pamish

INVESTIGATION REPORT IN RESPECT OF MAYIBUYE COMMUNITY TRUST

IT NO: 682/2003/PMB

Justice Nzimande & Associates

NATAL HIGH COURT
PRIVATE BAG1PRIVAATSAK X9010

2019 -11- 0 5
1. INTRODUCTION
PIETERMARITZBURG 3200
MEESTER VAN DIE KWAZULU
.i NATAL HOOGGEREGSSHOF 203

1.1. In this matter, the Master of the High Court, Pietermaritz burg ("the

Master") appointed the Investigator on 03 September 2018 in the

Mayibuye Community Trust ("the Trust") in terms of section 16 (2) of
the Trust Property Control Act No. 57 of 1988.

1.2. In terms of the Terms of Reference, the Investigator was appointed to

look into the administration of the Mayibuye Community Trust and
furnish a report of the past expenditure of the Trust including trustees'
disposal of Trust property, if any, of the same Trust.

1.3. Furthermore, the Investigator was directed to provide the Master with
an independent, unbiased assessment and review of the administration
of the Trust and the disposal of the Trust property. Moreover, the
Investigator was particularly directed to: -

(i) look into the financials of the Trust and its business entities;

(ii) look into contentions contained in the letter from the Regional Land
Claims Commission ("the RLCC");

(iii) compliance with the Trust Deed by the Trustees;

(iv) whether beneficiaries are receiving benefits as per Trust's

objectives.
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1.4. The Investigator's findings, conclusions and recommendations had to

be presented to the Master in writing on or before 30 November 2018,
albeit with the proviso that should the Investigator be unable to
complete the task on the aforesaid date, he is at liberty to approach the
Master with an application to extend the deadline. The report of the
investigation will be made available to the trustees and beneficiaries of
the Trust, and to any other person who may, in the Master's opinion,
have sufficient interest in the affairs of the Trust.

1.5. The Master further directed that the Trust would be responsible to pay
the Independent trustee's fees or reimburse him for any costs or
expenditure incurred during the investigation. The beneficiaries of the
Trust, especially the chairperson (Mr Maphanga), were directed to
grant the appointed Investigator access to all books, records, accounts
or documents relating to their administration of the Trust.

2. BACKGROUND

2.1. This investigation emanates from a complaint by the Concerned Group

of the Trust, ie, Mashwilishwili and 4 others regarding the alleged
maladministration of the Trustees which complaint was lodged with the
Master sometime in 2015. Among other things, the Master wanted the
Trustees to account to him in terms of section 16 (1) of the Trust
Property Control Act No. 57 of 1988 ("the Act") for the last two (2)
financial years and to provide him with a report of what actions have
been taken as envisaged in paragraph 5 of his letter dated 26 April
2018, whose contents read thus:

"I am therefore calling upon your clients ("trustees") to submit

their resignation letters as trustees of the Mayibuye Community
Trust, or alternatively convene a General Meeting for purposes
'' ' '

of electing a new board of trustees within seven (7) days of

receipt of this letter."

2.2. Section 16 (1) of the Act stipulates as follows: -

"A trustee shall, at the written request of the Master, account to

the Master to his satisfaction and in accordance with the
Master's requirements for his administration and disposal of
trust property and shall, at the written request of the Master,
deliver to the Master any book, record, account or document
relating to his administration or disposal of the trust property and
shall to the best of his ability answer honestly and truthfully any
question put to him by the Master in connection with the
administration and disposal of the trust property."

2.3. Section 16 (2), on the other hand, stipulates as follows: -

"The Master may, if he deems it necessary, cause an

investigation to be carried out by some fit and proper person
appointed by him into the trustee's administration and disposal
of trust property."

2.4. There was also a letter addressed to the Trustees dated 23 March
2016 from the office of the RLCC that the Trustees' term of office has
since expired. The current Trustees were appointed by the Master of
the High Court.

2.5. As a consequence of the sub-paragraphs 2.1, 2.2, 2.3 and 2 .4

mentioned supra, the Master then acted in terms of section 16 (2) of
the Act.
"' ' "

2.6. Prior to the Master exercising his powers in terms of section 16 (2) of
the Act, there were and there are still trustees appointed in terms of the
Letters of Authority dated 30 October 2003. The said Letters of
Authority reflect the following trustees: -

i) Bhekithemba Ndlovu (ID No: 660905 5473 088);

ii) Annastacia Thembeni Mncwabe (ID No: 601124 0842 089);

iii) Busisiwe Eslina Phetha (ID No: 640215 0602 086);

iv) Sebenzile Princess Ndokweni (ID No: 801223 0567 080);

v) Khuphuka Mchunu (ID No: 341217 5129 083);

vi) Dominica Zamokuhle Mkhize (ID No: 680918 5499 082);

vii) Citimizi Mthembu (ID No: 320109 5108 081);

viii) Welcome Zisebenzile Maphanga (ID No: 530413 5682 087);

ix) Holimeni Norman Miya (ID No: 400101 8280 085);

x) Aubrey Thanda Mngwengwe (ID No: 640908 5545 082);

xi) Moffat Maphanga (ID No: 690614 5611 085).

2.7. The Investigator has since been informed that the following persons
are no longer trustees for the ensuing reasons: -

(a) Bhekithemba Ndlovu (deceased- died in 2008);

(b) Holimeni Norman Miya (deceased); and

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(c) Annastacia Thembeni Mncwabe who resigned. However, the

resignation letter was not sent to the Master in compliance with Section
21 of the Trust Property control Act nor were the names of the co-opted
trustees forwarded to the Master so that a new letters of authority
would be issued reflecting their names as new trustees. In my view, the
co-opted trustees do not and never had authority to act as trustees. Mr.
W. S. Maphanga informed the Investigator that the reason for not
bringing the aforementioned to the attention of the Master was that
they were busy preparing to convene an AGM for purposes of electing
new trustees. In other words, it was not due to any insouciance on their
part. This explanation is, in the Investigator's view, not cogent having
regard to the lapse of time when the resignation and co-option had
already taken place.

