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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION)
Reportable
Case No: 2026/143013
In the matter between:
KAREN TANYA BERKOWITZ First Applicant
CRAIG ANTON ZIMAN Second Applicant
SARA SASHA BERKOWITZ Third Applicant
PENINA TZIPPORA BERKOWITZ Fourth Applicant
RACHEL CHAVA TEEGER Fifth Applicant
ARYEH LEIB BERKOWITZ Sixth Applicant
and
DANETTE KOTZE NO First Respondent
In her capacity as trustee for the time being of
The Douglas Ziman Trust (I[...])
WILHELM KRUGER Second Respondent
LOURÉZ SWART Third Respondent
JACO PIETER ODENDAAL Fourth Respondent
ANTHONY BRUCE ZIMAN Fifth Respondent
THE MASTER OF THE HIGH COURT Sixth Respondent
Coram: Norton AJ
Heard: 30 July 2026
Order granted: 6 August 2026
Delivered: 21 August 2026 (electronically)
ORDER
1 The applicants’ non-compliance with the forms, time periods and
service requirements in the Uniform Rules of Court is condoned
and the matter is heard as one of urgency.
2 The application under Part A of the applicants’ notice of motion is
dismissed.
3 The costs of the application under Part A are to be paid by the
applicants, jointly and severally, the one paying the other to be
absolved, such costs to include the costs of one counsel on scale C.
REASONS
Norton AJ
[1] The applicants are beneficiaries of the Douglas Ziman Trust (the
Trust). On 22 June 2026 they instituted an application for an interim
interdict restraining the Master of this Court from authorising the second ,
third and fourth respondents to act as trustees of the Trust pending the final
determination of a separate application for an order appointing the first and
second applicants as trustees of the Trust in the place of the second , third
and fourth respondents.
[2] The application was opposed by the first respondent, Ms Danette
Kotze, who was cited in her capacity as the ‘sole trustee’ of the Trust. The
second, third, fourth and sixth respondents gave notice that they would abide
the decision of the Court.
[3] The matter came before me on the urgent roll on 30 July 2026 . On 6
August 2026 I handed down an order dismissing the application and
indicated that my reasons would follow. These are my reasons.
Background
[4] The founder of the Trust, Mr Douglas Ziman, died on 11 February
2026. At that time, there were three trustees of the Trust: Mr Ziman himself,
Ms Danette Kotze, and Cluver Markotter Inc, a firm of attorneys represented
by Ms Sisteen Geyser . Mr Ziman, Ms Kotze and Ms Geyser had been the
trustees of the Trust since 19 June 2017 , with independent trustees (Ms
Kotze and Ms Geyser) being in the majority.
[5] The Trust Deed contains the following key provisions.
[6] Clause 5.2 provides:
(a) There shall at all times be a minimum of three trustees in office,
of which one shall be an independent trustee, with ‘independent
trustee’ defined in clause 2.5 of the Trust Deed as ‘a person
who is not a relative of any of the trustees or any of the
beneficiaries as defined in the trust deed’ and ‘relative’ defined
in clause 2.6 as ‘the spouse of such person or anybody related
to him or his spouse within the third degree of consanguinity, or
any spouse of anybody so related.’
(b) If there are fewer than two trustees as a result of the death or
termination of office of a co -trustee, ‘the remaining trustee (s)
will be authorised to exercise all the powers of trustees for the
maintenance and administration of the trust property until such
time as another trustee (s) has been appointed, which
appointment the trustee(s) so in office shall make within ninety
(90) days of the death or termination of office of his co-trustee’.
(c) While fewer than two trustees are in office ‘he/they shall not be
entitled to pass a valid resolution for the distribution and
allocation of income or capital or for the variation of the trust
deed’.
[7] Clause 5.3 empowered Mr Ziman, in his will , to appoint a trustee or
trustees of his choice to succeed him on his death.
