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[2023] ZAWCHC 104
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Franschhoek Claimants Trust v Executive Mayor Stellenbosch Local Municipality and Others (5057/2022) [2023] ZAWCHC 104 (12 April 2023)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 5057/2022
In
the matter between:
THE
FRANSCHHOEK CLAIMANTS TRUST
Applicant
and
EXECUTIVE
MAYOR STELLENBOSCH
LOCAL
MUNICIPALITY
First
Respondent
STELLENBOSCH
MUNICIPAL PLANNING TRIBUNAL
Second
Respondent
THE
STELLENBOSCH MUNICIPALITY
Third
Respondent
JUDGMENT
DELIVERED ELECTRONICALLY ON 12 APRIL 2023
MANGCU-LOCKWOOD,
J
A.
INTRODUCTION
[1]
This is an opposed application for review in terms of sections 6 and
8 of the
Promotion of Administrative Justice Act 3 of 2000 (“
PAJA”
).
The applicant seeks the review and setting aside of a decision taken
by the first respondent, in her capacity as the appeal authority,
in
which she revoked an approval granted by the second respondent (“
the
Municipal Tribunal”
) to the applicant in respect of erf
1692, Franschhoek, Western Cape (“
the property”
).
[2]
The applicant is a trust which was established to
hold in trust communal land - the property - on behalf of its
members. The property
was acquired pursuant to a land claim. The
beneficiaries of the applicant are made up of groups representing 40
claims, with a
total of 254 individual beneficiaries belonging to any
one of the claimant groups.
B.
THE FACTS
[3]
The decision that is the subject of the review concerns an
application made
on behalf of the applicant, in terms section 60 of
the Stellenbosch Municipality Land Use Planning By-Law (promulgated
in terms
of Provincial Notice 354/2015) (“
the By-Law”
),
in terms of which the applicant applied for the removal of a
restrictive title deed condition, rezoning, subdivision and
departures
in terms of section 15(2) of the By-Law.
[4]
The land use application was in fact submitted
to the Municipality by Headland Planners (Pty) Ltd, who in turn had
been appointed by Surrey Holmes (Pty) Ltd, a development company

appointed by the applicant to develop the property. The appointment
of Surrey Holmes by the applicant
was effected by
means of a consent document signed by eight of the applicant’s
trustees, which authorized Surrey Holmes to
undertake a proposed
construction of the property (“
the
consent document”
). Headland
Planners
was
appointed in terms of a
special power of attorney, supported by resolution, of
Surrey
Holmes
authorizing Headland Planners to submit the
application on behalf of the applicant.
[5]
The land use application was approved by the Municipal Tribunal on 18
August
2020. The approval letter gave notification of a right to
appeal the decision to the Appeal Authority in terms of section 79(2)

of the By-Law.
[6]
Two groups lodged appeals in terms of section 79(2), namely the
Franschhoek
Gegriefde Grondeiers Groep (“
the FGGG”
)
and a group referred to collectively as Ward 1 and Ward 2 Committees
(“
Ward 1 and 2”
). A report assessing the appeals
was submitted by an authorised employee of the Municipality to the
first respondent in terms of
section 80(12) of the By-Law, and found
that the appeals did not have merit.
[7]
In order to consider the application, the first respondent decided to
hold an
oral hearing in terms of section 81 of the By-Law, where all
the parties involved were afforded opportunity to present their cases

by way of written and oral submissions. The oral hearing took place
on 26 August 2021. The first respondent upheld the appeals,
thereby
revoking the decision of the Municipal Tribunal.
C.
THE APPEAL
[8]
The
basis for the appeal of
the FGGG was
that
the land use application did not contain
proof of any mandate given by the claimants of the applicant to the
applicant’s trustees
to enter into an agreement with Surrey
Holmes; and also did not contain proof of approved minutes of an
Annual General Meeting
(“
AGM”
)
which was held by the applicant on 19 August 2017.
[9]
The basis for the appeal of Ward 1 and 2 was that
there was no consultation with the claimants, and that the trustees
failed to
follow proper procedure in authorizing Surrey Holmes to
develop the property. Furthermore, it was stated that at the AGM of
19
August 2017 the claimants did not support the recommendation by
the trustees to develop the property in terms of a proposal presented

by Surrey Holmes.
