Gross and Others v Pentz (414/95) [1996] ZASCA 78; 1996 (4) SA 617 (SCA); [1996] 4 All SA 63 (A); (22 August 1996)

Gross and Others v Pentz (414/95) [1996] ZASCA 78; 1996 (4) SA 617 (SCA); [1996] 4 All SA 63 (A); (22 August 1996)

The Supreme Court of Appeal held that the general rule in South African law is that only trustees have locus standi to institute proceedings for damages to a trust estate, and beneficiaries do not ordinarily have such standing. The Beningfield exception allows a beneficiary to sue in a representative capacity only where the trustee whose conduct is impeached cannot be expected to sue himself. In this case, the respondent failed to make allegations that the co-trustee, Mrs Pentz, was unable or unwilling to sue the alleged delinquent trustee, Mr Gross. The fact that co-trustees are jointly and severally liable does not affect the procedural requirement for locus standi. The court found that...

Citation
[1996] ZASCA 78
Parties
Appellant: Sidney Gross; Appellant: Pieter Nicholaas Pentz; Appellant: Groote Post Farm CC; Respondent: A G Pentz
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
22 August 1996
Case Number
414/95
Procedural Posture
Civil Appeal / Appeal Against Exception Upholding Locus Standi of Beneficiary to Sue for Breach of Trust
Outcome
The appeal is upheld in part; the exception to the plea regarding locus standi is dismissed. Costs awarded to the appellants, including costs of two counsel.
Judges
Corbett CJ, E M Grosskopf JA, F H Grosskopf JA, Harms JA, Zulman AJA
Legal Topics
Locus Standi, Breach of Trust, Testamentary Trusts, Joint and Several Liability, Representative Action, Beningfield Exception
Civil Procedure Land and Property Locus Standi Breach of Trust Testamentary Trusts Joint and Several Liability Representative Action Beningfield Exception

Case Brief

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Parties

Sidney Gross

Appellant

Pieter Nicholaas Pentz

Appellant

Groote Post Farm CC

Appellant

A G Pentz

Respondent

Procedural Posture

Civil Appeal / Appeal Against Exception Upholding Locus Standi of Beneficiary to Sue for Breach of Trust

Legal Issues

  1. 1 Whether a beneficiary under a testamentary trust has locus standi to institute proceedings for damages to the trust estate where a trustee is alleged to have breached his fiduciary duties.
  2. 2 Whether the Beningfield exception applies to allow a beneficiary to sue where a co-trustee is available to institute proceedings.
  3. 3 Whether joint and several liability of co-trustees affects the procedural right of a beneficiary to sue for breach of trust.

Ratio Decidendi

The Supreme Court of Appeal held that the general rule in South African law is that only trustees have locus standi to institute proceedings for damages to a trust estate, and beneficiaries do not ordinarily have such standing. The Beningfield exception allows a beneficiary to sue in a representative capacity only where the trustee whose conduct is impeached cannot be expected to sue himself. In this case, the respondent failed to make allegations that the co-trustee, Mrs Pentz, was unable or unwilling to sue the alleged delinquent trustee, Mr Gross. The fact that co-trustees are jointly and severally liable does not affect the procedural requirement for locus standi. The court found that...

Court Disposition

The appeal is upheld in part; the exception to the plea regarding locus standi is dismissed. Costs awarded to the appellants, including costs of two counsel.

Orders

  • The appeal is upheld in respect of the exception to paragraph 16.2 of the plea.
  • The exception to paragraph 16.2 is dismissed.