An Inherited Farm, a Discretionary Family Trust and a Marriage at an End: The Facts
In S[…] v S[…] and Others: In re: S[…] v S[…] (2115/2020) [2026] ZANCHC 86 (5 October 2026), Nxumalo J in the Northern Cape Division of the High Court, Kimberley, was asked to join the trustees and beneficiaries of a discretionary family trust as defendants in a pending divorce action. The applicant, who is the plaintiff in the divorce, and the first respondent, her husband, were married on 28 January 1995 out of community of property with the inclusion of the accrual system. Six children were born of the marriage. Three of them had reached majority and were cited as the sixth, seventh and eighth respondents, while the other three were still minors when the founding affidavit was deposed to.
The Trust was established on or about 21 September 2000 at Heilbron by the husband’s father, as donor and trustee, for the benefit of the spouses and their children as capital and income beneficiaries. By the time of the application the trustees were the husband and two others, one of them an accountant. The wife had inherited a farm in the Hopetown district from her late father. On her version, the husband persuaded her during the marriage that, for estate planning purposes, the farm should be transferred to the Trust, and that the Trust would provide for her, for him, for the children and for their descendants. She transferred the farm on that understanding. She said that she never contemplated a divorce at the time and that, not being a party to the trust agreement, she was unaware of clause 23 of the trust deed, which entitled the husband to dispose of or distribute the trust assets in his will.
Her original particulars of claim sought a decree of divorce, orders regarding the care of, contact with and guardianship of the minor children, maintenance for herself and the minor children, and an order that the husband render an account of the value of his estate so that the accrual could be determined. Apart from alleging that she had been persuaded to register the inherited farm in the name of the Trust, the pleading said nothing of substance about the Trust and claimed no relief against it. She explained that she had not joined the trustees at the outset because she believed that the husband and the Trust would continue to provide for her and the children after the divorce.
That belief did not survive the litigation. After the divorce proceedings were instituted the husband told her that, if she proceeded, he would ensure that she received “nothing”. Documents obtained from his legal representative during the exchange of documents persuaded her that he exercised de facto control over the Trust with the assistance of his co-trustees and that he regarded the trust assets as his personal property. In argument she pointed to the absence of written minutes of trustees’ meetings, to the rental payable to the Trust for its farming properties, which had been R3 859 000.00 in the 2019/2020 year and which the husband unilaterally reduced to R2 300 000.00 after a company was registered, to financial distributions that favoured the husband, and to ledger entries which, she said, showed that the interest flowing from her loan account was being transferred to him or to a company.
According to the respondents, Absa held a bond over the assets of the Trust in an amount of approximately R32 million. On 4 December 2023 the wife issued an application to join the trustees and the three adult daughters to the divorce action, with the Master also cited, so that she could then amend her particulars of claim to seek relief in respect of the Trust.
Section 13 of the Trust Property Control Act, the Proposed Amendment and Standing
The relief that the wife wished to introduce rested on section 13 of the Trust Property Control Act 57 of 1988 (the “TPCA”). That section empowers a court, on application by a trustee or by any person who in the court’s opinion has a sufficient interest in the trust property, to delete or vary a provision of a trust instrument, or to make any order it deems just, including an order terminating the trust, where the provision brings about consequences which the founder did not contemplate or foresee and which hamper the achievement of the founder’s objects, prejudice the interests of beneficiaries or conflict with the public interest.
The proposed paragraph 19 of the amended particulars pleaded that the founder and the trustees had intended the marriage to continue, that the irretrievable breakdown of the marriage together with the discretionary provisions of the deed had produced consequences which the founder did not foresee, and that the Trust should be terminated and its capital and income divided equally among the beneficiaries, alternatively that the trustees be directed to bestow capital or income on the beneficiaries as the court deemed just and equitable. The pleading also alleged that the husband’s farming interests would, but for their transfer to the Trust, have formed part of his personal estate for purposes of Chapter 1 of the Matrimonial Property Act 88 of 1984, and that the wife’s inherited farm would have been excluded from the accrual under section 5(1) of that Act.
