Van Graan N.O and Others v Waisman and Others (2509/2022) [2023] ZAECMKHC 27 (21 February 2023)

Van Graan N.O and Others v Waisman and Others (2509/2022) [2023] ZAECMKHC 27 (21 February 2023)

The court found that the ongoing enmity between Mrs van Graan and Mrs Waisman had rendered the trusts dysfunctional and imperilled their assets. The evidence established that Mrs van Graan had, at minimum, neglected her fiduciary duties as trustee, justifying her removal under section 20(1) of the Trust Property Control Act. The court rejected the argument that only one independent trustee could be appointed, finding the trust deed permitted multiple independent trustees and that such appointments were necessary to restore functionality and prevent vindictive decision-making. The court struck out portions of Mrs Dickie's affidavit as hearsay and irrelevant, and ordered costs to be borne...

Citation
[2023] ZAECMKHC 27
Parties
Applicant: Jennifer Elizabeth van Graan N.O.; Respondent: Marilyn Elizabeth Waisman; Respondent: Carolyn Anne Johnson; Respondent: Sandra Lee Bosch; Respondent: Bernice Rosslyn Dickie; Respondent: Mark Alistair Bradley; Respondent: Gabrielle Ann Johnson; Respondent: Ryan Richard Johnson; Respondent: Kaylie-Ann Bosch; Respondent: Devan Stow Bosch; Respondent: Ross Douglas Dickie; Respondent: Justin Dylan Dickie; Respondent: Jennifer Elizabeth van Graan N.O.; Respondent: Master of the High Court
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
21 February 2023
Case Number
2509/2022
Procedural Posture
Urgent Application / Judgment Delivered After Opposed Application and Counter Application
Outcome
Application and counter-application partially granted. Mrs van Graan removed as trustee; new trustees appointed; costs to be borne by the trust.
Judges
JE Smith
Legal Topics
Trustee Removal, Fiduciary Duties, Family Trusts, Trust Property Control Act, Appointment of Trustees, Costs Orders
Land and Property Civil Procedure Family and Children Trustee Removal Fiduciary Duties Family Trusts Trust Property Control Act Appointment of Trustees +1 more

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Parties

Jennifer Elizabeth van Graan N.O.

Applicant

Marilyn Elizabeth Waisman

Respondent

Carolyn Anne Johnson

Respondent

Sandra Lee Bosch

Respondent

Bernice Rosslyn Dickie

Respondent

Mark Alistair Bradley

Respondent

Gabrielle Ann Johnson

Respondent

Ryan Richard Johnson

Respondent

Kaylie-Ann Bosch

Respondent

Devan Stow Bosch

Respondent

Ross Douglas Dickie

Respondent

Justin Dylan Dickie

Respondent

Jennifer Elizabeth van Graan N.O.

Respondent

Master of the High Court

Respondent

Procedural Posture

Urgent Application / Judgment Delivered After Opposed Application and Counter Application

Legal Issues

  1. 1 Whether the ongoing enmity between trustees justifies their removal from office.
  2. 2 Whether the appointment of independent trustees is necessary to restore the proper functioning of the trusts.
  3. 3 Whether the conduct of Mrs van Graan constituted a breach of fiduciary duties as trustee.

Ratio Decidendi

The court found that the ongoing enmity between Mrs van Graan and Mrs Waisman had rendered the trusts dysfunctional and imperilled their assets. The evidence established that Mrs van Graan had, at minimum, neglected her fiduciary duties as trustee, justifying her removal under section 20(1) of the Trust Property Control Act. The court rejected the argument that only one independent trustee could be appointed, finding the trust deed permitted multiple independent trustees and that such appointments were necessary to restore functionality and prevent vindictive decision-making. The court struck out portions of Mrs Dickie's affidavit as hearsay and irrelevant, and ordered costs to be borne...

Court Disposition

Application and counter-application partially granted. Mrs van Graan removed as trustee; new trustees appointed; costs to be borne by the trust.

Orders

  • Those portions of the Fourth Respondent’s answering affidavit mentioned in the First Respondent’s application to strike out are struck out.
  • Jennifer van Graan is removed from office as trustee of the Godfrey van Graan Family Trust and the Gowan Hill Trust with immediate effect.