SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
CASE NO: 2026-005605
CASE NO: 2025-091366
In the matter between:
ETHEL PRUDENCE SAGE Applicant
and
ROBERT JAN PICARD First Respondent
(in his personal capacity)
ROBERT JAN PICARD N.O. Second Respondent
(as executor of the Estate of the late Vera Sage)
ROBERT JAN PICARD N.O. Third Respondent
(as trustee of the Vera Sage Testamentary Trust)
DAVID JACK SAGE Fourth Respondent
(in his personal capacity)
DAVID JACK SAGE N.O. Fifth Respondent
(as executor of the Estate Late Vera Sage)
DAVID JACK SAGE N.O. Sixth Respondent
(as trustee of the Vera Sage Testamentary Trust)
BRENT BURGER Seventh Respondent
BB BURGER BELEGGINGS (PTY) LTD Eighth Respondent
BETINA SUSAN DE ARAUJO Ninth Respondent
MASTER OF THE HIGH COURT, CAPE TOWN Tenth Respondent
REGISTRAR OF DEEDS, CAPE TOWN Eleventh Respondent
RUTH LINDA SAGE Twelfth Respondent
In Re: Case no: 2025-091366
DAVID JACK SAGE N.O. First Applicant
(as executor of the Estate Late Vera Sage)
DAVID JACK SAGE N.O. Second Applicant
(as trustee of the Vera Sage Testamentary Trust)
And
ETHEL PRUDENCE SAGE First Respondent
RUTH LINDA SAGE Second Respondent
All other unlawful occupiers of Erf 6[...],
Constantia at Cape Town Third Respondent
City of Cape Town Fourth Respondent
HEARD: 11 May 2026
DELIVERED: 18 August 2026
Administration of Estates- Executors- Trustees- Removal of office- not lightly done
Testamentary Trust – realisation of bequeathed property - Section 6(1) of the Trust Property
Control Act 57 of 1988 is peremptory -regulates the control of trust property - Section 11(1)
of that Act, which obliges a trustee to identify and register trust property as such, is subject
to section 40 of the Administration of Estates Act 66 of 1965 -liquidation and distribution of
the estate - the property destined for a testamentary trust remains an asset of the
deceased estate under the administration of the executor – realisation not invalid- at most,
the trust has a vested personal right to claim, in due course, delivery of what the
distribution account allocates to it.
JUDGMENT: 18 AUGUST 2026
Le Grange ADJP
Introduction:
[1] This matter came before me as a consolidated hearing of two applications. The first
application, under case number 2026-005605, is brought by Ethel Prudence Sage ('the
applicant'). She seeks, among other relief, orders setting aside the sale of Erf 6[...],
Constantia, Cape Town ('the Constantia property') and the sale of the deceased's one-sixth
share in Portion 27 of the Farm Bosjemansdrift No 174, Bonnievale ('the farm property').
She also seeks the removal of Robert Jan Picard and David Jack Sage as executors of the
deceased estate and as trustees of the Vera Sage Testamentary Trust ('the Trust'). The
second application, under case number 2025-091366, concerns the eviction from the
Constantia property of the applicant and Ruth Linda Sage under the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998 ('PIE').
[2] The applications were heard together. Their factual and legal foundations overlap
substantially. It is therefore appropriate that they be determined in a single judgment.
[3] Although the dispute has acquired a considerable procedural history and has
generated serious allegations between members of the Sage family, the principal legal
question is comparatively narrow. It is whether immovable property forming part of a
deceased estate, but bequeathed as part of the residue to a testamentary trust, becomes
trust property immediately upon the death of the testatrix so that any subsequent
disposition of it is an act by trustees regulated by the Trust Property Control Act 57 of 1988;
or whether, pending liquidation and distribution of the deceased estate, the property
remains under the administration of the executors and may lawfully be realised by them in
that capacity.
Procedural history and the application to strike out
[4] The proceedings have not followed a straightforward course. The applicant initially
attempted to have the removal application heard as one of urgency on 21 January 2026.
The Judge President found that the matter was not urgent and struck it from the roll.
[5] Thereafter, by agreement between the parties, the matter was postponed to the
semi-urgent roll to be heard together with the PIE application on 11 May 2026.