[8] Clause 5.4 provides that ‘the trustees shall be entitled under a written
instrument to appoint a new trustee or trustees, and such power shall extend
to the appointment of one or more additional trustee or trustees, and also the
appointment of a new trustee or trustees in the place of any trustee or
trustees dying or vacating office in terms of this paragraph’ and goes on to
provide that ‘[i]n the absence of any powers of appointment being exercised
in terms of this paragraph, the beneficiaries assisted by their guardians if
necessary, shall be entitled to appoint the substitution trustee’.
[9] Clause 6.41 of the Trust Deed provides for the exercise of a trustee’s
powers and discretion in matters where the trustee may have a personal
interest:
‘Any trustee hereof may exercise or concur in exercising all power and
discretions hereby or by law given to him notwithstanding that he may have
a direct or other personal interest in the mode or result of exercising any
such powers or discretion, but any trustee may nevertheless if he so wishes,
but shall be under no obligation to do so, abstain from acting, except as a
merely formal party in any matter in which he may be so personally
interested, and may allow his co -trustees or co -trustee to act alone in the
exercise of the powers and discretion aforesaid in relation to such matter.
Each trustee shall however be obliged to disclose beforehand the nature and
extent of his interest when exercising any power or discretion in such a
matter.’
[10] Shortly after the death of Mr Ziman, and in circumstances where Mr
Ziman had not in his will nominated anyone to succeed him as trustee, a
dispute arose between the applicants and the remaining trustees regarding
the appointment of a successor. The key protagonists among the applicants
were the first applicant, Ms Karen Berkowitz, and the second applicant, Mr
Craig Ziman, the children of the deceased. I shall refer to them as ‘the main
applicants’.
[11] On 25 February 2026 Ms Geyser wrote to the main applicants
advising them that the Trust Deed required a minimum number of three
trustees and that the remaining trustees – she and Ms Kotze – were
considering the appointment of an independent trustee to fill the position
vacated by the deceased.
[12] The main applicants responded to Ms Geyser the next day, stating that
they saw no basis for the appointment of a further independent trustee while
Ms Geyser remained as a trustee , and considered it appropriate that they be
appointed as trustees in the place of their late father. They requested Ms
Geyser to initiate the necessary steps without delay.
[13] On 12 March 2026 Ms Geyser advised the main applicants that the
remaining trustees had considered their request to be appointed as trustees
and intended to appoint them in addition to a suitably qualified independent
trustee. The remaining trustees were of the view that the Trust would benefit
from a trustee with professional experience in the administration of
property-holding trusts and commercial property transactions . They would
accordingly appoint Mr Wilhelm Kruger, an independent attorney with the
necessary local and commercial background , as a trustee. Ms Geyser
requested the main applicants to provide specific documents and information
that were required to prepare the necessary documents for their appointment
as trustees.
[14] Ms Geyser’s letter elicited two notable communications from the
main applicants on 16 March 2026.
[15] In a letter to Ms Geyser and Ms Kotze, the main applicants made far-
reaching accusations against them , casting aspersions on their characters
and, in the case of Ms Geyser, her professional ethics. Ms Geyser and Ms
Kotze were accused of attempting to restructure the governance of the Trust
for their own gain, and of giving advice to the deceased on the restructuring
of his affairs which now empowered them to derive ongoing professional
and financial benefit from the continued administration of the trust.
[16] The main applicants raised a particular concern in respect of a
provision in the deceased’s will in terms of which the bulk of the deceased’s
estate was bequeathed to the Trust on the condition, among others, that if the
Trust’s immovable properties were sold, Ms Kotze was to receive a cash
amount of either R7 million or R10 million, depending on the proceeds of
the sales. This bequest, the main applicants said, created a substantial
personal financial interest for Ms Kotze in decisions taken by the Trust in
respect of the Trust’s property.
[17] The main applicants demanded, within five days, a significant volume
of information and documents relating to the Trust’s business going back ten
years. They concluded by requiring written confirmation , within 24 hours ,
that, first, they would be appointed as additional trustees, and second, that no
further trustee would be appointed without their agreement.
