,.
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA
REPORTAB LE:NO
OF INTEREST TO O THER JUDGES:.,Nel~
REVISED: YES
28/07/2025
SIGNATU RE , DAT E
In the matter between:
THEMBA TIBANE
MADODA ISAAC T JIE
NOMSA MUHLAWURI MANYIKE
LISBON DEVELOPMENTS (PTY ) LTD
MAGIC BREAKAWAYS (PTY) LTD
LEGACY GROUP HOLDINGS (PTY) LTD
CASE NO: 1870/2023
FIRST APPLICANT
SECOND APPLICANT
THIRD APPLICANT
FOURTH APPLICANT
FIFTH APPLICANT
SIXTH APPLICANT
• 1
' f
r
f
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MINISTER OF LAND REFORM
AND DEVELOPMENT
THE MASTER OF THE HIGH
COURT: PRETORIA
and
INGRID MHLONGO
JAMES KHUMALO
THUTHANE ADOLPH T JIA
MAJIANE EVELINE MKHANSI
SAMSON MHLONGO
FRANK MHLONGO
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SEVENTH APPLICANT
EIGHTH APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RE S PONDENT
FIFTH RESPONDENT
S IXTH RESPONDENT
This judgment was handed down electronically by circulation to the parties and/or parties'
representatives by ema il. The date and time for hand-down is deemed to be 28 July 2025
at 10:00.
JUDGMENT
Mashile J
Introduction
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[1]
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On 28 February 2025, this Court handed down judgment granting orders in favour
of the Respondents among which were the following:
1.1
1.2
Trust;
Refusing to place the Nhlangwini Trust ("the Trust") under administration;
Appointing Ms Nazreen Sekao Pando ("Ms Pando") as an administrator of the
1.3 Directing the First to Third Applicants ("the Former Trustees") to fully cooperate
with the administrator in good faith and to provide her, on demand , with any property,
documents, records and information belonging to or concerning the Nhlangwini Trust in
their possession;
1.4 Postponing Part "B" sine die until -
1.4.1 The administrator has filed her first report;
1.4.2 Lisbon Developments and the Former Trustees Respondents have supplemented
their papers, or advised the parties that they do not intend to do so, within thirty days of
the first written report; and
1.4.3 All further pleadings are exchanged.
[2] Aggrieved by the aforesaid order, the First to Third Applicants ("the Former
Trustees and the Third to Sixth Applicants ("Lisbon Developments") launched this leave
to appeal application against the whole judgment and order of this Court. Where context
demands , I will refer to the parties that I have collectively named Lisbon Developments in
their individual names. The Seventh and Eighth Applicants, as in the main case, have
been cited to the extent that they may have an interest in the outcome and no relief is
sought against them. For that reason, I may, or not, refer to them throughout this
judgment. The application is opposed by all the Respondents.
Grounds of Appeal
[3] The judgment is challenged on several grounds. One of these is that while the
order may be interim in nature, which is not admitted, it is nonetheless final in effect and
therefore appealable. Furthermore, and in any event, the appealability of interim orders
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is no longer determined based on the Zweni v Minister of Law and Order ("Zwent)1 case
alone. The overarching test now preferred by the Constitutional Court is one of the
interests of justice.
[4] The second ground is that the Court failed to apply the Plascon-Evans rule when
assessing the evidence. The court accepted the facts as stated by the Applicants in the
main case without any reference to those stated by the Respondents in the main case,
which the Applicants could not deny or which the Court could not reject out of hand as
being farfetched.
[5] The third ground is that I have granted a relief that is unknown in law. As I
understand, Lisbon Developments and the Former Trustees' argument is that a trust does
not have an independent existence and neither does it have legal personality. For it to be
functional, therefore, there must always be Trustees. The trust deed and the Trust
Property Control Act 57 of 1988 ("TPCA") regulate the way Trustees are appointed. The
community or beneficiaries, through procedures laid down in a trust deed, nominate or
appoint the Trustees. The Master of the High Court must, in terms of the TPCA , endorse
the appointment or nomination before a Trustee can execute his functions as a Trustee.
[6] A court cannot usurp the power exclusively meant to be exercised by the Master
of the High Court and appoint Trustees or an administrator as it has done here.
