Masilo NO v Bakubung-ba-Ratheo Traditional Council and Others (1737/2010) [2010] ZANWHC 10 (23 September 2010)

NORTH WEST HIGH COURT,

MAFIKENG

CASE NO 1737/2010

M

H MASILO NO …....................................................APPLICANT

(In his capacity as Administrator of the Traditional

Council of the Bakubung-Ba-Ratheo)

and

THE BAKUBUNG-BA-RATHEO …....................1ST

RESPONDENT

TRADITIONAL COUNCIL

MUSA CAPITAL ADVISORS (PTY) LITED …....2ND

RESPONDENT

THE BAKUBUNG COMMUNITY DEVELOP- ….3RD

RESPONDENT

MENT CORPORATION

THE BAKUBUNG ECONOMIC DEVELOP- …...4TH

RESPONDENT

MENT UNIT

NEDBANK LIMITED ….......................................5TH

RESPONDENT

THE STANDARD BANK OF …...........................6TH RESPONDENT

SOUTH AFRICA

DEUTSCHE BANK ….........................................7TH

RESPONDENT

INDEPENDENT DEVELOPMENT …..................8TH

RESPONDENT

CORPORATION

ABSA BANK LIMITED …...................................9TH

RESPONDENT

INVESTEC BANK LIMITED ….........................10TH

RESPONDENT

NEWSHELF 925 (PTY) LIMITED ….................11TH

RESPONDENT

AFRIFOCUS SECURITIES (PTY) LIMITED......12TH

RESPONDENT

MARGARET MONNAKGOTLA …...................13TH

RESPONDENT

THE ROYAL FAMILY OF THE ….....................14TH

RESPONDENT

BAKUBUNG-BA-RATHEO

THE BAKUBUNG CONCERNED GROUP........15TH

RESPONDENT

EZEKIEL MOTSHUBELA MONNAKGOTLA.....16TH

RESPONDENT

[In his capacity as trustee of the Bakubung-Ba-Ratheo

Economic Development Trust]

MICHAEL HENRY SOLOMON N.O. ….............17TH

RESPONDENT

LORNA MALONEY N.O. …...............................18TH

RESPONDENT

[In her capacity as trustee of the Bakubung-Ba-Ratheo

CHOICE FRANCINAH TSHETLHE N.O............19TH

RESPONDENT

JABULANI BEN GUMBI N.O. ….......................20TH

RESPONDENT

PIETER EBERSOHN N.O. ….............................21ST

RESPONDENT

Community Trust]

JOHANNES M MONKWE N.O. …....................22ND

RESPONDENT

ALEXANDER N MOKGOSI N.O. …..................23RD

RESPONDENT

ANDRE P SEHUBE N.O. …..............................24TH

RESPONDENT

LESOLE SOLOMON MOLOKO N.O. …............25TH

RESPONDENT

GAKEBOIFE M MELATO N.O. ….....................26TH

RESPONDENT

[In his capacity as trustee of the Bakubung-Ba-Ratheo Community Trust]

J U D G M E N T

LEEUW JP:

[1] On the 26 August 2010, I handed down the order in paragraph 50 infra. What follows are the reasons for judgment.

[2] The applicant approached this Court on an urgent basis seeking an order in the following terms:

“1. THAT, the application be considered on an urgent basis in terms of the provisions of Rule 6(12) of the Rules of this Honourable Court

dispenses with the forms and service provided for in these Rules.

THAT, the Applicant be authorized to take all such steps as might reasonably be necessary to convene a meeting of the Community of the Bakubung-Ba-Ratheo Traditional Community which meeting has to be held on either Saturday 14th August 2010 or on Sunday 15th August 2010, at a time that the Applicant may determine and at such place within the area of the said Traditional Community which the Applicant may determine.

THAT, the First and Second Respondents be directed to provide to the Applicant by not later than Tuesday, 10th August 2010 in writing all the information referred to in the Applicant’s letter dated 16 July 2010 ANNEXURE “MHM11” to the founding affidavit herein read with ANNEXURE “MHM7” to the affidavit herein insofar as the First and Second Respondents have not done so already at the time of this order.

