THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 054/2018
In the matter between:
THUPANE JOSEPH MAKGOBA                                                 FIRST APPELLANT
TFHIGO FRANS MAGOELE                                                   SECOND APPELLANT
GRACE MAHLODI MASHABA                                                   THIRD APPELLANT
MOTLOKWA SUZAN MOJAPELO                                         FOURTH APPELLANT
SAMUEL MASETLA                                                                    FIFTH APPELLANT
JOSEPH MOTSWI                                                                       SIXTH APPELLANT
MOTLATSO IVY MAGOELE                                                 SEVENTH APPELLANT
MANTILA RONNY HLOKWA                                                   EIGHTH APPELLANT
AJITA SIMON ASITI                                                                    NINTH APPELLANT
THETELE JOSEPH MALATJI                                                    TENTH APPELLANT
REFILWE IRENE LETSOALO                                            ELEVENTH APPELLANT
MATLOU JAQUELINE MAKGOBA                                      TWELFTH APPELLANT
MAKGOBA ASSET MANAGEMENT (PTY) LTD            THIRTEENTH APPELLANT

And

MAPONYA LAZARUS LEDWABA NO                                    FIRST RESPONDENT
GISELA STOLS N.O.                                                           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 REORM, LIMPOPO PROVINCE                          FIFTH RESPONDENT
THE REGIONAL LAND CLAIMS COMMISSIONER,
LIMPOPO PROVINCE                                                             SIXTH RESPONDENT
THE MAMPHOKU MAKGOBA COMMUNITY’S
STEERING COMMITTEE                                                  SEVENTH RESPONDENT

Neutral citation: Makgoba & others v Ledwaba NO & others (054/2018) [2018]
ZASCA 181 (04 December 2018)
Coram:
Seriti, Wallis, Swain and Mocumie JJA and Rogers AJA
Heard:
15 November 2018
Delivered:
04 December 2018

Summary:   Trust – period of office of Trustees expiring – no longer Trustees –
election of new Trustees – election of new Trustees – appointment of further
beneficiaries.

____________________________________________________________________
ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Makgoka J sitting as
court of first instance):

The appeal is upheld to the extent that the order of the court a quo is replaced
with what follows in paragraphs 2 to 7 below.
It is declared that the first to twelfth appellants’ term of office as trustees
terminated with effect from 26 June 2013, and any subsequent letters of
authority issued to the first to twelfth appellants, to date of this order are set
aside.
3.
The first and second respondents are to convene and hold a general meeting
of the Trust within 60 calendar days of date of this order for the purpose of
nominating and appointing a new Board of Trustees, which will not include the
first, second and third applicants,1 who are ineligible to stand for election.
Only those beneficiaries who appear on the list of 603 beneficiaries (Annexure
A14, record, pp196-225) are entitled to attend and vote at the general meeting
ordered in paragraph 3 above.
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.
The nomination and appointment of a new Board of Trustees at the general
meeting referred to in paragraph 3 above will take place in accordance with
the relevant provisions of the Trust Deed.
The newly appointed Board of Trustees shall within 60 calendar days of date
of their appointment, after the elections 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, which general meeting shall be conducted with the oversight of the
Master and the Department of Rural Development and Land Reform.
The appellants to pay the costs of this appeal.

1 The three applicants referred to in this paragraph are same three appellants in this appeal.

___________________________________________________________________
JUDGMENT

Mocumie JA (Seriti, Wallis and Swain JJA and Rogers AJA concurring)

[1] This is an appeal by the first to the twelfth appellants against the order of the
Gauteng Division of the High Court, Pretoria (the court a quo) setting aside the
decision of the third respondent, the Master of the High Court, Pretoria, (the Master),
to remove the trustees of Mamphoku Makgoba Community Trust (Trust Registration
No IT8699/2004) (the Trust). The parties were ordered to pay own costs. Not
satisfied with the order of the court a quo, the appellants unsuccessfully applied for
leave to appeal to the court a quo. This appeal is before us with the leave of this
Court. The primary question in this appeal was whether the court a quo was entitled
to order the immediate resignation of the appellants as trustees of the Trust after
reinstating them. As will be seen, this assumed secondary significance.