[18] This demand was buttressed with a threat that if the confirmation they
sought was not provided , the main applicants reserved their rights not only
to institute urgent High Court proceedings relating to the administration of
the Trust (and to seek costs on a punitive scale against the ‘responsible
trustees’ personally) but also to lodge complaints (evidently in relation to Ms
Geyser) with the Legal Practice Council.
[19] On the same date, the main applicants wrote an email to Mr Kruger
under the subject heading ‘Urgent – Warning regarding proposed
appointment as trustee of the Douglas Ziman Trust’. The y advised Mr
Kruger t o decline his appointment as a trustee of the Trust and demand ed
that he confirm in writing within 24 hours that he would not accept any
appointment. Among other derogatory comments about Ms Kotze and Ms
Geyser, Mr Kruger was ‘warned’ that he ‘was being invited to join a cabal of
two trustees who are in clear conflict of interest and who are attempting to
hijack a family trust for their personal enrichment’.
[20] Mr Kruger was warned that if he accepted appointment as a trustee the
applicants would ‘immediately refer the entire matter, including your
involvement, to the Legal Practice Council (Western Cape) for investigation
of professional misconduct and breach of fiduciary duty by all three of you’
and would also bring urgent High Court proceedings seeking his removal
and punitive costs against him.
[21] On 18 March 2026 Ms Geyser wrote to the main applicants
responding in detail to their various concerns and allegations. She confirmed
that she and Ms Kotze had decided to appoint the m, as well as an
independent professionally experience d person, as trustees . However, she
advised that in order for new trustees to be appointed , a resolution by the
trustees, a certified copy of the death certificate and the appointment
documents for the new trustees had to be submitted to the Master's office. In
order to appoint the main applicants, the trustees still needed the ir
information to be able to finalise the appointment documents for submission
to the Master.
[22] On the same day Ms Geyser tendered her resignation as a trustee of
the Trust. In her letter of resignation she advised that the firm of attorneys
that she represented would not be nominating another person to serve as
trustee in her stead.
[23] On 24 March 2026 Mr Kruger wrote to the main applicants placing on
record that he denied all the ir ‘unfounded and unsubstantiated allegations ’
and confirming that he had accepted appointment as a trustee of the Trust.
[24] On 17 April 2026 Ms Kotze appointed the third and fourth
respondents (an attorney and a chartered accountant, respectively) as trustees
and submitted the necessary documentation for their authorization, along
with that of Mr Kruger, to the Master. This included ‘Acceptance of
Trusteeship by Trustee’ forms completed and signed by the second, third
and fourth respondents.
[25] On 7 May 2026 the applicants ’ attorneys sent a letter to Ms Kotze’s
attorney requiring, somewhat contradictorily, (i) Ms Kotze’s resignation as a
trustee on the ground that the bequest made to her by the deceased resulted
in a conflict between her personal interests and the interests of the
beneficiaries; and (ii) that Ms Kotze advance the appointment of the main
applicants as trustees. An undertaking was given to provide Ms Kotze with
the name and contact details of a proposed independent trustee in due
course.
[26] This letter too concluded with a threat : if agreement was not reached
regarding the appointment of new trustees and the timing of Ms Kotze’s
resignation as a trustee, the applicants would approach the High Court to
obtain an order for Ms Kotze’s removal as a trustee and the appointment of
the main applicants and a further independent trustee. Ms Kotze was warned
that her legal fees in proceedings for her removal could not be paid from the
Trust’s assets.
[27] In a response dated 13 May 2026 Ms Kotze’s attorney advised, among
other things , that Ms Kotze had obtained legal advice regarding the
provisions of the deceased’s will and undertook to recuse herself from any
future decision of the Trust relating to the acceptance or repudiation of the
bequest made to the Trust.