THAT, the Applicant be and is hereby authorized to seek in writing the same information referred to in paragraph 3 above or any part thereof and/or any other information, documents and/or records relating to the financial interests of the Bakubung-Ba-Ratheo Traditional Community from any other respondents that the Applicant reasonably believe might be able to provide such information and/or from any other entity referred to in any documents or information obtained by the Applicant pursuant to the orders referred to above and such respondents are hereby authorized and directed (and such entities are hereby authorized) to provide such information and documents to the Applicant in writing in so far as such respondents or entities are in possession of such information and/or documents.

THAT, the costs of this application be paid by the Applicant and shall form part of the costs of the administration by the Applicant, save the costs occasioned by any opposition of this application and that such costs be paid by the opposing party.

THAT, such further and/or alternative relief that the Honourable Court in the circumstances might deem appropriate be granted to the Applicant.”

[3] The application was set down on 30 July 2010 for hearing on the 5 August 2010. The matter was heard by Hendricks J who granted the order sought in paragraph 2 of the notice of motion. The matter was postponed to 12 August 2010, for the purpose of considering prayers 3 to 6 thereof.

Background Information

[4] The Applicant was appointed as an Administrator of the first respondent (The “Traditional Council”) by the Premier of the North West Province (“Premier”)in terms of Section 10(3) of the North West Traditional Leadership and Governance Act No.2 of 2005 (The Provincial Act). The reasons for the appointment of an Administrator are set out in the Premier’s letter as follows:

“The Royal Family of the abovementioned traditional community has approached the Premier with a request to help rid the community of challenges and problems pertinent to the administration of the traditional community (including financial affairs). The current situation is that the community is up in arms owing to mismanagement or perceived mismanagement of their affairs.

The situation at the traditional community is so serious that it requires you to immediately take occupation of the tribal offices to attend to the challenges. The terms of reference governing your appointment as administrator are attached hereto for ease of reference.”

The Administrator was directed amongst others to: “Conduct an investigation into the management of finances and other assets belonging to the traditional community” and “To investigate any unauthorized expenditure and or withdrawal of money belonging to the traditional community, whether held in an account opened with any financial institution or held in trust elsewhere in the name of the traditional community.”

[5] The appointment of the applicant is being challenged by the first, second, third, fourth and the sixteenth respondents and the review application which was enrolled for hearing on 7 June 2010, was postponed sine die pending the application for review as well as Part B of the related application in Case No. 805/2010. It was agreed between the applicant and the parties hereto that the following be made an order of this Court:

“1. Pending the finalization of Part B of this application:

1.1 the First Respondent, and the Fourth Respondent on the First Respondent’s instructions, will provide within 15 (fifteen) business days hereof an accounting of the finances of the Traditional Community to the Fifteenth Respondent, which accounting will be designed principally to explain the main transactions which the Community is involved and the financial impact of those transactions;

1.2 in the event that the first Respondent intends to conclude a future transaction which encumbers or disposes of the assets of the community the first Respondent will give 15 (fifteen) business days’ notice of such future transaction to the fifteenth Respondent; and

1.3 any information provided to the fifteenth Respondent in terms of paragraphs 1.1 and 1.2 above shall be kept confidential and shall not be disclosed by the fifteenth Respondent. This shall not prohibit the fifteenth Respondent from seeking legal advice in regard to the future transactions referred to in 1.2 above, nor making any disclosure of information which disclosure is necessary for the purposes of obtaining such advice and reporting to the Thirteenth Respondent, who shall in turn be subject to the same terms of confidentiality set out herein. Such advice will not be sought from any party that has or is rendering legal or financial advice to any other party in this litigation. This paragraph will operate indefinitely until and unless a court otherwise directs.

2. The Fifteenth Respondent, after consultation with the First Respondent, if they deem fit, shall be entitled to make disclosures to the Community in regard to any transactions referred to in 1.1 and 1.2 above. In the event of a dispute between the First and Fifteenth Respondents as to such disclosure, the Fifteenth Respondent shall be entitled, on prior notice to the First Respondent, to approach the court appropriate relief.”

