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[2022] ZAKZDHC 22
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Dludla NO and Others v Isabelle and Others (8522/2020) [2022] ZAKZDHC 22 (17 May 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case
No: 8522/2020
In
the matter between:
Bongani
Thulani Dludla
NO

First applicant
Cyril
Nkanyiso Dludla NO

Second applicant
Protus
Qaphelani Ngcobo NO

Third applicant
Sibongile
Sphiwe Ntombela NO

Fourth applicant
Dudu
Rachel Khanyile NO

Fifth applicant
and
Nicholas
Paul Isabelle

First respondent
Willem
Vermaak

Second respondent
Vriendschap
Boerdery NC (Pty) Ltd

Third respondent
Nico
Willem Harris NO (trustee of the Mahamba Hlala
Trust)

Fourth respondent
Nico
Willem Harris NO (trustee of the Ed Maritz Merino
Trust)

Fifth respondent
Nico
Willem Harris NO (trustee of the JJS Maritz Merino
Trust)

Sixth respondent
Henk
Maritz

Seventh respondent
Alistair
McMurray

Eighth respondent
Colin
Hohls

Ninth respondent
Newco
(Pty)
Ltd

Tenth respondent
Judgment
Lopes
J
[1]
The dispute in this application arises out the restoration to the
Sakwa Dludla Community (‘the Dludla Community’)
of 11
farms constituting 1 101.7752 hectares (‘the farms’).
In terms of an order of the Land Claims Court handed
down on the 18
th
September 2019, the Minister of Agriculture, Land Reform and Rural
Development was directed to acquire the farms for compensation,
and
to hold them in registered communal property trusts for the benefit
of the Dludla Community. The farms were previously owned
by the first
to third respondents (and the trusts of which the fourth to sixth
respondents were trustees).
[2]
The applicants are trustees of the Isiziwe Sakwa Dludla Trust (‘the
trust’), created to receive registration of
the farms for the
benefit of the Dludla Community. Only the first three applicants have
brought this application, although all
five of the current trustees
are cited as applicants. I shall refer to the first three applicants
as ‘the applicants’.
The farms were all viable fruit and
sugar cane farms, and the first to sixth respondents operated the
farms in terms of a Memorandum
of Understanding (‘the
memorandum’), dated the 7
th
March 2020, which
purports to have been concluded between the trust and the first to
sixth respondents. It is the validity of the
memorandum which is the
central focus of this application.
[3]
The beneficiaries of the trust are the households comprising the
Dludla Community, which all consisted of previously disadvantaged

persons, whose rights in and to the farms were restored by the order
of the Land Claims Court. The seventh to ninth respondents
are
persons named in the papers, and the tenth respondent is the name
allocated to a company which was to have been formed by the
trust –
it is unclear whether it was, in fact, incorporated. No relief is
sought against the seventh to tenth respondents,
and they are not
important to the outcome of this matter.
[4]
On the 10
th
December 2020 a rule
nisi
was granted in
favour
of
the applicants, with interim relief, interdicting the respondents
from concluding or renewing any contracts with the trust, directing

them to cease all farming operations on the farms by no later than
the 1
st
January 2021, and to allow nominated entities of the applicants, to
enter onto the farms and conduct farming operations for the
benefit
of the trust. All profits generated by the farming operations of the
persons nominated by the applicants, were to be paid
into the trust
account of the applicants’ attorneys, and to be disbursed in
accordance with further orders of this court.
The rule was later
extended until confirmed or discharged.
[5]
Mr
Stokes
SC
, who appeared for the applicants, recorded
that no payments have been made into the trust account of the
applicants’ attorneys,
and the applicants do not seek
confirmation of that part of the rule. Mr
Camp
, who appeared
for the respondents, recorded that the issue regarding the eviction
of the first to sixth respondents was no longer
relevant, because
they had left the property pursuant to the order of this court on the
10
th
December 2020. Mr
Stokes
, however, indicated
that the applicants persisted with the order of eviction, because the
applicants feared that they might return.
[6]
Various issues were raised in the papers, and in the practice notes
delivered by the parties. The first of those issues was
the authority
of the trustees to represent the trust in bringing these proceedings.
The deponent to the respondents’ answering affidavit,
Alfred Thembinkosi Dludla (Mr Dludla), was the founder of the trust,

having been mandated to appoint the initial trustees. He admits
having signed the Trust Deed in which the applicants were nominated.

