Zeelie N.O v Mjejane Parent Game Reserve Home Owners Association NPC and Others (4033/2021) [2023] ZAMPMBHC 16 (8 March 2023)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION (MAIN SEAT)

CASE NUMBER 4033/2021

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

SIGNATURE: LEGODI JP

In the matter between:

PETRUS ZEELIE N.O

APPLICANT

[In his capacity as interim court-appointed

Administrator of the Mjejane Trust (IT 6[...])]

AND

MJEJANE PARENT GAME RESERVE HOME

OWNERS ASSOCIATION NPC

1ST RESPONDENT

(A non-profit company registered in terms of Section21

Of the Companies Act, with registration number:

2[...])

OWNERS ASSOCIATION NPC

2ND RESPONDENT

LUGEDLANE DEVELOPMENTS (PTY) LTD

3RD RESPONDENT

(Registration number 2[...])

SAFRICAN LEISURE PROPERTIES CC

4TH RESPONDENT

JUDGMENT

LEGODI JP

[1] Implementation or non-implementation of an order of Ebersohn AJ made on 12 December 2008 in the Pretoria High Court in terms of which no further fixed property belonging to the applicant, namely Mjejane Trust (IT6[...] (hereinafter referred to as the “Trust) was to be allocated or sold or leased or otherwise encumbered until such time as the beneficiaries of the applicant shall have ratified such an encumbrance of the land belonging to the Trust, has become the subject of the dispute in these proceedings. At the heart of the dispute between the parties, the question is whether the written

agreements concluded after Ebersohn’s order are invalid and unenforceable for failure to obtain the approval of the majority of the properly verified beneficiaries of the Trust as per paragraph 8 of Ebersohn’s order.

[2] In terms of paragraph 8 of Erberson’s order, Mr A T Fischer, an independent consultant was appointed to carry out a beneficiary verification exercise on behalf of the Trust in a manner consistent with the principles enshrined in the Restitution of the Land Rights Act No. 22 of 1994 and the trustees of the Trust were to give Mr Fischer their full cooperation in the performance of his mandate. On the other hand, paragraph 11 of the order provides that ‘subject

to the provisions of paragraph 12 below, no further fixed property belonging to the applicant shall be allocated or sold, or leased to any person for residential or any other purpose or otherwise be encumbered until such time as the identities of the beneficiaries of the applicant have been ratified by the court as contemplated in paragraph 9 of the order. (My emphasis).

[3] Paragraph 9 of the order directed that the consultant (Mr Fischer) shall submit a report on the outcome of the verification exercise referred to in paragraph 8 to the applicant (the Trust), which shall forthwith make application to court for an order confirming such beneficiaries of the Trust. On the other hand, in terms of paragraph 12 of the order, the agreements between the Trust and Lugedlane Developments (Pty) Ltd (the 3rd respondent in these proceedings), was to continue to be of full force and effect.

[4] After the Ebersohn’s order which order was granted on 12 December 2008 four agreements were concluded. First, the so called “Wildlife Agreement” concluded approximately 31 July 2009 but backdated 16 October 2008. Second, “a Servitude Agreement” dated 14 September 2010. The third agreement is dated 19 October 2018 and is referred to as “Incorporation Agreement”. The fourth agreement is referred to “L

D Agreement (Plan C)” dated 28 March 2019.

[5] The next question is whether or not these agreements were concluded contrary to the provisions of paragraphs 8, 9, 11 of Ebersohn’s referred to above and paragraph 10 hereof which provides ‘that a general meeting of the applicant (the Trust) shall be convened within 30 days of the date upon which the list of the beneficiaries is confirmed by the court as contemplated in paragraph 8 above’.

[6] For the purpose of paragraph [5] above, a relief in the notice of motion is framed as follows:

“1 An order declaring that the following written agreements are void alternatively unlawful or illegal, set aside and declared unenforceable;

1.1 The Wildlife Agreement concluded approximately 31 July 2009 but dated 16 October 2008 (Annexure “MT 7”) to the founding affidavit.

1.2 The Servitude Agreement dated 14 September 2010 (Annexure “MT 8”) to the founding affidavit.

1.3 The Incorporation Agreement dated 19 October 2018 (Annexure “MT 35) to the founding affidavit.

1.4 The LD Agreement dated 28 March 2019 (Annexure “MT 10”) to the founding affidavit.

2. An order, interdicting the first and second Respondents and their members from entering onto or travestying the Remainder of Portion 5[...] of the Farm T[...] 1[...] JU, which farmland is owned by the Mjejane Trust without the written consent of the Applicant.

3. An order, that the applicant may approach this Court for judicial oversight, for approval of any agreements that it may conclude, which may encumber any of the Applicant’s properties.

4. That the first and second Respondents, together with any other parties who may oppose this application, are ordered to pay for the costs of this interdict application jointly and severally the one to pay the other to be absolved”.

[7] The blames for all the alleged unlawful conclusions of the agreements is placed at the doors of the first, second and third respondents and at the doors of the three interim trustees of the Trust who were appointed on 20 May 2009 by the Pretoria High Court, namely, Mr M T Silinda, an attorney by profession based in Mbombela, Mr Simeon Ngomane, also an attorney by profession based in Pretoria and Mr T L Zitha referred to in Trust’s affidavit as a business man.

The three trustees shall collectively be referred to in these proceedings as interim trustees. They were so appointed after a string of squabbles between the initial trustees and the members of the community who are beneficiaries of the Trust. On 24 January 2017 the Master of the High Court in Pretoria appointed one Mr M L Ledwaba as the fourth interim trustee. All these trustees were suspended by an order of court which was granted by Tuchten J on 11 August 2020.

[8] The allegations against the Interim Trustees are that they proceeded to conclude or attempted to conclude several agreements after and contrary to the Ebersohn’s order, all of which fall to be set aside, so was the contention before this court. The background and attacks on each of the four agreements are dealt with individually hereunder.

WildLife agreement

[9] This agreement is dated 16 October 2008. But it is said it was allegedly and suspiciously concluded in July 2009 between the Trust, the third respondent (Lugedlane), and the first respondent, (Mjejane Parent Game Reserve Home Owners Association NPC) registered under number 2[...]. In terms of the agreement, the first respondent and its members have exclusive use in perpetuity over one of the fixed properly (T[...] property) belonging to the Trust for no consideration. For this, is contended that the first respondent, the third respondent (Lugedlane) and the Interim Trustees did not only intend to encumber the T[...] property in contravention of Ebersohn’s order, but that it also inexplicitly excluded the Trust and its beneficiaries from accessing its land which comprises the following portions, as they are commonly identified, namely, the “dam portion” of the Farm T[...], measuring 3459396ha and the “river portion” being portion of the Farm T[...] measuring 82ha. These portions of the land are depicted in what is referred to as “Mjejane Estate Master Plan”.

[10] The first respondent is said to have procured for itself certain contentious exclusive rights as follows: The Trust and its beneficiaries are prohibited from gaining access to the portions of the land as the first respondent has allegedly acquired exclusive use of the portions of the land in perpetuity. This is said to be in stark contrast to the provisions of the Wildlife Servitude agreement which is also under attack in these proceedings. In the Wildlife Servitude agreement there are no exclusive traversing rights afforded to the first respondent and its members. It is further recorded in the Wildlife Agreement that the developer (Lugedlane) being the third respondent is in terms of clause 2.7 of the agreement granted an option to acquire the dam and river portions for consolidation with L[...] land and for further development of the Trust’s land.

[11] In paragraph 15.3.2.2 of the founding affidavit, this right to develop the dam and river portions of the T[...] Farm or property belonging to the Trust, is described as a “perceived right to develop the dam and river portions which does not exist”. There are two farms belonging to the Trust. That is, the land on the T[...] Farm and the other land on L[...] Farm. The dam and the river are not situated on or within the L[...] Farm, but rather on T[...] Farm. For this, it is said that the further development alongside the dam and the river on the same terms as envisaged in the shareholders’ agreement, is misplaced.

