Nkoana and Others v Maluleke N.N.O. and Others (5983/2021) [2022] ZAGPPHC 1048 (25 November 2022)

Editorial note: Certain information has been redacted from this judgment in compliance with the law.

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

DELETE WHICHEVER IS NOT APPLICABLE (1) REPORTABLE: YES/NO (2) OF INTEREST TO OTHER JUDGES: YES/NO (3) REVISED NO DATE:……..25 November 2022 SIGNATURE:.……………………

CASE NO: 5983/2021

In the matter between:

SELINA MMAZHAPELO NKOANA	FIRST APPLICANT
MPHO LUCY NKOANA	SECOND APPLICANT
M C LEDIGWANE	THIRD APPLICANT
N THABETHE	FOURTH APPLICANT
I MUDZWIRI	FIFTH APPLICANT
M MASINA	SIXTH APPLICANT
DR M POANE	SEVENTH APPLICANT
P PHIRI	EIGHTH APPLICANT
B NDLOVU	NINTH APPLICANT
R RESENGA	TENTH APPLICANT
J SESHOKA	ELEVENTH APPLICANT
T KEHITLHITLE	TWELFTH APPLICANT
T MATHEBULA	THIRTEENTH APPLICANT
AND
C V MALULEKE NO	FIRST RESPONDENT
C P NKOANA NO	SECOND RESPONDENT
T OLIVIER NO	THIRD RESPONDENT
E VAN SCHALKWYK NO	FOURTH RESPONDENT
J SNYMAN NO	FIFTH RESPONDENT
C SCHALK NO	SIXTH RESPONDENT
THE MASTER OF THE HIGH COURT	SEVENTH RESPONDENT
THE REGISTRAR OF DEEDS	EIGHTH RESPONDENT
FIRST NATIONAL BANK	NINTH RESPONDENT

Coram: Millar J Heard on: 21 November 2022 Delivered: 25 November 2022 - This judgment was handed down electronically by circulation to the parties' representatives by email, by being uploaded to the CaseLines system of the GD and by release to SAFLII. The date and time for hand-down is deemed to be 10H00 on 25 November 2022. Summary: Application to freeze bank accounts of the Trusts pending accounting by trustees – applicants neither beneficiaries nor trustees having any direct legal interest in the affairs of the respective Trusts – neither the prior holding of the office of trustee in a trust nor being within a class of persons who may be nominated as a beneficiary confer locus standi – unless holding office as a trustee or until exercise of trustees discretion and nomination as beneficiary, no direct legal interest in the affairs of the Trusts – application dismissed with costs.

ORDER It is Ordered: 1. The application is dismissed. 2. The 1st to 13th applicants are ordered to pay the respondents costs jointly and severally, the one paying the others to be absolved. 3. The costs are to be paid on the scale as between party and party and are to include the costs consequent upon the employment of senior counsel.

JUDGMENT

MILLAR J

1. This is an application in which the applicants seek various orders against the 1^st to 6th respondents who are the trustees for the time being of the Nkoanyana Trading Trust¹ (“the Trading Trust”) and the TS Nkoana Legacy Trust² (“the Legacy Trust”). None of the other respondents have opposed the application.³ The present application is interlocutory to the main application brought under the present case number and in which is sought inter alia the removal of the trustees of both Trusts.

2. The orders sought in the present application are to join the 5^th and 6^th respondents in their capacity as trustees and also to join the 9^th respondent in the main application. Besides the joinders, the applicants also seek an order freezing the bank account of the Trading Trust and orders to compel an accounting and disclosure of financial and management reports for the years 2019 to 2021 for both trusts, to the applicants.

3. The applicants have also specifically sought an order that the Trusts give account of various specific transactions entered into by them over the period 1 December 2021 up to 17 January 2022. In addition they also sought an order compelling the Master to exercise his powers in terms of section 16⁴ of the Trust Property Control Act⁵ in the event of non-compliance by the respondents with any order compelling them to account in the terms requested and in addition, that the Master deliver a report to the court in which it is indicated whether or not there any such accounting was satisfactory.

