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[2011] ZAFSHC 62
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Khabola NO v Ralitabo NO (5512/2010) [2011] ZAFSHC 62 (24 March 2011)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No. : 5512/2010
In
matter between:-
SELLO Z .KHABOLA
N.O
….................................................
APPLICANT
and
SEMAKALENG P
RALITABO N.O
…................................
RESPONDENT
HEARD ON:
17 MARCH 2011
JUDGMENT BY:
K.J. MOLOI, J
_____________________________________________________
DELIVERED ON:
24 MARCH 2011
JUDGMENT
_____________________________________________________
MOLOI,
J
[1] In this matter the
applicant is a trustee of a business trust known as Lithakali
Development Trust IT 708/2002 which owned two
pieces of land on which
farming activities were conducted. The land was sold to a third party
cited as the fourth Respondent under
a Deed of Sale signed by the
applicant’s three other trustees cited as the First, Second and
Third Respondents. The Master
of the High Court, the registrar of
Deeds and the Land Bank were also cited as Respondents nominally for
their respective interests
in the trust property, the land in
question. The applicant sought an order setting aside the sale of the
trust property in his
personal capacity. The other co-trustees and
the fourth respondent are opposing the application. Furthermore the
co-trustees launched
a counter-application seeking an order removing
the applicant as a trustee of the trust, authorising them to
liquidate the estate
of the trust and to dissolve the trust.
[2] During the hearing of
the application it was agreed that the court decide the question of
locus
standi
of the applicant and the
co-trustees to bring in the applications against each other as they
did. The question of
locus
standi
became
central to whether or not the court should proceed to hear the other
aspects relating to the validity of the Deed of Sale,
compliance with
the provisions of the Alienation of Land Act and the validity of the
counter-application.
[3] In the Trust Deed
founding the trust the applicant is described as the donor (founder)
and the other trustees as mere trustees.
The applicant had invited
the co-trustees to join him in this venture. The trust was formed for
the purpose of acquiring agricultural
land on which farming
activities were to be conducted. It appears a loan of
R400 000.00
was obtained from the Land Bank to finance the purchase of the land
and that the Department of Land Affairs made a grant of
R280
000.00
. The trustees were to contribute each an amount of
R500.00
per month towards the repayment of the loan. Only the first
respondent made a contribution of
R10 000.00
for this purpose.
No beneficiaries were appointed in the trust instrument. The
applicant conducted the farming activities on the
trust property
until evicted by the new owner, the fourth respondent.
[4] In deciding the
question of whether the parties herein have
locus
standi
to initiate legal proceedings against each other
over the trust property, the court must look at certain other
aspects. The following
must be considered:
From the above
exposition and especially the contributions that the co-trustees
were expected to make, it seem the parties intended
to form a
partnership or some other association which was simulated as a
trust. In the Trust Property Control Act No. 57 of 1988
in section 1
thereof a
trust
is defined as:
“
Trust”
means the arrangement through which the ownership in property of one
person is by virtue of a trust instrument made over or bequeathed-
to another person, the trustee, in
whole or in part, to be administered or disposed of according to the
provisions of the trust
instrument for the benefit of the person or
class of persons designated in the trust instrument or for the
achievement of the
object stated in the trust instrument; or
to the beneficiaries designated in
the trust instrument,
which property is placed under the
control of another person, the trustee, to be administered or
disposed of according to the provisions
of the trust instrument for
the benefit of the person or class of person designated in the trust
instrument or for the achievement
of the object stated in the trust
instrument, but does not includes the case where the property of
another is to be administered
by any person as executor, tutor or
curator in terms of the provisions of the Administration of Estate
Act, 1965 (Act No. 66 of
1965)”.
(b) Under common law any
person having a direct and substantial interest in the matter in
issue has the required
locus
standi
:
United Watch & Diamond Co. v Disa Hotels
1972 (4) SA 409
(C);
SA Optometric Association v Frames Distributors
1985 (3)
SA 100
(O)
Molotlegi v President of Bophuthatswana
1989 (3) SA
119
(B). The direct and substantial interest all the co-trustees have
in the matter is clear from what is briefly described in paragraph
3
above.
(c) The court must also
refer to the provisions of section 34 of the Constitution of South
Africa Act No. 108 of 1996 which provides
as follows under Access to
Courts:
“
Everyone has
the right to have any dispute that can be resolved by the application
of law decided in a fair public hearing before
a court or where
appropriate another independent and impartial tribunal or forum”.
[5] Having found that the
parties clearly had the formation of a partnership in mind from the
onset and tacitly agreed to the applicant
performing the role of a
general manager, the alleged Trust seem simulated. No meetings of
trusties were held either. Of course
the partners in a partnership
have a right to sue each other. The direct and substantial interest
in the matter is clear in as
far as everyone is concerned. The
provisions of section 34 of Act 108 of 1996 need no further
elaboration.
[6]
Taking all the
above factors into account the court finds that the applicant, on the
one hand, the 1
st
2
nd
and
3
rd
respondents on the other hand, have
locus standi
in respect of the
application and the counter-application, respectively.
The costs will be
costs in the course.
_____________
MOLOI, J
On behalf of the
Applicant:
Adv C Motloung
NTJABANE ATTORNEYS
Attorneys for the
Applicant
Cuthberths Building
No. 73 3
rd
Floor
Room 301 Maitland Street
P.O. Box 7354
BLOEMFONTEIN
9300
On behalf of the
Respondent:
Adv Daffue
STEYN MEYER ATTORNEYS
Attorneys for the
Respondent
Ground Floor
Saambou Building
Cnr Aliwal & Maitland
Streets
BLOEMFONTEIN
9300