Jun 11, 2026 | Article
This article argues that while letters of wishes are technically non-binding documents, they play a crucial practical role in how trusts are administered over time.
The Core Problem
Discretionary trust deeds are legally precise but often use broad language (e.g., “health, education, maintenance and support”) that doesn’t capture the settlor’s actual reasoning. When trustees — especially successor or corporate trustees who never knew the settlor — must make distribution decisions without context, inconsistency and disputes can follow.
What a Letter of Wishes Does
It doesn’t amend the trust or bind trustees, but provides context for exercising discretion. It helps trustees answer practical questions like whether to prioritize capital preservation, how to balance competing beneficiary interests, and how much independence beneficiaries should be expected to show.
Key Drafting Principles
- Clarify purpose, not dispositive details — overly prescriptive letters risk being treated as binding instructions
- Write in a measured, forward-looking tone, since the letter may be read years later in unforeseen circumstances
- Review and update periodically while the settlor is alive and has capacity
- Corporate trustees especially benefit from clear guidance, as they must demonstrate reasoned, defensible decision-making
Important Limitations
Letters of wishes cannot override the trust deed, must not conflict with its provisions, and should not create enforceable obligations. They complement robust drafting — they don’t replace it.
Bottom Line
For advisors, routinely preparing a letter of wishes alongside a discretionary trust is a low-cost, high-value governance step that preserves the settlor’s intent across generations and reduces the risk of beneficiary disputes.
Original source: STEP JOURNAL
Jun 1, 2026 | Article
Eviction law is one of the most carefully regulated areas of our legal system – striking a constitutional balance between a property owner’s rights and an occupier’s right to adequate housing. Whether you’re a landlord or a tenant, understanding how this process works is essential.
The key legislation governing evictions is the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (the PIE Act), supported by section 26 of the Constitution, which guarantees everyone’s right to adequate housing. Together, these laws set clear procedural and substantive hurdles that must be met before any eviction can take place – protecting both property owners and occupiers.
Evictions are typically required when someone occupies property without consent, after a lease expires or is cancelled, due to non-payment of rent, or after the property has been sold to a new owner. One critical rule: property owners cannot take matters into their own hands. Changing locks, removing an occupier’s belongings, or cutting off services without a court order is unlawful – no matter the circumstances.
So how does the eviction process actually work? Here’s a simplified breakdown:
(1) The occupier’s right to be on the property must first be lawfully terminated.
(2) Both the occupier and the relevant municipality must be formally notified of the intended eviction – giving the court a chance to consider the risk of homelessness and whether alternative accommodation is available.
(3) Only after these steps are completed can the property owner approach the court for an eviction order.
To obtain an eviction order, a property owner must show that they are entitled to possession, that the occupation is unlawful, that proper notice was given, and that eviction would be just and equitable. Courts don’t grant eviction orders automatically – they consider all circumstances, including the needs of vulnerable occupiers such as children, elderly persons, and people with disabilities, as well as how long someone has lived there and whether alternative housing is available.
Where an eviction order is granted, the court will specify a date by which the occupiers must vacate the property and may impose conditions governing the manner of eviction. In some cases, the court may suspend the operation of the order to allow time for alternative accommodation to be arranged. If occupiers fail to vacate by the specified date, a warrant of eviction may be issued authorising the Sheriff of the Court to carry out the eviction.
Occupiers are entitled to oppose eviction proceedings and may raise both procedural and substantive defences. These may include non-compliance with the requirements of the PIE Act, disputes regarding ownership or lawful occupation, or the absence of proper consideration of personal circumstances. Courts are particularly cautious in cases where eviction may result in homelessness or undue hardship, and each matter is assessed on its own facts.
Municipalities also play an important role in eviction proceedings. Courts frequently require municipalities to provide reports on the availability of emergency housing or alternative accommodation, and in some cases to assist vulnerable occupiers in securing temporary shelter. This ensures that constitutional housing obligations are properly considered.
