Jooste NO and Another v Pretorius and Others

The first respondent, Dr Jana Annelise Pretorius, founded the Rhino Pride Foundation (the Trust) in 2014, a public charitable inter vivos trust aimed at rhino conservation. She appointed the two appellants as trustees in 2019 and 2020 respectively. In 2019, the second appellant facilitated a substantial foreign donation of approximately R50 million (about 90% of the Trust's income) from an anonymous donor, subject to a Memorandum of Understanding. The Trust used these funds to acquire a farm in Bela-Bela, Limpopo, and establish a rhino sanctuary with veterinary facilities. Relationships deteriorated in late 2021 when the appellants became concerned about the respondent's administration of the Trust, her fiancé's involvement in Trust operations, staff grievances about abusive treatment, and budget overruns. At a trustees' meeting on 18 January 2022, the respondent agreed to take a month's leave of absence. However, two days later, she obtained an ex parte court order restoring her to the farm and preventing the appellants from terminating her trusteeship, based on statements that were later found to be false. The ex parte order was subsequently set aside on 4 February 2022. The respondent then excluded the appellants from all Trust operations, computer systems, and bank accounts. The donor expressed serious concern about the Trust's administration and indicated that future donations would cease unless the respondent resigned. On 3 March 2022, the appellants passed a resolution requiring the respondent to resign as trustee under clause 11.1.5 of the Trust Deed, which permits trustees to unanimously require the resignation of any trustee, subject to the Trust Property Control Act.

• Whether clause 11.1.5 of the Trust Deed, which empowers remaining trustees to unanimously require the resignation of a trustee, is valid and enforceable under the Trust Property Control Act 57 of 1988
• Whether there were disputes of fact in the motion proceedings that required oral evidence
• Whether the rules of natural justice (particularly the audi alteram partem principle) applied to the trustees' decision to remove the respondent
• Whether the respondent's section 34 constitutional right to a fair hearing was infringed
• The proper interpretation of clause 11.1.5 of the Trust Deed and its relationship to section 20(1) of the Trust Property Control Act
• Whether the removal of the respondent as trustee was in the interests of the Trust and its beneficiaries
• Whether the respondent established a prima facie right justifying the grant of an interim interdict
• Whether costs should be awarded against the respondent personally (de bonis propriis)

The appeal succeeded with costs against the first respondent in her personal capacity. The High Court's order was set aside and replaced with an order: (a) dismissing the application; (b) declaring the resolutions of 3 March 2022 requiring the respondent's resignation and appointing Ms Marielle Borgström as trustee valid and enforceable; (c) requiring the respondent to resign within 7 days, failing which the Sheriff was authorized to sign the necessary documents; (d) ordering the first applicant to pay costs in her personal capacity, including costs of two counsel; and (e) directing the respondent to grant the appellants access to all Trust bank accounts within 7 days, failing which the Sheriff was authorized to sign the necessary documents.

1. A provision in a trust deed empowering trustees to unanimously require the resignation of any trustee is valid and enforceable, provided it is expressly made subject to the Trust Property Control Act 57 of 1988. 2. When a trust deed provision is expressed to be "subject to" the Trust Property Control Act, the Act is dominant and the provision is subordinate to both section 20(1) (removal by court) and section 9(1) (duty of care) of the Act. 3. The power to remove a trustee under such a trust deed provision must be exercised for a reason sanctioned by the Trust Property Control Act, meaning: - It must be in the interests of the trust and its beneficiaries; - It may not be invoked arbitrarily, irrationally, capriciously, or based merely on the will, preference or convenience of the majority; - It may not be used to settle good faith disagreements or for minor irregular conduct that does not affect the trust's administration. 4. Section 20(1) of the Trust Property Control Act does not provide the exclusive mechanism for removing trustees - it is supplementary to removal provisions in trust deeds and common law. 5. Where a trustee's destructive conduct causes a complete breakdown in relations with fellow trustees, imperils the trust's financial survival (particularly where dependent on donor funding), and jeopardizes the welfare of beneficiaries, removal of that trustee is in the interests of the trust and beneficiaries. 6. While decisions to remove trustees do not constitute administrative action requiring compliance with PAJA, procedural fairness (giving notice and an opportunity to be heard) should ordinarily be afforded to ensure well-informed decision-making in the best interests of the trust. 7. In motion proceedings, where disputes of fact arise on affidavits, a final order can be granted where the respondent's version consists of bald denials, is far-fetched, or where the basic facts are common cause and no evidence could change the truth about established events. 8. A trustee who acts in bad faith (such as obtaining an ex parte order based on falsehoods) and recklessly imperils the trust's existence should be ordered to pay costs de bonis propriis (personally).

