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Court case: Ganie vs Ganie, removal of trustee

Read the below court case regarding the removal of a trustee by the Master. The actual decision follows the initial extracts.

Extracts from judgment Ganie v Ganie

Just before [38]:

45.3

The real error was the precipitate decision by Ms Moatlhudi to remove the first applicant as a trustee:

45.3.1

before he had an opportunity to respond to the 10 August 2011 letter; and/or

Page 48 of [2012] JOL28245 (KZD)

45.3.2

without affording the first applicant an opportunity to deal with any complaints or charges which Adv Rajah may have levelled (and probably did level) against the first applicant during her discussion with Ms Moatlhudi on 15 August 2011; and/or

45.3.3

without ensuring that the first applicant had been given proper and effective notice of the precise grounds (including those on which Adv Rajah relied) for the proposed removal of the first applicant as a trustee; and/or

45.3.4

without ensuring that the first applicant had been given proper and effective notice of her intention to remove him as a trustee; and/or

45.3.5

without ensuring that the first applicant had been given a proper and effective opportunity to state his case in respect to any complaints or charges, on the strength of which she contemplated his removal as a trustee; and/or

Page 49 of [2012] JOL28245 (KZD)

45.3.6

without taking all the steps which were reasonably necessary to ensure that the first applicant was afforded procedural fairness in the matter of his removal as a trustee.

46.18

I point out that there are material conflicts of fact between the affidavit evidence of the first respondent and that of the first applicant. There was no request by any party that any such dispute should be referred for the hearing of oral evidence. If I do the best I can on the affidavit evidence, I am probably favouring the first and second respondents by adopting such a “robust” approach. Another way of resolving the dispute of fact would be to apply the principles set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A). I think it will be appropriate to apply the said principles to the section 23 application of the first and second respondents. This is so because they are the de facto applicants for the removal by this Court of the first applicant as a trustee. If I apply the said principles in deciding the section 23 application, it must fail – that much is plain from my analysis of the affidavit evidence.

Page 60 of [2012] JOL28245 (KZD)

If I evaluate the affidavit evidence as best I can, I am inclined to agree with Mr Shaw‘s submission that, by and large, the evidence of the first applicant is more probable, more cogent and more persuasive than the evidence of the first respondent.

The first and second respondents failed to satisfy me, on a balance of probabilities, that they are entitled to any order in terms of section 23.

My aforesaid conclusion will stand, even if I err in rejecting some parts of the evidence of the first applicant. The removal of the first applicant as a trustee involves a value judgment. In my view, the first and second respondents did not remotely prove a case for such relief. If I erred in rejecting some parts of the evidence of the first applicant (which I do not say I did) I doubt very much if that evidence will constitute sufficient proof to warrant the drastic relief claimed by the first and second respondents, namely, the removal of the first applicant as a trustee.

46.19

For these reasons, I conclude that the application in terms of section 23 must fail and it is dismissed.

49.5

In paragraph [28], above, I quoted the third respondent’s notice to abide. In my view, the effect of the notice to abide is such that no other party could claim any order for costs against the third respondent, without giving due notice to the third respondent. I

Page 70 of [2012] JOL28245 (KZD)

do not have to determine what would constitute “due notice”. At the hearing on 12 December 2011 no party claimed to have given any form of notice whatsoever to the third respondent that a cost order would be sought against that official. Absent any such notice, I do not think I can make a cost order against the third respondent.

Ganie & others v Ganie & others
[2012] JOL28245 (KZD)

Reported in: Judgments Online, a LexisNexis Electronic Law Report Series
Case No: 9657 / 2011
Judgment Date(s): 23 / 12 / 2011
Hearing Date(s): 12 / 12 / 2011
Marked as: Unmarked
Country: South Africa
Jurisdiction: High Court
Division: KwaZulu-Natal, Durban
Judge: McLaren J
Bench: McLaren J
Parties: Haroun Siddy Ganie (1At), Asif MS Ganie (2At), Afzal MS Ganie (3At), Yusuf MS Ganie (4At), Farazana Jhavary (5At); Faizel Mahomed Siddy Ganie (1R), Fawzia Amod Sacoor (2R), The Master of the High Court, Pietermaritzburg (3R), The Registrar of Deeds (4R)
Appearance: Adv DJ Shaw QC, Adv PJ Combrinck, Timol & Associates (At); Adv A Choudree SC, Azgar Ally Khan & Associates (1–2R)
Categories: Application – Civil – Substantive – Private
Function: Confirms Legal Principle
Relevant Legislation: Trust Property Control Act 57 of 1988

Key Words

Trusts and Estates – Trusts – Trustees of trust – Removal of trustee – Validity

Mini Summary

The first applicant’s brother (“the testator”) drew up a will in 1981, appointing the first applicant and the first respondent (the testator’s son) as his executors and the administrators of his estate. The testator left his entire estate in trust (which was to endure for 20 years) for his administrators to use as specified in the will. After the death of the testator in 1998, the first applicant and the first respondent were appointed as trustees of the trust in January 1990.

As 20 years had lapsed, the trust assets had to be divided amongst the testator’s beneficiaries, who were the second, third, fourth and fifth applicants (children of the testator’s first wife) and the first respondent, the second respondent and one other (children of the testator’s second wife).

At the time of his death the testator owned a building which had to be sold by his executors after the lapse of the 20-years period referred to above, and the proceeds had to be divided amongst the beneficiaries. In October 2008 the trustees sold the property for a price of R6m.

In an application by the children of the testator’s first wife, a declaration was sought, that the sale agreement was invalid. A consent order was made in that matter. In the present application, the applicants sought the setting aside of the master’s appointment of the second respondent as trustee in the testamentary trust, and the reinstatement of the first applicant as trustee.

Held that it was agreed by the parties that the real issue for determination was the validity, or otherwise, of the third respondent’s removal of the first applicant as a trustee. The third respondent’s power to remove any trustee from office is found in section 20 of the Trust Property Control Act 57 of 1988 (“the act”). It was common cause that the only relevant provision of section 20 was sub-section (2)(e), in terms of which a “trustee may at may time be removed from his office by the master if he fails to perform satisfactorily any duty imposed upon him by or under this act or to comply with any lawful request of the Master”. The master had removed the first applicant as trustee in this case on the ground, inter alia, of failure to comply with certain requirements. The Court found that to be unjustified, and therefore the removal of the first applicant was invalid. The appointment of the second respondent as a trustee was also set aside.

Page 1 of [2012] JOL28245 (KZD)

McLAREN J

[1] In this opposed application, Mr Shaw and Mr Combrinck appeared for the applicants, while Mr A Choudree represented the first and second respondents. The third respondent was not legally represented at the hearing before me on 12 December 2011. At my request, Ms Moatlhudi (Deputy Master) and Ms Moodley (Assistant Master) were present at court on 12 December 2011 and answered certain questions which I put to them. The other official at the office of the third respondent whose presence I required at court, is Ms Davel (Examiner), but, she was due to undergo an operation and could not attend the hearing. I mentioned the

Page 2 of [2012] JOL28245 (KZD)

names and the positions of these three officials in descending order of seniority.

[2] On 30 April 1981, Mahomed Siddy Ganie (“the testator”) made a will and appointed his brother (the first applicant) and his son (the first respondent) as his executors and as administrators of his estate. In clause 4 of his will the testator left his entire estate to his “administrators in trust for the uses, interests and purposes hereinafter mentioned”. The testator stipulated that the trust which he created, would endure for a period of 20 years and that the said executors and administrators must then distribute the trust assets as follows: one half had to be divided amongst his children from his first wife and the other half had to be divided amongst his children from his second wife. In each instance the said share had to be divided amongst the said children according to the Islamic law of succession.

[3] The testator died on 25 October 1988 and the first applicant and the first respondent were appointed as the trustees of the trust on 26 January 1990. It was common cause that the said 20 years had lapsed and that the trust assets must be divided amongst the testator’s beneficiaries, who are the second, third, fourth and fifth applicants (children of the testator’s first wife) and the first respondent, the second respondent and Farida Ahmed (children of the testator’s second wife).

[4] At the time of his death the testator owned a building which had been erected on two immovable properties, namely Portion 1 of Erf 121 Tongaat and Rem of Erf 121 Tongaat (“the property”). It was common cause that, as part of their duties as trustees, the first applicant and the first respondent had to sell the property after the lapse of the said 20 years, in order to distribute the proceeds of the sale amongst the said beneficiaries.

Page 3 of [2012] JOL28245 (KZD)

[5] On 25 October 2008 the trustees sold the property to KNA Property Investments CC for a price of R6 million and DK Singh, Vahed & Partners were appointed as conveyancers by the trustees to attend to the transfer of the property to the purchaser. This agreement was the subject-matter of litigation in this Court under case number 4203/2010. In that application, the purchaser claimed transfer of the property and other relief from the trustees (cited as the first and second respondents) and the said conveyancers, cited as the third respondent. The Registrar of Deeds was the fourth respondent.

[6] On 3 May 2011 an order was made by consent in case number 4203/2010. By that time the second, third, fourth and fifth applicants in this application had been given leave to intervene in case number 4203/2010. The terms of the said consent order can be summarised as follows:

6.1

The trustees and the said conveyancers were directed to take all the necessary steps to transfer the property to the purchaser, against payment of R6,5 million.

6.2

The trustees were directed to pay the purchaser’s costs.

6.3

The costs of the trustees and of the intervening beneficiaries and of the daughters of the testator (the present second respondent and the said Ahmed) had to be paid by the trust.

[7] On 3 May 2011 a so-called “supplementary agreement” was concluded which regulated the manner in which payment of the increased price of R6,5 million for the property had to be secured. This agreement contained the

Page 4 of [2012] JOL28245 (KZD)

following provision, which relates to two guarantees and which refers to the agreement of sale, dated 25 October 2008:

“In the event of the guarantees not being provided by 20 May 2011, the agreement of purchase and sale shall be of no further force and effect, and be deemed to have been cancelled.”

[8] The court order and the supplementary agreement, referred to in paragraphs [6] and [7], respectively, above, gave rise to further litigation in this Court, namely, in case number 5865/2011. This litigation was brought by the four children of the testator’s first wife (ie the second, third, fourth and fifth applicants, cited above) against the purchaser of the property, the trustees and the said conveyancers, cited as first, second, third and fourth respondents, respectively. The testator’s brother (ie the first applicant, cited above) is the second respondent and the testator’s son (the first respondent, cited above) is the third respondent. The application papers in case number 5865/2011 run into 268 pages, but the following is a very brief summary of what that case is about: the applicants aver that the said guarantees were not furnished at all, let alone timeously; the second respondent sides with the applicants; the first respondent and the third respondent aver that proper guarantees were timeously delivered; the fourth respondent said that it abides the decision of the court and attorneys wrote on behalf of “Farida Ahmed and Fawzia Sacoor (and said) we record that our clients are not prepared to participate in the proceedings . . .”

[9] The application in case number 5865/2011 was issued and brought as a matter of urgency on 23 May 2011. For reasons which will become apparent hereinafter, I quote paragraphs 1–3 of the notice of motion:

Page 5 of [2012] JOL28245 (KZD)

“1.

That a rule nisi do hereby issue calling upon the Respondents to show cause on . . . JUNE 2011 why the following Order should not be granted:

1.1

that the written agreement of sale concluded on 25 October 2008 between the First Respondent on the one hand and the Second and Third Respondents on the other hand be and is hereby declared cancelled;

1.2

that the First, Second and Third Respondents be and are hereby interdicted from effecting transfer of the immovable properties and taking the steps contemplated in paragraphs 1 and 2 of the Court Order dated 3 May 2011 (annexed to the founding affidavit marked ‘AG9’);

1.3

that a public auctioneer appointed by the applicants, alternatively the Sheriff of the High Court be and is hereby authorised to do all things necessary to sell the immovable properties described as:

1.3.1

Portion 1 of Erf 121, Tongaat, Registration Division FU, Province of KwaZulu-Natal, in extent 772 (seven hundred and seventy two) square metres, which property is situated at 3 Watson Street, Tongaat; and

1.3.2

Rem of Erf 121, Tongaat, Registration Division FU, Province of KwaZulu-Natal, in extent 1814 (one thousand eight hundred and fourteen) square metres, which property is situated at 1 Watson Street, Tongaat;

Page 6 of [2012] JOL28245 (KZD)

1.4

that the Fourth Respondent be and is hereby authorised to transfer the immovable properties sold in terms of paragraph 1.3 above and to divide the proceeds in accordance with the provisions of the will of the late Mahomed Siddy Ganie;

1.5

that the costs of the application be paid by any Respondent opposing this application.

