Silinda N.O and Others v Master of the High Court, Pretoria and Others (20553/2021) [2021] ZAGPPHC 829 (2 December 2021)

HIGH

COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: NO.

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

DATE: 2 DECEMBER 2021

CASE NO: 20553/2021

In the matter between:

MESHACK THEMBINKOSI SILINDA N.O First Applicant

FRASER TIMOTHY NYONI N.O Second Applicant

DONALD VUSISILE MDLULI N.O Third Applicant

TOM MDLULI N.O

Fourth Applicant

TERRY

MDLULI N.O Fifth Applicant

ROY

MDLULI N.O Sixth Applicant

and

MASTER OF THE HIGH COURT, PRETORIA

First Respondent

REGISTRAR OF THE DEEDS, MPUMALANGA Second Respondent

MBOMBELA

LOCAL MUNICIPALITY Third Respondent

KRUGER-MOELETSI

INC

Fourth Respondent

MDLULI

FAMILY

Fifth Respondent

THE

LAWFUL OCCUPIERS OF THE

FARM

MATSAFENI

Sixth Respondent

NKOSI

FAMILY

Seventh Respondent

HL HALL & SONS (PTY) LIMITED

Eighth Respondent

HL HALL & SONS PROPERTIES (PTY) LIMITED

Ninth Respondent

COMMISSSIONER

FOR THE RESTITUTION

OF

LAND RIGHTS

Tenth Respondent

MINISTER

OF RURAL DEVELOPMENT

AND

LAND REFORM

Eleventh Respondent

MATAFFIN

COMMUNITY DEVELOPMENT

TRUST

Twelfth Respondent

J

U D G M E N T

This matter has been heard in open court and disposed of in the terms of the Directives of the Judge President of this Division. The judgment and order are accordingly published and distributed electronically.

DAVIS, J

[1] Occasionally a simple interlocutory application becomes much more than a procedural skirmish in a litigation process, but involves issues of real substance. This is one of those occasions. The disputes involve two challenges to the mandates of two attorneys firms in terms of Rule 7, to act for who they say their clients are.

[2] Relevant background

2.1 The applicants are the trustees of the Matsafeni Trust. The beneficiaries of the trust are some 8000 employees and former employees (and their families) of a group of companies, inter alia H. J Hall & Sons (Pty) Ltd and its subsequent successors in title (the Halls).

2.2 The principal dispute in the main application involves the culmination of years of litigation concerning 5 pieces of land in Mpumalanga, upon which the said beneficiaries are resident.

2.3 An adjacent dispute involves two separate pieces of land in respect of which the Nkosi extended family had launched land claims.

2.4 Eventually, after many years and various legal processes, the whole issue of land ownership and distribution, including some monetary compensation had become settled. The settlement has been embodied in a written instrument, the contents of which had been approved by all relevant authorities and state departments. It also involves certain awards and distribution of land, including the involvement of a new trust, the Mataffin Community Development trust.

2.5 For purposes of replacement of trustees and transfer of trust assets and implementation of the settlement agreement, the applicants obtained a rule nisi from this court, which, due to the relevance of the contents thereof, is quoted here in full:

“1. A rule nisi is hereby issued calling upon all interested parties to show cause to the above Honourable Court on the 10th day of August 2021 at 10H00 or so soon thereafter as counsel may be heard why the following order should not be made final:

1.1 The Trust Deed No. IT 7476/2003 establishing the Matsafeni Trust is substituted and replaced by the new Trust Deed attached hereto as “NOM1”;

1.2 John Richard Park Doidge, Mahomed Mahier Tayob and Daniel David Khumalo are removed as trustees of the Matsafeni Trust;

1.3 The First to Sixth Applicants shall be the trustees of the Matsafeni Trust (“the Trustees”), subject to the provisions of “NOM1” to the founding affidavit;

1.4 The First Respondent is directed to issue revised Letters of Authority reflecting the Trustees as the trustees of the Trust in terms of “NOM1”;

