About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2022
>>
[2022] ZANCHC 77
|
|
Batho Pele Mining Primary Co-Operative Limited v Seekoei and Another (1443/2022) [2022] ZANCHC 77 (18 November 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No: 1443/2022
Reportable:
YES / NO
Circulate to Judges:
YES / NO
Circulate to
Magistrates:
YES / NO
Circulate to Regional
Magistrates:
YES / NO
Heard
on: 18-19/07;
18/08/2022
Supplementary
Heads:
29/08/2022
Delivered
on:
18/11/2022
In the matter between:
BATHO PELE MINING
PRIMARY
CO-OPERATIVE
LIMITED
Applicant
and
ERNEST
TSHEPISO SEEKOEI
First
Respondent
UNIDENTIFIED
ASSOCIATES OF THE
FIRST
RESPONDENT
Second
Respondent
JUDGMENT
MAMOSEBO
J
:
[1]
On 18 July 2022 Ms LL Bezuidt, appearing for the applicant, and Mr A
Jacobs for the first respondent,
attended my chambers with an urgent
application for an interdict. There is no opposition by the second
respondent(s). The matter
stood down until the following day, 19 July
2022 at 10:00, for the applicant to file its replying affidavit and
the parties to
serve and file written submissions. The parties argued
on 19 July 2022 whereupon interim relief was granted on the same day.
The
parties filed supplementary heads to address certain aspects
raised by the Court, more particularly relevant sections in the
Co-operatives
Act 14 of 2005 (the Act) as well as the cooperative’s
constitution. The applicant filed its supplementary heads on 24
August
2022 while the first respondent filed his on 29 August 2022.
The parties agreed that the matter may be finalised on the papers.
[2]
The relief sought by the applicant in the Notice of Motion is as
follows:
“
1.
That this application be deemed urgent. That due to the urgency of
the application the form and services
provided for in the Rules be
dispensed with in terms of Rule 6(12)(a);
2.
That a rule nisi be issued, directing that the respondents be called
upon to appear and show cause,
if any, on the 18
th
of
August 2022 at 09:30 or so soon thereafter as the matter may be
heard, why an order in the following terms should not be made
final,
that:
2.1
the first respondent [Mr Seekoei] be interdicted and restrained from
presenting himself to be an employee,
director, representative or a
member of the applicant and/or associated with the applicant in any
capacity. Thus unlawfully misrepresenting
his status to members of
the applicant, third parties and, stakeholders;
2.2
the first and second respondents be interdicted and restrained from
entering any of the premises of the applicant,
inclusive of its
registered office, any mine, place or building, from which the
applicant conducts its business;
2.3
the first and second respondents be interdicted and restrained from
interfering with, threatening, harassing,
intimidating or in any way
interacting with employees, representatives, members and stakeholders
of the applicant;
2.4
the first and second respondents be interdicted and restrained from
committing any act which is prejudicial
to the good name,
administration, discipline or efficiency of the applicant, its
employees, representatives, members and stakeholders;
2.5
the first and second respondents be interdicted and restrained from
acting in any way to hamper the normal
functioning of the applicant;
2.6
the first and second respondents be interdicted and restrained from
physically damaging, interfering with
or in any way physically coming
into contact with the applicant’s property, equipment or assets
at any of its premises;
2.7
the first and second respondents be ordered to pay the costs of this
application jointly and severally, the
one paying the other to be
absolved;
2.8
that prayers 2.1 to 2.7 shall serve as an interim interdict against
the respondents until the return date.
3.
That service of the application and court order on the first
respondent be accepted as proper service
on the second respondents.”
[3]
The applicant is Batho Pele Mining Primary Co-operative Limited with
Registration Number 2017/000699/24.
It was established as a juristic
person in terms of the Act. The first respondent is Mr Ernest
Tshepiso Seekoei whose full and
further particulars were unknown to
the applicant and the second respondent(s)’particulars are
unknown.
[4]
The historical background is thus. Mr Seekoei was the applicant’s
supervisory committee chairperson
and was removed from the position
consequent to failing to attend several meetings convened by the
co-operative’s board to
discuss its financial position
including the demand that Mr Seekoei explain transactions which
seemed to have been for his personal
use.
