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[2022] ZAFSHC 219
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Kraalshoek and Others v Bethany Communal Property Association and Others (1426/2022) [2022] ZAFSHC 219 (29 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 1426/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
ANTHONIE
KRAALSHOEK
First
Applicant
SARA
MOSALA
Second
Applicant
TAWANA
JOHANNES
RAMOCHELA
Third
Applicant
JOHANNES
MOKHADU LEPHOI
Fourth
Applicant
RADITSHEGWANE
BENNIE WOLF
Fifth
Applicant
and
THE
BETHANY COMMUNAL PROPERTY ASSOCIATION
[1]
First
Respondent
THE
MINISTER OF RURAL DEVELOPMENT AND
LAND
REFORM
[2]
Second
Respondent
THE
DIRECTOR GENERAL: DEPARTMENT OF
RURAL
DEVELOPMENT AND
LAND
REFORM
[3]
Third
Respondent
THE
PROVINCIAL REGISTRAR:
DEPARTMENT
OF RURAL DEVELOPMENT
AND
LAND
REFORM
[4]
Fourth
Respondent
CORAM:
Opperman,
J
HEARD
ON:
18
August 2022
DELIVERED
ON:
The
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and release to SAFLII
on 29 August 2022. The date and time for hand-down is deemed to be 29
August 2022 at 15h00.
SUMMARY
Order
to place an association under the
administration of the
Director-General in terms of section 13(1) of the
Communal
Property Association Act 28 of 1996.
JUDGMENT
INTRODUCTION
[1]
The case revolves around the Bethany Communal
Property Association that was registered in terms of the
Communal
Property Association Act
28
of 1996
in 2005.
[2]
The
applicants, in summary, pursue three orders from this Court. Firstly,
an order placing the Bethany CPA under administration,
secondly, a
structural interdict
[5]
and
lastly, a costs order against the third respondent, the Director
General: Department of Rural Development and Land Reform.
[6]
[3]
The
Bethany CPA was established and registered subsequent to the
restoration of ownership of land by order of the Land Claims Court
of
the farm Bethany No. 610 in the district of Edenburg, Free State
Province consisting of approximately 5339
[7]
(2016/2017) to 744, 1065
[8]
(2018/2019) hectares. The Association consists of 339 members.
[9]
[4]
The application is in terms of section 13(1) of
the
Communal Property Association Act
to place the first respondent, the
Bethany CPA under administration of the third respondent; the
Director General: Department of
Rural and Land Reform, Free State
Province.
[5]
The applicants are beneficiary members to the
Association and they were represented,
pro
bono,
on request of the Legal
Practise Council of the Free State, by Phatshoane Henney Attorneys in
Bloemfontein. Advocate Sander from
the local Bar was briefed to
conduct the case for the applicants on short notice since the
erstwhile counsel has taken up an appointment
as acting magistrate.
Mr. M.J. Koenane from Koenane Attorneys represented the first
respondent. The State Attorney represented
the second to fourth
respondents. Advocate T.M. Ngubane from the Bloemfontein Bar was
instructed to represent the second and third
respondents. It seems as
if the fourth respondent did not partake in the litigation.
[6]
The Court must extent her appreciation to
counsel for the wisdom and sanity they brought to a very difficult
and potentially vile
situation. The willingness of the litigants to
come to the negotiation table and settle the matter must also be
commended.
Batho pele
prevailed: “People first” and the insistence of this
principle that resources for the people must be taken care off
and
preserved in service of the Constitution of the Republic of South
Africa, 1998 and democracy.
THE
REALITY OF THE BETHANY COMMUNAL PROPERTY AND THE LAW
[7]
The principles of the
Communal
Property Association Act
are
engrained in fair and inclusive decision-making processes. This to be
executed by mature participants that perform the duties
entrusted to
them, by members and their own families, with due diligence and
integrity. Equality of membership, accountability
and transparency
are vital to obtain and maintain a democratic process. Compliance
with their mandate and the law ańd good
governance are critical
to the well-being of an Association.
In
casu
the Association failed as far
back as decades ago. I will discuss the issue hereunder.
[8]
The success or failure of a communal property
association is primarily the responsibility of its members. If they
fail, the Association
fail. The Legislator trusted the people in the
instance to have the integrity and maturity to manage this valuable
constitutional
right. The
Communal
Property Association Act
states in
the preamble that it is:
To
enable communities to form juristic persons, to be known as communal
property Associations in order to acquire, hold and manage
property
on a basis agreed to by members of a community in terms of a written
constitution; and to provide for matters connected
therewith.