[6] According to the applicant, subsequent to this Court’s order of the 10 June 2010, he made several attempts to arrange a meeting with the different stakeholders of the Bakubung-Ba-Ratheo Traditional Community (the Traditional Community) but encountered obstructions from some members of the first respondent. I need not comment on the obstructions encountered by the applicant since the order sought in paragraph 2 of the Notice of Motion was granted by this Court on 5 August 2010.

[7] In an e-mail correspondence from the office of the second respondent (Musa Capital) to the State Attorney’s office on behalf of the applicant, it was stated, in compliance with the Court order of 10 June 2010 (Court Order) regarding the accounting of finances of the Traditional Community, that their client was preparing the requisite accounting in a documentary form and that Musa Capital had developed a verbal presentation to accompany the documentation. On 26 June 2010, the applicant received correspondence from Musa Capital’s attorneys wherein they requested him to avail himself on 1 July 2010 for the purpose of receiving an accounting of finances as envisaged in the court order.

[8] On 2 July 2010 the applicant received an electronic mail power point presentation from Musa Capital’s attorneys, which purported to be the

confidential accounting of the finances of the Traditional Council. The meeting of the 1 July 2010 was rescheduled for the 5 July 2010. The applicant was not satisfied with the power point presentation. He caused a letter to be directed to Musa Capital attorneys on 6 July 2010, wherein he urged them to comply with the court order by not later than 9 July 2010 failing which an urgent application to compel compliance with the order would be launched.

[9] In response to this letter, Musa Capital’s attorneys wrote a letter on 7 July 2010 wherein, amongst others, they stated that Musa Capital was acting on the instructions of the first respondent and that the Administrator’s request was forwarded to the first respondent for its further attention.

[10] On the same day, 7 July 2010, attorneys for the first respondent, DLA Cliffe Dekker Hofmeyer wrote a letter to the State Attorney’s office explaining that the applicant was “given actual figures of expenditure in respect of projects, expenditure of the respondent (the Bakubung Community Development Corporation) and the balance sheet.” They further stated that the document was in accordance with the court order, and that its purpose was “to explain the main transactions in which the community is involved and the financial impact of those transactions.” The applicant was once again invited to a meeting where those transactions would be fully explained to him.

[11] The applicant in response requested the State Attorney’s office to write a letter on 14 July 2010 to the first respondent’s attorneys, wherein the first respondent’s attorneys were given three proposed dates for the meeting. There was no response from the first respondent’s attorneys.

[12] On 16 July 2010, the applicant wrote a letter to the first respondent wherein he requested the accounting of finances of the Traditional Council, and entities into which the Traditional Council have a direct or indirect interest in as well as copies of all transactions entered into on behalf of the Traditional Council. He further requested the first respondent to furnish him with the information stipulated in the letter (Annexure “MHMII”) on or before 23 July 2010. According to the applicant, the information requested was in line with what was provided in the power point presentation, which

document did not contain material information outlined in Annexure “MHM11.”

[13] There was no response from the first respondent’s attorneys to the State Attorney’s letter of 14 July 2010. The state attorney sent a reminder on 21 July 2010. When information requested in Annexure “MHMII” was not forthcoming, a reminder was sent to the first respondent on 26 July 2010, wherein the first respondent was directed to make the information available by no later than the close of business on Tuesday 27 July 2010.

[14] The applicant received a response on 26 July 2010 per letter from Messrs Cliffe Dekker Hoffmeyer Attorneys, which letter was directed to the State Attorney’s office in which they indicated, amongst others, that the first and the second respondents were busy identifying and collating documents sought and further that because of the large volume of documents, the applicant was invited to attend their office on 4 August 2010 for the purpose of viewing the required documents since much of the information in the documents is both sensitive and confidential.

