Lekoko and Others v ABSA Bank Ltd and Others (UM20/2023) [2023] ZANWHC 141 (26 July 2023)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF

SOUTH AFRICA

NORTH WEST DIVISION,

MAHIKENG

CASE NO: UM20/2023

Reportable:

YES/NO

Circulate to Judges:

YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between:

KGOSI

KOPANO SIMON

LEKOKO

1st Applicant

RAMPAGANE MOLEMI GERT; (N.O CHAIRPERSON)

2nd Applicant

RAMASESANE

OIKANYE ZACHARIA

3rd Applicant

(N.O DEPUTY CHAIRPERSON)

MARUMOLOWA ESTHER LESEGO; (N.O THE SECRETARY 4thApplicant

POLENG BONTLEENG GRANNY; (N.O DEPUTY SECRETARY) 5th Applicant

GOPANE GOEMEGONE HARRINGTON; (N.O THE TREASURER) 6th Applicant

TSHABANG SECHOGELA HARRISON; (N.O TRUSTEE) 7th Applicant

MOSIBOTSANG REAGISANG; (N.O TRUSTEE)

8th Applicant

TIRO SEABE PETRUS; (N.O TRUSTEE)

9th Applicant

MOSIKARE KENEILWE ALIAS; (N.O TRUSTEE)

10th Applicant

KEHALOTSE MARY KELEMILWEEMANG; (N.O TRUSTEE) 11thApplicant

MOSWEU MPHOENTLE PATRICIA; (N.O TRUSTEE) 12th Applicant

MARUMOLOA BAATILE SHADRACK; (N.O TRUSTEE) 13th Applicant

MOLEMA KEMONNA SIMON; (N.O TRUSTEE)

14th Applicant

KGOROGOBE

D SETLATSO

15th Applicant

SEFAKILE F. KELEBILE

16th Applicant

MOSIAPOA

AUPANYANE KOOS

17th Applicant

GOELOSIWE

MOSHE

18th Applicant

RAMPAGANE

KENALEONE

19th Applicant

MOLOISI

BROWN

20st Applicant

SETLOBOGENG

GOITSEONE

21st Applicant

MITSE

IKAGENG

22nd Applicant

SENNE

DITIRO

23rd Applicant

MOSEKIEMANG

MONNAWAPULA

24th Applicant

GADIKUTLE

KEBONE

25th Applicant

KEONETHEBE

TSHUPUTSE

26th Applicant

TLTATLAWANE

PONATSEGHO

27th Applicant

MOGAETSNO

SEADIMO

28th Applicant

MOLEFE

ODIRILE

29th Applicant

LORATO

MOTLADIRE

30st Applicant

LEKGOE

BEN

31st Applicant

POLENGN

BONTLENG

32nd Applicant

LESANG

GOPANE

33rd Applicant

METSI

ROBERT

34th Applicant

MOTHELESI

ODINILE WILLIAM

35th Applicant

THOMAS

TSHENILO REVELATION

36th Applicant

SEPAKO

ONKEMETSE JOSEPHINE

37th Applicant

OJENG

ELNA

38th Applicant

RAMASESANE

MMEREKI ELISHA

39th Applicant

RAMPAGANE

THOMAS MAPONYANE

40th Applicant

GOPANE

THUSO EZEKIEL

41st Applicant

MOGAPI.A.

MOGAPI

42nd Applicant

LETEBELE

BOITHELO

43rd Applicant

MODUSEMANG

ARCHIBALD

44th Applicant

LESEMELA

BENJAMIN

45th Applicant

MOLEBATSI

GEEMANE MOSES

46th Applicant

LEKGOHE

TEBELE JOSIAH

47th Applicant

MOSHAGENG.L.

OBED

48th Applicant

MORWE

MOOKAMI WHITE

49th Applicant

MOOKI

MALACHI WELCOME

50th Applicant

MOKGOSI

OTHUSITSE GOODBOY

51st Applicant

NTSIDI

MOTHUSI

52nd Applicant

LETEBELE.O.