WHEREAS
it is desirable that disadvantaged communities should be able to
establish appropriate legal institutions through which
they may
acquire, hold and manage property in common;
AND
WHEREAS it is necessary to ensure that such institutions are
established and managed in a manner which is non-discriminatory,
equitable and democratic and that such institutions be accountable to
their members;
AND
WHEREAS it is necessary to ensure that members of such institutions
are protected against abuse of power by other members.
[9]
The
people failed their own Association as was described by the Project
Officer in the Department of Agriculture, Rural Development
and Land
Reform at the Free State Shared Service Centre on 2 June 2022 and
they had to assist with guidance.
[10]
He described it as follows:
22.
In the 2010/11 financial year, the First Respondent underwent a
regularization process. Unfortunately, the
process did not yield the
desired results. Instead, the First Responded (sic) was plagued with
a myriad of challenges as follows:
22.1
The First Respondent is not compliant with the Act, and this pose
serious problems and threatens the sustainability of the
land reform
program;
22.2
There are serious conflicts amongst the members of the First
Respondent associated with, inter alia, power struggles, abuse of
resources,
infringement of their constitution and lack of
transparency in their affairs;
(Accentuation added)
22.3
The Respondents have monitored the implementation of the Act since
its enactment and has identified the following challenges,
specific
to the First Respondent including:
22.3.1
The creation of the First Respondent has resulted in families
and
communities with no relationship or joint history being bound
together under this form of landholding structure;
22.3.2
there are challenges of verification of beneficiaries;
22.3.3
There are no mechanisms to control who comes and settles in the
community and on the land;
22.3.4
There is increased tenure insecurity for more vulnerable individuals
(i.e., youth, women, the elderly and other persons already residing
on land acquired by the First Respondent);
22.3.5
Continuous conflict, and disputes amongst members arising from
the
inequality amongst members arising from inequality in economic
benefits;
22.3.6
The former Executive Committee’s expired term of office
and
reluctance to convene Elective Annual General Meetings;
22.3.7
Mismanagement of resources by the former Executive Committees;
22.3.8
Multiple constitutions create conflict amongst members, neglect
(sic)
security of tenure for members and households, especially the
descendants of the originally dispossessed persons;
22.3.9
Verification lists that are disputed by community members.
22.4
One of the biggest challenges is the lack of capacity of the current
CPA committee members to execute
their functions as required by the
Act and the First Respondent’s Constitution. Amongst the First
Respondent’s general
membership there are serious challenges
with the members’ ability to oversee the work of the former
executive committee and
hold them to account.
23.
The First Respondent has failed to meet their reporting
obligations and are unaccountable to members in conducting
the CPAs
(sic) business operations. When confronted with the need to report to
the department in prescribed form and to account
to their members,
the First respondent is found wanting.
24.
Sections 8 to 11 of the Act prescribe the information
that every CPA must submit to the Third Respondent in each
calendar
year. Without capacity building and training, the levels of
dysfunctionality and noncompliance with the legislation will
continue
unabated. It is for this reason that the Respondents made training a
key priority to build the capacity of the CPAs (sic)
to execute their
functions.
[10]
The
second and third respondents did indeed intervene and provided and
partook in training and as recent as 7 April 2022,
[11]
mediation was initiated,
[12]
meetings with the first respondent and its members happened to assist
them,
[13]
the second and
third respondents have assisted the election of a new committee and
assisted the committee beyond what the legislation
requires by
sourcing electricity and other services. They remained available for
guidance and oversight. It is clear that the second
and third
respondents complied with their legislative duties.
[11]
It is imperative that these Associations must
function independent of the State. The State authorities may not
usurp their independence;
with independence comes responsibilities
and the first respondent clearly struggled with their
responsibilities and the governance
of the Association. They have
only themselves to blame.
[12]
There
is an allegation that a letter was delivered to the first and second
respondents by the applicants to intervene, but it is
the case of the
two respondents that they only gained sight of the letter upon
receipt of the application. It is the case for the
respondents that
if the letter reached the relevant official, they would have
responded as they did when the first respondent requested
their
intervention in 2017, 2018, 2019 and 2022. No reason existed for them
to have ignored the letter especially if it was served
by the
Sheriff. The Court must accept this version of the respondents on the
issue.