[15] In response to this letter of 26 July 2010, the State Attorney on behalf of the applicant, wrote a letter dated 30 July 2010, wherein amongst others, the following was stated: “Your tender to make available to the Administrator the relevant records is therefore appreciated and the Administrator will attend at the fourth respondent’s offices on 6 of August 2010 at 16h00 accompanied by writer thereof or another attorney of this office who will assist the Administrator and it is trusted that the time will be in order…” “Consequently, and although the Administrator looks forward to obtain from you the

information and documents tendered in your letter, the administrator has decided to lodge an urgent application for appropriate relief in order to enable him to properly execute his mandate. The application will be set down for hearing on 5th August 2010 and the papers will be served before or almost together with the delivery of this letter.” The State Attorney further expressed the applicant’s disquiet as well as frustrations encountered by the applicant in an effort to obtain information from other financial institutions and entities regarding their financial dealings with the Tribal Council, in that they refuse to divulge any information to him on the basis that they are bound by the confidentiality clauses.

[16] The applicant proceeded to launch the urgent application on 30 July 2010 the reason being that the Traditional Community would suffer irreparable harm if a person who is not authorized by them, were to attend the Wesizwe Platinum Ltd (Wesizwe) Annual General meeting. Wesizwe is alledgedly an entity which had financial dealings with the Tribal Authority in that the Traditional Community had a shareholding interest therein.

[17] With regard to the accounting and financial documents, the applicant states the following: “Unless and until all accounting and financial documents have been placed before me I would not be able to fully execute my duties as the Administrator, neither will I be able to make any informed decisions on being given notice of a transaction sought to be concluded on behalf of Bakubung-Ba-Ratheo Traditional Community.”

[18] To substantiate his grounds for the order sought in paragraph 4 of the Notice of Motion, the applicant alleges that there is a loan of R400 million obtained from the seventh respondent, (Deutche Bank) which falls due on 10 December 2010. He further states that the terms and implications of this loan are not known to him as the Administrator, but that in terms of the power point report submitted to him, there is a link between the company Newshelf 925 and the Traditional Community, and that Wesizwe furnished him with a report of projects which were financed by funds provided by Musa Capital and other accounts purportedly held on behalf of the Traditional Council. He further states that the information is required for the purpose of enabling him to investigate various entities which apparently have business dealings with the Tribal Authority, and that his prima facie view is that there has been a breach of section 30 of the Provincial Act, which prescribes that the Premier’s permission must be sought before any account can be opened on behalf of a Tribal Authority, and further that there is an amount in excess of R527 million which belongs to the Tribal Authority, which amount has not been accounted for.

[19] This application is opposed by the first, second, third fourth and sixteenth respondents (the respondents) on the following grounds:

that this matter is not urgent because the applicant did nothing constructive since his appointment as Administrator on 29 March 2010;

that ever since the Court order of 10 June 2010, various correspondences were exchanged between the applicant and the respondents which culminated in a letter of the 21 July 2010 wherein the applicant requested copies of documents referred to in “MHMII”. That in response, the respondents’ attorneys of record, per letter dated 26 July 2010, tendered to make the documentation available to the applicant at the office of Musa Capital from 2 August 2010 subject to the confidentiality referred to in the Court order, which tender was accepted by the applicant who indicated that he would attend on 6 August 2010;

that despite having accepted the invitation referred to in 19.2 above, the applicant indicated that he was, nevertheless proceeding with the urgent application for appropriate relief in order to enable him to properly execute his mandate. He further indicated that the application would be set down for hearing on 5 August 2010. The urgent application was served on the respondents on 30 July 2010. According to the respondents, there was no basis for lodging this application;

that the applicant was given documentation with information which he was not supposed to disclose in accordance with the court order but that contrary to this order, the applicant breached the confidentiality clause by attaching the documents to this application. That the applicant’s conduct of breaching the confidentiality clause should disqualify him from receiving the information requested and consequential dismissal of this application; and

that the application for review of the applicant’s appointment has been set down for hearing on 22 and 23 September 2010 and that the Premier as well as the applicant were placed on terms to deliver their answering affidavit on or before Friday 13 August 2010, that because of the imminence of the review as well as the main applications, the urgent application is academic.

