THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1136/19
In the matter between:

THETELE JOSEPH MALATJI                                                     APPELLANT
and
MAPONYA LAZARUS LEDWABA NO                     FIRST RESPONDENT
GISELA STOLS NO                                               SECOND RESPONDENT
THE MASTER OF THE HIGH COURT
GAUTENG DIVISION PRETORIA                               THIRD RESPONDENT
THE MINISTER FOR RURAL
DEVELOPMENT AND LAND REFORM              FOURTH RESPONDENT
PROVINCIAL SHARED SERVICES CENTRE
OF THE DEPARTMENT OF RURAL
DEVELOPMENT AND LAND REFORM
LIMPOPO PROVINCE                                                       FIFTH RESPONDENT
THE REGIONAL LAND CLAIMS
COMMISSIONER LIMPOPO PROVINCE                SIXTH RESPONDENT
REFILWE IRENE LETSOALO                           SEVENTH RESPONDENT
MOTLOKWA SUZAN MOJAPELO                          EIGHTH RESPONDENT
ZILI MASETLA                                                            NINTH RESPONDENT
PHUTIANE CURRY LETSOALO                           TENTH RESPONDENT
MANKUROANE MODIBA                                ELEVENTH RESPONDENT

ALI MAAKE                                                           TWELFTH RESPONDENT
VERONICA SEBOLAWA MOTSWI           THIRTEENTH RESPONDENT
FRANS MOKOENA KUBJANA                  FOURTEENTH RESPONDENT
JIMMY KUBJANA                                             FIFTEENTH RESPONDENT
DAVID MEHLAPE-MALATJI                         SIXTEENTH RESPONDENT
MAITE MOSERI                                          SEVENTEENTH RESPONDENT
MARY NTOAMPE                                          EIGHTEENTH RESPONDENT
JANE MAHASHA                                             NINETEENTH RESPONDENT
MOKOPA WILLIAM MONYAMA               TWENTIETH RESPONDENT

Neutral citation: Malatji v Ledwaba NO and Others (Case no 1136/2019)
[2021] ZASCA 29 (30 March 2021)
Coram:
SALDULKER, MBHA and MBATHA JJA and GORVEN and
EKSTEEN AJJA
Heard:
18 February 2021
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives via email, publication on the Supreme Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 09h45 on 30 March 2021.
Summary:  Election of trustees by beneficiaries of community trust –
interpretation of court order and trust deed – beneficiaries ‘present at such
meeting’ mean physically present – beneficiaries having no common law right to
vote by proxy in election – proper interpretation of the trust deed does not include
proxies – waiver and estoppel must be pleaded – evidence held to be insufficient
to establish either waiver or estoppel.

________________________________________________________________
ORDER
________________________________________________________________
On appeal from: Limpopo Division of the High Court, Polokwane (Semenya J,
sitting as court of first instance):

The appeal is upheld with costs, including the costs of two counsel, where
so employed.
The order of the court a quo dated 8 August 2019 is set aside and replaced

with the following:

‘2.1 The voting process and the general meeting of the Mamphoku
Makgoba Community Trust (trust registration no IT8699/2004) (the trust)
held on 12 January 2019 are declared unlawful and irregular and are set
aside.

2.2
The trustees elected at the general meeting on 12 January 2019 are

interdicted and restrained from acting as trustees of the trust.

2.3
The letters of authority issued by the third respondent to the elected

trustees are reviewed and set aside in terms of s 23 of the Trust Property

Control Act 57 of 1988 and the third respondent is directed to issue letters

of authority to the first and second respondents.

2.4
The first and second respondents (the independent trustees) are

directed to continue to act as the only trustees of the trust and to:

(i)
Convene and hold a general meeting of the trust within 60

calendar days of the date of this order for purposes of nominating

and appointing a new board of trustees who are eligible to stand for

election in terms of the trust deed; and

(ii)
Give notice of the meeting at least 14 days before the meeting

in accordance with clause 15.5 of the trust deed.

2.5
The independent trustees are directed to apply the following

voting procedure at the general meeting referred to in para 2.4 above:

(i)
Only the 603 beneficiaries/claimants whose names appear on

the list of 603 beneficiaries, or who have succeeded such

beneficiaries in accordance with the provisions of clause 16.1 of the

trust deed (the qualifying beneficiaries) are entitled to attend and

vote at the general meeting.

(ii)
No person shall be allowed to vote by proxy.

