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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISON, PRETORIA

 

 

(1)    REPORTABLE: YES

(2)    OF INTEREST TO OTHER JUDGES: YES

(3)    REVISED.

 

CASE NO.: 27440/2021

 

           

In the matter between:

 

SIBUSISO JOHN DLADLA N.O                                                               First Applicant

                                   

MZAMOSI FLORAH NGOMANE N.O                                                  Second Applicant

 

ZUKA SIMEON NDLOVU N.O                                                                Third Applicant

 

THANDIWE FABASE THEMBA N.O                                                     Fourth Applicant

 

and

            

HAPPY LAMULA N.O                                                                              First Respondent

 

JOHN CHIPA NKALANGA N.O                                                             Second Respondent

 

NANASHI MARGARET MASHALE N.O                                              Third Respondent

 

NTOMBIZODWA DORAH SIBIYA N.O                                                 Fourth Respondent

 

DUDDU SYLVIA NKENTSHANE N.O                                                    Fifth Respondent

 

JABULILE MUMCY MUBE N.O                                                             Sixth Respondent

 

TAKALANI MATODZI N.O                                                                      Seventh Respondent

 

MASTER OF THE HIGH COURT, PRETORIA                                    Eighth Respondent

 

REQUEST FOR REASONS IN TERMS OF RULE 49(1)(C)

 

SARDIWALLA J:

 

Introduction

[1]        This is a reconsideration application in terms of rule 12(6) (c) of the Uniform Rules of Court.

[2]        The application arises from the background set out below, the facts of which are common between the parties:

[3]        The Trust is a land restitution trust, registered in 2004, which was established pursuant to the settlement of a land claim lodged on behalf of the Ngomane of Siboshwa traditional community (“the Siboshwa community”), which community was forcibly removed in terms of past racially discriminatory laws and practices from the farms Tenbosch, Coopersdal and other farms in the vicinity of Komatipoort, in about 1954, and resettled at Sibshowa in the Nkomazi District.

[4]        On 2 June 2021, the applicants launched an urgent application in terms of which they sought an order in the following terms:

“PART A

1.      That this matter is dealt with as one of urgency and that any non-compliance with with the rules of the above court be condoned in accordance with rule 6 (12) of the Uniform Rules of Court;

2.      That a rule nisi be and is hereby granted calling upon the respondents to show cause to this court on the date allocated for adjudicating of Part B of this application, why the below order should not be made a final order, subject to the further provisions of Part B where applicable, that pending the determination of the relief in part B of the notice of motion:

2.1  The Siphumelele Tenbosch Trust be and is hereby placed under administration;

2.2  That pending the determination of the relief in Part B pf the notice of motion, that Petrus Zeelie be and is hereby appointed as Administrator of the trust with powers, duties and responsibilities as set out in annexure “A” to the notice of motion,

2.3  That pending the determination of the relief in Part B of the notice of motion the trustees for the time being of the Siphumelele Tenbosch Trust are suspended as Trustees of the Trust,

2.4  That pending the determination of the relief in Part B of the notice of motion the trustees for the time being of the Siphumelele Tenbosch Trust are interdicted from;

2.4.1        Holding themselves out as entitled to represent the trust;

2.4.2        Involving themselves in any business or the affairs of the trust.

2.5  That notwithstanding the provisions of paragraph 2.2 and 2.4 above, the trustees for the time being of the Siphumelele Tenbosch Trust are directed, pending the determination of the relief in Part B of the notice of motion, to cooperate with the Administrator to the full extent permissible in law and further to provide the administrator upon demand with any documents, records and information of and concerning the Trust.

2.6  In the event of the person being appointed as administrator becomes unable to act in fulfilment of his responsibilities, any party to this application or beneficiary of the Trust may approach this honourable Court under these same court papers to substitute him with another judicially appointed administrator.

2.7  The Siphumelele Tenbosch Trust shall pay the reasonable costs of the administrator, or the work done and the time spent by the administrator in the exercise of powers, duties and responsibilities at the tariff stipulated in Annexure A.

2.8  This rule operates as an interim order.

2.9  This application’s papers together with its interim order shall be formaly served upon the respondents by no later than ten court days from the date of the interim rule nisi order, unless the respondents and/or their legal representatives/s waive this requirement.

