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[2021] ZAECMHC 6
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Mndiyata and Others v Umgungundlovu CPA and Others (1606/20) [2021] ZAECMHC 6 (28 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
Case
no. 1606/20
In
the matter between:
Saziso
Mndiyata
First
Applicant
Liziwe
Sonjica
Second Applicant
Zodwa
Langazana
Third
Applicant
and
Umgungundlovu
CPA
First Respondent
Thulani
Eugine
Mchunu
Second Respondent
Irvin
Mhlongo
Third Respondent
Mpendulo
Frank Simamane
Fourth Respondent
Thulisile
Happyness Tshutsha
Fifth Respondent
Sibongile
Danca
Sixth Respondent
Director-General:
Rural Development
and
Land Reform
Seventh Respondent
Minister
of Rural Development
and
Land Reform
Eighth Respondent
Regional
Land Claims Commissioner,
Eastern
Cape
Ninth
Respondent
Nedbank
Limited
Tenth
Respondent
JUDGMENT
Coltman
AJ:
INTRODUCTION
[1]
Although this application was launched on 3 June 2020 as one of
urgency on truncated
time periods in which the applicants sought a
rule
nisi
in
the notice of motion, the first to sixth respondents opposed the
matter and filed an answering affidavit. The applicants
have
subsequently filed their replying affidavit. The relevant
relief sought by the applicants (by way of an interim order)
is set
out as follows in the notice of motion:
“
1.
…
2.
That
Rule Nisi
do
issue calling upon the Respondents to show cause, if any, before this
Honourable Court on ____ day of _________2020 at 09h30
or so soon
thereafter as the matter may be heard, why an order in the following
terms should not me made:-
2.1
That, pending final decision on the course of action recommended by
the independent mediator
in the Mediation Report, dated 29 February
2020 –
2.1.1
the Seventh Respondent is directed to take over the First
Respondent’s administration with immediate
effect;
2.1.2
the First Respondent be and is hereby interdicted and restrained from
paying any remuneration and salary
to any member of the CPA Executive
Committee, including the Second, Third, Fourth, Fifth and Sixth
Respondents;
2.1.3
the Second, Third, Fourth, Fifth and Sixth Respondents are all hereby
restrained and interdicted forthwith
from operating any bank accounts
held under the name of Mgungundlovu Communal Property Association
(the First Respondent), including
Nedbank Current Account, Investec
Account and Nedbank Money Trader Account;
2.1.4
the Tenth Respondent be and is hereby ordered and directed to freeze
or preserve funds standing to the credit
of the First Respondent’s
Nedbank Current Account and Nedbank Money Trader Account and is
accordingly directed to restrain
the Second, Third, Fourth, Fifth and
Sixth Respondent’s access to such bank accounts or such access
by any other person acting
on their authority;
2.1.5
that the First, Second, Third, Fourth, Fifth, Sixth, Seventh
Respondents, jointly and severally, shall bear
the costs of the
application, on a scale as between the Applicants and their own
attorney.
3.
That the applicants are granted interim relief in the form of
paragraphs
[2.1], [2.1.1], [2.1.2],
[2.1.3]
and
[2.1.4]
above, pending final determination of
this application.
4
Further and/or alternative relief.”
[2]
The first, second and third applicants (“the applicants”)
are members
of the first respondent, the Mgungundlovu Communal
Property Association (“the MCPA”).
[3]
The applicants stated in the founding affidavit that they are the
chairperson, secretary
and co-ordinator of the Concerned Land
Claimants (the Concerned Group), respectively, which represent a
minority group of members
who are dissatisfied with the management of
the CPA.
[4]
The second, third, fourth, fifth and sixth respondents are the
chairperson, vice-chairperson,
secretary, deputy secretary and
treasurer of the MCPA, respectively.
[5]
The seventh respondent is the Director-General: Rural
Development and Land Reform
(“the Director-General”), the
accounting officer responsible for the administration of the Communal
Property Association
Act
[1]
(“the CPAA”) by the Department.
[6]
The tenth respondent is a bank where a bank account(s) of the CPA is
held.
[7]
The application is opposed by the first to sixth respondents, who I
shall collectively
refer to as “the respondents” in this
judgment. It will be noted that no relief is sought against the
eighth
and ninth respondents. They have been cited as
respondents because of their interest in the matter as the executive
authority
for overseeing the implementation of the CPAA by the
Department of Rural Development and Land Affairs (“the
Department”)
and as Regional Commissioner having jurisdiction
over the claimed land, respectively. They have played no part
in these proceedings.
OBJECTIONS
IN LIMINE
Answering
affidavit not properly commissioned
[8]
In their replying affidavit the applicants raised the issue that the
answering affidavit
initially delivered by the respondents (“the
first affidavit”) has not been properly commissioned.
They also
pointed out that the Commissioner – apart from his
signature on the last page - failed to initial the other pages, while
the deponent failed to initial some of the pages of the annexures to
the affidavit. The respondents, subsequently, delivered
a
second answering affidavit (which is identical to the first one, but
this time properly commissioned and initialled), together
with an
application for condonation of the late filing thereof. Adv
Madikizela, who appeared for the applicants, submitted
that was no
answering affidavit before court. I granted the condonation
application and undertook to set out my reasons in
this judgment.
Those reasons follow hereunder.
[9]
In support of his argument in respect of the failure to initial the
pages of the affidavit
and annexures, Mr Madikizela referred the
Court to Rule 23(v) of the Joint Rules of Practice of this court,
which provides that:
“
Every
page of any affidavit, including annexures thereto, must be
initialled by the deponent and the commissioner of oaths”,
and
submitted that the said affidavit did not comply or substantially
comply with the Rule in question.
[10]
He further submitted that the attestation clause indicates that a
“she” person had
signed the affidavit and the person
administering the oath’s designation is not stated on the
affidavit, thus failing to
comply with the Rules Governing the
Administering of an Oath or Affirmation.
[11]
He, therefore, argued that the first affidavit is fatally defective
and that the respondents
should first have applied for leave to
withdraw this affidavit, before filing the second affidavit. He
further submitted
that, in any event, the second affidavit had been
filed out of time and opposed the condonation application.
[12]
Adv Sibanda, who appeared for the first to sixth respondents, argued
on the other hand, that
there was, substantial compliance with the
commissioning of the first affidavit and that it was, in fact, not
even necessary for
the respondents to have filed the second
affidavit. He referred me to several authorities to support his
argument, all of
which I have taken into consideration. He
further argued that the second affidavit is, in fact, the same as the
first one,
except for the rectification of all the issues regarding
the commissioning thereof.
[13]
In my view, the submission regarding the failure to initial pages of
the affidavit and annexures
is highly technical and elevates form
over substance. In this regard, the second respondent pointed
out that the applicants
do not dispute the correctness of any of the
annexures, several of the annexures formed part of the papers in the
previous proceedings
in the Labour Court in which the applicants were
involved, some of the annexures the applicants would have been aware
of prior
to or during the present proceedings and do not cause
prejudice to the applicants. (All the annexures referred to
above are
listed in the affidavit accompanying the application for
condonation.) This was not disputed by the applicants.
[14]
Furthermore, the second respondent (who deposed to the answering
affidavit on behalf of the respondents)
stated at the beginning of
the affidavit that he is an adult male. There is no evidence
that another person other than the
first respondent appeared before
the Commissioner. The applicants simply ask this court to infer
that, as the affidavit refers
to a “she” in the
attestation clause, it could not have been the first respondent who
had signed the affidavit.
