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[2013] ZAGPPHC 58
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Silinda NO and Others v Makhubela and Others (57206/2010) [2013] ZAGPPHC 58 (15 February 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 57206/2010
DATE:15/02/2013
In
the matter between:
MESHACK
THEMBINKOSI SILINDA
N.O
..............................................................
First
Applicant
SIMEON
NGOMANE N.O
…...................................................................................
Second
Applicant
LAZARUS
ZITHA
N.O
..............................................................................................
Third Applicant
(In
their capacities as Trustees of the Mjejane Trust IT 6335/04)
DAVID
ZOMA MAKHUBELA
….............................................................................
First
Respondent
DAVID
SHINGO MAKHUSHE
…...........................................................................
Second
Respondent
DAVID
SUBUSISO NDLOVU
…...........................................................................
Third
Respondent
DUNISA
MOSES SILABELA
….............................................................................
Fourth
Respondent
BOY
MKHATSHWA
…............................................................................................
Fifth
Respondent
JUDGMENT
MAKGOKA, J:
[1]
This judgment has taken inordinately long to deliver. A combination
of factors, including personal circumstances, contributed
to this.
Those factors have been discussed with, and appreciated by, the Judge
President. I regret any inconvenience caused to
the parties by the
delay.
[2]
The issue in this application is the identity of the rightful
beneficiaries of a land restituted in terms of the
Restitution of
Land Rights Act 22 of 1994
. The applicants, who are the trustees of
the Mjejane Trust (the Trust), seek confirmation of a verification
list of beneficiaries
of the Trust. The application concerns land
rights of the Lugedlane community (the community) near Barberton in
Mpumalanga Province.
[3]
The community was forcibly removed from their land, Tenbosch and
surrounding farms, in September/October 1954. Kwa-Lugedlane
comprises
two villages, Mangweni and Steenbok and the surrounding communal
lands, spread over some 14 788 hectares. The community
still resorts
under the jurisdiction and authority of the Ngomane of Lugedlane
traditional authority, which had maintained such
jurisdiction over
the community before the removals. Pursuant to a claim in terms of
the
Restitution of Land Rights Act 22 of 1994
, the land was
restituted to the community.
[4]
Subsequent to the restitution, a Trust was created. The land was
transferred to the Trust as a vehicle to hold the land on behalf
of
the community. The applicants are the trustees of the Trust. On 12
December 2008 Sentinel Corporate Fiduciary Services (Pty)
Ltd and
other persons, were appointed as trustees by this court. On 20 May
2009 this court suspended some of the initial trustees,
and appointed
the three applicants were appointed as interim trustees of the Trust
by this court.
[5]
The relevant clauses of the Trust Deed with regard to the
beneficiaries are not particularly helpful in identifying who the
beneficiaries of the Trust are. Clause 2.8 defines the beneficiaries
as follows:
‘
Beneficiaries
shall collectively mean those persons as per list attached hereto
marked ‘B’ as well as those persons
appointed as
Beneficiaries in terms of this Trust Deed, membership vesting in the
individuals and not households.’
Clause
7 provides:
7.1
The Initial Beneficiaries shall be those persons as per the schedule
attached hereto marked “B”.
7.2
Application to become a beneficiary by individuals other than those
listed in the schedule shall be made to the Trustees. The
Trustees
shall submit such applications to a general meeting of the Trust,
which shall decide whether to accept or reject an application
to
become a beneficiary’.
[6]
Annexure ‘B’ referred to above, was controversial and
created a need for a process to verify the individuals who
would be
the rightful beneficiaries of the Trust. As a result, on 12 December
2008 the Trust sought, and obtained, an order from
this court in
terms of which it was authorised to appoint an independent consultant
to carry out a beneficiary verification exercise
on its behalf, and
thereafter to bring an application to this court for an order
confirming such beneficiaries to be the lawful
beneficiaries of the
Trust. The independent consultant was identified in the court order
as Dr AT Fischer.
[7]
It is common cause that the verification exercise was not undertaken
by Dr Fischer, as ordered by this court. Instead, an entity
called
Mhlaba Image Consulting (Mhlaba) was appointed by the trustees for
that purpose. The reasons for the nonappointment of Dr.
Fischer are
controversial. The trustees state that they did not appoint him as
the office of the Regional Land Claims Commission
in Nelspruit ‘felt’
that he may be conflicted in the matter due to the fact that he had
previously conducted verifications
of the beneficiaries of the Trust
which were not accepted by the general membership of the community.
[8]
The office of the Commission was of the view that another person who
had never been involved in the previous verifications be
appointed,
hence the appointment of Mhlaba. This is disputed by the respondents.