2.

That the relief set out in paragraph 1.2 above operate as interim relief pending the outcome of the application.

3.

That any Respondent intending to oppose confirmation of the rule nisi herein shall give notice of such opposition and file any affidavit in support thereof by . . . JUNE 2011.”

[10] On 23 May 2011 the following order was made by consent in case number 5865/2011:

“1.

That it is recorded that the second respondent and the third respondent each undertakes to instruct the fourth respondent not to take any steps to effect transfer of the properties referred to in the notice of motion to the first respondent and not to take any steps to cause such transfer to be effected.

2.

That accordingly the fourth respondent is ordered, until further order, not to take any steps to effect such transfer.

Page 7 of [2012] JOL28245 (KZD)

3.

That any respondent wishing to oppose the grant of an order in the terms set forth in paragraph 1.1 to 1.5 of the order set forth in the Notice of Motion shall give notice of intention so to oppose and file any affidavit in opposition by 17th June 2011.

4.

That the application is adjourned sine die.

5.

That the costs are reserved.”

[11] Case number 5865/2011 was set down for hearing before me on 12 December 2011. On that day Mr Shaw and Mr Combrinck appeared for the applicants and Mr Kemp represented the first respondent. There was no appearance for the second, third and fourth respondents. I made an order by consent, the matter having been settled.

[12] The applicants’ notice of motion in this application was issued on 29 August 2011 and on that day the following order was made:

“1.

That a rule nisi do hereby issue calling upon the Respondents to show cause on the 19th day of SEPTEMBER 2011 why the following Orders should not be granted:

1.1

That the Master of the High Court’s appointment of the Second Respondent as trustee in the Testamentary Trust, created in terms of Clause 11 of the Will of the Late Mahomed Siddi Ganie, be and is hereby set aside;

1.2

That the First Applicant be and is hereby reinstated as trustee of the trust;

Page 8 of [2012] JOL28245 (KZD)

1.3

That the First and Second Respondents be and are hereby interdicted from seeking the removal of the First Applicant as trustee other than by the institution of legal proceedings on notice to the First Applicant;

1.4

That the First and Second Respondents be and are hereby interdicted from:

1.4.1

withdrawing or causing to be withdrawn or in any way transacting with the funds standing to the credit of the MS Ganie Trust in its bank account held with Standard Bank, Albert Street Branch, Durban under account number 250472791;

1.4.2

taking any steps to effect transfer of the immovable property described as Portion of Erf 121 Tongaat and Rem of Erf 121, Tongaat to KNA Property Investments CC;

1.5

That the Master of the High Court be and is hereby directed to make available to the Applicants, within fifteen (15) days of the grant of this order, a record of the proceedings relating to its decision to remove the First Applicant as trustee in the Estate Late Siddi Ganie as is recorded in annexure ‘HMT3’, ‘HMT4’ and ‘HMT5’ to the Founding Affidavit herein;

1.6

That the Applicants be and are hereby granted leave to supplement their papers upon receipt of such record;

1.7

That the costs of the application be borne by the First and Second Respondents or if deemed appropriate, by the Office

Page 9 of [2012] JOL28245 (KZD)

of the Master of the High Court, on the scale as between attorney and client such to include the costs consequent upon the employment of two counsel.

2.

That the relief set out in paragraphs 1.3, 1.4 and 1.5 above, operate as interim relief with immediate effect pending the outcome of the application.”

[13] On 19 September 2011 this application was adjourned by consent to 3 October 2011; the return date of the rule nisi was extended accordingly and costs were reserved. On 3 October 2011 this application was adjourned by consent to 19 October 2011; the applicants were directed to deliver any replying affidavit by 17 October 2011 and costs were reserved.

[14] On 17 October 2011 the applicants delivered a notice relating to “their affidavit in reply and in support of further orders sought by way of urgent interim relief”.

[15] On 19 October 2011 the matter came before Vahed AJ and he made the following order (which contains an error in paragraph 1, inasmuch as the case number should clearly have been “5865/2011”):

“1.

A rule nisi shall issue returnable on 12 December 2011, that date being on the Opposed Roll when this matter will be heard together with the application under case number 5861/2011 (sic).

2.

In terms of rule nisi, the First and Second Respondents are to show cause why an order should not be made in the following terms:

Page 10 of [2012] JOL28245 (KZD)

(a)

That the First and Second Respondents be and are hereby interdicted from exercising their powers of trustee and in any way dealing with the affairs of the testamentary trust created in terms of clause 11 of the Will of the late Mahomed Siddy Ganie.

(b)

That attorneys DK Singh Vahed & Partners by and is (sic) hereby authorised, from monies held to the credit of the said trust, to pay any outstanding accounts payable in respect of electricity, water and rates in respect of the trust properties.

(c)

That Wakefields (Pty) Limited be and is hereby authorised to:

(i)

commence the collecting of rental in respect of the trust properties;

(ii)

hold such monies to the credit of the said trust until otherwise ordered;

(iii)

administer the affairs of the property of the trust, such to include any necessary repairs and maintenance.

(d)

That the first respondent be and is hereby directed to render to the Applicants, within fourteen (14) days of the grant of this order, an accounting in respect of the disbursements made from the trust bank account number 250472791 in the name of MS Ganie Trust held with Standard Bank from 16 August 2011 to date.

Page 11 of [2012] JOL28245 (KZD)

3.

The provisions of 2a, 2b and 2c shall operate as interim relief pending the final resolution to this matter.

4.

The First and Second Respondents are given leave to anticipate the return day of the rule nisi on 48 hours’ notice to the Applicants.

5.

Should the matter not be anticipated, the First and Second Respondents are directed to file their answering affidavits within 14 days of today’s date and the Applicants are directed to file their replying affidavits, if any, within 7 days thereafter.”

[16] The next step in the feast of litigation occurred on 31 October 2011 when the first and second respondents in this application gave notice of their intention to anticipate the return date (ie 12 December 2011) and to make application on 9 November 2011 for the following relief:

“. . . for the purpose of discharging paragraphs 2 (a) and 2 (b) of the Rule granted on 19 October 2011 and the engraftment of additions to paragraph (c) and for the further urgent interim relief set out in the Order set out hereunder:

1

That the First Applicant is interdicted and restrained from exercising his powers as a Trustee and in any way dealing with the affairs of the Testamentary Trust created in terms of Clause 11 of the Will of the Late Mohamed Siddy Ganie;

2

That the First Applicant is interdicted from withdrawing or causing to be withdrawn or in any way transacting with the funds standing to the credit of MS Ganie Will Trust in its bank account held with Standard Bank, Albert Street Branch, Durban, under account number 250472791;

Page 12 of [2012] JOL28245 (KZD)

3

That attorneys DK Singh Vahed & Partners are hereby ordered to pay all monies held to the credit of the said Trust to Wakefields (Pty) Limited forthwith;

4

That Wakefields (Pty) Limited be and is hereby authorised to pay any outstanding accounts payable in respect of electricity, water, rates and VAT in respect of the Trust properties from monies held to the credit of the said Trust;

5

That DK Singh Vahed & Partners are hereby directed to render to the First and Second Respondents within 14 days of the grant of this Order, an accounting in respect of income received and disbursed (sic) made from the monies held to the credit of the Trust.

6

That the Applicants be ordered to pay the costs of this application jointly and severally, the one paying the other to be absolved.”

[17] On 9 November 2011, Lopes J made an order in the following terms in this application:

“The rule granted by Vahed AJ at Durban on the 19th October 2011 is extended to 12th December 2011.

Paragraph 2(a) of that order is to continue.

Paragraph 2(b) is deleted and replaced with: ‘that attorneys DK Singh Vahed & Partners are ordered to pay all monies held to the credit of the said trust to Wakefields (Pty) Ltd forthwith’.

Paragraph 2(c) is to continue save that there will be an additional subparagraph (iv) which will read ‘to include payments of outstanding accounts payable

Page 13 of [2012] JOL28245 (KZD)

in respect of electricity, water, rates and VAT in respect of the said properties held to the credit of the said Trust’.

Paragraph 2(d) is to continue save that ‘Applicant’ will read ‘Master’.

Paragraph 3 will continue.

Paragraph 4 is replaced with the following: ‘The first applicant is interdicted and restrained from purporting to exercise any powers as a trustee and in any way dealing with the affairs of the testamentary Trust created in terms of Clause 11 of the will of Mohamed Siddy Ganie’.

Paragraph 5 will read: ‘The first applicant is interdicted from withdrawing or causing to be withdrawn or in any way transacting with the funds standing to the credit of the MS Ganie Will Trust in its bank account held with Standard Bank, Albert Street branch, Durban in account number 250472791’.

Paragraph 6 will read ‘DK Singh Vahed & Partners are directed to render to the Master within 14 days of the grant of this order an accounting in respect of income received and disbursed (sic) made from monies held to the credit of the Trust’.

Paragraph 7 will read that the costs of this application are reserved for the decision of the court ultimately hearing the matter on 12th December 2011.”

[18] In my preparation for the hearing of this application, I had the benefit of the assistance of counsel’s comprehensive heads of argument, for which I thank them. At the commencement of the hearing, counsel agreed that:

18.1

the real issue, which had to be decided first, is the validity, or otherwise, of the third respondent’s removal of the first applicant as a trustee;

18.2

if the said issue is decided in favour of the applicants, the third respondent’s appointment of the second respondent as a trustee

Page 14 of [2012] JOL28245 (KZD)

must be set aside. I agree with this view because it was clearly not the testator’s intention that there should be more than two trustees and the only reason for the second respondent’s appointment as a trustee, is the removal of the first applicant as a trustee.

[19] Against this backdrop, I turn to a consideration of the real issue, namely, the validity, or otherwise, of the third respondent’s removal of the first applicant as a trustee in the testator’s trust.

[20] The third respondent’s power to remove any trustee from office is found in section 20 of the Trust Property Control Act 57 of 1988 (“the Act”). It was common cause that the only relevant provision of section 20 is subsection (2)(e), in terms of which a “trustee may at may time be removed from his office by the Master if he fails to perform satisfactorily any duty imposed upon him by or under this Act or to comply with any lawful request of the Master”.

It is a convenient time to refer to certain other sections of the Act.

Section 9(1) provides that “a trustee shall in the performance of his duties and the exercise of his powers act with the care, diligence and skill which can reasonably be expected of a person who manages the affairs of another”.

Section 19 provides that “if any trustee fails to comply with a request by the Master in terms of section 16 (the heading of which is, “Master may call upon a trustee to account“) or to perform any duty imposed upon him by the trust instrument or by law, the Master or any person having an interest in the trust property may apply to the court for an order directing the trustee to comply with such request or to perform such duty”.

Page 15 of [2012] JOL28245 (KZD)

Section 23 provides that “any person who feels aggrieved by an authorization, appointment or removal of a trustee by the Master or by any decision, order or direction of the Master made or issued under this Act, may apply to the court for relief, and the court shall have the power to consider the merits of any such matter, to take evidence and to make any order it deems fit”.

[21] The founding affidavit in this application was deposed to by Mr Timol, who is the attorney representing the applicants. Timol explained that the first applicant was overseas at the time when this application was launched and averred that he was duly authorised to act on behalf of the first applicant. The affidavit evidence as a whole satisfies me that Timol had the necessary authority from the first applicant to institute this application.

[22] Later in this judgment, I will carefully examine how it came about that the first applicant was removed as a trustee and why he was so removed. I think it will make for an easier understanding of the judgment if I quote fairly extensively from Timol’s affidavit in which he set out the relevant facts and made certain submissions as follows:

“22.

