Deedat and Another v the Master and Others

• Jurisdiction: South Africa
• Judge: Thirion J
• Judgment Date: 04 June 1997
• Docket Number: 3830/96
• Hearing Date: 04 June 1997
• Counsel: The first applicant in person Y Deedat (with him P A Koen) for the first respondent AWM Harcourt for the second, third and fourth respondents No appearance for the fifth respondent
• Court: Natal Provincial Division

Thirion J:

The applicants apply for the review and setting aside of the Master's decision in terms of s 6(1) of the Trust Property Control Act 57 of 1988, authorising the fourth respondent to act as trustee of the Islamic Propagation Centre International (IPCI). J

Thirion J

The notarial deed of trust by which IPCI was constituted provides that there shall be seven A trustees. Clause 7 of the deed provides that whenever a vacancy shall occur in the office of trustee, due to the death, resignation or removal from office of any trustee, the remaining trustees shall elect another trustee and:

'(a) two thirds majority decision shall be considered sufficient for such election of a new trustee in B the place and stead of such trustee'.

First and second applicants and second and third respondents have for many years been trustees of IPCI. Over the years a rift has developed between, on the one hand, first and C second applicants and on the other hand, second and third respondents. The rift now appears to be well-nigh unbridgeable.

On 5 February 1993, by which date the first and second applicants and second and third respondents had been at loggerheads for a long time, a meeting of the board of trustees was held at which Mahomed Khan (the fourth respondent) and Cassim Deedat were elected as D trustees. The election of the two persons as trustees was unanimous. Fourth respondent was nominated by the second respondent and Cassim Deedat was nominated by the second applicant. Unanimity was however, only obtained by compromise - each faction agreeing to the election of the nominee of the other faction on the understanding that the election of its own nominee would be supported by the other faction. E

After the appointment of the new trustees, attempts were made from time to time by the fourth respondent to obtain the Master's authorisation in terms of s 6 of Act 57 of 1988 (the Act) authorising him to act in the capacity as trustee of the trust. He was, however, unable to F provide security to the satisfaction of the Master. He was consequently not authorised by the Master to act as trustee. Cassim Deedat has never obtained the necessary authorisation and he too therefore was not entitled to act as trustee.

In 1995 the Master launched an application for the removal of all the trustees of IPCI. The aim G of the Master was no doubt to bring to an end the longstanding factional feuding between the two factions, which he regarded as detrimental to the proper administration of the affairs of the trust. The application was settled. In terms of the settlement, the existing trustees were to retain their positions as trustees but the Master

'shall in the exercise of his statutory powers appoint subject to his requirements, including H security, the following persons as additional trustees of the IPCI Trust namely:

(i)

Ismail Kathrada

(ii)

Imtiaz Tayob

(iii)

Ebraham Jadwat'.

I think first applicant correctly sums up the intention underlying the above provision in the I settlement agreement, when he says in his affidavit in the present application that

'the main thrust of the agreement however, was to provide a deadlock breaking mechanism between the two factions of trustees of the trust'.

It was hoped that the new trustees would maintain their independence and would act impartially in voting on any proposal put forward by one J

Thirion J

or other of the two factions and thus would ensure objectivity and sense in decision-making. A Both factions agreed to the appointment of the...