Meijer NO and Another v Firstrand Bank Ltd (formerly known as First National Bank of Sourthern Africa) and Another, In re: Firstrand Bank Ltd (formerly known as First National Bank of Sourthern Africa) and Another v Meijer and Others (2123/2010) [2012] ZAWCHC 23 (4 April 2012)

Meijer NO and Another v Firstrand Bank Ltd (formerly known as First National Bank of Sourthern Africa) and Another, In re: Firstrand Bank Ltd (formerly known as First National Bank of Sourthern Africa) and Another v Meijer and Others (2123/2010) [2012] ZAWCHC 23 (4 April 2012)

The court held that the applicants' resignations as trustees were not effective until proper written notice was given to the Master of the High Court, and in the absence of such notification, they remained trustees. The trust deed required a minimum of three trustees in office, and when this quorum was not met, the trust lacked capacity to contract. The Second Respondent, acting alone, did not have authority to bind the trust to the loan and mortgage transaction, and her actions were ultra vires the trust deed and void. The subsequent ratification by newly appointed trustees could not cure the lack of capacity at the time of the transaction. The applicants established sufficient cause for...

Citation
[2012] ZAWCHC 23
Parties
Applicant: Johann Hinrich Evers Meijer N.O.; Applicant: Alexander Strachan Kotze N.O.; Respondent: Firstrand Bank Limited (formerly known as First National Bank of Southern Africa); Respondent: Marcelle Meijer
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
4 April 2012
Case Number
2123/2010
Procedural Posture
Rescission Application / Judgment on Application for Rescission and Interdict
Outcome
Application for rescission granted; judgment and warrant of execution set aside; interdict granted pending finalisation of action; costs awarded against respondents.
Judges
Dlodlo
Legal Topics
Trust Property Control Act, Trustee Resignation, Joint Action Requirement, Ultra Vires Transactions, Ratification in Trust Law, Rescission of Judgment
Land and Property Civil Procedure Trust Property Control Act Trustee Resignation Joint Action Requirement Ultra Vires Transactions Ratification in Trust Law Rescission of Judgment

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Parties

Johann Hinrich Evers Meijer N.O.

Applicant

Alexander Strachan Kotze N.O.

Applicant

Firstrand Bank Limited (formerly known as First National Bank of Southern Africa)

Respondent

Marcelle Meijer

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission and Interdict

Legal Issues

  1. 1 Whether the resignation of trustees was effective prior to notification to the Master of the High Court.
  2. 2 Whether the Second Respondent had authority to bind the trust to a loan and mortgage transaction acting as sole trustee.
  3. 3 Whether the trust had capacity to contract when the minimum number of trustees was not in office.

Ratio Decidendi

The court held that the applicants' resignations as trustees were not effective until proper written notice was given to the Master of the High Court, and in the absence of such notification, they remained trustees. The trust deed required a minimum of three trustees in office, and when this quorum was not met, the trust lacked capacity to contract. The Second Respondent, acting alone, did not have authority to bind the trust to the loan and mortgage transaction, and her actions were ultra vires the trust deed and void. The subsequent ratification by newly appointed trustees could not cure the lack of capacity at the time of the transaction. The applicants established sufficient cause for...

Court Disposition

Application for rescission granted; judgment and warrant of execution set aside; interdict granted pending finalisation of action; costs awarded against respondents.

Orders

  • The judgment by the Registrar on 22 December 2010 under case number 21231/2010 is rescinded.
  • The warrant of execution issued under case number 21231/2010 is set aside.