It will be noted that the word “she”
forms part of the pre-typed document that must have been placed
before the Commissioner.
If the Commissioner had, for instance,
personally written the word “she” in the attestation
clause, it could have made
for a stronger case for the applicants.
It is, therefore, clear that this must have been an error on the part
of the Commissioner.
[15]
With regard to the failure of the Commissioner to state his
designation, I have had regard to
the case of
Liviero
Civils (Pty) Ltd and Another v Amatola Water Boards
[2]
,
where Pickering J dealt with a situation where the Commissioner
failed to print his full name and designation. The learned
judge remarked as follows:
“
[19]
The third point
in limine
raised by defendant related to the attestation of the supporting
affidavit to the notice of application for summary judgment which
was
deposed to by one Martjin Groot, it being submitted that the
affidavit did not comply with the provisions of regulation 4(2)
of
the Regulations Governing the Administration of an Oath or
Affirmation made in terms of section 10 of the Justices of the Peace
and Commissioners of Oaths Act 16 of 1963. Regulation 4(2) thereof
reads as follows:
“
The
Commissioner of Oaths shall –
(a)
Sign
the declaration and print his full name and business address below
his signature; and
(b)
State his
designation and the area for which he holds his appointment or the
office held by him if he holds his appointment
ex
officio.”
[20]
The full names of the Commissioner of Oaths who completed the
attestation clause in the present
matter were not printed and his
signature is illegible. His designation is also not stated.
There is, however, a South
African Police Services stamp affixed
below his signature from which it appears that the affidavit was
commissioned at the “
Client
Service Centre, Midrand
.”
The Commissioner has also appended above his signature what is
clearly his force number.
[21]
Mr. Ntlokwana submitted that in view of the requirement that the
Commissioner “
shall
”
print his full name and business address and state his designation
the provisions of regulation 4(2) were peremptory and
that in
consequence thereof the application for summary judgment fell to be
dismissed because there was in effect no affidavit
before the Court.
[22]
Mr. Ntlokwana’s submission to the effect that the provisions of
regulation 4(2) were peremptory
is without merit. There is a
wealth of authority to the effect that the provisions of regulation 4
are directory and not
peremptory.
[23]
The facts in the matter of
Adriaan
Jurgens Basson and Another v On-Point Engineers (Pty) Ltd and Others
,
unreported North Gauteng High Court, Pretoria case number 64107/2011
dated 7 November 2012, to which I was referred by Mr. De
Vos, who
appeared for the applicants, were similar to the present matter in
that the full names of the commissioner were not printed,
his
designation was not stated, a business address was not provided, and
the area for which the Commissioner held office was not
indicated.
At paragraph 4.3 of the
Basson
judgment Potterill J stated as follows:
“
The
Full Bench of this Division in
S
v Msibi
1974 (4) SA 821
(T)
found that the compliance with regulation 4 is directory and a court
can exercise its discretion in admitting such affidavit
if there is
substantial compliance with the regulation. The Commissioner
did not provide a business address and the area
the Commissioner held
office and his/her designation. This is in fact a requirement
of Regulation 4(2) and not 4(1) as complained
of. The stamp of
the Commissioner clearly indicated that the Commissioner was in the
South African Police Services at the
Management Information Centre,
Rosebank. I cannot express myself better than in the words of
Page AJ in the
Dawood
matter
supra
[1979
(2) SA361 (D and CLD)] at 367 C-E:
“
In
deciding whether the non-compliance is of such a nature that the
Court should refuse to entertain the affidavit it is clearly
relevant
to have regard to the nature and purpose of the requirement with
which there has been failure to comply. In the
present case it
seems to me that the reason for the requirement that the commissioner
should furnish his business address is to
facilitate the task of
anyone who might thereafter wish to locate him for any purpose
connected with the affidavit and its execution.
In the present
case the information supplied is sufficient to enable anyone of
ordinary intelligence to deduce that the business
address of the
commissioner of oaths is…”
at
the office of the SAPS Rosebank Management Information Centre.
The commissioner is thus at minimum designated for the area
of
Rosebank ex officio. On this paltry defect I cannot refuse to
accept the affidavit into evidence. The replying affidavit
was
commissioned at the SAPS Client Service Centre, Rosebank. The
full names of the Commissioner on both the applicants’
affidavit are not printed. On the replying affidavit the force
number of the Commissioner is printed and the Commissioner
can be
easily traced from this. The purpose of the requirement of the
full names of the Commissioner can once again only
be to identify the
Commissioner for any enquiry pertaining to the attestation. I
am certain that with little trouble the
Commissioner of the founding
affidavit will be located through visiting the Rosebank Management
Information Centre of the SAPS
and enquiring whose signature is on
the document.
”
[24]
Similarly, in the present case, the Commissioner of the affidavit
would be easily located through
visiting the Client Service Centre of
the SAPS, Midrand and enquiring whose signature was on the document.
[25]
It is clear therefore in my view that there was substantial
compliance with the provisions of
regulation 4(2).”
[16]
In the present matter, the Commissioner’s full names and work
address are similarly clearly
stated. He would, therefore, be
easily located through visiting the Community Service Centre at the
South African Police
Service in Port Edward and his designation
thereby established.
[17]
In any event, I agree with Mr Sibanda, that, if the answering
affidavit is indeed defective as
contended by the applicants, the
latter would have been obliged to deliver a Rule 30 notice that the
delivery of the answering
affidavit constituted an irregular step
before filing the replying affidavit.
[18]
In the result, I found that there was substantial compliance with the
regulation and, therefore,
exercised my discretion in favour of
allowing the answering affidavit.
Answering
affidavit filed out of time
[19]
Even if I am wrong in the above findings, the second respondent
subsequently corrected the defects
by having the Commissioner initial
the said pages and by personally also initialling those pages that he
previously omitted to
initial. He also corrected the incorrect
reference to his gender. Mr Sibanda further explained the delay
in filing
the affidavit, which was essentially caused by the
practical difficulties in having to draft the affidavit at such short
notice
and submitted that there was no prejudice to the applicants –
as, amongst others, the respondents’ attorneys tendered
to pay
the wasted costs, including not charging the respondents for the
application for condonation. He submitted that –
on the
other hand – the respondents would suffer substantial prejudice
if the answering affidavit were not allowed.
[20]
In
Ardnamurchan
Estates (Pty) Limited v Renewables Cookhouse Wind Farms 1 (RF) (Pty)
Ltd and Others
[3]
,
Kroon
AJ was similarly faced with a scenario where the answering affidavit
was delivered out of time. In that matter, however,
the
applicant failed to apply for condonation. In a comprehensive
and well-reasoned judgment, the learned judge remarked
as follows:
“
I
pause to mention that a further step in proceedings has been held to
include the filing of a replication in action proceedings
and an
answering affidavit in application proceedings. There can be
little doubt that a replying affidavit is an act which
advances the
proceedings one stage nearer completion and is accordingly a further
step in the proceedings
”
.
[4]
(footnotes
omitted)
[21]
He concluded that:
“
In
the Court’s view there is much to be said for the argument
advanced by Mr Kirk-Cohen that the Applicant has an election
to
either invoke Rule 30 or to deliver a replying affidavit
notwithstanding the irregular answering affidavit.
An
analogous situation arose in
Mynhardt
v Mynhardt
where the wrong form
of the notice of motion was utilised. There the Court held that
because the respondent had elected to
answer (and not to object), he
had effectively abandoned or given up his right to challenge the
admittedly irregular notice.
