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[2019] ZALMPPHC 53
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Balule Nature Reserve v Hoedspruit Farming Estates (Pty) Limited and Others (1698/2019) [2019] ZALMPPHC 53 (22 November 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO THE JUDGES: YES/
NO
(3)
REVISED.
CASE
NO: 1698/2019
22/11/2019
In the matter between:
BALULE NATURE RESERVE
APPLICANT
and
HOEDSPRUIT FARMING
ESTATES (PTY) LIMITED
FIRST RESPONDENT
REGISTRATION NUMBER:
1968/007275/07
OLIFANTS WEST NATURE
RESERVE
SECOND RESPONDENT
YORK NATURE
RESERVE
THIRD RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
In this application the Applicant seeks an order that:
1.1.
The First Respondent be ordered to forthwith erect the boundry game
fence that it removed between York 7
(First Respondent’s farm)
and the Second Respondent, approximately in extent of 550 meters;
1.2.
The First Respondent be ordered to forthwith re-erect the boundary
game fence that it removed between York
7 and the Third Respondent,
approximately in the extent of 420 meters;
1.3.
The First Respondent be ordered to re-erect the fences referred to
supra
in the same position that they were in prior to the
First Respondent removal thereof.
1.4.
The First Respondent be ordered to pay the costs of the application.
Dramatis
Personae
[2]
The following parties play a role in this application which is
opposed by the First Respondent:
2.1.
The Applicant, BALULE NATURE RESERVE (“Balule”) is a duly
established and constituted voluntary
association, forming a body
corporate of member private nature reserves, among others the Second
Respondent and the Third Respondent
and it is a member of the
Associated Private Nature Reserves by agreement with the Kruger
National Park. The member private reserves,
albeit owned by different
owners, form a single reserve known as Bahule.
2.2.
The First Respondent, HOEDSPRUIT FARMING ESTATE (PTY) LTD (“HFE”)
owns certain land known as
Portion 7 (A Portion of Portion 2) of the
Farm No. 188 Registration Division KT Limpopo Province (“York
7”).
2.3.
Both the Second Respondent, OLIFANTS WEST NATURE RESERVE (“OWNR”)
and the Third Respondent, YORK
NATURE RESERVE (“YNR”) are
duly established and constituted voluntary associations of members
who individually own
private nature reserves as regional associations
within the greater Balule. Both these nature reserves are members of
Bahule.
2.4.
Until 4 December 2018 there was a boundary fence between York 7 and
OWNR and YNR, when the Applicant (HFE)
removed same.
Common
Cause Facts
[3]
The following facts are either common cause or not disputed:
3.1.
Balule is a duly established and constituted voluntary association
forming a body corporate of member private
reserves and a member of
the Associated Private Nature Reserves by agreement with the Kruger
National Park.
3.2.
Both the OWNR and the YNR are duly established and constituted
voluntary associations of members who individually
own private nature
reserves within the greater Balule.
3.3.
Each of Balule, OWNR and YNR have their own constitutions governing
or regulating their affairs. OWNR and
YNR are regional associations
affiliated to Balule.
3.4.
HFE is the owner of York 7 and is neither a member of OWNR nor YNR.
York 7 shares a common boundary with
OWNR and YNR.
3.5.
HFE removed the common boundary fence (approximately 550 meters on
the OWNR southern boundary and approximately
420 meters on the YNR
and York 7 boundary) in 4 December 2018. Neither Balule nor OWNR nor
YNR gave any permission for the removal
of the said fence.
Relief
sought by Balule
[4]
The Applicant, Balule avers from its founding affidavit that its
application is a
mandament van spolie
, premised on the basis
that OWNR and YNR, as members of Balule and accordingly Balule, were
in the peaceful and undisturbed possession
of the boundary fence and
that HFE unlawfully dispossessed them. It avers further that the
removal of a fence without a Court order
or the permission of the
possessor constitutes spoliation.
In
this regard Counsel for the Applicant relied on the unreported
decision of the Western Cape High Court in
Smuts v Benson &
Others (A356/2014, 10989/2014)
[2014] ZAWCHC 168
(12 November 2014)
.
Issues
for Determination or Adjudication
[5]
This Court must adjudge whether Balule is entitled to the relief
claimed in the notice of motion.
[6]
HFE has raised the following points
in
limine
:
6.1.
It is disputed that Ms Haussmann, the deponent to the founding
affidavit, has the required approval and authority
of Bahule to
approach the Court on behalf of Bahule.
6.2.
Bahule has not made out a case that it has to deal with matters of
fencing, especially regarding the erecting
or maintenance of fences
(as same falls within the ambit of regional associations) or fences
erected between two privately owned
properties.
