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[2019] ZAFSHC 150
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Matsau and Others v Mokhobo (993/2019) [2019] ZAFSHC 150 (16 September 2019)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
no: 993/2019
In
the matter between:
MALEFANE
PATRICK
MATSAU First
Applicant
MODUPE
JOHANNES
MPHATSOENYANE Second
Applicant
LELOKO
JAPHTA Third
Applicant
and
SUPING
NEPHTHALI
MOKHOBO Respondent
Coram:
OPPERMAN, J
Heard
:
12 September 2019
Delivered
:
16 September 2019
Summary:
Application for confirmation of
rule
nisi –
Mismanagement of trust.
ORDER
The
rule nisi
that
was issued on 4 March 2019 and as amended on 27 June 2019 is
confirmed and the respondent to pay the costs of the suit.
JUDGMENT
Opperman,
J
[1]
This is an opposed motion for the
confirmation of a
rule nisi
that was issued on urgent application. The relief sought is for a
final interdict.
[2]
The
atmosphere and tragedy of this case is shown in the founding
affidavit
[1]
wherein it was pointed out that at a recently convened meeting
attended by the 52 beneficiaries of the Boiteko Farming Trust various
persons indicated that they are so fed up with the situation
surrounding the Trust that they are willing to take matters into
their own hands and to resort to physical violence towards the
respondent.
[3]
Boiteko Farming Trust (the Trust) was
established in November 1997. The Department of Land Affairs
had granted funds to 124
households for purchase of land. The said
124 households have negotiated the purchase of the farms Catharina,
Tempe, Damplaas,
Portion 1 of Barseba and Populierhoek/Waterval.
Collectively the five farms are referred to as “Catharina”.
The heads
of the 124 households agreed that a trust should be
established and registered to receive the transfer of Catharina and
to hold
it for and on behalf of the members.
[4]
The main objects of the Trust are
incorporated in clause 4 of the Notarial Deed of Trust. The Trust was
constituted to:
4.1 Acquire rights in land, hold
and develop or improve and manage such land in common, wholly or
mainly for agriculture and residential
purposes and to actively
pursue such objectives for the benefit and on behalf of the members.
4.2 In the furtherance of the
achievement of the main objects, the Trust
shall:
4.2.1 carry on such activities as
are directly connected with the achievement of the main objects of
the Trust including the provision
of community facilities and the
establishment and carrying on of community programmes aimed at the
furtherance of agriculture production,
community life and the health
and welfare of members of the community;
4.2.2 improve the quality of life
of its members with reference to their broad social, economic,
cultural, educational and recreational
need; and,
4.2.3
secure, hold or acquire, develop and manage additional assets and
property, provided that no additional Trust Deed or amendments
to
this Trust Deed shall be required for the Trust to do so.
[5]
The Principle of Equality in clause 5
demands the utmost equality in the treatment of the members and
decrees against any discrimination
or distinction between the
members.
[6]
The project collapsed completely and the
Trust has fallen into disarray. It stands beyond doubt from the
papers before the court
that the respondent had taken over the assets
and is illegally appropriating it for his own benefit. The litigation
in this case
stems from this mishandling of what is supposed to be a
noble initiative to the indigent community.
[7]
The applicants managed to proof that for
some time the beneficiaries of the Trust discovered unauthorised
transactions involving
assets belonging to the trust. Various members
of the Trust have attempted to intervene by visiting the Catharina
Farm. Very often
the respondent would call the police, which would
result in people being refused access to the farms. This behaviour
indicate that
the respondent had seized for himself the assets of the
Trust and it involved the selling of cattle and implements and
renting
of farms.
[8]
Added to this is the uncontested facts that
the Trust has collapsed and is in shambles. The applicants are among
the beneficiaries
(members) of the Trust and the respondent has been
proven, beyond any doubt, to have been a former trustee and
chairperson of the
trust who resigned as trustee on 21 February 2012.
He has no authority whatsoever to take any action on behalf of the
Trust.
[9]
Worse is the fact that the Trust Deed
requires that a minimum of 18 trustees must serve at all times. The
trust has for some time
been in a situation of irresolvable deadlock.
This is primarily the result of the passing away of at least 8 of the
original trustees
on the board of trustees, the respondent’s
failure to call a general meeting to elect a new board of trustees
and the respondent’s
efforts to prevent alternative means of
creating a new board of trustees.