I was astonished when on 19 August 2011 I received from G.H. Ismail & Associates a copy of a letter indicating that the Third Respondent had written letters to the First Applicant on 6 and 13 June 2011 to which the Applicant had failed to respond and also that it was alleged that the First Applicant had failed to comply with the court order dated 3 May 2011. It was further stated that by reason of the First Applicant’s failure to respond to those letters it was the Third Respondent’s intention to remove the First Applicant from office as trustee on a date thirty days from the date of notice sent which was 10 August 2011.

Page 16 of [2012] JOL28245 (KZD)

23.

It is incomprehensible why these communications were directed to G.H. Ismail & Associates. My office had been in communication with the office of the Third Respondent in connection with the affairs of the trust and in fact in connection with a complaint against the First Respondent’s conduct as trustee in the year 2009.

24.

When the letters were eventually received it appeared that they had been sent to the First Applicant but that the address was completely insufficient because it did not state the street in which the building was situated. It was therefore unlikely that they would have been received by the First Applicant.

25.

The First Applicant has never indicated to me that he received any such communication and I verily believe that he would have done so if he had received the communication. I annex hereto marked HMT3 and HMT4 letters from the Master’s office dated 15 and 16 August.

26.

On 22 August 2011 I telephoned the Master’s office and spoke to a Ms Venecia Moodley an official at that office.

27.

I was informed by her that Dr Ganie, the First Respondent, had lodged a complaint with the Master’s office which I took to be the basis of the correspondence dated 6 June 2011 referred to in the Master’s letter of 15 August. It appears therefore that the First Respondent’s complaint was made after the launching of Application No. 5865/2011 which sought among other things a declaration that the agreement of sale had been cancelled and that the properties concerned should be sold. As I have pointed out this necessarily meant that the order of 3 May 2011 Annexure AG9 in Application No. 5865/2011 would not be carried out in view of the

Page 17 of [2012] JOL28245 (KZD)

terms of the agreement referred to in paragraph 35 of the founding affidavit of that application.

28.

I asked for copies of the letters of 6 June 2011 and 13 June 2001 and also for a tracking number with regard to those letters to enable me to make enquiries at the post office. These numbers have yet to be supplied. According to Moodley, the address for the first applicant appearing on the letter, was an address furnished to the Master’s office by Dr Ganie, the first respondent.

29.

Although the Master’s letter dated 15 August 2011 (annexure ‘HMT3’) said that the First Applicant would be removed on the expiry of thirty days from the date of that letter the next day a letter was sent stating that the First Applicant was removed immediately. The reasons were, in both cases, failure to comply with the requirements in the previous correspondence in June 2011 and non-compliance with the Order of Court date (sic) 3 May 2011.

30.

I accordingly requested information as to who had been appointed as trustee and was informed that the trustees are the First and Second Respondents. I annex hereto marked HMT5 a copy of the E-mails reflecting the exchange between myself and Ms Moodley.

31.

Thereafter I requested further information as set out in E-mail contained in Annexure HMT6 which I annex hereto. As will be seen it is said that the removal of the trustee was done

‘on the basis of the Order of Court dated 3/5/2011 which the trustee has failed to comply with to date and on the basis that the trust should have been terminated in 2008’.

Page 18 of [2012] JOL28245 (KZD)

32.

So far as the Order of Court is concerned that is dealt with not only in this affidavit but in more detail in Application No. 5865/2011. I submit it is clear that at the very lowest there is a bona fide dispute as to whether in the circumstances the First Applicant was obliged to carry out the terms of an order which on good grounds it appears has fallen away. The interim Order granted in application number 5865/2011 on 23 May 2011 specifically prohibits the First Respondent from giving effect to the Order of 3 May 2011 by seeking the transfer the properties (sic).”

[23] In his affidavit, Timol also raised certain other matters, which I summarise thus:

23.1

The first respondent “terminated the First Applicant’s authority and signing powers to the trust’s bank account . . .”.

23.2

“Until the removal of the First Applicant as trustee, he was responsible for the management of the trust’s affairs, its bank account and dealing with the tenants and collection of rental.”

23.3

The first respondent may “cause payment to be made of legal costs incurred in previous legal proceedings, from the bank account, now that he has sole control over it”.

23.4

The first respondent should be interdicted from dealing with the said bank account, pending finalisation of this application.

[24] The first respondent delivered an answering affidavit of 40 pages with more than 50 pages of annexures. The second respondent delivered a brief confirmatory affidavit. It is clear from the first respondent’s answering affidavit that it deals with the following three distinct subjects:

Page 19 of [2012] JOL28245 (KZD)

24.1

two preliminary points are raised, namely, the alleged non-disclosure of material information in the founding affidavit and the challenge of Timol’s authority to depose thereto;

24.2

the first respondent’s support for the third respondent’s removal of the first applicant as a trustee;

24.3

the first and second respondents’ own case for the removal of the first applicant as a trustee in terms of section 23 of the Act.

[25] Although there is some overlapping between the matters referred to in paragraphs 24.2 and 24.3, above, I think that I should deal with them separately and that I should do so in the sequence set out in those paragraphs.

[26] The point in paragraph 24.1, above, relating to the alleged non-disclosure can be dismissed outright – there is simply no merit in it. I point out the following with regard to the so-called five points in limine relating to the alleged non-disclosure of material facts:

26.1

Not one of them is, in fact, a preliminary point which is capable of being dealt with as such.

26.2

The said points (and others of a similar nature) were all raised in Mr Choudree‘s heads of argument in support of his submission that they “reflect a serious dereliction of duty by the First Applicant warranting his removal by the Master . . .”

26.3

I deal fully with each of at points referred to in paragraph 26.2, above, in paragraph [46], below.

Page 20 of [2012] JOL28245 (KZD)

26.4

It is clear from paragraph [46], below, that there are serious disputes of fact about the points referred to in paragraph 26.2, above.

26.5

A further indication that the points referred to in paragraph 26.2, above, are not really points in limine, is Mr Choudree‘s submission that their effect is that “the court can intervene and consider those facts in denying the First Applicant any relief for re-instatement”.

26.6

One of the so-called points in limine relates to the first applicant’s failure to disclose that certain complaints had been lodged against him by the first respondent with the third respondent. The first applicant answered this by denying receipt of any correspondence from the third respondent and, therefore, denying any knowledge of the said complaints at the time when this application was launched. I fully examined all the relevant evidence and, for reasons which will appear quite clearly from my judgment, I came to the conclusion that it is highly probable that the first applicant did not receive the said correspondence.

26.7

It is thus not surprising that the so-called points in limine were never argued on any occasion when this application came before the court and that, on 12 December 2011, the points referred to in paragraph 26.2, above, were relied on, not as real points in limine, but in support of the contentions set out in paragraphs 26.2 and 26.5, above.

The point taken by the first and second respondents regarding Timol’s alleged lack of authority is equally devoid of substance (see also paragraph [21], above). I should say that the first respondent’s answering affidavit is argumentative (witness, for instance, “absurd speculation”,

Page 21 of [2012] JOL28245 (KZD)

“shadow boxing” and “the applicants have misdirected their arrows”) and it is replete with scathing references to the applicants (such as, “the First Applicant deliberately delayed the entire process in collusion with the Fourth Applicant” and “I submit that the underlying reason for seeking the reinstatement of the First Applicant is the fear of the Applicants and more particularly the Fourth Applicant that without the First Applicant functioning as trustee, the misappropriation of trust funds and acts of fraudulent non disclosures will be indentified for the attention of the prosecuting authorities” and “The reason for the voluminous papers and protracted litigation is a direct result of the irrational, unreasonable and arbitrary decisions of the Applicants . . .”). The first respondent’s invective is not limited to the applicants – of Timol he said: “the deponent fabricates negative aspersions on the Third Respondent”.

[27] The first and second respondentssupport for the third respondent

27.1

In paragraph [22], above, I quoted fairly extensively from Timol’s affidavit. In paragraphs 24, 25, 26 and 28 of his affidavit, Timol deals with the alleged non-receipt by the first applicant of correspondence addressed to him by the third respondent.

27.2

The first and second respondents’ support for the third respondent’s decision to remove the first applicant as trustee, consists of averments which suggest that the first applicant did, in fact, receive the said correspondence. The first respondent stated that “to dispose of such contrived speculation” by Timol that the first applicant did not receive the said correspondence, he attached a letter from the first applicant to him which reflected the first applicant’s address as being 411 Lagoon Lodge, Riverside, Durban. For the same purpose, the first respondent also

Page 22 of [2012] JOL28245 (KZD)

attached a letter which he had written to the first applicant to the same address and which he said the first applicant had received. The first respondent denied Timol’s averments in paragraph 24 of the founding affidavit and said that Timol’s contention is “very misleading in that it suggests that service was defective”. The vituperative tenor of the first respondent’s answering affidavit is plain for all to see.

[28] In paragraph [12], above, I quoted the order which was made in this application on 29 August 2011. For present purposes, I direct the attention to paragraphs 1.5 and 1.7 of that order. The State Attorney delivered a notice to abide, dated 3 October 2011, which reads as follows:

“Kindly take notice that the Third Respondent herein gives notice that it is its intention not to oppose the relief sought by the applicants but to abide by the decision of the above Honourable Court, provided that no Cost Order will be sought against the Third Respondent herein” (emphasis supplied).

[29] The third respondent delivered an undated document which bears the heading “Master’s Report” and an indexed bundle of documents consisting of 115 pages. The applicants’ attorneys prepared a separate indexed volume of papers which bears the heading “Index 2 – Master’s Documents”. In the said volume the said bundle of documents is referred to as “Record of Proceedings”, but, for convenience, I will refer thereto as “the record”. When the first applicant deposed to his replying affidavit in this application on 17 October 2011, the Master’s Report and the record had been delivered.

Page 23 of [2012] JOL28245 (KZD)

[30] There can be no doubt whatsoever about the fact that the record is incomplete. I think that much was common cause at the hearing before me on 12 December 2011. It will be a wasteful exercise for me to identify (with reference to, for instance, the affidavit evidence and the record itself) which documents are clearly missing from it. I will, however, comment on the omission from the record of every document which is of importance in this application.

[31] Ms Moodley said that the “matter” was (if I remember the word correctly) “contentious”. She was clearly referring to the administration of the trust in the office of the third respondent. She alluded to complaints which the trustees (the first applicant and the first respondent) had lodged with the third respondent against each other. The record bears testimony of these “reciprocal” complaints. It is not my intention to refer to or deal with every document in the record and I will confine my examination thereof to important documents which have a direct bearing on the issue mentioned in paragraph [19], above.

31.1

On 13 June 2011 Ms Davel wrote to GH Ismail, enclosing a copy of a letter, dated 6 June 2011, “for your comments within 21 days from date hereof”.

31.2

Ms Moodley confirmed what appears from the record, namely, that the third respondent did not write any relevant letter, dated 6 June 2011.

31.3

On 6 June 2011 the first respondent wrote a letter to Ms Davel which was delivered by hand to Ms Moodley on the same day. I think it can safely be accepted (and the probabilities point that way) that this is the letter of 6 June 2011 (“the 6 June 2011 letter”) referred to in paragraph 31.1, above. As will become very clear

Page 24 of [2012] JOL28245 (KZD)

hereinafter, nothing turns on this, in any event. The 6 June 2011 letter from the first respondent reads thus:

“Madam

Thank you for your letter dated 20th May 2011. A formal response to G.H. Ismail & Associates letter will be given by my attorney Mr Gounder of Gounder & Associates. The court order of case no 4203/2010 has already been handed to you by myself on 30th May 2011. The court instructed that all costs has (sic) to be paid by M.S. Ganie Will Trust and therefore very plausible grounds exist to hold over the distribution of monies to the beneficiaries till all costs are paid. You will recollect that I, myself, am a 25% beneficiary of the above trust and therefore a responsible approach has to be maintained.

Coming to more important issues, I enclose:

1)

A factual findings report of outstanding rental income from independent auditors, Sultan & Sultan. Some of these findings were reported by me in November 2009 to the offices of the Master of the High Court and Natal Law Society. The shortfalls have continued since then and have been repeatedly denied by Mr Sherlan Archary of D.K. Singh Vahed & Partners and co-trustee, Mr Haroun Ganie. Not included in the report is (sic) outstanding monies by each tenant for contribution towards operating costs and rates.

