South Africa Case Law

E.S v R.B (23212016)

E.S v R.B (23212016) [2024] ZANCHC 108 (29 November 2024)

Court

Northern Cape High Court, Kimberley

Case number

2321/2016

Judge

Phatshoane DJP

The court found that the parties freely and voluntarily agreed to include the trust assets in the respondent's estate for accrual purposes in the deed of settlement, which was incorporated into the divorce decree. There was no common mistake or justus error established by the respondent. The inclusion of trust assets did not offend section 12 of the Trust Property Control Act or the trust deed, as South African law allows for the trust form to be pierced in cases of unconscionable abuse, and the parties settled on this basis. The respondent's delay in bringing the counter-application was egre…

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• Accrual System
• Trust Assets In Divorce
• Matrimonial Property Act
• Piercing Trust Veil

M.L.J v A.J and Others (50044/2011)

M.L.J v A.J and Others (50044/2011) [2022] ZAGPPHC 323 (20 May 2022)

Court

North Gauteng High Court, Pretoria

Case number

50044/2011

Judge

E van der Schyff

The High Court granted joinder of the AJ Familie Trust trustees in a divorce action, holding the Trust had a direct and substantial interest in the relief sought.

• Joinder Of Parties
• Trust Assets In Divorce
• Piercing Trust Veil
• Marriage In Community Of Property
• Joinder-of-parties
• Trust-assets-in-divorce

I K v M K and Others (5600/2017)

I K v M K and Others (5600/2017) [2020] ZAFSHC 221 (27 November 2020)

Court

Free State High Court, Bloemfontein

Case number

5600/2017

Judge

NM MBHELE

The court found that the first defendant exercised de facto control over the trusts and close corporation, treating trust assets as his own and failing to maintain a separation between his personal estate and the trust estates. The evidence showed that the trusts were used to conceal assets and frustrate the plaintiff's accrual claim, particularly after the marital relationship deteriorated. The trust deeds gave the first defendant absolute power over beneficiaries and asset distribution, and the plaintiff was excluded from trust decisions despite being a trustee and beneficiary. The court he…

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• Accrual System
• Piercing Trust Veil
• Redistribution Of Assets
• Maintenance Order
• Trust Property Control Act
• Fiduciary Duties

M v M (332/2015)

M v M (332/2015) [2017] ZASCA 5; [2017] 2 All SA 364 (SCA); 2017 (3) SA 371 (SCA) (9 March 2017)

Court

Supreme Court of Appeal

Case number

332/2015

Judges

Shongwe, Swain, Mathopo, Mocumie, Dlodlo

The SCA held that trust assets were not shown to be part of the husband's estate, but recalculated the accrual and upheld the wife's entitlement to R2,669,822.78.

• Accrual System
• Antenuptial Contract
• Trust Property Control Act
• Piercing Trust Veil
• Division Of Assets On Divorce
• Interpretation Of Contracts

M.J.M v L.C.M and Others (5474/2012)

M.J.M v L.C.M and Others (5474/2012) [2015] ZAKZDHC 89 (25 November 2015)

Court

Kwazulu-Natal High Court, Durban

Case number

5474/2012

Judge

Henriques

High Court divorce judgment awarding rehabilitative maintenance, vehicle and medical contributions, and Manhattan property proceeds, while rejecting trust-veil piercing.

• Maintenance
• Section 7 2 Divorce Act
• Ante Nuptial Contract
• Piercing Trust Veil
• Contribution To Costs
• Costs Awards

Firstrand Finance Company v Van Zyl (4826/2014)

Firstrand Finance Company v Van Zyl (4826/2014) [2015] ZAWCHC 74 (27 May 2015)

Court

Western Cape High Court, Cape Town

Case number

4826/2014

Judge

Bozalek

The court found that the applicant had established reasonable grounds to believe that assets may be discovered through investigation, particularly given the respondent's substantial litigation costs, unexplained sources of income, and the use of a trust to hold his residence. The respondent's lack of transparency regarding his financial affairs, the existence of significant debts, and his ability to conduct extensive litigation suggested that further inquiry could benefit creditors. The court agreed with the reasoning in Commissioner SARS v Hawker Air Services and other authorities that a pro…

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• Sequestration
• Advantage To Creditors
• Piercing Trust Veil

WT and Others v KT (933/2013)

WT and Others v KT (933/2013) [2015] ZASCA 9; 2015 (3) SA 574 (SCA) (13 March 2015)

Court

Supreme Court of Appeal

Case number

933/2013

Judges

Lewis, Bosielo, Pillay, Mbha, Mayat

The Supreme Court of Appeal held that the assets of the WT Trust, established prior to the marriage and managed by appointed trustees, do not form part of the joint estate of the parties married in community of property. The respondent was never a beneficiary of the trust, nor did she provide the necessary capital for the acquisition of the trust property. The court found no factual or legal basis for the allegations of deceit or misrepresentation by the husband. The principles governing piercing the trust veneer were not applicable, as there was no unconscionable abuse or fraud, and the resp…

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• Discretionary Family Trust
• Joint Estate
• Piercing Trust Veil
• Marriage In Community Of Property
• Trust Property Control Act
• Divorce Act Section 7 3

V.Z v V.Z and Others (2011/5122)

V.Z v V.Z and Others (2011/5122) [2014] ZAGPJHC 42 (14 February 2014)

Court

South Gauteng High Court, Johannesburg

Case number

2011/5122

Judge

André Gautschi

The court found a husband in contempt for failing to comply with a maintenance order and held that trust assets under his control were his alter ego.

• Maintenance Order Enforcement
• Contempt Of Court
• Piercing Trust Veil
• Redistribution Order
• Rule 43 Procedure
• Accrual System

Van Greune NO ans Another v Van Greune In re: Van Greune v Van Greune and Others (57674/2012)

Van Greune NO ans Another v Van Greune In re: Van Greune v Van Greune and Others (57674/2012) [2013] ZAGPPHC 291 (14 October 2013)

Court

North Gauteng High Court, Pretoria

Case number

57674/2012

Judge

Potterill

The High Court upheld an exception to a divorce summons seeking declarations that a trust was the alter ego of a spouse and that its assets formed part of the joint estate.

• Trusts In Divorce
• Piercing Trust Veil
• Fiduciary Duty
• Declaratory Orders
• Trusts-in-divorce
• Piercing-trust-veil

Nedbank Limited v Thorpe (7392/2007)

Nedbank Limited v Thorpe (7392/2007) [2008] ZAKZHC 72 (26 September 2008)

Court

High Courts - Kwazulu Natal

Case number

7392/2007

Judge

Levinsohn

The court found that the respondent had consistently used trusts and corporate entities to conduct his business and shield assets from creditors, while binding himself as surety for substantial liabilities. The respondent's financial dealings, including the acquisition of luxury assets through the trust and his involvement in business activities, created a strong suspicion that the trust was used as a vehicle for his personal benefit. The applicant's efforts to investigate the trust were obstructed, but the evidence suggested that a forensic examination could reveal assets beneficial to credi…

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• Provisional Sequestration
• Advantage To Creditors
• Suretyship Liability
• Abuse Of Trust
• Piercing Trust Veil