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
>>
2021
>>
[2021] ZANCHC 54
|
|
Mogoje v Droogfontein Communal Property Association (2635/2019) [2021] ZANCHC 54 (1 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No:
2635/2019
Heard:
30/07/2021
Delivered:
01/10/2021
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
In
the matter between:
NICODEMUS
GOSIAME
MOGOJE
Applicant
and
DROOGFONTEIN
COMMUNAL PROPERTY
ASSOCIATION
Respondent
JUDGMENT
Mamosebo
J
[1]
On 29 November 2019 the applicant, Mr Nicodemus Gosiame Mogoje,
brought
an urgent application seeking an order interdicting the
respondent, Droogfontein Communal Property Association (DCPA), from
holding
a "special business meeting" scheduled for 30
November 2019 at 10:00. This Court issued a rule
nisi
calling
upon DCPA to show cause on 17 January 2020 why the interdict should
not be made final. A further order was made that the
rule was to
operate as interim interdictory relief pending the final
determination of the application, which came before me on
the
extended return day of 30 July 2021.
[2]
The relief sought by the applicant is confirmation of the rule with
costs.
The DCPA is opposing the application and has raised various
defences:
2.1
First, his lack of
locus standi
to bring this
application;
2.2
Secondly, the non-joinder of other members of the DCPA;
2.3
Thirdly, his failure to show the existence of a clear right;
and,
2.4
Finally, the presence of an appropriate alternative remedy.
Based
on the aforesaid, the DCPA is seeking a discharge of the rule with
costs.
[3]
The date
for the meeting has since passed. The meeting did not materialise.
The matter has become moot in as far as the meeting
is concerned. The
only issue that remains for determination is the costs. In order to
make such, it is necessary to deal with the
relevant facts that led
to the application. Mr Kgotlagomang, for the applicant, invoking
Coin
Security Group (Pty) Ltd v SA National Union for Security Officers
and Others
[1]
where
the court was faced with issues of jurisdiction in matters involving
striking employees, submitted that the fundamental feature
of our
judicial system is to decide disputes before them and not abstract
issues. This case finds no application in this matter.
His further
reference to para 21 of the
National
Coalition For Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[2]
which
deals with the ripeness of a
matter
for
hearing
does
not
assist
Mr
Kgotlagomang
either.
[4]
The background facts are as follows. On 16 November 2019 the DCPA
Secretary,
OG Selao, issued a Notice to its members inviting them to
a Special Business meeting to be held at Sanlam Building, Kimberley.
The items on the agenda:
4.1
Clarity on the chairperson position;
4.2
Rezoning for residential purposes;
4.3
The Annual General Meeting (AGM);
4.4
Ill-discipline in the broader [Community Property Association]
(CPA);
4.5
Update on verifications;
4.6
Finalisation of the merger;
4.7
Update on [the] current solar project; and,
4.8
Co-options.
[5]
The DCPA is a communal property association constituted in terms of
its
constitution and established in accordance with the Communal
Property Association Act, 28 of 1996. A member is defined in its
constitution
as
'family of a claimant represented by one person
duly nominated and appointed by the family from time to time to
represent
them
in all
matters
pertaining
to
the
association.'
[6]
The nominated representative for the Mogoje family is Ms Jennifer
Mbengo
who resides in Johannesburg. On 29 November 2019 Ms Mbengo
completed a Special Power of Attorney marked "NOM2"
nominating
the applicant to: Investigate and launch an application
against DCPA or its committee; negotiate with all the interested
parties
and proceed with the necessary cause of action; institute
legal proceedings on behalf of her family and appoint an advocate if
necessary; and to sign all the necessary documents on her behalf.
[7]
On 25 November 2019 the applicant arranged a meeting with the
Department
which took place on the following day, 26 November 2019.
