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[2022] ZAKZPHC 86
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National African Federated Chambers Of Commerce and Industry - Kwazulu-Natal and Others v NAFCOC Kwazulu-Natal and Others (1591/20P) [2022] ZAKZPHC 86 (15 December 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 1591/20P
In
the matter between:
NATIONAL AFRICAN
FEDERATED CHAMBERS
OF COMMERCE AND
INDUSTRY-
KWAZULU-NATAL
(NAFCOC
KZN)
FIRST APPLICANT
MUSAWENKOSI
ROBERT MEYIWA
SECOND APPLICANT
WALTER
NSELE
THIRD APPLICANT
PATIENCE
BONGEKILE MZIMELA
FOURTH APPLICANT
MANDLA
THUSHINI
FIFTH APPLICANT
QAPHELA
MTHEMBU
SIXTH APPLICANT
SIPHO
CYPRIAN HLOPHE
SEVENTH APPLICANT
DR
MANDLA MKHIZE
EIGHTH APPLICANT
MUSAWENKOSI
ROBERT MEYIWA N.O.
NINTH APPLICANT
SIPHO
CYPRIAN HLOPHE N.O.
TENTH APPLICANT
and
NAFCOC:
KWAZULU-NATAL
FIRST RESPONDENT
MANDLAKAYISE
BUTHELEZI
SECOND RESPONDENT
MBONGELENI
ENOCK CHISANE
THIRD RESPONDENT
JABULANI
NXUMALO
FOURTH RESPONDENT
HAPPINESS ZANDILE
CHONCO
(nee
NKABINDE)
FIFTH RESPONDENT
THOKOZANI
DLAMINI
SIXTH RESPONDENT
PAULUS
NGEMA
SEVENTH RESPONDENT
KHEHLA
MTSHALI
EIGHTH RESPONDENT
NONTO
MKHIZE
NINTH RESPONDENT
THANDUXOLO
NCANE
TENTH RESPONDENT
SIBUSISO
MPISANE
ELEVENTH RESPONDENT
SIBUSISO
MAVUNDLA
TWELFTH RESPONDENT
NORMAN
SIBETHA
THIRTEENTH RESPONDENT
BIGBOY
MBUYAZI
FOURTEENTH RESPONDENT
VUSIMUZI
SAKHOKWAKHE CHONCO
FIFTEENTH
RESPONDENT
MANDLA
DLADLA
SIXTEENTH RESPONDENT
THANDI
NDLOVU
SEVENTEENTH RESPONDENT
FAITH
NENE
EIGHTEENTH RESPONDENT
NHLANHLO
DOKO
NINETEENTH RESPONDENT
THE MASTER OF THE HIGH
COURT
NORTH
GAUTENG
TWENTIETH RESPONDENT
TSOGO INVESTMENT
HOLDING CO (PTY) LTD TWENTY-FIRST RESPONDENT
NATIONAL
AFRICAN
FEDERATED CHAMBER
CHAMBER OF COMMERCE
AND
INDUSTRY
TWENTY-SECOND RESPONDENT
ORDER
The
following orders are granted:
1.
The applicants’ application is
dismissed with costs. The first to tenth applicants are directed to
pay the respondents and
twenty second respondent’s costs
occasioned by the dismissal of the main application and the
respondents and twenty second
respondent’s costs of the
counter-applications, jointly and severally, the one paying the other
to be absolved. Such costs
are to be on an attorney client scale and
are to include the costs of both senior and junior counsel where so
employed and the
costs of the intervention application.
2.
The first respondent is the lawfully
constituted National African Federated Chamber of Commerce and
Industry for the KwaZulu-Natal
Region (NAFCOC KZN).
3.
The first respondent is a beneficiary of
the NAFCOC KwaZulu-Natal Investment Trust.
4.
The first applicant is not an affiliate of
NAFCOC and is not entitled to appoint trustees in terms of the Trust
Deed of the NAFCOC
KwaZulu-Natal Investment Trust as amended.
5.
The first to tenth applicants are
interdicted and restrained from holding themselves out as NAFCOC KZN
and as its executive council
or as executive committee members.
6.
The first respondent is the only entity
entitled to appoint the trustees of the NAFOC KwaZulu-Natal
Investment Trust.
7.
The first to tenth applicants are
interdicted and restrained from making any appointment of trustees to
the NAFCOC KwaZulu-Natal
Investment Trust.
8.
The voluntary association known as NAFCOC
KZN that elected its interim provincial leader, Mr Themba Ngcobo on
19 August 2010, followed
by Dr Mandla Buthelezi, and recently by Mr
Paul Ngema who was elected on 18 March 2020, and all its successors
in title is a properly
and lawfully recognised affiliate of NAFCOC
and is entitled to appoint trustees to the NAFCOC KwaZulu-Natal
Investment Trust in
terms of the trust deed.
JUDGMENT
HENRIQUES
J
Introduction
[1]
‘
It is vital that we avoid any hint
of moral superiority in our dealings with one another .
…
if it
developed into factionalism it would destroy us, as factionalism has
destroyed so many progressive movements in [history].’
[1]
[2]
This
quotation aptly describes the dispute in the application that served
before the court as an opposed motion.
Apropos
the
application, declaratory and interdictory relief is sought by the
applicants
[2]
which
is foreshadowed in the notice of motion as
follows:
‘
1.
That
the First Applicant be declared to be the National African Federated
Chamber of Commerce and Industry for the KwaZulu-Natal
Region, duly
constituted as an association not for gain pursuant to the provisions
of the National African Federated Chamber of
Commerce and Industry
Constitution (Second Amendment 2008).
2.
That
the First Applicant be declared as the entity named as the
beneficiary of the NAFCOC KwaZulu-Natal Investment Trust.
3.
