About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2019
>>
[2019] ZANCHC 51
|
|
Babatas Communal Property Association v Lebatlang and Others (957/2019) [2019] ZANCHC 51 (4 October 2019)
Reportable:
YES/
NO
Circulate
to Judges:
YES/
NO
Circulate
to Magistrates:
YES
/NO
Circulate
to Regional Magistrates:
YES
/NO
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 957/2019
Heard
on: 19/07/2019
Delivered
on: 04/10/2019
In
the matter between
BABATAS
COMMUNAL PROPERTY
1
st
Applicant
ASSOCIATION
(Registration Number:
CPA/11/1276/A)
LEBATLANG
KABELO
2
nd
Applicant
GASEHETE
JOSIAS
3
rd
Applicant
MANGWAKWE
KAGISO
4
th
Applicant
MAKGALANYANE
MASABATA
5
th
Applicant
BAITSOMEDI
MATLKALA
6
th
Applicant
MOHAMMED
AZALELAH
7
th
Applicant
KGALADI
LUCIA
8
th
Applicant
MOTSWAKADIKGWA
MABENA
9
th
Applicant
MOAMOGWE
JOSEPH
10
th
Applicant
OLYN
OBAKENG
11
th
Applicant
And
ABSA
BANK
1
st
Respondent
MEC
FOR AGRICULTURE, LAND REFORM
2
nd
Respondent
AND
RURAL DEVELOPMENT, NORTHERN
CAPE
PROVINCE
MATHEBULA
ONALERONA
3
rd
Respondent
KOTIE
TSHENOLO
4
th
Respondent
JUDGMENT
PAKATI
J
INTRODUCTION
[1]
This is an application for confirmation of an interim interdict
granted on 03 May 2019 by Stanton AJ on an
unopposed basis in the
following terms:
“
1.
The 3
rd
and 4
th
Respondents be called upon to show cause on Friday 07 June 2019 at
09h30 or soon thereafter as Counsel may be heard, why the following
final relief should not be granted:
1.1
The
Second – Eleventh Applicants are hereby declared to be validly
elected as the First Applicant’s Executive Committee
Members of
the Applicant, at the General Meeting of the First Applicant held on
20 January 2018;
1.2
The
First Respondent is hereby directed to grant the First Applicant
immediate access and control of its cheque bank account number
4077534618, held with the First Respondent; and to change the
signatories to the said account to the relevant nominees of the First
Applicant, immediately; and
1.3
The
costs of this application shall be borne by the Third and Fourth
Respondents, on an Attorney and own Client Scale; jointly and
severally, the one paying the other to be absolved.
2.
The
relief granted in paragraph 1, 1.1, 1.2 above shall operate as an
interim interdict with immediate effect.
3.
A copy of
this order must be served on the 3
rd
and 4
th
Respondents personally.”
[2]
On 29 April 2019 the first respondent, Absa Bank, filed a notice to
abide the decision of the court. By
agreement between the
applicants and Absa Bank the applicants seek no costs order against
Absa bank. Only Ms Mathebula Onalerona
and Mr Kotie Tshenolo,
third and fourth respondents, filed a notice to oppose dated 05 June
2019. On 07 June 2019 the rule
was extended to 19 July 2019
when argument was heard and costs were reserved.
[3]
Mr Kabelo Lebatlang, the second applicant deposed to the founding
affidavit on behalf of the first applicant,
Babatas Communal Property
Association (the CPA). Messrs Gasehete Josias, Mangwakwe
Kagiso, Makgalanyane Masabata, Baitsomedi
Matlakala, third to sixth
applicants, are deputy chairperson, secretary, deputy secretary and
treasurer of the first applicant
respectively. The remainder of the
applicants, Mr Mohammed Azalelah, Ms Kgaladi Lucia, Messrs
Motswakadikgwa Mabena, Moamogwe Joseph
and Olyn Obakeng are seventh
to eleventh applicants respectively. They are additional
members of the CPA.