The
respondents do not deny that the five
applicants were appointed as trustees of the trust by the Master of
this court on the 12
th
November, 2018. A sixth respondent who was appointed with them,
Nkosingiphile Dludla, passed away on the 2
nd
July 2020.
[7]
The respondents aver that the trustees were removed as trustees by
way of a resolution passed at a meeting of the trust on the
20
th
June 2020, which was prior to the institution of this application on
the 10
th
December 2020. In argument before me, Mr
Camp
accepted that any resolutions to dismiss the applicants as trustees
which were passed at the meeting on the 20
th
June 2020, were invalid. He also conceded that the deponent to the
respondents’ answering affidavit, Mr Dludla, was not a
trustee,
and that no person could validly act on behalf of the trust unless
they were a registered trustee.  I accordingly
accept that the
trustees have not been validly removed as trustees of the trust.
[8]
The
Trust Deed provides for a quorum of three trustees, and matters are
to be decided by a majority of the trustees’ votes.
A record of
a meeting of the trustees authorizing the institution of this
application is annexed to the applicants’ papers.
The
allegations recording the holding of that meeting, the resolutions
passed, and the recording of the meeting are not disputed,
save for
the broad allegation that trustees were and are acting unlawfully,
and their actions are invalid and in contravention
of the wishes of
the majority of the beneficiaries of the trust. Such broad and
sweeping statements are unhelpful in determining
the validity of
their actions, and the respondents, and indeed, the Dludla Community,
have at all times been at liberty to bring
applications for
appropriate relief, should they have viewed the conduct of the
applicants as in any way unlawful.
[9]
In any event, any challenge to the authority of the applicants in
this application, had to have been brought in terms of Uniform
rule
7, and not in the affidavits.
In
Ganes
and Another v Telecom Namibia Ltd
2004
(3) SA 615 (SCA), Streicher JA dealt with a challenge to the
authority to issue an application. At para 19, he stated:
‘…
The
deponent to an affidavit in motion proceedings need not be authorised
by the party concerned to depose to the affidavit. It
is the
institution of the proceedings and the prosecution thereof which must
be authorised. In the present case the proceedings
were instituted
and prosecuted by a firm of attorneys purporting to act on behalf of
the respondent. In an affidavit filed together
with the notice of
motion a Mr Kurz stated that he was a director in the firm of
attorneys acting on behalf of the respondent and
that such firm of
attorneys was duly appointed to represent the respondent. That
statement has not been challenged by the appellants.
It must,
therefore, be accepted that the institution of the proceedings was
duly authorised. In any event, rule 7 provides a procedure
to be
followed by a respondent who wishes to challenge the authority of an
attorney who instituted motion proceedings on behalf
of an applicant.
The appellants did not avail themselves of the procedure so provided.
(See
Eskom
v Soweto City Council
1992
(2) SA 703(W)
at
705C-J.)’
I
accept, therefore, that the applicants have the necessary authority
to represent the trust, and have validly brought this
application.
[10] Both
counsel before me were in agreement that no other persons, other than
the trustees, were authorised to, or could
have transacted or
concluded agreements on behalf of the trust. The only remaining
issues then, are:
(a)
w
hether
the occupation of the farms, and the farming activities of the
respondents, were authorized by the applicants in terms of
the
memorandum allegedly concluded on the 7
th
March 2020, as referred to in the papers. The memorandum provided for
the erstwhile owners of the farms to carry on running them,
for the
benefit of the community and themselves; and
(b)
whether the applicants have demonstrated their necessary compliance
with the provisions
of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act, 1998, and in particular, s 4(2)
thereof, to entitle
them to an order for eviction.
[11]
Mr Dludla avers in his answering affidavit that a resolution to adopt
the memorandum was taken by ‘the Dludla Community’
at a
Special General Meeting of Members held on the 21
st
March 2020, after the trustees had negotiated the terms thereof with
the outgoing landowners. No formal written notice of this
meeting
appears to have been given, no minutes of the meeting were taken, and
no formal resolutions were prepared for signature.
He also states
that the first applicant, who was the chairman of the trust,
authorised one Thami Dludla (not a trustee) to sign
the memorandum on
behalf of the trust. In the next paragraph Mr Dludla alleges that on
the 7
th
March 2020 and at the Mthonjaneni Lodge (a guesthouse) the written
memorandum was concluded between the trust and the first six

