Hanekom v Voigt N.O and Others (15493/2014) [2014] ZAWCHC 194 (10 December 2014)

Hanekom v Voigt N.O and Others (15493/2014) [2014] ZAWCHC 194 (10 December 2014)

The court found that the new trust instrument was accepted by the Master, who issued letters of authority appointing the applicant and respondents as trustees. The applicant did not seek to review or set aside the Master’s administrative act, and the Oudekraal principle dictates that such acts remain valid until set...

Source-derived case information.

Citation
[2014] ZAWCHC 194
Parties
Applicant: Nicolene Hanekom; Respondent: Lizette Voigt N.O; Respondent: Lizette Voigt; Respondent: Janene Gertruida Goosen N.O; Respondent: Janene Gertruida 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
10 December 2014
Case Number
15493/2014
Procedural Posture
Urgent Application / Ex Tempore Judgment on Main Application, Counter Application, and Removal Application
Outcome
The application for declaratory relief is dismissed with costs. The applicant’s application to amend her notice of motion is granted. The counter-application and removal application are referred to trial. Costs of the counter-application and removal application are reserved for later determination.
Judges
J I Cloete
Legal Topics
Trust Amendment, Declaratory Relief, Trustee Removal, Administrative Act Review, Sale of Trust Property
Civil Procedure Land and Property Trust Amendment Declaratory Relief Trustee Removal Administrative Act Review Sale of Trust Property

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Parties

Nicolene Hanekom

Applicant

Lizette Voigt N.O

Respondent

Lizette Voigt

Respondent

Janene Gertruida Goosen N.O

Respondent

Janene Gertruida 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

Urgent Application / Ex Tempore Judgment on Main Application, Counter Application, and Removal Application

Legal Issues

  1. 1 Whether the memorandum of agreement dated 5 April 2001 (the new trust instrument) is valid or void.
  2. 2 Whether the applicant is entitled to declaratory relief regarding the validity of the new trust instrument.
  3. 3 Whether the Master’s administrative act in issuing letters of authority based on the new trust instrument can be impugned in these proceedings.

Ratio Decidendi

The court found that the new trust instrument was accepted by the Master, who issued letters of authority appointing the applicant and respondents as trustees. The applicant did not seek to review or set aside the Master’s administrative act, and the Oudekraal principle dictates that such acts remain valid until set aside. Declaratory relief was refused as it would yield no practical benefit to the applicant; if granted, it would leave the trust without trustees, as the sole trustee under the old instrument is deceased. The respondents, by majority, may proceed with the sale of Die Opstal. The counter-application and removal application involve extensive factual disputes and are referred...

Court Disposition

The application for declaratory relief is dismissed with costs. The applicant’s application to amend her notice of motion is granted. The counter-application and removal application are referred to trial. Costs of the counter-application and removal application are reserved for later determination.

Orders

  • The applicant’s application for leave to amend her notice of motion is granted.
  • The application for declaratory relief is dismissed with costs, including reserved costs and costs of two counsel where employed, payable by the applicant in her personal capacity.