Grootboom and Others v Mkele and Others (3922/2015) [2016] ZAECPEHC 80 (27 September 2016)

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[2016] ZAECPEHC 80
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Grootboom and Others v Mkele and Others (3922/2015) [2016] ZAECPEHC 80 (27 September 2016)

NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case no.
3922/2015
In
the matter between
MZWAMADODA
GROOTBOOM

1st Applicant
ANDILE
GROOTBOOM

2
nd
Applicant
NOMKHANGO
DLOTHO

3
rd
Applicant
SPIWO
MKHELE

4
th
Applicant
NOMAYEZA
NKOSINKULU

5
th
Applicant
MONWABISI
MLAMBO

6
th
Applicant
NONCEBA
RHAMNCWANA

7
th
Applicant
JACOB
BONISILE CEKISANI

8
th
Applicant
versus
ARCHIE
MKELE

1
st
Respondent
LUYANDA
MATIWANE

2
nd
Respondent
PHAZI
ALLA

3
rd
Respondent
DEON
PRINCE

4
th
Respondent
JOYCE
SENSIE

5
th
Respondent
RONA
SKOSANA

6
th
Respondent
LUYANDA
JAM-JAM

7
th
Respondent
YOLISWA
GROOTBOOM

8
th
Respondent
STEKANA
SKOSANA

9
th
Respondent
MINISTER
OF RURAL DEVELOPMENT
&
LAND
AFFAIRS

10
th
Respondent
MEC
FOR AGRICULTURE – EASTERN CAPE

11
th
Respondent
CW
MALAN INCORPORATED ATTORNEYS

12
th
Respondent
ISIBANE
COMMUNAL PROPERTY ASSOCIATION
13
th
Respondent
JUDGMENT
HARTLE
J
[1]
In
this matter – which the 1
st
to 8
th
applicants (“the applicants”) describe as a “dispute
between two executives”, they seek a declaratory order

declaring them to be the properly elected members of the executive
committee of the Isibane Communal Property Association, the
13
th
respondent herein (“Isibane”).
[1]
They
seek a further order declaring the 1
st
to 8
th
respondents
[2]
, constituting the
former members of the executive committee of Isibane, to have been
lawfully removed and substituted by their
most recent election as
members.  They also seek ancillary relief flowing from the
declaratory order which will place them
in a position to effectively
and practically manage the affairs of the association.
[2]
The
1
st
respondent, in his own capacity as a member of Isibane and vice
chairperson of the executive committee of Isibane, but also on
behalf
of the 2
nd
to the 9
th
respondents, and purportedly on behalf of Isibane itself, opposes the
application on two bases essentially.  He claims firstly
that
the applicants lack
locus
standi
in these proceedings because, except for the 2
nd
and 4
th
applicants, they are not members of Isibane and therefore not
eligible for office and, secondly, that the purported process
followed
by the applicants in “removing” the respondents
and appointing themselves as the executive committee members of
Isibane
was unlawful.
[3]
At the
outset it should be stated that the 2
nd
to 9
th
respondents have not filed confirmatory affidavits.  A person
elected to office under the constitution of an organization
has a
personal right to the office and if someone wrongfully usurps the
office he is entitled to sue as an individual.  Even
where a
number of duly elected officers in combination have the right to
conduct the affairs of an association then, if their offices
are
wrongfully usurped by other individuals, the rights which are
infringed are personal rights and legal proceedings are properly

taken by the persons concerned as individuals.
[3]
Each of the 2
nd
to 9
th
respondents ought to have confirmed their willingness and desire to
assert and protect their individual rights of office both
individually and or as a group, but have not put up such
confirmation.  Further, insofar as the supposed opposition on
behalf
of the 13
th
respondent goes, no resolution has been put up by Isibane authorizing
the 1
st
respondent’s involvement on this basis notwithstanding the
applicants’ objection to his purported acting on the
association’s
behalf.  It is trite that an association can
only act through the agency of a duly authorized representative.
I therefore
conclude that the opposition is not supported by any of
the respondents except the 1
st
respondent himself.
[4]
The
10
th
and 11
th
respondents, included as interested parties, are the national
Minister of Rural Development and Land Reform and the provincial
MEC
of Agriculture respectively.  They are cited in their capacities
as executive heads nominally responsible for those officials
in their
respective departments who have, according to the applicants,
assisted the parties in resolving the dispute between them
and the
1
st
to 9
th
respondents
culminating in the applicants’ election as executive members of
Isibane.
[5]
The
complaints in the founding affidavit made against the substituted
executive committee leading up to the intervention of the
10
th
and 11
th
respondent’s officials include a failure on the part of the
erstwhile committee to account to and include members in the
“goings
on” of Isibane; and to convene an annual general meeting since
the election of the interim executive committee
appointed
contemporaneously with the registration of Isibane.
[6]
The
12
th
respondent is a firm of attorneys in Jeffreys Bay who hold in trust
certain funds constituting rental income collected on behalf
of
Isibane which the applicants pray be paid over to their attorneys so
that they, as the executive body, can have the financial
wherewithal
to carry on the business of Isibane
[4]
.
[7]
There
is a dispute of fact on the papers concerning the lead up to the
impasse which has made this application necessary and lots
of finger
pointing as to who is to blame for the failure of Isibane’s
precursor to the currently constituted entity (known
as the Illima
Communal Property Association), but these are not issues which it is
necessary for this court to decide.
[5]
The narrow question in my view is whether the applicants were
properly elected as members of the executive committee of Isibane
in
substantial compliance with its constitution at the purported annual
general meeting on 17 November 2012.
[8]
Isibane
was registered as a communal property association in terms of section
8(3) of the Communal Property Associations Act
[6]
(“the CPAA”), evidently as a sequel to a land restitution
claim of property in Hankey described as “the remaining
extent
of Farm Boschbok Koppen, Portion 1, Farm No. 182, situated at
Boschbok Koppen” on 2 May 2002 under registration number

CPA/02/0425/A
[7]
.  Isibane
is the registered owner of this property including three other farms
held for the use and benefit of designated
members of the Boschbok
Koppen community which, it appears from official minutes of Isibane
coincidentally filed in the present
litigation, is land additional to
the claim acquired for an extended community including former
labourers and the tenants of the
previous owners of the three farms
ostensibly on one or other of the bases referred to in section 2 (1)
of the CPAA.
[8]
[9]
The
CPAA establishes communal property associations for the purpose of
holding land restored to communities through the land restitution

process.  The act was passed to give effect to the
constitutional right of communities to restitution of land
dispossessed
in terms of discriminatory laws or practices of the
apartheid regime.
[9]
Whereas the restitution of Land Rights Act
[10]
regulates
the process of claiming restitution of land in the exercise of the
constitutional right of individuals in communities
to reclaim their
lost land, the tandem CPAA creates the mechanisms in terms of which
communities may possess land restored under
the restitution process.
The act embodies the entitlements (the rights owned by a community)
and protection thereof in a
new juristic person created in terms of
this law.
[10]
The
CPAA derives its force from the Constitution to which it is
inextricably linked. Section 25 (7) of the Constitution recognizes

and protects rights in land which go beyond registered
ownership.
[11]
Thus the
CPAA creates a desired legal instrument (upon registration it is
established as a juristic person with perpetual
succession regardless
of changes in its membership)
[12]
with the necessary safeguards in place through which previously
disadvantaged members of the community may acquire and possess
land
that belongs indivisibly to the entire community.  One of the
ways in which this recognition and protection is afforded
to members
of traditional communities is through a written constitution by which
the association is governed, endorsed by the Department
of Rural
Development and Land Reform (“the Department”) which is
responsible for the effective implementation of the
CPAA.  Upon
registration of an association the constitution becomes a legally
binding agreement between the association and
its members and is
deemed to be a matter of public knowledge.
[13]
It is to that constitution that the court must look in order to
determine whether the “removal” of the 1
st
to the 9
th
respondents and the substitution of the applicants in their place by
the ensuing election were lawful.
[11]
The
CPAA aims to ensure that through approved governing vehicles, the
relevant body/entity is managed in a manner which is
non-discriminatory,
equitable and democratic and is accountable to
its members.  The further objective of the act is to ensure that
members of
such institutions are protected against the abuse of power
by other members.
[14]
[12]
The
registration of permanent associations is approved by the
Director-General of Rural Development and Land Reform in terms of
the
provisions of section 8 (2) of the CPAA which sets forth stringent
requirements for eligibility, one of them being that the
constitution
adopted by the association complies with the principles set out in
section 9.
[13]
In
Bakgatla-Ba-Kgafela Communal Property Association v
Bakgatla-Ba-Kgafela Tribal Authority and Others,
[15]
the Constitutional Court helpfully tabulated the five principles that
underpin the democratic nature of associations established
in terms
of the CPAA as follows:
“
[25]
… The first principle is that an association’s
constitution must embrace fair and inclusive decision-making
processes
that afford members the opportunity to participate in the
association’s decisions.  These include decisions to
dispose
of or encumber the association’s property, and
termination of membership of any person on reasonable grounds,
following a
fair hearing.
[26] The
second principle is equality.  An association’s
constitution must proscribe discrimination of any kind,
irrespective
of whether it is direct or indirect, in particular discrimination
based on “race, gender, sex, ethnicity or
social origin,
colour, sexual orientation, age, disability, religion, conscience,
belief, culture or language”.  Notably,
this equality
clause does not leave room for fair discrimination.  The only
exception recognised is differentiation based
on different classes of
membership that existed before the Act was enacted.  But even
then, all members in a single class
must enjoy equal rights.
[27] The
third principle is that the constitution must create democratic
processes that govern the manner in which the association’s

