THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case no 2023/002101
RUAN SWANEPOEL
Applicant
and
WERNER BOTHA N.O.
First Respondent
THE UBERRIMA TRUST (PTY) LTD
Second Respondent
CORNÈ VAN DER VENTER Third Respondent
MASTER OF THE SOUTH GAUTENG
HIGH COURT
Fourth Respondent
JUDGMENT
DU PLESSIS J
Introduction
[1] The applicant, Mr Swanepoel, brings this application for the termination of the
Ruan Swanepoel Inter Vivos Trust (“the Trust”), in terms of section 13 of the Trust
(1) REPORTABLE: Yes☐/ No ☒
(2) OF INTEREST TO OTHER JUDGES: Yes☐ / No ☒
(3) REVISED: Yes ☒ / No ☐
Date: 25 June 2026
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Property Control Act. 1 The question to be answered is, if a trust was created for a
specific purpose, and the purpose for which it was created no longer exists, may a
court intervene to bring the trust to an end, even where its own deed contemplates
termination only upon the death of the beneficiary? The answer depends on the facts.
Background facts
[2] On 14 August 2010, the applicant, then 18, sustained serious injuries in a motor
vehicle accident. He suffered from, amongst other injuries, a mild to moderate
traumatic brain injury. Action was instituted against the Road Accident Fund (“the
RAF”). On 19 November 2013, the action was settled, and a court order confirming
the settlement was granted. In terms of the settlement agreement, the RAF undertook
to pay a capital sum of R3 133 920, together with a contribution towards future medical
expenses.
[3] In terms of the court order, the third respondent was directed to cause a special
trust to be established in accordance with the Act, it being a trust created for the benefit
of a person who suffers from any serious physical disability, where such a disability
incapacitates such a person from earning sufficient income for the maintenance of
such a person or from managing his own affairs. All settlement proceeds were to be
paid into the trust for the applicant’s benefit. The Trust was established, with the
applicant as the sole beneficiary.
[4] The Deed of Trust provides that the Trust terminates upon the applicant's death.
[5] At the time of the settlement and the creation of the Trust, the applicant was
battling with alcohol and drug addiction. He dropped out of school, attempted suicide
on various occasions, and had been admitted to various psychiatric facilities. His
family and his then attorney were concerned that he would squander the award on
substances.
1 57 of 1988.
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[6] In the decade following the settlement, the applicant cleaned up his act. He has
been sober for over a decade. He has had stable employment at his father-in-law’s
construction company, where he earned a steady salary and was promoted. He got
married, and he and his wife bought a home without the assistance of the trustees. He
became a father. He has independently managed his finances, obtained and
maintained long-term insurance policies, and appointed a financial advisor to assist
with his financial and investment decisions. He later negotiated and concluded the sale
of his home and emigrated with his family to New Zealand.
[7] The Trust currently holds capital from which substantial trustee and
administration fees are deducted. According to the applicant, the Trust is depleting its
capital, which is why the applicant would like to terminate the Trust: to enable him to
make his own financial and investment decisions regarding the capital.
[8] As mentioned, the Trust was established for the benefit of the applicant, based
on the injuries sustained and the concerns surrounding his addiction. At the time of
settlement, the medical evidence did not exclude the possibility that the applicant could
make his own decisions. For instance, the Clinical Psychologist and
Neuropsychologist stated that the applicant is capable of making decisions regarding
his financial affairs, but recommended appointing a financial advisor if significant sums
are awarded. The occupational therapist likewise suggested a financial advisor and
foresaw the need for protection to be temporary. Some of the assessments indicated
prior cognitive and other difficulties (such as ADHD and a history of learning
difficulties), which underscored the suggestions made.
[9] The assessments were updated around 2023. The psychiatrist noted that he
has made a good recovery, even if there are still some minor deficits, and concluded
that he has only minimal residual difficulties secondary to the minor head injury he
that he has only minimal residual difficulties secondary to the minor head injury he
sustained, and that he is able to manage his own financial affairs and that the
Trusteeship can be lifted. The Clinical Psychologist noted that his test performance
was similar but somewhat stronger than during the assessment a decade earlier. The
improvement was attributed to reduced pain and post-traumatic anxiety, improved
mood and emotional maturity, reduced and better-managed ADHD symptoms, and the
absence of substance abuse. He concluded that in the absence of substance abuse,
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the applicant remains capable of managing his financial affairs. He also indicated that
at the time of his initial assessment, the substance abuse had not been disclosed to
him and would have affected his opinion. In that regard, he states that creating the
Trust was a good decision to preserve the funds during the period of addiction.