[5]
On 12 December 2019 the directors, having established a quorum, in a
motion of no confidence resolved
and removed Mr Seekoei with
immediate effect from the position of chairperson. It was recorded in
the minutes that he was not acting
in the best interests of the
co-operative. The deputy chairperson, who is also the deponent to the
founding affidavit, Mr Taku,
was elected as the interim acting
chairperson and Ms Michelle Goliath was added as a member. The
minutes which were annexed as
“TVT 3” to the papers were
ratified on 17 December 2019. Ms Anna Catharina Erasmus, in her
capacity as the consultant
to the company and mandated to submit the
relevant COR documents to the Companies and Intellectual Properties
Commission on behalf
of the company, gave her imprimatur to the
minutes of the meeting on 16 January 2020.
[6]
Subsequent to the ratification of the minutes and on 24 January 2020,
the following notice (“TVT4”)
was issued:
“
TO
WHOM IT MAY CONCERN
NOTICE TO MR SEEKOEI
ON REMOVAL FROM COOPERATIVE
Kindly be advised that
the above director was notified in writing on 3 December 2019 of his
removal from the cooperative. He was
personally handed the
notification at the office and it was explained to him. He rejected
the receipt of the notice.
We trust you find this
in order
Signed VICTOR TUKU
CHAIRPERSON”
[7]
Notwithstanding severance of Mr Seekoei’s association with the
cooperative he continued to use
his defunct status and interacted
with the cooperative’s employees, representatives, members and
stakeholders to the detriment
of the association. Despite efforts to
restrain him from such conduct he has proceeded undeterred. He also
continued to access
the applicant’s premises without
permission.
[8]
On 20 April 2022 Mr Seekoei was in the company of 400 non-members who
marched to the applicant’s
premises to hand over a memorandum
(Annexure “TVT 5”) setting out grievances purportedly by
“Batho Pele Artisanal
Miners”. Mr Taku intimated that the
400 protestors were unknown and had no relation to the applicant.
After handing over
the memorandum Mr Seekoei used that opportunity to
address the protestors and informed them that he was acquitted on a
charge of
theft of R800,000.00 and that he will be resuming his
duties with the applicant. The applicant’s attorneys of record
addressed
several letters to Mr Seekoei warning him not to enter the
applicant’s businesses but to no avail.
[9]
On 12 July 2022 Kenneth Juries & Associates, the first
respondent’s legal representatives,
addressed a letter to the
applicant which states in relevant part and triggered this
application:
“
Please
note that our client has never been removed from his duties as the
chairperson of the organisation, neither in terms of the
constitution, a vote of no confidence or through a court order. As a
result, our client will be reporting for duty on the 19 July
2022.”
[10] The
first respondent raised two points
in limine
: First, that the
application lacked urgency and secondly, disputed the authority of
both the deponent to the founding affidavit
and acting chairperson,
Mr Taku, and Ms LL Bezuidt the applicant’s legal
representative, to act.
Lack of authority
[11] It was
contended on behalf of Mr Seekoei that the deponent to the founding
affidavit lacked the necessary
locus standi
to bring the
application, as his appointment is invalid. Clause 27(1)(c) of the
co-operative’s constitution stipulates:
“
The
directors have the power to suspend by resolution a member for a
period to be determined by the Board but which shall not be
longer
than the date of the next annual general meeting.”
[12] At paras
5 and 6 (above) I dealt with the meeting of the directors held on 12
December 2019 and the resolution
taken to remove Mr Seekoei. It is
contended by the respondent that the directors needed a resolution
that authorised them to institute
legal proceedings which is lacking.
This attack is incomprehensible considering that the first respondent
attached the co-operative’s
constitution as part of his papers.
What is unclear is whether or not there was any annual general
meeting following this decision
to suspend him. That aspect, however,
need not be determined for present purposes.
[13]
There was also an attack levelled on the authority of Ms Bezuidt to
appear as the applicant’s legal representative.
