Khabola NO v Ralitabo NO (5512/2010) [2011] ZAFSHC 62 (24 March 2011)

Khabola NO v Ralitabo NO (5512/2010) [2011] ZAFSHC 62 (24 March 2011)

The court found that the parties intended to form a partnership, simulated as a trust, given the nature of their contributions and the absence of beneficiaries in the trust instrument. The applicant, as founder and manager, and the co-trustees, as contributors, all had a direct and substantial interest in the trust property. Under common law and section 34 of the Constitution, both the applicant and co-trustees have locus standi to bring applications against each other regarding the trust property. The court therefore held that both the application and counter-application were properly before it.

Citation
[2011] ZAFSHC 62
Parties
Applicant: Sello Z. Khabola N.O; Respondent: Semakaleng P. Ralitabo N.O
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
24 March 2011
Case Number
5512/2010
Procedural Posture
Civil Application / Judgment on Locus Standi and Preliminary Issues
Outcome
Both the applicant and co-trustees have locus standi in respect of the application and counter-application.
Judges
K.J. Moloi
Legal Topics
Locus Standi, Trust Property, Partnership Simulation, Alienation of Land Act Compliance
Civil Procedure Commercial and Corporate Locus Standi Trust Property Partnership Simulation Alienation of Land Act Compliance

Case Brief

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Parties

Sello Z. Khabola N.O

Applicant

Semakaleng P. Ralitabo N.O

Respondent

Procedural Posture

Civil Application / Judgment on Locus Standi and Preliminary Issues

Legal Issues

  1. 1 Whether the applicant and co-trustees have locus standi to bring applications against each other regarding the trust property.
  2. 2 Whether the trust was a genuine trust or a simulated partnership.
  3. 3 Whether the sale of the trust property and the counter-application to remove the applicant as trustee were validly brought.

Ratio Decidendi

The court found that the parties intended to form a partnership, simulated as a trust, given the nature of their contributions and the absence of beneficiaries in the trust instrument. The applicant, as founder and manager, and the co-trustees, as contributors, all had a direct and substantial interest in the trust property. Under common law and section 34 of the Constitution, both the applicant and co-trustees have locus standi to bring applications against each other regarding the trust property. The court therefore held that both the application and counter-application were properly before it.

Court Disposition

Both the applicant and co-trustees have locus standi in respect of the application and counter-application.

Orders

  • It is declared that the applicant and the first, second, and third respondents have locus standi to bring their respective applications.
  • Costs will be costs in the course.