[10]
In reaching her decision, the first respondent relied on sections
38(c), 38(b), 65(1)(a)
and section 38(d) of the By-Law. She found
that section 38(d) was complied with in that proof of ownership of
the property was
submitted. As regards the rest of her decision, she
stated as follows at paragraph 1.2(f) to (i) of the decision:
“
f.
Consent was submitted as a power of attorney. The highlight of this
is “signatures” of some landowners/beneficiaries
in
control of land or authorised representatives. Some signatures appear
on the consent document and a date of 23/08/2017 in the
middle of the
signatures. Nowhere is a reference to these names as being Trustees
and no proof as envisaged in section 38(c) was
submitted. There is
also no reference to where this document was signed.
g.
The document LETTERS OF AUTHORITY dated 27 July 2016 also does not
assist as it was issued some time before the application
was
submitted. This is particularly unacceptable as the subject property
is the result of a land claim and belongs to a group of
beneficiaries
as spelt out in the Deed of Trust.
h.
It was argued that the Trustees [have] an open discretion to act on
behalf of the Trust. However, a close look at,
and interpretation of
sections 4, 13 and 32 of the Trust Deed may not grant that authority
to the Trustees.
i.
Having regard for all the above, cognisance should be taken
that the Appeal Authority has a mandate and scope of authority to
only
act in terms of the provisions of the By-Law which is very
prescriptive and mandatory in the information and documentation
required
in an application. These were not fulfilled as prescribed by
section 79, 65 and 38 of the [By-Law].”
[11]
As I have already indicated, the review
application is brought in terms of the provisions of the PAJA. The
applicant’s case
may be summarized as follows:
a.
The first respondent’s decision was not
authorized by the empowering provision, namely section 81 of the
By-Law, in that she
was not authorized to delve into issues of the
mandate of the trustees. She was merely required to verify that the
procedure in
terms of section 38 had been complied with.
b.
The first respondent’s decision was not
rationally connected to the purpose of the empowering provision
because there was
no basis for determining internal administrative
issues of the applicant.
c.
The first respondent’s decision was
materially influenced by an error of law because she was not
empowered to engage in a
general review of the decision of the
Municipal Tribunal.
d.
The first respondent’s decision was taken
because of irrelevant considerations, or relevant considerations were
not considered.
e.
The first respondent’s decision was not
rationally connected to the information before her.
D.
THE LAW
[12]
The impugned decision constitutes administrative action as
contemplated in the PAJA. In
making the decision, the first
respondent was exercising a public function in terms of legislation,
namely the By-Law. Moreover,
the decision had an adverse effect on
the applicant’s rights which had the direct external legal
effect of preventing it
from developing the property.
[13]
Section 217 of the Constitution of the Republic of South Africa 108
of 1996 provides that
“
when an organ of state in the
national, provincial or local sphere of government, or any other
institution identified in national
legislation, contracts for goods
or services, it must do so in accordance with a system which is fair,
equitable, transparent,
competitive and cost-effective”
.
[14]
Fairness
in a procurement process is a value in it itself.
[1]
Section 6 of PAJA provides for judicial review of administrative
action which is described in subsection (2) thereof.
[15]
It
remains to be emphasised that
in
applications for judicial review the court is not concerned with the
merits of the impugned decision, but only with its legality.
As a
result, even if a decision might be set aside on review, that does
not mean that a different result will follow when the matter

concerned is reconsidered by the relevant functionary upon
remittal.
[2]
E.
DISCUSSION
[16]
It is convenient to begin with the over-arching approach of the
applicant in this application,
concerning the powers of the first
respondent when considering an appeal of the kind that is at issue in
these proceedings. It
is argued that her powers are limited to either
confirming, varying or revoking the decisions of the Municipal
Tribunal and/or
authorised employee. The effect is that the first
respondent, it is argued, was precluded from enquiring into the
validity of the
consent document and the issues of mandate raised by
the complainants in the appeal.
