REPORTABLE

Case No: 336/97

IN THE SUPREME COURT OF APPEAL OF

SOUTH AFRICA

In the matter between:

NAUSHAD HOOSEN N.O.
1ST APPELLANT
YUSUF ALLY N.O.
2ND APPELLANT
MAHOMED KHAN N.O.
3RD APPELLANT

and

YASMIN DEEDAT
1ST RESPONDENT
YOUSUF AHMED DEEDAT
2ND RESPONDENT
AHMED HOOSEN DEEDAT
3RD RESPONDENT
EBRAHIM JADWAT N.O.
4TH RESPONDENT

CORAM: MAHOMED
CJ,
SMALBERGER,
OLIVIER,
STREICHER JJA and MELUNSKY AJA

DATE OF HEARING: 17 MAY 1999

DELIVERY DATE:
16 JULY 1999

Religious Trust - Purported delegation of Trustee=s
powers and duties - Legally impermissible on proper
interpretation of Trust Deed
_________________________________________________________

JUDGMENT
_________________________________________________________

. . . SMALBERGER JA
SMALBERGER JA:

[1] The Islamic Propagation Centre International (Athe Trust@) was
formed by a Notarial Deed of Trust (Athe Trust Deed@) in April 1985 and
duly registered with the Master of the Supreme Court (Athe Master@) on
19 June 1985.  The third respondent was a co-founder and one of the
original trustees of the Trust, a position he has continued to occupy since.
The Trust Deed initially provided for five trustees; in August 1986 the
number was increased to seven.  The Trust owns very substantial assets
including four valuable income - producing properties.
[2] Regrettably the affairs of the Trust have not always run smoothly.
Factionalism within the ranks of the trustees has led to deteriorating
relationships between them.  This has inevitably been prejudicial to the
proper management of the Trust.  It has resulted in deadlock and frequent
litigation between individual trustees or groups of trustees.

[3] On 4 May 1996 the third respondent unfortunately suffered a
stroke leaving him paralysed from the neck down and unable to speak.
For present purposes it may be accepted that notwithstanding his
physical disability he remains of sound mind and is able to communicate
in a fashion through a computer aided communication system.  However,
his disability precludes him from attending meetings of the trustees and
performing his related duties as a trustee.  This effectively led to a shift
in the balance of power within the ranks of the feuding trustees.  To
remedy this the third respondent, on 10 March 1997, granted a Special
Power of Attorney (Athe Power of Attorney@) to his daughter-in-law, the
first respondent, to represent him at meetings of the Trust.
[4] This gave rise to an application in the Durban and Coast Local
Division by the appellants (as applicants) to have, inter alia, the Power

of Attorney Adeclared to be null and void and of no legal force and
effect@ and to interdict the first respondent from acting Aas a trustee of the
[Trust] as the agent of . . . . the third respondent.@
[5] When the application was launched the trustees of the Trust were
the three appellants and the second, third and fourth respondents.  The
position of the seventh trustee was vacant.  The appointment of the third
appellant as trustee has since been set aside (see Deedat and Another v
The Master and Others 1998(1) SA 544 (N)).  An application by the
Master for the removal of the remaining trustees is currently being heard
in the Durban and Coast Local Division.
[6] The history of the course taken by the application appears from the
judgment of the court a quo (Magid J) which is reported as Hoosen NO
and Others v Deedat and Others [1997] 3 ALL SA 32 (D) and need not

be repeated.
[7] The issue which ultimately fell to be decided was whether the third
respondent was entitled in law to delegate his duties qua trustee in terms
of the Power of Attorney.  The learned judge found for the respondents,
holding that the Power of Attorney did not constitute an invalid
delegation of the third respondent=s functions.  He further awarded costs
against the appellants de bonis propriis.  He subsequently granted leave
to appeal to this Court.  The issue referred to is the sole issue on appeal.
[8] In terms of the Power of Attorney the third respondent purported
to appoint the first respondent
Ato act on my behalf and in my name and place for the
express purposes of voting on my behalf in all meetings of
the
ISLAMIC
PROPAGATION
CENTRE
INTERNATIONAL TRUST as the said YASMIN
DEEDAT may deem fit so long as it does not militate
against the aims, objects and conditions as contained in the

Constitution of the ISLAMIC PROPAGATION CENTRE
INTERNATIONAL TRUST, that I am a founder member
of.@

[9] The Power of Attorney proceeds:

AMRS YASMIN DEEDAT is also empowered to sign all
documents on my behalf and to do all the necessary and to
give effect to any decision that may be taken by the
Trustees of the ISLAMIC PROPAGATION CENTRE
INTERNATIONAL and generally to do all such things to
give effect to the aforesaid wherever and whenever
necessary.