[14]
[13]
The second and third respondents pray for the
Association to be placed under administration and for the appointment
of a Receiver
to administer the affairs of the first respondent in
line with the
Communal Property
Association Act 28 of 1996
. They
want for the first respondent to pay the costs of this application.
[14]
They
correctly oppose the structural interdict. They are indeed correct
when they state
[15]
that
prayers 2 to 15 of the notice of motion ask for the Court to enter
the realm of the administration process assigned to the
executive. It
will also be against the interest of justice and certainly cause
confusion and conflict, to have two entities run
the administration
of the Association. The application for the structural interdict
offends the separation of powers doctrine.
[15]
Imperative
is the fact that this is not a constitutional matter as envisaged in
section 172
[16]
of the
Constitution. It is an application to put a self-admitted
dysfunctional private entity under administration.
[16]
The
question is if this is a public interest case? It is indeed because
it serves the purpose of the
Communal
Property Association Act 28 of 1996,
the
public of Edenburg and democracy in the country in general to ensure
the effective governance of the Association.
[17]
[17]
In
their founding affidavit the applicants state that they claim no
specific relief against the second and fourth respondents and
that
they are cited in these proceedings as a result of their interest in
the outcome of the litigation. Applicants, however, claim
for costs
orders against the second and fourth respondents to be paid jointly
with any other respondent opposing the application,
and in the event
of opposition by the second and fourth respondents.
[18]
[18]
The second and third respondents did not oppose
the application to place the first respondent under administration,
but for to object
to the
locus standi
of the applicants and the conflation by the applicants of the duties
and powers of the executive, legislator and court. The
locus
standi
issue apparently fell to the
wayside when the matter was settled between the parties.
[19]
The Project Officer in the Department of
Agriculture, Rural Development and Land Reform at the Free State
Shared Service Centre
put it aptly when he stated in June this year
that:
I
pause to highlight that the Respondents have an oversight role and
are not responsible for managing the affairs of the First Respondents
which is an independent entity. It is unfathomable that the
Respondents can be saddled with the legal costs of a member
exercising
its right in terms of section 13(1) of the Act. The basis
upon which the prayer is sought is misdirected, untrue as will be
explained
in detail below; consequently, the prayer is unsustainable
in law.
[19]
[20]
The second and third respondents are correct in
their submission that the Court may not transgress and trespass into
the realm of
the executive in the instance. The
Communal
Property Association Act
is also
clear on the issue:
13.
Administration, liquidation and deregistration.
(1)
A division of the Supreme Court or a Magistrate’s Court having
jurisdiction in respect of the
area in which the property of the
association is situated or the area in which the land which may be
acquired by a provisional
Association is situated, may, on
application made by the Director-General, an association or
provisional association or any member
thereof, or any other
interested person,
place the association or provisional
association under the administration of the Director-General
or grant a liquidation order in respect of an association or
provisional association, where the association or provisional
association,
because of insolvency or maladministration or for any
other cause is unwilling or unable to pay its debts or is unable to
meet
its obligations, or when it would otherwise be just and
equitable in the circumstances. (Accentuation added)
(2)
The Director-General shall, pursuant to an administration order
referred to in subsection (1), have
such powers to manage the affairs
of the association or provisional association as the Court, subject
to the provisions of this
Act, may determine.
(3)
The Director-General may, upon written application by an association
or provisional association, cause
such an association or provisional
association to be deregistered, if he or she is satisfied that—
(a)
a resolution in favour of deregistration was adopted at a meeting
attended by a substantial number of
the members of the association or
provisional association;
(b)
the resolution was adopted by a majority of members present or
represented at the meeting; and
(c)
all relevant matters which reasonably have to be addressed prior to
deregistration, including
the way in which the assets and liabilities
of the association or provisional association will be dealt with,
have been addressed.
(4)
Where the Court orders the liquidation of an association or
provisional association, it shall make such
order as to the
distribution of the assets of the association or provisional
association as it deems just and equitable, having
considered any
recommendations which the Director-General may make in this regard.
(5)
The Minister may prescribe the procedure to be followed in an
application contemplated in subsection
(1), and set out the powers
and duties of the Director-General, the Registration Officer, the
association, members and interested
parties in those situations.
