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[2019] ZAGPPHC 201
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Mathebula and Others v Nwandlamhari Communal Property Association and Others (90356/16) [2019] ZAGPPHC 201 (9 May 2019)
IN THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURTOF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
YES
CASE
NO: 90356/16
9/5/2019
WELLINGTON
ZAMANI MATHEBULA
1
ST
APPLICANT
RICHARD
MANGALISO NGOMANE
2
ND
APPLICANT
SURPRISE
WELCOME NTIMANE
3
RD
APPLICANT
KAIZER
MESHACK KHUMALO
4
TH
APPLICANT
SIPHO
ORANCE
MKHWANAZI
5
TH
APPLICANT
FRANKSOLLY
MBUNGELA
6
TH
APPLICANT
RULANI
HARRIET
MAWELA
7
TH
APPLICANT
THUYANI
SOUL DLAMINI
8
TH
APPLICANT
And
THE
NWANDLAMHARI COMMUNAL
PROPERTY
ASSOCIATION
1
ST
RESPONDENT
THE
MINISTER OF RURAL DEVELOPMENT
AND
LAND REFORM
2
ND
RESPONDENT
THE
DIRECTOR GENERAL FOR
THE
DEPARTMEN OF RURAL
3
RD
RESPONDENT
DEVELOPMENT
AND LAND REFORM
THE
CHI EF LAND CLAIMS
COMISSIONER
4
TH
RESPONDENT
REGIONAL
LAND CLAIMS COMMISSIONER
MPUMALANGA
PROVINCE
5
TH
RESPONDENT
GILFILLIAN
DU PLESSIS INC ATIORNEYS
6
TH
RESPONDENT
JUDGMENT
KHUMALO J
[1]
The Applicants are a group of individuals that contend to be part of
the claimant
beneficiaries from the communities of Mhlanganisweni and
Mavhuraka who in 2013 successfully lodged claims in terms of the
Restitution of Land Rights Act 22 of 1994
over land in around the
Sabie Sand Region, Ehlanzeni District Municipality, in Mpumalanga,
historically known to indigenous owners
by the name of Nwandlamharhi.
The two communities jointly adopted a Constitution in terms of which
they jointly created in accordance
with the provisions of s 8 (3) of
the Communal Property Associations Act 28 of 1996 ("the Act"),
a legal entity namely
the N'wandlamhari Communal Property Association
(NCPA) through which all the claimant beneficiaries were members and
all the restored
land claimed in the area historically known as the
Nwandlamharhi, was to be received, held, owned and managed for the
benefit of
the claimant beneficiaries and for their future
generations. The NCPA therefore holds the property for the benefit of
these communities.
[2]
In terms of clause 9 of the NCPA adopted Constitution, the initial
properties were
to be restored to the claimants subject to the
present use of the land as an eco-tourism destination, that includes
the Mala Mala
Game Reserve. The land was therefore not to be used
directly by the members of the association. The benefits derived from
such
ownership
was to be distributed equally or be used in
projects that benefit their members equally.
The rights of
members to be exercised subject to the land use rules and
distribution policies as determined by the NCPA in general
meetings from time to time.
[3]
Members of the Association were to be
dealt with in such a manner as
to
ensure that all members receive the same or similar benefits and that
any arbitrary distinction or unfair discrimination shall
be avoided;
see clause 7.3 .
[4]
Distribution of funds for community
projects, bursaries or any other valid cause were to be made strictly
in terms of written policies
approved by the general meeting,
and
were to contain provisions that promote substantive equality; see
clause 7.5
[5]
The management and operation of the
affairs of the NCPA was to be effected by or conferred on the
Executive Committee (EC) subject
to the provisions of the adopted
Constitution.
[6]
The Applicants are bringing this
application
under s 13 (1) of the Act
in their own individual interest as
member beneficiaries of the NCPA, against the
NCPA,
the
1
st
Respondent, citing also the Minister of Rural Development and Land
Reform as the 2n d Respondent (referred to as "t he Minister"
or "the Department"), the
Director
General for the Department of Rural Development and Land Reform ("DG"
or Director General")
as the
3
rd
Respondent, the Chief Land Claims Commissioner
("The
Chief LCC")
as the 4th
Respondent, the Regional Land Claims Commissioner Mpumalanga Province
("The RLCC")
as
the 5
th
Respondent and Gillian Du Plessis Incorporated, the attorney who
acted for these communities in their settled land claims, who
is
alleged to be
still holding the NCPA
funds in her Trust Account cited
as
the 6
th
Respondent
('The attorney").
They are seeking relief from the
court in the following order:
[6.1] that the
NCPA is
placed under the administration
of the Director General;
[6.2] The NCPA be and is
hereby ordered to submit all documents in their possession including
financial records to the Director
General, within 5 days of the order
of this court;
[6.3] The Director General
be and is
hereby ordered to
institute a forensic
investigation (fact finding mission) into the affairs of
the NCPA within 30 days of the order of the Court; clause 22.4
[6.4]
The Director
General be and is hereby directed
to undertake and complete
the functions of the NCPA.
The functions should include the
conclusion of the
verification of all beneficiaries and
distribution of financial statements to the Applicants. (the verified
beneficiaries)
[6.5] The Director General
should
conduct an investigation regarding the dispute between the
beneficiaries and the executive members
of the NCPA. The
investigation should be concluded within 6 months of the order of
this court;
[6.6]
a progress report
on the (forensic) investigation compiled by the Director General
should be filed with this court and served on
the Applicants within 3
months
of the order of this court.
[6.7] That a final report
compiled by the Director General should be finalised with this court
and served on the Applicants
within 6 months of the order of this
court.
[6.8] The Applicants shall
be entitled to file their response to the final report compiled by
the Director General within
one month after it has been served upon
the Applicants.
[6.9] That the
Director General
should assist the beneficiaries of the NCPA to
prepare for the Annual General Meeting and the elections of the new
executive members
of the NCPA;
[6.10]
That the NCPA should be released from the administration
of the
Director General once the Director General and the beneficiaries of
the NCPA are of the opinion that the NCPA is in a state
of good
order.
[6.11]
That the 6
th
Respondent be and is hereby ordered to
furnish records of the NCPA's monies held in their Trust Account to
the Director General
within 30 days from the order of this
Honourable Court;
[6.12]
That the 5
th
Respondent be and is hereby interdicted from
releasing any monies that belong to the NCPA which are held in their
Trust Account
with immediate effect. *The money that is there is to
cover fees
[6.13]
That the Director General
will give direction as to all monies to
be received on behalf of the NCPA
from the date of the order of
this Honourable Court. *
[6.14]
The NCPA to pay the costs of this Application.
[6.15]
That anyone of the Respondents that opposes the Application
should be
ordered to pay the costs on an attorney and own client scale together
with the NCPA, jointly and severally, the one paying
the other to be
absolved.
[7]
No order is sought against the
2
nd
, 4
th
,
and
5
th
Respondents that is,
the
Minister, the Chief LCC as well as the Regional LCC.
They
are said to be cited only because of the interest they might have in
the relief sought. The matter was initially opposed by
the 1
st
and 3
rd
Respondent. However only the 1
st
Respondent has filed papers in opposition.
[8]
The Applicants have all together signed
a resolution under the auspices of the concerned group committee of 8
in terms of which
the 1
st
Applicant, Zamani Mathebula, is authorised to depose to the Founding
Affidavit on behalf of the other 7 Applicants. The group alleges
to
also bring this Application in their own individual interests as
beneficiaries of Nwandlamhari CPA in terms of s 38 (c) and
(d) of the
Constitution. Whilst claimant beneficiaries of the land Nwandlamwhari
consists of more than nine hundred (900) people.
[9]
The basis of the Applicants' Application
is stated to be that the NCPA Executive Committee (EC) has failed to
follow the provisions
of the NCPA Constitution in that in 2015, there
(3) members of the EC were removed
unlawfully and more than 20 months after the removal, the removed
members have not been replaced,
which has resulted
in
a conflict
amongst the beneficiaries
and the EC members
and sown division
and alienated the beneficiaries of the NCPA; as a result of that:
[9.1] Meetings of
beneficiaries called by the EC are poorly attended as the
beneficiaries have lost interest and confidence
in the EC.
Due to
lack of obtaining the requisite quorums the decisions that the EC
have taken are not binding.
There is a high tension within
members and the beneficiaries that might possibly result in
bloodshed.
[9.2]
The EC have
since their election to the office in 2013 failed to complete their
task of verifying the beneficiaries annually.
[9.3] The EC have not
complied with the prov1s1ons of
clause 7.3
of the Constitution
in that they have been
distributing the funds to a few verified
beneficiaries of the NCPA at the expense of the majority of the other
beneficiaries who
are yet to be verified.
Some members who had
been verified but seem to be sympathising with the concerned group
have not received any distributions . They
are said to have been told
in no uncertain terms by the Treasurer to go and collect their
distributions from the concerned group.
[9.4] It is also not
clear where the funds are distributed from and the basis of those
distributions, as according to
their knowledge
the NCPA does not
have a bank account. The EC has failed to ensure, inter alia, that
banking account is opened in the name of the
NCPA.
