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[2022] ZALMPPHC 29
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Maja and Others v Trustees for the time being of Reboile Trust and Others (7805/2020) [2022] ZALMPPHC 29 (10 June 2022)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO: 7805/2020
REPORTABLE: NO
OF INTEREST TO THE
JUDGES: YES
REVISED.
In
the matter between:
SEROBI
MILTON MAJA
FIRST
APPLICANT
CHANCHI
HANS LEKOTA
SECOND
APPLICANT
PHAUWE
FRANS RADEBE
THIRD
APPLICANT
LESIBA
SHADRACK MALEKA
FOURTH
APPLICANT
MATOME
GODFREY MASEKWAMENG
FIFTH
APPLICANT
KATLEGO
SOLOMON LEGODI
SIXTH
APPLICANT
and
THE
TRUSTEES FOR THE TIME BEING OF THE
FIRST
RESPONDENT
REBOILE
TRUST (IT2495/2001)
JOEL
MOKAKA LEGODI N.O
SECOND
RESPONDENT
MATHETHI
THOMAS LEGODI N.O
THIRD
RESPONDENT
RAESIBE
ANNA RIKHOTSO N.O
FOURTH
RESPONDENT
MADIMETJA
HERMAN LEGODI N.O
FIFTH
RESPONDENT
MATSOBANE
JOAS LEGODI N.O
SIXTH
RESPONDENT
MASHIBA
WILLIAM KGANYAGO N.O
SEVENTH
RESPONDENT
MICHAEL
LEGODI N.O
EIGHTH
RESPONDENT
SALPHINA
LEGODI N.O
NINTH
RESPONDENT
THE
MASTER OF THE HIGH COURT, PRETORIA
TENTH
RESPONDENT
ANGLO
PLATINUM MINE
ELEVENTH
RESPONDENT
FIRST
NATIONAL BANK, A DIVISION OF
TWELFTH
RESPONDENT
FIRSTRAND
BANK LIMITED
JUDGMENT
MAKGOBA
JP
[1]
The Applicants brought an application against the Respondents for the
following relief
in Part B of the Notice of Motion:
1.1.
Removing the Second to the Ninth Respondents as
trustees of the Reboile Trust (IT2495/2001);
1.2.
Directing the Master to appoint and authorise the
Applicants to act as the trustees of the Reboile Trust (IT2495/2001);
1.3.
Directing the Master to endorse its records
accordingly and issue the Applicants with letters of authority within
7 (seven) days
of the granting of the final order;
1.4.
Directing the Second to the Ninth Respondents to
hand over to the Applicants all documents, banking and administrative
instruments
relating to the administration of the Reboile Trust
(IT2495/2001) within 5 (five) days of the
granting
of the final order.
[2]
The upshot of the relief claimed in the main proceedings (Part B)
comprise of the removal of
the Second to the Ninth Respondents (“The
Trustee Respondents”) as Trustees of Reboile Trust (First
Respondent); furthermore
an order authorising the Master of the High
Court to appoint Applicants as trustees as their replacement.
Initially the Applicants
approached this Court on an extremely urgent basis in Part A of the
Notice of Motion for an interim relief
pending the finalisation of
the principal proceedings in Part B.
The urgent relief sought
was for an order interdicting the First to Ninth Respondents from
dealing with, including withdrawing,
disbursing funds in a banking
account of the Reboile Trust held at First National Bank, Polokwane
Branch.
The
urgent application in Part A was struck from the roll for lack of
urgency.
[3]
The claim for an order authorising the Master to appoint the
Applicants as trustees is precipitated
upon an election apparently
held by the beneficiaries of the Reboile Trust on 15 April
2018, for the election of trustees.
The Trustee Respondents oppose
the application on a variety of grounds, which separately and/or
jointly, militate against the grant
of the relief claimed in these
proceedings.
The
Applicants contend that the Trustee Respondents have resigned but
refuse to vacate their office as trustees.