[28] In a letter dated 3 June 2026 the applicants’ attorneys advised the
Master t hat they held instructions to approach the High Court to seek an
order appointing the main applicants as trustees, together with an
independent trustee to be nominated by the Master, and intended to seek
urgent interdictory relief in respect of the authorisation of the second to
fourth respondents if the Master did not provide an undertaking not to
proceed with such authorisation.
[29] On 22 June 2026 the applicants instituted an application in two parts.
Under Part A they sought, as a matter of urgency, an order interdicting the
Master from authorising the second to fourth respondents to act as trustees
pending the final determination of the relief sought under Part B. Under Part
B the applicants sought an order that the main applicants be appointed as
trustees of the Trust ‘in the stead of ’ the second to fourth respondents. They
subsequently amended Part B to add a prayer for an order setting aside the
first respondent’s appointment of the second to fourth respondents as
trustees of the Trust.
Urgency
[30] I accept ed that the matter was urgent in circumstances where the
Master might imminently authorise the second to fourth respondents to act
as trustees of the Trust.
Interim interdict
[31] An applicant for an interim interdict must show the following:
(a) that the right that is the subject matter of the main action and
which they seek to protect by means of interim relief is clear or,
if not clear, is prima facie established, though open to some
doubt;
(b) that, if the right is only prima facie established, there is a well-
grounded apprehension of irreparable harm to the applicant if the
interim relief is not granted and they ultimately succeed in
establishing their right;
(c) that the balance of convenience favours the granting of interim
relief; and
(d) that the applicant has no other satisfactory remedy.
(LF Boshoff Investments (Pty) Ltd v Cape Town Municipality ; Cape
Town Municipality v LF Boshoff Investments (Pty) Ltd 1969 (2) SA
256 (C) at 267A-F).
[32] An applicant relying on a prima facie right must show prospects of
success in the main proceedings. The strength or weakness of those
prospects will be pertinent in the court’s holistic consideration of all the
requirements, where strong prospects of success may compensate for a less
favourable balance of convenience, and vice versa. Holmes J, as he then
was, explained this approach in Olympic Passenger Service (Pty) Ltd v
Ramlagan 1957 (2) SA 382 (D) at 383D-G:
‘It thus appears that where the applicant's right is clear, and the other
requisites are present, no difficulty presents itself about granting an
interdict. At the other end of the scale, where his prospects of ultimate
success are nil, obviously the Court will refuse an interdict. Between those
two extremes fall the intermediate cases in which, on the papers as a whole,
the applicants' prospects of ultimate success may range all the way from
strong to weak. The expression "prima facie established though open to
some doubt" seems to be a brilliantly apt classification of these cases. In
such cases, upon proof of a well -grounded apprehension of irreparable
harm, and there being no adequate ordinary remedy, the Court may grant an
interdict - it has a discretion, to be exercised judicially upon a consideration
of all the facts. Usually this will resolve itself into a nice consideration of
the prospects of success and the balance of convenience - the stronger the
prospects of success, the less need for such balance to favour the applicant:
the weaker the prospects of success, the greater the need for the balance of
convenience to favour him. I need hardly add that by a balance of
convenience is meant the prejudice to the applicant if the interdict be
refused, weighed against the prejudice to the respondent if it be granted.'
[33] This dictum was cited with approval by Holmes JA (as he had then
become) in Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and
Another 1973 (3) SA 685 (A) at 691D-G and thereafter followed in Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
1995 (2) SA 813 (W) and approved by the Constitutional Court in South
African Informal Traders Forum and Others v City of Johannesburg and
Others 2014 (4) SA 371 (CC) para 25 footnote 24.
[34] In Ferreira Heher J held for the majority that Eriksen, read with its
approval of Olympic, authoritatively established the following approach to
the requirements for an interim interdict:
‘1. A prima facie right though open to some doubt exists when there is a
prospect of success in the claim for the principal relief albeit that such
prospect may be assessed as weak by the Judge hearing the interim
application.
