About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2021
>>
[2021] ZASCA 29
|
|
Malatji v Ledwaba NO and Others (1136/19) [2021] ZASCA 29 (30 March 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1136/19
In
the matter between:
THETELE
JOSEPH MALATJI APPELLANT
and
MAPONYA
LAZARUS LEDWABA NO FIRST
RESPONDENT
GISELA
STOLS NO
SECOND
RESPONDENT
THE
MASTER OF THE HIGH COURT
GAUTENG
DIVISION PRETORIA
THIRD
RESPONDENT
THE
MINISTER FOR RURAL
DEVELOPMENT
AND LAND REFORM FOURTH
RESPONDENT
PROVINCIAL
SHARED SERVICES CENTRE
OF
THE DEPARTMENT OF RURAL
DEVELOPMENT
AND LAND REFORM
LIMPOPO
PROVINCE
FIFTH
RESPONDENT
THE
REGIONAL LAND CLAIMS
COMMISSIONER
LIMPOPO PROVINCE SIXTH
RESPONDENT
REFILWE
IRENE LETSOALO
SEVENTH
RESPONDENT
MOTLOKWA
SUZAN MOJAPELO EIGHTH
RESPONDENT
ZILI
MASETLA
NINTH
RESPONDENT
PHUTIANE
CURRY LETSOALO
TENTH
RESPONDENT
MANKUROANE
MODIBA
ELEVENTH
RESPONDENT
ALI
MAAKE
TWELFTH
RESPONDENT
VERONICA
SEBOLAWA MOTSWI THIRTEENTH
RESPONDENT
FRANS
MOKOENA KUBJANA
FOURTEENTH RESPONDENT
JIMMY
KUBJANA FIFTEENTH
RESPONDENT
DAVID
MEHLAPE-MALATJI SIXTEENTH
RESPONDENT
MAITE
MOSERI SEVENTEENTH
RESPONDENT
MARY
NTOAMPE
EIGHTEENTH RESPONDENT
JANE
MAHASHA NINETEENTH
RESPONDENT
MOKOPA
WILLIAM MONYAMA TWENTIETH
RESPONDENT
Neutral
citation:
Malatji v Ledwaba NO and Others
(Case no
1136/2019)
[2021] ZASCA 29
(30 March 2021)
Coram:
SALDULKER, MBHA and MBATHA JJA and GORVEN and EKSTEEN AJJA
Heard
:
18 February 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties' representatives via email, publication
on the Supreme Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 09h45 on 30 March
2021.
Summary:
Election of trustees by beneficiaries of community trust –
interpretation of court order and trust deed – beneficiaries
‘present at such meeting’ mean physically present –
beneficiaries having no common law right to vote by proxy
in election
– proper interpretation of the trust deed does not include
proxies – waiver and estoppel must be pleaded
– evidence
held to be insufficient to establish either waiver or estoppel.
ORDER
On
appeal from:
Limpopo Division of the High Court, Polokwane
(Semenya J, sitting as court of first instance):
1
The appeal is upheld with costs, including the costs of two counsel,
where so employed.
2
The order of the court a quo dated 8 August 2019 is set aside and
replaced
with the following:
‘
2.1
The voting process and the general meeting of the Mamphoku Makgoba
Community Trust (trust registration no IT8699/2004)
(the trust) held
on 12 January 2019 are declared unlawful and irregular and are
set aside.
2.2
The trustees elected at the general meeting on 12 January 2019 are
interdicted and restrained from
acting as trustees of the trust.
2.3
The letters of authority issued by the third respondent to the
elected
trustees are reviewed
and set aside in terms of s 23 of the Trust Property
Control Act 57 of 1988 and the third respondent
is directed to issue
letters of authority to the first and second
respondents.
2.4
The first and second respondents (the independent trustees) are
directed to
continue to act as the only trustees of the trust and to:
(i)
Convene and hold a general meeting of the trust within 60
calendar days of
the date of this order for purposes of nominating
and appointing a new board of trustees who are
eligible to
stand forelection in terms of the trust deed; and
(ii)
Give notice of the meeting at least 14 days before the meeting
in accordance with clause 15.5
of the trust deed.
