Simbra Cattles Breeders' Society of South Africa v Simmentaler Cattle Breeders' Society of Southern Africa (4425/2021) [2022] ZAFSHC 20 (11 February 2022)

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[2022] ZAFSHC 20
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Simbra Cattles Breeders' Society of South Africa v Simmentaler Cattle Breeders' Society of Southern Africa (4425/2021) [2022] ZAFSHC 20 (11 February 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
Of
Interest to other Judges:
Circulate
to Magistrates:
NO
NO
NO
Case
no:
4425/2021
In
the matter between:
SIMBRA
CATTLE BREEDERS’ SOCIETY OF SOUTH
AFRICA
Applicant
(Registration
number:  62/98/R-13)
and
SIMMENTALER
CATTLE BREEDERS’ SOCIETY OF SOUTH AFRICA
Respondent
(Registration
number:  62/98/R-05)
CORAM:
JP
DAFFUE J
HEARD
ON:
9
FEBRUARY 2022
DELIVERED
ON:
11 FEBRUARY 2022
JUDGMENT
BY:
DAFFUE J
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 14:00 on 11 February
2022.
I
INTRODUCTION
[1]
On 25 November 2021 De Kock AJ dismissed the applicant’s
application.
It now seeks leave to appeal to the Supreme Court
of Appeal, alternatively the Full Bench of the court against the
whole of the judgment
and order.  In the absence of De Kock AJ
whose acting stint came to an end, the application was allocated to
me.  The parties
were invited to file further heads of argument
if they so wish and by agreement a virtual hearing was conducted.
Only the applicant
filed further heads of argument.
II
THE TEST IN ADJUDICATING APPLICATIONS FOR LEAVE TO APPEAL
[2]
The applicant endeavoured to bring its application within the ambit
of s 17(1)(a)(i)
and (ii) of the Act.
[1]
It has to convince the court that “
the
appeal would have a reasonable prospect of success; or there is some
other compelling reason why the appeal should be heard, including
conflicting judgments on the manner under consideration.”
[3]
The bar of the test to be applied has been raised with the inclusion
of the word “
would”
in the first sub-section with the apparent purpose to alleviate the
case-load of the Supreme Court of Appeal or the Full Bench of
the
High Court.  Allegations such as possibility of success, an
arguable case or one that is not hopeless will not suffice.
[2]
[4]
The substantial importance of the case to the appellant or to
both the appellant and
the respondent constitutes a compelling reason
why an appeal should be heard.
[3]
Other compelling reasons include the fact that the decision sought to
be appealed against involves an important question of
law and
that the administration of justice, either generally or in the
particular case concerned, requires the appeal to
be heard.
[4]
However, the merits of the appeal remain vitally important.
III
THE GROUNDS OF APPEAL
[5]
Two grounds of appeal are relied upon.
First
ground of appeal:
[6]
The learned judge recognised that part A of the notice of motion was
framed
for
interim
relief pending adjudication at a later stage of part B,
[5]
but erred in not dealing with and adjudicating the issues raised in
respect of part A insofar as she decided to determine part B.
[7]
The learned judge ought to have heard and decided the relief sought
in part
A of the application, which was the only relief enrolled for
determination by the court and in the circumstances of the case the
determination of part B on the first day of enrolment constituted
both a procedural and a substantive error, which deprived the
applicant
of the opportunity of:
7.1
being hear on the first part of its application;
7.2
securing
interim
relief pending the outcome of the second part
of its application;
7.3
supplementing its affidavits in respect of the relief sought in part
B; and
7.4
presenting written submissions on the relief sought in part B, to
give effect to what was resolved
at the Annual General Meeting (“the
AGM”) of 15 January 2021.
[8]
Had the learned judge entertained part A on its prayer-for terms –
as
an urgent application for
interim
interdictory relief –
the test applied to any disputes of fact on the papers would have
been that established in
Webster v Mitchell
where inherent
probabilities are
inter alia
considered as opposed to
Plascon-Evans
where, save in exceptional circumstances, relief
may only be granted on the facts alleged by the respondent together
with the facts
relied upon by the applicant which the respondent has
admitted.  In the second scenario legal issues are resolved on
common
cause facts and unless circumstances are special, motion
proceedings for final relief are not designed to determine
probabilities.