Procedurally, the trustees should have sought
leave from this court
to vary the court order as regards the identity of the consultant.
However, as it would be clear later, nothing
really turns on this
aspect. Mhlaba undertook a verification exercise and compiled a
report dated 26 July 2010 (‘Mhlaba report’).
[9]
On 5 October 2011 the trustees launched an ex parte application for
the confirmation of the beneficiaries as described in the
Mhlaba
report. The first to fifth respondents, on 1 September 2011,
successfully intervened in the ex parte application to oppose
such
confirmation, and brought a counter-application. In order to avoid
confusion resulting from the counter-application, I refer
to the
applicants in the main application as ‘the trustees’ and
to the respondents (the applicants in the counter-application)
simply
as ‘the respondents).
[10]
The respondents oppose the confirmation of the beneficiaries as
identified in the Mhlaba report on the basis that most of the
individuals in the report do not form part of the community to whom
the land has been restituted. In their counterapplication,
the
respondents seek confirmation of a limited list of 1038 families,
initially identified by Mhlaba. In the alternative, they
seek
amendments to the Trust Deed in order to allow for appropriate
verification processes of members of the community in future.
The
relief sought by the respondents in the counter-application is
opposed by the trustees.
Condonation
[11]
At the outset, I should consider the respondents’ application
for late filing of their answering affidavit in the main
application,
as well as their counter-application. The respondents delivered their
answering affidavit, and their counter-application,
almost 6 months
out of time. They seek condonation therefor, in a substantive
application, which is opposed by the applicants.
Despite not
condoning the respondents’ late delivery of their answering
affidavit and counter-application, the applicants
have delivered a
conditional replying affidavit in the main application, and an
answering affidavit in the counter-application
respectively. This,
they made it very clear, was by no means a concession that the above
should be accepted by the court. They
remain opposed to the admission
of both.
[12]
The background to the condonation application is this. Leave to
intervene, as stated already, was granted to the respondents
on 1
September 2011. On 8 September 2011, in compliance with the court
order granting leave to intervene, the applicants furnished
the
respondents with a copy of the confirmation application, together
with a list of the beneficiaries verified in the Mhlaba report.
In
that letter, the respondents were requested to deliver their
answering affidavit within 15 days from the date of receipt of
the
letter. There was no response to the letter.
I
may mention en passant that the order granting leave to intervene did
not set the time-frame for the respondents to deliver their
answering
affidavit. I will revert to this aspect later in the judgment.
[13]
On 24 February 2012 the trustees’ attorneys served the
respondents’ attorneys with a notice of set down, enrolling
the
matter for hearing on 12 April 2012. On 6 March 2012 the respondents
delivered their answering affidavit in the confirmation
application.
On 14 March 2012 the trustees delivered a notice in terms of Rule 30
of the Uniform Rules of Court, in which the applicants
raised the
issue of the late delivery of those papers without an application for
condonation. The respondents were given 15 days
from the date of the
notice - that is up to 5 April 2012, to remedy the cause of the
complaint. The application for condonation
was only served on 11
April 2012, without any explanation for the delay.
[14]
The affidavit in support of the condonation application had been
deposed to by Mr. Richard Spoor, the respondents’ attorney
of
record. Mr. Spoor proffers the following reasons for the late
delivery of the answering affidavit: (a) it was difficult for
him to
prioritise finalization of the papers for financial reasons (he is
acting pro bono on behalf of the respondents) and that
the papers are
‘prolix and difficult’, as a result of which he had to
fit in this non-fee paying work in between fee-paying
work (b) he had
sought advice from senior counsel whom he could not ‘rush’
as he was also doing it pro bono. For this
reason, counsel took some
time before he gave furnished advice.
[15]
In answer to the second reason, the applicants disputed that the
advocate mentioned by Mr. Spoor ever gave any opinion in this
matter,
but in another matter during 2005, and totally unrelated to the
present matter. The applicants in fact, attached a copy
of that
written opinion. In reply, Mr. Spoor admitted that, but explained
that that opinion, ‘formed part of the advice that
he (the
advocate) gave me’, and that he discussed the matter on
‘numerous occasions over the period while I was drafting
the
answering papers and grappling with the legal issues’.
[16]
Counsel for the applicants, in their written submissions and orally,
strongly criticised Mr. Spoor’s explanation, submitting
that
the explanation amounted to an admission that he (Mr. Spoor) had
tried to mislead the court and urged me quite forcefully,
to visit
such conduct with a punitive costs order, to demonstrate the court’s
displeasure. As to the first ground, counsel
pointed out that Mr.