And generally for effecting the purposes aforesaid, to do or
cause to be done, whatsoever shall be requisite, as fully and
effectually, to all intents and purposes, as I might or could
do if personally present and acting therein; hereby ratifying,
allowing and confirming, and promising and agreeing to
ratify, allow and confirm all and whatsoever my said Agent
shall lawfully do or cause to be done by virtue of these
presents.@

[10] The provisions of the power of Attorney must be interpreted
objectively in order to determine their precise ambit and legal effect.  It

is legally irrelevant that the third respondent may not have contemplated
the first respondent exercising an independent discretion, and may have
intended no more than that she be a mere conduit for his wishes.
[11] The Power of Attorney empowers the first respondent to vote at
meetings of the Trust as she Amay deem fit@.  On a proper construction,
this entitles her to exercise an independent judgment and form her own
view in relation to matters arising at the meetings.  She is not legally
obliged to ascertain the wishes of the third respondent or to give effect to
his directions, whatever she may consider her moral obligation to be in
that regard.  Where voting at a meeting calls for the exercise of a
discretion it falls to her to exercise such discretion, thereby supplanting
the function of the third respondent in that respect.  This renders her
position akin to that of a duly elected trustee, which she is not.

[12] Moreover, any decision to which the first respondent may come, as
reflected in the way she votes, would not be subject to control or
correction by the third respondent, even though he may have to assume
responsibility for it.  This is because he has, in terms of the Power of
Attorney, ratified her actions in advance, or at least bound himself to
ratify them.  While he could revoke the Power of Attorney, he could not
undo what had already been done.
[13] The qualification in the Power of Attorney that the first respondent
may vote as she deems fit Aso long as it does not militate against the
aims, objects and conditions as contained in the Constitution of the
[Trust]@ is mere surplusage and takes the matter no further.  It places no
limitation on her voting powers as compared to those of the third
respondent.  It merely makes her subject to the same constraints that

applied to him.  It does not detract from the fact that she may, when
voting, operate as effectively and independently as any duly and properly
appointed trustee.
[14] To sum up, the Power of Attorney, properly construed, seeks to
transfer to the first respondent the third respondent=s rights and duties,
and concomitant powers, arising from attendance and voting at meetings
of the Trust.  This amounts to a delegation to the first respondent of the
third respondent=s judgment and discretion in relation to the decision
making process of the Trust.  It constitutes at least a temporary
abdication of the third respondent=s functions in favour of a non-trustee.
The question arises whether that is a legally permissible delegation.   [15]

The Trust, as the name implies, is a religious trust established to
further the aims of Islam.  Clause 2 of the Trust provides that the objects

of the Trust shall be
A2.1. to create a fund primarily to promote charitable and
religious activities of the Islamic Faith;

2.2.
To propagate the Islamic faith to Muslims and non-
Muslims primarily through the offices of the  [Trust]
. . .@

The latter object is to be achieved (in terms of clause 2.2.1 - 8) by means,
inter alia, of public lectures, the distribution of the Holy Quran and
various other ways of promoting Islam.  The use of the word Aprimarily@
in clause 2.2 indicates that the propagation of the faith of Islam may go
beyond the matters listed in clause 2.2.1 - 8.  Any such extension would
call for consideration by the trustees and the exercise of the necessary
judgment and discretion on their part.
[16] Clause 3 deals with the powers of the trustees in relation to the
general administration of the Trust.  These include

A3.4 To manage and control the Trust or other
institutions established or acquired by the
Trust and to appoint, and at their discretion
remove, or suspend managers, secretaries,
clerks, agents and servants for permanent,
temporary or special services, as they from
time to time think fit, and to invest them with
such powers (including power to sub-delegate)
as they may think expedient . . .
and

3.6
Generally to do all such other things and carry
out all such undertakings as may be expedient
to further the interest of the Trust or which
may be incidental or conducive to the
attainment of the aforesaid objects.@

[17] Clause 4 provides that

AAll the business and affairs of the Trust shall be managed
and controlled by the Trustees, who shall have full power to
carry out the objects of the Trust as hereinbefore provided .
. . .@

