Zeelie NO v Mjejane Parent Game Reservr Home Owners Association NPC and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Legodi JP
• Judgment Date: 07 March 2023
• Docket Number: 4033/2021
• Hearing Date: 07 March 2023
• Court: Mpumalanga Division (Main Seat)

Legodi JP:

[1]

Implementation or non-implementation of an order of Ebersohn AJ made on 12 December 2008 in the Pretoria High Court in terms of which no further fixed property belonging to the applicant, namely Mjejane Trust (IT6335/044 (hereinafter referred to as the "Trust) was to be allocated or sold or leased or otherwise encumbered until such time as the beneficiaries of the applicant shall have ratified such an encumbrance of the land belonging to the Trust, has become the subject of the dispute in these proceedings. At the heart of the dispute between the parties, the question is whether the written agreements concluded after Ebersohn's order are invalid and unenforceable for failure to obtain the approval of the majority of the properly verified beneficiaries of the Trust as per paragraph 8 of Ebersohn's order.

[2]

In terms of paragraph 8 of Erberson's order, Mr A T Fischer, an independent consultant was appointed to carry out a beneficiary verification exercise on behalf of the Trust in a manner consistent with the principles enshrined in the Restitution of the Land Rights Act No. 22 of 1994 and the trustees of the Trust were to give Mr Fischer their full cooperation in the performance of his mandate. On the other hand, paragraph 11 of the order provides that 'subject to the provisions of paragraph 12 below, no further fixed property belonging to the applicant shall be allocated or sold, or leased to any person for residential or any other purpose or otherwise be encumbered until such time as the identities of the beneficiaries of the applicant have been ratified by the court as contemplated in paragraph 9 of the order. (My emphasis).

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[3]

Paragraph 9 of the order directed that the consultant (Mr Fischer) shall submit a report on the outcome of the verification exercise referred to in paragraph 8 to the applicant (the Trust), which shall forthwith make application to court for an order confirming such beneficiaries of the Trust. On the other hand, in terms of paragraph 12 of the order, the agreements between the Trust and Lugedlane Developments (Pty) Ltd (the 3rd respondent in these proceedings), was to continue to be of full force and effect.

[4]

After the Ebersohn's order which order was granted on 12 December 2008 four agreements were concluded. First, the so called "Wildlife Agreement" concluded approximately 31 July 2009 but backdated 16 October 2008. Second, "a Servitude Agreement" dated 14 September 2010. The third agreement is dated 19 October 2018 and is referred to as "Incorporation Agreement". The fourth agreement is referred to "L D Agreement (Plan C)" dated 28 March 2019.

[5]

The next question is whether or not these agreements were concluded contrary to the provisions of paragraphs 8, 9, 11 of Ebersohn's referred to above and paragraph 10 hereof which provides 'that a general meeting of the applicant (the Trust) shall be convened within 30 days of the date upon which the list of the beneficiaries is confirmed by the court as contemplated in paragraph 8 above'.

[6]

For the purpose of paragraph [5] above, a relief in the notice of motion is framed as follows:

"1

An order declaring that the following written agreements are void alternatively unlawful or illegal, set aside and declared unenforceable;

1.1

The Wildlife Agreement concluded approximately 31 July 2009 but dated 16 October 2008 (Annexure "MT 7") to the founding affidavit.

1.2

The Servitude Agreement dated 14 September 2010 (Annexure "MT 8") to the founding affidavit.

1.3

The Incorporation Agreement dated 19 October 2018 (Annexure "MT 35) to the founding affidavit.

1.4

The LD Agreement dated 28 March 2019 (Annexure "MT 10") to the founding affidavit.

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2.

An order, interdicting the first and second Respondents and their members from entering onto or travestying the Remainder of Portion 50 of the Farm Tenbosch 162 JU, which farmland is owned by the Mjejane Trust without the written consent of the Applicant.

3.

An order, that the applicant may approach this Court for judicial oversight, for approval of any agreements that it may conclude, which may encumber any of the Applicant's properties.

4.

That the first and second Respondents, together with any other parties who may oppose this application, are ordered to pay for the costs of this interdict application jointly and severally the one to pay the other to be absolved".