Spoor knew fully well when he accepted instructions that he was not
to receive remuneration for the work,
and could not use that to
justify non-compliance with the rules of this court.
[17]
The above points are well-taken. Simply put, the explanation by Mr.
Spoor is unconvincing, and was correctly criticised by
the
applicants’ counsel. Mr. Spoor should not have accepted
instructions in the first place if he was not certain that he
would
give proper attention to the matter. Once a practitioner has accepted
instructions, whether pro bono or for remuneration,
he or she is
under an abiding duty to the client, to execute the mandate promptly
and with reasonable skill.
Anything
short of that could, in suitable circumstances, render a
practitioner’s conduct justiciable by his or her regulatory
professional body.
[18]
Having said that, I bear in mind that lack of proper explanation is
not the only consideration. There are other factors to
be considered,
too, to determine whether condonation should be granted or not. See
in this regard Federated Employers Insurance
CO Ltd v McKenzie
1969
(3) SA 360
(A), where the following apposite remarks were made at
362G-H:
‘
In
consideration petitions for condonation under Rule 13, the factors
usually weighed by the Court include the degree of non-compliance,
the explanation therefor, the importance of the case, the prospects
of success, the respondent’s interest in the finality
of his
judgment, the convenience of the court and the avoidance of
unnecessary delay in the administration of justice... The cogency
of
any such factor will vary according to the circumstances, including
the particular rule infringed”
[19]
In the present case, I am of the view that lack of proper explanation
is far outweighed by the other factors. The delay was
not too
inordinate. In addition, the case is clearly of considerable
importance, not only to the parties, but to the broader public,
as it
concerns a constitutionally-mandated land restitution process. The
respondents’ case (both in the opposition to the
confirmation
of the verification report and in the counter-application) is not a
hopeless or a frivolous one. The court is not
inconvenienced as all
sets of affidavits are before court, and therefore a need for a
postponement does not arise. It is furthermore
essential for the
administration of justice that this matter be decided having taken
into consideration all the views of interested
parties. As would
appear later when I consider the verification process was marred by
violence and intimidation, and the exclusion
of the respondent’s
answering papers, and deciding the matter only on the trustees’
application, is likely to cause
further instability in the community.
While not condoning the use of violence, one has to adopt a sensible
and pragmatic approach,
given the emotive nature of land ownership in
the country.
[20]
I am therefore satisfied, and find, that condonation should be
granted, respectively, for the late filing of the respondents’
answering affidavit in the confirmation application, and the
respondents’ counter-application. That brings me to the merits
of the applicants’ confirmation application and the
respondents’ counterapplication, which I consider in turn.
The
confirmation application
[21]
As stated in earlier, the trustees did not appoint Dr. Fischer, as
directed by the court order, but Mhlaba, for the reasons
fully set
out in para [7] above. In their application, the trustees support the
findings and recommendations of the Mhlaba report,
in particular the
verified list of beneficiaries, and pray that the list be accepted as
a ‘true reflection of the households
and beneficiaries’
of the Trust. Accordingly, they seek this court’s order
confirming the list as reflecting the rightful
beneficiaries of the
Trust. The trustees further submit that based on the Mhlaba report,
there was participation by all interested
parties in the verification
process, and that no one stood to be prejudiced by the confirmation
of the beneficiary list in the
Mhlaba report.
[22]
The respondents’ opposition to the confirmation of the
verification report is premised on two grounds that (a) process
did
not comply with the court order dated 18 December 2008 (b) the
process was flawed.
[23]
Before I deal with the contentions of the parties, it is prudent to
set out how Mhlaba went about the verification process,
and what I
consider to be the salient and relevant features of the Mhlaba
report. A panel of 41 elders from the community was elected
to assist
with the verification exercise, representing each of the affected
wards as they existed before the removals. Several
meetings were held
from 24 September 2009 to 25 April 2010 at various venues in the
area. There were a number of challenges, e.g.
threats of violence
against panel members, lack of cooperation among community
representatives, factionalism, etc. As a result,
the process was far
from being perfect.
[24]
The meetings held on 13 and 14 November 2009, bear particular
relevance to the dispute between the parties. It is on the day
that
the panel identified and registered a total of 1038 families as the
legitimate beneficiaries of the Trust. The respondents
were satisfied
with that list and declared that there should be no further
verification meetings as, according to them, all the
affected
beneficiaries had registered. The panel therefore produced an interim
list of verified beneficiaries with a total of 1038
families.
[25]
Despite this, the panel proceeded to hold further verification
meetings, during which members of the community were invited
to check
whether all the names of the qualifying beneficiaries had been
properly registered. During these meetings some people
claimed that
they had been left out as they had not been available during the
previous verification meetings, for various reasons.
