IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATHSWANA PROVINCIAL DIVISION)

CASE NO: 2443/2007

SHABEER NOOR MAHOMED 1st ApplicantZAFER SHAIHNAG 2nd Applicant ZAID GULAMMOHMED JOGIAT 3rd ApplicantABDUL AZIZ MUSSA 4th ApplicantABDUL AZIZ OMAR 5th Applicant

and

THE TRUSTEES OF THE MOHAMMEDAN 1st and 2nd

COMMUNITY OF MAFIKENG TRUST RespondentsTHE MAFIKENG MUSLIM ASSOCIATION 3rd RespondentTHE MEMBER OF THE EXECUTIVE 4th, 5th, 6th

COMMITTEE OF THE MAFIKENG and 7th

MUSLIM ASSOCIATION Respondents

CIVIL MATTER

DATE OF HEARING : 19 JUNE 2008DATE OF JUDGMENT : 03 JULY 2008

COUNSEL FOR THE APPLICANTS : ADV PISTOR SCCOUNSEL FOR THE RESPONDENT : ADV BAVA

JUDGMENT

HENDRICKS J

[A] Introduction:-

[1] This is an application for the appointment of administrators in

respect of a trust known as the “Mohammedan Community of

Mafikeng Trust” (hereinafter referred to as “the Trust”) with the

following powers and duties:-

[i] to take possession and control of all assets, documents

and accounts (including bank accounts) of the

Mohammedan Community of Mafikeng Trust and of the

Mafikeng Muslim Association and to collect all debts,

monies or income due to the said Trust and Association

and to determine and discharge the liabilities thereof;

[ii] to institute proceedings in any court of competent

jurisdiction and to prosecute to completion any action for

the recovery of debts due to the said Trust and

Association;

[iii] to operate for and on behalf of the said trust and the said

Association all bank accounts presently in the name of

the said Trust and in the name of the said Association;

[iv] to pay the liabilities of the said Trust and Association;

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[v] to apply to this Court for special directions if the said

Administrators are not satisfied with the information

supplied by either the said Trust or the said Association in

the event of encountering any special difficulty

and

[vi] to conduct such an investigation that in the opinion of the

Administrators might be necessary in order to enable

them to file a report to the registrar of this Honourable

Court in terms of the said Court order.

[2] The circumstances under which these administrators must be

appointed are:- where there are no trustees anymore for the

Trust, the management of the Trust was taken over by non-

trustees, the assets of the Trust are mismanaged and there is

non-compliance with certain relevant statutory provisions.

[B] Historical background:-

[3] Prior to 1919, a voluntary association was formed for the

Mohammedan community of Mafikeng. The Mohammedan

community of Mafikeng acquired property in Mafikeng and

established a mosque for purposes of practicing their faith,

being Islam.

[4] On 15 March 1919, a trust deed was drawn up on behalf of the

Mohammedan community of Mafikeng in terms whereof

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trustees were appointed to maintain the mosque that had been

established in Mafikeng for the benefit of the community and

worshippers who attended the mosque.

[5] On 07 March 1944 the trust deed was amended, which

amendment was notarial effected. In terms of the amendment,

trust fund styled “The Mafikeng Indian Mohammedan

Community Trust Fund” was established for the purpose, inter

alia of raising funds for the upkeep, maintenance and

administration of the mosque.

[6] In terms of the amendment to the trust deed, a banking account

was to be opened in respect of the newly established trust fund

and all books of account, records and papers were to be kept

by a treasurer, available for inspection by the then trustees

appointed as contemplated by the trust deed as amended.

[7] A general meeting of the Mafikeng Muslim community was held

on 24 March 1987. The members present resolved that a

constitution for the Association, the Mafikeng Muslim

Association (“MMA”) be adopted.

