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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case no: 15832/2024P
In the matter between:
MOSES MJABULELENI NTOMBELA FIRST APPLICANT
THEMBOKWAKHE PHINIAS NTOMBELA SECOND APPLICANT
THEMBINKOSI PAULOS NTENGA THIRD APPLICANT
SIZAKELE NTOMBELA FOURTH APPLICANT
NTOMBIKHONA Z. KHONYILE ` FIFTH APPLICANT
NTOMBIZONKE SIBONGILE MKHWANAZI SIXTH APPLICANT
DINGENI MILDRED MTHIMKHULU SEVENTH APPLICANT
XOLANI SIZWE NTOMBELA EIGHTH APPLICANT
and
MASTER OF THE HIGH COURT:
PIETERMARITZBURG FIRST RESPONDENT
FUNDISIWE GUGULETHU DLAMINI SECOND RESPONDENT
(ID NO: 7[...])
HOWARD MARTIN FELIX THIRD RESPONDENT
(ID NO: 7[...])
FIRST NATIONAL BANK FOURTH RESPONDENT
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ORDER
1. The third respondent’s non - compliance with the court order of 13 May 2025 is
hereby condoned.
2. Condonation for the late filing of the first respondent heads of argument and
practice note is granted.
3. The rule nisi issued on 30 October 2024 is hereby discharged.
4. The applicants and first respondent must carry their own cost. The first
respondent is to pay the costs of the third respondent, on scale C.
JUDGMENT
Marion AJ
Introduction
[1] On 30 October 2024 Khuzwayo AJ granted an urgent rule nisi, with interim relief,
at the instance of the applicants (the rule). The matter stands opposed by the first and
third respondent s (the respondents) and to determine whether the rule should be
confirmed. Mr Sibisi appeared on behalf of the first to eighth applicants (the applicants)
whilst Mr Sibeko appeared on behalf of the first respondent (the Master) and Ms Van
Reenen appeared on behalf of the third respondent.
[2] The rule nisi reads as follows:
‘1 … calling upon the abovementioned respondents and any other interested party to show
cause, if any, on or before the 13th day of February 2025 at 09h30 or so soon thereafter as
counsel may be heard why an order should not be granted in the following terms:
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1.1. The appointment of the second and third respondents as trustees of Kwaziqongwana
Community Trust is set aside.
1.2. The second and thirst respondents are ordered to cease acting as trustees of the
Kwaziqongwana Community Trust and relinquish their powers in the bank accounts of the
Kwaziqongwana Community Trust held by the fourth respondent.
1.3. The first respondent is directed to authorise and immediately register the names of the
first to eighth applicants as the trustees of the Kwaziqongwana Community Trust within seven
(7) days of the date of this order.
1.4. The first respondent is directed to issue amended Letters of Authority in favour of the
first to the eighth applicants in terms of Section 6(1) of the Trust Property Control Act, 1988 (Act
57 of 1998).
1.5. It is hereby declared that the first applicant is the founder and trustee of Kwaziqongwana
Community Trust.
1.6. It is declared that the second to eighth applicants are lawfully elected trustees of the
Kwaziqongwana Community Trust.
1.7. The first, second and third respondents are directed to pay the costs of this application,
on an attorney and client scale; and
1.8. The fourth respondent is directed to immediately facilitate and allow the designated
trustees of the Kwaziqongwana Community Trust to operate its bank accounts.
2. The orders in paragraphs, 1.1, 1.2, 1.3 and 1.4 hereinabove, apply as an interim order,
with immediate effect pending final determination of this application.’
Preliminary challenges
[3] The Master brought a condonation application for the late filing of their heads of
argument and practice note. The applicant s opposed this application. The applicant s
conceded in court t hat the purpose of heads of argument and a practice note is for the
convenience of the court. The Master submitted that the applicants’ heads of argument
was not served on the state attorney, and this contributed to the delay in the Master
was not served on the state attorney, and this contributed to the delay in the Master
filing timeously. I found that , it was in the interest of justice as well as in the interest of
the Kwaziqongwana Community Trust (the Trust) and the community, to grant the
application for condonation, which I duly did.
