Lupacchini v Minister of Safety and Security
| Jurisdiction | South Africa |
| Judge | Rampai J |
| Judgment Date | 15 February 2008 |
| Docket Number | 2896/2004 |
| Court | Orange Free State Provincial Division |
| Hearing Date | 17 August 2007 |
| Citation | 2008 JDR 1057 (O) |
Rampai J:
The matter came by way of an action. The summons was issued on 24 August 2004. The plaintiffs, who are acting on behalf of the Lupacchini Family Trust, are suing the defendant for a payment of the sum of R2 994 756,71 plus ancillary relief. The action is defended. The defendant's plea was filed on 22 February 2005 and its special plea on 9 July 2007. Not so long afterwards and on 26 July 2007 the plaintiffs filed their amended particulars of claim.
The matter was then enrolled for hearing on 8 August 2007. Four days before the hearing was due to commence, the
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defendants delivered notice of an application, which application was to be heard on 14 August 2007. The main purpose of the interlocutory application was to have the defendant's special plea argued prior to and separate from the main action - vide case number 3642 of 2007.
On 14 August 2007 the special plea could not be argued and the main action could not commence. The bickering carried on for three days. On the third day the parties agreed to file a special stated case in terms of rule 33(1). The record of the stated case consists of 107 pages which include 23 annexures. It was filed on Thursday 16 August 2007. The written heads of argument were also filed. At long last the special plea was argued on Friday 17 August 2007.
I am, accordingly, called upon in accordance with the stated case to decide, firstly, whether the action for damages allegedly suffered by the Lupacchini Family Trust could validly have been instituted as it was on 24 August 2004 or at any other date prior to 15 December 2004; secondly, whether the action of the first two plaintiffs can still be entertained in view of the belated public appointment of the second plaintiff as a trustee of the Lupacchini Family Trust. The whole thing is about the issue of locus standi in iudicio.
The historical background of the dispute will be helpful. There were four individuals involved in the creation of the Lupacchini Family Trust, namely, Mr. Lambertus R. Preller as the founder, Ms Gabrielle Lupacchini as the one founding
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trustee, Ms Melinda Lupacchini also as the other founding trustee and Mr. Luigi D.G. Lupacchini as the patron or protector. These four individuals signed the trust deed in Bloemfontein on 29 September 1994. The trust deed is an agreement that binds the founder, the trustees and the patron. The date of inception of the trust was 1 October 1999.
The primary objectives of the trust are expressed as follows:
"DIE HOOFDOELSTELLlNGS VAN DIE TRUST IS OM:
Tot voordeel van die begunstigdes in die Trust bates, beleggings en inkomste te bekom en dit te bestuur, administreer en uit te keer tot voordeel van die begunstigdes onderworpe aan die voorwaardes en bepalings hierin vervat en uiteengesit."
The capital beneficiaries and the income beneficiaries of the Lupacchini Family Trust are the children of the patron, Luigi Davide Gabriele Lupacchini, living or still to be born. At the time of inception there were two living beneficiaries, namely, Lucio Antonio Gabrielle Lupacchini aged about 17 years and Massimiliano Francesco Lupacchini aged about 12 years - vide par. 1 annexure "Q3". Ms Melinda Lupacchini and Mr. Luigi D.G. Lupacchini were at all times relevant to this matter, the natural guardians of those beneficiaries. The two minor children were born of their marriage.
The following are some of the provisions of the trust deed - annexure "A" - pertinent to the trustees. According to the trust deed there shall be no less than two and no more than
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six trustees. The board of trustees consisted of only two trustees at the time of inception, namely, Ms Gabrielle Lupacchini and Ms Melinda Lupacchini. It was envisaged that the board of trustees would have a chief executive trustee and that only such trustee may contractually bind the trust. A trustee may resign by written notice to the board of trustees - vide annexure "A".
The aforesaid two original trustees were empowered to nominate additional trustees or subsequent trustees. Such an additional or subsequent trustee would have all the authority as any other trustee already in office, taking into consideration the directives of clause 5.4 annexure "A". In the event of failure of the aforesaid trustees to nominate an additional or subsequent trustee, the trust deed authorises the patron or the president of "The Law Society" to do so - vide clause 7.2.5 p. 24 (part 2) annexure "A"; clause 7.3.1 p. 24 (part 2) annexure "A".
The trustees have authority to institute legal proceedings on behalf of the trust in connection with any claim the trust may have - vide clause 5.3.1 p. 9 (part 2) annexure "A". They are also authorised to appoint other persons to institute legal action in any court of law - vide clause 5.3.5 p. 11 (part 2) annexure "A".