THE
DRAFT SETTLEMENT ORDER
[21]
The
parties had a caucused and settled and presented the Court with a
draft order. I am indeed indebted to them for this. Some issues
however present in paragraphs 5, 6, 7 and 8. It involves the
conflation of the duties of the
trias
politica
[20]
and the costs. This is the draft order as submitted to the Court:
Having
heard the representatives for the parties, and by agreement between
the parties, the following order is made: -
1.
The First Respondent is placed under administration in terms of
section 13(1) of the Communal
Property Associations Act, 28 of 1996
(as amended);
2.
The First Respondent is ordered to submit all documents in its
possession including financial
records to the Third Respondent within
5 (FIVE) days of the order of this Court;
3.
The Third Respondent is ordered to appoint a Receiver within 60
(SIXTY) days of this order;
4.
The Receiver is granted the undermentioned powers in terms of section
13(2) of the Communal
Property Associations Act, 28 of 1996 (as
amended) and the regulations thereto, as well as the First
Respondent’s Constitution:
4.1.
To administer the affairs of the First Respondent temporarily
until such time as a new executive committee of the First
Respondent
has been elected;
4.2.
To do all things necessary to maintain the affairs of the
First Respondent in good and proper order and specifically
to perform
the following tasks:
4.2.1.
the day-to-day
management of the affairs of the First Respondent;
4.2.2.
control of the First
Respondent’s bank account(s) and administration
thereof;
4.2.3.
payment of the First
Respondent’s ordinary running expenses;
4.2.4.
maintenance and
control of books, records and documents of the First Respondent;
4.2.5.
conducting
verification of the membership lists and updating the register
of
members of the First Respondent, if necessary, within 3 (THREE)
months from date of his/her appointment;
4.2.6.
mandate and instruct
auditors on behalf of the First Respondent to prepare
all outstanding
financial statements of the First Respondent;
4.2.7.
convene (including determination of a date, time and venue), holding
and chairing the annual general meeting or any other special general
meeting and/or general meetings of the First Respondent deemed
necessary for the fulfilment of his/her tasks;
4.2.8.
arrange an election
of committee members to take place within a month after
completing
the membership verification process, or such other annual general
meeting and/or special general meeting of the First
Respondent;
4.2.9.
is entitled, in
his/her sole discretion, to schedule the meetings referred
to in this
order, on the same day or on different days, as he/she deems fit and
practicable;
4.2.10.
call for nominations for election of members to fill any
vacant posts on the executive committee and/or any
other committee of
the First Respondent in terms of the First Respondent’s
Constitution, upon such terms as is deemed applicable
and in
compliance with the rules of natural justice;
4.2.11.
the Receiver shall, in his/her sole discretion, determine the
nomination process
to be followed, provided that it shall be fair and
transparent;
4.2.12.
the Receiver shall determine any disputed issues in respect of the
First Respondent’s Constitution and effect the
necessary
amendments to it;
4.2.13.
the Receiver is entitled to call for written submissions from the
parties in the
matters referred to in 4.2.11 and 4.2.12 supra and
shall, if he/she deems fit, be entitled to seek independent advice
and assistance
from neutral third parties, including an opinion from
legal practitioners, on the interpretation of the First Respondent’s
Constitution;
4.2.14.
engage the services of the Independent Electoral Commission of South
Africa (“the
IEC”) or the Third Respondent to serve as
election monitors;
4.2.15.
at the time when the election referred to herein above is called, the
Receiver
shall address written notice to the relevant Municipality
and/or Municipalities and to the Regional Director: Department of
Land
Affairs, advising them of the impending election of committee
members from the respective regions and requesting them to appoint
representatives to serve on the committee of the First Respondent;
4.2.16.
to review and set aside any decision, resolution, contract,
transaction, undertaking,
agreement or the like, made by the
executive committee and/or any member or the executive committee,
past or present, acting in
unison or individually, found by the
Receiver to be contrary to the provisions of the First Respondent’s
Constitution, the
provisions of the Communal Property Associations
Act, 28 of 1996 (as amended) and/or any other statutory provision, or
contrary
to the best interest of the members and/or member
beneficiaries of the First Respondent;
4.2.17.
engage the services of an attorney or counsel for assistance in the
proper interpretation
of the First Respondent’s Constitution or
any other legal requirements which the Receiver is required to
observe, if deemed
necessary by him/her; and
4.2.18.
approaching the Free State High Court, Bloemfontein for directions or
other relief
on any matter pertaining to his/her appointment or the
fulfilment of his/her tasks as Receiver.