[18] In terms of clause 5 (as amended) the Board of Trustees shall

consist of not more than seven (previously five) Muslim members, all of
whom shall hold office for life.  The first five trustees were the co-
founders of the Trust.  The relevant portion (for present purposes) of
clause 7 reads:
AOn the death, resignation or removal from office of any of
the Trustees and as often as a vacancy shall occur, the
remaining Trustees shall as soon as conveniently possible
elect another Trustee, a two-thirds majority decision shall
be considered sufficient for such election . . .@

[19] Clause 9 provides that any major decision of the Trust has to be
ratified by at least two-thirds of the Trustees then holding office; clause
10 exempts the Trustees from the filing of any security with the Master;
clause 15 makes provision for the annual balance sheet to be signed by
the auditor Aand by such of the Trustees as shall be delegated to that end
from time to time.@

[20] Further relevant provisions are to be found in clauses 21 and 22.
They provide:
A21. The Trust shall be a body of perpetual succession
and the Trustees or their successors shall neither
have the right nor the power to terminate the Trust
. . . .

22.
Any matter [for] which no provision has been included in this
Deed of Trust shall be decided upon by the Trustees and such
decision shall be binding and effective as if it were a clause in
this Deed of Trust.@
[21] A trustee in the narrow or strict sense (the kind with which we are dealing) is
not an agent.  (As to the main points of distinction between them see Honore=s South
African Law of Trusts: 4th Ed, pp 57/8.)  He, unlike an agent, does not derive his
powers from a principal to whom he is responsible.  As he does not exercise
derivative powers the maxim delegatus delegare non potest, initially relied upon by
the appellants= counsel, cannot assist the appellants.
[22] As the authority of the trustees derives from the terms of the Trust Deed its
provisions have to be considered in order to determine whether it expressly or

impliedly authorises delegation by an individual trustee of his powers and functions.

[23] It is apparent from a consideration of the Trust Deed that no express provision
is made for the delegation by any individual trustee of any of his rights, duties or
powers.  The Trust Deed only provides for collective action by the trustees.  Control
and management of the Trust vests in the trustees jointly (clauses 3 and 4).  Where
specific provision is made for the delegation of functions (see clauses 3.4 and 15),
such delegation is made by the trustees acting in concert (or at least a majority of
them).  The Trust Deed makes no provision for the exercise of any powers or
functions by individual trustees unless authorised thereto by the body of trustees.
This is in keeping with the general principle that where the administration of a trust is
vested in co-trustees they must execute their duties in their joint capacity.
[24] It is also noteworthy that where provision is made for delegation in the Trust
Deed, such delegation relates to matters that are by and large purely administrative.
The delegation does not relate to areas where the exercise of a discretion is called for
by the trustees in carrying out their duties of management and control.  This accords

with the principle that the fundamental decisions relating to a trust need to be taken
by the trustees; the implementation of such decisions may be delegated to others,
although ultimate responsibility remains with the trustees (cf Erlank=s Trustee v Allan
[1909] TS 303 at 306).
[25] In the absence of express authorisation in the Trust Deed permitting an
individual trustee to delegate his functions in the manner sought to be done by the
third respondent in terms of the Power of Attorney, is there scope for an implied
authorisation to that effect? In my view not.
[26] The essentially collective nature of the trustees= duties and the general
prohibition against the delegation of a fundamental discretionary power would
militate against any such implied authorisation.  Nor is a power to delegate necessary
for the proper exercise of an individual trustee=s rights and duties under the Trust.  In
considering the issue one may also, by analogy, draw usefully from an established
principle in the law of agency, while not losing sight of the essential differences
between a trustee and an agent.  That principle states that where the identity and
personal attributes or skills of the performer of an act are of material importance,

delegation is not permitted (Strydom v Roodewal Management Committee and
Another 1958 (1) SA 272 (O) at 273G; Pothier=s Treatise on the Contract of
Mandate:  par 99; Kerr: The Law of Agency: 3rd Ed, p 237).
[27] The Trust was established in the interests of the Muslim community in order
to propagate and promote the Islamic faith.  The trustees would have to be people
imbued with the spirit of Islam who could be relied upon to give effect to the objects
of the Trust.  Those objects are of such a nature as to require the exercise of personal
judgment and discretion in relation to policy decisions of one kind or another.  The
wide powers accorded the trustees point to the founders of the Trust reposing faith in
their values, judgment and discretion.  The personal attributes of the trustees would
inevitably have played a significant if not conclusive role in their selection.  Those
same attributes would also be of concern to, and have an influence on, potential
donors of the Trust.
[28] The importance of the personal attributes and skills of the trustees is
underscored by the fact that the co-founders of the Trust appointed themselves joint
trustees of the Trust for life.  The self-perpetuating nature of the Trust enables the