ALFRED

53rd Applicant

RAMPAGANE

KAISO BENJAMIN

54th Applicant

TSUMI

ESTHER MATSHIDISO

55th Applicant

MOKAE

KISTO AGENG

56th Applicant

MARMOLWA

LESEGO

57th Applicant

TLHOMEDI

MATSHEDISO ELIAS

58th Applicant

MARUMOLOA

SOLOMON

59th Applicant

MONAGENG

DEICK

60th Applicant

RANKOKWADI

GAONE

61st Applicant

RABUDI

THANA JOHSON

62nd Applicant

MOLEMI

BAOKAI WILSON

63rd Applicant

MOENH

MMOLOKI JAMES

64th Applicant

NCHE

SHUPING

65th Applicant

KANTI

DITIRO

66th Applicant

MABOTSANG

REAGISENG

67th Applicant

TSHANG

SECHOGELA

68th Applicant

RAMASESANE

DIKANYENG

69th Applicant

GOPANE

GOEME T

70th Applicant

MOTHIBI

M

TEBOGO

71st Applicant

RAMPAGANE

KESETLA REBECCA

72nd Applicant

SEPAKO

GABOTHUSI PETRUS

73rdApplicant

TIRO

REONTSE MANA

74th Applicant

and

ABSA

BANK

LTD

1st Respondent

MASTER OF THE HIGH COURT: MAFIKENG

2nd Respondent

MOGOMOTSI HENDRICK MMUTLE, N.O

3rd Respondent

JOSEPH SERANYANE NDLOVU, N.O

4th Respondent

KAENE INNOCENT MELOMI, N.O

5th Respondent

KGOSIMODIMO REGINALD KGETSANE, N.O

6th Respondent

LEBANG ERNEST BAITLHOI, N.O

7th Respondent

BATLANG MIRANDA MOKGOSI, N.O

8th Respondent

DAVID TSELAYABOTLHE MOLUSI, N.O

9th Respondent

JEFFREY NKARABANG MADOLA, N.O

10th Respondent

MOSIMANEGAPE HAROLD SEPAKO, N.O

11th Respondent

LEBOGANG EMMANUAL XABA, N.O

12th Respondent

GOARABAONE EMMANUEL LEUTLWETSE, N.O

13th Respondent

MARIBA

LAND DEVELOPMENT TRUST

14th Respondent

(I[...])

These reasons for the order made were handed down electronically by circulation to the parties’ representatives via email. The date of hand-down is deemed to be 26 July 2023.

REASONS

FOR ORDER MADE

Mfenyana J:

[1] The applicants approached this Court on an urgent basis. On the strength of section 18(3) of the Superior Courts Act 10 of 2013 they seek an order to put into operation an order granted by this court on 14 June 2023, per Djaje DJP. In terms of that order, the respondents were directed to, inter alia, restore the applicants’ access and control of the bank account of the Maribaland Development Trust held with ABSA Bank (the first respondent).

[2] The matter having become opposed, and copious reams of documents having been filed the morning of the hearing of the matter, I issued an order regulating the further conduct of the matter, and the filing of heads of argument. I then postponed the matter to 14 July 2023 for argument.

[3] On 14 July 2023, after hearing submissions from both counsel, I made the following order:

“1. The Rules relating to forms and service and time periods as prescribed by the Uniform Rules of this Court, are hereby dispensed with and the matter is hereby enrolled and heard as an urgent application in terms of Rule 6(12).

2. That the order granted by this Court under the hand of Madam Justice Djaje DJP on the 14th of June 2023 shall operate and be enforceable pending the appeal process.

3. That the first respondent is ordered to reinstate the founding trustees to the bank accounts of the Trust, immediately upon presentation of this court order.

4. That upon the granting of this order, the 3rd to 13th respondents are interdicted from convening any beneficiary meeting and/ or any meeting purporting to be trustees of the 14th Respondent pending the final determination of the appeal.

5. That the Conditional counter application is dismissed with costs.

6. That the respondents are ordered to pay the costs of this application.

7. That should any party require reasons for the order, they shall file such request within 15 days, in accordance with the Rules.

