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2024
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[2024] ZANCHC 16
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Department of Agriculture, Land Reform and Rural Development, Northern Cape Province, Kimberley v Master of the High Court, Kimberley (61/2021) [2024] ZANCHC 16 (23 February 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO.: 61/2021
Date heard: 29-11-2023
Date delivered:
23-02-2024
Reportable:
Yes/
No
Circulate
to Judges:
Yes/
No
Circulate
to Magistrates:
Yes/
No
In
the matter between:
DEPARTMENT
OF AGRICULTURE, LAND REFORM
Applicant
AND
RURAL DEVELOPMENT,
NORTHERN
CAPE PROVINCE, KIMBERLEY
and
MASTER OF THE HIGH
COURT, KIMBERLEY
Respondent
CORAM:
PHATSHOANE DJP, WILLIAMS J and NXUMALO J:
JUDGMENT ON LEAVE TO
APPEAL
PHATSHOANE
DJP:
[1]
This is an application for leave to appeal against the whole of the
majority judgment and order dated
18 August 2023 in which the
application for condonation of the late filing of a s 23 of the Trust
Property Control Act 57 of 1988
(the Act)
[1]
review
was granted to the Department of Agriculture, Land Reform and
Rural Development, Northern Cape (the department), the
applicant, and
its review dismissed with costs.
[2]
The factual background
leading to the review before the Full Court, as the Court of first
instance, is set out in some detail in
its judgment. Section
16
of the Act is at the heart of the dispute between the parties. It
provides:
“
16
Master may call upon trustee to account
(1)
A trustee shall, at the written request of the Master, account to the
Master to his satisfaction and in accordance with the
Master's
requirements for his administration and disposal of trust property
and shall, at the written request of the Master, deliver
to the
Master any book, record, account or document relating to his
administration or disposal of the trust property and shall
to the
best of his ability answer honestly and truthfully any question put
to him by the Master in connection with the administration
and
disposal of the trust property.
(2)
The Master may, if he deems it necessary, cause an investigation to
be carried out by some fit and proper person appointed by
him into
the trustee's administration and disposal of trust property.
(3)
The Master shall make such order as he deems fit in connection with
the costs of an investigation referred to in subsection
(2).”
[3]
B
efore the Full Court the department had sought orders
setting aside the decision of the respondent, the Master of the High
Court
(the Master), in which he determined as follows:
“
After applying my
mind and in light of the above, I make the cost order in terms of
Section 16(3) of the Trust Property Control
Act No 57 of 1988, as
amended that the Directorate of the Department of Agriculture, Land
Reform and Rural Development (the Directorate:
Farmer Settlement &
Rural Development) to which Mr Jomo Bonokwane was attached to in
2017, dealing with the Equity Schemes,
is liable for the cost of the
investigation in terms of Section 16(2) (surpa) which was conducted
by Mr Mpho Sebashe (Mr Sebashe)
in the amount of R3 726 000,00.”
[4]
The department’s grounds of appeal are multifarious. However,
in broad strokes, it was contended
for the department that the Master
did not exercise his discretion properly in awarding costs against
it. This was so because,
as the founder of the trust, the department
did not instruct the Master to commission an investigation in terms
of s 16 of the
Act at the meeting of 30 June 2017 and therefore the
department ought not to have been mulcted in costs of the
investigation. It
was argued that the Majority Court erred in finding
that Malope Attorneys’ electronic mail of 06 December 2016 did
not trigger
the Master’s commencement of the s 16
investigation. The Master, so it was argued, had at all relevant
times up to and including
the date of the appointment of Mr Sebashe,
as an investigator, associated himself with the instruction from
Malope Attorneys and
acted in terms of the said attorneys’
mandate.
[5]
The department further contended that the Master did not base his
decision to award costs on what is
set out in para 30 of his report
of 30 June 2020, as found by the Majority Court. At para 30 of the
Master’s report he reasoned:
“
I am further of
the opinion that the Department of Agriculture, Land Reform and Rural
Development failed to exercise [due] diligence
and oversight
management accountability over the spending of government funding on
these farms or equity schemes. This infringement
of the rights of the
farm workers and the mismanagement of government funding, (being part
of the [discourse] of the country),
would not have occurred, if there
was accountability. They failed to take reasonable care.”
[6]
The Master’s decision, the department argued, was made prior to
Mr Sebashe’s appointment.
It did not matter that the department
was copied in contemporaneous written exchanges between the Master
and Mr Sebashe.
The Master awarded costs against the department
solely because Mr Sebashe had accepted the invitation to conduct the
investigation
on condition that the department paid for his services.
The duty of care, it was argued, rested upon the trustees in terms of
s
9 of the Act and so the costs of the investigation ought to have
been borne by the trustees concerned.
[7]
Lastly, the department contended that the Majority Court erred in
finding that
s
217 of the Constitution
[2]
read with the
Public
Finance Management Act 1 of 1999 (PFMA ) did not find
application in the appointments made by the Master in terms of
s 16
of the Act.
It was argued that the appointment of Mr Sebashe was in contravention
of s 217 of the Constitution.
[8]
In arriving at the decision she came to, my colleague Williams J, who
penned the majority judgment,
had regard to t
he second meeting
of the equity scheme task team held on 30 June 2017 called at the
behest of the department. The minutes thereof
were produced under the
Directorate: Farmer Settlement & Rural Development of the
department. In this set of minutes the Master
was specifically tasked
to: “Look at the possible transgressions of the Act and to
institute remedial action on all the trusts
that did not comply with
the Act and its regulations.” The “Action Plan”
emanating from this meeting was to the
effect that Mr Sebashe and the
Master would facilitate the process and give feedback at the next
meeting. Williams J also had regard
to the minutes of the meeting of
the department’s equity scheme task team held on 14 September
2017 where it was noted that
the Master had instituted the s 16
enquiry for Badirammogo Trust and that “
there will be a need
to develop an approach to this matter, because only the Badirammogo
was issued with a section 16 investigation.”