2. Provided that there is a prospect of success, there is no further threshold
which must be crossed before proceeding to a consideration of the other
elements of an interim interdict.
3. The strength of one element may make up for the frailty of another.
4. The process of measuring each element requires a holistic approach to
the affidavits in the case, examining and balancing the facts and coming to
such conclusion as one may as to the probabilities where disputes exist. ’
(Ferreira at 832D – 833C).
The right relied on by the applicants
[35] The applicants assert a ‘clear right’ to the relief that they seek in Part
B of their notice of motion.
[36] They do so on the ground that a decision has already been made to
appoint the main applicants as trustees . Ms Berkowitz says in the founding
affidavit: ‘As the then trustees have already made the decision to appoint us,
we therefore state that we have a clear right to the ultimate relief we seek’.
[37] The assertion is flawed in several key respects.
[38] The right that the applicants must establish is not only that the main
applicants should be appointed as trustees, but that they should be appointed
in the place of the second to fourth respondents . The applicants will ask the
Court, in Part B of their application, to advance the applicants’ accession to
trusteeship and to thwart the accession of the second to fourth respondents
by setting aside their appointment . They must establish their entitlement to
both aspects of that relief.
[39] In respect of each aspect the case that the applicants have advanced
fails to take account of the legal nature of , and the requirements for,
accession to trusteeship.
[40] The conditions that must be fulfilled for ‘proper accession to the
office of trustee’, as set out in Fesi v Ndabeni Communal Property Trust
[2018] 2 All SA 617 (SCA) para 56, are as follows:
‘(i) appointment in a lawful manner;
(ii) proper qualification on the part of the trustee;
(iii) acceptance of the office; and
(iv) written authorization by the Master.’
[41] If the first three conditions are met, the appointee becomes a trustee
but requires the authorisation of the Master in order to act as a trustee . The
distinction is delineated in Cameron et al Honore’s South African Law of
Trusts 6th Ed § 131 at 249:
‘A trustee who is properly designated, qualified and has accepted office
thereby becomes a trustee. Subject to the statutory requirement of
authorisation, the trustee requires no further official authority in order to
perform the duties and exercise the powers of office.’
[42] This is the case notwithstanding the definition of a ‘trustee’ in the
Trust Property Control Act 57 of 1998 (the Act) as ‘any person … who acts
as trustee by virtue of an authorisation under section 6’. As explained in
Honore’s South African Law of Trusts § 110 at 206:
‘Despite the statutory formulation, it is clear that a trustee’s appointment
derives from the trust instrument itself, and not from the Master’s
authorisation, and that the authority of the trustees derives from the terms
of the trust deed … This is because the office of trustee is created by the
trust instrument and not by the Master or even the court in filling it.’
[43] In Metequity Ltd and Another v NWN Properties Ltd and Others 1998
(2) SA 554 (T) at 557H Van Dijkhorst J explained the relationship between
the Trust Deed, as the source of a trustee’s appointment, and section 6(1) of
the Act, as the source of a trustee’s authorisation to act:
‘The office of trustee is … created by the trust instrument and filled thereby
or by the Master or by the court. The Trust Property Control Act, however,
as a regulatory and control measure, provides in s 6 that such existing
trustee shall not act without authorisation by the Master’. (Emphasis
added.) (See also Lupacchini NO and Another v Minister of Safety and
Security 2010 (6) SA 457 (SCA) para 3)
[44] On the papers before me, the second to fourth respondents have been
appointed in accordance with the Trust Deed . The second respondent was
appointed by Ms Geyser and Ms Kotze to fill the position vacated by Mr
Ziman in accordance with the powers conferred on them by clause 5.4 of the
Trust Deed. The third and fourth respondents were appointed by Ms Kotze
in accordance with the same powers. It appears that one of them must have
been appointed to fill the position vacated by Ms Geyser and the other as an
‘additional trustee’. The second to fourth respondents have, in their
completed ‘Acceptance of Trusteeship by Trustee’ forms , accepted the
office of trustee and provided the information that confirms th at they are
qualified to act as trustees . They have become trustees and require only the
Master’s authorization to carry out their duties as trustees.
