Zinga Phakamisa Mei and Others v Phumelele Mei and Others

The late Mr Aubrey Mei passed away on 21 May 2025. He owned substantial commercial, agricultural and residential properties through the Aubrey Mei Family Trust (17 properties) and AG Mei (Pty) Ltd. The applicants (first to third applicants are grandchildren of the deceased through their predeceased father Phaki; the fourth applicant is their mother and executrix of Phaki's estate) sought urgent interim relief to preserve estate assets. The first respondent (deceased's son) was the sole remaining trustee of the trust. The second respondent (deceased's daughter) had reported the estate to the Master and was appointed executrix, incorrectly stating there was no will. The deceased had in fact left a will appointing the first to third applicants as beneficiaries of a testamentary trust. The applicants alleged the first respondent was collecting rental income (approximately R100,000) without accounting for it, the third respondent was using the deceased's motor vehicle, and assets were being dissipated. The first respondent claimed he had authority as sole trustee to administer trust assets and collect rental income, denied dissipation, and indicated intention to challenge the will's validity.

• Whether the applicants established sufficient urgency to justify departure from the normal rules of court
• Whether the applicants established a prima facie right to protection of the estate assets
• Whether there was a well-grounded apprehension of irreparable harm if interim relief was not granted
• Whether the balance of convenience favoured granting the interim relief
• Whether the applicants had any other satisfactory remedy
• The scope and duties of a sole trustee in terms of the Trust Property Control Act
• The obligation to open a trust account under section 10(1) of the Trust Property Control Act

A rule nisi was granted calling on the first respondent to show cause on 21 October 2025 why the following order should not be made final: (1) pending appointment of an executor, the first respondent is interdicted from destroying, dissipating or diminishing estate assets including rental income from properties owned/controlled by the trust, company and deceased; (2) the first respondent must collect rental income and deposit it into the company's ABSA Bank account; (3) the status quo regarding immovable and movable property (including the motor vehicle in Hamburg) must be preserved; (4) the first respondent must maintain proper records of rental income and make them available to applicants on request; (5) the first respondent must pay the costs of the application. The interim relief had immediate effect pending the return date. The applicants were ordered to pay the costs of the second and third respondents incurred to date on a party-and-party scale.

A trustee who is the sole remaining trustee of a trust that owns substantial property has a statutory duty under section 10(1) of the Trust Property Control Act to open and maintain a trust account. Failure to do so, combined with lack of transparency regarding collection and application of trust income, refusal to account for funds collected, and rejection of a will that appoints beneficiaries, creates a reasonable apprehension of irreparable harm justifying interim interdictory relief. Beneficiaries of a testamentary trust named in a will have a prima facie right to protection and preservation of estate assets pending appointment of an executor. Where a trustee exercises extensive discretionary powers over numerous properties generating rental income, minimal transparency requirements - including maintaining proper records and depositing income into designated accounts - do not constitute an inconvenience but rather reflect elementary duties of trusteeship. The conflation of trust assets, company assets, and estate assets does not defeat a claim for interim relief where the applicants have demonstrated distinct interests in each category of assets.

The court observed that the procedure for urgent applications under rule 6(12) is notoriously susceptible to abuse and must be approached with extreme care. At a minimum, an applicant must clearly set out facts explaining why meaningful relief cannot be obtained later. While self-created urgency through delay can be fatal, courts should adopt a pragmatic approach where a matter has been fully argued and striking it from the roll would serve no purpose, following the principles in Caledon Street Restaurants CC v D'Aviera. The court noted that suggesting expensive and time-consuming alternatives (such as reporting to the Master, seeking removal under section 20 of the Trust Property Control Act, invoking the Companies Act, or instituting action proceedings) when a trustee with formidable powers poses an imminent risk is 'unreasonable at best, derisive at worst.' The judgment also observed that whereas there may be a basis to insist that rental income from trust properties be paid into a trust account as required by legislation, for purposes of interim relief it suffices that funds be paid into the company account where they were previously deposited.

This case reinforces the duties and accountability of trustees under the Trust Property Control Act, particularly the mandatory requirement under section 10(1) to open a trust account. It demonstrates that a sole trustee's extensive powers must be exercised transparently and that lack of transparency, combined with failure to comply with statutory duties, can justify interim interdictory relief to protect trust and estate assets. The judgment also illustrates the flexible application of urgency requirements where a matter has been fully ventilated and non-suiting would serve no purpose. It confirms that beneficiaries of both inter vivos trusts and testamentary trusts have standing to protect assets from dissipation even before formal appointment of an executor. The case provides guidance on the application of the classic Webster v Mitchell test for interim interdicts in the context of estate and trust property disputes.