Tugh NO v Rajbansi
| Jurisdiction | South Africa |
| Judge | Koen J |
| Judgment Date | 15 May 2018 |
| Docket Number | 9220/2015 |
| Court | KwaZulu-Natal Division, Durban |
| Hearing Date | 19 April 2018 |
| Citation | 2018 JDR 0676 (KZD) |
Koen J:
The Applicants, in their representative capacity as two of the three trustees of the A. Rajbansi Family Trust ('the Trust'), apply on motion for the following relief against the First Respondent, third trustee of the Trust, in her personal capacity: [1]
'1.That this matter be afforded urgency …
2. That the First Respondent be and is hereby removed as a Trustee of the A. Rajbansi Family Trust with registration number IT 1918/2000 (THE TRUST);
3. That the Second Respondent [2] is directed to endorse its records accordingly in respect of paragraph 2 above;
4. That the First Respondent is directed to hand over to the Applicants all documents, banking and administrative instruments relating to the administration of the Trust within 3 days of the grant of this order;
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Koen J
5. In the event of the First Respondent failing to comply with paragraph 4 above that the Sheriff or his Deputy be and is hereby authorised to do all things necessary to give effect to paragraph 4 above;
6. The First Respondent pay the costs of this application on an attorney and client scale including the costs of two counsel;
7. Further and/or alternative relief as this Honourable Court may deem necessary.'
The following facts are either common cause or not seriously in dispute on the papers:
Apart from being a duly appointed trustee to the Trust pursuant to letters of authority issued by the Master of the High Court on 26 September 2013, the First Respondent is also the executrix [3] to the estate of her late husband, A Rajbansi (hereinafter referred to as the 'deceased');
In case no. 9787/2013, the First Respondent in her capacity as executrix in the estate of the deceased and as duly appointed trustee of the Trust launched an application against inter alia the First Applicant and Second Applicant [4] as Seven and Eighth Respondents. She claimed an order that the decision by the Master of the High Court to uphold objections to the First and Final Liquidation and Distribution account in the estate of the deceased be set aside, together with certain ancillary relief. Part of the objection related to whether shares in Manog Investments (Pty) Limited ('Manog') held by Hewawathie Devjeith ('Devjeith') are held by her as a nominee of the deceased. Another part of the objection related to whether shares in respect of Phoenix North Properties (Pty) Limited ('Phoenix'), Gahana Enterprise (Pty) Limited ('Gahana'); Footwin Investments (Pty) Limited ('Footwin'), and Snapshot Investments 1359 (Pty) Ltd ('Snapshot') held by Vimlesh Amichand Rajbansi ('Vimlesh Rajbansi') as nominee, and which in terms of the will of the deceased were to be 'transferred to the (Trust)', were to be transferred to the deceased estate or directly to the Trust.
In case no. 10429/2013 the First Respondent in her capacity as executrix in the estate of the deceased in an action prayed for an order
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Koen J
against Devjeith [5] that she do all things necessary and take all necessary steps to transfer the shareholding and any cash assets in Manog to the estate of the deceased, and that Vimlesh Rajbansi [6] do all things necessary and take all necessary steps to transfer the shareholding and any cash assets in Gahana, Phoenix, Footwin and Snapshot to the deceased estate. The First and Second Applicants in this application were not cited as parties to that action but subsequently applied successfully for leave to intervene as Defendants. [7] Vimlesh Rajbansi defended the action on the basis that she holds the shares as nominee for and on behalf of the Trust and that she had tendered transfer of the shares to the Trust in or around May 2014. Ex facie an affidavit filed under that case number by the First Applicant the Trust resolved by resolution signed by all three trustees (including the First Respondent) of the Trust on 6 November 2014, to institute action against Vimlesh Rajbansi to do all things necessary in order to take effective control of the companies in respect of which holds the shares.
In case no. 12226/2014, following Vimlesh Rajbansi having indicated in May 2014 that she tendered transfer of the shares to the Trust, the First Respondent applied for an urgent interdict pending the final determination of the action under Case No. 10429/2013, citing Vimlesh Rajbansi as First Respondent and the Applicants in their representative capacity as the Second and Third Respondents, interdicting the transfer of the shares in Gahana, Phoenix, Footwin and Snapshot to the Trust and the Applicants from accepting transfer of the shares into the Trust. An order was granted on 27 October 2014 but part thereof discharged on 7 November 2014.
The litigation under case numbers case No. 9787/2013, 10429/2013 and 12226/2014 has not been decided finally. [8]
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The Applicants' prayer for relief is premised on inter alia the following grounds namely:
That the First Respondent has failed to act in good faith and in the best interest of the Trust;
That the First Respondent finds herself in an irreconcilable position of conflict between her interests as the executrix in the estate of the deceased and her fiduciary duties as trustee of the Trust;
That the First Respondent's conduct has jeopardised trust assets;
That the First Respondent's continuation in office as trustee will impede or frustrate the proper administration of the trust and be detrimental to the welfare of the trust beneficiaries and trust estate.
There are a number of factual disputes arising on the papers, the materiality of which differs depending on which ground for the removal of the First Respondent is sought to be invoked. No such dispute of material fact however arises in respect of the ground for removal referred to in paragraph 3(b) above, which issue can be decided on the papers in the respects set out below. [9]
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