(iii)
Nominations for the new trustees must be received in writing
at least 5 (five) days prior to the meeting referred to in para 2.4 above
by the independent trustees, which nominations must be in writing
and signed by the proposer, the seconder and the nominated trustee.

(iv)
Both the proposer and the seconder must be qualifying
beneficiaries.

(v)
Six hundred and three ballot papers must be prepared,
numbered consecutively, one copy of which shall be handed to each
qualifying beneficiary present at the meeting who is entitled to cast
a vote as provided in clauses 2.9 and 15.1.3 of the trust deed.

(vi)
Each qualifying beneficiary present at the meeting shall be
entitled to cast one vote in respect of each vacancy which is to be
filled.

(vii) Any person casting more votes than the number of vacancies
to be filled will be deemed to have cast a spoilt vote.

2.6
The first and second respondents are to publish the results of the
election within 48 hours of it being held.’

________________________________________________________________
JUDGMENT
________________________________________________________________
Eksteen AJA (Saldulker, Mbha and Mbatha JJA and Gorven AJA
concurring)

[1] On 4 December 2018 this Court ordered the first and second respondents
(the independent trustees) to convene and hold a general meeting of the
Mamphoku Makgoba Community Trust (the trust) for the purpose of nominating
and appointing a new board of trustees for the trust (the 2018 order). A meeting
was convened and held pursuant to the order and a new board of trustees was
appointed. However, Mr Thetele Joseph Malatji, who was both a beneficiary and
a trustee, contended that the constitution of the meeting and the elective process
followed were irregular and in breach of the trust deed and the 2018 order. He
applied to the High Court, Polokwane (the high court), to set aside the election.
The application was opposed1 and the opposing respondents raised a number of
points in limine. When the application was heard the judge a quo ordered that
four points raised in limine be argued and adjudicated separately from, and
before, the merits of the application. She dismissed the points in limine and there
is no appeal against that finding. However, she proceeded further to dismiss the
application on its merits, without affording the parties an opportunity to address
her on the issue. The appeal to this court against the dismissal of the application
is with leave of the high court.

[2] In this Court counsel were agreed that no purpose could be served by
referring the matter back to the high court to adjudicate the merits as the high

1 The third, fourth, fifth and sixth respondents did not enter an appearance. The eighth, ninth, tenth and eleventh
respondents supported the application of Mr Malatji. The first, second and twelfth to twentieth respondents
opposed the application.

court had already dismissed the application. I agree. The entire record is before
us and this Court is in as good a position to deal with the matter as the high court.

[3] The material facts leading to the 2018 order and to the present dispute are
as follows. Shortly after the advent of the millennium members of the Makgoba
community had lodged a number of land claims with the Land Claims
Commissioner in terms of the Restitution of Land Rights Act 22 of 1994, in which
they laid claim to 39 farms in the Magoebaskloof area in the Limpopo Province.
The trust was established in order to take transfer of the farms in due course, to
hold them and to develop them for and on behalf of the beneficiaries of the trust.2

[4] The trust deed set out the identities of the initial trustees and beneficiaries.
It provided for trustees to hold office for three years, after which they were
required to resign.3 On 27 June 2010 an election was held and a board of trustees
(the previous trustees), which included Mr Malatji, was appointed. Thereafter,
disputes arose between the previous trustees and certain members of the Makgoba
community who made allegations of maladministration of the trust property and
dereliction of duty against the previous trustees. Amidst this disunity the previous
trustees declined to vacate their office at the expiry of the three-year period and
an application to the high court followed. On 24 November 2015, Mabuse J
granted a declaratory order (the declarator) that their term of office had expired
by effluxion of time after the lapse of three years from 27 June 2010.

[5] Notwithstanding the declarator, the previous trustees failed to step down.
They contended that the termination of their office could not take effect until a

2 The trust was formed in 2004. A number of land claims were subsequently successful and the first properties
were transferred to the trust in approximately 2008.
3 Clause 6.4 of the Trust Deed provides: ‘Subject to paragraph 6.9 below, a trustee shall hold office for a period
of no longer than 3 (THREE) years upon which he shall resign.’ In terms of clause 6.5 ‘a trustee shall be eligible
for re-election for 2 (TWO) consecutive periods of 3 (THREE) years, whereafter he must stand down for a period
of at least 3 (THREE) years, after which he shall be eligible for re-election’.