2.8. Current Trustees

The Investigator was informed that the following persons are current
trustees:

(a) Busisiwe Eslina Phetha;

(b) Sebenzile Princess Ndokweni;

(c) Khuphuka Mchunu;

(d) Dominica Zamokuhle Mkhize;

(e) Welcome Sebenzile Maphanga;

(f) Aubrey Thanda Mngwengwe (ID No: 640908 5545 082);

(g) Moffat Maphanga;

(h) Muntu Mfaniseni Mlaba;

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(i) Bongumusa Duma. However, the Investigator has requested

several meetings with the trustees and he has only met with Mr. W.
S. Maphanga, Mr. Muntu Mlaba, Mr. Thanda Aubrey
Mngwengwe,Busisiwe Phetha and Khuphuka Mchunu. The
Investigator has only been able to speak to Mr. Zamo Mkhize.

2.9. The Investigator has been informed that the following persons were co
opted as trustees: -

(a) Muntu Mlaba;

(b) Bongumusa Duma;

(c) Themba Mabaso.

3. The Master, in his letter dated 18 May 2018, expected compliance by the
Trustees within 14 days of receipt of the aforesaid letter.

3.1. It is apposite to mention that the Trustees responded to the Master's

query via their attorneys of record, namely: Nathi Shozi Attorneys, as
evidenced by the correspondence dated 08 June 2018. The said
correspondence deals with a wide range of issues in an attempt to
adequately address the Master's query and sought compliance.

3.2. The Trustees vehemently deny the allegations levelled against them
and they contend, inter a/ia, as follows: -

i) The documents authored by the Trustees marked "private and

confidential" was intended for the sole use of the Master of the High
Court. It was a reply to the issues that the Master had raised and
IL I '

needed the Trustees to address and it was not intended for the
RLCC.

ii) The RLCC is irrelevant in these things because it does not have a
mandate to make the recommendations it makes. It is a creature of
statute and finds its mandate from the Restitution Act etc.

iii) Mr Zibuse Mlaba is no longer a founder, he was a founder when he

was a regent.

3.3. The RLCC replied to the Trustees' response via a letter dated 30 July
2018 addressed to the Master. The RLCC concedes that the Trust
Deed constitutes a material defect in that it is silent on the issue
concerning the terms or period of office of Trustees and that a properly
drafted Trust Deed will invariably specify a term of office for the
Trustees. The RLCC further contends that it is not true that in a
meeting which the so-called trustees refer to as AGM which was held
in September 2007 "the beneficiaries resolved not to change trustees
until further development" since there was no written resolution which
was taken and signed by the beneficiaries confirming such a material
decision or point, and this decision or point is not even reflected on the
minutes of the meeting.

3.4. The RLCC further contends that according to the information in its
possession the so-called Concerned Group have complied with Clause
19.1.3 of the Trust Deed. Clause 19.1.3 stipulates that general
meetings of members may be convened at any time on the requisition
of any ten (10) members. The RLCC further contends that it was
correct and not a mistake for it to appoint Mr Zibuse Mlaba to be the
founder of the Trust instead of Mr Thanda Mngwengwe regardless of
 the fact that Mr Mngwengwe lodged the KwaXimba Land Claim. It
further contends that Mr Mngwengwe is not a legitimate beneficiary of
the Trust since his family is a newcomer at KwaXimba area having
allegedly run away for the fear of persecution from their original place
of domicile.

3.5. The RLCC further states in its reply that it completed the task of
upgrading the Verification List of Beneficiaries in November 2017, and
that therefore preparations to hold elections are at an advanced stage.
It further contends that it would be appropriate for the Master to appoint
two (2) independent trustees until the elections are held to appoint a
new Board of Trustees.

4. There is a further reply by Mr Musa Ngubane who signed the said reply in his
capacity as Chairperson of the Mayibuye Task Tearn and Mr Zibuse Mlaba as
the founder of the Mayibuye Community Trust dated the 13th of November
2018, respectively. Mr Ngubane and Mr Mlaba contend that no AGM was held
in 2007 which took a resolution that the Trustees hold office until after further
developments. They further make a number of allegations regarding the
administration of the Trust, disposal of the Trust property and
misappropriation of the rent money without accounting for it to the
beneficiaries. The aforementioned allegations are contained in sub
paragraphs 2.6, 2.7, 2.8 and 2.9 of their reply.

5. On 22 October 2018 the Investigator conducted an inspection in loco in

respect of the farms of the Trust. On the same day, the Investigator met with
the following persons: -

i) Mr Jont Bozas who is a partner to the Trust;

ii) Mr David Bozas who is a partner to the Trust;

iii) Mr Muntu Mlaba, a Trustee;

I ', ·'

iv) Mr Welcome Maphanga, a Trustee (Chairperson);

v) Busisiwe Phetha, a Trustee (Secretary); and

vi) Mr Khuphuka Mthembu, a Trustee.

5.1. The Investigator was informed that the absent Trustees were aware
that the Investigator would be meeting with them and no apologies
were tendered. It is worth noting that the number of Trustees as
mentioned by the RLCC, Mr Ngubane and Mr Mlaba is totally different
from that mentioned by the Trustees. The Trustees argue that the
remaining Trustees are nine (9) in total whilst, on the other hand, the
RLCC, Mr Ngubane and Mr Mlaba argue that the Trust has five (5)
remaining Trustees.

5.2. During the aforesaid meeting the Investigator was informed that the
following are the Trust assets: -

i) ) Office,

ii) Fence,

iii) Game Reserve,

iv) Portion of the farm Spitzkop No. 1216,

v) Farm Vaalkop and Dadelfontein No. 885.

5.3. There is a company called Mayivive Dev. (Pty) Ltd which is owned by
both an investor and the Trust. The said company has three (3)
directors, namely Mr Thanda Mngwengwe, Mr Zamo Mkhize and Mr
David Mitchell.
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5.4. There is another company called Pamish Investments (Pty) Ltd which
is a development company and it owns 50%. It is made up of the Trust
and Maputso Investment which owns the other 50%.