[2] The appellants were members of the Board of Trustees of the Trust until the
expiry of their term of office on 26 June 2013 pursuant to clause 6.4 of the Trust
Deed. Nonetheless they continued in office until their removal by the Master on 22
February 2017. The deponent to the founding affidavit, Mr Thupane Joseph
Makgoba, was the chairperson. The respondents were respectively; two independent
trustees appointed by the Master (first and second respondents), the Master (third
respondent), the Minister of Rural Development and Land Reform (fourth
respondent), the Provincial Shared centre-Department of Rural Development and
Land Reform (fifth respondent), the Regional Land Claims Commission (sixth
respondent) and the Mamphoku Makgoba Community’s Steering Committee
(seventh respondent) also known as the Makgoba Transfer Committee or the
Makgoba Youth Committee or the Makgoba Beneficiaries Committee. The third to
sixth respondent are cited for their interest in the matter.

[3] The major challenges in advancing the objects of the Trust in favour of the
community were as follows; allegations of maladministration of the Trust properties
by the initial trustees, dissatisfaction amongst the intended beneficiaries with the
failure of the initial trustees to hold Annual General Meetings to elect new trustees

who would identify and verify members of the Trust who had an interest in and would
be entitled to vote on issues related to the Trust. All these allegations have been
compounded by the appellants holding onto power despite the existence of a final
court order made on 24 November 2015 declaring that their term of office had
expired by effluxion of time at the end of what was the three years maximum period
for holding trusteeship as provided for in clause 6.4 of the Trust Deed. There was no
appeal against that order.

[4] In brief, the facts of this matter which are common cause between the parties
are as follows. Prior to 2004 the Makgoba community lodged a number of land
claims with the Land Claims Commission in terms of the Restitution of Land Rights
Act 22 of 1994 over land consisting of 39 farms located in the Magoebaskloof area in
the Limpopo province. In order to facilitate the transfer of and the housing of the
properties (farms) to be transferred pursuant to the various land claims, to receive
transfer of the said farms and hold them for and on behalf of the beneficiaries and to
generally facilitate the development of the said farms in the interests of the
beneficiaries of the Trust, on 9 September 2004 the Trust was established and
registered.2 The Trust Deed sets out the identities of the initial trustees and
beneficiaries. Although the Trust was created in 2004, the initial trustees did not
have any assets to manage until around 2008/2009 when the properties forming the
subject matter of the land claims were transferred into the name of the Trust.
Pursuant to the General Meeting of the Trust held on 16 August 2015, it was
resolved that a company under the name of Makgoba Asset Management (Pty) Ltd
(MAM) be registered and incorporated under the Companies Act 71 of 2008 with the
purpose of leasing all the property owned by the Trust by way of a 40 years notarial
lease at an initial rental of R550 000 per year for the first four years with annual
increments thereafter. MAM in turn subleases and manages such properties on
behalf of the Trust. All profits derived by MAM accrue to the Trust. The Trust is
represented by the 1st and 10th appellant on the board of MAM.

2 The establishment and registration of the Trust was published in Government Notice No 26496
dated 2 July 2004 as amended for the restitution of land rights, attached to the papers as Annexure A.

[5] Sometime in 2013 the seventh respondent brought an urgent application in
the high court complaining about the appellants’ conduct. The application was struck
off the roll for lack of urgency.

[6] In 2015, the seventh respondent brought another application. On 24
November 2015 after hearing all parties, Mabuse J granted an order which reads:
‘It is hereby declared that the term of office of the current Board of Trustees that was elected
on 27 June 2010 and whose election was subsequently confirmed by the Master of the High
Court on 27 October 2010 expired by effluxion of time at the end of a period of three years
reckoned from 27 June 2010.’

[7] Notwithstanding the order, the appellants continued in office. They failed to
hold the prescribed general meetings to account to the beneficiaries on the finances
of the Trust and to pay out dividends equally to all the beneficiaries as set out in
clause 9.2 of the Trust Deed.3 They refused to relinquish their positions as the Trust
Deed prescribed in clause 6.44 apparently on the basis of a contention that the
termination of their office did not take effect until replacement trustees were elected
at an annual general meeting which they alleged were made impossible to convene
by the seventh respondent and its members. The Master intervened and asked the
trustees to account by requesting documents from them. The Master’s endeavours
did not succeed. She was not satisfied with the response and decided to exercise
her powers under s 20(2) (e) of the Trust Property Control Act 57, 1988 (the Act).
She removed all the appellants including the second and third respondents from their
office in a letter dated 22 February 2017.