[9]
The applicant’s counsel submitted that it would enjoy
reasonable prospects of persuading a court of appeal to:
9.1
entertain part A of the application and, in that event, uphold the
appeal and grant
interim
interdictory relief against the
respondent; and
9.2
set aside the dismissal of part B of the application.
[10]
The applicant’s counsel submitted furthermore that they were
unaware of any decided
case in which a court overlooked, or
disregarded relief sought in part A of an application and heard and
decided only part B thereof,
especially in circumstances where the
applicant had filed submissions only in respect of part A. Whether or
not a court may competently
and fairly do so in the exercise of its
discretion and jurisdiction to regulate its own proceedings is,
according to the applicant,
a matter of novelty and natural justice
that warrants the attention of a court of appeal.
Second
ground of appeal
[11]
Despite acknowledging the common cause facts that a resolution was
passed at the AGM
and two distinct societies were created as a
consequence of the resolved restructuring, the learned judge held
that the application
was to be dismissed on the basis of a material
dispute of fact regarding what was voted on by members in attendance
at the AGM.
[12]
In doing so, the learned judge approached the determination of part B
of the application
by asking the wrong question and thus applying the
wrong test.
[13]
Approaching the enquiry in this manner, the learned judge considered
there to be a
genuine dispute of fact on a material issue and held
that the applicant was not entitled to final relief based on the
strength of
the respondent’s version of what was voted on and
notwithstanding the common cause facts. In other words, the judgment
sought to
‘
break the tie’
by preferring the
say-so of the respondent.
[14]
By contrast, the question of what was resolved at the AGM
[6]
was one of
law
,
being the proper interpretation of the resolution (“the
resolution”) recorded in paragraph 7 of the common cause minute
(“the
minute”) of the AGM, making specific reference to
restructuring of the Society as presented. The judgment does not
scrutinise or
even set out the wording of the resolution.
[15]
In failing to consider or determine the proper interpretation of the
recordals of what
was resolved at the AGM, the learned judge
overlooked or disregarded what was resolved by the attending members,
insofar as interpretation
is a matter:
15.1    for the court
and not for witnesses (whose opinions or recollections are generally
inadmissible); and
15.2    of law and not
of fact.
[7]
[16]
The learned judge misdirected herself in enquiring of the parties
what they subjectively
intended to resolve (or agree) and did not
seek to ascertain what was objectively agreed to by the members as
resolved.  No
consideration was had to the purpose that the
ad
hoc
committee had been appointed for in the first place, or to
the contents of the presentation made at the AGM, being the
culmination
of the
ad hoc
committee’s work and the basis on
which the resolution was passed.
[17]
Thus, there was no material dispute of fact on the papers before the
court when what
was resolved is properly interpreted. In the result,
the learned judge erred in applying the rule in
Plascon-Evans
as opposed to the rule in
Securefin
.  Therefore, it is
submitted that the applicant would enjoy at least reasonable
prospects of persuading a court of appeal to
reconsider part B of the
application and in such event uphold the appeal, set aside the
dismissal of part B and grant final relief
against the respondent.
[18]    Finally,
it is the applicant’s case that the interpretive interplay between
the presentation, the resolution
and minute is a matter of complexity
that warrants the attention of the Supreme Court of Appeal.
IV
EVALUATION
[19]
Mr Els submitted on behalf of the respondent that his opponent
appearing for the applicant
at the hearing on 18 November 2021 was
not ambushed.  I must say that Mr Els made it clear in his heads
of argument filed on
12 November 2021 in terms of this court’s
practice directives that insofar as the matter was previously removed
from the roll and
then set down on the ordinary motion roll, the
relief in part A became academic.  There is merit in the
argument, but as Mr
Pearse who did not appear before the learned
judge submitted, there is no indication on the record that his
colleague, Ms Benson
on behalf of the applicant abandoned part A
and/or waived the applicant’s rights in this regard.  It was
always the intention
to apply for supplementary affidavits to be
filed, whether or not the relief in part A was granted or dismissed.