[4]
The second respondent, the MEC Department of Agriculture Land Reform
and Rural Development (the MEC), is cited
in his official capacity
and no relief is sought against him. Third and fourth
respondents are members of the erstwhile executive
committee of the
CPA who were not elected into the current one.
FACTUAL
BACKGROUND
[5]
The CPA was established in terms of the provisions of the Communal
Property Association Act (the Act)
[1]
and registered on 05 April 2011 in terms of section 8 (3) of the Act.
Its last elections of the executive were held on 23 May 2015
with its
term ending in May 2018. On 26 October 2015 the MEC’s
Provincial Shared Services Centre (PSSC) received a request
for
intervention to mediate between the members and the newly elected
executive committee. According to the CPA constitution only
bona fide
members shall become eligible for membership of the executive
committee. It transpired that some non-members of
the newly
elected committee had been elected to the executive and this was the
main dispute between the parties. On 05 September
2016 the
deputy chairperson of the CPA forwarded a letter to the MEC
requesting intervention. This resulted in a series of
mediation
meetings being held in terms of section 10(2) of the Act. It
was resolved that a new executive committee should
be appointed.
[6]
The appointment of a conciliator by the Director-General is provided
for by section 10(2) of the Act which
empowers him (in this case, the
Provincial Department of Land Affairs), inter alia, on his or her own
accord request or at the
request of the community, an association or
any member thereof to appoint a conciliator acceptable to the parties
to the dispute
to assist in resolving any issues between the
association and its members or community members.
[7]
If the parties to the dispute cannot reach an agreement on the person
to be appointed, the relevant Director-General,
may appoint a person
who has adequate experience or knowledge to conciliate community
disputes. In terms of section 10(3)
a conciliator appointed in
terms of section 10(1) is obliged to attempt to resolve the dispute
by:
7.1
mediating the dispute;
7.2
fact-finding relevant to the resolution of the dispute;
7.3
making a recommendation to the parties to the dispute; and
7.4
In any other manner she/he considers appropriate.
[8]
Section 10(4) for its own part enjoins the conciliator to report to
the relevant Director-General and all
parties to the dispute, on the
result of his or her conciliation and make recommendations thereto.
It is significant to point
out that all discussions taking place and
all disclosures and submissions made during conciliation are
privileged unless the parties
agree otherwise. It is for these
reasons that the PSSC appointed a panellist to regularise the
applicant. The Director-General
may
require
the members to conduct an election for a new committee, if the
integrity, impartiality or effectiveness of the committee
or any
member of the committee is in question hence an agreement
was
reached that an Annual General Meeting (AGM) should be held and focus
on the elections instead of other provisions of the constitution.
[9]
In order to monitor compliance with the provisions of the
constitution and the Act the MEC acts in terms of
section 11(6) &
(7) of the Act which provides:
“
(6)
If a dispute arises within an association or provisional association
the Director-General may, of his or her own accord, or
at the request
of a member of the association or provisional association-
(a)
undertake
an enquiry into the activities of the association or provisional
association, in which event he or she shall take reasonable
steps to
ensure that interested parties are made aware of the enquiry and of
its outcome;
(b)
advise
the association or provisional association and the members of their
respective rights and obligations;
(c)
make a
conciliator contemplated in section 10(2) available to assist in the
resolution of dispute;
(d)
require
the members to conduct an election for a new committee, if the
integrity, impartiality or effectiveness of the committee
or any
member of the committee is in question;
(e)
initiate
proceedings contemplated in section 13; or
(f)
Take such
other reasonable measures as he or she considers appropriate in the
circumstances.
(7) When acting in
terms of subsection (6) the Director-General shall be guided by the
aim of resolving the dispute in accordance
with the provisions of the
constitution of the association.”