[6] The applicant subsequently instituted a further urgent application on 20 March 2026
seeking to interdict transfer of the Constantia property. Nziweni J also struck that
application from the roll, with costs.
[7] At the start of the consolidated hearing, the respondents sought to strike out
paragraphs 5 to 24 of the applicant's replying affidavit dated 22 April 2026. Their objection
was that those paragraphs introduced matters arising after the opposing affidavit had been
delivered and did not constitute a legitimate answer to matters raised in opposition.
[8] Replying affidavits are not ordinarily the place in which an applicant may
reconstruct the case advanced in the founding papers or introduce a materially different
factual foundation for the relief originally sought. Fairness requires a respondent to know
from the founding affidavit the case it must meet.
[9] I have considered the impugned paragraphs in their context. They concern events
occurring after the opposing affidavit and do not properly respond to the case made in
opposition. They introduce new matter rather than answer the respondents' case. The
objection is therefore well founded, and paragraphs 5 to 24 fall to be struck out.
The testamentary scheme
[10] Vera Sage ('the testatrix') died on 1 May 2024. Her estate included the Constantia
property and a one-sixth share in the farm property.
[11] Her will is central to the dispute and must be construed as a whole. Clause II
bequeathed her personal effects, furniture, household effects and vehicles in equal shares
to her three children, Ruth Linda Sage, David Jack Sage and Ethel Prudence Sage.
[12] Clause III dealt differently with the residue. It provided: 'I BEQUEATH the residue of
my Estate to my hereinafter appointed Trustees IN TRUST for the following ends and
purposes and subject to the terms and conditions more fully set out in Clause V below.'
[13] Both immovable properties formed part of the residue. Clause V conferred extensive
powers upon the trustees. Those powers included powers to realise, invest and reinvest
capital, dispose of assets, acquire immovable property, enter into contracts, borrow
money, furnish guarantees and determine questions concerning capital and income.
[14] Clause V(b) is of particular significance to the applicant's asserted entitlement to
occupy the Constantia property. It authorised the trustees to make tangible assets
available for the use of the testatrix's children or their descendants. It contemplated, in
particular, that the trustees might retain the testatrix's home for the free use of her children
for their lifetimes, or for so long as they wished. The language is permissive, not mandatory.
It confers a discretion upon the trustees. It does not confer upon an individual beneficiary
an indefeasible lifelong right of occupation.
[15] Clause XI also afforded the executors and trustees extensive discretionary powers
concerning the time, manner and conditions upon which assets might be sold.
[16] The will accordingly reveals two related but legally distinct stages. The first is the
administration of the deceased estate by the executors. The second is the administration
by the trustees of the property which, upon completion of the estate-administration
process, is delivered or transferred to them in accordance with the will and the liquidation
and distribution account.
[17] The failure to keep those stages analytically distinct lies at the root of the applicant's
case.
The sales
[18] Picard and Sage were appointed as executors of the estate and were also
designated as trustees of the testamentary trust. Letters of Authority were subsequently
issued authorising them to act as trustees.
[19] On 23 January 2025, acting as executors of the deceased estate, they concluded an
agreement to sell the Constantia property to Betina Susan de Araujo. The agreement
contained a suspensive condition relating to the Master's consent, which was
subsequently obtained.
[20] The farm property was likewise sold, and the Master's consent to that transaction
was also obtained.
[21] The executors' explanation is that the estate was not sufficiently liquid to pay its
administration expenses and liabilities while achieving the purposes contemplated by the
will. They considered the realisation of assets necessary. They also considered it wasteful
to transfer immovable property to the Trust first, only for the trustees to sell it and thereby
incur additional conveyancing expenses.
[22] The applicant challenges that course. Her argument rests largely on the proposition
that the Trust came into existence upon the testatrix's death; that the two immovable
properties were bequeathed to the Trust; that they therefore became trust property upon
death; and that their subsequent sale was necessarily an exercise of the powers of the
trustees.
[23] If that final proposition were correct, the consequences of s 6(1) of the Trust
Property Control Act would be material. In my view, the difficulty is that the proposition
conflates the existence of the testamentary trust with the proprietary character of assets
that have not yet passed from the deceased estate into the administration of its trustees.