[12] The criticism is levelled as follows: The shareholder agreement was meant to relate only to L[...] Farm or property and that the conditional authority for the development granted by the relevant authority and in terms of clause of the shareholder’s agreement reference to the property, was with reference to L[...] property. In terms of clause 7.7 of the shareholder’s agreement after the development of certain identified portions of L[...], the third respondent as the developer was to take all steps necessary to incorporate the said remainder of the property into the Kruger National Park in exchange for land in the Kruger National Park. In this regard I understand the submission to be that “the remainder of the property” referred to in clause 7.7 can only be reference to L[...] property and not T[...] property where the “dam and the river” are situated.

[13] In the founding affidavit, the Trust takes the point that no reference is made to T[...] land in either the shareholders agreement or in the government approval. For this, it is contended that the rights perceivably afforded to the developer, the third respondent to develop T[...] was never envisaged by the parties who concluded the shareholder’s agreement, nor by the Department in its authorisation. And that this principle should also apply to the intended subdivision of the dam and river portions and consolidation thereof into the L[...] property. The persons who were parties to the Wildlife Agreement and who negotiated and or signed same are said to have intentionally procured a subterfuge by referring to the Shareholder’s Agreement out of context and thereby intended to procure additional traversing rights for the first respondent and also conceivably for the second respondent and its members over the T[...] property without the required approvals and contrary to the provisions of the Ebersohn’s order.

[14] Procuring of traversing rights in clause 6.2 of the WildLife agreement over the dam and river portions in favour of the first respondent in accordance with the rules and regulations which would have been established in collaboration with the Trust, is said to be nothing else but a further subterfuge, simply because the Trust and its beneficiaries are excluded from exclusive traversing rights procured in favour of the first respondent and its members and to date, no attempt is said to have been made by the first respondent to procure any such rights.

[15] In terms of clause 7 of the Wildlife Agreement, the Trust and its beneficiaries are excluded from the management provisions of the conversation area which is said to be contrary to the terms of the Wildlife Agreement. Clause 11 of the Wildlife Agreement is said to prohibit the parties from procuring any activities which relate to farming “unwarranted” interference with the employees of the first respondent and unauthorised traversing of the dam and river portions.

Allegations of potential fraud in the conclusion of Wildlife Agreement

[16] The Wildlife Agreement although is dated 16 October 2008, that is, before Ebersohn’s order of 12 December 2008, it is said that its date of 16 October 2008 is a possible or potential product of fraud which was aimed at side-stepping the Ebersohn order of 12 December 2008 referred to earlier in this judgment. The allegation of potential fraud is premised on the following: That it cannot be correct that the WildLife Agreement was signed on 16 October 2018. Instead it said it was predated in an attempt to circumvent the Ebersohn’s order based on the following: (a) the Wildlife agreement, includes reference to the Wildlife Servitude which was only registered on 30 April 2009. That is, six months after the purported date of signatory of the Wildlife agreement. But it does not only include reference to 2009 registration, it also includes a servitude registration number as “K[...] or 1[...]”. This according to the applicant is objectively

impossible that the Wildlife agreement purportedly concluded on 16 October 2008 could have had the servitude registration number for 2019. I deal with the purported defence by the respondents regarding this aspect hereunder.

Attack on the exclusive use of the land in perpetuity

[17] The validity of the wildlife agreement is first attacked on the basis that it was concluded after and in conflict with the Ebersohn’s order of December 2008 in that it refers to the exclusive use of L[...] land in perpetuity for Wildlife purposes, whilst the registered notarial wildlife servitude agreement provides for non-exclusive use. For this, it is contended that the wildlife agreement was intentionally concluded and predated in conflict of the order of Ebersohn as it was in fact signed in 2009. I also deal with this attack by the applicant later in this judgment seen also in the context of paragraph 18 hereunder.

The inscription at the top left-hand corner of wildlife agreement

[18] This is another aspect which is also used as an attack on the validity of the wildlife agreement. It is said the wildlife agreement could only have been concluded and signed after the order of Ebersohn as it was seemingly drafted on 27 July 2009. This consideration is made and based on the fact that on page 1 of the wildlife agreement the date on which it was drafted is indicated as 27 July 2009. Later in this judgment I deal with all the purported defences raised by the first and second respondents regarding all of the above attacks raised by the Trust as the applicant represented by the court appointed care-taker.

Conclusion by the applicant regarding the wildlife agreement

[19] The applicant in its founding papers concludes on its attack against the wildlife agreement by submitting that the first respondent intentionally, in an untoward manner and in collaboration with the suspended trustees and the developer intended to encumber further applicant’s trust land and thereby attempted to acquire rights on the dam and river portions to the exclusion of the landowner (the Trust) and its beneficiaries (the community) and for no consideration. For this, it is contended that the wildlife agreement was concluded contra bonos mores for various reasons. It is contended that the land which was returned to those people who were forcefully removed from their land in 1954 which persons repossessed the Trust as beneficiaries, was purchased by government at the considerable expense of taxpayers’ monies.

[20] Furthermore, it is contended that the purpose of the land restitution process was to restore the land to its rightful owners and for them to utilise the land for their exclusive use and financial benefit. A point is made that the land which the Trust agreed to make available to the developer for development of a private game reserve, was meant to ensure that the Trust beneficiaries, that is the community, was to receive a realistic financial benefit for being deprived of the use of their land. This is said to have been enshrined in the authority for the development which was granted by the Department of the Environmental and Tourism. Lastly, it is contended that given the fact that the land is part and parcel of a land claim, it could never have been intended to be alienated or encumbered for no consideration.

Alleged Indemnity clause used as a stratagem

[21] The allegation of indemnity clause as a stratagem, is made on the basis of clause 14 of the wildlife agreement. Also seen in the context of clause 13 thereof. Clause 14 provides that the first respondent indemnifies the trustees of the Trust against any liability, costs, losses and expenses for which they may become liable, having entered into this agreement or for any act or deed arising from this agreement.

[22] According to the applicant the main purpose of this indemnity clause was to unduly protect the trustees who were the signatories to the agreement, if their unlawful strategic plan comes to light and that this is indicative of the fact that the parties concerned were aware of the fact that the Wildlife Agreement was unlawfully concluded. Furthermore, it is contended that mere inclusion of an indemnity clause leads to the only reasonable inference, being that the agreement was entered into, whilst the first respondent and trustees of the applicant at the time, were conscious thereof that the agreements were meant to procure unlawful rights in favour of the first and the third respondent (the developer). It is said, all the parties to agreement were clearly aware of the fact that attempts to grant rights to the first respondent in respect of the property of the Trust, amounted to acting in contravention of Ebersohn’s order.

[23] I now turn to deal with the defence as raised by the respondents with respect to the attack against the wildlife agreement, before I deal with the merits of the Trust’s causes of application and its attacks identified and referred to in the preceding paragraphs and the relief sought. I find it necessary to first deal with the preliminary issues raised by the respondents which preliminary issues also apply to the agreements under attack.

Background to the alleged inappropriate motion proceedings and non-joinder points.

[24] The respondents first raised two points in limine based on alleged dispute of facts and non-joinder point. Some background to these two preliminary issues is necessary. In the founding affidavit allegations of fraud, dishonesty and otherwise improper conduct are made against some of the parties to these proceedings. The developer (third respondent), is one of such parties. The third respondent made representation inter alia, to the Trust that it wished to develop the Game Reserve on the property of the Farm L[...] which was intended to encumber 3825,2622 hectares. Portion of this land was to be developed amongst others, by establishing a residential wildlife estate and other commercial entities. The other reminder of the Farm L[...] was encumbered by a non-exclusive wildlife servitude to allow homeowners and their guests to traverse about 3085,0710 hectares of L[...] for game viewing purpose.