The Department furnished him with the "NOM 4" report which,
according to him, did not address his concerns. He subsequently met
with his attorney, Mr Kgotlagomang of the firm Towell and Groenewaldt
and gave him the instructions to have the meeting of 30 November 2019
cancelled. Mr Kgotlagomang addressed a letter of demand dated
27
November 2019 to the Chairperson of the DCPA objecting to the listed
items being discussed at a special business meeting and
the
non-compliance with the notice period afforded by the constitution to
members for a meeting. The Chairperson was given until
28 November
2019 at 12:00 to confirm that the meeting will not be proceeded with,
failing which an urgent application would be
brought. That
precipitated this application launched the very next day.
[8]
Clause 16 of the constitution deals with Special Business Meetings
which
reads in relevant part in this manner:
"16.1
No decision of the Committee or of a General meeting, involving a
matter that represents Special Business shall be of
force or effect
unless it shall have been approved, either generally or specifically,
as follows:
16.1.1
In terms of a Special Resolution passed at a Special General Meeting
duly convened on 14 days' notice and passed by two-thirds
of the
members present and voting. The notice conveying such a meeting shall
state the nature of the Special Business concerned.
16.2
The following
matters
shall
be considered
Special
Business:
16.2.1
Any transaction contemplated by section 12(1) of the
Act, including the proposed disposal or encumbrance of any immovable
property
or any right [or] interest in and to movable or immovable
property or any part thereof of the Association or to
which
the Association is entitled to or expects to obtain a right, whether
by sale, lease, donation, exchange, mortgage, or otherwise
howsoever."
[9]
Mr Kgotlagomang relied on Clause 16 of the DCPA's constitution,
emphasising
the operative word "shall" in his submission
that the agenda items as appearing at para S(above) are not items
meant
for the special business meeting. The only issue that qualifies
for discussion under special business is item 4.6, finalisation
of
the merger. Mr Kgotlagomang further argued that, in any event, item
4.6 was considered before as it appears in the undated progress
report of the DCPA, from 2011 to date, addressed to the Director
Tenure Security System, (DTSS) Department of Rural Development
marked
"NOM4" under the head "Malu and Eridanus contract".
[10]
Mr Kgotlagomang argued that it is the applicant's case that this
matter was discussed and
finalised as reflected at page 60 of the
report. However, in the DCPA special business minutes dated 29 June
2019, marked "DCPA
8", the following resolution was taken:
"Resolution
granted to the Executive to enter into contractual agreements with
potential investors (Malu and Eridanus) in as
far as the new proposed
partnership is concerned and a copy of final contract will be made
available at the office for family reps."
[11]
In countering applicant's submission, Mr Van Niekerk SC, for the
DCPA, submitted that it
boils down to the interpretation of Clause
16. Counsel argued that the Special Business Meeting is a special
general meeting of
members convened on 14 days' notice whose
resolution is by a two-thirds vote of members in attendance while the
ordinary general
meeting's resolution passes by consent of members or
as the constitution may prescribe. Counsel intimated that if Mr
Kgotlagomang
took issue with the interpretation by the DCPA what
becomes of the 14-days' notice in Clause 16.1.1? Mr Van Niekerk
contended that
what was required was 14 days' notice, which was
given.
[12]
Mr Kgotlagomang submitted that the Court should note the concession
made by the DCPA at
para 17.2 of its answering affidavit that the
meeting called for 30 November 2019 was merely an information
meeting. The applicant
maintains that the information sharing could
not have been done under the umbrella of a Special Business Meeting
but ought to have
been under a general meeting which must be convened
quarterly. Para 17.2 states:
"It
is, however, apposite to point out that the meeting of 30 November
2019 was an information meeting, save for the resolution
that had to
be considered with regard to the transaction between MALU Landgoed
(Pty) Ltd, Fieldsview, the CPA and Newco. Due to
the
interim order granted herein, no resolution could be taken with
regard to this transaction. A copy of the unsigned proposed
resolution
is attached hereto as annexure "DCPA4".
Locus
standi
[13]
In as far as the contention that the applicant lacks the necessary
locus standi
to bring the application is concerned the
applicant's deposition is to this effect:
"I
am a descendant of a claimant of the respondent. Therefore, my family
is a beneficiary of the respondent. My sister, namely
Jennifer Mbengo
has been nominated as a family representative in the respondent and
she has authorised me to launch this application.