meetings are to be conducted.  The constitution must confer upon
all members the rights: to receive adequate notice of all
general
meetings; to attend, speak and vote at the meetings; to receive
copies of minutes and records of decisions taken at those
meetings;
and to inspect and make copies of financial statements of the
association.
[28] The
fourth principle entails fair access to the property of the
association.  The constitution must require the association
to
obtain consent of the majority of the members before it can sell or
encumber property.  Further, the constitution must
also require
the association to manage property for the benefit of all members in
a participatory and non-discriminatory manner.
Members of the
association may only be excluded from access to its property in
accordance with the procedures set out in its constitution.
[29] The
last principle relates to accountability and transparency.  The
constitution must enable members to hold the
association accountable
by imposing fiduciary responsibilities on members of the executive
committee in relation to the association
and its general members.
The constitution should require committees to exercise their powers
in the best interest of all
members, without any advantage to
themselves.  Effective financial management must form part of
the constitution’s requirements,
which must include opening a
bank account in the name of the association into which all its cash
should be deposited.  The
constitution must also require that
the association’s financial records be subjected to an
independent verification annually.
”
[16]
[14]
These
principles safeguard the interest of members of traditional
communities and empower them to participate meaningfully in the

management of communal property by way of “participatory
democracy” in the affairs of traditional communities.

Through the desired legal instruments and minimum standards of
governance “members of the community are afforded an equal

voice in matters of the association and the property it holds on
behalf of the community.”
[17]
[15]
Essential
to the proper functioning of such an association, is the appointment
of a managing group of persons with executive powers
entrusted to
them in accordance with its constitution.  “Committee”
is defined in the CPAA
[18]
as
“a committee elected by the members of an association to manage
the affairs of that association”. Axiomatic to the
effective
management of a communal property association is that the appointment
of its leaders carries the endorsement of its members
following an
election that is constitutionally compliant.
[16]
Further
integral to the successful implementation of the CPAA and the
protection of the interests of members of the community through
an
association established for such a purpose is the advisory and
oversight function which the Department plays in ensuring that

previously disadvantaged members of traditional communities’
rights of access to communal land are meaningfully realized
and
respected.
[17]
The
CPAA imposes various duties on the Director-General of the
Department.  In the main the act requires the incumbent and

those who he authorizes to ensure that its objects are realized.
Firstly he is charged with the responsibility of furnishing
all
traditional communities with information about the act which may take
the form of pamphlets and other documents prepared and
distributed by
the Department in various communities.  The documents must be in
a language spoken in the particular community
for them to be widely
accessible.
[19]
[18]
Apart
from making decisions concerning the eligibility of associations for
registration under the act, whether provisionally or
permanently
subject to the strict criteria set forth in the CPAA, the Department
offers assistance at the inception stage in the
preparation of the
association’s draft constitution by appointing skilled persons
or organizations acceptable to the community
and with relevant
knowledge or expertise to provide the necessary assistance and
support to such community as well as suggesting
amendments to
proposed constitutions in order to ensure compliance with the
provisions of section 9 of the CPAA. The Director-General
does so by
the designation of any officer in the Department or other suitable
person to provide the community with such assistance
as may be
required and available for the preparation of the draft
constitution.  Oversight also comes in the form of an authorized

officer of the department attending the association’s meetings
prescribed for the adoption of its constitution, by taking
minutes of
the proceedings, witnessing the adoption of the constitution and
compiling a report setting out his or her observations
in relations
to certain key factors which aim at ensuring a fair and democratic
process. (It should be noted however that no similar
involvement is
prescribed by the Department post registration, although in practice
– and this is evident from random minutes
co incidentally filed
in the present application, officers appear to keep an active
presence at meetings.)
[19]
The
Department (through the designated “Registration Officer”
[20]
)
also has a record keeping function and ensures transparency by
providing members of the public with the information contained
in the
register and with a copy of the constitution of any registered
association or similar entity.
[20]
Once
registration has been effected, the Director-General assumes other
responsibilities in respect of a registered association.
[21]
[21]
The
Director-General or Registration Officer issues certain prescribed
certificates,
[22]
which appear
to constitute
prima
facie
proof of the correctness of their contents.
[23]
These are no doubt necessary for objective clarity and confirmation
of information collated concerning the associations or other
entities
registered under the act.
[22]
The
Director-General may inspect the affairs of the association to
determine whether it continues to comply with the CPAA and its

constitution.
[24]
In
performing this function the Director-General may demand to be
furnished with any relevant information.
[25]
The
duty to provide information by an association is addressed in
paragraph 6 of the regulations promulgated under the CPAA, read

together with section 11 (1), which provides that associations are
obliged, at prescribed times, to furnish prescribed documents
and
information to the Director-General in order to enable him “to
monitor compliance with the provisions of the relevant
constitution
and (the CPAA)”.
[26]
Paragraph 6 (1) thereof provides in this regard, albeit not with any
specificity as to content, that:
“
A
communal body must on request provide the Director-General and the
Registration Officer respectively with all the information
and
documents to which each of them is entitled, or which each is
required to possess in terms of the Act and these regulations,

including the information and documents that are reasonably necessary
for the purposes of the Act and Regulations.”
[27]
[23]
Paragraph
8 of the regulations is particular relevant to an aspect raised by
the parties which I deal with below and I digress to
highlight these
provisions which provide that the following categories of information
fall to be furnished to the Director-General
in respect of a
registered association, evidently at the key moments indicated in the
text below:-
“
8(a)
the names and where readily available the identity numbers, and the
addresses of the members of the body's
governing body elected at the
Annual General Meeting indicating what office (if any) is held by
each of them;
[28]
(b)
the names and where readily available the identity numbers and the
addresses of all
new members whose names do not appear on the most
recent membership list previously furnished to the
Director-General;
[29]
(c)
copies of—
(i)
the body's annual balance sheet or financial statements which have
been independently
verified as approved by the Director-General;
[30]
and
(ii)
the minutes of all general meetings of the members of the body which
were held since
the registration of the body or the previous Annual
General Meeting, including the minutes of the last Annual General
Meeting;
[31]
(d)
a list of all dealings in land or rights to land involving the body
during the period since
the registration of the body or the previous
Annual General Meeting, which created, altered or extinguished any
right to land held
by the body itself or by any of its members;
(e)
any other information and documents required by the Director-General
which he/she
requires to enable him/her to carry out his/her duties
in terms of the Act and these regulations.”
[24]
In
carrying out inspections the Director-General may peruse and make
copies of any document relating to the affairs of an association
and
may also subpoena any person with relevant information.
[32]
[25]
Perhaps
the most important role which the Department has in keeping oversight
of an association’s affairs is acting when any
dispute arises
within the body.  The relevant provisions of the CPAA are set
out below and demonstrate the level of involvement
on its part under
the leadership of the Director-General. Firstly, conciliation by
skilled and credible officials or organizations
is offered as a tool
to assist community members with vested interests in an association’s
affairs to resolve disputes.
Section 10  provides in this
regard that:
“
(10)
(1)…
(2)
The Director-General may, of his or her own accord or at the request
of a community,
an association, a provisional association or any
member thereof, appoint a conciliator acceptable to the parties to a
dispute to
assist in resolving any issues for the purpose of the
preparation or adoption of a constitution or to resolve a dispute
between
an association or provisional association and its members or
between members or committee members: Provided that if the parties
to
the dispute do not reach agreement on the person to be appointed, the
Director-General may appoint a person who has adequate
experience or
knowledge in conciliating community disputes.
(3)
A conciliator appointed in terms of
subsection (2) shall attempt to resolve the dispute
(a)
by mediating the dispute;
(b)
by fact-finding relevant to the resolution of the dispute;
(c)
by making a recommendation to the parties to the dispute;
(d)
in any other manner that he or she considers appropriate.
(4)
The conciliator shall report to the Director-General and the parties
on the result
of his or her conciliation and make recommendations in
relation thereto.
(5)
All discussions taking place and all disclosures and submissions made
during the conciliation
process shall be privileged, unless the
parties agree to the contrary.
(6)
…
(7)
…
(8)
…”
[26]
Secondly,
the Director-General may himself take certain steps to resolve
disputes, aiming to do so in accordance with the provisions
of the
relevant association’s constitution.  Sections 11 (6) and
(7) provide as follows in this regard:
“
(6)
If a dispute arises within an association or provisional association
the Director-General may,
of his or her own accord, or at the request
of a member of the association or provisional association-
(a)
undertake an enquiry into the activities of the association or
provisional association,
in which event he or she shall take
reasonable steps to ensure that interested parties are made aware of
the enquiry and of its
outcome;
(b)
advise the association or provisional association and the members of
their respective
rights and obligations;
(c)
make a conciliator contemplated in section 10(2) available to assist
in the resolution
of the dispute;
(d)
require the members to conduct an election for a new committee, if
the integrity, impartiality
or effectiveness of the committee or any
member of the committee is in question;
(e)
initiate proceedings contemplated in section 13; or take such other
reasonable measures
as he or she considers appropriate in the
circumstances.
(7)
When acting in terms of subsection (6) the Director-General shall be
guided by the
aim of resolving the dispute in accordance with the
provisions of the constitution of the association.”
[27]
The
Director-General may also initiate proceedings to have an association
placed under his administration or place it under liquidation
where,
because of insolvency or maladministration or for any other cause the
association is unable to pay its debts or meet its
obligations, or
when it would otherwise be just and equitable in the circumstances to
seek such relief.
[33]
It would
appear that the Director-General might do so under circumstances
where members are unable to resolve disputes among themselves
or
through the Department’s agency, which drag on interminably,
and result in the association not being managed effectively.
[34]
[28]
Finally,
the Director-General may help any member of an association to
challenge the validity of transactions which do not comply
with
section 12 of the CPAA.
[29]
It is
evident from the foregoing that the role of the Director-General and
of the department is not a supine one but requires constant