5.5. There are purchased and unpurchased farms in the KwaXimba Area.

The following are purchased farms: -

i) Portion 1,9,10,11 and 21 Spitzkop or Zandfontein 1216 Ft,

ii) Portion 71, 73 and 114 Camperdown 1330 Ft,

iii) Portion 4 Spitzkop or Zandfontein 1216 Ft,

iv) Universe 15099 FT and portion 8 Spitzkop or Zandfontein 1216 Ft,

v) Portion 12, 13 and 14 of Spitzkop or Zandfontein 1216 Ft,

vi) Portion 15, 16 and 17 of Spitzkop or Zandfontein 1216 Ft,

vii) Portion 8 of the farm Lange Hoop 1032 Ft,

viii) Portion 11 of the farm Lange Hoop 1032 Ft,

ix) Portion 184 of Vaalkop and Dadelfontein 885 Ft,

x) Portion 409 and 411 Vaalkop and Dadelfontein 885 Ft,

xi) Portion 585 of Vaalkop and Dadelfontein 885 Ft, and

xii) Portion 70 of Uitkomst and Doornrug 852 Ft.

6. BANK ACCOUNT
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6.1. During the meeting of 22 October 2018 as aforesaid, the Trustees who
attended the said meeting informed the Investigator that the Trust has
no bank account. Section 10 of the Trust Property Control Act
stipulates as follows: -

"Wherever a person receives money in his capacity as trustee, he

shall deposit such money in a separate trust account at a banking
institution or building society."

6.2. The Investigator was subsequently advised by the Trustees that there
is a trust account in respect of Mayibuye Community Trust which is
controlled by the RLCC and the opening thereof was spearheaded by
the then Commissioner, ie, Thabi Shange and was duly opened at
lthala Bank.

6.3. The Investigator has approached lthala Bank and can confirm, in no
uncertain terms, that there is a bank account held at lthala Bank in the
name of Trust. In fact, there are two (2) accounts held at lthala Bank in
the name of the Trust. The first one has the following bank account
number: -

• 79324176 - the said bank account number has a closing balance of

R 2 020.66. The account was duly opened on 12 February 2010
and received funds in the sum of R 4 524 133.50 on the same day.

6.4. The second bank account which is also in the name of the Trust has
the following bank account: 63381364.

6.5. The said account was duly opened on 25 June 2004 and an amount of
R 600 000.00 was transferred into the said account on 08 November
2004. The closing balance on this account is R38 158.14.
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6.6. The signatories to the aforementioned bank account are as follows: -

i) W.Z. Maphanga,

ii) M. Maphanga,

iii) D.Z. Mkhize, and

iv) B.E. Phetha.

Any of the aforementioned signatories may sign with Mr. W.Z.

Maphanga (Chairperson). According to the documents prepared by the
Department of Rural Development and Reform, whose heading thus
read thus: -

"MAYIBUYE TRUST SPECIMEN SIGNATURE, the signatories

reflected therein are as follows:

1. Mnyamezeli Derrick Dlamini (Deputy Director - Operations);

2. Welcome Zisebenzele Maphanga (Chairperson: Mayibuye

Trust);

3. Dominic Zamokuhle Zamokwakhe Mkhize (Treasurer: Mayibuye

Trust);

4. Busisiwe Eslina Phetha (Secretary: Mayibuye Trust).

From the foregoing, it is not clear why the Trustees, especially Mr

Maphanga, advised the Investigator that the Trust has no bank account
when, in fact, it has one. Mr Maphanga claims not to have any
knowledge of the transactions performed on both the aforementioned
 accounts while he is one of the signatories thereto. This conduct leaves
a lot to be desired.

7. The Investigator was subsequently informed by the Trustees through their

attorneys of record as follows: -

7.1. Mayivive was originally floated as a vehicle through which the

development of the properties could be done.

7.2. Dave Mitchell (erstwhile investor) who had undertaken to provide the
required funding for the development had 50% stake and the Trust had
50% shareholding. The directors were for the one part Dave Mitchell,
on behalf of his company known as Viva (Ply) Ltd, Thanda Aubrey
Mngwengwe and Zamo Mkhize representing the Trust for the other
part.

7.3. In or around 2013 a company known as Maputso owned by Lawrence

Anthony and Andy Ruhan (investors based in London) bought Dave
Mitchell's stake in Mayivive and they became 50% shareholders with
the Trust. David Bozas became a director representing the Maputso.
Maputso was liquidated and has not been able to perform in terms of
the agreement.

7.4. The current position is that the Trust is engaging with liquidators with
regard to Maputso's shareholding. The current directors of Mayivive
are David Bozas, Thanda Aubrey Mngwengwe and Zamo Mkhize.

8. The I nvestigator has had sight of the Property Report from Pam Golding
Properties which reflects Mayivive Dev (Pty) Ltd as the buyer of the
immovable property under Title Deed number T14307/2010, and the seller
being Mayibuye Community Trust - Trustees, the purchase price being the
sum of R 1 062 322.00. Furthermore, the purchase date is 10 October 2007
and the property in question was registered on 10 May 2010. This leaves a lot
to be desired, especially taking into account that there is no resolution
authorising the Trustees to sell the property to Mayivive Dev (Ply) Ltd. This
also begs the question as to what became of the proceeds of the sale and
who benefitted from the proceeds thereof.