5.
The Receiver is ordered to file a progress
report on the execution of his powers referred to in prayer
4 with
the Registrar of this Court and cause same to be served on all the
parties hereto, within 4 (FOUR) months from date of his
appointment;
6.
The parties are entitled to file their
responses to the progress report compiled by the Receiver in
terms of
paragraph 5 hereof, within 1 (ONE) month after service thereof;
7.
The Receiver is ordered to file a final
report on the execution of his powers referred to in prayer
4 with
the Registrar of this Court and cause same to be served on all
parties, within 3 (THREE) months from date of filing the
initial
progress report referred to in 5 above; and
8.
Costs at the Court’s discretion,
following argument by legal representatives.
AD
PARAGRAPHS 1, 2, 3 and 4
[22]
These instructions and orders are by agreement
between the parties and in accordance with democratic governance. It
does not clash
with the
Communal
Property Association Act
and
administrative law. It may be allowed by agreement between the
parties. The issue of the costs and payment of the outsourced
services might be problematic. It should be for the account of the
first respondent’s estate under administration.
AD
PARAGRAPHS 5, 6 & 7
[23]
It may not
be allowed that the Receiver and the parties file their reports to
the Court. It is not the Court’s place and constitutional
duty
to administer the Association; this is the duty of the Director
General and the Minister. The Receiver must thus file with
the
Director General and the Court will grant the Director-General,
Minister, an association or provisional association or any
member
thereof, or any other interested person access to the Court in terms
of section 34 of the Constitution, 1998 on the same
papers duly
amplified if judicial intervention is appropriate and essential.
COSTS
FOR THIS APPLICATION
[24]
In
Ferreira
v Levin NO and Others, Vryenhoek and Others v Powell NO and
Others
[1996] ZACC 27
;
1996
(2) SA 621
(CC) it crystallised that the two main principles of the
approach to costs are that a judicial officer who hears a matter has
wide
discretion to decide on the parties’ costs and that costs
follow the outcome of a case.
[25]
The applicants
in
casu
were substantially successful.
The second and third respondents the same. They did not oppose the
application for the placing under
administration of the Bethany CPA
and were found to be correct in their approach to constitutional
administrative governance. They
contributed to the settlement of the
case and in the end agreed to the structural interdict to promote the
effectiveness of the
administration.
[26]
The first respondent opposed the applications:
Its
members seek to retain full control of the Association and opposed
declaratory and mandatory relief, as well as the structural
[supervisor] interdicts to put this Association under the control of
the Director General: Department of Rural Development and
Land Reform
[the Third Respondent] sought by the five applicants in accordance
with section 13(1) of the said Act.
[21]
They
wanted for the mediation process to be finalised although it failed
in the past. The first respondent did not want to relinquish
power of
the dire situation they caused and to the detriment of the mission.
They caused the situation with willful bad governance
and want for
the Director General to bear the consequences. This is not how mature
governance and responsibility are implemented;
there has to be
accountability and the Association will have to carry the load for
its conduct.
[27]
The
wisdom of counsel for the Association that facilitated the settlement
and draft order and the best outcome for the case, protected
the
Association from deregistration since the land was under
maladministration and in dire straits. The second, third and fourth
respondents will assist as far as possible financially to attain
success for the association but the fact remains that as the
Association argued; they must retain stewardship of the running of
the Association, the Communal Association was established to
enable
communities to own land and manage their own land. The intention was
to establish independent communities that run their
own land.
[22]
The current Association failed and have to bear the costs of the
litigation if the basic rules of costs are adhered to.
[28]
This
is indeed litigation in public interest; it is in the interest of the
country and its people that these Communal Associations
succeed. The
Biowatch Principle comes to the fore; the Constitutional Court, the
Land Claims Court and the Labour Courts have adopted
the principle
that persons should not be deterred from enforcing their right
because they fear that they will have to pay their
opponent’s
costs as well as their own costs if they do not succeed.
[23]
[29]
Courts
are not bound to follow the usual approach of the superior courts in
awarding costs and it will give due weight to the constitutional
obligation to promote the fundamental right of access to the courts
in such a way that legitimate litigants will not be deterred
from
approaching the court to have a dispute settled for fear of an
adverse cost order.