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[4] The third respondent made an application for the condonation of his non -
compliance with the court order of 13 May 2025 taken by consent. The third respondent
was ordered in terms thereof to deliver his heads of arguments and practice notes on or
before 11 July 2025. The third respondent did not comply as his appointment as an
independent trustee was set aside after the rule nisi being granted on 30 October 2024,
and he ceased acting as a trustee. Ms Van Reenen submitted that it was on this basis
that the third respondent would not participate in these proceedings. Mr Sibisi had no
objections to the non -participation of the third respondent . However, he stated that he
would still be seeking confirmation of the rule against the second and third respondents.
This was due to the possibility that the Master may still appoint the second and third
respondents as trustees of the Trust . The third respondent he argued , opposed the
initial urgent application which was fully ventilated in court prior to the interim rule being
granted. Mr Sibisi stated that on the basis that the third respondent purported to act
‘with the blessing’ of the Master, should the rule be confirmed, the Master ought to pay
for the third respondent’s costs . Mr Sibisi argued that if the third respondent did not
oppose the matter, they would not be in the position of arguing the current matter. The
third respondent submitted that he acted on the oral instructions of the Master to
oppose this matter. He was appointed as an independent trustee at the time of the
institution of this application and had obtained insight and knowledge surrounding the
issues of the Trust . The third respondent argued that it was his duty to disclose such
information to the court. The issue of these costs will be addressed later in my judgment
and only become relevant if the rule is confirmed.
Background
[5] During apartheid the Kwaziqongwana Community was dispossessed of rights to
Background
[5] During apartheid the Kwaziqongwana Community was dispossessed of rights to
their land in terms of racially discriminatory laws. In 1998, a claim for restitution was
launched against the Minister of Rural Development and Land Reform, which claim was
accepted and the government purchased and restored portions of claimed land to the
community. The Trust was formed and registered to administer the restored land for the
benefit of the community. The applicants are members of the Trust which is established
in terms of the trust deed for the benefit of its members under the Trust Property Control
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Act 57 of 1988.The first applicant, Moses Mjabuleleni Ntombela , is the founder of the
Trust and an ex officio member of the Trust. The trust owns 100% shareholding in
Mkhwetha Trading (Pty) Ltd. The Trust partners with Mondi South Africa (Pty) Ltd from
which it derives financial benefits for rentals and services rendered.
[6] Clause 13 of the Trust deed sets out the process for the election of the trustees
and the relevant passages read as follows:1
‘Clause 13.1.1 E lection of Trustees shall take place every five (5) years at an annual general
meeting of members.
…
Clause 13.1.3 Trustees shall hold office for a five (5) year term from date of election and shall
be eligible to stand for election for a second term, whereafter he or she shall retire…
There shall at all times be not more than nine persons serving as trustees’.
Main challenges
[7] The following main challenges have been identified to be determined:
(a) Have the applicants satisfied the requirements for a final interdict in order to
satisfy the requirements for confirmation of the rule nisi?
(b) Have the respondents proved their rights so that the rule nisi is discharged and
the interim interdict dismissed?
(c) Has the Master acted unlawfully in appointing the respondents as independent
trustees?
The onus is on the applicant s to satisfy the requirements for a final interdict to satisfy
the requirements for confirmation of the rule nisi.
Mootness
[8] At the outset the court sought clarity from the applicants regarding the order
prayed for in the final order. Mr Sibisi contended that prayers 1.1 and 1.2 were moot. It
was common cause that the second and third respondents were no longer trustees of
the Trust. The applicants agreed that prayers 1.3 and 1.4 had already taken place. The
1 Pages 11-14 of the Trust Deed on pages 63-66 of the index.
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applicants were registered as trustees and issued with Letters of Authority in terms of s
6(1) of the Trust Property Control Act 57 of 1988. The applicants agreed that prayer 1.5
was not in dispute and that the first applicant was the founder and trustee of the Trust.
Mr Sibisi stated that prayer 1.6 had already happened and that the first to eighth
applicants were declared to be lawfully elected trustees of the Trust. The applicants
agreed that prayer 1.8 was dealt with and that the applicants were allowed to operate
the Trust’s bank accounts. In terms of prayer 1.7 the applicant s had handed up a draft
order seeking costs to be paid by the Master; to include costs of counsel on scale C. Mr
Sibisi argued that if the rule was discharged, the Master will be at liberty to engage in
conduct that will adversely affect the trust and the beneficiaries . He further stated that
the applicants were not trying to limit or undermine the statutory powers of the Master.
[9] The Master stated that the second respondent was no longer an interim trustee.
The third respondent was also no longer a trustee , as his appointment was set aside.
