A recent High Court case regarding accessibility of information from the Trustees of a Trust.

Feb 1, 2021 | Article

High Court case 21 January 2021: RS NO and Others v CMS and Others; In re: CMS v RS and Others (6837/2020) [2021] ZAWCHC 6.

In this case, which is linked to a divorce mediation process, the wife obtained a subpoena against Investec Bank to provide information in its possession, which the Bank was willing to provide – unless the subpoena is set aside by way of an order of court. That is what the trustees of the Trust were hoping to do by bringing an application to court for the subpoena to be set aside.

The wife was seeking, inter alia, the following relief; a decree of divorce; maintenance for herself and the minor children born of her marriage to her husband; an order declaring that the assets acquired by the trustees of the trust (which they ostensibly hold in their capacities as trustees of the trust) are in effect owned by the husband; an order that when calculating the joint estate (alternatively, any accrual that has taken place in the first husband’s estate), the net value of the assets referred to above (at the time of the dissolution of the marriage), must be taken into account as forming part of the joint estate (alternatively, the husband’s estate).

Alternatively, an order was sought for damages against the husband, inasmuch as it was alleged, that he breached the terms of the ante-nuptial contract, by acquiring assets in the name of the trust (so as to place these beyond any claim that the wife may have in regard to the joint estate and/or any accrual) and, an order that should the husband hold insufficient assets to satisfy the order made against him, that sufficient assets be transferred from the trust, to satisfy such order.

Wille J indicated that to him it did not appear how the rights of the Trust may in any manner be affected or violated, should the subpoena be complied with, and the application was dismissed.