Factual Background
[4]
During the year 1961 the Reboile Community was forcefully removed
from certain portions
of the Farm Palmiefontein No 24 KS district
Pietersburg during the times of apartheid.
On or during 2001 the
community successfully reclaimed their land in terms of the
Restitution of Land Rights Act 22 of 1994
. As part of the settlement
of the land claim a notarial deed of trust and donation was
registered on 30 March 2001. The land was
therefore registered in the
name of the Reboile Trust. The initial trustees of the Reboile Trust
were:
1.
Lesiba Phillip Legodi;
2.
Joel Mokaka Legodi;
3.
Raisibe Anna Rikhotso;
4.
Matheti Thomas Legodi;
5.
Sarah Makhaukani Mashele;
6.
Madimetja Herman Legodi; and
7.
Malesela Isaac Mapeka.
[5]
On or during 2005 new trustees of the Trust were appointed and
received their letters
of authority from the Master of the High
Court, Pretoria.
The
following persons were authorised by the Master to act as trustees of
the Reboile Trust (the First Respondent):
1.
Serobi Milton Maja;
2.
Michael Lati Mashego;
3.
Matsobane Joes Legodi;
4.
Mashiba William Kganyago;
5.
Michael Legodi; and
6.
Salphina Legodi.
[6]
On or during July 2005 the High Court, Pretoria granted an order in
terms of which
Mr. Dinga Rammy Nkwashu and Mr. Johannes Frederik
Moolman were appointed as trustees of the First Respondent. Pursuant
to the said
court order the Master issued letters of authority and
authorised the following persons to act as trustees:
1.
Serobi Milton Maja;
2.
Joel Mokaka Legodi;
3.
Lesiba Phillip Legodi;
4.
Raisibe Anna Rikhotso;
5.
Matheti Thomas Legodi;
6.
Madimetja Herman Legodi;
7.
Sarah Makhaukani Mashele;
8.
Michael Lati Mashego;
9.
Matsobane Joas Legodi;
10.
Mashiba William Kganyago;
11.
Michael Legodi;
12.
Salphina Legodi;
13.
Dinga Rammy Nkwashu; and
14.
Johannes Frederik Moolman.
[7]
The Sixth Respondent, Matsobane Joas Legodi tendered his resignation
as a trustee
of the First Respondent on 31 July 2015.
[8]
At the annual general meeting of the trustees and beneficiaries held
on 15 April 2018
the following persons tendered their resignation as
the trustees of the First Respondent:
1.
Serobi Milton Maja;
2.
Salphina Legodi;
3.
Michael Legodi;
4.
Michael Lati Mashego;
5.
Malesela Isaac Mapeka;
6.
Sarah Makhaukani Mashele;
7.
Mashiba William Kganyago; and
8.
Johannes Frederik Moolman.
[9]
At the same annual general meeting of the 15 April 2018 the
beneficiaries resolved
that the First to Sixth Applicants and one
Moshothi David Legodi be appointed as the new trustees of the First
Respondent (the
Trust).
[10]
On or about 12 April 2019 Dinga Rammy Nkwashu tendered his
resignation as a trustee. On the 4
th
of December 2019
Moshothi David Legodi renounced his appointment as a trustee.
[11]
On or during August 2019 the Applicants appointed their erstwhile
attorneys, Mapulana Maponya Incorporated,
to assist with the process
of obtaining letters of authority on their behalf.
It is
noted that since their election as trustees at the meeting of 15
April 2018, the Applicants had not been issued with letters
of
authority by the Master.
Their
erstwhile attorneys engaged in several correspondence with the Master
of the Court, Pretoria requesting the Master to issue
the Applicants
with letters of authority. It is common cause that the Master never
issued the Applicant with letters of authority
as requested.
[12]
On or about 11 September 2019 the Master addressed a letter to the
former attorneys of the Applicants
requesting a number of documents,
amongst others the original written resignations of the trustees and
original resolution signed
by all the parties nominating the new
trustees.
