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[2019] ZASCA 95
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Griessel NO and Others v De Kock and Another (334/18) [2019] ZASCA 95; 2019 (5) SA 396 (SCA) (6 June 2019)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 334/18
In
the matter between:
JOAN CYNTHIA GRIESSEL
NO
FIRST APPLICANT
SHIRLEY ANN VAN WYK
NO
SECOND APPLICANT
CARYN SCHUTZ
NO
THIRD APPLICANT
JOAN CYNTHIA
GRIESSEL
FOURTH APPLICANT
SHIRLEY ANN VAN
WYK
FIFTH APPLICANT
DE VILEBOIS ETIENNE DE
KOCK
SIXTH APPLICANT
CELESTE MARIE DE
KOCK
SEVENTH APPLICANT
MANYELETI (PTY)
LTD
EIGHTH APPLICANT
and
HAROLD
LEE DE KOCK
FIRST RESPONDENT
THE
MASTER OF THE HIGH COURT OF SOUTH
AFRICA
PRETORIA
SECOND RESPONDENT
Neutral
citation:
Joan
Cynthia Griessel NO & others v De Kock
(334/18)
[2019] ZASCA 95
(6 June 2019)
Coram:
Navsa
ADP and Leach, Majiedt and Molemela JJA and Davis AJA
Heard:
23
May 2019
Delivered:
6
June 2019
Summary:
Discretionary
trust – trustees having power to select beneficiaries from
listed potential beneficiaries - whether potential
beneficiary
acquired rights capable of protection.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria
(Bam
AJ sitting as court of first instance).
1 The application for
leave to appeal is granted.
2 The appeal succeeds
only to the limited extent, reflected in para 3 of this order.
3 The order of the court
a quo is set aside and replaced with the following:
‘
3.1 The first,
second and third respondents are ordered to forthwith reinstate the
applicant’s rights a beneficiary under
the Arathusa Trust IT
4883/99, in particular, equal access to and enjoyment of the farm
Arathusa 241 KU, Pilgrims Rest in Mpumalanga
as was the practice
before 14 January 2013.
3.2 The first, second,
third and ninth respondents are ordered to pay the costs of the
application, including the costs occasioned
by the employment of two
counsel, jointly and severally,
the
one paying, the others to be absolved
.’
4 Each party is to pay
its own costs of the appeal.
JUDGMENT
Molemela
JA
(
Navsa
ADP and Leach and Majiedt JJA and Davis AJA
concurring)
Introduction
[1]
This is an application for leave to appeal, referred for oral
argument in terms of
s 17(2)
(d)
of the
Superior Courts Act 10
of 2013
. The parties were directed to be prepared, if called upon to
do so, to present oral argument in relation to the merits. We heard
submissions both on the application for the leave to appeal and the
merits. The background is set out hereunder.
Background
facts
[2]
In 1999, two sisters created an
inter
vivos
trust known as the Arathusa Family Trust (the trust). The only assets
of the trust are all the shares in the eighth applicant,
a company
called Manyeleti (Pty) Ltd (the company), which owns a farm that is
part of a game reserve. The three trustees appointed
in terms of the
trust deed were the two sisters (first and second applicant) and the
third applicant, a chartered accountant who
is an independent
trustee. The trust deed gave the trustees the power to, within their
discretion, select beneficiaries from time
to time from amongst those
described as ‘potential beneficiaries’. All the potential
beneficiaries had been afforded
the right to visit the farm with
their families on vacation on a rotational basis.
[3]
A difference of opinion over the development of the farm for
commercial use resulted in acrimony between the first respondent
and
the rest of the family. The trustees then resolved to amend the trust
deed. The effect of the amendment was that the first
respondent was
removed as a beneficiary in the trust. Aggrieved by his purported
exclusion as a beneficiary, the first respondent
approached the high
court claiming re-instatement of his rights as a beneficiary. That
litigation was settled on the basis that
the purported amendment of
the trust was to be regarded as ‘of no force and effect and
invalid’. The settlement agreement
was made an order of court
on 17 February 2016.