monitoring and particular oversight and involvement on its part to
ensure the meaningful protection of the interests of members
in
respect of the exercise of their right of access to communal property
and participatory democracy in the governing structure.
[35]
This is a Constitutional imperative in my view borne out by the
preamble to the CPAA and the various provisions in the act requiring

the Department’s supervision over a particularly vulnerable
member group, who let alone having experience of registered ownership

of immovable property with its attendant obligations of any kind, are
required to hold and manage their property interests through
a very
complex legal entity by the application of wieldy rules contained in
the entity’s constitution and in the provisions
of the CPAA.
[30]
The
question though is where the fine line between the Department’s
oversight and the envisaged and desired autonomy of a
communal
association (which through the rigorous process of registration one
assumes has established a fully-fledged democratic
institution
especially able and obliged to serve the needs of its vulnerable
member group) begins and ends. As I will indicate
below the
Department’s officials concerned in this instance perhaps lost
sight of the restrictions on their capacity to involve
themselves in
the affairs of Isibane on an acceptable basis and, instead of
empowering the association, may have unwittingly disabled
it quite
substantially given the manner in which the simmering tension between
the “two executives” has dragged on
for years now
[36]
.
[31]
The
applicants rely for the relief they seek on two principal
submissions. The first is that there was substantial compliance with

the provisions of Isibane’s constitution in convening the
annual general meeting at which they were elected. In stating this

conclusion the applicants aver that: 1) proper notice of the meeting
was given; 2) the majority of the families (who are members
of
Isibane) were represented at the meeting. (Only the 1
st
to the 9
th
respondents, who knew of the meeting, are alleged not to have
attended it and consciously so); 3) the meeting was properly convened

by Ms Goci, an official of the Department, who was entitled to do so,
and to dissolve the prior executive, since she was appointed
by the
Director-General  in terms of section 10(2) of the CPAA to
conciliate the dispute that had its impetus in the 1
st
to the 9
th
respondents’ neglect or refusal to convene “a meeting of
(Isibane) since the date of their election”; and 4)
that all
decisions taken were by a majority of members present at the meeting.
[32]
The
1
st
respondent refutes all of these grounds.  He denies that proper
notice was given of the meeting as required by Isibane’s

constitution.  He rejects the notion that the 10
th
respondent resolved any disputes between the parties culminating in
the supposed election of the applicants as members of the executive

and in any event contends that Ms Goci was not authorized nor
empowered to either convene the meeting or to dissolve the executive

committee of which he was the vice chairperson. Despite not having
being present at the impugned meeting he also denies that the
meeting
was properly constituted, quorum wise. He added another string to his
bow by asserting that, except for the 2
nd
and 4
th
applicants, the other applicants are further not eligible for
appointment to office because they are not members of Isibane.
[33]
The
second submission on which the applicants rely for the relief sought
by them (which I will deal with first) is that since the
Registration
Officer of the 10
th
respondent “registered” the changes in the executive
committee of Isibane to reflect that the executive committee of

Isibane is comprised of the applicants with effect from 2 May 2014,
this makes it so, or at least constitutes the necessary proof
of the
substitution of the applicants in the place of the 1
st
to the 9
th
respondents as the executive committee.  Mr Nobotana, who
appeared on behalf of the applicants, contended that the issue of
the
letter by the Registration Officer dated 9 May 2014 constituted a
valid administrative decision with legal effect which stands
until it
is set aside by order of court.
[37]
[34]
At
some stage the 1
st
to the 9
th
respondents were evidently advised to seek a declarator concerning
the confusing impact of the so called registration of the purported

change of executive committee members of Isibane, but by the launch
of the present application the first respondent was firmly
of the
view that the act of registering the changes, inasmuch as it
purported to constitute an administrative decision with the