[20]
Mr Els submitted that the applicant in any event failed to prove the
four requirements
for
interim
interdicts and particularly
failed to prove the requirement for an anti-dissipatory interdict in
respect of intention.  Mr Pearse’s
response hereto was that
the learned judge did not all deal with part A and it cannot now be
argued what the outcome of the judgment
would be if part A were to be
adjudicated.
[21]
Mr Els also pointed out that there was no application for
postponement or application
for papers to be supplemented.  Mr
Pearse response hereto was that the matter was enrolled for
adjudication of part A and not
part B and therefore such applications
were not called for.
[22]
I do not sit as a court of appeal and although I may have a
particular view of the
matter, I am of the opinion that the applicant
would have reasonable prospects of success as the court of appeal may
well be inclined
to find that the learned judge erred in dealing with
part B
mero motu
and without giving the applicant’s counsel
an opportunity to address her in this regard.
[23]
Mr Els submitted with much vigour that no court of appeal will
interfere with the judgment
pertaining to part B insofar as the
applicant could not even prove a
prima facie
right, not to
speak of a clear right.  He submitted that no cause of action
was relied upon and the request for a money judgment
had no merit.
On his version the Simbra members effectively resigned and the only
resolution taken at the meeting of 15 January
2021 was to amend the
constitution to provide for future donations. The central theme of Mr
Els’ submissions was that the applicant
could not succeed with a
money judgment.
[24]
I must say that I would have expected the applicant to present a
transcription of the video
presentation in the founding affidavit.
It did not do that and decided just before the hearing to rely on
rule 36(1) to present
this video presentation in evidence.  This
might have been futile for the applicant’s case if part B was
before the learned
judge for adjudication, but a court of appeal may
well find that the learned judge erred in adopting the approach she
had by considering
the factual disputes and refraining from
interpreting the resolutions taken at the AGM, bearing in mind the
video presentation.
Mr Pearse quoted the video presentation in
the heads of argument which is really unusual.  Such evidence
should have formed
part of the application papers.  Fact of the
matter is that a court of appeal may well find that such background
circumstances
could never have been ignored in interpreting the
resolutions taken at the AGM.
[25]
A court of appeal may well find that the resolutions taken at the AGM
had to be interpreted
with reference to not only the words used, but
also the context and purpose and equally important, the background
circumstances.
The presentation of the
ad hoc
committee
played a vital role in the decision-making process of members.
I quote the following from the minute:
25.1  Paragraph 7.1 of the
minute, headed “
[r]estructuring of the Society –
Board members
”
, noted that “
[an
audio visual] presentation [(“the presentation”) was] previewed
during the meeting.
”
25.2  Paragraph 7.1.1 of the
minute was headed “
[P]roposed restructuring and the
financial implication
”
.
25.3  Paragraph 7.1.2 of the
minute addressed the amendments to the Constitution.
25.4  Paragraph 7.1.3 of the
minute, headed “
[b]esluite
”,
recorded that members had been requested to approve the following:
“
1)   The
restructuring of the Society with effect from 1 January 2021
as
presented
.
2)
To approve the amended Constitution as the Constitution of the
Simmentaler Society of Southern Africa.
3)
Mandate the President and Vice-President of
the current Society, in conjunction of with the Auditor of the
Society and other individuals
as they may deem fit,
to
implement the restructuring as approved
”
(emphasis added).
25.5    The same
paragraph of the minute reiterated the resolution as follows:
“
The decision
that will be taken today is contained in 7.1.3:
1)
The restructuring of the Society with effect from 1 January 2021
as
presented
.
2)
To approve the amended Constitution as the Constitution of the
Simmentaler Society of Southern Africa.
3)
Mandate the President and Vice-President of
the current Society, in conjunction of with the Auditor of the
Society and other individuals
as they may deem fit,
to
implement the restructuring as approved
”
(emphasis added).
[26]
The respondent tried to show that the amendment of the constitution
was the only aspect
that members were asked to vote on.