The panel
resolved to set a further date to accommodate this group. Further
meetings were held, culminating in the final verification
meeting
which took place from 23-25 April 2010. After these meetings, a
further list of 1539 beneficiaries was added to the initial
1038.
[26]
In summary, the Mhlaba report identified a total of 2577 households
to be true beneficiaries of the Trust. Of this, the respondents
allege that only 1038 families should be confirmed as the initial
beneficiaries of the Trust. The trustees seek the court’s
approval of all 2577 households. This is the nub of the dispute
between the parties. The respondents therefore contest the legitimacy
of the additional 1539 who were added to the initial list of 1038
referred to above. I turn now to consider the respondents’
two
grounds of opposition to the confirmation of the verified list.
Non-compliance
with the court order
[27]
The respondents, very correctly, contend that the trustees were not
entitled to merely substitute Dr. Fischer of their own
volition
without seeking a variation of the court order. Having said that, I
am not inclined to set aside the appointment of Mhlaba,
and disregard
its report, for three main reasons. First, the respondents have not
applied for the setting aside of the appointment
of Mhlaba. It could
equally be argued that the trustees themselves were enjoined to seek
condonation for their unilateral substitution
of Dr. At Fischer with
Mhlaba. That may be so, but the objective reality is that Mhlaba has
compiled a report, with which both
sets of adversaries agree (the
list of 1032).
[28]
Second, and flowing from the first, the respondents, on the contrary,
seek, in their counter-application, confirmation of a
portion of the
beneficiaries verified by Mhlaba, i.e the initial list of 1038. In
short, the respondents cannot, on the one hand,
seek to impugn the
Mhlaba report (in their opposition to the confirmation application)
and on the other, seek to rely on a portion
thereof, (in their
counter-application).
The
one position necessarily negates the other. The respondents cannot
probate and approbate at the same time. What is stated above,
applies
with equal force, to the respondents’ remaining complaints that
the verification process was flawed due to threats
and intimidation;
and that the brains behind Mhlaba Image Consulting is a brother to
one of the trustees, therefore resulting in
an alleged conflict of
interest.
[30]
Third, it would not be in the interest of the community and the Trust
to do so, especially from a costs point of view.
[31]
The remarks made above, are by no means to be regarded as condonation
of the applicants’ conduct of simply ignoring an
order of this
court on the basis of the say so of an unnamed person in the office
of the regional Land Claims Commissioner. The
remarks should be read
with, and are subject to what is stated below in paras [37] and [38].
The
respondents’ counter-application
[32]
The respondents’ counter-application seeks in the main,
confirmation that the 1038 families on the interim list of verified
beneficiaries, referred to in the Mhlaba report, are the initial
beneficiaries of the Trust, as contemplated in clause 7.1 of the
Trust Deed. In the alternative, the respondents seek an order
directing that the provisions of the Trust Deed be amended in very
far-reaching respects, with regard to, among others, the
identification of the Lugedlane Traditional Community as the
beneficiary
of the Trust; the establishment and maintenance of the
members register of the community; eligibility for membership of the
community
and dispute resolution mechanisms related thereto. The
respondents further seek an order directing the trustees to convene,
within
90 days, a general meeting of the Trust for the purpose of
reporting on the finances and administration of the Trust and for the
election of new trustees of the Trust.
[33]
In the founding affidavit in the counter-application, the respondents
make some serious allegations as to the governance of
the Trust,
concerning possible abuse of Trust property and funds, lack of
accountability and transparency etc. It is not necessary
to repeat
them here. Suffice it to say that there are pertinent allegations,
which are met with sweeping and general denials by
the trustees. That
concerned me greatly. It is clear from the tumultuous history of the
matter, characterised by ongoing litigation,
that unless proper
mechanisms are put in place for proper governance of the Trust, its
ills and instability will persist.
[34]
The applicants’ make a point in support of the confirmation
application that the verification process of beneficiaries
to Trusts
of this nature is an on-going process and anyone may submit
themselves for verification as soon as information comes
to hand to
prove his claim. The applicants do not say by whom and how, would
such potential beneficiaries be verified. Would they
have to approach
this court, and if so, would that be on a case to case basis? The
upshot of my concerns is that there does not
seem to be mechanisms in
place to deal with these issues in a structured manner.
[35]
In my view, that stems from the ambiguous provisions of the Trust
Deed. That aspect should be rectified. This is where I find
merit in
the respondents’ alternative claim in their counter-application
that the Trust Deed be amended in certain respects.