The procedural route chosen was joinder first and amendment afterwards. The notice of motion sought joinder under Rule 10 of the Uniform Rules of Court, together with directions that the pleadings and a notice of intention to amend under Uniform Rule 28 be served on the new parties. The Court identified a tension in that sequence. The wife herself said that the respondents’ direct and substantial interest would arise if the amendment were permitted, yet the existing particulars sought no relief against the Trust at all. At paragraph 24 the Court put it as follows: “The difficulty which this presents is that the direct and substantial interest relied upon for purposes of the present joinder application is expressed by the applicant herself to arise if the proposed amendment is permitted.” At paragraph 26 it added: “The proposed amendment is therefore a contemplated subsequent procedural step; it is not yet part of the operative particulars of claim.” The Court was not called upon to decide whether the amendment should be allowed, and the application was ultimately determined on the points in limine.
The first of those points was standing. The respondents argued that the wife had not stated in what capacity she claimed termination of the Trust, that the case fell outside the exception recognised in Beningfield v Baxter (1886) 12 AC 167 (PC), which allows a beneficiary to sue on behalf of a trust where the loss suffered by the trust flows from the trustees’ own misconduct, and that, on the strength of Hartmann and Others v Hacker NO and Others 2024 JDR 3273 (FB) and Gross and Others v Pentz 1996 (4) SA 617 (A), trust beneficiaries generally have no standing to litigate on behalf of a trust or to apply for its termination under section 13, the proper course being to approach the Master.
The judgment records that standing is discrete from the substance of the case and must be determined before the merits, with reference to Giant Concerts CC v Rinaldo Investments (Pty) Ltd and Others 2013 (3) BCLR 251 (CC), and that the sufficiency and directness of a litigant’s interest depends on the facts of each case, with reference to Gross, Theron NO and Another v Loubser NO and Others; Theron NO and Another v Loubser and Others [2014] 1 All SA 460 (SCA) and Giant Concerts. Because it was common cause that the wife was a capital and income beneficiary, the Court held at paragraph 37 that she “has, ex facie the founding papers, a sufficient interest in the Trust property for purposes of Section 13 of the TPCA”, citing Potgieter and Another v Potgieter NO and Others 2012 (1) SA 637 (SCA) and Snyman v De Koker NO and Others 2024 (6) SA 136 (SCA). The standing objection was dismissed.
The Missing Children and the Mortgagee: Who Had to Be Before the Court
The second point in limine was one of the two that decided the matter. Only the three adult daughters had been cited. The other three children, all beneficiaries of the Trust, had not. One of them, a son referred to in the judgment as JJS, was a minor when the application was issued and attained majority on 24 January 2024. The wife answered that, as the children’s biological parents and legal guardians, she and the husband were entitled under section 18(3)(b) of the Children’s Act 38 of 2005 to assist or represent them in legal matters, that section 6 of the Divorce Act 70 of 1979 requires the divorce court to be satisfied about the welfare of minor and dependent children before a decree is granted, and that dependent children should remain removed from their parents’ conflict for as long as possible. She indicated that she would not oppose the appointment of a curator ad litem if the husband considered that to be in the minor children’s best interests.
The Court was not persuaded. It accepted, with reference to Guardian National Insurance Co Ltd v Van Gool NO 1992 (4) SA 61 (A), that a minor may be sued in the name of a guardian, or may sue or be sued in the minor’s own name assisted by a guardian or, in the absence of a guardian, in the name of a curator ad litem, provided that the representative capacity is stated.
Where the interests of the minor and those of the guardian conflict, however, the court may appoint a curator ad litem, for which the Court cited Legal Aid Board: In re Four Children (512/10) [2011] ZASCA 39 (29 March 2011). Citing Fakroodeen v Fakroodeen NO and Others 1971 (3) SA 395 (D), the Court held that when a beneficiary institutes proceedings which affect the interests of other beneficiaries, the latter must be joined where they have a direct and substantial interest, and that a trustee is entitled to insist upon that joinder. Once a child attains majority, he or she acquires the capacity to litigate in his or her own name, for which the Court relied on Madalane v Van Wyk [2016] ZASCA 25 (18 March 2016).
