Mafa and Another v Lonplats Marikana Community Others (M659/2020) [2023] ZANWHC 78 (30 March 2023)

Mafa and Another v Lonplats Marikana Community Others (M659/2020) [2023] ZANWHC 78 (30 March 2023)

The court found that it lacked jurisdiction as the Trust Deed was executed and registered in Johannesburg, and all relevant parties are domiciled there. The Trust Deed expressly conferred jurisdiction on the Gauteng High Court, Johannesburg. The applicants failed to refer the dispute to arbitration as required by clause 34 of the Trust Deed, and their justification for not doing so was insufficient. The applicants also failed to join all trustees, the Trust founder, and the Master of the High Court, which constituted fatal non-joinder. The applicants' belief that the Trust could be sued in its own name was incorrect, as a trust does not have juristic personality. The court found that the...

Citation
[2023] ZANWHC 78
Parties
Applicant: Kgomotso Rosinah Mafa; Applicant: Lazarus Nkhoma; Respondent: Lonplats Marikana Community; Respondent: Peter Mcelligot; Respondent: Sibanye Stillwater
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
30 March 2023
Case Number
M659/2020
Procedural Posture
Opposed Motion / Application Dismissed After Hearing Points in Limine
Outcome
Application dismissed with punitive costs order against applicants' legal representative de bonis propriis.
Judges
S Mfenyana
Legal Topics
Jurisdiction, Arbitration Clause, Non Joinder, Trust Litigation, Punitive Costs
Civil Procedure Commercial and Corporate Jurisdiction Arbitration Clause Non Joinder Trust Litigation Punitive Costs

Case Brief

Summary, issues, holding and outcome

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Parties

Kgomotso Rosinah Mafa

Applicant

Lazarus Nkhoma

Applicant

Lonplats Marikana Community

Respondent

Peter Mcelligot

Respondent

Sibanye Stillwater

Respondent

Procedural Posture

Opposed Motion / Application Dismissed After Hearing Points in Limine

Legal Issues

  1. 1 Whether the North West High Court has jurisdiction over the dispute given the Trust Deed and parties' domicilium.
  2. 2 Whether the matter should have been referred to arbitration in terms of the Trust Deed before approaching the court.
  3. 3 Whether the failure to join all trustees, the Trust founder, and the Master of the High Court constitutes fatal non-joinder.

Ratio Decidendi

The court found that it lacked jurisdiction as the Trust Deed was executed and registered in Johannesburg, and all relevant parties are domiciled there. The Trust Deed expressly conferred jurisdiction on the Gauteng High Court, Johannesburg. The applicants failed to refer the dispute to arbitration as required by clause 34 of the Trust Deed, and their justification for not doing so was insufficient. The applicants also failed to join all trustees, the Trust founder, and the Master of the High Court, which constituted fatal non-joinder. The applicants' belief that the Trust could be sued in its own name was incorrect, as a trust does not have juristic personality. The court found that the...

Court Disposition

Application dismissed with punitive costs order against applicants' legal representative de bonis propriis.

Orders

  • The points in limine are upheld.
  • The application is dismissed.