[8] The appellants did not accept this but approached the high court on an urgent
basis. According to the Notice of Motion they sought an order in the following terms:
‘1
The rules relating to forms, notice and time periods are dispensed with and this
application is heard as an urgent application as provided for in Rule 6(12) of the
Uniform Rules of Court;
The decision of the Third Respondent taken on 22 February 2017 to remove the 1st –
12th Applicants as trustees of the Mamphoku Makgoba Community Trust [Trust

3 Clause 9.2 reads: ‘To pay over to the Beneficiaries their equitable dividends from profits accrued as
a result of the farming activities on the Farms, all Beneficiaries receiving equal dividends.’
4 Clause 6.4 provides: ‘…a trustee shall hold office for a period of no longer than 3 (THREE) years
upon which he shall resign.’

Registration No. IT8699/2004] (“The Trust) in terms of section 20(2)(e) of the Trust
Property Control Act 57 of 1988 (“the TPC”) is set aside in terms of section 23 of the
TPC, alternatively is reviewed and set aside in terms of section 23 of the TPC, read
together with the provisions of the Promotion of Administrative Justice Act 3 of 2000
(“PAJA”);
The 1st – 12th Applicants are hereby reinstated as trustees of the Trust;
The 1st – 12th Applicants and the 1st and 2nd Respondents (“the trustees”) are directed
to convene a meeting of the board of trustees of the Trust within 10 (ten) days of date
of this order to verify and finalise the register of beneficiaries of the Trust by:
4.1
including the 455 beneficiaries identified in 2008/2009 with the assistance of the 4th –
6th Respondents (“the initial 455 beneficiaries”) in such register:
4.2
including in such register those additional beneficiaries which were appointed at the
general meeting of the Trust held on 26 August 2012 (“the Trust’s additional
beneficiaries”) whose names also appear on the further register of beneficiaries
produced by the 4th – 6th Respondents during or about January/February 2016, which
contains the names of 603 beneficiaries (which includes the 455 initial beneficiaries);
The trustees are directed, within 30 (thirty) days of the meeting of the board of
trustees provided for in paragraph 4 above, to convene a general meeting of the
Trust in order to nominate and vote on the appointment of a new board of trustees, at
which meeting only those beneficiaries whose names appear on the verified and
finalised list as produced at the meeting provided for in paragraph 4 above may
attend and vote;
In the alternative to paragraphs 4 and 5 above, the trustees are directed to convene
a general meeting of the Trust in order to nominate and vote on a new board of
trustees, at which general meeting only the initial 455 beneficiaries may attend and
vote, together with the additional trust beneficiaries which were added to the initial
register of beneficiaries at the general meeting of the Trust held on 26 August 2012;
In the further alternative to paragraphs 4 – 7 above, the trustees are directed to
convene a general meeting of the Trust within 30 (thirty) days in order to nominate
and vote on a new board of trustees, at which general meeting only the initial 455
beneficiaries may attend and vote;
8.
In the further alternative to paragraphs 4 – 7 above, this Court gives directions to the
trustees as to the holding of a general meeting of the Trust to appoint a new board of
trustees, which directions will include which beneficiaries may attend such meeting
and may vote at such meeting;
The Applicants are directed to pay the costs of this application;

In the alternative to paragraph 9 above and only in the event of any of the
Respondents opposing the relief sought, that such Respondent be directed to pay
the costs of this application jointly and severally with any other opposing
Respondent;
The Applicants are granted further and/or alternative relief.’