[25] It was the third respondent as the developer who established a non-profit homeowners’ association namely, the first respondent. The members of the Association were to be the purchasers of the stands within the wildlife estate. The first respondent in collaboration with the third respondent (the developer) established the second respondent. The establishment of the second respondent was intended to procure membership of the various owners of various wildlife estate properties. For this, the members of the second respondent resolved to become members of the first respondent. The first and second respondents are said to have colluded with the third respondent to procure exclusive traversing rights for the members of the first respondent over a property; namely T[...] property which also belongs to the Trust and adjacent to L[...]. It is said that they proceeded to conclude invalid wildlife agreement.

[25] In addition, they attempted to register a further wildlife servitude agreement intended to exclude the Trust and its beneficiaries from access to the land in question. They also procured exclusive access to a bridge over the Crocodile River for their members to have exclusive rights to enter the Kruger National Park. In the process, they excluded the Trust and its beneficiaries from the unique benefit, so is the Trust case in its founding papers. Despite all of the above, the two preliminary issues namely, non-joinder and the inappropriateness of the motion proceedings were raised. I now turn to deal specifically with these two issues.

Non-Joinder

[26] The issue is raised as follows: That the relief sought is potentially far-reaching with serious potential consequences in that a number of persons or parties are not joined in these proceedings. These persons and or parties are said to include signatories to various agreements sought to be set aside. The developer, that is, the third respondent is said to be one of such parties having a substantial interest in the matter because it is one of the signatories to the wildlife, servitude and LD agreements. Then is contended that Mr H Joubert who was not only the director of the developer (the third respondent) but was also a s signatory to the agreements should have been joined.

[27] Very difficult to understand what the respondents’ nature of the contention is. The suggestion that Mr H Joubert has not made common cause with the applicant (the Trust) as far as the relief sought is concerned, boggles one’s mind as it makes no sense to the defence of non-joinder. A statement is further made as follows:

“…It is highly doubtful whether Mr H Joubert is even aware of the application, let alone in a position to present the court with Lugedlane’s version of the events and circumstances that entitles the applicant, under the direction of Mr Zeelie seeks to

secure an order without the actual true facts being taken into consideration. It will be submitted at the hearing of this

application that, in particular in view of the seriousness of the allegations being made in the founding affidavit, it is very

important for the Court to be provided with all the facts, not only those chosen to be disclosed by Mr Zeelies and that facts and

evidence ought not to be supressed and concealed”

[28] Mr Zeelie is the court appointed administrator of the Trust and Mr Mark Chewins who is making all these averments has deposed to the opposing affidavit as a director of the second respondent. The role of the second respondent in these proceedings was explained earlier in this judgment. Therefore, the second respondent or Mr Chewins, is not an absent party that needs to be joined. On the other hand, Mr H Joubert in appending his signature to the three agreements referred to above, did not do so in his personal capacity, but in his representative capacity of both the second and third respondents.

[29] In its replying affidavit, the Trust through Mr Zeelie simply and relevantly puts it as follows:

“22 I take note of the second respondent’s contention: Should it wish to join any parties; it must proceed to do so. I however deny that Mr Hendrik Petrus Joubert is not aware of this application, which was served on the Fourth Respondent on 26 August 2021. The claim that Mr H Joubert is not aware of the application, is nothing but conjecture. I annex hereto a confirmatory Affidavit by Mr Joubert.

23 Only parties who have a direct and substantial interest are required to be joined. I was advised that the mere fact that a person has an interest in the outcome of litigation, does not warrant a defence of non-joinder. The parties whom the Second Respondent contends should have been joined, do not have such direct and substantial interest and there is no merit to this stance adopted by the Second Respondent. In any event, I have caused a notice to be sent to each of the proposed parties, inviting them to intervene if they choose to do so, and none of these parties have elected to intervene”.

[30] Seen in context, the quotation above must bring the non-joinder defence to rest. The developer, that is the third respondent has always been represented by the Jouberts, namely Messrs WM and HP Joubert. They had always interacted with the trustees of the applicant in many of the dealings in the past. They therefore on behalf of the developer, fully aware of the proceedings instituted by the Trust. As quoted above, Mr H P Joubert even filed a confirmatory affidavit to the Trust’s replying affidavit.

[31] On the other hand, the fourth respondent that is, SAFrican Leisure Properties CC is in a way driven by the Jouberts. The developer, trustees of the Trust at the time, and an entity at the time referred to as Hanrob CC, now the fourth respondents by name change, through the Jouberts concluded a Memorandum of Agreement which ultimately culminated in the establishment of the Lugedlane Developments (Pty) Ltd, now the third respondent referred to in these proceedings also as the developer. The Jouberts are the eyes and ears of both the developer and the fourth respondents in these proceedings and are fully aware of the current proceedings. They however elected not to actively be involved in the litigation. The suggestion that it is “highly doubtful whether Mr H Joubert is even aware of the application”, has no merits and is

speculative contrary to the facts presented. In any event, both the developer and fourth respondent are cited in these proceedings.

In addition, the Jouberts never acted in any of the dealings with the third and fourth respondents in their personal capacities. The attempt to draw in the previous trustees of the Trust, is similarly of no consequence as they have never acted in their personal

capacities. At all times they acted in their representative capacities as trustees of the applicant (The Trust). It is in

any event not the first and second respondents’ contention that the ex-trustees should have been joined. The Trust itself is the applicant in these proceedings with substantial interest in the litigation. The non-joinder point ought to be dismissed. I now turn to deal with a somewhat interrelated preliminary issue.

Inappropriate motion proceedings and factual disputes

[32] The second respondent having branded what is averred in the founding affidavit as “replete of allegations that impute directly and indirectly fraud, dishonesty and otherwise improper conduct on the part of various parties”, the statement is taken further as follows:

“9. It will be submitted on behalf of the second respondent at the hearing of the application that:

9.1 Allegations of this nature cannot be properly ventilated in motion proceedings and that relief of the nature set out in the notion of motion, ought not to be pursued in motion proceedings;

9.2 Whilst the relief sought in the notion of motion is inappropriate for the reasons set out above, disputes of fact – given the nature of the allegations and accusations contained in the founding affidavit – are inevitable and foreseeable; and

9.3 The applicant’s decision to pursue the relief on motion is, in the circumstances irresponsible and amounts to an abuse of the Court process (and more so in circumstances where the applicant was advised, even before an answering affidavit was delivered, that disputes of this nature ought not to be ventilated and determined in proceedings, of this nature) and it will be submitted that for this reason alone, this application falls to be dismissed (and at least, struck off the roll)”.

[33] The Trust in its replying affidavit moves from the premise that the second respondent in its answering affidavit failed to read or identify factual disputes incapable of being dealt with on the papers. I tend to agree with this conclusion. Starting with reference to the quotation in the preceding paragraph, the second respondent is not being specific. It makes general statements without specifying the nature of the dispute and its materiality. Perhaps it is understandable why this issue has been thrown in without facts to back it up. The whole dispute revolves mainly on the reviewability and setting aside of the Wildlife Agreement. Should it be found that the applicant has succeeded in a making a case for the setting aside of the wildlife agreement, the rest of the challenged agreements will fall by the way side. In paragraph 16 of the answering affidavit, the second respondent puts it this way:

“66.1 Mr Zeelie makes serious allegations of potential fraud, collusion, subterfuge, circumvention in respect of the Wildlife Agreement.

66.2 These allegations amount to hearsay where Mr Zeelie evidently has no knowledge as to when or for what reasons the agreement was signed, or, for what matter, what was contemplated by the shareholders of Lugedlane, when concluding this agreement”.

