About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2021
>>
[2021] ZALMPPHC 2
|
|
Limpopo Province Voluntary Group Scheme Board and Others v Mahubane and Others (HCAA14/2019) [2021] ZALMPPHC 2 (28 January 2021)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NUMBER: HCAA14/2019
In
the matter between:
LIMPOPO
PROVINCE VOLUNTARY GROUP
SCHEME
BOARD
FIRST
APPELLANT
MAFEFE
H O, CHAIRPERSON OF LIMPOPO
PROVINCE
VOLUNTARY GROUP SCHEME BOARD
SECOND
APPELLANT
CHAUKE
HW, DEPUTY CHAIRPERSON LIMOPOPO
PROVINCE
VOLUNTARY GROUP SCHEME BOARD
THIRD
APPELLANT
SHIMANGE
B S
FOURTH
APPELLANT
TJALE
V
FIFTH
APPELLANT
And
MAHUBANE
MACHIRI ALBERT
FIRST
RESPONDENT
LAMOLA
MADIMETJA MICHAEL
SECOND
RESPONDENT
MASETE
MAREME STEPHEN
THIRD
RESPONDENT
MATHONSI
RIRHANDZU PATIENCE
FORTH
RESPONDENT
RAMPHISHA
MMAMMITJI SUZAN
FIFTH
RESPONDENT
SHILENGE
THEMBENI BENNET
SIXTH
RESPONDENT
MATHEBULA
ELIZABETH SIZY
SEVENTH
RESPONDENT
MAGEZA
TINTSWALO GRACE
EIGHTH
RESPONDENT
MKHABELA
ZACHARIA GREGORY GODFREY
NINTH
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The appellants were respondents in the court
a quo
whilst the
respondents were applicants. The respondents have launched an
application seeking an order to review and set aside the
decision of
the appellants to nullify the elections of the respondents and other
elected members to the board during August 2016;
a declaratory order
confirming the validity of the board’s election of the first
appellant held during August – October
2016 in terms of the
first appellant’s constitution; and that the appellants be
interdicted from preparing for the rerunning
of the election of the
board of the first appellant with immediate effect.
[2]
The background facts are as follows. The appellants are all members
of the Old Mutual Group Policy
Scheme. During August-October 2016
elections were held for board members of Limpopo Province Voluntary
Group Scheme a non-profit
company. Elections were held in terms of
clause 11 of the constitution of the Limpopo Province Voluntary Group
Scheme Board. Fifteen
new board members were elected. The respondents
were amongst the members elected to serve on the new board.
[3]
On 9
th
February 2017 the respondents received letters from
the first appellant notifying them of its decision to nullify the
elections
which were held during August-October 2016. The reasons for
nullifying the elections was on account of disputes that were lodged
by Mopani and Waterberg districts regarding elections of new members
to the board. In the letters received by the respondents,
it was
stated that the nullification was mainly due to the non-compliance
with the board’s constitution on several clauses,
which renders
their legality to be highly questioned.
[4]
It is the respondents’ contention that the elections held
during August-October 2016 were
conducted in substantial compliance
with the constitution. That Old Mutual representatives as well as
district managers were invited
together with the provincial manager
who conducted the elections as executive manager of the scheme with
the right to conduct the
elections. Further that district managers as
Old Mutual representatives at district level and the administrator
were invited to
constitute district election committee. That the
presiding officer gave members of the scheme in attendance at the
elections an
opportunity to ask clarity seeking questions prior to
the process of the actual election of candidates, and there was no
objection
raised. The respondents submitted that the disputes raised
by Mopani and Waterberg districts were supposed to have been dealt
with
by the election committee and not the first appellant. The
respondents further submit that if there was non-compliance with
clause 11 (1) of the constitution, such non-compliance was not
sufficient to constitute an irregularity that justify a nullity
or
illegality of the elections. With regard to the reading of the
CV’s/ profiles the respondent submitted that the
provincial
manager reached an agreement with the attendees that since the
candidates were short listed, the reading of their profiles
should be
dispensed with as there was no need to read their profiles.
