Chirwa N.O and Others v Shongwe and Others (LCC184/2024) [2025] ZALCC 40 (18 September 2025)

Case Note

Chirwa N.O. and Others v Shongwe and Others
Land Court of South Africa, Randburg
Case number LCC 184/2024
Judgment delivered 18 September 2025 by Flatela J

Reportability

This judgment has been marked reportable because it clarifies the practical application of the so-called “joint-action rule” for trustees in South African trust law after the Constitutional Court’s decision in Shepstone & Wylie Attorneys v De Witt N.O. The present decision applies that new constitutional-court precedent to a land-restitution community trust, confirms that a properly drafted majority-decision clause displaces the common-law requirement of unanimity, and explains when procedural missteps in convening trustees’ meetings will nevertheless invalidate a resolution.

The case is significant for three reasons. First, it is one of the earliest Land-Court applications to test the implications of Shepstone & Wylie in the context of communal property restored under the Restitution of Land Rights Act. Secondly, it grapples with the intersection between traditional-leadership claims to land control and the fiduciary obligations that flow from a registered land-claim trust. Thirdly, it delivers guidance on urgency and interlocutory interdicts where trustees fear the alienation of trust land by beneficiaries acting outside the trust deed.

Finally, because disputes over community-property trusts recur across South Africa’s land-reform landscape, the judgment offers a precedent that will be of practical use to trustees, practitioners and lower courts alike when assessing the validity of majority resolutions, notice requirements, and the role of absent or obstructive trustees.

Cases Cited

Shepstone & Wylie Attorneys v Abraham Johannes De Witt N.O. and Others (1270/2021) [2023] ZASCA 74 (26 May 2023); affirmed on further appeal sub nom Shepstone & Wylie Attorneys v De Witt N.O. and Others (CCT 171/23) [2025] ZACC 14
Land and Agricultural Development Bank of South Africa v Parker and Others (186/2003) [2004] ZASCA 56; 2005 (2) SA 77 (SCA)
Lupacchini N.O. and Another v Minister of Safety and Security 2010 (6) SA 457 (SCA); [2011] 2 All SA 138 (SCA)
Steyn and Others N.N.O. v Blockpave (Pty) Ltd 2011 (3) SA 528 (FB)
Nieuwoudt N.O. and Another v Vrystaat Mielies (Edms) Bpk [2004] 1 All SA 396 (SCA)
Smith and Others v Stellenbosch Municipality and Others (18381/2022) [2022] ZAWCHC 134

Legislation Cited

Trust Property Control Act 57 of 1988; Restitution of Land Rights Act 22 of 1994; Constitution of the Republic of South Africa, 1996 (section 18); Financial Institution (Investment Funds) Act 38 of 1984

Rules of Court Cited

Rule 34 of the Rules of the Land Court of South Africa

HEADNOTE

Summary

The applicants, five trustees of the Dvunge Trust, obtained an urgent interim interdict restraining the first respondent, a beneficiary who styles himself chief of the Mahlabatsini community, from accessing or convening meetings on various farms restored to the community under the Restitution Act. On the return day the first respondent raised two preliminary objections: lack of urgency and want of locus standi because, he said, the trustees had failed to comply with the joint-action rule when they resolved to litigate without notice to all nine trustees.

Flatela J found that urgency had in fact existed when the interim order issued, but the meeting that authorised these proceedings was fatally irregular. The Trust Deed does replace unanimity with majority decision-making, yet it still obliges the conveners to give reasonable notice to every trustee. Because three trustees (who happen also to oppose the applicants) received no notice, the resolution was void notwithstanding the subsequent clarification of majority-decision trusts in Shepstone & Wylie (CC).

The court therefore upheld the point in limine, discharged the rule and made no order as to costs, emphasising that each side had contributed to the impasse and that the underlying merits concerning control of the land remain open for proper ventilation once a valid trustees’ resolution is obtained.

Key Issues

Whether a majority-decision clause in a trust deed eliminates the requirement that all trustees receive notice and be afforded an opportunity to participate.
Whether an urgent interim interdict can stand when the underlying resolution to litigate is procedurally flawed.
How the Constitutional Court’s correction of Shepstone & Wylie affects the operation of communal-property trusts established under the Restitution Act.

Held

The first respondent’s objection to locus standi succeeds. Despite clause 11.2 allowing decisions by simple majority, clauses 12.1 and 11.4 still demand notice to all trustees and a quorum properly constituted. The failure to notify three trustees rendered the resolution ultra vires. The interim order is therefore set aside and each party is ordered to bear its own costs.