I attach hereto a
copy of the power of attorney duly signed and mark it as annexure
'NOM2m.
Mr
Kgotlagomang submitted that Clause 22 of the constitution
[3]
reserves the right to any member and that applicant is a member
entitled to approach the court for the necessary relief. I do not
agree.
Sec
22 is
specific
in
terms of
the circumstances
under
which a
member or committee member may invoke it. I find that it is not
relevant in this instance.
[14]
In countering the claim by the applicant, the DCPA contended as
follows in its answering
affidavit:
"The
CPA's constitution defines a 'member' as 'a family of a claimant
represented by one person duly nominated and appointed
by the family
from time to time to represent them in all matters pertaining to the
association.' The applicant is a member of the
Mogoje family,
a
member family, but he is not [a] duly nominated person who represents
the Mogoje family. The applicant's sister, Ms Jennifer Mbengo,
is the
duly nominated and authorised family representative
of
the Mogoje family. I attach hereto as annexure DCPA3, a copy of the
list of the family representatives, confirming same. At no
stage, has
the applicant been nominated to replace Mrs J Mbengo as the duly
authorised family representative. The applicant is
also not a special
member admitted in terms of paragraphs 4.2.5 and 9.6.3 of the CPA's
constitution.
[4]
The proxy form attached to the founding affidavit (annexure NOMI) is
not dated nor signed by Ms J Mbengo.
The
special power of attorney attached to the founding affidavit (NOM2)
also does not authorise the applicant to interdict any meeting
of the
CPA. In view of the above and the CPA constitution,
I
submit that the applicant does not have the required locus standi to
file this application in his personal or even in a representative
capacity. I submit that this application should be dismissed, with a
cost order in favour of the CPA, for
this
reason alone."
These
contentions by the DCPA were neither admitted, denied nor noted by
the applicant in reply.
[15]
Whereas in
Gross
and Others v Pentz
[5]
,
a case
involving trusts and
trustees,
and whether or not a beneficiary had
locus
standi
to
bring a dispute against the trust, the majority judgment, by Corbett
JA, dealt with the general rule that the trustee and not
the
beneficiary has
locus
standi
to
bring the proceedings. The minority judgment by
Harms
JA,
clarified
the
aspect
of
locus
standi
further
as
follows:
"The
question of locus standi is in a sense a procedural matter, but it is
also a matter of substance. It concerns the sufficiency
and
directness of interest in the litigation in order to be accepted as a
litigating party (Wessels en Andere v Sinodale Kerkkantoor
Kommissie
van die Nederduitse Gereformeerde Kerk, OVS
1978 (3) SA 716
(A) at
725H; Cabinet of the Transitional Government for the Territory of
South West Africa v Eins
1988 (3) SA 369
(A) at 3888- E). The
sufficiency of interest is 'altyd afhanklik van die besondere feite
van elke afsonderlike geval, en geen vaste
of agemeen geldende reels
kan neergele word vir die beantwoording van die vraag
nie....'(Jacobs en 'n
Ander
v Waks
en Andere 1992 (1)
SA 521 (A) at 5340). The general
rule is 'that it is for the party instituting proceedings to allege
and prove that he has locus
standi, the onus of establishing that
issue rests upon the applicant. It is an onus in the true sense; the
overall onus...' (Mars
Incorporated v Candy World (Pty) Ltd
[1990] ZASCA 149
;
1991 (1)
SA
567
(A) at 575H-J). It follows from this that the question
cannot always be settled in initio and that it is an inherent risk of
litigation
that it may only at the end of the matter be established
whether
locus standi
was
present
or
not."
[16]
I am not persuaded by the applicant's averments that he had a right
which he was entitled
to enforce in court, like interdicting the said
scheduled meeting. Evidently, he is not the nominated representative
of the claimant
family. The only name submitted to DCPA to accord
with Clause 7.6 of the DCPA constitution is that of Ms J Mbengo. The
constitution
does not make provision for this right to be
transferred. Regardless of the fact that Ms J Mbengo has issued a
Special Power of
Attorney to the applicant, she does not show the
source from which that power was derived.
