Baphalane Ba Mantserre Beneficiaries Association and Another v The Master of the High Court (Pretoria) and Others

• Jurisdiction: South Africa
• Judge: EM Makgoba JP
• Judgment Date: 19 May 2022
• Docket Number: 730/2022
• Hearing Date: 12 May 2022
• Court: Limpopo Division, Polokwane
• Citation: 2022 JDR 1292 (LP)

Makgoba JP:

[1]

On 12 May 2022 I granted the following order and indicated to the parties that my written judgment will follow in due course:

2022 JDR 1292 p2

Makgoba JP

1.

The application is heard as an urgent application in terms of Rule 6(12) of the Rules of Court and that the rules relating to form, time periods and service are dispensed with.

2.

The 16th Respondent (Standard Bank, Northam Branch) is directed and ordered to provide the Third to Seventh Respondents in their capacity as the Trustees of the Second Respondent with full access to the Second Respondent's Bank accounts held at the 16th Respondent's Northam branch pending the outcome of the application brought by the Applicants under the above case number.

3.

The 16th Respondent is interdicted from providing the First and Second Applicants, including the Curator purportedly appointed in terms of an order of this Court dated 27 January 2022 with access to the Bank Accounts of the Second Respondent held at the 16th Respondent's Northam branch pending the determination of an application brought by the First and Second Applicants under the above case number.

4.

The First and Second Applicants' counter-application is dismissed with costs.

5.

The First and Second Applicants are to pay the costs of this application jointly and severally, such costs to include the costs of Senior Counsel.

2022 JDR 1292 p4

Makgoba JP

[2]

What follows are my reasons for the order.

[3]

The Third to Seventh Respondents have launched an urgent application in terms of which they sought interdictory relief, including, inter alia, an order that the Standard Bank (16th Respondent) allow the Third to Seventh Respondents access to the bank account of the Second Respondent ("the Trust").

The Third to Seventh Respondents are the trustees of the Baphalane Ba Mantserre Community Development Trust, the Second Respondent in this application.

[4]

The Applicants have launched an urgent Counter-Application in terms of which they also seek interdictory relief, including, inter alia, that Mr. J F Baloyi be granted access to the bank account of the Trust, held with the Standard Bank, the Sixteenth Respondent.

[5]

For the sake of convenience I shall in both application and counter-application refer to the Third to Seventh Respondents as "the Trustees" and to the First and Second Applicants as "the Applicants".

2022 JDR 1292 p5

Makgoba JP

Factual Background :

[6]

On 24 January 2022 the Applicants launched an urgent ex parte application in terms of which they sought certain extensive and far-reaching relief, which relief impacted on the powers of the Trustees. On 27 January 2022 Mangena AJ granted all of the relief sought in terms of the Notice of Motion in the ex parte application. Of relevance to the present proceedings Mangena AJ granted inter alia, the following order:

6.1.

The 3rd to 7th Respondents are suspended with immediate effect from their positions as Trustees of the 2nd Respondent and are interdicted from dealing with the Trust and its properties in any manner.

6.2.

The banking account(s) of the Trust and all the companies of the Trust held by the 16th Respondent and any other bank are unfrozen and open to be utilised by the curator for the purposes of executing his duties.

6.3.

The 16th Respondent (Standard Bank Northam) or any bank that holds the funds of the Trust and its companies, upon being served with this order, are interdicted from calling the suspended Trustees to change the signatures and ordered to hand over the Trust account to the Curator.

6.4.

The 16th Respondent is ordered, within two days of receiving this order, to consider the appointed Curator as a signatory of these banking

2022 JDR 1292 p6

Makgoba JP

accounts and allow him immediate access to the funds of the Trust and its companies without delay.

6.5.

That Jimmy Frans Baloyi is appointed as curator bonis with the purpose of administering the affairs of the 2nd Respondent (the Trust) pending the adjudication of Part B Application.

6.6.

The Curator is authorised to administer the Trust for a period up to the adjudication of Part B or up to the time when the current Trustees become removed or reinstated by order of this Court.

6.7.

The Curator is authorised to operate the banking account of the Trust in order to discharge the existing obligation of the Trust.

[7]

The relief granted, as shown above, impacted on the status of the Trustees and granted full access to the bank accounts of the Baphalane Ba Mantserre Community Development Trust ("the Trust") to a person nominated by the Applicants, namely Jimmy Frans Baloyi.

The ex parte order granted by Mangena AJ is to the effect that the appointed Curator, Mr. Baloyi could utilise the monies held in the Trust's bank account and that the 16th Respondent (Standard Bank) is interdicted from allowing the Trustees access to the bank account.

2022 JDR 1292 p7

Makgoba JP

[8]

On 21 February 2022 the Trustees who are the duly appointed trustees of the Trust launched an application for the reconsideration of the Order granted by Mangena AJ in terms of Rule 6(12)(c) of the Uniform Rules of Court.

In the application for the reconsideration of the ex parte order the Trustees sought the dismissal of the ex parte application.

The Reconsideration Application was heard by Makoti AJ on 01 March 2022, and on 03 March 2022, Makoti AJ set aside the ex parte order granted by Mangena AJ and dismissed the ex parte application.

[9]

On 04 March 2022 the Applicants filed a Notice of Appeal [1] against the order of Makoti AJ.

It is common cause that this Notice of Appeal was served and filed without the Applicants having first made an Application for Leave to Appeal.

The Applicants and their legal representatives believe, albeit incorrectly, that the filing of a Notice of Appeal suspended the order of Makoti AJ and therefore revived the order granted by Mangena AJ.

[10]

In the midst of the two Court orders referred to above, the Standard Bank adopted a neutral and sensible approach and recorded that it would not allow any transactions on the Trust's bank account or allow any party access to the bank account. Instead Standard Bank advised that any party that wished to gain

2022 JDR 1292 p8

Makgoba JP

access to the Trust's Bank Account would have to obtain a Court Order in such regard.

[11]

On 11 March 2022 the Applicants launched an urgent application on an extremely urgent basis and set it down for hearing on 15 March 2022. The Trust Respondents were afforded less than a Court day and a half to...