[34] The statement as I understand it, arises from the following set of facts made by Mr Zeelie in the founding affidavit: That the Wildlife agreement was concluded contrary to Ebersohn’s order and that it was in fact not concluded on 16 October 2008 as purported. That the wildlife agreement was pre-dated in an attempt to circumvent the Ebersohn’s order of 2 December 2018 which prohibited any incumbent of the Trust’s property before verification process of the beneficiaries of the Trust is completed. The conclusion will appear more clearly as I deal later with the case made by the Trust against the Wildlife agreement. It suffices for now to mention that there are no material dispute of facts regarding ‘a potential fraud which was procured by referring to the date on which the Wildlife agreement was purportedly signed’, as averred in paragraph 15.3.7 of the second respondent’s answering affidavit. There are two remaining points in limine, namely lack of jurisdiction and failure to take arbitration route. This will be discussed later in this judgment as the two are dependent on a finding in favour of the applicant (the Trust) regarding the wildlife agreement.

Evaluation of evidence against the validity and enforceability of the Wildlife Agreement

[35] In paragraph [16] to [22] above I dealt with some of the features surrounding the conclusion of and the criticisms levelled by the Trust against the validity and enforceability of the Wildlife agreement which agreement is seen by the parties as an anchor to the other agreements under attack. The agreement is branded by the Trust as a product of fraudulent and deceitful conclusion and signing of which are intended to subvert Ebersohn’s order by further encumbering the Trust land. By so doing, the respondents attempted to acquire rights over the dam and the river portions to the exclusion of the beneficiaries of the Trust and without any consideration or any form of payment thereof. This is not in dispute. That Wildlife agreement creates exclusive use of the land in question by the respondents for no consideration and to the exclusion of the beneficiaries of the Trust. This is also unrefuted as is one of terms and conditions of the agreement. Both the developer (third respondent) and second respondent are signatories to the agreement together with the Trust to which the authority of Mr Silinda, one of the Trustees in signing the agreement, is being challenged. It is challenged because he acted contrary to the imperative in the Trust Deed of the applicant (The Trust) as he concluded the wildlife agreement without the permission and authority of majority of the beneficiaries and or other trustees. This too cannot reliably and factually be disputed.

[36] The next question of course is whether the Trust has shown or proved on the balance of probability that the wildlife agreement was preceded by Ebersohn’s order which prohibited any further encumbering of the Trust property by way of an agreement. Just to recap and at the risk of repetition, paragraph 11 of Ebersohn’s order directed that, ‘…no further fixed property belonging to the applicant shall be allocated or sold or leased to any person for residential or any other purpose otherwise encumbered until such time as the identities of the beneficiaries of the applicant have been ratified by the court as contemplated in terms of paragraph 9 above’.

[37] Paragraph 9 referred to in paragraph 11 of Ebersohn’s order provides that ‘the consultant shall submit a report on the outcome of the verification exercise, referred to in paragraph 8 of the order to the applicant (the Trust) which shall forthwith be followed by an application to court for an order confirming the beneficiaries of the Trust as lawful beneficiaries of the Trust’. On the other hand, paragraph 8 of Ebersohn’s order authorises and directs the consultant to ‘carry out a beneficiary verification exercise on behalf of the Trust in a manner consistent with the principle enshrined in the Restitution of Law of Rights Act, No 22 of 1994. That verification was to be confirmed by the court in terms of paragraph 9 and thereafter a general meeting of members of the Trust were to be convened within 30 days from date of such confirmation by the court.

[38] Just on the reading of the order in context, one can conclude that the order was aimed at ensuring that whatever stumbling blocks might be there are disposed of to ensure the proper functioning of the Trust in the interest of its beneficiaries. It is actually sad that this kind of Trusts are often filled with infightings amongst beneficiaries and those who claim to be beneficiaries. Paragraph 12 sought first to protect the agreements and those rights and obligations acquired in terms of such agreements before Ebersohn’s order. But, paragraph 12 was also intended to avert further misgivings about how the affairs of the Trust was to run. For this, further encumbering of the Trust’s properties was stayed provisionally pending finalization of the verification process.

[39] This then brings me to deal with the real issue. That is whether the wildlife agreement alleged to have been concluded and signed on 16 October 2008 ‘was pre-dated in an attempt to circumvent the Ebersohn’s order’ of 8 December 2008. The wildlife agreement was one of those agreements in these proceedings which bear the names of “Deneys Reitz Attorneys”. One assumes that they were responsible for drafting and producing the agreement for signatures by the respective parties to the agreement.

[40] In the “interpretation clause”, the servitude is described as “the Notarial Deed of Agreement used for Wildlife purpose registered under Servitude No. K[...]”. The “2009” signifies the year of registration. The “signature date” is described as “the date on which the last signing party signs

this agreement”. The last signing party is indicated as someone acting on behalf of the Developer (the third respondent) and the date thereof is indicated as 16th October 2008. In fact, all parties to the agreement on behalf of the Trust and on behalf of the first respondent signed on 16 October 2008, the place being Hectorspruit.

[41] This background, in particular the definition of “the Servitude” and its registration number for the year 2009 as indicated in the preceding paragraph is as I see it, truly what prompted the statement which is made in paragraph 15.3.7 of the founding affidavit as follows:

“I further alert the above honourable court to a potential fraud which was procured by referring to the date on which the Wildlife Agreement was purportedly signed. The agreement was ostensibly

signed on 16 October 2008, which cannot be correct. I consequently submit that the signature date of the Wildlife Agreement could not have been 16 October 2008. I submit that it was pre-dated in an attempt to circumvent the Ebersohn’s order”.

[42] In seeking to substantiate the statement quoted above, a further statement is made as follows:

“15.3.7.1 The Wildlife Agreement includes a reference to the Wildlife Servitude, which was only registered on 30 April 2009 being six months after the purported date of signature of the Wildlife Agreement;

15.3.7.2 This reference, which includes the 2009 registration number of the

servitude, being “Servitude No. K[...]”, is contained in the definition of “the Servitude” in paragraph 1, page 4 of the agreement. As is evident from annexure “MT 18”, this servitude was only registered and thus only obtained a registration number on 30 April 2009. Wherefore it was objectively impossible for this agreement to have been signed prior to 30 April 2009. (The reference to K[...] rather than K[...] is clearly a mere typographical error.)

[43] True, reference to K[...] rather than K[...] should be seen as a typo error because registration number under which the servitude in question was notoriously registered is K[...] and not 179 as indicated in the interpretation clause 1 of the Wildlife agreement. Subsequent to the notarial registration aforesaid the servitude agreement was only signed by the parties, namely, the developer, second respondent and the Trust. In my view, a prima facie case is made to the assertion that the Wildlife agreement is pre-dated, the extent of which should however be determined regard

been had to the respondents’ defences to the allegations made as quoted in paragraphs [ 41] and [ 42] above.

[44] One Mr Mark Chewins, a director of the second respondent, (Home Association registered under registration No 2[...]), deposed to an affidavit on behalf of both the first and second respondents. In paragraph 66 of his affidavit he seeks to deal with the defence to the allegation inter alia, referred to in paragraphs [41] and [42] above. He starts by asserting that serious allegations of potential fraud, collusion, subterfuge, circumvention in respect of the wildlife agreement are based on hearsay assertions. It is contended that the deponent to the founding has no personal knowledge of what the shareholders of the third respondent contemplated when the Wildlife agreement was concluded. For this, it is contended that it is not possible for the second respondent, neither can the deponent to the founding affidavit accept as a fact the allegations quoted in paragraphs [41] and [42] above. This appears the only thing that can be said by the second or first respondent. This contention is made despite the first respondent being a party to the alleged pre-dated wildlife agreement.