However, I agree with Mr Pearse that such a statement appears to be
“
deplorable”
insofar as the presentation and background circumstances are
indicative of a 60/40 % split of assets in favour of the respondent.
A court of appeal may well find it to be totally “
unbusinesslike”
that the resolution should be interpreted on the basis that the
respondent would keep all its assets, but be entitled to make future
donations to certain breeders’ associations in its sole
discretion.  I repeat that our courts are enjoined to have
regard
to the text, context and purpose of a document such as an
agreement or resolution as well as to any pertinent background facts
or
materials known to those responsible for the document’s
preparation and production. The exercise is objective and unitary in
nature.
[8]
In
casu
,
such facts and materials include the presentation made at the AGM,
which the learned judge erred in overlooking and disregarding.
The presentation was the focal point of the AGM, and the key to
interpreting ad thus understanding what was resolved by the attending
members.  This presentation was available to members even before
the date of the AGM.
[27]
I conclude that it is reasonably possible that a court of appeal
would find that the learned judge
ought to have appreciated that,
like a judgment or award, a resolution is to be read and understood
in its terms, with particular
reference also to its ‘
evident’
or ‘
manifest’
purpose, but not with reference to what is said about it, even by
those who voted on it, whose views are typically inadmissible.
[9]
[28]
Mr Pearse insisted that the issue warrants the attention of the
Supreme Court of Appeal.
Mr Els was indecisive insofar as he
submitted that in the event that leave to appeal is granted, it may
be to either the Supreme
Court of Appeal or the Full Bench.  I
am satisfied that the Supreme Court of Appeal should deal with the
appeal.
V
ORDER
[29]
Leave is granted to the applicant to appeal to the Supreme Court of
Appeal against
the whole of the judgment and the order of 25 November
2021 under case number 4425/2021, costs of the application to be
costs in
the appeal.
JP
DAFFUE J
On behalf of applicant:
Advv RM Pearse SC with GY Benson
et
S Mhlongo
Instructed
by:
MVMT Attorneys
c/o Phatshoane Henney Attorneys
BLOEMFONTEIN
On behalf of respondent:
Adv APJ ELS
Instructed
by:
Honey Attorneys
BLOEMFONTEIN
[1]
Superior
Courts Act, 10 of 2013
[2]
MEC for Health, Eastern Cape v Mkhita & another 1221/2015
[2016]
ZASCA 176
(25 November 2016) & S v Smith
2012 (1) SACR 567
(SCA)
at para 7
[3]
Phillips
v SA Reserve Bank
2013
(6) SA 450
(SCA) at 458F - H
[4]
Erasmus,
Superior Court Practice vol 1 at A2 - 556
[5]
Judgment
at para 3
[6]
Annexure
TV5, p 57
[7]
KPMG
Chartered Accountants (SA) v Securefin Ltd and Another
2009 (4) SA 399
(SCA) at para 39;
Cornerstone
Logistics (Pty) Ltd and Another v Zacpak Cape Town Depot (Pty) Ltd
(879/2020)
[2022] ZASCA 12
(25 January 2022) at para 50
[8]
Natal Joint Municipal
Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) [18]- [26];
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
2014 (2) SA 494
(SCA) [12];
University
of Johannesburg v Auckland Park Theological Seminary and Another
2021 (6) SA 1
(CC) [65]-[68];
Capitec
Bank Holdings Ltd and Another v Coral Lagoon Investments 194 (Pty)
Ltd and Others
2022
(1) SA 100
(SCA) [25]-[26], [36]-[51]
[9]
Firestone South Africa
(Pty) Ltd v Gentiruco AG
1977 (4) SA 298
(A) 604;
Finishing
Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and
Others
[2012] JOL
29082
(SCA) [13];
SOS
Support Public Broadcasting Coalition and Others v South African
Broadcasting Corporation (SOC) Ltd and Others
2019 (1) SA 370
(CC) [52]-[54];
Martrade
Shipping and Transport GmbH v United Enterprises Corporation and MV
‘Unity’
(1085/2019)
[2020] ZASCA 120
(02 October 2020) [3]