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[2011] ZAGPPHC 53
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Thabantsho Beneficiaries, Association v Rammupudu II NO and Others (54652/09) [2011] ZAGPPHC 53 (1 April 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
No: 54652/09
DATE:01/04/2011
In
the matter between:
THABANTSHO
BENEFICIARIES,
ASSOCIATION
..............................................................................................................
Applicant
and
HARRY
BOLEU RAMMUPUDU II N.O
…..........................................................
1st
Respondent
MPHOKE
PATRICK MAGANE
N.O
..................................................................
2nd Respondent
EDWARD
MATSEPE N.O
….............................................................................
3rd
Respondent
KENNETH
MORARE
N.O
..................................................................................
4th
Respondent
MPHOKE
P.K MAGANE
ATTORNEYS
..............................................................
5th Respondent
MASTER
OF THE HIGH COURT
…...................................................................
6th respondent
JUDGMENT
MNGQIBISA-THUSI,
J
[1]
The applicant is seeking the following relief:
1.1
The respondents be ordered to submit to the Master of the North
Gauteng High Court all books, records, account or documents
relating
to the administration of Bakgaga-Ba-kopa Motheo Trust within ten days
of service of the order upon them;
1.2
The respondents be interdicted from continuing to utilise the trust
monies of the Trust until the order in 1 above is complied
with and
the said books, records and accounts have been audited by a legally
recognised auditor;
1.3
The respondents to pay the costs of this application in their
personal capacities jointly and severally, the one paying the
other
to be absolved, alternatively, in their nominal capacities, jointly
and severally the one paying the other to be absolved.
[2]
At the beginning of the hearing the applicant abandoned the relief
sought against the fifth respondent. I granted an order dismissing
the claim against the fifth respondent with costs.
[3]
In order to put the issues in dispute in perspective, it is necessary
to give a brief background giving rise to the dispute
between the
parties, albeit a bit confusing in the light of the voluminous papers
filed.
[4]
In 2004 the farm formerly known as Rietkloof Farm JS166 in the
Groblersdal area, Limpopo province, now known as Thabantsho,
was
awarded to the community staying at Tafelkop in terms of the
provisions of the Land Restitution Act. The community was disposed
of
its land by the previous government sometime around 1962. In order to
effect restitution, a Memorandum of Understanding (MOU)
was entered
into between the Bakgaga Ba-Kopa Traditional Authority (Traditional
Authority), acting on behalf of the Tafelkop community
and the
Department of Land Affairs and other related state departments. The
MOU provided, inert alia, that the identified land
would be
transferred to an entity still to be created, on behalf and for the
benefit of the beneficiaries (i.e the Bakgaga Ba-Kopa
community). In
the interim the control of the land vested on the chief, the first
respondent, and the Traditional Authority. Registration
of the land
on behalf of the beneficiaries has not been effected.
[5]
It appears that on 4 September 2007 the first respondent, acting as a
representative of the Traditional Authority, had concluded
a lease
agreement with Blue Ridge Platinum (Proprietary) Ltd (the lessee) in
terms of which a certain portion of the land was leased
to the lessee
to enable it to conduct certain mining operations. In terms of the
lease agreement the lessee undertook to pay monthly
rentals of
approximately R 116 000. It further appears that after the conclusion
of the lease agreement the rental was paid into
an ABSA account of
the Traditional Authority.
[6]
Furthermore, from around 2006 it appears that there had been a number
of complaints made by members of the community, including
the members
of the applicant to various government officials and departments
about the manner in which the Traditional Authority
was conducting
and managing the affairs of the community. It appears that matters
came to a head when the lease agreement with
Blue Ridge was signed.
Various allegations have been made in this regard by both parties
against each other. However, these allegations
are not pertinent to
the issue to be determined and will not be dealt with. Pertinent to
this dispute is the fact that a section
of the community started
asking questions, in particular, about the funds the Traditional
Authority received from the lease with
Blue Ridge. As a result of the
discontent amongst the members of the community, the applicant was
established and became the vehicle
through which demands were made to
the first respondent and the Traditional Authority to account to the
beneficiaries as to the
community's finances, particularly the rental
received from BLue Ridge.