[45] The first and second respondents in paragraph 15 of their answering affidavit threatened to launch an application asking the court “for allegations in the nature of inadmissible hearsay to be struck off”, which right so reserved was never exercised. The respondents are party to the wildlife agreement. Therefore, whatever happened to the wildlife agreement in particular regarding the registration number not in existence as on 16 October 2008, is an issue that falls

or should fall within the respondents’ knowledge. It therefore does not help the first and second respondents by folding sleeves and not disclose what happened before they could raise the hearsay defence. The first to the third respondents elected not to deal with the pre-dating allegation. Perhaps, correctly so. You cannot enter into a wildlife agreement in October 2008 and make reference to a notarial servitude number which was only procured and generated upon registration in 2009.

[46] The third respondent (the developer) refrained from entering into the frail. It elected not to participate in these proceedings and explain how servitude notarial registration number that occurred on 30 April 2009 found its way into a wildlife agreement allegedly concluded on 16 October 2008. The respondents are supposed to know better. Their election for silence should be found to be a self-protection for possible criminal investigation. In fact, there appears to be a case made for the law enforcement officers to be alerted seen in the context of the imperative in

section 34(1)(b) of the Prevention and Combating of Corrupt-Activities Act, 2004. I am satisfied that the wildlife agreement was backdated in order to subvert the imperative in Ebersohn’s order. The agreement is therefore of no force and is destined to be set aside.

[47] But of course there is another ground upon which the wildlife agreement is attacked as having been back-dated. As indicated earlier in this judgment, Deneys Reits Attorneys were apparently responsible for drafting and typing of the wildlife agreement. At the left top of the first page of the agreement “29 July 2009” appears. The first, second and third respondents are masked and mummed on this. The date “29 July 2009” and the election for silence by those who were key role players to the conclusion of wildlife agreement, should be found to support the suggestion that the wild agreement could not have been concluded and signed on 16 October 2008. The suggestion that evidence on this is hearsay without more, boggles one’s mind and has to be rejected.

[48] The developer was a party to the agreement and so were the first and second respondents. The conclusion by the Trust is that there is no plausible explanation and the respondents know that the wildlife agreement was concluded after Ebersohn’s order. Look further at it this way: Servitude right referred to in clause 2.3 was registered under servitude no K[...] erroneously referred to as K[...] in the year 2009 and not before the order of Ebersohn’s order made in December 2008.

[49] There is another recording in the wildlife agreement which is somewhat puzzling. That is, clause 2.4 in terms of which it is recorded that the Trust and Hanrob (now the fourth respondent) concluded an agreement in terms of which they agreed to form a new company to develop portions of the T[...] Farm including the Dam Portion and that for certain reasons the Trust and Hanrobs have been unable to give effect to the wildlife agreement. Just on this recording, until such time that a new company was concluded to develop portions of the T[...] Farm, was formed, no rights and obligations would have become effective and any effective date after the order of Ebersohn AJ would have become the subject of another attack.

[50] On 5 May 2021 and on behalf of the second respondent, attorneys Bowmans wrote to the Trust, third and fourth respondents. In a somewhat most worrying mood, Attorneys Bowmans wrote:

“12 …we had an opportunity to review various documents … and are suitably shocked to discover that an apparent fraud may have been perpetrated…

15. The 16 October agreement could simply not have been signed on 16 October 2008 (and thereby cannot pre-date the order, in that;

15.1 It refers to servitudes that was registered in the Deed, Office on 30 April 2009, and

15.2 the date at the top left-hand side of cover page is recorded as 29 July 2009, being the date of preparation and or finalisation of the agreement for signature”.

[51] The second respondent now wishes in its answering affidavit to challenge the relief sought by the Trust as follows:

“65.1 Mr Zeelie alleges that at all relevant times, the parties to the agreements that he wishes to have set aside knew that concluding these agreements would be unlawful;

65.2 This allegation is hearsay and ought to be struck. It is also without any factual basis;

65.3 Simply stated, Mr Zeelie’s opinions are wholly irrelevant and provide no basis on which the relief should be granted:

65.3.1 Mr H Joubert signed the Wildlife Agreement on behalf of Lugedlane and the first respondent;

65.3.2 Mr H Joubert signed the Servitude Agreement on behalf of the Lugedlane and the first respondent; and

65.3.3 Mr Silinda signed the Servitude Agreement on behalf of the Trust”.

[52] Mr Chewins, (the deponent) to the opposing affidavit of the second respondent cannot have it both. The second respondent through its attorneys in the letter of 21 May 2021 as quoted above, raised concern as, ‘…serious allegations in respect of a potential fraud as a basis to set aside the Wildlife Agreement’. This allegation was stated in the letter of 21 May 2021 as a fact and further as follows: ‘…the 16 October 2008 could simply not have been signed on 16 October 2008 and thereby cannot pre-date the order...”

[53] It is actual deplorable that the second respondent after having prompted this concession, now through Chewins, wants to brand the Trust case as “hearsay” that “ought to be struck” and that “is also without factual basis”. There is just no merit in this attack. In any event, the wildlife agreement itself read with the servitude agreement speaks volumes. To expect those involved in the drafting and conclusion of the wildlife agreement and subsequent other three agreements to respond to the obvious, will be unrealistic. Especially if there are serious

consequences that may flow therefrom including criminal investigations as that should have been the case if this has not happened yet. In other words, to expect the signatories to the wildlife agreement to be on record in the face of an overwhelming untoward actions against them, would be to expect too much. I therefore find that the wildlife agreement is the subject of fraud and ought to be set aside.

Lack of authority by one of the trustees in the conclusion of wildlife agreement

[54] The Trust (applicant) was registered in 2004. Because of untoward squabbles between the trustees and members of the community, the Trust saw itself having to see many trustees being appointed, fired and or replaced. On 20 May 2009 three interim trustees were appointed by the Pretoria High Court. Mr MT Silinda, an attorney by profession based in Mbombela was one of the three such trustees. On 24 January 2017 another trustee (fourth respondent) was appointed by the Master due to complaints by the Trust beneficiaries.

[55] On 11 August 2020, the trustees were suspended by an order of court and Tuchten J in paragraph 45 and 47 of his judgment stated as follows:

“45 I do not of course make any final determination as to whether the respondents have misappropriated or mal-administered Trust assets. That is for the court hearing Part B of the relief sought to decide, if it is minded to do so. But I do find that the applicants have a reasonably grounded apprehension that the respondents are misappropriating and mal-administering Trust assets because the respondents have steadfastly refused to disclose to the applicant and to the court which appointed them how they have administered, and continue to administer, Trust funds and assets.” [My emphasis]

47 The refusal of the respondents to account for their administration of the trust causes me profound concern.”

[56] Three of the four trustees to exclusion of the trustee appointed by the Master of the High Court Pretoria, were unsuccessful in their attempts to appeal Tuchten J’s order. It is said that they have thus far exhausted all other attempts to challenge the order including a submission for reconsideration by the President of the Supreme Court of Appeal. As at the time the founding affidavit was deposed to on 18 August 2021 in these proceedings, the challenge to the order was still under consideration by the Constitutional Court.

[57] This background is necessary insofar as one of the trustees, namely Mr Silinda was signatory to the wildlife agreement. Did he have the authority to conclude the agreement? That is the question to be examined. The trust deed of the applicant as amended has certain decision making provisions regarding certain conduct or actions of the trustees. The power of the trustees in terms of clause 13 of the Trust Deed inter alia, prohibits alienation, letting or mortgaging of any immovable property of the Trust, unless such alienation, letting and or mortgaging of the immovable property of the Trust is done with the full knowledge and consent of 75% of the total number of the beneficiaries prepared in a general meeting called for that purpose in terms of clause 19 of the Deed of Trust. This provision is found in clause 13.1.1 of the Deed of Trust.

[58] In dealing with lack of authority to encumber the property of the Trust as per paragraph 11 of order of Ebersohn AJ, the issue is articulated as follows by the applicant:

“12.2 It is important to note that the particular relevance of the Ebersohn order to the relief sought by the Applicant, is that no further land of the Trust may be encumbered without approval of the majority of the Trust beneficiaries at a general meeting. See paragraph 11 of the order. I have determined that the attorneys of record who act for the applicants who seek the final removal of the MIT and Ledwaba have been informed by the office of the Registrar of the Pretoria High Court that the court file and its content were removed from such office by unknown person, who have not returned same to the Registrar”.