[4] I deem it apposite to briefly deal with the facts pursuant to the granting of the order by Djaje DJP, in so far as they may be relevant to determination of the present application.

[5] Pursuant to the granting of the order on 14 June 2023, the respondents, on 19 June 2023, filed a request for reasons for the Order made by Djaje DJP, in accordance with the provisions of Rule 49(1)(b). On 26 June 2023, and despite not having received reasons as requested, the respondents filed an application for leave to appeal that order. It bears mentioning at this stage, that the period of 10 days stipulated in Rule 49 for providing reasons had not lapsed at the time of the filing of the application for leave to appeal. The reasons are still outstanding.

[6] In the present application, the applicants aver that the respondents have defied the court order and disregarded the Rules of this Court in so far as they have purported to file an application for leave to appeal, which in itself, is premature. In so doing, they have held themselves as the legitimate trustees of the Trust, in the belief that the order of Djaje DJP has been suspended, the applicants further aver.

[7] Relying on the decision of the Constitutional Court in Strategic Liquor Services v Mvumbi NO & Others 2010 (2) SA 92 (CC), the applicants contend that the grounds of appeal may only be derived from the reasons provided by the Judge. Without the reasons for the order granted on 14 June 2023, the respondents cannot proceed with an application for leave to appeal, the applicants contend.

[8] The applicants further contend that the third respondent, in convening beneficiary meetings after the order was granted, acted in contempt of the court order and should be declared as such. I must at once, state that at the hearing of the matter, the applicants did not persist with this relief, save to submit that the conduct of the respondent was contemptuous, in so far as it was at odds with the order of Djaje DJP.

[9] In a nutshell, the applicants’ contention is that they are entitled to the benefit of the order granted on 14 June 2023 as anything to the contrary would, in the circumstances, be prejudicial to the applicants.

[10] In opposing the application, the respondents raised two points in limine. The first was to the effect that the applicants have no authority to act on behalf of deceased trustees as well as those who have absconded. Linked to this point, the respondents further contend, is that the resolution provided by the applicant, is only signed by the first applicant, and not all the trustees, which they contend, is not sufficient authorisation for the first applicant to

institute these proceedings. They argue that having filed a notice in terms of Rule 7, to which the applicants responded by filing a resolution, such resolution is still insufficient, as it provides no proof that the deponent to the founding affidavit, and his legal representatives are authorised to act on behalf of the applicants, arguing that some of the applicants are either deceased or have absconded, thus precluding the applicants’ legal representatives and the deponent to bring the current proceedings.

There is no merit to this contention. To the extent that these proceedings are instituted pursuant to an existing lis between the parties, the respondents’ contention is devoid of any merit.

[11] The second point in limine is that the matter is not urgent. In this regard, the respondents aver that the applicants have failed to set out the reasons that make the matter urgent, and why they cannot be afforded substantial redress at a hearing in due course. They aver that the applicants have accorded themselves a period of five days to bring this application while giving the respondents virtually no time to file their papers. As such, they further contend that such urgency is self-created. It is common cause that when the court on 14 June 2023 granted an order, it did so pursuant to urgent relief sought by the respondents (as applicants) in those proceedings. The basis of that urgency was on the same circumstances as in the present application. It can therefore not avail the respondents to suggest that the matter is not urgent. In any event, it is not their contention that the urgency had been lost once the tables were turned, and the applicant. What they do say is that the applicants afforded themselves more time to prepare the application and did not set out with sufficient particularity why the aver that the matter is urgent. I do not agree.

[12] Surprisingly, the respondents rely on the decision of the Labour Court in Vermaak v Taung Local Municipality, which held that the applicant must place the Court in a position to appreciate that if the matter is not entertained on an urgent basis, “some unlawful act is likely to happen…”. This is precisely what has happened. There is an existing court order against what the respondents seek to achieve in these proceedings. They are in defiance of that order.

I cannot see how this assists the respondents’ case. In any event, the applicants state that they would suffer prejudice were the respondents permitted to unlawfully reverse the order granted on 14 June 2023 on the basis of a premature application for leave to appeal. This, the applicants contend, amounts to exceptional circumstances, and renders the matter urgent. There is thus no merit to the respondents’ contention that the matter is not urgent.