Points
in Limine
[7]
In the founding affidavit, Ms Sharon Haussmann, the deponent, stated
that:
“
1.2.
I am the Chairperson of the Applicant’s duly elected Management
Committee and the facts deposed to herein
are within my personal
knowledge and belief and are both true and correct. I am duly
authorised to depose to this affidavit on
behalf of the Applicant”.
[8]
It is common cause that a copy of the resolution adopted by the
Management Committee of the Applicant
authorizing the deponent as
alleged was not attached to the founding affidavit. No such
resolution was produced in the replying
affidavit or at the hearing
of this application.
[9]
HFE raised a point
in limine
with regard to the required
approval and authority of Ms Haussmann to approach the Court on
behalf of Balule. For the sake of convenience
I quote verbatim
paragraph 3 of HFE answering affidavit:
“
3…….
3.1.
Firstly, it is disputed that Ms Haussmann has the required approval
and authority to approach the court on
behalf of Balule. A notice in
terms of rule 7 has been served on Balule’s attorney in this
regard. Once a response to this
notice has been received, I will
further deal with this issue. Insofar as it may be required, I
reserve the right to file a further
affidavit in order for me to deal
with Ms Haussmann’s authority and that of Balule to act, or the
lack thereof;
3.2.
Secondly, whilst it is accepted that Balule has the required legal
standing to launch court proceedings in
terms of its constitution, it
has not made out a case affording it the required authority to deal
with matters of fencing. It is
also not a landowner, owning property
adjacent to that of Hoedspruit Farming. The above involves two
distinct questions: -
3.2.1.
One, as far as I am aware, Balule’s constitution does not, as
part of the powers of the association, provide for the
erection or
maintenance of fences. This, on my understanding, is a matter that
either falls in the ambit of those regional associations
who are
members of Balule in so far as their constitutions empower the
associations to do so or neighbouring property owners who
are members
of the regional associations viz-a-viz their common law rights. I
propose to hereinbelow give the court a full exposition,
together
with an organogram, of the different entities and associations which
come into play.
3.2.2.
Two, even if Balule’s constitution does provide for the
erection or maintenance of fences, which it does not, or should
it
otherwise authorize Balule to deal with fencing matters, then Balule
still has no say regarding fences erected between two privately
owned
properties. Its powers and jurisdiction, if it has any, is limited to
the outside perimeter fences of the reserve. I propose
to demonstrate
below that Hoedspruit Farming’s property falls squarely within
the boundaries of the Balule reserve. It is
not situated on the
boundary of the reserve, nor is any of its perimeter fences a
perimeter fence to the reserve.”
[10]
In reply to the above challenge on the authority of Ms Haussmann to
approach the Court on behalf of Bahule,
the deponent stated:
“
ADD
PARA 3
3.1.
I am the duly elected Chairperson of the Applicant’s Management
Committee. As such, I am certainly
authorised to dispose to an
affidavit on its behalf. I carry the full support of the Committee in
doing so.
Paragraph
12.12 of the Applicant’s constitution provides that:
“
The
Chairman of the CONSTITUTION (sic) or such other COMMITTEE member as
the COMMITTEE may nominate, shall be the duly authorised
representative of the “ASSOCIATION” in any legal
proceedings brought by or against the Association.
“
ASSOCIATION”
is defined in the Applicant’s Constitution as being the Balule
Nature Reserve.”
[11]
The deponent to the founding affidavit, Ms Haussmann, still did not
attach a copy of the resolution authorizing
her to act on behalf of
Balule in her replying affidavit. It is appropriate at this juncture
to state the following clauses in
the Constitution of Balule:
“
12.9.
Any resolution of the COMMITTEE shall be passed by a two
thirds
majority
of votes.
12.10.
A signed resolution of the COMMITTEE passed by a two thirds
majority
of votes shall be as effective and valid as if it had been passed
by
a meeting of the COMMITTEE.”
I
may mention that it is not known whether the authority allegedly
given to Ms Haussmann is in terms of a resolution that complies
with
the above provisions of the Balule Constitution.
[12]
The law regarding the authority of a representative of a company or
voluntary association to represent such
corporate body is clear in
the light of the decided cases referred to hereunder.
[13]
In
Griffiths
& Inglis (Pty) Ltd v Southern Cape Blasters (Pty) Ltd
[1]
,
and
in an application by a company the respondent took an objection
in
limine
that
there was no proper proof before Court that the application had been
duly authorised by the applicant.