The
distributions are also not in conformity with clause 7.5 cause as far
as they are aware there has not been a general meeting
to approve the
distribution of the funds.
[9.5]
The EC
undertook a trip to China without any community resolution and the
expenditure of the trip has not been explained nor accounted
for
to
the beneficiaries by the Treasurer of the NCPA. The NCPA' s executive
members act arbitrarily and do whatever they please. They
have
divided the beneficiaries along tribal lines.
[9.6]
Since 2013,
no financial statements have been prepared annually. And they are not
aware of any financial statements that were submitted
to the receiver
of revenue.
The EC are obliged in terms of the Constitution to
prepare financial statements annually and also to submit statements
to receiver
of revenue. They are also aware as the majority of the
beneficiaries that
an auditor has not been appointed as clause
4.2.3 of the constitution provides.
[9.7] The NCPA has
become dysfunctional and has therefore failed to adhere to its duties
and responsibilities in terms
of the Constitution.
There has
been a gross maladministration of the resources of the NCPA by the
executive members which has resulted in the squandering
of funds and
as a result they are obliged to take the necessary steps to ensure
that this practice is curbed with immediate effect.
[9.8] They fill duty
bound to curb the unauthorised and illegal activities of the
executive members of the NCPA.
During 2015 they have approached
the EC to raise their concerns and dissatisfaction by the way it was
conducting the affairs of
the NCPA.
The EC displayed arrogance
and pomposity and refused to listen to them or to meet with them
apparent that it did not want to have
a meaningful communication with
them. After failing on numerous occasions to set up a meeting they
sent a letter to the secretary
of the EC requesting a meeting. They
received a response that the EC was not prepared to meet with them
because they are not a
recognised structure even though they were
beneficiaries and were entitled to call a meeting with the EC.
[9.9] Failing that
they escalated the matter to the 5
th
Respondent to
intervene in the maladministration of the EC, there was no response
to the request. They then approached the Minister
requesting an
urgent meeting, which led to a meeting being called by the Minister
which was attended by his delegation but the
EC did not attend the
meeting.
Instead 15 individuals who referred to themselves as
landowners stormed the meeting.
The meeting proceeded between the
Applicants and the Minister's delegation.
The Minister called a
follow up meeting. The EC again did not attend the meeting, instead
the same group of 15 was in attendance.
Certain resolutions were
taken in the meeting inter alia, that:
[9.10.1]
The Minister would delay his intervention in the affair of the
NCPA
only after the AGM which was scheduled for October 2016 fails to
yield the desired results.
[9.10.2]
Only the claimants whose names appear in the list which
the
Minister
used to settle the claim should attend
the AGM .
[9.10.3]
The NCPA must submit Audited Financial
Statements at
the said
AGM,
failing which, the Minister will
institute a forensic audit.
[9.10.4]
The Regional Land Claims Commissioner will assist the NCPA in
coordinating the said AGM.
[9.10.5]
The office of the Minister will be responsible for the payment of
the costs towards the completion of the verification of all the
claimants who had not been verified.
[9.11]
None of the resolutions that were taken were implemented.
Instead,
the same group went out and confused some claimants telling them that
the Minister has disbanded the NCPA's EC and that
they were going to
organise themselves into a formal committee.
[9.12]
There were two other attempts to hold an AGM in 2016
and they
both failed which resulted in the Department of Rural Development and
Land Reform appointing a mediator to facilitate a
conciliatory
meeting. The report and its recommendations were finalised and
submitted to the Department but the Department did
not take any
corrective measures/action. Thereafter in October 2016 the Applicants
wrote a letter to the 3
rd
Respondent seeking its urgent
intervention and got no response. Hence they have proceeded with this
action.
[10]
The Applicants allege that their rights
of ownership and enjoyment of the property are violated by the EC and
they are treated as
non-owners of the properties.
Their
Constitutional right to equality and human dignity is violated by the
continued denial of their right of ownership and security
of tenure.
[11]
The Applicants allege to seek their
relief as interested parties being beneficiary claimants whose rights
have been violated, based
on s 11 (1), s 13 (1) of the Communal
Property Association No 28 of 1996, for the NCPA to be placed under
administration since
the NCPA and its EC have failed to meet their
obligations, inter alia, to
verify
beneficiaries lists, submit the financial records and statements
and
have paid some of the beneficiaries
despite the fact that the verification has not been completed.
Answering Affidavit
[12]
In its Answering Affidavit deposed to by
Johan Mthabine, the Chairman of the NPAC's EC indicated that the
Applicants are a few disgruntled
people from the community . The 1
st
Applicant , Millington Zamani Mathebula ("Mathebula"), is
the former EC member (elected in 2013) who with its chairperson
Perry
Samba and two others vacated office by resignation in 2015, although
he now alleges that they have been unlawfully removed.
The other six
(6) Applicants, that is 2n d to 7t h Applicant, are part of those
that have not yet been verified as members of the
NCPA and their
status as members of the NCPA remains uncertain. Mthabine questions
their sincerity and allege that they are acting
in their own self-
interests.
[13]
According to Mthabine, the real problem
was with the former EC and arose due to a purported contract that
Mathebula, Samba and two
other former members of the EC signed in
March 2012 with a company called INT Capital without the knowledge or
authorisation of
the NCPA or EC, nor was the broad community aware.
The gist of the agreement was that the Land Claims benefits were
compromised
as the contract with INT Capital, a company with no
experience in the business of eco-tourism was given a permanent right
to act
as the preferred agent in the business affairs of the NCPA and
to receive completely unwarranted commission of 5% of the total value
of the land /amount that was to be received by the claimants in terms
of the
Restitution of Land Rights Act, on
such receipt, without any
authority. The four who lacked the experience acted without legal or
independent commercial advice before
entering into the agreement. The
four of them form part of the disgruntled group that is led by the
Applicants that was also in
the meeting were a resolution is alleged
to have been taken to embark on these proceedings.
[14]
The company surfaced as soon as a
portion of the claim was settled in 2013, even though it played no
role in the success of the
claims.
It
is now involved in an ongoing litigation against the NCPA claiming an
amount of RSO Million as commission.
The
four initially offered to resign and later withdrew the offer. It
took the offices of the Minister and the Chief Land Claims
Commissioner to ensure through several interventions that ostensibly
voluntary resignation of the four does take place. The allegations
therefore that they were unlawfully removed are completely untrue.
They had entered into reckless commercial agreements without
authority.
[15]
Since their resignations they have been
making public defamatory statements about the EC of the NCPA and
about their legal representative
alleging that the lawyers misled them about the land claim process
that is why they had made alternative
arrangements to
ensure the success of the
claim.
[16]
In respect of the
elections
of the NCPA EC, he affirms that they indeed held in October 2016
under the supervision of the Department of Rural Development
and Land
Reform Minister and more particularly the officials in the Mpumalanga
office of the Department whereupon a new EC was
elected.
Due
to the animosity created by the Applicants the elections took place
under strict scrutiny of very senior members of the Department
including a senior legal advisor and in absolute compliance with the
letter of the law and the Constitution of the NCPA.
Only
persons who have been verified during the land claim process to be
members could vote.
[17]
Mthabine alleges that the verification
process of members within the community is an ongoing process which
is complex and time consuming.
The Constitution of the NCPA makes
very clear provision for membership entitlements and keeping of the
membership register as in
clause 3.9
and 3.10 as well as clause 8.1 and 8.2.
It
therefore denies that there is any substance in any of the
allegations that the EC is not properly elected or instituted. The
elections occurred exactly 3 years after the pt election as per
clause 11.8. of the Constitution Also although they are aware that
complaints have been made to the Minister they are not privy to the
content thereof.
[18]
On the allegations by the Applicants
that a meeting took place on 17 September 2019, although he accepts
that it might have taken
place he is not sure of the det ails.
However the Annexure marked BHA 4 annexed as proof of attendance of
this meeting is not the
attendance register of that meeting as some
of the signatories thereto have filed affidavits denying that they
were part of the
meeting. They attest to the signatures being
collected from house to house and the dates also do not correlate.
The meeting was
on 17 September 2016 but the documents are signed on
15 September 2016. The first three signatories on the document are
also the
signatories to the March 2012 agreement with INT Capital.
[19]
He notes that although the Applicants
had lodged spurious complaints with the Department, apart from the
fact that the factual allegations
are false the Applicants have not
taken any step to address the issues in terms of the democratic
structures of the NCPA. Also
unmerited allegations are made towards
the Department and its officials. Some of the officials are
unnecessarily joined like the
4th and 5
th
Respondent as their functions do not fall within the purview of the
Land Claims Court . Their role came to an end after the settlement
of
the land claim.
[20]
He confirms that members of the CPA as
well as the broader communities around Sabi Sand Game Reserve are
generally poor people.
He agrees that the NCPA was specifically
created to address these issues within the financial realities of the
post settlement
agreements. The post settlement agreements were
subject to vigorous processes to ensure that the members of the
community received
the maximum benefit from the land claims.