That
the Second to Eighth Applicants, inclusive, be declared as the duly
elected executive
committee
for the time being of the First Applicant.
4.
That
the First Respondent be interdicted and restrained from holding
itself out as the First
Applicant.
5.
That
the Second to Nineteenth Respondents, inclusive, be interdicted and
restrained from
holding
themselves out to be members of the executive committee of the First
Applicant.’
[3]
The
relief
is
opposed
by
the
first,
third,
fourth,
sixth,
seventh,
thirteenth,
sixteenth
and
seventeenth
respondents.
[3]
The
respondents,
in
addition
to
their
opposition, have instituted a counter-application in which the
following relief is sought:
‘
1.
That the first respondent be declared to be the
lawfully constituted National African Federated
Chamber
of
Commerce
and
Industry
for
the
KwaZulu-Natal
Region
(NAFCOC
KZN);
2.
That the first respondent be declared as
the entity referred to as the beneficiary of the NAFCOC KZN
Investment Trust (“the
Trust”);
3.
That the applicants be interdicted and
restrained from holding themselves out as NAFCOC KwaZulu-Natal and as
its executive council
or executive committee members;
4.
It is declared that the first respondent is
the only entity entitled to appoint the Trustees of the Trust and the
applicants are
interdicted from making any such appointment;
5.
That the applicants be ordered and directed
to pay the costs of this counter-application jointly and severally
the one paying the
others to be absolved and such costs to be costs
on a scale between attorney and client including the costs consequent
upon the
employment of two counsel.’
[4]
Whilst these proceedings were pending, an
application was instituted by the twenty-second respondent, the
National African Federated
Chamber of Commerce and Industry (NAFCOC),
in its capacity as the national NAFCOC body, to intervene in the
proceedings (the intervening
party). An order was granted by Masipa J
on 26 November 2020 authorising such intervention. The costs of such
intervention application
were ordered to be costs in the cause.
[5]
The
intervening party subsequently filed its own counter-application
seeking the following relief
[4]
:
‘
1.
That a declaratory order be granted to the
effect that:
a.
The First Applicant in the application is
not an affiliate of NAFCOC, and is not entitled to appoint trustees
in terms of the Trust
Deed of the NAFCOC KwaZulu-Natal Investment
Trust as amended (registration number IT1[…]) (“the
Trust Deed”);
b.
The voluntary association known as NAFCOC
KwaZulu-Natal that elected as interim provincial leader Themba Ngcobo
on 19 August 2010
followed, by Dr Mandla Buthelezi and recently by
Paul Ngema duly elected on 18 March 2020, and that is still led by
the latter
as provincial leader, and all its successors in title
(“the recognised affiliate”), is a properly and lawfully
recognised
affiliate of NAFCOC, and the only body entitled to appoint
trustees in terms of the Trust Deed;
c.
Only trustees appointed by the recognised
affiliate in terms of the Trust Deed, are entitled to be granted
letters of authority
by the Master of the High Court, and to
administer the benefits due to the trust.’
2.
That the Applicants be directed to pay the
Twenty-Second Respondent’s costs in the main and
counter-application.’
The parties
NAFCOC
(National African Federated Chamber of Commerce and Industry)
National (the intervening party)
[6]
It is common cause that NAFCOC is a
voluntary association established in 1964 for the economic
empowerment of historically disadvantaged
black business people
throughout the Republic of South Africa. It is a voluntary
association governed by a constitution and has
as its objectives, the
organization of business persons and businesses, particularly small
businesses, to place them under one
umbrella body to represent,
develop, and protect their interests, and to promote the economic
growth and to uplift them and enable
them to obtain economic freedom.
[7]
In 1964, individual members of the black
business community in various provinces throughout the Republic of
South Africa joined
NAFCOC. It is a federation consisting of
affiliated sectoral members, corporate members, honorary members and
any other individual
or associations which are admitted to
membership. The sectoral affiliates are also voluntary associations
represented by the nine
provinces and the other nine represent
various sectors of the economy.
[8]
Subsequent to the 1994 first democratic
general elections in South Africa, the leadership of NAFCOC National
embarked on a process
to realign the focus of the existing
associations and establish further associations to accord with the
new provincial divisions.
As a consequence of such process, all
provincial structures were requested to change their names to NAFCOC
and NAFCOC National
also amended its constitution and adopted a
constitution in 2008 (the 2008 constitution). It is alleged that the
first applicant
was formed prior to a subsequent amendment by NAFCOC
National of its constitution in 2011. The applicants allege that they
did
not adopt the 2011 constitution although it is alleged to have
been adopted at a meeting held by NAFCOC National on 17 March 2011.
[9]
As it was an organization not for gain,
NAFCOC Investment Holdings (NAFHOLD) was formed to pursue investment
opportunities on behalf
of members of NAFCOC. It is common cause that
NAFHOLD was incorporated in October 1994 as an investment holding
company with its
main objective being to acquire business and
investment
opportunities for NAFCOC and its members. The sole shareholder of
NAFHOLD is the National African Federated Chamber of
Commerce
Investment Trust which funds NAFCOC by making discretionary
distributions from time to time to fund its expenses.
[10]
NAFHOLD has various valuable assets
including investments in Uthingo which ran the National Lottery, and
Phumelela a large operator
in the horse racing industry to name but a
few. In 2009, NAFHOLD disposed of its investment in Tsogo Investment
Holding Company,
the twenty-first respondent. It is common cause that
the NAFCOC KZN Trust was previously the holder of 830 preferent
shares in
the twenty-first respondent which have been redeemed for an
amount of R27 694 538.84. Such amount is being held in the
twenty-first
respondent’s attorneys trust account pending the
resolution of the dispute between the parties.
