IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPOR TABLE: N O
(2) OF INTERES T TO OTH ER JUDGES : NO
(3) REV ISED : YES
SIGNATUR E
In the matter between:
JACOB CHARLES MNISI
26/09/2025
DATE
MENZI JOHN NYAMBI
MAHLEKISANE MOSA CHIRWA
FANYANA ENOCH BHEMBE
And
THE MASTER OF THE HIGH COURT
OF SOUTH AFRICA , GAUTENG DIVISION,
PRETORIA
CASE NO: 2023-013876
FIRST APPLICANT
SECOND APPLICANT
THIRD APPLICANT
FOURTH APPLICANT
FIRST RESPONDENT
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SMILE ZANDILE NKOSI N. O. SECOND RESPONDENT
HLUPHEKA SALMINA MOHALE N.O. THIRD RESPONDENT
RODAH LINDIWE NGWEBYA N.O. FOURTH RESPONDENT
JOSIAH NDABAMBI MOKOENA N.O. FIFTH RESPONDENT
BONGAKE KENNETH SHAKOANE N.O. SIXTH REPONDENT
MAQUANDASHI ELIAS MATHABA N.O. SEVENTH RESPONDENT
ISAAC SITHOLE N.O. EIGHTH RESPONDENT
HENRY SIPHO LAMOLA N.O. NINETH RESPONDENT
MOKWAZI THEMBEKA NDZINGASE NKAMBULE N.O. TENTH RESPONDENT
MAGOLIDI JIM MANDLAZI N.O. ELEVENTH RESPONDENT
ZULU SAMEUL CHIRWA N.O. TWELVETH RESPONDENT
HENRY NTININI MZIMBA N.O. THIRTEENTH RESPONDENT
AGNES NTOMBIKAISE MAVUSO N.O. FOURTEENTH RESPONDENT
Delivered: This judgment was handed down electronically by circulation to the parties’ legal
representatives by email. The date and time of hand -down is deemed to be on 26
September 2025
JUDGMENT
Phahlamohlaka AJ
Introduction
[1] The applicants herein are seeking a declaratory order against the respondents in
the following terms:
1.1 That the second to fourteenth respondents were not duly elected as Trustees of the
Trust at a properly constituted annual general meeting of Trustees;
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1.2 The annual general meeting held on 1 3 July 2022, was not duly constituted as same
did not comply with the provisions of clauses 16 and 21 of the Trust Deed.
1.3 The second to fourteenth respondents are not eligible to be elected and appointed as
Trustees of the Trust as they are no longer permanently resident on the Trust Property
as defined in clauses 3.7 and 3.8 of the Trust Deed and in accordance with the
provisions of clause 15 of the Trust Deed:
1.4 An order directing the first respondent to cancel, alternatively withdraw the letter of
authority issued on 3 November 2022 in respect of the appointment of Trustees of the
Lebuyile Community Trust, IT number 4939/06(T).
1.5 An order directing the first respondent to appoint the applicants as Trustees of the
Trust together with an independent Trustee to be nominated by the first respondent to
act in such capacity, pending the election of Trustees for the Trust at a duly constituted
annual general meeting to be held within 30 days from the date of this order:
1.6 Directing that the second to fourteenth respondents pay the costs of Part B jointly and
severally.
[2] The application is opposed by the second to fourteenth respondents. However, the first
respondent, the Master of the High Court, is not opposing the application.
Background facts
[3] The application was initially brought in two parts, namely Part A which was an urgent
application, and Part B which is the current application. Part A served before Khumalo J
who dismissed the application for lack of jurisdiction.
[4] After Part A of the application was dismissed, the applicants set Part B down, and same
served before Leathern AJ, who dealt with the issue of jurisdiction after the respondents
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contended that this court lacks jurisdiction to deal with Part B of the application. Leathern
AJ ordered that this court has jurisdiction to deal with Part B of the application.
[5] The background of this matter is premised primarily on common cause facts. During
2006 the first respondent (the Master of the High Court, Pretoria), registered Libuyile
Community Trust (“the Trust”) in terms of section 6(1) of the Trust Property Control Act, 57
of 1998. The Trust emanated from a successful claim for restoration of land rights in terms
of the Restitution of Land Rights Act.