[20] Antonie Bernard Johnson (Mr Johnson) on behalf of Musa Capital avers in his answering affidavit, (which affidavit was handed up in Court on the 13 August 2010 and served on the applicant’s counsel on the same date):

that Musa Capital is an agent acting in accordance with a mandate from its principal, namely, the first respondent, and that amongst others, “agreed to confidentiality provisions,” and is as such, not empowered to take decisions (such as the furnishing of documentation) without instructions from its principal.);

that the applicant was provided with adequate accounting records and information in compliance with the court order of 10 June 2010;

that the applicant was given the opportunity to have a meeting with Musa Capital where a full explanation of any aspect pertaining to his administration was to be provided;

that with regard to the documents and information identified in annexure “MHM11”, Musa Capital has in actual fact tendered some of the documents referred to therein, and further that some of the documents which were not tendered, “either do not exist or do not fall within the ambit of what is relevant to the second respondent’s (the applicant) performance of his mandate, alternatively are the subject of confidentiality undertakings with third parties and cannot be disclosed.” This information is indicated in a document annexed to the answering affidavit as “AJ4”.

[21] The seventh respondent (Deutshe Bank) was cited in this application even though it was not a party to the proceedings in Case 805/2010 but only held a watching brief. According to the applicant, Deutshe Bank was cited because it controls “a bank account which holds funds that are subject to the relief sought herein.” Mr Lee Holmes, who is the director and Head of the Legal and Compliance of the Johannesburg Branch of the Deutshe Bank states that:

Deutshe Bank provided funding for the purchase of the Wesizwe Platinum Ltd Shares by Newshelf 925 (Pty) Ltd from various parties, and that it does not operate any account holding monies pertaining to those transactions.

He however, states that Deutshe Bank is the holder of ZAR 400 million Wesizwe Platinum Ltd Linked Note with a maturity date of 10 December 2010 issued by Newshelf 925 (Pty) Ltd and also that the security for the Note is 70 million per ordinary value shares of ZAR 0,001 each in Wesizwe Platinum Ltd, which are pledged by Newshelf 925 (Pty) Ltd to Deutshe Bank.

He further states that Deutshe Bank is not involved in the dispute between the parties hereto but is nevertheless prepared to make disclosure to parties who are authorized to receive this information subject to adequate protection of confidential information being afforded, and in accordance with a court order; and

He further avers that the delay in launching this application is inexplicable taking into account the fact that the State Attorney’s office was favoured with the documents on 2 July 2010 and this application was only launched on the 30 July 2010 on an urgent basis; and

further states, in his supplementary answering affidavit that he received a notice from the applicant inviting him to brief the Traditional Community about the shares in Wesizwe, which invitation was declined after consultation with the Musa Capital, on the basis that Deutshe Bank was “under a qualified duty not to disclose confidential information to third parties,” including the applicant, unless ordered to do so by the Court.

Analysis of Issues:

[22] The questions to be decided are:

(i) whether or not the applicant is entitled to receive the information tabulated in Annexure “MHMII”;

(ii) if the answer is in the positive, whether or not the respondents were refusing to make the information and documents available to the applicant; and

(iii) whether the respondents and other entities not cited in this application ought to be ordered to disclose information to the applicant. I will deal with this issues ad seriatim.

Is applicant entitled to the information in Annexure “MHMll”

[23] The Administrator was appointed by the Premier as such in terms of section 10 (3) (a) of the Provincial Act. In terms of section 10 (3) (b) thereof, he is “competent to exercise and perform any power, authority or function conferred or imposed by law upon any such Traditional Council and shall be deemed to have been exercised or performed by such Council.” I have already alluded to the terms of reference spelt out in the applicant’s letter of appointment.

[24] The Order of Court of the 10th June 2010 was made per agreement between the parties cited in the applicant’s counter-application, and it was agreed that Musa Capital, on the first respondent’s instructions, will provide the applicant with “an accounting of the finances of the Traditional Community …… which accounting will be designed principally to explain the main transactions in which the community is involved and the financial impact of those transactions.”