In
this matter it is difficult to see why similarly the Applicant should
be permitted to have it both ways, namely to answer to
the
allegations contained in the answering affidavit but in the same
breath to contend that the answering affidavit should be regarded
as
pro non scripto.
Thus,
leaving aside the circumstance that the delivery of the replying
affidavit would constitute a further step immunising the
answering
affidavit from attack, there is a material inconsistency in
delivering a substantial replying affidavit to an answering
affidavit
which for all intents, so it is contended by the Applicant, does not
exist. Notwithstanding the protestations contained
in the
introduction to the replying affidavit, the very delivery of a
replying affidavit is in the Court’s view an acceptance
of the
fact that the answering affidavit was not to be treated as a nullity.
Expressed
differently, in my view where, as in this case, an answering
affidavit is delivered out of time and an applicant takes
a further
step by delivering a replying affidavit, that applicant is in the
same position as an applicant who has agreed in terms
of Rule 27(1)
to afford a respondent an extension for the delivery of the answering
affidavit.
If
condonation was going to be an issue, then the Applicant was required
to have engaged the First Respondent on this issue and
to have
conveyed to it that it regarded its answering affidavit as an
irregular step because it had been delivered outside of the
period
allowed in terms of the Rules and that the First Respondent was
required to file an application for condonation prior to
the
Applicant being required to deliver a reply.
If
the response of the First Respondent had been that it did not intend
to apply for condonation then it would have been open to
the
Applicant to have elected not to deliver a replying affidavit and to
have adopted the stance that the application was unopposed”
[5]
.
(footnotes omitted)
[22]
As stated earlier, in the present matter, the applicants likewise
failed to challenge the late
delivery of the answering affidavit by
means of Rule 30 as an irregular step, but instead elected to deliver
a replying affidavit.
[23]
For the reasons set out hereinbefore, I ruled that the answering
affidavit be admitted.
The
striking out application
[24]
The applicants further brought an interlocutory application that
sought to have a number of paragraphs
struck out in the answering
affidavit, that is, paragraphs 17 to 81, together with the relevant
annexures attached in support of
the allegations contained in those
paragraphs, namely annexures SM1 to SM28. The applicants
contended that the allegations
contained in these paragraphs (and
annexures) constitute irrelevant historical background, argumentative
matters and vexatious
material regarding the third applicant’s
involvement in the Mbizana Development Trust. Mr Sibanda,
therefore, submitted
that the answering affidavit was unnecessarily
wordy and an abuse of the court process.
[25]
The respondents, on the other hand, although admitting that the
answering affidavit “
was unusually
lengthy”
submitted that it was
necessary for the respondents to give a full account of all the
material facts relating to this matter and
that it was also
necessitated by the allegations made by the applicants in the
founding affidavit.
[26]
The answering papers are indeed voluminous, comprising 506 pages.
However, apart from the
allegations contained under the subheading
“The Establishment of the MCPA”
[6]
in the answering affidavit, the striking out application in respect
of the remainder of the impugned paragraphs, has no merit.
I
say this for the following reasons. The applicants’ main
thrust of their application is their “disgruntlement
arising
from irregular and improper decisions taken by the CPA committee,
contrary to the overriding ‘principle of equity’
which
governs the acts and decisions of the Committee”
[7]
.
The founding affidavit then sets out a list of “improper and
contentious decisions taken by the CPA Committee in April
2018”
[8]
.
The list includes allegations that the committee employed themselves,
paid themselves salaries and other benefits, retained
accountants and
attorneys on a fulltime basis and misappropriated a portion of the R1
million ex gratia payment by TranSun to the
MCPA and portion of
film royalties. They further alleged that during about October
2018 the second, fourth and
fifth respondents took several
“self-benefitting decisions without authority of general
members”
[9]
, namely:
“
(a)
to register all 3 of them as directors of the CPA Company (Fireside
Trading and Investment Proprietary
Limited);
(b)
to register all 3 of them (in contravention of clause 9 and 10 of the
Deed of Trust) as
the only trustees of uMgungundlovu Community
Development Trust (‘the Trust’);
(c)
to appoint each other (in contravention of clause 9.3 of the Deed of
Trust) as board
members representing the Trust in the Board of
Directors at the Wild Coast Sun International, in which the CPA
company is the BEE
equity partner, from which they draw director’s
remuneration;
(d)
to remove a democratically-elected chairperson (Z. Tshusha) from his
position in February
2016 and replace him with his then deputy
(second respondent), along with his treasurer who was replaced by the
sixth respondent”
[10]
.
[27]
Laying the basis for their contention that it is not for the first
time that the applicants have
instituted legal proceedings without
setting out the full material facts, the second respondent (under the
sub-heading “The
Land and Forced Removal” gives a brief
background of himself and Mgungundlovu in paragraphs 17 to 22.
The allegations
contained in these paragraphs are brief and to the
point. It then leads into the next sub-heading entitled “The
Land
Claim Process”, which immediately brings to the fore the
contention that the issue of the representation of the community
always seemed to have been at the heart of these disputes. The
second respondent narrated how the third applicant became
a trustee
of the Bizana Community Development Trust, which held a 30% stake in
the Wild Coast Sun (Pty) Ltd (“Wild Coast
Sun”) and still
participates in the latter’s management, whilst the
Mgungundlovu Land Claim Committee was involved
in litigation with the
Wild Coast Sun for the restoration of the land. What is further
interesting, is that following elections
that were held under the
auspices of the Independent Electoral Commission and during which the
second respondent was elected as
a representative, the third
applicant launched urgent proceedings in the Land Claims Court
challenging the election results and
seeking a declarator that she
and others were the true representatives. This occurred during
the course of 2014.
[11]
It shows the long history of this matter and provides a proper
context against which the present application should be understood.
[28]
Furthermore, it is clear that the application is primarily based on
the Mediation Outcome Report
(“the mediation report”)
[12]
compiled by the mediator, Gcolotela & Peter Attorneys (“GPA”),
appointed by the Director-General as a consequence
of the
long-running and protracted dispute between the applicants and the
executive committee of the MCPA (“the committee”).
In the founding affidavit the applicants, for instance, alleged that
the second, fourth and fifth respondents took “the …
self-benefitting decisions without authority of general members …
to remove a democratically elected chairperson”
[13]
,
that is, the former chairperson, Mr Zweledinga Tshutsha. They
found support for this allegation in the mediation report
that made a
finding “that it was improper and irregular for the CPA
committee to remove a chairperson (Mr Zweledinga Tshutsha)
democratically elected in an election meeting which elected the
committee and to replace him with someone merely nominated amongst
the Committee members but not elected from a general meeting”.
[14]
Yet, when the respondents challenged these allegations by setting out
its response thereto
[15]
, the
applicants want these responses to be removed from the answering
affidavit.
[29]
Under the sub-heading “The Development Funds and Governance
Policies”, the first
respondent narrated how – through
consultations with the community from 28 September 2017 – the
Development Funds were
to be utilised, financial controls and
policies were developed “to manage the portion of the fund in
the MCPA’s operation
account”
[16]
and service providers were identified and appointed to assist in the
proper administration of the MCPA – for instance, a
firm of
accountants, Lockhat Incorporated (“Lockhat”), was
appointed to provide financial advisory services in respect
of
budgeting and investing some of the funds of the MCPA. The
financial control polices and particulars regarding the investment
of
funds are detailed.