The applicants
have contended, and I agree, that the rights of the beneficiaries who
have been verified as such are likely to be
affected adversely. As
such they have a direct and substantial interest in the outcome of
the litigation. The applicants accordingly
raised a point of
non-joinder of those individuals.
[36]
Having considered all the aspects of the two competing applications
before me, I come to the conclusions set out below.
The
confirmation application
[37]
With regard to the trustees’ application for confirmation, I am
not prepared, at least for now, to confirm the list of
beneficiaries
contained in the Mhlaba report, for the simple reason that I have not
been assured that the verification process
underpinning that list,
was carried out in a manner consistent with the principles enshrined
in the
Restitution of Land Rights Act 22 of 1994
, as postulated in
the court order. The trustees themselves do not make any assertion in
that direction in their confirmation application.
I need Dr Fischer,
who was commissioned by the court for this purpose, to express a view
in this regard I am mindful of the reasons
furnished by the trustees
for not appointing him.
[38]
However, I am not prepared to accept the mere ipse dixit of the
trustees that he had agreed not carry out the obligations imposed
on
him by this court. But in any event, I do not consider those reasons
to be sufficient to render Dr. Fischer ‘conflicted’,
whatever that is meant to convey. That his earlier verification
report was not accepted by the community does not ‘conflict’
him. In the end, it is not the views of the community or their wishes
that guide us in complex and technical matters such as the
present,
but the considered and learned views of experts like Dr Fischer.
Until Dr Fischer indicates in writing to this court of
his inability
or unavailability to carry out the mandate as set out in the court
order, and duly excused, he remains obliged to
assist the court where
necessary. It is important for the intergrity of the verification
exercise be ensured before this court
confirms the beneficiaries
identified in that exercise. Hopefully, Dr Fischer’s views and
expert opinion would assist in
this regard. It is in that light that
I intend to direct him to comment on the verification exercise
carried out by Mhlaba.
The
respondents’ counter-application
[39]
Given what I stated in paras [37] and [38] above, I am similarly not
prepared, at least for now, to grant prayer 1 of the respondents’
counter-application (confirmation of the list of 1038 in the Mhlaba
report). For reasons set out in para [ ] above, the the alternate
relief (amendment of the Trust) should also be postponed to allow the
proper joinder of the disputed beneficiaries.
[40]
Costs, for both the confirmation application and the
counter-application should be reserved.
[41]
In the result the following order is made:
1.
Condonation is granted for late filing of the respondents’
answering affidavit in the confirmation application and the
respondents’ counter-application, respectively;
2.
The trustees’ confirmation application and the respondents’
counterapplication are, respectively, postponed sine
die;
3.
The respondents are granted leave to apply, if so advised, for the
joinder of the disputed beneficiaries (those verified after
14
November 2009 in terms of the Mhlaba report dated 30 August 2010) as
parties to these proceedings, which application, if any,
shall be
launched on or before 15 March 2013;
4.
In the event the respondents launching the application referred to in
(3) the application shall be served on the disputed beneficiaries
by
displaying the the application prominently at the following places:
4.1
the offices of the Trust
4.2
the office of the Lugedlane Traditional Authority, Mangweni and
Steenbook.
5.
Dr. At Fischer is directed to, on or before 15 March 2013, furnish
the attorneys of the trustees and of the respondents, with
written
comments on Mhlaba’s verification report dated 30 August 2010,
and in particular, whether in his opinion, the beneficiary
verification exercise underpinning such report, was carried out in a
manner consistent with the principles enshrined in the
Restitution of
Land Rights Act, 22 of 1994
;
6.
In the event of the respondents not launching the application
referred to in (3) above, any of the parties may enrol the two
applications for hearing upon the expiry of twenty (20) court days of
15 March 2013;
7.
The parties are all entitled to supplement their respective papers,
to the extent necessary as may be occasioned by either the
application envisaged in (3) above, or by the comments of Dr. Fischer
as envisaged in (5) above;
8.
The costs in the confirmation application and in the
counter-application are reserved.
TM MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING : 6 AUGUST 2012
JUDGMENT
DELIVERED : 15 FEBRUARY 2013
FOR
THE APPLICANTS : ADV. B R TOKOTA SC, WITH ADV Z Z MATEBESE
INSTRUCTED
BY : S. NGOMANE INC., PRETORIA
FOR
THE RESPONDENTS : MR. R SPOOR (ATTORNEY)
(Heads
of argument drafted by Adv A Bester)
INSTRUCTED
BY: RICHARD SPOOR ATTORNEY CIO BRAZINGTON
SHEPPERSON
& MC CONN EL ATTORNEYS, PRETORIA