De Kock v Griessel NO and Others (50776/16) [2017] ZAGPPHC 1163 (23 October 2017)

De Kock v Griessel NO and Others (50776/16) [2017] ZAGPPHC 1163 (23 October 2017)

The court found that the applicant's removal as a beneficiary was invalid per the prior settlement agreement, which restored his rights under the trust deed. The trustees, who are also family members and directors of the company holding the trust asset, failed to maintain the necessary functional separation between control and enjoyment, resulting in conflicts of interest and exclusion of the applicant. The argument that the company, not the trust, excluded the applicant was rejected, as the company is wholly owned by the trust and controlled by the same conflicted individuals. The court held that the trust and company structure was being used to circumvent the applicant's rights and that...

Citation
[2017] ZAGPPHC 1163
Parties
Applicant: Harold De Kock; Respondent: Joan Cynthia Griessel NO; Respondent: Shirley Ann van Wyk NO; Respondent: Caryn Schultz NO; Respondent: Joan Cynthia Griessel; Respondent: Shirley Ann van Wyk; Respondent: De Villebois Etienne De Kock; Respondent: Celestemarie De Kock; Respondent: The Master of the High Court, Pretoria; Respondent: Manyeleti (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
23 October 2017
Case Number
50776/16
Procedural Posture
Review Application / Judgment After Hearing
Outcome
Application granted in part; applicant's rights as beneficiary reinstated; independent trustee to be appointed; costs awarded against conflicted respondents.
Judges
L J N Bam
Legal Topics
Trust Property Control Act, Removal of Trustee, Piercing Corporate Veil, Fiduciary Duty, Family Trust Conflict, Beneficiary Rights
Land and Property Civil Procedure Family and Children Trust Property Control Act Removal of Trustee Piercing Corporate Veil Fiduciary Duty Family Trust Conflict +1 more

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 7 Party arguments 2
Sign in to unlock

Parties

Harold De Kock

Applicant

Joan Cynthia Griessel NO

Respondent

Shirley Ann van Wyk NO

Respondent

Caryn Schultz NO

Respondent

Joan Cynthia Griessel

Respondent

Shirley Ann van Wyk

Respondent

De Villebois Etienne De Kock

Respondent

Celestemarie De Kock

Respondent

The Master of the High Court, Pretoria

Respondent

Manyeleti (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment After Hearing

Legal Issues

  1. 1 Whether the applicant's rights as a beneficiary under the Arathusa Family Trust should be reinstated.
  2. 2 Whether the trustees should be removed and independent trustees appointed due to conflict of interest and mismanagement.
  3. 3 Whether the failure to join the Third Respondent in her personal capacity constitutes fatal non-joinder.

Ratio Decidendi

The court found that the applicant's removal as a beneficiary was invalid per the prior settlement agreement, which restored his rights under the trust deed. The trustees, who are also family members and directors of the company holding the trust asset, failed to maintain the necessary functional separation between control and enjoyment, resulting in conflicts of interest and exclusion of the applicant. The argument that the company, not the trust, excluded the applicant was rejected, as the company is wholly owned by the trust and controlled by the same conflicted individuals. The court held that the trust and company structure was being used to circumvent the applicant's rights and that...

Court Disposition

Application granted in part; applicant's rights as beneficiary reinstated; independent trustee to be appointed; costs awarded against conflicted respondents.

Orders

  • The Third Respondent is joined in this action in her personal capacity as Tenth Respondent.
  • The First, Second, Third and Ninth Respondents are ordered to forthwith reinstate the Applicant's rights as a beneficiary under the Arathusa Trust IT 4883/99, in particular, equal access to and enjoyment of the farm Arathusa 241 KU, Pilgrims Rest in Mpumalanga as was the practice before 14 January 2013.