Maja and Others v The Trustees for the time being of the Reboile Trust and Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: EM Makgoba JP
• Judgment Date: 10 June 2022
• Docket Number: 7805/2020
• Hearing Date: 27 May 2022
• Court: Limpopo Division, Polokwane
• Citation: 2022 JDR 1597 (LP)

Makgoba JP:

[1]

The Applicants brought an application against the Respondents for the following relief in Part B of the Notice of Motion:

1.1.

Removing the Second to the Ninth Respondents as trustees of the Reboile Trust (IT2495/2001);

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Makgoba JP

1.2

Directing the Master to appoint and authorise the Applicants to act as the trustees of the Reboile Trust (IT2495/2001 );

1.3

Directing the Master to endorse its records accordingly and issue the Applicants with letters of authority within 7 (seven) days of the granting of the final order;

1.4

Directing the Second to the Ninth Respondents to hand over to the Applicants all documents, banking and administrative instruments relating to the administration of the Reboile Trust (IT2495/2001) within 5 (five) days of the granting of the final order.

[2]

The upshot of the relief claimed in the main proceedings (Part B) comprise of the removal of the Second to the Ninth Respondents ("The Trustee Respondents") as Trustees of Reboile Trust (First Respondent); furthermore an order authorising the Master of the High Court to appoint Applicants as trustees as their replacement.

Initially the Applicants approached this Court on an extremely urgent basis in Part A of the Notice of Motion for an interim relief pending the finalisation of the principal proceedings in Part B.

The urgent relief sought was for an order interdicting the First to Ninth Respondents from dealing with, including withdrawing, disbursing funds in a banking account of the Reboile Trust held at First National Bank, Polokwane Branch.

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Makgoba JP

The urgent application in Part A was struck from the roll for lack of urgency.

[3]

The claim for an order authorising the Master to appoint the Applicants as trustees is precipitated upon an election apparently held by the beneficiaries of the Reboile Trust on 15 April 2018, for the election of trustees. The Trustee Respondents oppose the application on a variety of grounds, which separately and/or jointly, militate against the grant of the relief claimed in these proceedings.

The Applicants contend that the Trustee Respondents have resigned but refuse to vacate their office as trustees.

Factual Background:

[4]

During the year 1961 the Reboile Community was forcefully removed from certain portions of the Farm Palmiefontein No 24 KS district Pietersburg during the times of apartheid.

On or during 2001 the community successfully reclaimed their land in terms of the Restitution of Land Rights Act 22 of 1994. As part of the settlement of the land claim a notarial deed of trust and donation was registered on 30 March 2001. The land was therefore registered in the name of the Reboile Trust. The initial trustees of the Reboile Trust were:

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Makgoba JP

1.

Lesiba Phillip Legodi;

2.

Joel Mokaka Legodi;

3.

Raisibe Anna Rikhotso;

4.

Matheti Thomas Legodi;

5.

Sarah Makhaukani Mashele;

6.

Madimetja Herman Legodi; and

7.

Malesela Isaac Mapeka.

[5]

On or during 2005 new trustees of the Trust were appointed and received their letters of authority from the Master of the High Court, Pretoria.

The following persons were authorised by the Master to act as trustees of the Reboile Trust (the First Respondent):

1.

Serobi Milton Maja;

2.

Michael Lati Mashego;

3.

Matsobane Joes Legodi;

4.

Mashiba William Kganyago;

5.

Michael Legodi; and

6.

Salphina Legodi.

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Makgoba JP

[6]

On or during July 2005 the High Court, Pretoria granted an order in terms of which Mr. Dinga Rammy Nkwashu and Mr. Johannes Frederik Moolman were appointed as trustees of the First Respondent. Pursuant to the said court order the Master issued letters of authority and authorised the following persons to act as trustees:

1.

Serobi Milton Maja;

2.

Joel Mokaka Legodi;

3.

Lesiba Phillip Legodi;

4.

Raisibe Anna Rikhotso;

5.

Matheti Thomas Legodi;

6.

Madimetja Herman Legodi;

7.

Sarah Makhaukani Mashele;

8.

Michael Lati Mashego;

9.

Matsobane Joas Legodi;

10.

Mashiba William Kganyago;

11.

Michael Legodi;

12.

Salphina Legodi;

13.

Dinga Rammy Nkwashu; and

14.

Johannes Frederik Moolman.

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Makgoba JP

[7]

The Sixth Respondent, Matsobane Joas Legodi tendered his resignation as a trustee of the First Respondent on 31 July 2015.

[8]

At the annual general meeting of the trustees and beneficiaries held on 15 April 2018 the following persons tendered their resignation as the trustees of the First Respondent:

1.

Serobi Milton Maja;

2.

Salphina Legodi;

3.

Michael Legodi;

4.

Michael Lati Mashego;

5.

Malesela Isaac Mapeka;

6.

Sarah Makhaukani Mashele;

7.

Mashiba William Kganyago; and

8.

Johannes Frederik Moolman.

[9]

At the same annual general meeting of the 15 April 2018 the beneficiaries resolved that the First to Sixth Applicants and one Moshothi David Legodi be appointed as the new trustees of the First Respondent (the Trust).

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Makgoba JP

[10]

On or about 12 April 2019 Dinga Rammy Nkwashu tendered his resignation as a trustee. On the 4th of December 2019 Moshothi David Legodi renounced his appointment as a trustee.

[11]

On or during August 2019 the Applicants appointed their erstwhile attorneys, Mapulana Maponya Incorporated, to assist with the process of obtaining letters of authority on their behalf.

It is noted that since their election as trustees at the meeting of 15 April 2018, the Applicants had not been issued with letters of authority by the Master.

Their erstwhile attorneys engaged in several correspondence with the Master of the Court, Pretoria requesting the Master to issue the Applicants with letters of authority. It is common cause that the Master never issued the Applicant with letters of authority as requested.

[12]

On or about 11 September 2019 the Master addressed a letter to the former attorneys of the Applicants requesting a number of documents, amongst others the original written resignations of the trustees and original resolution signed by all the parties nominating the new trustees.

Of importance, the Master demanded to know of the whereabouts of the following trustees:

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Makgoba JP

1.

Lesiba Phillip Legodi;

2.

Raisibe Anna Rikhotso;

3.

Matheti Thomas Legodi;

4.

Madimetja Herman Legodi; and

5.

Michael Lati Mashego.

The Master further indicated that if the abovementioned trustees were still alive and did not resign, they were empowered to appoint additional trustees and also convene a meeting for the purpose of confirming the appointment of new trustees. The Master referred to clauses 6.1 and 6.2 of the Deed of Trust. I shall revert to the provisions of clauses 6.1 and 6.2 later in my judgment.

Whether the Applicants were duly elected or appointed as Trustees:

[13]

It is common cause that an election of trustees was held by the beneficiaries at their meeting of the 15 April 2018 and that the Applicants were so elected as new trustees of the First Respondent.

It is furthermore common cause that the Applicants were not issued with letters of authority by the Master pursuant to their election as trustees by the beneficiaries on 15 April 2018.

The issue before me is whether the beneficiaries are empowered in terms of...