[59] The first and second respondents in their opposing affidavit elected not to deal with the lack of authority by the Trustee who signed the wildlife agreement. There is no suggestion that any such general meeting took place where not less 75% of the beneficiaries of the Trust gave mandate for the conclusion of the wildlife agreement. That being the case, it must be found that the wildlife agreement is void and of no effect and force. Accordingly, an order in this regard will be made by setting aside the agreement. I now turn to deal with another attack against the wildlife agreement.

Wildlife agreement is contra bonos mores

[60] This was the contention made on behalf of the Trust. The challenge is raised in the founding affidavit as follows:

“15.3.8 I thus respectfully submit that the First Respondent thereby

intentionally (in an untoward manner and in collaboration with the suspended trustees and the developer) intended to encumber further

Trust land and thereby attempted to acquire rights over the dam and river portions, at the exclusion of the landowner (the Trust) and its beneficiaries for no consideration. I respectfully further submit that the Wildlife Agreement was concluded contra bonos mores, for the following reasons:

15.3.8.1 The land which was restituted to those people who were forcefully

removed from their land in 1954 (which persons represent the Trust beneficiaries) was purchased by the government at the considerable

expense of taxpayers.

15.3.8.2 The purpose of the land restitution process was to restore the land

to its rightful owners and for them to utilise the land for their exclusive use and financial benefit.

15.3.8.3 The land which the Trust agreed to make available to the developer

for the development of the MGR meant that the Trust beneficiaries expected to receive a realistic financial benefit for being deprived

of the use of their land. This principle is enshrined in the authority for the development, which was granted by the Department of Environment and Tourism.

15.3.8.4 This land (given the fact that it is part and parcel of a land claim)

could consequently never have been alienated or encumbered for no compensation”.

[61] The first and second respondents in its answering affidavit and in a somewhat scanty fashion sought to respond to what is quoted above. It appears to be all about the interests of the first and second respondents’ and their members. This appears to be fortified by the statement made as follows in paragraph 66.4 of the respondent’s answering affidavit:

“66.4 The second respondent has always been of the view that its members have access to the dam and river portions of T[...] and are able to access the KNP over the low-level bridge to the north of T[...] and the sales of properties are based on this value perception. Lugedlane uses this unique selling point in its marketing materials that have generated the sales of members’ properties”.

[62] There seems to be no defence to the contra bonos mores challenge against the wildlife agreement. Whatever way one looks at it, the wildlife agreement cannot sustain the test of legality. It is so prejudicial to the purpose for which the land was returned to the original owners and the heeling of the wounds of the past. Pity that the trustees who were to look after the interests of the beneficiaries, themselves became the subject of the litigation resulting in the order in terms of which they were described by Tuchten J as quoted in paragraph [55] of this judgment. The rest of the respondents seem to have taken the advantage of the situation. I now turn to another issue or challenge.

Lack of authorisation

[63] On or about 8 December 2006 Department of Land Affairs, the third respondent (developer) and the Trust for the commercial development of the game reserve on one of the Trust’s land, namely L[...]. The development was intended to include a five-star lodge with adjoining theme camps, 30 corporate private lodges, a resort development on a timeshare or other agreed basis, and a residential bushveld estate. The national Department of Land Affairs is said to have procured payment of discretionary and planning grants which are approved in favour of the Trust to the Developer in the sum of R17 377 980. 58. The developer was identified as a strategic partner of the Trust. Payments of R1 333 333.33, R4 405 064.91, R5 385 540.00 and R6 454 042.34 were made to the Developer on 21 December 2006, 12 April 2007, 24 April 2007 and 18 December 2007 respectively.

[64] The primary objectives of the development to procure considerable income for the Trust, which would result in a tangible, real and effective benefit to the restitution of the farmers to the land claimants. So, is the version of the Trust in these proceedings. The Department of Environment Affairs and Tourisms on 3 January 2007 granted an approval namely for visual impact, impact on heritage resources, economic feasibility and potential employment, loss of agricultural land, provision of civil services and the impact of the development on adjacent agricultural activities and conditional authority for development.

[65] As indicated earlier in this judgment the aim of the wildlife agreement under attack, was for the Trust to grant the first respondent and its members exclusive use in perpetuity over T[...] property for no consideration. It is contended that the first respondent in collaboration with the developer and suspended trustees of the Trust did not only intend to encumber the T[...] property in contravention of the Ebersohn’s order, but that it excluded the Trust and the beneficiaries from access to its land comprising of dam portion being a portion of Farm T[...] measuring 82ha.

[66] Based on what is stated in the preceding paragraphs, in paragraph 15.3.3 of its founding affidavit the applicant inter alia, alludes to the fact that the persons who were parties to the Wildlife Agreement and who negotiated and or signed same internationally

procured a subterfuge intended to procure additional traversing right and conceivably the second respondent and its members over T[...] property without the required approval by the competent authority or authorities, namely, the Department of Environmental Affairs & Tourism or Department of land claims and Restitution.

[67] It is not clear what the respondents’ defence is to this challenge. As I said, scanty response has been their stance. In paragraph 66.5 of his answering affidavit, Mr Chewins states that the fact that servitude over T[...] were not mentioned in a government approval and or statutory planning approvals in terms of either the DFA and or Township Ordinance, is simply because statutory planning approval is not registered in order to register a servitude. It is further contended in paragraph 66.6 of the answering affidavit that the fact that portion 2[…] of the T[...], is not mentioned in the shareholder’s agreement, is purely because the decision to include it in the Game Reserve was only taken after the wildlife agreement had been concluded. For this, it is said that the reason for a portion of T[...] now being included in the game reserve development is as a direct decision to move the low-level bridge from north of Lodwich Lust to north of T[...].

[68] In its replying affidavit, the Trust inter alia hit back as follows and contended that authorisation was in the circumstances, a necessary requirement and I tend to agree therewith:

“113. The Second Respondent blandly claims that the inclusion of Portion 2[…] T[...] (which has not been registered in the Deeds Registry) in the MGR was a decision jointly taken by the Third Respondent and the Trust. It does not however take into account that Sanparks was instrumental in the relocation of the bridge and that the Trust forfeited land within the Kruger National Park which was part and parcel of its land claim restitution. It further remains silent on the fact that in all the negotiations with Sanparks, it assumed the role of negotiator on behalf of the Trust, whilst the Trust was excluded. It was instrumental in attempts to extend the MGR at the expense of the Trust. It also fails to consider that the MIT have been suspended by the High Court, because of all their shenanigans and collusive dealings, which inter alia included agreements concluded with the Second Respondent”.

[69] Whichever way you look at each ground of attack against the wildlife agreement, its existence cannot stand the test of legality and ought to be set aside. The consequences of this finding is articulated in the respondents’ affidavit and in a somewhat concession mode as follows:

“49. The order sought, if granted, will have dire and far-reaching consequences, inter alia, in that members of the second respondent will be deprived of what they purchased (and paid for) and the founding affidavit is silent on this important issue.

50 Further, the order sought, if granted, will most likely result in the permanent closure of the low-level bridge and the re-establishment by SANParks of the KNP fence along the southern bank of the Crocodile River preventing the free movement of game from KNP into MGR. I refer to what I have explained above, in this regard as well as annexure “MC3”.

51 Should this occur, existing real rights over Lodwich’s Lust will be rendered all but meaningless and whilst the impact on the members of the second respondent and all staff employed on MGR will be potentially catastrophic, it will also:

51.1 lead to a drastic reduction in all MGR property values including the remaining residential properties not yet sold by Lugedlane and the Trust as shareholders thereof;

51.2 put an end to income earned from monies paid for using the low-level bridge; and

51.3 severely impact on the ability of the Mjejane Rive Lodge to attract both local and foreign tourists”.

