Bouwer NO and Another v Smit NO and Others (59423/2015) [2019] ZAGPPHC 264 (5 June 2019)

Bouwer NO and Another v Smit NO and Others (59423/2015) [2019] ZAGPPHC 264 (5 June 2019)

The court found that First Applicant lacked locus standi to seek removal of trustees, as he had no direct interest in the trust property or its administration. However, Second Applicant, as a beneficiary, was entitled to bring the application. The allegations of dysfunction and mismanagement were not substantiated; meetings were held, financial statements and tax returns were prepared, and no assets were shown to be missing. The breakdown in relations among siblings did not, in itself, justify removal of Fifth Respondent, as there was no evidence that his conduct endangered the trust or prevented its proper execution. The trust deed required three trustees; given the agreement to dissolve...

Citation
[2019] ZAGPPHC 264
Parties
Applicant: Willem Francois Bouwer N.O.; Applicant: Christoffel Frederick Viljoen; Respondent: Catherina Johanna Smit N.O.; Respondent: Johannes Adriaan Viljoen N.O.; Respondent: Willem Christiaan Voljoen N.O.; Respondent: Albertus Abraham Viljoen N.O.; Respondent: Abraham Carel Viljoen N.O.; Respondent: Petrus Jacobus Viljoen; Respondent: Danie Barnard N.O.; Respondent: Master of the North Gauteng High Court, Pretoria; Respondent: Abraham Carel Viljoen
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 June 2019
Case Number
59423/2015
Procedural Posture
Urgent Application / Judgment on Application for Removal and Appointment of Trustees
Outcome
Application to remove Fifth Respondent as trustee dismissed; counter-application for appointment of independent trustees and dissolution of trust granted.
Judges
J.J.C. Swanepoel
Legal Topics
Trustee Removal, Trust Property Control Act, Fiduciary Duties, Conflict of Interest, Trust Dissolution
Land and Property Civil Procedure Trustee Removal Trust Property Control Act Fiduciary Duties Conflict of Interest Trust Dissolution

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 13 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Willem Francois Bouwer N.O.

Applicant

Christoffel Frederick Viljoen

Applicant

Catherina Johanna Smit N.O.

Respondent

Johannes Adriaan Viljoen N.O.

Respondent

Willem Christiaan Voljoen N.O.

Respondent

Albertus Abraham Viljoen N.O.

Respondent

Abraham Carel Viljoen N.O.

Respondent

Petrus Jacobus Viljoen

Respondent

Danie Barnard N.O.

Respondent

Master of the North Gauteng High Court, Pretoria

Respondent

Abraham Carel Viljoen

Respondent

Procedural Posture

Urgent Application / Judgment on Application for Removal and Appointment of Trustees

Legal Issues

  1. 1 Whether the applicants have locus standi to seek removal of trustees of the Avianco Trust.
  2. 2 Whether Fifth Respondent should be removed as trustee of the Avianco Trust.
  3. 3 Whether the trust should be dissolved and independent trustees appointed to wind up its affairs.

Ratio Decidendi

The court found that First Applicant lacked locus standi to seek removal of trustees, as he had no direct interest in the trust property or its administration. However, Second Applicant, as a beneficiary, was entitled to bring the application. The allegations of dysfunction and mismanagement were not substantiated; meetings were held, financial statements and tax returns were prepared, and no assets were shown to be missing. The breakdown in relations among siblings did not, in itself, justify removal of Fifth Respondent, as there was no evidence that his conduct endangered the trust or prevented its proper execution. The trust deed required three trustees; given the agreement to dissolve...

Court Disposition

Application to remove Fifth Respondent as trustee dismissed; counter-application for appointment of independent trustees and dissolution of trust granted.

Orders

  • Second Applicant and First to Fourth Respondents are removed as trustees of the Avianco Trust, IT no. 1912/1994.
  • The trust is to be dissolved and its assets distributed and transferred to the beneficiaries.