2.5
The independent trustees are directed to apply the following voting
procedure at the general meeting
referred to in para 2.4 above:
(i)
Only the 603 beneficiaries/claimants whose names appear on the list
of 603 beneficiaries, or
who have succeeded such
beneficiaries in accordance with the provisions of clause 16.1 of the
trust deed (the qualifying
beneficiaries) are entitled to attend and
vote at the general meeting.
(ii)
No person shall be allowed to vote by proxy.
(iii)
Nominations for the new trustees must be received in writing at least
5 (five) days prior to the meeting
referred to in para 2.4 above
by the independent trustees, which nominations must be in writing and
signed by the proposer,
the seconder and the nominated trustee.
(iv)
Both the proposer and the seconder must be qualifying beneficiaries.
(v)
Six hundred and three ballot papers must be prepared, numbered
consecutively, one copy of which shall
be handed to each
qualifying beneficiary present at the meeting who is entitled to cast
a vote as provided in clauses 2.9
and 15.1.3 of the trust deed.
(vi)
Each qualifying beneficiary present at the meeting shall be entitled
to cast one vote in respect of each
vacancy which is to be filled.
(vii) Any
person casting more votes than the number of vacancies to be filled
will be deemed to have cast a spoilt vote.
2.6
The first and second respondents are to publish the results of the
election within 48 hours of it being
held.’
JUDGMENT
Eksteen
AJA (Saldulker, Mbha and Mbatha JJA and Gorven AJA
concurring)
[1]
On 4 December 2018 this Court ordered the first and second
respondents (the independent trustees) to
convene and hold a general
meeting of the Mamphoku Makgoba Community Trust (the trust) for the
purpose of nominating and appointing
a new board of trustees for the
trust (the 2018 order). A meeting was convened and held pursuant to
the order and a new board of
trustees was appointed. However, Mr
Thetele Joseph Malatji, who was both a beneficiary and a trustee,
contended that the constitution
of the meeting and the elective
process followed were irregular and in breach of the trust deed and
the 2018 order. He applied
to the High Court, Polokwane (the high
court), to set aside the election. The application was opposed
[1]
and the opposing respondents raised a number of points
in
limine
.
When the application was heard the judge
a
quo
ordered
that four points raised
in
limine
be argued and adjudicated separately from, and before, the merits of
the application. She dismissed the points
in
limine
and there is no appeal against that finding. However, she proceeded
further to dismiss the application on its merits, without affording
the parties an opportunity to address her on the issue. The appeal to
this court against the dismissal of the application is with
leave of
the high court.
[2]
In this Court counsel were agreed that no purpose could be served by
referring the matter back to the
high court to adjudicate the merits
as the high court had already dismissed the application. I agree. The
entire record is before
us and this Court is in as good a position to
deal with the matter as the high court.
[3]
The material facts leading to the 2018 order and to the present
dispute are as follows. Shortly after
the advent of the millennium
members of the Makgoba community had lodged a number of land claims
with the Land Claims Commissioner
in terms of the
Restitution of Land
Rights Act 22 of 1994
, in which they laid claim to 39 farms in the
Magoebaskloof area in the Limpopo Province. The trust was established
in order to
take transfer of the farms in due course, to hold them
and to develop them for and on behalf of the beneficiaries of the
trust.
[2]
[4]
The trust deed set out the identities of the initial trustees and
beneficiaries. It provided for trustees
to hold office for three
years, after which they were required to resign.
[3]
On 27 June 2010 an election was held and a board of trustees (the
previous trustees), which included Mr Malatji, was appointed.
Thereafter, disputes arose between the previous trustees and certain
members of the Makgoba community who made allegations of
maladministration of the trust property and dereliction of duty
against the previous trustees. Amidst this disunity the previous
trustees declined to vacate their office at the expiry of the
three-year period and an application to the high court followed.
On
24 November 2015, Mabuse J granted a declaratory order (the
declarator) that their term of office had expired by effluxion of
time after the lapse of three years from 27 June 2010.