[13] Simultaneously with their answering affidavit, the respondents filed a “conditional notice of motion (counter-application)”. In it they seek an order directing the Master to appoint independent co-trustees to whom the first respondent (ABSA Bank) shall grant access to the Trust’s bank account. The remainder of the relief sought pertains to the accountability of the co- trustees to be appointed. Notably, the notice of motion is not accompanied by a founding affidavit, save for submissions incorporated in the answering affidavit. Its premise is the self-same application for leave to appeal.

[14] The relief sought in the “counter- notice of motion” (counter application) has no bearing on the enforcement of the order as sought by the applicants.

[15] On the merits, the respondents deny that the absence of reasons is a bar to their filing of an application for leave to appeal. Thus, their entire opposition is premised on the belief that there is a live application for leave to appeal before the Court. That belief, is, in my view, flawed. As such the respondents’ reliance on Ntlemeza- (Ntlemeza v Helen Suzman Foundation and Another) is misplaced. The respondents’ actions are no more than a tactical manoeuvre aimed at frustrating the applicants’ rights and should be frowned at.

[16] In the event that I am wrong, in holding as I have, the applicants have in any event proven that there are exceptional circumstances which justify that the order be put into operation. Mr Muza averred on behalf of the applicants, that not only had the applicants not been able to execute the order, but the business of the Trust has been brought to a standstill by the respondents’ refusal to adhere thereto. This, he averred makes for the exceptional circumstances as required in section 18(1). I agree with Mr Muza. The respondents’ own conduct, purporting to file an application for leave to appeal, while at the same time awaiting reasons for the order, also make for exceptional circumstances in my view. The respondents put the cart before the horse. In their haste, they flouted the Rules and rendered their application irregular.

[17] Mr Legoabe argued on behalf of the respondents that the applicants’ contention that they would suffer irreparable harm if the order is not granted, as there are no trustees at present, is incorrect as the respondents were appointed as trustees. What he does not say is that the Court per Djaje DJP already issued an order, the effect of which was to set aside such appointment.

[18] As such, amidst the convoluted submissions made by the parties, if one cuts to the bone of the issue in this matter, it is clear that the applicants’ case is unassailable. The absence of reasons for an order impedes the appeal process[1]. The respondents cannot approbate and reprobate at the same time. Adherence to the rules of Court is not mere formalism, but serves to promote certainty and uniformity. It also serves to prevent disarray. Such is the case in the present application, where the respondent having requested reasons, simultaneously lodged an application for leave to appeal.

[19] I cannot think of any other reason for the respondents’ haste in filing the application for leave to appeal, a mere four days after filing a request for reasons, than to frustrate the applicants’ enforcement of the order. It was opportunistic, and it was mala fide. Their basis to file leave to appeal could only be sourced from the reasons giving rise to the order of the Court. These, they do not have. They cannot assume them, or speculate what they could be. As such, they are fishing in the dark. The upshot of all this, is that no leave to appeal could legitimately be brought at the time. What is more, is that the Court is well within the timeframes prescribed in Rule 49(1)(b), to provide such reasons.

[20] Having found no merit in the respondents’ contentions and the points in limine, I proceeded to grant the application and ordered the respondents to pay the costs of the application. I further dismissed the counter-application with costs.

S. MFENYANA

JUDGE OF THE HIGH

COURT OF SOUTH AFRICA

NORTHWEST DIVISION,

MAHIKENG

APPEARANCES

DATE OF ORDER GRANTED: 14 JULY 2023

DATE OF RESONS REQUESTED: 19 JULY 2023

DATE OF REASONS FOR ORDER: 26 JULY 2023 For the Applicants: Adv CZ Muza Instructed by: Kgomo Attorneys Email: thabang@kgomoattorneys.co.za For the 3rd – 14th Respondents: Adv H Legoabe Instructed by: Bamphitile Attorneys Email: karab@bamphitile.co.za

[1] Strategic Liquor Services v Mvumbi NO & Others, supra