Hartmann and Others v Hacker NO and Others (1543/2024) [2026] ZASCA 46 (8 April 2026)
A single missed deadline cost a South African family trust the benefit of a fifty-year discretion. In Hartmann and Others v Hacker NO and Others (1543/2024) [2026] ZASCA 46, the Supreme Court of Appeal confirmed what many trustees overlook: a discretion granted in a trust deed can be extinguished — not by exercising it wrongly, but by failing to exercise it at all within the time and manner the deed prescribes. This short, unreportable judgment will nonetheless be cited often.
Key Takeaways for Trustees and Beneficiaries
- A time-limited discretion in a trust deed is jurisdictional — once the window closes, the power is gone.
- Only the authorised trustee may exercise a discretion involving conflicted co-trustees. Collective action by disqualified parties is irregular and invalid.
- Contingent and discretionary beneficiaries have standing to challenge trust administration under South African law.
- Ratification fifteen months after the fact does not cure a failure to act in time.
- Trustees who litigate without proper authority risk personal costs liability (de bonis propriis), not payment from trust funds.
Background: The Hartmann Family Trust and the Six-Month Window
The Hartmann Family Trust was established in 1983 by Faith and Johan Hartmann. Clause 12.1 of the deed provided that trust capital would become distributable six months after the death of the survivor of the founders — defined in brackets as “the distribution event.” A proviso permitted the trustees, in their absolute discretion and for good and sufficient reason, to determine an earlier date or — “(before the expiry of the said period of 6 months)” — a later date of up to 50 years.
Faith died on 22 July 2021. The six-month window closed on 22 January 2022.
Who Could Decide? The Conflict-of-Interest Problem
Clause 6.1 disqualified any trustee who was also a beneficiary — and any trustee’s spouse — from participating in decisions to pay income or capital to that trustee-beneficiary. Two of the three trustees, Inge and her husband Timothy, were accordingly disqualified. Only the third trustee, Wendy, could take the decision. This was common cause.
When the grandchildren enquired in September 2022 about distribution, Inge replied that “the trustees” had decided there were good and sufficient reasons to set a later date. The beneficiaries disputed that any valid decision had been taken.
Can Contingent Beneficiaries Sue? Standing Under South African Trust Law
The Free State High Court dismissed the beneficiaries’ application on the basis that they lacked locus standi. The SCA found this contrary to established authority.
In Potgieter v Potgieter NO [2011] ZASCA 181; 2012 (1) SA 637 (SCA), the Court confirmed that on acceptance of a benefit, a beneficiary acquires rights under the trust and may institute proceedings relating to its administration. Contingency is irrelevant: acceptance creates a right where none existed before. The Court was emphatic — “the question whether the right thus created is enforceable, conditional or contingent should make no difference” — the only question is whether the right is worthy of protection.
Supporting Authorities on Beneficiary Standing
- Gross v Pentz 1996 (4) SA 617 (A): A contingent beneficiary may bring a representative action where the trustee’s conduct is impeached under the Beningfield
- Griessel NO v De Kock [2019] ZASCA 95; 2019 (5) SA 396 (SCA): Trustees owe fiduciary duties to all beneficiaries, regardless of vesting.
- Doyle v Board of Executors 1999 (2) SA 805 (C): Trustees owe the utmost good faith to all beneficiaries — “whether actual or potential” — including the right to account.
The trustees’ argument that the grandchildren’s income entitlement was subject to absolute discretion was dismissed as irrelevant to standing: it is their rights as beneficiaries that secure locus standi.
A Discretion Subject to a Deadline Is a Deadline
The trustees argued that the bracketed definition in clause 12.1 imposed no requirement that both the decision to postpone and the new date be settled before the six months expired. The SCA disagreed.
Baartman JA applied the purposive approach from Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA), as refined in Capitec Bank Holdings Ltd v Coral Lagoon Investments 194 (Pty) Ltd [2021] ZASCA 99; 2022 (1) SA 100 (SCA): “the principles of interpretation require that the words of the text, even those in brackets, must be given meaning.”
Practical rule for trustees: Where a deed says a power may be exercised “before the expiry of” a period, treat that period as jurisdictional. Diarise the deadline from the triggering event — not from the date professional advice is finally received.
The Record Contradicted Itself: Who Decided, and When?
The procedural record compounded the trustees’ difficulties:
- A 31 October 2022 resolution purported to ratify a decision “taken on 23 July 2021” by the trustees collectively — contradicting the affidavit’s claim that Wendy alone had decided.