[5]
Notwithstanding the declarator, the previous trustees failed to step
down. They contended that the termination
of their office could not
take effect until a new board of trustees was elected at a general
meeting, which, they argued, had been
hampered by disruption on the
part of a group of individuals referred to as ‘the steering
committee’. The Master of
the High Court, Pretoria (the
Master), intervened, and, in terms of s 20(2)
(e)
of the Trust
Property Control Act 57 of 1988, removed all of the previous trustees
from office and appointed the independent trustees
as trustees. This
decision by the Master prompted an application by the previous
trustees to the high court, which was ultimately
resolved by the 2018
order. The previous trustees raised two issues. First, they
challenged their removal from office. Secondly,
they tendered to hold
a general meeting with the purpose of the appointment of a new board
of trustees, but they sought a directive
in respect of who would be
entitled to attend and vote at the meeting. In respect of the first
issue this court confirmed the declarator
and set aside any
subsequent letters of authority issued by the Master. The independent
trustees were accordingly the only remaining
trustees in the trust.
[6]
In respect of the second issue, the 2018 order stipulated:
‘
3.
The first and second respondents are to convene and hold a general
meeting of the Trust
within sixty calendar days of the date of this
order for purposes of nominating and appointing a new board of
trustees, which will
not include the first, second and third
applicants (the appellants), who are ineligible to stand for
election.
4.
Only those beneficiaries who appear on the list of 603 beneficiaries
are entitled
to attend and vote at the general meeting referred to in
paragraph 3 above.
5.
All the parties will use their best endeavours to advertise the
general meeting
referred to in paragraph 3 above to ensure that all
603 beneficiaries receive notice of the general meeting.
6.
The nomination and appointment of a new Board of Trustees at the
general meeting
referred in paragraph 3 above will take place in
accordance with the relevant provisions of the Trust Deeds.
7.
The newly appointed Board of Trustees shall within 60 calendar days
of the date
of their appointment, after the election and receipt of
letters of authority, convene a general meeting to appoint further
beneficiaries,
who are not part of the list of 603 beneficiaries, as
contemplated in clause 5.2 of the Trust Deed,
[4]
which general meeting shall be conducted with the oversight of the
Master and the Department of Rural Development and Land Reform.’
[7]
Ordinarily one might have believed that an order of such clarity
would have resolved the dispute, but,
alas, it was not to be. As
adumbrated earlier the independent trustees did convene a general
meeting and a new board of trustees
was appointed. Mr Malatji, as
well as the seventh to twentieth respondents, were appointed as the
new board of trustees (the trustees).
However, as I have said,
Mr Malatji contended that the election was irregular, hence the
application to the high court. He
argued that the process was flawed
in the following respects: (i) the independent trustees made
provision in the notice convening
the meeting for voting by way of
‘proxy’ where the particular beneficiary was deceased in
circumstances where no provision
therefor was made in the trust deed
or in the 2018 order (the first issue); (ii) the independent trustees
allowed absent beneficiaries
to vote by way of proxy in circumstances
where no provision therefor was made in the trust deed or in the 2018
order (the second
issue); (iii) the proxies that were allowed by the
independent trustees were not supported by a document or by an
affidavit signed
by the beneficiary/claimant who was entitled to vote
(the third issue); and (iv) the election was not free, fair or
democratic.
This he contended was so because each beneficiary was
allowed to cast only one vote in toto, instead of being permitted one
vote
in respect of each vacant post (the fourth issue).
[8]
The events leading up to the general meeting and the election are not
seriously in dispute. On 21 December
2018 the independent trustees
issued an invitation, which was widely publicised, to beneficiaries
to attend the meeting. The invitation
recorded:
‘
INVITATION
TO THE GENERAL MEETING OF THE MAMPHOKU MAKGOBA COMMUNITY TRUST
(IT8699/2004)
You
are hereby invited as one of the beneficiaries who were enlisted on
the verification list containing 603 households to attend
the General
Meeting for the election (nomination and appointment) of a new board
of trustees, in accordance with the court order,
read with the Trust
Deed, which will take place on
DATE:
12 JANUARY 2019
VENUE:
MAGOEBASKLOOF HOTEL
TIME:
10H00
Where
a beneficiary is deceased, the family should pass a resolution
nominating a successor to represent them as a beneficiary of
the
Trust and they should have this signed resolution together with a
copy of the death certificate to be allowed into the elections.
The
resolution form is available at the independent trustees Mrs Gisela
Stols and Mr Ledwaba Mpoyana Lazarus.
Yours
Sincerely
.
. .’
