Moore NO and Others v Du Toit and Others (6900/2009) [2009] ZAKZPHC 66 (30 November 2009)

Moore NO and Others v Du Toit and Others (6900/2009) [2009] ZAKZPHC 66 (30 November 2009)

Section 7(2) of the Trust Property Control Act does not impose a legal obligation on the Master to consult with interested parties before appointing a co-trustee. The legislature’s intention, as inferred from the structure and wording of the Act, is to exclude such a requirement by implication, especially given the express consultation requirement in section 7(1) and its absence in section 7(2). While it may be proper for the Master to consult, there is no legal duty to do so. The applicants did not establish a legitimate expectation of a hearing based on any promise or prior conduct by the Master. Furthermore, section 23 of the Act provides an adequate remedy for aggrieved parties to...

Citation
[2009] ZAKZPHC 66
Parties
Applicant: André René Roy Moore N.O.; Applicant: Brian Neville Gamsu N.O.; Applicant: Charles Michael Segall N.O.; Respondent: Mrs Du Toit, Assistant Master of the High Court for the Province of Kwazulu-Natal; Respondent: Glen Usher; Respondent: Andries Jonathan Lategan Geyser N.O.; Respondent: Mduduzi Christoper Nkomo N.O.; Respondent: Yashica Chetty N.O.; Respondent: Mahmood Essop Cajee N.O.
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
30 November 2009
Case Number
6900/2009
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed.
Judges
Swain
Legal Topics
Trust Property Control Act, Appointment of Trustee, Audi Alteram Partem, Legitimate Expectation, Judicial Review
Administrative Law Civil Procedure Trust Property Control Act Appointment of Trustee Audi Alteram Partem Legitimate Expectation Judicial Review

Case Brief

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Parties

André René Roy Moore N.O.

Applicant

Brian Neville Gamsu N.O.

Applicant

Charles Michael Segall N.O.

Applicant

Mrs Du Toit, Assistant Master of the High Court for the Province of Kwazulu-Natal

Respondent

Glen Usher

Respondent

Andries Jonathan Lategan Geyser N.O.

Respondent

Mduduzi Christoper Nkomo N.O.

Respondent

Yashica Chetty N.O.

Respondent

Mahmood Essop Cajee N.O.

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the Master was obliged to afford the applicants a hearing before appointing a co-trustee under section 7(2) of the Trust Property Control Act.
  2. 2 Whether the appointment of the second respondent as co-trustee should be set aside under section 23 of the Act.
  3. 3 Whether the applicants had a legitimate expectation of being heard before the appointment.

Ratio Decidendi

Section 7(2) of the Trust Property Control Act does not impose a legal obligation on the Master to consult with interested parties before appointing a co-trustee. The legislature’s intention, as inferred from the structure and wording of the Act, is to exclude such a requirement by implication, especially given the express consultation requirement in section 7(1) and its absence in section 7(2). While it may be proper for the Master to consult, there is no legal duty to do so. The applicants did not establish a legitimate expectation of a hearing based on any promise or prior conduct by the Master. Furthermore, section 23 of the Act provides an adequate remedy for aggrieved parties to...

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • The Banavie Trust is ordered to pay the costs of the respondents.