Van Wyk Van Heerden Attorneys

This article deals with the questions of who can institute litigation on behalf of a trust, as well as with the question of how jurisdiction is determined with regards to trusts.

Who can institute a claim?

A trust is not a legal person and cannot litigate in its own name. The trustees play a vital role in any litigation in which a trust might be involved. There are three overriding principles regarding trust administration:

  1. The trustees are obliged to give effect to the provisions of the trust deed.
  2. The trustees must perform their duties with the necessary “care, diligence and skill which can be expected of a person who manages the affairs of another”.
  3. Any person acting as a trustee must exercise discretion, where allowed, with the necessary objectivity and independence.

Section 6(1) of the Trust Property Control Act (the Act) determines the following: “any person whose appointment as trustee in terms of a trust instrument, section 7 or a court order comes into force after the commencement of the Act, shall act in that capacity only if authorised in writing by the Master”. In Watt v Sea Plant Products Bpk, Judge Conradie interpreted this section to mean that a trustee may not, prior to authorisation, acquire rights for, or contractually incur liabilities on behalf of the trust”. Thus, a trustee can only contract and institute legal proceedings in his/her capacity as trustee once a letter of authority has been issued by the Master of the High Court.

In Nieuwoudt v Vrystaat Mielies (Edms) Bpk), an agreement was held to be invalid and unenforceable because the trustees had not acted jointly nor reached a unanimous decision. The conclusion to be drawn from this is that trustees must act jointly when entering into contracts or when instituting litigation.

A trustee has a duty to vindicate trust property and to collect due debts. This duty goes hand in hand with the duty to conserve trust property and ensures that the trustee is in control of the property which forms part of the trust fund. A trustee further has locus standi to defend actions instituted against the trustee to ensure that the trust property is conserved.

Should all the trustees be joined in an action to enforce a right of the trust?

Judge Cameron held in the Goolam Ally Family Trust case that all the trustees must be joined in suing and all must be sued. Therefore, all the trustees will be joined in their official capacity when instituting legal proceedings.

In Khabola NO v Ralithabo NO, the court quoted the general rule regarding locus standi as follows: Any person who has a direct or substantial interest in the matter has the required locus standi to institute legal proceedings. The learned judge found that the underlying contractual relationship between trustees could be equated to a partnership.

Jurisdiction:

For jurisdictional purposes, a partnership “resides” at the place where its principal place of business is situated, and if the principle set out in abovementioned case is followed – a trust also “resides” where its principal place of business is situated.

In Bonugli v The Standard Bank of South Africa Limited, the court referred to section 5 of the Act  which determines that a person whose appointment as trustee comes into effect after the commencement of this act, shall furnish the Master with an address for the service upon him of notices and process and shall, in case of change of address, within 14 days notify the Master by registered post of the new address. The cause of action arose in Johannesburg, and one of the defendants (a trustee in his representative capacity) was resident in Australia. The address which was used in the summons was the address given to the Master in terms of section 5 of the Act. A special plea with regards to lack of jurisdiction was raised, but the Cape Town High Court found that it had the necessary jurisdiction to hear the matter.

There are considerable differences between a partnership and a trust, but with regards to jurisdiction the general principles applicable to a partnership can also be applied to a trust – namely considerations of convenience and common sense for its conclusion to entertain a claim. The Cape Town High Court had jurisdiction to hear the Bonugli matter because the first defendant was resident within its jurisdiction, and because the address listed in terms of section 5 of the Act was within the jurisdiction. Considerations of common sense and convenience also required that the court should adjudicate the issue between the plaintiff and all the defendants.  It would have been impractical to institute a claim based on the same set of facts in two different courts, because the trustees were resident in different courts’ jurisdictions.

There remains some uncertainty regarding which court should have jurisdiction to hear a claim instituted by a trust or a claim against a trust. There appears to be three possibilities in this regard: Firstly, if the Bonugli judgment was followed, the residency of one trustee should be sufficient to establish jurisdiction. Secondly, the address provided in terms of Section 5 of the Act could be used to establish jurisdiction. Thirdly, the court where the trust’s principle place of business is situated could have jurisdiction. Hopefully the position regarding which court has jurisdiction to hear claims instituted by a trust or against a trust will be properly aired in the courts soon, to provide more certainty regarding this aspect.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

Books:

Lexisnexis Trust Law and Practice, P A Olivier, S Strydom, GPJ van den Berg, October 2017

Civil Procedure: A Practical Guide, Petè, Hulme, Du Plessis, Palmer, Sibanda, Oxford University Press.

Acts:

Trust Property Control Act 57 of 1988

Cases:

Watt v Sea Plant Products Bpk (1998) 4 All SA 109 (C)

Nieuwoudt v Vrystaat Mielies (Edms) Bpk)

Goolam Ally Family Trust t/a Textile, Curtaining and Trimming v Textile, Curtaining and Trimming (Pty) Ltd 1989 (4) SA 985 (C) at 988D-E

Khabola NO v Ralithabo NO (5512/2010) (2011) ZAFSHC 62 (24 March 2011)

Bonugli v The Standard Bank of South Africa Limited 266/2011) (2012) ZASCA 48 (30 March 2012)

Bianca obtained her LLB degree from the University of Pretoria in 2013. She was admitted as an Attorney of the High Court in 2016 and subsequent as a Conveyancer in 2018. She specializes in the drafting of contracts, conveyancing and all other property related matters. She is dedicated to excellent service and good client relations.

