Potgieter v Potgieter NO and Others (629/2010) [2011] ZASCA 181; 2012 (1) SA 637 (SCA) (30 September 2011)

Potgieter v Potgieter NO and Others (629/2010) [2011] ZASCA 181; 2012 (1) SA 637 (SCA) (30 September 2011)

The Supreme Court of Appeal held that the purported variation of the trust deed was invalid for want of consent by the beneficiaries who had previously accepted benefits conferred upon them by the original trust deed. The acceptance was established by the preamble of the trust deed and confirmed by the conduct of the deceased and trustees at a meeting in August 2003. Once benefits are accepted, even if contingent, the trust deed cannot be varied without the beneficiaries' consent. The court rejected the respondents' arguments that the variation was valid or that the appellants' remedy was limited to damages. The court further held that neither section 13 of the Trust Property Control Act...

Citation
[2011] ZASCA 181
Parties
Appellant: Jan Wilhelmus Potgieter; Appellant: Magdell Woodward; Respondent: Anna-Marie Juliana Potgieter NO; Respondent: Theron Wessels NO; Respondent: Anna-Marie Juliana Potgieter; Respondent: Jandré Venter; Respondent: Ruan Venter; Respondent: The Master of the North Gauteng High Court, Pretoria; Respondent: Theron Wessels
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 September 2011
Case Number
629/2010
Procedural Posture
Civil Appeal / Appeal From North Gauteng High Court, Pretoria
Outcome
Appeal upheld; cross-appeal dismissed; costs to be paid by the Buffelshoek Familie Trust except for the seventh respondent.
Judges
Navsa, Brand, Van Heerden, Leach, Majiedt
Legal Topics
Trust Variation, Beneficiary Rights, Acceptance of Benefit, Specific Performance, Trust Property Control Act, Contract for Benefit of Third Party
Family and Children Land and Property Trust Variation Beneficiary Rights Acceptance of Benefit Specific Performance Trust Property Control Act Contract for Benefit of Third Party

Case Brief

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Parties

Jan Wilhelmus Potgieter

Appellant

Magdell Woodward

Appellant

Anna-Marie Juliana Potgieter NO

Respondent

Theron Wessels NO

Respondent

Anna-Marie Juliana Potgieter

Respondent

Jandré Venter

Respondent

Ruan Venter

Respondent

The Master of the North Gauteng High Court, Pretoria

Respondent

Theron Wessels

Respondent

Procedural Posture

Civil Appeal / Appeal From North Gauteng High Court, Pretoria

Legal Issues

  1. 1 Whether the purported variation of the trust deed was valid without the consent of beneficiaries who had previously accepted benefits.
  2. 2 What are the legal consequences of the invalidity of the variation agreement?
  3. 3 Does the court have authority to deviate from the common law outcome based on public policy or constitutional values?

Ratio Decidendi

The Supreme Court of Appeal held that the purported variation of the trust deed was invalid for want of consent by the beneficiaries who had previously accepted benefits conferred upon them by the original trust deed. The acceptance was established by the preamble of the trust deed and confirmed by the conduct of the deceased and trustees at a meeting in August 2003. Once benefits are accepted, even if contingent, the trust deed cannot be varied without the beneficiaries' consent. The court rejected the respondents' arguments that the variation was valid or that the appellants' remedy was limited to damages. The court further held that neither section 13 of the Trust Property Control Act...

Court Disposition

Appeal upheld; cross-appeal dismissed; costs to be paid by the Buffelshoek Familie Trust except for the seventh respondent.

Orders

  • The appeal is upheld.
  • The cross-appeal is dismissed.