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[2023] ZAECMKHC 20
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Toise v Trustees for the time being of the Blaauwkrantz Employees Trust and Others (1883/2020) [2023] ZAECMKHC 20 (7 March 2023)
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case
No: 1883/2020
In
the matter between:
EBANS
TOISE
Applicant
And
THE
TRUSTEES FOR THE TIME
BEING
OF THE BLAAUWKRANTZ
EMPLOYEES
TRUST (“THE TRUST”)
First Respondent
THE
BENFICIARIES OF THE AFORESAID TRUST
Second Respondent
THE
MASTER OF THE HIGH COURT,
GRAHAMSTOWN
Third Respondent
JUDGMENT
BESHE
J:
Introduction
[1]
This is an application for an
order in the following terms:
“
1. An order
declaring that the persons referred to in Annexure “A”
hereto are no longer eligible to remain as Trustees
of the
Blaauwkrantz Employees Trust (Blaauwkrantz Werknemerstrust) (the
Trust), or to be appointed as Trustees.
2. An order in terms of
Section 20(1) of the Trust Property Control Act, CT 57 OF 1988, that
the persons referred to in Annexure
“A” hereto be removed
forthwith from their office as Trustees.
3. That the Master of the
High Court (the Third Respondent herein) be directed to appoint new
Trustees of the Trust from that category
of persons qualifying to be
appointed as Trustees, having regard to the provisions of clause 2.2
of the Trust Deed of the Trust.
4. An order declaring
that the persons set out in Annexure “C” hereto are
qualified to be beneficiaries of the Trust
and to be appointed as
Trustees of the Trust.
5. That there be no order
in respect of the costs occasioned by this application, save in the
event of any f the aforesaid Respondents
opposing the application, in
which event, such persons who oppose the application, be directed to
pay the costs occasioned by such
opposition jointly and severally.
6.
Further and/or alternative relief.”
[2]
Listed in Annexure “A”
are the following persons:
1.
Zwelothando Z A Moni, P[...]
Farm, Uitenhage District;
2. Steven S G Jackson,
[…] M[...] Street, Blikkiesdorp, Kirkwood;
3.
Zandisile Z E Jackson, [...] M[...]
Straat, Blikkiesdorp,
Kirkwood;
4. Nomthandazo N C Cuba,
[…] M[...] Street, Blikkiesdorp, Kirkwood;
5. Eunice Koza, [...]
S[...] Street, Mandela Village, Uitenhage.
Applicant’s
case
[3]
The founding affidavit is
deposed to by the applicant who describes himself as follows:
As an
adult farm worker who is employed by Blaauwkrantz Farming Enterprises
CC. who had been employed as such for approximately
15 years. He
resides at a farm that belongs to the Close Corporation. He asserts
that he by virtue of his employment and residential
address, he
qualifies to be a beneficiary of the Blaauwkrantz Employees Trust and
to act as a trustee should he be so appointed.
The Close Corporation
has at all material times been represented by
Mr Arthur Rudman
.
The first and second respondents as can be seen from the appellation
are trustees for the time being and beneficiaries respectively
of the
Blaauwkrantz Employees Trust. According to the applicant, the Trust
came about as a consequence of the initiation of an
employment scheme
by
Mr Arthur Rudman
in or about 2005. With the assistance of a
state grant, a farm (immovable property) was purchased with a view to
utilize income
from farming operations in the farm for the benefit of
the beneficiaries of the Trust. According to the Trust deed
Toise
is one of the beneficiaries
[4]
Even though
Mr Toise
alludes to the existence of ongoing disputes regarding the operations
of the trust in question and resultant court battles, he
is adamant
that reasons for the said breakdown in operations of the Trust are
not relevant for the purposes of the relief sought
in this
application. According to him, the purpose of this application is to
resuscitate the Trust and to make sure that persons
appointed as
Trustees are not only entitled to be so appointed but will work in
the interest of the beneficiaries.
