T v T and Others (387/2017) [2017] ZAFSHC 114 (6 July 2017)

T v T and Others (387/2017) [2017] ZAFSHC 114 (6 July 2017)

The court found that only the High Court and, in limited circumstances, the Master have the power to remove a trustee from office. The relief sought for referral to arbitration regarding the removal of the first respondent as trustee was not competent. The applicant failed to establish that the first respondent's claim in the divorce proceedings created an insurmountable conflict of interest or constituted a breach of her fiduciary duties as trustee. The mere fact that a trustee makes a claim against trust assets or alleges that the trust is the alter ego of another does not, in itself, justify removal unless the claim is shown to be invalid or the trustee's conduct imperils the trust...

Citation
[2017] ZAFSHC 114
Parties
Applicant: H. J. T.; Respondent: J. M. T.; Respondent: H. F. T. N.O.; Respondent: J. M. T. N.O.; Respondent: A. J. D. J. N.O.; Respondent: H. J. T. N.O.; Respondent: The Master of the High Court, Bloemfontein
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
6 July 2017
Case Number
387/2017
Procedural Posture
Urgent Application / Judgment After Hearing of Main and Interlocutory Applications
Outcome
Application dismissed with costs; condonation for late filing of replying affidavit granted.
Judges
Snellenburg, AJ
Legal Topics
Removal of Trustee, Trust Property Control Act, Joinder of Parties, Condonation, Fiduciary Duty
Civil Procedure Land and Property Removal of Trustee Trust Property Control Act Joinder of Parties Condonation Fiduciary Duty

Case Brief

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Parties

H. J. T.

Applicant

J. M. T.

Respondent

H. F. T. N.O.

Respondent

J. M. T. N.O.

Respondent

A. J. D. J. N.O.

Respondent

H. J. T. N.O.

Respondent

The Master of the High Court, Bloemfontein

Respondent

Procedural Posture

Urgent Application / Judgment After Hearing of Main and Interlocutory Applications

Legal Issues

  1. 1 Whether the applicant is entitled to condonation for the late filing of his replying affidavit.
  2. 2 Whether the trustees and the Master of the High Court should be joined as necessary parties.
  3. 3 Whether the dispute regarding the assets of the Kleinfontein Trust should be referred to arbitration under the Trust Deed.

Ratio Decidendi

The court found that only the High Court and, in limited circumstances, the Master have the power to remove a trustee from office. The relief sought for referral to arbitration regarding the removal of the first respondent as trustee was not competent. The applicant failed to establish that the first respondent's claim in the divorce proceedings created an insurmountable conflict of interest or constituted a breach of her fiduciary duties as trustee. The mere fact that a trustee makes a claim against trust assets or alleges that the trust is the alter ego of another does not, in itself, justify removal unless the claim is shown to be invalid or the trustee's conduct imperils the trust...

Court Disposition

Application dismissed with costs; condonation for late filing of replying affidavit granted.

Orders

  • Condonation is granted to the applicant for the late filing of the replying affidavit in the main application.
  • The applicant is ordered to pay the first respondent's costs on an opposed basis pertaining to her opposition to the interlocutory application as a whole.