HARTLEY and Another v MURRAY (381 of 2025) [2025] ZWHHC 381 (30 June 2025)

8 HH 381-25 HC 7076/23 GEORGE HOLLAND HARTLEY and MARILYN STRATHON DICKINSON versus SPENCER HARRON MURRAY HIGH COURT OF ZIMBABWE **MUNANGATI-MANONGWA J** HARARE,1 OCTOBER 2024, 21 MAY 2025 & 30 JUNE 2025. **Opposed Matter** _Advocate Mafukidze with M Ruwita_ , for the applicants. _Adv Ochieng_ , for the respondent. **MUNANGATI-MANONGWA J** : A trustee’s duties and powers are fiduciary in nature, hence a trustee must always act exclusively in the best interests of the trust and its beneficiaries conscious of the trust’s objectives and the powers reposed in him in the Trust Deed. In that regard, any actions by a trustee which run contrary to the imposed obligations as aforestated, run the risk of being impugned. In this matter, the applicants take issue with decisions taken by a trustee of a Trust known as the Robin Hartley Trust. The applicant approached this court seeking the following order: 1. That the resolution signed by GIOVANNI PIETRO DIONIGI ROSSI on 26 April 2023 and SPENCER HARRON MURRAY on 27 April 2023, appointing SPENCER HARRON MURRAY as additional trustee of the Robin Hartley Trust be set aside. 2. That the resolution by GIOVANNI PIETRO DIONIGI ROSSI on 26 April 2023 and SPENCER HARRON MURRAY on 27 April 2023, authorizing SPENCER HARRON MURRAY to appear before a notary public to execute a Notarial Deed of Amendment to The Robin Hartley Trust be set aside. 3. That the Notarial Deed of Amendment to the Robin Hartley Trust done and executed by SPENCER HARRON MURRAY on 15 May 2023 appointing DALE CROUS as a beneficiary and limiting the beneficiaries to the nuclear family of DALE CROUS and their descendants be set aside in its entirety. 4. That the Respondent be interdicted from holding himself out to be a Trustee of the Robin Hartley Trust. 5. That the Respondent be interdicted from interfering with the Robin Hartley Trust. 6. That the appointment of George Holland Hartley & Andrew Lane-Mitchell as trustees of the Robin Hartley Trust be confirmed. 7. That the Respondents pay costs on a higher scale. The application is opposed by the respondent on the following basis: The respondent raised two preliminary points to the effect that the affidavit of the applicant was not properly commissioned and that there exist material disputes of facts that cannot be decided on papers. The preliminary points were dismissed _ex tempore_ with full reasons provided and the parties agreed that this judgment captures the court’s reasoning on the merits of the matter only. The respondent’s position _vis_ the relief sought is that there is no basis to set aside the resolutions in issue as he was legally appointed a trustee of the Robin Hartley Trust by Rossi in the exercise of his unfettered rights granted by the Trust Deed. He further contends that the Deed of Trust was legally amended by Rossi in the exercise of his unfettered powers as conferred on him by the provisions of the trust instrument. _Factual background_ The Robin Harley Trust was established by Charles Robert Holland Hartley, otherwise known as Robin Hartley on 19 December 1986 by way of a Notarial Deed of Donation and Trust. The object of the trust is stated as; “Providing for the maintenance and welfare of the Settlors wife and for her general benefit in accordance with the standards of living and habits with which she is familiar, for the benefit and wellbeing of the children of the Settlor and the maintenance, education upbringing and the general benefit of the Settlors grandchildren and failing them or any of them, his heirs in intestacy: failing that settlor’s wife, his children, grandchildren or remoter intestate heirs, then the settlement shall be applied for the general benefit, welfare and interests for the prevention of Cruelty to Animals in Zimbabwe.” Thus the initially specified beneficiaries in the Deed of Trust are the second applicant, the settlor’s then wife, the first applicant and his daughter Cameron, the first applicant’s sister Nicole and her son James, his other sister Chantelle (now deceased, who died on 4 October 2021) and her two children Hylton and Byrony. The second applicant divorced the settlor and remarried and hence her name appears as Marylin Strathon Dickinson. However, her husband passed on and she is thus widowed and is above 81 years old. She is residing at Dandaro Village, Borrowdale in Harare. It is not in dispute that on 20 February 1987, the settlor transferred Lot 1 of Subdivision B of Lot 193 of Lots 190, 191, 193, 194 and 195 of Highlands Estate of Welmoed, also known as 3 Richmond Close, Highlands, Harare (the property) which was registered in his name to the Trustee for the time being of the trust. The property was also the settlor’s matrimonial home with the second applicant. The said property is the Trust’s sole asset. Further it is common cause that one Dale Crous, the settlor’s son in law (who was married to the late Chantelle) has been in occupation of the house since other beneficiaries have relocated abroad leaving the second applicant as the only initial beneficiary who is in Zimbabwe and living at Dandaro Retirement Village. A series of trustees managed the trust beforehand until the appointment of one Giovanni Pietro Dioningi Rossi (hereinafter referred to as “Rossi”) as a trustee in November 2002. It is a fact that the only asset of the trust, the aforesaid immovable property, was advertised for sale in March 2023 by an estate agent called Kennan Properties with the show day stated as 3 March 2023. Upon making an enquiry, the applicants discovered that the house had been put on the market by Dale Crous. On 6 April 2023, the applicants filed an urgent chamber application against Rossi, Dale Crous the settlor’s son- in- law, Kennan Properties and the Chief Registrar of Deeds to interdict the impending sale of the house under case number HC2375/23. An interim interdict was granted on 14 April 2023 pending the application for the removal of Rossi as a Trustee which provisional order was confirmed on 27 July 2023. It is common cause that on 26 and 27 April 2023 Rossi and Spencer Harron Murray (hereinafter referred to as “Murray”) signed a resolution appointing Murray as a Trustee of the Robin Hartley Trust. Again, on