[24]
[30]
The Constitutional Court in the Biowatch –
case held at paragraph [11] that:
Thus,
litigants should not be treated disadvantageously in making costs and
related awards simply because they are pursuing commercial
interests
and have deep pockets. Nor should they be looked upon with favour
because they are fighting for the poor and lack funds
themselves.
What matters is whether rich or poor, advantaged or disadvantaged,
they are asserting rights protected by the Constitution.
The
Constitutional Court warned against stubborn vexatiousness. The
Constitutional Court warned that the above principles are not
unqualified. At paragraph [15] and [16] it was warned that if an
application is frivolous, vexatious or inappropriate the worthiness
of its cause will not immunise it against an adverse cost order.
Merely labelling the litigation as constitutional would not be
enough
to invoke the rule. The issues in the matter must genuinely and
substantively be of a constitutional nature; I would add
of public
interest also.
[31]
In the matter of
Maoke
and Another v Telkom (Soc) Limited and Another
(15246/2019) [2020] ZAGPPHC 125 it was highlighted that the Biowatch
Principle is not confined to litigation involving the state
in the
narrow sense of the word. It applies more broadly to public
institutions and organs of state. It can be assumed that the
principles in Biowatch could be applied to civil litigation between
two private parties if the matter involves legitimate constitutional
issues.
[32]
The facts of the case dictates that the first
respondent shall carry the costs for the applicants as well as
themselves. The second,
third and fourth respondents shall carry
their own costs. The fourth respondent did oppose the application but
did not join in
the hearing of the matter.
[33]
In conclusion; the draft settlement order will
be confirmed but for the reporting to the Court and the first
respondent will pay
its own costs as well as that of the applicants.
The other parties will carry their own costs.
ORDER
[34]
Having heard counsel for the parties, and by agreement between the
parties; the following order
is made:
1.
The first respondent is placed under
administration in terms of
section 13(1)
of
the
Communal Property
Associations Act, 28 of 1996
.
2.
The first respondent is ordered to submit
all documents in its possession including financial records
to the
third respondent within 5 (Five) days of the date of the order of
this Court.
3.
The third respondent is ordered to appoint a
Receiver within 60 (Sixty) days of the date of this order.
4.
The Receiver is, by agreement between the
parties, granted the undermentioned authority in terms of
section
13(2)
of the
Communal Property Associations Act, 28 of 1996
and the regulations thereto, as well as the first respondent’s
Constitution:
4.1.
To administer the affairs of the first respondent temporarily
until such time as a new executive committee of the first
respondent
has been legally elected.
4.2.
To engage all processes and actions necessary to maintain the
affairs of the first respondent in good and proper order
and
specifically to perform the following tasks:
4.2.1.
The day-to-day
management of the affairs of the first respondent;
4.2.2.
exercise control
over the first respondent’s bank account(s) and administration
thereof;
4.2.3.
payment of the first
respondent’s ordinary running expenses;
4.2.4.
maintenance and
control of books, records and documents of the first respondent;
4.2.5.
conducting
verification of the membership lists and updating the register
of
members of the first respondent, if necessary, within 3 (three)
months from date of his/her appointment;
4.2.6.
mandate and instruct
auditors on behalf of the first respondent to prepare
all outstanding
financial statements of the first respondent;
4.2.7.
convene (including
determination of a date, time and venue), holding and
chairing the
annual general meeting or any other special general meeting and/or
general meetings of the first respondent deemed
essential for the
fulfilment of his/her tasks;
4.2.8.
arrange an election of committee members to take place within a month
after completing the membership verification process, or such other
annual general meeting and/or special general meeting of the
first
respondent;
4.2.9.
the Receiver is
entitled, in his/her sole discretion, to schedule the meetings
referred to in this order, on the same day or on different days, as
he/she deems fit and practicable;
4.2.10.
the Receiver may call for nominations for election of members to fill
any vacant posts on the executive committee and/or
any other
committee of the first respondent in terms of the first respondent’s
Constitution, upon such terms as is deemed
applicable and in
compliance with the rules of natural justice;
[25]
4.2.11.
the Receiver shall, in his/her sole discretion, determine the
nomination process
to be followed, provided that it shall be fair and
transparent;
4.2.12.
the Receiver shall determine any disputed issues in respect of the
first respondent’s Constitution and effect the
necessary
amendments to it;
4.2.13.