Both parents were parties with competing interests in the trust relief, so the interests of JJS required appropriate independent representation while he was a minor, and he was entitled to litigate in his own name thereafter. Of the two younger children the Court said at paragraph 46: “Their minority affects the manner in which they are to be represented, but does not deprive them of their interest in the matter.” All three ought to have been joined, and the Court concluded: “The non-joinder of the said beneficiaries is therefore fatal to the present application.”
The third point, the non-joinder of Absa, failed. The respondents argued that, upon termination of the Trust, what would remain would be a bond registered in the names of non-existent trustees. The wife relied on Council for the Advancement of the SA Constitution and Others v Ingonyama Trust and Others 2022 (1) SA 251 (KZP), which in turn quotes Amalgamated Engineering Union v Minister of Labour and Gordon v Department of Health, KwaZulu-Natal, for the test whether a party has a legal interest in the subject matter which may be affected prejudicially by the judgment. The Court also referred to Judicial Service Commission v Cape Bar Council and South African Riding for the Disabled Association v Regional Land Claims Commissioner and Others [2017] ZACC 4; 2017 (5) SA 1 (CC) for the proposition that the mere fact that a party may have an interest in the outcome of the litigation does not warrant a plea of non-joinder. Absa held a real right of security in respect of the mortgaged property, but at paragraph 54 the Court held that “The existence of such a right does not, however, in itself render Absa a necessary party to these proceedings”, and at paragraph 55 that the relief sought “does not purport to cancel, vary or otherwise prejudice that right”.
Substantially the Same Question of Law or Fact: Why the Trust Claim Could Not Travel with the Divorce
The fourth point went to the requirements of Rule 10 itself. Rule 10(3) permits several defendants to be sued in one action whenever the question arising between them and the plaintiff depends upon the determination of substantially the same question of law or fact which would arise in each separate action if they were sued separately. The respondents argued that a divorce is adjudicated in terms of the Divorce Act and the Matrimonial Property Act, whereas the termination of a trust is dealt with under the TPCA, alternatively the common law, and that the factual enquiry under section 13, namely what the founder contemplated and whether the consequences of the deed hamper his objects, prejudice beneficiaries or conflict with the public interest, has nothing to do with whether a marriage has broken down. They accepted that the position would have been arguable had joinder been sought on the footing that the Trust was the husband’s alter ego or that its assets should be taken into account in determining the accrual. The wife’s answer was that her trust relief was a direct result of the pending divorce, that the common question was the divorce itself, and that joinder would avoid a multiplicity of actions and save costs.
The Court held that, although Rule 10(2) allows a plaintiff to join several causes of action in the same action, its ambit is circumscribed by Rules 10(1) and 10(3), with which it must be read. Citing Trust Bank of Africa Ltd and Another v Western Credit 1966 (2) SA 577 (A) and Dendy v University of the Witwatersrand and Others 2005 (5) SA 357 (W), it stated at paragraph 68 that “Joinder is thus only permissible where the questions of law and fact, or their principal essentials, are essentially the same.” It added, with reference to Pringle v Pringle (H36/2006, 18754/2007) [2009] ZAWCHC 207 (27 March 2009), that whether a trust is required to be joined is dependent upon the particular facts of the case and the relief sought. The Court also noted that trust property does not form part of the personal estates of trustees except in so far as they are entitled to it as beneficiaries, and that persons in a position of confidence may not place themselves where their interests conflict with their fiduciary duties, referring to Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 168 and National Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others (Casual Workers Advice Office as amicus curiae) 2019 (8) BCLR 966 (CC).
The reasoning then turned to the statutory scheme. Relying on Passmore v Oswaldtwitle Urban Council 1891 AC 837 and The Bishop of Rochester v Bridges 1831 (1) 109 All ER 1001, the Court held at paragraph 70 that “where a statute creates a special obligation and prescribes special remedies, no other remedy avails outside the four corners of that statute.” The TPCA requires trustees to act with care, diligence and skill in section 9, obliges them to account to the Master and empowers the Master to have their administration investigated in section 16, and in section 23 gives any person aggrieved by a decision of the Master access to court. The Court quoted Hartmann, which draws on Simplex (Pty) Ltd v Van der Merwe and Others 1996 (1) SA 111 (W), for the supervisory role of the Master and for the proposition that a person with an interest in trust property who feels aggrieved by the conduct of the trustees should approach the Master. It concluded at paragraph 74 that “the issues upon which the applicant has mounted the present application do not substantially engage the same question of law or fact” and that the TPCA “provides more than adequate checks, balances and remedies to regulate the powers of Trustees vis-à-vis the rights of beneficiaries.”
