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[2019] ZALMPPHC 40
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Malatji v Ledwaba NO and Others (925/2019) [2019] ZALMPPHC 40 (8 August 2019)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: 925/2019
In
the matter between:
THETELE
JOSEPH MALATJI
: APPLICANT
[ID
No. [….]]
And
MAPANYA
LAZARUS LEDWABA N.O
:
1
ST
RESPONDENT
[ID
No. [….]]
[In
his capacity as independent trustee of the MAMPHOKU MAKGOBA COMMUNITY
TRUST, Trust registration No. IT8699/2004 (“the
Trust”),
acting on behalf of MAPONYA LEDWABA INC, Registration No.
2002/022888/21]
GISELA
STOLA N.O
:
2
ND
RESPONDENT
[ID
No. [….]]
[In
her capacity as independent trustee of the Trust, acting on behalf of
GISELA GRUNWALD ATTORNEYS INC, Registration No. 2016/109692/21]
THE
MASTER OF THE HIGH COURT, GAUTENG
DIVISION
PRETORIA
: 3
RD
RESPONDENT
THE
MINISTER FOR RURAL DEVELOPMENT
: 4
TH
RESPONDENT
AND
LAND REFORM
PROVINCIAL
SHARED SERVICES CENTRE
: 5
TH
RESPONDENT
OF
THE DEPARTMENT OF RURAL DEVEOLOPMENT
AND
LAND REFORM, LIMPOPO PROVINCE
THE
REGIONAL LAND CLAIMS COMMISSIONER
: 6
TH
RESPONDENT
LIMPOPO
PROVINCE
REFILWE
IRENE
LETSOALO
: 7
TH
RESPONDENT
[ID
No. [….]]
MOTLOKWA
SUZAN MOJAPELO
:
8
TH
RESPONDENT
[ID
No. [….]]
ZILI
MASETLA
: 9
TH
RESPONDENT
PHUTIANE
CURRY LETSOALO
: 10
TH
RESPONDENT
MANKUROANE
MODIBA
: 11
TH
RESPONDENT
ALI
MAAKE
: 12
TH
RESPONDENT
VERONICA
SEBOLWANA MOTSWI
: 13
TH
RESPONDENT
FRANS
MOKOENA KUBJANA
: 14
TH
RESPONDENT
JIMMY
KUBJANA
: 15
TH
RESPONDENT
DAVID
MEHLAPE-MALATJI
: 16
TH
RESPONDENT
MAITE
MOSERI
: 17
TH
RESPONDENT
MARY
NTOAMPE
: 18
TH
RESPONDENT
JANE
MAHASHA
: 19
TH
RESPONDENT
MOKOPA
WILLIAM MONYAMA
:
20
TH
RESPONDENT
JUDGMENT
SEMENYA J:
[1] The issues between
the parties in this application revolve around the order granted by
the Supreme Court of Appeal in
Makgoba and Others v Ledwaba NO.
and others (054/2018)
[2018] ZASCA 181
(4 December 2018) (the SCA
order). The applicant, being of the view that the respondent failed
to comply with the order as it stands,
approached the Gauteng
Division of the High Court, Pretoria, with an urgent application in
which he sought certain interdictory
orders and mandamus and
structural interdict against the respondent. The application was
struck off the roll for want of jurisdiction.
[2] It is apposite to
quote the order of the SCA in its entirety in view of the nature of
the issues between the parties. The SCA
ordered as follows:
“
1. The
appeal is upheld to the extent that the order of the court a quo is
replaced with what follows in paragraphs 2 to 7 below.
2. It is
declared that the first to twelfth appellants’ term of office
as trustees terminated with effect from 26 June 2013,
and any
subsequent letters of authority issued to the first to twelfth
appellants, to date of this order are set aside.
3. The first
and second respondents are to convene and hold a general meeting of
the Trust within 60 calendar days of date of this
order for the
purpose of nominating and appointing a new Board of Trustees, which
will not include the first, second and third
applicants, who are
ineligible to stand for election.