[45] The applicants, on the other hand, have not even satisfied the
prerequisites for authorisation by the Master. Even if it is accepted that they
were lawfully appointed by Ms Geyser and Ms Kotze (in accordance with
the intention conveyed by Ms Geyser in her letters of 12 March 2026 and 18
March 2026 ), there is no evidence on the papers that they accepted that
appointment. On the contrary, they communicated a clear intention not to
accept appointment unless the remaining trustees undertook not to appoint
any further trustees. Even on the papers in this application the applicants
premise the appointment of the main applicants on the setting aside of the
appointment of the second to fourth respondents. The main applicants have
also not provided the information and documents repeatedly requested of
them to confirm that they are qualified to act as trustees.
[46] The courts have a wide common law jurisdiction to intervene in trusts
and to appoint trustees, notwithstanding the prominence that the Act accords
the Master in the appointment of trustees ‘if the office of trustee cannot be
filled or becomes vacant’ (section 7(1) of the Act). Courts will exercise this
jurisdiction to ensure that the objects of the trust may b e fulfilled (Honore’s
South African Law of Trusts § 122 at 233).
[47] That will usually be the case where the trust ’s appointment
mechanism has failed, as when the trust instrument fails to provide for the
appointment of substituting trustees or the existing trustees do not agree on
the person to be appointed in terms of the trust instrument. A court will step
in to ensure that the trust does not ‘fail for want of a trustee’ ( Honore’s
South African Law of Trusts, § 122 at 232-233; Land and Agricultural Bank
of South Africa v Parker and Others 2005 (2) SA 77 (SCA) para 12).
[48] That is not the case here. The Trust Deed makes careful provision for
the mechanisms by which trustees are to be appointed. The second to fourth
respondents have been appointed in accordance with the Trust Deed , have
become trustees, and are awaiting authorisation by the Master. The re is no
suggestion that they would not comply with their duties as trustees . The
applicants have laid no basis for any right to the setting aside of the valid
appointments of the second to fourth respondents.
[49] In my view the applicants have, at best for them, a weak prospect of
succeeding on th e main ground that they have advanced, that is, that the
main applicants have already been appointed as trustees.
[50] The applicants put up an alternative ground for the right that they
must establish: t hat the trustee /s failed to appoint substituting trustees (i )
within ninety days of the death of Mr Ziman and (ii) within ninety days of
the resignation of Ms Geyser, as they were required to do under clause 5.2 of
the Trust Deed, and that the beneficiaries are now entitled to make those
appointments in terms of clause 5.4 of the Trust Deed.
[51] The applicants in my view have no prospect of succeeding on this
ground. Clause 5.2 of the Trust Deed required an appointment to be made in
respect of the position vacated by Mr Ziman by no later tha n 11 May 202 6
and in respect of the position vacated by Ms Geyser by no later than 18 June
2026. Appointments in respect of both vacancies were made, at the latest, by
17 April 2026, when the second to fourth respondents’ ‘Acceptance of
Trusteeship by Trustee’ forms were completed, signed, and submitted to the
Master.
The other requirements
[52] On the view that I have taken , that the applicants on the papers before
me have at best a weak prospect of succeeding in the main application, that
prospect must be considered in relation to a balance of convenience that in
my view clearly favours the first respondent.
[53] The applicants identify two kinds of irreparable harm that they
apprehend they will suffer if the interim interdict is not granted.
[54] The first is the harm that they say will be suffered by the beneficiaries
if they are not represented on the Trust , specifically when the trustees take
material decisions such as whether to accept or repudiate the bequest that Mr
Ziman made to the Trust conditional upon a cash payment being made to Ms
Kotze upon sale of the Trust’s immovable properties.