[5]
The appellants in their answering affidavit have stated that the
first appellant has nullified
the results of all the district
elections on the ground that the election committee which ran those
elections was not properly
constituted and was also not authorised to
run the elections; the provisions of clause 11.1 (a) and 11.2 (b) of
the constitution
were not complied with; and that members from other
districts voted in districts in which they were not entitled to vote.
[6]
The appellants submitted that the elections for Vhembe District,
Mopani District, Waterberg District,
Capricorn District and
Sekhukhune District were conducted by Mr Keetse who is an Old Mutual
representative at provincial level.
That during elections the board
administrator Ms Rahab Mamabolo was present and formed part of the
election committee. That they
were informed by Ms Mamabolo that in
all the elections for these districts, the district representatives
were present but did not
form part of the election committee.
[7]
That after the elections, the appellants received a complaint from Mr
L.V Tjale from Waterberg
district who complained that the elections
were conducted by an Old Mutual provincial representative in
violation of clause 11.1
(a) of the constitution and also that the
provincial representative did not read the synoptic CV’s/profiles
of candidates.
From Capricorn district Mr P Mdaka complained that
during elections, there were people from other districts who casted
their votes
in Capricorn.
[8]
That on receipt of these complaints, a special executive management
committee meeting of the board
was called to deal with the
complainants. At that meeting, the executive management committee
resolved to annul the results of
the elections in all districts.
Thereafter, all the candidates were sent letters informing them of
the decision of the executive
management committee.
[9]
The respondents in their replying affidavit
have stated that upon revisiting and perusal of the appellants
answering affidavit, it was evident that there were facts that could
not be proven on paper and that it will need oral evidence
to be led.
[10]
The matter in the court
a quo
came before Sikhwari AJ who
found in favour of the respondents. He further ordered that the
respondents must assume office with
immediate effect.
[11]
The appellants applied for leave to appeal against the whole judgment
and order of Sikhwari AJ, and that
application was dismissed. The
appellants petitioned the Supreme Court of Appeal (SCA). On 27
th
June 2019 the SCA granted the appellants leave to appeal. On 9
th
July 2019 the appellant served the respondents with their notice of
appeal. The appellants notice of appeal was filed with the
registrar
of this court on 15
th
July 2019.
[12]
On 1
st
November 2019 the appellants brought a substantive
application seeking an order that the late application for a date for
the hearing
of the appeal and the late filing of the record be
condoned and that the appeal be reinstated. The respondents did not
file any
opposing papers but filed a notice to remove cause of
complaint in terms of Rule 30(2). In that notice the respondents
stated that
the appellant’s application for condonation was an
irregular step because the appellants have failed to apply for a date
of hearing of the appeal in terms of Rule 49(7) (a)(ii). On 21
st
November 2019 the appellants filed their notice of application for a
date for the hearing of the appeal.
[13]
In their founding affidavit the appellants have stated that the
reasons for the late filling of the record
was that on 20
th
August 2019 they appointed Elt Pro Transcriptions to transcribe the
record of the proceedings in the court
a quo
. However, they
were informed by Elt Pro Transcriptions that it had encountered
serious difficulties in obtaining the necessary
documents from the
Registrar and that was their primary cause for the late filing of the
record. They submitted that they are having
good prospects of success
and that the delay was only marginal, and further that when they
realized that the record will be filed
late, immediate steps were
taken to ensure that the record was filed at the earliest
opportunity.
[14]
The respondents have addressed in their heads of argument their
opposition to the appellants’ condonation
application. The
respondents in their heads of arguments have stated that even if the
appellants’ application for condonation
and reinstatement of
the appeal was not opposed by them, it stands to fail. The
respondents in their head of arguments have submitted
that it is
inexcusable for the appellants to rely on the absence of the record
to justify their failure to prosecute the appeal
on time, and that
the appellants were required to apply for a date of hearing within
sixty days whether the records were ready
or not.
