Du Plessis NO and Others v Van Niekerk and Others (836/2018) [2018] ZAFSHC 120; 2018 (6) SA 131 (FB) (26 June 2018)

Du Plessis NO and Others v Van Niekerk and Others (836/2018) [2018] ZAFSHC 120; 2018 (6) SA 131 (FB) (26 June 2018)

The court held that clause 5.7.4 of the trust deed is ambiguous and cannot be interpreted to allow the majority of trustees to unilaterally and peremptorily remove a trustee without good cause or procedural fairness. The word 'request' in the clause implies a choice, not an automatic removal. The court found that, even if the clause were unambiguous, an implied term of good cause and reasonableness must be read into it, consistent with constitutional values and public policy. The applicants failed to act reasonably, did not provide proper notice, and did not convene a properly constituted trustees' meeting. The Master is not obliged to amend the trust records solely on the basis of the...

Citation
[2018] ZAFSHC 120
Parties
Applicant: Neil Du Plessis N.O.; Applicant: Jan Lubbe N.O.; Applicant: Charles George Friedrich Krohn N.O.; Respondent: Ilze Fourie Van Niekerk; Respondent: Liza Tashley Scheepers; Respondent: Master of the Free State High Court
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
26 June 2018
Case Number
836/2018
Procedural Posture
Civil Application / Opposed Motion for Declaratory and Ancillary Relief
Outcome
Application dismissed.
Judges
J P Daffue
Legal Topics
Trust Deed Interpretation, Removal of Trustee, Implied Terms in Contract, Arbitrio Bono Viri, Constitutional Rights of Trustees
Land and Property Civil Procedure Trust Deed Interpretation Removal of Trustee Implied Terms in Contract Arbitrio Bono Viri Constitutional Rights of Trustees

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 4 Authorities cited 18 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Neil Du Plessis N.O.

Applicant

Jan Lubbe N.O.

Applicant

Charles George Friedrich Krohn N.O.

Applicant

Ilze Fourie Van Niekerk

Respondent

Liza Tashley Scheepers

Respondent

Master of the Free State High Court

Respondent

Procedural Posture

Civil Application / Opposed Motion for Declaratory and Ancillary Relief

Legal Issues

  1. 1 Whether the majority of trustees may unilaterally cause a trustee to vacate office under clause 5.7.4 of the trust deed without good cause or procedural fairness.
  2. 2 Whether an implied term of good cause and procedural fairness should be read into clause 5.7.4 of the trust deed.
  3. 3 Whether the Master is obliged to amend the trust records solely on the basis of the majority trustees' request.

Ratio Decidendi

The court held that clause 5.7.4 of the trust deed is ambiguous and cannot be interpreted to allow the majority of trustees to unilaterally and peremptorily remove a trustee without good cause or procedural fairness. The word 'request' in the clause implies a choice, not an automatic removal. The court found that, even if the clause were unambiguous, an implied term of good cause and reasonableness must be read into it, consistent with constitutional values and public policy. The applicants failed to act reasonably, did not provide proper notice, and did not convene a properly constituted trustees' meeting. The Master is not obliged to amend the trust records solely on the basis of the...

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • The costs of the parties, taxed on a party and party scale, shall be paid out of the estate of the Ritom Trust, IT 1138/99.