The
applicant contended that it was implied in the affidavit of the
managing director who was also the majority shareholder. The
Court
rejected the contention by the applicant and upheld the point
in
limine
to
the effect that there was no proper proof that the application had
been duly authorised. Corbett J (as he then was) said the
following
at page 252 F
“
In
the present case the founding affidavit makes no express mention of
authorization by the Company acting through its board of
directors.
The question of authority has been challenged in the opposing
affidavit, and thus the onus is upon the applicant to
show that the
application has been authorised by the directors of the Company. In
as much as no contrary evidence had been placed
before the Court by
the respondent, the “minimum of evidence” to use the
words of Watermeyer J in Mall’s case
will suffice.”
[14]
The leaned judge went on to raise some unanswered questions at page
255G-H, to come to a conclusion that
the proceedings by the applicant
were not authorised:
“
If,
as seems possible, no formal resolution of the board of directors was
taken, then in what way was this application authorised?
And,
if the board did purport to authorize the application in some manner
other than by formal resolution, was such manner of authorization
in
accordance with the constitution of the applicant?”
The
leaned Judge concluded that simply to aver that directors have
authorised an application amounts to an assertion of a legal
conclusion rather than a factual allegation.
[15]
In the case of
Mall
(Cape) (Pty) Ltd v Merino Ko-operative Bpk
[2]
the question as to the proof required of authority to institute legal
proceedings on behalf of an artificial person such as a company
was
fully considered by Watermeyer J, who stated the position as follows
at pp 351-352:
“
I
proceed now to consider the case of an artificial person, like a
company or co-operative society. In such a case there is judicial
precedent for holding that objection may be taken if there is nothing
before Court to show that the applicant has duly authorised
the
institution of notice of motion proceedings. (see for example Royal
Worcester Corset Co. v Kesler’s Stores,
1927 C.P.D. 143
;
Langeberg Ko-operasie Beperk v Folscher and Another,
1950 (2) S.A.
618
(C)). Unlike an individual, an artificial person can only
function through its agents and it can only take decisions by the
passing
of resolution in the manner provided by its constitution. An
attorney instructed to commence notice of motion proceedings by, say,
the secretary or general manager of a company would not necessarily
know whether the company had resolved to do so, nor whether
the
necessary formalities had been complied with in regard to the passing
of the resolution. It seems to me, therefore, that in
the case of an
artificial person there is more room for mistakes to occur and less
reason to presume that it is properly before
the Court or that
proceedings which purport to be brought in its name have in fact been
authorised by it. There is a considerable
amount of authority for the
proposition that, where a company commences proceedings by way of
petition, it must appear that the
person who makes the petition on
behalf of the company is duly authorised by the company to do so (see
for example Lurie Brothers
Ltd v Archache,
1927 N.P.D 139
, and the
other cases mentioned in Herbstein and van Winsen, Civil Practice of
the Superior Courts in South Africa, at pp. 37, 38).
This seems to me
to be a salutary rule and one which should apply also to notice of
motion proceedings where the applicant is an
artificial person. In
such cases some evidence should be placed before the Court to show
that the applicant has duly resolved to
institute the proceedings and
that the proceedings are instituted at its instance. Unlike the case
of an individual, the mere signature
of the notice of motion by an
attorney and the fact that the proceedings purport to be evidence
that the proceedings have been
properly authorised would be provided
by an affidavit made by an official of the company annexing a copy of
the resolution but
I do not consider that form of proof is necessary
in every case. Each case must be considered on its own merits and the
Court must
decide whether enough has been placed before it to warrant
the conclusion that it is the applicant which is litigating and not
some unauthorized person on its behalf. Where, as in the present
case, the respondent has offered no evidence at all to suggest
that
the applicant is not properly before Court, then I consider that a
minimum evidence will be required from the applicant (cf.
Parons v
Barkly East Municipality, supra; Thelma Court Flats (Pty) v McSwigin,
1954 (3) S.A 457
(C)).
”
[16]
The decision in
Mall
was referred to with approval by Ogilve Thompson JA (as he then was)
in the case of
Pretoria
City Council v Meerlust Investments Ltd
[3]
at page 325, where the learned Judge of Appeal stated the following:
“
The
question of authority having been raised, the onus is on the
petitioner to show that the prosecution of the appeal in this Court
has been duly authorised by the Council: that it is the Council which
is prosecuting the appeal and not some unauthorized person
on its
behalf. (cf Mall (Cape) (Pty) Ltd v Merino
Ko-operasi
Bpk
1957 (2) SA 347
(C) at pp 351-2). As was pointed out in that
case, since an artificial person, unlike an individual, can only
function through
its agents, and can only take decisions by the
passing of the resolutions in the manner prescribed by its
constitution, less reason
exists to assume, from the mere fact the
proceedings have been brought in its name, that those proceedings
have in fact been authorised
by the artificial person concerned. In
order to discharge the above-mentioned onus, the petitioner ought to
have placed before
this Court an appropriately worded resolution of
the Council”.