Of
importance, the Master demanded to know of the whereabouts of the
following trustees:
1.
Lesiba Phillip Legodi;
2.
Raisibe Anna Rikhotso;
3.
Matheti Thomas Legodi;
4.
Madimetja Herman Legodi; and
5.
Michael Lati Mashego.
The Master further
indicated that if the abovementioned trustees were still alive and
did not resign, they were empowered to appoint
additional trustees
and also convene a meeting for the purpose of confirming the
appointment of new trustees. The Master referred
to clauses 6.1 and
6.2 of the Deed of Trust.
I shall revert to the
provisions of clauses 6.1 and 6.2 later in my judgment.
Whether the Applicants
were duly elected or appointed as Trustees
[13]
It is common cause that an election of trustees was held by the
beneficiaries at their meeting of the
15 April 2018 and that the
Applicants were so elected as new trustees of the First Respondent.
It is
furthermore common cause that the Applicants were not issued with
letters of authority by the Master pursuant to their election
as
trustees by the beneficiaries on 15 April 2018.
The
issue before me is whether the beneficiaries are empowered in terms
of the Deed of Trust of the First Respondent to elect or
appoint
trustees.
[14]
Clauses 6.1 and 6.2 of the Deed of Trust provide as follows:
“
6.
Cessation of office of trustees and appointment of new trustees
6.1.
The trustees may appoint additional Trustees.
6.2.
In the event of a resignation, permanent
incapacity or death of anyone of the Trustees, then the remaining
Trustees may appoint
another Trustee in place of such Trustee who has
resigned, become permanently incapacitated or died, in his place or
stead subject
to confirmation of not less than 75% (Seventy Five
Percent) of the Beneficiaries present at a meeting called for by the
remaining
Trustees for purposes of confirmation of the appointment of
such Trustees.”
It is clear from the
provisions of clause 6 of the First Respondent’s Deed of Trust
that the beneficiaries have no powers
to elect or appoint trustees.
The Trustees in office
have such powers to appoint additional trustees.
The Deed of Trust upon
which the Applicants rely does not entitle nor authorise an election
of trustees by a community or beneficiaries
as seemingly contended by
the Applicants.
[15]
As to the lawful appointment of a trustee, it must at the outset be
noted that the office of trustee
is created by a trust instrument and
is to be filled as specified in the trust instrument, or by the
Master, or by the Court.
In
Metequity
Ltd & Another v NWN Properties Ltd & Others
[1]
it was said:
“
A
trustee is defined as any person who acts as trustee by virtue of an
authorisation under
section 6.
That section envisages in
section 6(1)
that the Master’s authorisation to act as trustee is granted to
persons appointed as trustees in a trust instrument, by the
Master or
by the Court. The office of trustee is therefore created by the trust
instrument and filled thereby or by the Master
or the Court. The
Trust Property Control Act, however, as a regulatory and control
measure, provides in section 6 that such existing
trustee shall not
act without authorisation by the Master.”
[16]
In the present case the Applicants were elected or appointed by the
beneficiaries contrary to the provisions
of the Deed of Trust. It
follows inexorably that the Applicants could not have been validly
elected in accordance with the trust
deed.
[17]
The Supreme Court of Appeal judgment in
Fesi
v Ndabeni Communal Property Trust
[2]
is appropriate in the present case. The SCA had to deal with a
question whether persons elected as trustees of a trust established
to administer and develop property received as a result of a land
restitution claim (like in the Reboile Trust) were properly appointed
in terms of the trust deed and further whether the Master was correct
in refusing to issue letters of authority.
Navsa
JA said the following at paragraph 69:
“
To
sum up, the election of the respondents was for the reasons set out
above, not in accordance with the trust deed. That alone
disentitle
the respondents to the relief sought and granted. It was dispositive
of the dispute in the Court below and is of this
appeal. This was a
case in which there were bright flashing lights and sirens wailing
against the grant of letters of authority,
which the Master rightly
heeded. For all of the reasons set out above, the Master’s
refusal to issue letters of authority
was clearly justified.”