[4]
Pursuant to the settlement of that dispute, the first respondent,
through his attorneys, required the applicants to confirm
that his
right to visit the farm with his family on a rotational basis would
be restored. What followed was an unpleasant exchange
of
correspondence by their legal representatives. The parties could not
reach agreement on the effect of their settlement agreement
and of
the first respondent’s rights as a beneficiary in terms of the
trust deed. With a view to resolving the impasse, the
first
respondent instituted fresh litigation in the Gauteng Division of the
High Court, Pretoria (Bam AJ) (the court a quo). In
the intervening
period, the first applicant resigned both as a trustee of the trust
and as a director of the company. The first
respondent’s
siblings, the sixth and seventh applicants, were named as the first
applicant’s successors both as trustees
of the trust and
directors of the company. As at the time of the litigation instituted
before the court a quo, the Master had not
yet issued the sixth and
seventh applicants with letters of authority, resulting in the first
applicant still being cited as a
party in her capacity as a trustee.
The three trustees were cited as the first, second and third
respondents. The two sisters were
further cited in their personal
capacities as the fourth and fifth respondents. The designated
directors of the company were cited
as the sixth and seventh
respondents. The Master was cited as the eighth respondent and the
company as the ninth respondent. All
except the Master opposed
the application.
[5]
The relief sought in the court a quo was framed as follows in the
Notice of Motion:
‘
1.1 That the Applicant’s
vested rights, as a beneficiary, under the Arathusa Family Trust be
reinstated. Without derogation
from the generality of the aforegoing,
that the Applicant’s rights of access to the property known as
the farm Arathusa 241,
Registration Division KU, district Pilgrims
Rest, Mpumalanga, be fully restored, as it existed and were exercised
until 14 January
2013;
1.2 That the First, Second and Third
respondents be removed as Trustees of the Arathusa Family Trust and
that the [Master] be requested
to appoint Independent and impartial
Trustees for the Arathusa Family Trust;
1.3 Costs of suit; and
1.4 Further and/or alternative
relief.’
[6]
An
in
limine
issue that was raised in the court a quo was the failure of the first
respondent (applicant in those proceedings) to cite the third
respondent in her personal capacity. It was submitted before that
court that since the first respondent, inter alia, sought to
have all
trustees removed, they should all have been cited in their personal
capacities, over and above being cited in their representative
capacities. Only the first and second applicants had been cited in a
dual capacity. It was argued that failure to cite the third
respondent in her personal capacity constituted a material
non-joinder which, on its own, should result in the dismissal of the
application. The court a quo concluded that there was non-joinder and
granted an order in terms of which the third applicant was,
in her
personal capacity, joined as the tenth respondent in the proceedings.
[7]
In the court a quo, the basis of the trustees’ opposition of
the matter was that the first respondent was only a ‘potential
beneficiary’ in the trust, had no vested right in the trust
property and, accordingly, had no rights that he could protect.
The
court a quo found that the trustees had unlawfully discriminated
against the first respondent. It reasoned that the law did
not allow
the trustees to withhold the benefit enjoyed by the other potential
beneficiaries from the first respondent simply because
the rest of
the family had issues with him. It then decided in favour of the
first respondent and granted the following order:
‘
1. The
third respondent is joined in this action in her personal capacity as
Tenth Respondent.
2. The first,
second, third and ninth respondents are ordered to forthwith
reinstate the applicant's rights as a beneficiary under
the Arathusa
Trust IT 4883/99, in particular, equal access to and enjoyment of the
farm Arathusa 241 KU, Pilgrims Rest in Mpumalanga
as was the practice
before 14 January 2013.
3. The eighth
Respondent is ordered to appoint an independent co-trustee in
consultation with the respondents and other interested
parties such
that at any given time there are two independent trustees of the
Arathusa Family Trust.
4. The first,
second, third and ninth respondents are ordered to pay the costs of
this application on a scale as between attorney
and client, including
the costs of two counsel jointly and severally, the one paying, the
others to be absolved.’