[5]
Toise
makes the point
that according to the Trust deed, for one to qualify as a
beneficiary, it is required that he works as a farm worker
and is
working for Blaauwkrantz Farming CC and resident at a property owned
by the Close Corporation. Further that to qualify as
a Trustee of the
Trust one must qualify as a beneficiary. He asserts that none of the
original trustees currently qualify as beneficiaries
of the trust and
therefore to remain as trustees. The following reasons are cited for
this assertion:
Mr Moni
is said to
have resigned his employment with the Close Corporation in 2015.
Mr
S G Jackson
is alleged to have been dismissed and resided at
Uitenhage (now known as Kariega).
Mr Z E Jackson
is likewise
alleged to have been dismissed and residing at Uitenhage.
Ms N C
Cuba
is alleged to have been dismissed initially but later agreed
to a retrenchment.
Ms Koza
is said to have left the employ of
the Close Corporation on her own accord and resides in Uitenhage.
[6]
It is furthermore alleged that
they no longer operate the affairs of the Trust.
[7]
Mr Toise
goes on to list
the names of the original beneficiaries who still qualify as such. He
lists a total of seven names including his.
Opposition
[8]
The application is opposed by
the first and second respondents, being the Trustees for
the time
being of the Blaauwkrantz Employees Trust and beneficiaries of the
Trust respectively.
[9]
The Master of the High Court,
Grahamstown being the third respondent, elected to abide
by the
decision of the court.
[10]
I earlier made mention of the existence of other
disputes between the parties which gave rise to pending
litigation
between them.
[11]
Over and above opposing the granting of the relief
sought by the applicant, first and second respondents
have instituted
a counter-application of their own. They
inter alia
seek the
following order:
1. The transfer of
application for the winding up of an entity known as Blaauwkrantz
Share Equity (Pty) Ltd. serving before the
High Court of South
Africa, Gqeberha, to this court or
vice versa
as well as the
consolidation thereof with this application.
2. The amendment of the
Blaauwkrantz Employees Trust.
[12]
They also raise the following points
in limine
, failure to
join the beneficiaries whose names are listed in annexure “C”
to notice of motion. This on the basis that
all the beneficiaries
have a real and substantial interest in the outcome of this
application. Lack of
locus standi in judicio
on the part of
Mr
Toise
. According to
Mr Moni
who deposed to the answering
affidavit,
Mr Toise
is not a beneficiary to the Trust. His
name was inserted by
Mr Rudman
in the place of
Mr F Jackson
who sadly passed on before the Trust was registered. But at all time
Toise
was not employed by
Mr Rudman
but by the owner of
the farm that was purchased for purposes of the employment project.
He also did not make any financial contribution
as required by the
Trust deed. I understand the financial contribution to refer to the
grant paid by the state on behalf of the
beneficiaries at the
inception of the Trust and procurement of the farm from the
operations of which the identified beneficiaries
were to benefit.
[13]
Persons that constitute first and second
respondents, according to
Mr Moni
, deny that they no longer
qualify to be Trust beneficiaries. They can only be removed as such
in terms of
Clause 14.2.8
of the Trust Deed
.
In the
alternative, and by means of a counter-application, respondents seek
the amendment of the Trust Deed to reflect that first
beneficiaries
can only be removed in terms of
Clause 14.2.8
of the Deed.
Asserting that even though the founder of the Trust was
bona fide
when he established it, some of the consequences brought about by
some of the provisions hamper the achievement of trust’s
objectives and prejudice the interest of the beneficiaries and or are
in conflict with the public interest. Something that was
not foreseen
by the founder. He enumerates the said provisions.
Mr Moni
also avers that the applicant has no knowledge of the running of the
Trust concerned. He cannot read or write and has no idea about
the
concept of the Trust including rights and obligations flowing
therefrom. Accordingly, therefore, so he asserts, the application
is
instigated by
Mr Rudman
and or the
Rudman
family who
are funding the application.