Whether the Applicants
are entitled to seek removal of Trustees
[18]
The Applicants’ request for the removal of
the Trustee Respondents as trustees of the First Respondent
must be
based on whether they have any interest in the Trust as
beneficiaries. Short of being beneficiaries, the Applicants have
no
interest in the Trust which justify their being entitled to seek the
relief claimed. It is only if the Applicants are beneficiaries
that
they would be entitled to seek the removal of the trustees. The issue
of the Applicants’ status as beneficiaries would
therefore be
determinative of their rights to seek the relief claimed.
[3]
[19]
This actually brings to the fore the issue as to whether all the
Applicants before this Court have
the necessary
locus standi
to initiate the present proceedings against the Respondents.
The Trust Deed alludes
to, and identifies its beneficiaries, as persons whose names appear
in the list attached thereto and entitled
“Reboile Trust, List
of Beneficiaries”. The list attached to the Applicants’
founding affidavit is incomplete
as it only comprises of 5 of the 12
pages. The names of the Applicants do not appear on the incomplete
list of beneficiaries furnished
by them.
In
their answering affidavit the Trustee Respondents attached as
Annexure “RAS2” a complete list of beneficiaries
comprising
of the whole 12 pages.
[20]
The Applicants do not appear on the list of beneficiaries of the
Reboile Trust that is attached to
the founding affidavit as well as
the complete list of beneficiaries furnished by the Trustee
Respondents in Annexure RAS2.
The
First Applicant states in his replying affidavit that some Applicants
became beneficiaries by virtue of being heirs of the beneficiaries
listed in Annexure “RAS2”. Justifying his own status as a
beneficiary the First Applicant explained himself as a nephew
of
Phillip Legodi, the latter being a beneficiary and listed as number
88 on the list of beneficiaries appearing on Annexure “RAS2”.
Regarding
the Second to Sixth Applicants, none of them filed any replying
affidavit or confirmatory affidavit thereto to explain
their status.
I
accordingly make a finding that the Second to Sixth Respondents
failed to show that they are the beneficiaries of the Reboile
Trust.
Resignation
of the Trustees
[21]
I have already dealt with provisions of clauses 6.1 and 6.2 of the
Deed of Trust regarding the appointment
of additional trustees in the
event of the resignation of trustees.
[4]
Clause
6.4 of the Deed of Trust provides that any Trustee shall, without an
Order of Court, be entitled, in writing to resign from
his office.
It
is common cause that the Sixth Respondent tendered his resignation as
a trustee on 31 July 2015 and the Seventh, Eighth and Ninth
Respondents together with the First Applicant tendered their
resignation on 15 April 2018. Needless to say that the First to Fifth
Respondents never resigned.
[22]
Clause 6.5 of the Deed of Trust provides that:
“
6.5.
There shall at all times be at least 5 (five) Trustees in Office for
the purpose of the valid exercise of the powers and discharge
of the
duties of the Trustees in terms hereof, provided that pending the
appointment of a successor or successors in this clause,
provided the
Trustees remaining in office shall be empowered to act in the
preservation of and necessary formal administration
of the Trust
Assets.”
It is therefore axiomatic
that after the “mass resignations” of the Trustees on
15 April 2018 the
remaining Trustees could exercise their powers in
terms of clause 6 of the Deed of Trust to appoint additional
trustees. There
is no provision in the Deed of Trust that prohibits a
trustee who resigned from being re-appointed. In any event the First
Applicant
was purportedly re-elected as a trustee on 15 April 2018
shortly after his resignation.
[23]
Accordingly, in the present case and in accordance with the Trust
Deed of the Reboile Trust 5 (five)
trustees are sufficient for the
trust to take decisions and thus appoint additional trustees.