8.1. The Investigator has also had sight of the Property Report which
reflects Mayibuye Community Trust - Trustees as a buyer of
immovable property under Title Deed No. T54954/2004, the seller
being Shellex (Ply) Ltd and the purchase price being the sum of R
\ 620 000.00. The purchase date is 20 April 2004 and the registration
\ date of the property in question is 10 May 2010. The beneficiaries of
I
\ the Trust are not aware of the aforesaid transaction. It is abundantly
\
'plear that the beneficiaries have nothing to benefit from the property in
uestion. If they were to benefit anything they would have been made
i
aware thereof.
i

I
8.2. The Investigator has also had sight of the Property Report which
reflects Mayivive Dev (Ply) Ltd as the buyer of immovable property
under Title Deed No. T42616/2009, the seller being Mayibuye
Community Trust - Trustees and the purchase price being the sum
of R 1 062 322.00. The purchase date is 10 October 2007 and the
property was subsequently registered on 24 November 2009.

8.3. The Investigator has also had sight of the Property Report which
reflects Mayibuye Community Trust - Trustees as the buyer of
immovable property under Title Deed No. T51864/2004, the seller
being Camperdown Game Ranch Properties (Ply) Ltd and the
purchase price being the sum of R 2 341 000.00. The purchase date is
20 April 2004 and the property in question was subsequently registered
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on 06 October 2004. Again, this is a Trust land and the land in question
was purchased unbeknown to the beneficiaries of the Trust.

8.4. From the foregoing, it is abundantly clear that in running the affairs of
the Trust, the Trustees of the Trust have no interests of the
beneficiaries at heart and the beneficiaries stand to benefit nothing
from the aforementioned transactions and I or activities. Even the
formation of the Mayivive Dev (Ply) Ltd had nothing to benefit the
beneficiaries of the Trust. This is evidence by the fact that the company
in question is partially Mayibuye Community Trust. This begs the
question why the Trustees did not form a Trust company which is
independent, owned by the Trust, and will do business with other
companies for the sole purpose of benefitting the Trust beneficiaries.

9. ALLEGED SALE OF LAND/SITES

9.1. On 08 July 2019 the Investigator met with Mr Mzamo Mlaba who is a
beneficiary of the Trust. Mr Mlaba told the Investigator that he
approached Mr. W. S. Maphanga sometime between April and May
2019 and asked him for permission to sell sites (land) belonging to the
Trust for residential purposes and Mr. W. S. Maphanga agreed.

9.2. Mr. Mzamo Mlaba further told the Investigator that he sold the sites
(land) to different individuals for the sum of R 20 000.00 each and that
he has thus far sold ± 10 sites. He further told the Investigator that the
aforementioned individuals have been stopped from building on the
aforesaid sites by Mr Musa Ngubane, Mr Zibuse Mlaba and Mr
Ndwandwe.

9.3. The Investigator subsequently interviewed Mr. W. S. Maphanga as

regards the aforementioned allegations and he admitted to same.
9.4. On 08 August 2019 the Investigator once again met with Mr Mzamo
Mlaba who admitted to having sold a site (land) to Kairos Family
Church for the sum of R 40 000.00 which was paid into a certain Mr
B.K. Mchunu's bank account. There is already a church building on the
land which the Investigator has already seen together with other sites
and buildings.

9.5. The Investigator also interviewed Mr. W. S. Maphanga as

regards the allegations that he is selling Trust land. Mr Maphanga told
the Investigator that the Trust has an agreement with Pamish
Investments that people would be given 10% of the Trust land. He
further told the Investigator that a portion of the land was surveyed.
He further stated that it was agreed that they charge potential buyers
an amount of R 25 000.00 although some of them settle or pay the
purchase price in piece-meal. He further stated that there are about 24
sites and they have sold between 16 and 18 sites. The land in question
is situated at or near Mayibuye Game Reserve. Upon being asked by
the Investigator as to whether there was a resolution taken by the
beneficiaries in this regard, he advised the Investigator that there was
none.

9.6. The Investigator also interviewed Mr Skhumbuzo Chamane who was

alleged to have bought a site (land) from Mr Maphanga and has a plant
hire on the land in question. Mr Chamane stated that he did approach
Mr Maphanga as regards the land towards the end of December 2018
as he wanted land for the parking of his trucks and the plant hire. Mr.
Chamane stated that he was introduced to Mr. Maphanga by Mr. B.
Khanyile. However, the land was not sold to him. They agreed with Mr
Maphanga that he can use the land and Mr Chamane will, in return,
build a creche, a sportsfield and contribute with his TLB and excavators
etc when there is a development in the area. What is disturbing with
this kind of arrangement is that the other Trustees were not party
 thereto and one wonders if they were aware. Also, one wonders if
Mr Maphanga had the necessary authority to enter into such
arrangements. One also wonders if Mr Maphanga had anything to gain,
especially from a financial point of view. The Investigator interviewed
Mr Maphanga who admitted that he did give the land to Mr Skhumbuzo
Chamane. The Trustees should not have such carte blanche in so far
as the running of affairs of the Trust is concerned, otherwise the
beneficiaries who are supposed to benefit from the Trust's property will
be severely prejudiced and their interests will not be properly served. In
Thorpe and Others v Trittenwein and Another (071/05) [2006] ZASCA
30, 2007(2) SA172 (SCA), [2006] 4 All SA 129 at para 9 held as
follows:

"It is moreover trite that unless the trust deed provides otherwise,
trustees must act jointly. In the absence of a contrary provision in the
deed they may, however, authorize someone to act on their behalf and
that person may be one of the trustees."

9.7. The investigator has also visited Othwebe area where the Trust land is
alleged to have been sold for residential purposes.
and conducted an inspection in loco. The Investigator was informed
that the person who is best placed to assist him with regard to the
investigations in this regard is Mr Malimaza Ngcobo who is the lnduna
of the area. The Investigator has contacted him and unfortunately, he is
currently not in a position to meet with the Investigator due to sickness.
At the time of compiling this report, the Investigator has not yet met
with Mr Ngcobo.