[55] However, Ms Kotze has undertaken not to participate in decisions of
the Trust in respect of the bequest (albeit that clause 6.42 of the Trust Deed
permits her to do so) and the applicants advance no reason why the second
to fourth respondents, all independent professional trustees , would not
decide such issues with the care, diligence and skill that section 9(1) of the
Act requires of them, in the best interests of the Trust and the beneficiaries .
There is no evident advantage that would result from having beneficiaries ,
rather than the second to fourth respondents, acting as trustees. Cameron JA,
as he then was, observed in Land and Agricultural Bank of South Africa v
Parker and Others 2005 (2) SA 77 (SCA) para 19:
‘The core idea of the trust is the separation of ownership (or control) from
enjoyment. Though a trustee can also be a beneficiary, the central notion is
that the person entrusted with control exercises it on behalf of and in the
interests of another.’
[56] The second category of harm identified by the applicants is the
financial impact on the Trust if the second to fourth respondents are
authorised to act as trustees . The applicants contend that the Trust will have
to bear the expense of ‘three professionals getting to grips with the business
of the Trust’ and this is an ‘unnecessary and unjustifiable expense’ that will
be to the prejudice of the Trust and the beneficiaries. In their replying
affidavit the applicants speculate that the annual cost of three professional
trustees could amount to R504 000, based on each professional trustee
devoting four hours a month to Trust affairs at a rate of R3 500 per hour.
The impact that the additional cost will have on the financial position of the
Trust is not however addressed in the papers.
[57] It is so that with the appointment of the second to fourth respondents
the Trust will bear the cost of three professional trustees, whereas the
position before 11 February 2026 was that it bore the cost of only one
professional trustee.
[58] However, if the additional cost to be borne by the Trust is set against
the harm to the Trust if the second to fourth respondents are not authorised
to act as trustees until the final determination of the application under Part
A, the balance of convenience strongly favours the first respondent.
[59] The final determination of the application under Part B could be a
long way off. Even if the application is heard expeditiously, an appeal
against the outcome could result in the status quo being extended for months
or even years. In the meanwhile, if the interim interdict were granted, the
Trust would continue to operate (as it has since 18 March 2026) with only
one trustee authorised to act as a trustee , in circumstances where the Trust
Deed requires a minimum of three trustees in office at all times and
envisages a maximum 90-day interval between the death or termination of
office of a trustee and the appointment of a new trustee.
[60] Most importantly, the Trust Deed limits the powers that a single
trustee can exercise. Clause 5.2 provides that while there are less than two
trustees in office (which in its context must be construed as meaning less
than two trustees authorised to act as such) , the trustee ‘shall not be entitled
to pass a valid resolution for the distribution and allocation of income or
capital or for the variation of the trust deed ’. The applicants themselves, in
contending for an urgent hearing of this application, acknowledged the harm
to the Trust in their founding affidavit:
‘The Trust is in effect, currently handicapped by the fact that it has only one
authorised trustee and lacks the capacity to act (save in very narrow
circumstances). Not only does this have a material impact on the day to day
running of the Trust and its business, but also the interests of the
beneficiaries who cannot receive any income while the Trust is so
impeded.’
[61] I accept that there were no alternative means by which the applicants
could have sought an urgent intervention to prevent the Master from
authorising the second to fourth respondents to act as trustees. However, I
find that on a conspectus of all the considerations, the applicants’ weak
prospects of success and the balance of convenience that is strongly against
them warrant the refusal of an interim interdict.
Conclusion and costs
[62] I concluded that the application under Part A should be dismissed and
that it was appropriate that the applicants should be ordered to pay the costs
of the application.
_________________________
ML NORTON
ACTING JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION
Appearances
For the applicant: BC Wharton
Instructed by: Greenberg & Associates
Cape Town
For the respondent: HN De Wet
Instructed by: Marieke van Rooyen Attorneys
Stellenbosch
c/o Chris Fick & Associates Inc.
Cape Town