[17]
[30]
Under the sub-heading “MCPA Operational Account Budget: May
2018 to February 2019”,
the answering affidavit deals with
developing a budget for the said period with the assistance of
Lockhat, the provision of salaries
for four members of the committee,
the approval of these items by the community members, the appointment
of DB Consulting to compile
a list of household representatives as
required by the MCPA Constitution
[18]
(as there was no list to that effect). This was done following
a legal opinion on the issue of quorum as raised by the Concerned
Group. DB Consulting simultaneously obtained household
resolutions to ratify the budget. Of the 117 households, 80
returned the resolutions and nominated household representatives and
ratified the budget, despite opposition from the Concerned
Group.
[19]
[31]
In answer to the applicants’ complaint
[20]
that the committee “misappropriated a portion of the R 1
million ex gratia payment donated by TransSun to the CPA members
and
portion of film royalties”
[21]
,
the first respondent explained in paragraph 81 of the answering
affidavit that:
“
The
applicants complain about the R 1 million
ex
gratia
payment from the Wild Coast
Sun. I do not understand their complaints. All payments
to beneficiaries were made equally.
The applicants benefitted
as little or as much as we did. The balance funded a
contribution for Lockhat’s administratively
taxing management
of the process of paying 117 households. The terms of the
payment appear from the letter annexed hereto
marked ‘
SM28’
”
.
[32]
The applicants further stated that annexure SM29, which is an
explanatory affidavit filed with
the Land Claims Court on behalf of
the Director-General, the Minister, the Chief and Regional Land
Claims Commissioners in an urgent
ex parte application brought by the
applicants in February 2019, is “unnecessary and irrelevant and
“must be struck
out”.
[22]
It will be noted, however, that the applicants stated in the founding
affidavit (under the heading “
FAILURE
OF DEPARTMENTAL INTERVENTION
”
[23]
)
that between the period October 2016 and July 2018, they approached
the Department, the Director-General, the Minister, the Chief
and
Regional Land Claims Commissioners for assistance, more particularly,
seeking intervention and the immediate disbandment of
the committee
and the election of new members. However, no assistance was
forthcoming. In answer to these allegations,
the respondents
attached the said explanatory affidavit, which sets out in detail
what steps had been taken by the Department in
order to resolve the
issues between the respective parties (including mediation attempts
and meetings with the different parties).
Clearly, the contents
of the explanatory affidavit are relevant to the adjudication of the
matter, as it shows that the applicants
had not been candid in
placing their version of events before the Court.
[33]
The allegations regarding the establishment of the MCPA
[24]
are common cause, as the essence of these facts have already been
canvassed in the founding affidavit. It was, therefore,
not
necessary to repeat it and is, accordingly, struck out.
[34]
However, the application to strike out the remainder of the
paragraphs in question is dismissed.
INTERIM
RELIEF
[35]
In
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
[25]
Moseneke
DCJ observed that:
“
The
High Court relied on the well known requirements for the grant of an
interim interdict set out in
Setlogelo
and
refined, 34 years later, in
Webster
.
The test requires that an applicant that claims an interim interdict
must establish (a) a prima facie right even if it is open
to some
doubt; (b) a reasonable apprehension of irreparable and imminent harm
to the right if an interdict is not granted; (c)
the balance of
convenience must favour the grant of the interdict and (d) the
applicant must have no other remedy.
”
[26]
(footnotes omitted)
[36]
The approach to be adopted in determining an applicant’s
entitlement to interim relief
in motion proceedings has been
expressed by Selikowitz J as follows in
Spur
Steak Ranches Ltd and Others v Saddles Steak Ranch, Claremont and
Another
[27]
:
“
In
determining whether or not the applicants crossed the threshold, the
right relied upon for a temporary interdict need not be
shown by a
balance of probabilities, it is enough if it is prima facie
established though open to some doubt.
The
proper approach is to take the facts set out by the applicants
together with any facts set out by the respondents, which the
applicants cannot dispute, and to consider whether having regard to
the inherent probabilities the applicants should, not could,
on those
facts obtain final relief at the trial.
It
is also necessary to repeat that although normally stated as a single
requirement, the requirement for a right prima facie established,
though open to some doubt, involves two stages. Once the prima facie
right has been assessed, that part of the requirement which
refers to
the doubt involves a further enquiry in terms whereof the Court looks
at the facts set up by the respondent in contradiction
of the
applicant’s case in order to see whether serious doubt is
thrown on the applicant’s case and if there is a mere
contradiction or unconvincing explanation, then the right will be
protected. Where, however, there is serious doubt then the applicant
cannot succeed. See
Webster v Mitchell
1948(1) SA 1186 (W) at 1189;
Gool v
Minister of Justice and Another
1955(2)
SA 682 (C) at 688.”
[37]
It needs to be added that the Constitutional Court cautioned in
National Treasury and Others v
Opposition to Urban Tolling Alliance and Others
that:
“
When
it evaluates where the balance of convenience rests, a court must
recognise that it is invited to restrain the exercise of
statutory
power within the exclusive terrain of the Executive or Legislative
branches of Government. It must assess carefully how
and to what
extent its interdict will disrupt executive or legislative functions
conferred by the law and thus whether its restraining
order will
implicate the tenet of division of powers. Whilst a court has the
power to grant a restraining order of that kind, it
does not readily
do so except when a proper and strong case has been made out for the
relief and, even so, only in the clearest
of cases.
A
court must carefully consider whether the grant of the temporary
restraining order pending a review will cut across or prevent
the
proper exercise of a power or duty that the law has vested in the
authority to be interdicted. Thus courts are obliged to recognise
and
assess the impact of temporary restraining orders when dealing with
those matters pertaining to the best application, operation
and
dissemination of public resources. What this means is that a court is
obliged to ask itself not whether an interim interdict
against an
authorised state functionary is competent but rather whether it is
constitutionally appropriate to grant the interdict.
”
[28]
THE
RELEVANT FACTS
[38]
In 1995, the Umgungundlovu community instituted a land claim in
respect of ancestral land situated
in the Bizana administrative
area. It is common cause that the Wild Coast Sun has been
operating a hotel, casino and golf
course on the land claimed.
As the claim was opposed, it ended up in the Land Claims Court, where
a settlement was eventually
reached. Pursuant to the settlement
agreement
[29]
, the MCPA was
established and registered in 2015 to “… acquire, hold
and manage the Properties …”
[30]
on behalf of its members.
[39]
It is, however, common cause that - what should have been a proud and
joyous occasion - was also
beset with internal strife amongst some of
the members of the community for a significant period of time.
Hence, it appears
from the founding affidavit that the Concerned
Group “… have long been disgruntled and therefore vocal
against the
current committee. As a direct consequence, a
long-standing squabble and stand-off resulted between the CPA
committee and
the Concerned Group, as early as 2015”
[31]
.
[40]
According to the applicants, the transactional account of the MCPA
was the most accessible and
that these funds had been mismanaged.
As their approaches to the Department and other officials met with no
success, they
obtained the aforementioned Rule Nisi in the Labour
Court, which order suspended with immediate effect payment of monthly
salaries
by the MCPA to its executive members, restrained and
interdicted the executive members from accessing and/or operating the
MCPA’s
bank accounts and directed the Director-General to take
over the management of the affairs of the MCPA until further notice.
(It is significant that the terms of the order are essentially the
same relief the applicants are seeking in this application.)