the Receiver is entitled to call for written submissions from the
parties
in the matters referred to in 4.2.11 and 4.2.12
supra
and shall, if he/she deems fit, seek independent advice
and assistance from neutral third parties, including an opinion from
legal
practitioners, on the interpretation of the first respondent’s
Constitution;
4.2.14.
the Receiver may engage the services of the Independent Electoral
Commission of South Africa (“the IEC”) or
the third
respondent to serve as election monitors;
4.2.15.
at the time when the election referred to herein above is called, the
Receiver shall address a written notice to the relevant
Municipality
and/or Municipalities and to the Regional Director: Department of
Rural Development and Land Reform, advising them
of the impending
election of committee members from the respective regions and
requesting them to appoint representatives to serve
on the committee
of the first respondent;
4.2.16.
the Receiver may review and set aside any decision, resolution,
contract, transaction, undertaking, agreement or the like,
made by
the executive committee and/or any member or the executive committee,
past or present, acting in unison or individually,
found by the
Receiver to be contrary to the provisions of the first respondent’s
Constitution, the provisions of
the
Communal Property Associations
Act, 28 of 1996
and/or any other statutory provision, or that is
contrary to the best interest of the members and/or member
beneficiaries of the
first respondent and in accordance with the law;
4.2.17.
the Receiver shall engage the services of an attorney or counsel for
assistance in the proper interpretation of the first
respondent’s
Constitution or any other legal requirements which the Receiver is
required to observe, if deemed necessary
by him/her; and
4.2.18.
the Receiver may approach the Free State High Court, Bloemfontein for
directions or other relief on any matter pertaining
to his/her
appointment or the fulfilment of his/her tasks as Receiver.
5.
The Receiver is ordered to file a progress
report on the execution of his/her powers referred to in
paragraph 4
with the
Director General: Department of Rural Development and
Land Reform
and cause same to be served on all the parties
hereto, within 4 (four) months from date of his/her appointment;
6.
The parties are entitled to file their
responses to the progress report compiled by the Receiver in
terms of
paragraph 5 hereof, within 1 (one) month after service thereof.
7.
The Receiver is ordered to file a final
report on the execution of his powers referred to in paragraph
4 with
the
Director General: Department of Rural Development and Land
Reform
and cause same to be served on all parties, within 3
(three) months from date of filing the initial progress report
referred to
in paragraph 5 above.
8.
Permission is granted to the Director
General: Department of Rural Development and Land Reform, the
Minister: Department of Rural Development and Land Reform, an
association or provisional association or any member thereof, or
any
other interested person to access the Court in terms of section 34 of
the Constitution, 1998 on the same papers, duly augmented,
if
judicial intervention is suitable and essential and on the issues
that served in this application.
9.
Any costs incurred for the outsourcing to private services shall be
for the account of the
estate of the first respondent under
administration.
10.
The first respondent shall carry the costs of the
applicants and their own costs. The second to fourth respondents
shall carry their own costs.
M
OPPERMAN, J
APPEARANCES
On
behalf of the applicants:
ADVOCATE A. SANDER
Chambers
Bloemfontein
BLOEMFONTEIN
Mr.
J Kruger
c/o
Phatshoane Henney Inc.
35
Markgraaff Street
Westdene
BLOEMFONTEIN
051
400 4022
japiek@phinc.co.za
REF:
J KRUGER/LAW1-PH/0041
On
behalf of the first respondent:
Mr.
M.J. KOENANE
Koenane
Attorneys
119
St Andrew Street
President
Building
BLOEMFONTEIN
082
438 4695
koenaneattorneys@gamil.com
On
behalf of the second and third respondents:
ADVOCATE T.M. NGUBENI
Chambers
Bloemfontein
BLOEMFONTEIN
State
Attorneys
11
th
Floor, Fedsure Building
49
Charlotte Maxeke Street
BLOEMFONTEIN
051
400 4308
CSsibiya@justice.gov.za
Ref:
574/202200304P3K
[1]
The “
Bethany
CPA” or “Association”. Registration number
99/0072/A.
[2]
The “Minister”.
[3]
The
“Director General”.
[4]
The “Provincial Registrar”.
[5]
A structural interdict is an order under which the court controls
compliance with its order. Section 172(1)(b) of the Constitution,
provides that
in
constitutional matters
courts may grant “any order that is just and equitable”.
It empowers courts to order structural interdicts.
[6]
Paragraph
5.8 of the Applicant’s Heads of Argument.
