JUDGMENT. [1] This is an unopposed appeal against a judgment of the magistrate s court,

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1 IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE, GRAHAMSTOWN) CASE NO.: CA327/2010 In the matter between: L R MALLINSON N.O. Appellant and M SLATERS Respondent JUDGMENT GROGAN, A.J.: [1] This is an unopposed appeal against a judgment of the magistrate s court, Pearston, in which the magistrate dismissed with costs on the attorney and client scale the appellant s application for orders authorising the sheriff to inter alia take possession of the immovable property situated at 40 Hudson Street, Pearston and to evict the respondent therefrom. [2] In a two line judgment, the magistrate found that the appellant lacked the necessary locus standi to conclude a contract for the purchase of the aforesaid property. After reasons were requested, the magistrate explained: Die hof se bevinding is dat Artikel 6 Wet 57 van 1988 van krag is by 1

2 die aanstelling van trustees. Die genoemde Article bepaal dat n person slegs as trustee mag optree nadat hy skriftelik deur die Meester van die Hooggeregshof daartoe gemagtig is. By gebrek van voorlegging van sodanige bewys beteken dit dat die applicant nie die nodige locus standi verkry het nie. Daar het gevolglik geen geldige koopkontrak onstaan. [3] The relevance of the koopkontrak to which the magistrate refers emerges from the background to the application, as set out in the founding affidavit deposed to by the appellant. The appellant launched the application as a trustee of the Len Roy Mallinson Trust. He states that the trust concluded a written contract with the respondent to purchase Erf 246, Pearston from the respondent against payment of R , with the trust to acquire occupation from the date of signature, being 22 May The appellant says the trust took occupation the following day, and subsequently paid the outstanding municipal rates and gave the respondent cement to the value of R as part of the purchase price. In December 2006, the trust paid a further R to the respondent. The trust renovated the house and rented it to tenants from May 2006 and May 2008, when the last tenant apparently left. The following month, the respondent moved back into the house, changed the locks, and remained in occupation. Hence the application that gave rise to this appeal. [4] The facts deposed to by the appellant were not denied by the respondent. Attached to her notice of opposition the application is an affidavit by an

3 attorney, Mr L Trichardt. The respondent did not herself depose to an affidavit. Mr Trichardt states that during a consultation during March 2008 the respondent informed him that she had earlier told another attorney that she wished to cancel the sale. Mr Trichardt said he formed the conclusion that the contract was invalid for a number of reasons. These were: (i) that the Appellant s estate had been finally sequestrated on 15 May 2008 ; (ii) that the Appellant lacked locus standi to represent the trust as trustee; (iii) that the trust had not been formed at the time of the sale; (iv) that the appellant s appointment as trustee had not yet been confirmed by the Master; (v) the appellant had not complied with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 ( PIE ). [5] In his written heads of argument, counsel for the appellant, Mr Koekemoer, concentrated in the main on the single ground on which the magistrate dismissed the application. Mr Koekemoer contends that the magistrate erred by dismissing the application on the basis that the sale agreement was invalid. This submission is correct. The appellant was seeking a mandament van spolie, which is a temporary possessory remedy (see inter alia Microsure (Pty) Ltd v Net 1 Applied Technologies SA Ltd 2010 (2) SA 59 (N) at 63H-J). The parties rights or lack thereof to the property prior to the alleged spoliation are immaterial to such applications (Tswelopele Non-Profit Organisation v City of Tshwane Metropolitan Municipality 2007 (6) SA 511 (SCA)). The applicant in spoliation proceedings need prove no more than: (i) that he or she was in possession of the property; (ii) that the respondent forcibly or by stealth wrongfully deprived him/her of possession without his/her consent (Pinzon Traders 8 (Pty) Ltd v Clublink (Pty) Ltd 2010 (1) SA 508 (ECD) at para. 5). 3

4 [6] The only defences which may be raised are to deny the alleged spoliation, to plead that it is impossible to effect restoration, or to plead counter-spoliation (Malan v Greem Valley Farm Portion 7 Holt Hill 434 CC 2007 (5) SA 114 (EC) at 124E). The facts before the magistrate proved that the trust was in possession of the property and that the respondent deprived it of occupation without its consent. The respondent raised none of the recognised defences. It follows that the magistrate erred by refusing the application solely on the ground that the sale agreement which underpinned the trust s ownership was allegedly void. [7] Mr Koekemoer deals in his written submissions, perhaps ex abandanti cautela, with the other points raised in the respondent s answering affidavit. I merely record our agreement with the submissions that the PIE does not apply in circumstances like these, where relatively affluent people deliberately take unlawful occupation of property. The respondent did not plead that she was of the indigent and vulnerable class of persons PIE was designed to protect (see Andries van der Schyff en Seuns (Pty) Ltd t/a Complete Construction v Webstrade INV No 45 (Pty) Ltd and others 2006 (5) SA 327 (W)). Similarly, and in so far as this may be relevant, although trustees may not conclude contracts on behalf of a trust before authorised to do so by the Master (vide s 6(1) of the Trust Property Control Act 57 of 1998), nothing precludes them from concluding agreements in anticipation of the trust being formed, as was done in this case (see, by analogy, Scheepers v Scheepers 1994 (3) SA 101 (A) at 107A-I, which confirmed a sale agreement concluded by directors of a company yet to be formed). [8] For these reasons, the appeal should succeed. However, since it raises a