[10] The AGM was
convened on 25 November 2017 and 03 December 2017 and on both
occasions a quorum could not be reached. On
20 January 2018 the
AGM was again convened and it was quorate in terms of clause 19.8 of
the CPA constitution. The results
were generally accepted and
complaints were only received after the AGM was adjourned. Clause
19.8 provides:
“
The
quorum
for any general assembly shall not be less than half the members as
recorded in the register. Should a quorum not be present within
one
hour after the time appointed for the meeting, it shall stand
adjourned to the same day and the same time the following week.
Should a quorum not be present within one hour after the time
appointed for such adjourned meeting, the adjourned meeting shall
stand adjourned to the same day at the same time the following week.
At the second adjourned meeting such members as are present
shall be
deemed to form a quorum. This paragraph is subject to paragraph
18.3.1 [of the constitution].”
[11] In the
absence of any serious challenge the elections of the executive
committee would not only be lawful but would have
been conducted
freely and fairly in an appropriate and quorate forum.
[12] On 01
February 2018 a meeting was held to mediate on the complaints raised
by the erstwhile members. A resolution
that mediation should be
conducted by the national office as the provincial officials were
part of the impugned election process
and might potentially be
conflicted was taken. For impartiality and good governance the
complainants were given an opportunity
to detail and clarify their
complaints, which they failed to do, the applicants argue.
[13] On or about
April 2018 the executive committee met with the PSSC and it was
resolved that the general meeting should
be called by the MEC to
enable the community to carry on with the business of the CPA. On
12 May 2018 another meeting was
held in order to attend to the
complaints but it yielded no results and was postponed to 06 June
2018. On 06 June 2018 a
list of members was verified by the
officials from the MEC’s office. The complainants led by
Ms Mathebula and Mr Kotie
were disruptive and attacked the officials
from the office of the MEC.
[14] The
applicants allege that it became clear to the PSSC that the
complainants as well as third and fourth respondents
were not
interested in the dispute being resolved and it decided to register
and confirm the newly elected members of the executive
committee of
the CPA. On 21 August 2018 the MEC also confirmed the appointed
executive committee who would be serving in
that portfolio for three
years in compliance with the constitution and lapse on 19 January
2021. On 11 March 2019 the Provincial
Head-Northern Cape
Provincial Shared Service Centre Department of Rural Development and
Land Reforms addressed a letter to OC Koikanyang
Attorneys, the
attorneys of record of the applicants, which records:
“
ELECTIONS
OF BABATAS CPA COMMITTEE
I
refer to the above matter. As the Department responsible for CPAs in
the Province of the Northern Cape, we hereby confirm that
the
elections of Babatas CPA Executive Committee were free and fair.”
[15] Notably, the
above decision was neither appealed against by the third and fourth
respondents nor did they approach court
for an order setting it
aside. According to the applicants the respondents disrupted
the smooth running of the CPA.
[16] The
applicants own Broughton and Hatnollds Farms over and above three
other farms known as Farm Eildon, Shelford Skema;
Farms Vredebron,
Cropwell and Shelford Skema. The applicants allege that there
were various agricultural operations that
were undertaken on the
abovementioned farms, namely agricultural produce and stock breeding.
According to the applicants
the CPA needs funds to effectively
and successfully run the said operations as well as paying its
labourers, administrative staff
and electricity. After their
appointment as executive committee members they allege that they
could not transact on the CPA’s
account as Absa Bank informed
them that the CPA’s account had been frozen until the dispute
between the parties has been
resolved. On 12 October 2018 the
applicants’ attorney of record addressed a letter to Absa Bank
advising it that the
new executive committee had been appointed and
therefore it should unfreeze the account. Absa Bank responded
in a letter
dated 16 October 2018 sent to Koikanyang Attorneys which
reads:
“
I
confirm that a hold has been placed on the account until we have
received confirmation that the dispute between you and the former
officials has been resolved. Please note that it is imperative that
the bank is satisfied that the persons so representing Babatas
Communal Property Association is so authorised in terms of the
constitution.
Please
note that the bank is under threat of legal action
.
Please find letter attached confirming same.