Applicant’s
reply
[14]
Some of the allegations made by
Mr Moni
in
this regard seem to find some resonance in the manner the applicant’s
reply was formulated. An extensive affidavit styled
“supporting
affidavit in reply” was deposed to by
Mr Arthur Rudman
.
It is followed by a shorter replying affidavit deposed to by
Mr
Toise
in which he confirms the truth of what
Mr Rudman’s
affidavit contains. He further confirms that
Mr Rudman
has
more detailed knowledge of certain factual and legal issues which
arise in the matter.
Discussion
[15]
Regarding the non-joinder complained of by
Mr
Moni
,
Mr Rudman
asserts that the said persons are already
identified as respondents as would appear from annexures “A”
and “B”
to the notice of motion. Annexures “A”
and “B” is a list of persons who are no longer eligible
to remain
as trustees and beneficiaries, respectively. Be that as it
may, the persons listed in the two annexures were all served with the
founding papers and so are aware of these proceedings.
[16]
Regarding the application for the application for
the consolidation of this matter with the one pending
before the
Gqeberha High Court,
Rudman
asserts that the issues involved
in the two matters are separate and distinct. The application serving
before that court is for
the liquidation of the first respondent
in
casu
. I have been urged to regard the contents of papers in that
matter as being incorporated into this matter as the issues there
also
have a bearing in this matter. It is clear that the relations
between
Mr Rudman
and the trustees is beset with problems.
There appears to be a dispute as to whether or not
Mr Rudman
or
Mr Moni
is the founder of the Trust.
Mr Rudman
claims that he erroneously signed on the space provided for a
“founder”. This to me seems to be of no moment. He claims
that contrary to wanting to remove certain trustees, the relief
sought is for a declaratory order that certain persons are no longer
eligible to remain as trustees. This in my view is a simplistic way
of looking at the matter, as such a declaratory, if made will
result
in the “removal” of those trustees.
[17]
The removal of trustees is of course provided for
in
Section
20
of
the
Trust
Property Control Act
[1]
.
They can be moved by the court if the court is satisfied that such
removal will be in the interest of the Trust and its beneficiaries.
They can also be removed by the Master under certain circumstances.
It is not clear why the
Section
20
route
has not been followed given the allegations made against some of the
trustees. This is so because it is not altogether accurate
to say the
respondents misconstrue the relief sought. Prayer 2 of the notice of
motion clearly seeks the removal of persons listed
in Annexure “A”
thereto from their office as trustees. Prayer 3 seeks an order
directing the Master to appoint new
trustees. This clearly is
designed to remove the current trustees or some of them.
[18]
The basis for seeking the removal of the trustees in question is that
they no longer qualify
to be beneficiaries of the Trust and therefore
it follows that they no longer qualify to be trustees. And also in
view of the fact,
so asserts
Mr Toise
, that the Trust is
inefficient and ineffective, with the result that the beneficiaries
do not derive any real benefit from the
Trust.
[19]
Even though applicant denies that the other suits
between the parties are relevant to this application,
it is common
cause that such suits exist. In respect of the liquidation
application, some of those who are part of first and second
respondents who include the deponent to the answering affidavit
Mr
Moni
,
have over and above opposing the application instituted a
counter-application. In the counter-application they are seeking the
exchange of
Arthur
Rudman’s
family trust shares to the Trust in respect of which first and second
respondents are trustees and beneficiaries, respectively.
The
application is in terms of
Section
163
of
the
Companies
Act
.
[2]
There is a suggestion which also emerges from the other litigation
between the parties, that the Trust was established to uplift
and
empower the employees who were employed by the
Rudman
family.
Hence the identification of the beneficiaries as well as trustees.
See in this regard
Mr
Rudman’s
supporting
affidavit in reply paragraph 10.2 in response to
Mr
Moni’s
assertion
that the Trust was a black economic empowerment project meant to
empower those farm workers who had a long history with
the
Rudman
family.