Legal framework
[10] Section 13 of the Act provides:
13. Power of court to vary trust provisions.
If a trust instrument contains any provision which brings about consequences which in
the opinion of the court the founder of a trust did not contemplate or foresee and
which—
(a) hampers the achievement of the objects of the founder; or
(b) prejudices the interests of beneficiaries; or
(c) is in conflict with the public interest,
the court may, on application of the trustee or any person who in the opinion of the
court has a sufficient interest in the trust property, delete or vary any such provision or
make in respect thereof any order which such court deems just, including an order
whereby particular trust property is substituted for particular other property, or an order
terminating the trust.
[11] Section 13 thus confers a broad discretionary power on the court to vary a trust
instrument in a manner as it deems fit. The Supreme Court of Appeal in Snyman v De
Kooker N O
2 explained the working of the section as follows:
[40] In the main, s 13 of the Act provides for variation of trust provisions by a court,
and in certain instances, for termination of a Trust. For a court to exercise its powers
provided in s 13, a trust deed must contain a provision ‘which brings about
consequences which in the opinion of the court the founder of a trust did not
contemplate or foresee’ and which: (a) hampers the achievement of the objects of the
founder; or (b) prejudices the interests of beneficiaries; or (c) is in conflict with the
public interest.
2 [2024] ZASCA 119.
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[41] The provision has thus two components. The first requires the presence of a
provision which results in unforeseen or contemplated consequences. I refer to this as
the anchor jurisdictional factor. The second requires, in addition, that such a provision
must have any of the results contemplated in s 13(a) – (c). Thus, an applicant who
relies on this provision must satisfy the court of the presence of the anchor jurisdictional
factor and any of the requisites of s 13(a) – (c). Logically, it is only if the anchor
jurisdictional factor is established, that an enquiry into any of the three requisites would
ensue. In other words, the section requires a causal link between the anchor
jurisdictional factor and the results referred to in s 13(a) – (c).
[42] The enquiry in terms of s 13 of the Act is a factual one, in which relevant factors
will include the background to the creation of the Trust, the intention of its founder, its
purpose, and the relevant provisions of the trust deed. Although s 13 has two
components, the enquiry into the presence of the anchor jurisdictional factor is
intertwined with the requisites in s 13(a) – (c). In other words, it could well be that a
finding on the anchor jurisdictional factor indicates the presence of one or more of the
requisites in s 13(a) – (c). Even among the requisites in s 13(a) – (c), there might be
factors which satisfy one or more of the requisites. For example, a provision might
prejudice the interests of the beneficiary such that it also offends public interest. As a
result, it might not always be practical, nor desirable, to have a discrete and isolated
enquiry into each factor.
[12] In other words, section 13 requires an applicant to satisfy two components.
Firstly, the “anchor jurisdictional factor”, namely that the trust deed contains a provision
that produces a consequence the founder did not foresee. This is a factual enquiry
(what did the founder contemplate?), informed by the background to the creation of
(what did the founder contemplate?), informed by the background to the creation of
the trust. In the Snyman case, the court found that although the trust was created
pursuant to a court order, the founder for purposes of section 13 is the person who
executed the deed and formally constituted the trust (in this case, the third
respondent).
[13] The second component is that this unforeseen consequence must at least have
one of three results, namely: 1) it hampers the achievement of the founder’s objects;
2) it prejudices the interest of the beneficiaries, or 3) it conflicts with the public interest.
This requires a causal link between the anchor factor and whichever of the three
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results is relied upon. Sometimes the finding of the anchor factor will simultaneously
establish one of the results in 13(a) – (c).
[14] Snyman also clarified the relationship between section 13 (termination or
variation of a trust) and section 20 (removal of trustees). The court cautioned that the
two provisions are distinct, serve unrelated purposes, and must not be conflated.
Termination of a trust under section 13 is premised on the provisions of the trust deed
itself, thereby bringing about unforeseen consequences; removal of trustees under
section 20 is informed by the trustees' conduct and their relationship with beneficiaries.
The loss of office by a trustee upon termination of a trust under section 13 is a natural
consequence of that order, but it does not amount to a removal as envisaged in section
20.
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Application
[15] The first and second respondents contend that section 13 does not apply
because the Trust was created pursuant to a court order, and any variation or
termination must be done by varying the underlying consent order in the RAF litigation.
On a reading of section 13, this cannot be the case. Section 13 expressly refers to a
“trust instrument”, which includes a court order that ordered the creation of the trust.
Section 13, therefore, applies to the order. But this does not mean the order is what
must be varied. The provisions being challenged are not the provisions of the court
order but rather those of the Trust Deed itself, created pursuant to the court order.
[16] If one follows Snyman's logic, the third respondent, as founder, in her affidavit
in support of the applicant’s application, clarified that the purpose of the Trust was to
protect the settlement proceeds from dissipation by the applicant through drug and
alcohol use. She did not foresee, at the time of the trust’s creation, that he would
rehabilitate to the extent he has. She clarified that the intention was not for the trust to
rehabilitate to the extent he has. She clarified that the intention was not for the trust to
endure indefinitely, should the applicant be able to manage his own affairs. This
information is important, as it indicates that the founder did not foresee that what
happened would happen.