I
thank you for the reference to Communal Property Association and now
understand the involvement of the Department of Rural Development
&
Land Reform.
I
have, however, read the act and cannot locate the provision
empowering the Department to act on the association’s behalf
or
to record the minutes of the AGM and the like. To expedite the
resolution of the query please can you be so kind as to point
same
out to me as their involvement appears to be restricted to assistance
in respect of the formation of the association’s
constitution.
There
is a current dispute between the various members surrounding the
appointment of the Chairperson, Secretary and Treasurer,
we will
require the following in addition to your mandate:
(i)
A dated
resolution from the Babatas CPA Committee as the current resolution.
(ii)
A
resolution and minutes of the Annual General Meeting “AGM”
that the Chairperson, Secretary and Treasurer have been
appointed as
committee members at an (sic) as per Rule 13.1 of the Babatas
constitution;
(iii)
A
resolution and the minutes of a general meeting appointing them as
Chairperson, Secretary and Treasurer as required by Rule 12.3
of the
Babatas Constitution.
Please note that the
bank is not prepared to take the risk of allowing any person to
provide the bank with instructions to close
or withdraw funds unless
the bank is satisfied that there has been compliance with our
client’s constitution. Please note
that your dispute is not
with the bank and we will welcome a court order authorising the
legitimately appointed members to sign
and do the necessary to access
the account.” My emphasis
[17] On 17
October 2018 the applicants’ attorney of record again forwarded
another letter to the bank in response to
the letter dated 16 October
2018. He informed the bank that in terms of section 10 of the
Act the department is authorised
to be involved in the resolution of
a community dispute and ensure that the object of the Act and the CPA
constitution are adhered
to. Furthermore he informed the bank
that elections were held as per procedure and the results were
announced by the Departmental
official in charge of the elections
immediately after the voting process by the members and the names of
the new executive committee
members were read out to the members;
that there were no minutes of the meeting as it was strictly
concerned with the election
of new committee members and the
Department produced a report of what transpired on 20 January 2018 as
the body in charge of the
election. He also explained that the
dispute was self-created by some of the previous committee members
who took part in
the said elections but lost. However, Absa Bank
still refused to unfreeze the account on 18 October 2018. It
reiterated that
it still needed to be satisfied that the election
process was correctly followed, alternatively that there was
mediation agreement.
Although the Bank was informed of the
procedure by Koikanyang Attorneys it still insisted on production of
more information
thereby refusing to unfreeze the account.
[18] The
respondents raised, in limine, that there exists a dispute of fact as
to whether or not the second to eleventh applicants
were validly
elected in January 2018 as members of the CPA executive committee and
for that assertion they relied on Rule 6(5)
(g) of the Uniform Rules
of Court.
[2]
[19] According to
the respondents the applicants should have foreseen the existence of
a factual dispute between the parties.
They allege that no minutes or
attendance register and the verification list of members of the CPA
who were present at the meeting
was attached in support of their
allegation that the meeting was quorate.
[20] The
respondents allege further that the deponent to the founding
affidavit has no authority to act on behalf of the members
of the
CPA. They rely on
Graham V Park Mews Body Corporate and
Another
where it was held:
“
[19]
Whether a formal resolution is required in order to give an
individual the necessary authority to act in legal proceedings
on
behalf of a juristic person, it seems, depends on the circumstances
of each case.
[20]
In Tattersall and another v Nedcor Bank Ltd
[1995] ZASCA 30
;
1995 (3) SA 222
(A) at
228F-229D
[also
reported at
[1995] 2 All SA 365
(A) – Ed], it
was held that if according to the evidence it is clear who would be
the person that would act on behalf of
a juristic person, then that
evidence would be sufficient to indicate that the person so mentioned
would have the necessary authority.
As stated in the words of
Nedstadt JA “to hold otherwise would be carrying formality too
far”.