1.5 The Settlement Agreement attached hereto as “FA1” in the founding affidavit (“the Settlement Agreement”) is made an Order of Court and declared to be binding on the parties thereto;

1.6 The Fifth Applicant, in his capacity as Trustee, is authorised and directed to do all things necessary to give effect to the following transactions as agreed in the Settlement Agreement, namely:

1.6.1 the transfer from the Matsafeni Trust to the Mataffin Community Development Trust (IT No. 000029/2016/MN) of Erven 3, 4, 11, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 29, 38, 39, 40, 41, 42, 43, 44, 45, 50, 51, 52, 53 and 54, Mataffin Township, but excluding proposed subdivided Portion 1 of Erf 29 Mataffin Township and proposed Portion 1 of Erf 38 Mataffin Township, as described on the sketch plan annexed hereto marked annexure “FA11” in the founding affidavit, which portions are to be transferred to the Third Respondent.

1.6.2 the transfer from the Matsafeni Trust to the Mataffin Community Development Trust (IT No. 000029/2016/MN) of the proposed portion of the Remaining Extent of the Farm Dingwell 276, lying north of the Rocky Drift-Heidelberg Road (D1903 020), as described on annexure “NOM4”;

1.6.3 the transfer to the Seventh Respondent (“the Nkosi family”), or an entity nominated by it, of properties located on the Farm Riverside 308 JT delineated on the map attached as annexure “NOM5”;

1.6.4 the registration by the Matsafeni Trust in favour of Mrs Thembani Mdluli of a notarial deed of servitude of usufruct and habitatio, in respect of a portion of the Farm Woodhouse 309 JT, which portion is as more fully described on the map annexed hereto as annexure “NOM6”;

1.7 The Matsafeni Trust is authorised to sell, and the Fourth Respondent is directed to effect transfer, to the Third Respondent (“the Municipality”) of:

1.7.1 erven 12, 13, 16, 27 and 28, Mataffin Township; and

1.7.2 the approved future subdivisions known as proposed Portion 1 of Erf 29, Mataffin Township and proposed Portion 1 of Erf 38, Mataffin Township, both as described on the sketch plan annexed as annexure “NOM7”.

1.8 The Fourth Respondent is authorised and directed, upon registration of transfer of the properties referred to in paragraph 1.7 above in favour of the Municipality, to make the following payments from the proceeds of the sale and transfer currently held in trust by the fourth respondent:

1.8.1 payment of the sum of R3 000 000.00 (three million rand) to the Nkosi family or an entity nominated by it or as directed by it;

1.8.2 payment of the balance of the purchase price together with accumulated interest to the Twelfth Respondent.

1.9 The Eleventh Respondent is directed to comply with its obligations in the Settlement Agreement.

1.10 The Sheriff is authorised to sign all documents necessary to give effect to any of the terms of this order, in the event that any party is unable or unwilling to do so; and

1.11 Any party opposing this application be ordered to pay the costs thereof.

2. The Applicants are directed to give notice of the return date of this application, by causing notice of the relief sought and of the return day to be posted, in English and siSwati, once in each of the Lowvelder and Mpumalanga News newspapers.

3. The Applicants and the Eighth, Ninth and Twelfth Respondents are directed to post notice of this application and of the return day, in English and siSwati, for a period of 20 days, on notice boards at each of their offices.

4. The costs of the application for a rule nisi are reserved for determination on the return day.

5. Any interested party who wishes to object to (a) the substitution of the Trust Deed and the appointment and authorisation of the Trustees, or (b) the Settlement Agreement being made an order of court and rendered binding on the parties thereto, must take the following steps to do so:

5.1 Notice of appearance, together with an affidavit setting out the basis of the objection, must be served on the Applicants’ attorneys by no later than a date 30 days from the last day of publication in terms of paragraph 2 or 3 above. An interested party filing a notice of appearance and affidavit is defined as an “Objecting Party”.