[70] The focus in the quotation above appears to be mainly on the interests of the respondents and not much on the interests of those whose land has been returned to them. The lawfulness and enforceability of the wildlife agreement is the main issue in these proceedings. That being the case, the validity of the other agreements is dependent on the validity of wildlife agreement. Therefore, the suggestion that ‘the obvious reason for the shareholders of Lugedlane having agreed to incur the additional expenses of having the Portion 2[…] of T[...] subdivision surveyed and consolidated to the remainder of L[...] was in order to sell properties in the MGR development of L[...] …’, has to be seen in the context of the invalidity of the wildlife agreement. The suggestion that the subdivision of T[...] creating Portion 2[…] of T[...] and its consolidation with MGR reserve on the Remainder of L[...] is in fact mentioned in the statutory approval in terms of sub-division of Agricultural Land Act no of 1970 annexed as “MC21” and the applicant as land owner would have had to provide original planning with Power of Attorney authorising them to make this application…”, is of no consequence without the validity of wildlife agreement and without clear authorisation not dependent on wildlife agreement. I now turn to deal with the three other agreements under attack by the respondents. I deal with this before I deal with the two remaining preliminary issues raised by the respondents.

Servitude agreement

[71] This agreement was concluded on 14 September 2010 after Ebersohn’s order which was granted on 12 December 2008. In terms of this agreement the Trust through one of its trustee, Mr Silinda purportedly granted the first respondent permission to register a further notarial servitude on the Remainder of Portion 5[...] of the Farm T[...] 1[...]JU. At the same time, the Trust purportedly granted the first respondent and its members a servitude in perpetuity and exclusive use of the bridge area for no consideration.

[72] In paragraph 16.2 of the applicant’s (Trust) founding affidavit it is stated that as a servitude is undoubtedly an encumbrance, the agreement is prohibited by the order of Ebersohn AJ and that as such is void and ab-initio, alternatively that it stands to be set aside. The Trust’s case is that the Developer and the first respondent procured for themselves an exclusive right of way over the bridge to gain access to the Kruger National park. This according to the Trust further represented an unauthorised encumbrance of Trust property for no consideration and in contravention of the Ebersohn’s order. It is said, the respondents required a servitude over the T[...] property for their members to secure access to the bridge because Kruger National Park had received the bridge which was intended to be addressed via L[...] in a relocation of some sort.

[73] There are other grounds upon which the conclusion of servitude agreement is attacked. First, it is stated in paragraph 16.7 of the founding affidavit that the Power of Attorney signed by Mr Silinda was not supported and signed by a necessary majority resolution. Second, it is contended that the agreement was on the other hand contrary to the terms of the shareholder’s agreement. Based on all this, it contended that the agreement ought to be declared void ab initio or that it stands to be set aside.

[74] As one would have expected, the respondents simply do not have a defence to the contention by the Trust that the servitude agreement amounts to encumbrance. That being so, and the common cause being that the agreement in question was concluded on 10 September 2010, such an agreement was concluded contrary to the terms of Ebersohn’s order. On this ground alone, the servitude agreement ought to be reviewed and be set aside.

[75] As regards the power of attorney provided by Mr Silinda (one of the trustees), the respondents are in no position to deny that the facilitation of servitude agreement and notarial registration of such a right afforded to the respondents had no authority given by the majority of the trustees of the Trust. This should be seen as a fact that is not refuted. The deponent to the founding affidavit of the Trust namely Mr Zeelie as an appointed administrator of the Trust since 11 August 2020, puts it this way in paragraph 29 of the Trust’s replying affidavit:

“29. The Second Respondent complains that I have no personal knowledge of certain matters of which I deposed in my founding affidavit. Chewins has lost sight of the fact that I was appointed by the High Court on 11 August 2020 as administrator of the Trust. Whatever I have deposed of, came to my knowledge during my investigations into the affairs of the Trust. Chewins can likewise be criticised, as he was only appointed as a director of the Second Respondent on 26 August 2020. He is not a director of the First Respondent. In any event, I was advised that personal knowledge in the context of deposing to an affidavit, includes knowledge gained by studying documentation and reports of events that occurred and which is verified by the factual situation and corresponding documentation”.

[76] I tend to agree. In any case, the Developer (third respondent), the second and first respondents are parties to the servitude agreement. They are supposed to know better. Therefore, they cannot just content themselves with a bare denial of the assertions made against Mr Silinda having concluded the servitude agreement without the mandate of other trustees at the time. I therefore find that Mr Silinda in the conclusion of the servitude agreement acted ultra-vires his powers. The agreement is destined to be set aside also on this ground. I now turn to deal with another agreement.

Incorporation agreement

[77] This agreement concluded on 19 October 2018 between the Trust and the second respondent, is also the subject of a dispute in these proceedings. Here the Trust inappropriately represented by one of the suspended trustees, Silinda, so the contention is made, inter alia granted or attempted to grant authority for the consolidation of the Remainder of Portion 5[...] of the Farm T[...] 1[...] JU and L[...]. In addition, the agreement is said to have purported to procure approval for a new notarial servitude to be registered over the T[...] property, contrary to the provisions of the Trust Deed, the shareholders’ agreement and Ebersohn’s order. The agreement is said to have included a forte subterfuge whereby the second respondent undertook to promote social

and economic beneficiaries of greater Mjejane Game Reserve for the benefit of the beneficiaries of the Trust.

[78] The agreement and its terms is branded by the Trust as ‘…an undertaking that is nothing but a hallow commitment to patronise the Trust and its beneficiaries in an attempt to justify the unlawful further encumbrances of Trust Land. It is through this agreement that an obligation was procured against the Trust to maintain the dam at its costs and to comply with the prescriptive provisions of the National Water Act 36 of 1998. This provision according to the applicant (the Trust) is in direct contradiction of the provisions of the Wildlife Agreement whereby the first respondent undertook to perform this obligation”.

[79] The second and first respondents in their opposing affidavit appear to be more concerned about themselves than the beneficiaries of the Trust and the lawfulness of both the incorporation and the wildlife agreements. In paragraph 42 of the answering affidavit they move from the premise that the setting aside of the agreements will not only deprive all proposed members of the second respondent of what they were sold, and that they paid for at a premium, but will also have serious ramifications for both the Developer and the Trust. In paragraph 42.3 of the opposing affidavit, it is stated that should the Incorporation Agreement and servitude Agreement be set aside, it is likely that SANPARKS will cancel its various agreements in respect of the low-level bridge resulting in the permanent closure of the low-level bridge into the Kruger National Park and re-erecting a fence along the Southern bank of the Crocodile River. It is also contended by the second respondent that setting aside of the wildlife and incorporation agreement will negatively impact on Developer’s ability to achieve a reasonable return on the remaining stands yet to be sold in the development of the reserve.

[80] The first or second respondent cannot speak on behalf of the Developer who had elected not to actively participate in these proceedings. Whatever negative impact might arise, should be guided by the lawfulness or otherwise of the agreements under attack. The incorporation agreement is limited and dependent on the validity or lawfulness of both the wildlife and servitude agreements. I have already made a finding that these two agreements cannot survive the legality test and therefore neither can the incorporation agreement past the test. The agreement’s encumbrance of the Trust land through either the servitudes, wildlife agreement and its inconsistent clause with regard to the obligation on the Trust to maintain the dam, its costs and to comply with the provisions of National Water Act, should be found to be fatal for its lawfulness and enforceability. This agreement too has to be set aside.

[81] Correctly so, in paragraph 67 of the second respondent’s opposing affidavit, it is conceded that ‘the validity of this agreement is dependent on the outcome of an investigation of the wildlife agreement that was signed either on 2008 or 2009’. The statement is preceded by another statement in paragraph 67.1 of the opposing affidavit in which is stated that ‘the Incorporation Agreement was concluded between the second respondent and the Trustees of the Trustees of the Trust 2018, some ten years after the wildlife agreement was signed.