the very dates the 26 and 27 April 2023, Rossi signed a resolution authorizing Murray to appear before a Notary Public to execute a Notarial Deed of Amendment to the Robin Hartley Trust. On 3 May 2023 the applicants filed an application for the removal of Rossi under Case No HC2933/23 on the grounds that his continuance in the office will be detrimental to the proper administration of the trust and welfare of the beneficiaries. On 15 May 2023 Murray executed the Notarial Deed of Amendment to the Trust Deed appointing Dale Crous as a beneficiary and limiting the beneficiaries of the Trust to Dale Crous’ nuclear family and descendants at the exclusion of the applicants. In essence the appointment of Spencer Harron Murray the respondent herein as a co-trustee by Rossi through a resolution of 26 April 2023, and, the resolution to amend the Trust Deed, and the execution of the notarial deed of amendment of the Trust Deed are cause of dispute between the parties in this matter. The applicants are challenging such developments and seek that the resolutions that facilitated such actions be set aside. _**Murray’s appointment as trustee**_ The applicant challenges the respondent’s appointment as trustee as unprocedural on the basis that the resolution appointing the respondent states that reliance was made on the provisions of clause 5.2.1 of the Trust deed which provisions the applicants contend do not give powers to Rossi to appoint a co-trustee. The resolution specifically reads as follows: “ RESOLUTION WHEREAS 1. Personal circumstances compel the trustee to be absent from Zimbabwe for an extended period commencing presently. 2. The trust has been targeted in litigation that threatens to undermine pursuit of its objectives which obliges the trustees to refrain from resigning summarily 3. The said litigation, further ventures to impugn the personal integrity of the trustee in terms that might affect his impartiality in the conduct of his role 4. It is accordingly necessary (on account of (B) and desirable(on account of (C) that an additional trustee be co-opted to ensure the smooth administration of the trust despite the absence of the the current sole trustee, and, 5. The incumbent trustee determines that clause 5.2.1 of the deed of trust executed on 2 July confirms his power to do whatever is necessary or desirable to achieve the objects of the trust and 6. Spencer Murray has confirmed that he is not disqualified and is willing to accept appointment as trustee in addition to the incumbent IT IS RESOLVED AS FOLLOWS: 1.Spencer Murray is hereby appointed an additional trustee together with Giovanni Pietro Dionagi Rossi of the Robin Hartley Trust with effect form the date of this resolution. 2\. The said Spencer Murray will be invited to signify his acceptance of the appointment by countersigning this resolution. 3……. Signature of Rossi Signature of Spencer Murray The applicants aver that none of the powers listed in clause 5.2.1 gives the trustee authority to appoint a co-trustee as stated in the resolution and contended by respondent’s legal representative Mr _O’Chieng_. The preamble to the clause reads as follows: “Powers, Rights and Duties of Trustees The trust shall be managed, administered and controlled by the Trustees who shall have full power and authority of an unmarried natural person of full legal capacity to do whatsoever he may consider necessary or desirable in order to achieve the objects of the Trust and without limitation to the generality of the aforegoing the Trustee shall have the express power – 1. To receive, accept….. 2. …………….. 3. . 4. …………….. 5. …………….. 6. ……………….. 7. ………………. 8. To appoint and to delegate to any committee or subcommittee of trustees and/or other persons any of the powers of the Trustees, and to terminate such appointment or delegation. Any such Committee or sub-committee shall have only such powers as may be expressly conferred upon it by the Trustees as recorded in the minutes of the meeting conferring them and shall be subject to all such further rules and instructions as may be imposed upon it from time to time by the trustees:” Mr _O’Chieng_ submitted that the phrase “ _to do whatsoever he may consider necessary or desirable in order to achieve the objects of the Trust_ “gave Rossi the power to appoint Murray. Equally Murray in his opposing affidavit avers that in addition to the general powers quoted above _“clause 5.2.1 of the deed specifically empowered him (Rossi) to appoint sub-committes of trustees. It thereby empowered him to appoint additional trustees, as he lawfully did when appointing me.”_ The applicants disagree with such a position. The applicants contend that the actual powers pertaining to the vacation, removal and appointment of trustees are contained in clause 5.1.3 and 5.1.4. Applicants argue that clause 5.1.3 provides that where a trustee is resigning, he gives notice to the beneficiaries in writing. Equally if he is to be away for more than a year, leave of the beneficiaries is required. They contend that Rossi had indicated that he was leaving the country and was resigning which acts called for a replacement of the trustee which could only be done in terms of provisions of clause 5.1.4 by the senior partners of Coghlan, Welsh and Guest. Mr _Mafukidze_ for the applicant thus argued that as this is not what transpired the appointment is invalid as it fell outside the provisions of the deed of trust. The applicants submit that as beneficiaries of the trust they have _locus standi_ to move for the removal of the of the trustee due to his unprocedural appointment. In response Mr _O’Chieng_ contended that Rossi had not resigned and only considered resigning hence there was no vacancy. He argued that the move by Rossi was to protect the trust from threats hence the resolution of 27 April 2023 appointing Murray was proper and legitimate. **The resolutions to amend the trust deed and the amendments thereof** It is common cause that the settlor wrote several letters of wishes, distinct is the letter of wishes dated 25 November 2002 in which he stated in the preamble that he did not wish to interfere with the trustee’s powers or impose any binding instructions or obligations on him and went on to state as follows: 1. Immovable Property “(i) 3 Richmond