new board of trustees was elected at a general meeting, which, they argued, had
been hampered by disruption on the part of a group of individuals referred to as
‘the steering committee’. The Master of the High Court, Pretoria (the Master),
intervened, and, in terms of s 20(2)(e) of the Trust Property Control Act 57 of
1988, removed all of the previous trustees from office and appointed the
independent trustees as trustees. This decision by the Master prompted an
application by the previous trustees to the high court, which was ultimately
resolved by the 2018 order. The previous trustees raised two issues. First, they
challenged their removal from office. Secondly, they tendered to hold a general
meeting with the purpose of the appointment of a new board of trustees, but they
sought a directive in respect of who would be entitled to attend and vote at the
meeting. In respect of the first issue this court confirmed the declarator and set
aside any subsequent letters of authority issued by the Master. The independent
trustees were accordingly the only remaining trustees in the trust.

[6] In respect of the second issue, the 2018 order stipulated:
‘3.
The first and second respondents are to convene and hold a general meeting of the Trust
within sixty calendar days of the date of this order for purposes of nominating and appointing
a new board of trustees, which will not include the first, second and third applicants (the
appellants), who are ineligible to stand for election.
4.
Only those beneficiaries who appear on the list of 603 beneficiaries are entitled to attend
and vote at the general meeting referred to in paragraph 3 above.
5.
All the parties will use their best endeavours to advertise the general meeting referred
to in paragraph 3 above to ensure that all 603 beneficiaries receive notice of the general
meeting.
6.
The nomination and appointment of a new Board of Trustees at the general meeting
referred in paragraph 3 above will take place in accordance with the relevant provisions of the
Trust Deeds.
7.
The newly appointed Board of Trustees shall within 60 calendar days of the date of
their appointment, after the election and receipt of letters of authority, convene a general
meeting to appoint further beneficiaries, who are not part of the list of 603 beneficiaries, as

contemplated in clause 5.2 of the Trust Deed,4 which general meeting shall be conducted with
the oversight of the Master and the Department of Rural Development and Land Reform.’

[7] Ordinarily one might have believed that an order of such clarity would have
resolved the dispute, but, alas, it was not to be. As adumbrated earlier the
independent trustees did convene a general meeting and a new board of trustees
was appointed. Mr Malatji, as well as the seventh to twentieth respondents, were
appointed as the new board of trustees (the trustees). However, as I have said,
Mr Malatji contended that the election was irregular, hence the application to the
high court. He argued that the process was flawed in the following respects: (i) the
independent trustees made provision in the notice convening the meeting for
voting by way of ‘proxy’ where the particular beneficiary was deceased in
circumstances where no provision therefor was made in the trust deed or in the
2018 order (the first issue); (ii) the independent trustees allowed absent
beneficiaries to vote by way of proxy in circumstances where no provision
therefor was made in the trust deed or in the 2018 order (the second issue); (iii)
the proxies that were allowed by the independent trustees were not supported by
a document or by an affidavit signed by the beneficiary/claimant who was entitled
to vote (the third issue); and (iv) the election was not free, fair or democratic. This
he contended was so because each beneficiary was allowed to cast only one vote
in toto, instead of being permitted one vote in respect of each vacant post (the
fourth issue).

[8] The events leading up to the general meeting and the election are not
seriously in dispute. On 21 December 2018 the independent trustees issued an
invitation, which was widely publicised, to beneficiaries to attend the meeting.
The invitation recorded:

4 Clause 5.1 of the trust deed provides that the initial beneficiaries shall be those persons listed in Annexure C to
the trust deed. Clause 5.2 provides: ‘Further beneficiaries shall be appointed by the incumbent beneficiaries in a
general meeting called for that purpose ….’ At the time of the 2018 order there were 603 beneficiaries.

‘INVITATION TO THE GENERAL MEETING OF THE MAMPHOKU MAKGOBA
COMMUNITY TRUST (IT8699/2004)
You are hereby invited as one of the beneficiaries who were enlisted on the verification list
containing 603 households to attend the General Meeting for the election (nomination and
appointment) of a new board of trustees, in accordance with the court order, read with the Trust
Deed, which will take place on
DATE: 12 JANUARY 2019
VENUE: MAGOEBASKLOOF HOTEL
TIME: 10H00
Where a beneficiary is deceased, the family should pass a resolution nominating a successor to
represent them as a beneficiary of the Trust and they should have this signed resolution together
with a copy of the death certificate to be allowed into the elections. The resolution form is
available at the independent trustees Mrs Gisela Stols and Mr Ledwaba Mpoyana Lazarus.
Yours Sincerely
. . .’

