Women & Law in Southern Africa Research and Education Trust and Others v Dinah Mandaza and Others

WLSA is a regional non-governmental organisation registered as a trust in 1993, conducting research on women's legal status across Southern African countries. The trust operates in research phases (Phase 1-5, each lasting approximately 3 years). In 1999, the Trust Deed was amended to introduce clause 5, limiting trustees to a maximum of two consecutive research phases. Mandaza was appointed as trustee and chairperson in 1993 and served through four research phases. A dispute arose when Mandaza and certain other trustees appointed Harrison as acting Regional Co-ordinator following the death of the incumbent. National Co-ordinators refused to accept this appointment and contended that Mandaza and other trustees' terms had expired at the end of Phase 4 (around 2000-2001). Mandaza refused to vacate office, claiming the amendment applied prospectively only and she was entitled to serve Phase 5. The National Co-ordinators were dismissed by Mandaza for insubordination. DANIDA froze funding due to the management crisis.

• Whether Mandaza's term of office as trustee and chairperson had terminated
• Whether the 1999 amendment to the Trust Deed limiting trustees to two consecutive terms applied to trustees already in office who had served more than two terms
• Whether a trust can be cited as a party in legal proceedings
• The proper interpretation of clause 5 of the amended Trust Deed regarding tenure of trustees

A provisional order was granted in terms of the draft, ordering that Mandaza and Harrison cease withdrawing money from WLSA bank accounts and that the banks suspend all banking transactions and revoke the signing powers of Mandaza and Harrison. The court indicated willingness to issue consent orders if parties agreed on interim payments for salaries or other necessary expenses.

When interpreting amendments to a trust deed, courts must give effect to the clear intention and purpose behind the amendment. Where a trust deed is amended to limit trustees to a maximum of two consecutive terms of office for the purpose of ensuring regular renewal of leadership, such provision applies to all trustees, including those already in office, to avoid absurdity and give effect to the amendment's purpose. A trustee's term of office expires at the end of a research phase/term and continuation requires nomination and appointment for a further term - it does not occur automatically. A trust is not a legal persona and cannot be cited as a party to legal proceedings; only the trustees in their representative capacity can sue or be sued.

The court expressed regret that the dispute had escalated to court proceedings, noting it was tragic that WLSA was being brought to its knees because trustees and management could not resolve their differences amicably. The court questioned why trustees were so determined to cling to office when they themselves had approved the amendment limiting terms, and noted they had already served four terms yet insisted on serving a fifth even if it meant destroying WLSA. The court noted the irony that Mandaza had herself instituted proceedings citing WLSA as a party in case HC 2053/03, yet objected when the applicants did the same. The court also observed that the Trust Deed was poorly drafted with many gaps and eventualities not catered for, including no provision for how nominees are selected, how the chairperson is appointed, or how trustees guilty of serious offences can be removed.

This case establishes important principles regarding the interpretation of trust deeds and governance provisions in South African and Zimbabwean trust law. It confirms that when interpreting amendments to constitutional documents of trusts or organizations, courts will look to the purpose and intention behind the amendment rather than applying a rigid prospective-only approach. The case demonstrates that provisions limiting terms of office will generally apply to all office-bearers to give effect to the underlying purpose of regular renewal of leadership. It also reaffirms the principle that a trust is not a legal persona capable of being cited as a party in litigation - only trustees can sue or be sued. The case is significant for non-governmental organizations and trusts regarding governance disputes and the interpretation of constitutional provisions on tenure of office.