Close Highlands Harare which is registered in the name of the Trust is to be made available for use (as it stands) by my son- in-law DALE LESLIE CROUS, for use by himself and his family, all of whom are beneficiaries in terms of the Trust, without charge and at his sole cost and expense having received provision from the said Dale Leslie Crous for my retirement. I record that henceforth he alone shall be entitled to give you directions and issue his own letter of wishes with regards to the future use and disposal of the immovable property.” (ii)…….. On 27 April 2023, Rossi and Murray purported to pass a resolution to amend the Deed of Trust through incorporating what had been highlighted in the letter of wishes by inserting the following clause; “The trust has been since November 2022, and shall continue to be, administered for the maintenance and welfare of the nuclear family of Dale Leslie Crous, comprising the said Dale Leslie Crous, his children being Hylton Dale Crous and Bryony Nicole Probert (nee Crous) and their descendants.” It followed that Rossi and Murray went on to amend the Deed of Trust. It is the applicant’s case that Rossi purported to amend the Deed of Trust to reflect what he claims to be “ _decades-old reality as regards the beneficiaries being the nuclear family of Dale Crous_ ”. The purported notarial deed of amendment to the trust was executed on 15 May 2023 before one Mark Richard David Stonier by Spencer Harron Murray in his capacity as the trustee. As shall be elucidated below the applicants are challenging the Notarial Deed of Amendment of the Trust Deed and seek that it be set aside in its entirety. The applicants further contend that the respondent amended the Deed of Trust without the necessary requisite authority resulting in the booting out of the respondents as beneficiaries of the trust. The applicants aver that the import of the amendment is to remove the applicants, settlor’s daughter and the descendants of the first applicant and his sister and her son as beneficiaries. It is alleged that the respondent and Rossi did this through the amendment of 15 May 2023 which appointed Dale Crous as a beneficiary and limiting the beneficiaries to the nuclear family of Dale Crous and their dependants. The purported amendment changed the object of the Trust Deed to read as follows: “The trust has been since November 2002, and shall continue to be administered for the maintenance and welfare of the nuclear family of Dale Leslie Crous, his children, being Hylton Dale Crous and Bryony Nocole Probert (nee Crous) and their descendants.” The applicants thus contend that such an amendment could not be done without their consent as beneficiaries, further, since Murray was not properly appointed the resolution that enabled him to execute the amendment is null and void hence the amendment itself cannot stand. Mr _O’Chieng_ contended that since Rossi was validly appointed he had unfettered powers to amend the Trust Deed thus the participation of Murray in effecting the amendment is legal given that the agency is valid as long as the principal has the power to act in the same manner. Suffice that the court had difficulty in understanding how this argument was arising if the respondent was maintaining that he was validly appointed a trustee. In that scenario, he would not be acting as an agent of his co-trustee but as a trustee in his own right. The respondent avers in his affidavit that the applicants were potential beneficiaries but ceased to be so in that regard they are not beneficiaries of the trust.1 This was amplified by Mr _O’Chieng_ who further argued that the applicants are not beneficiaries as they had not benefited from the Trust since 2002. He argued that the applicants once lived in the house, they left, one going outside the country and have had no contact with the trustee hence they are not beneficiaries whose consent ought to have been sought for an amendment to be effected to the Deed. Further argument was presented that since this is a discretionary trust it is up to the trustee to decide who among the potential beneficiaries may become an actual beneficiary. In that regard Rossi and Murray in exercing the powers bestowed in clause 12 of the Deed effected the amendment. The close allegedly relied on reads as follows: “This deed may be amended or added to in the sole and absolute discretion of the trustee for the time being. It is recorded that the approval of the Commissioner of Taxes shall, where required in law be sought to any such variation, amendment or addition.” Mr _Mafukidze_ for the applicant insisted that the amendment was not in terms of the provisions of the Deed and the fact that the amendment introduced Crous as a beneficiary immediately after the judgment of 14 April 2023 which acknowledged the applicants as beneficiaries points to the capricious and devious conduct of Rossi and Murray. The applicants further seek a declarator as they assert that they have a direct and substantial interest in the present matter and have an existing right to benefit from the trust since the trust was created for their benefit. They state that Crous is neither a beneficiary neither was it the intention of the settlor to make him a beneficiary. The applicants maintain that a declarator is the most appropriate relief as it stands to clarify the legal position and resolve the dispute between the applicants and the respondent. The applicant alleges that the conduct by the trustees undermines the overall objectives of the trust and affects the applicant in case trust property is sold, invested or mortgaged. They also seek that Murray be interdicted from holding himself as a trustee and from interfering with the trust and its property. The applicants aver that they have a clear right to benefit from the trust and have suffered irreparable harm and continue to be at risk of suffering more harm, if the respondent is to remain a trustee. The first applicant states that since both applicants have not been benefiting from the trust property, he has been and is currently paying for the second applicant’s rentals at Dandaro. The first applicant further avers that he has been and is still financing the upkeep of the second applicant as she does not have enough funds to live on. The