[9]
In response to the invitation 344 persons attended the meeting. The
names of approximately 100 of the
attendees did not appear on the
list of 603 beneficiaries, but they claimed to be entitled to
represent listed beneficiaries who
had passed away prior to the
meeting, as recorded in the invitation, or listed beneficiaries who
were unable to attend the meeting.
[10]
At the meeting it was evident that the attendees represented three
competing factions being the previous trustees,
the steering
committee and the royal council.
[5]
The steering committee and the previous trustees had had a history of
animosity set out earlier and the independent trustees accordingly
interacted with the various factions in an endeavour to agree to a
procedure to be followed at the meeting. The engagement was
protracted with the result that the eventual voting process continued
into the early hours of the following day. However, prior
to the
commencement of the voting process the parties had agreed: (i) that
15 trustees would be appointed; (ii) that each faction
would be
entitled to nominate 15 candidates;
[6]
(iii) that voting would be by secret ballot; (iv) that where a
beneficiary whose name appeared on the list had died prior to the
meeting a ‘proxy’ nominated by the family of the deceased
would be entitled to exercise their voting rights; and (v)
that each
attendee would cast only one vote in respect of one candidate
nominated.
[11]
The independent trustees then resolved to permit proxy votes to be
cast on behalf of absent beneficiaries provided
that the alleged
proxy was in possession of their identity document and the identity
document of the absent beneficiary. The alleged
proxy voter was
further required to attest to an affidavit before a commissioner of
oaths who was present at the meeting, to confirm
that he was
authorised to vote on behalf of the absent beneficiary.
[12]
In this Court, Mr McNally, on behalf of the respondents, argued that
on a proper interpretation of the trust deed
the beneficiaries who
appear on the list of 603 beneficiaries referred to in the 2018 order
are not the sole repositories of benefits
under the trust –
rather they are representatives of a family or household. Thus, where
a beneficiary had passed away, an
individual, properly authorised,
was entitled to continue to represent the household. Similarly,
properly interpreted, so the argument
proceeded, it provides for
voting by proxy and accordingly the voting process had been in terms
of the trust deed. The trust deed,
he contended, was silent on the
nomination of candidates and the number of votes which each
beneficiary was entitled to cast, thus
leaving the decision in the
discretion of the trustees. Finally, he argued that, in any event, Mr
Malatji, and those respondents
supporting the application, were
precluded from relying on the trust deed as they had, through their
agreement, waived their right
to challenge the procedure followed,
alternatively, they were estopped from doing so. I shall revert to
these issues.
[13]
The primary issue for determination is whether the general meeting
was convened in compliance with the 2018 order
and the trust deed.
This requires the interpretation of the 2018 order and the trust
deed. The approach to the interpretation of
documents is now well
established. It does not stop at the perceived literal meaning of the
words used by the contracting parties,
but considers them in the
light of all relevant and admissible context, including the
circumstances in which the document came
into being.
[7]
The court in
Eke
[8]
stated that court orders are interpreted in the same manner. At para
29 the Constitutional Court held:
‘
Once
a settlement agreement has been made an order of court, it is an
order like any other. It will be interpreted like all
court orders.
Here is the well-established test on the interpretation of court
orders:
“
The
starting point is to determine the manifest purpose of the order. In
interpreting a judgment or order, the court's intention
is to be
ascertained primarily from the language of the judgment or order in
accordance with the usual well-known rules relating
to the
interpretation of documents. As in the case of a document, the
judgment or order and the court's reasons for giving
it must be read
as a whole in order to ascertain its intention.”’
[14]
The first issue relates to the invitation to and attendance by family
nominated representatives. In their opposing papers the
independent
trustees provided no explanation at all for the inclusion of these
persons in the invitation.
[15]
The context in which the 2018 order came to be made is set out
earlier. There was a dispute between the parties
in respect of the
persons who would be entitled to attend the meeting and to vote.
Paragraph 4 of the order was designed to define
who would be entitled
to do so. The question which remains is whether, in terms of the
trust deed, relatives of a listed beneficiary
were entitled to send a
family representative to the meeting.
