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History of this document
31 December 1999
Commenced by
Shipping Laws Amendment Act, 1998: Commencement
Note: Date of commencement of sections 1, 3-26, 28 and 31
31 December 1998
Commenced by
Shipping Laws Amendment Act, 1998: Commencement
Note: Date of commencement of sections 2, 27, 29, 30 and 32
28 September 1998 this version
16 September 1998
Assented to
Cited documents 0
Documents citing this one 34
Gazette
17Judgment
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Reported
Whether neutral beneficiary terms in a 1953 trust include adopted children and when courts may alter private testamentary dispositions.
Trust law – Interpretation of testamentary/trust instruments – Whether terms 'children', 'descendants', 'issue', 'legal descendants' include adopted children; effect of s 71(2) Children’s Act 1937; freedom of testation v equality; s 13 Trust Property Control Act variation.
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A court may not rewrite a consensual settlement, make orders against non-parties, or invalidate settlements for practitioner-client fee issues without severability analysis.
Settlement agreements – consent order – court must give effect to parties' agreement; contingency fee agreements – bilateral between practitioner and client; illegality of contingency fee does not necessarily void settlement; court may not make orders against non-parties or amend consensual terms; costs consequences for unnecessary state legal attendance.
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Reported
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Default judgment awarding compensation for serious amputation injuries; cognitive impairment not proven so actuarial loss reduced.
Road Accident Fund — default trial — postponement refused; proof of past medical expenses by schedule and Rule 35(9) — insurer’s medical scheme payments irrelevant to third‑party liability; section 17(4)(a) undertaking for future medical costs; general damages for amputation and psychological harm; future loss of earnings — cognitive deficit not established, actuarial award adjusted; establishment and terms of trust for minor claimant; costs including experts and trustees.
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Court awards R2,500,000 general damages to a minor for severe permanent brain injuries; orders trust and RAF undertaking.
Damages — General damages quantification for severe diffuse axonal brain injury in a minor; acceptance of liability; reliance on uncontradicted expert reports; use of comparative awards as guidance; establishment of trust and section 17(4)(a) RAF undertaking.
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Application to terminate a court-ordered trust dismissed for lack of evidence of capacity and procedural defects.
* Trust law – termination/variation – s 13 Trust Property Control Act – court may vary or terminate trust where founder’s objects frustrated, beneficiary prejudiced, or public interest affected. * Mental capacity – assessment of beneficiary’s ability to manage funds and litigation; probative weight and currency of expert reports. * Curatorship – locus standi and necessity of curator ad litem/curator bonis where beneficiary lacks capacity. * Procedure – requirement of proper affidavits, confirmatory affidavits, and compliance with prior court orders concerning trustees.
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Trustees’ term lapsed; court ordered fresh elections limited to listed beneficiaries and set procedure for appointing further beneficiaries.
Trust law – trustees' term of office – effluxion of time – letters of authority set aside; Trust Property Control Act s 20(2)(e) – removal by Master; s 23 – court’s remedial powers limited absent evidential foundation; Trust Deed procedures – beneficiary verification and trustee election; administrative fairness and procedural compliance.
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Applicants failed to prove trustees were improperly elected or ineligible due to non‑residence; application dismissed with costs.
Trust law – validity of trustee election – Whether AGM complied with Trust Deed (clauses 16, 21) – Eligibility and residence requirement (clause 15.4 and clause 13.12) – Declaratory relief vs review of Master’s appointment – Motion proceedings: affidavits as pleadings and evidence; applicant must prove case on papers.
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A discretionary trust beneficiary lacks an enforceable right to payments until trustees exercise their discretion; trustees must, however, provide financial accounts.
Trust law – discretionary inter vivos trust; beneficiary rights contingent until trustees exercise discretion; requirements for final interdict (clear right, irreparable harm, no alternative remedy); trustees’ fiduciary duty to render accounts; affidavit formalities and admissibility.
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Beneficiary’s application to terminate court‑ordered trust dismissed for insufficient evidence of changed circumstances; costs payable from trust estate.
Trusts – court‑ordered inter vivos trust – trust deed clause permitting termination by leave of court – beneficiary may apply to court without invoking s13 but must show clear changed circumstances; evidence of capacity (medical reports) and meaningful engagement with trustees required; service condoned; costs awarded to trustees from trust estate.
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