The
Department enlisted leading experts to negotiate the commercial
aspects of the agreement and to train community members in the
governance of the various structures involved. Two dividend
distributions of R10 000 and R60 000 per family have already been
made on 27 June 2015 and September 2016 respectively, overseen by the
NCPA's legal representative in terms of information verified
by the
Department.
The payment included to
the families of the 1
st
and 8
th
Applicants.
Both were approved by
general meeting of verified members.
The
relevant resolutions attached. (JMl and JM2)
[21]
Furthermore that further
distributions are planned for the community, subject to certain
community projects that have been identified
to receive financial
priority in 2017.
For example the
design and construction of a community hall and related structures to
benefit the community as a whole and make
income for the NCPA
members. The NCPA has also created a commercial arm called Mondzo
(Pty) Ltd, which will be capitalised subject
to conditions which the
Department may lay down involving the community in commercial
activities of the region, more specifically
the eco-tourism industry
for which the region is famous. The community receives substantial
rental for their land utilised as a
game reserve business, a sum of
R500 000.00 per month. They also have a share in the business and
share in the resultant profits.
The NCPA has also embarked on a long
term project of establishing a new lodge in the Sabi Sand Game
Reserve. The details of the
agreements signed in respect of the land
claim are all public knowledge posted also on the website which
development will cost
in the region of R80 Million and will be funded
by the community's business partners. He contends that allegations
that the community
has not benefitted from this land claim are simply
false.
[22] He
confirms that in the first election in 2013, 15 members were
accordingly elected to the EC. The
chairperson as already indicated
had to resign for the sake of clean governance and not forced to
resign. Also not true that the
positions of the EC members who
resigned were not filled.
[23]
In response to the allegation regarding
the failure to fill the vacancies of those who resigned he said it is
completely false as
the position of
chairperson was first provisionally filled by Mr Willie Mkansi and
the EC was quorate at all times and the resignation
of the three did
not constitutionally affect the constitutional compliant governance
of the CPA.
The Department was
always aware of the problems created by the 4 members and would not
have tolerated any Constitutional crises
in the NCPA and made sure
that they complied with the letter of the law especially because the
restoration of the Mala Mala Game
Reserve received a lot of
publicity.
The Committee members were
subjected to extensive orientation by professionals in the field of
governance, commercial activity and
the like for more than a year. It
was also during that time that money paid over as rental was paid to
the trust
.
account
of their attorney an arrangement that was approved by the Department
to ensure that the community only take direct control
of the finances
once the committee was properly qualified to do so,
and
after all registration had been finalised with SARS. Calculations of
in respect of all taxes that was complicated had to take
place first.
These have now been made and the NCPA has produced all the required
annual audited financials. Which will be produced
during trial as
well.
[24]
On the question of verification he
stated that there were persons that have made unfounded claims to
membership of the organisation,
and considering substantial financial
benefits received by the members of the NCPA, this aspect is very
closely monitored by the
NCPA in conjunction with the Department.
The
membership disputes are dealt with in terms of the processes provided
in the Constitution and the
Department
is busy with an ongoing process of verification.
They
are also aware of people who have threatened litigation on the issue
of membership and have been advised that certain declaratory
orders
may have to be sought from the Land Claims Court in that regard.
However that issue is not related to this matter.
[25]
The allegations that the meetings called
by the EC not attended is said not to be true. The EC besides the AGM
tries to meet with
the community on three (3) further occasions every
year. These meetings have all been very well attended. The
beneficiaries being
extremely active in the meetings and activities
of the NCPA.
The only problem that he
is aware of relates to the fact that many of the people who claim to
be members have expressed unhappiness
with the progress in the member
verification procedures.
Minutes of
the meetings will be compiled and produced for the purpose of the
hearing.
[26]
He says there are absolutely no disputes
within the verified beneficiaries. There are however disgruntled
members
such as the deponent
as
well as unverified members who have expressed their unhappiness, they
are the ones who must follow Constitutional and peaceful
processes.
Responding to allegations of failure to annually verify the members
since elections in 2013 and distributing only to
the few that has
been verified to the detriment of the majority that has not been
verified. Also to not distributing to those verified
who sympathise
with the concerned group, he said the allegations are misleading as
the dispute in respect of membership relates
to the 2013 events. It
concerns the verification of the membership of the constituent
communities, namely Mhlanganisweni and Mavhuraka
communities. As far
as the Mhlanganisweni community is concerned, he said the NCPA is
dealing with the verification issues strictly
in terms of the
Constitution and that of Mavhuraka still has to first happen in terms
of the
Restitution of Land Rights Act. Should
there be any specific
issues that cannot be resolved by extra curial methods the disputes
will be referred to the Land Claims Court
which is the appropriate
forum to determine who is entitled to benefits that derive from a
specific land claim in terms of the
Restitution Act. Which is fairly
common within land claims communities , there being specific
mechanisms in which they are dealt
with.
[27]
He
confirms that distribution has not been made to those who have not
been verified as that would be illegal and expose the NCPA
and the EC
to charges of misappropriation of funds.
The distributions
have been strictly monitored by the Department precisely for the fact
that there are multitudes of claims against
the financial benefits
which the community receives
.
He denies that there are
verified members who have not received any distribution. If true the
members would have simply gone to
court and enforce their right to
equal share of the distribution. The 1
st
and 8
th
Applicants families got their distribution.
[28]
He
says the verification of the Mavhuraka community members is a complex
process conducted by expert historians and anthropologists
who
investigates the family histories of the members of the community
taking a number of years.
Their community the Mhlanganisweni
community verification took about three (3) years which culminated in
a final verification list
being compiled in 2009.
It is clear
from the allegations of the Applicants that the Department undertook
to be responsible for the costs of the verification
and there has
been discussions in that regard.
It also has been clear
all this time to all those familiar with how the process is conducted
that
the first verification of the membership of the
community is done by the Department and the Land Claims Commission.
It is absolutely unrealistic to expect of communities who
are generally poor, to conduct such complex social investigations. As
a result this processes are done by the Chief Land Claims
Commissioner and the Regional Land Claims Commission for purposes of
preparation and presentation of land claims to the Land Claims Court.
[29
He also denies that the
NCPA does not have a bank account but that it has one at Standard
Bank. The rental payments were paid into
the attorneys trust account
for a particular reason being agreed between the EC and the
Department that be the arrangement until
all the complex vat and
income tax had been sorted out.
[30]
They have dealt with their accounts
transparently and produced all three audited financial statements as
required of them. The trip
to China was reported at various meetings
and occurred at the instance of the Ministry (the Minister and his
Department) due to
the fact that China has implemented very
successful rural development programmes.
All
the expenses were paid by the Department except for a month daily
stipends for the executives which were paid from the NCPA
funds. The
funds totalled R20 000.00 per individual.
[31]
The EC has appointed an accounting firm
and an auditor's firm and the relevant
documents
annexed.
Mr Derek Mthabine is no
longer the treasurer having resigned from that position and M s
Slyvia Tonga is now the treasurer. The NCPA
documents with accurate
information on the financial transactions are kept by either Ms Tonga
or the Secretary .
[32] He
denies that there were any engagements relating to the dysfunctional
of the EC or the NCPA in general.
What happened is that the First
Applicant spoke at such meetings defaming the executive members and
legal representatives by making
false statements as to why the four
resigned alleging that they were purportedly forced into entering
into agreement with INT Capital
alleging that the NCPA EC and their
legal representative made false statements to the officials of the
Regional Land Claims Commissioner
and the Department. By the 31
October 2015 it was obvious that the disgruntled group was holding
its own meetings which they as
the EC were not going to attend.
[33]
Regarding the letters sent to the 5
th
Respondent with no
response he says the 5th Respondent was well aware that it was
dealing with disgruntled former members of the
NCPA EC and that the
campaign they were embarking on was simply vexatious. Each and every
activity of the NCPA was monitored by
the Department and happened
subject to supervision of expert who assist communities with their
institutional arrangements.
[34]
Mthabine accuses the Applicants of trying to create all kinds of
parallel and alternative structures
for the Nhwandlamarhi CPA which
attempts have led into creation of bizarre type of advisory
committees and committees of affected
parties and the like. They have
on various occasions placed on record that such structures are
completely unlawful and have no
role to play in the affairs of the
NCPA which must be conducted strictly in terms of the Constitution
and its applicable laws.
There is no basis for the creation of the
concerned group or the social cohesion subcommittee other than the
subcommittees that
are provided for within the context of the NCPA
and its community liaising structures.
[35] He
was not aware who the Applicants are referring to who stormed in
their meetings but indicated that
they were not going to attend
meetings of these parallel structures that were formed against the
provisions of the Constitution.
As NCPA members they could not attend
these meetings and their legal representatives informed all and
sundry that they will not
participate in activities that are not
structured mediation or proper adjudication of issues of individuals
who believe that they
have some entitlement to the benefits being
received by the NCPA. He also does not know what Mathebula is talking
about but it
is obvious that he and his group
were informed by the
Minister that the regular AGM meeting was going to be in October 2016
and that only members that have been
verified who appear in his
membership register list could attend the meeting to can vote.
Nothing else could be lawful.