Accordingly, prospects exist that another court would conclude that the appointment of
Ms Pando as the administrator is incompetent. The appointment of Ms Pando is not
recognised by both the common law and our Constitution.
[7] The fourth ground is that this Court incorrectly relied on LAWSA to justify the
appointment of Ms Pando. The paragraph on which the Court depended provides that the
Court has the power and even the duty to appoint Trustees to prevent the trust from
failing. The Court is said to have done something that is legally untenable, especially by
failing. The Court is said to have done something that is legally untenable, especially by
refusing to place the Trust under administration while at the same time appointing
1 Zweni v Minister of Law and Order 1993 (1) SA 523 (A); (1993] 1 All SA 365 (A).
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Ms Pando. The paragraph from LAWSA does not support what transpired. Trustees are
nominated or appointed in terms of a trust deed and the Master of the High Court
authorises the appointment in terms of the TPCA. To the extent that the Court in this
matter appointed an administrator, it acted outside of its powers.
[8] The fifth ground is stated as an erroneous reliance on the case of Mwelase and
Others v Director-General for the Department of Rural Development and Land Reform
and Another ("Mwelase")2 to justify the appointment of Ms Pando. The Constitutional
Court in Mwelase dealt with the powers of Courts to craft remedies under sections 172
and 173 of the Constitution in circumstances where the Department of Rural Development
and Land Reform consistently failed to process land claims. Co nfronted with that
persistent failure by the Department, the Constitutional Court, so goes the argument,
directed that a special master be appointed as an officer of the Court to supervise
compliance with Court orders and ensure institutional accountability within the executive.
[9] Thus, the background concerning the circumstances under which the special
master in the Mwelase case was appointed is immensely different. The appointment of
the special master in the Mwelase case was not governed by a trust deed or the TPCA.
For that reason, the Former Trustees and Lisbon Developments conclude that prospects
exist that another Court would overturn the appointment of Ms Pando.
Legal Framework
[1 O] The leave to appeal is brought based on section 17(1) of the Superior Courts Act
1 O of 2013. The section provides that:
"(1) Leave to appeal may only be given where the judge or judges concerned are of
the opinion that-
(a) (i) the appeal would have a reasonable prospect of success; or
2 Mwelase and Others v Director-General for the Department of Rural Development and Land Reform and
Another 2019 (6) SA 597 (CC).
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(ii) there is some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter under consideration."
[11] In the matter of Ramakatsa and Others v African National Congress and Another,3
the Supreme Court of Appeal stated that:
[12]
"[1 OJ Turning the focus to the relevant provisions of the Superior Courts Act (the SC
Act), leave to appeal may only be granted where the judges concerned are of the opinion
that the appeal would have a reasonable prospect of success or there are compelling
reasons which exist why the appeal should be heard such as the interests of justice .... I
am mindful of the decisions at high court level debating whether the use of the word 'would
as opposed to 'could possibly means that the threshold for granting the appeal has been
raised. If a reasonable prospect of success is established, leave to appeal should be
granted .... The test of reasonable prospect of success postulates 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 other words, the appellants in this matter
need to convince this Court on proper grounds that they have prospects of success on
appeal. Those prospects of success must not be remote, but there must exist a reasonable
chance of succeeding. A sound rational basis for the conclusion that there are prospects
of success must be shown to exist." (Emphasis added.)
I have cited the paragraph above because the debate whether the advent of the
Superior Courts Act has brought with it the raising of the threshold in leave to appeal
applications is still raging notwithstanding the decision in Ramakatsa supra. The Supreme
Court of Appeal in that case does not endorse the view expressed in earlier decisions
that the bar for granting leave to appeal has been elevated. The test is still the old one -
the reasonable prospects of success must not be remote, and a sound, rational basis for
the reasonable prospects of success must not be remote, and a sound, rational basis for
the conclusion that they exist must be shown .
[13] The standard has therefore not been raised. The Former Trustees and Lisbon
Developments must establish the existence of a reasonable prospect of success if this
3 Ramakatsa and Others v African National Congress and Another (2021] ZASCA 31 para 10.
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Court is to grant them leave to appeal. It is always worth bearing in mind that the issue is
not whether the judgment is wrong, but it is whether another court would reach a different
conclusion. Accordingly, the question is, have the Former Trustees and Lisbon
Developments successfully shown the aforesaid or have they demonstrated that there is
some other compelling reason why leave to appeal should be granted?