[6] During 2019, the Applicants, together with the second to fourteenth respondents were
duly elected as Trustees of the Trust and subsequent thereto, the first respondent issued
a letter of authority in terms of section 6(1) of the Trust Property Act, 57 of 1998.
[7] Disagreements between the applicants and the second to fourteenth respondents led
to the current application whereby the applicants are seeking, among others , that the
second to fourteenth respondents be removed as Trustees of the Trust.
Issues for determination
[8] In view of the fact that Khumalo J dismissed the application for lack of jurisdiction the
respondents initially contended that this matter has been finalized and therefore res
judicata. The respondents had also contended that this court lacks jurisdiction because
the cause of action arose in Mpumalanga where all the applicants as well as the second
to fourteenth respondents reside. However, these two points of law were abandoned at
the commencement of the hearing.
[9] The issues for determination are therefore, whether the second to fourteenth
respondents were duly elected as Trustees of the Trust at a properly constituted annual
general meeting held on 13 July 2022. It is the applicants’ case that the meeting held on
13 July 2022 did not comply with the provisions of clauses 16 and 21 of the Trust Deed.
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[10] Further, this court has to determine whether the second to fourteenth respondents
were eligible to be appointed as the Trustees of the Trust.
The legal framework
[11] Section 20 of the Trust Property Control Act1 provides that:
“A trustee may, on the application of the Master or any person having an interest in the trust
property, at any time be removed from his office by the court if the court is satisfied that such
removal will be in the interest of the trust and its beneficiaries…”
[12] The Trust Deed provides as follows:
“In addition to the eligibility requirements provided for by the trust property Control Act, number
57 of 1988, the following eligibility requirements and conditions (All being subject to each other )
relate to trustees:
13.12.1 Any member who wishes to stand for elections as a trustee shall have been a member of
a trust property for a total of nine months in the 12 months preceding the date of the elections;
13.12.2 only one person from one household may be a trustee at any given time ; provided that
beneficiaries show the overwhelming support in favour of a candidate from where a member has
been elected. In that event the beneficiaries will be free to nominate or to elect another member of
the trust from the very same household…”
The applicants’ case
[13] The applicants contend that at the second to fourteenth respondents were not resident
within the boundaries of the trust property as required by clause 15 .4 of the Trust Deed.
The applicants contend that at that time the second to fourteenth respondents were
1 Act 57 of 1998
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resident outside the boundaries of the trust property at least since November 2022. It is
the applicants’ case that only during the last two weeks of April 2023 did the respondents
start renovating three houses on the trust property for the purpose of occupying same in
an attempt to rectify the impasse and merely for the purpose of claiming to now reside
permanently on the trust property.
[14] The applicants further submit that contrary to the provisions of the directive issued by
the Master of the High Court Pretoria, dated 7 January 2022 , the second to fourteenth
respondents conducted a purported annual general meeting at which they caused
themselves to be elected as the new trustees of the trust on 13 July 2022.
Respondents’ case
[15] The second to fourteenth respondents contend that the appl icants are seeking a
declaratory relief relating to the lawfulness of the annual general meeting held on 13 July
2022 and the eligibility of the trustees to remain trustees as elected, while being fully aware
that the trustees were following their appointment in terms of the trust deed issued with a
valid letter of authority by the Master.
[16] It is further contended on behalf of the respondents that the decision to appoint has
not been reviewed or set aside and stands until such time as it is reviewed and set aside.
In the circumstances, the respondents contend, the relief of the court declaring on a right
prior to a reviewing and setting aside of a meeting and decision taken to appoint is
premature.
[17] On the alleged disqualification of the trustee based on section 15.4 of the Deed of
Trust, the respondents contend that it is not a requirement for a trustee to reside on the
property physically and permanently. According to the respondents all that is required for
the trustee to remain in office is to be entitled to be a permanent resident.
Discussion
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[18] It is common cause between the parties that an annual general meeting was held on
13 July 2022 in terms whereof the second to fourteenth respondents were elected as
Trustees of the Trust. That annual general meeting was conducted in conjunction with, and
facilitated by, the Department of Agriculture, Land Reform and Rural Development. The
Master of the High Court subsequently appointed the elected Trustees.