9.8. The Investigator was informed that Mr Kati Mbeje is also selling Trust
land. The Investigator contacted him and they agreed to meet at Cato
Ridge Country Club. The Investigator went to meet Mr Mbeje on the
agreed date and time, and Mr Mbeje never showed up.
I '

10. PROCEEDS OF SALE OF LAND BY MR MAPHANGA

10.1. The Investigator enquired from Mr Maphanga as to what became of

the proceeds of sale of land (sites) and he told the Investigator
that the money was used to cater for the meals at meetings,
travelling costs and Trust expenses, However, there are no records
confirming this position. What is also disturbing is that the
proceeds of sale were not deposited into bank account. The
proceeds thereof were used willy nilly. The afore-mentioned was in
contravention to section 10 of the Trust Property Control Act which
specifically provides that " whenever a person receives money in his
capacity as trustee, he shall deposit such money in a separate trust
account at a banking institution or building society. In other words, the
receipt and holding of cash is not permitted for trust moneys, and trust
moneys must not be held in the personal account of trustee(s) or any
beneficiary.

10.2. It is abundantly clear that the Trustees did not exercise their powers
with care, diligence and skill which can reasonably be expected of a
person who manages the affairs of another. Such conduct amounts to
violation of section 9 (1) of the Act which provides thus: -

"A trustee shall in the performance of his duties and exercise of his
powers act with care, diligence and skill which can reasonably be
expected of a person who manages the affairs of another."

10.3. In terms of Clause 16.4 of the Trust Deed, the quorum necessary for
the transaction of any business by the Board of Trustees shall be eight
(8) Trustees. The Investigator finds that Mr Maphanga's conduct in so
far as giving Mr Skumbuzo Chamane permission to utilise the land in
question flies in the face of Clause 16.4 mentioned supra. The
 Investigator also finds that there is no evidence to suggest that there
was compliance with the clause in question when a decision was
taken to form Pamish Investments (Pty) Ltd, and the Investigator
was not furnished with a resolution in this regard.

11. LAND CLAIM SETTLEMENT

11.1. The Land Claim in respect of the Trust was settled sometime in 2007.

12. FINANCIALS OF THE TRUST AND ITS BUSINESS ENTITIES

12.1. Firstly, it is important to advise the Master that the financials

the Trustees submitted under a cover marked "Private and
Confidential" do not reflect the true state of affairs. Such
financials have nothing to do with the Trust and have everything
to do with Pamish Investments (Ply) Ltd. It must be borne in
mind that the Master requested the financials of the Trust and
not those of Pamish Investments. Clearly, the incumbent Trustees
have not complied with Clause 21.2 of the Trust Deed which
stipulates thus: -

"The trustees shall ensure that the Trust keeps proper books of
account. Financial statements (including capital and revenue
accounts) shall be prepared at least once a year, in accordance
with the generally accepted accounting principles and practice,
and shall reflect clearly the affairs of the Trust. Such books of
account shall be audited and certified in the customary means by
an independent practising Chartered Accountant."

This has never been done.

 12.2. What is striking and mind-boggling is that monies received are
deposited into the bank account of an organisation called Earth
Organisation. The Investigator was informed that Earth Organisation is
a non-profit which has an agreement with Mayibuye Community Trust
to source funding for building infrastructure such as roads and fencing.

12.3. According to Yvette Tailor of Earth Organisation, monies are deposited

into their trust account and then they manage it. She also advised the
Investigator that her organisation also brings in Grant Funding and
Pamish Investments brings investor funding. It is also clear that the
Trust has been doing business without a Trust account or the already
available Trust Account.

12.4. Pamish Investments also has a 99-year lease which is registered

with the Deeds Office. The period of the lease agreement is also
questionable. In the circumstances, it would be apposite to
conclude at least a five (5) year lease agreement which is subject
to renewal after five (5) years.

13. TRUSTEES' TERM OF OFFICE

13.1. The Mayibuye Community Trust Deed ("the Trust Deed") does not
prescribe the Trustees' term of office and this should have been curbed
by the drafters thereof. It should not have been the drafter's intention
that the Trustees' hold office of Trusteeship indefinitely. Consequently,
the incumbent Trustees remain trustees until new trustees are elected
in a General Meeting and subsequently appointed by the Master. It is
against this background that a General Meeting where the election of
new Trustees will be conducted is imperative and pressing. At present,
and in light of the current situation, the convening of the General
Meeting by the incumbent Trustees may pose challenges.
14. CONCERNED GROUP (TASK TEAM)

14.1. The Concerned Group was formed for the sole purpose of
addressing problems such as selling Trust land, ensuring the holding
of an AGM and for the land to be divided into three (3) categories. It
was formed in 2010 following the General Meeting which was held
in 2010 where there were some disagreements between the
Trustees and the beneficiaries.According to the
Concerned Group, the Trustees introduced a
developer and the 99-year lease agreement was
concluded between the Trust and Maputso Investment during which
tractors were introduced and the said lease agreement was concluded
without consultation with the beneficiaries. The members of
the Concerned Group confirmed that there is poaching in the
farm and Mr Z. Mlaba said that he tried to curb it, but the
beneficiaries said that is how they are protesting.

15. THE RELEVANT LEGAL PRINCIPLES

15.1. In Tijmstra v Blunt-Mackenzie NO 2002 (1) SA 459 (T) the court held as
follows: -

"When the administration of trust fails to comply with the

prescribed standard of what a bonus et di/igens paterfamilias
would have done and trust assets are threatened or
endangered, the trustees must be removed."

15.2. The Trustees must at all times act with the benefit of the beneficiaries ,
in mind.

15.3. The essence of a trust is that trustees hold trust assets on behalf of
 beneficiaries. Trustees are under a fiduciary duty which, inter alia,
means that trustees have a legal duty to act in the best interests of the
beneficiaries.

15.4. The nature of a trustee's office requires a trustee to act in the interests
of the beneficiaries and not in the trustee's own personal interests, and
a trustee must accordingly avoid personal advantage or benefit.

16. MEDIATION PROCESS

16.1. On 08 November 2018, the Investigator met with Mr Simon

Mngwengwe and Mr Simon Thabethe ("the mediators") who are
beneficiaries of the Trust. The said beneficiaries voluntarily acted as
mediators for the Trust sometime in April 2015. In fact, Mr Thabethe
approached Mr Mngwengwe to assist in an attempt to pacify the
conflict that existed at the time between the Concerned Group and the
Trustees of the Trust.

