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If your trust has fewer trustees than its deed requires, the trust cannot act at all, and fixing it afterwards will not save what was done in the meantime. The Western Cape High Court confirmed this on 6 March 2026 in Zurnamer NO and Others v JA Clift (Pty) Ltd and Others [2026] ZAWCHC 106.
Two family trusts went to court to get out of a company they said was being run unfairly. They lost before the court even looked at their complaints.
What happened
The Derek Kelynack Family Trust and the Jack Kelynack Family Trust together held about 16% of JA Clift (Pty) Ltd, a granite and farming company. Their trustees applied under section 163 of the Companies Act, the oppression remedy. They asked the court to order the majority to buy out their shares and loan accounts at fair value.
The complaints included no dividends since 2009, unsigned 2023 financial statements and poor notice of meetings. The court never decided any of them. The respondents argued first that neither trust had the capacity to bring the case, and they won on that point.
The timeline for the Jack Kelynack trust tells the story:
17 June 1994: Trust deed signed. Clause 5.3 requires at least two trustees to act.
28 May 2024: Ms Rix, signing as "sole existing trustee", resolves that the trust will litigate.
22 November 2024: The Master issues Letters of Authority to three trustees.
27 November 2024: The application is launched, on the strength of the May resolution.
6 August 2025: All three trustees sign a resolution ratifying the litigation.
6 March 2026: Judgment. The trust lacked capacity and the application is dismissed.
The Derek Kelynack trust fared no better. Its founding affidavit attached no trust deed, no Letters of Authority and no Master's certificate. The court said it had "no idea what the required minimum was".
Why fixing it later did not help
The trusts argued that the August 2025 resolution ratified the decision to sue. Pangarker J rejected that, because the problem was capacity, not authority.
Lack of authority means the trust could act, but the wrong people acted for it. That can be ratified afterwards by the proper trustees.
Lack of capacity means the trust itself could not act. The act is a nullity, and there is nothing to ratify.
The court relied on Land and Agricultural Bank v Parker 2005 (2) SA 77 (SCA). There the SCA held that a trust deed is the trust's "constitutive charter", and that a minimum-number-of-trustees clause is a condition that defines the trust's capacity. When fewer trustees are in office, the trust cannot act. The court also followed Hyde Construction CC v Deuchar Family Trust 2015 (5) SA 388 (WCC), which held that a lack of capacity cannot be ratified.
So when Ms Rix alone resolved to litigate in May 2024, the trust could not act. The later appointment of two more trustees, and their ratification, could not bring that decision to life.
What this means for you
A trustee resigns or dies, and the trust quietly drops below its minimum. This is common in family trusts. Until a replacement is appointed and authorised by the Master, the remaining trustee cannot validly sign contracts, open accounts, sell property or litigate for the trust.
Count before you act. The deed's minimum number, not the number on old Letters of Authority, is what matters. Check both before any important decision.
A new resolution, not a ratification. Once the trust is back to its minimum, the proper trustees should take a fresh decision. In Zurnamer, a new resolution by the three authorised trustees before the case was launched might well have changed the outcome.
Litigating trusts must prove capacity. Attach the trust deed, current Letters of Authority and the resolution to the founding papers. Without them, the other side can win without the merits being argued.
Is your trust able to act today?
1. Find the clause in your trust deed setting the minimum number of trustees.
2. Compare it with the trustees named on your latest Letters of Authority.
3. Check whether any trustee has since resigned, died or become incapacitated.
4. If you are below the minimum, stop signing for the trust until a new trustee is appointed under the deed and authorised by the Master.
5. Once authorised, take fresh resolutions for anything important the trust needs to do.
Lawvero prepares the trustee resolutions, acceptance of trusteeship (J417) and J401 amendment application needed to appoint a replacement trustee. Start a trustee change at lawvero.co.za/trusts/trustee-change/intake.
Frequently asked questions
Can a sole trustee act for a trust? Only if the trust deed allows a single trustee. If the deed requires two or more, a sole trustee usually cannot bind the trust, although some deeds allow a remaining trustee to appoint a new one.
Can the new trustees ratify what was done while the trust was short? No. Acting below the minimum is a lack of capacity, which makes the act a nullity. Only a lack of authority can be ratified.
Does it matter what the Letters of Authority say? Yes. A trustee may only act once authorised in writing by the Master under section 6(1) of the Trust Property Control Act. The trust needs both enough trustees under the deed and Letters of Authority for each of them.
Which case is this? Zurnamer NO and Others v JA Clift (Pty) Ltd and Others (25519/2024) [2026] ZAWCHC 106 (6 March 2026).
Sources
Zurnamer NO v JA Clift (Pty) Ltd: full judgment on SAFLII (opens in a new tab)
Lawvero provides document preparation services and does not provide legal advice. This article is general information, not advice on your specific trust.