Hanekom v Voight N.O and Others (15 493/2014) [2015] ZAWCHC 116; 2016 (1) SA 416 (WCC); [2016] 2 All SA 155 (WCC) (13 August 2015)

Hanekom v Voight N.O and Others (15 493/2014) [2015] ZAWCHC 116; 2016 (1) SA 416 (WCC); [2016] 2 All SA 155 (WCC) (13 August 2015)

The Court held that the 2001 Memorandum constituted a valid amendment to the 1980 Trust Deed. The Master of the High Court had authorised the trustees based on the 2001 Memorandum, and this administrative action stands until set aside by judicial review. The Court found that the trust's assets and circumstances had changed significantly since its creation, and the original testamentary provisions were no longer practical or determinative. The power to dissolve the trust under clause H of the 1980 Trust Deed necessarily included the power to amend it. The Court rejected the Appellant's reliance on the unanimity clause, noting that the majority decision-making provision in the 2001...

Citation
[2015] ZAWCHC 116
Parties
Appellant: Nicolene Hanekom; Respondent: Lizette Voight N.O; Respondent: Lizette Voigt; Respondent: Janene Getruida Goosen N.O; Respondent: Janene Getruida Goosen; Respondent: Linda Marais N.O; Respondent: Linda Marais; Respondent: The Master of the High Court, Cape Town; Respondent: Elizabeth Rene Marais
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
13 August 2015
Case Number
15 493/2014
Procedural Posture
Civil Appeal / Appeal From Application Judgment; Leave to Appeal Granted; Appellate Judgment Delivered
Outcome
Appeal dismissed with costs, including costs of two counsel, payable by the Appellant in her personal capacity.
Judges
Dlodlo, Bozalek, Riley
Legal Topics
Trust Deed Amendment, Fiduciary Duties, Administrative Action, Majority Vs Unanimity, Testamentary Trust, Costs Order
Land and Property Civil Procedure Trust Deed Amendment Fiduciary Duties Administrative Action Majority Vs Unanimity Testamentary Trust Costs Order

Case Brief

Summary, issues, holding and outcome

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Parties

Nicolene Hanekom

Appellant

Lizette Voight N.O

Respondent

Lizette Voigt

Respondent

Janene Getruida Goosen N.O

Respondent

Janene Getruida Goosen

Respondent

Linda Marais N.O

Respondent

Linda Marais

Respondent

The Master of the High Court, Cape Town

Respondent

Elizabeth Rene Marais

Respondent

Procedural Posture

Civil Appeal / Appeal From Application Judgment; Leave to Appeal Granted; Appellate Judgment Delivered

Legal Issues

  1. 1 Whether the 2001 Memorandum constituted a valid amendment to the 1980 Trust Deed.
  2. 2 Whether the Master of the High Court's administrative action regarding the trust deed amendment was valid and binding.
  3. 3 Whether the Appellant's reliance on the unanimity clause in the original trust deed is sustainable under changed circumstances.

Ratio Decidendi

The Court held that the 2001 Memorandum constituted a valid amendment to the 1980 Trust Deed. The Master of the High Court had authorised the trustees based on the 2001 Memorandum, and this administrative action stands until set aside by judicial review. The Court found that the trust's assets and circumstances had changed significantly since its creation, and the original testamentary provisions were no longer practical or determinative. The power to dissolve the trust under clause H of the 1980 Trust Deed necessarily included the power to amend it. The Court rejected the Appellant's reliance on the unanimity clause, noting that the majority decision-making provision in the 2001...

Court Disposition

Appeal dismissed with costs, including costs of two counsel, payable by the Appellant in her personal capacity.

Orders

  • The 2001 Memorandum constituted a valid amendment to the 1980 Trust Deed.
  • The appeal is dismissed with costs, including costs occasioned by the employment of two counsel.