2)

Copies of Case No 5962/11 involving M.S. Ganie Will Trust and Dinesh Singh. The irresponsible attitude of co-trustee, Haroun Ganie acting without skill, care and diligence and the

Page 25 of [2012] JOL28245 (KZD)

constant interference by beneficiary, Yusuf Siddy Ganie has resulted in this mess.

One can understand the desperate action of the intervening beneficiaries in Case No 5865/2011 (a copy was given to you on 30th May 2011) whereby a request is made to auction off the property and the proceeds to be under control of attorney Sherlan Archary hoping to mask all the missing funds. My father, the Late M.S. Ganie led a life of respectability and I hope to bring closure to his trust with respect and dignity.

I humbly request:

a)

That co-trustee, Haroon (sic) Siddy Ganie is removed as trustee of M.S. Ganie Will Trust with immediate effect.

b)

That the sale of the Tongaat Properties to KNA Property Investment CC is allowed to proceed with the sheriff signing in place of Haroun Siddy Ganie.

c)

That all costs incurred by all parties in case 4203/2010 and case 5865/2011 be paid from the 50% share of intervening beneficiaries, Yusuf Siddy Ganie, Afzal Siddy Ganie, Asif Siddy Ganie and Farzana Jhavary.

d)

That Mr Sherlan Archary, of D.K. Singh Vahed & Partners, be removed as trust attorney and conveyancer and the mandate be given to Mr Gounder of Gounder & Associates.”

31.4

With regard to the 6 June 2011 letter, I draw attention to the following important matters:

Page 26 of [2012] JOL28245 (KZD)

31.4.1

The court order, dated 3 May 2011, in case 4203/2010 (as to which, see paragraph [6], above) was handed to Ms Davel on 30 May 2011. That order forms part of the record.

31.4.2

A “copy” of case 5865/2011 (as to which, see paragraphs [8]–[11], above) was handed to Ms Davel on 30 May 2011. Whatever was handed to Ms Davel is not in the record. When I asked her about the court order in case 5865/2011, Ms Moodley said that the only court order which she had seen, is the one in case 4203/2010, referred to in paragraph 31.4.1, above.

31.4.3

The probabilities are that the “copy” to which the first respondent refers in the 6 June 2011 letter is, at least, a copy of the application papers in case 5865/2011.

31.4.4

In paragraph 15 of his founding affidavit in the anticipation application (referred to in paragraph [16], above) the first respondent said:

“I personally handed to the Third Respondent a copy of the court order dated 23 May 2011, as well as the application upon which the order was obtained. This was done on 30 May 2011 . . . I clearly remember Ms Moodley affixing the rubber stamp imprint of the Third Respondent on the application as well as the court order . . . The order dated 23 May 2011 was annexed to the application papers.”

Page 27 of [2012] JOL28245 (KZD)

31.5

On 12 August 2011, attorney Khan gave written instructions to Adv I. Rajah to represent the first respondent “to investigate in the Master’s office, the delay in removal of Trustee, Mr Haroon (sic) Ganie”, ie the first applicant. The brief to Adv Rajah was further: “Trustee to be removed with immediate effect.”

31.6

On 15 August 2011, the first respondent wrote a full page letter to Adv Rajah in which he made averments of serious misconduct on the part of the first applicant. The first respondent referred to “rental shortfalls since 2009”; that the first applicant is “silent and not responding or clarifying the R100 000.00 missing” and that the first applicant “has been colluding with (the Fourth Applicant) who has been interfering in trust matters”. The first respondent’s letter to Adv Rajah concluded as follows:

“(g)

The Master’s office must act now and remove (the First Applicant) as trustee with immediate effect.

(h)

If the Assistant Master does not remove him then reasons must be given by her as to why she is protecting him with all the offences that he has committed.”

31.7

The terms of Adv Rajah’s brief, as set out in paragraphs 31.5 and 31.6, above, are very clear – get Ms Moodley (the Assistant Master) to immediately remove the first applicant as a trustee.

31.8

On 15 August 2011, Adv Rajah wrote the following letter to the third respondent:

“The above mentioned Will’s Trust has reference.

Page 28 of [2012] JOL28245 (KZD)

Thanks to your examiner, Ms Davel I was able to peruse the file. I am instructed in this matter to investigate why the Master has not been able to remove the trustee Mr H Ganie after the other trustee, Dr Faizel MS Ganie and the heirs of the Trust have lodged numerous complaints.

I have spoken to your Assistant Master, Ms Moodley, who explained to me that she had sent a 21 day letter to the other trustee’s representative.

I appeal to you to look at Sections 9(1), 19 and 20(2)(e) of The Trust Property Control Act 57 of 1988.

In any event please allow me an opportunity to meet with you and discuss this matter in order that effect may be given to the provisions of the above-mentioned Act as a matter of urgency.”

31.9

I draw attention to the following matters:

31.9.1

The statement by Ms Moodley that “she had sent a 21 day letter to the other trustee’s representative” appears to be a reference to the letter referred to in paragraph 31.1, above.

31.9.2

On 10 August 2011 Ms Moodley wrote a letter to the first applicant, which reads as follows (“the 10 August 2011 letter”):

“In view of your failure to comply with my requirements, as set out in my correspondence dated 13/06/2011 in respect of the correspondence dated 06/06/2011 I forwarded to yourself, and in respect of you[r] non compliance to the Order

Page 29 of [2012] JOL28245 (KZD)

of Court dated 03/05/2011 it is my intention to remove you from office as TRUSTEE on a date 30 days from date of this notice by virtue of the provision of Section 20(2)(e) of The Trust Property Control Act 57 of 1988.

In terms of Section 20(2)(e) of the aforementioned Act you are at liberty to apply to Court within the period stipulated in the preceding paragraph for an Order restraining me from removing you from office.

Your removal will not affect your liability for any act or omissions, which may have taken place during the administration of the Trust.”

31.9.3

In paragraph [20], above, I quoted the sections of the Act to which Adv Rajah referred in her letter to the third respondent, dated 15 August 2011.

31.10

Ms Moodley informed me that, on 15 August 2011, Adv Rajah spoke to her and requested her to remove the first applicant as a trustee. Ms Moodley refused to do so. Adv Rajah clearly did not give up easily and, on 15 August 2011, went to see Ms Moatlhudi and obtained from her an undertaking that the first applicant would be removed as a trustee. This is what Ms Moodley said and it was confirmed by Ms Moatlhudi. Adv Rajah thus successfully carried out her mandate to obtain the immediate removal of the first applicant as a trustee.

31.11

A copy of the 10 August 2011 letter was posted to Timol, but his address on the letter and on the envelope was incorrect and the letter was returned to the third respondent. Not that it would

Page 30 of [2012] JOL28245 (KZD)

have mattered if the 10 August 2011 letter reached him or the first applicant – that much should already be clear. The 10 August 2011 letter was addressed to the first applicant at 411 Lagoon Lodge, Riverside 4501 – ie it did not contain any street name or street address.

31.12

On 16 August 2011 Ms Moatlhudi wrote a letter (which also bears the third respondent’s official date stamp of 18 August 2011) to the first applicant at the same address as the one referred to in paragraph 31.11, above, and said this:

“By virtue of the authority vested in me by section 20(2)(e) of the Trust Property Control Act No 57 of 1988, I hereby remove you from office as Trustee in the above estate in view of your failure to comply with my outstanding requirements, and in view of your failure to comply with the provisions of section 9(1) of the abovementioned Act” (emphasis supplied).

31.13

On 19 August 2011 the third respondent appointed the first and second respondents as trustees of the testator’s trust.

31.14

On 22 August 2011 Timol wrote to Ms Moodley and asked:

“May I please have copies of your letters purportedly sent to my client as well as details of my client’s failure to comply with the Assistant Master’s outstanding requirements.”

Obviously the “client” referred to by Timol is the first applicant.

31.15

On 22 August 2011 Ms Moodley wrote to Timol to advise him that, as soon as the Deputy Master “consents”, Ms Moodley “will forward the correspondences”.

Page 31 of [2012] JOL28245 (KZD)

31.16

On 23 August 2011 Ms Moodley wrote as follows to Timol (the letter is quoted verbatim, but with emphasis supplied):

“I have been requested by the Deputy Master L Moatlhudi to inform you that the removal of the Trustee was done on the basis of the Order of Court dated 3/5/2011. Which, the Trustee has failed to comply with to date and on the basis that the Trust should have been terminated in 2008. No further correspondence will be entered into regarding this matter. The Deputy Master may be contacted on 033 – 3413832.”

The less said about the penultimate sentence of this letter, the better.

31.17

But what about the 10 August 2011 letter, referred to in paragraph 31.9.2, above? That letter apparently presented no problem for the third respondent because on 29 August 2011, Ms Davel wrote as follows to DK Singh Vahed & Partners:

“I have issued a Removal dated 18/08/2011. The Contemplated Removal dated 15/08/2011 was sent in error.

I have appointed Dr F.M.S. Ganie and Mrs F. Sacoor as trustees on the 19/08/2011.”

I point out the following with regard to this letter, dated 29 August 2011:

31.17.1

The “Contemplated Removal” is clearly a reference to the 10 August 2011 letter. The date “10 August 2011”

Page 32 of [2012] JOL28245 (KZD)

is typed on that letter, but it also bears the third respondent’s official date stamp of 15 August 2011 and this explains why, in her letter, Ms Davel said the “Contemplated Removal” is dated 15 August 2011.

31.17.2

Ms Moodley said (and Ms Moatlhudi did not disagree) that, although Ms Davel appears to be the official who performed the acts set out in the letter, the responsible official is Ms Moatlhudi.

31.17.3

There is no indication of what the alleged “error” was or how it came to me made or who made it. It will be apparent from this judgment that there was no error made in “sending” the 10 August 2011 letter, but, somehow or another, that letter had to be “undone” – after all, as long as it stood, the first applicant could still timeously comply with it. And then he could not be removed as trustee. But he was already removed as such on 16 August 2011 in terms of the letter referred to in paragraph 31.12, above. And on 19 August 2011 the new trustees were appointed. That is why the letter of 10 August 2011 had to be “undone” – so, it is said to have been “sent in error”.

31.18

On 13 September 2011, Timol wrote to Ms Moodley and said this:

“Finally I refer to your letter dated 10th August 2011 wherein you refer to my client’s failure to comply with your requirements set out in your letters dated 13th June 2011 and 6th June 2011.

Page 33 of [2012] JOL28245 (KZD)

I confirm your advice that these letters were never sent to my client and instead was sent to attorneys GH Ismail, D.K. Singh Vahed & Partners and to my office. The letter to my offices was returned to you as a result of an incorrect address being affixed namely PO 21 instead of Box 211, Durban, 4000.”

I point out that Ms Moodley received this letter from Timol and did not dispute his statement. Furthermore, on 12 December 2011, Ms Moodley confirmed that the letter of 6 June 2011 (there was no letter of 13 June 2011 – see paragraph 31.2, above) had not been posted to the first applicant.

[32] To summarise the contents of the record, as considered in paragraph [31], above:

32.1

The application papers in case 5865/2011 and the court order, dated 23 May 2011, were delivered to the third respondent on 30 May 2011.

32.2

The letter referred to in paragraph 31.1, above (enclosing the letter referred to in paragraph 31.3, above) was not posted to the first applicant.

32.3

On 10 August 2011 (see paragraph 31.9.2, above) the third respondent wrote to the first applicant, putting him on terms to comply, within 30 days, with the “requirements” set out in the letter referred to in paragraph 31.1, above, and with the court order, dated 3 May 2011, in case 4203/2010, failing which he would be removed as trustee. We know, for a fact, that the letter referred to in paragraph 31.1, above, was not posted to the first applicant and, in my view, it is highly probable that the first

Page 34 of [2012] JOL28245 (KZD)

applicant did not have knowledge of the said requirements, until the record was delivered.