Analysis
Appealability
[14] Beginning with the issue of the appealability of the case. The parties are at
variance on the issue. The Respondents believe that Zweni4 remains critical in the
determination of appealability. That said, they accept that the interests of justice may ,
under appropriate circumstances and facts, become the sole factor on which to decide
the issue. The approach of the Former Trustees and Lisbon Developments is more
ambivalent, in my opinion. On the one hand, they do not seem to disagree completely
with the Respondents on the Zweni case, yet on the other, with reference to case law,
they seek to demonstrate that the interests of justice have become the paramount test for
appealability.
[15] The Zweni case has set out three qualities that characterise an appealable
judgment. These are as follows:
15.1 It must be final in effect and not susceptible to alteration by the court of first
instance;
15.2 It must be definitive of the rights of the parties, i.e. it must grant definite and distinct
relief; and
15.3 It must have the effect of disposing of at least a substantial portion of the relief
claimed in the main proceedings.
4 Zweni fn 1 above at 5321-5338.
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[16] I agree with the parties that Zweni is not necessarily the only or ultimate test of
appealability. The correct position, as I see it, is that it all depends on the facts of each
case. If a party can persuade a Court that circumstances in a matter are such that the
interests of justice demand that it be appealable, then a Court should, following a positive
finding on the existence of such facts, look beyond the three attributes described in Zweni.
This is how I read the development since Zweni in 1992 and the cases thereafter to date
mentioned by the Former Trustees and Lisbon Developments.
[17] Where a court concludes that the interests of justice do not require the application
of the test, then Zweni remains relevant. One of the last of those cases is the matter of
TWK Agriculture Holdings (Pty) Ltd v Hoogveld Boerderybeleggings (Pty) Ltd and
Others, 5 where the Court stated that the interests of justice are not simply a fallback
position meaning of course that the requirements in Zweni will still apply where the
interests of justice do not feature.
[18) From the preceding paragraph, it is apparent that the next question is to ask
whether the Former Trustees have shown that the interests of justice are such that the
matter should be appealable. While the Former Trustees and Lisbon have said that such
circumstances exist, they stopped short of furnishing them to this Court and I shall not
guess what they are. Contrary to what they believe, however, it is manifest that the Trust
is in a state that can only be described as chaotic. The Trustees who were in office prior
to the Former Trustees would seem to have helped themselves to the Government grant
made shortly after the establishment of the Trust.
[19) The disappearance of the Government grant, however, should have been or
should still be a matter for criminal police investigation and therefore not part of these
proceedings. Large sums of the money paid by Lisbon Developments disappeared during
proceedings. Large sums of the money paid by Lisbon Developments disappeared during
the office of the Former Trustees and to date no one can fully account for it. Again, it will
be improper for this Court to concern itself with the criminal police investigation regarding
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TWK Agriculture Holdings (Pty) Ltd v Hoogveld Boerderybeleggings (Pty) Ltd and O thers 2023 (5) SA 163
(SCA).
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the disappearance of such funds. Given this situation of the Trust and the fact that its
formation was to facilitate ownership of the 'restituted' land of the Community, is it in the
interests of justice that it should remain without any leadership? Who is this chaos
serving? Certainly not the Community.
[20] Accordingly, insofar as the interests of justice are concerned, I cannot find that
they exist against a backdrop of a mismanaged trust whose trust deed has been
disrespected almost since inception. The Trust had become dysfunctional, the Master
had confessed to having failed to rescue it and the Former Trustees illegally remained in
office even though their term had come to an end. The Former Trustees were still in office
between 21 December 2020 until 20 July 2023, during which the bank statements show
that Lisbon Developments paid about R15 000 000 to the Trust. The Former Trustees
dissipated the amount with R1 423 000 paid to Mr Tibane, R3 380 000 paid to Mr Mculu
and R340 000 to Mr Tibane's friend.
[21) The Former Trustees also made a total cash withdrawal of RS.2 million.
Notwithstanding the former Trustees' term of office having terminated on 19 January
2022, they continued to operate the trust thereafter and 780 bank transactions were made
to the value of approximately R?.5 million. In these circumstances, it was reasonable to
intervene to protect the interests of the beneficiaries. If anything, the situation that I have
described above militates against the interests of justice being used to justify
appealability. In short, Zweni should be the applicable test in these circumstances. The
three attributes mentioned in Zweni therefore become relevant and require scrutiny.
