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[2014] ZAGPPHC 378
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Mdhuli v Legoabe N.O. and Others (41762/13, 41763/13) [2014] ZAGPPHC 378 (17 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG NORTH
PROVINCIAL DIVISION
DATE:
17 June 2014
CASE
NO:41762/13
CASE
NO:41763/13
In
the matter between:
DAVID
MDHULI
......................................................................................................................
Applicant
and
LEGOGORU
DANIEL KUTUMPA LEGOABE
NO
.................................................
First
Respondent
MATIME
ERNEST MOHLALA
NO
......................................................................
Second
Respondent
JOHANNES
MMAMOGOBO
NO
.............................................................................
Third
Respondent
KABISHI
ISSAC KGAWANE
NO
............................................................................
Fourth
Respondent
SPILLIAM
HEZEKIEL SIBANYONI
NO
.................................................................
Fifth
Respondent
PORTIA
TEBOGO MAKWANA
NO
.............................................................................
Six
Respondent
MBONI
MARIA MWANZA
NO
.............................................................................
Seventh Respondent
CHAUKE
NORMAN MABASA
NO
..........................................................................
Eight Respondent
APRIL
KABINI
NO
......................................................................................................
Ninth
Respondent
BAHLASELE
JOHANNES THULARE
NO
..............................................................
Tenth
Respondent
COMMISSION
ON RESTITUTION OF LAND
RIGHTS
.................................
Eleventh
Respondent
MASTER
OF THE NORTH GAUTENG HIGH
COURT
.....................................
Twelfth
Respondent
JUDGMENT
HASSIM
AJ
[1]
I heard two applications between the same
parties on the same day, save that the Master of the High Court and
and the Commission
on Restitution of Land rights are not parties to
the application under case number 41763/13 (“
the
Rental application
”). While
there was no formal application for the consolidation of the two
applications they were argued as if they
had been consolidated.
The facts are common to both applications. It is therefore
convenient to deal with both the
applications in one judgment.
[2]
I will refer to the first to tenth
respondents in the Trust application collectively as “
the
respondents
”. Where I intend
referring to a specific respondent, I will do so. Insofar as the
application under case no. 41762/13 (“
the
Trust application
”) is concerned
the eleventh respondent will be referred to as “
the
Commission
” and the twelfth
respondent as “
the Master
”.
[3]
In
the Trust application the applicant seeks the deregistration
[1]
of the Masakaneng Community Trust (“
the
Trust
”),
alternatively the deletion of certain provisions thereof, the
creation of a Communal Property Association and an order
compelling
the Master to report on the problems it has experienced with the
Trust.
[4]
In the Rental application the applicant
seeks firstly an order interdicting the respondents from collecting
rental in respect of
“rooms” on the Land which belongs to
the Trust and secondly, he seeks an order compelling the respondents
to account
for the rent collected and to pay such to him.
THE
TRUST APPLICATION
[5]
The Trust application is based on the
provisions of section 13 of the Trust Property Control Act, No. 57 of
1988 (“
the TPCA”
)
.
Section 13 provides as follows:
“
If
a trust instrument contains any provision which brings about
consequences which in the opinion of the court the founder of a
trust
did not contemplate or foresee and which-
“
(a)
hampers the achievement of the object of the founder; or
(b) prejudices
the interest of beneficiaries; or
(c)
is in conflict with the public
interest;
the court may, on
application of the trustees or any person who in the opinion of the
court has a sufficient interest in the trust
property, delete or vary
any such provision or make in respect thereof any order which such
court deems just, including an order
whereby particular trust
property is substituted for particular other property, or an order
terminating the trust.”
