Hoosen NO and Others v Deedat and Others

The Islamic Propagation Centre International was established in 1985 as a religious trust with substantial assets and governed by a notarial trust deed. Ongoing factional disputes among trustees led to deadlock. The third respondent, a co-founder and lifelong trustee, suffered a severe stroke in 1996 that left him physically incapacitated but mentally competent. Unable to attend trustee meetings, he executed a Special Power of Attorney in 1997 appointing his daughter-in-law (the first respondent) to attend meetings, vote on his behalf as she deemed fit, and sign documents. The appellants, fellow trustees, applied to the Durban and Coast Local Division to have the power of attorney declared invalid and to interdict the first respondent from acting as trustee by proxy. The High Court dismissed the application, holding the delegation valid, and ordered costs against the appellants de bonis propriis. The appellants appealed to the Supreme Court of Appeal.

The appeal was upheld. The order of the court a quo was set aside and replaced with an order declaring the Special Power of Attorney executed on 10 March 1997 to be of no legal force and effect, and interdicting the first respondent from acting in terms of it. The costs of all parties in both the High Court and the appeal were ordered to be borne by the Trust.

The case is a leading South African authority on the non-delegability of trustees’ core discretionary powers, particularly in religious and charitable trusts. It affirms that trustees must act jointly and personally unless the trust deed clearly authorises otherwise, and underscores the importance of the personal qualities of trustees in trusts founded on confidence and values.