[15]
The respondents in their heads of argument have also stated that the
appellants’ notice of appeal is
fatally defective and invalid
in that it fails to state the particular respect in which the
variation of the judgment or order
of the court
a quo
is
sought. Further that the appellant’s notice of appeal does not
make it clear as to the findings of fact and/or rulings
of law in the
said judgment they are appealing against, and in what particular
respect the variation of the judgment was sought.
[16]
The first issue to be dealt with is the appellants’ condonation
application and reinstatement of the
appeal that had lapsed. Factors
which are usually taken into consideration in an application for
condonation include the degree
of lateness, explanation for the
delay, prospects of success and prejudice, if any.
[17]
In
Darries
v Sheriff, Magistrate Court Wynberg and Another
[1]
Plewman
JA said:
“
Condonation of the
non-observance of the Rules of this Court is not a mere formality …
In all cases some acceptable explanation,
not only of, for example,
the delay in noting an appeal, but also, where this is the case, any
delay in seeking condonation, must
be given. An appellant should
whenever he realises that he has not complied with a Rule of court
apply for condonation as soon
as possible… Nor should it
simply be assumed that, where non-compliance was due entirely to the
neglect of the appellant’s
attorney, condonation will be
granted. In applications of this sort the applicant’s prospects
of success are in general an
important though not decisive
consideration. When an application is made for condonation it is
advisable that the petition should
set forth briefly and succinctly
such essential information as may enable the court to assess the
appellant’s prospects of
success. But appellant’s
prospects of success is one of the factors relevant to the exercise
of the court’s discretion,
unless the cumulative effect of the
other relevant factors in the case is such as to render the
application for condonation obviously
unworthy of consideration.
Where non-observance of the rules has been flagrant and gross an
application for condonation should
not be granted, whatever the
prospects of success might be.”
[18]
The appellants have served the respondents with their notice of
appeal on 9
th
July 2019 and filed with the registrar on
15
th
July 2019. In terms of Rule 49(6) (a) the appellants
were required within sixty days after the delivery of the notice of
appeal,
to make a written application to the registrar for a date for
the hearing of the appeal. Since the stipulated sixty days is in
terms of the Rules, it follows that it refers to court days. The
sixty days’ period has therefore lapsed on 3
rd
October 2019. When the sixty days’ period lapsed, the
appellants have not yet applied for a date of hearing of the appeal.
[19]
On 1
st
November 2019 the appellants filed an application
for condonation for the late application for a date for the hearing
of appeal,
late filling of the record and also that the appeal be
reinstated. The written application for the date of hearing of the
appeal
was served and filed on 21
st
November 2019. That
makes their application for date of hearing of the appeal to be
thirty four days late.
[20]
In their condonation application appellants have stated that the
primary reason why the date of hearing of
the appeal was made outside
the prescribed time period was that the transcribers had serious
difficulties in obtaining the necessary
documents for transcription
from the registrar. The applicants have also attached several letters
sent to the transcribers requesting
the transcribed records.
[21]
Rule 49(7)(a) provides that at the same time an application for a
date for the hearing of an appeal is made,
the appellant shall file
with the registrar three copies of the record on appeal and shall
furnish two copies to the respondent.
This Rule uses the word “shall”
meaning it is peremptory. If the appellant applies for a date of
hearing of the appeal
without filing three copies of record with the
registrar and furnishing the respondent with two copies that
application will be
defective.
[22]
The record as envisaged in Rule 49(7)(a) will entail entire pleadings
and the transcribed record of the court
a quo
. Even though the
record of the proceedings in the court
a quo
usually contains
addresses by the counsel of both parties and engagement with court,
that might not be fatal even if they were
not filed at the time of
the application for a date of the appeal. They however, constitute a
complete record of the proceedings
as it gives a picture of what
actually transpired when the matter was argued in the court
a quo
.
It is therefore advisable to file them as in some instances, counsel
may refer the court to authorities or law which does not
appear in
their heads of arguments.
[23]
It is common cause that as at 3
rd
October 2019 the
transcribers have not yet transcribed the record of the proceedings
in the court
a quo
. The appellants have explained in detail
the steps they have taken to speed up the process of transcribing the
record of the proceedings.