consequences contended for by the applicant, was
ultra
vires
the
CPAA. In the 1
st
respondent’s view the recordal by the Registration Officer of a
change of executive committee members was therefore to be
regarded as
pro
non scripto
.
[35]
As
indicated above, the regulations framed under the CPAA enjoin the
communal body annually and within two months of the date of
its
annual general meeting to furnish the Director-General with the names
and identity numbers and addresses of the members of
the body’s
governing body elected at the annual general meeting indicating what
office is held by each of them. It also enjoins
the Director-General
to receive this information evidently firstly as a record, secondly
in the interests of transparency so that
a public record is available
which promotes accountability, and thirdly because it is necessary in
my view for him to maintain
an oversight function to ensure that the
objects of the CPAA are being achieved.  For this reason I do
not agree that the
recordal is
pro
non scripto
because it serves the necessary functions aforementioned. Indeed the
10
th
and 11
th
respondents would be failing the members of Isibane by not calling
for or noting in the registry’s  files any changes
to an
executive committee following an association’s annual general
meeting within the prescribed time period. Why it did
so in this
instance some sixteen to eighteen months after the supposed annual
general meeting, however, and without flagging with
Isibane that its
constitution in actual fact required a review of the management body
in November each year is quite besides the
fact that the changes are
necessary to be recorded in order to give effect to the objects of
the CPAA.
[36]
As for
the legal effect of the Registration Officer’s letter dated 9
May 2014 it constitutes nothing more in my opinion than
an
acknowledgement that he has updated the Department’s records at
the behest of the applicants who asked him to note the
purported
change of executive committee members.
[38]
I am not in agreement that what the letter amounts to is an
administrative decision which is required to be set aside or
that it
clothes the purported elections with any legitimacy. The validity or
not of the appointment of the executive committee
flows from the
prescripts of the association’s constitution and must be
determined with reference to these requirements.
Inasmuch as
the letter may constitute a “certificate” (which is not
pertinently called for under the provisions of
either the CPAA or the
regulations) it would at most provide
prima
facie
evidence as to its contents.  In this instance however the 1
st
respondent has denied the validity of the election of the applicants
both from a substantive and procedural point of view.
The
refusal by the 1
st
to the 9
th
respondents to verify the impugned election was also apparent to the
applicants long before the Registration Officer recorded the
changes
in the executive committee which were advised to him by the
applicants.
[37]
It is
apposite at this stage to have regard to some of the provisions of
Isibane’s constitution which bear on the election
of members to
serve on the executive committee and the procedures for meetings
etc.:
“
6.
Committee
[39]
6.1
The Committee, which is responsible for the implementation of the
provisions of this Constitution
subject to the aims and objectives
thereof, undertakes the management of the affairs of the CPA subject
to the instructions of
the Members taken at any General Meeting as
are consistent with the aims of the constitution.
6.2
An Interim Committee, comprising of those persons whose names and
particulars are contained
in Schedule “B” to this
constitution, is hereby appointed to serve in this capacity until the
holding of the first
Annual General meeting after registration of
this CPA with the Director-General of the Department of Land Affairs,
provided that
such Annual General meeting shall be held within 1
(one) year from date of registration.
6.3
At the Annual General Meeting persons are elected to form the
Committee.  The committee
will consist of as many members as the
Annual General Meeting deems fit.  The appointment of Committee
Members will be for
a period of 1 (one) year ending at the following
annual General Meeting and this procedure is to be repeated yearly
thereafter.
[40]
Members
will ensure that Committee Members are elected democratically
6.4
The appointment of the Committee Members shall be done with due
consideration of the following
principles:
6.4.1
Committee Members serving at any given time shall be persons who are
individual members of household Members
of the CPA.
[41]
6.4.2
No two or more members of the same household may hold office at the
same time
6.4.3
All future appointments of Committee Members shall be done with due
consideration of the principles of representation
as stated in the
Act.
6.5
If at any time during the period of office of the committee, a
vacancy should arise, whether
in consequence of death, resignation,
disqualification, removal, or for any other reason, the remaining
Committee members shall
co-opt a Member of the CPA as a Committee
Member to fill the resultant vacancy for the balance of the period of
office of the committee
then serving, with due regard to the
representational criteria, and the needs and exigencies of the
committee.
6.6
The Committee’s power of co-option as stated in Clause 6(v)
shall be limited in so
far as not more than 2 (two) Committee Members
may be co-opted by the remaining Committee Members as aforesaid.
In the event
of the need arising for the co-option of more than 2
(two) Committee Members the remaining committee shall as soon as
possible,
convene a Special General Meeting for the purpose of
electing and appointing such additional Committee members as may be
necessary
for the balance of the term of office of the committee then
serving.
6.7
Retiring Committee Members shall be eligible for re-election.
No members may serve
on the committee for more than two consecutive
times.
6.8
…
.(Not
applicable)
6.9
The office of a Committee Member shall be vacated if she or he:
…
..(Not
applicable)
6.10
Notwithstanding anything to the contrary herein before contained:
6.10.1.
A duly convened general meeting of members shall have the right to
remove, substitute or appoint additional committee members,
as it may
deem appropriate.
6.10.2
No removal of a Committee Member shall be of force or effect, unless
adopted at a Special General Meeting called on not less
than 21
(twenty one) days’ prior written notice, which shall state the
intention to propose a Resolution for the removal
of a Committee
Member.
6.10.3
Provided that the rules of natural justice shall be adhered to when a
Committee Member is removed; viz.:
…
..(Not
applicable)
6.11
Each Committee Member shall have the right to appoint any Member of
the association, in writing, as
her or his proxy to act during her or
his absence.
6.12
Provided that when a Committee Member is absent for more than three
months she or he will be removed
as Committee Member.
6.13
…
.(Not
applicable)
6.14
…
.(Not
applicable)
7.
Committee
Powers
7.1
….
7.2
….
8.
Committee Meetings
8.1
The Committee may arrange its meetings and execute its duties as it
deems fit, subject to
the following provisions:
8.1.1
The Chairperson, Secretary, Treasurer and Disciplinary Officer are
elected by the general membership and
hold office for the term of
office of the Committee.
8.1.2
The Committee will meet monthly, but is obliged to convene a
committee meeting on request of at least two
(2) Members of the
Committee.  The notice of such a meeting must be in writing and
must include an agenda and be dispatched
at least seven (7) days
before the meeting unless, in special circumstances, an urgent
meeting is required, in which case notice
shall be given in a manner
prescribed by the Chairperson (or acting Chairperson when relevant).
8.2
The quorum required at committee meetings shall be 50% plus 1 member
of Committee Members
serving at any given time.
8.3
Each Committee Member will have one vote with all resolutions being
taken by majority vote.
8.4
In the event of equality in votes the Chairperson will have a final
and decisive vote.
8.5
Minutes are kept of all committee meetings and are to be signed by
the Chairperson.
8.6
Minutes of all committee meetings shall be made available to any
Member upon request.
8.7
A written resolution signed by the necessary quorum of Committee
Members shall have the
same validity as a decision taken by the
Committee at a duly consisted committee meeting.
8.8
Members are entitled to attend committee meetings and the Chairperson
may allow a Member
to address the Committee at such a meeting.
8.9
A Committee Member who has a conflict of interest in a matter before
the Committee shall
declare her or his interest and recuse herself or
himself from participating in that decision.
9-13
……..
14.
General
Meetings
14.1
General Meetings of members are convened monthly, or whenever a need
arises, in order to deal with
the affairs of the CPA, including but
not restricted to the appointment, removal and replacement of
Committee Members, and guidance
and commanding of the committee, and
the handling of such other matters that require the consent of
Members at a General Meeting
as prescribed by the Act
[42]
or this Constitution; with due regard that:
14.1.1
An Annual General Meeting shall be conducted within 21 (twenty-one)
days prior notice to all Members whose names appear
on the Membership
list at any given time where reasonably possible.
14.1.2
A General Meeting shall be conducted within 7 (seven) days prior
notice to all Members whose names appear on the Membership
list at
any given time where reasonably possible.  Shorter notice may in
exceptional circumstances be given subject to the
approval of the
Chairperson of the Committee.
15.
Annual
General Meetings
15.1
The first Annual General Meeting shall be conducted within one year
reckoned from the date of registration
of the CPA, and the subsequent
Annual General Meetings will be held in November of each year.
[43]
The agenda of the Annual General Meeting shall include the following:
15.1.1
The submission and approval of the written annual report by the
committee.
15.1.2
The Financial Year report.
15.1.3
The election of the Committee members.
15.1.4
Such other matters deemed appropriate.
15.2
….
15.3
….
16.
Procedures
at General Meetings
16.1
Monthly general meetings shall be called by the Secretary.
16.2
The General Meeting may at any time be convened on request of any of
the following:
16.2.1
The Chairperson or Acting Chairperson of the committee
16.2.2
Any two Committee members.
16.2.3
At least 10% of the members as reflected in the membership register
at any given time.
16.3
The notice of the General Meetings shall be served in a manner as the
committee may deem appropriate
from time to time, provided that if
the Secretary of the committee, after having been duly requested to
call a meeting, omits to
give notice that a meeting will be convened,
the requester/s has the right to give notice of such meetings as
mentioned above.
16.4
The Chairperson, or in her or his absence, the Acting Chairperson of
the committee shall act as Chairperson
at the General Meeting.
16.5
Except where a special resolution is required all decisions that are
taken at a General Meeting shall
be decided by simple majority vote
of those present and entitled to vote.
16.6
In the event of an inequality in votes the Chairperson will have a
casting vote.
16.7
A quorum for any decision to be taken at a General Meeting unless
stated otherwise is:
16.7.1
Fifty percent of the Members as reflected in the Membership register
at any given time.
16.8
In the event of a quorum not being present the meeting shall be
adjourned for 7 (seven) days, during
this time written notice shall
be given to all the members in writing where reasonably possible.
At the latter meeting the
members present shall be deemed to
constitute a quorum, provided that where a defined majority is
required in terms of the Act
a valid decision may not be taken unless
such majority is obtained.
17.
Notice of General Meetings
17.1
Notice of General meetings shall be given to all members of the CPA
whose names are reflected on the
membership list at any given time.
17.2
Notice of General Meetings will be served at the last known address
of the member to some person apparently
not less than 16 years of age
and apparently residing there; the bona fide omission to give notice
of a General Meeting will not
cause the invalidity of the meeting.”
[38]
The
applicants assert that they were appointed by members present at an
annual general meeting properly conducted and that this
meeting was
called by Ms Goci as a culmination of the resolve of a dispute.
Although a removal of the 1
st
to the 9
th
respondents as members of the executive committee was alleged, this
is not a ‘removal’ contemplated in clauses 6.10
or 6.12
of Isibane’s constitution and certainly no case was made out by
the applicants that they purported to follow this
route for which
provision is made in the specified instances.  The prayer in
their notice of motion declaring the 1
st
to the 9
th
respondents to have been “lawfully removed” follows the
allegation that Ms Goci at the purported annual general meeting

dissolved the executive committee for whatever reason she was
prompted to do so. The applicants evidently simply assume that she