[16]
As I have explained, the trust deed set out the names of the initial
beneficiaries. Additional beneficiaries were
added in terms of clause
5.2 thereafter. Ultimately, with the assistance of the Department of
Rural Development and Land Reform
a list of beneficiaries was
compiled. A summary of the list, which served before this Court in
2018, reflected:
‘
4.1
Total number of claimants
= 603
4.2
Total number of beneficiaries
= 1087
4.3
Total number of female headed households =
360
4.4
Total number of male headed households
=
243
4.5
Total number of households
= 603’
[17]
Clause 16 of the trust deed, upon which the respondents relied for
the contention that the trust deed envisaged
a succession of
benefits, required a register to be kept of the interest of each
beneficiary. Clause 16.1.2 provided:
‘
Each
Beneficiary shall nominate one further beneficiary, who shall be a
family member, to succeed in his stead should the nominating
Beneficiary cease to be a Beneficiary. A list of such nominated
Beneficiaries shall be recorded in a registry kept at the office
of
the Trust. A non-family member may only be nominated if the
Beneficiary has no member.’
A
person ceases to be a beneficiary, inter alia, upon his death.
[9]
[18]
The trust deed was before this Court when the 2018 order was made.
The context of the dispute which served before
this Court and the
provisions of clause 16 of the trust deed lead ineluctably to
the conclusion that the reference to the
‘beneficiaries who
appear on the list of 603 beneficiaries’ in the 2018 order is
to the 603 claimants recorded in the
list of beneficiaries, ie, the
360 women and 243 men whose names appeared on the list. In the event
of their death their name on
the list might have been substituted in
accordance with the provisions of clause 16. However, the trust deed
makes no provision,
directly or by inference, for the nomination of a
successor to a beneficiary other than by way of clause 16.1.
[19]
I turn to the issue of proxies. The 2018 order directed that the
nomination and appointment of the new board of
trustees was to take
place ‘in accordance with the relevant provisions of the Trust
Deed’. It is accordingly primarily
the interpretation of the
trust deed which had to be considered. I shall refer to the material
provisions of the trust deed where
necessary below. The trust deed
enjoined the trustees to hold a general meeting for the purpose of
the election of trustees ‘by
beneficiaries present and entitled
to vote in terms of this Trust Deed’. The entitlement to vote
is circumscribed in clause
2.9 of the trust deed which provides:
‘“
Beneficiaries”
for purpose of . . . a General Meeting at which it is required that a
vote be taken for any reason whatsoever,
shall mean Beneficiaries
present at such meeting and not younger that 21 (TWENTY ONE) years of
age as being a Beneficiary qualified
to vote.’
[20]
Mr McNally argued that ‘present at such meeting’ should
be interpreted to include ‘present by
proxy’. As
adumbrated earlier the argument was that the beneficiary named in the
register is not the sole repository of benefits
under the trust.
Where the beneficiary had passed on, so the argument went, there was
no warrant to disqualify that household or
family from having its
voice heard.
[21]
Thus, the respondents submitted, the approach taken by the
independent trustees to allow voting by proxy through
mandated
representatives is entirely consistent with the scheme of the trust
deed. The argument cannot be sustained. The scheme
of the trust deed
in respect of succession of rights is set out earlier. It provides no
support for the respondents’ argument.
Moreover, a proxy is
simply a form of mandate.
[10]
It requires a mandate to be extended by the principal to their agent
to exercise the vote to which the principal was entitled at
the
meeting. Self-evidently a deceased beneficiary is unable to extend a
mandate and the procedure adopted by the independent trustees
in
respect of the deceased beneficiaries is unrelated to proxies. It is
also contrary to the provisions of clause 16 of the trust
deed. For
these reasons the first issue must be resolved in favour of Mr
Malatji.
[22]
I turn to the interpretation contended for, which was not raised on
the papers, to the extent that it was applied
to absent
beneficiaries. In England it has been held that members of a
corporation have no right by common law to vote by proxy.
[11]
In this country, too, where a person is required by statute to
perform an act involving the exercise of his discretion in a matter
in which another has an interest he may not, by common law, delegate
his power.
[12]
Thus, a citizen
is not entitled to vote by proxy in a public election. No reason in
logic commends itself to hold otherwise where
a trust deed entitles
beneficiaries under the trust to vote for the appointment of
trustees. Voting by proxy could therefore only
have been permitted if
the trust deed provided for it. It did not do so expressly and
Mr McNally was unable to refer to any
other provisions in the
trust deed which might be indicative of an intention to permit voting
by proxy. The ordinary language and
syntax of the provisions of the
trust deed indicate a contrary intention. Clauses 15.1.3 and 2.9
require of a beneficiary to be
both present at the meeting and of
sufficient age in order to qualify to vote. ‘Present at the
meeting’, means physically
present.