16.2. The mediators first met with the parties involved on an individual basis
and held negotiations with them. Sometime in June 2015 the mediators
convened a meeting for both the Trustees and the Concerned Group
which was held at Umlaas Road and which was chaired by Mr Simon
Mngwengwe.

16.3. The Investigator was also informed that a certain businessman by the
name of Mr Donda also joined the mediators at the request of the
Concerned Group. The Concerned Group made such a request to Mr
Donda on the basis of the contribution he had made to the Ximba
Community.
 16.4. The mediators also informed the Investigator that the Concerned
Group had the following concerns: -

16.4.1. There were allegations that the Trust had misappropriated funds
and that the issue cropped up in the meeting held between the
mediators. The allegation was that the Trustees had
misappropriated R36 million. However, when asked to produce
evidence in support of such allegation, the members of the
Concerned Group were unable to do so. The Investigator has
investigated the aforesaid allegation and has found that the
Trustees never misappropriated the amount as aforesaid. The
members of the Concerned Group also subsequently accepted
that there was never such misappropriation.

16.4.2. There was also a concern that the Trustees have nepotism
when it comes to employing the beneficiaries.

16.4.3. Withdrawal of court cases against certain members of the Trust.

17.The Annual General Meeting was not held during this period despite the
intervention of the mediators. The members of the Concerned Group were
averse to the development project as they were alleging that the Trustees
never consulted them before they agreed to the project taking place. The
mediators held various meetings with both the Concerned Group and the
Trustees and these were three (3) to four (4) meetings. The Investigator was
also informed that there was also an allegation that the Trustees have sold
the Trust land.

17.1. During this period there was serious tension between the Concerned
Group and the Trustees. The mediators also stated that the dispute
had become politicised and that if they had nor intervened, violence
 would have ensued. According to the mediators, the Chairman of the
Concerned Group is Simon Mshoniseni Mkhize and that he is not a
beneficiary of the Trust.

17.2. According to the mediators, 90% of the tension was eradicated and the
trustees and the Concerned Group were able to meet and talk to one
another. According to the mediators the beneficiaries of the Trust never
received any benefit from the Trust. The Investigator has investigated
this aspect as enjoined by the Master's terms of reference and found
that the beneficiaries are not receiving any benefit from the Trust.

17.3. Another concern which was raised by the Trustees related to the issue
of poaching in the area. The mediators advised the Investigator that
they were not mandated by the Trust to mediate and they had no one
to report to.

18. MEETING WITH MEMBERS OF THE CONCERNED GROUP

18.1. On 11 March 2019 the Investigator met with the following members of
the Concerned Group: -

i) Mr Zibuse Mlaba (member),

ii) Mr Mashwilishwili Mkhize (member),

iii) Mr Khehlani Ngcobo (member),

iv) Mr Zamo Ndwandwe (Deputy Chairperson),

v) Mr Musa Ngubane (Secretary).

 18.1.1. The Chairperson of the Concerned Group, namely Mr
Mshoniseni Mkhize was absent from the said meeting due to
employment commitments together with Mr Sphiwe Shelembe
and Sphiwe Duma.

18.2. The Investigator was informed that the Task Team, as they refer to
themselves, was formed in the wake of disagreements between the
Trustees and the beneficiaries in a meeting of the Trust which was held
in 2010.

18.3. During the aforesaid meeting the beneficiaries became irate when the
Trustees introduced the developer and when they were made aware of
the 99-year lease agreement between the Trust and Panush
Investment. Tractors were also introduced during the said meeting.
What also infuriated the beneficiaries was the fact that the lease
agreement was concluded without consultation with them. This,
according to the members of the Concerned Group, eventually
culminated in a meeting by the concerned members of the Trust
wherein a Task Team was formed with the following mandate: -

i) To deal with the 99-year lease agreement. The members of the

Concerned Group wanted to be consulted before there was Pamish
Investments and the lease agreement in question.

ii) To spearhead the verification of the List of Beneficiaries and the

expedition of the AGM for purposes of electing new Trustees.

18.4. The majority of the beneficiaries were concerned with the manner in
which the Trustees are handling the Trust matters or affairs. The
Trustees did not recognise the Task Team. Some of the beneficiaries
continued to have confidence in the Trustees. In a nutshell, the
beneficiaries are divided and there have also been counter-meetings
 where Trustees wanted to challenge and change the resolutions taken
by the beneficiaries in support of the Task Team.

18.5. On 16 April 2018 the Trustees and the Task Team members met the
RLCC which was represented by Mr Sifiso Ndlovu and Mr Silaule. The
RLCC proposed that both the Trustees and the Task Team nominate
five (5) persons from each group or side, respectively. Both sides
nominated five (5) persons respectively. The ten (10) persons were
going to be part of the verification of the beneficiaries' list and also
spearheading the process leading to the holding of the AGM and
elections.

19.INTERVIEW WITH MR ZIBUSE MLABA AS REGARDS ITHALA BANK

ACCOUNT

19.1. The Investigator was informed by the Trustees that Mr Zibuse Mlaba
was at some stage a signatory in the lthala bank account. Mr Mlaba
told the Investigator that he was the signatory in the said account from
the initial stages, ie prior to the appointment of the Trustees. He further
told the Investigator that he does not recall ever withdrawing monies
from the said account and that if he did, it may have been one or two
transactions. However, the records will reflect if he did sign with a view
to withdrawing or releasing monies in the said account. Mr Mlaba also
advised the Investigator that his co-signatories were Thabi Shange, the
then Commissioner, and that he cannot recall the name of the third
person.

19.2. Mr Mlaba further stated that he was subsequently removed as a

signatory to the said bank account via a declaratory order wherein he
was ordered to pay the costs of the application. Mr Mlaba further stated
that the account in question was jointly opened by himself, Thabi
 Shange and the third person. He further stated that he never received
any monies from the said account.

