The purported termination was
therefore ineffective. Unless and until the arrangement is lawfully amended or terminated
by the trustees acting properly in the exercise of their powers , the first plaintiff remains
entitled to receive the support provided pursuant to that arrangement.
[66] The fact that the arrangement was implemented through Manyeleti does not detract
from that conclusion. The evidence establishes that Manyeleti was the mechanism through
which the trustees elected to give effect to their decision to provide support to the f irst
plaintiff. The arrangement must therefore continue to be implemented through Manyeleti
unless and until a properly constituted body of trustees determines otherwise.
[67] It is unnecessary for present purposes to determine the precise tax consequences
of the arrangement or whether the payments might more appropriately have been
structured in a different manner. Those issues do not affect the validity of the support
arrangement itself. The issue before this Court is whether the arrangement lawfully existed
and whether it was lawfully terminated. For the reasons already given, I conclude that it
existed and that it was not lawfully terminated.
The removal of trustees
[68] Before proceeding to consider the position of the sixth, seventh and eighth
defendants, it is necessary to address briefly the position of the fourth and fifth defendants,
Mr. Frederik Frans van Niekerk and Mr. Johannes Jurgens Potgieter, who were appointed
Mr. Frederik Frans van Niekerk and Mr. Johannes Jurgens Potgieter, who were appointed
as independent trustees pursuant to the orders made in the earlier proceedings.
[69] During the course of the trial, a dispute arose as to whether the purported
resignations of these two trustees were effective. The defendants contended that the
resignations were procured by a settlement agreement, did not comply with the formalities
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required by the Trust Property Control Act, and were accordingly of no force or effect. A
conditional further resignation, with notice to the beneficiaries and the Master, was tendered
during the proceedings. In the circumstances, and having regard to the relief now granted,
it is unnecessary to determine whether the earlier resignations were effective. The order
directs the Master to appoint two suitably qualified independent trustees. The fourth and
fifth defendants, having in substance indicated their intention to resign, are directed to take
all steps necessary to give formal effect to their resignation in compliance with section 21
of the Trust Property Control Act within 30 days of this order, so as to regularise the
composition of the board of trustees in accordance with the order granted herein.
[70] The evidence does not establish that Mrs. Van Wyk abandoned her responsibilities
as trustee. To the contrary, it demonstrates that she carried the primary responsibility for
the affairs of the Trust and Manyeleti for many years. The difficulty is not inactivity but rather
that personal conflict a ppears increasingly to have influenced the manner in which she
exercised her judgment.
[71] The position of the sixth and eighth defendants is materially different. The evidence
contains little indication that either trustee independently engaged with the affairs of the
Trust in any meaningful manner. No evidence was presented of trustee delibera tions
initiated by them, attempts to address the concerns raised by the plaintiffs, or interventions
directed at ensuring that beneficiary interests were considered impartially.
[72] Trustees occupy a fiduciary office. They are required to exercise independent
judgment and may not simply defer to the views of a co -trustee, however capable or
experienced that trustee may be. The evidence demonstrates a substantial failure by the
sixth and eighth defendants to discharge those obligations.
sixth and eighth defendants to discharge those obligations.
[73] In the circumstances, the continued participation of the sixth and eighth defendants
as trustees is not conducive to the proper administration of the Trust. Their removal is
justified.
[74] The same conclusion does not presently follow in relation to Mrs . Van Wyk. The
evidence does not establish dishonesty, bad faith or incapacity. Her continued participation,
however, requires the introduction of meaningful independent oversight.
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Res judicata, issue estoppel and the significance of recurring conduct
[75] The defendants raised pleas of res judicata and issue estoppel in respect of a
substantial portion of the conduct relied upon by the plaintiffs in support of the removal of
the trustees. It is necessary to address those defences, if briefly, before proceeding to the
merits of the removal claim.
[76] It is accepted that certain of the events relied upon by the second plaintiff were the
subject of earlier proceedings before this court and the Supreme Court of Appeal. To the
extent that those proceedings resulted in final determinations on identified issues between
these parties, the principle of res judicata properly prevents those same issues from being
relitigated. This court does not revisit matters thus finally disposed of, and nothing in this
judgment is intended to do so.