[41]
Pursuant to a reconsideration of the aforesaid order, the Labour
Court dismissed that application
on 2 May 2019. Very
importantly, according to the applicants, the parties then agreed
that the Department and the Director-General
would mediate the
dispute. It is again significant that the applicants omitted to
mention the fact that the Department did,
in fact, initially appoint
a mediator – an attorney, Ms Phakade – to mediate the
dispute. Ms Phakade was for
the first time introduced to the
beneficiaries at a meeting on 18 June 2019)
[32]
,
but her attempts to mediate the dispute appear to have been
unsuccessful. I mention this fact as indicative of and an
illustration
of the many instances where the applicants either
deliberately made false statements in their papers (for instance, the
Department
and the Director-General failed to intervene and the
latter’s failure or tardiness in the appointment of a mediator)
or failed
to mention crucial facts (namely, the convening and
facilitation of several meetings with the respective parties and the
households
by the Department
[33]
).
[42]
The applicants further alleged that on 4 May 2019, their attorneys
wrote to the Department and
the ninth respondent requesting that a
temporal moratorium be placed on the financial activities of the
MCPA, pending the mediation
process. However, nothing was
forthcoming.
[43]
Although the applicants alleged that the mediator was eventually
appointed in September 2019,
the respondents alleged that this was,
in fact, done in August 2019. This was not contested by the
applicants in the replying
affidavit.
[44]
According to the applicants, however, the committee did not
co-operate with the mediator, who
finalised the process on 29 January
2020 and compiled S3. It is also common cause that, apart from
the finding in respect
of Mr Tshutsha, the mediator made the
following further findings relevant to this matter:
44.1
That the allegations of “discrimination, isolation and
preferencing certain members of Mgungundlovu
CPA over other is a
direct contravention of the constitution”. It further
found that the “allegations are critical
and damning
allegations that display undemocratic practices which explicitly
transgress the constitution of the Mgungundlovu CPA.”
[34]
44.2
That the “door to door voting system adopted to approve the
budget is most certainly against the basic
principles of the
Mgungundlovu CPA constitution and
COMMUNAL PROPERTY ASSOCIATIONS ACT,
NO. 28 OF 1996
”
[35]
.
44.3
That: “
Any
benefit derived from the passing of the said budget in the
abovementioned circumstances by any member of the CPA members is
unjust enrichment and gives rise to ‘Improper Conduct’ as
envisaged in Clause 3.1.7 of the constitution”
[36]
.
(italics
appear in the original text)
44.4
That “any appointment of members from the CPA committee”
as trustees of the Mgungundlovu Development
Trust “certainly is
in contravention of the Trust Deed” and also constitute
“improper conduct”
[37]
.
[45]
The above findings constitute the principal allegations that are
levelled by the applicants against
the committee, as outlined when I
dealt with the striking application.
[46]
The mediator, therefore, recommended that:
“
1.
Immediate steps be taken to dissolve that uMgungundlovu CPA
Committee;
2.
Elections of a new uMgungundlovu CPA Committee be undertaken;
3.
Members of the current uMgungundlovu CPA Committee be disqualified
from standing
for any future elections”
[38]
.
[47]
The second respondent dealt with the applicants’ allegations in
a comprehensive manner.
In refuting these allegations, he
attached various documentation in support of the respondents’
version.
[48]
He alleged that the complex nature of the settlement agreement meant
that the implementation
thereof required specialist knowledge.
In proof of this allegation, a copy of the settlement agreement
[39]
was attached to the answering affidavit. This is undoubtedly
so, as not only are the amounts involved enormous (R50 million
rand
compensation, the restoration of vast tracts of valuable land to the
community, the lease of the portion of the land on which
the hotel is
situated to the Wild Coast Sun, the 28.4% shareholding in the Wild
Coast Sun and the development of the restored land),
but the
technical terms of the agreement most certainly required the
involvement of persons with, at least, appropriate experience
and
knowledge in the financial, legal and development field.
[49]
On the proposal of the Chief Land Claims Commissioner, the MCPA
recommended the appointment of
Vumelana Advisory Fund (“Vumelana”)
to the beneficiaries. According to the second respondent,
“Vumelana
specialises in transaction advisory services for
partnerships between communities and private investors”
[40]
.
Although the beneficiaries supported the appointment of Vumelana, Mr
Tshutsha and the treasurer, Ms Ntombizethu Tshutsha (“Ms
Tshutsha”), opposed this decision. The upshot of this
development was that, as a result of other complaints against
them,
the beneficiaries conducted a meeting on 2 November 2016, where it
was resolved to suspend the Tshutshas. A new executive
committee was also elected from the existing committee members.
[50]
This put paid to the mediator’s finding (and the applicants’
allegation) that Mr
Tshutsha had been removed in an undemocratic and
illegal manner. It also adversely impacts on some of the other
findings
made by the mediator.
[51]
On 29 September 2017, the MCPA convened a community meeting to
discuss the release of the Development
Funds (which funds were held
by the State) to the community, in accordance with the Settlement
Agreement. The appointment
of Lockhat, whose services had been
procured by the MCPA with the assistance of Vumelana, was also
approved by the community at
the same meeting. The Director of Legal
at the CLCC’s office, Mr Isaac Peter, was also invited to the
meeting.
[52]
To dispel the applicants’ allegations that the committee may
“squander” the
MCPA’s funds, the second respondent
sets out in detail how the Development Funds had been dealt with.
On the recommendation
of the Commission on Land Rights and in
accordance with a resolution taken by the community at the meeting of
29 September 2017,
R20 million was transferred into a long-term
investment account, which require three signatories for the funds to
be released (the
MCPA’s attorney, Mr Richard Spoor, Ms Funeka
Malusi, a Director at the Department and a committee member,
presently, the
second respondent). As at 31 May 2020, this
amount has grown to R22,681,842.57. On the advice of Lockhat,
the MCPA
invested R5 million in the Nedbank Money Trader account,
which amount is earning interest and has never utilised; and
R2 167 646.00
were to be utilised for operational expenses
in terms of a budget approved by the community. The committee,
however, does
not have a bank card to access these funds in the MCPA
account. In order to transact on this account, the MCPA issues
instructions
to the financial advisors to make payments on behalf of
the MCPA, which is done in accordance with the MCPA budget and
financial
control policies, and made under Lockhat’s
supervision.
[53]
Lockhat developed seven financial control policies
[41]
in consultation with the MCPA for the MCPA, which was approved by the
community on 1 December 2017. These financial control
policies
were also sent to the office of the Chief Land Claims Commission and
Regional Land Claims Commissioner for their input.
[54]
After a 10-month budget was developed with officials of Lockhat and
sent to the RLCC and CLCC
for their comment and input - which budget,
firstly, included provision for salaries for four members of the
committee for the
work they do (instead of the seating allowances as
envisaged in the financial control policies), secondly, retrospective
payments
for work done by committee members over the years (also not
provided for in the financial control policies) – a meeting was
held with Mr Imraan Lockhat, Yashrien Naidoo and Jayuri Naidoo (all
of them of Lockhat), Ms Malusi and Mr Thamsanqa Malusi (of
Richard
Spoor Incorporated). Two bankers from Nedbank and Investec also
attended the meeting on 25 April 2018. It was
then decided that
the budget should be presented to the community for approval.
[55]
A meeting was, accordingly, convened for this purpose on 18 May 2018,
with officials from the
RLCC and the CLCC also in attendance.
The members of the Concerned Group, who had been sent invitations by
the MCPA’s
attorneys, also attended the meeting. After
extensive debate, the budget was approved by a majority of the
community members.
The second respondent alleged that the
Concerned Group members became aggressive, complaining that the
meeting had not been quorate.
