A Victoria Falls businessman has lost a High Court bid to have a trustee removed from the Damo Trust, after the court ruled that he had surrendered all his rights and interests in the trust when it was created.
Bulawayo High Court judge Justice Nokuthula Moyo struck the application off the roll after upholding two preliminary objections raised by Bronwyn Shay Bezuidenhout, cited as the first respondent, and the Damo Trust.
The dispute centred on the administration of the Damo Trust, which was registered in 2014 and included property identified as Stand 503 Acacia, Victoria Falls.
David Llyod Cooper, the settlor of the trust, had approached the court seeking an order confirming Bezuidenhout’s removal as trustee.
He also wanted her to hand over all trust property, the original deed of trust, the deed of transfer for the Victoria Falls property, and the trust’s accounts.
Bezuidenhout opposed the application and raised two preliminary objections.
She argued that the beneficiaries of the trust had not been joined to the proceedings despite having a direct and substantial interest in the dispute.
Cooper’s lawyer, Tawanda Zhuwarara, countered that the non-joinder of beneficiaries was not fatal and that a trust could sue or be sued in its own name.
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The applicant also maintained that he had a direct and substantial interest in the matter sufficient to give him locus standi.
Moyo, however, found that the trust deed itself defeated Cooper’s argument.
The court found that Cooper had not reserved any powers allowing him to supervise the trust, enforce its conditions, remove trustees or institute legal proceedings concerning the trust.
“The general principle of the law of trusts is that once a trust has been validly constituted, the settlor divests themselves of any interest in the trust,” Moyo said.
Moyo ruled that Cooper, therefore, had no personal right to sue the trustee.
The court also rejected the argument that the beneficiaries could simply be left out of proceedings.
The judge said the relief sought by Cooper directly affected the administration of the trust and the interests of the beneficiaries, removing a trustee would alter the exercise of the trustee’s powers and affect the administration and property of the trust.