32.4

On 15 August 2011, Adv Rajah unsuccessfully tried to persuade Ms Moodley to remove the first applicant as trustee, but she had better luck with Ms Moatlhudi who wrote to the first applicant on 16 August 2011 to remove him as trustee for two clearly stated reasons (see paragraph 31.12, above).

32.5

On 23 August 2011, the third respondent wrote the letter referred to in paragraph 31.16, above, and furnished two other reasons for the first applicants removal as a trustee.

[33] To summarise, by 23 August 2011, the third respondent furnished the following reasons for the first applicant’s removal as a trustee:

33.1

Failure to comply with “outstanding requirements” (see paragraph 31.12, above). These are presumably the same “requirements” as those mentioned in the 10 August 2011 letter (quoted in paragraph 31.9.2, above) and referred to in paragraph 32.3, above.

33.2

Failure to comply with section 9(1) of the Act (see paragraph 31.12, above).

33.3

“. . . on the basis of the order of court dated 3/5/2011 which the trustee has failed to comply with to date” (see paragraph 31.16, above).

33.4

“. . . on the basis that the trust should have terminated in 2008” (see paragraph 31.16, above).

Page 35 of [2012] JOL28245 (KZD)

[34] In the Master’s Report, Ms Moatlhudi, referred to the “ongoing complaints from the trustees against each other in respect of the administration of the trust dating as far back as May 2009”. She then stated that “as a result” she decided on 15 May 2011 to remove the first applicant as a trustee. This statement conveys that the “ongoing complaints” was a further (ie a fifth) reason for the removal of the first applicant. The third respondent then finally articulated the following reasons in the Master’s Report why the first applicant was removed as a trustee:

“(1)

The Trust should have terminated on the 24th of October 2008 as per Deceased’s Will on Paragraph 11 (Annexure ‘Z’ hereto).

(2)

A Deed of Sale was concluded and signed on the 25th of October 2008 and transfer did not take place because the Applicant failed to consent to same.

(3)

The prospective purchaser then sued the Trust for Breach of contract and a Court Order against the Trust was granted on the 3rd of May 2011 (Annexure ‘V’ hereto).

(4)

There was also a cost order against the Trust.

(5)

The Trust and the Trust beneficiaries are severely prejudiced by the action of the Applicant.

(6)

The complaints from the beneficiaries date as far back as May 2009.

The Master made its decision on the backdrop of the Court Order granted on the 3rd of May 2011.

Page 36 of [2012] JOL28245 (KZD)

The Master acted purely within the ambits of the law (Section 20(2)(e) of the Trust Property Control Act.)”

[35] In his replying affidavit, the first applicant made the following averments regarding the events which led to his removal as a trustee, as set out in paragraph [31], above:

35.1

His “complete address” is 411 Lagoon Lodge, 16 Soofie Saheb Drive, Riverside, 4051.

35.2

The 10 August 2011 letter was sent to an “incomplete” address and did not reach him.

35.3

He, therefore, did not have “the opportunity to state (his) position in relation to the complaints raised against (him)”.

35.4

That he was, in any event, “not afforded the thirty days stipulated in the” 10 August 2011 letter.

[36] With regard to the Master’s Report, the first applicant said this:

“(It) provides a very limited answer to the Applicant’s case, is silent on the conduct of its officials and provides vague reasons for the decision . . . to remove me. The relevance of the Third Respondent’s report quite frankly lies more in what is not said than what is.”

[37] I am in general agreement with the first applicant’s averments and submissions, as set out in paragraphs [35]–[36], above. I will, in paragraph [38], below, subject each of the third respondent’s “reasons” referred to in paragraph [34], above, to a brief critical analysis, in the light of the affidavit evidence, to demonstrate that those “reasons” are not reasons

Page 37 of [2012] JOL28245 (KZD)

at all – they are contrived and/or irrational and/or factually incorrect. In short, the so-called “reasons” cannot possibly justify the third respondent’s decision to remove the first applicant as a trustee – they should be seen for what they are, namely, ex post facto and flimsy attempts to justify an untenable decision.

[38] . . .

1. The Trust should have terminated on 24 October 2008 as per deceaseds will on paragraph 11 (Annexure Zhereto).

Of course, the trust terminated on or about 24 October 2008 (see paragraph [3], above). The duty of the trustee to distribute the trust assets amongst the beneficiaries arose on or about 25 October 2008. The first agreement of sale of the property was concluded on that very day (see paragraph [5], above). There has been ongoing litigation about the sale of the property, which culminated in a second settlement agreement on 12 December 2011. The irrationality of the “reason” is demonstrated by the removal of only one trustee and by the appointment of another trustee in his stead. This “reason” is a makeweight.

2.

A deed of sale was concluded and signed on 25 October 2008 and transfer did not take place because the applicant failed to consent to same.

The property was sold on 25 October 2008. The third respondent is in no position at all to pass judgment on the cogency, or otherwise, of the first applicant’s stance regarding the compliance, or otherwise, by the purchaser with its obligations. The third respondent cannot (and does not) criticise the first applicant’s refusal to transfer the property to the purchaser. The third respondent never took up with the first applicant his said stance and his said refusal and never asked the first applicant to explain or justify his conduct.

Page 38 of [2012] JOL28245 (KZD)

3.

The prospective purchaser then sued the Trust for breach of contract and a court order against the Trust was granted on 3 May 2011 (Annexure Vhereto).

The order in case 4203/2010 was taken by consent on 3 May 2011. This was clearly done in pursuance of an agreement of settlement. The purchase price of the property was increased from R6 million to R6,5 million. By the time the litigation was settled, the second, third, fourth and fifth respondents had intervened in case 4203/2010 as “Intervening Beneficiaries”. These respondents are trust beneficiaries and they sided with the first applicant (cited as the first respondent) in case 4203/2010. They obviously did so because they believed that it was in their best interest to do so. The court order of 3 May 2011 does not stand on its own, but must be read with the “supplementary agreement” (see paragraph [7], above). In the supplementary agreement the purchaser was put on strict terms regarding the delivery of guarantees. The third respondent cannot (and does not) criticise the role which the first applicant (supported by the other four applicants) played in the litigation in case 4203/2010. The third respondent never took up with the first applicant his said role and never asked the first applicant to explain or justify his conduct.

4.

There was also a cost order against the Trust.

Indeed. But the purchase price was increased by R500 000 from R6 million to R6,5 million (see paragraphs 6.1 and 6.2, above, for particulars of the cost order). In his founding affidavit, Timol referred to the guarantee for the amount of R3,15 million which is envisaged in the supplementary agreement and then said the following in paragraphs [38] and [40]:

Page 39 of [2012] JOL28245 (KZD)

“38.

The fact that the amount was so held was repeated to the representatives of the applicants at the discussions leading up to the conclusion of the Supplementary Agreement and was advanced by the purchaser and on behalf of the First Respondent as being a matter of considerable force in favour of the settlement.

. . .

40.

In the circumstances I respectfully submit that the First Respondent herein procured the agreement of the parties for the payment of all costs from the estate in circumstances in which the Agreement of Settlement cannot be relied upon by the First Respondent.”

The first respondent simply denied the averments in paragraph [38], but my impression is that this is not a bona fide denial. The first respondent likewise denied the averments in paragraph [40] and added: “There was a Consent Order which was taken.” Precisely, all the costs of all the beneficiaries in the trust were going to be paid out of the trust funds. All the beneficiaries agreed thereto, and so did the two trustees. The third respondent clearly did not know the relevant background facts and, judging by the record, did not bother to ascertain them. There is absolutely no evidence whatsoever of any misconduct on the part of the first applicant in relation to the cost order. If the conduct relied on by the third respondent justified the removal of the first applicant as a trustee, the first respondent should also have been removed as such. The truth of that matter, however, is that this so-called “reason” is not a reason at all – it was an afterthought to justify an indefensible decision.

5.

The Trust and the Trust beneficiaries are severely prejudiced by the action of the applicant.

This is a “catch all” with no substance and should be seen for what it is, namely, a grasp at a straw in order to justify the decision. Five “reasons”

Page 40 of [2012] JOL28245 (KZD)

were previously advanced for the first applicant’s removal as a trustee (see paragraphs [33]–[34], above). This alleged reason is not one of those given reasons. The four applicants who supported the first applicant in case 4203/2010 and who are co-applicants in this application clearly do not think that they were prejudiced by the actions of the first applicant. Those four applicants are entitled to 50% of the assets of the trust. One wonders where the third respondent got this alleged “reason” from.

6.

The complaints from the beneficiaries date as far back as May 2009.

This is just nonsense – the complaining beneficiaries are not identified and since 2009 the first applicant and the first respondent lodged complaints against each other with the third respondent.

“The Master made its decision on the backdrop of the Court Order granted on the 3rd of May 2011.”

This “reason” (if it is that – which the third respondent does not assert) is alluded to in paragraph 33.3, above, where it is stated that the first applicant failed to comply with the said court order. The fact of the matter is that, on 23 August 2011, Ms Moodley wrote to Timol and said that Ms Moatlhudi (the person who wrote and signed the Master’s Report) had requested Ms Moodley to inform Timol of the two reasons why Ms Moatlhudi had removed the first applicant as a trustee. Those two reasons are referred to in paragraphs 31.16, 33.3 and 33.4, above. The one “reason” is the nonsensical one that the trust should have terminated on 25 October 2008. I will briefly consider the first applicant’s alleged non-compliance with the court order, in case 4203/2010, dated 3 May 2011.

Page 41 of [2012] JOL28245 (KZD)

Firstly, it is not stated in exactly what manner the first applicant failed to comply with the said order.

Secondly, the first applicant was never given any opportunity by Ms Moatlhudi to defend himself against any complaint (for instance, by Adv Rajah) that he had failed to comply with the said order.

Thirdly, paragraph 1 of the court order, dated 23 May 2011, in case 5865/2011 (see paragraph [10], above) in effect prohibited the trustees (ie the first respondent and the second respondent in that application) from passing transfer of the property to the purchaser. This Court order clearly superseded paragraph 1 of the court order, dated 3 May 2011, in case 4203/2010 in terms of which the trustees and the said conveyancers were directed to pass transfer of the property to the purchaser. If the third respondent read the application papers in case 5865/2011 (even only the notice of motion) it would have been obvious that steps were afoot to stop the transfer of the property, which had been ordered on 3 May 2011. If the third respondent read the court order, dated 23 May 2011 (which the first respondent said he personally delivered to Ms Moodley with the application papers in case 5865/2011 (see paragraph 31.4.4, above) the third respondent would have known that the transfer of the property to the purchaser had been interdicted.

Fourthly, and regardless of whether the third respondent knew it or not, after 23 May 2011 it could not possibly be said that the first applicant breached the terms of the court order, dated 3 May 2011, by refusing to take any step to transfer the property to the purchaser.

Page 42 of [2012] JOL28245 (KZD)

Fifthly, and to the extent that it could be said that the first applicant breached the court order of 3 May 2011 by refusing to give effect to the cost orders thereof (see paragraphs 6.1 and 6.2, above) I refer to the following: the averments in Timol’s affidavit referred to in paragraphs 23.3 and 23.4, above, and the further averments in paragraphs 38 and 40 of Timol’s affidavit, quoted paragraph 38(4), above. In paragraph (5) of his instructions to Adv Rajah, dated 15 August 2011 (see paragraph 31.6, above) the first respondent said the following with reference to the first applicant:

“(He) has not responded to calls by me or the accountant, rather at this crucial time of the trust debts to be paid, I am told he has skipped the country and may be back perhaps in seven weeks time” (emphasis supplied).

In his replying affidavit the first applicant said this with regard to the payment of the costs in case 4203/2010:

“50.

The payments made (as alleged in paragraph 20.9) in respect of attorney’s and counsel’s fees were made before such costs were taxed or agreed as contemplated in the 3 May 2011 Court order. The first respondent could not agree his own costs and would need my agreement before making payment of those costs from the trust monies. The reality is that the first respondent was not prepared to pay his legal fees from his own pocket to then recover upon taxation.

Page 43 of [2012] JOL28245 (KZD)

51.