Statutory architecture
[24] The question is best answered by reading the Administration of Estates Act 66 of
1965 and the Trust Property Control Act together. The former regulates the administration,
liquidation, and distribution of deceased estates, while the latter regulates the control and
administration of trust property. The statutes are complementary. Neither should be
construed so as to collapse the distinct functions of the executor and the trustee.
[25] The definition of 'trust' in s 1 of the Trust Property Control Act is instructive. In broad
terms, it encompasses an arrangement in which property is transferred or bequeathed to a
trustee for administration or disposal under the trust instrument. However, the definition
expressly excludes the administration of another's property by a person acting as executor,
tutor, or curator under the Administration of Estates Act.
[26] That exclusion is not incidental. It marks a legislative boundary. Property does not
become subject to the regulatory regime governing trust property merely because its
ultimate testamentary destination is a trust. So long as it remains property administered by
an executor under the Administration of Estates Act, the executor administers it in that
capacity.
[27] Section 6(1) of the Trust Property Control Act provides: 'Any person whose
appointment as trustee in terms of a trust instrument, section 7 or a court order comes into
force after the commencement of this Act, shall act in that capacity only if authorised
thereto in writing by the Master. ' The phrase 'in that capacity' is important. Section 6(1)
governs conduct undertaken as trustee. It does not invalidate conduct lawfully undertaken
by the same individual in a distinct juridical capacity as executor. Section 11(1) of the Trust
Property Control Act reinforces that point. The trustee's obligation to identify and register
trust property as such is expressly made subject to s 40 of the Administration of Estates
Act.
[28] Section 40, in turn, regulates the process by which property administered in a
deceased estate is transferred to a testamentary trustee. With respect to movable
property, the executor must deliver to the trustee the property that, according to the
distribution account, is to be delivered to the trustee. With respect to immovable property,
the executor must procure the appropriate endorsement of the title deeds and deliver the
relevant deeds to the trustee.
[29] The statutory reference to the distribution account is decisive. It recognises that the
testamentary direction identifies the destination of the residue but does not remove the
property from the process of estate administration.
[30] The residue can be ascertained only after the estate's liabilities and the expenses of
administration have been dealt with. Section 35(12) similarly contemplates distribution
after the liquidation and distribution account has been open for inspection and confirmed.
[31] A testamentary beneficiary's entitlement is necessarily subject to the prior
administration of the estate. The beneficiary takes what the estate can transmit after
discharging its liabilities. Section 6(1) of the Trust Property Control Act is peremptory. A
person appointed as trustee may act in that capacity only after being authorised in writing
by the Master. But that prohibition applies only when the person concerned acts as trustee.
It does not convert an executor administering property of a deceased estate into a trustee
merely because the will directs that whatever ultimately remains of the residue be
administered in trust.
Vesting and ownership
[32] The distinction between a vested testamentary entitlement and ownership of the
property which is the subject of that entitlement is well established.
[33] In Greenberg and Others v Estate Greenberg 1955 (3) SA 361 (A), Centlivres CJ
explained that under the modern system of deceased-estate administration a legatee does
not acquire ownership of the bequeathed property immediately upon the death of the
testator. What vests is a right to claim delivery or transfer in due course. In the case of
immovable property, ownership passes only upon transfer by the executor.
[34] The significance of Greenberg for present purposes extends further. Where the
property must be realised to meet the debts of the estate, the legatee may never acquire
ownership of the property itself. The testamentary entitlement operates upon the estate
that remains available for distribution.
[35] The same conceptual distinction is reflected in Booysen and Others v Booysen and
Others 2012 (2) SA 38 (GSJ). An heir or legatee cannot vindicate property forming part of the
deceased estate merely because it has been bequeathed to him or her. Pending
completion of the administration process, the executor controls the estate, and the
beneficiary possesses a personal claim to payment, delivery or transfer in accordance with
the confirmed liquidation and distribution account.