situation it is alleged is borne out of the second respondent’s refusal to provide for the second applicant from the trust asset. The first applicant is of the view that the second applicant as a beneficially of the property, should be able to live in the property or at least be supported by the rentals from it. The applicants therefore aver that Murray who is currently the trustee has refused to provide for the second applicant’s wellbeing hence ought to be removed. Thus, an interdict will act to mitigate their harm. Contrary to that, the respondent maintains that there is no need for an interdict as he is a lawfully appointed trustee and the applicants have no right to benefit from the trust as they are not beneficiaries from the time that the amendment was done. They had been potential beneficiaries but had lost that status. The first applicant avers that he together with one Andrew Lane Mitchel were appointed as a trustees through a resolution by the Senior Partners of Coghlan, Welsh and Guest, being Frazer Alexander Edkins and Thembile Chikosi Mazingi in terms of clauses 5.1.3 and 5.1.4 of the Deed of Trust. He thus seeks that the appointment be confirmed as same was done in accordance with the dictates of the trust deed. _Issues for determination_ 1. Whether Murray was validly appointed by Rossi? 2. Whether Rossi and Murray had the power to amend the Deed of Trust? 3. Whether Dale Crous is a beneficiary of the trust? 4. Whether the court should grant a declarator? 5. Whether the court should grant an interdict? 6. Whether or not confirmation of the appointment of applicant as trustee is proper. Whether Murray was validly appointed by Rossi? Advocate _Mafukidze_ for the applicant argued that none of the powers listed in Clause 5.2.1 of the Deed of Trust gives a trustee the power to appoint a co-trustee. He clarified what entails in terms of Clause 5.1.1 which speaks of vacation of office and clause 5.1.3 which speaks of removal of a trustee by a court or when he resigns from his office by notice in writing to the beneficiaries. He therefore submitted that given the circumstance that Rossi indicated he was leaving the county, it is the senior partners of Colgan, Welsh & Guest who had the power to appoint a replacement trustee. On the contrary, Advocate _Ochieng_ for the respondents contended that Clause 5.2.1(h) of the Deed of Trust contemplates that there can be a single trustee, therefore this gives power to appoint a co-trustee. He avers that Rossi did not resign but rather considered resigning, hence there was no vacancy which could entitle senior partners of Colgan, Welsh & Guest to appoint a replacement trustee. He further contended that applicants struggle to accept that the decision was for the trustee. He submitted that the decision is being disputed after a span of 20 years of acquaintance and no explanation for such silence has been proffered by the applicants. Suffice that the clause relied on by the respondent is general and cannot stand against clause 5.1.4 which is specific and states that a fit and proper person to assume the position of a new or replacement trustee shall be the Chief Executive of Harare Board of Executors (Private) Limited in his foresaid capacity or failing him a senior practicing partner of Coghlan, Welsh and Guest or the successor to that firm. It is common cause that the deed provides various provisions empowering appointment of a trustee when the need arises depending on the prevailing circumstances. To be specific, Clause 5.2.1 (h) of the Deed of Trust which provides for powers, rights and duties of trustees reads as follows; “To appoint and to delegate to any committee or sub-committee of Trustees and/or other persons any of the powers of the trustees, and to terminate such appointment or delegation. Any such committee or sub-committee shall have only such powers as may be expressly conferred upon it by the trustees as recorded in the minutes of the meeting conferring them and shall be subject to all such further rules and instructions as may be imposed upon it from time to time by the trustees”. The aforementioned clause of the deed is clear that a trustee can delegate his powers to any committee or sub-committee of trustees and not individuals. Even if it is to be accepted that Rossi had not resigned, he had been absent from Zimbabwe for more than a year without leave of the beneficiaries, Clause 5.1.3 of the deed applies. Given the circumstance, Clause 5.1.4 which states classes of people who qualify to assume the position of a new or replacement trustee if the need arises comes into play. The clause does not empower Rossi to appoint a co-trustee. Rossi knowing of his intention to relocate and in trying to evade due procedure, appointed Murray as a co-trustee exercising those powers outside the ambit of the provisions of the trust deed. It is imperative to state that a trustee is bound to exercise powers specifically bestowed on him by the trust instrument as the defining source of his trust powers. That being the case, the appointment of Murray as co-trustee was invalid. _Whether Rossi and Murray had the power to amend the Deed of Trust_? Having concluded that the appointment of Murray was not legally sound any resolution made by Murray would be null and void and so would be any subsequent acts arising from such resolution. In essence the purported amendment to the deed of trust would thus be a nullity. Even if it were to be assumed that the appointment was proper, the amendment of the trust deed would still not be proper. Advocate _Mafukidze_ for the applicant submitted that the resolution that facilitated the amendment of the deed is invalid as it falls outside the provisions of the deed. Further that the resolution was signed and executed by Murray who was improperly appointed. He submitted that the respondent in amending the deed relied on Clause 12 which gives trustees the power to alter the trust deed, but the alteration having been done by Murray even if it were to be taken to be proper, consent of the beneficiaries was required. Advocate _Ochieng_ for the respondent contended that the power to amend the deed was reposed in the Trustee and did not require the approval of the alleged potential beneficiaries. He contended that Rossi had “sole