This is, however, denied by the
second respondent. In support of his denial, he attached the
attendance register
[42]
for
the meeting, which shows an attendance total of 138. This was
not disputed in the replying affidavit.
[56]
As a result of the applicants’ accusations of a lack of quorum
at the meeting, a legal
opinion was obtained, which identified “a
gap in the MCPA system in that we did not have a list of household
representatives”.
DLB Consulting was, therefore,
appointed to independently obtain household resolutions nominating
household representatives.
Despite opposition from the
Concerned Group, 80 out of the 117 households signed the resolutions,
who all nominated household representatives
and ratified the budget
(this is what was referred to as the “door-to-door voting
system”).
[57]
The second respondent furthermore alleged that the committee has
treated all beneficiaries equally
and that the applicant’s
allegations that members of the Concerned Group had been treated
unfairly and unequally are vague
and untrue. He also stated
that the constitution does not bar the appointment of committee
members to the Trust. He
also denied that the appointment of
committee members to Fireside was a breach of the committee’s
fiduciary duties or the
constitution. He added that “by
that stage, neither entity was in operation as both were superseded
by the MCPA”
[43]
.
[58]
He also denied that the committee refused to co-operate with the
mediator. He stated that
the committee simply asked the
mediator to first introduce themselves to the community, which
request they refused. As the
committee represent the community,
in addition to other grievances the committee had with the mediators,
efforts to cause the committee
to meet with the mediators were
unsuccessful.
EVALUATION
AND LEGAL PRINCIPLES
Prima
facie right
[59]
As alluded to under the striking out rubric, the applicants’
case is primarily based on
the mediation report. They,
consequently, argue that they have established a prima facie right to
compel the Director-General
to implement the mediators
recommendations, pending his final decision. It is, therefore,
noticeable from their papers that
they themselves do not provide any
evidentiary proof, other than the mediation report, in support of the
various allegations against
the committee members.
[59]
It is evident the mediation report that the mediators first met with
the Concerned Group on 16
September 2019, where reports to the
mediators concerning the history of the matter were made, including
the various allegations
that form the substance of the allegations
against the applicants. Apart from the mediators, eleven
persons attended the
first session (including the second and third
respondents, as well as Mr Tshutsha).
[60]
The second session was held with the MCPA committee members. It
is common cause that this
was unsuccessful, as the MCPA insisted on
the mediators first being introduced to the community, as well as
other issues.
As a general observation, whilst it might have
been appropriate for the mediators to first meet with the
representatives of the
respective groups, in my view, it could have
rendered the mediation process and outcome more acceptable and
credible if the mediators,
at least, had one session each with the
community members on whose behalf the Concerned Group and the MCPA
acted, respectively.
Hence, one is then faced with the scenario
where the Concerned Group “advised” the mediators that
they represented
59 to 60 households
[44]
,
whereas the respondents claim the contrary (which is not contested in
the replying affidavit). At the same time, the mediators
could
have been in a better position to source whatever information they
needed “from the horse’s mouth”.
Thus, in a
matter as the present, where the respondents, for instance, attached
attendance registers showing the actual number
of persons present at
meetings and signed resolutions (as in the case of the quorum issue),
it should not come as a surprise that
the latter trumps the vague
reports made by Concerned Group members to the mediators. As
matters stand, the mediation report
- in simple terms - merely
consists of information received from the Concerned Group, which
clearly has not been verified by the
mediators, if regard is had to
the documentation attached to the answering affidavit, which plainly
gives a contrary picture of
what is painted in the mediation report.
[61]
Although the fact that the Concerned Group represents a minority of
the members of the MCPA does
not deprive them of redress in terms of
both the MCPA’s constitution and the CPAA, it is worthwhile to
note that the respondents
state that:
“…
there
are roughly only 10 to 15 people that align themselves with the
concerned group (including the individuals mentioned in the
preceding
paragraphs). These people come from only three or four
households of the 117 beneficiary households. These
people
purport to represent a large number of the 117 household claimants.
That is not true. Tellingly, there is also
no evidence before
the Court to support this claim”.
[45]
[62]
The applicants did not present any evidence in this regard and
elected not to reply to these
allegations. The unfortunate
consequence thereof for the applicants is that the respondents’
contentions on this aspect
are, therefore, uncontested.
[63]
The second and third sessions with the Concerned Group were held on
23 October 2019 and 2 November
2019, which 16 and 28 persons
attended, respectively (again with no indication as to how many
households had been represented at
the sessions).
[64]
What is also striking, is that throughout the mediation report,
phrases along the lines of:
“it was brought to the
attention”, “the concerns that were raised”, “it
was reported”, “we
were provided with”, are
employed, without any indication as to the particular that had
furnished the information.
It is, therefore, not grounded in
fact and cannot be considered as evidence as required in applications
of this nature.
[65]
In
Quatermark
Investment v Mkhwanazi
[46]
,
the
Supreme Court of Appeal stated that:
“…
It
is trite that in motion proceedings affidavits fulfil the dual role
of pleadings and evidence. They serve to define not
only the
issues between the parties, but also to place the essential evidence
before the court. They must therefore contain
the factual
averments that are sufficient to support the cause of action or
defence sought to be made out. Furthermore, an
applicant must
raise the issues as well the evidence upon which it relies to
discharge the onus of proof resting on it, in the
founding
affidavit.”
[66]
In my view, the applicants wrongly construed and elevated the
“reports” and “concerns”
raised by members of
the Concerned Group to the status of evidence of maladministration,
improper conduct and misappropriation
of funds by the committee,
which it is not.
[67]
Furthermore, in
Bakgatla-Ba-Kgafela
Communal Property Association v Bakgatla-Ba-Kgafela Tribal Authority
and Others
[47]
,
Jaftha J made the following remarks regarding the role of a
Director-General in relation to Communal Property Associations:
“
[49] Once
registration is effected, the Director-General assumes other
responsibilities in respect of the registered association.
She
may inspect the affairs of the association to determine whether it
continues to comply with the Act and its constitution.
In
performing this function, the Director-General may demand to be
furnished with any relevant information. In carrying out
inspections, the Director-General may peruse and make copies of any
document relating to the affairs of an association and may
also
subpoena any person with relevant information. If a dispute
arises within an association, the Director-General must
hold an
enquiry or appoint a conciliator to assist in resolving the dispute.
She may even initiate proceedings to have an
association placed under
administration, if the association is unable to pay its debts.
The Director-General must help any
member of an association to
challenge the validity of transactions which do not comply with
section 12 of the Act.”
(footnotes omitted)
[68]
In an exhaustive analysis of the relevant sections of the CPAA and
Regulations, Hartle J stated
as follows in
Grootboom
and Others v Mkele and Others
[48]
:
“
[25] Perhaps
the most important role which the Department has in keeping oversight
of an association’s affairs is acting
when any dispute arises
within the body. The relevant provisions of the CPAA are set
out below and demonstrate the level
of involvement on its part under
the leadership of the Director-General. Firstly, conciliation by
skilled and credible officials
or organizations is offered as a tool
to assist community members with vested interests in an association’s
affairs to resolve
disputes. Section 10 provides in this
regard that:
‘
(10)
(1)…
(2)
The Director-General may, of his or her own accord or at the request
of a community,
an association, a provisional association or any
member thereof, appoint a conciliator acceptable to the parties to a
dispute to
assist in resolving any issues for the purpose of the
preparation or adoption of a constitution or to resolve a dispute
between
an association or provisional association and its members or
between members or committee members: Provided that if the parties
to
the dispute do not reach agreement on the person to be appointed, the
Director-General may appoint a person who has adequate
experience or
knowledge in conciliating community disputes.