[82] One should also be worried by the second respondent’s statement that at the time the incorporation agreement was concluded, the second respondent was under the impression that the servitude agreement was in place when in actual fact it was not. The incorporation agreement similarly cannot pass the test of legality and or enforceability and it has to be set aside. I now turn to deal with the last agreement under attack.

The LD Agreement (“plan C”)

[83] What is referred to as LD Agreement was concluded on 28 March 2019. That is, more than 10 years after the order of Ebersohn. The second and the Developer (the third respondents) are signatories to the agreement. The agreement is said to have been intended to deal with the intended servitude over T[...] property. In terms of clause 3.12 of the agreement the parties are said to have agreed that if any of the so-called related agreements are cancelled, the LD

Agreement would also be cancelled. Therefore, any setting aside of the incorporation agreement, servitude and wildlife agreements

would mean the LD Agreement will also have to be set aside. It is the Trust’s contention that as a result of the clause

aforesaid, should any of these related agreements not be concluded and become perfecta, or should any of them be declared void or be set aside, LD Agreement will also cease to be enforceable, or become liable to be set aside.

[84] The purpose of the agreement is also seen as having been to reduce the ambit of the development on L[...]. This is contained in clause 3 of the agreement. The agreement is also said to have intended to provide an agreement whereby Erf […] is to be transferred in ownership to the second respondent. For this, it is contended that the conclusion of the agreement was to the detriment of the applicant and the first, second and third respondents are said to have in an opportunistic manner attempted to gain financial advantage to which they were not entitled to. The rights that the respondents obtained in respect of L[...] and the financing advanced by the State, were all subject to the Project approval conditions.

[85] What is stated above is contained in paragraph 18 of the Trust’s (applicant) founding affidavit. In seeking to deal with the attack by the applicant, the respondents appear again to be content with insufficient information. As a start, in paragraph 39.2.5 of the answering affidavit it is stated that “…addition subdivisions were created in ERF 3 being four new one hectare residential sites as agreed in the LD Agreement and Portion 6[…] ERF to effectively reduce the extent of the Remainder of ERF […], done unilaterally by Lugedlane (the third respondent)”.

[86] In paragraph 41.3 of the answering affidavit the respondents allude to the fact that LD Agreement has been substantially implemented and that should the LD Agreement be set aside; it must follow that the five recently approved sub-divisional diagrams will have to be withdrawn by the Surveyor General’s office and that it is anticipated that the developer (third respondent) is likely to be sued for damages at least by BushLands Tented Camp (Pty) Ltd. That might be so, but is of no relevance to the issue at hand and such a consideration should have no bearing on the findings that the agreement is illegal and or unenforceable.

[87] In dealing with paragraph 18 of the founding affidavit referred to earlier in this judgment, the second respondent in its opposing suggests that the deponent to founding affidavit for his attack, relies on his “understanding” and “interpretation” of the LD Agreement than on any fact. Of course the deponent in the founding affidavit alludes to the fact that amongst others, he has been legally advised and has acquainted himself with documentations relevant to the proceedings herein. The statement is then made by the first respondent as follows: “This paragraph (referring to paragraph 18 of the founding affidavit) is accordingly denied and it is denied that the applicant is entitled to the relief sought”. The statement above coupled with the suggestion that the LD does not encumber Trust property and is in full and final settlement of the development of the Reserve by the Developer, is disputed by the applicant in its replying affidavit, in particular that it had misconstrued the nature and effect of the LD Agreement.

[88] According to the applicant in its replying affidavit, the LD Agreement was concluded in an irregular manner without considering the rights of the Trust as a landowner and the detrimental effect thereof. Seen in context, it is contended that the development period raised in the second respondent’s opposing affidavit is defined as the development defence in the MO1 of the second respondent whereas the development is actually defined in the Articles of the First Respondent and is not over yet. For this, is contended that the second respondent has taken it upon itself to manage the rights and objectives of the First Respondent and unilaterally incorporated a “new definition” as the “Development period” which differs drastically with that of what is defined in the Articles of the First Respondent. The definition of the “development period” in the LD Agreement conveniently or intentionally is branded as having ignored the fact that such period was at the outset when the development commenced, meant to come to an end when 90% of the properties have been sold and developed.

[89] It is for this that is contended the First and Second Respondents connived by relying on the definition of the development period in the MO1 of the Second Respondent to justify an argument that such period had ended. I tend to agree. There is no need to go deeper into what is contended respectively as indicated in the preceding paragraphs. It suffices to mention that the LD Agreement cannot be implemented if any of the related agreements is set aside. The LD agreement on this ground alone should be reviewed and set aside. I now turn to deal with the remaining two preliminary issues raised by the second respondent.

Arbitration provisions

[90] In the wildlife agreement an arbitration provision is incorporated. Similarly, LD Agreement has arbitration clause. For this, it is contended by the second respondent that by agreement between the parties to the arbitration provision, excluded the jurisdiction of this court to deal with the issues in these proceedings. This contention is overtaken by any findings regarding the unenforceability of the two agreements and therefore the point in limine under discussion has to be dismissed.

Submission to the jurisdiction of the North Gauteng High Court

[91] It is contended by the second respondent that in terms of the Servitude Agreement the parties “irrevocably and unconditionally” submitted themselves to the jurisdiction of the North Gauteng High Court. For this, it is contended that this court does not have jurisdiction to deal with this case. The servitude agreement has similarly been found to be unenforceable and therefore none of its provisions can be relied upon. This point too has to be dismissed.

[92] Consequently an order is hereby made as follows:

91.1 The written agreements hereunder specified are hereby declared void, unlawful, illegal and are set aside and declared unenforceable:

91.1.1 The Wildlife Agreement concluded approximately on 31 July 2009 but dated 16 October 2008 (Annexure “MT7”) to the founding affidavit.

91.1.2 The Servitude Agreement dated 14 September 2010. (Annexure “MT8”) to the founding affidavit.

91.1.3 The Incorporation Agreement dated 19 October 2018. (Annexure “MT35”) to the founding affidavit.

91.1.4 The LD Agreement dated 28 March 2019 (Annexure “MT 10”) to the founding affidavit.

91.2 The first and second respondents and their members are hereby interdicted from entering onto or traversing the Reminder of Portion 5[...] of the Farm T[...] 1[...] JU, which farmland is owned by the Mjejane Trust without the written consent of the Applicant.

91.3 The applicant may approach this Court for judicial oversight, for approval of any agreements that it may conclude, which may encumber any of the Applicant’s properties.

91.4 The First and Second Respondents are hereby ordered to pay for the costs of this application jointly and severally the one paying, the other to be absolved.

DATE OF JUDGMENT: 17 NOVEMBER 2022 DATE HANDED DOWN: 08/03/2023 FOR THE APPLICANT ADV E L THERON SC / ADV G J BENSCH INSTRUCTED BY: DU TOIT-SMUTS ATTORNEYS LAW CHAMBERS VAN NIEKERK STREET NELSPRUIT TEL: 013 745 3200 REF: SA CILLIERS/jb/M7/21 EMAIL: mvdwesthuizen@dtsa.co.za FOR THE 1ST AND 2ND RESPONDENTS: ADV J DANIELS SC INSTRUCTED BY: BOWMAN GILFILLAN INC 11ALICE LANE C/O HOUGH BREMNER INC H&B LAW CHAMBERS 30 VAN RENSBURG STREET SONHEUWEL CENTRAL MBOMBELA TEL: 013 752 3177 REF; Mr C Paulsen/ab Email: annetjie@houghbremner.co.za Adam.anderson@bowmanslaw.com Jonathan.barnes@bowmanslaw.com Vivienne.jonker@bowmanslaw.com