[6]
It is common cause that the Masakaneng
Community (“
the Community
”)
lodged a successful claim for restitution of land in terms of the
Restitution of Land Rights Act, No 22 of 1994 (“
the
Restitution Act
”). The
claim was lodged was in respect of Farm 133, Groblersdal Location,
Klipbank, in the Mpumalanga province. The
applicant describes
the farm as portion 69 of portion 2 Farm Klipbank 26 JS, District
Groblersdal. The latter description
is supported by the title
deed. The parties are however
ad
idem
as to the land which is the
subject of dispute. I will henceforth refer to the farm in
question as “
the Land
”.
[7]
It is common cause that the Land has been
registered in the name of the Masakaneng Community Trust (“
the
Trust
”) which was registered by
the Master on 18 November 2004. The Master appointed the
respondents as the trustees.
The trustees so appointed would
have been “
the initial trustees
”
contemplated in clause 13.5 of the Trust Deed.
[8]
In terms of clause 13.6 of the Trust Deed,
trustees hold office for a period of three years from the date of
their election until
the third annual general meeting. The
trustees (save, of course, for the initial trustees) have to be
elected at an annual
general meeting. The first annual general
meeting had to be held within 12 months of the date of the
registration of the
Trust. Subsequent annual general meetings
have to be held within three months of the end of each financial year
ending on
the last day of February each year.
[9]
The applicant alleges that the Trust was
formed "
secretly by the
respondents
". By this I
understand the applicant to be saying that the respondents formed the
Trust without the authority and/or
approval of the Community.
According to the applicant, after the Land had been restored, the
Community took a decision that
the Land should be held by a communal
property association registered in terms of the Communal Property
Associations Act, No. 28
of 1996 (“
the
CPA Act
”).
[10]
The respondents do not dispute that after
the Land had been restored there were discussions surrounding the
formation of a Communal
Property Association which was intended to be
called the Masakaneng Communal Property Association (“
the
MCPA
”). This is evidenced
by a constitution signed by the first, second, fourth fifth and tenth
respondents on 9 November
2012. It is not apparent from the
papers whether a provisional communal property association
contemplated in the CPA was
registered or not. What is however
clear is that no CPA was registered in terms of the CPA Act. The
respondents aver
that a decision had been taken in consultation with
the government to register a trust instead of a CPA. The trust deed
which was
subsequently registered had been drafted by officials in
the employment of the government.
[11]
Apart from the allegation that the
respondents formed the Trust without the authority of the Community,
the applicant alleges that
respondents’ term of office as
trustees has expired and therefore they are no longer Trustees. The
respondents concede
that on the expiration of their term as trustees
(3 years after the registration of the Trust) they had not been
re-elected at
an annual general meeting. They claim to have remained
Trustees because the beneficiaries of the Trust had mandated them to
continue
so acting. I refrain from expressing a view as to
whether the Trustees had been duly appointed or not. The respondents
aver
that on 14 August 2008 at a general meeting a decision was taken
to extend their term of office. It is not clear from the
papers
whether they were re-elected after this. Again I refrain from
expressing a view as to the validity of their election
or
appointment.
[12]
There is a strong suggestion by the
applicant that the respondents are acting in their own interests and
not in the interests of
the Community.
[13]
The respondents oppose the application on
among other things the applicant’s
locus
standi
to seek an order in terms of
section 13 of the TPCA. They contend that the applicant is not
a person with interest in the
trust property. They say this on
the basis that the applicant is not a beneficiary of the Trust. In
light of the view I have
taken as to the fate of this application I
am not required to determine whether the applicant has an interest of
the kind that
section 13 of the TPCA envisages.
[14]
In my view this application can be disposed
of on the question whether all interested parties have been joined in
this application.
[15]
On the applicant's own version, the Trust
has no duly elected Trustees (because their term of office has
expired). Moreover the
Trustees are alleged to be furthering their
own interests and not those of the Community and in any event the
formation of the
Trust was not with the consensus of the Community.
If any of this allegations are true (I am not expressing a view
thereon)
then it seems to me that the Trustees are conflicted.