[25] In terms of the Court order of the 10 June 2010, as an agent, Musa Capital needed the consent of the Tribal Authority to disclose the information and documents requested by the applicant. The first respondent and Musa Capital intimate that they have given the applicant the information requested and Musa Capital has also indicated on Annexure “AJ4” those documents which are in its possession, those which are irrelevant and those which are confidential.

[26] It is evident from the above exposition, that despite the pending review application challenging the appointment of the applicant as Administrator, there is, in the interim nothing on record to suggest that the applicant is not entitled to demand the documents as envisaged in the court order.

Did the first respondent and Musa Capital refuse to give the applicant

information?

[27] The applicant, despite his acceptance of the invitation, to peruse documents at Musa Capital, has failed to attend the meeting as agreed.

It is common cause that the Annexure MHM7 was not given to the applicant within the 15 day period agreed upon in the order of the 10 June 2010, however when such information was furnished on 5 July 2010 the applicant being dissatisfied therewith, and having accepted an invitation to attend a meeting on 7 July 2010 at Musa Capital for the purpose of clarifying Annexure “MHM7”, still did not attend.

[28] In his undated letter, which he alleges was written on 16 July 2010 after no response was received from the respondents’ attorneys on 14 July 2010, he made a request for information outlined in Annexure “MHM11” from the Traditional Council. He also proposed 3 different dates for the meeting, namely 26, 27 and 28 July 2010. In the interim, he caused a reminder to be sent to the first respondent’s attorneys of record on 21 July 2010 relating to the information requested in Annexure “MHM7”.

[29] On 26 July 2010, the first respondent’s attorneys responded to the applicant’s letter of the 14 July 2010. They informed the applicant that the first respondent’s attorneys, in conjunction with Musa Capital, were in the process of identifying the documents requested and also making arrangements to collate those documents, so as to make them available to the first respondent. They stated further that they had arranged for the documents to be made available to the applicant at the offices of Musa Capital in Sandton on 2 August 2010. They further stated the following in their letter: “Much of the information in those documents is both sensitive and confidential and although your clients are prepared to afford you client sole access to the documents, they cannot simply deliver copies of everything which appears to be what your client intended” ………. Your client will be given access to all of the documents that he has listed. If your client decides that he requires a copy of a particular document a decision will be made in respect of that document.” (emphasis added).

[30] I have already alluded to the applicant’s response to this invitation in paragraph 15 above. The attitude of the applicant, when considering the correspondence referred to as against the order of the 10 June 2010, seems to contradict what was agreed upon by the parties in paragraph 1.1 thereof. The understanding was that pending the finalization of Part B of the main application in Case No 805/2010, the applicant would exercise the powers stated in the court order of the 10 June 2010. As to how the information would be imparted to him was not spelt out in the court order.

[31] In his replying affidavit, the applicant states the following:

“6.2 The question for consideration herein is whether the electronic mail message power point presentation furnished to me by Messrs Edward Nathan and Sonnenberg on behalf of the Second Respondent on 2 July 2010 referred to in paragraph 25.23 of the founding affidavit herein and of which Annexure “MHM7” to the founding affidavit is a copy constitutes proper accounting of the finances of the affairs of the Bakubung Ba Ratheo Traditional Community contemplated in paragraph 1.1 of the court order granted on 10 June 2010 in my counter application under case number 805/2010.

It is clear from the documents of record filed herein that the First, Third Fourth and sixteenth Respondents and the Second Respondents hold a different view from me insofar as the aforesaid issue is concerned.

I respectfully contend that it would not have been possible for this Honourable Court to consider the aforesaid question without having had sight of the power point presentation

I further respectfully contend that the Respondents herein, all of whom have an interest in the outcome of the application are entitled to have insight in the power point presentation to decide on the merits or demerits of the contentions of the respective parties.

In that regard it is further of importance to note that the court order granted on 10 June 2010 in my counter application under case number 805/2010 provides that I could approach this Honourable Court for appropriate relief in the event of a dispute between the First Respondent and I regarding the disclosure of information furnished to me in terms of the aforesaid order.”