Eviction law in South Africa is about more than property rights – it’s a constitutionally regulated process that protects both owners and occupiers. Whether you’re a landlord trying to reclaim your property or a tenant facing eviction, the law sets clear rules that must be followed. If you’re navigating an eviction situation, get expert legal advice early – the process can be complex, and the stakes are high.
Source: C & A Friedlander Attorneys
Mar 23, 2026 | Article
AND THEN CAME THE WAR
2026 was predicted to be a great year. Globally, oil prices were low, inflation was under control, interest rates had further to fall, growth was edging upwards and equity markets were appreciating accordingly. The world was in a good space.
19 Mar 2026
Jeremy Gardiner, Director, Ninety One
Investors had been enjoying significant improvements in their portfolios. Solid returns last year looked set to continue in 2026 and possibly into next year as positive momentum built into a virtuous cycle.
South Africa in particular, for once, was also in a really good space. A commodity boom, a rampant gold price, a strong rand and the lower oil price saw inflation nicely under control. Further rate cuts were in sight and growth was set to increase steadily going forward, boosted by turnarounds in electricity, the ports and the railways.
And then came the war.
Trying to establish US strategy is tricky. Militarily, the US/Israeli Alliance seems to have achieved significant results, and Trump’s language indicates that he’s keen for an exit. Should this happen in the next two weeks, then the market/economic impact could still be fairly limited.
The risk to this scenario is that the Iranian leadership is obviously enraged and may not be content to “call it quits and move on”. They could instead pursue a messy, Middle East disruption strategy, resulting in sustained oil price hikes and the resultant global economic fallout. Tehran cannot win militarily but they can make it too expensive economically and politically for the Americans to continue for too long.
The big question is whether President Trump has started a veld fire he may not be able to put out. If there is a plan, at this stage it’s difficult to see.
Markets are watching all of this with no clear trend. Outbreaks of hostility traditionally don’t impact markets that much, but should there be a lengthy oil price shock which leads to a change in the interest rate trajectory, and hence a growth impact, then markets will adjust accordingly. Last week saw the biggest ever selling of S+P futures, back to last year’s ‘Liberation Day’ levels.
Americans are concerned, they are well aware of past mistakes in terms of getting “stuck” in armed conflicts in the Middle East and will be in no rush to repeat that model.
Plus, US President Donald Trump has the midterm elections coming in November, and geopolitics does not excite US voters. It’s important to remember, that Trump was elected on the promise of no wars, improving the cost of living, and affordability for poorer Americans. What is of paramount concern to US voters is the cost of living and inflation. Already, households are carrying an additional financial burden because of tariffs estimated by Yale University to be between $1900 and $4700 per household per annum. He cannot afford to have petrol prices, inflation and interest rates all rising in the run-up to elections.
Trump needs oil prices down fast, and nobody is in a rush to help in the Straits of Hormuz. The Allies were not consulted about the war; they feel it’s ‘not their war’. Economically, they may have to help patrol if oil keeps rocketing.
Normally, in a situation where inflation is potentially rising, Central Banks would raise rates, but with a global recession potentially looming, they’ll probably stay on hold, for the moment.
However, even if the war stops, it will take a while for the oil price to settle. An inflationary impact is therefore “baked in” and will probably see rates stuck (if not rise).
So, in summary, it’s all about duration. The shorter the better for investors, with limited long-term impact. Already however, you’ll see fuel price increases with food prices increasing, inflation will rise, and interest rates may have to go up, which would see growth decline.
On the plus side, SA, at the bottom tip of Africa, is geographically well positioned, and assuming we don’t revert to a complete “risk-off world”, SA assets could be an attractive destination for emerging market flows. DM
Author: Jeremy Gardiner, Director, Ninety One
Mar 23, 2026 | Article
Lenette Janse De Wit and Others v Toerien De Wit N O and Others (607/2024) [2026] ZASCA 23 (6 March 2026)
De Wit Family Trust Case (ZASCA, March 2026)
Background
The De Wit Family Trust was established in 1995 by Elbert De Wit Snr as a discretionary trust, holding all shares in the De Wit Group (significant property and business interests). Before his death in 2019, Elbert Snr verbally expressed a wish for trust capital to be shared equally among beneficiaries — but without liquidating assets or disrupting the businesses.