[17]
In the present case the deponent to the founding affidavit (Ms
Haussmann) failed to produce a resolution
passed by the Management
Committee of Balule to the effect that she is authorised to institute
legal proceedings on behalf of the
voluntary association, being
Balule. In terms of the constitution of Balule such resolution has to
be passed or adopted by a two
third majority of members.
In
the circumstance I make a finding that Ms Haussmann was not duly
authorised to act on behalf of Balule in this application.
[18]
Counsel for the Applicant (Balule) argued that the point
in limine
raised by HFE is unmeritorious for the following reason:
In
application proceedings it is the institution of the proceedings and
the prosecution thereof which must be authorised and it
is irrelevant
whether the deponent has been authorised to depose to the founding
affidavit. Reference in this regard was made to
the case of
Ganes
v Telkom Namibia
[4]
.
The principle laid down in
Ganes
is that a deponent to an affidavit in motion proceedings need not be
authorised by the party concerned to depose to the affidavit.
That it
is the institution of the proceedings and the prosecution thereof
which must be authorised
[5]
.
[19]
I agree that the deponent to an affidavit in motion proceedings need
not be authorised by the party concerned
to depose to the affidavit.
This is so because such a deponent is in a position of a witness and
act as such in the proceedings.
A witness need not be authorised to
give evidence in a case.
In
the present case it would mean that Ms Haussmann need not be
authorised to depose to her affidavit. However the crux of the matter
in the present case is that the Management Committee of Balule did
not pass or adopt a resolution authorizing the Court proceedings
and
appointing Ms Haussmann to act on behalf of Balule in such Court
proceedings. Needless to say that no resolution was attached
to the
founding affidavit. In the circumstances I still maintain that the
point
in limine
of lack of authority on the part of Ms
Hanssmann was well taken as she was not authorised to prosecute the
institution of the present
application.
[20]
The second point
in
limine
raised
by HFE is that Balule has not made out a case that it has to deal
with matters of fencing as same falls within the ambit
of the
regional associations, for example OWNR and YNR.
This
point
in
limine
was raised by HFE in paragraph 3.2 of its answering affidavit. In the
replying affidavit Balule did not deal with or reply to the
allegations put forward by HFE. The allegations will accordingly
remain as uncontested and this Court will make a determination
in
this regard.
[21]
On the basis of these uncontested facts I am of the view that the
Applicant (Balule) has failed to set out
a cause of action in its
application. HFE is neither a member of OWNR (Second Respondent) or
YNR (Third Respondent) nor is it a
member of the Applicant (Balule).
Accordingly and for as long as HFE is not a member of one of the
regional associations, neither
of these associations, nor Balule,
have any jurisdiction or say over HFE or its property
[6]
.
Such rights, as they may have, will only come into existence once NFE
becomes a member of these associations.
NFE
is not bound by any of the aforementioned parties’
constitutions. The removal of boundary fences or internal fences on
HFE’s property remains a private matter between HFE and its
neighbours. Balule has, accordingly failed to set out a cause
of
action in this application.
[22]
The two points
in
limine
raised by the First Respondent (HFE) are upheld and the application
is dismissed with costs, such costs to include the costs consequent
upon the employment of two Counsel.
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 13
November 2019
Judgment
delivered on
: 22 November 2019
For
the Applicant
: Adv. D B du
Preez SC
Adv.
P J de Necker
Instructed
: WDT
Attorneys
c/o
Kampherbeek & Pogrund Attorneys
For
the 1
st
, 2
nd
& 3
th
Respondents : Adv. R Stockwell SC
Adv
W C Carstens
Instructed
by
: Askingon
Attorneys
c/o
Steytler Nel & Partners
[1]
1972 (4) SA 249 (CPD)
[2]
1957 (2) SA 347 (CPD)
[3]
1962 (1) SA 321
(AD) at page 325
[4]
2004 (3) SA 615 (SCA) 624 G-J
[5]
See also Eskom v Soweto City Council
1992 (2) SA 703
(W) at 705C-J
[6]
See Rowles v Jockey Club of SA and Others
1954 (1) SA 363
(A) at
364C; Herbex v Advertising Standards Authority
2016 (5) SA 557
(GJ)
para [25] to [29] at 565B-H; Mount Edgecombe Country Club Estate v
Singh
2019 (4) SA 471
(SCA) para [9] at 479G-H and para [20] to [25]
at 480/1.