Joan Cynthia Griessel NO & others v De Kock

In 1999 two sisters created an inter vivos discretionary trust, the Arathusa Family Trust, whose sole asset was the shares in a company owning a farm in a game reserve. The trustees had a discretion to select beneficiaries from a list of potential beneficiaries, all of whom had historically been allowed to visit the farm on a rotational basis. A family dispute arose regarding commercial development of the farm, leading the trustees to amend the trust deed to exclude the first respondent as a beneficiary. That amendment was later declared invalid by settlement made an order of court. Despite this, the trustees refused to restore the first respondent’s access to the farm. The first respondent approached the High Court seeking reinstatement of his rights, removal of trustees, and costs. The High Court granted reinstatement of access, directed the Master to appoint an additional trustee, and ordered punitive costs. The trustees and related parties appealed to the Supreme Court of Appeal.

The appeal succeeded in part. The High Court order was set aside and replaced with an order reinstating the first respondent’s rights as a beneficiary, including equal access to and enjoyment of the farm as before 14 January 2013, and an ordinary costs order against certain respondents. The order directing the Master to appoint an additional trustee and the punitive costs order were set aside. Each party was ordered to pay its own costs of appeal.

The case clarifies that even potential or contingent beneficiaries of a discretionary trust have legally protectable interests and are entitled to protection against arbitrary or discriminatory conduct by trustees. It reinforces trustees’ fiduciary duty to act even‑handedly and limits judicial interference in trust administration, particularly regarding appointment or removal of trustees and punitive costs orders.