respondents.
[12]
Mr
Stokes
submitted that the resolution to conclude the
memorandum was invalid because:
(a)
the farms vested in the trust;
(b)
the general meeting at which the resolution was taken, was a meeting
of members of the Dludla
Community, according to the respondents;
(c)
the trust could only be bound by decisions of the trustees. This is
in terms of s
6(1) of the Trust Property Control Act, 1988. An act by
any other person purporting to bind the trust is void;
(d)
the Trust Deed provides for a category of ‘members’,
comprising those heads
of households which are beneficiaries of the
trust, and for a register of members to be kept by the trustees. It
was these members
who allegedly voted at a Special General Meeting of
members held on the 21
st
March 2020, for the conclusion of
the memorandum, based on negotiations which had been conducted with
the outgoing landowners of
the farms. The members are not trustees,
and could not have made a retrospective resolution binding on the
trustees to conclude
the memorandum;
(e)
the respondents aver that a member, one Thami Dludla, who was not a
trustee, was authorised
by the first applicant to sign the memorandum
on behalf of the trust, and he did so on the 7
th
March
2020 (some two weeks’ before the meeting pursuant to which the
resolution was passed, was held!). The memorandum itself
records at
paragraph 15 that ‘This Memorandum of Understanding is agreed
to on condition that the committee representing
the Dludla claimant
community will obtain a mandate from the claimant community by no
later than 10:00 on 6 March 2020. It is agreed
that should such
memorandum be obtained, this MOU will be signed on 9 March 2020.’;
and
(f)
significantly, no minutes were taken at the meeting, and no formal
resolution was
prepared or signed. Mr Dludla records further in his
affidavit that ‘On 21 March 2020 and after the material terms
of the
MOU had been negotiated, we were given the mandate by the
Dludla Community to finalise and sign the MOU.’;
(g)
on the statements referred to above, the memorandum was signed before
any resolution was
taken, or authority was given by the trustees to
do so. The memorandum is accordingly invalid.
[13]
Mr
Camp
dealt with a previous interdictory application brought
by Mr Dludla and others as trustees of the trust, against
inter
alia,
the first three applicants in this application (under Case
No D4722/2020). That application was to prevent them from harassing
or intimidating the first to sixth respondents in this application.
That application was dismissed because, although Mr Dludla and
the
five other applicants therein believed they were trustees, they were
not, and their acts were void.
[14]
I put to Mr
Camp
that the memorandum could not have been
signed prior to the taking of the resolution. He submitted that the
date of the meeting
reflected in the answering affidavit, (the 21
st
March 2020) had to be wrong. He conceded that the signature of the
memorandum had to have occurred after the taking of a proper

