Breetzke and Others v Alexander and Others (12922/14) [2015] ZAKZPHC 44 (8 September 2015)

Breetzke and Others v Alexander and Others (12922/14) [2015] ZAKZPHC 44 (8 September 2015)

The court found that the plaintiffs, as trustees of the SF Trust, a beneficiary of the SH Trust, have a vested interest in the SH Trust and suffered a loss due to the alleged breach of fiduciary duty by the first defendant. The particulars of claim support a direct action by the SF Trust against the defaulting trustee, not a representative action. The Beningfield exception does not apply where a direct action is available. Therefore, the plaintiffs lack locus standi to institute a representative action and cannot rely on the exception. The exception to the particulars of claim is upheld.

Citation
[2015] ZAKZPHC 44
Parties
Plaintiff: Gavin Anthony Breetzke; Plaintiff: Michael John Breetzke; Plaintiff: Margaret Ann Breetzke; Defendant: Robert Edward Alexander; Defendant: Ziningi (Proprietary) Limited; Defendant: Rodney John Trotter; Defendant: Stuart Richard Howies
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
8 September 2015
Case Number
12922/14
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
Exception upheld; plaintiffs lack locus standi to bring a representative action. Leave granted to amend particulars of claim within 20 days.
Judges
Moodley
Legal Topics
Locus Standi, Trust Law, Fiduciary Duty, Representative Action, Beningfield Exception
Civil Procedure Land and Property Locus Standi Trust Law Fiduciary Duty Representative Action Beningfield Exception

Case Brief

Summary, issues, holding and outcome

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Parties

Gavin Anthony Breetzke

Plaintiff

Michael John Breetzke

Plaintiff

Margaret Ann Breetzke

Plaintiff

Robert Edward Alexander

Defendant

Ziningi (Proprietary) Limited

Defendant

Rodney John Trotter

Defendant

Stuart Richard Howies

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiffs, as trustees of a beneficiary trust, have locus standi to institute a representative action on behalf of the SH Trust against a delinquent trustee.
  2. 2 Whether the particulars of claim disclose a cause of action or necessary averments to sustain the action against the defendants.
  3. 3 Whether the Beningfield exception applies to permit the plaintiffs' representative action.

Ratio Decidendi

The court found that the plaintiffs, as trustees of the SF Trust, a beneficiary of the SH Trust, have a vested interest in the SH Trust and suffered a loss due to the alleged breach of fiduciary duty by the first defendant. The particulars of claim support a direct action by the SF Trust against the defaulting trustee, not a representative action. The Beningfield exception does not apply where a direct action is available. Therefore, the plaintiffs lack locus standi to institute a representative action and cannot rely on the exception. The exception to the particulars of claim is upheld.

Court Disposition

Exception upheld; plaintiffs lack locus standi to bring a representative action. Leave granted to amend particulars of claim within 20 days.

Orders

  • The exception to the particulars of claim, as amended, is upheld with costs.
  • The plaintiffs are granted leave to amend their particulars of claim within 20 days of the granting of this order, failing which the defendants may apply for the remaining relief as set out in paragraphs (b) and (c) of the exception dated 23 March 2015.