[23]
It was not alleged that voting by proxy has ever previously been
permitted and no notice was given in the invitation
to attend that
absent beneficiaries would be entitled to delegate their voting
rights to a proxy. The 259 beneficiaries who did
not attend and had
not been notified of the intention to permit voting by proxy were
unrepresented at the meeting where agreement
was reached.
Accordingly, the acceptance of proxy votes by persons who were not
entitled to attend in terms of the 2018 order would
operate to the
prejudice of absent beneficiaries who had not been advised of the
intention.
[24]
For these reasons, I find that on a proper construction of the 2018
order, read in the context of the trust deed,
the presence of persons
not listed as beneficiaries in the register was irregular and the
acceptance of votes by ‘proxy’
on behalf of absent
beneficiaries was in breach of the trust deed. The second issue must
accordingly also be resolved in favour
of Mr Malatji. By virtue of
the conclusion to which I have come on this issue it is not necessary
to consider the third issue.
[25]
I turn to consider the method of voting adopted by the meeting. As I
have said 333 votes, of which approximately
100 were by proxies, were
cast. By virtue of the ruling that each attendee was entitled to cast
only one vote, there were no trustees
appointed with the support of
the majority of the attendees. In some instances trustees were
appointed who had secured less than
ten votes. The independent
trustees contended that the trust deed was silent in respect of the
manner of election and that they
were therefore entitled in their
discretion to adopt the methodology which they applied.
[26]
Such an assertion is incorrect. Clause 15.5 of the trust deed
provides for notice to be given of a general meeting.
It requires the
notice to state that a decision of a simple majority of beneficiaries
at the meeting shall be considered the decision
of the beneficiaries.
The invitation distributed by the independent trustees omitted this
requirement of the trust deed, but Mr
McNally was constrained to
acknowledge that the provision finds application to the appointment
of trustees. What the trust deed
envisaged is that all beneficiaries
present at the meeting
[13]
would be entitled to cast one vote in respect of each appointment
which was to be made. Only if a candidate secured a majority
of the
votes could they be appointed. It follows that none of the trustees
was validly appointed and the fourth issue must also
be decided in Mr
Malatji’s favour.
[27]
To summarise, the inevitable conclusion is that, as a result of the
invitation, the meeting was not properly constituted
or conducted as
envisaged in the 2018 order and in the trust deed and that the votes
by ‘proxy’ on behalf of deceased
and absent beneficiaries
was in conflict with the provisions of the trust deed. The
methodology adopted for the election was also
in breach of the trust
deed and the election must therefore be set aside.
[28]
As I have recorded, Mr McNally argued that, in any event, Mr Malatji,
by his agreement to the process followed,
waived any rights which may
have accrued to him in terms of the trust deed or the 2018 order to
object to the methodology adopted,
alternatively, that he was
estopped from doing so.
[29]
Waiver constitutes a special defence and must be pleaded. It is only
under exceptional circumstances that a court
would consider the
defence in the absence of proper pleadings.
[14]
Neither the independent trustees nor the twelfth to twentieth
respondents raised the question of waiver on the papers. However,
Mr McNally submitted that the underlying facts to establish a
waiver were fully canvased on the papers and that we should
accordingly hold that Mr Malatji was precluded from relying on
the 2018 order and the trust deed by virtue of his agreement
to the
procedure. The first difficulty with the argument, as I have found
earlier, is that negotiations proceeded with persons
who were not
entitled to be at the meeting. It was simply not the meeting
envisaged in the 2018 order. The second difficulty arises
from the
admission by the independent trustees that there was no agreement in
respect of the acceptance of proxy votes on behalf
of absentee
beneficiaries (as opposed to deceased beneficiaries) and that they
decided on the admission thereof. The high water
mark of the
respondents’ case in this regard was that when the voting
eventually started, Mr Malatji did not object to the
acceptance of
proxy votes. His silence, so it was argued, was plainly inconsistent
with the intention to enforce the right to rely
on the provisions of
the trust deed in respect of the entitlements to vote. Thus, we were
urged to hold that the waiver has been
established. This argument,
too, cannot be sustained for the reasons which follow.