[77] The position is, however, more nuanced than a categorical exclusion of all historical
conduct. Several of the earlier proceedings were resolved on grounds that did not constitute
a final finding on the merits of the removal question now before this court. Where a matter
was disposed of by reason of an insufficiency of evidence on motion papers, or where no
order was granted, the res judicata principle does not operate to extinguish the underlying
factual circumstances. Those circumstances remain part of the evidential record.
[78] More importantly, the plaintiffs' case in respect of trustee removal does not rest upon
any single incident or any single event that was the subject of prior adjudication. The case
is, at its core, a cumulative one. Conduct which, viewed in isolation, may not have
warranted removal and may indeed have been considered by an earlier court without
justifying intervention, does not lose its relevance merely because it has previously been
examined. Where incidents of the same character recur over a prolonged per iod — and
examined. Where incidents of the same character recur over a prolonged per iod — and
where each recurrence confirms and reinforces a pattern — the cumulative weight of that
conduct may justify a conclusion that would not have been warranted on any individual
event considered alone.
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[79] The proper approach is therefore not to exclude the historical events but to assess
whether the evidence as a whole, including events that post -date the earlier proceedings
and events whose significance only emerges in the context of a broader pattern,
establishes the grounds for removal. It is on that basis that the present inquiry proceeds
Applicable legal principles and appropriate relief
[80] The removal of a trustee is not a punitive measure. The court's primary concern is
whether the continued office of the trustee will be detrimental to the welfare of the
beneficiaries or the proper administration of the trust. The enquiry is directed to the future
administration of the trust rather than the punishment of past conduct.
[81] Trustees occupy a fiduciary office. They are required to exercise independent
judgment, to participate actively in the administration of the trust, and to consider the
interests of all beneficiaries. A trustee who merely acquiesces in the views of a co -trustee
fails to discharge the obligations attaching to the office. Equally, a trustee who allows
personal considerations to influence the exercise of fiduciary powers acts inconsistently
with the obligations imposed by the office.
[82] Family trusts present particular challenges. As was recognised in Land and
Agricultural Development Bank of SA v Parker 2 there is a danger that the trust form may
continue to exist formally while the administration of the trust becomes concentrated in the
hands of a single dominant individual. The law therefore requires genuine trustee
participation and independent judgment.
[83] Applying these principles to the facts of the present matter, the position of Mrs. Van
Wyk differs materially from that of the sixth and eighth defendants. The evidence
establishes that Mrs. Van Wyk remained actively involved in the administration of both the
Trust and Manyeleti. She carried the primary responsibility for the management of the
Trust and Manyeleti. She carried the primary responsibility for the management of the
family structures and possesses extensive institutional knowledge regarding their affairs.
2 2005 (2) SA 77 (SCA).
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[84] At the same time, the evidence demonstrates that personal conflict increasingly
influenced the manner in which Mrs. Van Wyk exercised her judgment. The termination of
the support arrangement after the Kaizer incident and the failure meaningfully to engage
with subsequent requests for assistance illustrate the extent to which personal
considerations became intertwined with fiduciary decision-making. Those findings warrant
criticism but do not, in themselves, justify her removal as trustee.
[85] The position of the sixth and eighth defendants is materially different. They placed
virtually no evidence before the Court demonstrating meaningful participation in the affairs
of the Trust. There was no evidence of independent initiatives undertaken by t hem as
trustees, no evidence that they sought to resolve disputes affecting beneficiaries, no
evidence that they independently considered requests for support made on behalf of Ms .
Griessel, and no evidence that they attempted to address Mr . De Kock's conc erns
regarding his position as a beneficiary.
[86] The practical result was that the administration of the Trust became concentrated in
the hands of Mrs. Van Wyk. Whatever the reasons for that state of affairs, it is inconsistent
with the requirement that trustees jointly and independently exercise the powers entrusted
to them.
[87] In my view, the principal governance deficiency revealed by the evidence is therefore
not the active involvement of Mrs . Van Wyk but the absence of meaningful independent
participation by the sixth and eighth defendants. Their continued office is not conducive to
the proper administration of the Trust and their removal is accordingly justified.
[88] The evidence nevertheless demonstrates a need for independent oversight. The
history of litigation, the breakdown in family relationships, the disputes concerning access
to Arathusa, and the dispute concerning the support arrangement all indicate that
to Arathusa, and the dispute concerning the support arrangement all indicate that
confidence in the administration of the Trust has been seriously undermined.