[21]
This view was further shared by a Full Bench of this Court in Mall
(Cape) (Pty) Ltd v Merino Ko-operasie
BPK
1957 (2) SA 347
(C) and at
352 [also reported at
[1957] 2 All SA 242
(C) – Ed] it was held
that: “Each case must be considered on its own merits and the
court must decide whether enough
evidence has been placed before it
to warrant the conclusion that it is the applicant which is
litigating and not some unauthorised
person on its behalf.
I, therefore, dismiss
the argument that the second respondent lacked the necessary
authority to act on behalf of the first respondent.
The first
respondent is, therefore properly before this court.”
[3]
[21] The issue to
be determined is whether or not the second to eleventh applicants
were validly elected as the CPA’s
executive committee during
the elections held on 20 January 2018 and whether or not the interim
order granted on 03 May 2019 should
be confirmed. The
applicants maintain that the elections were free and fair and were
therefore validly appointed as executive
committee members. In
the contrary the respondents insist that there is a ‘
serious
dispute of fact’
and request the Court to dismiss the
application with costs.
LEGAL
STANDING OF THE DEPONENT TO THE NOTICE OF MOTION
[22] The
respondents allege that the second applicant launched the application
on behalf of the alleged newly elected executive
committee of the CPA
and not the members of the CPA. On 17 April 2019 the executive
committee resolved that the second applicant,
Mr Kabelo Lebatlang in
his capacity as the chairperson, was authorised to sign all
documents, affidavits, pleadings and notices
to give effect to the
institution of legal proceedings against Absa and other respondents.
The said resolution was signed
by ten other members which means that
the majority of the executive committee members authorised Lebatlang
to continue with these
proceedings.
[23] It is not
provided for in the constitution and in the Act that a resolution
would be taken by the members of the CPA
and not the executive
committee. Therefore the respondents’ argument in this
regard cannot stand. In my view, Lebatlang
was so authorised to act
on behalf of the CPA members.
WHETHER
OR NOT THERE EXISTS A DISPUTE OF FACT
[24] The
respondents allege that there is a ‘
serious dispute of fact’
in this matter as alluded to earlier. The applicants dispute this.
Corbert JA in
PLASCON EVANS-PAINTS v VAN RIEBEECK PAINTS
held:
“
It
is correct that, where in proceedings on notice of motion disputes of
fact have arisen on the affidavits, a final order, whether
it be an
interdict or some other form of relief, may be granted if those facts
averred in the applicant’s affidavits which
have been admitted
by the respondent, together with the facts alleged by the respondent,
justify such an order.”
[4]
[25] At 635C the
learned Judge held further:
“
Moreover,
there may be exceptions to this general rule, as, for example, where
the allegations or denials of the respondent are
so far-fetched or
clearly untenable that the Court is justified in rejecting them
merely on papers.”
[26] In my view,
no dispute of fact exists in this matter. The respondents have
raised a bare denial without factual
foundation. They have not
taken this Court into their confidence and explain the dispute of
fact that they allege exists.
WHETHER
OR NOT THE APPLICANTS WERE VALIDLY APPOINTED AS THE CPA’S
EXECUTIVE COMMITTEE IN THE MEETING HELD ON 20 JANUARY 2018
[27] Clause 13 of
the CPA constitution deals with the appointment of committee members.
Sub-clauses 13.1 to 13.4 provide:
“
13.1Any
person who is a member of the Association may become a Committee
member at an annual general meeting subject to the appointments
procedure below.
13.2
At any general meeting of the members, the members may, subject to
the provisions in this Constitution by a simple majority
elect a
Committee member.
13.3
Subject to paragraph 13.4 Committee members shall hold office for
three (3) years from the date of election or until they are
obliged
to vacate in terms of clause 17.
13.4 The appointment of
the initial Committee shall terminate at the first annual general
meeting of members which takes place after
registration of the
Association with the Department of Rural Development and Land Reform.
The initial Committee members shall be
eligible for re-election.”