[8] The important provisions of the Constitution are the following:-

[8.1] the aims and objectives of the MMA are to maintain the

mosque and central madressah (Islamic school) for the

Mafikeng Muslim community;

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[8.2] the MMA would be administered by a board of trustees

and executive committee;

[8.3] the trustees would hold office for life;

[8.4] an executive committee comprising of 8 elected members

would be responsible for transacting all the affairs of the

MMA, except those specifically entrusted to the board of

trustees, provided that any decision regarding the

extension of leases and the determination of rentals to be

charged on the MMA’s fixed property would be taken

jointly by the executive committee and the board of

trustees, or a majority of them, should there be a

difference in opinion;

[8.5] the executive committee would cause to be kept such

accounts, entries, registers and records as are necessary

for the proper functioning of the MMA;

[8.6] the financial statements would be made up at the end of

each financial year, being 31 December, in accordance

with accepted accounting practice;

[8.7] the auditor of the MMA would have access to all books,

records and documents of the MMA and would report in

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writing on the financial statements in accordance with

accepted accounting practice;

[8.8] the revenue of the MMA would be used, after providing

for expenses of administration, only for carrying out the

objects of the MMA;

[8.9] all monies received on account of the MMA would be paid

into a banking account. All expenses of the MMA would

be paid by cheque. All cheques would be signed by two of

the following persons: the chairman, the secretary or the

treasurer;

[8.10]an annual general meeting of members would be held not

later than 31 March each year to inter alia receive and

consider the financial statements for the year ended on

the previous 31st day of December together with the

report of the auditor thereon;

[8.11]the Constitution repealed any previous Constitution, deed

or other document pertaining to the MMA.

[9] In terms of the Constitution, the MMA shall consist of “ordinary”

and “registered” members. Every member of the congregation

(being in essence all Muslim persons over the age of 16 and

who attend all or some of the daily prayers at the central

mosque and/or who regularly attend the Friday prayer at the

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mosque), irrespective of race or colour shall have a voice at

any general meeting of the MMA.

[10] This constitution was however never adopted. In the result, no

amendment to the trust deed with regard to the appointment of

trustees or to the powers and control of the trustees over trust

property could legally be effected. The MMA continue to

operate and took control over the administration of the trust

properties.

[11] Since then, there have been warring factions within the

Mafikeng Muslim community seeking to gain control of the MMA

and thereby control over its fixed assets. Those fixed assets,

as a matter of interest, include in addition to the mosque,

certain valuable and ideally located properties (which comprises

of 5 stores situated at corner Molopo and Carrington Street,

Mafikeng town) that are currently being leased and is thus a

substantive source of income for the MMA.

[12] The financial position of the MMA has been the source of

considerable debate between the MMA and some members of

the Mafikeng Muslim community. This debate has spanned for

over a decade. Unfortunately, and notwithstanding the various

attempts to amicably find common ground, the financial status

of the MMA remains a concern.

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[13] The Applicants represents the group known as the Concerned

Muslim Group (“CMG”). Numerous meetings were held

between the MMA and the CMG. By 2002, matters had come

to a head, when the respective parties employed legal

assistance. Letters from attorneys were exchanged.

[14] The involvement of legal representatives on either side

ultimately led to negotiations between the parties in June 2003,

when an agreement was reached between both the MMA and

the CMG to establish an interim committee. This interim

committee comprised of members from each party and was

responsible for ensuring that the books of account of the MMA

would be brought up to date and audited.

[15] In this regard, the parties went so far as to appoint a mediator,

Professor Bootha, to try and amicably resolve the impasse that

had generated such friction and hostility in the past. Various

meetings were held under the auspices of Professor Bootha in

order to achieve direction and understanding of the financial

status of the MMA.

[16] Unfortunately, the MMA did not see itself amenable to handing

over “executive power to an interest group”. It proposed

instead that the MMA be enhanced by an additional four

members, two nominated by either party.

