Lupacchini and Others v Minister of Safety and Security (2896/2004) [2008] ZAFSHC 7 (15 February 2008)

Lupacchini and Others v Minister of Safety and Security (2896/2004) [2008] ZAFSHC 7 (15 February 2008)

The court held that the statutory prohibition in section 6(1) of the Trust Property Control Act is absolute in respect of contracts but relative in respect of litigation. The appointment of a trustee originates from the trust instrument, and the Master’s authorisation is required to act but does not invalidate the appointment itself. In this case, the second plaintiff was privately appointed as trustee before the summons was issued, and her subsequent public authorisation by the Master retrospectively validated her acts in litigation. The trust had the required number of trustees at the time of institution, and the action was properly instituted. The defendant’s special plea was dismissed...

Citation
[2008] ZAFSHC 7
Parties
Plaintiff: Gabrielle Lupacchini; Plaintiff: Rochelle Conradie; Plaintiff: Luigi Davide Gabrielle Lupacchini; Defendant: Minister of Safety & Security
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
15 February 2008
Case Number
2896/2004
Procedural Posture
Civil Action / Special Plea Decision
Outcome
Special plea dismissed. Plaintiffs’ action may proceed.
Judges
Rampai
Legal Topics
Trust Property Control Act, Locus Standi in Iudicio, Appointment of Trustees, Ratification of Unauthorised Acts
Civil Procedure Land and Property Trust Property Control Act Locus Standi in Iudicio Appointment of Trustees Ratification of Unauthorised Acts

Case Brief

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Parties

Gabrielle Lupacchini

Plaintiff

Rochelle Conradie

Plaintiff

Luigi Davide Gabrielle Lupacchini

Plaintiff

Minister of Safety & Security

Defendant

Procedural Posture

Civil Action / Special Plea Decision

Legal Issues

  1. 1 Whether the Lupacchini Family Trust could validly institute action for damages prior to the public appointment of the second plaintiff as trustee.
  2. 2 Whether the action of the first two plaintiffs can be entertained in view of the belated public appointment of the second plaintiff as trustee.
  3. 3 Whether the lack of written authority from the Master at the time of summons invalidates the proceedings.

Ratio Decidendi

The court held that the statutory prohibition in section 6(1) of the Trust Property Control Act is absolute in respect of contracts but relative in respect of litigation. The appointment of a trustee originates from the trust instrument, and the Master’s authorisation is required to act but does not invalidate the appointment itself. In this case, the second plaintiff was privately appointed as trustee before the summons was issued, and her subsequent public authorisation by the Master retrospectively validated her acts in litigation. The trust had the required number of trustees at the time of institution, and the action was properly instituted. The defendant’s special plea was dismissed...

Court Disposition

Special plea dismissed. Plaintiffs’ action may proceed.

Orders

  • The special plea is dismissed.
  • The defendant is directed to pay the costs, including the costs occasioned by the employment of two counsels.