Mmutle NO and Others v ABSA Bank Ltd and Others (UM 20/2023) [2023] ZANWHC 158 (7 September 2023)

Mmutle NO and Others v ABSA Bank Ltd and Others (UM 20/2023) [2023] ZANWHC 158 (7 September 2023)

The applicants failed to comply with the requirements of the Trust Deed for the appointment of trustees, as they could not provide evidence of an annual general meeting or proper notice to beneficiaries. The Master was not empowered to appoint trustees under section 7 of the Trust Property Control Act where the Trust Deed provides for appointment procedures. Furthermore, there was no evidence that the first trustees were properly removed in terms of section 20 of the Act. These failures are fatal to the applicants' case and justify the discharge of the Rule Nisi and dismissal of the main application. The respondents' counter-application for the election of new trustees in accordance with...

Citation
[2023] ZANWHC 158
Parties
Applicant: Mogomotsi Hendrick Mmutle, NO; Applicant: Joseph Seranyane Ndlovu, NO; Applicant: Kaene Innocent Melomi, NO; Applicant: Kgosimodimo Reginald Kgetsane, NO; Applicant: Lebang Ernest Naitlhoi, NO; Applicant: Batlang Miranda Mokgosi, NO; Applicant: David Tselayabotlhe Molusi, NO; Applicant: Jeffrey Nkarabang Madola, NO; Applicant: Mosimanegape Harold Sepako, NO; Applicant: Lebogang Emmanuel Xaba, NO; Applicant: Gaorabaone Emmanuel Leutlwetse, NO; Applicant: Maribaland Development Trust; Respondent: ABSA Bank Ltd; Respondent: Master of the High Court, Mafikeng; Respondent: Kgosi Kopano Simon Lekoko; Respondent: Rampagane Molemi Gert (N.O Chairperson); Respondent: Ramasesane Oikanyeng Zacharia (N.O Deputy Chairperson); Respondent: Marumolowa Esther Lesego (N.O Secretary); Respondent: Poleng Bontleeng Granny (N.O Deputy Secretary); Respondent: Gopane Goemegone Harrington (N.O Treasurer)
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
7 September 2023
Case Number
UM 20/2023
Procedural Posture
Urgent Application / Return Date and Counter Application
Outcome
Main application dismissed; Rule Nisi discharged; counter-application granted for election of new trustees.
Judges
J.T. Djaje
Legal Topics
Trusteeship Removal, Trust Deed Compliance, Locus Standi, Appointment of Trustees, Rule Nisi, Trust Property Control Act
Land and Property Civil Procedure Trusteeship Removal Trust Deed Compliance Locus Standi Appointment of Trustees Rule Nisi Trust Property Control Act

Case Brief

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Parties

Mogomotsi Hendrick Mmutle, NO

Applicant

Joseph Seranyane Ndlovu, NO

Applicant

Kaene Innocent Melomi, NO

Applicant

Kgosimodimo Reginald Kgetsane, NO

Applicant

Lebang Ernest Naitlhoi, NO

Applicant

Batlang Miranda Mokgosi, NO

Applicant

David Tselayabotlhe Molusi, NO

Applicant

Jeffrey Nkarabang Madola, NO

Applicant

Mosimanegape Harold Sepako, NO

Applicant

Lebogang Emmanuel Xaba, NO

Applicant

Gaorabaone Emmanuel Leutlwetse, NO

Applicant

Maribaland Development Trust

Applicant

ABSA Bank Ltd

Respondent

Master of the High Court, Mafikeng

Respondent

Kgosi Kopano Simon Lekoko

Respondent

Rampagane Molemi Gert (N.O Chairperson)

Respondent

Ramasesane Oikanyeng Zacharia (N.O Deputy Chairperson)

Respondent

Marumolowa Esther Lesego (N.O Secretary)

Respondent

Poleng Bontleeng Granny (N.O Deputy Secretary)

Respondent

Gopane Goemegone Harrington (N.O Treasurer)

Respondent

Procedural Posture

Urgent Application / Return Date and Counter Application

Legal Issues

  1. 1 Whether the applicants were validly appointed as trustees of the Maribaland Development Trust.
  2. 2 Whether the applicants complied with the Trust Deed in their appointment.
  3. 3 Whether the first trustees were properly removed in terms of the Trust Property Control Act.

Ratio Decidendi

The applicants failed to comply with the requirements of the Trust Deed for the appointment of trustees, as they could not provide evidence of an annual general meeting or proper notice to beneficiaries. The Master was not empowered to appoint trustees under section 7 of the Trust Property Control Act where the Trust Deed provides for appointment procedures. Furthermore, there was no evidence that the first trustees were properly removed in terms of section 20 of the Act. These failures are fatal to the applicants' case and justify the discharge of the Rule Nisi and dismissal of the main application. The respondents' counter-application for the election of new trustees in accordance with...

Court Disposition

Main application dismissed; Rule Nisi discharged; counter-application granted for election of new trustees.

Orders

  • The counter-application is enrolled and heard as an urgent application in terms of Rule 6(12).
  • The Rule Nisi granted on 13 March 2023 is discharged and the main application is dismissed.