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[17] On 7 July 2003, Professor Bootha advised both the MMA and

the CMG in writing that despite negotiations between the

parties, significant progress had not been made, as both sides

were bogged down on issues that had no relevance to the

ultimate goals and objectives sought to be achieved. Professor

Bootha suggested that an annual general meeting be held

where a new executive be elected and that financial and other

records of the MMA be brought up to date before that meeting.

[18] By July 2003, negotiations and discussions between the two

groups failed dismally. On 16 July 2003, Professor Bootha

expressed in writing, his deep disappointment of the conduct of

both parties. In a lengthy letter addressed to both, he criticised

the CMG for being unfocussed and inconsistent with what they

stood for. He also criticised the MMA for failing to account to

the Mafikeng Muslim community stating that:-

“It is no secret that the current MMA executive has never

operated through a Constitution, and over the past few years

has been unable to account to the community. The MMA has

also failed to call a general meeting or hold elections for the

past four years. Unofficial reports indicate that the association

has accumulated a large debt, which ultimately is the

responsibility of the Muslim community. Despite undertakings

given, in all their years in power, they have failed to come up

with a Constitution. With some of their members having

personal interests, being landlord and tenants at the same time,

they ignored the basic principles of good governance.”

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[19] Professor Bootha in the aforementioned letter also pointed out

that the MMA had given an undertaking that an annual general

meeting (of the MMA) would take place on 19 September 2003.

It was envisaged that at that meeting, the MMA and its trustees

would be called to account and that proper audited statements

of the MMA would be available for consideration and debate.

[20] Unfortunately, this annual general meeting did not take place.

Neither was financial statements prepared or made available.

[21] In the result, the Applicants, as part of the CMG, had no choice

but to seek redress from this Court in the form of an order

mandating the Respondents, (as the Executive members of the

MMA) to furnish the Applicants with the financial statements of

the MMA for the preceding six financial years (2000 to 2005

both included). An order to that effect was granted on the 29th

March 2006 under case no. 1364/05.

[C] Points in limine :-[22] Certain points in limine were raised at the hearing of the

application. I ordered that the points in limine be argued

together with the merits of the application because they are so

closely related and intertwined with the merits. For the sake of

completeness I will deal with the points raised.

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[a] No cause of action:-

(i) It was submitted on behalf of the Respondents that

the Applicants failed to make out a case in their

founding affidavit for the relief they seek in that:-

“12.1 they fail to indicate why the election of trustees as

envisaged in the trust deed is not an option that

should be pursued;

12.2 in fact, the Applicants do not make out a case at

all as to why administrators should be appointed

instead of trustees being elected;

12.3 the Applicants do not satisfy the requirements or

proving that the election of trustees is not

possible;

12.4 the Applicants do not satisfy the requirement,

either by allegation or fact, that it would be more

beneficial for the beneficiaries, which includes the

Respondents, to have administrators appointed

as opposed to having trustees elected.”

(ii) It was contended that the trust deed is prescriptive

where there are vacancies in respect of the trustees

of the Trust. It is common cause that there are no

trustees and no one who can act as trustee for or on

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behalf of the Trust. I will later on in this judgment

deal with the MMA. There is no merit in the

submission that the Court will not appoint trustees

where there are vacancies “until there is

uncontrovertible proof that the beneficiaries have

exercised the remedies and procedures prescribed

by the trust deed itself”. Though the trust deed

prescribes the procedure for the appointment of

trustees when there are vacancies, there is nobody

who can lawfully oversee the process. I am

therefore of the view that this point in limine cannot

succeed.

[b] Dispute of fact:-

(i) It is contended by the Respondents that there are

serious disputes of fact on the papers (affidavits and

documents). Reference is made to the founding

affidavit of the Applicants which indicate that there

exist disputes amongst the members of the Muslim

community with regard to inter alia the financial

management of the Trust.