[8]
The issues for determination before this court are: (i) whether leave
to appeal should be granted and, in the event that leave
is granted;
(ii) whether the first respondent, as a beneficiary of a
discretionary trust, acquired rights as against the trust
which were
capable of protection; (iii) and if so, whether the court a quo was
correct in granting an order reinstating the first
respondent’s
access to the farm, directing the Master to appoint an additional
trustee, and issuing a punitive costs order.
[9]
Although the applicants’ locus standi was initially disputed by
the first respondent, it was no longer a live issue before
us.
Consequently, nothing more needs to be said about it. Rather, the
focus shifted to the nature of the rights, if any, the first
respondent had acquired in relation to the trust property.
[10]
The
salient provisions of the Trust Deed are as follows
:
‘
3. DEFINITIONS
In this deed, unless the context
otherwise requires, words importing the singular shall include the
plural and words importing the
masculine gender shall include
females, and vice versa; the following expressions used in this deed
shall have the meaning hereinafter
assigned to them unless the
context shall clearly otherwise require, namely:
3.1 “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 amongst the
following potential beneficiaries:
3.1.1
Shirley Ann de Kock
3.1.2
Joan Cynthia Griessel
3.1.3
Harold Lee de Kock
3.1.4
De Villebois Etienne de Kock
3.1.5
Celeste Marie de Kock
3.1.6
any trust established for the benefit of any of the aforementioned.
. . .
5.2 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
of any part of the income of the trust fund
for the general advantage or anyone 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.
. . .
9. VESTING
The right of any beneficiary to
payment of any income or capital under this trust shall, unless the
Trustees otherwise determine,
vest in such beneficiary only on the
date of such payment or transfer. “Payment” and
“transfer” shall include
all forms of transfer of
possession or ownership of trust assets, but shall not include the
crediting of a loan account in the
name of the trust or a loan
account which a beneficiary has with the trust.
. . .
12. POWER OF TRUSTEES
The Trustees shall administer the
trust fund, and for this purpose shall have unrestricted powers of
dealing with the trust fund
as if they were beneficially entitled
thereto; without limiting the generality of their authority, it is
recorded that they shall
have power:
12.1 to retain or to realise, invest
and re-invest the trust fund in such manner and to such property,
movable or immovable, whatsoever
and where ever, in any part of the
world, as they deem fit, regardless of limitations or restrictions
imposed by statute or otherwise
as to the character of investments to
be made by Trustees, and whether income producing or speculative or
not and subject to such
conditions as they may deem fit;
12.2 to acquire by loan, purchase or
otherwise, any assets whatsoever on such terms as to payment as they
may deem fit but without
the authority to pledge any of the trust
assets for such purposes as the Trustees may deem fit;
12.3 to buy, sell, lease, let insure,
alter, maintain, improve, turn to account, amortise, exchange or
alienate any property, movable
or immovable;
12.4 to lend money or other assets,
whether upon security or not to any beneficiary upon such terms and
conditions as may seem expedient
to the Trustees;
12.5 to allow any beneficiary free use
and enjoyment of any property controlled by them or forming part of
the trust fund, whether
movable or immovable, upon such conditions,
if any, as to maintenance, insurance, rates and taxes and other
expenses as they may
deem fit.
.
. . ’
In
addition, a general power was granted to the trustees in the
following terms:
‘
Generally, it is the intention
of the Settlors that the Trustees are in fact to have the same
absolute control over and unfettered
powers of investment and
re-investments of the trust assets as if, they had been absolutely
and beneficially entitled to the trust
capital [except] in so far as
the trust deed specifies otherwise and they are specially indemnified
against any claim arising from
the loss of income or capital as a
result of the bona fide exercise of the discretion hereby granted to
them.’
[11]
It is trite that a trust is not a legal person. An
inter
vivos
trust is governed by the terms of a trust deed as well as the
provisions of the Trust Property Control Act 57 of 1988. In its
strictly technical sense, a trust is a legal institution
sui
generis
.
[1]
In
Lupacchini
NO & another v Minister of Safety and Security,
[2]
Nugent JA observed that
‘
A trust that is established by
a trust deed is not a legal person – it is a legal relationship
of a special kind that is described
by the authors of
Honoré’s
South African Law of Trusts
as “a legal institution in which a person, the trustee, subject
to public supervision, holds or administers property separately
from
his or her own, for the benefit of another person of persons or for
the furtherance of a charitable or other purpose . . .