[17]
I
do not agree with the applicant. It is clear from the provisions of
the By-Law that the powers granted to an appeal authority
are wide,
in the sense contemplated in
Tikly
&
Others v Johannes NO & Others
[3]
,
permitting a
complete
re-hearing of, and fresh determination on the merits of the matter
with or without additional evidence or information.
[18]
For a start, section 79(5)(a) requires an appeal authority to
have regard to the
provisions of section 65(1). Section 65(1)
contains the criteria that a Municipal Tribunal must have regard to
when considering
an application of the nature concerned in this
matter. In other words, the appeal authority is again required to
have regard to
the requirements that the second respondent was
required to have regard to in its decision of the application.
[19]
Then, in terms of section 80(2)(g) an appeal must set out “
any
issue
that the appellant wishes the Appeal Authority to
consider in making its decision”
. This is in addition to
sub-paragraphs (c) and (d) in terms of which an appellant is required
to set out which parts of the decision
or approval they seek to
appeal against. In other words, an appellant may raise any new issue
that was not before the Municipal
Tribunal. In passing, I observe
that in the appeal proceedings before the appeal authority, the
applicant mounted an argument that
the appeal authority was limited
to only consider grounds of appeal which are described in section
80(2)(a)(i) and (ii). This is
clearly contrary to the express wording
of the provisions, which states that a ground of appeal “
may
include”
those grounds. An appeal is therefore not limited
to the grounds stated in section 80(2)(a)(i) and (ii).
[20]
Another indication of the wide powers of the appeal authority is
contained in section 81
of the By-Law in terms of which she may
consider an appeal by means of the consideration of written documents
or an oral hearing.
In terms of section 81(3) an oral hearing may be
held “
if it appears to the appeal authority that the issues
for determination of the appeal cannot be adequately determined in
the absence
of the parties by considering the documents or other
material lodged with or provided to it”
. The implication
here is that there might be matter which is which not clear from the
written documents or material lodged with
or provided to the appeal
authority, and in respect of which she might need additional oral
representations, which were not before
the Municipal Tribunal.
[21]
Furthermore, in terms of section 81(6) the appeal authority must
ensure that every party
to a proceeding before her is given an
opportunity to present his or her case, whether in writing or orally
and, “
in particular, to inspect any documents to which the
Appeal Authority proposes to have regard in reaching a decision in
the proceeding
and to make submissions to relation to those
documents”
. This anticipates that there may be documents in
respect of which a party might not have already made submissions by
the time the
matter is before the appeal authority.
[22]
All of this indicates that the powers of the appeal authority are
wide enough to include
enquiry into issues not previously raised
before the Municipal Tribunal, or issues not apparent from documents
submitted to the
appeal authority. T
he facts of
this case illustrate this point, because the nature of the issues
raised by the complainants in the appeal required
further elaboration
and documents which were not placed before the Municipal Tribunal.
There is no basis apparent from the By-Law
for the appeal authority
refusing to engage with those issues on the basis that they were not
before the Municipal Tribunal.
[23]
Besides, most of the issues raised by the complainants in the appeals
are intertwined with
the requirements in sections 38(1)(b) and (c)
and 65(1), which the appeal authority must have regard to. Those
issues included
allegations that the applicant failed to consult with
its beneficiaries in respect of the proposed development of the
property;
that the applicant’s beneficiaries did not approve
the agreement with Surrey Holmes for the land use application; that
the
applicant failed to consult some newly elected trustees; and
there were no minutes attached in respect of the AGM of 19 August
2017. Even if the first of these may be excluded as not being
strictly relevant to the land use application, the rest are directly

relevant to the question of proof of authorisation which is required
in terms of section 38(1)(b) and (c), as discussed later.
[24]
Then, in their written submissions, the complainants in the appeal
included the following
complaints: the decision of the trustees is
ultra vires
the Trust Deed; that Headland Planners did not
have
locus standi
to lodge the application on behalf of the
Surrey Holmes and/or the applicant; the trustees acted in bad faith
and lodged an application
without legal mandate from the applicant’s
members. The alleged lack of mandate and the issue raised in respect
of the Trust
Deed are also relevant to the issue of compliance with
section 38(1)(b) and (c).