Mr
Rudman
confirms that he wished to empower loyal workers who were employed by
him or his family. It is common cause that this was as far
back as
2005. But, as acknowledged by
Mr
Toise
in paragraph 18 of the founding affidavit, ongoing disputes regarding
the Trust have emerged. He mentions the matter in respect
of which an
appeal is still pending and the liquidation application. It would
also appear that there is a gnawing feeling amongst
the beneficiaries
and or trustees of the Trust that the more things change the more
they remain the same. Hence the ongoing disputes
between the parties.
This is also confirmed by
Mr
Toise
that the beneficiaries do not derive any real benefit from the Trust.
[20]
Consequently,
Mr Moni
asserts that if the
main application were to succeed,
Mr Rudman
is the only person
who stands to gain in that he will have control over the remaining
beneficiaries. They will not be willing to
oppose the liquidation
application for fear of losing their jobs. The persons listed in
Annexure “A” will no longer
have the
locus standi
to oppose the liquidation.
[21]
In terms of the Trust deed, the requirements for
qualifying as a beneficiary are that one has to be employed
as a farm
worker by the Blaauwkrantz Farming Enterprise and reside on the
property that is owned by the
Rudman
Family.
To qualify as a trustee one should “
kwalifiseer
as ‘n begunstigde (beneficiary) and, ten minte vir 5 vyf jaar
in dienswees van Blaauwkrantz Farming Enterprise
CC”
.
[3]
It is common cause or at least not in dispute that all those who were
identified as beneficiaries were employees of the
Rudmans
.
This is not denied by
Mr
Rudman
.
[4]
[22]
As far as termination of trusteeship is concerned,
the Trust Deed only deals with the suspension of membership
–
“
opskorting van Lidmaatskap”
at
Clause 14.2.8
.
Clause 14
in general deals with the rights of the
beneficiaries as the heading suggests.
Clause 14.2.8
states
that:
“
Opskorting van
Lidmaatskap
Indien ‘n
begunstigte homself skuldig maak aan enige enige gedrag of optrende
wat onder enige wetgewing in Suid-Afrika dissiplinêre
stappe
tot gevolg sal hê, is die raad van trustees, onderworpe aan ‘n
spesiale algemene vergadering se toestemming,
geregtig om sodenige
lid se lidmaatskap tydelik of permanent op te skort.”
[23]
This is not a basis upon which the declaratory or
removal of the respondents as trustees is sought.
[24]
I could not come across any clause that provides
for the disqualification as a beneficiary once identified
as such, by
reason of no longer being an employee of the
Rudman’s
or
residing in one of their farms.
[25]
Section 20
of the
Trust Property Control
Act 57 of 1988
provides for the removal of trustee and reads as
follows:
“
20 Removal of
trustee
(1)
A trustee may, on the application of the Master or any person having
an
interest in the trust property, at any time be removed from his
office by the court if the court is satisfied that such removal
will
be in the interest of the trust and its beneficiaries”
Subsection
2
provides for removal from office by the Master.
[26]
No case is sought to be made that it will be in
the interest of the Trust and its beneficiaries that the
respondents
be removed. What is contended for by the applicant is that he
respondents no longer qualify to be beneficiaries and
consequently to
be trustees. In his report, the Deputy Master of the High Court
states that he had not received any information
that will allow him
to invoke his powers in terms of
Section 20 (2)
of the
Trust
Property Act
. The last action on their file was the issuing of
letters of authority on the 24 February 2006.
[27]
It is noteworthy that the deponent to the
answering affidavit is said to have resigned his employment with
Balaauwkrantz Enterprises in 2015. Examples of other trustees sought
to be disqualified:
Ms Cuba
is said to have been dismissed in
November 2006.
Ms Koza
is reported to have left the employment
of the enterprise in question during 2005. Yet, no steps have been
taken to disqualify
them or have them removed in terms of
Section
20
of the Act all these years.