[30]
The waiver of a right has the effect of extinguishing that right and
the corresponding obligation. It is a question
of fact and it is
difficult to establish
[15]
as
there is a factual presumption that a party is not lightly deemed to
have waived his rights. For this reason clear evidence
of the waiver
is required.
[16]
For a
successful reliance on waiver the evidence must establish that when
the alleged waiver occurred the party waiving their right
had full
knowledge of the existence of the right which they decided to
abandon.
[17]
In this case the
evidence shows that Mr Malatji approached an attorney, one Louis
Erasmus, in the week following the appointment
of the new board of
trustees. It was Erasmus who set out the grounds of objection in a
letter to the new board of trustees. There
is no averment in the
papers that Mr Malatji knew at the time that the voting occurred that
the trust deed did not permit the acceptance
of proxy votes. On the
contrary, Mr McNally argued that all the beneficiaries understood
that it clearly did.
[31]
I conclude therefore that the issue of waiver was not properly raised
on the papers and the evidence did not establish
the defence.
[32]
Estoppel, like waiver, is a special defence which must be raised in
the pleadings.
[18]
The
respondents relied, for the estoppel, on the silence of Mr Malatji
when the voting took place, which, it was contended, conveyed
to the
independent trustees that he had consented to the voting procedure.
The essence of an estoppel is that a person is precluded
(or
estopped) from denying the truth of a representation made by him to
another if the latter, believing in the truth of the representation,
acted thereon to his detriment. A causal connection must therefore be
established between the representation and the act.
[19]
These matters were not canvased in the papers and there was no
allegation that the independent trustees took the decision to permit
proxy votes in consequence of a representation made by Malatji, nor
that they would have acted differently had he protested. In
the
result estoppel, too, has not been established.
[33]
That brings me to the form of the order sought. The appellant sought
to enforce the 2018 order, which the independent
trustees have failed
to comply with. In view of their previous failure he sought a more
elaborate order to ensure compliance with
the 2018 order and the
trust deed. Such an order is justified.
[34]
In the result:
1
The appeal is upheld with costs, including the costs of two counsel,
where so employed.
2
The order of the court a quo dated 8 August 2019 is set aside and
replaced
with the following:
‘
2.1
The voting process and the general meeting of the Mamphoku Makgoba
Community Trust (trust registration no IT8699/2004)
(the trust) held
on 12 January 2019 are declared unlawful and irregular and are
set aside.
2.2
The trustees elected at the general meeting on 12 January 2019 are
interdicted
and restrained from acting as trustees of the trust.
2.3
The letters of authority issued by the third respondent to the
elected
trustees are reviewed
and set aside in terms of s 23 of the Trust Property
Control Act 57 of 1988 and the third respondent
is directed to issue
letters of authority to the first and second
respondents.
2.4
The first and second respondents (the independent trustees) are
directed to
continue to act as the only trustees of the trust and to:
(i)
Convene and hold a general meeting of the trust within 60
calendar days of
the date of this order for purposes of nominating
and appointing a new board of trustees who are
eligible to
stand for
election in terms of the trust deed; and
(ii)
Give notice of the meeting at least 14 days before the meeting
in accordance with clause 15.5
of the trust deed.
2.5
The independent trustees are directed to apply the following voting
procedure at the general meeting
referred to in para 2.4 above:
(i)
Only the 603 beneficiaries/claimants whose names appear on the list
of 603 beneficiaries, or
who have succeeded such
beneficiaries in accordance with the provisions of clause 16.1 of the
trust deed
(the qualifying beneficiaries) are entitled to
attend and vote at the general
meeting.
(ii)
No person shall be allowed to vote by proxy.
(iii)
Nominations for the new trustees must be received in writing at least
5 (five) days prior to the meeting
referred to in para 2.4 above
by the independent trustees, which nominations must be in writing and
signed by the proposer,
the seconder and the nominated trustee.
(iv)
Both the proposer and the seconder must be qualifying beneficiaries.
(v)
Six hundred and three ballot papers must be prepared, numbered
consecutively, one copy of which shall
be handed to each
qualifying beneficiary present at the meeting who is entitled to cast
a vote as provided in clauses 2.9
and 15.1.3 of the trust deed.