.”’
[12]
A significant amount of effort was dedicated by the parties, both in
the affidavits that served before the court a quo and
the arguments
raised in the court a quo and before us, on the question whether or
not the right of access to the farm which was
previously afforded to
the first respondent was a vested right. The first respondent
contended that his visits to the farm amounted
to the free use and
enjoyment of a property controlled by the trustees as contemplated in
clause 12.5 of the trust deed. Relying
on the provisions of clause 9
of the Trust Deed, he contended that his visits to the farm
constituted possession of a trust asset,
which, in turn, resulted in
a vesting of rights, thus entitling him to approach the court a quo
to protect those rights. He
argued that his description as a
potential beneficiary in the trust deed was therefore immaterial.
[13]
Relying on clause 3.1 of the trust deed, which grants the trustees
the discretion to select beneficiaries from a list of potential
beneficiaries, the trustees were at pains to point out that they had
not yet selected beneficiaries. Since the beneficiaries had
not yet
been selected, so the argument went, the first respondent remained a
potential beneficiary who merely had contingent rights
and had no
vested rights worthy of protection. They argued that, notwithstanding
the fact that the first respondent and other potential
beneficiaries
had previously been allowed to occasionally occupy the farm, no
vesting of rights was consequent upon that occupation,
as the farm in
question was owned by a separate entity, namely the company. The
company and not the trust, so the argument went,
had exclusive right
to allow persons access to the farm.
Discussion
[14]
It is convenient to start with the last argument. 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.
[3]
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.
[4]
Given
all these well-established principles, it cannot 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.
[5]
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.
[15]
I turn now to determine whether there was a right that the first
respondent was entitled to protect. The first respondent’s
reliance on clause 9 as support for his proposition that rights
became vested by virtue of him having been granted possession of
the
trust asset (the farm) is misplaced. Clause 9 must be read in the
context of the other provisions of the trust deed and in
relation to
its purpose. It does not, on its own, confer a vested right on any
beneficiary. It is trite that contingent rights
are generally not
subject to tax.
[6]
However, when a trustee exercises the discretion by paying the
beneficiary either income or capital, the beneficiary thereby
acquires a vested right in the money paid over, which becomes
taxable.
[7]
Clause 9 was
therefore intended to distinguish between a loan and other income
that is distributed to beneficiaries in an attempt
to ensure that a
beneficiary is not saddled with a tax liability when a loan was
advanced to him or her.
[16]
It is undisputed that the trust that was created falls in the
category of discretionary trusts, since the trustees have been
given
the right, within their discretion, to select beneficiaries from a
list of potential beneficiaries. It follows that none
of the
potential beneficiaries can claim rights in perpetuity, as their
rights are merely contingent.
[8]
The question is whether the first respondent, as a potential
beneficiary in a discretionary trust, has rights that he could ask
the court a quo to protect. The judgment of this court in
Potgieter
& another v Potgieter NO & others
[9]
is
instructive, particularly at para 28, where it is stated that:
‘
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 protect his or her interest against
mal- administration
by the trustee . . . .’
[10]
[17]
During an exchange with the bench, counsel for the first respondent
was referred to the afore-mentioned
dictum
and asked whether, given the common cause fact that all the potential
beneficiaries, including the first respondent, had previously
been
permitted to have a vacation at the farm, it was necessary to decide
whether the first respondent had vested rights or not.
Counsel
ultimately conceded that such a determination was not necessary. That
concession was correctly made. It is evident from
the
dictum
in
Potgieter
that even beneficiaries who have contingent rights are entitled to
protection. Trustees have an obligation to treat all the
beneficiaries
even-handedly. As a beneficiary, the first respondent
had a right to be protected against arbitrary and discriminatory
treatment.
[18]
In this matter, the privilege of having a vacation on a farm situated
in a game reserve was taken away from the first respondent
while the
other potential beneficiaries continued to enjoy the same rights.
That constituted differential treatment without a justifiable
basis.
