The facts: a Hermanus villa, a family trust and a marriage that ended
The applicant, an attorney and conveyancer, was the founder of the ERF 1[…] Fernkloof Investment Trust, a trust executed during her marriage to the first respondent. In K.J.P v G.G.M.P N.O and Others (17622/2024) [2026] ZAWCHC 611 (19 October 2026) she approached the Western Cape Division in terms of section 21(1)(c) of the Superior Courts Act 10 of 2013 for an order declaring her to be a beneficiary of the A Beneficiary in the Trust. Slingers J records that the parties have since divorced and that “it is clear from the papers that their relationship is acrimonious”.
The applicant’s version was that during the marriage she and the first respondent undertook various commercial ventures to expand their joint assets, and that the Trust was one of the vehicles used to do so. In 2006 she identified a new development in Hermanus, the property known as […] H[…] Village, and saw economic potential in it. The couple did not have the capital required, approached friends to raise it collectively, and the Trust was formed with the trust deed signed on 24 November 2006. The Master issued letters of authority to the first to seventh respondents as trustees, and the property was purchased and registered in the name of the Trust on 30 May 2007, with the trustees and the applicant signing a deed of suretyship to secure the mortgage bond.
The trust deed named the first respondent as “the A beneficiary” in clause 1.1.1. Clause 1.1.8 then defined “the beneficiaries” to mean the A to G beneficiaries “and in all cases, includes the spouse of each such beneficiary together with the children of each such beneficiary and their respective descendants”. The deed gave “descendants” its widest meaning, including descendants born or to be born, and defined “trustees” as the trustees for the time being, but it neither defined nor explained the word “spouse”. The applicant was never named as a beneficiary. Her status flowed entirely from being the first respondent’s spouse. Clause 15 conferred a discretion on the trustees, until the vesting date, to pay or apply income or capital to any one or more of the beneficiaries, subject to the proviso that any distribution be made as to 33.33 percent to the A beneficiary, and on the vesting date 33.33 percent of the capital and income was to vest in the A beneficiary.
The applicant contended that she qualified as a beneficiary because she was married to the first respondent when the Trust was formed, and that she was entitled to half of the A beneficiary’s 33.33 percent share, which she quantified in her founding affidavit as 16.67 percent. She alleged that after the divorce the trustees had acted prejudicially and excluded her from the benefits of the property, where previously she had enjoyed full use of it and had been heavily involved in its administration. The trustees, answering through the first respondent by resolution, denied that she was a spouse within the meaning of clause 1.1.8. They denied that the Trust was a vehicle to expand the couple’s joint assets, describing it instead as an association of the first respondent’s friends and family who raised the funds to build and maintain a large villa in upmarket Hermanus, intended for short-term rental rather than as a second home. They explained that the trustees had deliberately avoided naming their spouses as beneficiaries because the Trust was to endure for a very long time and they did not want “any distant ex-wives to disturb the trustees or the trust as such”. The parties divorced in February 2023. The Trust had never made a discretionary distribution, having failed to realise a profit from the rentals, and an application to declare it insolvent was pending.
Declaratory relief, Plascon-Evans and the approach to interpreting a trust deed
Slingers J began with the nature of the remedy. A declaratory order is a discretionary remedy, as held in J T Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others 1997 (3) SA 514 (CC), and the court undertakes a two-stage inquiry drawn from Shoba v Officer Commanding, Temporary Police Camp, Wagendrift Dam and Another; Maphanga v Officer Commanding, South African Police Murder and Robbery Unit, Pietermaritzburg, and Others 1995 (4) SA 1 (A). The court must first be satisfied that the applicant is a person interested in an existing, future or contingent right or obligation, and must then decide whether the case is a proper one for the exercise of its discretion.
Because the applicant sought final relief on motion, any material dispute of fact fell to be resolved on the respondents’ version in terms of Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A). This had an immediate consequence for the contest over why the general word “spouse” was used rather than the names of the spouses. The trustees’ explanation, that they knew the Trust would exist for a very long time and did not want ex-wives to disturb the Trust or the trustees, had to be accepted.