[7]
In the meantime, the first respondent had on 30 April 2008 founded a
trust known as Bakgaga Ba-Kopa Motheo trust of which the
first to
fourth respondents were appointed as trustees. According to the trust
deed, the object and purpose of the trust is "to
hold (and in
trust in its name on behalf of Bakgaga Ba-Kopa and/or beneficiaries
of the Title Deed in respect of all land known
as Thabantsho."
[8]
The members of the applicant , as alleged by the deponent to the
founding affidavit, on discovering about the existence of the
trust
and that the trust was now vested with the control of the land to
which they, amongst others, were beneficiaries, started
engaging the
trustees, demanding that the trust account for the monies accrued and
accruing to the trust on behalf of the beneficiaries,
from the time
that the lease with Blue Ridge was entered. Eventually the applicant
had lodged a complaint with the Master of this
court about the manner
in which the funds meant for the benefit of the beneficiaries was
allegedly handled and the apparent lack
of accountability to the
beneficiaries by the trustees.
[9]
The above culminated in the Master sending two letters to the legal
representative
of the trustees, dated 30 March 2009 and 24 June 2009.
The
letter dated 30 March 2009 reads in part as follows:
"Kindly
be advised that we have received complaint from Thabantso
beneficiaries association regarding the manner in which the
above
trust has been and still continues to be administered by yourselves.
Kindly
deliver to the Master of the High Court:Pretoria with copies of all
books, records, accounts, or documents relating to the
administration
or disposal of the trust properties within (30) thirty days from date
of receipt of this notice.
This
request is made in terms of Section 16(1) of the trust property
control act 57 of 1988.
We
trust that you will find the above in order and we await for your
urgent response."
[10]
Section 16 (1) of the Act provides that:
"A
trustee shall, at the written request of the Master, account to the
Master to his satisfaction and in accordance with the
Master's
requirements for his administration and disposal of trust property
and shall, at the written request of the Master, deliver
to the
Master any book, record, account or document relating to his
administration or disposal of the trust property and shall
to the
best of his ability answer honestly and truthfully any question put
to him by the Master in connection with the administration
and
disposal of the trust property."
[11]
When a response was not forthcoming from the respondents, the Master
sent the second letter dated 24 June 2009 in which reference
was made
to the first letter dated 30 March 2009. In this letter the Master
requested a response with 14 days from the date of
this letter.
[12]
It appears that subsequently there was communication between the
trustees' legal representative and the Master in terms of
which a
meeting was arranged between the respondents and the representatives
of the applicant, to be facilitated by the Master
on 4 August 2009 in
order to resolve the issues between them. For one reason or the other
this meeting did not materialise.
[13]
On 29 August 2009 the applicant launched these proceedings.
[14]
On 7 May 2010 whilst this matter was pending, the Master had again
sent a letter to the two of the trustees threatening to
remove them
as trustees if they did not respond to his letters dated 30 March and
24 June 2009.
[15]
It was submitted on behalf of the applicant that the respondents as
trustees and in control of funds legally belonging to the
beneficiaries, have refused to account to the beneficiaries through
the Master as to what the position was with regard to the monies
held
by the trust on behalf of the beneficiaries and what the monies were
used for. Further that despite the request made by the
Master in
terms of section 16(1) of the Trust Control Property Act 57 of 1988
(the Act), the respondents have refused to comply
with the Master's
directive to submit the books and accounts of the trust in order to
determine if the trustees were conducting
the affairs of the trust
for the benefit of the beneficiaries. The applicant contends that as
its members are part of the community
and therefore also
beneficiaries, they had an interest in being informed about the
affairs of the trust.
[16]
It was contended on behalf of the applicant that, an interim
interdict, restraining the trustees from dealing with the funds
of
the trust as the trustees had failed to account to the trust
beneficiaries about all the funds received on behalf of the
beneficiaries
since 2007. Further that that the trustees would not
suffer any prejudice by producing the books and accounts of the
trusts in
that the balance of convenience favoured the applicant.