4. This application turns on 2 issues – firstly whether the joinder of the 5^th, 6^th and 9^th respondents should be granted and secondly, whether the applicants have locus standi⁶ to seek the orders that they do against the Trusts.

5. For convenience I propose dealing with the second issue first. Both Trusts were established by the late Tsakane Stanley Nkoana. Both Trusts are inter linked with the legacy Trust being the sole beneficiary of the trading Trust⁷.

6. Clause 1.1.2 of the Legacy Trust defines “the beneficiaries” as follows:

“1.1.2 the beneficiaries" means that person or other persons who may from time to time be selected by the Trustees in their entire and absolute discretion to be a beneficiary in respect of the income or capital profits or capital gains or capital or either under the Trust, from amongst the members of the classes consisting of:-

1.1.2.1 Tsakane Stanley Nkoana (Id no: […]);

1.1.2.2 Mpho Lucy Nkoana (Id no: […]);

1.1.2.3 Selina Mmazhapelo Nkoana (Id no: […]);

1.1.2.4 Khutso Nkoana (Id: […]);

1.1.2.5 Keatlegile Nelly Nkoana (Id no: […]);

1.1.2.6 Paballo Nkoana (Id no: […]);

1.1.2.7 Koano Onalerona Nkoana (Id no: […]);

1.1.2.8 Tumisho Nkoana (Id no: […])

1.1.2.9 Halamalani Nelfy Nkoana (Id no: […]);

1.1.2.10 The biological descendants of the beneficiaries set out in

1.1.2.1 to 1.1.2.8;

1.1.2.11 Any Trust established for the benefit of any of the aforementioned;

1.1.2.12 Failing the existence of any members of the classes set out in the sub-classes supra, only in the event, only in that event, the nearest blood relatives of the Founder;.

7. From what is set out in paragraph 6 above, the 1^st and 2^nd applicants are reflected as potential beneficiaries of the Legacy Trust. In respect of the 3^rd to 13^th applicants, these are all tenants of properties owned by the Trusts who purport to have an interest in the affairs of the Trusts. Self-evidently, their tenancy and matters related to it do not confer upon them any right to any of the orders sought in this application⁸.

8. When the application was argued, counsel for the applicants asserted that the 1^st and 2^nd applicants had a “vested” or “contingent” interest in the affairs of the Trusts by virtue of the fact that they were named as potential beneficiaries of the Legacy Trust. Their interest in the Trading Trust was predicated upon this “vested” or “contingent” interest in the Legacy Trust qua sole beneficiary of the Trading Trust.

9. It was common cause:

9.1 that the trustees of the Legacy Trust did not until 14 February 2022 exercise the discretion⁹ conferred upon them in the Trust Deed to select from amongst the list of potential beneficiaries, the beneficiaries of the Legacy Trust.

9.2 that when the beneficiaries were selected by the trustees, these did not include either the 1^st or 2^nd applicants or any of their biological descendants.

10. It was argued for the 1^st and 2^nd applicants that given the formulation of clause 1.1.2 of the Legacy Trust¹⁰, that they and their minor children, by virtue of their falling within a “class” of beneficiary, had an interest in the Trusts and on that basis the trustees owed them a fiduciary duty.¹¹

11. The 1^st and 2^nd applicants previously served as trustees of the Trusts before they were removed by order of court. They and their minor children find themselves listed amongst the potential beneficiaries of the Legacy Trust. However, inasmuch as they are listed as potential beneficiaries, the Trust specifically provides that the actual beneficiaries would only be those, selected from the list referred to in paragraph 6 above, who the trustees in their “entire and absolute discretion” selected. Absent a selection by the trustees¹², none of the persons referred to in clause 1.1.2 of the Trust Deed can claim any right to any benefit from the Legacy Trust and it must follow, that if they have no right, they have no interest¹³.