Even before they receive the transcribed
record, they launched an application for condonation. In my view,
that shows that they
were not deliberately delaying the speedy
finalization of their appeal. In my view, their explanation for the
delay is adequate
and satisfactory.
[24]
The application for a date of hearing was made thirty four days late.
Taking into consideration the steps
that the appellants have taken in
making sure that the records of the proceedings were transcribed, in
my view, their application
was not extremely late.
[25]
With regard to prospects of success, the appellants in their
application for condonation have given a history
of this matter. That
history set out briefly and sufficiently such essential information
that will assist this court to assess
the appellants’ prospects
of success. The appellants alleged that new elections were held prior
to the hearing of the respondents’
review application. The
appellants further alleged that the respondents have unsuccessfully
attempted to interdict the appellants
from implementing the outcome
of the new elections. The appellants submitted that when the
respondents review application was heard,
it was already moot as new
elections were held and already implemented. The appellants further
submitted that paragraph 2 of the
order of Sikhwari AJ did not form
part of the relief that was sought in the respondents notice of
motion.
[26]
The respondents did not oppose the appellants’ application for
condonation, and therefore their version
remained unchallenged. This
court is therefore of the view that with regard to prospects of
success, the appellants are having
an arguable case.
[27]
The court is therefore satisfied that the appellants have adequately
and satisfactorily addressed the factors
taken into consideration in
a condonation application. Their non-observance with the Rules was
not flagrant and gross. Their application
for the late application
for a date for the hearing of the appeal and the late filling of the
record is condoned, and their appeal
is reinstated.
[28]
The second issue to be determined is whether the appellants’
notice of appeal is fatally defective
and invalid in that it fails to
state the particular respect in which the variation of the judgment
or order of the court
a quo
is sought.
[29]
Rule 49 (4) provides as follows:
“
Every notice of
appeal and cross-appeal shall state –
(a) What part
of the judgment or order is appealed against; and
(b) The
particular respect in which the variation of the judgment or order is
sought”.
[30]
The appellants’ notice of appeal read as follows:
“
BE PLEASE TO TAKE
NOTICE that the appellants herewith appeal to the full court of the
Limpopo Division of the High Court, Polokwane
against the whole of
the judgment and order of the honourable Mr Justice Sikhwari
delivered on 13 December 2018. Leave to appeal
was granted by the
Supreme Court of Appeal on 27 June 2019.
The appellants seek an
order in the following terms:
1.
That the appeal be upheld, with costs;
2.
That the order of the court
a quo
be replaced with an order in
the following terms:
2.1.
The application is dismissed,
2.2.
The applicants are ordered, jointly and severally, to pay the
respondents’
costs.”
[31]
The respondents have submitted that the appellants’ notice of
appeal should specify clearly what the
grounds of appeal really are,
and that they are entitled to be informed in the notice of appeal, in
clear and unambiguous terms
exactly what case they must be prepared
to meet on appeal.
[32]
It is trite that an appeal lies against an order that is made by a
court and not against its reasons for
making that order. It follows
that on appeal a respondent is entitled to support the order on any
relevant ground and is not confined
to supporting it only for the
reasons given by the court
a
quo.
(
See SA
Reserve Bank v Khumalo
[2]
).
[33]
Rule 49 (4) (a) requires the notice of appeal to state what part of
the judgment or order is appealed against.
What this entails is to
state whether the appeal is against the whole or part of the judgment
and order. This sub-rule does not
require a party to state the
grounds. The appellants have stated in their notice of appeal that
they are appealing against the
whole of the judgment and order of
Sikhwari AJ. If the appellants were appealing only against part of
the judgment or order, it
would have been sufficient for them to
specify exactly that part without specifying the ground why they are
appealing that part.
In my view the appellants notice of appeal
complies with the provisions of Rule 49 (4) (a).
[34]
Rule 49 (4) (b) requires the notice of appeal to state the particular
respect in which the variation of the
judgment or order is sought.
