Harvey NO and Others v Crawford NO and Others

• Jurisdiction: South Africa
• Citation: 2019 (2) SA 153 (SCA)

Harvey NO and Others v Crawford NO and Others
2019 (2) SA 153 (SCA)

2019 (2) SA p153

Citation	2019 (2) SA 153 (SCA)
Case No	1016/2017; [2018] ZASCA 147
Court	Supreme Court of Appeal
Judge	Ponnan JA, Tshiqi JA, Zondi JA, Dambuza JA and Molemela JA
Heard	October 17, 2018
Judgment	October 17, 2018
Counsel	A Beyleveld SC (with T Rossi) for the appellants.; JP White for the respondents.

Flynote : Sleutelwoorde

Trust — Trust deed — Interpretation — Children, issue, descendants and legal descendants — Whether including adopted children. G

Headnote : Kopnota

In 1953 first appellant's father had bequeathed benefits in a trust to his 'children' and their 'issue', 'descendants' and 'legal descendants' (see [41]).

Recently first appellant (now deceased, and substituted by her estate's executor) and second and third appellants, first appellant's adopted children, had applied to the High Court for a declaration that children, issue, descendants and legal descendants, as used in the deed, included adopted children (see [42] – [43]). The High Court dismissed the application (see [43]). H

On appeal to the Supreme Court of Appeal, appellants asserted (1) public policy, (2) alternatively s 13 of the Trust Property Control Act 57 of 1988, supported the declaration they sought.

Regarding (1), they contended that their right to equality should outweigh the settlor's freedom of testation, and that public policy should be applied, as described, to amend the deed (see [52] and [55]). I

Held

•

The donor had intended children, issue, descendants and legal descendants to not include adopted children (see [51]);

•

the case did not fall within an established category of cases where public policy could be used to amend the terms of a deed (this was not a public trust, and nor was it a private bequest subject to a condition) (see [61] – [62] and [65]); J

2019 (2) SA p154

•

there A were further considerations against application of public policy (the limited scope of the deed, the nature of the discrimination, and practical difficulties that might result) (see [62] and [69] – [70]);

•

the requirements for the use of s 13 of the Act had not been met (see [72] – [73]).

Appeal accordingly dismissed (see [75]).

Molemela JA, B dissenting, would uphold the appeal.

She would find 'children', 'issue', 'descendants' and 'legal descendants' included adopted children (see [40]).

This given that:

•

The word 'children' as used in the deed was neutral: it did not point against adopted children, and it could include adopted children (see [31]);

•

C the word 'any' was used before 'children' (see [32]);

•

first appellant's father was aware, before executing the deed, first appellant might adopt. This circumstance should inform interpretation of 'any' children (see [33]);

•

the use of 'legal', before 'descendants', suggested adopted children (see [33]);

•

there was no express exclusion of a class of persons (see [34]);

•

D failure to expressly mention the class (adopted children), did not suggest its exclusion (see [36]);

•

the Bill of Rights' spirit, purport and objects should inform application of the Children's Act 31 of 1937. When the deed's text was neutral (non-discriminatory), the application of the Act should not have a discriminatory result (see [17] and [38] – [39]).

Cases cited

Southern Africa E

Abraham-Kriel Kinderhuis v Adendorff NO and Others 1957 (3) SA 653 (A): dictum at 657A applied

Ally v Mohamed NO [1998] JOL 3393 (D): referred to

Boswell en Andere v Van Tonder F 1975 (3) SA 29 (A): referred to

Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494 (SCA) ([2014] 1 All SA 517; [2013] ZASCA 176): referred to

Brey v Secretary for Inland Revenue 1978 (4) SA 439 (C): applied

Cohen NO v Roetz NO and Others G 1992 (1) SA 629 (A): applied

Cohen v Minister of the Interior 1942 TPD 151: referred to

Curators, Emma Smith Educational Fund v University of KwaZulu-Natal and Others 2010 (6) SA 518 (SCA) ([2010] ZASCA 136): distinguished

Dison NO and Others v Hoffmann and Others NNO 1979 (4) SA 1004 (A): referred to

Estate Kemp and Others v McDonald's Trustee 1915 AD 491: referred to

Greeff v Estate Greeff H 1957 (2) SA 269 (A): referred to

Harksen v Lane NO and Others 1998 (1) SA 300 (CC) (1997 (11) BCLR 1489; [1997] ZACC 12): referred to

Harper and Others v Crawford NO and Others 2018 (1) SA 589 (WCC) ([2017] 4 All SA 30): upheld on appeal

In re BOE Trust Ltd and Others NNO 2013 (3) SA 236 (SCA): referred to

In re Heydenrych Testamentary Trust and Others I 2012 (4) SA 103 (WCC): referred to

K v Minister of Safety and Security 2005 (6) SA 419 (CC) (2005 (9) BCLR 835; [2005] 8 BLLR 749; [2005] ZACC 8): referred to