and absolute discretion” to amend vary or add to the trust in terms of clause 12. He further submitted that the applicants had knowledge of the intention to amend the deed but did nothing about it. He contended that the applicant having accepted that Rossi was validly appointed, he had unfettered powers to amend the deed. He submitted that the participation of Murray in the amendment process was legal as he participated in the capacity of an agent whose principal has the power to amend. He further contented that consent of the applicants was not necessary as they were potential beneficiaries in terms of Clause 3 as opposed to actual beneficiaries whose consent is required in terms of the law. The issue of who, how and in what circumstance a trustee is appointed lies in the interpretation of the provisions of the Deed of Trust and prevailing circumstances. Equally, a trustee’s right to amend a Deed of Trust is born of the provided powers to amend _and is pivoted on_ the exercise and extent of such powers. Clause 12 the trustees relied on in effecting the amendment states as follows; “ _Alteration to the Trust_ “This deed may be varied, amended or added to in the sole and absolute discretion of the Trustee for the time being. It is recorded that the approval of the Commissioner of Taxes shall, where required in law, be sought to any variation, amendment or addition.” A closer reading of the aforementioned clause shows that the trustee has the power to amend the Deed of Trust but that clause cannot be read in isolation to the objective of the trust which is clear that the trust is intended to provide for the wellbeing of the beneficiaries (see _Estate Prince_ v _Baker and Price_ , 22 SC 321). Suffice to state that the office of a trustee is a fiduciary office, decisions of the trustee should be aimed at protecting the best interests of the beneficiaries. The intention of the creation of the trust in question was clear, and the trustee cannot amend the Deed of Trust incorporating terms which will be contrary to the objective of the trust. Clause 5.2.1. which relates to powers, rights and duties of trustees clearly states that a trustee may do “ _whatever he considers necessary or desirable in order to achieve the objects of the trust_ …” Thus the aim is to protect the interests of the beneficiaries. It is a trite position of law that any variation to the Deed of Trust has to be done in consultation with the beneficiaries (see _Nicolene Hamekom_ v _Lizette Voight N.O and Others_ 2016 (1) SA 416). Once it is established that one is a beneficiary, his or her consent is crucial as far as the issue to do with amendment to the deed is concerned. This is intended to curb abuse of power by trustees and ensure that the intended objective of the trust is maintained and achieved. A similar position was taken in _Potgieter_ v _Potgieter NO_ 2012 (1) SA 637 (SCA)_._ wherein the Supreme Court of South Africa stated as follows: “……… the variation of the trust deed was invalid for lack of consent by the beneficiaries who had previously accepted the benefits bestowed upon them in terms of the trust deed. _Hence the original provisions of the trust deed, prior to the purported amendment, must prevail_. _prima_ facie, the appellants were therefore entitled to a declarator confirming that conclusion, which is what they sought.” Having amended the Deed of Trust without consulting the beneficiaries, the trustees acted contrary to their fiduciary duties. This duty includes particularly the duty of a trustee to avoid situations where their fiduciary duties are subjected to controversy and scrutiny from possible ethical standards. The beneficiaries having been clearly **stated** as being the settlors’ wife, children and grandchildren (see _Batts_ v _Batts Widow_ , 1835 2 MENZ 408), their consent to the amendment was crucial. Arguments by the respondent that applicants were potential beneficiaries and had not been benefitting do not hold water. The applicants were specifically appointed as beneficiaries in Clause 3 of the Deed of Trust. It is common cause that by virtue of the applicants having lived in the house after its donation in 1987 until they left, they had accepted the benefit and cannot be termed as potential beneficiaries as alleged by the respondent. They have acquired rights as regards the trust property. It is not clear how old the other named beneficiaries specifically grandchildren are, if being minors, ordinarily a court order is required for a valid amendment of the trust deed. The settlor’s grandchildren not being before the court, the court cannot approve a variation which may affect their rights as it is vested with a legal duty to safeguard their interests. It is therefore imperative to note that a trustee has an overarching obligation to safeguard the interest of the current and future beneficiaries. The intention of the settlor in creating the trust was clear and the trust property was to be made available for the benefit of clearly stated beneficiaries. The amendment made, allegedly incorporating a son in law and purporting to disinherit the settlor’s whole family is adverse to the trust objective. Certainly, the amendment defeats the objective of the trust. This is one case in which the testator might have be turning in his grave given that his family was being removed from benefiting from a trust he created for them in favour of a son-in law. It is imperative to note that letter of wishes do not necessarily amend the Deed of Trust. The letter of wishes was meant to guide the trustee in administration of the property even after the death of the settlor as the letter of wish is a near-ubiquitous companion of the trust instrument. It is trite that a court cannot confirm an amendment which; 1. Hampers the achievement of the objects of the founder; 2. Prejudices the interests of beneficiaries; 3. Is in conflict with public interest. Following the _Potgieter_ and _Hamekon_ cases _supra_ , the court therefore finds that the amendment is invalid for want of consent of the beneficiaries, and that the amendment hampers the achievements of the objects of the founder. This is up and above the finding already made that party who participated in effecting the amendment was not legally authorized to do so by