[9] After hearing the parties, in motion proceedings, Makgoka J, based on
differing draft orders of the competing parties, granted the following order:
‘1
The decision of the third respondent (the Master) taken on 22 February 2017 to
remove the first to twelfth applicants as trustees of the Mamphoku Makgoba
Community Trust (the Trust) in terms of section 20(2) of the Trust Property Control
Act 57 of 1998 is set aside;
The first to twelfth applicants are reinstated as trustees of the trust and the Master is
directed to issue new letter of authority evidencing such reinstatement;
Upon receipt of the letter of authority referred to above, the first to twelfth applicants
shall each resign with immediate effect as trustees;
The Master is directed to consider the appointment of three further independent
trustees for the interim period until the general meeting of the Trust is held;
The first to twelfth applicants are obliged to co-operate in good faith with the new
trustees to hand over the records of the Trust in preparation of the general meeting of
the Trust;
The Trust will have a further verification meeting on 22 April 2017 at which meeting
the 603 beneficiaries reflected in annexure “A14” annexed to the applicant’s founding
affidavit, will be entitled to verify further beneficiaries in accordance with clause 5.2 of
the Trust Deed; (emphasis added.)
The general meeting of the Trust will be held on 22 May 2017 at a time and venue to
be determined by the trustees, which meeting shall be attended by all beneficiaries
verified and confirmed in the verification meeting on 22 April 2017 referred to above;
All the parties will use their best endeavours to advertise the general meeting to
ensure that all beneficiaries receive notice of the general meeting;
At the general meeting referred to above, the beneficiaries will nominate and vote for
a new board of trustees, which will not include the first, second and third applicants,
who are ineligible to stand for re-election;
The nomination and appointment of a new board of trustees at the general meeting
of 22 May 2017 will take place in accordance with the relevant provisions of the Trust
Deed;
Each party is directed to pay its own costs.’

[10] In this Court, the appellants conceded that their term of office had come to an
end. They also accepted that we should give an order to the effect that new trustees
should be appointed and first and second respondents attend to this. The only
remaining issue, thus, was whether, before new trustees could be appointed, there
had to be a verification meeting as per para 6 of the order of Makgoka J. Some
paragraphs of that order are superfluous and to the extent necessary will be
amended accordingly in the order that will follow hereafter.

[11] As alluded to above the parties presented this Court with a draft order in
which, on a single aspect, they presented two alternatives. For completeness it is
convenient to quote the draft order as a whole. It reads:
‘Alternative 1
The newly appointed board of trustees shall, as soon as possible after the election, 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, which general meeting shall
be conducted with the oversight of the Master and the Department of Rural Development
and Land Reform.
Alternative 2
After the election of the new Board of Trustees, the first and second respondents shall
remain as independent trustees solely for the purpose of conducting a verification exercise
of beneficiaries who do not form part of the list of 603 beneficiaries.
7.1
The independent trustees will commence the verification process within thirty days of
the election of the trustees.
7.2
This verification exercise will be conducted under the oversight of the Master and the
Department of Rural Development and Land Reform.
7.3
For the purposes of ensuring the independence of the verification exercise, the newly
elected trustees will not take part in the new verification exercise.
7.4
Upon conclusion of the verification exercise, the independent trustees shall convene
a special general meeting at which the existing beneficiaries shall vote on the
approval or rejection of each newly identified beneficiary as contemplated by clause
5.3 of the Trust Deed.
7.5
Upon completion of the election contemplated in paragraph 7.4 above, the
independent trustees shall present a fresh register of beneficiaries to the Trust, the
Master, and the Department of Rural Development and Land Reform.

7.6
The letters of authority granted to the independent trustees will terminate upon
completion of the final register of beneficiaries.”’

[12] In the light of what the first and seventh respondents proposed in the draft
order (ie the 2nd alternative) it necessary to say something about the powers of a
court to make orders in terms of s 23 of the Act. Section 23 of the Act provides:
‘Any person who feels aggrieved by an authorization, appointment or removal of a trustee by
the Master or by any decision, order or direction of the Master made or issued under this
Act, may apply to the court for relief, and the court shall have the power to consider the
merits of any such matter, to take evidence and to make any order it deems fit.’
(Emphasis added).

[13] Reverting to the proposal of the respondents under the 2nd alternative, the
court a quo heard this matter in motion proceedings and granted the order on the
basis of the draft orders presented by the parties. By the nature of motion
proceedings, the court a quo, did not deal with the merits and or evidence, as none
other than by way of the affidavits where there were factual disputes, was presented.
Consequently, there are no merits or evidence before us on which this Court can
justifiably invoke s 23 as prompted by both counsel for the respondents. In other
words, there are no merits or evidence to link to any order which this Court may
deem fit. In simpler terms, there is no legal foundation on which this argument can
be sustained. It was not raised before the hearing of this appeal to enable the other
parties to address it - which can be prejudicial, judging, from amongst others, the
accusations the parties have levelled against each other and what the Master termed
‘mistrust’ which had come between the parties over six years of the existence of the
Trust.