[22) The first of the three attributes is that the order must be final in effect and not
susceptible to alteration by the court of first instance. I am staggered by the allegation of
the Former Trustees and Lisbon Developments that I placed the Trust under
the Former Trustees and Lisbon Developments that I placed the Trust under
administration and appointed Ms Pando as administrator. This is totally incorrect because
I refused to place the Trust under administration but appointed Ms Pando as the
administrator. It is on that ground that they conclude that: "Once such administration has
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occurred, it cannot be undone or reversed". Accordingly, it is respectfully submitted, the
order is final in effect and appealable.
[23] The appointment of Ms Pando as an administrator is interim, it being irrelevant
whether she is referred to as an administrator or interim administrator, because Part "B",
which is still to be heard, seeks her appointment as the sole Trustee. Part "B" will only be
triggered upon Ms Pando furnishing her first report. That part, therefore, can still be
changed by the court of the first instance, thus making the order not appealable.
[24) The second attribute is that the order must be definitive of the rights of the parties.
In other words, it must grant definite and distinct relief. A definite and distinct relief is still
to be considered under Part "B". It is manifest that Part "A" is pending the outcome of
Part "B". Any attempt to interpret the order differently must be rejected.
[25) The last of the three attributes is that the order must have the effect of disposing
of at least a substantial portion of the relief claimed in the main proceedings. This, the
court has not done. The order is not appealable as such. This should be the end of the
road for the Former Trustees, but it is advisable to proceed to consider the other grounds
challenging the order.
Relief Unknown in Law Granted
[26) The condemnation that this Court has granted a relief that is unknown in law rings
hollow, especially in circumstances where it is not the first to have done so under similar
situations. The criticism levelled at the Court does not, it would seem, consider that prior
to the TPCA , Trusts and their operations were governed by the common law. When the
TPCA was introduced, the purpose was never to oust the common law because the
preamble of the TPCA is explicit on the matter - "To regulate further the control of trust
property: and to provide for matters connected therewith". By using the word "further", the
property: and to provide for matters connected therewith". By using the word "further", the
Legislature makes it apparent that there is another system of law that is in existence and
that the TPCA adds to it.
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[27] It is thus not uncommon that Courts have, in appropriate circumstances such as
the current, appointed interim administrators or Trustees. These circumstances include
situations where Trustees mismanage the financial affairs of a Trust or fail to account to
the community for which the Trust has been established to exercise control over their
property or properties. Thus, in the unreported case of Makhubela and Others v
Thembinkosi N.O. and Others,6 Tuchten J, in circumstances where there was
mismanagement of a Trust, suspended Trustees and appointed an interim administrator
to run the affairs of the Trust pending the hearing of Part "B" of the application. It is worth
noting that the attempt to appeal the decision failed before the Supreme Court of Appeal.
To grant leave to appeal would be an unnecessary burden to the Full Court of this Division
or the Supreme Court of Appeal.
Incorrect Reliance on Paragraph 212 of LAWSA
[28] This Court has been criticised for its reliance on Volume 43, Paragraph 212 of
LAWSA. Perhaps I should reiterate that in circumstances where a Trust is sure to fail as
a result of the inaction or action of Trustees or where there are no Trustees, as is the
case in casu, a Court is, at common law, at liberty to save such Trust by taking such
measures as may be appropriate to rescue it from total failure to safeguard the rights of
the beneficiaries. This Court did exactly what the authors in LAWSA have set out in
Volume 43, paragraph 212 of LAWSA. As such, I am at a loss as to why the bold
statement of the Former Trustees and Lisbon Developments that the court was wrong to
rely on it was made. They furnish no reasons why the paragraph is incorrect.
