Resolution of trustees: Clarity on the authority vs capacity conundrum
Trust deeds ordinarily contain a clause that prescribe that a trust shall always have a certain minimum number of trustees in office. Whilst is it accepted that an agreement concluded by a trust whilst the number of trustees are below the prescribed minimum is null and void, there seem to be confusion whether action by trustees on behalf of a trust whilst the number of trustees are below the prescribed minimum may be ratified after additional trustees have been appointed.
On 6 March 2026, and in Zurnamer NO and Others v JA Clift (Pty) Ltd and Others (25519/2024) [2026] ZAWCHC 106 (“JA Clift Judgment“), the High Court of South Africa, Western Cape Division (“High Court“) clarified the abovementioned confusion in the context of locus standi (legal standing) of a trust to institute legal proceedings whilst the trustees in office are below the prescribed minimum number.