virtue of not being properly appointed. _Whether Dale Crous is a beneficiary of the trust_? The applicants submitted that Crous was never a beneficiary of the trust and the settlor never intended him to be one. Advocate _Mafukidze_ submitted that the deed itself in Clause 3 listed beneficiaries and the amendment to the deed introduced Crous as a beneficiary even after an extant order of this court in case number HC2375/23 which confirmed the applicants as among the beneficiaries and did not recognize Crous as one. He submitted that the letter of wishes dated 26 November 2002 which identified Crous as a beneficiary does not totally oust what has been provided for in the trust deed. Advocate _Ochieng_ on the contrary contended that Crous was a beneficiary as per the letter of wishes which culminated in Crous being a stated beneficiary as per the amended Deed of Trust. For clarity part 1A of the letter of wishes dated 26 November 2002 stated that the property is to be made available for use to Crous and his family, all of whom are beneficiaries in terms of the trust. The issue revolves around interpretation of the clause in the letter of wishes. The words “……**all of whom are beneficiaries in terms of the trust**.” It stands to be clarified that Crous is not a beneficiary in terms of the trust deed. His deceased wife and his children are clearly named beneficiaries in terms of Clause 3 of the Deed of Trust and were further given right of occupation which Crous enjoyed by virtue of being the father and husband to the beneficiaries. It cannot be said that the letter of wishes intended or appointed Crous to be a beneficiary, but it highlighted the person whose directions will guide the trustee as to the use and administration of the trust property in furtherance of maintaining the objective of the trust. The letter further stated that him alone shall be entitled to give directions with regards to the future use and disposal of the property. Part C of the same letter states that after the settlor’s death, Crous and his family are to remain in occupation of the property, have the right to use and benefit thereof during their lifetime or until the trust terminates or the property is sold or disposed at the quest of Crous. The question that begs an answer is whether the last letter of wishes disqualified the initial beneficiaries in terms of the trust deed? It is a celebrated principle that a trustee is not bound by a settlor’s letter of wishes. It is also trite that a letter of wishes guides the trustee as to the administration of the trust, but does not necessarily amend the Deed of Trust, suffice to state that the letter did not provide a provision for such amendment. A closer analysis of the conditions imposed on the letter of wishes shows that there is no provision that specifically disinherited the initial beneficiaries. That the property was to be made available to Crous and his family did not give Crous exclusive right of ownership to the property. Further, that the letter stated that Crous was to give directions as to the use and disposal of the property at his quest, tend to give Crous administrative rights as opposed to exclusive ownership of the property. Factual situations, such as the one at hand, call upon the courts to adopt a robust and practical approach when interpretating the letter of wishes viz what the trust instrument provided for as regards administration and disposal of the trust asset. A key feature of a trust is that beneficial enjoyment and administrative rights are separated from ownership of the property (see _Zaranyika_ v _The Master of the High Court and 3 Others_ HH526/19). Pertinent is the fact that the settlor himself Charles Robert Holland Hartely in his supporting affidavit to the application states that he never made Dale Crous a beneficiary and never intended to make him one. He further stated that it was never his intention to make his daughter Chantelle and here two children the only beneficiaries to the trust. He clarified that in his letters of wishes which were non-binding he “pointed out that Dale Crous’ family were beneficiaries in terms of the Deed of Trust. He himself was not a beneficiary and the Trustee has no power to make him a beneficiary.”2 The amendment making Crous a beneficiary can therefore not be said to be in accordance with the objects of the trust given the settlor’s unequivocal clarification. Suffice that it is not denied that the settlor later wrote another Letter of wishes on 10 March 2023 (before the contentious amendment was made or executed)in which he made it clear that he was revoking the Letter of Wishes to Rossi dated 26 November 2002 and stated that he was no longer authorizing Dale Crous to issue instructions to the Trustees of Robin Hartley Trust which Letters Rossi refused to accept.3 Of note is the settlor’s explanation that when in his letter of wishes he had given Dale powers he was not giving him powers to make decisions for his own benefit but was putting Dale in his shoes to make such decisions and make such recommendations to the Trust for the benefit of all beneficiaries as he would make if personally present in Zimbabwe. Such intentions are not remotely exhibited in the ensuing amendment which as rightly argued by Mr _Mafukidze_ was not in terms of the Trust Deed’s dictates. The argument by Mr _O’Chieng_ that the trustees in making the amendment were not only guided by the letter of wishes but were exercising the power to “determine all questions or matters of doubt” as per clause 5.2.1.(i) by making clear who the beneficiaries are cannot be sustained given the above findings and conclusions. In that regard the court finds that Dale Crous is not a beneficiary of the Trust. _Declarator_. The applicants prayed for a declarator to the effect that there are beneficiaries to the trust whilst the respondent is of the view that they were potential beneficiaries. The requirements of a declarator are settled (see _Dongo_ v _Naik & Ors_ SC 52/20). Section 14 of the High Court Act sets out two requirements being, that the applicant must be; 1. An interested party with direct or substantial interest. 