5 matter that would alone have been fatal to the application, a further point set out in the respondent s opposing affidavit must be considered. This is that the appellant lacked locus standi in the true sense (that is locus standi in judicio) to launch the application on behalf of the trust. This point is raised in paragraphs 7 and 8 of the opposing affidavit, in which Mr Trichardt states: Dit het tot my kennis gekom dat die Applikant se boedel voorloopig op 17 April 2008 in die Hoe Hof te Grahamstad gesekwestreer is en die sekwestarsiebevel op 15 Meii 2008 finaal gemaak is... Ingevolge Artikel 58(a) van die Insolvensiewet Nr 24 van 1936, verval n person se bevoegdheid om as Trustee van n Trust op to tree, onmiddelik by die sekwestrasie van sy boedel. Dit blyk dus dat the Applikant nie die nodige locus standi gehad het om as Trustee van die LEN ROY MALLINSON TRUST op te tree of as Applicant in hierdie aansoek nie. (Court s underlining.) [9] The basis of this submission is that the appellant lacked locus standi because his estate had been finally sequestrated. That submission is incorrect. While s 58 of the Insolvency Act does provide that a trustee shall vacate office if his estate is sequestrated under this Act, trustee is defined in the Act as trustee of an estate under sequestration, which is clearly not the case here. Our concern, which was raised with counsel, is rather that the appellant failed in his founding affidavit to state that he had been properly authorised by his fellow trustees to institute action on behalf of the trust. The trust instrument requires that there must be at least three trustees at all times (clause 1.2), and that decisions of the trustees must be taken by majority vote of the trustees present at a properly convened trustees meeting (clause 8). The 5

6 appellant merely describes himself as n manspersoon and n Trustee van die Len Roy Mallinson Trust. He does not state that he was authorised at a properly convened trustees meeting to launch the application on the trust s behalf. Nor is such authority suggested by implication. Although the appellant cited as applicant nomine officio, the application was for all intents and purposes launched in his own name. Indeed, the appellant did not even refer to the trust deed to his founding, or annex it thereto. That instrument is annexed to the respondent s opposing affidavit. [11] I understood Mr Koekemoer to concede that the appellant should have furnished proof of his authority to institute action on behalf of the trust. He pointed out, however, that the respondent did not challenge the appellant s authority to bring the action on the basis that he had not proved his authority to do so and that, had that been done, the appellant could have dealt with that issue in reply. That may be so. But the fact remains that the appellant has not proved that he was authorised by the other trustees to bring the action. A person s standing to institute a particular action is a matter of law. This omission therefore goes further than mere failure to prove authority to depose to an affidavit, which frequently arises in practice (see, for example, East London Municipality v BKK Meats CC t/a Heinz Meats 1993 (2) SA 67 (E); Msunduzi Municipality v Natal Joint Municipal Pension/Provident Fund and others 2007 (1) SA 142 (N)). As Harms JA pointed out in a minority concurring judgment Gross & others v Penz 1996 (4) SA 617 (A): The general rule is 'that it is for the party instituting proceedings to allege and prove (my emphasis) that he has locus standi, the onus of establishing that issue rests upon the applicant. It is an onus in the true

7 sense; the overall onus...'. (Mars Incorporated v Candy World (Pty) Ltd 1991 (1) SA 567 (A) at 575H-I). The learned judge added: I am unaware of a rule of law that allows a court to confer locus standi upon a party, who otherwise has none, on the ground of expediency and to obviate impractical and undesirable procedures. [12] It is so that a trustee has authority to institute action to regain possession of trust property, and that it is no defence to say that the trustee is not personally entitled to enjoyment of the property (Cameron et al Honore s SA Law of Trusts (Juta 5 ed 2002 at 270, citing Moluele v Deschatelets 1950 (2) SA 670). However, unless one or more of the trustees are authorized by the others, all the trustees must be joined in suing (op. cit. at 419; Desai-Chilwan NO v Ross and another 2003 (2) SA 644 (C) at para. [10]. This proposition was confirmed and explained in Lupaccini NO & another v Minister of Safety & Security & another 2010 (6) SA 457 (A) at 499D-E: By the nature of the office of trustee the control and administration of the trust property vests in each trustee individually. It follows that where there is more than one trustee they must act jointly, unless the trust instrument provides otherwise. And because they have individual interests all must necessarily join in litigation concerning the affairs of the trust (though it seems that one trustee might authorise another to sue in his or her name). (See also Land and Agricultural Bank of South Africa v Parker and others 2005 (2) SA 77 (SCA), which deals with the locus standi of trustees where the requisite number have not been appointed.) 7

8 [13] The trust deed in this case does not provide that trustees may act independently. The appellant has not furnished independent proof that he was authorised by the other trustees to launch the application. The default legal position must accordingly apply. [14] I would accordingly dismiss the appeal, save to extent set out hereunder. [15] The magistrate awarded costs against the appellant on a punitive scale. There is no justification for that order in the judgment or in the magistrate s further reasons, and the respondent gives no reasons for her request for an order for costs the attorney and client scale. In my view there is none. On the face of the papers, there is no indication that the appellant was dishonest or vexatious, and the application was not frivolous. I would accordingly order the appellant to pay the respondent s costs in the proceedings a quo on a party and party scale. Since the respondent did not oppose this appeal, I would make no order of costs arising therefrom. J G GROGAN ACTING JUDGE OF THE HIGH COURT I agree. The appeal is dismissed, save to extent that the magistrate s order is amended to award costs to the defendant on the scale as between party and party.

9 J ROBERSON JUDGE OF THE HIGH COURT 9