(vi)
Each qualifying beneficiary present at the meeting shall be entitled
to cast one vote in respect of each
vacancy which is to be filled.
(vii) Any
person casting more votes than the number of vacancies to be filled
will be deemed to have cast a spoilt vote.
2.6
The first and second respondents are to publish the results of the
election within 48 hours of it being
held.’
_________________________
J
W EKSTEEN
ACTING
JUDGE OF APPEAL
Appearances
For
appellant:
A G South SC
Instructed
by:
Thomas & Swanepoel
Inc, Polokwane
Symington & De Kok,
Bloemfontein
For
twelfth to twentieth
respondents:
J P V McNally SC
Instructed
by:
Mapulana Maponya
Inc, Polokwane
Rampai Attorneys,
Bloemfontein
[1]
The third, fourth, fifth and sixth respondents did not enter an
appearance. The eighth, ninth, tenth and eleventh respondents
supported the application of Mr Malatji. The first, second and
twelfth to twentieth respondents opposed the application.
[2]
The trust was formed in 2004. A number of land claims were
subsequently successful and the first properties were transferred
to
the trust in approximately 2008.
[3]
Clause 6.4 of the Trust Deed provides: ‘Subject to paragraph
6.9 below, a trustee shall hold office for a period of no
longer
than 3 (THREE) years upon which he shall resign.’ In terms of
clause 6.5 ‘a trustee shall be eligible for
re-election for 2
(TWO) consecutive periods of 3 (THREE) years, whereafter he must
stand down for a period of at least 3 (THREE)
years, after which he
shall be eligible for re-election’.
[4]
Clause 5.1 of the trust deed provides that the initial beneficiaries
shall be those persons listed in Annexure C to the trust
deed.
Clause 5.2 provides: ‘Further beneficiaries shall be appointed
by the incumbent beneficiaries in a general meeting
called for that
purpose ….’ At the time of the 2018 order there were
603 beneficiaries.
[5]
The
royal council appeared to have played a minor role and their
participation is not material to the appeal.
[6]
The
royal council declined to nominate any candidates with the result
that 30 candidates were available for election.
[7]
See
Natal
Joint Pension Fund v Endumeni Municipality
[
2012
]
ZASCA 13;
2012 (4) SA 593
(SCA) para 18;
Bothma-Batho
Transport
(Edms)
Bpk v S Bothma & Seun Transport (Edms) Bpk
[2013]
ZASCA 176
;
2014 (2) SA 494
(SCA) para 12;
Novartis
SA (Pty) Ltd v Maphil Trading (Pty) Ltd
[2015] ZASCA 111
;
2016 (1) SA 518
(SCA);
[2015]
4 All SA 417
(SCA) para 28.
[8]
Eke v
Parsons
[2015] ZACC 30; 2016 (3) SA 37 (CC); 2015 (11) BCLR 1319 (CC).
[9]
Clause
16.1.3.
[10]
The
term derives from the Latin ‘
procurator
’
which means ‘mandate’.
[11]
See
Harben
v Phillips
(1883) 23 Ch 14
(CA) at 35; Halsbury’s
Laws
of England
para 701.
[12]
See
Shidiack
v Union Government
1912 AD 642
;
Strydom
v Roodewal Management Committee and Another
1958 (1) SA 272 (O).
[13]
Clause
2.9 and 15.1.3.
[14]
See
Montesse
Township and Investment Corporation (Pty) Ltd and Another v Gouws NO
and Another
1965 (4) SA 373
(A);
Dale
v Fun Furs (Pty) Ltd
1968 (3) SA 246 (O).
[15]
Laws
v Rutherfurd
1924 AD 261.
[16]
Hepner
v Roodepoort-Maraisburg Town Council
1962
(4) SA 772
(A);
Borstlap
v Spangenberg en Andere
1974 (3) SA 695 (A).
[17]
Netlon
Ltd and Another v Pacnet (Pty) Ltd
1977
(3) SA 840
(A) at 873-4.
[18]
Blackie
Swart Argitekte v Van Heerden
1986 (1) SA 249
(A) at 260.
[19]
See
Mahabeer
v Sharma NO and Another
1983 (4) SA 421
(D).