The AGM did take place under
strict supervision of multitudes of departmental officials. It went
on regularly and a new EC was elected
in terms of the lawful
requirements laid down by the Department and which follows from the
ordinary requirements of the law and
he is the Chairperson of the EC
that was elected.
[36] With
regard to the mediation Mathabine says all that happened was that
certain people who claimed that
they were entitled to attend the AGM
as well as
disgruntled ex EC
made allegations that the AGMs
were not regularly held when such allegations had actually no
substance. He says he has been advised
that the report of
Georghiades
and Associates
contains all the misleading and uninformed factual
allegations which were peddled by a range of individuals and is not
confirmed
under oath, does not stat e what procedures were followed
to obtain the facts and clearly never involved any interviews with
the
EC members or their legal representatives . The allegations seems
to be reliant on the say so of the persons whom he refers who
claimed
to be entitled to benefits of the NCPA or the disgruntled previous
members of the EC. At no stage was the NCPA asked to
deal with all
the aspects raised as wild speculations allegations. All their
documents are readily available and they would have
given them to any
bona fide enquirer. He regarded it as disappointing that the
Applicants are not first required to send a proper
letter of demand
to the NCPA, nor required to obtain any documentation through the
provisions of PAIA no 2 of 2000. Instead the
present application was
served without any pre-curial process.
[37]
Mthabine pointed out that the
beneficiaries of the NCPA are its verified members in terms of the
processes conducted and overseen
by the Department. He denies that
the rights of any the Applicants or any of the members of the NCPA
had been violated and denies
that the NCPA affairs had been conducted
in a non-transparent manner.
He
denies that there is any basis for placing the NCPA under
administration and argues that if the issue is the refusal of the
Director General to place the NCPA under administration then such
refusal should be dealt with by way of review proceedings in terms
of
PAJA no 3 of 2000.
He also denies
that the Applicants are entitled to any of the relief whatsoever. And
allege that their legal representative has
always made the documents
available both to the community and to the general republic by way of
publishing information on their
website. The money is held by their
attorney in trust and by virtue of the agreement of mandate as well
as an understanding with
the Department and it is dealt with in terms
of the lawful instructions that it receives from client. The monies
are soon to be
transferred to the bank account of the NCPA. The NCPA
is also obliged to settle by law invoices and lawful claims from its
service
providers. An order that prohibits lawful payments will be an
extreme violation of basic principles of good governance. In fact
it
will make the NCPA vulnerable to liquidation proceedings.
[38]
Mthabine submits that the Application to
be frivolous and vexatious and not deserve to be treated with any
sympathy.
Replying Affidavit
[39]
The Applicants have now in reply to the
allegations in the Answering affidavit, also added new allegations to
make a case for the
relief sought. Notwithstanding the applicable
rule of the Uniform Rules of the High Court: see Erasmus "The
Superior Court
that a full cause of action and the substantiating
facts are to be divulged in full in the Founding Affidavit. A case
cannot be
made in the Replying Affidavit. The Applicants' Replying
Affidavit was further considerably delayed. Although the Answering
Affidavit
was received by the Applicants correspondent attorney on 10
April 2017, in the Applicants' Replying Affidavit Mathebula avers
that
the Answering Affidavit was received by the instructing attorney
only on 26 April 2017, without explaining why. The Applicants the
only served their Replying Affidavit on the Applicants' attorneys on
7 February 2018 and filed on 14 March 2018. Delivery thereof
that was
supposed to be within 10 days after receipt of the Answering
Affidavit was therefore delayed by ten (10) months and consisted
of
142 pages, adding to the already voluminous papers. At the
commencement of the hearing the Application consisted of more than
700 pages. This is a matter that fell in the Special Motion Court by
all definition. At the time of receipt of the Answering Affidavit
that consisted of 353 pages, the application papers exceeded the
limit of 500 pages set in the practise manual, which signalled
its
validation for enrolment in the Special Motion Roll. There is no
justification why the matter was enrolled on a normal roll.
Applicants' condonation application for the delayed Replying
Affidavit together with the Respondent's Application to file a
Further
Affidavit in response to the Replying Affidavit was granted
only on the basis of the interest of justice not much on what was
submitted
on paper as by Applicants own admissions even though they
had delayed meeting with their attorney, they had already consulted
with
him by 1 July 2017, but the Affidavit was served only in the
following year, six (6) months thereafter.
[40]
On the onset the Applicants pointed out
that the NCPA EC failed to implement the resolution taken in the
general meeting of 23 November
2014 which was that all verifications
must be completed within six months from the date of the AGM.
Allegedly the exercise would have
made sure that all those beneficiaries that were left out in the list
that was submitted to Parliament
on the basis of which the land was
purchased for the beneficiaries, were included. The legitimate
beneficiaries being those that
appeared in the list submitted by the
office of the Ministry.
They allege
that the beneficiaries whose benefit the land was purchased by the
state are those whose names appear in that list.
They were left out
of the list presented to Parliament due to the urgency in which the
list was compiled. Which led to the resolution
on the 23rd November
2014 that the beneficiaries be verified within six (6) months.
[41] He
alleges that a small group with a large representation in the NCPA EC
displayed a tendency of wanting
to exclude a large number of families
which made up the beneficiary list, claiming that they are the
rightful owners of the Mala
Mala land claim, delayed and frustrated
the process of finalising the verification of all the beneficiaries.
It is to this group
that funds distributions of R10 000 and R60 000
respectively were made to the exclusion of the larger group. This
group is said
to be pulling all the stops to make sure that the
verification of the larger group of the claimant community is
delayed. They use
the large groups being not verified as
beneficiaries of the NCPA to exclude them from benefitting. Some of
the people that benefitted
from the R10 000 and R60 000 distributions
do not appear in the verified beneficiary list which was used by the
Government when
the claimed land was restored to the claimant
community. The list that Mthibane alleges to have been approved for
distribution
of the R60 000.00 is in breach of the NCPA Constitution
in that it was never approved by the duly elected Chairman.
Considering
also the number of beneficiaries on the Final list that
was submitted to parliament as approved verified list to buy the
land,
very few families have · been verified which makes it
irrational to distribute funds to some to the exclusion of the
majority
of the land claimants.
It is not clear if the EC followed
any kind of policy when distributing as some members received the
initial R10 000.00
distributions but were omitted in the list
which were allocated R60 000.00. The 3
rd
Respondent was
included in the initial R10 000.00 but excluded on the second
distribution because he had started in exposing the
dysfunctional
NCPA Executive.
[42]
He alleges that Mthabine the deponent to
the Answering Affidavit is not the Chairperson of the NCPA's EC and
not part of any of
the legitimate structures but his brother Derrick
Mthabine is known to be the treasurer. Mthabine formed a clique and
called for
a secret meeting where they elected themselves into the
executive position in the CPA EC after the Applicants have approached
the
High Court for an interdict against the EC's action of looting
the NCPA resources. Some of the members of the sitting EC were never
invited to the AGM that supposedly replaced the EC including Boysen
Mkansi ("Mkansi") who was supposed to be the duly
elected
acting Chairperson at the time. He was excluded because he is
considered not to be part of the group that claims to be
the owners
of the Mala Mala land claim. To get off the hook they fronted a few
members who now act in the EC of which Johan Mthabine
claims to be
the Chairperson.
[43]
It is said that no elective meeting was
ever convened by Mkansi the acting chairperson of the NCPA EC
therefore the structure that
Mthabine claims elected him to the
position could not have been legally constituted. The NCPA
Constitution on clause 8.9 to 8.12
outlines the election procedure
which states that the elections must be conducted according to the
electoral system that is to
be adopted in the AGM which was not the
case. The organisational developer of the NCPA has not presented any
such system which
neither the EC nor the AGM approved or adopted nor
to consider the Applicants' presentation documents to the Minister of
Rural
Development and Land Reform. The EC in which Mthabine claims to
be the Chairperson was not properly constituted in terms of the
NCPA
Constitution and therefore, his position as Chairman cannot be
legitimised.
[44]
He also alleges that the structures
Mavhuraka and the Mhlanganisweni do not exist anymore after the
establishment of the Nwandlamharhi
CPA, therefore reference thereto
misleading.
[45]
When considering that the letter of
appointment of the Auditors is dated 7 May 2015 ·and their
letter of acceptance is dated
4 December 2014, all the submitted
financial documents are false and fabricate d. He says Mthabine says
that the elective AGM only
took place in October 2016 when he was
elected as Chairperson. He has lied under oath as he is used as a
stooge by his friends
who are
avoiding
answering to their allegations of mismanagement and embezzlement of
funds. The NCPA has failed to enclose the Notice of
the Elective AGM,
the meetings and the attendance register which took place on 22
October 2016.
[46]
The Auditor's report was finalised on 16 October 2016 apparently
before the AGM that he claims elected
him. The meeting allegedly held
on 22 October 2016.
There
was no AGM that appointed the auditors as it is provided in the CPA
Constitution, especially the appointment of A2A Kopano
Incorporated .
Its alleged that it is not clear when the audited statements were
signed and therefore the authenticity as well
as their veracity of
same cannot be confirmed and alluded to evidence proving veracity
thereof to be led during trial. However
these are motion proceedings.