12. I was referred to Bouwer NO v Smit¹⁴ in which it was held:

“Even if an applicant did not have an interest in the trust property, he could still have locus standi by virtue of the common law if he had a sufficiently direct interest in the subject matter of the litigation”

13. The 1^st and 2^nd applicants argued that the resolution of 14 February 2022 constituted an attempt to amend the trust and that since they were potential beneficiaries, such amendment was impeachable. I was referred to Potgieter v Potgieter and Another¹⁵ in which it was found that where there was any right, whether vested or contingent, an attempt to amend the trust deed would necessarily affect the interests of the holder of that right and that this may constitute an ‘interest’.

14. This argument is without merit. On a plain reading of clause 1.1.2 of the Trust Deed, it is readily apparent that the persons referred to in that clause, referred to as “classes” were intended to comprise a list of those in respect of whom the trustees were to exercise their discretion in deciding who the beneficiaries of the Trust would be. Furthermore, the resolution of 14 February 2022, is in its terms¹⁶, an exercise of the discretion conferred upon the trustees to select beneficiaries and does not evince an intention to amend the Trust Deed. For this reason the decision in Potgieter is clearly distinguishable.

15. It was argued for the respondents that, besides the fact that the trustees had not appointed any beneficiaries until the resolution of 14 February 2022, the mere fact that the 1^st and 2^nd applicants had themselves been trustees did not confer upon them the status of beneficiaries who had accepted a benefit and now had a legal interest that was cast in stone in consequence. Any acceptance would have had to have been predicated upon a nomination in terms of clause 1.1.2 to have been made first¹⁷.

16. The entirety of the case of the 1^st and 2^nd applicants hangs upon the peg of their having been named amongst the classes of persons from whom the beneficiaries of the Legacy Trust would be selected, together with their having previously acted as trustees of that Trust.

17. Having regard to the plain meaning of clause 1.1.2, the failure of the trustees (which included the 1^st and 2^nd applicants while they were trustees) to exercise their discretion and nominate beneficiaries does not transmute the persons named within the category of those who could be selected as beneficiaries, into beneficiaries. Furthermore, the office of trustee is a fiduciary one which is separate and distinct from being a beneficiary and the holding of such office similarly does not transmute the trustee into becoming a beneficiary.

18. For the reasons set out above, I find that neither the 1^st nor the 2^nd applicant, properly considered, can be regarded as beneficiaries of the Legacy Trust. Since they are not beneficiaries, they have no legal interest in the affairs of the Trust and have none of the rights (contingent or vested or otherwise) conferred upon either beneficiaries or trustees in terms of section 19 of the Trust Property Control Act to demand an accounting.

19. It follows that the present application cannot succeed. Furthermore, and as regard the first issue - absent locus to bring the present application, the application for the joinder of the 5^th, 6^th and 9^th respondents must also fail as must the order for the freezing of the bank account.

20. In regard to the question of costs, this is a discretionary matter. I see no reason to depart from the usual principle that the costs must follow the result. I would mention that although the 3^rd to 13^th applicants have played no role in the determination of the present application and for the reasons set out above, themselves had no locus standi, they have associated themselves with the case for the 1^st and 2^nd applicants and ought to bear the costs equally with them.

21. In the circumstances, it is ordered:

21.1 The application is dismissed.

21.2 The 1^st to 13^th applicants are ordered to pay the respondents costs jointly and severally, the one paying the others to be absolved.

21.3 The costs are to be paid on the scale as between party and party and are to include the costs consequent upon the employment of senior counsel.

_____________________________

A MILLAR

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

HEARD ON: 21 NOVEMBER 2022

JUDGMENT DELIVERED ON: 25 NOVEMBER 2022

COUNSEL FOR THE APPLICANTS: ADV. PA VENTER

INSTRUCTED BY: VZLR ATTORNEYS.

REFERENCE: MR. T FARI

COUNSEL FOR THE 1^ST,2^nd,5^th& 6^TH RESPONDENTS: ADV. PG CILLIERS SC

INSTRUCTED BY: ALBERT HIBBERT ATTORNEYS

REFERENCE: MR. A HIBBERT

No Appearance for the 3^rd, 4^th, 7^th – 9^th Respondents