[7]

The blames for all the alleged unlawful conclusions of the agreements is placed at the doors of the first, second and third respondents and at the doors of the three interim trustees of the Trust who were appointed on 20 May 2009 by the Pretoria High Court, namely, Mr M T Silinda, an attorney by profession based in Mbombela, Mr Simeon Ngomane, also an attorney by profession based in Pretoria and Mr T L Zitha referred to in Trust's affidavit as a business man. The three trustees shall collectively be referred to in these proceedings as interim trustees. They were so appointed after a string of squabbles between the initial trustees and the members of the community who are beneficiaries of the Trust. On 24 January 2017 the Master of the High Court in Pretoria appointed one Mr M L Ledwaba as the fourth interim trustee. All these trustees were suspended by an order of court which was granted by Tuchten J on 11 August 2020.

[8]

The allegations against the Interim Trustees are that they proceeded to conclude or attempted to conclude several agreements after and contrary to the Ebersohn's order, all of which fall to be set aside, so was the contention before this court. The background and attacks on each of the four agreements are dealt with individually hereunder.

WildLife agreement

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[9]

This agreement is dated 16 October 2008. But it is said it was allegedly and suspiciously concluded in July 2009 between the Trust, the third respondent (Lugedlane), and the first respondent, (Mjejane Parent Game Reserve Home Owners Association NPC) registered under number 2009/016655/08. In terms of the agreement, the first respondent and its members have exclusive use in perpetuity over one of the fixed properly (Tenbosch property) belonging to the Trust for no consideration. For this, is contended that the first respondent, the third respondent (Lugedlane) and the Interim Trustees did not only intend to encumber the Tenbosch property in contravention of Ebersohn's order, but that it also inexplicitly excluded the Trust and its beneficiaries from accessing its land which comprises the following portions, as they are commonly identified, namely, the "dam portion" of the Farm Tenbosch, measuring 3459396ha and the "river portion" being portion of the Farm Tenbosch measuring 82ha. These portions of the land are depicted in what is referred to as "Mjejane Estate Master Plan".

[10]

The first respondent is said to have procured for itself certain contentious exclusive rights as follows: The Trust and its beneficiaries are prohibited from gaining access to the portions of the land as the first respondent has allegedly acquired exclusive use of the portions of the land in perpetuity. This is said to be in stark contrast to the provisions of the Wildlife Servitude agreement which is also under attack in these proceedings. In the Wildlife Servitude agreement there are no exclusive traversing rights afforded to the first respondent and its members. It is further recorded in the Wildlife Agreement that the developer (Lugedlane) being the third respondent is in terms of clause 2.7 of the agreement granted an option to acquire the dam and river portions for consolidation with Lodwichslust land and for further development of the Trust's land.

[11]

In paragraph 15.3.2.2 of the founding affidavit, this right to develop the dam and river portions of the Tenbosch Farm or property belonging to the Trust, is described as a "perceived right to develop the dam and river portions which does not exist". There are two farms belonging to the Trust. That is, the land on the Tenbosch Farm and the other land on Lodwichslust Farm. The dam and the river are not situated on or within the Lodwichslust Farm, but rather on Tenbosch Farm. For this, it is said that

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the further development alongside the dam and the river on the same terms as envisaged in the shareholders' agreement, is misplaced.

[12]

The criticism is levelled as follows: The shareholder agreement was meant to relate only to Lodwichslust Farm or property and that the conditional authority for the development granted by the relevant authority and in terms of clause of the shareholder's agreement reference to the property, was with reference to Lodwichslut property. In terms of clause 7.7 of the shareholder's agreement after the development of certain identified portions of Lodwichslut, the third respondent as the developer was to take all steps necessary to incorporate the said remainder of the property into the Kruger National Park in exchange for land in the Kruger National Park. In this regard I understand the submission to be that "the remainder of the property" referred to in clause 7.7 can only be reference to Ludwichslust property and not Tenbosch property where the "dam and the river" are situated.

[13]

In the founding affidavit, the Trust takes the point that no reference is made to Tenbosch land in either the shareholders agreement or in the government approval. For this, it is contended that the rights perceivably afforded to the developer, the third respondent to develop Tenbosch was never envisaged by the parties who concluded the shareholder's agreement, nor by the Department in its authorisation. And that this principle should also apply to the intended subdivision of the dam and river portions and consolidation thereof into the Lodwichslust...