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[2020] ZALMPPHC 53
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Mashitiso and Another v Matome and Others (7634/2019) [2020] ZALMPPHC 53 (7 July 2020)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NUMBER: 7634/2019
In
the matter between:
MASHITISO
MALESELA WILLIAM
FIRST APPLICANT
MACHABAPHALA
COMMUNAL PROPERTY
SECOND APPLICANT
ASSOCIATION
and
MACHABAPHALA
OUPA MATOME
FIRST RESPONDENT
MACHABAPHALA
CHAROLINE
SECOND RESPONDENT
JACKY
KWETEPANE
THIRD RESPONDENT
FIRST
NATIONAL BANK LTD
FOURTH
RESPONDENT
MACHAKA
TRADITIONAL COUNCIL
FIFTH RESPONDENT
MINISTER
OF AGRICULTURE, LAND REFORM
SIXTH RESPONDENT
AND
RURAL DEVELOPMEN
JUDGEMENT
KGANYAGO
J
[1]
The first applicant acting on behalf of the second applicant brought
an urgent application
on
ex-parte
basis. The applicants are
seeking an interdict against the first, second and third respondents
(respondents). The second applicant
is a Community Property
Association. The applicants obtained an interim order with a
rule
nisi
issued on 8
th
November 2019 and varied on 26
th
November 2019. The respondents are opposing the applicants’
application and have raised several points
in limine
.
[2]
The applicants in their founding affidavit aver that Machabaphala
community has lodged
a successful land claim which resulted in the
formation of the second applicant. On formation of the second
applicant, the first
respondent was appointed as its chairperson,
second respondent its treasury and third respondent as its secretary.
The respondents
were tasked with the opening of a bank account for
the second applicant and also to be the signatories to that bank
account. According
to the applicants, the respondents did not manage
the bank account to the benefit of the members of the second
applicant.
[3]
The applicants aver that at a members meeting of the 3
rd
November 2019 which the respondents did not attend, the members took
a resolution to replace the entire executive of the second
applicant
comprising of the respondents with a new executive. The first
applicant was appointed as new chairperson, Malema Emely
Nakedi as
new treasury and Kwetepane Malesela Andries as new secretary general.
After their appointment they were mandated to appoint
a legal
practitioner who will approach the court and freeze the account of
the second applicant as the respondents were not accounting
to
beneficiaries and/or members of the second applicant.
[4]
The respondents in their answering affidavit have raised four points
in limine
being that of
locus standi
; lack of urgency;
non-notice; and non-compliance with Rule 6(4) and directive. When
this application was argued, the point
in limine
of lack of
urgency has been rendered
moot
and will therefore not be dealt
with.
[5]
With regard to the point
in limine
of
locus standi
, the
respondents have submitted that the first applicant lacks
locus
standi
to represent the second applicant. The grounds upon which
the respondents arguments are based are (i) that the first applicant
is
not member, nor a beneficiary of the second applicant; (ii) the
first applicant does not appear in the verified list; (iii) the
first
to third respondents are the leaders of the second applicant, and
although they are prohibited by the order of the 8
th
November 2019 from performing their duties, they were not removed
from their positions; (iv) that the first applicant has failed
to
attach a resolution authorising him to represent the second
applicant; (v) that the attendance register of the alleged meeting
of
the 3
rd
November 2019 attached to the applicants’
founding affidavit is fraudulent as the person mentioned in item 19
to have been
present at the meeting has passed away on 12
th
July 2018.
[6]
Regarding the non-notice point
in limine
, the respondents have
submitted that there were no grounds justifying why the applicants
have obtained the order in their absence.
With regard to the point
in
limine
of non-compliance with Rule 6(4) and directive, the
respondents have submitted that no grounds for non-compliance are set
out in
the founding affidavit, nor condonation was sought for
non-compliance.
[7]
Counsel for both parties have agreed to first argue the points
in
lmine
before the main application is heard. It is trite that in litigation
proceedings, the first thing to establish is the
locus
standi in iudicio
of the
litigant.
