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South Africa Judgment

North Gauteng High Court, Pretoria

Ex parte:Bacsy NO (21389/10) [2010] ZAGPPHC 266 (4 June 2010)

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Source document

01

Holding and result

The court found that the applicant failed to provide the trust deed, making it impossible to determine whether the trustee had the necessary powers to apply for the surrender of the trust estate. Furthermore, no legal authority was presented to support the trustee's locus standi in such circumstances. As a result, the court was not satisfied that the trustee was entitled to bring the application and declined to make an order. Leave was granted to renew the application with additional factual and legal basis.

Court disposition

No order made on the application; leave granted to renew and supplement.

Orders

  • No order is made on the application.
  • Leave is granted to renew the application and to supplement the Founding Affidavit as the applicant may see fit.

02

Material facts

Parties

Laszlo Mike Bacsy N.O.

Applicant

03

Procedural history

  1. Posture

    Urgent Application / Ex Parte Application for Surrender of Trust Estate

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant, as sole trustee, contends that the trust is insolvent and unable to pay its debts. He submits his Letter of Appointment and asserts that, had a creditor applied for sequestration, such an application would likely succeed. He seeks an order for the surrender of the trust estate.
Respondent
No respondent appeared or filed argument, as this was an ex parte application. The court raised concerns regarding the trustee's locus standi and the absence of the trust deed or supporting authority.

05

Court’s reasoning

  1. 01

    No authority cited

    A trustee's locus standi to apply for the surrender of a trust estate must be established either by the trust deed or by legal authority.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicant failed to provide the trust deed, making it impossible to determine whether the trustee had the necessary powers to apply for the surrender of the trust estate. Furthermore, no legal authority was presented to support the trustee's locus standi in such circumstances. As a result, the court was not satisfied that the trustee was entitled to bring the application and declined to make an order. Leave was granted to renew the application with additional factual and legal basis.

Obiter and limits

  • The court noted that if a creditor had applied for sequestration of the trust, such an application would probably have succeeded.

Court disposition

No order made on the application; leave granted to renew and supplement.

  • No order is made on the application.
  • Leave is granted to renew the application and to supplement the Founding Affidavit as the applicant may see fit.

Source and reliance status

North Gauteng High Court, Pretoria

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Judgment reading view

Judgment text

The complete available source text.

Source document

North Gauteng High Court, Pretoria

Judgment

[2010] ZAGPPHC 266

NOT

REPORTABLE

THE NORTH GAUTENG HIGH COURT.

PRETORIA (REPUBLIC OF SOUTH AFRICA)

CASE NUMBER: 21389/10

DATE:04/06/2010

In the ex-parte application of:

LASZLO

MIKE BACSY N.O..........................................................................................Applicant

In his capacity as trustee of the L G BACSY TRUST IT 4217/96

(for the surrender of the Estate of the L G BACSY TRUST, IT 4217/96 as insolvent)

JUDGMENT

SAPIRE. A J:

This is an application for the surrender of the estate of the L G Bacsy Trust. The application is made by the sole trustee who has attached to the Founding Affidavit his Letter of Appointment. He has set out facts that indicate that the Trust has become insolvent and cannot pay its debts. It is clear that if a creditor applied for the sequestration of the Trust such an application would probably be successful. The question which arises however, is whether a Trustee has locus standi to apply for the surrender of the estate.

The Deed constituting the Trust has not been placed before the court and it is accordingly not possible to ascertain the powers of the Trustee. Furthermore no authority has been advanced supporting the locus standi of a Trustee or Trustees to surrender the estate and I am not satisfied that such authority does in fact exist.

I am now making no order on the application. The Applicant may renew the application in order to advance factual and legal basis for such locus standi.

No order is made on the application.

Leave is granted to renew the application and to supplement the Founding Affidavit to the extent that the Applicant may see fit.

SAPIRE,

S W

ACTING

JUDGE

ATTORNEYS FOR THE APPLICANT:

DU

PLESSIS LESSING BRITS INC

c/o NIEMANN & SWART

804

TERREBLANCHE STREET

RIETFONTEIN

PRETORIA

TEL: (012)807 4025

Verw: P C LESSING/eo/B391

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