In such circumstances it cannot be said with any degree of certainty
that they represent the beneficiaries. If indeed the Trustees
have not been duly authorised to hold the office of trustee,
there is
no one that has the authority to act on behalf of the Trust.
[16]
There is no dispute that a Trust has been
registered and some 116 persons have been identified by the Regional
Land Claims Commissioner:
Limpopo (“
the
RLCC
”) as beneficiaries. If
the Trustees are not recognised as such in law then they cannot
represent these beneficiaries.
[17]
The
beneficiaries have an interest in the trust property. They are after
all recognised as persons with “
a
right in land
”
as contemplated in the the Restitution Act. The termination of
the Trust affects their rights
[2]
in the Land registered in the name of the Trust. After all
restitution is made only to those persons who have a “right
in
land”.
[18]
Even if these beneficiaries confirm that
the Trustees do represent them, the problem does not rest. It appears
from a letter under
the hand of the RLCC dated 19 January 2009 that
the list of beneficiaries may be incomplete and in addition that
there is a dispute
as to whether the listed beneficiaries have any
rights in or to the Land.
[19]
This was a letter was addressed to the
Municipal Manager of the Elias Motsoaledi Municipality, Groblersdal
in the following terms:
“
the...
Regional Land Claims Commissioner... attaches the beneficiary list
for the Masakaneng Trust. The RLCC: Limpopo would
however like
the Municipality to note the following:
1.1
That the Masakaneng Trust is
currently experiencing conflicts which apparently led to the
formation of the concerned group
1.2
That the RLCC: Limpopo is busy
attempting to resolve the above-mentioned conflicts;
1.3
That the beneficiary list seem [sic]
not accepted by all, and that the RLCC: Limpopo is yet to facilitate
official adoption of the
list by members of the Masakaneng Trust,
which would still accommodate those who have not yet registered, but
qualifies[sic] for
registration in terms of
section 2
of the
Restitution of Land Rights Act, No 22 of 1994
, as amended.
2.
Therefore, the Municipality is requested
to handle the beneficiary list with the understanding of the
above-hinted information in
order to avoid expansion of conflicts
around the attached beneficiary list.
”
[20]
Evidently there is on the one hand members
of the Community who do not accept that all those who are reflected
as beneficiaries
are entitled to be beneficiaries. On the one
hand, there are other members who assert that they ought to be listed
as beneficiaries
and have not been. To my mind it is beyond
doubt that the members of the Community and beneficiaries of the
Trust must be
afforded an opportunity to participate in these
proceedings.
[21]
I am not satisfied that all parties with a
direct and substantial interest are before me.
[22]
I raised my concern as to the non joinder
of interested parties with the applicant’s counsel, Mr Kela.
No postponement
was sought to allow the applicant to join all
interested parties. To the contrary, the application was fully
argued.
[23]
I debated with Mr Kela whether a rule
nisi
calling upon all interested parties to
show cause on the return date why an order should not be made as
sought by the applicant
would remedy the situation. Mr Kela
submitted that it would. Mr Eastes, who appeared for the
respondents contended
on the other hand that if I were to find that
all interested parties had not been joined, the application should be
dismissed.
[24]
I have a discretion to raise
mero
motu
the non-joinder of parties where I
am of the view that persons who are not parties to the litigation may
be affected prejudicially
by my order. The members of the
Community and all beneficiaries of the Trust are such persons.
They must be heard.
[25]
How this can effectively be achieved is
another thing. I also have to consider whether this application
should be dismissed,
postponed or whether a
rule
nisi
should be issued.
[26]
It is unlikely that this application can be
served personally on each and every interested person. It seems
to me inevitable
that some sort of substituted service will have to
occur. I do not have any information as to what manner of
service would
ensure that this application is brought to the
attention of the interested parties . It seems to me that not
all members
of the Community, who could qualify as beneficiaries
reside on the Land.
[27]
I have considered whether I should postpone
this application, order the applicant to pay the wasted costs and to
launch a substantive
application for the joinder of all interested
parties, together with a request for directions as to service of this
application.