Gabrielle Lupacchini and Melinda Lupacchini were in terms of the provisions of section 6(1) of the Trust Property Control Act, No. 57 of 1988, duly authorised to act as trustees of the
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trust. The written authorisation was signed by the Master of the High Court, Bloemfontein on 4 October 1994 - vide annexure "B".
At a meeting of the trustees, held on 19 October 1998, they resolved that the trust would enter into business and open a pub, a bar or a knight club at a suitable venue. At another meeting of the trustees, held on 9 November 1998, they resolved that a pub or a club would be conducted from leased premises situated at 142A Voortrekker Street, Bloemfontein - vide annexure "D". At yet another meeting of the trustees, held on 20 September 1999, they decided that the Lupacchini Family Trust would register with the South African Revenue Services as a vendor for the purposes of value added tax - vide annexure "E" - an extract of the minutes of the particular meeting.
The trustees held the meeting on 3 July 2000 where they resolved that the trust had to open a second business called "Reds Night Club" at the venue situated at 132 Voortrekker Street, Bloemfontein - vide annexure "F" - an extract of the minutes of that meeting.
At a meeting held on 3 June 2003, the trustees resolved, inter alia, that Melinda Lupacchini should resign as a trustee and that Luigi Davide Gabrielle Lupacchini should act as a temporary trustee. In addition it was also decided that a certain Leon van Niekerk would deliver the necessary documentations pertaining to such resignation to the Master
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- vide annexure "G" - an extract of the minutes of the meeting in question.
Three weeks later, on 24 June 2003, Ms Melinda Lupacchini wrote a letter of resignation to the Master. The Master received the letter in question approximately nine weeks later on 2 September 2003 to be precise - vide annexure "H" - an official rubberstamp endorsement by the Master on the same letter.
The Master replied Melinda Lupacchini's letter by means of two letters on 3 September 2003. The one letter was addressed to Me G. Lupacchini, 49 Ryk Tulbach Street, Bayswater, 9301. At that time Ms Melinda Lupacchini and not Ms G. Lupacchini was resident at this particular address - vide annexure "H1" - a copy of the first letter. The other letter was addressed to the same person, namely, Me G. Lupacchini of 229 Andries Pretorius Street, Bloemfontein, 9301 - vide annexure "H2" - a copy of the second letter in question. The address of the second letter was and still is the address of the trust as was supplied to the Master upon registration of the trust approximately nine years earlier. It was also the address where Ms Melinda Lupacchini and her husband, Luigi Lupacchini, resided until 1997. On 3 September 2003 the couple was resident elsewhere. The second letter was returned to the Master as "unclaimed" almost six weeks later.
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The trustee who notified the Master of her intention to resign, was Ms Melinda Lupacchini. However, the Master did not respond directly to her. Instead, the Master replied to her letter but addressed the replies to Me G. Lupacchini, supposedly Ms Gabrielle Lupacchini. She was the executive trustee which was why the Master wrote the letters to her. Ms Gabrielle Lupacchini did not reside at any of the two addresses. As on 3 September 2003 Ms Melinda Lupacchini was staying at the first address, but as already pointed out, no letter was addressed to her. None of the three plaintiffs received any of the two letters, annexures "H1" and "H2" and none of the two letters ever came to the knowledge of Ms Melinda Lupacchini.
On 8 September 2003 a meeting was held between Ms Gabrielle Lupacchini, and the first plaintiff and Mr. Luigi Lupacchini, the third plaintiff. They were the remaining original trustee and the acting trustee respectively. They resolved that:
"The trustees of the Lupacchini Family Trust hereby agree to the pursuit of a civil legal action against the State and the police for the disruption of business."
See annexure "I" - a copy of the relevant resolution.
On 13 November 2003 Ms Gabrielle Lupacchini and Mr. Luigi Lupacchini held a meeting where they decided that Ms Rochelle Conradie, then the secretary to the trust, now the
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second plaintiff, be appointed as a trustee with immediate effect. The appointment was made in terms of clause 7.2 of annexure "A". As a result of the aforesaid decision the third plaintiff addressed a letter to the Master on the same day advising the Master of the said decision - vide annexure "K" - a copy of the relevant letter.
On 20 November 2003 Ms Gabrielle Lupacchini, the first plaintiff, Mr. Luigi Lupacchini, the third plaintiff and Ms Rochelle Conradie, the second plaintiff, held a meeting...
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