3.      Part B be postponed sine die until after the administrator has filed his required report, and the respondents have filed their answering papers, if any, and the applicants have filed their replying papers, if any, and the parties have filed their heads of arguments and practice notes and finalized the court file. Provided that nothing in this order prevents the respondents from anticipating a hearing to deal with the interim relief in paragraphs 2 and 2.8 above.

4.      Costs of Part A of this application be reserve.

5.      Further and/or alternative relief.

 

“PART B

6.      The current trustees for the time being of the Siphumelele Tenbosch Trust are removed as trustees, with immediate effect.

7.      The interim administrator is appointed as the sole trustee of the trust, with all the responsibilities pertaining thereto, but including the power to make application, to this court, on proper notice to the Master of the High Court and the beneficiaries of the Trust, for the amendment of the Trust Deed to ensure the proper administration of the Trust going forward.

8.      The Trustee shall, as soon as he reasonably practically can, or at the Discretion of the Court, convene a general meeting of the beneficiaries of the trust, as contemplated in clause 19 of the Trust Deed, for the purposes set out in that clause and for the election and appointment of new business.

9.      On the issues of new letters of authority to the elected or appointed trustees, his appointment as trustee, shall lapse.

10.  The Siphumelele Tenbosch Trust and any respondent who opposes this application shall jointly and severally be liable to pay the costs of this application, including the costs of Part A and B.”

[5]       On 8 June 2021, the applicants obtained an order in terms of Part A of the notice of motion granted in urgent court by Justice Collis on an ex parte basis. The ex parte order, together with the application, was served on the respondents.

[6]        On 24 June 2021, approximately a two weeks after the respondents were served with the documents referred to in paragraph 5 above, the respondents filed a notice in terms of Rule 6(8) alternatively Rule 12(6) (c) accompanied by an answering affidavit by the first respondent. The notice indicates that the application would be heard on 6 July 2021. 

[7]        The answering affidavit sets out the grounds on which the respondents seek to have the ex parte order reconsidered as well as a response to the applicants’ averments in the founding affidavit in the urgent application.

[8]        The reconsideration application deals with the purported material non-disclosure of previous litigation between the parties, jurisdiction and no justification for an ex parte application.

[9]        On the authority in the seminal Plascon Evans[1] judgment, I adjudicate this application on the facts disputed by the respondent, on common cause facts or on facts not disputed or unreasonably disputed by the respondent. Therefore, given that the facts in the founding affidavit largely stand undisputed, unless they are so far-fetched that it is unreasonable to rely on them, the application stands to be determined by them. In the light of the above, I deal with the additional grounds only in as far as they relate to questions of law.

The Jurisdictional Challenge

[10]      In Kwemaya v National Commissioner, Correctional Services and another^[2], Olsen J referred to the case Makhanya v University of Zululand  2010 (1) SA 62 (SCA) at paragraphs 71 and 72, where it was held that the proper approach for a court confronted with a claim, and an objection that the court lacks jurisdiction to entertain the claim, is to accept that the claim before the court is “a matter of fact”. If a claimant says that the claim arises from the infringement of a right to enforce a contract, then the court must deal with it accordingly.  When the claimant says the claim is to enforce a right created by the Labour Relations Act then that is the one before the court, as a matter of fact.  When the claim is said to be for the enforcement of a right derived from the Constitution then that as a fact is the claim.  The question as to whether the claim is bad is beside the point.  The court went on to say that a claim which exists as a fact is not capable of being converted into a claim of a different kind by the mere use of language; and a court cannot under the guise of “characterising” a claim purport to convert the claim placed before the court into a claim of another kind. 

[11]     He went on to say that approaching the matter in the light of what was said in Makhanya supra, would mean that one should reach an understanding about what a claim is by having regard only to the label attached to it by the claimant; and not by looking to the elements of the cause of action pleaded by the claimant in order correctly to label the claim where the claimant might have done so incorrectly.  His view was that Gcaba v Minister for Safety and Security^[3]  illustrates that Makhanya should not be read that way and he went on to state the following:

“[29]    Gcaba concerned a policeman who had applied for a position unsuccessfully.  He approached the High Court with an application to review the decision not to appoint him.  The High Court decided that it lacked jurisdiction to entertain the application because it was an employment matter.  Before the Constitutional Court the applicant contended that his claim was from inception one which fell under PAJA, as he sought to vindicate his right to just administrative action.  The respondents contended that the applicant’s claim was a labour matter which had to be adjudicated through the “finely tuned mechanisms provided for in the LRA”.  The court in Gcaba held that before addressing the issue of jurisdiction, and indeed in order to address that question, the court had to decide whether the conduct complained of by Mr Gcaba was administrative action.  (See paragraph 63 of the judgment.)  Having found that it was not, the court held (in paragraph 75 of the judgment) that where the court’s jurisdiction is challenged in limine at the outset, the pleadings and, in motion proceedings, also the contents of the supporting affidavits, must be interpreted “to establish what the legal basis of the applicant’s claim is”.  If, “properly interpreted”, that enquiry establishes that the applicant is asserting a claim within the exclusive jurisdiction of the Labour Court, the High Court would lack jurisdiction. On that basis the decision of the High Court in Gcaba was found to have been correct.

[30]     It seems to me that I must follow the same approach as was followed in Gcaba.  There (in paragraph 64 of the judgment) it was held that where a grievance is raised by an employee relating to the conduct of the State as employer, and there are “few or no direct implications or consequences for other citizens”, then the conduct complained of is not administrative action.  Here, perhaps even more than in the case of Mr Gcaba, the conduct of the department in which the applicant was employed carried no implications and generated no consequences for anyone outside the particular relationship between the applicant (as employee) and her employer, the State.  The applicant wrongly pleads in her papers that what happened is governed by PAJA.  She erroneously attaches the label “administrative action” to the conduct she complains of.  For that reason, following Gcaba, the conclusion must be that this court lacks jurisdiction if the characterisation of the conduct of the State as administrative action is the only basis upon which the applicant asks the court to decide her claim^[4].”

[12]     It is therefore important to consider the applicants’ interest in this matter. In Giant Concerts CC v Rinaldo Investments (Pty) Limited^[5] Cameron J dealt with the requirements to establish own interest standing in a legality challenge.  The following appears in paragraph 35 of the judgment.

“Hence, where a litigant acts solely in his or her own interest, there is no broad or unqualified capacity to litigate against illegalities.  Something more must be shown.”

[13]      The requirement to be established is whether the illegality directly affects his or her rights or interests, or potential rights or interests. The applicants’ standing is that the trust was registered in Pretoria and therefore falls under the jurisdiction of the Master of the High Court. Further that the trustees were appointed by this Court and as such this Court has power to remove the respondents as trustees. I agree with this submission. The rights the applicants sought to enforce were directly related to the appointment of the trustees by the Master of the High Court. Ultimately the applicants came before this court to vindicate their constitutional rights which are protected by the provisions of section 38 (c) and 38 (e) of the Constitution, whose task it is to protect those rights.

[14]      In the circumstances I conclude that this court has jurisdiction to determine the present application.

Urgency

[15]   The general principles applicable in establishing urgency are dealt with in Rule 6(12) of the Uniform Rules of this Court. The importance of these provisions is that the procedure set out in Rule 6(12) is not there for the mere taking.  Notshe AJ said in East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767) [2011] ZAGPJHC 196 (23 September 2011) in paras 6 and 7 as follows:

            ‘[6] The import thereof is that the procedure set out in rule 6(12) is not there for taking. An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the Applicant must state the reasons why he claims that he cannot be afforded substantial redress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial redress in an application in due course. The rules allow the court to come to the assistance of a litigant because if the latter were to wait for the normal course laid down by the rules it will not obtain substantial redress.

[7] It is important to note that the rules require absence of substantial redress. This is not equivalent to the irreparable harm that is required before the granting of an interim relief. It is something less. He may still obtain redress in an application in due course but it may not be substantial. Whether an applicant will not be able obtain substantial redress in an application in due course will be determined by the facts of each case. An applicant must make out his case in that regard.

