N.M obo A.M v Van Zyl N.O and Others (1365/2020) [2022] ZAMPMBHC 3 (18 January 2022)

N.M obo A.M v Van Zyl N.O and Others (1365/2020) [2022] ZAMPMBHC 3 (18 January 2022)

The court found that the Applicant failed to establish grounds for the removal of the Respondent as trustee. The delays and lack of improvement in the minor child's living and medical conditions were attributed to the Applicant and M[....]'s lack of cooperation and repeated changes in position regarding medical treatment and facility admission. The Respondent's conduct did not amount to a breach of fiduciary duty or conflict of interest sufficient to warrant removal. The fees charged by VZLR Attorneys complied with the Contingency Fees Act, and the Applicant's conflation of attorney and funder fees was incorrect. The court held that the appointment of new trustees and exemption from...

Citation
[2022] ZAMPMBHC 3
Parties
Applicant: N M[....]2 obo A[....] M[....]; Respondent: Jacob Albertus Van Zyl N.O.; Respondent: Jeanne Helene Rabie N.O.; Respondent: Master of the High Court: Mbombela
Court
Mbombela High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
18 January 2022
Case Number
1365/2020
Procedural Posture
Civil Application / Judgment on Application and Counter Application
Outcome
The application for removal of the Respondent as trustee is dismissed. The counter-application is granted in part, with orders for the minor child's admission to Butterfly Haven, appointment of a second trustee, withdrawal of VZLR Attorneys, and appointment of a curator ad litem. Each party is to pay its own costs.
Judges
Mashile
Legal Topics
Trustee Removal, Fiduciary Duties, Contingency Fees Act, Parental Rights Termination, Curator Ad Litem, Children S Act
Family and Children Land and Property Civil Procedure Trustee Removal Fiduciary Duties Contingency Fees Act Parental Rights Termination Curator Ad Litem +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 13 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

N M[....]2 obo A[....] M[....]

Applicant

Jacob Albertus Van Zyl N.O.

Respondent

Jeanne Helene Rabie N.O.

Respondent

Master of the High Court: Mbombela

Respondent

Procedural Posture

Civil Application / Judgment on Application and Counter Application

Legal Issues

  1. 1 Has a case for the removal of the Respondent from the Trust as a trustee been made out?
  2. 2 Has the Applicant made out a case for her own appointment as a trustee together with M[....] and Mr Maseko?
  3. 3 Has the Applicant made out a case for dispensing with the furnishing of security by the proposed trustees?

Ratio Decidendi

The court found that the Applicant failed to establish grounds for the removal of the Respondent as trustee. The delays and lack of improvement in the minor child's living and medical conditions were attributed to the Applicant and M[....]'s lack of cooperation and repeated changes in position regarding medical treatment and facility admission. The Respondent's conduct did not amount to a breach of fiduciary duty or conflict of interest sufficient to warrant removal. The fees charged by VZLR Attorneys complied with the Contingency Fees Act, and the Applicant's conflation of attorney and funder fees was incorrect. The court held that the appointment of new trustees and exemption from...

Court Disposition

The application for removal of the Respondent as trustee is dismissed. The counter-application is granted in part, with orders for the minor child's admission to Butterfly Haven, appointment of a second trustee, withdrawal of VZLR Attorneys, and appointment of a curator ad litem. Each party is to pay its own costs.

Orders

  • The application is dismissed.
  • There is no order as to costs.