[8]
In
Four
Wheel Drive Accessory Distributors CC v Rattan NO
[1]
Schippers
JA said:
“
The
logical starting point is
locus
standi
–
whether in the circumstances the plaintiff had an interest in the
relief claimed, which entitled it to bring the action.
Generally, the
requirements for
locus
standi
are
these. The plaintiff must have an adequate interest in the subject
matter of the litigation, usually described as a direct interest
in
the relief sought; the interest must not be too remote; the interest
must be actual, not abstract or academic; and it must be
a current
interest and not a hypothetical one. The duty to allege and
prove
locus
standi
rests
on the party instituting the proceedings.”
[9]
Section 38 of the Constitution has introduced a departure from common
law in relation
to standing. It provides as follows:
“
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach
a court are-
(a)
anyone acting in their own interest;
(b)
anyone acting on behalf of another person who cannot act in their own
name;
(c)
anyone acting as a member of, or in the interest of, a group or class
of persons;
(d)
anyone acting in the public interest; and
(e)
an association acting in the interest of its members.”
[10]
On plain reading of section 38 of the Constitution, it is applicable
where a party is alleging
that a right in the Bill of Rights has been
infringed or threatened. In other words, ordinarily section 38 may be
invoked where
a challenge is based on a right in chapter 2 of the
Constitution.
[11]
In
Kruger
v President of the Republic of South Africa and Others
[2]
Skweyiya
J said
:
“
Section
38, however, is not of direct application in this case as it does not
concern a challenge based on a right in chapter 2
of the
Constitution. Nevertheless, in my view, we should adopt a generous
approach to standing in this case. In so doing, I am
mindful of the
fact that constitutional litigation is of particular importance in
our country where we have a large number of people
who have had scant
educational opportunities and who may not be aware of their rights.
Such an approach to standing will facilitate
the protection of the
Constitution.”
[12]
The applicants’ counsel in his heads of arguments has relied on
section 38 (c) and (e)
of the Constitution. However, the applicants’
papers did not show that their case concern a challenge based on a
right in
chapter 2 of the Constitution. The challenge based on
section 38 was raised for the first time in their heads of arguments.
The
applicants are therefore bound to stand and fall by their papers.
A case is made up in the founding affidavit and not in the heads
of
arguments. Section 38 (c) relates to where a party is acting as a
member, or in the interest of a group or class of persons,
whilst
section 38 (e) relates to an association acting in the interest of
its members.
[13]
In determining whether the first applicant has l
ocus
standi
to
represent the second applicant, it must first be determined with the
specific relief he has sought. (See
Polokwane
Taxi Association v Limpopo Permissions Board and Others
[3]
)
.
Part B of the applicants’ notice of motion read as follows:
“
1. Interdicting
the first, second and third respondent from withdrawing the funds of
the second applicant’s members held with
the fourth respondent
pending the finalization of this application (reg no: CPA14/1397/A);
2.
Ordering the fourth respondent to retain and/or preserve the funds in
favour of the second applicant pending the finalization
of this
application.
3.
That the following members of the second applicant be appointed:
3.3.1
Mashitisho Malesela William being appointed as the interim
chairperson pending the formal elections of the new
chairperson;
3.3.2
Malema Nakedi Emely being appointed as the treasury pending the
formal elections of the new treasury general;
3.3.3
Malesela Andries Kwetepane being appointed as the secretary general
pending the formal elections of the secretary general.
4.
Ordering the fourth respondent to provide the new interim executive
committee with three months bank statement of the second
applicant.”