[16]   This leaves the requirement of the applicant’s ability to obtain proper substantive redress in due course, for consideration. Obviously, and where a matter is struck from the roll for want of urgency, then the merits of the application remains undetermined. It follows that the application can still be considered and granted by a Court in the ordinary course. But I understand that in this case, there was a unique consideration. Considering the undeniable realities of litigating in the ordinary course, by the time the matter proceeded, the applicants argued that the trust which had already been mal administered would likely have been further depleted if the trustees who have unqualified powers and access to the trust bank account would squander the remaining assets. Further that due to the continuous and ongoing violence and threats of violence against trustees should they fail to resign requires urgent and immediate intervention was required. The respondents contended that the matter was not urgent as the applicants’ knew of the alleged transactions since 2019 and failed to take action. The respondent averred that the acts of violence were not alleged to have been perpetrated by the respondents nor did the applicants allude the respondent’s participation or instigation thereof and therefore was not relevant to urgent relief sought against the respondents and no explanation for why the applicant’s waited a protracted period of time before bringing the application if indeed the circumstances were as dire as they indicated in their founding affidavit. I agree with the respondents. I am therefore satisfied that the applicants were therefore able to obtain substantive redress in the ordinary course and the matter was incorrectly heard as one of urgency. However, even if the application failed on urgency, it is possible, in appropriate circumstances, to even dispose of the matter on the merits, where a matter is regarded as not being urgent, instead of striking the matter from the roll. The Court in February v Envirochem CC and Another^[6] dealt with this kind of consideration, and even though the Court accepted that urgency was not established, the Court nonetheless proceeded to dismiss the matter in the interest of finality and so the matter should be dealt with once and for all. Nevertheless, whilst the matter could have been dealt with on the merits, the application was brought ex parte and did not provide the respondents with an opportunity to respond to the allegations and place their version before the Court to make a proper determination on the merits. The objection on the grounds of lack of urgency therefore must stand. 

Non-disclosure of material facts

[17]      The respondents contend that the applicants’ committed a material non-disclosure when they failed to disclose previous litigation between the parties which also dealt with certain issues of payments to the applicants in that matter as well. Further that there is an application pending for the removal of the second to fourth applicants for alleged unlawful acts against the trust and a further separate application interdicting the applicants and its attorneys from interfering with the management of the trust.

[18]     The applicants in response did not deny that they received irregular payments and aver that this was acknowledged in case number 4456/2019. Further the first applicant in his founding affidavit stated that he received payments for accounting services rendered to the trust and is therefore irrelevant to the proceedings as the applicants applied to have themselves removed as trustees and therefore had no benefit or advantage by bringing the application. However, the applicants remained silent on the pending application to have them removed for unlawful conduct against the trust. This surely was a point of significance and required an explanation since the very same applicants who stand to be removed in the pending case of 1082/2021 for alleged unlawful conduct against the trust were seeking the removal of the respondents in the urgent application before Collis J. I find in the in the premises, this ground of objection also must stand. 

 

Proceedings without notice or justification for ex parte

[19]     The respondents disputed the application being brought on an ex parte basis on the reasoning that the applicants did so solely on with the intention to deprive the respondents of a fair hearing. The applicants alleged that an application by normal notice would have resulted in the further squandering the trust assets but significantly failed to offer an explanation as to why it waited more than a year and a half to institute these proceedings for the removal of the trustees who are alleged to have committed the unlawful acts. The respondent in my opinion was correct in inferring that that if the applicants’ truly believed that the trust was in grave danger then they would not have waited for more than a year to bring the urgent application. I find it interesting more so because it was the primary basis upon which the applicant’s relied on in the urgent application against the respondents. Therefore, given the fact that the facts in the founding affidavit stand to be disputed this objection also must stand.

[20]      I therefore make the following order:

1.         The order granted by the honorable court on the 8th of June is hereby varied and amended as follows

1.1.      The 8th Respondent (THE MASTER OF THE HIGH COURT) is ordered to invoke the Provisions of Section 16 of the Trust Property Control Act number 57 of 1998 and to file a report on or before the 8th of October 2021.

 

1.2.      The applicants and the 1st to 7th respondents shall remain trustees pending the report of the Master of the High Court.

1.3.      All the trustees referred to in paragraph 1.2 above, shall cooperate with the Master of the High Court.

1.4.      All litigation, including the litigation in the Mpumalanga Division of the High Court is suspended pending the report of the Master of the High Court.

1.5.   The parties’ legal costs to be paid by the trust.

 

 

 

SARDIWALLA J

JUDGE OF THE HIGH COURT

 

 

APPEARANCES

Date of hearing                                                 :           6 July 2021

 

Date of judgment                                              :           26 October 2021                      

 

Applicant’s Counsel                                         :           Adv J.P Slabbert

                                                                               Adv FJ Labuschagne

 

Applicant’s Attorneys                                       :           Richard Spoor Inc Attorneys

 

 

First to Sixth Respondent’s Counsel                  :           Adv T.S Ngwenya       

 

First and Sixth Respondent’s Attorneys              :          JF Shabangu Attorneys

 

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