[9]
From the aforegoing exposition there is overwhelming evidence that
the department commissioned the investigation.
Section 16 (2) of the
Act, as found by the Majority Court, does not provide that a written
request or authorization be issued prior
to the launching of an
investigation by the Master. A
discretion
to call for such an investigation vests solely in the Master.
[3]
The department was copied in all relevant correspondence between the
Master and Mr Sebashe. This notwithstanding, it did
not respond nor
raise any objection. In consonance with the department’s
request as contained in item 4 of the minutes of
30 June 2017 and its
action plan, the Master appointed Mr Sebashe as the
investigator in terms of s 16 of the Act.
[10] As to
the Master’s award of costs of the investigation against the
department, the Majority found:
“
. . .
The
findings of the respondent [Master] in his cost report abound with
instances of maladministration and questionable compliance
with the
Public Finance Management Act, 1 of 1999 (the PFMA) on the part of
the Department. The respondent found
inter alia
at
paragraph 30 of his report that:
‘
I am further of
the opinion that the Department of Agriculture, failed to exercise
due diligence and oversight management accountability
over the
spending of government funding on these farms or in Equity Schemes.
This infringement of the rights of farm workers
and the mismanagement
of government funding . . . would not have occurred if there
was accountability. They failed
to take reasonable care.’
It can hardly be said in
these circumstances that the respondent did not exercise his
discretion properly in finding that the costs
of the investigation be
borne by the Department and only made the costs order that he did
because the department had requested
the investigation.”
[11]
The department was charged with the post-settlement support function
of the equity schemes. The Master determined
that it failed in its
obligation. No persuasive argument had been advanced for the
department which demonstrated that the Master
had not exercised his
discretion honestly or acted
mala
fide
or
that his decision to award costs against the department had been
motivated by improper considerations.
[12] It
is not necessary to traverse at any great length whether the Master
ought to have applied the provisions
of the PFMA in the appointment
of the investigator. In my view, to find that the Master had
acted in contravention of s 217(1)
of the Constitution would be a
bridge too far for reasons articulated in the considered majority
decision. In any event, the principle
articulated in
Yannakou
v Apollo Club
[4]
puts
paid to any suggestion that the department was entitled to raise the
argument that s 217 and the PFMA applied. It was there
said:
“
(I)f
he relies on a particular section of a statute, he must either state
the number of the section and the statute he is relying
on or
formulate his defence sufficiently clearly so as to indicate that he
is relying on it (cf.
Ketteringham
v City of Cape Town
,
1934 AD 80
at p.
90). And if his defence is illegality, which does not appear
ex
facie
the transaction sued on but
arises from its surrounding circumstances, such illegality and the
circumstances founding it must
be pleaded. It is true that it is the
duty of the court to take the point of illegality
mero
motu
, even if the defendant does not
plead or raise it; but it can and will only do so if the
illegality appears
ex facie
the
transaction or from the evidence before it, and, in the latter event,
if it is also satisfied that all the necessary and
relevant facts are
before it.”
[13]
Save to state that the department did not authorise the Master to
appoint the investigator there was no suggestion
or any basis
established in the founding papers that he acted illegally. Such a
proposition would have been absurd as the Master
acted within the
confines of s 16 of the Act.
[14]
In
terms of
s
17(1)(a)(i)
of
the Superior Courts
Act
10 of 2013
,
leave to appeal may only be given where the judge or judges concerned
are of the opinion that the appeal would have a reasonable
prospect
of success or there is some other compelling reason why the
appeal should be heard, including conflicting judgments
on the matter
under consideration. In
S
v Smith
[5]
it
was said:
“
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the
appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success,
that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound,
rational basis for
the conclusion that there are prospects of success on appeal.”
[15]
In my view,
t
he
grounds of appeal are unsustainable on the facts and the law. It
follows that there are no reasonable prospects of a successful
appeal. It is trite that even where
the
court is unpersuaded of the prospects of success, it must still
enquire into whether there is a compelling reason to entertain
the
appeal. A compelling reason includes an important question of law or
a discrete issue of public importance that will have an
effect on
future disputes. But still, the merits remain vitally important and
are often decisive.
[6]
[16] To
my mind, there is no
compelling reason why the
appeal should be heard. The application did not raise an important
question of law or a matter of public
importance that will have an
effect on future disputes which merits the attention of the SCA.
The upshot of this is that
the application stands to be dismissed. In
the result, the following order is made:
ORDER
1.
The application for leave to appeal is dismissed
with costs.
V
M PHATSHOANE
DEPUTY
JUDGE PRESIDENT
I
concur
CC
WILLIAMS
JUDGE
I
concur
APS NXUMALO
JUDGE
For
Applicant:
Adv Y
Abass
Instructed
by:
Office
of the State Attorney
For
Respondent:
Adv W
Coetzee SC
Instructed
by:
Haarhoffs
Inc.
[1]
Section
23 provides that: ‘Any person who feels aggrieved by an
authorization, appointment or removal of a trustee by the
Master or
by any decision, order or direction of the Master made or issued
under this Act, may apply to the court for relief,
and the court
shall have the power to consider the merits of any such matter, to
take evidence and to make any order it deems
fit.’
[2]
The
Constitution of the Republic of South Africa, 1996.
[3]
Ras NNo
v Van der Meulen
2011(4) SA 17 (SCA) at paragraph 10
[4]
1974
(1) SA 614
(A) at 623F-H
[5]
2012
(1) SACR 567
(SCA)
para
7
[6]
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
2020
(5) SA 35
(SCA ) para 2.