Constitutional Court Confirms: Majority of Trustees Can Bind a Trust

On 1 August 2025, the Constitutional Court delivered a landmark judgment that decisively clarified how decisions may be taken in the administration of a trust. The ruling addressed a legal uncertainty that had lingered since a controversial Supreme Court of Appeal (SCA) judgment in Shepstone and Wylie Attorneys v Abraham Johannes de Witt N.O. and Others 2023 (6) SA 419 (SCA), handed down in May 2023.

Background: The SCA’s Restrictive Approach

The SCA had previously taken the view that trustees must act jointly in all dealings involving trust property. It went further to state that, even where a trust deed expressly allows for decisions by majority, any resolution still had to be signed by all trustees to be valid. This meant that if one trustee did not participate in a decision, regardless of whether they were given proper notice, the resolution would not bind the trust. Applying this reasoning, the SCA found a suretyship agreement in favour of Shepstone & Wylie Attorneys to be invalid because only two of the three trustees attended the meeting at which it was approved, despite the absent trustee having been invited to participate.

The Constitutional Court’s Clarification

The Constitutional Court overturned the SCA’s ruling in strong terms, distinguishing between two categories of trusts:

Unanimous-decision trusts, where the trust deed requires all trustees to agree.
Majority-decision trusts, where the trust deed expressly allows the decision of a majority of trustees to be binding, provided the notice and quorum rules in the deed are observed.

The Court confirmed that in a majority-decision trust, resolutions passed in accordance with the trust deed’s procedures are valid even if one trustee chooses not to participate in the meeting. The absent trustee’s non-participation does not invalidate the resolution, so long as they were given proper notice.

Outcome in the Present Case

In the matter before it, the Constitutional Court held that the trust deed in question permitted decisions by majority. Because the suretyship agreement had been approved by two of the three trustees in a properly convened meeting, it was valid and binding on the trust.

This judgment not only restores certainty to the law on trustee decision-making but also offers reassurance to businesses, financial institutions, and legal practitioners dealing with trusts that operate under majority-vote provisions.