[14] Clause 5 of the Trust Deed which deals with the process by which trustees
shall be elected by beneficiaries reads as follows:
‘5.1
The initial Beneficiaries shall be those persons as per list attached hereto marked
“C”.
5.2
Further Beneficiaries shall be appointed by the incumbent Beneficiaries in a General
Meeting called for that purpose in terms of paragraph 15 hereof.
5.3
The appointment of new Beneficiaries must meet with the approval of at least two
thirds (2/3) majority of the total number of Beneficiaries entitled to vote.

5.4
The full particulars of all Beneficiaries shall be entered into a Register kept for that
purpose at the offices of the Trust on the Farm.’
This is a clear indication that this Court is not empowered to act outside this process.
It was accepted by all the parties that if this Court was not empowered to grant an
order in the terms of the 2nd alternative, we should nonetheless direct the new
trustees to hold meetings for the purposes of appointing further beneficiaries.

[15] Besides, on a procedural point, this proposal will not withstand scrutiny. When
the appellants applied for leave to appeal the specified paragraphs of the order of
the court a quo they were not satisfied with, the respondents opposed leave to
appeal then, they also opposed leave to appeal in this Court. In both instances they
did so without any demur of a counter appeal. They are thus non-suited to raise it
now in this Court.

[16] It is clear from what is set out above that the Trust under the administration of
the appellants has been dysfunctional and has for more than six years not served
the needs of the beneficiaries it was created for and the community at large. The
appellants abdicated their fiduciary responsibility and had to be removed from their
office of trusteeship to allow new trustees to be elected and run the Trust as it befits
their office. To allow their continued presence in the office of the Trust would
perpetuate the Trust being improperly administered and will be detrimental of the
welfare of the beneficiaries, contrary to the provisions of clause 6.4 of the Trust Deed
and the existing order of Mabuse J.

[17] The issue of costs. Counsel for the appellants submitted that the appellants
were partially successful and therefore entitled to their costs. He proposed that each
party pay its own costs. Both counsel for the respondents argued to the contrary.
First, if this Court agreed with the removal of the appellants, as was argued that it
should from the onset, it would in substance confirm the decision of the Master which
the appellants did not agree with and had unsuccessfully challenged in the high court
before Mabuse J and in the court a quo. Thus the respondents would be successful
and entitled to their costs. Second, it was submitted that this Court has to take into
account the fact that, upon the order of the court a quo reinstating them, and being
well aware of the second leg of the order of the court a quo that they should

immediately thereafter resign, the respondents rushed to the Master to be re-
appointed as trustees. The appellants relentlessly persisted with that point on leave
to appeal to this Court and in this Court. They only abandoned it on the morning of
the hearing of the appeal in this Court during argument. This Court should censure
such conduct in the strongest terms through a punitive cost order against them. I
agree with the respondents in principle on the costs, but not on the punitive costs.

[18] In the result, the following order was granted:
The appeal is upheld to the extent that the order of the court a quo is replaced
with what follows in paragraphs 2 to 7 below.
It is declared that the first to twelfth appellants’ term of office as trustees
terminated with effect from 26 June 2013, and any subsequent letters of
authority issued to the first to twelfth appellants, to date of this order are set
aside.
3.
The first and second respondents are to convene and hold a general meeting
of the Trust within 60 calendar days of date of this order for the purpose of
nominating and appointing a new Board of Trustees, which will not include the
first, second and third applicants, who are ineligible to stand for election.
Only those beneficiaries who appear on the list of 603 beneficiaries (Annexure
A14, record, pp196-225) are entitled to attend and vote at the general meeting
ordered in paragraph 3 above.
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.
The nomination and appointment of a new Board of Trustees at the general
meeting referred to in paragraph 3 above will take place in accordance with
the relevant provisions of the Trust Deed.
The newly appointed Board of Trustees shall within 60 calendar days of date
of their appointment, after the elections 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, which general meeting shall be conducted with the oversight of the
Master and the Department of Rural Development and Land Reform.
The appellants to pay the costs of this appeal.

B C Mocumie
Judge of Appeal

Appearances:

For Appellants:

A G South SC

Instructed by:

Thomas & Swanepoel Inc. c/o Delport Vanden
Berg, Pretoria

Symington De Kok, Bloemfontein

For First Respondent:

M Sibanda

Instructed by:

Richard Spoor Attorneys, Johannesburg

Webbers Attorneys, Bloemfontein

For Seventh Respondent:
V. M. Magwane

Instructed by:

Molaba Attorneys, Pretoria North

Rampai Attorneys, Bloemfontein