5.2 Objecting Parties are to deliver the notice and affidavit to the Applicants’ attorneys by hand or by email, to the following address:

SC

MDHLULI ATTORNEYS

ATTORNEYS FOR

THE APPLICANT

Suite 12 JCJ Limpro Building

6 Hans van Rensburg Street

POLOKWANE

TEL: (015) 291 5440 / 0828028439

Email: mdluli@scmdhluliattorneys.co.za

Attention: Mr SC Mdhluli”.

2.6 All the requirements regarding notices and publication of the order and the main application as well as the settlement agreement, have been complied with. The return day of the rule nisi has been extended from time to time, including to this week’s opposed motion court roll. Some of the reasons for these extension’s include the present interlocutory applications.

2.7 In order to contextualize the interlocutory applications, it is necessary to set out who the parties to the litigation are. They are the following:

2.7.1 As already mentioned, the applicants are the trustees of the Matsafeni Trust.

2.7.2 The first respondent is the Master of the High Court Pretoria, where the Matsafeni Trust and its successor for all intents and purposes, the Mataffin Community Development Trust, have been registered.

2.7.3 The third respondent is the Registrar of Deeds, Mpumalanga, where the portions of land are registered.

2.7.4 The three communities involved in the litigation and the previous disputes regarding use and/or entitlement to the land in question, have been cited as the fifth, sixth and seventh respondents. They are, respectively the Mdluli family, the “Lawful Occupiers of the Farm” and the Nkosi family.

2.7.5 The “Halls” have been cited as HL Hall & Sons (Pty) Ltd and HL Hall & Sons Properties (Pty) Ltd as eighth and ninth respondents respectively.

2.7.6 The Communication for the Restitution of Land Rights and the Minister of Rural Development and Land Reform have been cited as the tenth and eleventh respondents respectively.

2.7.7 The Mataffin Community Development Trust, mentioned in the settlement agreement and in the abovequoted rule nisi has been cited as the twelfth respondent.

2.8 The current (interlocutory disputes) relate to belated appearances by two sets of attorneys. I say belated, because the attorneys, or the parties they represent, have not previously entered the fray nor have they filed any affidavits. They have simply and fairly recently “come on record”. The two sets of attorneys are Couzyn Hertzog & Horak Inc and Nkosi Attorneys Associates (the lastmentioned name has apparently been adopted to distinguish this firm from another firm of attorneys, Nkosi Attorneys, who also featured in the litigation).

[3] Ad Couzyn, Hertzog & Horak Inc (Couzyns)

3.1 On 8 September 2021, Couzyns wrote to the applicant’s attorneys, alleging that they act on behalf of the “Lawful occupiers of the Farm Matsafeni (as they are cited in your application)”. This was clearly a reference to the sixth respondent.

3.2 The applicant’s attorneys responded that the matter was (then) proceeding on 10 September 2021 and also called upon Couzyns to produce their power of attorney from the sixth respondent.

3.3 Couzyns filed a formal notice to oppose on behalf of the sixth respondent on 9 September 2021. This prompted a notice in terms of Rule 7(1) from the applicants’ attorneys.

3.4 In response to the said notice and instead of the delivery of a formal power of attorney (or powers of attorney from any or all of the 8 000 people constituting the sixth respondent), Couzyns filed some 484 documents. These include:

3.4.1 a set of emails from Mr Themba Mashigo to Mr Wikus Hertz of Couzyns;

3.4.2 a set of attendance sheets of consultations with Couzyns on 3 September 2021 by Mr Mashigo, Mr D.S Mnisi, Mr Mlambo, Mr Dlamini, Mr Mkhonto, Mr Madonsela and a Mr T. N. Mnisi.

3.4.3 Forms, in blank, headed “Couzyn Hertzog & Horak Inc, Information sheet to confirm representation on behalf of the lawful occupiers (as beneficiaries of the Matsafeni Trust) pursuant to a consultation at CHH in Pretoria on 3 September 2021 by the chosen representatives and Mr Wikus Hertz”.