(ii) It seems to me that the Respondents confuse the

dispute that exists in the community with a real

dispute of fact on the papers. There is in my view

no serious dispute of fact on the papers that will

have the effect that the matter cannot be resolved

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on the papers. It will become clearer later on in this

judgment when the merits of the application is dealt

with, as to why I am holding this view. However, I

am satisfied that there are no real dispute of fact to

the extent that I cannot decide the matter on the

papers before me. Hence, I am of the view that this

point in limine cannot be upheld.

[c] Failure to serve on the Master:-

(i) At first, service of this application was not effected

on the Master of the High Court, but it was done

subsequently. Though it is important to effect

service on the Master, the failure to do so is not so

crucial that subsequent service cannot be condoned

by this court. In fact, as will appear later on in this

judgment, there is no proof that the Trust is

registered with the Master of the High Court.

(ii) In addition thereto, it must also be borne in mind

that there are presently no trustees for the Trust.

Service on the Master would not have the effect that

trustees (or interim trustees) be appointed or for the

Master to comment on the suitability of nominees

for their appointment as trustees. I am of the view

that this initial oversight can be condoned and was

in fact rectified by the subsequent service that was

effected.

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This in itself, is not so crucial that it warrants the

dismissal of the application solely on this point

which was raised in limine.

[d] Defective Notice of Motion:-

(i) It is clear from the notice of motion that the

application would have been set down for hearing

on 31 January 2008. The application was filed with

the office of the Registrar on 06 December 2007

and served on the Respondents on 10 December

2007. The notice indicates that an interim order is

prayed for. The return date of the rule nisi is also

indicated as 31 January 2008. This cannot be

correct.

(ii) Though one may think that the intention must have

been that the matter be treated as an urgent

application, it can never be that the return date of

the rule nisi is the same as the date of issuing of

the interim order. This must have been a mistake

on the part of the Applicants. Be that as it may, the

notice of motion indicate that the Respondents were

afforded the opportunity to notify the Applicant’s

attorneys in writing of their intention to oppose this

application on or before 20 December 2007 and to

file their answering affidavit within fifteen days after

giving such notice. The Respondents conveyed

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their intention to oppose this application on 14

December 2007.

(iii) On the cover of the court file, it is indicated that on

31 January 2008 the matter was postponed sine

die (though the date on the order signed by the

Registrar is reflected as 17 January 2008 and on

the draft order as 29 January 2008). Be that as it

may, in terms of the draft order marked “LGL”

attached to the court order, Respondents were

given until 15 February 2008 to file their answering

affidavits, which they did. The Applicants filed their

replying affidavits and the matter was eventually set

down for hearing on 19 June 2008.

(iv) It is now apparent that the relief which the Applicant

seek is final in nature and no longer interim relief.

Seeing that the opportunity was presented to the

Respondents to file their answering affidavits, no

prejudice was suffered by them as a result of the

defect in the dates mentioned in the notice of

motion. This in itself does not warrant the dismissal

of the application on this point which was raised in

limine.

(v) Adv Bava on behalf of the Respondents, also

submit that the relief claimed in the first paragraph

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of the notice of motion is non-sensical. The

paragraph read thus:-

“That, pending the final outcome of this application, the

Trustees of the Mohammedan Community of Mafikeng Trust

and the Members of the executive committee of the

Mafikeng Muslim Association are interdicted from disposing,

alienating or encumbering any of the assets of the said Trust

and of the said association, save in so far as such actions

are reasonably necessary for the daily execution of the

business of the said Trust and association.”

(vi) His submission is that it amounts to a contradiction

in terms that on the one hand the trustees of the

Trust and the members of the executive committee

of the MMA are interdicted from disposing,

alienating or encumbering any of the assets of the

trust and the association, whilst on the other hand

they are allowed to do so in so far as such actions

are reasonably necessary for the daily execution of

the business of the said Trust and association.

(vi) This in my view is not a contradiction per se. It

seems to me that allowance is made for the daily

running of the affairs of the trust or association.

Sight should not be lost of the fact that what was

intended to be asked as relief from this Court was

supposed to be on an interim basis. Hence it is

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indicated that this was supposed to be the situation

“pending the final outcome of this application”.