[47]
He indicates that Samba denies all the
allegation relating to him by Mthabine and has also filed an
affidavit in that regard.
[48]
Regarding the verification of the
Mavhuraka claimants the Applicants allege they constitute the
majority of the disposed members
of the claimant communities that on
two occasions two different organisations were enlisted to verify
them. On those two occasions
the process of verifying the
beneficiaries commenced, but was later abandoned by the NCPA EC. They
regard as very upsetting that
the NCPA would state that the
verification process is complex, which they deny, whilst it had on
two occasions thwarted the completion
of the verification exercise
since the NCPA was registered more than three (3) years ago. There
was a deadline resolved at the
2014 AGM to finalise verifications by
June 2015. In 2016 a company was appointed to verify the group. They
say Mthabeni is sowing
divisions by singling out Mhlanganiswenias his
own community from Nwandlamhari and not referring to it as former
Mhlanganisweni.
[49]
They argue that the definition of
members in accordance with s 3.9 as referred to by Mthabine includes
any person who is not registered as a
member of the association, but who is entitled to be a member, by
virtue thereof the Applicants
and all other persons who were
originally dispossessed or descendants thereof qualify to be members
of the NCPA.
He argues that clause 7
of the NCPA provides that the power of the Association and the EC
shall be interpreted and implemented at
all times in accordance with
the overriding principle of fairness and equity. By proceeding with
the distribution of benefits while
knowing that the majority of the
members of the claimant community were yet to be verified is directly
in contravention of the
spirit of the principle of equity as it is
provided by clause 7 of the NCPA Constitution .
[50]
They allege that all Applicants are legitimate Nwandlamhari CPA
members, as their names appeared on
the beneficiary list (NWl)
submitted by the Ministry to parliament as proof of the list of
beneficiaries for whom the restored
land was bought by the state when
the highly publicised land claim was settled. They were however left
out when the EC unilaterally
decided to prematurely distribute the
benefits. The deponent Mathebula says that he is the legitimate
member of the NCPA therefore
entitled to take the NCPA to court when
they flout the Constitution. They tried to engage the NCPA EC on
numerous occasions in
vain. Thereafter they approached the offices of
2nd to 5th Respondent and their only redress left was to seek the aid
of the Honourable
Court. At one stage the Minister undertook to
assist the NCPA to speed up the verification of the rest of the
members and to pay
the costs thereof. Also appointing a mediator
whose recommendations they failed to follow.
[51] On
the banking account it argues that three years after the NCPA has
been formed the NCPA funds are
still kept in the Attorney's bank
account which is a breach of the NCPA Constitution, clause 21.5 which
requires that all monies
received on behalf of the Association which
have not been invested shall immediately upon receipt be deposited in
the name of the
NCPA with a bank registered in terms of the Banks
Act. The NCPA is in collusion with the Attorneys. They question how
the financial
statements were prepared if the funds were still in the
Attorney's trust account.
[52]
Applicants point out that the NCPA has not included the list of
beneficiaries that were paid the R10000
distributions on 27 June
2015. They deny allegations by Mthabine that Mathebula and the 8
th
Respondent, Dlamini received any of the two distributions. Mathebula
denies having a bank account with Standard Bank. They allege
that
amid tremendous pressure on the part of the vast number of the land
restitution claimants that the NCPA EC should stop any
distribution
until such time that all the claimants had been verified, the EC
proceeded nevertheless with the distributions in
order to protect
their personal interest, to the exclusion of the majority of the
members of the claimant community from the former
Mavhuraka section.
After acknowledging that the majority of the beneficiaries are not
benefitting, Mthabine proceeded to distribute
monies to those who are
close to them. This has exacerbated the polarisation of the claimants
along tribal lines.
[53]
They allege to be hearing for the first
time about the building of the community hall and other developments
by the NCPA as it did
not report to the community members who are the
owners of the NCPA property which would necessitate a resolution
which could give
rise to such earmarked projects. He said they were
geared to benefit only a few individuals. He has failed to bring
the
court into its confidence by omitting to explain who is involved in
the so called arm and their respective relationship to one
another.
There are no particulars of how the
Sabi Sand Game Reserve was going to be funded.
[54]
The Applicants deny that Mr Samba and
the three others were replaced in accordance with clause 11.9 and
insist that the vacancies
have not been filled. During one of the AGM
meetings it was reported that three people have been co-opted to the
top six to assist,
namely Elly Mokoena, to assist the acting
Chairperson, Mr Mhlanga Mike, to assist the secretariat desk and Mrs
Thoko Themba
to assist the Treasurer's desk, as the plan was to
establish a finance committee.
[55]
Mathebula says he is not aware of any problems created by him and has
never been called to a meeting
or heard from the NCPA informing him
of any wrong doing. He also not in dispute with the fact that the
Nwandlamhari land claim
has attracted public attention.
[56]
The Applicants argue that if the funds
to date are still lying in the Trust account after so many years and
there has been movement
of large sums of money without the authority
and knowledge of the beneficiaries that in itself is enough ground
for the NCPA to
be placed under administration as it is clear that it
cannot handle its affairs, take direct control of its financing, let
alone
the administration action of opening a bank account. In essence
the NCPA is under the administration of its attorneys. Which is
not
permissible by the Act.
[57]
They also argue that if it can take
three (3) years for the EC to register with SARS than they are not
fit and proper to handle
the day to day affairs of the CPA.
[58] They
persist in their allegations that there is growing helplessness on
the part of the majority of
the beneficiaries, the attendance at the
AGM meetings been negatively affected such as that of 13 February
2016 and 9 April 2016
were disrupted by members who were led by
Mthabine. Mthabine have taken over from his blood brother Derrick
Mthabine who was running
the affairs of the CPA and had succeeded in
sideling the then Chairperson who was later forced to resign. They
allege that the
running of the NCPA has been turned into a family
affair and the court should force the Director General to take over
and intervene.
They noted that there are no confirmatory affidavit
from the other members of the EC to confirm the allegations made by
Mthabine.
[59]
Mathebula alleges that on or about 9 April 2016 Mthabine's brother
attacked a government official who
was then protected by the
applicants and escorted safely out of the AGM meeting. On 15 April
2016 in another meeting of the beneficiaries
Mathebula alleges to
have been singled out and attacked by the security personnel and NCPA
beneficiaries, physically assaulted
and thrown outside the gate of
the venue where the meeting was held. This happened in the presence
of the NCPA attorney and her
Counsel that led to him opening a case.
[60] They
say Mthabine is the one who questioned the NCPA about the trip to
China and there was no resolution
about the use of the funds. He
disputes the legitimacy of the Committee led by Mthabine.
[61] They
point out that a meeting was held facilitated by the Chief Land
Claims Commissioner at Kruger
Gate Protea wherein it was resolved
that a joint committee should be formed consisting of representatives
from the Concerned group
and the social cohesion committee
respectively and that the same committee should report to the CLCC'
office on a quarterly basis.
They have approached the 5
th
Respondent who had ignored all their pleas.
[62] They
allege that Mthabine and his group are responsible for the violent
actions in all the AGM meetings
which were disrupt ed claiming that
their group was the legitimate one, provoking those not yet verified.
They have written to
the Department's provincial office after they
realise that the NCPA has become dysfunctional.
[63]
They dispute that the NCPA EC complied
with the resolutions of 9 September 2016 and have noticed that
Mthabine acknowledges that
Applicants met with the Ministry on that
day when he was leading the group that stormed into the meeting with
the Minister's delegation
before he could claim his fictitious
chairperson position. Mthabine also has no authority to answer for
the Director General.
Further Affidavit by 1
st
Respondent, Replying to Applicant's Replying Affidavit
[64]
The NCPA in its Further Affidavit in
response to the Applicant's Replying Affidavit which I had also
allowed in the interest of
justice, responded mainly to the
allegation of verification of the beneficiaries which in my
assessment is one of the major contention
between the parties.
It
was pointed out on behalf of the NCPA that
the
Director General has embarked on the new verification process from
May 2018 which was due to be completed in July / August 2018
after
which all verified members will be entitled to benefits which is the
Applicant's main basis of the Application. This will
also determine
the
locus standi
of
some of the Applicants. The Affidavit was therefore suggestive of a
postponement of the
Application
sine die.
[65]
The NCPA argues that there are a lot of
factual disputes incapable of resolution on the papers which the
Applicants should have
foreseen that these factual disputes would
develop. The Applicants have, in their papers also alluded to the
matter going to trial
and certain evidence and certain documents
going to be divulged and or produced during trial, quite evident that
the Applicants
acknowledge that the application cannot succeed in
Application proceedings.
[66]
With regard to verification he points
out that Mathebula was one of the EC member that failed to implement
the 23 November 2014
resolution that all verifications be completed
within six months from the date of the AGM and therefore cannot put
the blame on
the current EC.
[67] With
regard to the list that was presented to parliament by the Ministry
he argues that it was never
communicated to and adopted by the
community and is merely a list formulated by the Director General.
[68]
Mthabine insists that a new committee was duly elected and attached
the Notice of the AGM held on 22
October 2016 as well as the Agenda.
He disputes Applicants allegation of that he was elected by his
cronies in a secret meeting.