[9] In response to the invitation 344 persons attended the meeting. The names
of approximately 100 of the attendees did not appear on the list of 603
beneficiaries, but they claimed to be entitled to represent listed beneficiaries who
had passed away prior to the meeting, as recorded in the invitation, or listed
beneficiaries who were unable to attend the meeting.

[10] At the meeting it was evident that the attendees represented three
competing factions being the previous trustees, the steering committee and the
royal council.5 The steering committee and the previous trustees had had a history
of animosity set out earlier and the independent trustees accordingly interacted
with the various factions in an endeavour to agree to a procedure to be followed
at the meeting. The engagement was protracted with the result that the eventual
voting process continued into the early hours of the following day. However,
prior to the commencement of the voting process the parties had agreed: (i) that

5 The royal council appeared to have played a minor role and their participation is not material to the appeal.

15 trustees would be appointed; (ii) that each faction would be entitled to
nominate 15 candidates;6 (iii) that voting would be by secret ballot; (iv) that
where a beneficiary whose name appeared on the list had died prior to the meeting
a ‘proxy’ nominated by the family of the deceased would be entitled to exercise
their voting rights; and (v) that each attendee would cast only one vote in respect
of one candidate nominated.

[11] The independent trustees then resolved to permit proxy votes to be cast on
behalf of absent beneficiaries provided that the alleged proxy was in possession
of their identity document and the identity document of the absent beneficiary.
The alleged proxy voter was further required to attest to an affidavit before a
commissioner of oaths who was present at the meeting, to confirm that he was
authorised to vote on behalf of the absent beneficiary.

[12] In this Court, Mr McNally, on behalf of the respondents, argued that on a
proper interpretation of the trust deed the beneficiaries who appear on the list of
603 beneficiaries referred to in the 2018 order are not the sole repositories of
benefits under the trust – rather they are representatives of a family or household.
Thus, where a beneficiary had passed away, an individual, properly authorised,
was entitled to continue to represent the household. Similarly, properly
interpreted, so the argument proceeded, it provides for voting by proxy and
accordingly the voting process had been in terms of the trust deed. The trust deed,
he contended, was silent on the nomination of candidates and the number of votes
which each beneficiary was entitled to cast, thus leaving the decision in the
discretion of the trustees. Finally, he argued that, in any event, Mr Malatji, and
those respondents supporting the application, were precluded from relying on the
trust deed as they had, through their agreement, waived their right to challenge

6 The royal council declined to nominate any candidates with the result that 30 candidates were available for
election.

the procedure followed, alternatively, they were estopped from doing so. I shall
revert to these issues.

[13] The primary issue for determination is whether the general meeting was
convened in compliance with the 2018 order and the trust deed. This requires the
interpretation of the 2018 order and the trust deed. The approach to the
interpretation of documents is now well established. It does not stop at the
perceived literal meaning of the words used by the contracting parties, but
considers them in the light of all relevant and admissible context, including the
circumstances in which the document came into being.7 The court in Eke8 stated
that court orders are interpreted in the same manner. At para 29 the Constitutional
Court held:
‘Once a settlement agreement has been made an order of court, it is an order like any other. It
will be interpreted like all court orders. Here is the well-established test on the interpretation
of court orders:
“The starting point is to determine the manifest purpose of the order. In interpreting a judgment
or order, the court's intention is to be ascertained primarily from the language of the judgment
or order in accordance with the usual well-known rules relating to the interpretation of
documents. As in the case of a document, the judgment or order and the court's reasons for
giving it must be read as a whole in order to ascertain its intention.”’

[14] The first issue relates to the invitation to and attendance by family nominated
representatives. In their opposing papers the independent trustees provided no
explanation at all for the inclusion of these persons in the invitation.

[15] The context in which the 2018 order came to be made is set out earlier.
There was a dispute between the parties in respect of the persons who would be

7 See Natal Joint Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA) para 18;
Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk [2013] ZASCA 176; 2014 (2)
SA 494 (SCA) para 12; Novartis SA (Pty) Ltd v Maphil Trading (Pty) Ltd [2015] ZASCA 111; 2016 (1) SA 518
(SCA); [2015] 4 All SA 417 (SCA) para 28.
8 Eke v Parsons [2015] ZACC 30; 2016 (3) SA 37 (CC); 2015 (11) BCLR 1319 (CC).

entitled to attend the meeting and to vote. Paragraph 4 of the order was designed
to define who would be entitled to do so. The question which remains is whether,
in terms of the trust deed, relatives of a listed beneficiary were entitled to send a
family representative to the meeting.