Kalshoven v Kalshoven and Another NO 1966 (3) SA 466 (R): referred to

Kinloch NO and Another v Kinloch 1982 (1) SA 679 (A): dictum at 693H J applied

2019 (2) SA p155

KPMG Chartered Accountants (SA) v Securefin Ltd and Another A 2009 (4) SA 399 (SCA) ([2009] 2 All SA 523; [2009] ZASCA 7): referred to

Lello and Others v Dales NO 1971 (2) SA 330 (A): referred to

Midi Television (Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA) (2007 (2) SACR 493; 2007 (9) BCLR 958; [2007] 3 All SA 318; [2007] ZASCA 56): dictum in para [9] applied

Minister of Education and Another v Syfrets Trust Ltd NO and Another B 2006 (4) SA 205 (C) (2006 (10) BCLR 1214; [2006] 3 All SA 373): referred to

Moosa and Another v Jhavery 1958 (4) SA 165 (N): dictum at 169D applied

Moosa NO and Others v Minister of Justice and Others 2018 (5) SA 13 (CC): referred to

Natal Joint Municipal Pension Fund v Endumeni Municipality C 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): referred to

Novartis SA (Pty) Ltd and Another v Maphil Trading (Pty) Ltd 2016 (1) SA 518 (SCA) ([2015] 4 All SA 417): referred to

Pienaar and Another v Master of the Free State High Court, Bloemfontein, and Others 2011 (6) SA 338 (SCA): referred to

Sea Plant Products Ltd and Others v Watt 2000 (4) SA 711 (C): D referred to

Van Breda v Media 24 Ltd and Others 2017 (5) SA 533 (SCA) ([2017] 3 All SA 622): referred to

Venter v Die Meester en 'n Ander 1971 (4) SA 482 (T): referred to.

Canada E

Canada Trust Co v Ontario Human Rights Commission (1990) CanLII 6849 (ONCA): referred to

In re Millar [1938] SCR 1: referred to

Re Millar [1936] OR 554: referred to

Spence v BMO Trust Company (2016) ONCA 196: referred to

Tataryn v Tataryn Estate [1994] 2 SCR 807: referred to. F

England

Fender v St John-Mildmay [1938] AC 1 (HL) ([1937] 3 All ER 402): referred to

Hand and Another v George and Another [2017] EWHC 533 (Ch): referred to.

European Court of Human Rights

Pla and Puncernau v Andorra [2004] ECHR 334: referred to. G

Case Information

A Beyleveld SC (with T Rossi) for the appellants.

JP White for the respondents. H

An appeal from the Western Cape Division (Dlodlo J).

Order

The appeal is dismissed with costs. I

Judgment

Molemela JA:

[1] In January 1953 Mr Louis John Druiff (the donor) executed a notarial deed of trust (the trust deed) which was subsequently amended in part. It would appear that on the same day the donor also executed a will (the will). J

2019 (2) SA p156

Molemela JA

[2] A The salient provisions of the trust deed, as amended, are as follows:

'4. Duties of Trustees

A.

The trustee or trustees shall stand possessed of the trust fund and shall invest and re-invest the capital of the trust fund, and the nett revenue and income derived therefrom, or part thereof, shall either B be allowed to accumulate, and the amount so accumulated added to the capital of the trust fund, or the whole of the nett income and revenue, or part thereof, shall be applied for the benefit of all or any of the following persons, who may be alive at that time, namely:

(a)

Gladys Elizabeth Clark (born Druiff)

Married without community of property to Robert Bruce Clark.

(b)

Nina Dorothy Lewin (born Druiff) C

Married without community of property to Leo Lewin.

(c)

Lester Philip Druiff.

(d)

Dulcie Helena Wilkinson (born Druiff)

Married without community of property to Michael Ayscough Wilkinson. D

(e)

The child or any children of the said Gladys Elizabeth Clark (born Druiff).

(f)

The child or any children of the said Nina Dorothy Lewin (born Druiff).

(g)

The child or any children of the said Lester Philip Druiff.

(h)

E The child or any children of the said Dulcie Helena Wilkinson (born Druiff).

It shall be entirely at the discretion of the trustees as to how much of the revenue shall be accumulated and how much applied for the benefit of the aforesaid beneficiaries and no beneficiary shall be entitled to dispute the authority of the trustees in the exercise of F the discretion hereby conferred upon them. The trustees shall have the power in their absolute discretion at any time during the trust period to apply for the benefit of any beneficiary above referred to, part or the whole of the capital of the trust fund.

B.

On the death of the said Louis John Druiff the discretionary powers set out above shall cease and the nett revenue and income shall be G divided equally between and paid to the said four children of the donor. If any child has died at such time, his or her share shall devolve upon his or her descendants per stirpes.

5. Period of Trust

If the whole of the capital has not been applied for the benefit of the H beneficiaries, as provided in paragraph 4 hereof, the trust shall remain in force for a period of one year after the death of the said Louis John Druiff.

6. Termination of Trust

At the expiration of the trust period as hereinbefore provided the...