[11]
Various provincial trusts were formed to
enable the NAFCOC structure, as well as the various provincial
structures, to participate
in investment opportunities. One such
trust established in February 2005 was the NAFCOC KwaZulu-Natal
Investment Trust (the NAFCOC
KZN Trust), which was established in
terms of the Trust Property Control Act 57 of 1988.
The applicants
[12]
The first applicant is the National African
Federated Chamber of Commerce and Industry for the Kwazulu-Natal
region, described in
the papers as a voluntary organization not for
profit, with legal personality and perpetual succession based in
Pietermaritzburg.
[13]
It is common cause that the second to
eighth applicants are office bearers of the first applicant which
were elected at an elective
conference held on 11 September 2019 and
are members in good standing. The second applicant is the president,
the third applicant
the vice president, the fourth applicant the
second vice president, the fifth applicant the secretary general, the
sixth applicant
the deputy secretary general, the seventh applicant
the treasurer and the eighth applicant the deputy president.
[14]
The ninth and tenth applicants are trustees
of the NAFCOC KZN Trust which has its registered address at 1[…]
C[…]
Street, Pietermaritzburg.
The respondents
[15]
The first respondent is NAFCOC:
KwaZulu-Natal which has its address at both Maritzburg Arch, 3[…]
C[…] A[…]
L[…] Street Pietermaritzburg, and 5[…]
S[…] M[…] Street, Durban. The second to nineteenth
respondents
are described as executive committee members and office
bearers of the first respondent.
[16]
The second respondent is the
chairperson/president, the third respondent its assistant
chairperson, the fourth respondent its first
vice chairperson, the
fifth respondent the assistant secretary, the sixth respondent the
treasurer, the seventh respondent the
secretary general, the eighth
respondent the deputy president, the ninth respondent the senior vice
president, the tenth respondent
the second vice president, the
eleventh respondent the deputy secretary general, the twelfth
respondent the secretary general,
the thirteenth respondent the
treasurer general, the fourteenth respondent is the chairperson of
districts of the first respondent,
the fifteenth, sixteenth and
seventeenth respondents are additional members of the first
respondent, the eighteenth respondent
is a women’s
representative member and the nineteenth respondent is a youth
representative member of the first respondent.
[17]
The twentieth respondent is the Master of
the High Court, North Gauteng cited in his official capacity, and the
twenty-first respondent
is Tsogo Investment Company Limited,
represented by its attorneys ENS Africa. No relief is sought against
the twenty-first respondent
however it is cited in the proceedings as
it has an interest in the outcome of the matter. The twenty-second
respondent is NAFCOC,
the national mother body established for the
whole of South Africa who was granted leave to intervene in these
proceedings.
The dispute
[18]
The dispute in this matter relates to what
has been termed a faction fight between two bodies in the province of
KwaZulu-Natal
both
claiming to be the duly affiliated constituent members of NAFCOC.
Antecedents
[19]
The antecedents to the dispute, most of
which are common cause and which are relevant to the determination of
the relief sought
in the main application and counter-applications
are the following.
[20]
It is common cause that there were two
parallel structures in KwaZulu-Natal and in 2009, the first applicant
was embroiled in a
dispute concerning its leadership. It was agreed
between the various parties of these parallel structures to end the
disputes and
internal divisions, and to convene a joint provincial
council with a view to electing a new executive committee. To achieve
this,
on 18 November 2009, a general meeting was held at the
Coastlands Hotel, Durban which resolved to officially dissolve the
two parallel
structures existing in
Kwa-Zulu Natal at the time. In attendance
at such meeting were representatives of NAFCOC National being Mr B
Letsoela, Mr C Mrasi
and Mr SS Sakhosane.
[21]
At such general meeting, Ms Pinky Mkhize,
Mr Musawenkosi Meyiwa, Mr Mandla Buthelezi, Mr Thulani Kubheka, Ms
Patience Bongekile
Mzimela, Mr Thozani E Dlamini and Mr Paul Ngema
were all elected as executive committee members of NAFCOC KZN.
[22]
Ms Pinky Mkhize and Mr Musawenkosi Meyiwa,
the second applicant, were respectively elected as the president and
deputy president,
Mr Paul Ngema, the seventh respondent was elected
as the secretary general, Mr Mandla Buthelezi was elected as the
first vice president,
Mr Thulani Kubheka the second vice president,
Ms Patience Mzimela the deputy secretary, and Mr Thokozani Dlamini as
the treasurer.
[23]
It
is interesting to note that this is not denied by the applicants but
they aver that the aforesaid executive committee members
were the
executive members of the first applicant. The first respondent was an
affiliate of NAFCOC National, did not have its own
constitution and
operated under the NAFCOC National 2008 constitution. Such
arrangement is catered for in the 2008 constitution
in clause
24.6.
[5]
[24]
Ms Mkhize, Mr Ngema and Mrs Mzimela, the
fourth applicant, were appointed to represent NAFCOC KZN on the
NAFCOC National Council.
On 23 July 2010, Ms Mkhize and the second
applicant, Mr Meyiwa, were suspended by the NAFCOC National executive
committee. The
second applicant, Mr Meyiwa, disputes such suspension.
He submits that annexures ‘PM10’ and ‘PM11’
do not
constitute letters of suspension but are an invitation to him
and Ms Mkhize to attend a disciplinary hearing initiated by NAFCOC
National.
[25]
This denial by the second applicant is not
borne out by annexure ‘PM12’ which was issued after the
initial date of the
hearing which reads as follows:
‘
Further
to the notice of your disciplinary hearing, served upon you on 23
July 2010 you are hereby notified of your suspension,
with immediate
effect, from participating in all NAFCOC activities both nationally
and provincially pending the outcome of the
disciplinary processes
that are currently underway.