[28] On 21 August
2018 Mr JT Sebape, the registration Officer: Communal Property
Institutions, forwarded a letter to the Department
of Rural
Development and Land Reform which records:
“
CHANGE
OF EXECUTIVE COMMITTEE MEMBERS OF BABATAS COMMUNAL PROPERTY
ASSOCIATION, REGISTRATION NUMBER: (CPA/11/1276/A).
This serves to
acknowledge receipt of your request sent to the Communal Property
Institutions (CPI’s) Registration Officer
to register the new
executive committee of Babatas Communal Property Association (CPA).
It is with great pleasure
to inform you that the changes have
been recorded and the new executive committee of Babatas CPA is as
follows with effect from
the 20
th
January 2018:
NAME
ID NUMBER
DESIGNATION
Lebatlang
Kabelo
730412 5929
082 Chairperson
Gasehete
Josias
481021 5291 087 Deputy
Chairperson
Mangwakwe
Kagiso
830703 5633 081
Secretary
Makgalenyane
Masabata 880131 0651 081
Deputy
Secretary
Balcomedi
Natlakala
850109 0939 082 Treasurer
Mohammed
Azaela
661010 1981 082
Additional
Member
Kgaladi
Lucia
7611150729 082 Additional
Member
Motswakadikgwa
Mabena 610922 5794 083
Additional
Member
Moamongwe
Joseph
500416 5861 086
Additional
Member
Olyn
Obakeng
800209 5417 080 Additional
Member
In
terms of clause 13.3 of the CPA constitution the term of office for
the executive committee is 03 (three) years, therefore the
term of
office for this executive committee shall lapse on the 19
th
January 2021.”
[29] On 11 March
2019 Mr Kgotso Moeketsi, the Provincial Head, Northern Cape
Provincial Shared Service Centre, Department
of Rural Development and
Land Reform, sent a letter to Mr Koikanyang and informed him that as
the department is responsible for
CPAs in the Northern Cape, the
department informs him that “
the elections of Babatas CPA
Executive Committee were free and fair.”
[30] Taking into
account that the MEC had already endorsed and promulgated the new
executive committee members appointed on
20 January 2018 he is not in
a position to change his decision because he is
functus
officio
.
If the respondents feel aggrieved by the said elections and
endorsement, as they seem to be, they should approach the Minister
to
uphold the appeal in whole or in part, rescind or vary the decision
or dismiss the appeal as contemplated in section 16 of the
Communal
Property Association Act 28 of 1996
[5]
.
For as long as the respondents have not done so, as in this case, the
MEC’s endorsement and promulgation as contained
in the letter
of 21 August 2018 stands and is valid. This position was
confirmed by
MERAFONG
CITY v ANGLOGOLD ASHANTI
where
Cameron J held:
“
[41]
The import of
Oudekraal
and
Kirland
was
that government cannot simply ignore an apparently binding ruling or
decision on the basis that it is invalid. The validity
of the
decision has to be tested in appropriate proceedings. And the sole
power to pronounce that the decision is defective, and
therefore
invalid, lies with the courts. Government itself has no authority to
invalidate or ignore the decision. It remains legally effective
until properly set aside.
[42]
The underlying principles are that the courts' role in determining
legality is pre-eminent and exclusive; government officials,
or
anyone else for that matter, may not usurp that role by themselves
pronouncing on whether decisions are unlawful, and
then
ignoring them; and, unless set aside, a decision erroneously taken
may well continue to have lawful consequences. Mogoeng
CJ explained
this forcefully, referring to
Kirland
, in
Economic
Freedom Fighters
. He pointed out that our constitutional
order hinges on the rule of law:
'No
decision grounded [in] the Constitution or law may be disregarded
without recourse to a court of law. To do otherwise would
''amount to
a licence to self-help''. Whether the Public Protector's decisions
amount to administrative action or not, the disregard
for remedial
action by those adversely affected by it, amounts to taking the law
into their own hands and is illegal. No binding
and constitutionally
or statutorily sourced decision may be disregarded willy-nilly.
