Shepstone & Wylie Attorneys v Abraham Johannes de Witt N O and Others

Shepstone & Wylie Attorneys acted for Mrs Mignon Renate Volker in her divorce proceedings. Mrs Volker was a trustee and beneficiary of the Penvaan Property Trust. Because she lacked independent means, the firm sought security for its fees. A deed of suretyship was signed on 25 May 2013 by two of the three trustees (Mrs Volker and Mr Abraham Johannes de Witt) purporting to bind the Trust as surety and co‑principal debtor for Mrs Volker’s personal legal fees. The third trustee, Mr Thomas Wilhelm Volker, received notice of the trustees’ meeting but did not attend and did not participate by proxy. The Trust deed required trustees to act jointly and contained provisions governing meetings, quorum, execution of documents, and unanimous conduct of business for the benefit of the Trust. When the legal fees remained unpaid, the appellant sought to enforce the suretyship against the Trust. The Trust resisted liability on the basis that the suretyship was invalid as it was not authorised unanimously and was not for the benefit of the Trust.

The appeal was dismissed with costs, including the costs of two counsel. The deed of suretyship was held to be invalid and of no force or effect against the Trust.

The case reaffirms core principles of South African trust law, particularly that trustees must act jointly in external transactions binding the trust estate, even where majority decision‑making applies internally. It clarifies that notice and quorum alone are insufficient to bind a trust in dealings with third parties where a trustee does not participate or sign. The judgment underscores the importance of strict compliance with trust deeds and limits the enforceability of suretyships granted by trusts for the personal debts of trustees or beneficiaries.