[36] In Oberholster NO and Others v Richter [2013] 3 All SA 205 (GNP), the Full Court
likewise emphasised that a beneficiary cannot treat a bequeathed asset as already his or
her property before the liquidation and distribution process has been completed. Whether
the beneficiary ultimately receives the particular asset depends, among other things, upon
the sufficiency of the remaining estate to meet its obligations.
[37] Those principles apply with equal force where the beneficiary of the testamentary
disposition is a trust. The creation of the testamentary trust upon death and the transfer of
particular assets to the trustees are conceptually distinct events.
[38] The applicant relies upon the proposition discussed in Cameron et al, Honoré's
South African Law of Trusts, that a testamentary trust comes into existence upon the
testator's death. For present purposes that proposition may be accepted without
qualification. It does not decide the present case.
[39] The question is not when the trust exists. The question is when the particular
property ceases to be property under the executor's administration and becomes property
administered by the trustee.
[40] The distinction is fundamental. A testamentary trust may exist before every
intended asset has ultimately been transferred or delivered to its trustees. Its existence
does not divest the deceased estate of property which the executor is obliged by statute to
administer. This also explains the debate reflected in Kropman NNO v Nysschen 1999 (2)
SA 567 (T) and Jowell v Bramwell-Jones and Others 1998 (1) SA 836 (W). Whatever
theoretical formulation is adopted concerning the moment at which a testamentary trust
comes into existence, the statutory administration of the deceased estate cannot be
bypassed. The executor remains responsible for the assets pending their lawful
distribution.
Section 6(1) and the Simplex line of authority
[41] The applicant's reliance on Simplex (Pty) Ltd v Van der Merwe is misplaced. Simplex
establishes the peremptory character of s 6(1). A person appointed as trustee may not
perform juridical acts in that capacity before the Master has authorised him or her in
writing. An act undertaken as trustee in breach of that prohibition is not rescued merely by
subsequent authorisation.
[42] That principle is important and must be respected. The present case does not
require its dilution. But Simplex first requires identification of the capacity in which the
impugned act was performed. Section 6(1) cannot invalidate an act performed qua
executor simply because the executor happens also to have been nominated as trustee
under the same will. The distinction is one of legal capacity, not nomenclature.
[43] If Picard and Sage had purported, before being authorised as trustees, to alienate
property already under their administration as trustees, Simplex would squarely arise. But
that is not what occurred on the facts accepted in these proceedings. They sold property
forming part of the deceased estate while administering that estate as executors.
[44] The applicant's argument, in my view, started at the wrong juridical point. It
assumes that because the properties were destined for the Trust, every dealing with them
after death was necessarily a dealing with trust property. Reading the statutory scheme in
context, it certainly demonstrates otherwise. Until the process contemplated by s 40 of the
Administration of Estates Act has occurred, property destined ultimately for a testamentary
trust remains under the executor's administration. The trust's entitlement is to receive, in
due course, what the liquidation and distribution account lawfully allocates to it.
[45] Describing the Constantia and farm properties as 'trust assets' at that stage
confuses their intended testamentary destination with their existing proprietary and
administrative status.
The executors' power to realise the properties
[46] An executor is the legal representative of the deceased estate. The executor
assumes control of its assets, preserves them, ascertains its liabilities, prepares the
liquidation and distribution account and, after satisfaction of the statutory requirements,
distributes the net estate according to law and the will.
[47] The interests of creditors necessarily precede the interests of beneficiaries in the
distribution of the estate. A testator can determine the destination of the estate that
remains available for distribution, but cannot, by testamentary direction, exempt assets
from the lawful claims of creditors or the expenses properly incurred in administering the
estate.
[48] It follows that where the estate cannot meet its liabilities without realising an asset,
the executor is entitled — and where necessary obliged — to realise it. A beneficiary's
claim then operates upon what remains for distribution.
[49] In the present case the executors explain that the estate lacked sufficient liquidity,
and that realisation of assets was necessary to meet the expenses and liabilities of
administration and to place the testamentary scheme on a financially sustainable footing.
There is no sufficient evidential foundation upon which that explanation can be rejected.
Nor has the applicant established that the estate's liabilities could have been discharged
without realisation of the properties, or that some viable alternative arrangement was
tendered which would have preserved the properties while permitting the executors
properly to discharge their statutory duties.