[69]
He denies that there was a verified list of beneficiaries when the
land claims were settled. He points
out that at a recent meeting
arranged by the Director General to discuss the verification process
the Applicants disrupted the
meeting in such a way that it could not
continue. They simply are disrupting the process of verification.
They also disrupted the
AGM that was to be held in February 2018 that
it could just not start .
[70] He
points out that the auditor's report was finalised before the AGM on
22 October 2016 and they do
prepare financials irrespective of where
the funds are held. The funds were with NCPA attorney who also is
subject to regular audit
by the law society in respect of funds that
are held in Trust. When the attorney held all the funds of the NCPA
in his trust account
she only paid expenditures on the specific
instructions of the previous and current EC.
[71] He
denies that any person who is not registered as a member of the
association who is entitled to be
a member qualifies to be a member.
He points out that that is the reason why there is verification . You
can be a member beneficiary
of the NCPA after going through
verification. He also denies that the fact that the Applicants
appeared on the beneficiary list
necessarily entitles them to
verification and to be members of the CPA.
[72] On
the benefits distributed he states that the initial distribution was
done by Willie Mkansi and the
second one approved by him as a duly
elected chairperson. He denies that any benefits were prematurely
distributed . He reiterates
that the 1st and 8th Applicants were paid
into an account chosen by the Applicant's families, not directly to
their individual
personal accounts.
[73] He
indicated that most monies that were held in the Trust account of the
attorney have been transferred
to the NCPA account and the amount
left is to cover legal fees. He denies that there is movement of
large sums of money without
the authority and knowledge of the NCPA.
All payments made were approved by the duly elected EC of the NCPA.
The attorney was never
in direct control of the NCPA funds.
[74] The
meetings were arranged but disrupted by the Applicants specifically
that of February 2018.
[75] The
commercial arm and funding of the development is all above board and
was not mentioned in the Founding
Affidavit.
[76]
According to Mthabine, Mathebula is well aware of reasons why he is
no longer a member of the EC which
is as a result of his involvement
in the action bought by INT Capital and fails to deal with the matter
in his reply.
[77] He
submitted that the current EC was only elected in October 2016 since
then a bank account has been
opened and the bulk of the funds
transferred in January 2017 and SARS issues resolved . On the
contrary when Mathebula was part
of the previous EC they failed to
perform all these tasks, which he is not blaming them since the
process was complex until the
new EC finally managed to resolve these
issues.
[78] He
points out that from the claimant community, there are hundreds of
members that are listed that
have already been verified and others
that are awaiting verification. They are not represented by the eight
Applicant s.
[79]
Mthabine denies that him or his brother
or any member of the current EC was ever involved in an attack on any
government official
or Mathebula. He agrees that Mathebula was indeed
removed from a meeting by the security personnel as he was
disruptive. He denies
that Mathebula was ever attacked or assaulted
or that he has ever stormed into any meeting held by the Applicants
with or without
the advisor s from the Ministry or any invasion on 9
September 2016. He denies that the EC of the NCPA failed to perform
its fiduciary
duties.
[80]
He reiterates that all verified families
received benefits and those who did not where free to bring that to
their attention and
they needed to update banking details before any
payments are made. Such payments are made to the family elder/s, not
directly
to the Applicants. He denies that any verified families were
not paid or that Ntimane has exposed the rot in the NCPA EC.
[81]
He pointed out that Du Plessis, the
attorney acts on behalf of the NCPA. He denies that the fact that the
8 Applicants are disgruntled
that precludes Du Plessis from acting on
behalf of NCPA. He reiterates that the verification resolution was
problematic and the
current EC is trying to sort it out. He does not
agree that he is not fit and proper to lead the NCPA as Applicants
allegations
are bold, vague, speculative and unsubstantiated.
Factual disputes
[82]
There are several disputes of facts as
it has been pointed out by the Respondent. The principles applicable
to the determination
of relevant facts when affidavits contain
factual disputes in instances where final relief is sought on motion
proceedings are
as set out in the Plascon Evans Rule which simply
obliges that the disputed issues be determined on Respondent's
factual allegations;
see
Plascon
-
Evans Paints Limited v Van Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623(A)
at 634-635D where it was stated that:
" ... where there is a
dispute as to the facts a final interdict should only be granted in
notice motions proceedings if the
facts as stated by the respondent
together with the admitted facts in the Applicant's affidavits
justify such an order....where
it is clear that facts, though not
formally admitted, cannot be denied, they must be regarded as
admitted."
[83]
In
Soffiantini
v Mould
[1956] 4 All SA 171
[E] 175;
1956 (4) SA 150
[E] 154E-H the following approach was outlined:
"A
bare denial of Applicant' s material averments cannot be regarded as
sufficient to" defeat applicant' s right to secure
relief by
motion proceedings in appropriate cases. Enough must be stated by
respondent to enable the Court to conduct a preliminary
investigation...and to ascertain whether the denials are not
fictitious intended merely to delay the hearings.
[84]
It is further encouraged that the court
must necessarily make a robust, common sense approach to a dispute of
motion as otherwise
the effective functioning of the Court can be
hamstrung and circumvented by the most simple and blatant stratagem.
The court must
not hesitate to decide an issue of fact on affidavit
merely because it would be difficult to do so. Justice can be
defeated or
seriously impeded and delayed by an over fastidious
approach to a dispute raised in the affidavit s; Prinsloo v Shaw,
1938 AD 570.
[85]
In
Fakie
No v CCIIH Systems Pty Ltd
2006 (40
SA 326
(SCA) para 55 it was held that: Applicants must live with
consequences of their affidavits read for their own sake:
"That conflicting affidavits
are not a suitable means for determining disputes of facts has been
doctrine in this court or
more than 80 years. Yet motion proceedings
are quicker and cheaper than trial proceedings and , in the interests
of justice, courts
have been at pains not to permit a non-virtous
Respondent to shelter behind patently implausible affidavit versions
or bald denials.
More than 60 years ago this court determined that a
judge should not allow a Respondent to raise fictitious disputes of
facts to
delay the hearing of a matter or deny the Applicant an
order.
There had to be a bona fide
dispute of fact on a material matter" This means an
uncreditworthy denial, or a palpably implausible
version, can be
rejected out of hand without recourse to oral evidence. In
Plascon
Evans
the court
Paints Limited v Van Riebeeck Paints
this
court extended the ambit of uncreditworthy denials. They now
encompassed not merely those that fail to raise a real genuine
or
bona fide dispute of fact but also allegations or denials that are
far-fetched or clearly untenable that the Court is justified
in
rejecting them merely on the papers.
Practice in this regard has become
considerably more robust, and rightly so. If it were otherwise, many
not of the busy motion courts
in the country might cease functioning.
But the limits remain, and however robust court may be inclined to
be, a Respondent's version
can be rejected in motion proceedings only
if it is fictitious or so far-fetched and clearly untenable that it
can confidently
be said, on the papers alone that it is demonstrably
and clearly unworthy of credence."
Issues
to be decided
[86]
The issues to be decided mainly, are
whether
or not the Applicants have made a case for the
NCPA
to be placed under the administration of the Director General, having
been able to show that the NCPA cannot meet its obligations
and
whether NCPA has contravened the provisions of its Constitution that
it would under the circumstances be just and equitable
for it to be
placed under administration
[87]
if not, if a case has been made for:
[87.1] the order of
its financial affairs to be investigated, through the institution of
a forensic investigation by
the Director General;
[87.2] for
the
functions of the NCPA EC to be undertaken and completed by the
Director General
including the conclusion of the
verification
of all beneficiaries and distribution of financial statements to the
Applicants.
[87.4] the Director
General to
conduct an investigation regarding the dispute between
the beneficiaries and the executive members
of the NCPA.
Legal Framework
[88]
The affairs of the NCPA including the use and distribution of its
funds are governed by the Communal
Property Act no 28 of 1996 (the
Act) and its Constitution and managed through its duly elected
Executive Committee. The Applicants
allege that the NCPA has failed
to meet certain obligations in contravention of the Act and the
Constitution and must therefore
be placed under administration of the
Director General, who will take over the functions of the EC. Section
13 of the Act reads:
'A division of the Supreme
Court or the Magistrate Court having jurisdiction in respect of the
area in which the property of the
association is situated,
may,
on application made by the Director General, an association or
provisional association or any member thereof, or any other
interested person, place the association or provisional association
under the administration of the Director General or grant a
liquidation order in respect of an association or provisional
association, because of insolvency or maladministration or any other
cause is unwilling or unable to pay its debts or
is
unable to meet its obligations,
or
where it would
otherwise be just and equitable in the circumstances.' (my emphasis)
[89]
A court (either a division of the
Supreme Court or Magistrate Court) that has jurisdiction in respect
of the area in which the property
of the Association is situated, may
be the one, that on application, places the Association under
administration of the Director
General. In this instance the property
is situated in the area of Mpumalanga, the Mbombela Court would have
had jurisdiction at
the time of institution of the Application.