This
has been necessitated by the fact that it had not been anticipated
that the disciplinary process would drag as it appears to
be now. In
order to enable you to adequately prepare for the hearing and to
safeguard against the occurrence of similar events
that led to the
disciplinary action it is only fair to relieve you of your duties as
Chairperson of NAFCOC (KZN) and 2
nd
Vice President NAFCOC.’
[26]
Such correspondence is dated 28 July 2010.
The contents of annexure ‘PM12’ are not disputed and
consequently must be
common cause. In addition although ‘PM12’
is addressed only to Miss Mkhize, it is evident from ‘PM 15'
that disciplinary
hearings were held in respect of both of them
pursuant to which they were both suspended. Similarly, this has not
been disputed
nor the termination of their membership.
[27]
Clause 13 of the NAFCOC 2008 constitution
deals with the termination and suspension of membership. Clause 13.3
provides that a member
shall cease to be a member of NAFCOC ‘if
the Council decides to terminate the membership of a member
…
and
gives written notice to the member of such termination’. Clause
13.4 makes provision for the summary suspension of any
member if the
Council is of the opinion that ‘such member is guilty of
conduct which has brought or is likely to bring NAFCOC
or any of its
Constituent Affiliate Members or Associate Members into disrepute’.
[28]
Clause 13.5 of the NAFCOC 2008 constitution
provides that
‘
a
member on suspension and/or expulsion shall immediately cease to hold
himself out as a NAFCOC member and/or affiliate and shall
also cease
to use the name NAFCOC and/or its emblem and shall cease to
participate or cause to participate in any activity and/or
structure
of NAFCOC whilst the suspension and/or expulsion is in force.’
Consequently,
with effect from 28 July 2010, Ms Mkhize and Mr Meyiwa were precluded
from holding themselves out as members of NAFCOC
or from
participating in any of the activities of NAFCOC, both at national
and provincial levels, including its meetings.
[29]
As a consequence of the suspension of Ms
Mkhize and Mr Meyiwa, NAFCOC KZN through the office of the secretary
general, the seventh
respondent being Mr Paul Ngema, issued a notice
to all council members of NAFCOC KZN, to attend a meeting at the
Edward Hotel Durban
on 19 August 2010. This second meeting was to be
held after the general meeting.
[30]
In attendance at such general meeting were
members of NAFCOC National, represented by Mr Mavundla and other
members of the national
executive council of NAFCOC. It is undisputed
that at the time, Mr Mavundla was the president of NAFCOC. It is not
disputed that
the seventh respondent attended the general meeting
with a small contingent of persons who sought a vote of no confidence
to remove
Ms Mkhize as NAFCOC KZN’s president. Ms Mkhize and
the second applicant gained knowledge of the general meeting and also
attended the meeting, accompanied by a large contingent of persons.
[31]
As a consequence of the arrival of Ms
Mkhize, the second applicant and the contingent of persons who
supported them, the members
of the executive council of KZN NAFCOC
met in an effort to avoid confrontation and to determine a peaceful
way forward for the
meeting.
At
such second council meeting a vote of no confidence was passed in
respect of Ms Mkhize and Mr Meyiwa and new members were elected
to
the fill the vacancies which had arisen.
[32]
At such general meeting, the National
president of NAFCOC, Mr Mavundla, addressed the meeting and in such
address, inter alia, mentioned
that the suspension of Ms Mkhize and
the second applicant, Mr Meyiwa, was erroneous and needed to be
uplifted at national level.
The respondents confirm that this
statement was made.
[33]
It is not in dispute that the national
executive committee of NAFCOC National never met and never uplifted
the suspension (whether
lawful or unlawful) of Ms Mkhize and Mr
Meyiwa. On the contrary, a decision was taken to permanently
terminate their membership
on 30 September 2010 at a NAFCOC federal
council meeting held in Sandton, Johannesburg. This is evident having
regard to the contents
of annexures ‘PM14’ and ‘PM15’.
This has not been denied by Ms Mkhize and Mr Meyiwa.
[34]
It is common cause that neither Ms Mkhize
nor Mr Meyiwa challenged either the findings of the disciplinary
committee, their suspension
and termination of their membership by
NAFCOC national. An attempt by Ms Mkhize to appeal such decision was
unsuccessful. As a
consequence, the
de
facto
position is that both Ms Mkhize
and Mr Meyiwa’s membership of NAFCOC has been terminated and
such termination has not been
set aside.
[35]
It is common cause that on 16 September
2010, Ms Mkhize and Mr Meyiwa convened a separate and parallel
meeting purporting to be
a NAFCOC KZN meeting. Such meeting was held
at the Seth Mokitimi Seminary in Pietermaritzburg and was presided
over by her. At
such meeting, a resolution was passed that all
members of the executive committee who had participated in the second
meeting of
19 August 2010 were expelled. This included the second,
sixth and seventh respondents.
[36]
It is at this meeting called by Ms Mkhize
and presided over by her, whilst on suspension, that a vote of no
confidence was passed
against the executive committee members of the
first respondent. On 12 May 2011 the provincial executive committee
of the first
applicant convened an annual general conference at the
Golden Horse Casino in Pietermaritzburg.
[37]
At
such conference, the provincial council members passed various
resolutions
which
inter
alia
affirmed
that
the
first
applicant’s
members
did
not
recognise the parallel structure formed by the seventh respondent.
The resolution taken at such meeting is recorded on annexure
‘MM16’.
[6]
[38]
Subsequently
at an elective conference held on 13 November 2012, Ms Mkhize and Mr
Meyiwa were appointed as executive committee members.
Subsequently on
25 May 2016 the first applicant and its members took decisions that
the executive committee members elected at
the meeting convened on 16
September 2010’s term of office would be extended and they
would be re-appointed for a further
term of office.