Applicant’s
argument
[28]
Applicant agitates for an interpretation that
translates to: if you are no longer employed by the Blaauwkrantz
Farming enterprise or the
Rudman
family and you no longer
reside in a property owned by the
Rudman’s
you cease to
be a beneficiary and because to qualify as a trustee one needs to be
a beneficiary, you are therefore also disqualified
from being a
trustee. This is the basis upon which the orders set out in the
notice of motion are sought. Reliance for this is
assertion is placed
on the Trust Deed.
[29]
In endeavouring to interpret the Trust Deed
concerned, I will be mindful of the approach to interpretation
as
suggested in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[5]
where the following was said:
“
[18]
Over the last century there have been significant developments in the
law relating to the interpretation
of documents, both in this country
and in others that follow similar rules to our own. It is unnecessary
to add unduly to the burden
of annotations by trawling through the
case law on the construction of documents in order to trace those
developments. The relevant
authorities are collected and summarised
in
Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman
Primary School.
The present state of the law can be expressed as
follows: Interpretation is the process of attributing meaning to the
words used
in a document, be it legislation, some other statutory
instrument, or contract, having regard to the context provided by
reading
the particular provision or provisions in the light of the
document as a whole and the circumstances attendant upon its coming
into existence. Whatever the nature of the document, consideration
must be given to the language used in the light of the ordinary
rules
of grammar and syntax; the context in which the provision appears;
the apparent purpose to which it is directed and the material
known
to those responsible for its production. Where more than one meaning
is possible each possibility must be weighed in the
light of all
these factors. The process is objective, not subjective. A sensible
meaning is to be preferred to one that leads to
insensible or
unbusinesslike results or undermines the apparent purpose of the
document. Judges must be alert to, and guard against,
the temptation
to substitute what they regard as reasonable, sensible or
businesslike for the words actually used. To do so in
regard to a
statute or statutory instrument is to cross the divide between
interpretation and legislation; in a contractual context
it is to
make a contract for the parties other than the one they in fact made.
The ‘inevitable point of departure is the
language of the
provision itself’, read in context and having regard to the
purpose of the provision and the background to
the preparation and
production of the document.”
This
approach has recently once again been affirmed in the matter of
Capitec
Holdings Ltd and Another v Coral Lagoon Investments and Others.
[6]
In the heads of argument applicant comprehensively addressed
respondents’ counter-application to have the Trust Deed amended
/ varied, arguing that the proposed amendment would result in persons
who no longer have an interest in administration of the Trust
property remaining beneficiaries. However, not much argument is
directed at the interpretation of clauses relied upon by the
applicant
for contending that the respondents are no longer qualified
to be beneficiaries and consequently trustees by reason of the fact
that they are no longer employees of the Farming Enterprise
concerned.
[30]
I propose not to deal with arguments relating to
the counter-claim in this regard in any detail because
of my
conclusion in this matter in respect of the main application.
[31]
Respondents, on the other hand, presented a full
argument in support of the interpretation of the Trust
Deed they
contend for. After examining relevant case law dealing with the
current approach to interpretation, it is submitted that
the proper
interpretation of the Trust Deed is that once a person has qualified
as a beneficiary or trustee, his status does not
change just because
he is no longer employed by the
Rudman
family.
Further that, this is gleaned from the language and the context of
the Trust Deed as a whole. Furthermore, that the Trust
Deed does not
provide for the disqualification of a beneficiary on the basis that
they are no longer employed by the
Rudman
family. The deed only provides for the suspension of a beneficiary
from membership of the Trust. We know that the application is
not
based on the grounds set out in the clause dealing with suspension.
As far as the context is concerned, it was submitted on
behalf of the
respondents that the Trust was set up to empower the beneficiaries.
As indicated earlier, according to the respondents,
the Trust was
meant to be a black empowerment project , the purpose of which was to
empower farm workers who had a long history
with the
Rudman
family.
[7]
In response thereto,
Mr
Rudman
confirms that he was the project mentor and wished to empower his
loyal workers who were employed by him or his family.
