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Magolego NO and Others v Magolego and Others (Leave to Appeal) (11014/2022) [2025] ZALMPPHC 156 (21 August 2025)

45 Reportability
Trusts and Estates
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Brief Summary

In the High Court of South Africa, Limpopo Division, the case of Mabutlanyane Nemia Magolego N.O and others v Magolego Kgola Klaas and others (Case No: 11014/2022) involved an application for leave to appeal a previous judgment that dismissed the applicants' Rule 30 applications aimed at setting aside Rule 7(1) notices. The applicants, who are trustees of the Ditamaga Trust, sought to challenge the validity of these notices, arguing that they were irregular and filed late without proper condonation. However, the court found that the notices were valid and that the brief delay in filing did not prejudice the respondents, thus justifying the condonation. The court emphasized that the applicants failed to demonstrate proper authorization to litigate on behalf of the trust, as their authority was fundamentally disputed. The judgment highlighted the importance of accountability and transparency from trustees to the beneficiaries of the trust, stating that allowing the appeal would only serve to delay the resolution of substantive issues. Ultimately, the court concluded that there was no reasonable prospect of success for the appeal, nor any compelling reason to grant it, as the matter did not raise novel legal principles but rather involved trustees attempting to evade their fiduciary duties through procedural technicalities.

Comprehensive Summary

Case Note


Mabutlanye Nemia Magolego N.O. and Others v Magolego Kgola Klaas and Others

CASE NO 11014/2022 (High Court of South Africa, Limpopo Division, Polokwane)

Judgment delivered 21 August 2025


Reportability


Although the presiding judge marked the judgment “Not Reportable”, the decision is significant because it clarifies the proper approach to applications for leave to appeal under section 17(1) of the Superior Courts Act 10 of 2013, especially where trustees rely on technical procedural points to avoid their fiduciary duty to account. The judgment also emphasises the personal liability of trustees who litigate without proper authority, reinforcing protections for beneficiaries against the depletion of trust assets. Consequently, practitioners, fiduciaries and courts alike will find the case instructive on the limits of technical objections and the circumstances in which punitive personal-costs orders are justified.


Cases Cited


MEC for Health, Eastern Cape v Mkhitha (1221/15) [2016] ZASCA 176 (25 November 2016)


Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A)


Legislation Cited


Superior Courts Act 10 of 2013


Rules of Court Cited


Uniform Rule 7(1)


Uniform Rule 30


HEADNOTE


Summary


The applicants, six of nine trustees of the Ditamaga Trust, sought leave to appeal against a judgment delivered on 26 July 2024 which had dismissed their Uniform Rule 30 application to set aside Rule 7(1) notices that challenged their authority to act on behalf of the trust. Acting Judge N Gaisa refused leave under section 17(1) of the Superior Courts Act, holding that there was no reasonable prospect of success nor any other compelling reason for an appeal. The court stressed that the trustees’ procedural objections were a stratagem to avoid accounting to beneficiaries and confirmed a personal costs order to protect the trust estate.


Key Issues


Whether the Rule 7(1) notices were irregular or time-barred.


Whether leave to appeal should be granted given the section 17(1) threshold of “reasonable prospects of success” or “some other compelling reason”.


Whether the punitive personal costs order against the applicant-trustees was justified in circumstances where their authority to litigate was disputed.


Held


The court held that the Rule 7(1) notices were valid, that the brief delay in filing was properly condoned without prejudice, and that no other court would likely reach a different conclusion. The court further found no compelling reason to entertain an appeal and confirmed that the personal costs order—expressly excluding recourse to trust assets—was an appropriate exercise of judicial discretion. Leave to appeal was therefore dismissed with costs on a party-and-party basis, payable personally by the trustees.


THE FACTS


The Ditamaga Trust consists of nine trustees, six of whom launched Rule 30 applications to strike out Rule 7(1) notices served by the respondents. Those notices questioned whether the six trustees had been properly authorised, in terms of the trust deed, to defend litigation and to bring collateral applications for security for costs.


On 26 July 2024 the court dismissed the Rule 30 applications, finding that the Rule 7(1) notices were both procedurally sound and substantively justified. The applicants then filed the present application for leave to appeal, contending that the earlier ruling had failed to pronounce on the alleged irregularity, had condoned late filing without proper basis, and had wrongly imposed personal costs.


