Shabangu N.O. and others v Malumane N.O. and Others (1980/2020) [2021] ZAMPMBHC 46 (4 October 2021)

Shabangu N.O. and others v Malumane N.O. and Others (1980/2020) [2021] ZAMPMBHC 46 (4 October 2021)

The court found that the Respondents, acting as trustees, failed to discharge their fiduciary duties by not keeping proper records, failing to account for Trust funds, and not providing beneficiaries with financial information. The trustees acted jointly and share responsibility for the maladministration, regardless of individual involvement. The arbitration clause in the Trust Deed was held not to apply, as there was no genuine dispute for referral and the relief sought (removal of trustees and amendment of the Trust Deed) falls within the exclusive jurisdiction of the court. The absence of a provision in the Trust Deed preventing removed trustees from standing for re-election was found...

Citation
[2021] ZAMPMBHC 46
Parties
Applicant: Fonie Shabangu N.O.; Applicant: James Vader Shakoane N.O.; Applicant: Francina Sokati N.O.; Applicant: Monday Makhabane N.O.; Respondent: December John Malumane N.O.; Respondent: Silo Michael Mabuza N.O.; Respondent: Bhani Petrus Khoza N.O.; Respondent: Ensie Masomo Mokoena N.O.; Respondent: Makaroni Robert Shabangu N.O.; Respondent: Dudu Eunice Mbuyane N.O.; Respondent: Bryan Bonga Mokoena N.O.; Respondent: Walter David Mokoena N.O.; Respondent: Busi Lusia Mashego N.O.; Respondent: Samson Daniel Shakoane N.O.; Respondent: Master of the High Court: Mbombela; Respondent: Office of Regional Land Claims Commissioner: Mpumalanga; Respondent: MEC for Rural Development and Land Reform: Mpumalanga
Court
Mbombela High Court, Mpumalanga
Jurisdiction
South Africa
Judgment Date
4 October 2021
Case Number
1980/2020
Procedural Posture
Review Application / Final Judgment on Application for Removal of Trustees
Outcome
Application granted; First to Tenth Respondents removed as trustees, barred from future nomination, Trust Deed to be amended, costs awarded against Respondents.
Judges
Mashile
Legal Topics
Trustee Removal, Fiduciary Duty Breach, Variation of Trust Deed, Trust Property Control Act, Misappropriation of Funds, Costs Order
Land and Property Civil Procedure Delict Trustee Removal Fiduciary Duty Breach Variation of Trust Deed Trust Property Control Act Misappropriation of Funds +1 more

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Parties

Fonie Shabangu N.O.

Applicant

James Vader Shakoane N.O.

Applicant

Francina Sokati N.O.

Applicant

Monday Makhabane N.O.

Applicant

December John Malumane N.O.

Respondent

Silo Michael Mabuza N.O.

Respondent

Bhani Petrus Khoza N.O.

Respondent

Ensie Masomo Mokoena N.O.

Respondent

Makaroni Robert Shabangu N.O.

Respondent

Dudu Eunice Mbuyane N.O.

Respondent

Bryan Bonga Mokoena N.O.

Respondent

Walter David Mokoena N.O.

Respondent

Busi Lusia Mashego N.O.

Respondent

Samson Daniel Shakoane N.O.

Respondent

Master of the High Court: Mbombela

Respondent

Office of Regional Land Claims Commissioner: Mpumalanga

Respondent

MEC for Rural Development and Land Reform: Mpumalanga

Respondent

Procedural Posture

Review Application / Final Judgment on Application for Removal of Trustees

Legal Issues

  1. 1 Whether the First to Tenth Respondents should be removed as trustees of the Mbayane Community Trust for breach of fiduciary duties.
  2. 2 Whether the Trust Deed should be varied to prevent removed trustees from standing for re-election.
  3. 3 Whether the court has jurisdiction to grant the relief sought despite an arbitration clause in the Trust Deed.

Ratio Decidendi

The court found that the Respondents, acting as trustees, failed to discharge their fiduciary duties by not keeping proper records, failing to account for Trust funds, and not providing beneficiaries with financial information. The trustees acted jointly and share responsibility for the maladministration, regardless of individual involvement. The arbitration clause in the Trust Deed was held not to apply, as there was no genuine dispute for referral and the relief sought (removal of trustees and amendment of the Trust Deed) falls within the exclusive jurisdiction of the court. The absence of a provision in the Trust Deed preventing removed trustees from standing for re-election was found...

Court Disposition

Application granted; First to Tenth Respondents removed as trustees, barred from future nomination, Trust Deed to be amended, costs awarded against Respondents.

Orders

  • The First to Tenth Respondents are removed as Trustees of the Mbayane Community Trust with registration number IT010926/2004(T).
  • The First to Tenth Respondents must surrender their letters of authority to the Eleventh Respondent.