About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2013
>>
[2013] ZAECMHC 8
|
|
Mbizana Development Forum v Minister of Justice and Constitutional Development and Others (1256/13) [2013] ZAECMHC 8 (13 June 2013)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE, MTHATHA
CASE NO: 1256/13
Date Heard: 6 June 2013
Date Delivered: 13 June
2013
In
the matter between:
MBIZANA
DEVELOPMENT FORUM
...........................................................
Applicant
and
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
.................................................................................
1
st
Respondent
MASTER
OF THE HIGH COURT
PIETERMARITZBURG
......................................................................
2
nd
Respondent
EASTERN
CAPE GAMBLING AND
BETTING
BOARD
..............................................................................
3
rd
Respondent
NOOKUGCINA
NGCANE MADIKIZELA-RENENE
...........................
4
th
Respondent
ZAMILE
DAVID QUNYA
....................................................................
5
th
Respondent
MARY
MONICA XOLOKAZI MACOBA
.............................................
6
th
Respondent
ELIAS
ELTON OGLE
.........................................................................
7
th
Respondent
LUBABALO
VINCENT BULALA
.......................................................
8
th
Respondent
EUGENIA
ZODWA LANGAZANA
.....................................................
9
th
Respondent
SANDISO
WILTON MVUNDLA
.......................................................
10
th
Respondent
TRANSKEI
SUN INTERNATIONAL (PTY) LTD
..............................
11
th
Respondent
MBIZANA
COMMUNITY SPV (PTY) LTD
........................................
12
th
Respondent
STANDARD
BANK OF SOUTH AFRICA
........................................
13
th
Respondent
JUDGMENT
GOOSEN, J:
This is an application brought on an
urgent basis in which the applicant
seeks to review and set aside the
decision of the second respondent to appoint fourth to tenth
Respondents as trustees of the Wild
Coast Mbizana Development Trust.
The applicant also seeks to interdict the fourth to tenth respondents
from performing any functions
of the said Trust or as directors of
Transkei Sun International Limited or Mbizana Community SPV (Pty)
Ltd. The applicant also
seeks an order directing the third respondent
to account to it and to the Trust for the management of the financial
affairs of
the Trust for the period when there were no appointed
Trustees of the Trust. The application is opposed by the third,
fourth, fifth,
seventh, ninth, tenth and twelfth respondents. The
remaining respondents abide the decision of the court.
In opposing the application the third
respondent has filed an affidavit
dealing only with the question of
urgency. The fourth, fifth, seventh, ninth, tenth and twelfth
respondents have filed substantive
affidavits in opposition in which
a number of defences are raised, including points taken in respect of
the lack of urgency in
the application; the failure to join the
Trust; the court’s lack of jurisdiction and the applicants
alleged lack of standing.
It is in my view unnecessary to set
out in any detail the background
giving rise to this application. It
suffices to state that as a condition to the grating of a casino
licence to Transkei Sun International
Ltd (Transun), it was required
that a trust be established to benefit the community residing in the
area where the casino was to
be operated. Transun accordingly
established the Wild Coast Sun Mbizana Development Trust (the Trust)
in or about 2004. The operation
of this Trust occasioned some
controversy. In August 2009 Dawood J granted an order interdicting
the then Trustees from carrying
on their duties as trustees and
authorised the chief executive officer of the third respondent to
manage and administer the affairs
of the trust. That order was made
final in May 2010 by Notshe AJ. The learned judge directed that
“within six” weeks
of the issue of this order, new
trustees be appointed from among nominees submitted by the community
of the Mbizana magisterial
district in terms of clause 6.2 of the
trust deed.
It appears that the third respondent
appointed an independent party to
facilitate the appointment of trustees
to the Trust. As a result an advertisement was placed in the Daily
Despatch newspaper on
17 January 2012 calling for nominations. The
lengthy delay between the issue Notshe AJ’s order and this
advertisement is
not explained. No issue was however taken with this.
The appointment process continued thereafter and culminated in the
third respondent
approving the names of nominees and submitting them
to the second respondent at the end of May 2012. What followed was a
process
of acceptance by the nominated persons. The third respondent
requested second respondent to appoint fourth to tenth respondents
in
October 2012. On January 2013 the second respondent issued letters of
authority to 4th to 10
th
respondents to act as trustees.
It is this decision which the applicant now seeks to challenge and
set aside.
As indicated the respondents deny
that the application is urgent and
seek on that basis to have it either
dismissed or struck off the roll. In addition it is contended that
there is a material non-joinder
of the Trust which is not cited in
these proceedings on the basis that the interim relief sought by the
applicant will have a material
effect on the operation of the Trust.
Accordingly the Trust has a direct and substantial interest in these
proceedings and ought
to have been joined. Counsel for the applicant
argued that the court was free to grant interim relief and order that
the Trust
be joined thereafter.
It is, however, unnecessary to deal
with the alleged non-joinder or the challenge to the jurisdiction of
this court. That is so
because, for the reasons I shall set out
below, the applicant has failed to establish any grounds for the
urgent adjudication of
this matter.