Throughout, the trustees avoided providing documentary proof of authorisation, choosing instead to rely on technicalities. The respondents argued that such conduct prejudiced the beneficiaries, that continued delays undermined accountability, and that further proceedings would merely exhaust time and resources.


THE ISSUES


The principal legal question was whether leave to appeal should be granted under section 17(1) of the Superior Courts Act, which demands a reasonable prospect that another court would reach a different conclusion, or the existence of some compelling reason to hear the appeal.


Subsidiary to that enquiry was whether the Rule 7(1) notices were indeed irregular or hopelessly out of time, whether condonation had been appropriately granted, and whether the court had erred in making trustees personally liable for costs.


The matter also raised the broader issue of trustees’ fiduciary obligations: could trustees invoke technical procedural objections to shield themselves from accounting to beneficiaries, and should the trust estate bear the financial burden of their unauthorised litigation?


ANALYSIS


The court began by reciting the statutory test in section 17(1)(a) of the Superior Courts Act, stressing that a mere arguable case is insufficient; there must be a sound, rational basis to believe an appeal will succeed. Citing MEC for Health, Eastern Cape v Mkhitha, the court reaffirmed that speculation or optimism does not meet the threshold.


Turning to the first ground of appeal, the judge pointed to paragraphs [8] and [9] of the substantive judgment where the validity of the Rule 7(1) notices had been fully canvassed. The applicants’ assertion that the court failed to decide on the irregularity was therefore factually incorrect, and no different outcome could be expected on appeal.


Regarding lateness, the court re-examined its discretionary decision to condone a four-day delay, noting that the applicants demonstrated neither prejudice nor any legal error in the balancing of interests. The judge concluded that appellate interference with such discretion was unlikely.


On costs, the court emphasised that trustees have heightened fiduciary duties; when they act without clear authority, they risk personal liability. Given the trustees’ silence when invited to address the allocation of costs, coupled with their persistent refusal to furnish proof of authorisation, the personal costs order was both principled and proportionate. To allow trust funds to be dissipated for unauthorised litigation would undermine the very purpose of trust law and defeat the beneficiaries’ rights.


Finally, the court underscored policy considerations. Relying on Trans-African Insurance Co Ltd v Maluleka, it held that technical objections should not obstruct the expeditious resolution of disputes, especially where beneficiaries’ interests are at stake. The trustees’ behaviour revealed a pattern of delay that the court was not prepared to condone.


REMEDY


The application for leave to appeal was dismissed in its entirety. The applicants were ordered, jointly and severally in their personal capacities, to pay the costs of the application on the ordinary party-and-party scale. The order expressly barred them from utilising trust assets for that purpose, thereby safeguarding the beneficiaries against financial prejudice.


LEGAL PRINCIPLES


First, an applicant for leave to appeal under section 17(1) must demonstrate a realistic, not merely arguable, prospect of success or show some compelling systemic reason for appellate intervention. This threshold is intentionally rigorous to filter out meritless appeals.


Second, trustees cannot shelter behind formal citation as trustees when their underlying authority is challenged. They carry the onus to establish compliance with the trust deed and, failing that, expose themselves to personal liability for costs.


Third, courts will not permit technical procedural objections—absent demonstrable prejudice—to trump the substantive administration of justice. Where trustees deploy such tactics to avoid accountability, personal costs orders and the refusal of leave to appeal may follow, thereby vindicating beneficiaries’ interests and preserving trust assets.

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 11014/2022
REPORTABLE : NO
OF INTEREST TO THE JUDGES : YES /NO
REVISED .
DATE 21/8/2025 SIGNATURE ...
In the matter between:
MABUt.ANYANE NEMIA MAGOLEGO N.O
SELETANE PHILEMON MOKOBAKA N.O
MADIETE EUNICE MOROTA N.O
LETSEPE JOYCE SELOANE N.O
MPHELA MAMASELE DINA N.O
CHIDI JOHN MASHILO N.O
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
Fifth Applicant
Sixth Applicant