The appellants in their notice of appeal are seeking that the order
of the court
a quo
be replaced with an order dismissing the
application with costs. In my view, the appellants in their notice of
appeal have stated
the particulars in which the variation of the
judgment or order is being sought.
[35]
This court is therefore satisfied that the appellants notice of
appeal is not defective and invalid. The
appellants notice of appeal
complies with Rule 49 (4). The respondents point
in limine
stand to fail.
[36]
The third issue to be determined is whether the appellants’
answering affidavit in the main application
deposed by Bangi Sydney
Shimange commissioned by Chidi Attorneys on 6
th
July 2017
was defective. The respondents in their heads of argument have
submitted that the commissioning of that answering affidavit
did not
comply with Regulation 3 (1) of the regulations governing the
administration of an oath or affirmation in that the deponent
did not
sign the affidavit in the presence of the commissioner of oaths. It
is therefore the respondents’ contention that
the appellants
answering affidavit in the main application is invalid and that this
appeal should be decided on the facts or allegation
contained in the
respondents’ founding affidavit.
[37]
The issue that the appellants founding affidavit was invalid was not
raised in the court
a quo
but was raised for the first time in
the appeal. It is trite that an appeal is based on the record. Even
though an appeal is based
on records, on appeal, the respondent is
entitled to support the order on any relevant ground and is not
confined to supporting
it only for the reasons given by the court
a
quo
. (
See SA Reserve Bank v Khumalo
supra
)
[38]
The respondents when replying to the appellants’ answering
affidavit did not challenge the validity
of the appellants’
answering affidavit. The court
a quo
was not obliged to
mero
motu
determine the validity of the appellants’ answering
affidavit without the respondent having raised an issue on it. The
respondent
did not advance any reasons why the validity of the
appellants answering affidavit was not challenged in the court
a
quo
. The respondents were aware of the answering affidavit as it
stands and did not challenge it. By failing to challenge the validity
of the answering affidavit in the court
a quo
shows that they
have abandoned that defence. The respondents cannot therefore seek to
pursue on appeal a defence that they have
abandoned in the court
a
quo.
[39]
Even if this court was to accept the respondents’ submission on
this issue, in my view it has no merit.
The certificate at issue read
as follows:
“
signed before me at Polokwane
on the___ of June 2017, the deponent having sworn that the contents
of this affidavit we both true
and correct acknowledged that he knows
and understand the contents of this affidavit, that he has no
objection to taking the prescribed
oath, and that he considers the
prescribed oath to be binding on his conscience.”
[40]
Thereafter, the commissioner of oaths had signed, inserted his full
names as Mahlodi Elias Ramethape, practising
attorney. The
commissioner of oaths instead of inserting a date on the space
provided on the certificate, put his office stamp
of Chidi Attorneys
next to where he had signed. The date of that office stamp is 6
th
July 2017 and address is suit no 5, 82 (A) Hans van Rensburg Street,
Polokwane 0700.
[41]
The date of the filling notice of the appellants’ answering
affidavit is the 6
th
July 2017 and it shows that it was
served on the respondents’ attorneys on the 6
th
July
2017 at 17:00. Had the respondents raised this issue in the court
a
quo
, it would have given the appellants an opportunity to clarify
that discrepancy. However, as things stand, the only conclusion is
that the answering affidavit was prepared during June 2017 but
presented before the commissioner of oaths for commissioning on
the
6
th
July 2017 and the commissioner of oaths has omitted to
delete June 2017 when he placed his office date stamp of the 6
th
July 2017.
[42]
The same goes with the respondents founding affidavit, the
commissioner of oaths did not specify whether
the founding affidavit
was signed by a female or male. The certificate state he /she and it
cannot be both. However, in paragraph
1 of the founding affidavit,
the deponent has stated that he is an adult male. Therefore, the
certificate cannot be read in isolation
with paragraph 1. The same
with the certificate on the appellants’ answering affidavit
will not be read in isolation with
the date stamp. These in my view,
are not fatal omissions that affect the validity of both affidavits.