trustees, on the death or resignation of one of their members, to appoint to the
vacancy (also for life) someone with similar values (cultural and spiritual) as their
own and someone whose judgment and abilities are respected by them.  Thus the
person of the trustee assumes importance in the overall design and functioning of the
Trust; and a person elected as trustee must have the support of at least two thirds of
the remaining trustees.  I accordingly conclude, contrary to what was held by the
judge a quo, that the trustees are people selected for their personal attributes.
Applying the principle referred to in paragraph [26] above precludes, in my view,
any suggestion of implied authorisation.
[29] I am thus of the view that the delegation by the third respondent of his powers
and duties to the first respondent in terms of the Power of Attorney was legally
impermissible as it was neither expressly nor impliedly authorised by the Trust Deed.
I do not consider it necessary to deal with the reasoning of the judge a quo in
arriving at a different conclusion.
[30] It follows that the appellants were entitled to an order in the terms sought.
Originally what was sought was a rule nisi.  It is common cause that at this stage the

appellants, if successful, would be entitled to a final order.
[31] There remains the question of costs.  In their application the appellants sought
costs against the first and second respondents (in the case of the latter, de bonis
propriis).  In dismissing their application the court a quo granted costs against the
appellants de bonis propriis.  That order will now fall away, and what is to be
decided is the appropriate order as to costs both in the court below and on appeal.
[32] Significantly, no order for costs has ever been sought against the third
respondent, yet it is his conduct in giving the first respondent a power of attorney that
has led to the present litigation.  It is perfectly understandable that the third
respondent, as a founder of the Trust - and by all accounts the guiding spirit behind
the Trust - should, despite his manifest incapacity, wish to remain a trustee and
maintain an interest in the Trust=s affairs.  The reason why no costs= order was sought
from the third respondent may well have been that the validity of the course he took
was linked to a proper interpretation of the Trust Deed.
[33] A number of disputed factual issues arose on the papers.  These have
remained unresolved.  The real issue, both in the court below and on appeal,

concerned the legal validity of the Power of Attorney.  This in turn involved the
interpretation of the Trust Deed.
[34] The appellants were entitled to challenge the Power of Attorney and have
done so successfully.  There exists no sound basis for depriving them of their costs.
The question is, who is to pay them?
[35] I see no reason why first and second respondents should have distanced
themselves from the proceedings.  Second respondent was entitled initially to answer
the factual allegations made against him.  When the only remaining issue related to
the validity of the Power of Attorney, he was entitled to be heard as trustee insofar as
an interpretation of the Trust Deed was called for.  In addition he was entitled to
oppose the costs= order sought against him personally.
[36] The first respondent, as matters turned out, could have abided the decision of
the court (although she too had a costs= order sought against her).  But she obviously
(and understandably) feels a certain loyalty towards the third respondent, and her
appearances in person on appeal and in the court below could not materially have
contributed towards the costs.

[37] In all the circumstances I am of the view that as an interpretation of the Trust
Deed was reasonably called for it would be appropriate, in the proper exercise of our
discretion, to order that the costs of the proceedings both in this court and below be
borne by the Trust.  This must not be seen as a licence to the trustees to continue
feuding.  They should be warned that the costs of any future litigation between them,
in the light of what has occurred in the past, are likely to have to be borne by them
personally, and conceivably on a punitive scale.
The following order is made:
1)
The appeal succeeds.
2)
The order of the court a quo is set aside and there is substituted in its stead
the following:
A1.
The Special Power of Attorney purportedly executed by the
Third Respondent in favour of the First Respondent on 10
March 1997 is declared to be of no legal force and effect.
2.
The First Respondent is interdicted from acting in terms of
the aforesaid Special Power of Attorney.@
3)
The costs of all parties in respect of both the application in the court a quo
and on appeal to this court are to be borne by the Islamic Propagation Centre

International.

___________________

J W SMALBERGER

JUDGE OF APPEAL

Mahomed CJ )Concur
Olivier JA

)
Streicher JA )
Melunsky AJA
)