This was evidently prompted by the attitude of the first
respondent towards the development of the farm for commercial
purposes, which, over the years, increased to the point that the
first respondent considered the second applicant, his own mother,
to
be openly hostile towards him.
[19]
The role of a trustee in administering a trust calls for the exercise
of a fiduciary duty owed to all the beneficiaries of
a trust,
irrespective of whether they have vested rights or are contingent
beneficiaries whose rights to the trust income or capital
will only
vest on the happening of some uncertain future event.
[11]
While discrimination on the basis of need may, under certain
circumstances, be justified by the needs of a particular
beneficiary,
[12]
the trustees
did not advance ‘need’ as the reason for treating the
first respondent less favourably. It is clear from
the averments made
in the affidavits and the tenor of the attorneys’
correspondence that he was regarded as obstructive and
contrarian.
That may be so, but that does not suffice as justification for
treating him less favourably. This therefore means that
the trustees
unfairly discriminated against him. It follows that the court a quo
was correct in re-instating his right to visit
the farm on a
rotational basis.
[20]
I turn now to the ancillary orders granted by the court a quo. As
regards the issue of joinder, the applicants contended that
the
granting of joinder of the third applicant in her personal capacity
was irregular, as it was not properly applied for but was
only sought
informally in argument before the court a quo. It is common cause
that the court a quo ultimately did not make any
order against the
third applicant in her personal capacity. Nothing, therefore, turns
on this aspect.
[21]
With regards to the order directing the Master to appoint an
additional trustee, I find the following remarks apposite. ‘.
.
. [I]t is a matter not only of delicacy (as expressed in
Letterstedt’s
case
[
Letterstedt’s
v Broers
(1884)
9 AC 371
(PC) at 387]) but of seriousness to interfere with the
management of the estate of a deceased person by removing from the
control
thereof persons who, in reliance upon their ability and
character, the deceased has deliberately selected to carry out his
wishes.
Even if the . . . administrator has acted incorrectly in his
duties, and has not observed the strict requirements of the law,
something
more is required before his removal is warranted. Both the
statute and the case cited indicates that the sufficiency of the
cause
for removal is to be tested by a consideration of the interests
of the estate. . . .’
[13]
[22]
Although these remarks were made in the context of a removal of a
trustee from office, they are, by parity of reasoning, apposite
in
relation to a court’s decision to
mero
motu
direct the Master to appoint an additional trustee. It is clear that
there was a dispute of fact pertaining to the first respondent’s
allegation that the trustees did not properly attend to the affairs
of the trust to the point where a letter of demand was issued
against
the trust. The court a quo merely stated that the appointment of
another independent trustee might quell acrimony between
the parties
and restore the role of the trustees to what it should be. The third
respondent is a chartered accountant by profession
and is therefore
qualified to properly understand the responsibilities of
trusteeship.
[14]
In the
absence of facts conclusively showing that the third respondent would
not be able to play that role, there is simply
no legal basis for an
order directing the Master to appoint an additional trustee. The need
for the appointment of an additional
independent trustee was simply
not established in this matter. In any event, in terms of the trust
deed decisions must be arrived
at consensually. That would mean that
the family and all the potential beneficiaries have to reach
agreement, which obviates any
need for the appointment of a further
trustee.
[23]
It was argued on behalf of the company that a costs order was granted
against it despite the fact that no relief was sought
against it. It
is evident from the papers that this is a misstatement of the facts.
The correct position is that the company was
cited as a respondent in
the court a quo. In his founding affidavit, the first respondent
stated that he would not be asking for
relief against certain parties
unless they opposed the relief without success. These were the
company as well as the sixth and
seventh applicants. All these
applicants made common cause with the trustees in opposing the first
respondent’s application
and were unsuccessful. Since there is
a general rule that costs follow the cause, there is nothing untoward
in mulcting them with
costs. The question remaining is whether a
punitive costs order was necessary.
[24]
It is trite that the determination of an award of costs is
discretionary. That discretion, however, must be exercised
judicially.