The Dispute
After his death, the family split. Some beneficiaries (Lenette and Maryke) wanted the trustees to set a vesting date and distribute assets. The majority trustees (Toerien and Philip) refused, citing the trust’s limited liquidity. The dissenting parties applied to the Western Cape High Court to terminate the trust under section 13 of the Trust Property Control Act 57 of 1988.
The Courts’ Findings
The High Court acknowledged a family breakdown had occurred but found no proven causal link between the trust provisions and harm to the beneficiaries, so it dismissed the application. The Supreme Court of Appeal upheld this dismissal, with a key finding: the founder’s intention must be determined from the trust deed itself, not from verbal wishes expressed informally. The trust deed explicitly gave trustees wide discretionary powers, including the right to continue the trust indefinitely — and the majority trustees were acting entirely within those powers.
Key Takeaways for Practitioners
- A founder’s verbal wishes carry no legal weight if they contradict the trust deed
- Any deviation from the trust deed requires a formal amendment
- Trust drafters should plan carefully for liquidity within the trust structure
Source of information: FISA Focus Weekly
Mar 6, 2026 | Article
March 1st, 2026
Shepstone and Wylie Attorneys v De Witt NO and Others 2025 (11) BCLR 1299 (CC)
By Sandile Khumalo
On 1 August 2025, the Constitutional Court in Shepstone and Wylie Attorneys v De Witt NO and Others 2025 (11) BCLR 1299 (CC), provided much needed clarity on the joint action rule that governs trustee actions and what constitutes a validly constituted trustee meeting and valid trustee resolutions.
Facts
The dispute herein arose from the affairs of the Penvaan Property Trust (the trust). Mr V was the founder of the trust; he was also a trustee of the trust, together with Mrs V (his wife) and Mr de Witt. Mrs V was a beneficiary of the trust. The trust deed authorised the trustees to provide suretyships to third parties for the debts of beneficiaries and required that at least two trustees be in office at all times. A quorum for trustee meetings was two trustees, and trustee decisions taken at meetings required majority support. The deed also allowed for written (round-robin) resolutions, but these required the signatures of all trustees. The deed also stipulated that agreements had to be signed by at least two trustees. The deed designated Mr V as chairperson of trustee meetings for as long as he remained a trustee.
In 16 May 2013, the trust faced sequestration proceedings brought by FirstRand Bank. Mrs V convened an urgent trustee meeting to be held on 23 May 2013, to decide whether the trust should oppose the sequestration and whether it should stand surety for her legal fees owed to Shepstone and Wylie Attorneys (SW) in her divorce proceedings against Mr V. Mr V objected to the notice on logistical grounds. The meeting was postponed to 25 May 2013 and relocated to accommodate him, but he ultimately chose to abstain despite receiving proper notice.
On 25 May 2013, Mrs V and Mr de Witt met as trustees, forming a quorum. They resolved to oppose the sequestration application and to bind the trust as surety for Mrs V’s legal fees. The two of them subsequently signed a deed of suretyship in favour of SW.
Several years later, when SW sought to recover its fees (exceeding R2 589 208) from the trust, the trust denied liability. It argued that the suretyship was invalid because it had not been authorised by all trustees and thus did not comply with the joint action rule.
Litigation history
The High Court (KwaZulu-Natal Division, Pietermaritzburg) found in favour of the trust, holding that trustees must act jointly in external matters and that the suretyship was invalid because only two of the three trustees had signed it.
On appeal, the Supreme Court of Appeal (SCA), by majority, upheld this decision. The SCA reasoned that trustees are co-owners of trust property and must act unanimously unless the trust deed expressly provides otherwise.