In
Eskom
v Soweto City Council
[1]
Flemming
DJP, referring to rule 7(1) held:
“
The
care displayed in the past about proof of authority was rational. It
was inspired by the fear that a person may deny that he
was party to
litigation carried on in his name. His signature to the process, or
when that does not eventuate, formal proof of
authority would avoid
undue risk to the opposite party, to the administration of justice
and sometimes even to his own attorney.
(Compare Viljoen v Federated
Trust Ltd
1971 (1) SA 750
(O) at 752D–F and the authorities
there quoted.)
The developed view,
adopted in Court Rule 7(1), is that the risk is adequately managed on
a different level. If the attorney is
authorised to bring the
application on behalf of the applicant, the application necessarily
is that of the applicant. There is
no need that any other person,
whether he be a witness or someone who becomes involved especially in
the context of authority,
should additionally be authorised. It is
therefore sufficient to know whether or not the attorney acts with
authority.
As to when and how the
attorney’s authority should be proved, the Rule-maker made a
policy decision. Perhaps because the risk
is minimal that an attorney
will act for a person without authority to do so, proof is dispensed
with except only if the other
party challenges the authority. See
Rule 7(1). Courts should honour that approach.”
The correct procedure to
follow by the respondent would have been to invoke Rule 7(1) of the
Uniform Rules of Court. When pressed
on this aspect Mr Jacobs, for
the respondent, correctly in my view, retracted the challenge. It
therefore follows that the challenges
have no merit and stand to be
dismissed.
Urgency: Why the interim
interdict was granted
[14] The main
point taken by counsel for the respondent in relation to urgency is
that the applicant delayed in launching
its application as it dates
back to the year 2020 when it addressed various letters to the
respondent but yet the application is
only brought now. The first
respondent contended that in 2020 the applicant brought a similar
application under Case No H150/2020
against him which prohibited him
from entering the applicant’s premises but the case was
subsequently removed from the court
roll. He contended that the
applicant has again in this application failed to set out explicitly
the circumstances which render
the application urgent and the reasons
why it would not be afforded substantial redress at a hearing in due
course. The applicant
launched this application belatedly on 15 July
2022 to be heard on 18 July 2022 making it a self-created urgency and
urged a dismissal
with costs, so the argument went.
[15] In
countering this submission the following were raised: The first
respondent is not a director, member or employee
of the applicant and
has no association whatsoever with the applicant since he was voted
out of his chairpersonship in a properly
quorate meeting of the
board. The threat of pressing to report for work as chairperson of
the cooperative on 19 July 2022, the
day after the application, set
the wheels in motion. The applicant has a right to protect its
business operations. The relationship
between him and the applicant
is non-existent. Should he be permitted to enter the premises he
would have access to private and
confidential documents that are
privy only to the applicant and those authorised.
[16] As the
former chairperson, Mr Seekoei had electronic access to the bank
account and there was a fear that if not
restrained from accessing
the premises he would cause irreparable harm. There is a further need
to restrain him from interfering
with the employees, members,
directors and stakeholders of the applicant.
[17] In the
ratification of the board meeting minutes dated 17 December 2019, the
following appears:
“
The
board has serious concerns on the mismanagement of funding and the
banking access via electronic means, which it aims to address
by
removing all access to Mr Seekoei. All linked accounts to the main
cooperative account need to be unlinked and new arrangements
be made
for internet banking access. We the undersigned members confirm that
the information is true and correct.”
[18] Rule
6(12)(a) and (b) of the Uniform Rules of Court provides:
“
(12)(a)
In urgent applications the court or a judge may dispense with the
forms and service provided for in these
rules and may dispose of such
matter at such time and place and in such manner and in accordance
with such procedure (which shall
as far as practicable be in terms of
these rules) as it deems fit
.
(b)
In every affidavit or petition filed in support of any application
under paragraph (a) of this subrule,
the applicant must set forth
explicitly the circumstances which is averred render the matter
urgent and the reasons why the applicant
claims that applicant could
not be afforded substantial redress at a hearing in due course.”
[19]
The principles relating to urgent applications are trite. Coetzee J
in
Luna
Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin’s
Furniture Manufacturers)
[2]
deals
with the question of how and when an urgent application may be
brought. See also
Mogalakwena
Local Municipality v Provincial Executive Council, Limpopo and
Others
[3]
.
