Magolego NO and Others v Magolego and Others (Leave to Appeal) (11014/2022) [2025] ZALMPPHC 156 (21 August 2025)

Case Note

Mabutlanye Nemia Magolego N.O. and Others v Magolego Kgola Klaas and Others
CASE NO 11014/2022 (High Court of South Africa, Limpopo Division, Polokwane)
Judgment delivered 21 August 2025

Reportability

Although the presiding judge marked the judgment “Not Reportable”, the decision is significant because it clarifies the proper approach to applications for leave to appeal under section 17(1) of the Superior Courts Act 10 of 2013, especially where trustees rely on technical procedural points to avoid their fiduciary duty to account. The judgment also emphasises the personal liability of trustees who litigate without proper authority, reinforcing protections for beneficiaries against the depletion of trust assets. Consequently, practitioners, fiduciaries and courts alike will find the case instructive on the limits of technical objections and the circumstances in which punitive personal-costs orders are justified.

Cases Cited

MEC for Health, Eastern Cape v Mkhitha (1221/15) [2016] ZASCA 176 (25 November 2016)

Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A)

Legislation Cited

Superior Courts Act 10 of 2013

Rules of Court Cited

Uniform Rule 7(1)

Uniform Rule 30

HEADNOTE

Summary

The applicants, six of nine trustees of the Ditamaga Trust, sought leave to appeal against a judgment delivered on 26 July 2024 which had dismissed their Uniform Rule 30 application to set aside Rule 7(1) notices that challenged their authority to act on behalf of the trust. Acting Judge N Gaisa refused leave under section 17(1) of the Superior Courts Act, holding that there was no reasonable prospect of success nor any other compelling reason for an appeal. The court stressed that the trustees’ procedural objections were a stratagem to avoid accounting to beneficiaries and confirmed a personal costs order to protect the trust estate.

Key Issues

Whether the Rule 7(1) notices were irregular or time-barred.

Whether leave to appeal should be granted given the section 17(1) threshold of “reasonable prospects of success” or “some other compelling reason”.

Whether the punitive personal costs order against the applicant-trustees was justified in circumstances where their authority to litigate was disputed.

Held

The court held that the Rule 7(1) notices were valid, that the brief delay in filing was properly condoned without prejudice, and that no other court would likely reach a different conclusion. The court further found no compelling reason to entertain an appeal and confirmed that the personal costs order—expressly excluding recourse to trust assets—was an appropriate exercise of judicial discretion. Leave to appeal was therefore dismissed with costs on a party-and-party basis, payable personally by the trustees.

THE FACTS

The Ditamaga Trust consists of nine trustees, six of whom launched Rule 30 applications to strike out Rule 7(1) notices served by the respondents. Those notices questioned whether the six trustees had been properly authorised, in terms of the trust deed, to defend litigation and to bring collateral applications for security for costs.

On 26 July 2024 the court dismissed the Rule 30 applications, finding that the Rule 7(1) notices were both procedurally sound and substantively justified. The applicants then filed the present application for leave to appeal, contending that the earlier ruling had failed to pronounce on the alleged irregularity, had condoned late filing without proper basis, and had wrongly imposed personal costs.

Throughout, the trustees avoided providing documentary proof of authorisation, choosing instead to rely on technicalities. The respondents argued that such conduct prejudiced the beneficiaries, that continued delays undermined accountability, and that further proceedings would merely exhaust time and resources.

THE ISSUES

The principal legal question was whether leave to appeal should be granted under section 17(1) of the Superior Courts Act, which demands a reasonable prospect that another court would reach a different conclusion, or the existence of some compelling reason to hear the appeal.

Subsidiary to that enquiry was whether the Rule 7(1) notices were indeed irregular or hopelessly out of time, whether condonation had been appropriately granted, and whether the court had erred in making trustees personally liable for costs.

The matter also raised the broader issue of trustees’ fiduciary obligations: could trustees invoke technical procedural objections to shield themselves from accounting to beneficiaries, and should the trust estate bear the financial burden of their unauthorised litigation?

ANALYSIS

The court began by reciting the statutory test in section 17(1)(a) of the Superior Courts Act, stressing that a mere arguable case is insufficient; there must be a sound, rational basis to believe an appeal will succeed. Citing MEC for Health, Eastern Cape v Mkhitha, the court reaffirmed that speculation or optimism does not meet the threshold.

Turning to the first ground of appeal, the judge pointed to paragraphs [8] and [9] of the substantive judgment where the validity of the Rule 7(1) notices had been fully canvassed. The applicants’ assertion that the court failed to decide on the irregularity was therefore factually incorrect, and no different outcome could be expected on appeal.

Regarding lateness, the court re-examined its discretionary decision to condone a four-day delay, noting that the applicants demonstrated neither prejudice nor any legal error in the balancing of interests. The judge concluded that appellate interference with such discretion was unlikely.

On costs, the court emphasised that trustees have heightened fiduciary duties; when they act without clear authority, they risk personal liability. Given the trustees’ silence when invited to address the allocation of costs, coupled with their persistent refusal to furnish proof of authorisation, the personal costs order was both principled and proportionate. To allow trust funds to be dissipated for unauthorised litigation would undermine the very purpose of trust law and defeat the beneficiaries’ rights.

Finally, the court underscored policy considerations. Relying on Trans-African Insurance Co Ltd v Maluleka, it held that technical objections should not obstruct the expeditious resolution of disputes, especially where beneficiaries’ interests are at stake. The trustees’ behaviour revealed a pattern of delay that the court was not prepared to condone.

REMEDY

The application for leave to appeal was dismissed in its entirety. The applicants were ordered, jointly and severally in their personal capacities, to pay the costs of the application on the ordinary party-and-party scale. The order expressly barred them from utilising trust assets for that purpose, thereby safeguarding the beneficiaries against financial prejudice.

LEGAL PRINCIPLES

First, an applicant for leave to appeal under section 17(1) must demonstrate a realistic, not merely arguable, prospect of success or show some compelling systemic reason for appellate intervention. This threshold is intentionally rigorous to filter out meritless appeals.

Second, trustees cannot shelter behind formal citation as trustees when their underlying authority is challenged. They carry the onus to establish compliance with the trust deed and, failing that, expose themselves to personal liability for costs.

Third, courts will not permit technical procedural objections—absent demonstrable prejudice—to trump the substantive administration of justice. Where trustees deploy such tactics to avoid accountability, personal costs orders and the refusal of leave to appeal may follow, thereby vindicating beneficiaries’ interests and preserving trust assets.