[7]
[39]
The applicants submit that the first
respondent was formed at an illegitimate second meeting convened on
19 August 2010 and is a
parallel structure formed by the seventh
respondent. It does not recognise the legitimacy of the first
respondent as an affiliate
member of the twenty-second respondent.
The respondents and twenty- second respondent on the other hand
submit that the meeting
convened on 16 September 2010 was neither a
legitimate meeting of NAFCOC KZN nor that of NAFCOC or any of its
affiliates as it
could not have been properly constituted or convened
by Ms Mkhize as she was suspended and no longer entitled to
participate in
any activity and structure of NAFCOC in terms of
clause 13.5 of the 2008 constitution.
Applicants’
submissions
[40]
The applicants submit that the first
applicant is a constituent affiliate member of the intervening party
and is an autonomous and
distinct persona from NAFCOC National. The
applicants’ application largely revolves around two meetings
held on 19 August
2010 at the Edward Hotel. The applicants submit
that at this watershed event, the issue of factionalism arose.
[41]
The applicants exhaustively deal with the
events that transpired at such meeting, however contend that such
meeting was not properly
convened as same was in conflict with the
provisions encapsulated in the 2008 constitution, coupled with the
allegation that the
second meeting held in the afternoon was
inquorate.
[42]
The applicants further contend that the
purported suspension of Mr Meyiwa and Ms Mkhize was unlawful as the
notices sent to them
did not constitute suspension letters nor were
disciplinary proceedings ever instituted against them.
[43]
The applicants, in gainsaying the
suspension of Mr Meyiwa and Ms Mkhize, placed reliance on the
comments of the president of NAFCOC
(Mr Mavundla), to the extent that
the suspensions were a mistake and should be uplifted.
Respondents’
submissions
[44]
The respondents, through the seventh
respondent, join issue with the applicants’ allegations
regarding the meetings at the
Edward Hotel on 19 August 2010. The
respondents rely on the suspension of Ms Mkhize and Mr Meyiwa and
their automatic bar from
participating
in any activity or structure of NAFCOC whilst their suspension and/or
expulsion was in force.
[45]
The respondents disassociate themselves
from the comments made by Mr Mavundla on the basis that such comments
were neither authorised
nor of any legal effect. On the contrary, the
respondents contend that no evidence was presented that the national
executive committee
of NAFCOC National ever met to uplift the
suspension of Ms Mkhize and Mr Meyiwa.
[46]
The respondents notified Ms Mkhize and Mr
Meyiwa of the disciplinary hearing (which they elected not to attend)
and their suspension
with immediate effect from participating in all
NAFCOC activities - both nationally and provincially. On 30 September
2010, in
a NAFCOC federal council meeting held in Sandton,
Johannesburg, Ms Mkhize’s and Mr Meyiwa’s membership was
terminated
which position still subsists.
The intervening party
[47]
The intervening party, in its capacity as
the national body, recognises the first respondent as its true
affiliate member. It submits
that the instructive regulatory document
is the constitution adopted in 2011 at a federal council meeting held
on 17 March 2011.
[48]
It reaffirms the suspension and ultimate
termination of the membership of Ms Mkhize and Mr Meyiwa which
position still subsists.
The intervening party sets out in extensive
detail the relationship between NAFCOC National , its provincial
constituent affiliate
members, and the relationship with members and
communities.
[49]
As a voluntary association governed by a
constitution, it determines the rights and obligations. The
intervening party disavows
the first applicant’s rights to
enjoy the benefits of its affiliate membership in the absence of
complying with its reciprocal
obligations, including but not limited
to the payment of membership subscriptions.
Analysis
[50]
It warrants recordal that the application
papers are in excess of 3 000 pages and most of the issues are
irrelevant and do not warrant
exhaustive consideration for the
reasons that appear hereinafter. The voluminous nature of the papers
and the manner in which issues
were pleaded unnecessarily delayed the
court.
[51]
In
relation to the relevant constitution and the requirements for
affiliate membership, these must be interpreted in line with the
locus
classicus
on
interpretation being
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[8]
in
which the following was held:
‘
The
present state of the law can be expressed as follows: Interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into existence.
Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary
rules of grammar and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material
known to those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the
light of all these
factors. The process is objective, not subjective. A sensible meaning
is to be preferred to one that leads to
insensible or unbusinesslike
results or undermines the apparent purpose of the document. Judges
must be alert to, and guard against,
the temptation to substitute
what they regard as reasonable, sensible or businesslike for the
words actually used. To do so in
regard to a statute or statutory
instrument is to cross the divide between interpretation and
legislation; in a contractual context
it is to make a contract for
the parties other than the one they in fact made. The “inevitable
point of departure is the
language of the provision itself”,
read in context and having regard to the purpose of the provision and
the background to
the preparation and production of the document.’
[52]
Bearing such sage dicta in mind, this court
has objectively applied itself to the provisions of the constitutions
by giving to it
its sensible meaning.
Non-joinder
[53]
In considering the relief sought by the
applicants, it is surprising to note that the intervening party was
not initially cited
in the main application. The failure to include
the intervening party as a respondent in the main application would
have constituted
a material non-joinder, considering the applicants’
contentions and reliance on being a constituent affiliate member of
NAFCOC
National.
[54]
It is abundantly clear that NAFCOC National
body
has a direct
and substantial interest in the merits of the application and
concomitantly in the relief sought by the applicants.
In this court’s
view, Masipa J correctly granted leave to intervene which without
suggestion of pasquinade rendered the issue
of joinder academic, to
the benefit of the applicants in not having to overcome this obvious
hurdle. These comments are made by
way of observation and are not
germane to a determination of the issues.
The requirements for an
interdict and the declarator
[55]
The
dictum in
Setlogelo
v Setlogelo
[9]
has
entrenched itself in our law and endured for a period in excess of
100 years in relation to the requirement for an interdict.