[14]
The first applicant regards himself as a member of the second
applicant and also been duly mandated
to represent it and institute
the present application against the respondents. The respondents on
the other hand dispute that the
first applicant is a member or
beneficiary of the second applicant. Clause 2.2 of the constitution
of the second applicant defines
a member as follows:
“
Every person whose
name appears in a separate list of names of members which shall be
annexed to this constitution document and
shall form an integral part
hereof and any person admitted from time to time upon proof of
qualification as a member of the Association
in terms of the
constitution and in accordance with clause 15”
[15]
Clause 16 of the second applicants’ constitution read as
follows”
“
MEMBERSHIP
16.1 Membership of the
Association shall be reserved only for:-
16.1.1
People dispossessed of their lands rights on farms stated in clause
3;
16.1.2
People who proved to the satisfaction of the association that they
were dispossessed of their land right on farms stated
in clause 3, or
16.1.3
Is the direct descendant of such person or
16.1.4
Is the spouse of such a person, originally dispossessed persons;
16.1.5
Membership of the Association is based on household which are made up
of beneficiaries and spouses of the originally disposed
persons;
16.2
In the event of any dispute arising relating to membership, such a
dispute shall first be referred to the Department of Rural
Development and Land Reform for resolution in a manner that may deem
fit”
[16]
The respondents in their answering affidavit have attached a document
which they regard as verified
list of the second applicant’s
members and beneficiaries. The first applicant’s name does not
appear on that list.
In their replying affidavit the applicants did
not dispute the authenticity of the list, but have stated that the
list is not definite
and that some of the beneficiaries does not
appear on the list. The first applicant conceded that his name does
not appear on that
list, but that the names that appears on that list
are that of his mother.
[17]
With the concession made by the first applicant that his name does
not appear on the verified
list of the second applicant’s
members and beneficiaries, the first applicant was therefore not a
member of the second applicant
at the time of the institution of this
application as per clause 2.2 of the second applicant’s
constitution. It therefore
follows that his appointment as
chairperson on 3
rd
November 2019 was unlawful and invalid,
and of no force and effect as he was not eligible to be appointed as
such. As the first
applicant was not a member or beneficiary of the
second applicant, he therefore does not have any standing to
institute legal proceedings
on behalf of the second applicant.
[18]
The mere fact that the first applicant is not a member of the second
applicant does not mean
that he is precluded from instituting action
against the respondents. The first applicant’s mother is a
member and beneficiary
of the second applicant and that makes the
first applicant to have interest in the running of the affairs of
second applicant.
However, as long as he was not yet admitted as a
member of the second applicant, any action he intends to bring should
be in another
capacity and not purport to be acting on behalf of the
second applicant. If the first applicant was acting on behalf of his
mother
who might be due to other circumstances, incapacitated, it
should have been clearly stated in his founding affidavit and not
purport
to act on behalf of the second applicant. The applicants’
application is not based on a challenge to a right in chapter 2
of
the Constitution, and therefore section 38 is not applicable.
[19]
Under the circumstances the respondents point
in limine
of
locus standi
has merit and stand to be upheld. Since this
point
in limine
disposes the whole matter there is no need to
deal with the remainder of the respondents’ point
in limine
.
Had the court on 8
th
and 26
th
November 2019
been made aware of these facts, the interim order would not have been
granted.
[20]
In the results I make the following order:
20.1 The respondents’
point
in
limine
of
locus
standi
is upheld.
20.2
The interim relief granted on 8
th
and 26
th
November 2019 is discharged.
20.3
The application for an interim relief is dismissed with costs on
party and party scale.
MF. KGANYAGO J
JUDGE OF HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCE:
COUNSEL
FOR THE APPLICANT
: Adv. TD Sibiya
INSTRUCTED
BY
: Adv TD Sibiya
COUNSEL
FOR
1
ST, 2ND
&
3
RD
RESPONDENTS
: Mr Chidi
INSTRUCTED
BY
: Chidi Attorneys
DATE
OF HEARING
:11 June 2020
DATE
OF JUDGEMENT
: 7
TH
JULY 2020
[1]
[2018] ZACSA 124;
2019 (3) SA 451
(SCA) (26 September 2018) at para 7
[2]
[2008] ZACC 17
;
2009 (1) SA 417
(CC) at 428 C-D
[3]
[2017] ZASCA 44
(30 March 2017)