[32] On reading the correspondence between the Administrator (through the office of the State Attorney) and the attorneys of record for the first respondent and Musa Capital (Annexures “MHM8a”, “MHMb” and “MHM9”) there is a dispute between them as to whether or not the power point presentation (MHM7) constitutes an adequate disclosure of the accounting of the finances as contemplated in the court order 10 June 2010 as well as the terms of reference in his letter of appointment. The applicant states that the information was inadequate but does not give details of how the information is insufficient save for outlining the information required in Annexure “MHM11”.

[33] There is nothing in the founding papers of the applicant to suggest that the respondents failed or neglected to comply with the court order. A tender of the documents referred to in “MHM11” was made to the applicant, albeit not in a form preferred by the applicant. The reasons for not attending the meeting at the offices of Musa Capital are not convincing. In actual fact, the applicant decided to approach this Court even before he could satisfy himself as to whether or not the disclosure tendered would be adequate.

[34] I am of the view that the applicant was afforded the opportunity to inspect the documents and information stipulated in Annexure “MHM11”, and that he would have been entitled to approach this Court only if not satisfied with the information disclosed at the briefing meeting with the respondents and or their attorneys.

Is the applicant entitled to demand information/documents from the other respondents as well as other entities not cited in these proceedings?

[35] The result of the briefing meeting referred to above, would in all probability have impacted on the further information required by the applicant from the various financial institutions and entities cited in this application and any other entities referred to in any documents or information obtained by the applicant. The information stated in the founding papers of the applicant is not substantive and sufficient enough to enable this Court to order those entities who are bound by confidentiality clauses in their contracts and dealings with other parties, to disclose such information to the applicant. In the Court order of the 10 June 2010 granted per agreement, the applicant agreed that Musa Capital will give him the documents and information required in consultation with the first respondent. Though not clearly stated in the court order, it would seem by agreeing to the order of 10 June 2010, the applicant limited his power to demand the documents and or information from the first respondent and Musa Capital only.

[36] This brings me to the question as whether or not it was appropriate for the Administrator to cite Deutshe Bank as a party to these proceedings even though in the main application, Deutshe Bank was not joined as a party but only held a watching brief.

[37] Deutshe Bank intimated that it does not hold funds or a bank account which holds funds that are the subject of the relief sought, and despite having been made aware by the Deutshe Bank’s attorneys of record per letter dated 2 August 2010, that it does not hold a bank account which is a subject to the relief sought in Case No 805/2010, the applicant nevertheless decided to proceed with this application and even cited Deutshe Bank as a party to these proceedings. There was no response to the letter from Deutshe Bank’s attorneys dated the 2 August 2010. A reminder was sent on 4 August 2010, with no response from the office of the State Attorney. Deutshe Bank was represented at the hearing of this application on the 5th August 2010 as well as on the 12 August 2010.

[38] Counsel for Deutshe Bank submitted that it was unnecessary for the applicant to cite Deutshe Bank as a party to these proceedings before first establishing the true state of its involvement from the first respondent and Musa Capital. It is, in my view, inappropriate for the applicant to overlook the confidentiality clause which binds Deutshe Bank vis-à-vis its clients.

[39] Mr Pistor on behalf of the applicant submitted, correctly in my view, that:

Musa Capital as an agent of the Traditional Council, cannot rely on confidentiality as against its principal in a matter pertaining to its mandate;

that the Traditional Council is a representative body of the relevant Traditional Community as prescribed by the Traditional Leadership and Governance Framework Act No. 41 of 2003 (The National Act) and in accordance with section 195 (1) (f) (g) and (2) of the Constitution of South Africa Act No 106 of 1996; (the Constitution);

that the Traditional Council is in a fiduciary position towards the community and is as such obliged to fully report to its community in accordance to the National Act; and

that in terms of Sections 9 (2) & (3) of the Provincial Act, the Traditional Council performs its functions under the supervision of the North West Provincial Council and that the Premier is empowered “to take such steps, not inconsistent with this Act, to ensure proper administration and good governance by traditional councils”.