It is
trite that the requirements for a final interdict are as follows
namely (a) a clear right, (b) an injury actually committed
or
reasonably apprehended and (c) the absence of similar protection by
any other ordinary remedy.
[56]
In seeking declaratory relief,
section 21
of the
Superior Courts Act 10 of 2013
deals with the requirements for
the granting of a declaratory order. Van Der Westhuizen J summed up
the requirements for declaratory
relief as follows:
‘
(a)
The court must be satisfied that the
applicant has an interest in an existing, future or contingent right
or obligation; and
(b)
once
a court is so satisfied, it must be considered whether or not the
order should be granted.’
[10]
The suspension of Ms
Mkhize and Mr Meyiwa
[57]
As alluded to earlier, the dispute between
the applicants, respondents and the intervening party relates to the
effect of annexures
‘PM10’ and ‘PM11’. The
respondents and intervening party contend that these constituted
suspension notices,
which the second applicant countenances in his
submission that such letters were an invitation to attend
disciplinary proceedings
and did not have the effect of a suspension
notice of himself and Ms Mkhize.
[58]
This dispute however, does not require
judicial intervention as the contents of annexure ‘PM 12’
and subsequently annexures
‘PM14’ and ‘PM15’
make it explicitly clear what the position is. The respondents and
intervening party’s
contentions regarding the second applicant
and Ms Mkhize is re-enforced by the contents of annexures ‘PM
14’ and ‘PM
15’ which records their termination as
members of the NAFCOC national entity pursuant to their suspension
and disciplinary
proceedings.
[59]
In line with the NAFCOC 2008 constitution,
which the applicants contend is the prevailing constitution, on the
basis that it never
adopted the 2011 constitution, the second
applicant and Ms Mkhize were precluded from participating in any
activities of NAFCOC,
irrespective of the level - be it national or
provincial in view of their suspension and subsequent termination of
their memberships.
[60]
It is common cause that such
de
facto
position subsists and has not
been set aside or rescinded.
[61]
In
Cathcart
Residents Association v Municipal Manager for the Amahlathi
Municipality and others
[11]
Plasket
J referred with approval to
Shunmugam
and others v The Newcastle Local Municipality and others; The
National Democratic Convention v Mathew Shunumugam and others
[12]
where
it was stated that
‘…
a
member of a voluntary association or organisation such as a political
party who has been expelled and who both contends that the
expulsion
was unlawful and wishes to enforce his or her membership rights,
must, if the organisation does not concede the unlawfulness
of the
expulsion, take steps to have the expulsion reviewed and set aside.
Such a person is put to an election. If the person,
notwithstanding
the contention that the expulsion was unlawful, decides not to
challenge it, he or she is taken to have accepted
the expulsion, and
the expulsion will stand notwithstanding the fact that it may not
have been lawful.’
[13]
[62]
Such
situation is analogous to the one described in
Oudekraal
Estates (Pty) Ltd v City of Cape Town
[14]
where
Howie P and Nugent JA opined that
‘
The
proper functioning of a modern state would be considerably
compromised if all administrative acts could be given effect to or
ignored depending upon the view the subject takes of the validity of
the act in question. No doubt it is for this reason that our
law has
always recognised that even an unlawful administrative act is capable
of producing legally valid consequences for so long
as the unlawful
act is not set aside.’
[63]
As previously set out, the application must
be determined on the facts, notwithstanding the fact that the
affidavits filed by the
parties are replete with allegations and
counter allegations, most of which are irrelevant to the germane
issues that falls to
be decided. The parties have agreed that on the
relevant facts there are no genuine disputes of fact.
[64]
Considering the authorities referred to
above and applying the principles to the present application, it is
patently clear that
the second applicant and Ms Mkhize’s
suspension and termination rendered them incapable of participating
in the affairs of
NAFCOC. The irresistible conclusion is that the
applicants, represented by the second applicant, cannot establish a
clear right
and falls at the first hurdle in seeking the relief it
claims.
[65]
Such finding is dispositive of the
application, however, the court deems it necessary to cursorily deal
with other issues raised
by the applicant for the sake of
completeness.
The convening of the
second meeting on 19 August 2010
[66]
Although the applicants make much of the
fact that this second meeting was not properly convened and quorate
in my view, these submissions
are without merit. Firstly, I align
myself with the sentiments expressed by Majiedt JA in
National
African Federated Chamber of Commerce and Industry v Mkhize
(805/13)
[2014] ZASCA 177
(21 November 2014) at paragraph 13 ‘It bears
repetition that the 2008 constitution is hardly a model of clarity.
It is perplexingly
contradictory on key aspects and most importantly,
bewilderingly unclear on important issues of governance’ and
that it is
not surprising that two opposing parties are able to
attach two different interpretations to certain of its clauses.
[67]
One
must remember that two meetings were convened. A general meeting at
which Mr Mavundla addressed the members and then a second
meeting of
the members of the KZN NAFCOC executive council which did not include
Mrs Mkhize and Mr Meyiwa. This meeting was called
to deal with inter
alia certain resolutions including the vote of no confidence and the
filling of vacancies. This meeting was
not a general meeting required
to be called by the President and was called at short notice. The
minutes clearly reflect that the
parties were fully aware of this and
the complied with the 2008 constitution in relation to the convening
of the meeting and that
it was quorate.
[15]
The nexus between the
affiliate member and NAFCOC and its endorsement of the first
respondent as a proper affiliate
[68]
The applicants’ contention that the
first applicant is autonomous and independent of the intervening
party is specious at
best, and devoid of merit at its worst.
[69]
Clause 12 of the 2008 constitution clearly
sets out the requirements for membership. The applicants contend that
such constitution
is the prevailing governance document, as same was
adopted affording it constituent affiliate membership.
