Simplex (Pty) Ltd v Van der Merwe and Others NNO

• Jurisdiction: South Africa
• Judge: Goldblatt J
• Judgment Date: 23 May 1995
• Citation: 1996 (1) SA 111 (W)
• Docket Number: 95/02820
• Hearing Date: 12 May 1995
• Counsel: P M Wulfsohn SC (with him F Vaccaro) for the applicant. N N Lazarus for the respondents.
• Court: Witwatersrand Local Division

A Goldblatt J:

This matter concerns the validity of an agreement concluded by a trustee, in his capacity as such, prior to being authorised thereto by the Master in terms of s 6(1) of the Trust Property Control Act 57 of 1988 ('the Act').

The applicant is seeking an order ejecting the respondents from a certain B property presently occupied by the respondents in terms of a written agreement of sale concluded between the parties on 21 September 1994 ('the agreement'). The applicant further sought an order for damages for unlawful holding over but, during the course of argument, correctly, in my view, withdrew such prayer.

It is common cause that when the agreement was signed the respondents had C already been appointed as trustees of G and H Trust and had accepted such appointment. The respondents, however, had not been authorised to act in that capacity in terms of s 6(1) of the Act and only received such authority on 13 December 1994.

The applicant submitted that this lack of authorisation rendered the D agreement null and void and that accordingly the respondents' occupation of the property was unjustified.

The respondents' answers to this submission were the following:

(a)

They had acquired office in terms of the deed of trust and accordingly were entitled to act as trustees and their acts had to be given legal effect.

(b)

E The requirements of s 6(1) of the Act were solely for the protection of the beneficiaries of a trust and it was accordingly not open to a third party to attack the trustees' right to act despite non-fulfilment of the requirements of the section.

(c)

The Act does not render null and void or invalid acts performed by F trustees without the requisite authorisation by the Master.

(d)

Any lack of authorisation existing when the agreement was concluded was cured with retrospective effect by the subsequent issuing by the Master of the letter of authority.

(e)

This Court has a discretion, which it should exercise in favour of G the respondents, to ratify their action in concluding the agreement.

The relevant portion of s 6(1) of the Act reads:

'Any person whose appointment as trustee in terms of a trust instrument . . . shall act in that capacity only if authorised thereto in writing by the Master.'

H The Act further does not specify any criminal sanction in the event of non-compliance with s 6(1) nor specify what effect non-compliance has on unauthorised acts by trustees.

It was submitted on behalf of the respondents that the prohibition in s 6(1) was directory and not peremptory. I do not agree with such I submission. The language of the prohibition is, in my view, peremptory. The words 'shall . . . only' are clearly of a peremptory nature, indicating an unambiguous prohibition on acting as trustee until authorised thereto in writing by the Master. It is a precondition to a...