1. The interest must relate to an existing, future or contingent right (see _Johnson_ v _AFC_ 1995 (1) ZLR 65 (H). In this instance, the applicants are interested parties as the trust was created for their personal benefit given the terms of the trust instrument. When the trust property is under threat of disposal or where the beneficiaries tend not to benefit from the trust as under the current circumstance, they have the right to approach the court and seek a remedy. The second applicant has a right to benefit and is currently in dire need of the property for her accommodation or the proceeds at least in order to keep up with rentals at Dandaro. The fact that the first applicant has proven to be self-sufficient over the years does not disqualify him to have a claim to benefit in the trust property. It is evident that the requirements of a declarator have been satisfied and the court finds that the applicants are beneficiaries of the Trust and that they never ceased to be beneficiaries from the onset having accepted their beneficiary status irrespective of the fact that first applicant went outside the country. In any case the court having found that the purported amendment which sought to make Dale Crous and his nuclear family to be null and void, the respondents would automatically revert to their status as beneficiaries. _Interdict_ The applicants seek that the respondent be interdicted from interfering with the trust property and from holding himself out to be a trustee. Having earlier concluded that the respondent was improperly appointed trustee, he is by law not a trustee of the Robin Hartley Trust hence he exercises no power over the trust. In that regard he cannot hold himself out as a Trustee and cannot have anything to do with the trust, its administration and otherwise. Incidentally, once it is established that the main principles that govern the administration of trusts have not been observed, a remedy that bars the respondent from interfering with the trust is necessary. On whether to grant the relief sought, the court analyses the principles that govern the administration of trusts laid down in _Mashoko_ v _Mashoko Chikosi Family Trust and Anor_ HH12-11 which also relied on _De Villiers_ v _James_ 1996 (2) ZLR 597 at 603 as follows; 1. The trustee must give effect to the trust instrument. 2. The trustee must exercise his or her powers with care, diligence and skill which can be reasonably expected of a person who manages the affairs of another; and 3. Except as regards questions of law, the trustee is bound to exercise an independent discretion. Once it is established that the respondent is acting contrary to the main principles that govern the administration of trust in question, the court then considers whether the requirements for an interdict are satisfied. The requirements for an interdict are were articulated in _Mayor Logistics (Pvt) Ltd_ v _Zimbabwe Revenue Authority_ CCZ 7/14 wherein they were laid down as follows; 1. A clear or definite right. 2. An injury actually committed or reasonably apprehended-an infringement of the right established and resultant prejudice. 3. The absence of a similar protection by any other remedy. The alternative remedy must be 1. Be adequate in the circumstances; 2. Be ordinary and reasonable. 3. Be a legal remedy; and 4. Grant similar protection. (see also _Setlogelo_ v _Setlogelo_ 1914 AD 221 at 227) As proven earlier, the applicants have a clear right to enjoy and derive benefit from the trust property or its proceeds. It is apparent from the averments made that the applicants have suffered harm by not benefiting from the trust property or its proceeds for over two decades. Moreso, the first applicant is being financially prejudiced as he is funding for the well-being of the second applicant. If the respondent is not interdicted from managing the affairs of the trust, the applicants will continue to be at risk of not benefiting from the trust property. There is also risk of the property being disposed of not for their benefit, but in pursuance of the interest of Crous. Thus, to safeguard the trust and welfare of its beneficiaries, an interdict is the appropriate remedy (see Honores, South African Law of Trusts 4th ed at 190). _Confirmation of the nomination and appointment of a replacement trustee._ In considering trusteeship, Rossi is now deceased and hence there was natural intervention resulting in the removal of Rossi. Equally the court has found that the appointment of Murray was improper and set aside the resolution that led to his appointment. This leaves the Trust with no Trustee apart from the applicant who seeks confirmation of his appointment and that of Andrew Lane-Mitchel as Trustees of the Robin Hartley Trust. Turning to whether or not the first applicant can be confirmed as the new trustees after being nominated by the senior partners of Coghlan, Welsh and Partners, the court finds no reason why it cannot confirm such an appointment. When the need to appoint a replacement trustee arises as was in the present circumstances, the deed is clear that, the mandate is vested with the senior partners of Coghlan, Welsh and Partners in terms of Clause 5.1.3 and Clause 5.1.4 of the Deed of Trust. The first applicant having been properly appointed, his appointment and that of Andrew Lane-Mitchel is therefore confirmed. Before concluding this matter, this court finds it imperative to state that parties are warned to stick to matters before the court. Whilst reference to previous litigation and relevant background facts is permissible issues must not be clouded by previous engagements between parties. In this matter parties sought to bring certain issues which had nothing to do with Murray but Rossi, more particularly how he had allowed the trust property to be mortgaged in favour of Crous’ interests. The mortgage bonds were registered between 2016 and 2020 before respondent came into picture. This had everything to do with the application of the removal of Rossi but little to do with this application. Hence, caution must always be taken not to lump the court with unnecessary information no matter how tempting it might be to reveal all what remotelyt happened in an entire lifetime of the parties interaction or engagement. _Whether a punitive order as to costs is warranted._ The other factor at the heart of this application is that the applicants allege that the respondent