[90]
The NCPA's obligations are, in terms
of the Act inter alia,
to receive,
hold, own and manage for the benefit of the claimant beneficiaries
and for their future generations all the restored
land. In terms of
clause 9.1, the land restored will not be used directly by the
members of the Association. However
the
benefits derived from such ownership must be distributed equally or
be used in projects that benefit the members equally.
[91]
Clause 11 of the NCPA Constitution provides that 'the day to day
functions and duties conferred
on the Executive Committee shall be
undertaken subject to the provisions of the Constitution. The NCPA
will be deemed to be unable
to meet its obligations if it has failed
to adhere to the precincts of the Constitution.
[92]
Committee members shall have the fiduciary responsibilities in
relation to the association and
its member, and shall exercise their
powers in the best interests of all the members of the association ,
without any advantage
to themselves in comparison with other members
who are similarly placed; sees 9 (1) (e) (vi) of the Act.
[93] In
terms of clause 11.10 of the Constitution, the EC is tasked with the
compilation and maintenance
of a complete membership register of
every individual who is a member of the Association as well as their
dependants.
[94]
In terms of clause 9.10 the presence of the name of any member in the
register shall be prima
facie proof of membership of the Association,
and conversely, the absence of any member's name in the register
shall be prima facie
proof that such person does not have any right
to membership in the Association. The onus of proving otherwise shall
vest with
the person seeking rectification of the register.
[95]
On disputes regarding the right of other
persons to be members of the Association its provided that such
disputes shall be tabled
at a general meeting, and failing to be
resolved shall be dealt with in the manner provided for in the
preceding subsections
[96]
Section 11 of the Act provides:
(1)
An association or provisional
association registered under this Act shall, at the prescribed times,
furnish prescribed documents
and information to the Director- General
in order to enable him or her to monitor compliance with the
provisions of the relevant
constitution and this Act.
(2)
The Director-General may undertake an
inspection of the affairs of an association or provisional
association.
Analysis
[97]
The key contention raised by the
Applicants is the administration of the affairs of the NCPA by the EC
which according to the Founding
Affidavit was dysfunctional but
noticeably the criticism did not include a challenge of the EC's
legitimacy. Applicants have alleged
that the
EC
since their election to the office in 2013 failed to complete their
tasks.
It all started when the
(3)
members of the EC were removed unlawfully and not been replaced which
has resulted in a conflict amongst the beneficiaries and
the EC
members.
[98]
Vacancies in the
EC arising any time as a result of death, disqualification,
resignation or removal or for any other reason, a new
committee
member shall be elected during the next general meeting. The
remaining Committee members shall be entitled to function
until a new
member is appointed; see clause 11.9.
[99]
It is common cause that the composition
of the EC has undergone several changes since the establishment of
the NCPA. It is also
common cause that the initial EC that was
elected at the formation of the NCPA in 2013 prior to the 23 November
2014 AGM was marred
by a few resignation of its members which
included also Mathebula the 1st Applicant, its Chairperson Perry
Samba and two other
members, who all allegedly align themselves with
the Applicants being the first 4 signatories to their attendance
register in their
15 or 17 September 2016 meeting. The Applicants
allege that the resignation of the 4 EC members was an unlawful
removal which led
to the initial tension between the NCPA EC and the
Applicants. In addition that the removal left a vacuum in the EC that
remained
unfilled for 20 months affecting the EC's functionality and
its operations, as a result the EC became dysfunctional. The
Applicants
however afterwards conceded that apparently the vacancies
were subsequently filled·by an acting Chairperson Mkansi,
secretary
and 3 others in key positions which included a co-option of
namely, Elly Mokoena, to assist the acting Chairperson, Mr Mhlanga
Mike, to assist the secretariat desk and Mrs Thoko Themba to assist
the Treasurer's desk, planning to establish a finance committee.
It
therefore seems the perceived vacuum did not exist.
[100]
The NCPA's response was that the reason
for Mathebula and the three other EC members' resignation had
something to do with an agreement
they concluded, signing away and
therefore compromising the benefits of the claimants from the
restored land to a private company
INT Capital without any authority
from any of the structures, which they failed to divulge until the
land claimants reached a settlement.
The commission was payable to
INT Capital upon settlement of the claim before it has rendered any
services. The company had neither
assisted the claimants in the
proceedings on settlement nor was it involved in the action. It only
surfaced when the settlement
was reached. It is indicated that the
company has now sued the NCPA for a commission of RSO Million which
is 5% of the value of
the settlement. A copy of agreement indicating
the terms and conditions thereof signed by Mathebula and the 3 others
has been attached.
This is evidently
an abuse of power and
reckless
management of the affairs of the NCPA without authority. The
allegations therefore that they were unlawfully removed are
evidently
carries no weight.
[101]
The Applicants have failed to respond to these allegations,
notwithstanding Mathebula being the deponent to the
Applicants'
Replying Affidavit and being directly implicated. He said absolutely
nothing to refute the allegations or challenge
the existence of the
contract or litigation, even though the facts were known to him. The
issue on the alleged cause of the tension
between the Applicants and
the EC would therefore have to be resolved on Respondents undisputed
factual allegations. The resignation
of the Applicant and three
others is therefore deemed to have been as a result of the reasons
stated by Mthabine on behalf of the
NCPA. The purpose of the
existence of the Act being as set out in its preamble 'to ensure that
such institutions are established
and managed in a manner which is
non discriminatory, equitable and democratic and that such
institutions be accountable to
their members;
and to ensure that
members of such institutions are protected against abuse of power by
other members,' The
credibility of the context within which
Mathebula alleges the tension and confrontations to have arisen is
therefore questionable.
It is obvious that the Applicant s'
invectives manifested from the time of their resignation in June 2015
under the cloud of the
INT Capital saga.
[102]
Applicants have alleged in support of
their contention that the EC could not meet its obligations that the
EC's failed to open a
NCPA bank account as is required by clause 4.27
of the NCPA Constitution. The latter is modelled from section 9(1)
(e) (iii) of
the Act that stipulates that all the cash of the
association shall be deposited in an account opened in the name of
the association
with a bank registered in terms of the Banks Act,
1993 (Act No. 94 of 1990), or a mutual bank registered in terms of
the Mutual
Banks Act 1993 (Act No. 124 of 199, or with the Post
Office Savings Bank contemplated in s 52 of the Post Office Act, 1958
(Act
No. 44 of 1958), or such other institution as may be approved by
the Director -General. The Applicants complain that the EC in
contravention of the Constitution and the Act has instead of opening
an account let the money remain in the control of the attorneys
and
spent it from the trust account.
[103]
In the minutes of the AGM that was held
on 23 November 2014 it is indicated that the NCPA members resolved
that the moneys will
be kept in the account of the attorneys and will
remain there until the NCPA bank account and an investment account
are opened
in December 2014 upon which all the monies in the trust
account was to be transferred. It is common cause that Mathebula and
Samba
were EC members at the time. They failed to open the account by
December 2014 or anytime thereafter until June 2015 when they
resigned
nor was the bank account opened under Mkansi during the
transient period. It was until after the election of the October 2016
EC
members that finally there was compliance. The present EC
rectified the situation and met its obligations. Following that, it
has
been confirmed that all the funds that were in the trust account
had been transferred to the NCPA Standard Bank account by January
2017. According to Mthabine only funds that are to cover legal costs
are left in the account. The failure to open the bank account
cannot
therefore be blamed on the present EC nor can it impute any
maladministration of funds. The attorneys as well cannot be
blamed
for having secured the funds in the trust account until the NCPA has
opened its own account, especially as the amounts are
kept separate
in a trust account and as highlighted by the Mthabine, such an
account is subject to audit and monitored in terms
of the law society
rules as long as its identity is clearly indicated.
[104]
The Applicants have also raised the
issue of the appointment of the auditors, which issue is part of
issues that were also there
since the establishment of the NCPA
during the EC of Mathebula and recognized at the 1
st
AGM on 23 November 2014. It however appears the Mathebula EC was
overwhelmed and could not meet any of the planned activities
and
commitments or resolutions. Even though Mathebula was part of the EC
at the time he does not offer any explanation why the
obligations
could not be fulfilled. Instead he removes himself from the problem
and blames just the EC even though the issue was
prevailing during
his time and blames the present EC for everything. Like opening a
bank account and the appointment of auditors.
In his replying
affidavit he defers to Sambo who was the chairperson at the time to
respond to those issues. During Mathebula's
time no auditors were
appointed nor was there any indications in the minutes of the
meetings held that there was a plan to appoint
auditors by a certain
period, although the requirement is alluded to. Notwithstanding that
they were required to account for all
the monies that they were
receiving and spending after taking office in 2013. Mthabine has
indicated that the 2016 EC subsequently
managed to obtain financial
statements from their auditors and such have been made available for
scrutiny by the members. They
were prepared to avail the statements
for scrutiny .
