IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NO: 15476/2023P
In the matter between:
FUNDISIWE GUGULETHU DLAMINI N.O. FIRST APPLICANT
DUDUZILE VINORY SIKAKANA N.O. SECOND APPLICANT
NOKULUNGA REJOICE NDODO CELE N.O. THIRD APPLICANT
MANDLA THOLITHEMBA MAKATINI N.O. FOURTH APPLICANT
PATRICK NKOSENTSHA MTHETHWA N.O. FIFTH APPLICANT
BHEKWAYINKOSI CELE N.O. SIXTH APPLICANT
FUNDISIWE GUGULETHU DLAMINI N.O. SEVENTH APPLICANT
DUDUZILE VINORY SIKAKANA N.O. EIGHTH APPLICANT
NOKULUNGA REJOICE NDODO CELE N.O. NINTH APPLICANT
MANDLA THOLITHEMBA MAKATINI N.O. TENTH APPLICANT
PATRICK NKOSENTSHA MTHETHWA N.O. ELEVENTH APPLICANT
BHEKWAYINKOSI CELE N.O. TWELFTH APPLICANT
and
MZIKAYIFANI SYDNEY ZIBANI N.O. FIRST RESPONDENT
PHALANE COMMUNITY TRUST SECOND RESPONDENT
(Registration Number: IT338/2006/PMB)
MASTER OF THE HIGH COURT THIRD RESPONDENT
In re interlocutory rule 30 matter between:
SIYAQHUBEKA FORESTS (PTY) LTD APPLICANT
(First Respondent in the main application)
2
and
PHALANE COMMUNITY TRUST FIRST RESPONDENT
FUNDISIWE GUGULETHU DLAMINI N.O. SECOND RESPONDENT
MANDLA MBEKI MHKWANAZI N.O. THIRD RESPONDENT
DUDUZILE VINORY SIKAKANA N.O. FOURTH RESPONDENT
NOKULUNGA REJOICE NDODO CELE N.O. FIFTH RESPONDENT
In re:
PHALANE COMMUNITY TRUST FIRST APPLICANT
FUNDISIWE GUGULETHU DLAMINI N.O. SECOND APPLICANT
MANDLA MBEKI MHKWANAZI N.O. THIRD APPLICANT
DUDUZILE VINORY SIKAKANA N.O. FOURTH APPLICANT
NOKULUNGA REJOICE NDODO CELE N.O. FIFTH APPLICANT
and
SIYAQHUBEKA FORESTS (PTY) LTD FIRST RESPONDENT
MINISTER OF FORESTRY, FISHERIES AND
THE ENVIRONMENT SECOND RESPONDENT
MINISTER OF AGRICULTURE, LAND REFORM
AND RURAL DEVELOPMENT THIRD RESPONDENT
DIRECTOR GENERAL OF AGRICULTURE, LAND
REFORM AND RURAL DEVELOPMENT FOURTH REPONDENT
THE COMMISSION FOR RESTITUTION OF
LAND RIGHTS SIXTH RESPONDENT
MBONAMBI COMMUNITY TRUST SIXTH RESPONDENT
WESTERNSHORES COMMUNAL TRUST SEVENTH RESPONDENT
DUKUDUKU LAND CLAIM COMMITTEE EIGHTH RESPONDENT
___________________________________________________________________
ORDER
___________________________________________________________________
In the premises the following order is made:
3
The first respondent’s application for leave to appeal is dismissed with costs on scale
B.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Mathenjwa J
[1] This is a leave to appeal by Mr Zibani, who was the first respondent in the
main application concerning the validation of the resolution passed by the majority of
trustees. Leave to appeal is sought against the judgment and order handed down by
this court on 19 August 2025, in which the court confirmed the resolution adopted by
the majority of trustees of the Phalane Community Trust (the second respondent in
the main application ) (the Trust), appointing Mr Morne Coetzee as the attorney of
record for the Trust.