2
and
MAGOLEGO KGOLA KLAAS
MASHILO MAKWESHE LUCAS
MAGOLEGO MAPONYA EDWARD
MAGOLEGO BOKGOBELO ELLIOT
MAGOLEGO MOSHIANE JULIA
MAGOLEGO DONALD HLANUDI
MAGOLEGO SERVICE MOTUBATSE
MADUANE MOTLALECHEGO SHARDRACK
MOROTA MATSHEHLE SHARDRACK
MOROTA TEBADI HENDRICK
MOROTA MABORE JOHANNA
In re:
In the matter between:
MAGOLEGO KGOLA KLAAS
MASHILO MAKWESHE LUCAS
MAGOLEGO MAPONYA EDWARD
MAGOLEGO BOKGOBELO ELLIOT
MAGOLEGO MOSHIANE JULIA
MAGOLEGO DONALD HLANUDI
MAGOLEGO SERVICE MOTUBATSE
MADUANE MOTLALECHEGO SHARDRACK
MOROTA MATSHEHLE SHARDRACK
MOROTA TEBADI HENDRICK
MOROTA MABORE JOHANNA
and
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
Eighth Respondent
Ninth Respondent
Tenth Respondent
Eleventh Respondent
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
Fifth Applicant
Sixth Applicant
Seventh Applicant
Eighth Applicant
Ninth Applicant
Tenth Applicant
Eleventh Applicant

MMIDI WILLIAM MAGOLEGO N.O
CHIDI JOHN MASHILO N.O
3
SELETANE PHILEMON MOKOBAKA N.O
LEHWELELE GEOFFREY MAGOLEGO N.O
MADIETE EUNICE MOROTA N.O
LETSEPE JOYCE SELOANE N.O
MPHELA MAMASELE DINA N.O
HAMANE RALPH LEKGEU N.O
MABULANYANE NEMIA MAGOLEGO N.O
MASTER OF THE HIGH COURT
JUDGEMENT
GA!SAAJ
INTRODUCTION
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Sixth Respondent
Seventh Respondent
Eighth Respondent
Ninth Respondent
Tenth Respondent
[1] This is an application for leave to appeal against my judgment delivered on 26
July 2024, wherein I dismissed the applicants' Rule 30 applications seeking to set
aside Rule 7(1) notices. The applicants, who are trustees of the Ditamaga Trust,
now seek leave to appeal to either the Full Court or the Supreme Court of Appeal.

4
THE TEST FOR LEAVE TO APPEAL
[2] Section 17(1 )(a) of the Superior Courts Act 10 of 2013 provides that leave to
appeal may only be granted where the judge is of the opinion that:
2.1. the appeal would have a reasonable prospect of success; or
2.2. there is some other compelling reason why the appeal should be
heard, including conflicting judgments on the matter under
consideration.
[3] The test requires more than a mere possibility of success. As emphasized in
MEC Health, Eastern Cape v Mkhitha (1221/15) [2016] ZASCA 176 (25 November
2016), there must be a sound, rational basis to conclude that there is a reasonable
prospect that another court would come to a different conclusion. An arguable case
or one that is not hopeless is insufficient. The SCA held that:
'T17] An applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance of success on
appeal. A mere possibility of success, an arguable case or one that is not
hopeless, is not enough. There must be a sound, rational basis to conclude
that there is a reasonable prospect of success on appeal."

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GROUNDS OF APPEAL RAISED & CONSIDERED
[4] Alleged Failure to Decide on Irregularity:
The applicants contend I failed to decide whether the Rule 7(1) notices were
irregular before dismissing their application. This is patently incorrect. In
paragraphs [8] and [9] of my judgment, I expressly found that the notices
were valid and would stand. The finding was clear and unambiguous.
[5] Lateness of Notices:
The applicants argue the notices were filed late without proper condonation. I
addressed this comprehensively in my judgment, finding that the brief delay
of four days caused no prejudice and that it was in the interests of justice to
condone the late filing. The applicants have shown no error in this exercise
of judicial discretion.
[6] Costs Order:
The applicants challenge the personal costs order made against them. It is
significant that when given the opportunity to address the court on the issue
of costs and how such costs should be allocated, the applicants elected not

