Ras v Van der Meulen

The first respondent (Nicoline Van der Meulen) launched proceedings seeking removal of the trustees of the Bokfontein Trust, alleging she was a capital beneficiary and that the trustees (her mother, sister, and brother-in-law) had acted in bad faith in administering the trust. The trust was established inter vivos by the respondent's late father, with its principal asset being the farm Bokfontein in the district of Brits. The trustees denied any improper conduct and specifically denied that the respondent was a trust beneficiary, relying on a resolution of 25 March 1999 that purported to amend the trust deed by removing her as a capital beneficiary. Subsequent resolutions in December 2004 and November 2008 added confusion, with the former re-adding the respondent's sister as a beneficiary and the latter attempting to withdraw the 2004 amendment. The high court (Ledwaba J) ruled that even if the respondent was not a beneficiary, she had sufficient interest to seek relief, ordered the Master to investigate the trust under s 16 of the Trust Property Control Act, and postponed the application sine die. The high court declined leave to appeal.

• Whether the respondent was a beneficiary of the Bokfontein Trust, and if so, whether she had been validly removed as a beneficiary
• Whether the respondent had sufficient interest (locus standi) to seek removal of trustees if she was not a beneficiary
• Whether the order of the high court was appealable
• Whether the high court had the power to direct the Master to conduct an investigation under s 16 of the Trust Property Control Act
• Whether the trust founder and trustees could amend the trust deed to remove a beneficiary before that beneficiary accepted the benefits under the trust
• Whether factual issues not properly raised and explored in the high court could be determined on appeal

1. The applicants were granted leave to appeal to the Supreme Court of Appeal. 2. The appeal was upheld and the order of the high court dated 14 January 2009 was set aside and replaced with an order referring the application for the hearing of oral evidence on the question whether the respondent is a beneficiary of the Bokfontein Trust or whether she has been validly removed as a beneficiary. The order provided detailed procedural directions for the hearing of evidence, including service of witness statements, subpoena procedures, discovery of documents, and that costs incurred to date would be determined after the hearing of oral evidence. 3. The costs of the application for leave to appeal and the appeal were made costs in the cause.

The binding legal principles established are: (1) Only a beneficiary of a trust has sufficient legal interest (locus standi) to seek the removal of trustees; (2) The discretion to cause an investigation into trustees' administration of trust property under s 16(2) of the Trust Property Control Act 57 of 1988 vests solely in the Master, and courts may not direct the Master to exercise that discretion; (3) An order determining whether a person has standing to seek substantive relief (such as removal of trustees) is determinative of the parties' rights and is therefore appealable; (4) A party will be precluded from relying on appeal on factual contentions not properly raised and explored in the court below, particularly where allowing such reliance would result in unfairness to the opposing party; (5) Where crucial factual issues determinative of the parties' rights have not been properly explored through the pleadings or evidence, it is appropriate for an appellate court to remit the matter for the hearing of oral evidence rather than determining the issue on an incomplete factual record.

The court made several non-binding observations: (1) It confirmed (without deciding) the general principle established in Crookes NO & another v Watson & others 1956 (1) SA 277 (A) and Hofer & others v Kevitt NO & others [1997] 4 All SA 620 (A) that trust founders and trustees are entitled to amend trust deeds to remove beneficiaries before those beneficiaries have accepted the benefits under the trust; (2) The court noted that the respondent's allegations that she conducted part-time farming operations on the trust property and paid certain farming expenses were at least consistent with her having accepted the benefits of the trust, though this was not conclusively determined; (3) The court observed that while it may be open to raise a point of law on appeal that involves no unfairness and raises no new factual issues, a point raised for the first time on appeal based on factual considerations not fully explored should not be allowed; (4) The court noted the confusion created by the multiple resolutions purporting to amend the trust deed (March 1999, December 2004, and November 2008), with the trustees' explanation that they had 'forgotten' about the 1999 resolution and the transparent ex post facto nature of the November 2008 resolution.

This case is significant in South African trust law for several reasons: (1) It affirms that only a beneficiary of a trust has standing (locus standi) to seek removal of trustees; (2) It clarifies that courts cannot direct the Master to conduct an investigation under s 16 of the Trust Property Control Act 57 of 1988, as this discretion vests solely in the Master; (3) It demonstrates the court's approach to procedural fairness in appeals, refusing to allow parties to raise new factual arguments on appeal that were not properly canvassed in the court below; (4) It shows the court's willingness to remit matters for the hearing of evidence where crucial factual issues have not been properly explored. The case also illustrates the principle that trust founders and trustees may amend trust deeds to remove beneficiaries before those beneficiaries have accepted the benefits under the trust, but emphasizes the importance of properly pleading and proving such factual assertions.