[16] As I have explained, the trust deed set out the names of the initial
beneficiaries. Additional beneficiaries were added in terms of clause 5.2
thereafter. Ultimately, with the assistance of the Department of Rural
Development and Land Reform a list of beneficiaries was compiled. A summary
of the list, which served before this Court in 2018, reflected:
‘4.1
Total number of claimants

=
4.2
Total number of beneficiaries

=
1087
4.3
Total number of female headed households =
4.4
Total number of male headed households
=
4.5
Total number of households

=
603’

[17] Clause 16 of the trust deed, upon which the respondents relied for the
contention that the trust deed envisaged a succession of benefits, required a
register to be kept of the interest of each beneficiary. Clause 16.1.2 provided:
‘Each Beneficiary shall nominate one further beneficiary, who shall be a family member, to
succeed in his stead should the nominating Beneficiary cease to be a Beneficiary. A list of such
nominated Beneficiaries shall be recorded in a registry kept at the office of the Trust. A non-
family member may only be nominated if the Beneficiary has no member.’
A person ceases to be a beneficiary, inter alia, upon his death.9

[18] The trust deed was before this Court when the 2018 order was made. The
context of the dispute which served before this Court and the provisions of
clause 16 of the trust deed lead ineluctably to the conclusion that the reference to
the ‘beneficiaries who appear on the list of 603 beneficiaries’ in the 2018 order is

9 Clause 16.1.3.

to the 603 claimants recorded in the list of beneficiaries, ie, the 360 women and
243 men whose names appeared on the list. In the event of their death their name
on the list might have been substituted in accordance with the provisions of clause
16. However, the trust deed makes no provision, directly or by inference, for the
nomination of a successor to a beneficiary other than by way of clause 16.1.

[19] I turn to the issue of proxies. The 2018 order directed that the nomination
and appointment of the new board of trustees was to take place ‘in accordance
with the relevant provisions of the Trust Deed’. It is accordingly primarily the
interpretation of the trust deed which had to be considered. I shall refer to the
material provisions of the trust deed where necessary below. The trust deed
enjoined the trustees to hold a general meeting for the purpose of the election of
trustees ‘by beneficiaries present and entitled to vote in terms of this Trust Deed’.
The entitlement to vote is circumscribed in clause 2.9 of the trust deed which
provides:
‘“Beneficiaries” for purpose of . . . a General Meeting at which it is required that a vote be
taken for any reason whatsoever, shall mean Beneficiaries present at such meeting and not
younger that 21 (TWENTY ONE) years of age as being a Beneficiary qualified to vote.’

[20] Mr McNally argued that ‘present at such meeting’ should be interpreted to
include ‘present by proxy’. As adumbrated earlier the argument was that the
beneficiary named in the register is not the sole repository of benefits under the
trust. Where the beneficiary had passed on, so the argument went, there was no
warrant to disqualify that household or family from having its voice heard.

[21] Thus, the respondents submitted, the approach taken by the independent
trustees to allow voting by proxy through mandated representatives is entirely
consistent with the scheme of the trust deed. The argument cannot be sustained.
The scheme of the trust deed in respect of succession of rights is set out earlier.

It provides no support for the respondents’ argument. Moreover, a proxy is simply
a form of mandate.10 It requires a mandate to be extended by the principal to their
agent to exercise the vote to which the principal was entitled at the meeting. Self-
evidently a deceased beneficiary is unable to extend a mandate and the procedure
adopted by the independent trustees in respect of the deceased beneficiaries is
unrelated to proxies. It is also contrary to the provisions of clause 16 of the trust
deed. For these reasons the first issue must be resolved in favour of Mr Malatji.