20. TRUST AUDITORS

20.1. There have also been letters from auditors claiming to be the auditors
of the Trust addressed to the Master of the High Court. There is an
April 2003 letter from Manase & Partners, 2005 letter from Whitaker
auditors and SAB&T Inc. the Investigator wrote to the Master and the
RLCC with a view to enquiring as to their knowledge of the aforesaid
auditors and they both claimed to have no knowledge in this regard.

21. MEETING OF 22 OCTOBER 2018

21.1. During the meeting of 22 October 2018 the Investigator also

interviewed Mr David Bozas who is the Managing Director of Maputso
Investments (Ply) Ltd. Mr Bozas told the Investigator that they render
Finance and Development services. He further told the Investigators
that they engage professional services to get planning permission for
the development and that they are developing the game reserve.

21.2. Mr Bozas further advised the Investigator that the Trust approached Mr
Lawrence Anthony who is now deceased and who used to be a well
renowned conservationist. According to Mr Bozas, the deceased was
approached with a view to developing the land whereafter the Trust
and the deceased formed a company called Pamish Investments. The
Trust and Maputso Investments had a 50% stake or share each,
respectively. At some point, the Trust obtained a High Court order,
ordering the RLCC to complete the Land Claim within three (3) months
of the sought order.
, ·I '

21.3. Mr Bozas also informed the Investigator that Pamish Investments has a
99-year lease agreement registered with the Deeds Office. On 06
March 2010 the bernoi_ficia e_s ratified the lease agreement and the
development plan was presented to the beneficiaries whereafter the
development was presented to the then steering committee which also
accepted it.

21.4. According to Mr Bozas, there were only three (3) steering committee
meetings held and Mr Khemball Ramball from the RLCC was the
chairperson. The directors of Pamish Investments, according to Mr
Bozas, are as follows: -

i) Mr David Bozas,

ii) lnkosi Mlaba,

iii) Aubrey Thanda Mngwengwe, and

iv) Mr Nathi Shozi.

21.5. Mr Bozas told the Investigator that the Trustees were unable to hold
meetings due to disruptions and they approached Colonel Ngubane of
Camperdown Police Station who gave the Trustees permission to hold
meetings at the police station. Mr Bozas further told the Investigator
that he presented the development plan to the beneficiaries who
approved it.

21.6. The repeated destruction of the fence costed them millions and
consequently delayed the development. The Concerned Group
destroyed the training centre which he claims to have renovated. He
further stated that they got funding from the Department of
Environmental Affairs (DEA) for R10 million to complete the fencing,
alien plant removal, roads and to fix the training centre and office.
,. '
l '1 '

21.7. Mr Bozas also stated that they have about 76 people who are not
working due to disruptions since they are awaiting funding from the
DEA and that they are awaiting R21 million from the DEA for a 3-year
period. He further stated that if there are further disruptions in the area,
they are likely to lose funding. Pamish Investments is partially a Trust
asset. The Trust is only able to carry out its business through Pamish
Investments. The Trust has no bank account and that no it has no
income. Currently, there is no violence in the area. Mr Bozas also
stated that they have replaced the fence for about six (6) times.

22. FOUNDER OF MAYIBUYE COMMUNITY TRUST

22.1. The Trust Deed which is a founding document makes it clear under the
Preamble thereof that the lnkosi Mlaba is the founder of the Trust.

22.2. It can be deduced from the reading of the Trust Deed that the lnkosi
Mlaba referred to therein is lnkosi Zibuse Mlaba. It is important to
mention that lnkosi Zibuse Mlaba was at the time acting as a Regent.

22.3. lnkosi Zibuse Mlaba was subsequently succeeded by lnkosi

Simangaye Mlaba. In other words, the current lnkosi for the KwaXimba
Community is lnkosi Simangaye Mlaba. The Investigator was informed
that at the time lnkosi Zibuse Mlaba was acting as Regent, the current
lnkosi was not of age. Had the current lnkosi been of age, he would
have been the founder of the Trust. Ideally, the current lnkosi should
be the Trust's founder.

22.4. The Investigator is of the opinion that the Trust Deed should be
amended so as to reflect the current lnkosi Simangaye Mlaba as the
founder of the Trust in question. This will be an appropriate step to take
 in view of the fact that at the time lnkosi Zibuse Mlaba was the Regent,
he was acting in the current lnkosi's place and stead.

22.5. The investigation reveals that it is an incontrovertible fact that Mr

Thanda Aubrey Mngwengwe is the one who lodged the land claim of
the Trust. This, however, does not make him the founder for the
reasons mentioned supra.

23. WHETHER MR. THANDA MNGWENGWE IS THE TRUST'S BENEFICIARY

23.1. According to the List of Beneficiaries furnished to the Investigator, Mr

Thanda Aubrey Mngwengwe is reflected as one of the claimants of the
Trust at number 228 of the said Beneficiaries List, the original owner
being Cici Mngwengwe. From the investigations conducted by the
Investigator, there is nothing to suggest that Mr Mngwengwe is not the
beneficiary of the Trust.

24. WHETHER MR. MZOKHULAYO MTHEMBU IS A BENEFICIARY OF

THE TRUST

24.1. According to the provided Beneficiaries List, Mr Mzokhulayo Mthembu

is one of the beneficiaries under claimant, ie,Bonginkosi Wilson
Mthembu found on number 245 of the said Beneficiaries List, the
original owner being Mbandeni Mthembu.

24.2. The Investigator is, however, of the opinion that Mr Mthembu is

conflicted in so far as being an official of the RLCC working with the
Trust. This is so for the following reasons: -

i) Mr Mthembu is a beneficiary of the Trust, and

 '
' '

ii) He is alleged to be siding with the Concerned Group.