Mr Sibeko submitted that in light of this any decision by the court was academic and
would have no practical effect. He argued that the Master had at all times exercised his
statutory powers in appointing the third respondent as an interim trustee. He went on to
state that the court cannot interfere with the Master’s executive authority to appoint two
independent trustees where no wrongdoing or illegality has been placed before the
court, by the applicants. The Master argued that the applicants sought a declaratory
order in prayer 1.6 that was impermissible and unconstitutional. The court cannot
declare the Master’s conduct to be unlawful. Mr Sibeko handed up a draft order praying
for the rule to be discharged with each party to pay his or her own cost. Prayer three of
the order was to direct the first respondent to appoint an independent trustee together
the order was to direct the first respondent to appoint an independent trustee together
with the founder of the Trust as interim trustees within five days of the order. Prayer
four stated that the appointed interim trustees would be ordered to facilitate an elective
conference of the trustees in terms of clause 13 of the Trust on or before 13 October
2025.
The law
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[10] In JT Publishing ( Pty) Ltd and Another v Minister of Safety and Security and
Others2 the court stated that a matter that is moot falls outside the jurisdiction of the
court unless the interests of justice demand otherwise.
[11] The Constitutional Court in Normandien Farms (Pty) Limited v South African
Agency for Promotion of Petroleum Exportation and Exploitation (SOC) Limited and
Others3 gave some guidelines on the subject of mootness and stated:
‘[46] It is clear from the factual circumstances that this matter is moot. However, this is not the
end of the inquiry. The central question for consideration is: whether it is in the interests of
justice to grant leave to appeal, notwithstanding the mootness. A consideration of this Court’s
approach to mootness is necessary at this juncture, followed by an application of the various
factors to the current matter.
[47] Mootness is when a matter “no longer presents an existing or live controversy”. The
doctrine is based on the notion that judicial resources ought to be utilised efficiently and should
not be dedicated to advisory opinions or abstract propositions of law, and that courts should
avoid deciding matters that are “abstract, academic or hypothetical”.
[48] This Court has held that it is axiomatic that “mootness is not an absolute bar to the
justiciability of an issue [and that this] Court may entertain an appeal, even if moot, where the
interests of justice so require”. This Court “has discretionary power to entertain even admittedly
moot issues”.
[49] Where there are two conflicting judgments by different courts, especially where an appeal
court’s outcome has binding implications for future matters, it weighs in favour of entertaining a
moot matter.
[50] Moreover, this Court has proffered further factors that ought to be considered when
determining whether it is in the interests of justice to hear a moot matter. These include:
(a) whether any order which it may make will have some practical effect either on the parties
(a) whether any order which it may make will have some practical effect either on the parties
or on others;
(b) the nature and extent of the practical effect that any possible order might have;
(c) the importance of the issue;
(d) the complexity of the issue;
2 JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others [1996] ZACC 23; 1997
(3) SA 514 (CC).
3 Normandien Farms (Pty) Limited v South African Agency for Promotion of Petroleum Exportation and
Exploitation (SOC) Limited and Others [2020] ZACC 5; 2020 (6) BCLR 748 (CC).
8
(e) the fullness or otherwise of the arguments advanced; and
(f) resolving the disputes between different courts.’ (Footnotes omitted.)
[12] In President of the Republic of South Africa v Democratic Alliance and Others 4
the court stated:
‘[17] … But, this court has the discretionary power to entertain even admittedly moot issues.
In Langeberg we said that we have —
'a discretion to decide issues on appeal even if they no longer present existing or live
controversies. That discretion must be exercised according to what the interests of justice
require.”
[18] And in Shuttleworth we said —
'to the extent that it may be argued that this dispute is moot . . . this court has a discretion
whether to hear the matter. Mootness does not, in and of itself, bar this court from hearing this
dispute. Instead, it is the interests of justice that dictate whether we should hear the matter.'
(Footnotes omitted.)
Accordingly, a court may dismiss an application which has no practical effect or result.
The court is reaffirming the principle that matters that are moot should only be heard if
the interests of justice so require. The court has to establish whether a live controversy
continues to persist.
[13] In a recent judgment, Minister of Tourism and Others v Afriforum NPC and
Another,5 the Constitutional Court stated as follows:
‘A case is moot when there is no longer a live dispute or controversy between the parties which
would be practically affected in one way or another by a court’s decision or which would be
resolved by a court’s decision. A case is also moot when a court’s decision would be of
academic interest only.’