[70]
The
benefit of being a recognised affiliate of NAFCOC lies in the deed of
trust of the NAFCOC KZN Trust (the trust deed), in that
only the
executive committee of a recognised’ provincial affiliate of
NAFCOC can appoint trustees in terms of the trust deed.
[16]
[71]
Based on the definitions in the 2008
constitution and the trust deed, it is clear that NAFCOC KZN (the
first applicant) finds it
status as an affiliate of NAFCOC. On this
basis, the applicants’ contention of independence and
autonomous functioning cannot
be sustainable.
[72]
Even if there is merit in the applicants’
contention, the common cause fact that the constitution of NAFCOC was
amended in
2011, albeit not adopted by the applicants, renders the
first applicant incapable of being an affiliate member or for that
matter
a member of NAFCOC National, hence it is incapable of
appointing trustees in terms of the trust deed.
[73]
On the applicants’ own version, by
disassociating itself from the 2011 constitution and consequently the
NAFCOC National structure,
it is rendered incapable of being
recognised and able to derive the benefits of a recognised affiliated
member.
[74]
The recognition by the intervening party of
the first respondent as the recognised constituent affiliate member
cannot be discounted.
The first respondent and its members have been
the recognised affiliate, and the consequences of granting the
applicants’
application will result in financial and other
benefits being managed by a body who is not recognised as the
constituent legal
affiliate of the intervening party.
[75]
The interpretation of the 2008 and 2011
constitutions, together with the trust deed, could never have
intended such consequences
arising. As suggested by the intervening
party, the applicants cannot enjoy the rights and benefits of being a
‘recognised’
member of NAFCOC without discharging its
concomitant obligations. The NAFCOC constitution does not and could
not have envisaged
such a situation.
Failure to challenge the
resolutions passed at the Edward Hotel – failure to review
[76]
The applicant exhaustively dealt with its
version of what transpired at the two meetings held on the same day
at the Edward Hotel
and the invalidity of the resolutions taken
thereat.
[77]
The applicants have not presented any
evidence of having challenged or set aside such resolutions, save for
adopting the stance
of refusing to recognise the resolutions and to
give effect thereto. As such resolutions have not been set aside,
they remain in
force.
Conclusion
[78]
The parties are
ad
idem
that the main application and
counter-applications are symbiotically and intricately linked. The
order granted in the main application
will automatically have a
bearing on the result in the respective counter-applications.
[79]
After careful analysis set out above, the
court holds the view that the applicants have not met the
requirements for an interdict
or the declaratory relief, and in the
first instance, the applicants have failed to discharge the onus of
proving a clear right.
Having failed in establishing a right to
interdictory relief the applicants must likewise fail in establishing
a right to the declaratory
relief they seek.
[80]
Having concluded that the applicants have
not made out a case for the relief sought and for reasons already
alluded to in this judgment,
it must follow that the respondents and
the twenty-second respondent have made out a case factually and
legally for the relief
sought in the respective counter-applications
and are thus entitled to both the interdictory and declaratory
relief.
Costs
[81]
It is abundantly clear that the sole
motivation of the applicants in seeking such relief is to gain
control of the NAFCOC KZN Trust,
which is vested of a substantial
amount of money. Such motivation cannot be construed as a bona fide
act to enhance and promote
NAFCOC or its members in the fulfilment of
their objectives.
[82]
In the court’s considered view the
applicants are motivated by self-interest and not by acts of
benevolence. The punitive
cost order sought by both the respondents
and intervening party are justified in the circumstances.
Order
[83]
In the result I grant the following orders:
1.
The applicants’ application is
dismissed with costs. The first to tenth applicants are directed to
pay the respondents and
twenty second respondent’s costs
occasioned by the dismissal of the main application and the
respondents and twenty second
respondent’s costs of the
counter-applications, jointly and severally, the one paying the other
to be absolved. Such costs
are to be on an attorney client scale and
are to include the costs of both senior and junior counsel where so
employed and the
costs of the intervention application
2.
The first respondent is the lawfully
constituted National African Federated Chamber of Commerce and
Industry for the KwaZulu-Natal
Region (NAFCOC KZN).
3.
The first respondent is a beneficiary of
the NAFCOC KwaZulu-Natal Investment Trust.
4.
The first applicant is not an affiliate of
NAFCOC and is not entitled to appoint trustees in terms of the Trust
Deed of the NAFCOC
KwaZulu-Natal Investment Trust as amended.
5.
The first to tenth applicants are
interdicted and restrained from holding themselves out as NAFCOC KZN
and as its executive council
or as executive committee members.
6.
The first respondent is the only entity
entitled to appoint the trustees of the NAFOC KwaZulu-Natal
Investment Trust.
7.
The first to tenth applicants are
interdicted and restrained from making any appointment of trustees to
the NAFCOC KwaZulu-Natal
Investment Trust.
8.
The voluntary association known as NAFCOC
KZN that elected its interim provincial leader, Mr Themba Ngcobo on
19 August 2010, followed
by Dr Mandla Buthelezi, and recently by Mr
Paul Ngema who was elected on 18 March 2020, and all its successors
in title is a properly
and lawfully recognised affiliate of NAFCOC
and is entitled to appoint trustees to the NAFCOC KwaZulu-Natal
Investment Trust in
terms of the trust deed.