resolution, in order for the agreement to be valid. Ultimately, he
was unable to resolve the conflicting dates.
[15]
Mr
Camp
submitted that although any resolutions passed at the
meeting of the 20
th
June 2020 were invalid, that did not
apply to the earlier meeting of the 21
st
March 2020
because the members were entitled to convene meetings and instruct
the trustees as to their wishes.
[16]
In addition, Mr
Camp
submitted that the
Turquand
rule
was applicable to the present matter. He referred to Honoré’s
South African Law of Trusts
, 6
th
Edition, by
Cameron, De Waal and Solomon, Juta & Company (Pty) Ltd, 2018 at
pages 385ff. The learned authors opine, however,
that our courts have
left open the question of the applicability of the
Turquand
rule to trusts. In any event, where, as in this case, the credibility
of the conclusion of the memorandum itself is in serious
doubt, and
the legality of the authorisation of the signature on behalf of the
trust is not established, no question of the applicability
of the
rule arises. The learned authors also raise the spectre of estoppel,
but that was not raised, or dealt with.  In my
view, it would
not, in any event, be applicable.
[17]
There are difficulties in accepting the version of Mr Dludla with
regard to the meeting:
(a)
in the minutes of a meeting of the 20
th
June 2020 put up
by Mr Dludla (and although it is conceded that no valid resolutions
could have been passed at this meeting), it
is recorded:
‘
Mrs
S.S. Ntombela said according to previous quorumed TRUSTEE Meetings,
held on 13
th
March 2020 the following was on the 21
st
March 2020 meeting where the community voted to sign the MOU with the
farmers against SAFDA proposal, . . .’(sic);
(b)
in the memorandum, the date of the resolution authorising the
conclusion thereof is recorded
in manuscript as being the 8
th
March 2020. The date of each signature is manually recorded as the
7
th
March 2020;
(c)
the memorandum is signed on behalf of the trust by Thami Dludla,
(allegedly on the
authority of the first applicant). Although the
first applicant denies having given such authority, he would not have
had the power
in terms of the Trust Deed to do so, and if he
purported to do so on the basis that Thami Dludla was appointed as an
alternate
trustee, that would have had to have been in writing. No
such writing was produced. The preamble records that Thami Dludla
signed
in his capacity as ‘trustee’ and that he was ‘duly
authorized by virtue of a resolution . . .’ of the trust
‘which
is attached hereto marked Annexure ‘A’.’ He was not
a trustee, and no such document was annexed
to the memorandum, and it
has never been produced;
(e)
there are three different dates alleged for the passing of the
resolution to conclude the
memorandum, (and an intention to pass the
resolution by 10:00 am on the 6
th
March 2020) – but
all of them are after the 7
th
March 2020, the date on
which the memorandum was,
ex facie
the memorandum, signed by
Thami Dludla and the first to sixth respondents;
(f)
the conclusion of the memorandum was the function of the trustees,
and could only
validly have been done if a quorum of trustees had
resolved to do so. There is no evidence, save for allegations by Mr
Dludla (which
are denied), that such a resolution was considered or
passed by the trustees. There can also be no consideration of an
ex-post
facto ratification of either the resolution, or the signing
of the memorandum, when the persons alleged to have passed the
resolution
were not trustees of the trust.
See:
Simplex
(Pty) Ltd v Van der Merwe and Others NNO
1996 (1) SA 111 (W) at 113G-114I.
Moosa
NO & Others v Akoo & Others
[2010]
JOL 25872 (KZP).
Lupacchini
NO and Another v Minister of Safety and Security
2010
(6) SA 457 (SCA), paras 1-3 and 10.
[18]
Mr
Camp
submitted
that I should approach the dispute on the basis laid down in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A), at 634D-635C, where Corbett JA stated;
‘
Secondly,
the affidavits reveal certain disputes of fact. The appellant
nevertheless sought a final interdict, together with ancillary