It has legal consequences and must be
complied with or acted upon. To
achieve the opposite outcome lawfully, an order of court would have
to be obtained.'”
The
respondents have failed to take the matter to court for review or on
appeal to the Minister and therefore the MEC’s decision
stands.
[31] Regarding
access and control of its cheque bank account
the
applicants rely on Clause 21.2 of the constitution which provides:
“
At
the annual general meeting of the Association a budget of the
Association shall be adopted for the income and expenditure for
the
ensuing financial year, and no funds shall be disbursed other than in
accordance with such budget, provided that the members
may by
resolution in general meeting amend such budget from time to time.”
[32] The primary
objects of the association are recorded in clause 5 of the CPA
constitution thus:
“
5
OBJECTS OF ASSOCIATION
5.1
The primary object of the Association shall be to collectively
acquire, hold and manage property in common on behalf of the
members
of the Association, for the purposes of, and subject to the terms of
this Constitution and the Act.
5.2
The further objects of the Association shall be:
5.2.1
To manage and administer the Association’s and its natural
resources for the benefit of the members in accordance with
the
provisions of the Constitution, in a participatory and
non-discriminatory manner.
5.2.2
To encourage economic self-reliance and self-sufficiency and the
cultural and social well-being of the members of the Association
and
the dependants through farming or any other lawful business or
activities and by improving and developing the standard of
agricultural or other forms of economic production within the area
where the Association operates, while protecting the environment
as
required by the law.
5.2.3
To raise, receive and hold funds, from any lawful source, for the
benefit of the Association, and to manage, administer and
disburse
those funds in pursuance with the objects of the Association and for
administrative purposes.
5.2.4
To conduct and operate any financial assistance or subsidy programme
or project to achieve the primary objects of the Association
of
persons conducting such a programme or project, such activities to
include but not limited to technical assistance, education
and
co-operative purchase to help farmers or business people increase
production, lower production cost and market their products.
5.2.5
To guarantee, upon such conditions as the Association may determine
the obligations of any person, including any Association
of persons,
in respect of any activity such persons may engage in and what are
consistent with the primary objects of the Association.
5.2.6
The development of agriculture and opportunity for small scale
agriculture and other job opportunities.
5.2.7
To execute any action as may serve to address poverty, unemployment,
socio-economic needs and historical disadvantages among
its members.
5.2.8
To foster an environment of co-operation and communication to reach a
common objective amongst the members of the Association.”
[33] When Absa
bank froze the CPA’s bank account it defeated the whole purpose
of the CPA having a bank account in order
to maintain its primary
objectives. The CPA has to have a bank account in terms of
clause 3.3 of its constitution.
Taking into consideration that
the CPA runs more than three farms it would not be in a position to
maintain its primary objectives
if its account is frozen as it could
not pay for necessary services. It also cannot meet its daily
expenses incidental to
the administration and management of the said
farms. Having no access to the CPA’s bank account renders
it impossible
for the committee to manage the affairs of the
Association. This, in my view, is prejudicial to the CPA.
[34] Taking into
account what I have stated hereinbefore it is clear that the
application is urgent considering the need for
the smooth running of
the association. It is therefore incumbent upon the executive
committee to exercise its powers pertaining
to its office in
compliance with the constitution of the CPA. In my view, the
applicants have complied with the requirements for
a final interdict
namely, a clear right, an injury actually committed or reasonably
apprehended and absence of similar protection
by any other ordinary
remedy.
[6]
The interim
order granted on 03 May 2018 has to be confirmed.
COSTS
[35] Mr Nxumalo,
on behalf of the applicants, requested that the interim order granted
on 03 May 2018 to be confirmed with
costs on a scale as between
attorney and own client alternatively an award of costs
de bonis
propriis
because of the manner in which the respondents have
dealt with their case regarding the issue of costs yet they were
legally represented.