[25]
In terms of section 38(1)(b), if an applicant is an agent the power
of attorney required
must “authorise” the applicant to
make the application on behalf of the owner. It would make no sense
to have this
requirement if it was not to ensure that the agent is
authorised to act on behalf of the landowner. If there was no proper
mandate
given to the trustees in terms of the Trust Deed to appoint
Surrey Holmes and,
by extension Headland Planners,
then the issue of authorization is called into question.
Similarly, subsection (c) requires proof that the person is
authorised to act on behalf of the applicant. This is the very issue

raised by the appellants in their appeals. In this context, it does
not assist to claim that the appeal authority is precluded
from
looking into the inward workings of the applicant. The aim of the
provision is to ensure that the applicant has duly authorised
the
agent. That issue will not always be resolved by looking at a piece
of paper, especially when the circumstances
of
that document are called into question
.
[26]
I now turn to the appeal authority’s decision. In terms of
section 38(1)(b), if the
applicant is an agent, as Headland Planners
were, a power of attorney was required, authorising it to make the
application on behalf
of the Trust. Then, in terms of section
38(1)(c), because the owner of the land in this case is a trust,
proof was required that
Headlands Planners was authorised to act on
behalf of the applicant when it submitted the land use application.
[27]
It is common cause that, as proof of the appointment of Surrey Holmes
by the applicant,
the consent document was attached to the land use
application to the Municipality, as was the special power of attorney
in terms
of which Headland Planners was appointed by Surrey Holmes.
The consent document was dated 23 August 2017, and contained some
eight
signatures plus names, which were described in the document as
the “
name of authorised person if the landowner is a legal
entity”
. It is recorded in the consent document that these
signatories gave consent for Surrey Holmes to undertake the proposed
construction
of a residential development on the property.
[28]
As recorded in her decision, the first respondent took issue with the
consent document,
stating that it failed to indicate that the
signatories were trustees of the applicant, or where it was signed.
She concluded that
that there was no proof as envisaged in section
38(1)(c). I take this to mean that, in her view, the consent document
did not constitute
proof that Headland Planners was authorised to act
on behalf of the applicant.
[29]
It is correct that the consent document makes no mention that its
signatories were trustees
at the time of signature or at any other
time. However, it must be borne in mind that the By-Law does not
prescribe what form the
authorisation required in terms of section
38(1)(c) should take. There is no requirement that the consent
document in this case
should specify that the signatories are
trustees. There is similarly no prescribed requirement that the
consent document should
indicate where it was signed, contrary to her
decision. In fact, the consent document is not specifically called
for in terms of
the By-Law. What is required is proof of
authorisation. This may take a combination of documents in some
instances. That being
so, I would have expected the appeal authority
to request further information in that regard if she was not
satisfied with the
consent document. Thus, to the extent that the
first respondent held that the consent document did not indicate
whether or not
the signatories were trustees and where it was signed,
she took into account irrelevant considerations.
[30]
In construing the consent document, one option available to the first
respondent which
is what she followed, was to
have
had regard to the names contained in the Letters of Authority.
The
Letters of Authority were issued on 27 July 2016 by the Office of the
Master of the High Court in terms of section 6(1) of the
Trust
Property Control Act 57 of 1988, in respect of the applicant.
It
is apparent from the two documents, and is common cause that
the
eight names contained in the consent document are the same names as
those contained in the Letters of Authority.
[31]
The first respondent complained that the Letters of Authority do not
assist because they
were issued some time before the land use
application was submitted. It is not clear from this observation
whether she meant that
the Letters of Authority had expired, or had
no legal force by virtue of the fact that they were issued on 27 July
2016. If this
was the intention, it is clearly flawed. The
Letters
of Authority constitute authorization issued by the Master
in
terms of section 6 of the
Trust Property Control
Act, upon appointment as a trustee.
In terms of the Letters of
Authority those names were authorised to act as trustees of the
applicant. There was no indication that
the Letters were withdrawn or
lacked legal force. Thus, the extent that the first respondent found
that the Letters of Authority
were not proper authorisation for the
trustees to act on behalf of the applicant, she failed to take into
account relevant considerations,
and that decision was materially
influenced by an error.