The court then set out the interpretative framework. A trust deed is a contract between the founder and the trustees, as confirmed in Estate Hafiz and Others v Hafiz and Others 2024 (2) SA 374, and it falls to be interpreted as at the time of its execution according to the ordinary principles of interpretation, as held in Wormald N.O. v Woollgar and Others (773/2020) [2021] ZAECGHC 51 (30 March 2021). It is the settlor’s intention at the time of executing the deed that must be ascertained from the language used and the circumstances as they then existed, for which Slingers J relied on Moosa and Another v Jhavery 1958 (4) SA 165 (N) and Wilkinson and Another v Crawford NO and Others 2021 (4) SA 323 (CC). The approach to the interpretative exercise itself is that of Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA). It is objective, unrelated to the subjective intention with which the words were chosen, and the starting point is the language of the provision read in context and having regard to its purpose and the background to the preparation of the document. The principle that words are to be given their ordinary grammatical meaning unless that would produce an absurdity, endorsed by the Constitutional Court in Cool Ideas v Hubbard 2014 (4) SA 474 (CC), completed the framework. The discrete question was whether “spouse”, as used in the deed, should be read to include a person who was a spouse when the Trust was created but who had since lost that status.
Why “spouse” meant the current spouse and not the spouse at execution
Applying Endumeni, the court found that a plain reading of clause 1.1.8 did not support the applicant. There was no indication anywhere in the deed that “spouse” was meant to be fixed at the date of execution. The applicant’s own replying affidavit proved decisive. At paragraph 55 she said that “The word spouse was used as well as children and grandchildren so as to provide some flexibility for future possibilities so that when a child is born a lawyer’s coffers need not be filled.” Both sides therefore accepted that the Trust was forward looking. If the words “children” and “grandchildren” were deliberately chosen to accommodate future births without the expense of amending the deed, Slingers J held that “the same logic and reasoning would apply to the use of the term spouse”. The term was open-textured precisely so that it would track whoever held the status from time to time.
The court was unpersuaded by the applicant’s explanation that the trustees were nominated to represent particular families and that naming spouses would have resulted in an “over cluttering of the trustees” which could compromise the functioning of the Trust. That explanation was described as “devoid of logic”. The deed could simply have named the spouses, or inserted the word “current” before “spouse”, and neither course would have cluttered anything. The judgment adds that it was not even clear what “over-cluttering” the trustees meant. The court also had regard to the fact that the applicant, as an attorney and conveyancer, would be alive to the importance of words in a document and the need to avoid ambiguity.
The applicant’s founding affidavit then closed the door. At paragraph 28 she stated that “it was always envisioned that I, by virtue of my marriage, would be entitled to benefits from the property including income from rentals and occupation of the property as a ‘holiday home’. To this end it was recorded, as with all the Beneficiaries, that the spouses, children and grandchildren would be entitled to the benefits of the property.” Slingers J described this passage as unequivocal. Her entitlement arose from her marriage, and “When that marriage ended, so did her entitlement to the benefits of the property because she was no longer a spouse.” The use of the term “spouse” was consistent both with the forward-looking design of the Trust and with the trustees’ accepted explanation for choosing it. Once the marriage ended in February 2023, the applicant fell outside clause 1.1.8 altogether.
The 16.67 percent tender, the pleaded case and the costs order
The applicant had a second string to her bow. It was undisputed that, during settlement discussions about the proprietary consequences of the divorce, the first respondent had offered her his 16.67 percent share in the Trust as part of his accrual calculation. She argued that this tender amounted to an admission that she was entitled to the declaratory relief, so that the respondents had opposed the application unnecessarily.
Slingers J rejected the argument on several grounds. The tender was made by the first respondent in his personal capacity in respect of his personal estate, not as a trustee in respect of the benefits of the Trust, and could not be accepted as a concession on behalf of the Trust. The tender and the relief sought were also not the same thing. An accrual tender would fix the applicant’s entitlement at the date on which the accrual was determined, whereas the declaratory relief would clothe her with the rights of a beneficiary for as long as the Trust exists. The court further observed that the applicant had initially disputed the first respondent’s authority to depose to the answering affidavit on behalf of the other trustees, yet “does not exercise the same vigilance in respect of the first respondent’s alleged offer of 16.67% of his interests in the Trust”.
The pleaded case itself was found wanting. The notice of motion sought a declarator without any percentage, whereas the founding affidavit, at paragraph 16, asked for a declaration that the applicant was entitled to all rights and benefits of 16.67 percent of the Trust. The applicant simply assumed she was entitled to half of the first respondent’s allocation and never explained how she arrived at that figure. The court held that the calculation had to be set out, because the parties were married out of community of property with the accrual system and not in community of property, and because the deed itself does not say how the A beneficiary’s 33.33 percent is to be divided between the first respondent, his spouse, their children and their descendants. The applicant had accordingly not made out a case that she fell within clause 1.1.8 read with clause 1.1.1, and the application was dismissed with costs on scale B.
Questions and Answers
What relief did the applicant seek in this matter?