1. The Court observed that trustees will ordinarily have no claim of right to hold the office of trusteeship, but noted there is good reason to hear from a trustee before a decision to remove them, as what the trustee has to say enhances good decision-making (para 42). 2. The Court commented that trust deed provisions allowing for expeditious removal of trustees obviate "the lengthy delays, exorbitant costs and uncertainties associated with litigation" (para 57). 3. The Court noted that the appointment of the donor's representative as a trustee was appropriate given the Memorandum of Understanding provided that the Trust would "collaborate with the Donor in accordance with the Donor's desires relating to participation in the sanctuary activities and operations" (para 46). 4. The Court observed that the respondent's assertion that the Trust could continue without the donor's support and that there are many other donors available was "far-fetched" and "could safely have been rejected on the papers" (para 37). 5. The Court commented on the unique nature of the appeal, noting that although interim orders are ordinarily not appealable, this case was exceptional because the facts in the main application and counter-application were "inextricably linked" such that if the impugned resolution was found valid, the interdict could not remain in force (para 5). 6. The Court stated that clause 11.1.5, if not construed to allow removal of trustees for conduct that subverts or threatens the Trust's objects, would be "rendered meaningless" (para 56). 7. The Court observed that the High Court failed to apply the proper test for granting an interim interdict and should have concluded that "in light of the inherent probabilities, the respondent is unlikely to succeed in her action" (para 59). 8. The Court noted the general rule regarding trustee costs: trustees should not ordinarily be ordered to pay costs de bonis propriis "unless she has acted in bad faith, negligently or unreasonably" (para 60).

This case provides important guidance on trust governance in South African law, particularly regarding the removal of trustees. It clarifies that: 1. Trust deeds may validly provide for the removal of trustees by remaining trustees without court intervention, provided such provisions are subject to and exercised in accordance with the Trust Property Control Act. 2. The power to remove trustees under a trust deed provision must be exercised for reasons sanctioned by the Act (i.e., in the interests of the trust and beneficiaries) and not arbitrarily, irrationally, or capriciously. 3. Section 20(1) of the Trust Property Control Act, which empowers courts to remove trustees, is not the exclusive mechanism for trustee removal - it is supplementary to removal mechanisms in trust deeds and common law. 4. While not constituting administrative action, decisions to remove trustees should involve fair procedures, including giving the affected trustee notice and an opportunity to be heard, to ensure well-informed decision-making. 5. The case reinforces that trustees must act in the interests of the trust and beneficiaries, not their personal interests, and that destructive conduct by a trustee that imperils the trust's financial survival and administration justifies removal. 6. It demonstrates the application of the Plascon-Evans rule in motion proceedings involving trusts, clarifying when factual disputes can be resolved on the papers. 7. The judgment provides guidance on when trustees may be ordered to pay costs de bonis propriis (personally), reinforcing that bad faith, recklessness, or unreasonable conduct justifies such an order. The case is significant for trust law practitioners and trustees, particularly of charitable trusts dependent on donor funding, as it balances the need for efficient trust governance with procedural fairness and the protection of trust assets and beneficiaries.