The first respondent did not at any stage pray for a
punitive costs order. The court a quo has not advanced any reason for
mulcting
the applicants with a costs order on a punitive scale. In
the absence of any reasons justifying the granting of such an order,
the ineluctable inference is that the court a quo did not exercise
its discretion judicially in that regard. A failure to exercise
a
discretion amounts to a material misdirection entitling an appellate
court to interfere.
[15]
As there are no facts
justifying the granting of a punitive costs order falls to be set
aside.
[25]
In relation to the costs of appeal, cognisance has been taken of the
fact that the first respondent sought to defend the unsustainable
punitive costs orders made by the court a quo. Given the finding that
such orders are to be set aside, it follows that the applicants
have
had a measure of success in the appeal. Thus, the appropriate order
is for each party to pay own costs.
[26]
For all the above reasons, I make the following order:
1 The application for
leave to appeal is granted.
2 The appeal succeeds
only to the limited extent, reflected in para 3 of this order.
3 The order of the court
a quo is set aside and replaced with the following:
‘
3.1 The first,
second and third respondents are ordered to forthwith reinstate the
applicant’s rights as a beneficiary under
the Arathusa Trust IT
4883/99, in particular, equal access to and enjoyment of the farm
Arathusa 241 KU, Pilgrims Rest in Mpumalanga
as was the practice
before 14 January 2013.
3.2 The first, second,
third and ninth respondents are ordered to pay the costs of the
application, including the costs occasioned
by the employment of two
counsel, jointly and severally,
the
one paying, the others to be absolved
.’
4 Each party is to pay
its own costs of the appeal.
___________________
M
B Molemela
Judge
of Appeal
Counsel
for Appellants: F H Terblanche SC (with him A J Wessels)
Instructed
by: Strydom & Bredenkamp Inc, Pretoria
c/o
E G Cooper Majiedt Inc, Bloemfontein
Counsel
for First Respondent: M P Van der Merwe SC (with him Ms R Oosthuizen)
Instructed
by: Jarvis Jacobs Raubenheimer Inc, Pretoria
c/o
Rossouws Attorneys, Bloemfontein
[1]
See in this regard:
Braun
v Blann and Botha NNO & another
[1984] ZASCA 19
;
1984
(2) SA 850
(A) at 859D-H;
Commissioner
for Inland Revenue v Friedman & others NNO
[1992]
ZASCA 190
;
1993 (1) SA 353
(A) at 370D-H.
[2]
Lupacchini NO & another v
Minister of Safety and Security
[2010] ZASCA 108
;
2010 (6) SA 457
(SCA) para 1.
[3]
Ibid.
[4]
Hoosen NO & others v Deedat &
others
[1999] ZASCA 49
;
1999 (4) SA 425
(SCA) paras 23, 24 and 26.
[5]
See Jowell v Bramwell-Jones &
others
[2000] ZASCA 16
;
2000 (3) SA 274
(SCA) para 14.
[6]
Estate Munro v CIR
1925
TPD at 693;
Hilda Holt Will
Trust v CIR
1992 (4) SA
661 (A).
[7]
Estate Munro v CIR
ibid
at 702;
De Beer v CIR
1932
CPD 443
at 448;
Hilda Holt
Will Trust v CIR
ibid.
[8]
CIR v Sive’s Estate
1955 (1) SA 249 (A).
[9]
Potgieter & another v
Potgieter NO & others
[2011] ZASCA 181; 2012 (1) SA 637 (SCA).
[10]
Ibid para 28.
[11]
Doyle v Board of Executors
1999 (2) SA 805 (C).
[12]
E Cameron
et
al Honore’s South African Law of Trusts
5 ed (2002) Thirteenth Impression 2016 at 316.
[13]
Volkwyn NO v Clarke
and Damant
1946
WLD 456
at 464.
[14]
Land and Agricultural
Development Bank of SA v Parker & others
[2004] ZASCA 56
;
[2004] 4 All SA 261
(SCA) para 36.
[15]
Trencon
Construction Limited v Industrial Development Corporation of South
Africa Limited & another
[2015]
ZACC 22
;
2015 (5) SA 245
(CC);
2015 (10) BCLR 1199
(CC).