It therefore follows that
the point
in limine
raised by the
respondents that the appellants answering affidavit is defective has
no merit.
[43]
Turning to the merits of the appeal, the appellants have submitted
that the respondents had launched their
application as a review
application and on the basis that the decision of the board of the
company constituted an administrative
decision as contemplated in the
Promotion of Administrative Justice Act, 3 of 2000 (PAJA). It is the
respondents’ contention
that this approach was patently
incorrect and that the company is in fact a domestic tribunal. The
respondents submitted further
that they have never relied on PAJA in
their review application, but that their review application is in
terms of Rule 53 of the
Uniform Rules of the High Court (Rules).
[44]
The respondents in their founding affidavit stated that the decision
of the board to nullify
elections did so in terms of an
administrative action which may, if considered to be irregular or
unlawful, be a subject of judicial
review by the court. The
respondents notice of motion states that the appellants are called
upon in accordance with the provisions
of Rule 53(1) of the Rules for
the conduct of proceedings. There is nowhere in the papers where the
respondents have stated that
they are relying on PAJA. In my view,
the mere fact that the respondents have stated that the appellant’s
action constitute
administrative action, does not automatically mean
that their review application was brought in terms of PAJA. Even when
this matter
was argued in the court
a quo
, the respondents did
not rely on PAJA. The respondents notice of motion is clear that
their review application is in terms Rule
53(1). The appellants also
did not raise this matter when the matter was argued in the court
a
quo
. It was raised for the first time when the appellants argued
their application for leave to appeal. In my view, there is no merit
in the appellant’s arguments that the respondents review
application was brought in terms of PAJA.
[45]
The respondents in their replying affidavit have stated that the
appellants’ answering affidavit raised
material disputes of
fact and that the matter could not be decided on paper. The
respondents have thereafter submitted that the
alleged disputes of
fact be referred for oral evidence.
[46]
In
National
Director of Public Prosecutions v Zuma
[3]
Harms DP said:
“
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the Plascon–Evans rule that where in
motion proceedings disputes of fact arise on the affidavits,
a final
order can only be granted only if the facts averred in the applicants
(Mr Zuma’s) affidavits, which have been admitted
by the
respondent (NDPP), together with the facts alleged by the latter,
justify such order. It may be different if the respondent’s
version consists of bold or uncreditworthy denials, raises fictitious
disputes of fact, is palpably implausible, far-fetched or
so clearly
untenable that the court is justified in rejecting them merely on the
papers.”
[47]
The issue of the disputes of fact was raised by the respondents who
are
dominus litis
. However, the court
a quo
in its
judgment did not determine whether a real, genuine and bona fide
dispute of fact exist. The respondents in their replying
affidavit
have seriously and unambiguously addressed the facts they said to be
disputed and also requested for the matter to be
referred for oral
evidence. The court
a quo
was supposed to have dealt with the
respondent’s contention that there was a dispute of fact and
that the matter could not
be decided on paper. If in deed there was a
real, genuine and bona dispute of fact, the court
a quo
could
not have granted a final order, but could have either dismissed the
application or referred it for oral evidence on those
disputed
facts.
[48]
It is not in dispute that the respondents were elected to serve on
the new board as a result of elections
that were held by the
districts of the first appellant. The appellants on receipt of the
outcome of the elections results of the
district, received complaints
from other districts who were alleging some irregularities when the
elections were held. Upon receipt
of the complaints, the appellants
arranged a special executive management committee meeting of the
board to deal with the alleged
complaints. At that meeting the
executive management committee resolved to annul the result of
elections in all districts and that
fresh elections be held. All the
affected candidates were sent letters informing them of the decision
of the executive management
committee.
[49]
The first appellant is a private company which is regulated by its
constitution. In terms of clause 3(a)
of the appellant’s
constitution, the executive management committee may authorize any
person or persons to act on behalf
of the board and to sign all such
documents and take all such steps as may be necessary to protect its
interest in connection with
any action, suits, proceedings, dispute,
conciliation or arbitration. It seems to me that the executive
management committee is
wielding enormous power than the board
itself. In case the board becomes dysfunctional the executive
management committee will
take over the running of the affairs of the
board.