(3)
A conciliator appointed in terms of
subsection (2) shall attempt to resolve the dispute
(a)
by mediating the dispute;
(b)
by fact-finding relevant to the resolution of the dispute;
(c)
by making a recommendation to the parties to the dispute;
(d)
in any other manner that he or she
considers appropriate.
(4)
The conciliator shall report to the Director-General and the parties
on the result
of his or her conciliation and make recommendations in
relation thereto.
(5)
All discussions taking place and all disclosures and submissions made
during the conciliation
process shall be privileged, unless the
parties agree to the contrary.
(6)
…
(7)
…
(8)
…’
[26] Secondly,
the Director-General may himself take certain steps to resolve
disputes, aiming to do so in accordance with
the provisions of the
relevant association’s constitution. Sections 11 (6) and
(7) provide as follows in this regard:
‘
(6)
If a dispute arises within an association or provisional association
the Director-General may,
of his or her own accord, or at the request
of a member of the association or provisional association-
(a)
undertake an enquiry into the activities of the association or
provisional association,
in which event he or she shall take
reasonable steps to ensure that interested parties are made aware of
the enquiry and of its
outcome;
(b)
advise the association or provisional association and the members of
their respective
rights and obligations;
(c)
make a conciliator contemplated in section 10(2) available to assist
in the resolution
of the dispute;
(d)
require the members to conduct an election for a new committee, if
the integrity, impartiality
or effectiveness of the committee or any
member of the committee is in question;
(e)
initiate proceedings contemplated in section 13; or take such other
reasonable measures
as he or she considers appropriate in the
circumstances.
(7)
When acting in terms of subsection (6) the Director-General shall be
guided by the
aim of resolving the dispute in accordance with the
provisions of the constitution of the association.’
[27] The
Director-General may also initiate proceedings to have an association
placed under his administration or place it
under liquidation where,
because of insolvency or maladministration or for any other cause the
association is unable to pay its
debts or meet its obligations, or
when it would otherwise be just and equitable in the circumstances to
seek such relief.
It would appear that the Director-General
might do so under circumstances where members are unable to resolve
disputes among themselves
or through the Department’s agency,
which drag on interminably, and result in the association not being
managed effectively.
[28] Finally,
the Director-General may help any member of an association to
challenge the validity of transactions which do
not comply with
section 12 of the CPAA.”
[69]
I have quoted at length in this judgment from
Grootboom,
as it clearly has a bearing on the
material issues in the present matter. The applicants wrongly
contended that:
“
The
director-general is bound by the factual findings contained in the
mediation report, and is not at liberty to simply ignore
them
because he does not agree with them. This is so because the
duty to mediate disputes between the Association and its
members is
that of the director-general and mediators appointed by him, hence
are the extension of his bureaucratic hand and act
on his behalf or
in his stand.”
[49]
[70]
Again, the answers to this contention are to be found in
Grootboom,
where the learned judge stated that:
“
[43] I
am not in agreement with the submission made on behalf of the
applicants that the general provision in section 10 (3)
(d) of the
CPAA, namely that the conciliator may attempt to resolve the dispute
“in any other manner that he or she considers
appropriate”
extends to or covers over Ms Goci purporting to “regularize”
the association as she did, however
well intentioned she might have
been in this regard. It is apparent from the
provisions of section 11 (6)
of the CPAA that the power of even the
Director-General himself is limited to
requiring
the members to conduct an election for a new committee
once
the integrity or impartiality or effectiveness of the committee or
any member of the committee is called into question.
“
[45] It
is worth mentioning incidentally that Isibane’s constitution
has its own unique provisions for the mediation
of disputes which
require such between members to be undertaken by a disciplinary
committee appointed by the committee and acting
as a mediator, and
between a member and the committee to be undertaken by members
elected at a general meeting to mediate the dispute.
Specific
complaints of the abuse of power or the transgression of the
constitution are to be addressed by a disciplinary committee
appointed by the committee which may be referred to the general
membership. If disputes and complaints cannot be resolved at either
of those levels then and only in that event are the parties entitled
to resort to outside mediation and, failing that, to litigation.
Although somewhat ambiguously stated in the constitution, aggrieved
members have the right to appeal (I suppose in the ordinary
context
of the word) to the Director-General and the court for “appropriate
relief and redress.” Finally, the costs
of any mediation will
be for the account of the parties to the dispute and will not be the
responsibility of Isibane.”
[46] Even
when constitutional resort may be had to conciliation in terms of the
CPAA, it is plain that this too follows a democratic
process which
respects the rights of both parties to the dispute. Although a
member may ostensibly have the decision of the
Director-General to
conciliate the dispute foisted on him in the sense that he or she may
not be in agreement that there is a dispute
or at least on the terms
complained of, that party is still entitled, for example, to be
involved in the choice of an appropriate
conciliator to be
appointed. The very concept of conciliation further requires the
conscious involvement of both parties in
the process who are
evidently not obliged to accept the possible outcome suggested to
them by the neutral third party conciliating
the issues between
them. The role of the conciliator is limited to
assisting
in
the resolution of the dispute in my view to the extent that the
parties are prepared to go along with his or her suggestions
regarding the manner in which the matter can be resolved.
Whilst the shunning of the advice given or possible resolution
of the
dispute may result in the Director-General seeking an order of court
placing the belabored association under his administration
or being
placed under liquidation if the particular malady (occasioned by the
dispute) constitutes the requisite basis for such
drastic action, a
party is certainly not obliged to adopt what is proposed to him or
her as an outcome. Axiomatically, the departmental
official tasked
with attempting to assist the parties to resolve a dispute cannot
make a binding decision in this regard.”
[71]
It follows that the mediation report is, therefore, not binding on
the Director-General.
While I am in agreement with the
applicants that the Director-General cannot simply ignore the
mediation report, he certainly did
not. He called for
comments. The applicants acted prematurely by bringing this
application without allowing the Director-General
to exercise his
powers and make an election as to which course to follow in terms of
the relevant provisions of the CPAA.
[72]
Having considered the papers and the facts holistically, I conclude
that the applicants have
failed to establish a prima facie right and,
as shown above, I, in any event, have serious doubts about the
veracity of the applicants
allegations against the committee members.
A
reasonable apprehension of irreparable and imminent harm to the right
if an interdict is not granted
[73]
The respondents have shown that with the financial controls in place,
there is little chance
(if any) of the funds being dissipated during
the period that the Director-General finalises the process of
resolving the dispute.
In any event, I accordingly find that
the applicants failed to prove this requirement as well.
The
balance of convenience
[74]
Insofar as the balance of convenience is concerned, it certainly
favours the course adopted by
the Director-General. In the
circumstances of this matter, I conclude that the granting of interim
relief will unduly interfere
with and prevent the proper exercise of
the powers of the Director-General, as contained in the legislation
and expounded in
Grootboom.
Suitable
alternative remedies
[75]
Prior to the launching of these proceedings, the Director-General had
already called for comments
on the mediation report to be submitted
by 15 June 2020. Various options are available to the
applicants in the scheme of
the CPAA. In my view, the
applicants should avail themselves of those remedies.
URGENCY
[76]
In order to provide a proper context for the issue of urgency, I
deemed it necessary to first
deal with all the issues
aforementioned.