3 At para 21.
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[17] Even if the court itself is regarded as the founder of the trust, the conclusion will
be the same. The consent order was made based on the expert reports before the
court. The reports did not find that the applicant is wholly incapable of managing his
own affairs. What the court could not foresee was the full extent of the applicant’s
substance dependency that was, at the same time, wreaking havoc in the applicant’s
life. The updated medical experts' reports indicate that the applicant’s situation as far
as the injury has improved, that he has been sober for over a decade, and that he
remains capable of managing his own affairs, now without qualification.
[18] On any view of who the founder was, the termination-on-death clause produces
consequences not foreseen when the trust was constituted. That is the first
component.
[19] The second component is also satisfied. The applicant is the sole beneficiary
of the Trust. The continuation of the Trust prejudices his interest in various respects.
For one, the Trust is depleting its capital by paying trustee and administrative fees,
without any real benefit to the applicant. But perhaps more importantly, the applicant
is deprived of his autonomy and his right to make his own financial decisions until his
death. The Trust ties him to a finding of perpetual incapacity in relation to those funds,
while outside this tie, he is making his own financial decisions, such as negotiating the
sale of his home, managing long-term investments through a financial advisor,
planning emigration, and maintaining what seems to be a stable family life. The
incongruity speaks for itself. His interests are clearly prejudiced.
[20] The first and second respondents submit that the relief in paragraph 2 of the
Notice of Motion, directing the first respondent to deliver his Letters of Authority to the
Master, is interdictory and requires the applicant to meet the criteria for a final interdict.
Master, is interdictory and requires the applicant to meet the criteria for a final interdict.
I respectfully disagree. The transfer of Letters of Authority after a trust's termination is
a consequence of the order ending the trust. Once the trust is terminated, those Letters
of Authority no longer have effect and must be returned to the Master. This is thus not
the enforcement of a separate right via interdict but rather a natural outcome of the
primary order being sought.
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[21] The first and second respondents also submit that the Applicant failed to
provide the Court with evidence of mismanagement or maladministration. However,
this overlooks the type of relief being sought. Termination under section 13 does not
depend on proving trustee misconduct. The Act provides an alternative, separate basis
for variation or termination once the criteria in section 13 are satisfied. Misconduct is
not necessary for this application to succeed.
The order
[22] The applicant uploaded a fairly extensive order that mimics the order in
Snyman. Much of the relief sought in the order was not set out in the notice of motion.
I am confined to the relief sought. The order I make is limited to what was properly
before me, and that flows from the relief granted.
[23] The applicant seeks a punitive costs order against the first and second
respondents on the basis that their opposition was unreasonable and vexatious, and
further seeks that any costs order be borne personally by the trustees rather than paid
from the trust capital.
[24] The applicant is the only beneficiary of the Trust. This application was
necessitated by the Trust Deed's termination-on-death clause, which I have found
leads to unintended consequences not foreseen when the trust was established and
that prejudice the applicant's interests. The trustees opposed the application. I do not
find that their opposition was so unreasonable or vexatious as to warrant a personal
costs order against them. The appropriate order is that the costs of this application be
paid from the trust estate.
Order
[25] The following order is made:
1. The Ruan Swanepoel Inter Vivos Trust (IT 205/2014 G) ("the Trust")
is terminated in terms of section 13 of the Trust Property Control Act
57 of 1988.
2. Within 15 (fifteen) court days of the date of this order, the First and
Second Respondents shall transfer and pay over the full net capital
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of the Trust, together with all accrued interest, to the Applicant or his
nominated financial advisor, on such banking or investment account
details as the Applicant's attorneys shall furnish to the First and
Second Respondents' attorneys in writing within 5 (five) court days
of the date of this order. Such transfer shall include:
2.1. All capital held in the name of the Trust;
2.2. All funds held in any trust banking accounts; and
2.3. All accrued interest, investment growth and any other amounts
receivable by the Trust up to the date of transfer.
3. Within 10 (ten) court days after the transfer contemplated in
paragraph 2, the First Respondent is directed to:
3.1. deliver the original Letters of Authority issued by the Fourth
Respondent to the Master of the South Gauteng High Court; and
3.2. take all steps and sign all documents reasonably required by the
Fourth Respondent to give effect to the termination of the Trust
and the cancellation of the Letters of Authority.
4. The costs of this application shall be paid from the Trust estate prior
to the transfer contemplated in paragraph 2, on scale A.
____________
WJ du Plessis
Judge of the High Court, Gauteng Division,
Johannesburg
Date of hearing:
13 April 2026
Date of judgment:
25 June 2026
For the applicant:
K Hennessy-Davis instructed by Van Wyk
Law Inc
For the respondent:
G Y Benson instructed by Michael Herbst
Attorneys