[7]
See
FA14 at page 95 of the Bundle. All reference will be to the Bundle
except if otherwise indicated.
[8]
See
FA15 at page 96.
[9]
See
FA15 at page 96.
[10]
Paragraphs
22 to 24 of his affidavit on pages 248 to 251.
[11]
Paragraphs
25 to 31 on pages 251 to 254.
[12]
Paragraphs
32 to 34 on pages 254 to 255.
[13]
Paragraphs
35 to 40 on pages 255 to 257.
[14]
Plascon-Evans
Paints (Pty) Ltd v Van Riebeck Paints (Pty) Ltd
(53/84)
[1984] ZASCA 51
;
[1984] 2 All SA 366
(A);
1984 (3) SA 623
;
1984 (3)
SA 620
(21 May 1984).
[15]
Paragraph
17.1 at page 247.
[16]
172. Powers of courts in constitutional matters. —
(1)
When deciding a constitutional matter within its power, a court—
(a)
must declare that any law or conduct that is inconsistent with the
Constitution
is invalid to the extent of its inconsistency; and
(b)
may make any order that is just and equitable, including—
(i)
an order limiting the retrospective effect of the declaration of
invalidity;
and
(ii)
an order suspending the declaration of invalidity for any period and
on any conditions,
to allow the competent authority to correct the
defect.
(2) (a)
The Supreme Court of Appeal,
the
High Court of South Africa or a court of similar status may make
an order concerning the constitutional validity of an Act of
Parliament, a provincial Act or any conduct of the President, but an
order of constitutional invalidity has no force unless it
is
confirmed by the Constitutional Court.
[Para. (a) substituted
by s. 7 of the Constitution Seventeenth Amendment Act of 2012.]
(b)
A court which makes an order of constitutional invalidity may
grant a temporary
interdict or other temporary relief to a party, or
may adjourn the proceedings, pending a decision of the
Constitutional Court
on the validity of that Act or conduct.
(c)
National legislation must provide for the referral of an order of
constitutional invalidity
to the Constitutional Court.
(d)
Any person or organ of state with a sufficient interest may appeal,
or apply, directly
to the Constitutional Court to confirm or vary an
order of constitutional invalidity by a court in terms of this
subsection.
(Accentuation added)
[17]
2020: Mokoko P. Sebola & Malemela A. Mamabolo,
Governing
and managing communal land as a resource in South Africa: A case of
selected communal property associations in Vhembe
district, Limpopo
Province
,
University of Limpopo, South Africa, published in The Business and
Management Review, Volume 11 Number 1, Conference proceedings
of the
Centre for Business & Economic Research, ICBED-2020, 20-22
August.
[18]
Paragraph
3.5 on page 16.
[19]
Paragraph
20 at page 248.
[20]
“Separation of powers, also referred to
as
trias politica
,
requires the separation of state government into three arms, namely,
the legislature with law making functions, the executive
with the
duty to execute the law and the judiciary with the duty to interpret
the law and resolve disputes which arise in terms
of the law. In
order for the separation of powers to apply effectively all three
arms of government must be independent of each
other.”
https://orcid.org/0000-0001-9683-2247
,
http://hdl.handle.net/10394/36723
accessed on 25 August 2022.
[21]
Page
4 of the Heads of Argument of the first respondent.
[22]
Page
9 of the Heads of Argument of the first respondent.
[23]
Theophilopoulos, Van Heerden & Boraine
,
Legal Costs in Fundamental Principles of Civil Procedure, Third
edition
(2015) 444 at 446, https://hdl.handle.net/10520/EJC-e2228ac79.
[24]
Biowatch
Trust v Registrar, Genetic Resources, and Others
2009 (6) SA 232
(CC) at paragraph [1].
[25]
The principles of natural justice concern procedural fairness and
ensure a fair decision is reached by an objective decision
maker.
Maintaining procedural fairness protects the rights of individuals
and enhances public confidence in the process.
The
three main requirements of natural justice that must be met in every
case are: adequate notice, fair hearing and no bias.
Sometimes,
all three of these concepts are grouped together as “the right
to a fair hearing”. Sahu, Manjeet Kumar,
Principle
of Natural Justice in South Africa
(September 1, 2015). Available at SSRN:
https://ssrn.com/abstract=2765896 or
http://dx.doi.org/10.2139/ssrn.2765896
assessed on 25 August 2022.