- In June 2023, Inge stated that the trustees had resolved on a distribution date of 29 February 2024.
If Inge and Timothy were in fact involved in setting the date, “that would have been irregular, as neither was authorised to take that decision.”
This echoes the formality jurisprudence in Land and Agricultural Development Bank of SA v Parker [2004] ZASCA 56; 2005 (2) SA 77 (SCA): where trustees are also beneficiaries, the absence of a functional separation between ownership and enjoyment “invites abuses” — the Court called for an independent outsider trustee in family trusts where all trustees are related beneficiaries.
What About Majority-Decision Trusts? — Shepstone and Wylie Distinguished
In Shepstone and Wylie Attorneys v De Witt NO [2025] ZACC 14; 2026 (1) SA 349 (CC), the Constitutional Court drew a governing distinction between unanimous-decision trusts and majority-decision trusts: where the deed contains a freestanding majority clause, trustees must act jointly but need not act unanimously; absent such a clause (as in Parker), they must act both jointly and unanimously.
However, Hartmann was not a majority-clause problem. It was a problem of the wrong people deciding, too late, with no record. The Constitutional Court’s relaxation offers the Hartmann trustees no assistance.
Costs: Mistaken Is Not Mala Fide — But the Beneficiaries Still Paid
The appellants sought costs de bonis propriis (personal liability) against the trustees. The SCA declined.
The classic test from Vermaak’s Executor v Vermaak’s Heirs 1909 TS 679 requires that a fiduciary’s conduct in litigation be “mala fide, negligent or unreasonable” before personal liability attaches. The trustees’ commercial reasoning — concern about a beneficiary’s precarious financial position and a company in final liquidation — was not obviously unsound, and their procedural failure did not cross into bad faith.
When Do Trustees Face Personal Cost Orders?
- Snyman v De Kooker NNO [2024] ZASCA 119: Costs de bonis propriis were ordered where trustees “grossly disregarded their fiduciary responsibilities to account” — no wilfulness required.
- Blockpave litigation: Trustees who launched proceedings without proper authority were ordered to pay from their own pockets.
Hartmann represents the lenient end of the spectrum. The practical sting, however, remains: the beneficiaries’ own inheritance funded both sides of the litigation.
The Real Failure: Process, Not Commercial Judgment
The trustees’ underlying commercial concerns were not unreasonable. Their answering affidavit recorded genuine complexities: a beneficiary’s financial position arising from 2017 agreements with New Dawn Investments (Pty) Ltd, and a capital base including a company in final liquidation, requiring further professional advice on the most efficient distribution method. They expressly invoked the trustees’ duty under section 9(1) of the Trust Property Control Act 57 of 1988.
That duty — to act with the care, diligence and skill reasonably expected of a person managing the affairs of another — is an objective and elevated standard: the bonus et diligens paterfamilias, as confirmed in Gowar v Gowar [2016] ZASCA 101 (citing Sackville West v Nourse 1925 AD 516 and Administrators, Estate Richards v Nichol 1999 (1) SA 551 (SCA)).
The irony is sharp. Section 9(1) was invoked as justification for delay. Properly understood, it is precisely what required the trustees to convene the authorised decision-maker, take the composite decision, and minute it — inside the six months.
Three Lessons Every Trustee and Adviser Should Carry Forward
- Know who may decide.Where a trust deed disqualifies conflicted trustees from a specific decision, identify the authorised decision-maker at the outset — before the triggering event, not after.
- Know by when.Time-limited discretions are jurisdictional. The deadline runs from the triggering event. Diarise it immediately. Do not allow it to drift while awaiting professional advice.
- Write it down at the time.A decision that cannot be evidenced is a decision that cannot be proved. Minute the authorised trustee’s decision, record the reasons, and do so before the window closes.
Conclusion: An Ordinary Catastrophe
Hartmann v Hacker does not break new doctrinal ground. Standing, joint action, purposive interpretation, and the limits of ratification were all settled law before it. What the judgment does is show how ordinary a catastrophic outcome can look from the inside: a family discussion the day after a funeral, a decision everyone assumed had been taken, correspondence written in the collective voice of “the trustees,” and a ratification resolution fifteen months later. Each step was unremarkable. Together, they cost the trust a discretion worth up to fifty years — and cost the beneficiaries the price of two courts.
The discipline this case demands is unglamorous and cheap: know who may decide, know by when, and write it down at the time.
If you are a trustee, trust adviser, or beneficiary with questions about trust administration, trustee duties, or the interpretation of your trust deed, contact a trust law expert at SchoemanLaw for a free discovery call.