[2] Though there were overlaps to the applicant’s grounds of appeal, the grounds
of appeal are summarised under four ma in grounds. First , that the court heard a
matter that was part -heard before Siwendu J . Second, that the court erred in finding
that this application was on all fours with Shepstone and Wylie Attorneys v De Witt
NO and Others.1 In that judgment, a trust deed provided for a free-standing majority
clause and the court found that in a trust with a free-standing majority clause , the
trustees need not take decisions unanimously but a majority decision of the trustees
is binding. Third, the applicant contend ed that the court erred in finding that the
alleged meeting of the beneficiaries reportedly vetoing the decision of the trustees to
nominate Mr Morne Coetzee as the Trust ’s legal representative was illegal and
invalid. Fourth, the applicant introduced a further ground in court, contending that the
court erred in granting a costs order against the applicant personally, who was cited
as a trustee in the main application.
[3] Leave to appeal is regulated by s 17(1) of the Superior Courts Act 10 of 2013,
which provides that:
which provides that:
1 Shepstone and Wylie Attorneys v De Witt N O and Others [2025] ZACC 14; 2025 (11) BCLR 1299
(CC) (Shepstone and Wylie).
4
‘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
(ii) there is some other compelling reason the appeal should be heard , including
conflicting judgments on the matter under consideration;
(b) the decision sought on appeal does not fall within the ambit of section 16(2)(a) ; and
(c) where the decision sought to be appealed does not dispose of all the issues in the
case, the appeal would lead to a just and prompt resolution of the real issues
between the parties.’
If leave to appeal is based on the prospects of success, ‘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’.2
Furthermore, leave to appeal should be granted if there are compelling reasons
which exist why the appeal should be heard, such as the interests of justice.3
[4] In his heads of argument and before court, counsel for the applicant submitted
that the court erred in taking over the matter, which was a part -heard matter before
Siwendu J. Furthermore, the court erred in dealing with the application to remove the
application that was before Siwendu J from the roll and postpone it sine die, when it
was not seized with the matter. Regarding the decision of the trustees dated 26 July
2025, it was submitted on behalf of the applicant that the order by Siwendu J
directed the parties to mediate the dispute, not just to rush voting without first
attempting to resolve the dispute.
[5] In his heads of argument and before the court, counsel for the respondents
who were applicants in the main application disputed that the application before this
court was a part-heard , in that Siwendu J had stood down the application that was
before her to 8 July 2025 for the resolution of the dispute about the actual attorney
before her to 8 July 2025 for the resolution of the dispute about the actual attorney
who was appointed by the trustees as the legal representative of the Trust, which
dispute subsequently gave rise to the application that was before this court. It was
further contended on behalf of the respondents that the meeting of the beneficiaries
2 S v Smith [2011] ZASCA 11; 2012 (1) SACR 567 (SCA) para 7.
3 Nova Property Group Holdings Ltd and Others v Cobbett and Another [2016] ZASCA 63: 2016 (4)
SA 317 (SCA) para 8.
5
that was allegedly held on 28 July 2025 was not legally convened in ter ms of the
trust deed.
[6] It should be pointed out upfront that the application before this court was
another interlocutory application that arose from another application that was heard
before Siwendu J. It is not in dispute that the application before Siwendu J was an
interlocutory application regarding an irregular step in terms of rule 30 of the Uniform
Rules. Since there were two attorneys who purported to act on behalf of the Trust,
the court ordered that the trustees should meet by no later than 29 July 2025 to
resolve and appoint a legal representative for the Trust.
[7] The trustees met on 26 July 2025, and all seven trustees participated in voting
for the attorney who would represent the Trust. Six out of the seven trustees voted in
favour of Mr Morne Coetzee representing the Trust and one trustee (Mr Zibani) voted
in favour of Mr Zondo represent ing the Trust . All six majority trustees signed the
resolution adopted for the appointment of Mr Morne Coetzee , except Zibani, who
refused to sign the resolution. The respondents launched an interlocutory application
seeking an order confirming the resolution of the trustee s, since Zibani refused to
sign the resolution. The interlocutory application was allocated to me, and I only
dealt with the issue relating to the confirmation of the trustees’ resolution. Therefore,
the applicant’s contention that this court dealt with a part-heard matter is unfounded.