[32]
There was no evidence, or even allegation, before the first
respondent that the Letters
of Authority had been withdrawn by the
Master. Instead, there was an allegation that three of the trustees
had been substituted
by new ones. The complainants in the appeal
alleged that at an AGM of the applicant held on 19 August 2017, the
term of three trustees
came to an end, and that they were replaced by
new names. This allegation was supported by means of affidavits
submitted by some
of the complainants who stated that they had
attended the AGM. The significance of this allegation lies in the
fact that the land
use application did not contain names or
signatures of the newly appointed trustees, but contained signatures
of the outgoing trustees.
Further, the consent document was signed on
23 August 2017, some four days after the AGM; and the special power
of attorney signed
by Surrey Holmes for the appointment of Headland
Planners is dated 9 July 2018. Both of these documents post-dated the
substitution
of the outgoing trustees.
[33]
In these proceedings the applicant alleges that the removal and
replacement of three trustees
was never formalised because the three
new trustees failed or refused to sign the necessary documents in
order to be formally appointed
by the Master of the High Court. The
applicant also complains that it was not afforded an opportunity to
deal with this aspect
before the first respondent, and has dealt with
it in a replying affidavit in these proceedings. On the other hand,
the written
submissions submitted on behalf of the claimants in the
appeal alleged that the new trustees did indeed submit these
documents
in question for forwarding to the Master, and point to an
agenda item of a meeting held on 5 October 2017 in support of this
allegation.
As I have said, this issue arises in these proceedings in
the replying affidavit and is otherwise not dealt with by the
respondents.
This is a factual aspect which remains unclear, and
which, in any event, I do not consider appropriate to resolve on the
papers,
on application of the
Plascon-Evans
principle.
[34]
For
now, it suffices to set out the legal implications regarding the
status of the trustees. In
Meijer
NO and another v First Rand Bank Ltd
[4]
it was held that in order for the resignation of a trustee to be
effective in terms of the Trust Property Control Act the trustee
must
show that written notice was sent to the Master and the affected
beneficiaries, and that the Master acknowledged receipt of
such
notice.
[5]
Otherwise, a Trust
Deed instrument may provide for resignation of a trustee in a certain
manner, in which case compliance with
that provision will suffice,
especially in instances where the Master has not acknowledged receipt
of the notification which has
been shown to have been sent to the
Master’s office. In particular, it is possible for a Trust Deed
to contain a clause that
a trustee’s resignation will be
effective from the date upon which the Master receives notice of such
resignation.
[6]
In the present
case, the Trust Deed makes no such provision. It does not provide for
the transitional period after the resignation
of a trustee, but
before the Master has confirmed receipt of notice of such
resignation.
[35]
The implication of
Meijer
to the present case is that the
default position provided for in terms of section 21 of the Trust
Property Control Act applies.
The trustees whose names are reflected
in the Letters of Authority were authorised to sign the consent
document for the appointment
of Surrey Holmes. They were not
precluded from signing the consent document on 23 August 2017. The
corollary is that it is questionable
whether the three ‘new’
trustees were entitled to sign the documents before receiving Letters
of Authority from the
Master. As it turns out from the new evidence
in the replying affidavit, they may not have had authority to sign
the documents
as trustees.
[36]
To conclude this aspect, to the extent that the first respondent
failed to have regard
to the Letters of Authority when construing the
consent document, she failed to take into account relevant
considerations. Moreover,
her decision in that regard was not
rationally connected to the information that was before her, namely
the Letters of Authority.
Furthermore, her decision to reject the
Letters of Authority was materially influenced by an error of law.
[37]
I now turn to the first respondent’s decision based on the
provisions of the Trust
Deed. She concluded that clauses 4, 13 and 32
of the Trust Deed do not grant an open discretion to the trustees to
act on behalf
of the applicant. The context for this observation
appears from the complaint that claimants in the appeal did not
support the
recommendation by the trustees to approve the development
proposal by Surrey Holmes and that, as a result: the trustees acted
ultra vires
the terms of the Trust Deed and did not have a
legal mandate to appoint Surrey Holmes; Headland Planners did not
have
locus standi
to lodge the application on behalf of Surrey
Holmes and/or the applicant.