[22] I turn to the interpretation contended for, which was not raised on the
papers, to the extent that it was applied to absent beneficiaries. In England it has
been held that members of a corporation have no right by common law to vote by
proxy.11 In this country, too, where a person is required by statute to perform an
act involving the exercise of his discretion in a matter in which another has an
interest he may not, by common law, delegate his power.12 Thus, a citizen is not
entitled to vote by proxy in a public election. No reason in logic commends itself
to hold otherwise where a trust deed entitles beneficiaries under the trust to vote
for the appointment of trustees. Voting by proxy could therefore only have been
permitted if the trust deed provided for it. It did not do so expressly and
Mr McNally was unable to refer to any other provisions in the trust deed which
might be indicative of an intention to permit voting by proxy. The ordinary
language and syntax of the provisions of the trust deed indicate a contrary
intention. Clauses 15.1.3 and 2.9 require of a beneficiary to be both present at the
meeting and of sufficient age in order to qualify to vote. ‘Present at the meeting’,
means physically present.

10 The term derives from the Latin ‘procurator’ which means ‘mandate’.
11 See Harben v Phillips (1883) 23 Ch 14 (CA) at 35; Halsbury’s Laws of England para 701.
12 See Shidiack v Union Government 1912 AD 642; Strydom v Roodewal Management Committee and Another
1958 (1) SA 272 (O).

[23] It was not alleged that voting by proxy has ever previously been permitted
and no notice was given in the invitation to attend that absent beneficiaries would
be entitled to delegate their voting rights to a proxy. The 259 beneficiaries who
did not attend and had not been notified of the intention to permit voting by proxy
were unrepresented at the meeting where agreement was reached. Accordingly,
the acceptance of proxy votes by persons who were not entitled to attend in terms
of the 2018 order would operate to the prejudice of absent beneficiaries who had
not been advised of the intention.

[24] For these reasons, I find that on a proper construction of the 2018 order,
read in the context of the trust deed, the presence of persons not listed as
beneficiaries in the register was irregular and the acceptance of votes by ‘proxy’
on behalf of absent beneficiaries was in breach of the trust deed. The second issue
must accordingly also be resolved in favour of Mr Malatji. By virtue of the
conclusion to which I have come on this issue it is not necessary to consider the
third issue.

[25] I turn to consider the method of voting adopted by the meeting. As I have
said 333 votes, of which approximately 100 were by proxies, were cast. By virtue
of the ruling that each attendee was entitled to cast only one vote, there were no
trustees appointed with the support of the majority of the attendees. In some
instances trustees were appointed who had secured less than ten votes. The
independent trustees contended that the trust deed was silent in respect of the
manner of election and that they were therefore entitled in their discretion to adopt
the methodology which they applied.

[26] Such an assertion is incorrect. Clause 15.5 of the trust deed provides for
notice to be given of a general meeting. It requires the notice to state that a
decision of a simple majority of beneficiaries at the meeting shall be considered

the decision of the beneficiaries. The invitation distributed by the independent
trustees omitted this requirement of the trust deed, but Mr McNally was
constrained to acknowledge that the provision finds application to the
appointment of trustees. What the trust deed envisaged is that all beneficiaries
present at the meeting13 would be entitled to cast one vote in respect of each
appointment which was to be made. Only if a candidate secured a majority of the
votes could they be appointed. It follows that none of the trustees was validly
appointed and the fourth issue must also be decided in Mr Malatji’s favour.

[27] To summarise, the inevitable conclusion is that, as a result of the invitation,
the meeting was not properly constituted or conducted as envisaged in the 2018
order and in the trust deed and that the votes by ‘proxy’ on behalf of deceased
and absent beneficiaries was in conflict with the provisions of the trust deed. The
methodology adopted for the election was also in breach of the trust deed and the
election must therefore be set aside.

[28] As I have recorded, Mr McNally argued that, in any event, Mr Malatji, by
his agreement to the process followed, waived any rights which may have accrued
to him in terms of the trust deed or the 2018 order to object to the methodology
adopted, alternatively, that he was estopped from doing so.

[29] Waiver constitutes a special defence and must be pleaded. It is only under
exceptional circumstances that a court would consider the defence in the absence
of proper pleadings.14 Neither the independent trustees nor the twelfth to
twentieth respondents raised the question of waiver on the papers. However,
Mr McNally submitted that the underlying facts to establish a waiver were fully

13 Clause 2.9 and 15.1.3.
14 See Montesse Township and Investment Corporation (Pty) Ltd and Another v Gouws NO and Another 1965
(4) SA 373 (A); Dale v Fun Furs (Pty) Ltd 1968 (3) SA 246 (O).