Analysis
[14] On the applicants own versions 1.1 and 1.2 are moot as the second and third
respondents are no longer trustees of the Trust. Prayers 1.3 and 1.4 have already taken
4 President of the Republic of South Africa v Democratic Alliance and Others [2019] ZACC 35; 2020 (1)
SA 428 (CC).
SA 428 (CC).
5 Minister of Tourism and Others v Afriforum NPC and Another [2023] ZACC 7; 2023 (6) BCLR 752 (CC)
para 23.
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place by the first respondent and the applicants are registered as trustees and have
been issued with amended letters of authority. Prayer 1.5 is common cause and is not
in dispute. The first applicant is the co -founder and trustee of the Trust. Prayer 1.6 has
taken place. Prayer 1.8 has been dealt with and there is no opposition from the fourth
respondent.
[15] This matter began with a set of facts that resulted in an interim interdict being
granted against the Master on an urgent basis. I am of the view, that due to subsequent
events and the passage of time the need to resolve these issues, became unnecessary.
Mr Sibisi argued that the rule must be confirmed as the Master may re -appoint the
second and third respondent. I find this argument to be speculative. The applicants may
have been entitled to the interim relief at the time that there were live issues. However,
confirming the rule, will have the effect of limiting the Master’s statutory powers , which
this court cannot do without going into the merits of the matter. The confirmation of the
rule nisi will serve no enforceable purpose.
[16] The court has a discretion to decide whether to delve into the merits of the matter
if the interest of justice so require. The third respondent on instructions from the Master
opposed this matter for the court to have the Master ’s version before it. In my view, the
third respondent acted with the Master ’s consent and in the interest of justice. I am
further of the view that this court does not have the authority to curtail the statutory
powers of the Master, unless it is clear to the court that the Master acted unlawfully. The
Master appointed two independent trustees to investigate and resolve the issues of the
Trust. There were allegations of mismanagement of the Trust and questions raised
regarding the lawfulness of the elective process, which resulted in the appointment of
certain trustees. In my view, the interest s of justice do not require me to decide on
certain trustees. In my view, the interest s of justice do not require me to decide on
whether t he Master acted with lawful authority to appoint the second and third
respondent as independent trustees. What is clear to me is that t here is no existing
controversy to pronounce upon. The main relief became moot through the passage of
time and the merits of the matter are accordingly no longer justiciable.
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Costs
[17] The facts and circumstances of the case demanded that the first and third
respondent partake in the litigation. The third respondent defended the actions of the
Master. The applicants argued that but for the third respondent’s initial opposition to this
matter, the matter would not have ensued to this point. During arguments both the
applicants,’ first and third respondents’ counsels agreed that the third respondent
should not be mulcted with costs. In any event, the third respondent was no longer a
trustee at the time of this hearing and did not actively participate in the final stage of the
proceeding.
[18] It is trite that the determination of costs is in the discretion of the judge. This
discretion must always be exercised judicially. 6 The applicants have not succeeded in
this application; however, this is not on the merits itself. The issue of costs must be
addressed from the perspective that no order on the merits is granted. It would be unfair
and inequitable to order t he applicants to pay the costs of any party. The third
respondent acted on the instructions of the Master in opposing the matter on an urgent
basis to avoid any delay . The third respondent had a substantial interest in the matter
as well as knowledge of the matter as he was a trustee at the time of the institution of
this application. In my view, it would be just if the Master was ordered to pay the costs
of the third respondent.
[19] In the circumstances, I grant the following order:
1. The third respondent’s non -compliance with the court order of 13 May 2025 is
hereby condoned.
2. Condonation for the late filing of the first respondent heads of argument and
practice note is granted.
3. The rule nisi issued on 30 October 2024 is hereby discharged.
4. The applicant s and first respondent must carry their own cost. The first
respondent is to pay the costs of the third respondent, on scale C.
________________________
6 Kruger Bros & Wasserman v Ruskin 1918 AD 63.
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MARION AJ
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Date of hearing: 07 August 2025
Date of judgment: 10 February 2026
APPEARANCES
For the applicant: Mr M Sibisi
Instructed by: Strauss Daly Inc
MNtsibande@straussdaly.co.za
For the first respondent: Mr V Sibeko
Instructed By: State Attorney
For the third respondent: Ms Van Reenen
Instructed By: State attorney