Two of the four points in limine therefore succeeded, and the Court held at paragraph 75 that both were fatal to the application. The application was dismissed with costs on Scale C. The merits of the section 13 claim and the fate of the proposed amendment were not decided.
Questions and Answers
What was the central question before the Court?
The Court had to decide whether the trustees and beneficiaries of a discretionary family trust could be joined as defendants in a pending divorce action under Rule 10, so that the plaintiff could thereafter amend her particulars of claim to seek the termination of the Trust, or other just and equitable relief, under section 13 of the TPCA. The respondents raised four points in limine, namely locus standi, the non-joinder of three further children, the non-joinder of Absa, and the absence of substantially the same question of law or fact.
What does Rule 10(3) require before several defendants may be sued in one action?
Rule 10(3) allows several defendants to be sued in one action, jointly, jointly and severally, separately or in the alternative, whenever the question arising between them and the plaintiff depends upon the determination of substantially the same question of law or fact which would arise in each separate action if the defendants were sued separately. With reference to Trust Bank and Dendy, the Court held that the questions of law and fact, or their principal essentials, must be essentially the same.
How does Rule 10(2), which allows several causes of action to be joined, relate to Rules 10(1) and 10(3)?
Rule 10(2) provides that a plaintiff may join several causes of action in the same action. The Court held that the ambit of that subrule is circumscribed by Rules 10(1) and 10(3) and must be read together with them. Although under the common law a number of defendants may be joined on grounds of convenience, equity, the saving of costs and the avoidance of a multiplicity of actions, claims against different defendants may only be joined where substantially the same question of fact or law may arise.
What does section 13 of the Trust Property Control Act empower a court to do?
Section 13 of the TPCA applies where a trust instrument contains a provision which brings about consequences that, in the opinion of the court, the founder did not contemplate or foresee, and which hamper the achievement of the founder’s objects, prejudice the interests of beneficiaries or conflict with the public interest. On application by a trustee or any person with a sufficient interest in the trust property, the court may delete or vary the provision or make any order it deems just, including an order substituting particular trust property for other property or an order terminating the trust.
Did the wife, as a beneficiary, have locus standi to seek relief under section 13?
Yes. The judgment records that locus standi is discrete from the substance of the case and must be determined before the merits, with reference to Giant Concerts, and that the sufficiency and directness of a litigant’s interest depends on the facts of each case, with reference to Gross, Theron and Giant Concerts. Section 13 itself extends standing to any person who in the opinion of the court has a sufficient interest in the trust property. Since it was common cause that the wife was a capital and income beneficiary, she had that interest on the face of the founding papers. The Court cited Potgieter and Snyman in support.
What is the Beningfield exception and why was it raised?
The exception, derived from Beningfield, grants a beneficiary standing to institute action on behalf of a trust where the trustee cannot do so because the loss suffered by the trust is the result of the misconduct of the trustees themselves. The respondents argued that the wife’s intended claim fell outside the exception and that, otherwise, beneficiaries generally have no standing to litigate on behalf of a trust or to apply for its termination under section 13. The Court nevertheless found that, as a beneficiary, she had a sufficient interest in the trust property for purposes of section 13.
What did the Court say about seeking joinder before the amendment had been effected?
The Court pointed out that the direct and substantial interest relied upon was, on the wife’s own version, one that would arise if the proposed amendment were permitted. The existing particulars of claim sought no relief against the Trust, and the amendment was “a contemplated subsequent procedural step” that was “not yet part of the operative particulars of claim”. The Court described the distinction as material because it was not called upon, in the joinder application, to determine whether the amendment should be allowed.
Why was the non-joinder of the three remaining children fatal?