24.3. Ideally, it would be apposite for the RLCC to deploy another official
who is not a beneficiary of the Trust to work with the Trust. Mr
Mthembu's continued involvement with the Trust and the animosity that
seems to exist between him and the Trustees might be perceived in a
negative light and has the potential of perpetuating divisions within the
Trust.

25. WHETHER INKOSI SIMANGAYE MLABA IS A DIRECTOR OF

PAMISH INVESTMENTS (PTYl LTD

25.1. The Investigator telephonically contacted lnkosi Simangaye Mlaba on

several occasions with a view to introducing himself and also to
verifying the truthfulness or otherwise of the allegation that he is one of
Pamish Investment's directors. The Investigator was unable to
introduce himself to the lnkosi Mlaba and also to verify the allegation
as aforesaid due to his failure to avail himself to the Investigator
despite numerous requests by the Investigator to meet with him. It is
for this reason that the Investigator was unable to establish whether the
allegation is true or not.

26. HETHER MR NATHI SHOZI IS A DIRECTOR OF PAMISH INVESTMENTS

(PTY) LTD
 !
.,
I

26.1. From the reply submitted by the Trustees to the Master received by the
Master on 06 June 2018, the directors of Pamish Investments appear
or are reflected under a document marked "MT 24".

26.2. On page 4 of the "MT 24" and under "Director's Responsibilities and
Approval", Mr Nathi Shozi's signature together with that of Mr D. Bozas
appear thereon.

26.3. On page 5 of "MT 24" and under "Director's Report", the directors
appearing thereon are as follows: -

i) A.T. Mngwengwe,

ii) D.N. Anthony,

iii) N.H. Shozi,

iv) J.L. Anthony, and

v) D. Bozas.

The company had no secretary during the year.

26.4. The Investigator has written to Mr. Nathi Shozi with a view to
establishing the veracity of the allegations that he is or was a director
of Pamish Investments and also establishing if there are minutes of
meetings and resolutions which led to the formation of both Pamish
Investments and Viva Dev. The Investigator has hitherto received no
response in this regard.
', '

26.5. From the foregoing, it clear as broad daylight that Mr Shozi is or was at
the time a director of Pamish Investments. Although from a legal point
of view there seems to be nothing precluding Mr Shozi from being a
director of Pamish Investments. However, the Investigator holds the
view that he is conflicted. There seems to be a conflict of interests as
he is the Trust's legal representative on the one hand, and a director of
Pamish Investments (which is partially a Trust asset) on the other.

26.6. "MT 24" further deals with Pamish Investment's financials. It is the
'
understanding of the Investigator that the Master had requested the
'
-.------·---
Trust's financials, and not Pamish Investments' financials. There is no
explanation as to why the Trust's financials were not submitted to the
l\!1_<)_SJEir and insteacj _Pamish _Investment's financials were
submitted. From the available information it is abundantly clear that
the Master was misled if not deceived in so far as the submission of
the financials is concerned. From the foregoing, it can be inferred that
there was no compliance from the Trustees as regards the Master's
directive in this regard. This was in contravention of section 16 (1) of
the Trust Property Control Act as well as the Trust Deed. In a nutshell,
the Trustees were disingenuous with the Master.

27. VERIFICATION OF TRUST AUDITORS AS MENTIONED IN PARA 20

27.1. The Investigator has had sight of three (3) letters of appointment from
Manase & Associates, Whitaker Auditors Inc and SAB&T Inc. The
Investigator, from the available information, sent an email to Manase &
Associates and received no response. The Investigator has also
contacted Whitaker Auditors Inc using a telephone number as reflected
on the letterhead and was advised that the company's name is Coastal
Accounting and that they have no knowledge of Whitaker Auditors.
 .'
! ·, • i j I I (,

27.2. As regards SAB&T Auditors the Investigator was able to liaise with
Revanie Govender who confirmed that their office was once auditors
of the Trust and that they had been approached by the RLCC
for appointment as the Trust's auditors. Revanie Govender is
SAS&T Auditors' ("the auditors") HR Administrator. According to her,
the RLCC was in the process of registering various Trusts with the
Master of the High Court and the Master required the submission of
the Auditors Consent. The letter from the RLCC written by the then
Commissioner, ie Thabi Shange dated 15 October 2003 also
mentioned that it will take some time before the trusts can be in a
position to be audited due to delays in transferring funds.

27.3. The Auditors subsequently consented to be the Trust's auditors.

However, from the available information, the auditors in question
never audited the Trust.

28. RECOMMENDATIONS

28.1. The Investigator makes the following recommendations: -

28.1.1. Appointment of an Independent Trustee as soon as possible.

28.1.2. Amendment of the Trust Deed with a view to stating clearly the
Trustees' term of office. The Trustees' term of office to be for a
period of five (5) years from the date of appointment. The
Trustees should under no circumstances hold the office of
Trusteeship indefinitely.

28.1.3. Disqualification of current Trustees for future appointment by the

 Master in consequence of their failure to comply with section 16
(1) of the Trust Property Control Act in that they misled the
Master by furnishing the wrong financials and their failure to hold
an AGM for purposes of electing new Trustees since 2003 when
they were appointed as such and for the reasons mentioned
supra in this report.

28.1.4. Amendment of the Trust Deed to reflect lnkosi Simangaye

Mlaba as the founder of Mayibuye Community Trust.

28.1.5. Although Mr Mthembu is not employed by the Master of the High

Court, Pietermaritzburg. However, it is recommended that he be
replaced with another official from the RLCC to circumvent a
perceived conflict of interests.

28.1.6. The amendment of a trust deed can either be carried out in the
form of an addendum to the original trust deed, or an amended
trust deed can be drafted to completely replace the original trust
deed. The latter method is preferred to ensure that newly
introduced clauses do not conflict with the original trust deed.

The Investigator reserves the right to amend his Report should new
information come to light.

8
DATED AND SIGNED AT DURBAN ON THIS 31 T OCTOBER 2019

DUMISA I Jl'.JS ICE NZIMANu_,,

(INVESTIGATOR)
Dumisani Justice Nzimande