There was potential financial prejudice for the members of the
applicant
and other beneficiaries, taking into account that monies
have been collected on behalf of the beneficiaries for which no
account
has been made.
[17]
It was submitted on behalf of the respondents that the respondents
had never refused to account to the beneficiaries about
the affairs
of the trust. Further that nothing prevented any member of the
applicant, as interested parties from inspecting the
books of the
trust at the trust's registered offices. However, from this
submission it was not clear where the trust's offices
are as counsel
for the respondent in argument had indicated that the trust used a
postal address. Further, the trust deed does
not indicate any address
at which an inspection of the trust documents can be made.
[18]
It was contended on behalf of the respondents that the applicant was
not entitled to the relief it is seeking since it was
a precondition
that the Master must have exercised his powers in terms of section 16
of the Trust Property Control Act first before
the applicant could
institute these proceedings. It is the respondents' contention that
the Master has withdrawn his letters dated
30 March and 24 June 2009.
Secondly it was contended that the relief sought by the applicant was
premature as they had not exercised
their rights in terms of the
trust deed by inspecting the books at the offices of the trust. It
was further contended on behalf
of the respondents that the applicant
was not entitled to copies of the books and accounts of the trust but
only to inspect such
as these were confidential.
[19]
However, Mr Bezuidenhout from the Master's office made it clear that
the Master has not withdrawn the letters date 30 March
and 24 June
2009. Further that the non withdrawal of the two letters was apparent
from the letter dated 7 May 2010, which is currently
suspended
pending finalisation of these proceedings, in which reference to the
two earlier letters is made.
[20]
In view of the Master's view with regard to the letters of the 30
March 2009 and 24 June 2009, the contention made on behalf
of the
respondents that the applicant's application is premature has no
basis. According to the Master the two letters are still
operative.
The respondents have not complied with them. Therefore the applicant,
representing persons who have an interest in the
affairs of the trust
as being part of the beneficiaries have a right in terms of section
19 of the Trust property Act to bring
this application. Section 19 of
the Trust property act reads as follows:
"If
any trustee fails to comply with a request by the Master in terms of
section 16 or to perform any duty imposed upon him
by the trust
instrument or by law, the Master or any person having an interest in
the trust property may apply to the court for
an order directing the
trustee to comply with such request or to perform such duty."
[21]
There is no reason therefore why the first prayer sought by the
applicant should not be granted.
[22]
With regard to the interim interdict, I am of the view that in the
light of the fact that monies have been collected by the
trust on
behalf of the beneficiaries of the trust and in view of the fact that
despite the request made by the Master in 2009 the
respondents have
not complied, there is sufficient evidence that the beneficiaries,
including the members of the applicant might
suffer potential
financial prejudice if the respondents continue dealing with the
funds of the trust without accounting. As correctly
pointed out by
counsel for the applicant the respondents will not suffer any
prejudice if the second prayer is granted. After ail,
the funds held
in trust are held for the benefit of the beneficiaries, including the
trustees as members of the community. Once
the books have been
audited and all the suspicions are dispelled, they can continue
operating the trust account.
[23]
In the premises the following order is made:
1.
The first to fourth respondents are ordered to submit to the Master
of this court all books, records, accounts or documents relating
to
the administration of Bakagag-Ba-Kopa Motheo Trust with registration
number IT1967/08 within 30 days of service of this order
upon them;
2.
The first to fourth respondents are interdicted from continuing to
utilise the trust monies of the Trust until the order in 1
above is
complied with and the said books, records and accounts have been
audited by a legally recognised auditor;
3.
The applicant to pay the costs incurred by the fifth respondent in
this application;
4.
The first to fourth respondents to pay the costs of this application
in their personal capacities jointly and severally, the
one paying
the other to be absolved.
NP
MNGQIBISA
Judge
of the North Gauteng High Court