3.4.4 368 completed forms nominating various persons, most of whom are those mentioned in paragraph 3.4.2, but some others as well.

3.5 The applicants have analysed the aforementioned documents, particularly the completed forms and have approached some of the signatories thereof. Some of these signatories have, by way of affidavits, which were in turn criticised as to their measure of compliance with the prescribed requirements, in various degrees expressed their denial of or confusion about the contents of the forms, the nomination of the persons mentioned therein or the furnishing of a mandate to Couzyns.

3.6 Based hereon, the applicants argued that Couzyns could not satisfy the court that it represents the 8 000 persons constituting the sixth respondent.

3.7 In terms of Rule 7, a “person” [a legal practitioner] may not act on behalf of a party in litigation “unless he satisfies the court that he is authorised to so act”.

3.8 Ordinarily, the authority to act on behalf of another person is proven by the production of a power of attorney but the Rule and the commentary thereon in Van Loggebenberg, Erasmus: Superior Court Practice, Vol 2, Second Edition at D1-93 makes it clear, with reference to case law, that the satisfaction of the court can be achieved by “adducing any acceptable form of proof and not necessarily by filing a written power of attorney”. See also: Administrator Transvaal v Mponyane 1990 (4) SA 407 (W) at 409 E – F. In Eskom v Soweto City Council 1992 (2) SA 703 (W) at 705F – 706D Flemming DJP held that the fact of the existence of a mandate is a factual question which may be proven “in the same way as any other fact”.

3.9 In an affidavit deposed to by Mr Mashigo in support of the issue of representation, he stated the following: “I am authorised to depose to this affidavit as part of the committee of representatives of the beneficiaries of the Matsafeni Trust, by virtue of my fellow colleagues’ support. In amplification hereof, I attach their supporting affidavits … I am at present forced to explain the workings of our community structure in order to give credence to the fact that merely six representatives consulted with Mr Hertz … yet we have lawfully conferred a mandate which so authorizes Couzyn Hertzog & Horale Inc to act on behalf of and represent the community as a whole. I also attach hereto the client information and agreement of fees sheet I signed … . Myself and my colleagues are the duly authorised representatives lawfully chosen to act on behalf on the different sections and/or factions within the community…”.

3.10 Annexed to Mr Mashigo’s affidavit was an agreement of fees with Couzyns, signed by him stating “By signing this document you accept that … you authorise Couzyn Hertzog & Horak, represented by Wikus Hertzog, to act on your behalf …”.

3.11 Based on all of the aforesaid, I am satisfied that Couzyns have the necessary mandate to represent those persons who Mr Mashigo (and his “colleagues”) may lawfully represent. I formulate the court’s satisfaction in this fashion because, despite Mr Mashigo’s say so, and in absence of any other formal form of structure or resolution and in view of the denials or confusion of persons approached by the applicant, I am not equally satisfied that Mr Mashigo’s authority (and accordingly the authority of Couzyns) has truly been established or mandated by the remainder of the 8 000 persons constituting the sixth respondent.

3.12 It might well be that Mr Mashigo and his clients lawfully represent the whole of the sixth respondent but, insofar as that has not yet been established and even if they only represent a faction or portion or even a minority of the 8 000, they are still interested parties as contemplated in paragraph 5 of Kubushi, J’s order quoted above and may even be “opposing parties” as contemplated in paragraph 5.1 of her order.

3.13 To find otherwise, would be to unduly limit the ambit of the rule nisi and may prevent Mr Mashigo and those who he represents from exercising their constitutional rights of access to this court.

