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2024
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[2024] ZAFSHC 106
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Nunwana (Mabizela) and Others v Mara Trust and Others (3484/2022) [2024] ZAFSHC 106 (17 April 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Application no:
3484/2022
Reportable:
YES/NO
Of Interest to other
Judges:
YES/NO
Circulate to
Magistrates: YES/NO
In the matter between:
ANNA NUNWANA
(MABIZELA)
1
st
Applicant
(ID. no: 8[...])
MATTHEWS
MABIZELA
2
nd
Applicant
(ID.
no: 8[...])
BELLINAH
MABIZELA
3
rd
Applicant
(ID. no: 9[...])
EMILY
MABIZELA
4
th
Applicant
(ID.
no: 7[...])
MOSEKA
LUCAS MABIZELA
5
th
Applicant
(ID.
no: 6[...])
ALLTA
MABIZELA
6
th
Applicant
(ID.
no: 7[...])
and
MARA
TRUST
1
st
Respondent
(Reg.
no: IT 8[...])
MAMOYA ELMA
MABIZELA
N.O.
(ID. no: 4[...])
(IN HIS CAPACITY AS
TRUSTEE
OF MARA
TRUST)
2
nd
Respondent
THABISO PETRUS
MABIZELA N.O.
(ID. no: 6[...])
(IN HIS CAPACITY AS
TRUSTEE
OF MARA
TRUST)
3
rd
Respondent
TEBOGO LORRAINE
MOKGAKANE N.O.
(ID. no: Not known)
(IN HIS CAPACITY AS
TRUSTEE
OF MARA
TRUST)
4
th
Respondent
CORAM:
VAN ZYL, J
HEARD
ON:
12 OCTOBER 2023
DELIVERED
ON:
17 APRIL 2024
[1]
The applicants are seeking an order for the removal of the second to
fourth
respondents as Trustees of the Trust known as Mara Trust (IT
8[...]) (“the Trust”). The applicants are
beneficiaries
in terms of the Trust. The applicants are relying
on the provisions of section 20(1) of the Trust Property Control Act,
57
of 1988 (“the Act”). The applicants are also
seeking an order appointing two new Trustees, nominated by the
applicants,
in the stead of the second to fourth respondents. I will
refer to this application as the main application.
[2]
The second to fourth respondents are opposing the main application
and
they also instituted a counter-application in which they are
seeking an order in the following terms:
“
1.
An order whereby the 1
st
to the 6
th
Applicants
are interdicted from concluding Lease Agreements with third parties
or renting out arable land on the farm MARA …
(hereinafter
referred to as “the farm”) and all from instructing,
authorising or obtaining the services of any third
party or person to
conclude any lease agreement in respect of the farm or arable land on
the farm;
2.
An order whereby the 1
st
to the 6
th
Applicants
are interdicted and prohibited from interfering with the farming
activities, the equipment, the crops planted and the
labourers or
threatening, intimidating, insulting or assaulting the member or the
labourers of Monte Carlo Boerdery CC or any other
tenant that leases
arable land on the farm in terms of a lease agreement signed or
concluded with the trustees of the first Respondent;
3.
An order whereby the 1
st
to the 6
th
Applicants
are ordered to disclose in writing to the trustees of the First
respondent all amounts collected and received by them
in respect of
rental of the farm and to give an account of how the rental money was
appropriated or divided amongst beneficiaries
or third parties and to
account such funds still in their possession by way of payment to the
bank account of Human Le Roux and
Meyerowitz Attorneys …;
4.
An order that the 1
st
to the 6
th
Applicants pay
the costs of this counter-application, the one to pay the other to
absolved.”
[3]
There are multiple disputes between the parties and there are several
legal principles applicable to the main application and the
counter-application, respectively. However, for the reasons stated
hereunder, I do not deem it appropriate to deal with the merits of
either the application or the counter-application at this stage.
The Master of the
High Court, Bloemfontein:
[4]
In the heads of argument filed on behalf of the second to fourth
respondents,
Ms Boonzaaier,
inter alia,
raised the point that
the applicants should have cited the Master as a party to the main
application since the Master has a direct
interest in the subject
matter of the main application.
[5]
In terms of section 20(1) of the Trust Property
Control Act, 57 of 1988 (“the Act”) a trustee may, on the
application
of any person having an interest in the trust property,
at any time be removed from his/her office by the court if the court
is
satisfied that such removal will be in the interests of the Trust
and its beneficiaries.
[6]
The essence of the dispute between the parties in the main
application
involves the administration of the Trust, the
respondents’ duties and obligations in respect thereof and
whether they are
complying with their said duties in the interests of
the Trust and its beneficiaries. In my view, the merits of the main
application
and the counter-application are intertwined and should
therefore not be separated and heard in a piecemeal fashion.
[7]
Due to the provisions of the Act, I have to agree with the contention
of Ms Boonzaaier that the Master has a direct and substantial
interest in the main application. The Master should indeed have
been cited as a party to the main application or the main application
(and the counter-application) should at least have been served
on the
Master.
[8]
In my view it would be improper to adjudicate this application
without
it having been served upon the Master. In addition,
considering the nature and facts of the present disputes between the
parties, it will be incumbent upon the Master to file a report in
this application.
[9]
It is evident from the papers that Mr F. Jansen from the Master`s
office
has previously been involved in respect of potential problems
within the Trust.
Additional relief
and costs:
[10]
In my view it may become necessary for the parties to file
supplementary affidavits
and/or supplementary heads of argument after
having obtained the Master’s report. I consequently deem
it apposite that
leave be granted to the parties to do so, should one
or both of them deem it necessary.
[11]
Since it is presently uncertain when the Master’s report will
be filed and
whether the parties will be filing supplementary papers,
I consider it apt that the application (the main application and the
counter-application)
in the meantime be removed from the roll instead
of it being postponed. Either of the parties will then be
entitled to re-enrol
the application (the main application and the
counter-application) for hearing once same are ripe for hearing.
[12]
With regard to the wasted costs of 12 October 2023, in respect of
both the main application
and the counter-application, I deem it fair
and reasonable that the said costs should stand over for later
adjudication, since
the contents of the Master’s report may
influence the eventual consideration of an appropriate costs order.
Order:
[13]
I consequently make the following order:
1.
The main application and the counter application are removed from the
roll.
2.
The applicants are ordered to serve a copy of the main application
and the counter-application
and the parties’ respective heads
of argument, as well as a copy of this judgment, on the Master.
3.
The Master is requested to take such steps within his power as he may
deem fit,
if any, and to file a report in respect of the main
application and the counter-application.
4.
Leave is granted to the parties to file supplementary affidavits
and/or supplementary
heads of argument in the main application and/or
the counter-application after receipt of the Master’s report,
should one
or both of the parties deem it necessary.
5.
Leave is granted for either party to re-enrol the main application
and the counter-application
as soon as same are ripe for hearing.
6.
The wasted costs of 12 October 2023 with regard to both the main
application
and the counter-application, stand over for later
adjudication.
C.
VAN ZYL, J
On
behalf of the applicants:
Adv.
M.B. Mojaki
Instructed
by
:
Thulo
Attorneys
BLOEMFONTEIN
On
behalf of the respondents:
Adv.
A.S. Boonzaaier
Instructed
by:
Callis
Attorneys Inc
BLOEMFONTEIN