[8]
Not loyal workers who would from time to time be employed by the
Rudman’s
.
[32]
Respondents argue that it does not make business
sense that a person who has contributed to the Trust losses
their
contribution or benefits thereof because they have stopped working
for, in this case,
Rudman
family. Further, that the Trusts
objective could never have been to tie the beneficiaries down to
working for the
Rudman
family for the rest of their lives no
matter what the circumstances are. As this would not advance
respondents’ rights to
human dignity, equality and other human
rights and freedom. The respondents also argue that the removal of
trustees in the manner
suggested by the applicant would be against
the principle of Ubuntu which entails a duty of good faith, fairness
and justice.
[33]
I am inclined to agree with the respondents’
submissions in the preceding paragraph. A reading of
the Trust Deed
i.e. the language used and the context in which it was executed does
not support the interpretation contended for
by the applicant. This,
over and above the fact that nowhere does it provide for the
disqualification of a beneficiary by reason
of not being in the
employ of the
Rudman’s
once identified as such. It
appears to be common cause that not all the farm workers that were in
the employ of the
Rudman’s
at the time of the execution
of the Trust Deed were identified as beneficiaries.
[34]
I earlier alluded to the existence of other
proceedings that involve the parties in this matter, namely
the
liquidation matter. That matter is opposed by the present
respondents, at the same time instituting a counter-claim seeking
relief provided for in
Section 163
of the
Companies Act
.
Presumably on the basis that they are shareholders.
[35]
In my view, this lends credence to the assertion
that these proceedings or the relief sought is aimed at
stripping the
respondents of their judicial standing (
locus standi
) so that
they are unable to pursue their opposition and counter-application in
that matter and other litigation involving the parties.
Consolidation
[36]
Respondents seek an order that the matter serving
before the Gqeberha High Court and this one be consolidated
and that
this matter be transferred to Gqeberha for purposes of having it
consolidated with the matter pending before the Gqeberha
High Court.
I understand that, that matter has been referred for oral evidence to
be heard.
Whilst
it is so that on application for consolidation can be made at any
time, I think the horse has already bolted in this case
because the
application has already enjoyed the attention of this court. I am
also not persuaded that it would have been convenient
to the parties
for the two applications to be consolidated or for this application
to be transferred to Gqeberha High Court.
Counter-application
and Costs
[37]
In my view of my conclusion in this matter, it
will not be necessary to order the amendment of Trust Deed.
My
understanding is that the counter-application was conditional upon
the court’s finding that the Trust Deed should be interpreted
in the manner suggested by the applicant. I therefore propose not to
make any costs order in this regard. In respect of the main
application, costs will follow the result. I am not satisfied that
the applicant has made out a case for the order it seeks.
Order
[38]
Accordingly, the main application is dismissed with costs.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Applicant:
Adv:
R G Buchanan SC
Instructed
by:
ANDREW
DE VOS & ASSOCIATES
C/o
HUXTABLE ATTORNEYS
23
New Street
MAKHANDA
Ref:
Mr O Huxtable
Tel.:
046 – 622 2692
For
the Respondents:
Adv:
A De Vos SC
Instructed
by:
LEGAL
RESOURCES CENTRE
116
High Street
MAKHANDA
Ref.:
Mr. McConnachie
Tel.:
046 -622 9230
Date
Heard:
11
August 2022
Date
Reserved:
11August
2022
Date
Delivered:
7
March 2023
[1]
Act
57 of 1988.
[2]
Act
71 of 2008.
[3]
See
article 2 of the Trust Deed.
[4]
Paragraph
6 of the answering affidavit page 129 of the indexed papers.
[5]
2012
(4) SA 593
SCA 603-4 at [18].
[6]
2022
(1) SA 100
SCA at [25].
[7]
Page
129 of indexed papers paragraph 5 of the answering affidavit.
[8]
Paragraph
10 of the replying affidavit.