[50] The will itself, moreover, confers wide powers concerning the sale and realisation of
assets. The executors' decision cannot therefore be characterized as contrary to the
testamentary scheme merely because the testatrix contemplated that the trustees might
retain the Constantia property for use by her children. The testamentary power to retain an
asset is not a testamentary command that it must invariably be retained.
[51] Accordingly, the sale of the Constantia property and the sale of the estate's one-
sixth share in the farm property were not dispositions by Picard and Sage acting as
unauthorised trustees. They were dispositions of estate property by the executors in the
course of administering the deceased estate.
[52] The challenge based on s 6(1) of the Trust Property Control Act must consequently
fail.
Removal of the executors
[53] The applicant also seeks to remove Picard and Sage from office as executors.
Section 54 of the Administration of Estates Act authorises a court, in the circumstances
contemplated by the section, to remove an executor. That power is not exercised merely
because relations between an executor and a beneficiary have deteriorated or because a
beneficiary strongly disagrees with an administrative decision.
[54] Removal of a fiduciary from an office conferred by a testator is a serious
intervention. The court's concern is not to adjudicate personalities or family
disagreements. Its concern is the proper administration and protection of the estate.
[55] As stated in Segal v Segal 1979 (1) SA 503 (C), removal is a drastic remedy and is not
granted lightly. The authorities similarly recognised that not every error, disagreement or
failure in administration justifies removal. The relevant inquiry is directed to whether the
executor's conduct demonstrates dishonesty, want of fidelity, incapacity, gross inefficiency
or some other circumstance from which the court can reasonably conclude that
continuation in office imperils the proper administration of the estate.
[56] In Brand v D.B and Another (A106/25; 13157/2024) [2026] ZAWCHC 216 at paras 34-
44, the predominating consideration was identified as the interests of the estate and its
beneficiaries. That formulation appropriately directs attention away from personal
antagonism and toward the future administration of the estate. Brand likewise shows that a
breakdown in relations between an executor and an heir does not, by itself, establish a
case for removal. If disagreement alone were sufficient, a beneficiary could effectively
procure the replacement of a properly functioning executor simply by making cooperation
impossible.
[57] The applicant's principal complaint against Picard and Sage is that they decided to
sell the two properties. I have found that the premise underlying that complaint — namely,
that they unlawfully disposed of trust property — is unsustainable. There is no adequate
evidence that either executor has been dishonest, grossly inefficient or unfaithful to the
office, or that their continued administration poses a material risk of loss to the estate.
[58] The threshold for judicial removal has accordingly not been established.
Removal of the trustees
[59] Section 20(1) of the Trust Property Control Act governs removal of trustees. The
court may remove a trustee where satisfied that removal will be in the interests of the trust
and its beneficiaries. The inquiry is objective. Misconduct or mala fides is not invariably a
prerequisite. As Tijmstra NO v Blunt-MacKenzie NO and Others 2002 (1) SA 459 (T) makes
clear, the power exists to protect the trust and its beneficiaries and must be exercised with
circumspection.
[60] The question is whether the trustee's continued office is likely to prevent the trust
from being properly administered or otherwise operate to the beneficiaries' detriment.
[61] The applicant's case for removing the trustees largely repeats her complaints about
the sale of the properties. Those complaints do not establish that Picard and Sage are
incapable of administering the Trust, that they have acted dishonestly in relation to it, or
that their continued trusteeship threatens the interests of the Trust or its beneficiaries.
[62] There is another consideration. They were the testatrix's chosen fiduciaries.
Testamentary choice is not immune from judicial supervision, and a court will intervene
when the statutory standard for removal is met. But the testatrix's deliberate choice is
nevertheless a matter of weight. It should not be displaced in the absence of a proper
factual basis showing that the interests of the trust and its beneficiaries require it. No such
basis has been established. The application to remove them as trustees must therefore
also fail.
The eviction application
[63] Turning to the PIE application. The applicant's opposition to eviction depends
principally upon two propositions: first, that the sale of the Constantia property was
invalid; and secondly, that the will gives her a right to remain in occupation. The first
proposition fails for the reasons already given.
