Griessel NO & others v De Kock [2019] ZASCA 95
The first respondent (DK) is a beneficiary of a discretionary trust.
The appellants are the trustees of the trust. No distribution of income or capital to any beneficiary has ever been done during the existence of the trust.
The trust owns all the shares in a private company, which in turn owns a piece of land. The land is part of the greater Manyeleti Game Reserve adjacent to the Kruger National Park.
Over the years, all the beneficiaries of the trust had the benefit of visiting the land belonging to the private company with the permission of the trustees. The trustees attempted to change the trust deed to remove DK as a beneficiary. After DK launched a court application against this, the matter was settled on the basis that the amendment was of no force and effect. The trustees then decided to refuse permission to the first respondent to enjoy this benefit in future. The reason appears to be that the family had “issues” with DK.
DK applied to the Gauteng High Court (Pretoria) to have his rights as a beneficiary of the trust restored, as well as to have the appellants removed as trustees. The court (Bam J) ordered the reinstatement of DK’s rights as a trust beneficiary and also the appointment of a further independent trustee.
On appeal to the SCA, counsel for the appellants argued that DK had no vested rights in the trust property and as such could not demand any benefits. During argument counsel conceded that DK did have contingent rights as a beneficiary in a discretionary trust who accepted benefits. The mere fact that he was allowed previously to use the property for holidays together with all the other beneficiaries made sure of that.
The court (Molemela JA, with Navsa ADP, and Leach and Majiedt JJA, and Davis AJA concurring) held that:
• A contingent beneficiary in a trust does have rights worthy of the court’s protection;
• “The role of a trustee in administering a trust calls for the exercise of a fiduciary duty owed to all the beneficiaries of a trust, irrespective of whether they have vested rights or are contingent beneficiaries whose rights to the trust income or capital will only vest on the happening of some uncertain future event.” (see par 19);
The court ordered that DK’s rights as a beneficiary be reinstated. The court, however, refused to order the appointment of a further independent trustee.