Erwee NO en 'n Ander v Erwee NO en Andere (3714/2003) [2004] ZAFSHC 1; [2006] 1 All SA 626 (O) (29 January 2004)

Erwee NO en 'n Ander v Erwee NO en Andere (3714/2003) [2004] ZAFSHC 1; [2006] 1 All SA 626 (O) (29 January 2004)

The court held that the relevant clause in the trust deeds distinguishes between the right to nominate and the right to appoint additional trustees. The founder (first respondent) had the sole right to nominate candidates for trusteeship during her lifetime, but the actual appointment required the joint decision of the serving trustees. The unilateral appointment of additional trustees by the first respondent was therefore invalid. The Master’s authorisation did not cure this defect, as the authority to act as trustee derives from the trust instrument, not from the Master. Consequently, meetings and decisions taken by the improperly constituted board of trustees were invalid, and trust...

Citation
[2004] ZAFSHC 1
Parties
Applicant: Lambert Hendrik Roux Erwee N.O.; Applicant: Catharina Maria Susanna Erwee; Respondent: Magdalena Johanna Erwee N.O.; Respondent: Marthinus Johannes Erwee N.O.; Respondent: Hendrik Bernardus Erwee N.O.; Respondent: Hanlie Olwage N.O.; Respondent: Marda Möller N.O.; Respondent: Die Meester van die Hooggeregshof
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
29 January 2004
Case Number
3714/2003
Procedural Posture
Urgent Application / Final Determination of Application for Declaratory and Interdictory Relief Regarding Trust Administration.
Outcome
Application granted in respect of prayers 1, 2, and 7; previous orders on prayers 3, 4, 5, and 6 confirmed.
Judges
Cillié, R
Legal Topics
Trust Deed Interpretation, Appointment of Trustees, Powers of Trustees, Procedural Irregularity, Trust Property Management
Land and Property Civil Procedure Trust Deed Interpretation Appointment of Trustees Powers of Trustees Procedural Irregularity Trust Property Management

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Parties

Lambert Hendrik Roux Erwee N.O.

Applicant

Catharina Maria Susanna Erwee

Applicant

Magdalena Johanna Erwee N.O.

Respondent

Marthinus Johannes Erwee N.O.

Respondent

Hendrik Bernardus Erwee N.O.

Respondent

Hanlie Olwage N.O.

Respondent

Marda Möller N.O.

Respondent

Die Meester van die Hooggeregshof

Respondent

Procedural Posture

Urgent Application / Final Determination of Application for Declaratory and Interdictory Relief Regarding Trust Administration.

Legal Issues

  1. 1 Whether the appointment of additional trustees to the four Erwee family trusts was valid under the trust deeds.
  2. 2 Whether the first respondent had the sole right to appoint additional trustees during her lifetime.
  3. 3 Whether decisions taken by the improperly constituted board of trustees should be set aside.

Ratio Decidendi

The court held that the relevant clause in the trust deeds distinguishes between the right to nominate and the right to appoint additional trustees. The founder (first respondent) had the sole right to nominate candidates for trusteeship during her lifetime, but the actual appointment required the joint decision of the serving trustees. The unilateral appointment of additional trustees by the first respondent was therefore invalid. The Master’s authorisation did not cure this defect, as the authority to act as trustee derives from the trust instrument, not from the Master. Consequently, meetings and decisions taken by the improperly constituted board of trustees were invalid, and trust...

Court Disposition

Application granted in respect of prayers 1, 2, and 7; previous orders on prayers 3, 4, 5, and 6 confirmed.

Orders

  • The appointment of Marthinus Johannes Erwee, Hendrik Bernardus Erwee, Hanlie Olwage, and Marda Möller as additional trustees of the Roux Erwee Trust (TMP2308), Caren Erwee Trust (TMP2309), Nardu Erwee Trust (TMP2310), and Morne Erwee Trust (TMP2311) is set aside.
  • The first respondent is interdicted from appointing additional trustees to the four trusts.