Estate Late Goolam Murtuza Hafiz and Others v Hafiz and Others

Goolam Murtuza Hafiz created an inter vivos trust in 1994 (the Goolam Murtuza Hafiz Trust) by written deed, donating immovable property adjacent to the Sherwood Mosque in Durban for religious and community purposes. Ahmed Zakir Hafiz, his eldest son, was named and appointed as first trustee and accepted office. Over time, further properties were donated to the trust and developed. Amendments to the trust deed were purportedly made in 2004 and again in 2011 to accommodate regulatory requirements and to appoint additional trustees, including other sons of the settlor. Disputes later arose regarding the validity of the trust, the validity of amendments to the trust deed, and the lawful identity of trustees. The settlor (later substituted by his estate) contended that the trust was invalid and sought retransfer of property, while Ahmed Hafiz and another sought confirmation that the trust was valid and properly administered.

The appeal was dismissed except to the extent that the order of the full court was varied. The SCA declared that the Goolam Murtuza Hafiz Trust is valid and must be administered in accordance with the original 1994 trust deed. It declared Ahmed Zakir Hafiz to be the trustee for the time being. The appellants were ordered to pay the first and second respondents’ costs of appeal.

The judgment clarifies the requirements for the valid creation of an inter vivos trust in South African law, particularly where trust deeds contain ambiguous succession clauses. It affirms that courts must interpret trust instruments contextually to give effect to the founder’s intention and reiterates the limited scope of judicial power to vary trust deeds under section 13 of the Trust Property Control Act. The case also underscores that amendments to trust deeds must comply strictly with the procedures set out in the deed.