What is further apparent is that the first respondent knew I was abroad on pilgrimage and could not agree his fees or deal with his calls and that of the accountant (page 110 of the record) and used this to his advantage when making representations to the third respondent to have me removed as trustee.”

From the aforegoing, it is clear that, if the third respondent was of the view that the first applicant had failed to comply with the cost order in case 4203/2010 (which the third respondent did not say anywhere) such a view was one-sided and, on the affidavit evidence, probably erroneous. But I am speculating – the third respondent had ample opportunity to state the reasons for the first applicant’s removal as a trustee and in the Master’s Report such a failure was not advanced as a reason. In the letter referred to in paragraph 31.16, above, the third respondent, in effect, refused to furnish any particulars regarding the manner in which the first applicant had allegedly failed to comply with the court order, dated 3 May 2011, in case 4203/2010. In the Master’s Report there is a vague statement that the “Master made its decision on the backdrop” of the said court order. This is gibberish and counts for nought with me. If the third respondent relied on the first applicant’s alleged failure to give effect to the cost order in case 4203/2010, it would have been a very simple matter to say so – and to have said so to Timol. This did not happen and I will draw the logical inferences which flow from the way in which the third respondent referred to the court order in case 4203/2010 in the Master’s Report.

[39] In paragraph [15], above, I referred to the court order, dated 19 October 2011, in which a rule nisi was granted, returnable on 12 December 2011. That order was sought in terms of the notice, under cover of which the first applicant delivered his replying affidavit. In that replying affidavit,

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the first applicant dealt with the circumstances surrounding his removal as a trustee by the third respondent, including the relevant correspondence. In support of the claim for the relief set out in paragraphs 2 and 3 of the court order, dated 19 October 2011, the first applicant made the following averments in his replying affidavit:

“66.

Presently there exists a state of confusion where the tenants in the trust properties are not making payment of rental, they being unsure as to whom payment of rental should be made.

67.

In the past I have dealt with tenants on a daily basis and for obvious reasons cannot do so presently. The first respondent has sought to terminate the mandate of the DK Singh Vahed & Partners to collect rentals. The first respondent instead wishes to appoint Wakefields to collect the rental for him and the second respondent to control.

68.

The other applicants and I do not trust the first respondent and the manner in which he is dealing and in the future will be dealing with trust affairs. The trust bank account, despite our best efforts to prevent payments being made from it, has been denuded of funds, its credit balance of approximately R1,040,000.00 being reduced to a mere R250,000.00 as a consequence of the unauthorised payments made by the first respondent from that account.

Page 45 of [2012] JOL28245 (KZD)

69.

Until the litigation between the applicants and the first respondent is resolved, the first and second respondents must be prevented from exercising the powers of trustee in their dealings with trust property.

70.

As an interim arrangement, fair to both parties, Wakefields should be appointed to collect rentals and to keep same in trust and to administer the properties of the trust, subject to the money, currently held in trust with DK Singh Vahed & Partners being utilised for the payment of rates, water and electricity and maintenance and repair of the properties. This aspect, and the matters referred to in the previous paragraph are urgent and require immediate attention.

71.

The other applicants and I are further entitled to insist on the first respondent0 giving an accounting of the monies disbursed by him and the second respondent from the trust account pursuant to my removal as trustee and the appointment of the second respondent as trustee.”

[40] In paragraph [16], above, I referred to the relief which the first and second respondents claimed when they gave notice of their intention to anticipate the return date of 12 December 2011, referred to in paragraph [39], above. In paragraph [17], above, I set out the court order which was granted on 9 November 2011, when the anticipation application was heard.

[41] At the hearing on 12 December 2011, I debated with counsel the question whether there were any “outstanding” issues with which I had to deal in my judgment. I did so because, as will be clear from this judgment, the

Page 46 of [2012] JOL28245 (KZD)

application papers are voluminous; there were references to the applications in case 4203/2010 and 5865/2011 and a number of court orders were made. I understood counsel to say that, leaving aside cost orders which were reserved, there was no other outstanding matter or issue with which I needed to concern myself. It was in this context that counsel agreed that the real issue was the validity, or otherwise, of the removal of the first applicant as a trustee by the third respondent (see paragraph 18.1, above). I point out that on 19 October 2011 no cost order was made and, therefore, the cost of the proceedings on that day must, in my view, be regarded as being costs in the cause of this application.

[42] At the commencement of the hearing on 12 December 2011, counsel further agreed that, with the exception of the costs of the anticipation application, all the reserved costs should follow the result of this application – in other words, that all such costs will be costs in the cause of this application. In my view, this arrangement is fair and practical and I agree with it.

[43] I am concerned that I may have misunderstood the matter dealt with in paragraph [41], above, and to cater for such a possibility I will make provision in my order for leave to be granted to any party who asserts that I failed to deal with an outstanding issue, to set such matter down for hearing by me by not later than 27 January 2012.

[44] The matters which I have to decide on are the following:

44.1

The validity, or otherwise, of the first applicant’s removal as a trustee by the third respondent. The answer to this question will determine the validity, or otherwise, of the second respondent’s appointment as a trustee by the third respondent (see paragraph 18.2, above).

Page 47 of [2012] JOL28245 (KZD)

44.2

The application by the first and second respondents in terms of section 23 of the Act.

44.3

The issue of costs, which has many facets.

44.4

The terms of an appropriate order to give effect to my findings.

[45] The validity, or otherwise, of the third respondents removal of the first applicant as a trustee.

45.1

Earlier in this judgment, I set out all the relevant facts and I considered the Master’s Report in the light of those facts.

45.2

In his argument on the issue of costs, Mr Shaw described the third respondent’s conduct in this matter as “appalling”. I am inclined to agree with Mr Shaw and my reasons for saying so appear clearly from this judgment. To re-cap the evidence in one sentence: the 13 June 2011 letter was not posted to the first applicant; the 10 August 2011 letter was not received by the first applicant; on 15 August 2011, Adv Rajah unsuccessfully tried to persuade Ms Moodley to remove the first applicant as a trustee; directly thereafter Adv Rajah spoke to Ms Moatlhudi who took the decision to so remove the first applicant and on 29 August 2011 it was said that the 10 August 2011 letter had been sent in error.

45.3

The real error was the precipitate decision by Ms Moatlhudi to remove the first applicant as a trustee:

45.3.1

before he had an opportunity to respond to the 10 August 2011 letter; and/or

Page 48 of [2012] JOL28245 (KZD)

45.3.2

without affording the first applicant an opportunity to deal with any complaints or charges which Adv Rajah may have levelled (and probably did level) against the first applicant during her discussion with Ms Moatlhudi on 15 August 2011; and/or

45.3.3

without ensuring that the first applicant had been given proper and effective notice of the precise grounds (including those on which Adv Rajah relied) for the proposed removal of the first applicant as a trustee; and/or

45.3.4

without ensuring that the first applicant had been given proper and effective notice of her intention to remove him as a trustee; and/or

45.3.5

without ensuring that the first applicant had been given a proper and effective opportunity to state his case in respect to any complaints or charges, on the strength of which she contemplated his removal as a trustee; and/or

Page 49 of [2012] JOL28245 (KZD)

45.3.6

without taking all the steps which were reasonably necessary to ensure that the first applicant was afforded procedural fairness in the matter of his removal as a trustee.

45.4

Authority for the conclusions stated in paragraph 45.3, above, is the following statement in Honores South African Law of Trusts (5 ed) by Cameron, de Waal & Wunsh, at 236–237:

“Although it has been held that when the Master applies to court under s 20(1) of the statute for the removal of a trustee there is no preceding requirement of natural justice, since the trustee will in the court application itself enjoy a full hearing, there can be no doubt that when the Master him- or herself acts to remove a trustee under s 20(2), the trustee concerned would have to be given proper notice and be informed of the grounds for the proposed removal. Removal from office would in most if not all cases constitute an impairment of the trustee’s good name and character as well as depriving the trustee of the right to remuneration arising from the office (ch 7). These interests undoubtedly entitle the trustee at common law and under just administration clause of the 1996 Constitution to procedural fairness before the Master acts.”

(See also Administrative Law (1984) by Baxter, at 570 et seq; Administrative Law by Wiechers, at 225–227.)

45.5

I considered all the affidavit evidence in the light of the probabilities, inherent or otherwise; I carefully read and considered the Master’s Report; I listened to Ms Moodley and Ms Moatlhudi; I heard helpful submissions from counsel and I evaluated the third respondent’s acts and omissions in the light of the authorities referred to in paragraph 45.4, above. There is no doubt that the removal of the

Page 50 of [2012] JOL28245 (KZD)

first applicant as trustee by the third respondent is invalid and that, therefore, it must be set aside.

[46] The first and second respondentsapplication in terms of section 23 of the Act.

46.1

I quoted section 23 in paragraph [20], above.

46.2

I assume in their favour that the first and second respondents both have the necessary locus standi under section 23 and that no formal application, bought by them in accordance with the Uniform Rules of Court, is necessary for section 23 to come into operation.

46.3

I, therefore, accept that I have “the power to consider the merits of any (complaint against the First Applicant), to take evidence and to make any order” which I deem fit.

46.4

In view of the wide powers which I have under section 23 to consider “the merits of any such matter” and “to take evidence”, I am of the view that, in performing my judicial functions in terms of section 23, I may have regard to all the affidavit evidence which is properly before me in this application.

46.5

The nub of Mr Choudree‘s submission regarding the section 23 application is set out as follows in his heads of argument:

“Consequently, regardless of whether the Master stipulated grounds in the correspondence addressed to the First Applicant, the grounds referred to above reflect a serious dereliction of duty by the First Applicant warranting his removal by the Master in terms of section 20(2)(e) of the Trust Property Control Act, 57 of 1988.”

Page 51 of [2012] JOL28245 (KZD)

46.6

It is also clear from the first respondent’s answering affidavit that he avers “there are several grounds to warrant the removal of the First Applicant”.

46.7

I will hereinafter deal with each of the “grounds” referred to in paragraph 46.5, above.

46.8

The first applicants bias and partiality towards the Fourth Applicant“.

The first applicant said this in paragraph 24 of his replying affidavit by way of a general statement:

“The allegations of mismanagement (in paragraph 3.4.1.1) misappropriation of trust funds, fraud and collusion are repeatedly raised in the answering affidavit (paragraphs 20.9, 20.11, 28 and 39.3). I deny all of these allegations.”

46.9

The failure to observe general good governance and transparency . . .”

This alleged failure is denied in paragraph 24 of the first applicant’s answering affidavit. More specifically with regard to an alleged shortfall of R76 000. The first applicant said the following in his replying affidavit:

“25.

Neither I nor Sherlan Archary are guilty of financial mismanagement. DK Singh Vahed & Partners have for some time

Page 52 of [2012] JOL28245 (KZD)

been the collecting agents for the trust receiving instructions from the first respondent and from me. The report of Sultan & Sultan Chartered Accountants is not a forensic report, is incomplete (annexure ‘B’ is not attached) and presents no more than a list of outstanding rentals which DK Singh Vahed & Partners are in the process of collecting. It does not suggest misappropriation of funds. I refer in this regard to the affidavit of Sherlan Archary delivered evenly herewith explaining the reasons for the rentals outstanding.

26.

The first respondent is and has always been aware of arrear rentals owing to the trust and recorded in the trust’s financial statements prepared by Sultan & Sultan, and has never suggested any misappropriation of funds on my or on the part of the DK Singh Vahed & Partners.”

46.10

The unilateral action by the First Applicantrelating to the letting of immovable properties.

The first applicant dealt as follows with this averment in paragraph 27 of his affidavit:

“I deny the allegations made in paragraph 3.4.1.2. No decision was made recklessly nor without the approval of the first respondent. Neither the decisions complained of nor the letter of complaint referred to is identified. As indicated the letters of complaint were never brought to my attention.”

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46.11

The frequent delegation of the powers of the First Applicant to the Fourth Applicant, effectively allowing him to conduct the affairs of the trust.”

The first applicant responded as follows to the first respondent’s averments:

“I deny the very bald allegations in paragraph 3.4.1.3. Absent any specific incident – I cannot elaborate on my denial.”