Relying heavily on Steyn and Others NNO v Blockpave (Pty) Ltd 2011 (3) SA 528 (FB) (Blockpave), the SCA held that trustees may disagree internally but decisions with an external effect required a unanimous resolution, and that all trustees must participate in decisions affecting the trust. The SCA further held that the suretyship was not for the benefit of the trust and thus was not authorised by the deed. SW’s appeal was dismissed.
SW then appealed to the Constitutional Court.
Issues at the Constitutional Court
The Constitutional Court framed the substantive trust related issues thus –
- whether the SCA had misstated the law; and
- whether, on a proper interpretation of the deed, two out of three trustees could, at a duly convened meeting of trustees, resolve to bind the trust to a deed of suretyship despite the absence of the third trustee from that meeting.
Reasoning and findings
The Constitutional Court held thus:
Misstatement of the law
The court held that the SCA had misstated the law. It rejected the proposition from Blockpave that trustees cannot disagree in external matters and that all trustees must participate in decisions binding the trust. The court endorsed academic criticism of Blockpave, noting that it introduced an unwarranted and artificial distinction between internal and external trustee decisions.
The court reaffirmed that the joint action rule is not immutable and can be modified by the trust deed.
Construing the trust deed
The court emphasised the need to distinguish between unanimous-decision trusts and majority-decision trusts. Where a trust deed contains a freestanding majority-vote clause, trustees must act jointly but not unanimously. Absent a freestanding majority vote clause, the trustees must act not only jointly but also unanimously.
The court rejected the argument that even in a majority-decision trust all trustees must sign resolutions authorising external transactions because insisting on the signature of a trustee who had notice of the meeting but chose not to attend would amount to ‘form over substance’.
The court clarified that the requirements for round-robin resolutions (which required all trustees’ signatures) must not be conflated with those applicable to resolutions taken at trustee meetings.
In this case, the decision to bind the trust as surety was taken at a quorate meeting with majority support, satisfying the requirements for a valid trustee resolution. The execution of the suretyship was also valid, as the trust deed required only two trustees to sign agreements binding the trust, which they did.
With reference to Mr V’s designation as chairperson for as long as he was a trustee, it held that such a clause does not prevent meetings from proceeding in his absence. Where a trustee with a right to chair receives notice but elects not to attend, the remaining trustees may elect a chairperson and proceed, provided a quorum is present.
Outcome and significance
The Constitutional Court upheld SW’s appeal, set aside the SCA judgment, and confirmed that the suretyship was valid and binding on the trust.
This decision is a decisive rejection of the false internal/external decision dichotomy introduced by Blockpave and clarifies that the terms of the relevant trust deed determine the scope of application of the joint action rule.
(Source De Rebus)
Nov 25, 2025 | Article
The courts recently caused significant uncertainty and anxiety regarding trustee decision-making. Since 2023, they have fluctuated between requiring all trustees to approve and sign trustee resolutions for transactions with third parties and recognising that a trust deed can specify the number of trustees needed to authorise transactions. In 2023, the Supreme Court of Appeal (SCA) confirmed the High Court’s view that a suretyship signed in favour of Shepstone & Wylie attorneys was invalid because it was not properly approved by all trustees. The court over-emphasised the distinction between trustee decisions made internally and those affecting external parties, as per the Blockpave case of 2011. Needless to say, the poorly drafted trust deed was open to much interpretation.
Practically, the new legal principle had significant implications for trusts that had already entered into transactions, as many of these could now be challenged as invalid based on the 2023 court decision, even though they complied with the trust deeds and common law when entered into. The South African Revenue Service (SARS) also requires trustees to submit all resolutions related to a tax year along with the trust tax return and might deem many transactions invalid as a result of this court decision. This was an untenable position, which was thankfully corrected recently (in August 2025) by the Constitutional Court when it decided to hear the case, believing that the interests of justice required addressing the misstatement of trust law by the SCA. It held that if this remained uncorrected, lower courts would in future be bound by that misstatement. Although that was a relief, careful planning and execution of trust deeds will become essential to prevent misuse and to protect minority trustees.
