Minister wonders ‘why such extraordinary lengths are being taken to protect individuals’ at the trust and ‘what exactly is being hidden’.
Two non-governmental organisations (NGOs) have launched an urgent application to interdict, review, and set aside Minister of Public Works and Infrastructure Dean Macpherson’s appointment of five trustees to fill vacancies on the board of the corruption-accused Independent Development Trust (IDT).
Black Forum South Africa and Izwi Labantu Forum have lodged an urgent application in the High Court in Pretoria for an interdict suspending the appointment of the five newly appointed trustees despite not claiming any of the appointed trustees are unsuitable.
The application includes a challenge to the appointment process of the new trustees in Part B, which will be heard at a later date, where they are seeking to review and set aside the appointment of the trustees.
The urgent application further seeks an interdict suspending the letters of authority issued by the Master of the High Court in favour of the five trustees and interdicting and restraining them from performing the functions and exercising any of the powers of the board of trustees of the IDT.
Macpherson said on Friday he had filed an answering affidavit opposing the court application by the two entities.
The application is set to be heard by the court on 22 April 2025.
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Allegedly corrupt tender
The IDT has been in the spotlight since Macpherson in November 2024 instructed IDT chair Advocate Kwazi Mshengu to suspend with immediate effect the award of an allegedly irregular and corrupt R880 million hospital oxygen plant tender managed by the IDT to three companies.
Accountancy firm PwC was subsequently appointed to conduct the investigation.
Applicants ‘aggrieved’
Advocate Kgagudi Morota, the chief executive of Black Forum South Africa, said the applicants are aggrieved by the unlawful manner in which Macpherson appointed the trustees.
He said the new trustees were appointed in a manner that was not transparent, in contravention of the IDT Trust Deed and without a public participation process.
“This violated the applicants’ right to nominate candidates for the appointment of members of the IDT’s board of trustees,” said Morota.
He added that the applicants are entitled to approach the court in circumstances where an organ of the state, such as the DPWI Minister and the Master of the High Court, have acted in an unlawful manner for any competent relief.
“This is such an approach because both the Minister and the Master have acted in an unlawful manner in appointing the new trustees and issuing their letters of authority.”
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Challenge ‘misguided’ – minister
Macpherson said the applicants’ challenge to the appointments relies on the incorrect clause in the trust deed and the applicants’ affidavits do not raise any concerns about the competency or suitability of the individuals who were appointed.
Macpherson believes the application is an abuse of court processes and has invited the organisations to withdraw their challenge.
He added the applicants completely ignore the fact that he appointed the five new trustees to fill vacancies that had arisen and incorrectly suggest the same process of appointment applies whether or not the appointment is to fill a vacancy or to appoint a new trustee as a result of the term of office of a trustee having come to an end.
“Their incorrect understanding in this regard is fatal to their entire application,” he claimed.
Macpherson said the new IDT board members have only been appointed for the remainder of the term of the previous trustees, which ends at midnight on 4 July 2025.
After this a new IDT board will be constituted, he said.
Macpherson said the IDT’s Deed of Trust stipulates there shall at all times be a minimum of at least eight trustees and when he appointed the five new trustees he was giving effect to the trust deed’s requirements concerning the minimum number of trustees.
He said Clause 9.2 stipulates the process he is required to follow in making appointments to fill vacancies, adding it is clear he may only appoint trustees from a list of names provided to him by the board when he must fill vacancies that have arisen.
“When the applicants suggest … that they had the right to nominate candidates they are incorrect,” said Macpherson.
“Any right of nomination the applicants may have does not apply to the filling of vacancies.”
He added that Black Forum South Africa should explain why it ignored the contents of the letter he wrote to their first attorneys on 25 March 2025, in which he explained that Clause 9 is the applicable clause for filling vacancies.
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Reckless to launch a ‘hopeless case’
He said the applicants have “no excuse for ignoring the information provided to them and recklessly launching this hopeless case” and has requested the court to dismiss the application with costs.
Macpherson said by the applicants’ own admission, the court is unlikely to hear Part B of the application before the end of the year, long after the terms of the new appointees expire.
He further claimed the urgency of the case is self-created because the applicants were aware of his intention to fill the vacancies on either 19 February or 3 March.
Yet they only launched the legal challenge on an urgent basis more than a month after becoming aware of the appointments to fill the five vacancies.
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‘No delay’ say applicants
Morota said the applicants did not delay the institution of this urgent application and only became aware of Macpherson and the Master of the High Court’s “unlawful conduct” on 2 April 2025 when Macpherson’s media statement was released.
He said Macpherson refused to withdraw the appointments of the new trustees, but they were not effective until the Master of the High Court issued the new trustees with letters of authority, and until then, there was no final act to interdict.
Macpherson said it is his firm belief that his answering affidavit clearly demonstrates that Black Forum South Africa’s application is an abuse of court processes.
“Furthermore, as stated in our affidavit, serious questions remain regarding the legal standing of the deponents to the affidavits on behalf of Black Forum South Africa and Izwi Labantu, as the necessary founding documentation was not attached to their affidavits,” he added.
“We must ask why such extraordinary lengths are being taken to protect individuals at the IDT – and what exactly is being hidden.”
This article was republished from Moneyweb. Read the original here.
