9._The_Trustee - 1 9 THE TRUSTEE 9.1 Election and appointment In terms of s40(1 the master is obliged to give notice to the creditors to attend the

9._The_Trustee - 1 9 THE TRUSTEE 9.1 Election and...

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9. THE TRUSTEE 9.1 Election and appointment In terms of s40(1) the master is obliged to give notice to the creditors to attend the first meeting of creditors for the proof of their claim against the estate and thereafter the election of a trustee. Election of the trustee is governed by s54 . According to s54(1) those creditors who have proved their claims may elect one or two trustees by voting. In terms of s54(2) the person who obtains the majority in number AND majority in value of the votes must be elected trustee. Section 54(4) defines ‘majority of the votes in number’ as the greatest number of votes; and defines ‘majority of the votes in value’ as the votes representing claims of the greatest combined value. In terms of s54(3)(a) if none of the nominated parties obtains such a majority of votes, then EITHER the person who obtains the majority of votes in number when no other person obtains the majority of votes in value; OR the person who obtains the majority of votes in value when no other person obtains a majority of votes in number, must be elected as the trustee. In terms of s54(3)(b) if one person obtains a majority of votes in number and another a majority of votes in value, BOTH must be elected trustees. In terms of s56(1) if the trustee was elected at a meeting of creditors at which the master did preside the election is not valid unless and until the master confirms it. The confirmation amounts to official appointment as trustee. In terms of s56(2) if the person elected gives to the master the required security for the proper performance of his duties as trustee, the master must confirm his election and thereby appoint him as trustee by delivering to him a certificate of appointment. In terms of s56(3) upon receiving this certificate of appointment the trustee must make a public notification of his appointment in the Government Gazette. Section 57(1) gives the master the power to decline to confirm the election of a particular trustee if he is of the opinion that the person is not suitable to be a trustee for the reasons that he is disqualified from being a trustee or that he failed to give the required security. In terms of s57(1) the master may also refuse to confirm the election if the trustee was not elected properly; or if in the opinion of the master the person elected ‘should not be appointed’. This phrase ‘should not be appointed’ covers a general variety of reasons persuading the master to not appoint him, for example, the person is too inexperienced (the insolvent’s situation may be extremely complex); the person may lack the required diligence or maturity (see Meskin v The Master and another ). Another meeting will be called and the creditors will once again elect another person.
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