and Rossi are in constructive contempt of court. The applicants aver that the respondent and Rossi’s actions were aimed at deliberately frustrating the court’s order if and when it is was made and render it less effective than would otherwise be the case. Murray had in fact filed an affidavit supporting Rossi’s opposition to the removal. The applicant has learnt that Rossi and Murray were co-directors in some trust businesses as coincidentally mentioned in _Kasoma Trust & Ors _v _Haylma Trust & Ors_ HH-188/23. Rossi and Murray were both directors of Virgin Trust Company (Private) Limited and Virginia Management. Given this background the applicants contend that Rossi and Murray colluded. They allege that this is explained by the fact Rossi’s intended to leave the country for an extended period, thus he wanted to sale the house the only asset of the Trust, he then came up with a resolution to appoint the respondent and to authorize Murray to amend the Trust Deed. It was contended that the resolutions coming after the granting of the provisional order were definitely meant to prevent appointment of a replacement trustee should Rossi be removed from the office by the court or leave the country. For this conduct the applicants argued that the court must show its displeasure by ordering costs on a higher scale. On his part the respondent denied constructive contempt of court stressing that his appointment arose out of the exigency to safeguard the interests of the trust as Rossi was to be away and the Trust was under threat from the impending litigation hence the act was not mala fide. The application having succeeded, the general principle on costs that the successful party is entitled to costs applies. It is the court’s view that the appointment of Murray as a trustee emanated from a collusion between Rossi and Murray and possibly Crous. Hastening to state that Rossi and Murray are not strangers to each other as they were both directors in Virgin Trust Company (Private) Limited and Virgin Management as confirmed by Musithu J in _Kasoma Trust &Anor _v _Haylma Trust & Ors_ HH188/23. The swiftness by which action was taken by Rossi to appoint the respondent as co-trustee on 27 April 2023 and immediately authorize Murray to appear before a Notary Public to execute a Notarial deed of Amendment to the trust shows nothing but a calculated move to not only defeat the objects of the trust by accommodating Crous at all costs but also to frustrate an impending order of court. As rightly submitted by the applicants the move resulted in the amendment to the Trust Deed making Crous and his nuclear family and their descendants the only beneficiaries at the exclusion of the initial beneficiaries. Suffice that the appointment of the respondent as a trustee was done a few days after this court had issued a provisional order on 14 April 2023 interdicting the disposal of the sole asset of the Trust pending application for the removal of Rossi as a trustee. Further this court had found that the applicants are beneficiaries in the trust. Since Murray was now a purported Trustee he participated in the purported removal of other beneficiaries and added Crous as a beneficiary to the trust when he was not one. This does not show the application of an independent judgment in decision making process nor commitment to the protection and realization of the objects of the trust being to protect the interests of the Trust and its beneficiaries. In essence there was constructive contempt of court. This is buttressed by the fact that on 3 May 2023 the applicants applied for the removal of Rossi as a Trustee and despite that, the respondent went on to appear before a notary public to effect amendments to the Trust deed on 15 May 2023. It is a fact that the respondent knew of the proceedings to remove Rossi as he averred to an affidavit supporting Rossi. The actions of Murray on 15 May 2023 cannot be viewed in any other way but that he intended to frustrate the outcome of the likely order. This is because the application for the removal of Rossi would have kicked in the provisions of clause 5.1.4 wherein senior partners of Coghlan Welsh and Guest would appoint a replacement. Such conduct on the part of the respondent calls for censure as this court jealously guards and protects the effectiveness of its proceedings and orders. Thus apart from the applicants’ success entitling them to costs, the conduct of the respondent is deplorable such that his machinations call for an order for costs on a higher scale. That being the case, costs are awarded against the respondent on a client attorney scale. **Accordingly, the following order is granted:** 1. The resolution signed by GIOVANNI PIETRO DIONIGI ROSSI on 26 April 2023 and SPENCER HARRON MURRAY on 27 April 2023, appointing SPENCER HARRON MURRAY as additional trustee of the Robin Hartley Trust be and is hereby set aside. 2. The resolution by GIOVANNI PIETRO DIONIGI ROSSI on 26 April 2023 and SPENCER HARRON MURRAY on 27 April 2023, authorizing SPENCER HARRON MURRAY to appear before a notary public to execute a Notarial Deed of Amendment to The Robin Hartley Trust be and is hereby set aside. 3. The Notarial Deed of Amendment to the Robin Hartley Trust done and executed by SPENCER HARRON MURRAY on 15 May 2023 appointing DALE CROUS as a beneficiary and limiting the beneficiaries to the nuclear family of DALE CROUS and their descendants is set aside in its entirety. 4. Incidentally the applicants and all beneficiaries stated in clause 3 of the Trust deed remain beneficiaries of The Robin Hartley Trust. 5. The Respondent be and is hereby interdicted from holding himself out to be a Trustee of the Robin Hartley Trust. 6. The Respondent is interdicted from interfering with the Robin Hartley Trust. 7. The appointment of George Holland Hartley & Andrew Lane-Mitchell as trustees of the Robin Hartley Trust be and is hereby confirmed. 8. The Respondent to pay applicants’ costs on a legal practitioner- client scale. **Munangati Manongwa J** **:…………………………** _Coghlan Welsh and Guest_ , applicant’s legal practitioners. _Kevin J Arnott Legal Practitioners_ , respondent’s legal practitioners. 1 Para 17 p128 of opposing affidavit. 2 P109 consolidated record para 15 of supporting affidavit 3 See p115 annex G