The three children were beneficiaries of the Trust, and the intended relief, which included termination of the Trust and the division of its capital and income, gave them a direct and substantial interest in the matter. Citing Fakroodeen, the Court held that when a beneficiary institutes proceedings which affect the interests of other beneficiaries, those beneficiaries are required to be joined where they have a direct and substantial interest, and that the husband, as trustee, was entitled to insist upon their joinder. Their omission was therefore fatal to the application.
Could the parents, as guardians, not simply represent the minor children?
Ordinarily a minor may be sued in the name of a guardian, or in the minor’s own name assisted by a guardian, as the Court accepted with reference to Van Gool. The wife relied on section 18(3)(b) of the Children’s Act for the proposition that she and the husband had always been entitled to assist or represent the children in legal matters. Citing In re Four Children, the Court noted that where the interests of a minor and those of a guardian conflict, a curator ad litem may be appointed. In relation to JJS it observed that both parents were themselves parties with competing interests in the trust relief, so that independent representation was required. Minority affects the manner of representation but does not deprive a child of his or her interest.
What was the effect of JJS attaining majority after the application was issued?
JJS was a minor when the application was instituted on 4 December 2023 and attained majority on 24 January 2024. The Court held that his subsequent attainment of majority did not alter his position as at the institution of the application, when his interests as a beneficiary required appropriate independent representation. Thereafter, with reference to Madalane, he was entitled to litigate in his own name. The wife’s argument that section 6 of the Divorce Act would sufficiently protect him as a dependent child did not prevail.
Why was Absa, as mortgagee, not a necessary party?
The Court accepted that a mortgage bond gives Absa a real right of security in respect of the mortgaged property. That right did not in itself render Absa a necessary party, because the relief sought did not purport to cancel, vary or otherwise prejudice it. Absa accordingly did not have a direct and substantial interest in the subject matter of the proceedings such as to warrant its joinder, and that point in limine was dismissed.
What test for necessary joinder did the Court apply?
The Court held that joinder is required where a party has a legal interest in the subject matter of the proceedings which may be prejudicially affected by the judgment of the court. That formulation appears in the passage from Ingonyama Trust relied on by the wife, which quotes Amalgamated Engineering Union and Gordon. With reference to Judicial Service Commission and Riding for the Disabled, the Court held that the mere fact that a party may have an interest in the outcome of the litigation does not warrant a plea of non-joinder.
Why did the trust relief and the divorce not raise substantially the same question of law or fact?
The respondents argued that the divorce falls to be adjudicated in terms of the Divorce Act and the Matrimonial Property Act, while the termination of a trust is dealt with under the TPCA and turns on a different factual enquiry into what the founder contemplated or foresaw. The Court upheld the point. It found that the issues on which the application was mounted “do not substantially engage the same question of law or fact” and that the TPCA provides more than adequate checks, balances and remedies to regulate the powers of trustees in relation to the rights of beneficiaries.
What remedies does the TPCA give a beneficiary who is aggrieved by the conduct of trustees?
The Court referred to section 9(1), which requires a trustee to act with the care, diligence and skill which can reasonably be expected of a person who manages the affairs of another, to section 16, under which a trustee must account to the Master at the Master’s written request and the Master may cause the trustee’s administration to be investigated, and to section 23, which allows any person who feels aggrieved by a decision, order or direction of the Master to apply to court for relief. Citing Passmore and Bishop of Rochester, the Court held that where a statute creates a special obligation and prescribes special remedies, no other remedy avails outside that statute. It also quoted Hartmann and Simplex on the supervisory role of the Master.
Would the outcome have been different if the wife had alleged that the Trust was the husband’s alter ego?
The Court did not decide that question. It was the respondents who submitted that, had joinder been sought on the basis that the Trust was the husband’s alter ego or that the assets of the Trust should be taken into account in determining the accrual of the parties’ respective estates, it would have been arguable that substantially the same question of law or fact would arise. The wife’s intended claim was framed differently, as a claim under section 13 of the TPCA. The Court also noted, with reference to Pringle, that whether a trust is required to be joined depends on the particular facts of the case and the relief sought.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of iDivorce and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here and on Substack. For free and useful Family Law tech applications visit Maintenance Calculator, Court Day Calculator and Accrual Calculator.
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