4. Only those
beneficiaries who appear on the list of 603 beneficiaries (Annexure
A14, record, pp196-225) are entitled to attend
and vote at the
general meeting ordered 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 to in paragraph 3 above will take place
in
accordance with the relevant provisions of the Trust Deed.
7. The newly
appointed Board of Trustees shall within 60 calendar days of date of
their appointment, after the elections 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, which general meeting
shall be conducted with the oversight of the Master and
the
Department of Rural Development and Land Reform.
8. The
appellants to pay the costs of this appeal”.
[3]
On the 12 January 2019, the 1
st
and 2
nd
respondents in this matter, who were similarly cited as such in the
SCA, indeed convened a general meeting for the purposes of
electing
new trustees as directed in Clause 3 of the SCA order. It is common
cause that the applicant was appointed as one of the
15 trustees. The
applicant is challenging the procedure followed by the first and
second respondents during the election and is
seeking the following
orders:
“
2
Pending the holding of a general meeting and the appointment of new
trustees as referred to in paragraph 4 and 5 below:
2.1 The 3
rd
respondent is interdicted and restrained from issuing letters of
authority to the Applicant and the 7
th
-20
th
Respondents (“ the elected trustees”) in terms of section
6(1) of the Trust Property Control Act 57 of 1988 (“the
TPCA”) authorising them to act as trustees of the Mamphoku
Makgoba Community Trust [Trust Registration No. IT8699/2004
(“the Trust”);
2.2 1
st
and 2
nd
Respondents are directed to continue to act as the
only trustees of the Trust;
2.3 In the
alternative to paragraph 2.1 and 2.2 above, and only in the event of
the 3
rd
Respondent having already issued letters of
authority to elect trustees in terms of section 6(1) of the TPCA:
2.3.1 The
elected trustees are interdicted and restrained from acting as
trustees of the Trust;
2.3.2 The 3
rd
Respondent is directed to withdraw the letters of authority issued to
the elected trustees and to issue letters of authority to
the 1
st
and 2
nd
Respondents;
2.3.3 In the
alternative to paragraph 2.3.2 above, the decision of the 3
rd
Respondent to issue letters of authority to the elected trustees is
reviewed and set aside in terms of section 23 of the TPCA and
the 3
rd
Respondent is directed of issue new letters of authority to the 1
st
and 2
nd
Respondents;
2.3.4 The 1
st
and/or 2
nd
Respondents are directed to continue to act as
the only trustees of the Trust;
3. The voting
process and/or the election are declared to be unlawful and/or
irregular and are set aside;
4. The 1
st
and 2
nd
Respondents are directed to convene and hold a
general meeting of the Trust within 60 (sixty) calendar days of the
date of this
order for the purpose of nominating and appointing a new
board of trustees which are eligible to stand for election;
5. The 1
st
and 2
nd
Respondents are directed to follow the following
procedure at the general meeting as referred to in paragraph 4 above;
5.1 Only the
603 beneficiaries/claimants whose names appear on the 603 list are
entitled to attend and vote at the general meeting
ordered in
paragraph 4 above;
5.2 No person
is allowed to vote by way of proxy;
5.3
nominations for new trustees must be received in writing 5(five) days
prior to the holding of the meeting referred to in paragraph
4
above by the 1
st
and 2
nd
Respondents, which
nominations must be in writing and signed by the proposer, the
seconder and the nominated trustee;
5.4 The names
of both the proposer and the seconder must appear on the 603 list as
a beneficiary /claimant;
5.5 603
ballot papers must be prepared, numbered consecutively, which will be
handed to those present at the meeting and who are
entitled to cast a
vote;
5.6 Each of
the 603 persons entitled to vote will be entitled for 15 or less of
the nominated candidates;
5.7 Any
person voting for more than 15 of the nominated candidates will be
deemed to have cast a spoilt vote;
5.8 The 1
st
and 2
nd
Respondents are to publish the results of the
election within 48 hours of it being held;
6. Attorney
Jaco Oberholzer is appointed as independent attorney (“the
independent attorney”) for the purposes of observing
and
reporting to this Court within 5 (five) days of the date of the
general meeting provided for in paragraph 4 above in which
report the
independent attorney is to set out precisely how this order was
carried out by the 1
st
and 2
nd
Respondent;”
[4]
The applicant alleges that the 1
st
and 2
nd
respondents did not conduct the election in accordance with the
relevant provisions of the Trust Deed and the SCA order. The
respondents
argued that neither the SCA order nor the Trust Deed
prescribe the procedure to be followed in an election of new
Trustees. It
was further submitted that the relief sought by the
applicant, if granted, will have the effect of varying/amending the
SCA order
and that this Court, as the lower Court, do not possess the
power to amend or to interpret the SCA order. In the main, the
applicant
challenges the 1
st
and 2
nd
respondents’ decision to allow voting by way of proxies on
behalf of the beneficiaries who were absent from the general meeting
and to allow the proxies to vote without written authority in the
form of documents signed by those who were absent. The applicant
further takes issue with the 1
st
and 2
nd
respondents’ decision to allow only one vote per voter despite
the fact that 15 trustees were required. According to the
applicant
the 1
st
and 2
nd
respondents, in so doing,
violated the SCA order and the Trust Deed.