canvased on the papers and that we should accordingly hold that Mr Malatji was
precluded from relying on the 2018 order and the trust deed by virtue of his
agreement to the procedure. The first difficulty with the argument, as I have found
earlier, is that negotiations proceeded with persons who were not entitled to be at
the meeting. It was simply not the meeting envisaged in the 2018 order. The
second difficulty arises from the admission by the independent trustees that there
was no agreement in respect of the acceptance of proxy votes on behalf of
absentee beneficiaries (as opposed to deceased beneficiaries) and that they
decided on the admission thereof. The high water mark of the respondents’ case
in this regard was that when the voting eventually started, Mr Malatji did not
object to the acceptance of proxy votes. His silence, so it was argued, was plainly
inconsistent with the intention to enforce the right to rely on the provisions of the
trust deed in respect of the entitlements to vote. Thus, we were urged to hold that
the waiver has been established. This argument, too, cannot be sustained for the
reasons which follow.

[30] The waiver of a right has the effect of extinguishing that right and the
corresponding obligation. It is a question of fact and it is difficult to establish15 as
there is a factual presumption that a party is not lightly deemed to have waived
his rights. For this reason clear evidence of the waiver is required.16 For a
successful reliance on waiver the evidence must establish that when the alleged
waiver occurred the party waiving their right had full knowledge of the existence
of the right which they decided to abandon.17 In this case the evidence shows that
Mr Malatji approached an attorney, one Louis Erasmus, in the week following
the appointment of the new board of trustees. It was Erasmus who set out the
grounds of objection in a letter to the new board of trustees. There is no averment

15 Laws v Rutherfurd 1924 AD 261.
16 Hepner v Roodepoort-Maraisburg Town Council 1962 (4) SA 772 (A); Borstlap v Spangenberg en Andere
1974 (3) SA 695 (A).
17 Netlon Ltd and Another v Pacnet (Pty) Ltd 1977 (3) SA 840 (A) at 873-4.

in the papers that Mr Malatji knew at the time that the voting occurred that the
trust deed did not permit the acceptance of proxy votes. On the contrary, Mr
McNally argued that all the beneficiaries understood that it clearly did.

[31] I conclude therefore that the issue of waiver was not properly raised on the
papers and the evidence did not establish the defence.

[32] Estoppel, like waiver, is a special defence which must be raised in the
pleadings.18 The respondents relied, for the estoppel, on the silence of Mr Malatji
when the voting took place, which, it was contended, conveyed to the independent
trustees that he had consented to the voting procedure. The essence of an estoppel
is that a person is precluded (or estopped) from denying the truth of a
representation made by him to another if the latter, believing in the truth of the
representation, acted thereon to his detriment. A causal connection must therefore
be established between the representation and the act.19 These matters were not
canvased in the papers and there was no allegation that the independent trustees
took the decision to permit proxy votes in consequence of a representation made
by Malatji, nor that they would have acted differently had he protested. In the
result estoppel, too, has not been established.

[33] That brings me to the form of the order sought. The appellant sought to
enforce the 2018 order, which the independent trustees have failed to comply
with. In view of their previous failure he sought a more elaborate order to ensure
compliance with the 2018 order and the trust deed. Such an order is justified.

18 Blackie Swart Argitekte v Van Heerden 1986 (1) SA 249 (A) at 260.
19 See Mahabeer v Sharma NO and Another 1983 (4) SA 421 (D).

[34] In the result:
The appeal is upheld with costs, including the costs of two counsel, where
so employed.
The order of the court a quo dated 8 August 2019 is set aside and replaced

with the following:

‘2.1 The voting process and the general meeting of the Mamphoku
Makgoba Community Trust (trust registration no IT8699/2004) (the trust)
held on 12 January 2019 are declared unlawful and irregular and are set
aside.

2.2
The trustees elected at the general meeting on 12 January 2019 are

interdicted and restrained from acting as trustees of the trust.

2.3
The letters of authority issued by the third respondent to the elected

trustees are reviewed and set aside in terms of s 23 of the Trust Property

Control Act 57 of 1988 and the third respondent is directed to issue letters

of authority to the first and second respondents.

2.4
The first and second respondents (the independent trustees) are

directed to continue to act as the only trustees of the trust and to:

(i)
Convene and hold a general meeting of the trust within 60

calendar days of the date of this order for purposes of nominating

and appointing a new board of trustees who are eligible to stand for

election in terms of the trust deed; and

(ii)
Give notice of the meeting at least 14 days before the meeting

in accordance with clause 15.5 of the trust deed.
2.5
The independent trustees are directed to apply the following

voting procedure at the general meeting referred to in para 2.4 above:

(i)
Only the 603 beneficiaries/claimants whose names appear on

the list of 603 beneficiaries, or who have succeeded such

beneficiaries in accordance with the provisions of clause 16.1 of the

trust deed (the qualifying beneficiaries) are entitled to attend and

vote at the general meeting.

