Free state high court, bloemfontein republic of south africa



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FREE STATE HIGH COURT, BLOEMFONTEIN

REPUBLIC OF SOUTH AFRICA
Case No. : 1352/2011
In matter between:
KENOSI McDONALD MOROKA N.O 1st APPLICANT

MBUSELLWA ERIC RENS N.O 2nd APPLICANT

MBUSELLWA ERIC RENS 3rd APPLICANT

JAMES CALVERT 4th APPLICANT

GEORGE CALVERT 5th APPLICANT

PATRICK THEMBA MATLHAPE 6th APPLICANT

MATSHELISO FRANS MAHURA 7th APPLICANT
And

JOHN TSEDISO MAURA N.O. 1st RESPONDENT

MBUSELLWA ERIC RENS N.O. 2nd RESPONDENT

BOITUMELO PHILLIP MAHURA N.O. 3rd RESPONDENT

JOHN TSEDISO MAURA 4th RESPONDENT

BOITUMELO PHILLIP MAHURA 5th RESPONDENT

THOMAS HENDRIK MOLELEKOA 6th RESPONDENT

BONAKELE FLIP ENKELD 7th RESPONDENT

QWETH FLIP ENKELD 8th RESPONDENT

THE MEC: DEPARTMENT OF AGRICULTURE 9th RESPONDENT

FREE STATE PROVINCE

LETSEMENG LOCAL MUNICIPALITY 10th RESPONDENT

FIRSTRAND LIMITED t/a

FIRST NATIONAL BANK 11th RESPONDENT

HEARD ON: 4 AUGUST 2011

JUDGMENT BY: C.J. MUSI, J

_____________________________________________________
DELIVERED ON: 25 OCTOBER 2011

[1] On 23 March 2011 my brother Hancke, J issued the following rule nisi.


“1. The Respondents are called upon to give reasons, if any, on Friday, 15th April 2011 at 09H30, why the following order should not be made:

1.1 The business cheque account of the VUKANI MA-AFRIKA TRUST, IT 704/02, business cheque account no. 62117331900, held at FIRST NATIONAL BANK, KOFFIEFONTEIN, be frozen and that only deposits be accepted into the account, and that no monies be withdrawn out of the said account and no cheques be drawn against the said account, unless with the written authority of the First Applicant;

1.2 The sheriff of the High Court, Koffiefontein, be authorised and ordered to attach all the monies currently held in the account mentioned in prayer 1.1 supra, pending the re-organisation of the trust and the appointment of other trustees and/or beneficiaries;

1.3 The sheriff of the of the High Court, Koffiefontein, be authorised and ordered to attach all the assets of the VUKANI MA-AFRIKA TRUST, pending the re-organisation of the trust and the appointment of other trustees and/or beneficiaries, and to compile an inventory in this regard;

1.4 The decision of the First Applicant, to remove the First and Third Respondents as trustees of the VUKANI MA-AFRIKA TRUST, be confirmed;

1.5 The decision of the First Applicant, to remove the Fourth to Eight Respondents as beneficiaries of the VUKANI MA-AFRICA TRUST, be confirmed;



1.6 The First Respondents are ordered, jointly and severally, the one to pay the other to be absolved, to pay the costs of this application;”
[2] The applicants now seek confirmation of the rule nisi. The application is opposed by the first and the third to the eight respondents only. I will for the sake of convenience refer to them as the respondents. No relief is claimed against the ninth and tenth respondents. They are cited because they may have an interest in the subject matter of this application. The second respondent is cited in his capacity as a trustee of the trust. He is also the second applicant, as trustee, and the third applicant in his personal capacity. The eleventh respondent – First National Bank (the Bank) – is cited because prayers 1.1 and 1.2 of the rule nisi relates to it.
[3] During 1998 the Member of the Executive Council responsible for agriculture in the Free State Province (9th respondent) and the Letsemeng Local Municipality (10th respondent) established the Badira Mogo Project with the aim of enabling previously disadvantaged individuals to acquire and cultivate land in order to become self-sufficient.
[4] The third to the 7th applicants and the fourth to the eighth respondents were selected, after an interview and screening process, to participate in the project.
[5] On 18 February 2002 the Vukani Ma-Afrika trust (the trust) was established with the parties mentioned in the preceding paragraph as beneficiaries. The first applicant is the donor and the first, second and third respondents were trustees. The trustees were chosen by the beneficiaries.
[6] With the assistance of the ninth and tenth respondents the trust acquired assets worth approximately R2 173 000.00. All the beneficiaries, except the fifth applicant secured personal loans of R20 000.00 each from the Land Bank in order to start with the farming operations.
[7] There were disputes between the parties. The fifth, seventh and eighth respondents decided to run the affairs of the trust. According to the respondents the third to the seventh applicants were no longer actively involved in the activities of the trust. Meetings of the trust were not held regularly.
[8] On 29 July 2004 all the beneficiaries signed a beneficiaries’ constitution drafted and presented to them by representatives of the ninth respondent. They elected a management committee, in terms of the said constitution, consisting of the eight respondent (chairperson), the second respondent (vice-president), the seventh applicant (treasurer), the third respondent (secretary), the fourth applicant (deputy secretary), the first respondent (co-ordinator) and the third applicant (co-ordinator)
[9] On 29 March 2010 the Acting Director: Legal Services of the ninth respondent, Mr Makoko, wrote to the Bank informing it that the trust held a meeting on 24 February 2010 whereat a committee of the trust was elected. The members of the committee were as follows:

1. Frans Mahura: Chairperson (7th applicant)






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