Ferreira and Another v Van der Merwe N.O and Others (2727/2018) [2019] ZAECPEHC 39 (13 June 2019)

Ferreira and Another v Van der Merwe N.O and Others (2727/2018) [2019] ZAECPEHC 39 (13 June 2019)

The court found that the original trust deed did not provide for amendment, and the Founder was deceased at the time of the purported amendment in 2010. Therefore, the amendment effected by the Original Trustee was invalid and of no force and effect. Even if amendment were possible, the Applicants had accepted the benefits conferred by the original trust deed, and any amendment required their consent, which was not obtained. The appointment of the First to Third Respondents as trustees was also declared null and void, as it flowed from the invalid amendment. The court further held that the Fourth Respondent should be confirmed as trustee in terms of the original trust deed, as the deed...

Citation
[2019] ZAECPEHC 39
Parties
Applicant: Riana Ferreira; Applicant: Gideon Jacobus van der Merwe; Respondent: Christo van der Merwe N.O.; Respondent: Maricus Christo van der Merwe N.O.; Respondent: Franscois Alwyn Sass N.O.; Respondent: Christina Adriana Jacoba van der Merwe; Respondent: Adri Trollip; Respondent: Master of the High Court, Grahamstown
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
13 June 2019
Case Number
2727/2018
Procedural Posture
Civil Application / Judgment on Opposed Application and Conditional Counter Application
Outcome
Main application granted in respect of the invalidity of the trust deed amendment and the nullity of the appointment of trustees. Counter-application granted confirming the Fourth Respondent as trustee. No order as to costs.
Judges
N.J. Mullins
Legal Topics
Trust Deed Amendment, Beneficiary Rights, Trustee Appointment, Waiver of Benefits
Land and Property Civil Procedure Trust Deed Amendment Beneficiary Rights Trustee Appointment Waiver of Benefits

Case Brief

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Parties

Riana Ferreira

Applicant

Gideon Jacobus van der Merwe

Applicant

Christo van der Merwe N.O.

Respondent

Maricus Christo van der Merwe N.O.

Respondent

Franscois Alwyn Sass N.O.

Respondent

Christina Adriana Jacoba van der Merwe

Respondent

Adri Trollip

Respondent

Master of the High Court, Grahamstown

Respondent

Procedural Posture

Civil Application / Judgment on Opposed Application and Conditional Counter Application

Legal Issues

  1. 1 Whether the amendment of the trust deed by the Original Trustee in 2010 was valid.
  2. 2 Whether the appointment of the First to Third Respondents as trustees in 2017 was lawful.
  3. 3 Whether the Applicants had accepted the benefits conferred by the original trust deed and whether their consent was required for any amendment.

Ratio Decidendi

The court found that the original trust deed did not provide for amendment, and the Founder was deceased at the time of the purported amendment in 2010. Therefore, the amendment effected by the Original Trustee was invalid and of no force and effect. Even if amendment were possible, the Applicants had accepted the benefits conferred by the original trust deed, and any amendment required their consent, which was not obtained. The appointment of the First to Third Respondents as trustees was also declared null and void, as it flowed from the invalid amendment. The court further held that the Fourth Respondent should be confirmed as trustee in terms of the original trust deed, as the deed...

Court Disposition

Main application granted in respect of the invalidity of the trust deed amendment and the nullity of the appointment of trustees. Counter-application granted confirming the Fourth Respondent as trustee. No order as to costs.

Orders

  • It is declared that the amendment of the trust deed of Johannes van der Merwe Trust, TM794(E), on or about 17 November 2010 is invalid and of no force and effect.
  • It is declared that the appointment of the First, Second and Third Respondents as trustees of the Trust on or about 26 May or 12 June 2017 is null and void.