In paragraph 38 of his replying affidavit the first applicant said this:

“For the record I deny the suggestion that the fourth applicant represented himself to be a trustee of the trust and any untoward conduct on the part of the fourth applicant as is suggested in paragraphs 8.6.1 to 8.6.6.”

46.12

Leaving signed blank cheques in the custody of the Fourth Applicant without consulting the First Respondent.”

The first applicant responded as follows to this averment in paragraph 29 of his replying affidavit:

“I deny the allegations made in paragraphs 3.4.1.4. No cheques were left blank and all cheques required my and the first respondent’s signature and were signed by us both. I deny any untoward conduct on the part of the fourth applicant, and deny the similar allegations about the fourth applicant repeated in paragraph 8.6.”

46.13

Clearly ignoring his fiduciary duties and responsibilities . . .”

Page 54 of [2012] JOL28245 (KZD)

The alleged breach of his fiduciary duties by the first applicant on which Mr Choudree relied, is set out in paragraph 3.4.1.4 of the first respondent’s answering affidavit. The first applicant denied those averments in paragraph 29 of his replying affidavit. In paragraph 24 of his replying affidavit (quoted in paragraph 46.8, above) the first applicant denied every averment of mismanagement made by the first respondent.

See also paragraph 38 of the replying affidavit (quoted in paragraph 46.11, above) for the first applicant’s denial of any “untoward conduct” by the fourth applicant.

46.14

The frequent action by the First Applicant in not paying the rates and other utility charges timeously . . .”

For this submission, Mr Choudree relied on an averment by the first respondent in paragraph 19 of his founding affidavit in the anticipation application that “the First Applicant simply allowed the payment of the utility bills to be made after due date . . .”. In paragraph 22 of his answering affidavit in the anticipation application, the first applicant said:

“For the reasons stated I deny the allegations made in paragraph 19.”

46.15

His actions in placing the trust property at risk by insisting on an auction.”

This is a reference to the stance which the first applicant took in case 5865/2011, in which he was cited as the second

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respondent. The first applicant sided with the applicants in that case and the present first respondent (who was cited as the third respondent in that case) supported the first respondent in that case. As I pointed out in paragraph [11], above, that case (which I was due to hear on 12 December 2011) was settled on that day. In order to determine who took the correct position in that case (which was a very complex one) I would have to write a moot judgment, which I am not prepared to do. Suffice it to say, there were clearly two sides to that case.

46.16

The grant to the Fourth Applicant of a first right of refusal is clear evidence of bias and prejudicial conduct by the First Applicant.”

I point out the following:

46.16.1

The first applicant denied any averment of mismanagement on his part.

46.16.2

The first applicant denied any averment, of “bias and partiality to the Fourth Applicant”.

46.16.3

The first applicant denied any averment of improper conduct by the fourth applicant.

46.16.4

The resolution to which Mr Choudree referred in his heads of argument (“FMS9” on page 123 of the application papers) was signed by only the first applicant and could not be implemented, without the first respondent’s consent.

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46.16.5

The letter to which Mr Choudree referred in his heads of argument (also in support of the submission set out in paragraph 46.8, above) is “FMS5” on page 111 of the application papers and is one which the first applicant wrote to the first respondent on 23 October 2008. The first sentence thereof reads:

“I am writing to you as both your uncle and as a co-trustee . . .”

The tenor of this letter is conciliatory. It states that the testator would not “lightly” have sold the property; and that the author thinks “that if he were to do so willingly he would have liked to sell the property to a member of his family”; that this view “is borne out by the fact that the buildings are named in his honor” (sic) and then comes the alleged “bias, partiality and breach of fiduciary duty” paragraph which reads thus:

“It is for this reason that I am asking you as a Muslim and as my nephew to reconsider your decision to sell the family property to an outsider and to agree that your brother and his siblings be given an opportunity to purchase the property. I think that this is what your father would have wanted us to do.”

46.16.6

It is far-fetched in the extreme to construe the letter referred to in paragraph 46.16.5, above, as being indicative of “bias, partiality and breach of fiduciary duty”.

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46.17

In addition to the grounds for the removal of the first applicant as a trustee on which Mr Choudree relied in his heads of argument, the first respondent raised the following further such grounds in his answering affidavit (emphasis supplied):

46.17.1

The First Applicant made several reckless and highly prejudicial decisions relating to the letting of . . . the property, without first consulting and obtaining approval from” the first respondent. The first respondent said that “such decisions are set out in the letter of complaint to the Third Respondent.”

The first applicant answered these averments as follows:

“I deny the allegations made in paragraph 3.4.1.2. No decision was made recklessly nor without the approval of the first respondent. Neither the decisions complained of nor the letter of complaint referred to is identified. As indicated the letters of complaint were never brought to my attention.”

46.17.2

The First Applicants long and frequent absences from attending to the affairs of the trust was deemed not to be in the best interests of said trust and/or its beneficiaries in that he conducted himself without the requisite care, skill and due diligence.”

The first applicant denied the averments and said the following in his replying affidavit:

Page 58 of [2012] JOL28245 (KZD)

“Again the allegations are bald and without reference to any incident or factual circumstances. Save for my first overseas trip in nine years, when I recently went on pilgrimage, I have always been available to and attended to, the affairs of the trust. Instead, it was the first respondent who pursued his medical practice and who had little involvement in the affairs of the trust.”

46.17.3

Finally, the first respondent made the following averment in support of the claim for the first applicant’s removal or, at least, the refusal of his application for his re-instatement as a trustee as a trustee:

“The First Applicant, notwithstanding a notice by the Third Respondent, failed or neglected to comply with Section 9(1) of the Trust Property Control Act 57 of 1988 and was subsequently removed from office by the Third Respondent.”

I point out the following:

46.17.3.1

The first applicant denied the averments by the first respondent.

46.17.3.2

The notice to which the first respondent refers, is not identified and no such notice appears in the record.

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46.17.3.3

The 13 June 2011 letter (referred to in paragraph 31.1, above) was not posted to the first applicant and he did not receive it (see also paragraph 32.3, above).

46.17.3.4

The 10 August 2011 letter was not received by the first applicant.

46.17.3.5

The removal of the first applicant as trustee by the third respondent is invalid (see paragraph 45.5, above).

46.18

I point out that there are material conflicts of fact between the affidavit evidence of the first respondent and that of the first applicant. There was no request by any party that any such dispute should be referred for the hearing of oral evidence. If I do the best I can on the affidavit evidence, I am probably favouring the first and second respondents by adopting such a “robust” approach. Another way of resolving the dispute of fact would be to apply the principles set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A). I think it will be appropriate to apply the said principles to the section 23 application of the first and second respondents. This is so because they are the de facto applicants for the removal by this Court of the first applicant as a trustee. If I apply the said principles in deciding the section 23 application, it must fail – that much is plain from my analysis of the affidavit evidence.

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If I evaluate the affidavit evidence as best I can, I am inclined to agree with Mr Shaw‘s submission that, by and large, the evidence of the first applicant is more probable, more cogent and more persuasive than the evidence of the first respondent.

The first and second respondents failed to satisfy me, on a balance of probabilities, that they are entitled to any order in terms of section 23.

My aforesaid conclusion will stand, even if I err in rejecting some parts of the evidence of the first applicant. The removal of the first applicant as a trustee involves a value judgment. In my view, the first and second respondents did not remotely prove a case for such relief. If I erred in rejecting some parts of the evidence of the first applicant (which I do not say I did) I doubt very much if that evidence will constitute sufficient proof to warrant the drastic relief claimed by the first and second respondents, namely, the removal of the first applicant as a trustee.

46.19

For these reasons, I conclude that the application in terms of section 23 must fail and it is dismissed.

[47] In paragraph 44.3, above, I indicated that there are a number of facets to the issue of costs. In due course, I will consider the terms of appropriate orders to give proper effect to my findings – compare paragraph 44.4, above. From paragraphs 45.5 and 46.19, above, it is clear that the applicants have been successful in this application and that they successfully resisted the first and second respondents’ application in terms of section 23 of the Act. I propose dealing with the costs of the

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anticipation application first; then with the question whether the third respondent should be held liable for the costs of any party; then with the scale of costs and, finally, with the question of whether the fees of two counsel are justified.

Costs of the anticipation application

[48] Mr Choudree submitted that, even if the applicants succeed in obtaining an order setting aside the removal of the first applicant as a trustee by the third respondent, the applicants should still be held liable for the costs of the anticipation application. Mr Shaw submitted that, regardless of the outcome of this application, the costs of the anticipation application should be costs in the cause of this application. In support of his submission, Mr Shaw contended that the anticipation application in reality forms part and parcel of the litigation with which I am seized and that the first and second respondents achieved minimal success in the anticipation application. Mr Choudree conceded that, if I were to order that the costs of the anticipation application are costs in the cause of this application, he would be hard put to submit that such an order would amount to an improper exercise of my discretion. Mr Choudree, however, submitted that a fairer order for costs in the anticipation application will be that the first and second respondents should pay those costs.

In order to determine to what extent the first and second respondents achieved success in the anticipation application, one should look at the court order, dated 19 October 2011 (quoted in paragraph [15], above) and at the relief claimed by the first and second respondents in the notice of anticipation, dated 31 October 2011 (quoted in paragraph [16], above) and at the court order, dated 9 November 2011 (quoted in paragraph [17], above).

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It is not my intention to do a detailed analysis of the relevant documents in order to determine precisely what success the first and second respondents achieved in the anticipation application. I also do not intend to subject the affidavit evidence in the anticipation application to a comprehensive examination. I do, however, wish to draw the attention to the fact that, to a large extent, the anticipation application is inextricably tied up with this application. It cannot, by any stretch of imagination, be said that the anticipation application is a separate and distinct case. I will refer to some aspects of the affidavit evidence in the anticipation application to illustrate this point.

48.1

The first respondent deposed to the founding affidavit in the anticipation application. He said that Vahed AJ refused to grant to the first and second respondents an adjournment on 19 October 2011, thereby “ignoring the audi alteram partem principle as the replying affidavit contained new facts”. After averring that “the applicants are not strangers to utilising ambush tactics in this application”, the first respondent said that he and the second respondent “require the imbalances in and injustices and oppression flowing from (the court order, dated 19 October 2011) to be redressed” and that this “of necessity involves the deletion of paragraphs (a) and (b) of (that order) and the engraftment of additions thereto”. The principal relief which the first and second respondents claimed in the anticipation application was, in effect, their immediate reinstatement as trustees. They failed in this bid.

48.2

The first respondent then said:

“I now deal with the untruths contained in the (replying) affidavit of the First Applicant and more especially those in paragraphs 47 to 49.”

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It is clear that the first respondent dealt in his founding affidavit in the anticipation application with averments contained in the first applicant’s replying affidavit in this application.

48.3

The first respondent then complained about Mr Archary of the firm DK Singh Vahed & Partners and said that he had reported Mr Archary to the Natal Law Society and to the South African Police Service. The first respondent continued and said:

“This was pointed out to the Judge on 19 October and he refused to take cognisance of the background information which was conveyed to him by our counsel.”

The first respondent suggested that Wakefields (Pty) Ltd (which had been appointed in terms of paragraph 2(c) of the court order, dated 19 October 2011) should also attend to the payment of certain amounts due by the trust in respect of the property and that DK Singh Vahed & Partners should be ordered to pay over to Wakefields (Pty) Ltd any money which they held for the trust. These suggestions were carried out in the substitution amendment of paragraph 2(b) of the court order, dated 19 October 2011, by the court order, dated 9 November 2011, and by the addition of subparagraph (iv) in paragraph 2(c) of the court order, dated 19 October 2011.

48.4

The first respondent dealt further with paragraph 2(a) of the court order, dated 19 October 2011, and suggested that, inasmuch as “the court has seen fit to make serious inroads into my powers of trusteeship, it should have done the same to the First Applicant . . .

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(who) can simply go about exercising his powers as trustee in any way in which he deems fit without checks and balances”.