Furthermore, it was intended that a rule nisi be

granted though there is a mistake with regard to the

return date, in that, the same date of the hearing of

the application is given as the return date of the

rule nisi (31 January 2008).

(viii) It became clear during argument that final relief in

the form of the appointment of administrators is

what is requested. This means that the interim relief

is no longer required. Therefore, paragraph 1 of the

notice of motion can for all intends and purposes be

disregarded, if the administrators are appointed. I

am of the view that it serves no purpose to be over

technical about an issue such as this one. It does

not at all warrants the dismissal of the application as

submitted by counsel for the Respondents.

[e] Improper citation of the trustees and the Fourth, Fifth,

Sixth and Seventh Respondents:-

(i) It is submitted on behalf of these Respondents that

they were incorrectly cited. They are not cited in

their official capacity as nominii officii of the Trust

but in their personal capacity. At first glance, it

would seem that there is merit in such a submission

but that is not the case in the present application.

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As it will emerge later on in this judgment, the

Fourth, Fifth, Sixth and Seventh Respondents are

not trustees of the Trust.

(ii) Seeing that the MMA did not adopt their 1987

constitution, these Respondents were not

legitimately elected in terms of that constitution and

again, as it will become clear later in this judgment,

they are not acting in terms of that constitution.

Even if they were lawfully elected, the constitution

(which was in any event never adopted) limits their

period as executive members of the MMA to two (2)

years. On their own version, they are way beyond

this period. Furthermore, on Respondents own

version, there seems to be confusion as to whether

or not they are trustees of the Trust or trustees of

the MMA. I will later on deal with this aspect in

more detail in this judgment. Suffice to say at this

juncture that it is understandable why they are cited

in the manner in which it appears in the heading of

the notice of motion. I find no merit in this point that

was raised in limine.

[f] Administrators did not consent to be appointed as such:-

(i) The point was taken by the Respondents that the

consent letter by the administrators were not

properly signed in that it refers to a firm of

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accountants and not to the individual himself/herself

and furthermore, it was only signed by one of the

identified administrators and not by both.

(ii) Again, on the face of it, there appears to be some

merit in this submission but on its own, it does not

warrant the dismissal of the application on this

point. Subsequent to the signing of the initial letter

of acceptance, another letter was signed curing the

defect. It is not that a case is made out in reply as

suggested by the Respondent’s legal

representative. Mention is made of the names of

the administrators in the notice of motion and the

founding affidavit. The defect is cured and the

Respondents suffered no prejudice as a result

thereof. The crux of the matter still remains that the

Applicants are applying for the appointment of the

two persons mentioned in the notice of motion and

the founding affidavit as administrators. I am of the

view that one should not be over-technical about

this. It is indeed a aspect which this Court can and

in fact does condone. The two letters of consent to

act as administrators are accepted by this Court.

Now that the points in limine are disposed of, I will

deal with the application.

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[D] The Application:- [23] The Court has the inherent jurisdiction over and a wide range of

powers relating to trusts and trustees. It is empowered to

appoint persons to investigate and to report on issues of mal-

administration of trust properties and related aspects.

[24] It is submitted by the Applicants that the Court has the power

and should appoint administrators to do the investigations and

report on the Trust administration. However, so it is submitted,

if the Court is of the view that interim trustees be appointed for

the task, than the persons who had undertaken to accept

appointments as administrators, be appointed as interim

trustees. The words “administrator” and “trustee” are used

interchangeably in the book entitled “The Law of Trust 5th

Edition” by Honoré. See page108.

[E] The Trust:-[25] As already stated, the Trust was duly formed in 1919 and the

trust deed was subsequently amended in 1944. According to

the trust deed there are supposed to be nine (9) trustees. In

the case of the death or permanent removal of any or all of the

trustees, the community of worshippers shall be entitled by

majority vote to elect a trustee or trustees to fill the vacancy or

vacancies.