[19] It is true that the applicants ’ complaint is premised on the fact that the second to
fourteenth respondents were not eligible to be appointed trustees of the t rust property at
the time the annual general meeting was convened.
[20] It is not in dispute that the annual general meeting was facilitated by the Department
of Agriculture, Land Reform and Rural Development. I do not understand the applicants
contend that the meeting was improperly or irregularly held. If that was the case the
applicants would have brought a review application in that regard.
[21] Clause 15 of the trust deed deals with the trustees vacating office. The relevant sub-
clause for the purposes of this judgment is 15.4 which provides that;
“15.1 the office of the TRUSTEE shall be vacated if s/he:
15.4 is no longer permanently resident on the PROPERTY;”
[22] As alluded to earlier, the applicants contended that the second to fourteenth
respondents were not resident on the property at the time the annual general meeting was
held where they were elected trustees of the trust property. The second to fourteenth
respondents refuted this. They submitted that even if the court were to find that at the time
they were elected trustees of the property they were not resident within the property, they
corrected this by coming back into the property. Therefore, they are currently resident on
the trust property and consequently the argument that they are not legible on the basis of
them not being resident on the trust property falls flat.
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[23] In motion proceedings the parties the parties must make out their case on the papers.
It is therefore incumbent upon the applicants to put facts before court that the impugned
meeting wherein the second to fourteenth respondents were appointed was not properly
constituted.
[24] Further, it is now settled that in motion proceedings the affidavits constitute both the
pleadings and the evidence. Hence, the party to the motion proceedings stands and falls
on its papers. The applicant must make out its case in the founding affidavit which must
contain sufficient facts upon which a court may find in the applicant’s favour.
[25] In Director of Hospital Services v Mistry2, Dietmont JA said the following:
“When, as in this case, the proceedings are launched by way of notice of motion, it is to the
founding affidavit which a Judge will look to determine what complaint is …and as has been said
in many other cases: ‘… an applicant must stand or fall by his petition and the facts alleged therein
and that, although sometimes it is permissible to supplement the allegations contained in the
petition, still the main foundation of the application is the allegation of facts stated therein, because
those were the facts which the respondent is called upon either to affirm or deny.”
Conclusion
[26] It appears from the papers that there is rivalry between the applicants and the second
to fourteenth respondents. This much was conceded by the applicants and it appears in
their heads of argument where they said, “Given the rivalry between the parties and the history
of conflict between them, the Master of the High Court, Pretoria is best suited to appoint an interim
board of trustees to conduct a meeting of members of the trust for the purpose of electing trustees
to the board of trustees of the trust.”
2 1979(1) SA 626 (A) at 635H-636B
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[27] I agree w ith the second to fourteenth respondents that the applicants are not seeking
to review the results of the meeting nor are they seeking to review the Master's decision
to aw ard the certificate. The applicants approached this court on a declarator.
[28] In my view the second to fourteenth respondents w ere eligible to be elected, and
further there is no evidence that that meeting that elected them w as not properly
constituted. The applicants argued that because the Master did not oppose the application
this court should ma ke an order as prayed against the Master. In my view , this argument
is flaw ed because in order for this court to order the Master to cancel or w ithdraw the
certificate I m ust first find that the second to fourteenth respondents w ere not properly
appointed.
[29] The facts in this application do not support the applicant's case and therefore the
application stands to be dismissed.
Costs
[30] It is a trite that the aw ard of costs vests w ithin the discretion of the court. How ever, it
is an accepted principle of our law that the successful party must be aw arded costs. I
cannot find any reason to deviate from the principle.
Order
[31] In the result I make the follow ing order:
(a) The application is dism issed w ith costs including costs of Counse l to be taxed on scale
B .
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KF PHAHLAMOHLAKA
ACTING JUDGE OF THE HIGH COURT,
GAUTENG DIVISION, PRETORIA
Appearances
For the applicants: Adv. J H Klopper
Instructed by: Cavanagh and Richard Attorneys.
Email: stella@crlawhchambers.co.za
ross@crlawchambers.co.za
For the 2nd to 14th Respondents: Adv. Van Vuuren
Instructed by: Neethling and Vosloo Incorporated.
Email: stephan@nvinc.co.za
Date of judgment: 26 September 2025
Date judgment reserved: 02 May 2025