was entitled to do so and to call the annual general meeting.
[39]
It is
apposite to refer to the minutes of the purported meeting prepared by
the 3
rd
applicant and edited by the 1
st
applicant (who it seems took the lead at this gathering).They reveal
that Ms Goci addressed those present under an item referred
to on the
agenda as “Regularizing of the CPA” following the opening
of the meeting by the 2
nd
applicant:
“
4.
Brief
Background of the Meeting:
·
Mr
Mzwamadoda Grootboom briefed the meeting that this meeting is the
culmination of a series of meetings aimed at resolving the
exclusion
of the legitimate title deed holders (beneficiaries) of the farm
Boschbokkoppen Farm No.182 as well as the legitimacy
of the executive
that is currently administering the affairs of the farm.  He
informs the meeting that the meeting was agreed
upon by both the
disputed executive of the CPA and us the representatives of the
excluded beneficiaries (title deed holders) as
well as the Legal
Department of RD&LR at a meeting held at the offices of
Dept.
of RD&LR
at their regional offices in Port Elizabeth in
September
2012
.
Mr M Grootboom informs the meeting that this meeting was also
sanctioned by both parties’ attorneys.  The first
meeting
was held on
04
November 2012
and the whole executive of the
Isibane
CPA
was not present and no apology was tendered to that effect.  Mr
Grootboom further informs the meeting that after the deliberations
at
the meeting of
04
November 2012
it was resolved that the follow up meeting be summoned where the
executive of Isibane will be invited to the meeting and the
responsibility
was for the Department of RD&LR to invite them to
the meeting that was then scheduled for the
18
November 2012
.
[44]
5.
Regularizing the CPA:
*
Ms
Xolelwa Goci who is the legal manager of RD&LR informs the
meeting that she was briefed by the officials who attended the

meeting on 04 November 2012 that the executive was not present in the
meeting.  Ms Xolelwa Goci wanted to know if the executive
was
present so that the process of regularizing the CPA can proceed and
the whole executive was again absent clearly ratifying
the
allegations made by the beneficiaries that no accountability from the
executive since they took over the reign in 2006.
Ms
Xolelwa Goci informs the meeting that the Isibane executive is
officially dissolved.  She further informed the meeting that
she
is not going to waste time as it is clear to them as the Department
that the executive of Isibane is not accountable to the
very same
members they claim to be representing and that the meeting will
proceed and the nine (9) member committee representing
each family to
be elected that will administer the affairs of the CPA.
The meeting agreed elected members to work closely with the
Department to ensure that the CPA is regularized and that all

beneficiaries benefit equally from land of their forefathers.
6.
Election of Legitimate Structure:
·
The
elections were conducted by Ms Xolelwa Goci, Mr Siyabonga Ngxingolo,
Ms Mafundityala all from the office of RD&LR.
·
The
nine (9) member committee was agreed upon by the meeting and that
they will be elected from each family who has title deed so
as to
ensure accountability.
·
The
meeting resolved before the elections that both Mr Andile Grootboom
and Mr Mzwamadoda Grootboom will form part of the nine (9)
member
committee as they have been tasked to challenge the legitimacy of the
executive of Isibane and the exclusion of the beneficiaries
from all
the activities of the land since the year 2000.
·
The
following members
(these
include the eight applicants in these proceedings
)
… were elected representing each family tree...”
(Emphasis in italics
added.)
[40]
It is
unnecessary for this court to determine whether there was any
validity to the alleged dispute or what the precise nature thereof

was as advised to the Department’s officials by the
applicants.  It is unfortunate that no affidavit was delivered
by the 10
th
or 11
th
respondents in order to give an objective account of what problems
were raised or whether the help of the Department was in fact

solicited on a formal basis in terms of the provisions of section 10
(2) of the CPAA.
[45]
If that
were the case one would have expected a formal request outlining the
dispute which brings it within the ambit of the subsection,
the
appointment of an approved conciliator acceptable to all the parties
to that dispute, and a conciliation process culminating
in a report
to the Director-General with that official’s recommendation to
him.  This is evidently what the inclusive
provisions of
subsection 10 require, not some casual handling of the matter at
probably the most critical of a communal property
association’s
meetings.
[41]
It
appears from the contents of an email attached to the founding papers
dating back to 31 October 2011 that a colleague of Ms Goci
had
referred a request to her from “beneficiaries of the farm”
(the applicants align themselves with this group) to
deal with on the
basis that she was already “engaged with the beneficiaries”
and because it was believed that she could
“shed some light
with regard to the issues if any was needed.  The colleague, Ms
Klaas (ostensibly from the Department),
clarifies in the email that
the aggrieved beneficiaries “are requesting the provincial
office to facilitate a general meeting
which needs to be convened so
that new trustees can be appointed so that work progress at the
(Bosch Boshoek Koppen) farm can continue”.
Whilst I am
prepared to accept for present purposes that the applicants and those
families they represent felt aggrieved - Indeed
this is ostensibly an
extremely emotive issue for them, and that this did indeed culminate
in the Department’s involvement
(I put it no higher than that)
at the purported annual general meeting on 17 November 2012 on the
basis reflected in the minutes,
the facts do not establish in my view
that a formal conciliation process in terms of the CPAA was properly
commissioned or that
the outcome (the convening of the annual general
meeting and seeking to “regularize the CPA” by dissolving
one executive
and replacing it with another - assuming even for the
moment that this election carried the blessing of the majority of
members
present at the meeting) is one permitted by the provisions of
section 10 of the CPAA.
[42]
Even
the proper commissioning of a conciliator is limited to him or her
attempting to resolve the dispute by mediation, or fact-finding

relevant to its resolution or by making a recommendation to the
parties to the dispute (as opposed to only one of those parties).
[46]
[43]
I am
not in agreement with the submission made on behalf of the applicants
that the general provision in section 10 (3) (d) of the
CPAA, namely
that the conciliator may attempt to resolve the dispute “in any
other manner that he or she considers appropriate”
extends to
or covers over Ms Goci purporting to “regularize” the
association as she did, however well intentioned she
might have been
in this regard.     It is apparent from the
provisions of section 11 (6) of the CPAA that the
power of even the
Director-General himself is limited to
requiring
the members to conduct an election for a new committee
once the integrity or impartiality or effectiveness of the committee
or any member of the committee is called into question.
[47]
[44]
The
reason why Ms Goci’s convening of the annual general meeting
and purported decision cannot be countenanced is quite apparent.

The power to call an annual general meeting firstly reposes strictly
in the executive leadership itself in terms of Isibane’s

constitution.  Secondly, once an office has been conferred, it
can be revoked only in terms of an association’s constitution,

in this instance (on the basis of the case pleaded by the applicants)
by valid elections taking place at a properly constituted
annual
general meeting.  Further, the provisions of the CPAA do not say
what the applicants contend for.  Ms Goci is
simply not
authorized by the provisions of the act to either convene the
meeting, or to pronounce an executive committee disbanded.
What the
provisions of the act authorize her to do (assuming that she was
called upon to act as a conciliator) is to conciliate
a dispute
within the ordinary meaning of that concept and then only in a manner
consistent with what the association’s constitution
dictates in
this regard,
[48]
The governing
principles which the members have agreed to should not be ignored or
overridden by highhanded officials.
[45]
It is
worth mentioning incidentally that Isibane’s constitution has
its own unique provisions for the mediation of disputes
which require
such between members to be undertaken by a disciplinary committee
appointed by the committee and acting as a mediator,
and between a
member and the committee to be undertaken by members elected at a
general meeting to mediate the dispute.  Specific
complaints of
the abuse of power or the transgression of the constitution are to be
addressed by a disciplinary committee appointed
by the committee
which may be referred to the general membership. If disputes and
complaints cannot be resolved at either of those
levels then and only
in that event are the parties entitled to resort to outside mediation
and, failing that, to litigation.
Although somewhat ambiguously
stated in the constitution, aggrieved members have the right to
appeal (I suppose in the ordinary
context of the word) to the
Director-General and the court for “appropriate relief and
redress.” Finally, the costs
of any mediation will be for the
account of the parties to the dispute and will not be the
responsibility of Isibane.
[46]
Even
when constitutional resort may be had to conciliation in terms of the
CPAA, it is plain that this too follows a democratic
process which
respects the rights of both parties to the dispute.  Although a
member may ostensibly have the decision of the
Director-General to
conciliate the dispute foisted on him in the sense that he or she may
not be in agreement that there is a dispute
or at least on the terms
complained of, that party is still entitled, for example, to be
involved in the choice of an appropriate
conciliator to be
appointed.
[49]
The very
concept of conciliation further requires the conscious involvement of
both parties in the process who are evidently not
obliged to accept
the possible outcome suggested to them by the neutral third party
conciliating the issues between them.
[50]
The role of the conciliator is limited to
assisting
in the resolution of the dispute in my view to the extent that the
parties are prepared to go along with his or her suggestions

