Brand v Brand and Another

The applicant and first respondent are brothers and co-trustees of the JK Testamentary Trust, established by their late father's will. After their father's death, the first respondent (who was a major) and their mother were appointed as original trustees. The applicant was appointed a year later but was allegedly excluded from trust affairs. The first respondent granted a power of attorney to his mother, who allegedly mismanaged trust affairs and misappropriated funds, causing substantial damage. The trust has potential claims against the late mother's estate, of which the first respondent is both a beneficiary and trustee. The first respondent failed to provide trust records to the applicant despite numerous requests, refused to cooperate in holding trustee meetings, and caused a deadlock in the trust's administration. The brothers' disputes were referred to arbitration, resulting in an agreed arbitration award, but the first respondent subsequently refused to accept the award and sought to set it aside through a counterapplication that was not properly before the court.

• Whether the first respondent should be removed as a trustee of the JK Testamentary Trust under section 20(1) of the Trust Property Control Act 57 of 1988
• Whether the first respondent's removal would be in the interests of the trust and its beneficiaries
• Whether the first respondent's conduct, including failure to cooperate, failure to provide trust records, and conflict of interest, constituted grounds for removal under the common law and the Act
• Whether the first respondent's counterapplication to set aside the arbitration award was properly before the court

1. The first respondent was removed from his office as trustee of the JK Testamentary Trust (MT125179/82). 2. The Master of the High Court was directed to appoint two suitably qualified professional independent trustees to serve jointly with the applicant. 3. The first respondent was ordered to pay costs on a party-and-party scale, with counsel's costs on scale B.

A trustee may be removed from office under section 20(1) of the Trust Property Control Act 57 of 1988 and at common law if the trustee's continuation in office would prevent the trust from being adequately administered or would be detrimental to the welfare of the beneficiaries. The test is whether the trustee's conduct jeopardizes the trust property and its affairs. Where disharmony between co-trustees imperils the trust, its administration, and the welfare of beneficiaries, and the trustee has a conflict of interest, failed to cooperate, failed to provide trust records, and obstructed the proper administration of the trust, removal is justified.

The court found no exceptional circumstances warranting costs on a punitive scale, giving the first respondent the benefit of the doubt absent further evidence. The court also noted that the counterapplication for review was ill-advised and not properly presented, reinforcing the first respondent's attempts to imperil the administration of the trust.

This case illustrates the South African courts' approach to the removal of trustees under both the Trust Property Control Act and the common law where there is deadlock, conflict of interest, and failure to cooperate between co-trustees. It reaffirms the principle that the interests of the trust and its beneficiaries are paramount in removal applications. It also demonstrates the consequences of a trustee reneging on an agreed arbitration award and the court's willingness to act decisively where trust administration is imperilled by ongoing disputes between family-member trustees.