I
therefore find that the applicant lacked the necessary
locus
standi
to bring the application to Court.
Joinder
[17]
Mr Van
Niekerk submitted that the non-joinder of all the other members of
the DCPA by the applicant was fatal, because they had
a direct
and substantial interest in the issue whether the meeting was to be
proceeded with or not. Fagan AJA, then, has succinctly
pronounced on
the issue of joinder in
Amalgamated
Engineering Union
v
Minister
of
Labour
[6]
when
he said:
"Indeed,
it seems clear to me that the Court has consistently refrained from
dealing with issues in which a third party may
have a direct and
substantial interest without either having that party joined in the
suit or, if the circumstances of the case
admit of such a course,
taking other adequate steps to ensure that its judgment will not
prejudicially affect the party's interests."
[18]
Van den
Heever AJ in
Hartland
Implemente (Edms) Bpk v Ena/ Eiendomme Bk en Andere
[7]
explained
a direct and substantial interest as an interest in the right which
is the subject-matter of the litigation and not merely
a financial
interest. The Supreme Court of Appeal in
Burger
v Rand Water Board and Another
[8]
made
the following
insightful
remarks:
"[7]
The right to demand joinder is limited to specified categories of
parties such as joint owners, joint contractors and
partners, and
where the other party(ies) has (have) a direct and substantial
interest in the issues involved and the order which
the court might
make."
[19]
Mr Kgotlagomang has refrained from arguing the issue of joinder
either in the written heads
or orally. The founding papers have not
dealt with the issue of joinder and no replying affidavit was filed.
[20]
Undeniably, the other members of DCPA had a direct and substantial
interest in the outcome
of the application. The deponent has only
focused on the Special Power of Attorney he possessed and being a
descendant of the claimant
to bring the application. He did not think
of the effect this application or its outcome may have on the other
members. It is unknown
at this stage whether they were even aware of
the application because the founding papers are silent on this
aspect. Failure to
join, in these particular circumstances, is indeed
fatal. The applicant should have joined other members and/or produced
proof
that he had served them with the papers and they chose to abide
the decision of the Court.
It
follows therefore that the applicant also stands to fail in this
application on the basis of non-joinder.
Final
interdict
[21]
The
applicant is seeking confirmation of the rule. The requisites for the
right to claim a final interdict are trite. In
Hotz
and Others v University of Cape Town
[9]
Wallis
JA, (Navsa JA, Bosielo JA, Theron
JA, and
Mathopo JA concurring), made the following instructive remarks:
"[29]
The law in regard to the grant of a final interdict is settled. An
applicant for such an order must show a clear right;
an injury
actually committed or reasonably apprehended; and the absence of
similar protection by any other ordinary remedy. Once
the applicant
has established the three requisite elements for the grant of an
interdict, the scope, if any, for refusing relief
is limited. There
is no general discretion to refuse relief. That is a logical
corollary of the court holding that the applicant
has suffered an
injury or has
a reasonable apprehension of injury and
that there is no similar protection against that injury by way of
another ordinary
remedy. In
those
circumstances, were the court to withhold an interdict, that would
deny the injured party a remedy for their injury, a result
inconsistent with the constitutionally protected right of access to
courts for the resolution of disputes, and potentially infringe
the
rights of security of the person enjoyed by students, staff and other
persons on the
campus."
[22]
The applicant, though a descendant, is not the nominated
representative. He can therefore
not claim a clear right, under these
circumstances. The meeting scheduled for 30 November 2019 was stopped
from being convened
by way of interim interdict. The applicant cannot
argue that his right has been infringed because he was clearly not
the holder
of a protectable right under the DCPA constitution.
[23]
Was there any suitable alternative remedy other than an interim
interdict? The applicant
only conveyed the following in the founding
affidavit pertaining to the existence or absence of an alternative
remedy:
"In
the light of the developments on 28 November 2019, it is clear that
the applicant has no alternative remedy but to approach
the
Honourable Court for the relief in the notice of motion."
To
recap, the developments are the request by letter for the DCPA to
cancel the meeting.