(ii)
No person shall be allowed to vote by proxy.

(iii)
Nominations for the new trustees must be received in writing
at least 5 (five) days prior to the meeting referred to in para 2.4 above
by the independent trustees, which nominations must be in writing
and signed by the proposer, the seconder and the nominated trustee.

(iv)
Both the proposer and the seconder must be qualifying
beneficiaries.

(v)
Six hundred and three ballot papers must be prepared,
numbered consecutively, one copy of which shall be handed to each
qualifying beneficiary present at the meeting who is entitled to cast
a vote as provided in clauses 2.9 and 15.1.3 of the trust deed.

(vi)
Each qualifying beneficiary present at the meeting shall be
entitled to cast one vote in respect of each vacancy which is to be
filled.

(vii) Any person casting more votes than the number of vacancies
to be filled will be deemed to have cast a spoilt vote.

2.6
The first and second respondents are to publish the results of the
election within 48 hours of it being held.’

_________________________
J W EKSTEEN
ACTING JUDGE OF APPEAL

Appearances

For appellant:

A G South SC
Instructed by:

Thomas & Swanepoel Inc, Polokwane

Symington & De Kok, Bloemfontein

For twelfth to twentieth
respondents:

J P V McNally SC
Instructed by:

Mapulana Maponya Inc, Polokwane

Rampai Attorneys, Bloemfontein

SUPREME COURT OF APPEAL SOUTH AFRICA
MEDIA SUMMARY – JUDGEMENT DELIVERED IN THE SUPREME COURT OF APPEAL
FROM         The Registrar, Supreme Court of Appeal
DATE         30 March 2021
STATUS     Immediate
Please note that the media summary is for the benefit of the media and does not form
part of the judgement of the Supreme Court of Appeal.
THETELE JOSEPH MALATJI v MAPONYA LAZARUS LEDWABA NO
AND OTHERS (Case no 1136/19) [2021] ZASCA 29
______________________________________________________________________________
The Supreme Court of Appeal (SCA) today upheld the appeal of the appellant,
Mr Thetele Joseph Malatji, against a decision of the Limpopo Division of the High
Court, Polokwane (high court) which had dismissed his application to declare the
election and appointment of a Board of Trustees of the Mamphoku Makgoba
Community Trust (the trust) unlawful and to set it aside.

On 4 December 2018 the SCA had made an order directing that the first and second
respondents, Mr Maponya Lazarus Ledwaba and Ms Gisela Stols, the trustees of the
trust at the time (the trustees), convene and hold a general meeting of the trust for
the purpose of nominating and appointing a new Board of Trustees, in terms of the
trust deed. The SCA had directed that only the 603 beneficiaries whose names appear
on the list of beneficiaries were entitled to attend and vote at the meeting.

A general meeting was held accordingly and a new Board of Trustees was appointed.
However, the trustees invited families of beneficiaries who had died to send a
representative to the meeting to vote as a proxy on behalf of the deceased
beneficiary. The trustees further resolved at the meeting that persons who had
arrived at the meeting claiming to be representatives of absent beneficiaries could
vote, as proxies on behalf of the absent beneficiaries, without any written mandate
from the absent beneficiary.

The SCA held that the procedure was in breach of its order and the trust deed, which
did not provide for voting by proxy.

At the meeting, attended by 344 persons, an agreement was reached between
competing factions in the meeting that 15 new trustees would be elected and that
each person present would be entitled to cast only one vote. In the result no candidate
secured a majority of votes and in some instances candidates who had secured less
than 10 votes were declared to have been elected. The SCA held that in terms of the
trust deed a candidate was required to secure a majority of votes to be validly elected.

The SCA therefor declared the election unlawful and set it aside. The SCA ordered
the trustees to convene and hold a fresh general meeting which may be attended only
by the 603 listed beneficiaries or their successors, determined as prescribed in the
trust deed and listed in the trust register. It further directed that no-one may be
permitted  to vote by proxy and that each beneficiary shall be entitled to cast one
vote in respect of each appointment which will be made.