[38]
Clause 4 of the Trust Deed sets out the main objectives of the Trust
as follows:
“
The
Trust was created for the following purposes:
4.1
To hold the designated land in common of the benefit of the members.
4.2
The acquisition, development, improvement and administration of any
rights, properties and interests of the trust
for the benefit of the
members.
4.3
The carrying out of further activities to address the needs of the
members”.
[39]
Clause 13 sets out the powers of the trustees as follows:
“
13.1
In furtherance of the main objective of the Trust and subject to the
provisions of the Trust Deed, the Trustees shall
have the following
powers:
13.1.1
a complete and unfettered discretion in the manner in which they use
the total Trust Fund from time to time for
the benefit of the
members.
13.1.2
all powers required by the Trustees shall include but not be limited
to General Administrative and in Investment
Powers attached as
Appendix “A”.
13.2
Notwithstanding any contrary provisions appearing in this Trust Deed,
the powers of the Trustees:
13.2.1
may be limited in a manner as set out in clause 13.3; and
13.2.2
be limited in a manner as set out in clause 13.4.
13.3
Powers of the Trustees may be limited at any time by means of
resolutions passed by the members at a General Meeting
duly called
and constituted in the manner set out in clause 20.
13.4
The powers of the Trustees will be limited in terms of clause 32 in
so far as matters deemed to be Special Business
which can only be
enacted in terms of resolutions by Members at a duly called Special
Meeting.”
[40]
Clause 32 provides for ‘Special Business’ as follows:
“
32.1
Notwithstanding any contrary provision in this Trust Deed, no
decision of the Board regarding a matter that represents
a Special
Business will be valid unless it is approved at a Special General
Meeting, duly convened in a manner as aforesaid, and
the notice
convening this meeting must set forth the nature of this Special
Business to be considered.
32.2
Any matter involving the following matters will be deemed to be a
Special Business:
32.2.1
The sale, transfer or pledging by way of mortgage of any immovable
property.
32.2.2
Any changes to the terms of the Trust Deed, including the proposed
change of the name of the Trust.
32.2.3
Any decision to dissolve the Trust ….”
[41]
It is clear from clause 4.2 of the Trust Deed that the objectives of
holding the designated
land in common for the benefit of the members,
and the development and improvement of the property for the benefit
of the members,
form some of the main objectives of the Trust. Then,
in terms of clause 13 trustees have all powers required by them which
include,
in terms of clause 6 of Appendix A, “
maintaining,
managing, developing, renting, selling or dealing with”
immovable property in any way.
[42]
Although it is not clear from the decision of the first respondent,
it appears that she
was persuaded by the claimants’ argument
that a Special General Meeting should have been held regarding
whether the application
for land use should be made. That is the
implication of her decision that the trustees did not have an “
open
discretion to act on behalf of the [applicant]”
.
[43]
Clause 32 of the Trust Deed deals with Special Business, and the
calling of Special General
Meetings. In terms of clause 32.2 any
matter involving “
the sale, transfer or pledging by way of
mortgage of any immovable property”
will be deemed to be
Special Business. There is no indication anywhere in the record that
the application lodged with the Municipality
involved sale, transfer
or pledging by way of a mortgage of the applicant’s property.
[44]
Firstly, the consent document in which the activity to be undertaken
by Surrey Holmes was
described referred to it as “
proposed
construction of a residential development on erf 1692, Franschhoek”
.
Secondly, the document headed “special power of attorney”
in terms of which Headland Planners was authorised to submit
the land
use application, described the applications to be submitted as a
“
rezoning application, a sub-division application, and
removal of restrictions application
”. The same language
appears in the Municipality’s approval granted in terms of
section 60 of the By-Law. Section 15
of the By-Law refers to all
these applications - which are provided for in sections 17, 18, 20
and 33 - as “
land development”
, which no person
may commence without the approval of the Municipality in terms of
section 2.