Danie began his law career in Pretoria, Gauteng, where he opened his own law firm in 1994. Through Danie’s knowledge of the world of media and entertainment his clientele extends to music artists, celebrities, television, and film production houses. In 2000 Danie founded the firm West & Rossouw with colleague Sharon West in the Cape Town Southern Suburbs until March 2024 when Danie accepted an appointment to relocate to the fast growing Cape Winelands to join van Wyk van Heerden in their Paarl office. Danie has a strong interest in family law and High Court litigation, with vast experience in several jurisdictions and high-profile cases in the High Court, the Supreme Court of Appeal, and the Constitutional Court. Danie has been actively involved in the organized profession and served on the Cape Law Society and the Law Society of South Africa (LSSA) communication committees and several years as vice-president of the Cape Town Southern Suburbs Attorneys’ Association. During August of 2022, Danie was appointed by the Premier of the Western Cape, Alan Winde as the Western Cape Government’s representative on the Council of the Stellenbosch University.

Alicia obtained her LLB degree cum laude from the North-West University, Potchefstroom, in 2020. She commenced her articles during 2020 at Van Velden-Duffey Inc, situated in Rustenburg, where she acted as a candidate attorney in the civil litigation department.

Alicia was admitted as an Attorney of the High Court during early 2023, and currently practices as such in the litigation department of Van Wyk Van Heerden.

Maryna obtained her LLB Degree at the North West University, Potchefstroom. Originally from Clanwilliam, she went to school in Paarl at Paarl Gymnasium and returned to embark on her professional career at our firm. She joined our team in 2021 as an article clerk and was admitted as an Attorney during 2023. Maryna is currently appointed in our Estates Department in the Wellington Office.

Milton is a well organised Attorney passionate about offering multidisciplinary legal service, focusing on the best interest of his clients. He aims to provide impetus to the vision of creating new momentum in transforming the legal system. He values cost effective solutions on various matters of law, persist on a flexible approach and strive to allocate the necessary resources to satisfy his clients' needs.


Milton obtained his LLB degree in 2020 from the University of the North West. He was admitted as an attorney of the High Court of South Africa on 3 March 2023. He specializes in Civil and Commercial Litigation, Alternative Dispute Resolution, Mediation, Contracts, Sports Law, Construction Disputes and Insolvency.

Anika obtained her LLB in 2020 from the University of Stellenbosch. She completed her articles at Van Wyk Van Heerden in 2022 and was admitted as an Attorney of the High Court at the beginning of 2023.

She currently practices in the Conveyancing Department where she assists estate agencies and developers, as well as marketing of the firm.

Gawie obtained his BComm and LLB Degrees at the University of Stellenbosch during 2009 and 2011 respectively. He completed his Master of Laws during 2017 in the Law of Trusts and completed a Post Graduate Diploma in Financial Planning during 2019.

He joined the team at Becker Bergh & More Inc. for his articles in Upington during 2013 and worked at the firm for 9 years attending to litigation, conveyancing and commercial matters. He was admitted as Attorney and Notary Public during 2015 and as a Conveyancer during 2016.

Gawie was appointed in the Conveyancing and Commercial Departments of Van Wyk Van Heerden during 2022 in the Wellington Office, providing clients with expert advice on the structuring of transactions, the registration of Trusts as well as general Conveyancing.

Liesl graduated from the University of Stellenbosch with an LLB degree in 2005.  During University she developed a special interest in and passion for Family Law.  Due to the fact that Liesl specialised during her articles, she completed the Practical Legal Training Course presented by UNISA, in conjunction with her articles, which she commenced with Miller du Toit Cloete Inc in 2006.  She was admitted as an attorney of the Western Cape High Court, with Right of Appearance in 2007.

Liesl co-presented a paper titled “African Charter on the Rights of Children” at the London Metropolitan University Summer School in 2011 and received her Certificate of Completion in this regard.

Liesl commenced her articles at Miller du Toit Cloete Inc, under the guidance of Zenobia du Toit, in 2006 and went on to practise as a Senior Associate there for nearly 14 years. After moving to Paarl, she practised as a director of Family Law at Clark Cupido Attorneys.

Liesl joined Van Wyk Van Heerden Attorneys in April 2022, as head of their Family Law department.  She has practised exclusively in Family law and ancillary matters for 16 years.

Roeline specialises in Estate Administration. Roeline obtained her B.Com Law, LLB and LLM (Estate Law) degrees at North-West University in 2006, 2008 and 2010, respectively.
After she completed her articles in 2010, she joined a financial institution as an estate administrator.

She joined the team in 2022 and attends to all Estate matters.