[4] Ad Nkosi Attorneys Associates

4.1 As aforementioned, the seventh respondent is the Nkosi family.

4.2 A director of Werksmans Attorneys, Ms Mabasa, has deposed to an affidavit in the similar interlocutory proceedings launched by then applicants regarding the authority of Nkosi Attorneys Associates to act on behalf of the seventh respondent. In Ms Mabasa’s affidavit she inter alia states the following: “I confirm that I have been specifically authorised to represent the direct descendants of Phillip Shpezi Nkosi, who are the beneficiaries of the Nkosi land claim … Werksmans Attorneys have been the attorneys of record for the seventh respondent including the direct descendants in this matter since its inception in 2007 …”. She then attaches a resolution and signed confirmation thereof from members of the seventh respondent. She expressly denies that one Musa Alfred Nkosi has “legitimate or legal authority to dispute the process and contents that led to the conclusion and execution of the Settlement framework Agreement entered into by the direct descendants with relevant parties, which was concluded in 2018”.

4.3 Contrary to the position of Mr Mashigo who claimed to act on behalf of the whole of the sixth respondent, Mr Musa Alfred Nkosi did not claim to act on behalf of the whole of the seventh respondent. In fact, his affidavit reads: “I … am a member of the Nkosi Family Trust, who are the seventh respondent. I … represents (sic) alternatively brings this answering affidavit for a portion of the seventh respondents (sic). The number of the individuals at this current time that I bring this answering affidavit on behalf, is 88 individuals …”. A number of copies of identity documents, some certified, indicating those individuals’ identities have been annexed to his affidavit.

4.4 In his answering affidavit, Mr Nkosi raises a number of issues which the applicants argue are all irrelevant or misguided. That may be so, but at this stage, only the questions of authority and the “right to speak on behalf of a party” were in issue. I am satisfied that the 88 people who Mr Nkosi says he represents, constitute interested parties such as those contemplated in the rule nisi and that they may be represented by Nkosi Attorneys Associates.

[5] The above findings on authority to act are limited to the issue of representation in court in this matter, including the right to deliver opposing papers as contemplated in the rule nisi. These findings do not constitute findings on the locus standi of the groups of persons represented by Messrs Mashigo and Mr Nkosi respectively and neither whether those persons constitute the sixth respondent or the seventh respondent respectively (in respect of lastmentioned, no such claim has been made by Mr Nkosi).

[6] Due to the time delays occassioned by these interlocutory proceedings, any opposing papers need to be delivered expeditiously and counsel representing the clients of Couzynz and Nkosi Attorneys Associates acceded thereto.

[7] In the exercise of my discretion and having regard to the nature of the issues involved in this matter, principally the issue of land and rights thereto, the emotive nature of which was again evinced by the number of representatives of the two sets of clients of Couzyns and Nkosi Attorney Associates who attended court, I do not find it in the interests of justice to burden any party with the costs of these interlocutory proceedings or to burden the court hearing the main application on the return day with a separate decision on costs. In my view, costs should be costs in the cause.

[8] Order

1. The rule nisi is extended to the opposed motion court roll of 21 February 2022.

2. It is declared that Couzynz Hertzog & Horak Attorneys Inc is authorised to act on behalf of Mr Mashigo and his colleagues as named in his affidavit dated 29 September 2021 and those persons who they in turn may lawfully represent.

3. It is declared that Nkosi Attorneys Associates is authorised to act on behalf of Mr Musa Alfred Nkosi and the 88 personal identified by his affidavit dated 8 October 2021.

4. Should the parties mentioned in paragraphs 2 and 3 above wish to oppose the confirmation of the rule nisi issued herein, they are directed to deliver and upload their opposing papers by 20 December 2021.

5. Costs of these interlocutory proceedings shall be costs in the main application.

N

DAVIS

Judge of the High Court

Gauteng Division, Pretoria

Date of Hearing: 23 November 2021

Judgment delivered: 2 December 2021

APPEARANCES:

For the Applicants:

Adv A Bishop

Attorneys for the Applicants: SC Mdhluli Attorneys, Polokwane

For the 6th Respondent: Adv G Kasselman

Attorney for the 6th Respondent: KT Mokoena Attorneys, Mbombela

c/o Couzyn Hertzog & Horak Attorneys, Pretoria

For the 7th Respondent: Adv N Simelane

Attorney for the 7th Respondent: Nkosi Attorneys, Mbombela

Werksmans Attorneys, Johannesburg