HENRIQUES
J
Case
Information
Date
of Hearing:
15 October 2021
Date
of Judgment:
15 December 2022
Counsel
for the Applicants:
I L Topping SC
Instructed
by:
Garlicke and Bousfield Inc 7 Torsvale Crescent
La
Lucia Ridge Office Estate La Lucia
Durban
Ref:
Phila Magwaza/ NJ c/o Diedricks
Attorneys 90(c) Roberts Road Clarendon
Pietermaritzburg
Email:
phila.magwaza@gb.co.za
Counsel
for the 1st, 3rd, 4th, 6th,
7th, 13th, and 17th
Respondents:
Z Z Matebese SC
Instructed
by: VFV
Attorneys
Corporate
Place, Block A 39 Selati Street
Ashlea
Gardens Pretoria
Email:
nadia@vfv.co.za
SVDM/NE/MAT162677
c/o
Stowell & Company 295 Pietermaritz Street
Pietermaritzburg
Email:
stephanieb@stowell.co.za
Counsel
for the 22nd Respondent:
Frans Rautenbach
Instructed
by:
VFV Attorneys
Corporate
Place, Block A 39 Selati Street
Ashlea
Gardens Pretoria
Email:
nadia@vfv.co.za
SVDM/NE/MAT162677
c/o
Stowell & Company 295 Pietermaritz Street Pietermaritzburg
Email:
stephanieb@stowell.co.za
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and released to SAFLII.
The
date and time for hand down is deemed to be 09h30 on 15 December
2022.
[1]
E
Abbey Postcards from Ed: Dispatches and Salvos from an American
Iconoclast (2006) at 92.
[2]
This
is a reference to the first to tenth applicants, either in their
personal or their representative capacities.
[3]
For
ease of reference, these respondents will be referred to as ‘the
respondents’. The intervening party the twenty
second
respondent will for the sake of convenience be referred to as the
twenty second respondent or NAFCOC National.
[4]
Index
Volume 10 amended pages 952 to 953
[5]
Annexure
‘MM5’, volume 2 of the indexed papers at 111-112.
[6]
Volume
3 of the indexed papers at 219-2213.
[7]
Annexure
‘MM18’: Minutes of the meeting, volume 3 of the indexed
papers at 242.
[8]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA
13
;
2012 (4) SA 593
(SCA) para 18.
[9]
Setlogelo
v Setlogelo
1914 AD 221
at 227.
[10]
Mahlangu
and another v Minister of Defence and Military Veterans and another
[2019] ZAGPPHC 418 para 9. See also Cordiant Trading
CC v Daimler
Chrysler Financial Services (Pty) Ltd 2005 (6) SA 205 (SCA).
[11]
Cathcart
Residents Association v Municipal Manager for the Amahlathi
Municipality and others [2014] ZAECGHC 18 para 14.
[12]
12
Shunmugam and others v The Newcastle Local Municipality and others;
The National Democratic Convention v Mathew Shunumugam
and others
[2008] 2 All SA 106
(N) para 42.
[13]
This
matter was taken on appeal and is reported as Shunmugam and others v
National Democratic Convention
[2009] 2 All SA 285
(SCA). Although
the SCA overturned the order of the court a quo, this was only in
relation to the main application. It upheld
the counter-application
which related to declaratory relief declaring their expulsions
unlawful and reviewing and setting aside
the decision to expel them
as members of NADECO. The counter application was the relief
referred to in para 42 of the judgement
of Rall AJ namely the
challenge to their expulsion.
[14]
Oudekraal
Estates (Pty) Ltd v City of Cape Town and others
2004 (6) SA 222
(SCA) para 26.
[15]
Annexure
MM19 pges 244 to 247
[16]
Clause
1.1.2.5 of the trust deeds defines ‘executive committee’
as ‘the executive committee for the time being
of the Nafcoc
affiliate or such committee’s successors in title from time to
time’, and clause
1.1.2.8 defines ‘Nafcoc
affiliate’ as ‘Nafcoc KwaZulu-Natal, a provincial
affiliate of Nafcoc’.
Clause 6 sets out the
procedure for the appointment and resignation of trustees and
provides as follows: ‘6.1 The
initial trustees shall
(subject to the proviso to 7) hold office until the expiry of five
years from the signature date.
6.2
Each of the trustees, other than the initial trustees, shall
(subject to 1.2 and
7) be appointed from time to time after the
signature date in terms of a resolution of the executive committee
for a period of
three years from the date of such resolution.
6.3
The trustees shall (subject to 1.2 and 7) be entitled from time to
time (by written
resolution to that effect and with the prior
written approval (in the form of a written resolution in accordance
with 1.2) of
the executive committee) to appoint any independent
person (who is not a member of the Nafcoc affiliate) as a trustee
for a period
of three years from the date of the trustees;
resolution appointing such person.
6.4
Subject to 12 and the Act, a trustee shall remain in office (and may
not be removed
from office) as such until his term of office in
terms of 6.1, 6.2 and 6.3 (as the case may be) has expired.
6.5
The appointment of each trustee shall (subject to the proviso 7)
automatically terminate
at the end of his period of office in terms
of 6.1, 6.2 or 6.3 (as the case may be); provided that the executive
committee may
(by written resolution passed in accordance with 1.2)
re-appoint all or any of the trustees for a further period/s of
office
in terms of 6.2.
6.6
Each trustee shall be entitled to appoint any person who is a Nafcoc
member to act
as his alternate during his absence or inability to
act as trustee; provided that –
6.6.1
such alternate shall be approved in writing by a majority of the
other trustees and shall comply
with all applicable requirements of
the Act for his appointment (including any requirements to obtain
letter of authority from
the Master);
6.6.2
a trustee shall not have more than one alternate at any time; and
6.6.3
the appointment of an alternate shall automatically cease of the
trustee who appointed him –
6.6.3.1 ceases to
be a trustee for any reason whatever;
6.6.3.2 gives
written notice of termination of such appointment to the other
trustees.
6.7
No trustee shall have the right during his lifetime or by his last
will and testament
to appoint his successor.
Subject to 12.9, any
trustee shall be entitled to resign as such in writing without an
order of court.’