[10]
The proven conduct of the respondent and
collapse of the project and trust as described is the sole cause and
the reason for an
order granted on urgent application on 4 March
2019:
1. The Uniform Rules of Court
relating to service and process be dispensed with in order that this
application be heard as one of
urgency in terms of Rule 6(12).
2. A
rule nisi
be issued
calling on the respondent on 30 May 2019 at 9h30 or so soon
thereafter as the matter may be heard to show cause why the
following
should not be ordered:
a.
The respondent be interdicted from
disposing or otherwise dealing in any manner whatsoever with any
assets of the Boiteko Farming
Trust;
b.
The respondent be ordered to pay any and
all funds belonging to the Boiteko Farming Trust into the following
bank account:
FNB: Account number: [...]; and
c.
The respondent be ordered to pay the costs
of this application.
3. Paragraphs 2(a) and 2(b) above
serve as an interim interdict with immediate effect pending the final
determination of the application.
4. This
application and order be served on the respondent and the Master of
the High Court in terms of the rules of the court.
[11]
The Master of the High Court apparently
caused the Trust’s bank account referred to above to be frozen
in 2015 but for income.
[12]
On 27 June 2019 after some postponements
the following clause was added to the
rule
nisi
:
“
7.
All funds that are received by respondent from Mr JF Odendaal shall
be paid into the Boiteko Farming Trust account: FNB, account
[….].”
[13]
The applicant’s
locus
standi
is vested in their capacity as
beneficiaries that are also in clause 3.6 of the Trust Deed defined
as members. Their
locus standi
is cemented in the fact that the respondent admits that the second
and third applicants are beneficiaries of the Trust. In terms
of the
Trust Deed the Trust is to be administered for the benefit of its
beneficiaries. They have a real and clear right to prevent
the
unlawful alienation of Trust assets by way of a direct action. The
application is brought by the trust beneficiaries in their
own right
and not on behalf of the trust. In
Gross
& others v Pentz
[1996] ZASCA 78
;
1996 (4) SA 617
(A) at 632B-D it was held that:
“
The
question of locus standi is in a sense a procedural matter, but it is
also a matter of substance. It concerns the sufficiency
and
directness of interest in the litigation in order to be accepted as
litigating party (Wessels en Andere v Siziodale Kerkkantoor
Kommissie
van die Nederduitse Gereformeerde Kerk, OVS 1978 (3) 5A 716 (A) 725H;
Cabinet of the Transitional Government for the
(Territory of South
West Africa v Eins
1988 (3) SA 369
(A) 388B-E). The sufficiency of
interest is "altyd afhanklik van die besondere feite van elke
afsonderlike geval, en geen
vaste of algemeen geldende reëls kan
neergele word vir die beantwoording van die vraag nie ..."(Jacobs
en 'n Ander v
Waks en Andere
[1991] ZASCA 152
;
1992 (1) SA 521
(A) 534D). The general
rule is "that it is for the party instituting proceedings to
allege and prove [my underlining] that
he has locus standi, the onus
of establishing that issue rests upon the applicant.”
[14]
The three requirements for the granting of
a final interdict are that the applicant must show a clear right,
there must exist an
actual injury or reasonably apprehended injury
and there must not be any prospect or existing other satisfactory
relief. The facts
of the case proven meet the principles.
[15]
A concern of the court is clause 2(b) of
the March 2019-order. It reads that:
“
The
respondent be ordered to pay any and all funds belonging to the
Boiteko Farming Trust into the following bank account: FNB:
Account
number: […];”
Counsel
for the applicants indicated that it is clearly understood that
ownership of
“
any and
all funds belonging to the Boiteko Farming Trust”
will have to be verified in law before the order
can be executed.
ORDER
[16]
In result the
rule
nisi
that was issued on 4 March 2019
and as expanded on 27 June 2019 is confirmed and the respondent to
pay the costs of the suit.
[17]
A copy of this judgement to be served on
the Master of the High Court in terms of the Rules of Court by the
applicants.
___________________
M. OPPERMAN, J
Appearances
For
applicant: Advocate HJ van der
Merwe
Chambers,
Bloemfontein
Instructed
by: Symington de Kok
Bloemfontein
For
respondent: Mr. L Mokhele
LM Mokhele
Attorneys
Bloemfontein
[1]
Paragraph 40.