She sought a declaratory order in terms of section 21(1)(c) of the Superior Courts Act declaring her to be a beneficiary of the A Beneficiary in the ERF 1[…] Fernkloof Investment Trust, and in her founding affidavit she quantified this as an entitlement to all rights and benefits of 16.67 percent of the Trust.
On what basis did the applicant claim to be a beneficiary?
She was not named in the deed. Her claim rested on clause 1.1.8, which includes “the spouse of each such beneficiary”, read with clause 1.1.1, which names the first respondent as the A beneficiary. She contended that because she was the first respondent’s spouse when the deed was executed, she qualified and continued to qualify as a beneficiary.
What is the two-stage inquiry for a declaratory order?
Relying on J T Publishing and Shoba, the court held that it must first be satisfied that the applicant is a person interested in an existing, future or contingent right or obligation, and must then decide whether the case is a proper one for the exercise of its discretion. A declaratory order is a discretionary remedy.
How did the Plascon-Evans rule affect the outcome?
Because final relief was sought on motion, disputes of fact were resolved on the respondents’ version under Plascon-Evans. The trustees’ explanation that the general word “spouse” was used because the Trust would endure for a long time and they did not want ex-wives to disturb it therefore had to be accepted.
How is a trust deed to be interpreted?
A trust deed is a contract between the founder and the trustees, as held in Estate Hafiz, and it is interpreted as at the time of its execution according to the ordinary principles of interpretation, as held in Wormald. The settlor’s intention at execution is ascertained from the language used and the circumstances then existing, per Moosa and Wilkinson.
What does Endumeni require of a court interpreting a document?
Endumeni requires an objective approach, unrelated to the subjective intention with which the words were selected. The starting point is the language of the provision, read in context and having regard to its purpose and the background to the preparation and production of the document.
What role did Cool Ideas play in the judgment?
The court cited Cool Ideas for the principle, endorsed by the Constitutional Court, that words must be given their ordinary grammatical meaning unless to do so would result in an absurdity. On a plain reading, “spouse” did not include a former spouse.
Why did the court hold that “spouse” meant the current spouse?
Nothing in the deed indicated that “spouse” was fixed at the date of execution. The deed was forward looking, as both parties accepted, and the applicant herself explained that “children” and “grandchildren” were used to accommodate future possibilities without amending the deed. The court held that the same logic applied to “spouse”, so that the term tracks whoever holds that status from time to time.
What significance did the court attach to the applicant’s own affidavits?
Considerable significance. Her replying affidavit conceded the forward-looking purpose of the flexible terminology, and her founding affidavit stated that her entitlement arose “by virtue of my marriage”. The court found this unequivocal and held that when the marriage ended, so did the entitlement.
Was the applicant’s profession relevant?
Yes. The court noted that as an attorney and conveyancer she would be alive to the importance of words in a document and the need to avoid ambiguities. Had the intention been to protect spouses at execution, the deed could have named them or inserted the word “current” before “spouse”.
What was the “over cluttering” argument and how was it treated?
The applicant explained that trustees were nominated to represent particular families and that naming spouses would have over cluttered the trustees. The court found this explanation devoid of logic, observed that naming the spouses would not have cluttered anything, and remarked that it was unclear what over-cluttering the trustees even meant.
Did the first respondent’s 16.67 percent tender amount to an admission?
No. The tender was made in the first respondent’s personal capacity in respect of his personal estate during accrual settlement discussions. It was not a tender by a trustee in respect of the Trust’s benefits and could not be accepted as a concession on behalf of the Trust.
How did the tender differ from the declaratory relief sought?
The tender would have limited the applicant’s entitlement to the date on which the accrual was determined. The declaratory relief, by contrast, would have given her the rights and interests of a beneficiary for as long as the Trust exists.
Why was the absence of a calculation of the 16.67 percent fatal?
The notice of motion sought no percentage, while the founding affidavit claimed 16.67 percent without explaining how that figure was reached. The court held that the calculation was necessary because the parties were married out of community of property with the accrual system, not in community, and because the deed does not say how the A beneficiary’s 33.33 percent is divided among the first respondent, his spouse, their children and descendants.
What was the order and what does the case teach about drafting?
The application was dismissed with costs on scale B. The judgment demonstrates that an undefined reference to a “spouse” in a trust deed will ordinarily be read as the person holding that status from time to time, so that divorce terminates the former spouse’s beneficiary status. A drafter who intends otherwise must say so expressly, whether by naming the spouse or by defining the term.
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. For free and useful Family Law tech applications visit Maintenance Calculator, Court Day Calculator and Accrual Calculator.
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