Estate late Hafiz and Others v Hafiz and Others (804/2022) [2023] ZASCA 114; 2024 (2) SA 374 (SCA) (27 July 2023)

Estate late Hafiz and Others v Hafiz and Others (804/2022) [2023] ZASCA 114; 2024 (2) SA 374 (SCA) (27 July 2023)

The Supreme Court of Appeal held that the Hafiz Trust was validly established in 1994, as the trust deed evidenced the settlor's intention to create a trust during his lifetime, with Ahmed Hafiz appointed as First Trustee and the trust property properly donated and transferred. Clause 4 of the trust deed, when interpreted in context, did not require the appointment of the First Trustee only upon the settlor's death but provided for perpetual succession. The purported amendments to the trust deed in 2004 and 2011 were not validly effected, as the requirements for amendment under clause 7.1 were not met. The full court's variation of clause 4.1 was not justified under s 13 of the Trust...

Citation
[2023] ZASCA 114
Parties
Appellant: Estate late Goolam Murtuza Hafiz; Appellant: Mohamed Iqbal Essop; Appellant: Sayed Hoosen Ahmed; Respondent: Ahmed Zakir Hafiz; Respondent: Akhmed Raza Wahab; Respondent: Sayed Mukthar Mohammed; Respondent: Shakeeel Ahmed Hafiz; Respondent: Aneez Ahmed Hafiz; Respondent: Master of the High Court, Pietermaritzburg; Respondent: Registrar of Deeds, KwaZulu-Natal; Respondent: eThekwini Metropolitan Municipality
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 July 2023
Case Number
804/2022
Procedural Posture
Civil Appeal / Appeal From Full Court of Kwa Zulu Natal Division of the High Court
Outcome
Appeal dismissed except for variation of the full court's order regarding trusteeship and costs.
Judges
Dambuza, Goosen, Mali, Siwendu, Unterhalter
Legal Topics
Trust Deed Interpretation, Trustee Appointment, Variation of Trust, Trust Property Control Act, Succession of Trustees
Land and Property Civil Procedure Commercial and Corporate Trust Deed Interpretation Trustee Appointment Variation of Trust Trust Property Control Act Succession of Trustees

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Parties

Estate late Goolam Murtuza Hafiz

Appellant

Mohamed Iqbal Essop

Appellant

Sayed Hoosen Ahmed

Appellant

Ahmed Zakir Hafiz

Respondent

Akhmed Raza Wahab

Respondent

Sayed Mukthar Mohammed

Respondent

Shakeeel Ahmed Hafiz

Respondent

Aneez Ahmed Hafiz

Respondent

Master of the High Court, Pietermaritzburg

Respondent

Registrar of Deeds, KwaZulu-Natal

Respondent

eThekwini Metropolitan Municipality

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Court of Kwa Zulu Natal Division of the High Court

Legal Issues

  1. 1 Was the Goolam Murtuza Hafiz Trust validly established in 1994.
  2. 2 Was the 1994 trust deed validly amended, and if so, by which instrument.
  3. 3 Who are the lawful trustees of the Hafiz Trust.

Ratio Decidendi

The Supreme Court of Appeal held that the Hafiz Trust was validly established in 1994, as the trust deed evidenced the settlor's intention to create a trust during his lifetime, with Ahmed Hafiz appointed as First Trustee and the trust property properly donated and transferred. Clause 4 of the trust deed, when interpreted in context, did not require the appointment of the First Trustee only upon the settlor's death but provided for perpetual succession. The purported amendments to the trust deed in 2004 and 2011 were not validly effected, as the requirements for amendment under clause 7.1 were not met. The full court's variation of clause 4.1 was not justified under s 13 of the Trust...

Court Disposition

Appeal dismissed except for variation of the full court's order regarding trusteeship and costs.

Orders

  • Save to the extent set out in paragraph 2 below, the appeal is dismissed.
  • Paragraph 2 of the order of the full court is varied so that the order reads as follows: '1. The appeal is upheld. 2. The order of the court a quo is set aside and is substituted by the following: 2.1 It is declared that the Goolam Murtuza Hafiz Trust is valid and shall be administered in accordance with the...