THE FACTS

The Dvunge Trust was created in 2004 to hold seven Mpumalanga farms purchased by the state for the Shongwe and Mashinini families after their land-restitution claims succeeded. Litigation and factional disputes have dogged the trust for two decades, producing a sizeable body of precedent. Letters of authority issued in 2017 appointed nine trustees, but by 2024 only five were actively managing the property; the other four, including the first respondent’s spouse, refused to attend meetings and disputed the legitimacy of recent AGMs.

In September 2024 the first respondent wrote to the chairperson announcing that, as traditional chief, he intended to visit Vriesland 620 JT with beneficiaries “from both Eswatini and South Africa” and requested the gates be opened. The trustees refused. Nonetheless he gained entry in October, relying on an unrelated 2016 interdict and SAPS escort, and publicly advertised a second mass meeting for 2 November 2024 “to allocate stands and discuss township development”. The trustees, fearing unlawful alienation of trust property, launched an urgent ex parte application on 1 November; Flatela J granted interim relief returnable on 2 December 2024.

Delays followed because the respondent resides in Eswatini. When pleadings eventually closed he attacked the trustees’ authority, arguing that the meeting of 23 October 2024 that authorised litigation was convened only on a WhatsApp group and that the dissenting trustees never received notice as required by the deed. He relied on the SCA majority in Shepstone & Wylie and on classical joint-action jurisprudence.

THE ISSUES

The court had to decide first whether the interim interdict should be confirmed or discharged. That inquiry turned on two preliminary questions. The primary question was whether the applicants enjoyed standing to act on behalf of the trust when the impugned resolution was passed without notice to all nine trustees, contrary to clauses 11 and 12 of the deed. A secondary question concerned urgency: had the threat of an unauthorised meeting, and alleged attempts to allocate land, justified ex parte relief under Rule 34?

Because the joint-action objection, if upheld, would be dispositive, the court addressed it before turning to the merits of the interdict. This required interpreting the trust deed in the light of the fresh Constitutional-Court guidance in Shepstone & Wylie (2025) and determining whether majority decision-making could cure defective notice.

ANALYSIS

Flatela J began by setting out the statutory and common-law framework: trusts have no separate legal personality; trustees hold ownership jointly and are bound by fiduciary duties under the Trust Property Control Act. At common law trustees must act jointly unless the deed validly modifies that rule.

Clause 11.2 of the Dvunge deed indeed permits decisions by “simple majority of trustees”, and clause 11.4 fixes quorum at “a majority of trustees holding office”. However, clause 12.1 requires “reasonable notice of meetings … sent to all trustees … personally or by registered post” or by public notice. The applicants conceded that no such notice was sent to the second, third and fourth respondents; they relied exclusively on a WhatsApp group that these trustees had long ignored.

The court accepted that Shepstone & Wylie establishes that a majority-decision trust can bind itself externally without unanimity, but emphasised that even a majority clause does not authorise trustees to sidestep procedural preconditions such as notice and quorum. The majority decision must be reached at a lawfully convened meeting. Because those preconditions were not met, the resolution was void and the applicants lacked authority to litigate.

Urgency, though satisfied at inception, could not salvage an application instituted without standing; the antecedent defect in authority was fatal. As to costs, the judge noted the “paradox” that the first respondent himself had repeatedly defied the deed by holding unsanctioned meetings and brandishing a stale order, yet equity suggested each side bear its own costs.

REMEDY

The court upheld the first respondent’s point in limine, discharged the interim interdict and made no order as to costs, directing that each party pay its own. The judgment leaves the substantive quarrel over governance of the trust and control of the farms to be resolved once a properly convened board meeting authorises litigation or settlement.

LEGAL PRINCIPLES

Three core principles emerge from the judgment. First, a trust deed may validly replace unanimity with majority-decision procedures, but those procedures themselves must be scrupulously followed: notice, quorum and minute-keeping remain mandatory. Second, trustees who act without proper authority cannot invoke urgency or fiduciary duty to cure a foundational defect in standing; any act taken pursuant to an irregular resolution is ultra vires. Third, where rival claimants to land restored under the Restitution Act rely on traditional authority to bypass a registered trust, the courts will insist that the trust instrument governs access and alienation, reinforcing the fiduciary bulwark that protects communal property from factional abuse.