Mohamed NO and Others v Ally (627/97) [1998] ZASCA 113; 1999 (2) SA 42 (SCA); [1999] 1 All SA 419 (A) (27 November 1998)

Mohamed NO and Others v Ally (627/97) [1998] ZASCA 113; 1999 (2) SA 42 (SCA); [1999] 1 All SA 419 (A) (27 November 1998)

The Supreme Court of Appeal held that the trust deed requires all vacancies on the board of trustees of the Grey Street Mosque to be filled at the annual general meeting of the congregation, not by sectional meetings. The deed's language is peremptory in this regard, and the word 'represent' refers to the origin of trustees rather than a duty to advance sectional interests. There is no mechanism in the deed for sectional electoral colleges, nor any provision for trustees to be accountable to sections. The historical practice of election by the general meeting supports this interpretation. The appellants' approach would lead to fragmentation and disharmony, contrary to the trust's object...

Citation
[1998] ZASCA 113
Parties
Appellant: Abubaker Mohamed NO; Appellant: Aboobaker Ismail NO; Appellant: Ahmed Asruff Essay NO; Appellant: Mehmood Khan NO; Appellant: Habib Gani NO; Appellant: Haroun Gani NO; Appellant: Farouk Rooknoodeen NO; Appellant: Ismail Ally NO; Respondent: Faizal Ally
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 November 1998
Case Number
627/97
Procedural Posture
Civil Appeal / Appeal From the Court a Quo
Outcome
Appeal dismissed. The respondent's costs are to be paid out of the trust. The order of the court below is varied as specified.
Judges
Van Heerden, Smalberger, Schutz, Zulman, Melunsky
Legal Topics
Trust Deed Interpretation, Appointment of Trustees, Sectional Representation, Annual General Meeting
Land and Property Civil Procedure Trust Deed Interpretation Appointment of Trustees Sectional Representation Annual General Meeting

Case Brief

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Parties

Abubaker Mohamed NO

Appellant

Aboobaker Ismail NO

Appellant

Ahmed Asruff Essay NO

Appellant

Mehmood Khan NO

Appellant

Habib Gani NO

Appellant

Haroun Gani NO

Appellant

Farouk Rooknoodeen NO

Appellant

Ismail Ally NO

Appellant

Faizal Ally

Respondent

Procedural Posture

Civil Appeal / Appeal From the Court a Quo

Legal Issues

  1. 1 Whether the trust deed requires vacancies on the board of trustees to be filled by sectional meetings or by the general meeting of the congregation.
  2. 2 Whether the word 'represent' in the trust deed confers a duty on trustees to act for sectional interests or merely denotes their origin.
  3. 3 Whether the historical practice of trustee election by the general meeting is admissible in interpreting the trust deed.

Ratio Decidendi

The Supreme Court of Appeal held that the trust deed requires all vacancies on the board of trustees of the Grey Street Mosque to be filled at the annual general meeting of the congregation, not by sectional meetings. The deed's language is peremptory in this regard, and the word 'represent' refers to the origin of trustees rather than a duty to advance sectional interests. There is no mechanism in the deed for sectional electoral colleges, nor any provision for trustees to be accountable to sections. The historical practice of election by the general meeting supports this interpretation. The appellants' approach would lead to fragmentation and disharmony, contrary to the trust's object...

Court Disposition

Appeal dismissed. The respondent's costs are to be paid out of the trust. The order of the court below is varied as specified.

Orders

  • The annual general meeting is to be held on 20 February 1999. Save for normal daily prayers, no other activity shall take place at the Mosque on 20 February 1999.
  • The word 'not' in the fourth line of paragraph 4 is deleted so that the phrase reads 'save where the said rules are inconsistent with paragraph 1.'