[5]
In the applicant’s heads of argument, it was submitted that
this Court should follow the approach laid down by Wallis
JA in Natal
Joint
Municipal Pension Fund v Endumeni Municipality 2012(4) SA
593 (SCA)
at para [18] in its interpretation of the SCA order and
the Trust Deed. The Court stated that:
“
[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 business
like 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.”
and at
[25] Which of
the interpretational factors I have mentioned will predominate in any
given situation varies. Sometimes the language
of the provision, when
read in its particular context, seems clear and admits of little if
any ambiguity. Courts say in such cases
that they adhere to the
ordinary grammatical meaning of the words used. However that too is a
misnomer. It is a product of a time
when language was viewed
differently and regarded as likely to have a fixed and definite
meaning, a view that the experience of
lawyers down the years, as
well as the study of linguistics, has shown to be mistaken. Most
words can bear several different meanings
or shades of meaning and to
try to ascertain their meaning in the abstract, divorced from the
broad context of their use, is an
unhelpful exercise. The expression
can mean no more than that, when the provision is read in context,
that is the appropriate meaning
to give to the language used. At the
other extreme, where the context makes it plain that adhering to the
meaning suggested by
apparently plain language would lead to glaring
absurdity, the court will ascribe a meaning to the language that
avoids the absurdity.
This is said to involve a departure from the
plain meaning of the words used. More accurately it is either a
restriction or
extension of the language used by the
adoption of a narrow or broad meaning of the words, the selection of
a less immediately
apparent meaning or sometimes the correction
of an apparent error in the language in order to avoid the identified
absurdity.”
[6]
With specific reference to the interpretation of a Court order,
counsel for the applicant referred this Court to the decision
in
Firestone
South Africa (Pty) Ltd v Genticuro
AG
1997 (4) SA 298
(A) at 304D-F
(Genticuro) as cited with approval by the Constitutional Court in
Electoral
Commission v Mhlope
2016 (5) SA 1
(CC) at [33]
where
it was stated that:
“
On
interpreting court orders, authority tells us:
“
The
basic principles applicable to construing documents also apply to the
construction of a court’s judgment or order: the
court’s
intention is to be ascertained primarily from the language of the
judgment or order as construed according to the
usual, well-known
rules. . . . [A]s 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. If, on such a reading, the
meaning of the judgment or order
is clear and unambiguous, no
extrinsic fact or evidence is admissible to contradict, vary,
qualify, or supplement it.”
This
approach has been endorsed by this Court in
Kriegler J in
Ex
Parte Women’s
Legal Centre
added
that the interpretation of a court order “
entails
determining the legal context in which the words in the order were
used”.
On
the basis of Genticuro above, I will without further ado, reject
counsel for the 1
st
and 2
nd
respondents’
submission that this court has no power to interpret the judgment of
the SCA. I however agree with the argument
that as the lower court I
cannot substitute or amend its order with my own.