[20]
In
Safcor
Forwarding (Johannesburg) Pty Ltd v National Transport Commission
[4]
Corbett JA made these instructive remarks:
“
The
Uniform Rules of Court do not provide substantively for the granting
of a rule nisi by the Court. Nevertheless, the practice,
in certain
circumstances, of doing so is firmly embedded in our procedural law
(see, generally, Van Zyl The Judicial Practice in
South Africa 2
nd
ed at 355ff, 370-1; Herbstein and Van Winsen The Civil Practice of
the Superior Courts in South Africa 3
rd
ed at 89-90). This is recognised by implication in the Rules (see,
eg, Rule 6(8) and Rule 6(13)). The procedure of a rule nisi
is
usually resorted to in matters of urgency and where the applicant
seeks interim relief in order to adequately protect his immediate
interests. It is a useful procedure and one to be encouraged rather
than to be disparaged in circumstances where the applicant
can show,
prima facie, that his rights have been infringed and that he will
suffer real loss or disadvantage if he is compelled
to rely solely on
the normal procedures for bringing disputes to court by way of notice
of motion or summons. The rule nisi procedure
must be considered in
conjunction with the provisions of Rule 6(12) which, in the case of
urgent applications, permits the Court
to:
‘
dispense
with the forms and service provided for in these Rules and (to)
dispose of such matter at such time and place and in such
manner and
in accordance with such procedure (which shall as far as practicable
be in terms of these Rules) as to it seems meet’.
(And see in this
connection Republikeinse Publikasies (Edms) Bpk Republikeinse v
Afrikaanse Pers Publikasies (Edms) Bpk
1972 (1) SA 773
(A) at 781H –
782G). In fact, the rule nisi procedure does make it possible for the
application to come before the Court
for adjudication more speedily
than the usual procedures for the set down of applications or trials,
and it does, in a proper case,
permit of the granting of interim
relief.”
Since the first
respondent and his attorneys were adamant that he must report for
duty on 19 July 2022 I was satisfied that the
applicant could not be
afforded substantial redress at a hearing in due course and therefore
granted the interim relief.
Final Interdict
[21]
The applicant has to meet the test for final relief, namely, the
well-known requirements for the granting of an
interdict as set out
in
Setlogelo
v Setlogelo.
[5]
The test requires that an applicant that claims a final interdict
must establish:
(a)
clear
right;
(b)
a
reasonable apprehension of irreparable and imminent harm to the right
if an interdict is not granted;
(c)
the
balance of convenience favours the granting of the interdict; and
(d)
that the applicant has no other remedy.
Clear right
[22] The
applicant operates under a licence issued by the Department of
Minerals and Energy for its and its members’
benefit. It has a
duty to protect its own interests and provide a safe environment for
its employees. The first respondents posed
not only a physical but
also financial threat to them because the respondent receives illegal
diamonds from the applicant’s
members which must be processed
through the applicant resulting in financial losses by the applicant.
The employees and/or members
comprise members of the community who
were previously unemployed. When the members discover the diamonds,
they must rightfully
deliver them to the applicant as the licence
holder. The applicant must therefore control and manage access to its
property including
the regulation of access to its registered office,
any mine, workplace or building where it conducts its business.
Irreparable harm
[23] There is
a risk of losing diamonds from the applicant’s members to the
respondent without the required authorisation.
The applicant stands
to suffer financial loss. The first respondent is reportedly
collecting diamonds from the applicant’s
members and selling
them instead of having them processed through the applicant. The
purpose of the cooperative is to benefit the
applicant and the
community in its entirety and if the first respondent receives the
diamonds not for the benefit of the collective
while he is not the
license holder, the harm is irreparable.
Balance of convenience
[24] The mere
fact that the first and second respondents are not associates,
employees, members or stakeholders of the
applicant makes it plain
that the prejudice that the applicant stands to suffer if the
interdict is not granted is greater than
the prejudice to be suffered
by the first and second respondents if the interdict is granted. It
was submitted on behalf of Mr
Seekoei that as an artisanal miner, he
stands to suffer financial prejudice particularly because of his
level of education he may
not find any alternative employment. I am
of the view that the prejudice the applicant stands to suffer is
greater than his.