regarding the manner in which the matter can be resolved.
Whilst the shunning of the advice given or possible resolution
of the
dispute may result in the Director-General seeking an order of court
placing the belabored association under his administration
or being
placed under liquidation if the particular malady (occasioned by the
dispute) constitutes the requisite basis for such
drastic action, a
party is certainly not obliged to adopt what is proposed to him or
her as an outcome. Axiomatically, the departmental
official tasked
with attempting to assist the parties to resolve a dispute cannot
make a binding decision in this regard.
[47]
I am
satisfied therefore that the involvement of Ms Goci on the basis
outlined in the minute constitutes an impermissible intervention

which runs entirely contrary to the tenets of the CPAA which
encourages and supports the autonomy of communal associations. Her

pronouncement of the dissolution of the executive committee is of no
legal effect and can simply be ignored in my view although
it would
appear prudent in all the circumstances to issue an appropriate
declarator to this effect and to restore the
status
quo ante
her purported dissolution of the executive committee of which the 1
st
to the 9
th
respondents were members.
[48]
I need
add, however, that although it is apparent from Isibane’s
constitution that meetings are not public, and although the
CPAA does
not prescribe nor envisage the presence of the Department’s
officials at meetings once the communal property association
has been
registered and its constitution formally adopted,  it does
appear to be the trend – as I indicated above, for
officials of
the Department to keep a presence at meetings with a view to making
or receiving reports, updating members on important
information and,
I expect, to keep a watching brief to facilitate the Department’s
oversight and monitoring functions prescribed
by the CPAA.  It
would have been helpful had the 10
th
or 11
th
respondent’s explained their position and role in this regard,
which is unfortunately left for the court to speculate, but
there
would appear to be no objection to these officials either
“facilitating” meetings or “conducting elections,”

provided this is done in my view with the consent of members and if
the necessary objective distance is maintained. Their advice
and
guidance may be useful - and their particular skills which they bring
empowering for the community, but they should not inhibit
free and
uninhibited discussion, expression of views or voting by members at
meetings.  In my view Ms Goci plainly overstepped
the boundary
of her permissible involvement.
[49]
It may
also be that it is acceptable and within the bounds of the CPAA for
officials to assist administratively with the giving
of notice of
meetings (in practice they appear to involve themselves because
transport must also be arranged for members to attend
meetings), but
where the association’s constitution prescribes in whom the
authority to convene reposes, notice must be given
by the duly
authorized person.  It goes without saying that Ms. Goci is not
such a person and was not entitled to convene
the purported annual
general meeting.
[50]
Whilst
being alive to the applicants’ complaint that the 1
st
to the 9
th
respondents were being remiss in getting on with the calling of the
annual general meeting, their recourse in terms of the constitution

was either to request the secretary to convene a general meeting as a
prelude to forcing their hand by the subsequent convening
of the
mandated annual general meeting
[51]
,
or to ask that their dispute be mediated, or to seek a mandamus from
this court compelling the committee to hold the meeting.
I have
already expressed my view on Ms Goci’s so-called conciliation
falling short of the formal standard of such intervention.

Properly availed however this was a desirable option open to the
applicants to persuade the 1
st
to the 9
th
respondents of their fiduciary duty to follow the prescripts of the
constitution. The Director-General could also have been prevailed

upon to request the members to conduct an election in terms of the
provisions of section (11) (6) (d) of the CPAA. Evidently however
the
only attempt made to “regularize” Isibane (apart from
asking its attorneys to convene a meeting, which request
on the 1
st
respondent’s version it complied with) was through Ms Goci on
the unlawful basis described above.
[51]
It is
trite that the failure to convene a meeting properly invalidates the
transaction of business at it. In order that all persons
obliged or
entitled to be present at a meeting may fulfill their obligation or
exercise their right as members, they must be accorded
adequate
opportunity to do so which requires that due notice be given of the
time and place of the meeting and the nature of the
business to be
transacted
[52]
. One of the
chief issues in this matter is whether the applicants have
established on the papers that this requirement for the
annual
general meeting was met in all the circumstances.
[52]
The
applicants have contented themselves with the assertion that “during
September 2012”a meeting was held at the Land
Restitution
Commission at the offices of Land Affairs in Port Elizabeth with Ms
Goci with a specific view to discussing the 1
st
to the 9
th
respondent’s exclusion of them from the affairs of Isibane and
their failure to call an annual general meeting since registration
of
the communal property association. The applicants allege that it was
agreed at this meeting that an annual general meeting would
be held
at Rooidraai, Hankey, on 4 November 2012.  This is denied by the
1
st
respondent.  The applicant on the other hand assert that this
“arrangement” was known and sanctioned by the attorneys

of both parties and that the 1
st
to the 9
th
respondents deliberately failed to attend the meeting despite having
knowledge that it had been convened and that it was thereafter

postponed to 17 November 2012 because of the respondents’
absence.
[53]
No
specific date is given and no minute of either meeting in September
or on 4 November 2012 were made available to the court. The
copy of
the supposed notice of the meeting which was attached to the
applicants’ founding papers and presented as the seminal
proof
of notice of the annual general meeting which culminated on 17
November 2102 is in fact the initial email message addressed
by Ms
Goci dated 12 September 2012 to the 1
st
respondent and the 1
st
applicant under the subject heading: “Meeting regarding Isibane
claim.” It simply reads; “Please be advised that
there
will be a meeting regarding the above claim on Friday, the 14
th
day of September 2012 @ 09H00am at Land Affairs offices in Port
Elizabeth, 66 Ring Road, 2
nd
Floor in Fairview Building.” This by no stretch of the
imagination constitutes notice of an annual general meeting neither

is it clear from it that this notice reached all who were entitled to
notice of an annual meeting.  Further, applying the
well-known
approach to be adopted in opposed applications containing factual
disputes where final relief is sought, the denial
of the 1
st
respondent that any of the executive committee members agreed to the
convening of an annual general meeting on 4 November 2012
must
prevail especially where the applicants have not bothered to attach
copies of the minutes of either the meeting of 14 September
(the
purpose of which the 1
st
applicant says was rather to discuss Isibane’s acquisition of
further land which would provide certain tenant and labourers
of the
land with rights in respect of Isibane’s property)  or 4
November 2012. (But even if agreement was reached by
the parties to
hold an annual general meeting it still had to be convened in
compliance with the constitution.)  In any event
and even
assuming that the 1
st
to the 9
th
respondents had deliberately absented themselves from a meeting which
they agreed to attend on 4 November 2012, that meeting was

unconstitutionally postponed to 17 November 2012.  Ideally a new
annual general meeting should have been convened on proper
notice
rather than seeking to breathe life into a process that, on the
applicants’ version, had come undone. I need add that
despite
the applicants’ opportunistic reliance on the so called notice
of annual general meeting, they have overlooked that
the minute of 17
November 2012 records rather that it was “resolved” at
the failed meeting of 4 November 2012 that
a follow up meeting would
be “summonsed” and that it would fall to the Department’s
officials to invite the 1
st
to the 9
th
respondents to this meeting. Implicit in this is that the applicants
do not distinguish between meetings which may have focused
on
discussing a dispute as opposed to an annual general meeting which
has its own requirements for validity in terms of the constitution.
[54]
A
further challenge raised by the 1
st
respondent (for the moment assuming that the meeting was properly
convened) is that the applicants have also failed to put up proof

that it was properly constituted. It is not clear why the applicants
have not furnished a list of members present at the meeting
to
understand the context in which the assertion is made that the
elections were proper.  Who is elected to form the committee
is
determined by members voting at the annual general meeting so it is
critical to establish firstly that effective notice was
given to all
members entitled to attend, secondly  that the persons present
at the meeting are members entitled to vote, and
thirdly, that the
appropriate quorum was established.
[55]
This
is particularly relevant in the context of the challenge thrown up by
the applicants attorneys in correspondence attached to
the
applicants’ founding papers which identifies their clients as
persons who “challenge the Constitution of Isibane
by virtue of
their exclusion as the legitimate beneficiaries to the land leased by
Isibane”.   This is further
complicated by the fact
that neither of the executive committees - or the Department for that
matter, holds current lists of membership.
A further concern is that
it is evident from the minutes which have been disclosed to this
court, that other interested parties
were contemplated as being added
to the original community sought to benefit from the land
redistribution claim and may therefore
not have received notice of
the  meeting.  Another area of concern is that the minutes
of the purported annual general
meeting suggest that the nine member
committee elected there are representative of each family whereas
there are ostensibly many
more families who are members of Isibane.
(This obviously calls into question whether everyone who is entitled
to attend received
notice of the meeting).  The applicants
merely content themselves in this regard with the assertion that it
is entirely improbable
that Ms Goci would have allowed anyone other
than an eligible member to participate at the meeting, but it remains
for the applicants
to establish the alleged substantial compliance
with Isibane’s constitution in respect of the impugned
election, which it
has in my view failed to do.
[56]
I am
not satisfied on the number of bases referred to above that the
applicants have established that the election of the applicants
was
in conformity with Isibane’s constitution and accordingly their
application must fail.
[57]
It
would however be prudent for this court (especially in the light of
the obvious infringement of members’ Constitutional
right of
access to community property)
[53]
to ensure by ordering appropriate alternative relief that the
association be moved out of its moribund status by directing the