[7]
Clause 15 of the Trust Deed provides that “
the
Trustees shall hold an Annual General Meeting of the Trust
within 6(six) months of the end of the Financial Year which
Beneficiaries shall be entitled to attend , having been given due as
thereof contemplated paragraph 15.5.5 below, for the
purposes
of:
15.1.3 the
election of Trustees by Beneficiaries present and entitled to vote in
terms of the Trust Deed”
Counsel
for the applicant argued that the Trust Deed requires only the
beneficiaries who are present at the General Meeting to vote
and that
there is therefore no room for voting by proxy. It was further
submitted the SCA order is silent about voting by proxy.
It was on
this basis that the applicant is contended that the court should find
that the 1
st
and 2
nd
respondents failed comply
with the SCA order.
[8]
As stated in Genticuro, the court is enjoined to read the entire SCA
judgment, the order and the reasons for arriving at it
so as to
establish what the intention of the SCA was. The applicant in this
matter was one of the initial Trustees elected after
the coming into
being of the Mamphoku Makgoba Community Trust. These initial trustees
held onto office despite the expiration of
their term, the action by
the Master of the High Court to remove them from office as well as
the court order granted by Mabuse
J in the Pretoria High Court. The
SCA stated as follows with regard to the challenges occasioned by the
refusal of the initial
Board of Trustees to vacate the office:
“
[3]
The major challenges in advancing the objects of the Trust in favour
of the community were as follows: allegations of maladministration
of
the Trust properties by the initial trustees, dissatisfaction amongst
the intended beneficiaries with the failure of the initial
trustees
to hold Annual General Meetings to elect new trustees who would
identify and verify members of the Trust who had an interest
in and
would entitled to vote on issues related to the Trust. All these
allegations have been compounded by the appellants holding
onto power
despite the existence of a final court order made on 24 November 2015
declaring that their term of office had expired
due to effluxion of
time at the end of what was the three years maximum period for
holding trusteeship as provided for in clause
6.4 of the Trust Deed.
At paragraph
[16] it is stated that:
[16]
It is clear from what is set out above that the Trust under the
administration of the appellants has been dysfunctional and
has for
more than six years not served the needs of the beneficiaries it was
created for and the community at large. The appellants
abdicated
their fiduciary responsibility and had to be removed from their
office of trusteeship to allow new trustees to be elected
and run the
Trust as it befits their office. To allow their continued presence in
the office of the Trust would perpetuate the
Trust being improperly
administered and will be detrimental of the welfare of the
beneficiaries, contrary to the provisions of
clause 6.4 of the Trust
Deed and the existing order of Mabuse J”.
[9]
It is evident from the two paragraphs of the SCA judgment quoted
above that the intention of the Court was nothing other than
to put
to an end the sufferings of the beneficiaries of the Trust and the
community at large at the hands of the applicant and
the other
erstwhile trustees. Its intention was for the beneficiaries to reach
a solution in the best way possible. The respondents
argued that the
list of beneficiaries was compiled in 2005 and that most of the
people whose names appear on that list have perished.
It was argued
that a proper understanding of the list of beneficiaries is that 603
referred thereto and on the SCA judgment represent
households. This
argument is based on the fact that there is another number which is
in excess of a thousand (1087) which specifically
refers to the
number of beneficiaries. According to the respondents the SCA
intended that it should be the1087, who are the actual
beneficiaries,
who should have the right to vote for the new trustees.
[10]
The first page of the document that contains the list of
beneficiaries reads as follows:
“
Summary
of findings:
4.1 TOTAL NUMBER OF
CLAIMANTS
= 603
4.2 TOTAL NUMBER OF
BENEFICIARIES
= 1987
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
It
is my view that the above summary depicts the number of the
beneficiaries whom the SCA intended to bring their sufferings to
an
end.
