Botha and Others v Ruthven and Others [2023] ZAGPPHC 159; 29145/2021 (8 March 2023)

Botha and Others v Ruthven and Others [2023] ZAGPPHC 159; 29145/2021 (8 March 2023)

The Court found that the three resolutions adopted by the second respondent as sole trustee were not in the interests of the Trust or its beneficiaries. The second respondent acted in a conflicted manner, prioritising his personal interests over those of the Trust, particularly regarding the farm asset and indemnity for legal costs. The Trust deed did not prohibit the appointment of new trustees, and the applicants, as beneficiaries and executor, had standing to seek removal. The indemnity for legal costs was binding on the estate of the late Stephanus Botha jnr. The resolutions to terminate the Trust, withdraw litigation, and revoke the attorney's mandate were declared illegal, invalid,...

Citation
[2023] ZAGPPHC 159
Parties
Applicant: Anja Botha; Applicant: Joey Botha; Applicant: Sarel Johannes Petrus Roux N.O.; Respondent: Stephanus Ruthven; Respondent: Stephanus Ruthven N.O.; Respondent: Charles Botha N.O.; Respondent: Nadine Botha N.O.; Respondent: Charmoné Botha N.O.; Respondent: Charlotte Prinsloo N.O.; Respondent: ABSA Bank Ltd; Respondent: The Master of the High Court, Gauteng Division, Pretoria; Respondent: The Registrar of Deeds, Mbombela
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 March 2023
Case Number
29145/2021
Procedural Posture
Review Application / Judgment
Outcome
Application granted. The three resolutions are declared illegal, invalid, and set aside. The second respondent is removed as trustee. Costs awarded against the second respondent on an attorney and client scale, de bonis propriis.
Judges
Noko AJ
Legal Topics
Trust Property Control Act, Removal of Trustee, Declaratory Relief, Conflict of Interest, Resolution Validity, Fiduciary Duties
Land and Property Civil Procedure Commercial and Corporate Trust Property Control Act Removal of Trustee Declaratory Relief Conflict of Interest Resolution Validity +1 more

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Parties

Anja Botha

Applicant

Joey Botha

Applicant

Sarel Johannes Petrus Roux N.O.

Applicant

Stephanus Ruthven

Respondent

Stephanus Ruthven N.O.

Respondent

Charles Botha N.O.

Respondent

Nadine Botha N.O.

Respondent

Charmoné Botha N.O.

Respondent

Charlotte Prinsloo N.O.

Respondent

ABSA Bank Ltd

Respondent

The Master of the High Court, Gauteng Division, Pretoria

Respondent

The Registrar of Deeds, Mbombela

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the three resolutions adopted by the second respondent as sole trustee of the Botha Ruthven Family Will Trust were legal, valid, and enforceable.
  2. 2 Whether the second respondent should be removed as trustee of the Botha Ruthven Family Will Trust.
  3. 3 Whether the indemnity for legal costs given to the second respondent is binding on the estate of the late Stephanus Botha jnr.

Ratio Decidendi

The Court found that the three resolutions adopted by the second respondent as sole trustee were not in the interests of the Trust or its beneficiaries. The second respondent acted in a conflicted manner, prioritising his personal interests over those of the Trust, particularly regarding the farm asset and indemnity for legal costs. The Trust deed did not prohibit the appointment of new trustees, and the applicants, as beneficiaries and executor, had standing to seek removal. The indemnity for legal costs was binding on the estate of the late Stephanus Botha jnr. The resolutions to terminate the Trust, withdraw litigation, and revoke the attorney's mandate were declared illegal, invalid,...

Court Disposition

Application granted. The three resolutions are declared illegal, invalid, and set aside. The second respondent is removed as trustee. Costs awarded against the second respondent on an attorney and client scale, de bonis propriis.

Orders

  • The three resolutions adopted by the second respondent on 25 June 2018 to terminate Botha Ruthven Trust, withdraw the legal action pending at the Mpumalanga High Court, and terminate the mandate granted to Gerhard Botha Attorneys are declared illegal, invalid, and are set aside.
  • The second respondent is removed as a Trustee of the Botha Ruthven Family Will Trust (IT11143/2002), and the Master of the High Court is authorised to appoint a Trustee or Trustees in terms of the Trust Property Control Act.