[24]
The aforementioned explanation falls short of persuasion. It is
inexplicable why the applicant
did not attend the scheduled meeting
and raise a point of order in respect of what ought to be the items
qualifying as special
business items. By so doing he could have
afforded other members the opportunity to meaningfully engage on the
aspect or to convince
him otherwise. If the meeting proceeded
regardless the applicant could also have challenged it afterwards
through the appropriate
relief. Of significance is that item 4.6 on
the agenda fell squarely within the purview of a Special Business
Meeting. Because
the meeting was stopped the proposed resolution
relating to Malu remained unsigned. This item alone and the decision
for the stopping
of the meeting has, in my view, adversely affected
other members who have a direct and substantial interest in the
matter. The
applicant's averment that the matter was finalised cannot
be correct because "DCPA4" clearly shows that the
resolution
remains unsigned.
I
therefore find that the applicant has not demonstrated a clear right
which has been infringed and further fell short of making
a case that
there were no alternative remedies at his disposal.
Costs
[25]
Mr
Kgotlagomang submitted that the DCPA should be mulcted with
a punitive
cost order because the interim order had a final effect and that it
was unnecessary for the DCPA to file opposing papers
after the matter
had become moot. Mr Van Niekerk, on the other hand countered that the
answering affidavit was filed for the Court
to consider the merits
and the de-merits of the application. Invoking
Phuma
KZN Athletic Club v KwaZulu-Natal Athletics,
[10]
counsel
urged Court to consider whether the applicant had a prospect of
obtaining
a
final order or not, and if not, then there is no basis why costs
should
not
follow
the
result.
[26]
The correct
approach, however, in determining the issue of costs where the merits
have been disposed of, can be found in
Giliomee
v Cilliers
[11]
where
Fagan JA made the following
remarks:
"In
'n saak wat voor my kollega PRICE in die Witwatersrandse Hof gedien
het, Jenkins v SA Boiler Makers, Iron
&
Steel Workers
&
Ship Building
Society
1946
WLD 15
,
lees ans in die hoofnota:
'Where
a disputed application is settled on a basis which disposes of the
merits in so far as the costs are concerned, the Court
should not
have to hear evidence to decide the disputed facts in order to decide
who is liable for costs, but the Court must with
the material at its
disposal make a proper allocation of costs'."
[27]
Resultantly, and for the aforegoing reasons, I make the following
order:
The
rule
nisi
is discharged with costs.
M.C.MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Applicant:
Mr. C Kgotlagomang
Instructed
by:
Towel & Groenewaldt Inc
For
the Respondent:
Adv. JG
Van Niekerk SC
Instructed
by:
Engelsman Magabane Inc
[1]
[2000] ZASCA 137
;
2001 (2) SA 872
(SCA) at para 9
[2]
2000 (2) SA 1
(CC) at para 21
[3]
Clause 22 of the constitution stipulates: Notwithstanding anything
to the contrary herein contained or implied, the right is
further
reserved to any member or committee member, or any other person
having a material interest therein, to apply to court
for
appropriate relief to redress in the event of any refusal or failure
on the part of the Committee to give proper effect to
the principles
of equity stipulated in Clause 5 above, or to implement the terms of
the Constitution, in accordance with its
intent and purpose.
[4]
Clause 4.2.5 : To enter into agreements, grant rights of occupation,
enter into participation agreements and award "special
membership" to any outside party whose involvement with the
association will be of benefit to all members of the association.
Clause
9.6.3: The association will be allowed to appoint people into the
committee who are not part of the claimant community
of Droogfontein
who might bring certain expertise and this will be limited to 2
(two) people only, who will have no right to
vote at meetings of the
Committee.
[5]
[1996] ZASCA 78
;
1996 (4) SA 617
(A) at 632C-F
[6]
1949 (3) SA 637
(AD) at 659
[7]
2002 (3) SA 653
(NC) at 663E-H
[8]
2007 (1) SA 30
(SCA) at 33 para 7
[9]
2017 (2) SA 485
(SCA) at para 29
[10]
2015 JDR 0169 (KZD)
[11]
1958 (3) SA 97
(AD) at 101D-E