[40] In terms of section 10 read with section 18 of the Provincial Act, the Traditional Council, in the performance of its functions, is responsible to the Premier for the efficient and effective performance of the functioning assigned to such Traditional Council and Kgosi\Kgosigadi in terms of the Provincial Act.

[41] Because of the powers vested in the Premier to oversee the affairs of the Traditional Council, neither the Traditional Council nor the Kgosi\ Kgosigadi, can refuse to disclose any information affecting its administration on the basis of confidentiality, because they are in a fiduciary position to the Premier.

[42] Furthermore, by virtue of his appointment in terms of section 10 (3) of the Act the applicant, as administrator, is entitled to the disclosure of information from the Traditional Council and the Traditional Council cannot rely on confidentiality in refusing to divulge information to him.

[43] In terms of the Court order of 10 June 2010, Musa Capital was to disclose information and documents to the applicant with the consent of the first respondent, because of the fiduciary relationship that exist between the Premier and or applicant against the first respondent. This relationship does not exist between the applicant and other parties other than the first respondent and Musa, as the agent of the first respondent.

[44] Without any further information substantiating the fact that the applicant is entitled to the information requested from the other respondents cited in this application, as well as other entities not presently identified, it is inappropriate for this Court to direct those parties and entities to make available documents or other information to the applicant. It is the duty of the first respondent to ensure, where necessary and possible, that the applicant is furnished with information requested in Annexure “MHMII”. The applicant must accede to the invitation afforded him by Musa Capital and can approach this court if he is not satisfied with the information furnished at the presentation.

[45] I have already alluded to the fact that the reasons for approaching this Court on an urgent basis for the purposes of obtaining the order sought in the notice of motion is not convincing. This application could have been avoided by the applicant by cooperating with the first respondent and Musa Capital. Although the applicant was granted the order sought in paragraph 2 of the Notice of Motion, I am of the view that there was no urgency in respect of all of the orders sought in the Notice of Motion.

[46] Furthermore, for reasons already stated above, it was not in the circumstances necessary to cite Deutshe Bank as a party to these proceedings as well as lodge this application for the purpose of obtaining the orders in paragraph 3 and 4 of the Notice of Motion. I consequently find that in respect of all the respondents who entered appearance for the purpose of opposing this application, they were in the circumstances entitled to so.

[47] The respondents have requested the Court to make a costs order against the applicant on an attorney and client basis and further that the applicant be ordered to pay the costs de bonis propiis. I will not accede to this request because the respondents, in particular the first respondent and Musa Capital, did not furnish the applicant with the information requested within the time agreed upon in the order of the 10 June 2010.

[48] Furthermore, there was a delay with regard to responding to correspondence from both the applicants and the respondents which in most probability could have assisted in the resolution of the dispute pertaining to the documents requested without the parties having to approach the Court in that regard. I must however remark that Deutshe Bank’s appearance in this matter was occasioned by the applicant’s tardiness in his failure to respond to correspondence.

[49] I am of the view that even though the applicant was granted an order in paragraph 2 of the Notice of Motion, this should not affect the costs order I will grant against him. The applicant has requested that the costs of this application be made to form part of the costs of the administration by him (applicant).

[50] In the result, the following order is made:

(1) The First and Second Respondents are directed to provide the applicant with the information referred to Annexure “MHMII” to the founding affidavit read with Annexure “MHM7” either in writing or through any other means including disclosure in compliance with and subject to the terms stipulated in the order granted by this Court on 10 June 2010.

(2) The order sought in paragraph 1 and 4 of the Notice of Motion is dismissed.

(3) The applicant is ordered to pay costs of the first, second, third, fourth, seventh and sixteenth respondents, such costs to include the costs of two counsel where two counsel were employed.

(4) The costs of this application including the costs referred to in paragraph (3) of this order, shall form part of the costs of the administration by the applicant.

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M M LEEUW

JUDGE PRESIDENT

APPEARANCE:

For the Applicants : Adv Pistor SC with Adv Zwiegelaar

For the 1, 3, 4 & 16 : Adv Bitter

Respondents

For 4th Respondent : Adv Scholtz

Date of hearing : 05 August 2010

Date of judgment : 23 September 2010