Mmutle NO and others v Absa Bank Ltd and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Djaje DJP |
| Judgment Date | 07 September 2023 |
| Citation | 2023 JDR 3431 (NWM) |
| Hearing Date | 14 June 2023 |
| Docket Number | UM 20/2023 |
| Court | North West Division, Mahikeng |
Djaje DJP:
The applicants first approached this court in March 2023 for an order that the first respondent recognise the applicants as the appointed trustees of the Maribaland Development Trust. In addition, that they be granted full access to the bank account of the Trust. Initially it was only the first and second respondents who were cited in the application. The 3rd to 76th respondents were then joined after the order was granted. The order granted on 13 March 2023 was as follows:
THAT: The matter is heard as an urgent application and the Applicant’s non compliance with the rules concerning the forms, time frames and service are condoned.
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Djaje DJP
THAT: A Rule Nisi is hereby issued calling upon the Respondents or any other party who has an interest in this matter to show cause on the 4th May 2023 as to why the following order should not be made final.
First Respondent be directed to forthwith recognize and grant the Applicants (in their capacity as the trustees), as appointed on 10 November 2021, full access to the Applicant’s bank account(s), with the right to accordingly nominate and appoint account(s) signatories.
That any party who opposes this application be directed to pay the costs of this application on a scale between attorney and client.
THAT: Prayer 2.1 above shall operate as an interim order pending the finalisation of this matter.
THAT: The Applicants are directed to serve this order on the Respondents via sheriff of the court.
THAT: The Applicants shall widely circulate this order to the beneficiaries of t he Mariba Development Trust by posting it on the community notice boards around the related villages (and village sections), at the offices of the trust, and all the farms under the control and administration of the trust.”
The 3rd to 76th respondents opposed the application and sought an order that the applicants be removed as trustees. Reference to respondents in this judgment is the 3rd to 76th respondents. Their notice of motion for the counter-application was as follows:
Dispensing with the Rules relating to forms, services and time periods as prescribed by the Uniform Rules of this court and directing that the
2023 JDR 3431 p8
Djaje DJP
matter be enrolled and heard as an urgent application in terms of Rule 6(12)
That the letter issued, withdrawn and reinstated by the Second Respondent recognising/ Appointing and or authorising the Applicants to act as Trustees of Mariba Land Development Trust, be and is hereby set aside and or alternatively; be and is hereby declared to be null and void ab initio.
That the Founding Trustees Respondents be are hereby ordered to convene an Annual General Meeting as contemplated in Clause 16 of the Constitution of the Trust or alternatively an elective meeting of beneficiaries to elect new Trustees within 30 court days of the granting of this order.
It is hereby ordered that the Applicants shall not be legible to be appointed as Trustees.
The Applicants and or anyone opposing this application be and is hereby ordered to pay the costs of this application on attorney and own client scale.”
On the return date of 14 June 2023 the following order was granted:
THAT: The Counter Application is hereby enrolled and heard as an urgent application in terms of Rule 6 (12).
THAT: The rule nisi granted on 13 March 2023 is discharged and the main application is dismissed.
THAT: The letter of authority issued on the 10th of November 2021, by the Second Respondent appointing and or authorising the Applicants to act as Trustees of Mariba Land Development Trust is hereby set aside.
2023 JDR 3431 p9
Djaje DJP
THAT: The appointment of the Founding Trustees as per the letter of authority dated 26 October 2021 issued by the second Respondent remains in force until the appointment of New Trustees in terms of the Trust Deed of 12th Applicant.”
I now furnish the reasons for the above order.
The background of this matter is that the Mariba Land Development Trust was established in 2009 through a tribal resolution. The trust is governed by a Trust Deed with the community as the beneficiary of the trust. The trust property consists of land which was claimed on behalf of the community. Kgosi Kopano Lekoko is the founder of the trust. In terms of the Trust Deed, thirteen trustees were appointed by the Master of the High Court on 26 October 2012. The said trustees were to hold office for a period not exceeding twenty- four months. The first trustees were in office for a period exceeding two years due to various reasons and there was correspondence with the office of the Master in that regard.
The applicants allege that the first trustees failed to account for the activities of the trust in the years that they were trustees. As a result, they approached the Master after organising elections in the community. They were subsequently appointed as trustees in December 2021. The letters of authority were withdrawn by the Master after correspondence from the first trustees. However, the applicants continued to use the withdrawn letters to access the Trust’s bank account and eventually approached court as stated herein above as the bank suspended the account.
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Djaje DJP
The respondents seek an order to discharge the Rule Nisi and argued that the applicants had no locus standi.
The applicants argued that the term of office of the first trustees expired on 26 October 2014 and they failed to call a meeting for the election of new trustees. Further that they failed to give financial account of their activities to the community, being the beneficiaries of the trust. As a result of this inaction by the first trustees, the applicants grouped themselves as beneficiaries to elect new trustees in October 2021. The said trustees term of office expires in...
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