What did the courts say?
The SCA majority stated that it is a well-established and recognised legal principle that, as co-owners of trust assets, “trustees must act jointly in taking decisions and resolutions for the benefit of the Trust and beneficiaries thereof, unless a specific majority clause provides otherwise.” However, the Constitutional Court recognised that, according to the Parker case of 2005 and the Nieuwoudt case of 2004, the principle was established that a trust deed can permit something other than joint action by trustees, and it can do so through a majority clause. It held that the SCA majority therefore interpreted the principle narrowly, without proper authority to do so. It was adamant that the SCA majority’s misstatement of the principles set out in the Parker and Nieuwoudt cases, and its reliance on the principle set out in the Blockpave case, had the potential of changing trust law if it was left uncorrected.
The court in the Blockpave case held that, while trustees can internally disagree on matters, externally they cannot disagree, and all trustees must participate in external matters. The Constitutional Court held that the Blockpave case is clearly wrong when it states that “externally trustees cannot disagree” and that in the external sphere a trust “functions by virtue of resolutions, which have to be supported by the full complement of the trust body”. The Constitutional Court was adamant and repeatedly stated that trust law allows for a trust deed to provide for majority or quorate decision-making.
The Constitutional Court was also of the view that the SCA introduced an unjustified distinction between decisions of trustees regarding internal and external matters, and in doing so, imposed an incorrect restriction on the proposition that the requirement of joint action can be modified by a trust deed.
The High Court relied on the Le Grange case of 2017, which referenced the decision in the Van der Merwe case of 2010, stating that if the majority of trustees reach a decision without the participation of all trustees, unless the trust deed states otherwise, a decision by the majority is not binding on the trust. It therefore held that the trustees had to act unanimously to approve the suretyship in favour of Shepstone & Wylie, as in the absence of any other clauses in the trust deed, the general principle prevailed — that decisions must be made unanimously and trustees must act jointly.
Unfortunately, the trust deed borrowed wording for trustee meetings from company law at the time, which operates differently from trust law. The SCA held that, in terms of the trust deed, there was no disagreement between the trustees for the majority vote to apply, as one trustee did not attend the meeting and therefore could not disagree with his co-trustees. The Constitutional Court disagreed with this view and held that only the views of those who attend a meeting are relevant for decisions taken at such a meeting, and if trustees at a quorate meeting agree, the clause dealing with disagreements is irrelevant.
The SCA relied on the Parker case and held that if a trust deed requires trustees to act jointly to bind the trust, a majority decision will not bind the trust if a trustee did not participate in the decision-making, especially when decisions are taken that affect trust assets. The provision of reasonable notice of the meeting was not enough to meet the participation requirement. It agreed with the High Court’s finding that the trustees did not act jointly in deciding to execute the suretyship.
The SCA majority stated, relying on the Le Grange case, that “even when the Trust Deed provides for a majority decision, the resolution must be signed by all the trustees”. The Constitutional Court held that this conflicted with the principle.
expressed in the Nieuwoudt and Parker cases that a trust deed can allow for decision-making other than by joint action. It was of the view that the apparent reliance on the Le Grange case was incorrect, as Le Grange stated that resolutions signed by trustees are “usually” a manifestation of trustees’ joint decision. The Constitutional Court quoted the Le Grange case to hold that where (as on the facts of that case) the majority (being two trustees) had signed a resolution and the third abstained, it would be placing “form over substance” to insist on having the third trustee’s signature on the resolution. This quote appears to be taken out of context, as discussed below.
The Constitutional Court believed that the majority in the SCA seemingly failed to recognise the key distinction between unanimous-decision trusts and majority-decision trusts. The Constitutional Court held that when a majority-decision trust deed includes a standalone majority vote clause (as in the Van der Merwe and Le Grange cases), the trustees must act jointly but are not obliged to act unanimously. It also noted that where there is no standalone majority clause (as in the Parker case), the trustees must act both jointly and unanimously.