6
to participate in that exercise. This silence speaks volumes about their
approach to these proceedings.
[7] A particularly concerning aspect of this matter is that six out of nine trustees
have instituted these Rule 30 applications and are opposing the main application as
well as the security for costs application. The authority of these trustees to act in
their capacity as trustees has been fundamentally disputed. The applicants appear
to labour under the misconception that merely being cited as trustees automatically
entitles them to litigate on behalf of the trust, irrespective of whether they have
obtained the necessary authority in terms of the trust deed.
[8] It would be manifestly unjust and unreasonable for the beneficiaries of the
trust to suffer financial prejudice because trustees are acting outside the scope of
their authorization. The evidence strongly suggests that the applicants are litigating
in their personal capacities rather than on the authority of the trust in accordance
with the trust instrument. Given their failure to demonstrate proper authorization,
their knowledge as trustees of their fiduciary duties, and their failure to show any
prejudice from the alleged irregularities, the personal costs order was both
appropriate and within the court's discretion. To allow trust assets to be depleted for
unauthorized litigation would be contrary to the interests of justice and the protection
of beneficiaries.

7
The Real Issue
[9] What emerges clearly from this matter is that the applicants, as trustees, are
employing technical procedural objections to avoid their fundamental fiduciary duty
to account to the beneficiaries of the trust. As stated in Trans-African Insurance Co
Ltd v Maluleka 1956 (2) SA 273 (A) at 278F-G:
"Technical objections to less than perfect procedural steps should not be
permitted, in the absence of prejudice, to interfere with the expeditious and if
possible inexpensive decision of cases on their real merits."
[10] The applicants have not demonstrated that they are duly authorized in terms
of the trust deed to oppose the main application or institute proceedings for security
for costs. Instead of providing this straightforward documentation, they persist with
technical challenges that serve only to delay the inevitable - they must account to
the beneficiaries.
[11] No Reasonable Prospect of Success:
The applicants have failed to show that another court would likely reach a
different conclusion on any of the grounds raised. My findings were based on
established legal principles correctly applied to the facts. The Rule 7(1)

8
notices properly challenged the trustees' authority to act on behalf of the trust
-a legitimate inquiry given their fiduciary obligations.
[12] No Compelling Reason:
There is no compelling reason why this appeal should be heard. The matter
does not raise any novel or complex legal principles. It is simply a case of
trustees attempting to avoid accountability through procedural technicalities
that do not advance the interests of the very beneficiaries they are meant to
serve.
INTERESTS OF JUSTICE
[13] The interests of justice do not favour granting leave to appeal. The
beneficiaries of the Ditamaga Trust have a right to transparency and accountability
from their trustees. Granting leave would only serve to further delay the resolution of
the substantive issues and enable the trustees to continue avoiding their fiduciary
duties.
[14] Whether the applicants eventually succeed on petition to the Supreme Court
of Appeal or not, the fact remains that they must account to the beneficiaries. This is

9
not a technical requirement but a fundamental aspect of trust law. Why delay the
inevitable by granting leave to appeal?
CONCLUSION
[15] The applicants have not satisfied me that there is a reasonable prospect that
another court would come to a different conclusion. Their grounds of appeal are
without merit and appear designed to frustrate the legitimate demands of the
beneficiaries for accountability.
[16] The application reveals a concerning pattern of trustees using procedural
maneouvers to avoid their fundamental duties. This does not serve the interests of
justice or the beneficiaries they are meant to protect.
ORDER
[17] In the result, the following order is made:
17 .1. The application for leave to appeal is dismissed.
17 .2. The applicants are ordered to pay the costs of this application on a
party-to-party scale, such costs to be paid by them jointly and

10
severally in their personal capacities, the one paying the others to be
absolved.
17 .3. The applicants are prohibited from using trust assets to satisfy this
costs order.
N GAISA
ACTING JUDGE OF THE HIGH COURT,
POLOKWANE, LIMPOPO DIVISION
DATE HEARD: 6 June 2025
DATE DELIVERED: 21 August 2025
APPEARANCES
For the Applicants (Respondents in the main application): Adv. Mokwena
INSTRUCTED BY: Gilbert Motedi Attorneys Inc.
c/o Matotola Tseleng Attorneys

11
5 Bekker Street, Polokwane
For the Respondents (Applicants in the main application): Adv. Green
INSTRUCTED BY: DDKK Attorneys
19 Watermelon Street Polokwane

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