[8] Regarding the adjournment of the rule 30 application that was before Siwendu
J, it should be recognised that the application could not proceed before the dispute
regarding the actual legal representative of the Trust that was before me was
resolved. A court need not be seized with a matter before it orders the postponement
of that matter. Therefore, it would be impossible for the application that was before
Siwendu J to be heard before the issue regarding the actual attorney who was
Siwendu J to be heard before the issue regarding the actual attorney who was
representing the Trust was resolved. Furthermore, the postponement of the matter
that was before Siwendu J has no impact on the merits of the leave to appeal on the
application that was before me.
[9] I now deal with the contention that the main application before me dealt with a
unanimous decision and not a free-standing majority trust. Ironically, during his
6
address, I asked the applicant’s counsel to refer the court to a provision in the trust
deed which states that the Trust was a unanimous decision trust, but he failed to do
so. On page 6 , paragraph 9 of my judgment, I referred to clau se 15.5 of the trust
deed, which provides that any question will be decided by majority vote. I pointed out
in my judgment that the Constitutional Court judgment of Shepstone and Wylie,
which is binding on me, held that in a free-standing majority trust, trustees are
required to act jointly but not unanimously. Therefore, there is no merit to this ground
of appeal.
[10] The third main ground of appeal relate d to the alleged meeting of the
beneficiaries that vetoed the decision of the trustees. On page 7, paragraph 12 of my
judgment, I referred to clause 17.1 of the trust deed regarding the prescribed
procedure f or conven ing a general meeting. I pointed out that in this matter , the
general meeting was not requested by the chairperson or deputy chairperson of the
board of trustees, nor by any three trustees or petition by 50% of registered
members. Ironically, at the hearing of the main application, the applicant’s counsel
did not dispute that there was no peti tion by registered members for a meeting to be
convened. Instead, he submitted that the members who attended the meeting
themselves should be considered as members who signed the petition. However, in
the application for leave to appeal, the applicant’s counsel contended that there was
a petition f or the meeting signed by r egistered members of the Trust. On page 8 ,
paragraph 3 of my judgment, I pointed out that there was not even a singl e person
who allegedly attended the meeting who deposed to a confirmatory affidavit
confirming that such a meeting indeed took place and that a decision was taken by
the registered members to overturn the majority decision of the trustees.
Accordingly, there is no merit in this ground of appeal.
Accordingly, there is no merit in this ground of appeal.
[11] This then brings me to the issue of costs. I have pointed out above that seven
trustees, including Zibani, participated in the discussion regarding the appointment of
an attorney for the Trust. Six trustees agreed on appointing Mr Morne Coetzee, but
Zibani dissented. Mr Zibani refused to sign a resolution, which was adopted by the
majority of trustees. The trustees would not have needed to launch the application
and incur costs for the confirmation of the majority decision if Zibani had not refused
to sign the trustees’ resolution. Even after the trustees ha d instituted the court
7
application, Mr Zibani opposed the application in his capacity as a trustee and
beneficiary, without providing a single affidavit from either the registered members or
beneficiaries of the Trust in support of his version. Therefore, the Trust should not be
burdened with costs in circumstances where the applica nt individually and
unnecessarily caused the Trust to incur these costs in this litigation.
[12] I am of the view that there are no prospects of success to this leave to appeal.
The Constitutional Court in Shepstone and Wylie laid down the principle regarding
the effect of a majority decision in a free-standing majority trust. That decision is
binding on all courts . Therefore, there are no compelling reasons, nor is it in the
interests of justice, to grant leave to appeal in this application. For these reasons, the
application for leave to appeal must fail with costs on scale B.
[13] In the premises, the following order is made:
The first respondent’s application for leave to appeal is dismissed with costs on scale
B.
______________
MATHENJWA J
8
Appearances
Applicant’s counsel: Mr E Braga
Instructed by: Morne Coetzee Attorneys
Pretoria
Respondents’ counsel: Mr S Mdladla
Instructed by: Zondo Sokotshane Attorneys
Durban
Date of hearing: 3 February 2026
Date of judgment: 12 February 2026