The Supreme Court of Appeal has struck a blow to a community of land claimants embroiled in a bitter power struggle, ruling that the voting process and a general meeting it held two years ago was unlawful and irregular.

Acting judge of the appellate J W Eksteen was presiding in a matter involving the Mamphoku Makgoba Community Trust’s meeting held on 12 January 2019. The community lodged land claims on 39 farms in the picturesque Makgobaskloof area of Limpopo.

Eksteen found that a presence of persons not listed as beneficiaries in the register was irregular and the acceptance of votes by ‘proxy’ on behalf of absent beneficiaries was in breach of the trust deed.

On 4 December 2018 the Limpopo High Court ordered the first and second respondents (the independent trustees), Maponya Lazarus Ledwaba and Gisela Stols to convene, and hold a general meeting of the Mamphoku Makgoba Community Trust for the purpose of nominating and appointing a new board of trustees for the trust.

A meeting was convened and held pursuant to the order and a new board of trustees was appointed. However, Thetele Joseph Malatji, who was both a beneficiary and a trustee, contended that the constitution of the meeting and the elective process followed were irregular and in breach of the trust deed and the 2018 order.

Malatji brought the court action in the appeal court against 20 respondents including members of the claimant community and vairous government departments.

He applied to the Polokwane High Court to set aside the election. The application was opposed and the opposing respondents raised a number of points in limine.

The controversy leading to the 2018 order and to the present follows a dispute after members of the Makgoba community had lodged a number of land claims with the Land Claims Commissioner in terms of the Restitution of Land Rights Act 22 of 1994, whereby they laid claim to 39 farms in the Magoebaskloof area in the Limpopo.

The trust was established in order to take transfer of the farms in due course, to hold them and to develop them for and on behalf of the beneficiaries of the trust.

However, Malatji’s reasons to lodge a complaint with the high court ranged on the complications of proxies, and that the election was not fair and democratic.

This, he contended, was so because each beneficiary was allowed to cast only one vote-in-toto, instead of being permitted one vote in respect of each vacant post (fourth issue).

Eksteen considered the method of voting adopted by the meeting. The 333 votes, of which approximately 100 were by proxies, were cast.

“By virtue of the ruling that each attendee was entitled to cast only one vote, there were no trustees appointed with the support of the majority of the attendees,” Eksteen said in his ruling.

The court heard that in some instances trustees were appointed who had secured less than 10 votes. The independent trustees contended that the trust deed was silent in respect of the manner of election and that they were therefore entitled in their discretion to adopt the methodology they applied, to which the judge declared such assertion as incorrect.

“[The] 15.5 of the trust deed provides for notice to be given of a general meeting. It requires the notice to state that a decision of a simple majority of beneficiaries at the meeting shall be considered the decision of the beneficiaries”, read the judgment.

Eksteen said the invitation distributed by the independent trustees omitted this requirement of the trust deed.

The court heard that what the trust deed envisaged was that all beneficiaries present at the meeting would be entitled to cast one vote in respect of each appointment which was to be made and that -only if a candidate secured a majority of the votes could they be appointed.

It followed that none of the trustees was validly appointed, a reason why the judge ruled the fourth issue in favour of Malatji.

“The letters of authority issued by the third respondent to the elected trustees are reviewed and set aside in terms of section 23 of the Trust Property Control Act 57 of 1988 and the third respondent is directed to issue letters of authority to the first and second respondents.

“The first and second respondents are therefore directed to continue to act as the only trustees of the trust and to convene and hold a general meeting of the trust within 60 calendar days of the date of this court order. This is for the purposes of nominating and appointing a new board of trustees who are eligible to stand for election in terms of the trust deed; and give notice of the meeting at least 14 days before the meeting in accordance with clause 15.5 of the trust deed.”

Eksteen upheld the appeal with costs including the costs of two counsels.

“The issue must accordingly be resolved in favour of Mr Malatji”, said Eksteen.

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