He states that the respondents have not
even responded to the request for the costs in the interim
application. Ms Tyuthuza,
for the third and fourth respondents,
argued that the interim order be discharged with costs on attorney
and client scale.
[36] The award of
costs is a matter wholly within the discretion of the court, but this
is a judicial discretion and must
be exercised on grounds upon which
a reasonable person could have come to the conclusion arrived at.
[7]
[37] An award of
attorney and own client costs will not be granted lightly, as the
court looks upon such orders with disfavour
and is loath to penalise
a person who has exercised a right to obtain a judicial decision on
any complaint such party may have.
[8]
The court’s discretion in this regard is not restricted to such
conduct but it includes all cases in which special circumstances
or
considerations justify the granting of such order.
[9]
[38] The
applicants request for costs on a scale as between attorney and own
client in their notice of motion. Clause 1.3
of the order dated 03
May 2018 states that costs of the application would be borne by the
third and fourth respondents on an attorney
and own client scale
jointly and severally, the one paying the other to be absolved.
This order was served personally upon
the respondents. In their
notice of intention to oppose it shows that both respondents were
legally represented by Mjila Attorneys,
an experienced attorney.
In paragraph 3 of the respondents’ answering affidavit Tshenolo
Kotiya, the deponent, confirms
that when he deposed to the affidavit
he did so pursuant to advice given to him by his legal
representative. The respondents
did not give reasons why they
were not entitled to pay costs on attorney and own client scale.
This issue was also not dealt
with by the respondents in their heads
of argument.
[39] Taking into
account the facts of this case and the manner in which the
respondents handled it thereby threatening the
bank with legal
action, an order of costs on a scale as between attorney and own
client will be justified in the circumstances.
In
the circumstances I grant the following order:
1.
The
interim order granted on 03 May 2018 is hereby confirmed.
2.
The
third and fourth respondents are ordered to pay costs of this
application on a scale as between attorney and own client, jointly
and severally, the one paying the other to be absolved.
BM
PAKATI
JUDGE
– NORTHERN CAPE DIVISION, KIMBERLEY
On
behalf of the Applicants:
ADV NXUMALO
Instructed
by:
LULAMA LOBI
INC.
On
behalf of the 3
rd
& 4
th
Respondents: ADV
TYUTHUZA
Instructed
by:
OFFICE OF THE STATE ATTORNEYS
[1]
Communal Property Association
Act 28 of 1996
[2]
Rule 6(5) (g) of the
Uniform Rules of Court provides:
“
Where
an application cannot properly be decided on affidavit the court may
dismiss the application or make such order as it deems
fit with a
view to ensuring a just and expeditious decision. In particular, but
without affecting the generality of the afore-going,
it may direct
that oral evidence be heard on specified issues with a view to
resolving any dispute of fact and to that end may
order any deponent
to appear personally or grant leave for such deponent or any other
person to be subpoenaed to appear and be
examined and cross-examined
as a witness or it may refer the matter to trial with appropriate
directions as to pleadings or definition
of issues, or otherwise.”
[3]
[2012] 1 All SA 167
(WCC) at 174-175 paras 19, 20 & 21.
[4]
[1984] ZASCA 51
;
1984 (3) SA 623
(AD) at 634H-I
[5]
Section 16 provides: “Any person aggrieved by a decision of
the Director-General may in the prescribed manner appeal to
the
Minister, who may uphold the appeal in whole or in part and rescind
or vary the decision, or dismiss the appeal.”
[6]
Setlogelo v Setlogelo
1914 AD 221
at 227
[7]
Beinash v Wixley
[1997] ZASCA 32
;
[1997] 2 All SA 241
;
1997 (3) SA 721
(A) ; see also
Norwich Union Fire Insurance Society Ltd v Tutt
1960 (4) SA 851
(A)
at 854C-E
[8]
Jewish Colonial Trust Ltd v Estate Nathan
1940 AD 163
at 183-184
[9]
Rautenbach v Symington
1995 (4) SA 583
(O) at 588A-B