[5]
[24]
Section 21 of the Trust Property Control Act 57 of 1988 provides that
whether or not the trust instrument
provides for the trustee’s
resignation, the trustee may resign by notice in writing to the
Master and ascertained beneficiaries
who have legal capacity or to
the tutors or curators of the beneficiaries of the trust under
tutorship or curatorship.
Thus a
trustee who wishes to resign must comply with the formalities set out
in the Deed of Trust, if any and section 21 of the
Act.
Appointment of the
Trustee Respondents as Trustees
[25]
There are letters of authority dated 03 December 2020 which bear the
names of the Second to Ninth Respondents
(i.e. the Trustee
Respondents) as the current trustees of the First Respondent, the
Reboile Trust.
These
letters of authority were duly issued by the Master.
The
Applicants seem to question why such letters of authority were issued
to the Trustee Respondents when, according to them, the
Second to
Ninth Respondents had resigned.
[26]
The answer to this query is provided hereunder.
[27]
The Second Respondent, JOEL MOKAKA LEGODI states the following in the
answering affidavit:
“
50.
The Applicants’ efforts came to a naught as I, together with
the other trustees who refused to resign, resolved to approach
the
other trustees to reconsider their decisions prior to the
resignations been accepted by the remaining board of trustees. In
this regard I refer the Honourable Court to the confirmatory
affidavits attached hereto and marked “RAS4”.
51. We were greatly
successful in this regard and persuaded the trustees who had resigned
to reconsider, and we did not approach
the First Applicant to
reconsider his resignation because his resignation was greatly
welcomed.
52. The Master
ultimately approved the request of the trustees and presented us with
new letters of appointment, and we actioned
the removal of the First
Applicant from the banking profile of the Trust.”
The Second Respondent has
attached to the answering affidavit the confirmatory affidavits of
the Third to Ninth Respondents who
confirm the deponent’s
version about the procedure they had followed to obtain their letters
of authority.
It is significant to note
that the Second Respondent is one of those trustees who remained when
the others resigned on 15 April
2018.
[28]
It is important to note the contents of paragraph 51.14 of the First
Applicant’s founding affidavit
where he states the following:
“
In
2018, verifications of the beneficiaries were conducted in the
regions and before the mass meeting was held on 15 April 2018.
For
some reasons best known by Mr. Matsobane Joas Legodi, he refuses to
relinquish his position even though his resignation letter
is on
record including those of his associates.
Out
of 14 (fourteen) Trustees, 9 (nine) including himself resigned in
order to allow the beneficiaries to elect new trustees and
I was
re-elected
.”
[29]
The contents of the First Applicant’s affidavit clearly shows
that after the “mass resignation”
of the trustees on 15
April 2018, the remaining trustees continued to function until they
appointed additional trustees as stated
by the Second Respondent in
his answering affidavit referred to in paragraph [27] hereinabove.
Pursuant
to the aforesaid appointment the Master duly issued letters of
authority in favour of the Trustee Respondents on 03 December
2020.
Accordingly, this Court finds that the appointment of the Second to
Ninth Respondents (the Trustee Respondents) as the present
trustees
of the Reboile Trust was lawfully made.
Removal from Office of
Trustee
[30]
The Applicants seek an order for the removal of the Trustee
Respondents from the latter’s office
as trustees of the Reboile
Trust. In their papers the Applicants based their case on the ground
that the Trustee Respondents have
resigned and were never reappointed
at the beneficiaries meeting of the 15 April 2018.
The
question is whether the Applicants have, on that basis, made out a
case for the removal of the Trustee Respondents from office.
[31]
It is trite that the Court has inherent power to remove a trustee
from office at common law.
This
power also derives from section 20 (1) of the Trust Property Control
Act 57 of 1988.
Section
20 (1) of the Act provides that a trustee may, on the application of
the Master or any person who has 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.