executive committee comprising of the 1
st
to the 9
th
respondents to give timeous and adequate notice of the next
anticipated annual general meeting to be held in November 2016 as
provided for in Isibane’s constitution.  It is trite that
a duly elected committee continues to hold office until it
retires or
is dismissed even though, where no steps are taken to elect a new
committee, its term of office under the constitution
of the
organization has expired.  The appropriate course of action to
be adopted in such an instance, where a committee fails
to put in
motion the prescribed procedures for the election of a new committee
after its own period of office has expired, is for
the members of the
organization to enforce the constitution by obtaining an order
compelling it to do so. If the parties to this
litigation have any
sense of duty they will appreciate that such intervention by this
court is necessary in all the circumstances.
It also appears
desirable that the membership list should be updated as is required
by the constitution for objective clarity and
that a banking account
be opened in due course.
[58]
The
members have already been put to considerable disadvantage (even more
so in my view since the 1
st
respondents suggests that business has continued as normal with the
holding of the customary general meetings by his group as early
as 8
days after the purported annual general meeting despite the alleged
election of the applicants as office bearers), and should
not have to
endure this ambiguity any longer.  It is with disappointment
that our courts have had to reflect on “internecine
disputes”
between competing factions of traditional communities who instead of
triumphantly enjoying the benefits won and
recovered for them under
the Land Distribution Act engage themselves in battles when it comes
to managing the post-restitution
process. In Louw& Others v
Richtersveld Agricultural Holdings Company (Pty) Ltd & Others
[54]
the court noted with reference to the fallout between members of that
community to whom land and mineral rights were restored resulting
in
court proceedings that “(t)he resort to litigation regrettably
not only drains valuable financial resources but also has

a…debilitating effect on efforts of the community to create a
sustainable future from the mineral resources and the land
for the
community.  Most importantly it …creates divisions in a
community which had courageously fought for decades
to recover what
is rightfully theirs.” The court expressed regret that the
matter before it “sadly demonstrates that
even the best
intentions and the most meticulously crafted plans (envisaged by the
statutory machinery put in place to implement
these gains) can be
undone by personal self-interest and avarice when it comes to
managing the post-restitution process.”
[55]
[59]
The
community in dispute here would be well advised to adopt this
salutary advice, put aside their differences, and begin to manage
the
affairs of Isibane in a professional manner that celebrates their
communal ownership rather than detracts from it.  Stewardship

and a complete eschewing of any kind of self-interest are essential
to the successful management of the community’s interests

through the governing body in order to attain the jealously guarded
Constitutional vision of community ownership.  Further,
those
elected as office bearers must be properly and fully supported in
their various responsibilities. It is not an easy task
to serve
office in such an entity. On the contrary it requires a selfless zeal
on the part of the individual member to realize
the collective
objects set forth in a communal property association’s
constitution.
[60]
Before
concluding I need reflect briefly on the 1
st
respondent’s submission that the applicants had no
locus
standi
to bring these proceedings.  I find it unnecessary to determine
the issue of the applicants’ eligibility as members
as such
although I suspect from correspondence addressed to the 13
th
respondent’s attorneys that the complaint of the applicants
being “excluded” from Isibane runs deeper than a
mere
lack of accountability or keeping them in the loop regarding
meetings. Be that as it may the contention on the applicants’

behalf that the fact that the purported elections took place under
the auspices of the Department carries with it the distinct

probability that those elected are indeed eligible in terms of the
membership criteria set forth in the 13
th
respondent’s constitution has merit. Even absent a current
membership record by any of the parties it is evident that the

relevant officials have peculiar knowledge of this community and all
its peccadilloes because tensions have been simmering for
ages and it
is unlikely that the officials who “conducted” the
elections would have entertained the nomination of non-members.
That
aside, despite the challenge by the 1
st
respondent to their appointment as office bearers it cannot be
gainsaid that they were appointed as a fact (under the assumption
at
least that the annual general meeting had been properly convened and
that the officials were entitled to involve themselves
on the basis
which they did) and that this attracted certain personal rights to
them to maintain that the election of them under
these circumstances
was a valid one. Who else could have asserted these putative personal
rights to office on their behalf but
the applicants themselves?
[61]
The
applicants having failed to establish that the elections were valid
and that they are as a consequence entitled to the relief
which they
seek, the 1st respondent is entitled to accost order against them. He
should however bear the wasted costs occasioned
by the postponement
on 29 March 2016 since he sought an indulgence in order to file an
answering affidavit which was by then already
overdue for delivery.
The reserved costs of 10 May 2106 were wasted but cannot be ascribed
to either party since the matter was
inadvertently placed on the
unopposed roll instead of the opposed roll for that day.  In
fairness these costs should be borne
by each party themselves and in
consequence I will make no costs order regarding this set down.
[62]
It
would not be out of place to make some observations regarding the
futility of these proceedings and the huge financial burden
which
will now redound to the applicants who sought to breathe life into
the elections which were not valid to start with.
Officials of
the 10
th
and 11
th
respondents perhaps created the misconception that they were entitled
to convene the meeting and to conduct the elections without
regard to
the rights of the 1
st
to the 9
th
respondents and that their endorsement thereof, by the subsequent
“registration” of the changes in the registry, somehow

gave it the hallmark of legitimacy. This is most unfortunate and an
indictment of the Department which is expected to empower and
promote
associations through reliable information rather than to add to their
confusion and uncertainty.  If costs had been
sought against
them I might have entertained such relief on the basis of their
misguided involvement in the affairs of the association
which led the
applicants down this path. However the applicants sought legal advice
and had numerous options open to them beside
their recourse to this
court years after the election.  They could simply have waited
until the next annual general meeting
to see matters rectified
particularly since it is not about them, but about Isibane and
protecting the interests of all its members.
Ultimately they
litigated at their own peril and must live with this fact.
[63]
A copy
of this judgment should be made available to the 10
th
and 11
th
respondents who it is hoped will note the lessons learnt from this
unfortunate debacle and revisit their peculiar but vitally
significant role to be played in ensuring that the objects of the
CPAA are realized.
[64]
In the
result I issue the following order:
1.
The
application is dismissed;
2.
The
purported decision of Ms Goci dated 17 November 2012 to dissolve the
executive committee of the 13
th
respondent is set aside;
3.
The
reinstated executive committee of the 13
th
respondent (comprising of the 1
st
to the 9
th
respondents) is directed to give timeous and proper notice as
provided for in its constitution of the next Annual General Meeting

to be held in November 2016;
4.
the
12
th
respondent is authorized to continue to retain the funds of the 13
th
respondent which are in its trust account until the latter has opened
a banking account;
5.
The
13
th
respondent is requested to update its membership list with the
Registration Officer forthwith;
6.
The
applicants are directed to pay the 1
st
respondents costs of the application, except for the reserved costs
of 29 March 2016 which are to be borne by the 1
st
respondent;
7.
The
will be no order regarding the reserved costs of 10 May 2106; and
8.
The
registrar is requested to make a copy of this judgment available to
the 10
th
and 11
th
respondents.
________________
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
28 July 2016
DATE
OF JUDGMENT:
27 September 2016
APPEARANCES
:
For
the applicants: Mr. Nobotana (instructed by Andile Ngqakayi Inc.,
Port Elizabeth).
For
the 1
st
to 9
th
and 13
th
respondents:  Mr. Williams (instructed by Liston Brewis &
Co., Port Elizabeth).
[1]
The applicants claim that their official positions in the last
appointed executive committee are: Chairperson, Deputy Chairperson,