[64] The second depends upon the proper interpretation of the will. Clause V(b)
empowers the trustees to make tangible assets available for the use of the testatrix's
children and contemplates that the home may be retained for their free use.
[65] But the provision is framed as a discretionary power. It does not grant each child a
personal right of habitatio or an unconditional right to occupy the Constantia property for
life. That distinction is important. A beneficiary cannot convert a discretionary power
conferred on the trustees into a vested right by insisting that the discretion be exercised in
a particular manner.
[66] Once the executors lawfully determined that the property should be sold, the
applicant had no independent right under the will to defeat that decision by remaining
indefinitely in occupation. Her continued occupation is therefore without lawful authority
to possess the property. That conclusion does not, by itself, conclude with the PIE inquiry.
PIE requires a court to determine whether eviction is just and equitable, having regard to all
relevant circumstances.
[67] On the papers before me, I am satisfied that the requirements for eviction have been
established. Ruth Linda Sage no longer opposes the relief. As to the applicant, insufficient
evidence shows that eviction will render her homeless or expose her to circumstances that
would make eviction unjust or inequitable.
[68] At the same time, an order for immediate eviction would not appropriately recognise
the personal and familial circumstances in which the occupation arose. The applicant did
not enter the property as a stranger or ordinary commercial occupier. The property was her
late mother's home, and the will itself contemplated the possibility that the children might
be permitted to use it. Those circumstances do not create a right of indefinite occupation,
but they are relevant to the period which should be afforded for relocation.
[69] A period of approximately two months from the date of this judgment provides a fair
accommodation among the applicant's circumstances, the requirements of the estate's
administration, and the purchaser's entitlement to vacant possession.
[70] It is accordingly just and equitable that the applicant and any person occupying
through her vacate the property by 18 October 2026, failing which the Sheriff may evict on
19 October 2026.
Costs ----
[71] Ordinarily, successful parties are entitled to their costs. But the rule that costs
follow the result is not inflexible. Costs remain within the court's judicial discretion and are
exercised in light of the circumstances of the litigation. These proceedings arose during the
administration of a family estate and escalated into an acrimonious dispute among siblings
and fiduciaries chosen by the deceased. The litigation has plainly deepened an already
fractured relationship.
[72] That consideration does not excuse unsuccessful litigation. Nor should a costs
order be withheld merely to spare a litigant the ordinary financial consequences of failure.
However, a genuine legal issue underlies the dispute concerning the interface between the
administration of a deceased estate and the operation of a testamentary trust. The
applicant's case ultimately fails because it fails to maintain the necessary distinction
between the vesting of a testamentary entitlement and the administration and transfer of
the underlying estate property.
[73] In the particular circumstances of this family dispute, and having regard to the
nature of the issues and the interests of finality, I consider it appropriate that each party
bear their own costs in both applications.
[74] It follows that the relief sought by the Applicant in Case No: 2026-005605 is
dismissed. The relief sought by the Applicants in Case No: 2025-091366 succeeds.
[75] In the result, the following order is made:
1. The Respondents’ application to strike out paragraphs 5 to 24 of the Applicant's
replying affidavit is granted.
2. The application to set aside the sale agreement concluded on 23 January 2025 in
respect of Erf 6[...], Constantia, Cape Town ("the House") is dismissed.
3. The application to set aside the sale of the sixth share in Portion 27 of the Farm
Bosjemansdrift No. 174, Bonnievale ("the Farm") is dismissed.
4. The application for the removal of Robert Jan Picard and David Jack Sage as
executors of the Estate Late Vera Sage is dismissed.
5. The application for the removal of Robert Jan Picard and David Jack Sage as trustees
of the Vera Sage Testamentary Trust is dismissed.
6. ETHEL PRUDENCE SAGE, the First Respondent, and RUTH LINDA SAGE, the Second
Respondent, in case no: (Case No. 2025-091366), are declared to be unlawful
occupiers of Erf 6[...], Constantia, and must vacate the property by no later than 18
October 2026, failing which the Sheriff of this court shall evict them and all other
persons who unlawfully occupies the property under their name(s) on 19 October
2026.
7. Costs: Each party to bear its own costs in both matters.
___________________
Le Grange, ADJP