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[26] It is common cause that there are no trustees for the Trust,

although the Respondents appeared initially to have claimed

that there are at least two trustees.

[F] The 1987 Constitution:-

[27] The Respondents claim to be members of the executive

committee of an association which they claim to have been

formed in 1987. They rely for their claim in this regard on the

constitution of such association. Though there was initially

confusion on the version of the Respondents as to whether or

not the constitution of the association was adopted, it became

apparent that it was indeed never adopted.

[28] The effect of this is that the Respondents are not entitled to act

in terms of this constitution that was never adopted. They are

therefore not entitled to take control of the assets of the Trust

neither are they allowed to call meetings or arrange elections in

terms of that constitution. They are also not trustees of the

Trust.

[29] Even if the constitution was adopted (which I do not find to be

the case) it does not have the effect that the Trust was

terminated or amended by the constitution because the trust

deed does not provide for it, neither did all the beneficiaries or

all the trustees agreed thereto.

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[30] Although the pre-amble of this constitution reads “the

Constitution of the Mafikeng Muslim Association (established in

1919 as the Mohammedan Community of Mafikeng”) which

bears reference to the Trust, it does not state that its objective

was to amend, vary of terminate the Trust or trust deed.

[31] This constitution creates the impression that it was to be a

constitution for a voluntary association. It was intended that

twelve trustees be appointed to sign “on behalf of the

association all documentation in connection with the

acquisition, alienation and hypothecation of landed property”. It

seems to me that because of the reference made to trustees in

the constitution, there was confusion on the part of the

Respondents who thought that they can act as trustees for the

Trust. The result was that they usurp the powers of the

trustees of the Trust and fused the Trust with the association,

[32] It goes without saying that only a person that has been duly

elected or appointed by the Court, can act as a trustee of the

Trust. As a result of the fact that it is now established beyond

doubt (as correctly conceded also by the Respondents) that

there are no trustees at the present moment for the Trust, the

Respondents cannot perform the duties of trustees nor can they

usurp the powers of trustees and act as such on behalf of the

Trust.

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[33] The Trust Property Control Act, Act no. 57 of 1988 came into

operation on 31 March 1989. In terms of this Act, a trustee

must register the trust and hand to the Master of the High Court

the trust deed of the Trust. The Applicants maintain that they

could not find any proof that the said trust had been registered

with the Master of the High Court. That also explains why they

did not initially served this application on the Master. The

Respondents does not say that the Trust is registered with the

Master. This leads me to the inevitable conclusion that the trust

was never registered with the Master. Even if the Respondents

were entitled to act as trustees for the Trust (which I do not find

to be the situation) they failed to comply with the statutory

provisions of registering the Trust with the Master.

[34] It is also a requirement that immovable trust property be duly

registered in the name of the trust in terms of section 11 of the

aforementioned Act. The Respondents conceded that one of

the trust properties is not registered in the name of the Trust.

Their explanation of the failure to do so is unacceptable. The

only reason in my view why it was not done is because the

Respondents are well aware of the fact that they are not

trustees of the Trust.

[35] It is required of a trustee to see to the proper administration of

the trust and to ensure that proper bookkeeping in respect of

the financial affairs of the trust is conducted. It is abundantly

clear from the affidavits and supporting documents that the

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bookkeeping of the Trust was not properly done. It seems that

the financial statements for the years 2000 to 2005 were all

done at the same time seeing that they all bears the same date

to wit, 12 April 2006. It also bears reference to both the

association and the Trust. Furthermore, it seems that these

financial statements were only compiled and prepared after the

Applicants approached this Court on a previous occasion for

mandatory relief in this regard.

[36] The auditors indicate that they were advised (without proof to

that effect) that the trustees have changed as from 6 July 2006.

The names of the Fourth to Seventh Respondents are listed as

being the new trustees (albeit for the MMA).