It is common cause that second
respondent issued letters of authority
to the 4
th
to 10
th
respondents to act as trustees on 11 January 2013. No action appears
to have been taken by the applicant until 25 March 2013 when
a letter
was addressed to each of the second and third respondents in which
the applicant noted its objection to the appointment
of the 4
th
to 10
th
respondents as trustees. Significantly the letter
stated that unless the applicant received a response to the letter
within three
days the applicant would approach the High Court for
appropriate relief and a costs order. No response was in fact
received. On
9 April 2013 the applicant’s attorney again noted
its objection to the appointment of the 4
th
to 10
th
respondents.
The appointment of the 4
th
to 10
th
respondents as trustees was
confirmed by publication in the Daily
Dispatch newspaper on 20 May 2013. This application was launched on
30 May 2013. No explanation
is given for the apparently supine
attitude of the applicant between 11 January 2013 and 30 May 2013
when this application was
launched. Nor is there any explanation
offered as to why this application, seeking as it does interim relief
in the form of interdicts
against the 4
th
to 10
th
respondents pending the review and setting aside of the letters of
authority issued on 11 January 2013, could not have been initiated
at
an earlier stage. No explanation is given as to why the applicant did
not carry through on its threat to launch proceedings
in March 2013.
An applicant who seeks to have its
non-compliance with the ordinary
rules relating to notice periods,
forms and service of court process condoned is required to set out a
reasonable and satisfactory
explanation for such non-compliance. In
addition where it is contended that the matter warrants urgent
enrolment and adjudication
other than in the ordinary course of
proceedings, the applicant must allege facts which establish that a
hearing in due course
will not meet the exigencies of the matter and
that it will suffer prejudice. These grounds of urgency must be set
out in the applicant’s
founding affidavit as required by Rule
6(12)(b),as well as in a certificate of urgency certified by the
legal practitioner appearing
for the applicant, in accordance with
the Joint Rules of Practice of this court.
In this instance the applicant has
failed to make out any case for the
urgent adjudication of the matter. The
allegations upon which it relies consist of broadly stated
allegations of alleged mismanagement
of the trust which relate to a
period which extends back to the period during which the third
respondent was managing the trust
pending the appointment of
trustees. The lapse of time between the issue of the letters of
authority which it seeks to have set
aside and the launch of these
proceedings is not addressed. In addition, no time periods for the
filing of a notice of opposition
and opposing affidavits are
stipulated in the notice of motion. This departure from the ordinary
form of notice of motion is not
justified by any allegations set out
in the applicant’s papers.
[10] It was submitted on behalf of the
applicant that it must be accepted that the matter is urgent enough
to warrant interim relief
because a certificate of urgency had been
filed pursuant to Rule 12 of the Joint Rules of Practice of the
Eastern Cape and a judge
had directed that the matter be enrolled. In
my view the submission misconceives the purpose of a certificate of
urgency as is
required by Rule 12 of the Joint Rules. The Rule
provides that:
(a) In urgent applications:
(i) The
practitioner who appears for the applicant must sign a certificate of
urgency which is to be filed of record before the
application papers
are placed before the judge and in which the reasons for urgency are
fully set out. In this regard, sufficient
particularity is to be set
out in the certificate for the question of urgency to be determined
solely therefrom and without perusing
the application papers. The
certificate of urgency will be placed before the judge who will make
a determination solely from that
certificate as to whether as to
whether or not the matter is sufficiently urgent to be heard at any
time other than the normal
motion court hours. Should he or she
determine that it is sufficiently urgent, he or she will then give
directions as to the time
and place, when and where the application
is to be heard.
(ii) Details of why
the applicant alleges a matter is urgent should also be set out in
the founding papers.
[11] The principal purpose of the Rule
is to regulate the hearing of urgent applications outside of the
normal motion court hours.
In circumstances where a party seeks to
have a matter heard other than in normal motion court hours, the
hearing of such matter
is subject to the duty judge being satisfied
that it is sufficiently urgent
and
the directions of the judge
as to the time when the matter will be heard. It is for this reason
that a detailed certificate is
placed before the judge. This much is
clear from the language of the Rule.
[12] In the event that a party intends
to move an application (whether utilising the short form of notice or
upon abridged time
periods) on a normal motion court day, a
certificate of urgency which complies with the Rule must be filed
before the application
papers are placed before the judge who will
hear applications on the relevant motion court day. This much too is
apparent from
the first portion of the Rule.
[13] The Rule only contemplates that
directions will be issued in respect of matters to be heard other
than during normal motion
court hours. A direction issued by a judge
in chambers that a matter be enrolled on an ordinary motion court day
can therefore
mean no more than that the judge concerned did not
consider that the matter warranted his or her attention outside of
normal motion
court hours, leaving the question as to the
justification for urgent enrolment on a motion court day to be
considered by the judge
presiding over that motion court.
Accordingly, the direction issued in this matter does not mean that
the application must of necessity
be dealt with as one of urgency.
[14] For the reasons already mentioned
I am of the view that the applicant has failed to make out a case for
the urgent enrolment
of this matter. I accordingly make the following
order:
(a) The application is struck off the
roll.
(b) The applicant is ordered to pay
the respondents’ costs occasioned by the enrolment and hearing
of the application on 6
June 2013.
_________________________
G GOOSEN
JUDGE OF THE HIGH COURT
APPEARANCES
:
FOR APPLICANT
: Mr Mtshabe
FOR RESPONDENTS
: Mr Kincaid
Mr Bodlani