[50]
Clause 10 and 11 of the constitution regulates the holding of the
electrons which must be overseen by an
election committee. Clause 11.
1 and 11.2 of the constitution read as follows:
“
11.1
Election
Committee
(a) Old
Mutual representatives at district level and the Board’s
Administrator constitute provincial election
committee.
(b) Old
Mutual representatives at provincial level and the Boards
Administrators constitute provincial election committee.
“
11.2 Duties of
election committee shall be to:
(a) Prepare
ballot papers.
(b) Announce
the names of candidates and read their synoptic CV’s/ profiles.
(c) Conduct
elections.
(d) Supervise
elections.
(e) Count
votes.
(f)
Announce the results.
(g) Resolve
disputes if there are any.”
[51]
Under normal circumstances disputes in relation to the elections must
be handled by the election committee.
However, in this case, the
disputes that were lodged concerned the very same members who were
supposed to constitute the election
committee. Mr Keetse was an Old
Mutual representative at provincial level and Ms Mamabolo the Board
Administrator. The dispute
lodged is centred around the two who are
supposed to form part of the election committee. That make them to be
conflicted and would
therefore not form part of the committee to hear
and determine the dispute that relates to them. The constitution is
also silent
as to the quorum of the election committee. The quorum in
the constitution relates to the board only. With the enormous power
the
executive management committee was having, it decided to take
over and dealt with the dispute on its own. It could not have
referred
the matter to the old board as that board was dissolved as a
result of the holding of the elections. In my view, it was within the
powers of the executive management committee to have dealt with the
disputes received relating to the manner in which the elections
were
held.
[52]
The appellant as a domestic company in dealing with the disputes
raised by the aggrieved parties is required
to have regard to its own
rules or the fundamental principles of fairness. The constitution is
silent as to the procedure to be
followed in dealing with disputes
emanating from the elections except to say that the disputes will be
dealt with by the election
committee.
[53]
In
Turner
v Jocky Club
[4]
Botha JA said:
“
The principles of
natural justice does not require a domestic tribunal to follow the
procedure and to apply the technical rules
of evidence observed in a
court of law, but they do require such a tribunal to adopt a
procedure which would afford the person
charged a proper hearing by
the tribunal, and an opportunity of producing his evidence and of
correcting or contradicting any prejudicial
statement or allegation
made against him… The tribunal is required to listen fairly to
both sides and to observe “the
principles of fair play. In
addition to what may be described as the procedural requirements, the
fundamental principles of justice
require a domestic tribunal to
discharge its duties honestly and impartially. They require also that
the tribunal’s finding
of the facts on which its decision is to
be based shall be “fair and bona fide” … It is, in
other words, “under
an obligation to act honestly and in good
faith”.
[54]
The constitution of a private company is the instrument that
facilitate and regulate its members in the running
of the activities
of the company. Therefore, a private company is able to regulate
itself and it is also best placed to determine
how its members would
participate in its internal activities.
[55]
The constitution of the appellants regulates and facilitates how its
members may participate in the internal
activities of the
company. Clause 10 and 11 of the appellants’ constitution
regulates the holding of the elections. The constitution
of the
private company constitute the terms of the agreement entered into by
its members. The relationship between the private
company and its
members is therefore contractual. Members of the private company if
they are of the view that their constitution
has been breached to
their prejudice, are entitled to approach a court of law for an
appropriate relief. (See
Ramakasa
and Others v Magashule and Others
[5]
)
[56]
The appellants have taken a decision to annul the election results
based on the submissions of the aggrieved
parties only. The
respondents were not given an opportunity to make their own
submissions despite having an interest in the matter,
and a negative
outcome was going to affect them. In my view, the appellants were
supposed to have sent the disputes to the respondents
and hear their
comments before it took a decision to annul the election results, and
not just sent the outcome of their decision
without having afforded
the respondents an opportunity to be heard. In my view, the manner in
which the appellants have handled
the disputes of the election
results, have failed to observe the principles of fair play. They
have therefore acted unfairly towards
the respondents.