[45]
All indications are therefore that the land use applications in
question in this matter
concerned the development of land. As such,
such a decision did not require a Special General Meeting of the
applicant in terms
of clause 32 of the Trust Deed. Furthermore, the
trustees were entitled to deal with the matter as provided for in
Appendix A,
read with clause 13 of the Trust Deed. In this regard
therefore, the decision of the first respondent at paragraph 1.2.h of
her
decision took into account irrelevant considerations insofar as
she concluded that clause 32 of the Trust Deed was applicable in
the
circumstances of this matter.
[46]
Lastly, there is also the issue of first respondent’s belief
that the claimants in
the appeal comprised 90% of the beneficiaries
of the applicant, an issue which is disputed by the applicant. This
is an allegation
relied upon by the first respondent in these
proceedings, although it does not appear in her decision. The issue
was, however raised
by the aggrieved claimants in the appeal before
her, where it was stated as a fact. However, the names attached in
support of that
averment at the appeals stage were 33 individuals out
of a total of approximately 254 individual beneficiaries per group
amongst
some 40 claimant groups. To the extent that the decision of
the first respondent relied on the allegation that the aggrieved
claimants
comprised the majority numbering of 90% of the
beneficiaries, this indicates a failure to take into account relevant
considerations
as well as taking into account irrelevant
considerations.
[47]
For all the above reasons, the decision of the first respondent is
reviewable and should
be set aside. The question is what relief
should be granted. I am of the view that it is appropriate that the
matter be remitted
back to the appeal authority. I have already
indicated that the applicant complains that there are documents which
the first respondent
ought to have requested from it and/or given it
sufficient time to make representations thereto. This is with regard
to the issue
of the substitution and transition of old trustees. It
still remains unclear from the papers whether the documents of the
‘new’
trustees had indeed been submitted and sent to the
Master in notification of the change of trustees as at the time of
the decision
to appoint Surrey Holmes. It has also come to light in
these proceedings that the ‘old’ trustees have now been
reinstated,
although it is not clear what the sequence of events was.
These are issues which are not appropriate for resolution on the
papers,
and in respect of which there should be further
investigation.
[48]
I also note that the minutes of the AGM of 19 August 2017, which
formed an important part
of the complaints in the appeal, are
attached to the replying affidavit in these proceedings. It remains
unclear from the documents
before me whether, and to what extent they
were sufficiently dealt with before the first respondent.
[49]
At the same time, the first respondent has displayed strong views in
her opposition of
this application. In some ways this is
understandable given the applicant’s stance that she was not
entitled to consider
the matters that she did – that she did
not have powers of a wide appeal. I have already found that she was
correct and that
she did have such powers. However, when considering
the relief to be granted, it is appropriate for another appeal
authority to
preside over the re-consideration of the appeal in the
matter. In terms of the By-Law the appeal authority may consist of
the Executive
Committee or a Committee of Councillors. There is no
reason why such a committee cannot be established for the specific
purpose
of considering the appeal in this matter and be seized with
the rights and powers set out in the sections 79, 80 and 81 of the
By-Law.
[50]
In the circumstances, the following relief is granted:
a.
The decision of the first respondent is reviewed and set aside.
b.
The appeals lodged by the Franschhoek Gegriefde Grondeiers Groep and
Wards 1 and 2 Committees
are remitted to the third respondent for
reconsideration before an appeal authority other than the first
respondent.
c.
The respondents are to pay the costs of this application.
N.
MANGCU-LOCKWOOD
Judge
of the High Court
[1]
Tera
Mobile Radio (Pty) Ltd v MEC, Department of Public Works
2008
(1) SA 438
(SCA) at para 9.
[2]
Choisy-Le-Roi
Owners (Pty) Ltd v The Municipality of Stellenbosch and Another
(10240/2020) [2022] ZAWCHC 71; 2022 (5) SA 461 (WCC) at para [9].
[3]
Tikly
& Others v Johannes NO & Others
1963
(2) SA 588
(T)
at
590F–591A.
[4]
Meijer
NO and another v First Rand Bank Ltd
[2015]
JOL 30560 (WCC)
[5]
At
para [11]
[6]
See
Meijer
NO and another v First Rand Bank Ltd
at para [8].  See also
Olivier
Strydom and Van den Berg
Trust
Law and Practice
3-18.