[77]
On their own version, the applicants’ attorneys wrote to the
Department and the RLCC as
early as 4 May 2019 (prior to mediation
commencing) requesting “to put in place temporal moratorium on
the financial activities
of the CPA (by suspending payment of
salaries and remuneration to the executive members) pending the
outcome of the mediation process.
The Department flatly ignored
this request for temporal intervention.”
[50]
[78]
Having been advised on 3 February 2020 that the mediator had
completed his Mediation Outcome
Report and furnished it to the
Director-General, the applicants’ attorneys wrote to the
Director-General on 5 February 2020
requesting the latter to
immediately intervene in the financial affairs of the MCPA by
restraining access to the MCPA finances,
suspending payment of the
salaries and other remuneration, and dissolving the committee,
pending the Director-General’s decision
on the recommendations.
[79]
The applicants also requested the Department to stop the passing of
the latest budget on 31 January
2020, as this was purportedly in
disregard of the mediation process, but again with no success.
[80]
As justification for bringing this matter on an urgent basis, they
further alleged that they
only became aware that the mediator had
recommended the dissolution of the committee when they received the
report on 22 May 2020.
On 25 May 2020 they held a virtual
consultation with their legal representative and counsel “prepared
a Certificate of Urgency,
which he only finalised and sent on Friday,
29 May 2020.”
[51]
[81]
They submitted that it was not necessary to bring this application
prior to receiving the report,
as the Department had the powers and
authority to intervene and grant the required temporal relief.
However, the Department
failed to do so.
[82]
They further alleged that the majority of the members of the
Concerned Group are unemployed and
come from poor families, and
therefore did not have the necessary funds to cover the costs of
litigation. On the other hand,
the committee members use MCPA
funds in their legal battles and, furthermore, continue to draw
salaries and other benefits to the
prejudice of the MCPA and the
other beneficiaries. That they would not be able to obtain
substantial redress in due course
and that it was, accordingly, just
and equitable and in accordance with the principle of equity that the
relief be granted.
[83]
Interestingly, in support of their contention that there “is a
great likelihood that the
director-general will approve and follow
the mediator’s recommendations to dissolve the CPA
committee”
[52]
, the
applicants attached an email received from the Department that stated
that the Director-General had drafted an internal memorandum
to that
effect
[53]
. It
will be noted that it is not clear from the email (dated 28 May 2020)
what position the author thereof holds in
the Department and in what
capacity it had been sent. The said internal memorandum
furthermore refers to the MCPA being placed
under administration,
which course of action, in my view, may be open to a valid legal
challenge.
[84]
In the face of the fact that this matter has a long and protracted
history and that it is not
the first time that the applicants have
either brought an application of this nature or made requests to
relevant officials for
substantially the same relief as in the
present matter, the applicants submitted that they could only bring
the application once
they became aware of the mediators
recommendations.
[85]
Unfortunately, this contention was based on the wrong premise that
the mediation report was binding
on the Director-General. I
have already dealt with this contention. However, although I
was of the view that no urgency,
I decided to exercise my discretion
and hear the matter.
Conclusion
[86]
I am, accordingly, satisfied that the applicants have failed to make
out a case for the relief
sought in the notice of motion.
[87]
There is no reason why costs should not follow the event.
[88]
In the result an order in the following terms is issued:
1.
The application is dismissed with costs.
___________________________
J C
Coltman
Acting
Judge of the High Court
APPEARANCES
For
the applicants: Adv S Madikizela
Instructed
by:
B
Makade Attorneys, Mthatha
For
the 1
st
to 6
th
respondents: Adv M Sibanda
Instructed
by:
Potelwa
& Co, Mthatha
Dates
heard: 06 & 27/08/2020
Date
delivered: 28/01/2021
[1]
No.
28 of 1996.
[2]
(2614/2018)
[2018] ZAECGHC 117 20 November 2018, paras [19] – [25].
[3]
(1408/2015)
[2020] ZAECGHC 132 (1 December 2020).
[4]
Para
20.
[5]
Paras
22 – 28.
[6]
Paras
34 – 39 of Answering Affidavit (AA), pp 118 – 122 of
record.
[7]
Para
29 of Founding Affidavit (FA), p 14.
[8]
Para
30 of FA, p 14.
[9]
Para
31 of FA, p 15.
[10]
Sub-paras
31(a) – (d) of FA, p 15.
[11]
Paras
23 – 33 of AA, pp 114 – 118.
[12]
Annexure
“S3” to FA.
[13]
Para
31 of FA, p 15.
[14]
Para
46(a) of FA, p 20; See further S3, p 84, paras 3 and 4.
[15]
Paras
40 – 45 and para 76 of AA, pp 122 -127 and 143. See
further annexures SM5 and SM6, pp 230 to 235, which are
the
committee’s letters to Mr Tshutsha and another suspended
member, Ntombizethu Tshutsha, advising them of their suspension.
The attendance registers of the meeting which took the decision to
suspend them were attached to the letters.
[16]
Para
50.2 of AA, p 129.
[17]
Paras
46 – 64 of AA, pp 127 – 138.
[18]
See
clause 3.1.2 of the Constitution (Annexure “S1”).
[19]
Paras
65 – 80 of AA, pp 138 – 145.
[20]
Para
30(d) of AA, pp 14 – 15.
[21]
See
further Annexure SM28.
[22]
Para
65 of Replying Affidavit (RA), p 525.
[23]
Paras
32 and 33, p 16.
[24]
Paras
35 – 39 of AA, pp 118 – 122.
[25]
(CCT
38/12)
[2012] ZACC 18
;
2012 (6) SA 223
(CC);
2012 (11) BCLR 1148
(CC) (20 September 2012.
[26]
Para
41.
[27]
1996
(3) SA 706
(C) at 714E-F.
[28]
Paras
65 and 66.
[29]
Annexure
SM3 to AA, p 209.
[30]
See
Introduction in S1, p 34.
[31]
Para
29 of FA, p 14.
[32]
Para
88 of AA, p 147.
[33]
Para
(a) – (f) of SM29, pp 362 -363.
[34]
Para
2 of S3, p 87.
[35]
Para
2 of S3, p 88.
[36]
Para
3 of S3, p 88.
[37]
Paras
3 and 4 of S3, p 90.
[38]
Para
5 of S3, p 90.
[39]
Annexure
SM3 to AA, pp 209 – 227.
[40]
Subpara
41.2 of AA, p 123.
[41]
The
Reimbursive Expense and Allowance Policy, Office Use Policy, Petty
Cash Policy, Code of Conduct Policy, Committee Members
Remuneration
Policy (which deals with the fees payable per meeting to committee
members) , MCPA Procurement Policy and Procedures
Manual, and MCPA
Financial Recording Procedures (SM11 – SM17).
[42]
SM22,
pp 333 – 335.
[43]
Para
179 of AA, p 177.
[44]
Para
5 of S3, p 60.
[45]
Para
77 of AA, pp 143 – 144.
[46]
2014
(3) SA 96
(SCA) at para 13.
[47]
(CCT231/14)
[2015] ZACC 25
;
2015 (6) SA 32
(CC);
2015 (10) BCLR 1139
(CC) (20
August 2015), para [49].
[48]
(3922/2015)
[2016] ZAECPEHC 80 (27 September 2016), paras 25 – 28.
[49]
Para
86 of RA, p 530.
[50]
Para
65 of FA, p 26. See further para 42 of
[51]
Para
79 of AA, p 30.
[52]
Para
69, p 27.
[53]
S9,
p 100.