[57]
The question is whether this unfairness justify the setting aside of
the decision of the executive management
committee in nullifying the
election results. The respondents does not dispute that clause 11(1)
of the constitution was not complied
with during the holding of the
elections. In fact the respondents have stated in their founding
affidavit that if there was non-compliance
with that clause, such
non-compliance was not sufficient to constitute an irregularity. Also
with regard to clause 11.2 (b) the
respondents do not dispute that it
was not complied with. In fact they submit that the provincial
manager reached an agreement
that since the candidates were short
listed, the reading of their profiles should be dispensed with.
However, clause 11.2 in relation
to duties of the election committee
uses the word
shall
. That is peremptory, and there was no room
to dispense with the reading of synoptic CVs/profiles of candidates.
Therefore, even
if the disputes were sent to the respondents for
their comments, it would not have changed the fact that the
constitution was flouted
during the holding of the districts
elections.
[58]
After the elections results were nullified, fresh elections were held
before the review application was heard
in the court
a quo.
The respondents tried to interdict the holding of the fresh elections
without success. There is no evidence that the respondents
were
prevented from taking part in the fresh elections. Any harm which the
respondents might have suffered, has been minimized
by the holding of
fresh elections which were free for all. If the respondents had the
support of the electorate, they might have
still been elected again.
In my view, when this review application was heard in the court
a
quo
it was moot as a new board was already duly constituted.
Since the respondents were unsuccessful in their interdict
application,
there was nothing barring the appellants in proceeding
with the holding of fresh elections. In my view, the respondents’
review application should have been dismissed on the basis of
mootness as it did not raise any discrete issue of public importance
that will have an effect on future matters.
[59]
As a private company is entitled to regulate its own affairs, this
court will be slow to interfere. The transgressions
which occurred
during the holding of the district elections were serious, and the
appellants could not have turned a blind eye.
It would not have been
in the interest of the members of the first appellant to have
referred the dispute to the election committee
since some of its
members were conflicted. In nullifying the elections result the first
appellant acted within the confine of its
constitution which gives it
the authority to regulate its own affairs. The appeal therefore
stands to succeed.
[60]
With regard to costs, it will be just and equitable if each party
pays its/her/his own costs since appellants
did not observe the
principles of natural justice in nullifying the election results.
[61]
In the result I make the following order:
(a) Condonation is
granted for the late filing of the record.
(b) Condonation is
granted for the late application for a date of hearing of the appeal.
(c) The appeal is
reinstated.
(d) The appeal is
upheld.
(e) The order of
the court
a quo
is set aside and substituted with the
following:
“
The application
is dismissed and each party to pay its/his/her own costs”
(f) There is no
order as to costs of the appeal.
MF.
KGANYAGO J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION, POLOKWANE
I AGREE
MG
PHATUDI J
JUDGE
OF THE HIGH COURT OF
SOUTH
AFRICA, LIMPOPO DIVISION,
POLOKWANE
I AGREE
M
NAUDE AJ
ACTING
JUDGE OF THE HIGH
COURT
OF SOUTH AFRICA,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCE:
Counsel
for the Appellant
:
APJ ELS
Instructed
by
:
MMAKOLA MATSIMELA ATTORNEYS
Counsel
for the Respondent
:
G SHAKOANE SC & L NEMUKULA
Instructed
by
:
BALOYI SHIRARE ATTORNEYS
Date
of hearing
:
9
TH
OCTOBER 2020
Date
of Judgment
:
28
TH
JANUARY 2021
[1]
1998 (3) SA 34
(SCA) at 40I-41E
[2]
2010 (5) SA 449
(SCA) at 451 F-G
[3]
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at para 25
[4]
SA
1974 (3) SA 633
(A) at 646 F-H
[5]
[2012] ZACC 31
;
2013 (2) BCLR 202
(CC) 18 December 2012 at paras 79
and 80