Secretary, Organizer, Treasurer and additional members respectively.
[2]
I
will assume that this includes the 9
th
respondent who, although cited as a party in the application and
alleged also to have been a member of the substituted executive

committee, is not referred to in the prayers in the notice of
motion. This is but one example of many obvious errors in the
applicants’ papers.
[3]
Ntombela
v Shibe
1949 3 SA 586
(N) 588; Sachs v Moore 1938 WLD 69 73.
[4]
It is common cause- although not explained why, that the association
has not since its registration opened its own banking account
in
which to deposit the rental income collected.
[5]
Ineptitude
and maladministration are among the allegations levelled against the
erstwhile administrators of Illima, which although
serious and
warranting investigation, are not for this court to pronounce upon.
[6]
No. 28 of 1996.
[7]
According to Isibane’s constitution, however, the community
which is to benefit from the registration of the communal property

association is one envisaged pursuant to the provisions of section 2
(1) (b) of the CPAA, so there must be something more to
the “back
story” than just the culmination of a land redistribution
claim.
[8]
The precise details of the land redistribution claim and the manner
in which the three additional properties came to be settled
upon the
relevant community are not clear.  This information is
evidently not known to the applicants, neither indeed who
is
currently included in the membership list of the extended
community.   Worryingly neither does the 1
st
respondent (even purporting to represent Isibane) appear to be able
to refer with certainty to a current list of members, whereas
this
information would be critical to the management of Isibane.
The registered constitution of Isibane refers to an “attached

membership list (Annexure A)” which is required to be updated
annually, but this attachment was ostensibly omitted upon

registration of the association and has not been amended since the
association was registered several years ago. The 10
th
and 11
th
respondents could have provided this information
(and background information such as is relevant), but have not filed
notices
to oppose or to interpose to explain what the official
position is as far as their records are concerned.
[9]
Bakgatla-Ba-Kgafela Communal Property Association v
Bakgatla-Ba-Kgafela Tribal Authority and Others
2015 (6) SA 32
(CC)
,
at par [1].
[10]
No. 22 of 1994.
[11]
Bakgatla-Ba-Kgafela Communal Property Association,
supra
at
par [18].
[12]
Section 8 (6) (d) of the CPAA.
[13]
Section 8 (6)(e).
[14]
See Preamble to the Act.
[15]
The
citation is at footnote 9 above.
[16]
Bakgatla-Ba-Kgafela Communal Property Association,
supra
at
pars [25] – [29].
[17]
Bakgatla-Ba-Kgafela Communal Property Association,
supra
at
par [30].
[18]
Section 1.
[19]
Bakgatla-Ba-Kgafela Communal Property Association,
supra
at
par [46].  See also section 10 (1) of the CPAA.
[20]
The
incumbent is an officer of the Department appointed by the
Director-General.
[21]
Bakgatla-Ba-Kgafela Communal Property Association,
supra
at
par [49].
[22]
See section 8 (3) (a) of the CPAA which relates to the certificate
of registration of the association itself, and section 14
(2) (b)
which prescribes the issue of a certificate of termination of a
member’s membership in accordance with the association’s

constitution.  In the case of Isibane this record of
registration has not served the purpose it was intended to thereby

especially since the list of members at the time of registration was
not included.
[23]
See section 14 (3) of the CPAA with reference to the certificate
issued concerning the termination of membership of persons in

prosecutions under the Trespass Act, No. 6 of 1959.
[24]
Section 11 (2) of the CPAA.
[25]
Section 11 (3) of the CPAA.
[26]
Government Notice R1908, Government Gazette GG17620 dated 22
November 1996. (“The Regulations”)
[27]
See also paragraph 3 (2) of the Regulations which provides that the
register is to contain the specified material and “other

components” which the Registration Officer may consider
“necessary or advisable” for the implementation of
the
CPAA and the Regulations.
[28]
I suspect that it was in terms of this obligation that the
Registration Officer provided a letter, albeit only of effect from
2
May 2014, more than eighteen months after the purported annual
general meeting at which the applicants were appointed to office,

recording a change of executive committee members of Isibane.
Neither the applicants nor the departmental officials explain how
or
why this came about at the stage when it did. Left to speculation I
suppose it was a desperate attempt on the part of the
applicants,
using the seal of office of the Department, to attempt (long after
the fact) to give validity to their purported
election as office
bearers.
[29]
As I remarked in the footnotes above it is not clear on anyone’s
version who the current members are.  This information
should
readily be to hand by both the Registration Officer and the
executive committee of a CPA.
[30]
It is not clear if financial statements have ever been provided
since inception. If that was the case it is unlikely that the
12
th
respondent would be collecting and holding funds on behalf of
Isibane.
[31]
This information would be a vital indicator to determine if the
association is being managed in accordance with its constitution
and
in terms of the provisions of the CPAA. A proper record would also
in this instance have given objective clarity concerning
a number of
allegations related in this matter which, in the absence of a
properly pleaded case on the part of the applicants,
might have been
useful.
[32]
Section 11 (2).
[33]
Section 13 (1) of the CPAA.
[34]
Section 11 (6) (e) of the CPAA.
[35]
See Bakgatla-Ba-Kgafela Communal Property Association,
supra
,
at par [50] in which a reference is made to the “deep
involvement” of the Director-General in ensuring that the

objects of the CPAA are achieved.
[36]
The prior executive appears to have ignored the election and has had
7 or 8 general meetings since then although apparently not
an AGM.
The applicants on the other hand, since the election, has ostensibly
called no meetings whatsoever but has waited until
recently to
litigate to validate their election. 3 AGM’s should have
ensued thereafter rendering the issue of the validity
of the
election in 2012 quite irrelevant and academic yet volumes of papers
have been exchanged in this litigation.
[37]
The applicants contended that the 1
st
to the 9
th
respondents should indeed have filed a counter application
challenging the 10
th
Respondent’s “decision”
to register the elections, otherwise it stood as being legally
valid.
[38]
See my comments in Footnote 28 above. It would be prudent in my view
to prescribe who is authorized in a CPA to liaise with the

Registration Officer and for that official to have to follow a
process so that what filters through to the registry reflects
what
the members want it to and that it carries their approval.  It
is random almost two years after an election, when the
next AGM is
imminent, for the Registration Officer to receive and update the
information which he did.  If the Department
was carrying out
its monitoring functions it would have been aware of a dispute
concerning which executive was the real McCoy
and in fact that the
erstwhile executive was (despite the election) carrying on business
as usual.
[39]
“
Committee”
is defined in the constitution as “(t)hose persons elected as
the Interim Committee Members in terms of
Clause 6, and such other
persons (including juristic persons) as may from time to time be
elected and/or co-opted to serve as
Committee Members in terms of
Clause 6.”
[40]
One anyone’s version the yearly repetition does not appear to
have happened, and certainly not by the applicants since
their
purported election as the executive committee.
[41]
This requirement forms the basis for the 1
st
respondent’s
complaint against the 1
st
, 3
rd
and 5
th
to 8
th
applicants that they are not eligible for
appointment to office but most of the names of the parties appear on
a list of beneficiaries
that circulated in relation to the land
redistribution claim.
[42]
The Act referred to, according to paragraph 3 of the Constitution
which list definitions, is the CPAA.
[43]
Evidently a regular cycle of annual general meetings has not been
sustained by the association.
[44]
This date is apparently a mistake.  It should have read 17
November 2012.
[45]
Ideally the CPAA ought to require of the Director-General of Rural
Development and Land Reform (or the registration officer in
his
stead) to file a report for the court in all applications for
authority or an order involving the performance of any act
in the
registry over which he holds charge involving a communal property
association in the same manner as the Registrar of Deeds
is
expected, in terms of
section 97
(1) of the
Deeds Registries Act,
No. 47 of 1937
, to file a report in applications concerning property
under his charge. In this instance the 10th and 11
th
respondents have not entered the fray, but a concise report of all
relevant information bearing upon the matter, especially the
current
status of the association and steps taken by the department in
compliance with its obligations pursuant to the CPAA would
have gone
a long toward obviating factual disputes and giving an objective
picture of the association’s affairs.
As will be gleaned
from the judgment there is a dearth of information, left largely to
the imagination, as to the circumstances
under which the officials
came to organize the impugned annual general meeting and conduct the
elections under challenge.
[46]
Section 10
(3).
[47]
See
section 11(6)(e).
[48]
Section
10
(7) of the CPAA.
[49]
Section 10
(2) of the CPAA.
[50]
Duhaimes’s Law Dictionary defines “conciliation”
as (a) form of alternative dispute resolution in which a neutral

third party hears both sides and then issues a non-binding suggested
resolution.”
[51]
In terms of Clause 16.2 of the constitution at least 10% of the
members as reflected in the membership register can request a

general meeting. If the secretary after having been duly requested
fails to give notice that a meeting will be convened, the
requester
has the right, in terms of clause 16.3, to give notice of such
meeting.
[52]
See Lawsa volume on “Meetings” and the authorities cited
therein.
[53]
For as long as the battle between the two executives rages on it is
logical that members cannot enjoy the intended benefits by
their
access to the property, neither does participatory democracy mean
anything to them when the leadership is dysfunctional.
[54]
[2010]
JOL 26358
(NCK) at paragraph [2]
[55]
At paragraph [1].