The applicant and respondent are siblings serving as co-trustees of the Wynhelee Trust, established in 1997. The trust property consists solely of a residential property in Kenton-on-Sea. The applicant and respondent are beneficiaries in Class A (62.5% entitlement) and Class B (37.5% entitlement) respectively, along with their spouses and descendants. A third independent trustee, Minnie (the applicant's ex-husband), attempted to resign in August 2020 following an irreconcilable dispute between the sisters. The relationship between the parties deteriorated significantly from May-August 2020, including an incident where the respondent was forced to vacate the property at 22h00 with police present. The applicant changed locks on the property in May 2020; the respondent placed her own lock in June 2020. The respondent refused to permit the property to be leased during December 2020 due to the dispute, causing loss of income. This was eventually resolved in April 2021 when the respondent signed a resolution permitting rental. The applicant sought removal of the respondent as trustee, citing failure to generate income, inability to separate personal affairs from trust matters, and failure to sign financial statements. The respondent disputed the applicant's loan account, which increased from R122,000 in 2019 to almost R430,000 in 2021. The Master failed to intervene despite requests to appoint a replacement independent trustee.
1. The application is dismissed. 2. The applicant shall, in her personal capacity, pay 50% of the first respondent's costs of the application on a party and party scale. 3. The applicant is directed to serve a copy of this judgment on the second respondent (the Master), highlighting paragraphs 28, 29 and 34. 4. The second respondent is directed to reconsider the exercise of power in terms of section 7 of the Trust Property Control Act, 1988, and to do so within 14 (fourteen) days of receipt of this judgment.
The ratio decidendi is that under section 20(1) of the Trust Property Control Act, a trustee may only be removed where the court is satisfied that such removal will be in the interests of the trust and its beneficiaries. The essential test is whether the disharmony between trustees imperils the trust estate or its proper administration. Mere friction, enmity, or disagreement between co-trustees is insufficient to justify removal. The court must exercise circumspection before removing a trustee, particularly where the founder deliberately selected that trustee. Minor irregularities and isolated instances of questionable conduct that do not endanger trust property or prevent proper administration of the trust do not meet the threshold for removal. The decisive consideration is always the welfare of all beneficiaries and the proper administration of the trust and trust property, not the personal preferences or convenience of one class of beneficiaries or co-trustees.
The court made several important obiter observations: (1) An application for removal of a trustee should properly be brought against the trustee in their personal capacity, not in their representative capacity as trustee. (2) The Master has a duty under section 7 of the Trust Property Control Act to intervene and appoint trustees when necessary, and should not maintain a passive hands-off approach when deadlock exists. (3) The Master should consult with existing trustees and beneficiaries with vested rights in accordance with the Chief Master's directive when considering appointment of trustees. (4) Parties to trust disputes should utilize alternative dispute resolution mechanisms, including arbitration clauses contained in trust deeds, before resorting to litigation. (5) Where a trust deed contains specific provisions for termination of trusteeship, including requirement for the Master to issue an amended letter of authority, a trustee's resignation is ineffective until those requirements are met, regardless of their stated intention to resign. (6) An independent trustee who was previously married to one of the co-trustees and is the father of one beneficiary may be in a compromised position when serious conflict arises between the co-trustees.
This case provides important guidance on the test for removal of trustees under section 20(1) of the Trust Property Control Act. It emphasizes that courts must exercise circumspection before removing a trustee and that mere friction, enmity or disagreement between co-trustees is insufficient grounds for removal. The case clarifies that the decisive consideration is the welfare of beneficiaries and proper administration of trust property, not personal conflicts. It establishes that minor irregularities and isolated instances of questionable conduct do not justify removal. The judgment also addresses the Master's duties under section 7 of the Act to intervene and appoint trustees when necessary, and criticizes passive non-intervention by the Master. The case reinforces the importance of utilizing dispute resolution mechanisms contained in trust deeds (such as arbitration clauses) before resorting to litigation. It also clarifies that a trustee's resignation is ineffective until the Master issues an amended letter of authority, even if the trustee has announced their intention to resign.