A contested proxy signature authorising the sale of a prime 1,500ha piece of real estate bordering the Kruger National Park and the Sabie Sands Game Reserve — allegedly sold fraudulently by a dishonest land restitution trust — will help determine its legal validity.
Judge Brian Mashile, sitting in the Mpumalanga High Court, this week reserved judgment on an application for leave to appeal by Legacy Hotels and Resorts and Lisbon Developments against his earlier ruling that the R15m sale on behalf of the Nhlangwini Trust was null and void.
He found then that the procedures followed by the trustees were improper and deceptive of the community, and that the trustees “appeared to have pocketed the land sale proceeds”. He described the behaviour of the land restitution trustees as “fraudulent and deceptive”.
The now collapsed trust is one of a long line of dysfunctional groups assigned to manage the successful land restitution claim and restore what were once highly productive fruit farming operations dating back to 2007.
The court heard that the government allocated R16m to the community to rebuild and rehabilitate agricultural operations on the land from which they and their forebears were evicted. However, the money “disappeared” from the bank account into which it was deposited within three weeks.
Mashile found that the former trustees later sold the properties to Legacy without the knowledge and consent of the community, without disclosing the terms of the sale and ‘through a closed and obscure process to which only they have been privy, for a fraction of the properties’ value”.
This was done in circumstances where there were a number of credible developers who would have “leapt at” the opportunity to partner with the trust to develop the properties on terms negotiated and agreed upon in a transparent and open manner. The land was described in court as “among the most valuable pieces of real estate in Mpumalanga”.
Mashile said “it was sold via the use of fraud and deception”.
“As though that was not enough, it appears highly likely that the former trustees have misappropriated the proceeds of the sale for themselves. They have sold the land from which the community and their ascendants were forcibly removed — land that was reclaimed and restored for the benefit of the community and its descendants. They have done so clandestinely, dishonestly and without any regard to the rights and interests of the community.”
As though that was not enough, it appears highly likely that the former trustees have misappropriated the proceeds of the sale for themselves. They have sold the land from which the community and their ascendants were forcibly removed — land that was reclaimed and restored for the benefit of the community and its descendants. They have done so clandestinely, dishonestly and without any regard to the rights and interests of the community.
On Thursday, Anthony Bishop for Legacy Hotels and Resorts, (owners of the two tallest buildings in Sandton, the Michelangelo and Leonardo Towers), said Themba Tibane, an independent attorney acting as a trustee, had signed the name of a community leader, a Ms Mokoena, to a trustees’ resolution authorising the sale.
This was because Mokoena, who had since died but was present at the signing, asked him to do so as she was frail from a recent hip operation. Mashile questioned why Tibane had not signed his own name, declaring it as a legal proxy for Mokoena. A forensic handwriting expert earlier testified that the signature was a forgery and that Mokoena’s signature was usually in lower case script. The court also heard that attorney Davies Mculu, who claimed to act as an independent trustee, had failed to obtain the necessary authority from the Master of the High Court to act as a trustee.
Between them Tibane and Mculu received over R3m out of the sale price.
This and a number of further procedural flaws in the manner in which the trustees entered into the sale agreement were attributed by Bishop to one “faction” of the community, which he described as “entirely unco-operative”.
“Even attempts to hold various meetings for the election of new trustees were constantly scuppered,” he said.
Mashile asked: “If the trust was so shambolic, why would you want to sell or buy the land? You’re inviting problems without following proper procedure. Wouldn’t you say, ‘I’m putting myself in a difficult position — there may be a problem in the future'?”
Bishop said 80-90% of the community members attended the vital meetings where the sale was explained and allegedly approved by them — well above the 66% required by the trust deed.
“The two farms had nothing viable on them, and neither were they being used by the community.”
The sale included a 20% community share in the company that would own the remainder of the farm once the Legacy Group had subdivided out portions for a residential golf and riverfront estate. Once those estates were developed the trust would also get R300,000 in respect of every erf sold.
There would also be unprecedented employment and educational opportunities.
“Why, your lordship, would they not logically say ‘I’m in favour'?” Bishop asked.
Advocate Tembeka Ngcukaitobi SC, for the Nhlangwini community, said the applicants had no prospects of success and there should instead be criminal prosecution “to understand and uncover why there was a fraudulent signature, why large sums of money disappeared and why people displaying large sums of money were appearing on Facebook”.
“Why was community land sold for so little money? Why was this transaction designed the way it was — land transferred and then coming back in bits and pieces? That’s the true public importance of this case — we should be watching out for criminal prosecutions, not wasting scarce judicial resources on such an obvious case,” he said
He said the Supreme Court of Appeal would not say the trust deed was the equivalent of an act of parliament. The very essence of the trust deed had been subverted to dispose of the land, and an artificial argument later constructed to support this.
Mashile said he would hand down his ruling within three months.
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