[32]
Although the Act does not spell out the grounds for the removal of a
trustee, the authors of
Honore’s
South African Law of Trusts
[6]
assert that the general principle which has crystallised over time in
the Court’s exercise of its common law jurisdiction
(and now
echoed in section 20 (1) of the Act) is that a trustee will be
removed from office when continuance in office will prevent
the trust
being properly administered or will be detrimental to the welfare of
the beneficiaries.
[33]
The overriding question is always whether or not the conduct of the
trustee imperils the trust property
or its proper administration.
Consequently,
mere friction or enmity between the trustee and beneficiaries will
not in itself be adequate reason for the removal
of the trustee from
office – see in this regard
Tijmstra
NO v Blunt – Mackenzie NO & Others
[7]
.
In my
view even mere conflict amongst trustees themselves (like in the
present case) will not be a sufficient reason for the removal
of a
trustee at the suit of another.
[34]
It must be emphasised that whilst a trustee is in law required to act
with care and diligence, the
decisive consideration is the welfare of
the beneficiaries and the proper administration of the trust and the
trust property. The
crucial fact is that the Court may order the
removal of a trustee only if such removal will, as required by
section 20 (1) of the
Act, be in the interest of the trust and its
beneficiaries.
See
Gowar v Gowar
(149/2015)
[2016] ZASCA 101
(9 June 2016)
.
[35]
Accordingly, to succeed in the relief that the Applicants seek
against the Trustee Respondents namely,
their removal as trustees,
they must prove that the respondents’ conduct of which they
complain imperils the trust property
or its administration or that
the removal will otherwise be in the interests of the trust and its
beneficiaries.
[36]
In the present case the Applicants have failed to establish any
ground for the removal of the Trustee
Respondents save to rely on
their resignation and not having been re-elected by the beneficiaries
at the meeting of 15 April 2018
when the Applicants were apparently
elected.
The
Applicants’ prayer for an order removing the Trustee
Respondents from office is doomed to fail.
Conclusion
[37]
The Applicants have failed to make out a case for the relief claimed.
With regard to costs, there is
no basis to deviate from the general
rule that costs follow the result. The Trustee Respondents asked that
the application be dismissed
with costs on the scale as between
attorney and client. The Respondents argued that the Applicants
persisted with litigation, at
a costly consideration of the Reboile
Trust and ultimately the beneficiaries.
[38]
The issue of costs is in the discretion of the Court. In my view the
Respondents have not made out
a case for a punitive costs order in
the circumstances of this case. However, the Reboile Trust should be
fully indemnified against
the expenses of these proceedings. The
beneficiaries of the Trust should not be disadvantaged by payment of
the legal costs out
of the Trust funds.
Accordingly,
the Applicants should bear the legal costs in their personal
capacities.
[39]
For all the reasons set out above, the following order is granted:
1.
The application is dismissed.
2.
The Applicants are to pay the costs of the
application jointly and severally, the one paying the other to be
absolved.
E
M MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO DIVISION
APPEARANCES
Heard
on
:
27 May 2022
Judgment
delivered on
:
10 June 2022
For
the Applicants
:
Adv F J Nalane SC
Instructed
by
:
Fisha Attorneys
c/o
DDKK Inc
For
the Respondents
:
Adv M E Manala
Instructed
by
:
Legodi Attorneys
[1]
1998
(2) SA 554
(T) at 557 G – H.
[2]
Fesi
v Ndabeni Communal Property Trust
(411/2017
& 412/2017)
[2018] ZASCA 33
(27 March 2018).
[3]
Ras
& Others NNO v Van Der Meulen and Another
2011
(4) SA 17
(SCA) at paragraph 9.
[4]
See
paragraph [14] hereof above.
[5]
See
Land
and Agricultural Bank of South Africa v Parker and Others
2005
(2) SA 77 (SCA).
[6]
Cameron,
De Waal, Wunch, Solomon & Khan,
Honore’s
South African Law of Trusts
5ed
(2002)
at 223.
[7]
2002
(1) SA 459
(T) at 473 E –G.