No other remedy
[25] It was
submitted on behalf of Mr Seekoei that the application was not urgent
but rather premature because the respondents
have approached the
office of the Premier of the Northern Cape Province for mediation as
an alternative remedy. The Act and the
constitution of the
co-operative, however, do not make provision for mediation by the
office of the premier. The applicant can
therefore not be faulted for
not having pursued that route. There is an option of referring the
matter to a Tribunal but the fact
that the first respondent’s
attorney’s letter indicated that he was to report for duty on
19 July 2022, the day when
this matter was argued, I am of the view
that the applicant was within its rights to approach this Court for
urgent interim relief.
A Tribunal would not have granted the
requisite relief and at that juncture.
[26] In
conclusion it is prudent to make the following remarks:
26.1 It
is crucial always to be mindful of the objectives and the values upon
which the cooperatives are established.
According to the Act,
provision must be made for co-operative principles and for compliance
therewith.
26.2 In
its Preamble the Act recognises the need for the development of a
viable, autonomous, self-reliant and
self-sustaining co-operative
movement to promote community development and entrepreneurship,
create employment and successful enterprises,
eradicate poverty and
improve the socio-economic well-being of the members of co-operatives
in accordance with the co-operative
principles. Co-operatives are
based on the values of self-help, self-responsibility, democracy,
equality, equity and solidarity;
co-operative members believe in
the ethical values of honesty, openness, social responsibility and
caring for others; and co-operative
principles are guidelines by
which co-operatives put their values into practice, and all
co-operatives are obligated to contribute
towards community
development in line with the co-operative principle of concern for
community
.
26.3
The first respondent and some members approached the office of the
Premier of the Northern Cape apparently
under the guise of seeking
that office to conduct mediation between the parties. The
Cooperatives Act 14 of 2005
has its own dispute resolution processes
or mechanism which must be followed or adhered to. This Court is not
at liberty to order
mediation that is not legislated for.
26.4
When counsel for the first respondent, Mr Jacobs, filed supplementary
heads, he also attached affidavits
and supporting documents to the
heads. This is unprocedural and unacceptable. See Supreme Court of
Appeal’s case
Caterham Car Sales & Coachworks Ltd v
Birkin Cars (Pty) Ltd and Another
[1998] ZASCA 44
;
1998 (3) SA 938
(SCA) at paras
37 and 38 where Harms JA remarked:
“
[37]
There also appears to be a misconception about the function and form
of heads of argument. The Rules of this
Court require the filing of
the main heads of argument.
The
operative words are ‘main’, ‘heads’ and
‘argument’
. ‘Main’
refers to the most important part of the argument. ‘Heads’
means ‘points’, not a dissertation.
Lastly, ‘argument’
involves a process of reasoning which must be set out in the heads. A
recital of the facts and quotations
from authorities do not amount to
argument. …”
[38]
Practitioners should note that a failure to give proper attention to
the requirements of the practice
note and the heads might result in
the disallowance of part of their fees.”
[27] I am
satisfied that the applicant has made out a case for the interim
relief to be confirmed. There is no reason
why costs should not
follow the result. There is no warrant to grant a punitive cost order
prayed for.
[28] The
following order is made:
1.
The rule
nisi
issued out of this court on 19 July 2022 is
confirmed.
MAMOSEBO J
NORTHERN CAPE HIGH
COURT
Appearance:
For the
Applicant: Ms
LL Bezuidt
Instructed by:
Leonie
Bezuidt Attorneys
For the
Respondents: Adv
A Jacobs
Instructed
by: Kenneth
Juries & Associates
[1]
1992
(2) SA 703 (W)
[2]
1977 (4) SA 135 (W)
[3]
(35248/14)
[2014] ZAGPPHC 400;
[2014] 4 All SA 67
(GP) (19 June 2014) para 64.
[4]
1982 (3) SA 654
(A) at 674G – 675A
[5]
1914
AD 221
at 227