[105]
It is however in the same vein shocking that the Ministry or the
Director General did not insist in their monitoring
of the affairs of
the NCPA to appraise how the capital and the land was being used and
insist that the NCPA obtain audited financial
statements that set
outs the NCPA ECs' treatment of community funds since 2013. It is
obvious that the issue was approached halfheartedly
by the members of
the former EC but also recklessly by the Director General whose duty
it is to monitor and inspect the affairs
of the CPAs, Since the
financial records of the association are supposed to be subjected to
an annual independent verification,
as approved by the Director
General; sees 9 (e) (ii). The statements are now said to be available
it is imperative that they be
submitted for scrutiny and assessment
by the NCPA members and the Director General upon which a decision
can be made if a forensic
investigation is necessary. As the
instigation of a forensic audit might prove a mammoth task that might
deplete the resources
of the NCPA and will have to be taken in a
meeting in terms of the Constitution.
[106] Since it is the
relief also sought from the court that the Director General assist
the beneficiaries with the
preparations for the elective AGM in the
very near future, some of these decision can be delayed until the AGM
when the decision
can be made by the electorate in terms of the
Constitution which by then it would be expected will include the
members that were
excluded due to the delayed verification process.
The elections should fairly be held after the finalization of the
verification
process so that they can be inclusive of all those that
are justifiable beneficiaries in terms of the Restoration of the Land
Act.
The members are also to be furnished with copies of the
financial statements that has been issued by the auditors to date,
before
the elections, so that they can make an informed decision with
regard to the decision to initiate a forensic audit of the NCPA.
[107] The Applicants
have also made an allegation on the distribution of the benefits by
the the EC which is in essence
is that the distribution was premature
as the verification of the members was not yet finalised with most of
the members of the
Mavhuraka community not yet verified. Also such
distribution not to have been effected in terms of the NCPA
Constitution which
the EC was bound to follow. It is alleged that
nobody knows what process the EC followed. It is common cause that
the verification
as at time of the institution of the proceedings was
not yet finalised. During the hearing the court was advised that the
verification
process has been embarked upon by the Director General's
office and was to be finalised in a few months. The distribution of
the
benefits was also common cause that it was only to the members
that have been verified. There was no proper policy with regard to
a
distribution of benefits that was to take place before the
verification is finalised, especially as to how the other members
that might be later verified who have been on the original list of
members all along but would have lost on an opportunity to benefit
because of the delay in their verification were going to be
accommodated.
[108]
I am mindful that the decision to
consider the initial distribution of R10000 (ten thousand rand) was
before the period of the existing
EC but during the period between
the resignation of the first EC of Sambo which the 1
st
Applicant Mathebula was part of, and the transient EC with the acting
Chairperson Mkansi in control. The present EC cannot be shouldered
with the responsibility. The EC of Samba should be held accountable
for the distribution as is alleged by the NCPA. It was during
the
final days of the 4 executive committee members that includes
Mathebula.
[109]
From the minutes of the AGM of 23 Nov
2014 it is obvious that the intention of the NCPA was to speed up the
process of verification
and only then was the distribution going to
take place, which was a clearheaded valid consideration. The plan was
to finalise verification
that was indicated to be ongoing by June
2015. It was also indicated in the minutes and activity report that
the first benefit
distribution was to be effected by June and July
2015. According to the Applicants the EC failed to fulfil the
undertaking on the
finalisation of the verification of members but
nevertheless proceeded with distributions on June 2015. It is not
indicated whether
or not the midterm Special General Meeting in June
2015 did materialise and if a policy to be applied in the
distribution was established,
a key function of the EC which required
the approval of the AGM. The minutes reported on the intention to do
so after final verification
has been finalised . Neither Mathebula or
Samba sheds lights on what influenced the decision to proceed with
the distribution even
though verification was not finalised.
[110]
The distribution was consequently done contrary to the decision and
planning of the AGM. However the responsibility
cannot be put on the
shoulders of the present EC as at the time the NCPA was under the
control of the first elected EC or transient
EC. The distribution was
in breach of the NCPA Constitution, the Act and the resolution taken
at the 2014 AGM. Clause 7.3 provides
that members of the Association
shall be dealt with in such a manner as to ensure that all members
receive the same or similar
benefits and that any arbitrary
distinction or unfair discrimination shall be avoided. For that
reason, the finalisation of the
verification process has become
critical for the situation to be rectified ; sees 9 (E) (iii).
[100]
It is thus a fact that those who are members and were not verified at
the time, who would have been positively
verified if verification was
finalized would have been unfairly excluded from the distributions
not because of their doing, but
due to failure of the EC or Director
General to finalise the process in time. In that case distribution
when others have not yet
been verified is certainly contrary to
justness. As a result no further distributions are to be effected
until a proper policy
is developed that is accommodative of the
errors of the NCPA EC. It is imperative that the Director General and
the present EC
together oversee the finalization of verification
process. It is expected that it should have been finalized by now. It
means before
any further distributions are made to beneficiaries a
compensatory payment to the beneficiaries whose verification was
delayed
but finally verified be considered.
[111]
It goes the same with the second distribution effected on September
2016, it was also not implemented as per terms
of the provision of
the law or the Constitution. Verification of the majority of those
who were recognized as part of the land
claimants, that includes
amongst others, the community of Mavhuraka was still not finalized.
The distribution as a result was again
done unfairly and
discriminatorily. The situation justifies the call for serious urgent
measures to be embarked upon to redress
the situation. Mkansi was
supposedly the acting chairperson since it was during the transient
period. Mthabine however says he
approved the payments which could
not be as he was not yet elected. According to him he was elected on
22 October 2016. It is also
disconcerting to realize that it was at
the time when the acting Mkansi and the EC Chairperson was aware that
elections where expected
to take place in a month's time. I am not
convinced that the Applicants were not aware of the impending
elections on 22 October
2016 as they have indicated in their own
words that at the time they resolved with the delegation from the
Minister's office that
any further action would await the elective
AGM on 22 October 2016. However that does not justify the
distribution before finalization
of the verifications.
[112]
It is also concerning to realize that even though this is one of the
most important responsibility that our nation
is saddled with the
recognition of the rights of our indigenous people to ownership of
their previously repossessed land, the government
fails to comprehend
that monitoring and training of the structures that are set up until
the claimants are equipped with the necessary
skills to take total
control is a role the government will have to continuously play. The
court has therefore seen it necessary
that judicial oversight should
be exercised in this instance that requires some of the orders to be
made.
[113]
The Applicants have also accused the NCPA EC of gross violations or
maladministration of the resources of the
NCPA by the executive
members which has resulted in the squandering of funds and as a
result obliged them to take the necessary
steps. The allegations have
not been substantiated with any further evidence except for the
distribution of the benefits that has
occurred discriminatorily
without any proven resolution or policy adopted by the members. The
two payments as indicated happened
during the period of the initial
EC and the second one during the transient EC. As it is the period
that elections are supposed
to take place, it is not necessary that
all the affairs of the NCPA be placed under administration which in
any case lies with
the courts located in the Mpumalanga area. If the
verification process has been finalised the Director General can
proceed with
the arrangements for the AGM.
[114]
Under the circumstances I make the
following order:
[1]
The Application to
place
the
NCPA
under the administration
of the
Director General is dismissed:
[2]
Prayer 2 is granted in that the NCPA is
hereby ordered to submit all documents in their possession including
financial records to
the Director General,
and
also to be distributed to its membership
within
30 days of the order of this court
disseminated
by publishing the statements on their website as well and a notice
published on their availability either on their
website or by
request.
[3]
The Director General is hereby directed
to release the results of the
verification process that it embarked on and was to be completed by
July/ August 2018 within 30 days
of this order. If such verification
is not finalised the Director General is ordered to finalise
the
verification of all beneficiaries
within 30 days of this order and furnish the Applicants and the NCPA
members with a copy of the
report within 15 days of such completion.
[4]
That the Director General
should
soon after the release of the report on the verification process
assist the beneficiaries of the NCPA to prepare for the
Annual
General Meeting and the elections of the new executive committee
members of the NCPA within 60 days of the order of the
court.
[5]
The decision to
institute a forensic investigation into the
affairs of the NCPA
is deferred to the elective AGM, that is to
be held in terms of the Constitution within 60 days of the order of
the Court with the
assistance of the Director General
[6]
The Director General should
conduct
an investigation regarding the dispute between the beneficiaries and
the executive members
of the NCPA.
The investigation should be concluded within 6 months of the order of
this court;
[7]
a progress report on the investigation
compiled by the Director General should be served on the Applicants
and NCPA members by publication
on the website within 3 months of the
order of this court.
[8]
That the 6
th
Respondent be and is hereby ordered
to furnish records of the NCPA's monies that was held in their Trust
Account to the Director
General
within
30 days from the order of this Court;
[9]
That the Director General
will
give direction as to all monies to be received on behalf of the NCPA
from the date of the order of this
Honourable Court which will be banked in the NCPA bank account. *
[10]
No order as to costs.
N
V KHUMALO
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
On
behalf of Applicant:
H M MZILA MEYER
Instructed
by
MZI & ASSOCIATES INC
Tel: 0033 346 2997
Ref:01/M10039/001
C/O MKHIZE ATTORNEYS
Tel: 011 486 0290
Fax: 011 486 0295
On
behalf of 2
nd
Respondent:
ADV D MEYER
Instructed
by :
GILFILLIAN DU PLESSIS INC
Tel: (012) 303 7584
Fax: 012 320 6852
Ref: GENLIT/LOU/B567