IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No.: 21687/2010
In the matter between:

and

SMUTS FAMILY TRUST
JUDGMENT DELIVERED: FRIDAY 10 DECEMBER 2010 
SALDANHA, J
[1] This is an unopposed application for Summary Judgment. Plaintiff claims the following relief:
[1.1]   Payment of the sum of R9 409 138.45;
[1.2] Interest on the sum claimed in 1 at the rate of 8.20% per annum from 2 September 2010 to date of payment, such interest to be capitalized monthly in arrear;
[1.3] An order declaring Erf 10962 Somerset West, In the City of Cape Town, Stellenbosch Division, Province of the Western Cape, executable for the said sums;
[1.4]   Costs of suit on the scale as between attorney and client; [1.5]   Further and/or alternative relief.

trustee he has no beneficial interest therein	Unless one of the
trustees is authorized by the remaining trustee or trustees, all the trustees must be joined in suing and all must be joined when action is instituted against a trust	In legal proceedings trustees must act nomine officii

and cannot act in their private capacities."

"In legal proceedings the trustees must act nomine officii and cannot act in their private capacities. It is usual for the trustees to be cited as 'A, B and C in their capacity as the trustees of the XYZ Trust' but cases in which the trust as such is cited are not unknown and there should be no objection to a citation of 'the trustees for the time being of the XYZ Trust". 

"Just as the citation of a deceased estate, despite its not being a persona, can be amended to reflect the executor, so can the citation of a trust which is not a persona be amended to reflect the trustee. See Gross and Others v Penz 1996 (4) SA 617 (A) at 625B-H.
It follows from all of this that the Court a quo correctly found that 'the plaintiff (had) been merely incorrectly cited' and that the amendment corrected this."

"If cases cited in the name of a trust which has no legal persona are accepted, I cannot find any logical reason, nor was I provided with any as to why a case against the trustees for the time being such as the present, cannot be accepted, especially where it is not disputed that the assets of the trust vest in the trustees nor that the identities of the trustees are unknown or that there is confusion as to who they are. It would seem to me in the circumstances that the opposition is not well-founded and smacks of unnecessary formalism."

[6.] In this matter the names of each of the individual trustees are known notwithstanding the mortgagor simply being referred to as "The Trustees for the time being of the Smuts Family Trust IT4473/2005."

[7.] However in this matter the court has not had the benefit of any opposing submissions with regard to the citation of the defendant as the application was undefended.  I am of the view though that the issue about the proper citation remains arguable especially where no amendment is sought in respect of the citation.

Nonetheless the following order is made;
i)	Summary Judgment is granted as prayed for inclusive of prayers 2, 3 and 4 of the Notice of Application for Summary Judgment.