[89] The appropriate remedy is therefore not the wholesale removal of all trustees. Such
a remedy would deprive the Trust of the knowledge and experience accumulated by Mrs .
Van Wyk over many years. The more proportionate course is to retain Mrs . Van Wyk as
21
trustee while introducing meaningful independent oversight through the appointment of two
suitably qualified and independent trustees.
[90] The appointment of independent trustees will not resolve the underlying family
conflict. It will, however, provide an administration structure more consistent with the
fiduciary obligations imposed by the Trust Deed and trust law generally and better
safeguard the interests of all beneficiaries going forward. The Trust Deed provides for
arbitration as a dispute resolution mechanism should any dispute arise between the
trustees.
ORDER
In the result the following order is granted:
1. The sixth defendant, Mr. De Villebois Ettienne de Kock N.O., is removed as trustee
of the Arathusa Family Trust.
2. The eighth defendant, Ms. Celeste Mari Dovey N.O. is removed as trustee of the
Arathusa Family Trust.
3. The fou rth defendant, Mr. Frederik Frans van Niekerk N.O., and the fifth
defendant, Mr. Johannes Jurgens Potgieter N.O., are directed within 30 days of
this order, to take all steps necessary to give formal effect to their resignation as
trustees of the Arathusa Family Trust in accordance with the provisions of
section 21 of the Trust Property Control Act 57 of 1988.
4. The Master of the High Court, Pretoria, is directed, within 60 days of this order, to
appoint two suitably qualified independent trustees to the Arathusa Family Trust.
5. The independent trustees shall:
5.1. Not be beneficiaries of the Trust;
5.2. Not be related to beneficiaries of the Trust;
5.3. Possess suitable qualifications or experience in trust administration,
fiduciary governance, accounting, law or a related field.
6. Within 30 days of this order:
6.1. The plaintiffs may submit nominations to the Master for consideration.
6.2. The remaining trustee may submit nominations to the Master for
consideration.
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7. The Master shall not be bound by any nomination but shall appoint only persons
satisfying the requirements set out in paragraph 5.
8. The trustees shall take all lawful steps necessary to give effect to the support
arrangement referred to in this judgment.
9. The Arathusa Family Trust shall pay the first plaintiff the amount of R1 627 197.00,
being the arrear financial support that accrued since July 2022.
10. Unless and until the financial support arrangement is lawfully amended by the
trustees acting in accordance with their fiduciary obligations , the first plaintiff
shall continue to receive monthly financial support in the amount of R36 981.75.
11. Before making any decision concerning the financial support arrangement, the
trustees shall consider:
11.1. the financial circumstances and needs of the first plaintiff;
11.2. the interests of all beneficiaries of the Trust;
11.3. the financial position of the Trust;
11.4. the financial position of Manyeleti (Pty) Ltd; and
11.5. any other factor they consider relevant to the proper administration of
the Trust.
12. Any decision contemplated in paragraph 11 shall:
12.1. be reduced to writing;
12.2. contain written reasons; and
12.3. be furnished to the first plaintiff within 14 days of being taken.
13. The trustees shall furnish annual financial statements of the Trust and annual
financial statements of Manyeleti (Pty) Ltd to all beneficiaries within 30 days after
approval thereof.
14. The ninth defendant is directed to issue amended letters of authority reflecting
the composition of the board of trustees as contemplated in this order.
15. The sixth, seventh and eighth defendants, in their representative capacities as
trustees, shall pay the plaintiffs' costs, including the costs consequent upon the
employment of senior counsel where so employed on scale C.
16. Any wasted costs incurred as a result of the plaintiff’s abandoned amendment
application are to be borne by the respective parties, save for the costs tendered
application are to be borne by the respective parties, save for the costs tendered
by the plaintiffs.
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____________________________
E VAN DER SCHYFF
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
For the plaintiffs: Adv. SG Maritz SC
With: Adv. R de Leeuw
Instructed by: Jarvis Jacobs Raubenheimer Inc.
For the first to eighth and tenth respondents: Adv. S.D. Wagenaar SC
With: Adv. J.C. Van Eeden
Instructed by: Gildenhuys Malatji Inc.
Date of the hearing: 25-27 February 2026, 2-5 March 2026
Date of oral argument: 15 April 2026
Date of judgment: 1 June 2026