48.5

In his answering affidavit in the anticipation application the first applicant briefly dealt with the background history of this application and said that “it was appropriate for the interim relief to be granted on 19 October 2011 (because) the practical management of the trust’s affairs required regulation pending the return date on 12 December 2011”. The first applicant pointed out that the first respondent is under the incorrect impression that the first applicant is a trustee. The first applicant then said this in paragraph 6 of his answering affidavit:

“(a)

I am not a trustee of the trust. The First Respondent engineered my removal and the issue of my reinstatement will only be dealt with on 12 December 2011.

(b)

With my removal I lost any capacity to deal with the trust bank account and that position still pertains.

(c)

There is therefore no need for the grant of the orders in [1] and [2] of the notice of anticipation nor is a case made out for such relief.”

48.6

In the light of the first applicant’s unchallenged averments referred to and quoted in paragraph 48.5, above, it is readily understandable that he could not have had any real objection to an order being made on 9 November 2011 which “forbids” him to perform any act which he denies performing and for the performance of which he, in any event, claims he has no authority. It is clear how paragraph [1]

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of the notice of anticipation was watered down in the “new paragraph 4” of the court order, dated 9 November 2011.

48.7

It is also clear that there is a very substantial difference between the relief claimed in paragraph [5] of the notice of anticipation and the relief which was granted in the “new paragraph 6” of the court order, dated 9 November 2011.

48.8

As I have said in paragraph 48.1, above, the real relief which the first and second respondents sought in the notice of anticipation was their immediate reinstatement as trustees. The first applicant dealt as follows with that claim in his answering affidavit:

“16.

Contrary to what is suggested in paragraph 13 there was a need to obtain the order framed in paragraph 2(a). The first respondent, through his conduct has shown that he simply cannot be trusted in his dealings with the affairs of the trust.

17.

Telling is his failure to deal with the payments he made from the trust banking account and the allegations I make in paragraphs 50 to 52 of my replying affidavit. I submit this is a crucial aspect for him to address.”

I point out that the averments in paragraphs 50–52 of the first applicant’s replying affidavit in this application are quoted in paragraph 38(6), above.

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48.9

In his answering affidavit, the first applicant dealt with other matters which were raised in this application – for instance whether the first respondent handed a copy of the court order of 23 May 2011 to the third respondent and whether the first applicant received “the correspondence” from the third respondent.

48.10

It is not easy to draw a clear-cut line between those parts of the papers in the anticipation application which deal only with the anticipation application and those parts thereof which deal only with this application. This is not surprising, because the anticipation application and this application are closely interlinked – to the extent that the replying affidavit (with its claim for interim relief) resulted in the order of court, dated 19 October 2011, which in turn, resulted in the anticipation application.

48.11

What is clear, is that the first and second respondents appear to have misunderstood the position of the first applicant. To further demonstrate this unassailable conclusion, I refer to the following statements in the first respondent’s founding affidavit in the anticipation application:

48.11.1

“It is therefore necessary to level the playing field so to speak, and to interdict the First Applicant from exercising his powers as Trustee and in any way dealing with the affairs of the Trust, alternatively for this Honourable Court, to reinstate those powers which previously vested in me in order to strike a balance which should apply equally to both the First Applicant and myself.”

48.11.2

The first respondent referred to the first applicant’s “subterfuge” in connection with the latter’s 2009 application

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to the third respondent for the former’s removal as a trustee; then the first respondent referred to the court order, dated 19 October 2011, which “effectively denuded my rights and powers as a trustee, whilst ensuring that (the First Applicant’s) powers remain intact”.

48.12

In my view, the first and second respondents misconceived the entire basis for their main claims in the anticipation application, namely, that the first applicant’s “powers remain intact” (which is also said to be “unconstitutional”) and that, to “level the playing field”, the first applicant should be interdicted “from exercising his powers as trustee”, alternatively “to re-instate those powers which previously vested in” the first respondent.

48.13

I agree with Mr Shaw‘s submissions regarding the costs of the anticipation application. My reasons for doing so appear clearly from my analysis of the affidavit evidence in the anticipation application and the effect of the court orders, dated 19 October 2011 and 9 November 2011. Furthermore, as will be seen from my said analysis there is a very close link and considerable “overlapping” between this application and the anticipation application.

48.14

Having regard to all the relevant facts and considerations, I am of the view that it will be fair if I order that the costs of the anticipation application (which were reserved in the court order, dated 9 November 2011) should be costs in the cause of this application.

[49] The third respondents liability for costs

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49.1

A State official, such as the third respondent, may be ordered to pay the costs of litigation in which he or she is a party. Such an order is envisaged in paragraph 1.7 of the court order, dated 29 August 2011, which is quoted in paragraph [12], above, and it may be made if the third respondent’s “action has been mala fide or grossly irregular” (LAWSA, Volume 3, Part 2, at paragraph 267; see also J & another v Commissioner of Child Welfare, Durban 1979 (1) SA 219 (N) at 223).

49.2

Mr Choudree submitted that, if this application succeeds, the third respondent should be ordered to pay the applicants’ costs. The main thrust of Mr Choudree‘s submission was that the first and second respondents should not, as he put it, be “penalised” for opposing this application. In his heads of argument, Mr Choudree made the following submissions regarding the costs:

“12.

Insofar as costs are concerned, the concerns raised by the First Respondent which were conveyed in his letter of complaint to the Master, were valid and serious concerns and do not justify any Costs Order being made against the First and Second Respondents when the Master made the final decision.

13.

The circumstances relating to the First Applicant claiming that (sic) especially in view of the fact that the First Applicant cited the very same address as was used by the Master in the First Applicant’s letter dated 23 October 2008, Annexure ‘FMS5’ at page 111 is significant and does not justify such a Cost Order.

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14.

In addition thereto, the First and Second Respondents cannot be held liable for any action by the Master who decided the matter independently.”

49.3

It was during the course of his reply to Mr Choudree‘s submissions that Mr Shaw described the conduct of the third respondent as “appalling” and suggested that, as an alternative to an order that the first and second respondents should pay the applicants’ costs, jointly and severally, I should make such order against all three the respondents.

49.4

I do not think that I can make any order for costs against the third respondent, who was not legally represented at the hearing on 12 December 2011. Although Ms Naidoo of the office of the State Attorney (who kindly assisted me to ensure the attendance at court of Ms Moatlhudi and Ms Naidoo) was initially at court on 12 December 2011, she did not appear for the third respondent. I think I placed that fact on record, but, if I did not, it does not matter. Because the settlement negotiations in case 5865/2011 took quite some time, Ms Naidoo came to see me in chambers and, although she was, in the first place, not obliged to attend court, I “excused” her from further attendance. Ms Naidoo was not present at the hearing of this application.

49.5

In paragraph [28], above, I quoted the third respondent’s notice to abide. In my view, the effect of the notice to abide is such that no other party could claim any order for costs against the third respondent, without giving due notice to the third respondent. I

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do not have to determine what would constitute “due notice”. At the hearing on 12 December 2011 no party claimed to have given any form of notice whatsoever to the third respondent that a cost order would be sought against that official. Absent any such notice, I do not think I can make a cost order against the third respondent.

49.6

I may be wrong in the view expressed in paragraph 49.5, above, and, therefore, I also consider the issue on the footing that I can make a cost order against the third respondent. Even if I can do so, I do not think that I should make any such order. I consider the positions of the first and second respondents and of the applicants in, respectively, paragraphs 49.7 and 49.8, below.

49.7

I think the answer to the question of the third respondent’s liability for costs, lies principally in Mr Choudree‘s submission (quoted in paragraph 49.2, above) that the third respondent “decided the matter independently”. That submission is, in my view, factually incorrect. The affidavit evidence (supported by the correspondence and the statements by Ms Moatlhudi and Ms Moodley on 12 December 2011) considered in the light of the probabilities, point unerringly to the conclusion that it was Adv Rajah who “persuaded” (Ms Moodley’s word, with which Ms Moatlhudi did not disagree) the third respondent (in the person of Ms Moatlhudi) to remove the first applicant as a trustee. Ms Moodley simply confirmed the inescapable conclusion that Adv Rajah spoke to somebody in the office of the third respondent on 15 August 2011 and that she fulfilled her mandate, which was “trustee to be removed with immediate effect”. Ms Moodley elaborated and gave me a clearer picture of what really happened, by informing me that Adv Rajah went to speak to Ms Moatlhudi

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after Ms Moodley had refused Adv Rajah’s request for the first applicant’s removal as a trustee.

Having achieved the removal of the first applicant as a trustee, the first and second respondents vigorously opposed this application. Their opposition was not restricted to their support of the third respondent’s decision, but they claimed the removal of the first applicant in their section 23 application. I dealt with that application in paragraph [46], above. I am quite satisfied that I should not exercise my discretion in favour of the first and second respondents to order the third respondent to pay the costs of the litigation which the first and second respondents caused and which they fought hammer and tong all the way.

Even if the third respondent’s conduct in removing the first applicant as a trustee was grossly irregular (which I think it was) I am not prepared, in the exercise of my discretion, to make any order for costs against the third respondent. I say so for the following reasons:

49.7.1

The third respondent’s said conduct was a direct result of the representations and/or submissions which Adv Rajah made to the third respondent, in the person of Ms Moatlhudi.

49.7.2

The third respondent delivered a notice to abide at an early stage of the litigation.

49.8

There is no suggestion at all that the applicants will not be able to recover all their costs from the first and second respondents and that, therefore, they require the security of an additional co-principal

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debtor for their costs, namely, the third respondent. I am not prepared to exercise my discretion in their favour by making any order for costs against the third respondent.

The scale of costs

[50] Though it may be a borderline case, I am not satisfied that the conduct of the first and second respondents in the litigation was so reprehensible that a punitive order for costs against them is warranted.

Fees of two counsel

[51] Mr Choudree submitted that the fees of only one advocate should be allowed. In my view, it was a wise and reasonable step to engage two advocates in the litigation. The papers (in this application, case 4203/2010 and case 5856/2011) are voluminous; the stakes were high; the removal of the first applicant as a trustee may well have carried with it as least some “impairment of (his) good name and character” (see paragraph 45.4, above); the first respondent and the second respondent made very serious averments of misconduct (“misappropriation of trust funds, fraud and collusion”) against the first applicant in the litigation and, taking a holistic view of the matter and all that it involved, I would say that it was a complex one, justifying the briefing of two counsel.

In Davis v Caledon Municipality & another 1960 (4) SA 885 (C) at 887H the following was said:

“In my view if the main action justifies two counsel then two counsel must be allowed in all interlocutory applications.”

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I do not regard Davis as laying down an inflexible rule, but I am satisfied that the engagement of two counsel was justified in this application and, to avoid any misunderstanding, I specifically state that the briefing of two counsel in the anticipation application was justified.

The appropriate orders

[52] . . .

52.1

In their heads of argument, Mr Shaw and Mr Combrinck asked for confirmation of paragraphs 1.1, 1.2 and 1.3 of the court order, dated 29 August 2011. In view of my conclusion that the removal of the first applicant as a trustee was invalid, it logically follows (see paragraph 18.2, above) that the appointment of the second respondent as a trustee must also be set aside and confirmation of the said paragraphs 1.1 and 1.2 of the rule nisi, granted on 29 August 2011, will achieve this. Confirmation of paragraph 1.3 of the said rule will prevent any attempt by the first and second respondents to seek the removal of the first applicant as trustee, otherwise than in terms of section 20 of the Act.

52.2

The third respondent will undoubtedly do whatever is necessary to give effect to my order and, therefore, I do not intend making a specific order to that effect.

52.3

I will make cost orders to give effect to this judgment.

For the above reasons, I make the following order:

1.

Paragraphs 1.1, 1.2 and 1.3 of the rule nisi granted on 29 August 2011 are confirmed.

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2.

All the costs which were reserved in the application are costs in the cause of the application.

3.

The costs of the hearing of the application on 19 October 2011 are costs in the cause of the application.

4.

The first respondent and the second respondent are directed, jointly and severally, to pay the applicants’ costs of the application, including the fees of two counsel.

5.

Leave is granted to any party who contends that this order is incomplete because it does not deal with an issue which should have been decided, to set the application down, on five days’ notice to any other interested party, by not later than 27 January 2012, for the determination of any such issue.

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