relief, on the papers and without resort to oral evidence. In such a
case the general rule was stated by VAN WYK J (with whom DE
VILLIERS
JP and ROSENOW J concurred) in
Stellenbosch
Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd
1957
(4) SA 234
(C)
at 235E-G, to be:
"....
where there is a dispute as to the facts a final interdict should
only be granted in notice of motion proceedings if
the facts as
stated by the respondents together with the admitted facts in the
applicant's affidavits justify such an order....
Where it is clear
that facts, though not formally admitted, cannot be denied, they must
be regarded as admitted."
This
rule has been referred to several times by this Court (see
Burnkloof
Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd
1976
(2) SA 930
(A) at  938A-B;
Tamarillo
(Pty) Ltd v B N Aitkin (Pty) Ltd
1982
(1) SA 398
(A) at 430-1;
Associated
South African Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien
(Pty) Ltd en Andere
1982
(3) SA 893
(A) at 923G- 924D). It seems to me, however, that
this formulation of the general rule, and particularly the second
sentence
thereof, requires some clarification and, perhaps,
qualification. It is correct that, where in proceedings on notice of
motion
disputes of fact have arisen on the affidavits, a final order,
whether it be an interdict or some other form of relief, may be
granted if those facts averred in the applicant's affidavits which
have been admitted by the respondent, together with the facts
alleged
by the respondent, justify such an order. The power of the Court to
give such final relief on the papers before it is,
however, not
confined to such a situation. In certain instances the denial by
respondent of a fact alleged by the applicant may
not be such as to
raise a real, genuine or
bona
fide
dispute
of fact (see in this regard
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T) at 1163-5;
Da
Mata v Otto NO
1972
(3) SA 585
(A) at 882D-H). If in such a case the respondent
has not availed himself of his right to apply for the deponents
concerned
to be called for cross-examination under Rule 6 (5) (
g
)
of the Uniform Rules of Court (
cf Petersen
v Cuthbert & Co Ltd
1945
AD 420
at 428;
Room
Hire
case
supra
at 1164) and the Court is satisfied as to the inherent credibility of
the applicant's factual averment, it may proceed on the basis
of the
correctness thereof and include this fact among those upon which it
determines whether the applicant is entitled to the
final relief
which he seeks (see eg
Rikhoto
v East Rand Administration Board
and
Another
1983
(4) SA 278
(W) at 283E-H). Moreover, there may be exceptions
to this general rule, as, for example, where the allegations or
denials
of the respondent are so far-fetched or clearly untenable
that the Court is justified in rejecting them merely on the papers
(see
the remarks of BOTHA AJA in the
Associated
South African Bakeries
case,
supra
at 924A).’
[19]
In this matter no request was made for a referral of the dispute to
the hearing of oral evidence. In my view, the dispute falls
to be
resolved on the basis that I am satisfied that the allegations in the
affidavits of the respondents are so confused and contradictory,
that
I have no option but to dismiss them as being clearly untenable. I
cannot accept that they can be viewed as proper denial
of the
allegations of the applicants.
[20]
The need for an eviction order is moot, because the interim relief
granted on the 10
th
December 2020, directed all the
respondents to cease all farming operation on the farms and directed
them to allow the South African
Farming Development Association
and/or SAFDA FMSC (Pty) Ltd, or any other persons directed by the
applicants to enter onto the
farms and conduct farming operations. It
is common cause that they did so, and that situation has, as I
understand the position,
prevailed since the 10
th
December
2020. I see no need to deal with that part of the order any further.
[21]
In addition, further steps were required to have been taken to
establish the identities of all the unlawful occupiers. Save
for the
second respondent, it was initially alleged that none of the
respondents (excluding the individual respondent trusts) resided
on
the farms. No further clarity was provided.
[22]
With regard to costs:
(a)
when the application was initially launched, the applicants sought an
order for costs as
part of the rule
nisi
, jointly and
severally against all the respondents (see sub-paragraph 2.8 of the
notice of motion);
(b)
when the application came before Maharaj AJ on the 10
th
December 2020, he granted a rule
nisi
with interim relief,
without referring to costs. It would seem that he did so in error,
because he referred to all the properties
constituting the farms ‘as
mentioned in 2.7 of the notice of motion.’, and apparently
overlooked sub-paragraph 2.8,
dealing with costs, and which was part
of the original rule
nisi
sought;
(c)
the application then came before Vahed J on the 4
th
February 2021, and he granted a consent order (by initialling and
dating an apparently agreed draft). The draft simply referred
to the
rule being extended until confirmed or discharged;
(d)
when the application was argued before me, on neither occasion was
reference made to the
issue of costs – at least I have no note
of counsel doing so, and I am reasonably certain I would have done so
had they mentioned
the costs. The focus of the arguments was
concentrated on the powers of the trustees and others, and I presume
that the matter
of costs was simply overlooked;
(e)
the driving force behind defending the application (and for the
bringing of the previous
application), certainly appears to have been
Mr Dludla. The other respondents all entered appearances to defend
and made common
cause with him, and none withdrew to endeavour to
protect themselves against an order for costs. In addition, none of
the parties
made any attempt to use the assistance of government
officials or departments to attempt to resolve the disputes which had
arisen.
They were, of course, entitled to settle their disputes in
the courts, but then they cannot be heard to complain about the issue

of costs. Mr
Stokes
recorded at the outset of his argument
that the applicants sought no relief against the seventh to tenth
respondents. I do not intend
to make any order against the seventh to
tenth respondents. It would be in accordance with justice that I
direct the first six
respondents to pay the costs of the application;
and
(f)
if I am incorrect in either my assumption that the inclusion of costs
was erroneously
omitted in the order of the 10
th
December
2020, or in my assumption that counsel merely overlooked the matter
of costs in argument before me, and costs were deliberately
omitted
by agreement between the parties, then I am certain that the parties’
legal representatives will be able to settle
that issue without
returning to court.
[23]
I accordingly make the following order:
(a)
paragraphs 1.1, 1.2 and 1.3 of the rule
nisi
issued by this
court on the 10
th
December 2020, are confirmed as against
the first to sixth respondents. The remainder of the rule
nisi
is
discharged; and
(b)
the first to sixth respondents, jointly and severally, the one
paying, the others to be
absolved, are directed to pay the costs of
the application.
____________________
Lopes
J
Date
of hearings:

28
th
February 2022 and the 5
th
April 2022.
Date
of judgment:

17
th
May 2022.
For
the applicants:

A Stokes SC (instructed by Cox Yeats).
For
the respondents:

AC Camp (instructed by Wynne & Wynne Attorneys).