The Constitutional Court also criticised the SCA for misinterpreting provisions that are routinely encountered in trust deeds, even if the wording differs slightly.
Where does it leave trust decisions?
With the Constitutional Court being the highest court in South Africa to hear matters of general public importance (such as this case involving trustee decision-making), its decisions are final and binding, and no other court can overturn them. They are, therefore, here to stay.
The correction by the Constitutional Court of the SCA’s misstatement of trust law is welcomed—particularly in clarifying that a trust deed can allow for majority decision-making and that there should be no different treatment between internal and external matters.
It, however, appears if the Constitutional Court erred in its narrow quoting of the Le Grange case, that it would be “
form over substance
” to require the dissenting trustee/s to sign a resolution with the majority. The context of that quote pertains to a trustee whose signature did not appear on a resolution, but whose emails and behaviour confirmed support for the decision. It did not refer to the obtaining of the signature of a dissenting trustee. It was well-
phrased in the Van der Merwe case, which was cited in the Le Grange case, that even if majority decisions are allowed in a trust deed, it does not remove the requirement that the “
minority is obliged to act jointly with the other trustees in executing the resolution adopted by the majority
”. In other words, they should be invited to trustee meetings and allowed to participate in decision-making, and even if they do not agree, they will be bound by the majority decision and required to cooperate and sign the duly authorised resolution. The Le Grange case, relying on the Van der Merwe case, held that “
the obligation to act jointly does not imply that the minority has to agree with the majority or that votes have to be unanimous for any decision to be binding on the trust… Dissenting trustees must subject themselves to the democratic vote of the majority. Trustees have to present a united front irrespective of internal descent. Such ‘unity of purpose and function’ must be manifest publicly usually by a written resolution signed by all the trustees… Otherwise any other unambiguous, accessible form of communicating decisions of the trust possible in the information age will do… Physical presence at meetings is not required at all times but participation and input in the making of all decisions is essential. All that is required is that all trustees who are required to participate in the decision have an opportunity to do so and they would be bound by the decision of the majority participating in such a decision.”
As a result of the legal principle established by the Constitutional Court, which contradicts the Le Grange case, that a valid resolution may be signed by only the majority of trustees (as long as the trust deed allows for majority decision-making), and given the risks associated with trusteeship with the recent introduction of fines and penalties for non-compliance with laws and potential personal liability, trust deeds should be carefully drafted to ensure that trustees are allowed to be involved and participate in all trust matters.
All these aspects must be carefully considered and documented in a trust deed, which should be meticulously drafted to avoid ambiguity and conflicting or impractical terms. Estate planners need to be aware of the risks associated with choosing specific trust deed clauses and should customise the deeds to mitigate the risk of trustees abusing their powers. Special consideration should be given to their unique circumstances, needs, and risks. It may be prudent to allow for well-drafted majority decisions for daily trust management, while reserving unanimous decision-making for significant actions such as trust deed amendments, trust terminations, or distributions exceeding certain thresholds. In light of the
Constitutional Court’s extreme ruling that not all trustees’ signatures are required for majority decisions, it might be advisable to require the presence of all trustees to constitute a quorate meeting.
Trustees who fail to discharge their fiduciary duties, such as Mr Volker in the Shepstone & Wylie case, should be dealt with harshly. No trustee should have the power or be allowed to veto or invalidate transactions through their deliberate non-participation (as initially allowed by the High Court and the SCA). Luckily that was corrected by the Constitutional Court.
Outsiders dealing with trusts should be cautious of resolutions that are not signed by all trustees, even if the trust deed allows for majority decision-making. Such resolutions may be invalid if some trustees can prove they were never invited to the meeting where the resolution was approved by the majority. It can be difficult to determine whether all conditions for a valid resolution were satisfied. Resolutions signed by all trustees provide significantly greater reassurance to third parties.
(Source: Phia Van Der Spuy)
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