[11]
On the issue of voting by proxy, it is common cause that when the
general meeting commenced, it was apparent that there were
three
rival groups in attendance
i.e
a group that represented
the members of the so-called Steering Committee, the initial trustees
and members to the traditional
council. The 1
st
and 2
nd
respondents, entrusted with the duty to hold elections in terms of
the SCA order, held a discussion with representatives of the
different groups. It was then agreed, as per the notice of the
General Meeting, that those persons whose names appear on the list
and who have since perished, will be represented by a person
nominated by the family of the deceased. It was again agreed that
other beneficiaries, who were for one reason or another, unable to
attend may vote by proxy as well. In short the procedure adopted
at
the General Meeting was agreed upon by those who were in attendance
present at the meeting. It is an undisputed fact that the
applicant
was nominated and subsequently elected as a trustee at the very same
meeting through the procedure agreed to by most,
if not all, of those
who were in attendance. It is not the applicant’s case that he
raised an objection as early as the date
on which the notices were
issued, inviting beneficiaries who are referred to as 603 households
and not 603 individuals, to a General
Meeting, until the end of the
voting process.
[12]
In his answering affidavit, the applicant does not deny the
respondents’ averments that those who attended the meeting,
which would invariably include him, agreed to the procedure adopted
by the 1
st
and 2
nd
respondents. The applicant’s submission that the agreement
itself cannot be used to amend the SCA order is found to be without
merits. In
Bothma-Both
Transport (Edms) v Bothma & Seuns Transport (Edms) Bpk
2014 (2)
SA 494
(SCA) ([2014]
1 All SA 517
;
[2013] ZASCA 176)
para12 it was stated that:..
“
the
process of interpretation does not stop at a perceived literal
meaning of those words, but considers them in the light of all
relevant and admissible context, including the circumstances in which
the document came into being. The former distinction between
permissible background and surrounding circumstances, never very
clear, has fallen away. Interpretation is no longer a process
that
occurs in stages but is essentially one unitary exercise.”
T
he
1
st
and 2
nd
respondents contended that their decision was guided by the preamble
to the Trust Deed. It is indeed so that the said preamble
clearly
states that the Trust is founded on the agreement of the
beneficiaries of the Trust. On this basis I find that the SCA
order
envisaged a situation where the majority, if not all of the
beneficiaries, will agree on who is to be elected as members
of the
Board of Trustees.
[13]
The applicant alleges that he is not the only beneficiary who is not
satisfied with the procedure adopted by the 1
st
and 2
nd
respondents during election. He has attached the affidavits of these
other people to the founding affidavit. The respondents questioned
the validity of the affidavits in that, among others, some of them
are the respondents in this application. The respondent argued
that
if that was the case, the applicants would have joined them as
applicants and not as respondents. Be that as it may, I am
of the
view that this fact does not take the matter any further in that,
just as the applicant, none of them objected to the procedure
from
the beginning when the notices which authorised voting by proxy were
issued up until the time of election.
[14]
With regard to the proposed procedure as contained in the prayers in
the notice of motion, I am in agreement with the respondents’
argument that the correct procedure is for the applicant to approach
the SCA and not this Court. Although the applicant refers
to this
specific prayer as a structural interdict, I am of the view that
granting the order will have the results of amending the
SCA order,
the powers that I certainly lack. I however agree that the 3
rd
respondent had no powers to authorise the 1
st
and 2
nd
respondents to act as trustees as this is contrary to clause 3 of the
SCA order. The remedy in this case will be to withdraw the
authority
which will not in any way render the election invalid. In any event
the Trust will remain with 15 trustees, the number
of trustees
required in terms of the Trust Deed.
[15]
In the results I find that the application has no merits and stands
to fail. I therefore make the following order:
i.
The application is dismissed;
ii.
The 3
rd
respondent is ordered to withdraw the letters of
authority issued to the 1
st
and 2
nd
respondents;
iii.
The applicant is ordered to pay the costs of this application.
M.V SEMENYA
JUDGE OF THE
HIGH COURT;
LIMPOPO
DIVISION.
APPEARANCES:
ATTORNEYS FOR THE
APPLICANT : THOMAS & SWANEPOEL INC.
COUNSEL FOR THE
APPLICANT : ADV. A.G
SOUTH SC
ATTORNEY FOR THE
RESPONDENT : MPOYANA LEDWABA ATT.
COUNSEL FOR THE
RESPONDENT : ADV. K.A WILSON
:
ADV. V.M MAGWANE
RESERVED
ON
: 25 MAY 2019
JUDGMENT
DELIVERED ON
: 08 AUGUST 2019