[37] The Trust properties are rented out in order to generate an

income to inter alia maintain the mosque. This is in

compliance with the trust deed. When trust property is so

leased, the trustees of the trust must ensure that the rentals are

collected and properly managed and accounted for in the

interest of the trust. There is evidence that the Respondents

have written off some of the rentals and reduced others. So, for

example in respect of Dullas Fresh Produce was a substantial

amount of R384 907-00 written off. This information is not

reflected in the financial statements. The Respondents only

conceded to the writing off of the said amount in their

answering affidavits. This is a clear indication of the

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mismanagement of the trust properties and inadequate

accounting of the financial state of affairs of the Trust.

[38] It is expected of a trustee to act with due regard to the interest

of the beneficiaries of the trust. A trustee must also make

available to the beneficiaries of the trust all the information

reasonably required by such beneficiaries regarding the

management and affairs of the trust.

[39] If the Respondents who acted as trustees for the Trust (though

not lawfully so) had properly managed the affairs of the Trust,

and in the interest of the beneficiaries, it would not have been

necessary for the Applicants to approach this Court to order

them to supply financial statements for the years 2000 to 2005.

As already alluded to earlier on in this judgment, the financial

statements that were eventually provided, all bears the same

date (12 April 2006) which means that they were all compiled at

the same time.

[G] Conclusion:-[40] It is abundantly clear that there are no trustees for the Trust,

and that the affairs of the Trust are now being attended to by

persons not authorised to do so. There is also proof that the

affairs of the Trust are not properly managed or properly

accounted for. This necessitates the appointment of

administrators to investigate these matters and report to the

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Court, which report must also include the names of suitable

persons to be appointed as trustees for the Trust.

[H] Costs:-

[41] It is clear that the Respondents (First and Second and Fourth to

Seventh) are not trustees of the Trust and could not have acted

in the interest of the Trust or being mandated to do so in

opposing the appointment of administrators for the Trust.

Though they alleged that they were duly authorised to act on

behalf of the MMA, there is no resolution to back up this

allegation. The result is that they acted in their personal

capacities in opposing this application.

[42] I am of the view that costs should follow the result since I find

no reason to order otherwise. Seeing that the Respondents

mentioned acted in their personal capacities they are personally

liable to pay the costs of this application.

[43] Adv Pistor SC on behalf of the Applicants submitted that the

costs should include the costs up to the date of this order. He

referred the Court to the case of Doyle v Board of Executors 1999 (2) SA 805 (C) for his submission. I find the said authority

quite apposite in this case.

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[I] Order:-[44] Consequently, I make the following order:-

[i] Dawood Coovadia and Moosa Vardalia are appointed as

administrators of the Mohammedan Community of

Mafikeng Trust with the powers and duties set out in

paragraph [1] of this judgment.

[ii] The Respondents as members of the executive

committee of the MMA and/or self-imposed trustees of the

Trust are suspended from office with immediate effect.

[iii] The Respondents as members of the executive

committee of the MMA and/or self-imposed trustees, and

any other person who may be in possession of any

books, records, minutes and documents of whatsoever

nature that relate to the affairs of the Trust and MMA,

must hand over within fourteen (14) days from the date of

this order all such books, records, minutes and

documents currently in their possession or under their

control, to the administrators.

[iv] The administrators must within three (3) months from the

date of this order submit a report to the Registrar of this

court in which they indicate:-

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(a) to what extent, if any, the trust deed, adopted in

1919 and amended in 1944 needs to be amended

to provide for present day circumstances;

(b) the names, addresses and such further available

particulars that might be relevant of all suitable

persons that are willing and able to be appointed

as trustees for the Trust,

(c) all such other matters that they deem necessary

and relevant.”

[v] The Respondents (First and Second and Fourth to

Seventh) are ordered to pay the costs of this application

jointly and severally, the one paying the other to be

absolved. Such costs to include the costs up to the date

of this order.

R D HENDRICKSJUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPLICANT: GERHARD MAREE

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