Aleisha grew up in Durban and relocated to the Western Cape to attend the University of Stellenbosch where she completed a Bachelor of Arts Degree in Social Dynamics from 2011-2013. Thereafter she obtained her LLB degree through the University of the Free State with distinction from 2014-2017. She joined Van Wyk Van Heerden in 2018 as candidate attorney and gained experience in various fields of the law, with a special interest in Property Law and the Administration of Deceased Estates. After qualifying as an Attorney and Conveyancer during March 2020 Aleisha joined the team assisting in the Conveyancing and Estates Departments of the firm.

Gaynor obtained her LLB degree in 2012 from the University of Stellenbosch. She then completed her articles at a law firm in the North West Province where she gained experience in General Litigation, Family Law and Debt Collection. In 2016 she moved back to the Western Cape and finally joined the firm in November 2018 where she currently heads up the Debt Recovery Department.

Mariska obtained her Bachelor of Arts and LLB degree from Stellenbosch University in 2018 and 2020 respectively. She completed her Master of Laws, with a special interest in Children’s Rights, in 2021.

She commenced her articles at Van Wyk Van Heerden in 2022 and was admitted as an Attorney of the High Court at the start of 2024.

She currently practices in the Litigation Department where she assists with, inter alia, Magistrate Court litigation; Divorces; and Evictions.

Leonette completed her studies at the University of Pretoria and obtained her LLB degree in 2009. She practised in Rustenburg for 8 years and specialised in debt Recovery, debt review and related matters.

Leonette joined the firm in 2017 and manages all correspondent work.

Carla grew up in the Free State and decided to relocate to the Cape Winelands to study law at Stellenbosch University. She obtained her LLB degree in 2002 and furthered her studies at the University of Cape Town’s School for Legal Practice where she received the Dean’s award for the best student in Business Management and Administration.

She joined the litigation department at Van der Spuy & Partners as a candidate attorney where-after she decided to pursue a career in property and commercial law, specializing in sectional title schemes, security estates and developments, servitudes, subdivisions and consolidations as well as commercial contracting.

Carla heads up the Conveyancing Department of the firm and mainly assists estate agencies and developers and is actively involved in the marketing of the company.

Charl obtained his law degree at the North West University in 2008. And finalised his articles at Van Velden & Duffey Attorneys where after he practised at the same firm and became a director in 2014.

Charl was recruited by Van Wyk Van Heerden in 2017 to strengthen and assist our growing litigation department. He handles a wide range of litigation matters including company, family, insolvency, banking and delictual law.

"Quick, practical and commercial resolution is first priority"

Willem van Heerden is a Director at Van Wyk Van Heerden in the dispute resolution, litigation and mediation department. He specialises in contractual disputes, company law, shareholder issues, evictions, family law, banking law and insolvency law. He provides sound strategic advice and direction on all commercial and company issues.

He is an accredited commercial mediator as well as a business rescue practitioner.

He has encouraged the appropriate use of mediation in the resolution of all disputes.

He has acted for various international and cross border trade, transport, agricultural and construction companies. Willem has acted for major banks, insurance houses, leading retailers, property groups as well as high network of entrepreneurs and individuals. He serves as a trustee on a number of trusts.

Willem has written various articles and is a co-author of a published legal book on farm evictions.

Qualifications

  • BCom (Northwest University)
  • LLB (Northwest University)
  • Postgraduate Diploma (VRIJE University Amstelveen )
  • Admitted as an Attorney of the High Court of South Africa
  • Accredited Business Rescue Practitioner (University of South Africa)
  • Accredited Commercial Mediator

Nazlee Abrahams grew up in Paarl and obtained the degrees B.Sc. and LLB from the University of Stellenbosch in 1992 and 1997 respectively.

She commenced with her articles at Van Wyk Fouchee in 1998 and was admitted as an Attorney with right of appearance in the High Court in 2000 after which she consequently became a Director at the firm.

In October of 2002 she was admitted as Conveyancer and also Notary Public in 2006. She currently manages Bonds registrations in the Conveyancing Department and further specialises in family & marriage law, drafting of wills, administration of estates and all notarial work.

Nazlee makes a valuable contribution in pro-bono work when the opportunity arises and invests a considerable amount of time in community service. She also serves as the current Chairperson of the governing body of William Lloyd Primary.

Anville specialises in Property Law, General Commercial Law, Estate and Tax Planning, Administration of Deceased Estates and Trust Law. Through the years, he contributed to the community life in Paarl. He was a founding member of the Drakenstein Rotary Club in Paarl, founding member of the Paarl Attorneys Association, served as Captain, President and Chairman of the board of the Paarl Golf Club and has played a major role in establishing the Boschenmeer Golf and Country Estate.

Anville obtained his BA LLB degree at the University of Stellenbosch in 1974. He served his articles with Silberbauers Attorneys in Cape Town and joined Solomon Miller, Hymie Maisel and Willem Gaum in Paarl in May 1977.

He is an experienced and seasoned attorney who commenced his career in litigation and migrated into Commercial, Trust and Tax work. He obtained his post graduate diploma in Tax Law at the University of Cape Town, with distinction, in 1993.

Anville celebrated his 40th year in practice in 2017.