[28]
This will however enure to the prejudice of
the respondents. The application has been fully argued.
Even if I am to
couple the order of postponement with an order that
the applicant must pay the wasted costs on an attorney own client
scale, the
respondents will still be out of pocket insofar as those
costs which do not qualify as wasted costs are concerned. There
is in my opinion no reason why the respondents should be burdened
with any costs, more especially since they are sued in their
representative capacities. Nor, is there a reason for the Trust
to have to bear the costs.
[29]
The applicant was at liberty to apply for a
postponement when I first raised my concern. The order which I
intend making will
not preclude the applicant from in the future
pursuing the relief in this application, when and after adequate and
effective notice
has been given to all interested parties.
[30]
I am therefore inclined to dismiss the
application for want of the joinder of necessary parties. In
light of the order I intend
making, it is not necessary for me to
consider the merits of the application nor, the respondents’
challenge to the applicant’s
locus
standi
.
[31]
Insofar as costs are concerned there is no
reason why they should not follow the result.
[32]
Consquently, the application is dismissed
with costs.
THE
RENTAL APPLICATION
[33]
The applicant alleges that he is owner of
“rooms” situated on the Land, which he has let out.
He claims
that the respondents have “ordered” his tenants
to pay to them the rent due which is due to him (in terms of a lease
agreement).
[34]
Apart from the allegations that the
applicant is the owner of the rooms, let the rooms out, that he had
been receiving rental in
the past and that the rental is now being
collected by the respondents, the affidavit is bare. I have
considered this application
against the facts in the “Trust”
application. In any event the argument proceeded in this
manner.
[35]
The respondents deny that the applicant is
the owner of the property and aver that the Trust is the registered
owner thereof. In
support of this they attach a copy of the title
deed. They deny that the applicant is entitled to occupy the rooms.
They contend
that the only persons who are entitled to occupy the
premises (i.e. the Land owned by the Trust) are beneficiaries of the
Trust
The respondents’ case is that the applicant is
unlawfully occupying the property.
[36]
The respondents claim that the applicant is
one of several individuals who invaded the Land and occupied it
without the consent
of the trustees (acting on behalf of the trust)
and sold it to unsuspecting purchasers. The applicant disputes this.
[37]
In response to an allegation by the
respondents that the trustees intend bringing an application for the
eviction of persons who
unlawfully occupy the property, the applicant
states that the respondents were not “entitled to have obtained
my eviction
order” and that an application for the rescission
of that judgement is pending. From this I infer that the
applicant
has been evicted on the basis that he is in unlawful
occupation and that a court has ordered him to vacate the property.
The fact that an application for rescission is pending does not
affect the the applicant’s status.
[38]
The applicant has been found to be in
unlawful occupation. It follows that the applicant has no right
to let out the premises
and has no right to collect “rent”
from illegal occupiers. Even if I am wrong in this regard, the
applicant has
the onus to show that his occupation is lawful.
This onus has not been discharged.
[39]
I am not satisfied that the applicant has
demonstrated that he has a right to occupy the premises. This being
so the applicant is
also not entitled to collect any rental. In the
circumstances the applicant is not entitled to the relief he seeks.
[40]
Consequently, the application is dismissed
with costs.
__________________________________
S K HASSIM
Acting Judge:
Gauteng North High Court
10
June 2014
Date
of Hearing: 10 March 2014
Date
of Judgment: 11 June 2014
For
applicant: Adv DZ Kela.
For
respondent: Adv Eastes
[1]
Section
13 of the Trust Property Control Act, No. 57 of 1988, refers to an
order terminating a trust. I accept that the
applicant seeks
to achieve this. I therefore read the word deregistration as
“termination”.
[2]
As
defined in section 1 of the Restitution Act. This is confirmed
by the restitution of the Land in terms of the Restitution
Act.