Incorrect Reliance on the Mwelase Decision
(29] The argument of the Former Trustees and Lisbon Developments is that the
Constitutional Court in the Mwe/ase case was concerned with the crafting of a remedy in
terms of section 172 in a situation where there were consistent constitutional failures to
terms of section 172 in a situation where there were consistent constitutional failures to
6 Makhubela and Others v Thembinkosi N .O. and Others (2022) ZAGPPHC 470.
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deal with land claims. Furthermore, the matter was not considered in the context of a trust
deed and the TPCA. Therefore, it was incorrect of this Court to make the extensive
reference to the matter. The reference to the Mwelase case was deliberate and this Court
still maintains that it was appropriately used. I have already stated that this Court derived
the power to appoint Ms Pando from common law. The Mwelase case demonstrates that
in appropriate circumstances Courts should not be deterred to intervene to save trusts to
protect the interest of its beneficiaries or communities, it being neither here nor there that
the Constitutional Court in the Mwelase matter did so against the backdrop of Section
172 of the Constitution of the Republic. I cannot emphasise it more than I have already.
Failure to Apply the Plascon-Evans Rule
[30] The Former Trustees and Lisbon Developments could not gainsay the fact that
Lisbon Developments paid funds to the Trust. The amounts that the Former Trustees paid
to various parties, including Mr Tibane, his friend and Mr Mculu were not disputed at all.
Furthermore, no explanation was proffered for the large cash withdrawals made by the
Former Trustees. An argument that seeks to state that the Trustees who were in office
prior to the Former Trustees also mismanaged or stole funds paid to the Trust is rejected
as immaterial in these proceedings. The basis for that is that those Trustees are not
parties to this application. In any event and to the extent that the Former Trustees were
legitimately appointed in terms of the trust deed and subsequently endorsed by the
Master of the High Court in terms of the TPCA , suggests that the Trust was still
salvageable from the instabilities that characterised it.
[31] The fact that this Court may not have applied the Plascon-Evans rule will not
change the mismanagement of the Trust and that it remains without Trustees. The
appointment of Ms Pando was under those circumstances justified and prospects that
appointment of Ms Pando was under those circumstances justified and prospects that
another Court wou ld reach a different conclusion are remote.
Usurpation of the Powers of the Master
[32] A further ground is that this Court has essentially usurped the functions of the
Master of the High Court by appointing Ms Pando . The Respondents had previously
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alerted the Master of the Court to the dysfunctionality of the Trust. The Master took no
action and when these proceedings were initiated, he specifically stated that he would
abide by the decision of the Court. I do not think it would have served any purpose to
pause this matter so that he could attend to the problems experienced by the Trust.
Especially in circumstances where the Court possessed the power and jurisdiction and
could achieve the same objective as it was seized with the matter already.
Locus Standi of the Former Trustees and Lisbon Developments
[33] The Former Trustees have admitted that their term of office came to an end a long
time ago. That being so and without any allegation that they were beneficiaries when the
application for the appointment of Ms Pando was launched, leaves them without locus
standi. Their interference in this application was gratuitous. Lisbon developments had
been aware that the Former Trustees no longer had any interest in the matter because
their term of office had expired. Besides, Lisbon itself was aware that the Respondents
had always sought relief against the Former Trustees and not them. Additionally, it has
always been plain that the Respondents had cited them for such interest that they might
have in this matter and that the Respondents were not seeking any relief against them.
As such, it has always been apparent to Lisbon Developments that it would not suffer any
prejudice such that they needed to oppose the relief.
[34] For the above reasons, Lisbon Developments had no strong reasons to be part of
these proceedings. Their presence in this matter served only to burden this Court with
unnecessary lengthy documents that could have been avoided. This Court is entitled to
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show its displeasure by ordering costs against the Former Trustees and Lisbon
Developmen ts at an appropriate scale.
[35] For the reasons above, the leave to appeal fails and I make the following order:
1. Leave to appeal is refused.
2. The Former Trustees and Lisbon Developments are directed to pay the costs of
the Respondents, jointly and severally, at Scale C of party and party;
3. The costs above shall include those of two Counsel.
Appearances
Counse l for the Applicants:
Instructed by:
A MASHILE
JUDGE OF THE HIGH CO URT
MPUMALANGA DIVISION, MBOMBE~
Adv T Strydom SC
Adv JP Slabbert
Richard Spoo r Inc
C /0 Christo Smith Inc
Counse l for the Respondents: Adv A Bishop SC
Adv S Mathe
Adv N T armohamed
Instructed by: M culu Inc Attorneys for 1 st to 3rd Respondents
C/0 Yuanitha Du Plessis Attorneys
Strauss Scher Attorneys for 4th to 6 th Respondents
Da te of Judgm ent: 28 July 2025