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[2018] ZAGPPHC 5
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Coal of Africa Limited v Nekuvule, In re: Nekuvule and Another v Coal of Africa Limited and Others (64389/2014) [2018] ZAGPPHC 5 (12 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO:64389/2014
12/2/18
REPORTABLE:
NO
OF
INTEREST TO OTHERS JUDGES: NO
REVISED
In
the matter between:
COAL
OF AFRICA
LIMITED
APPLICANT
and
JOSEPH
MUTHUPHEINEKUVULE
RESPONDENT
In
re:
In
the matter between:
JOSEPH
MUTHUPHEINEKUVULE
FIRST APPLICANT
KUVULE
COMMUNITY
SECOND APPLICANT
and
COAL
OF AFRICA
LIMITED
FIRST RESPONDENT
KING
TONY PETER MPHEPHU,
SECOND RESPONDENT
LIMPOPO
PROVINCE
HENRY
NTHAMBELENI MUSEKWA
THIRD RESPONDENT
COMMISSION
ON RESTITUTION OF
FOURTH RESPONDENT
LAND
LIMPOPO PROVINCE
MAKHADO
MUNICIPALITY
SIXTH RESPONDENT
PREMIER
OF
LIMPOPO
SEVENTH RESPONDENT
CHAIRMAN
OF THE NATIONAL HOUSE
EIGHT RESPONDENT
OF
TRADITIONAL LEADERS
COMMISSION
ON TRADITIONAL LEADERSHIP,
DISPUTES
AND
CLAIMS
NINTH RESPONDENT
SIMON
NEMULAMBWANE
TENTH RESPONDENT
PHINEAS
RADZILANI MUDIMELI
ELEVENTH RESPONDENT
MINISTER
FOR CO-OPERATIVE
GOVERNANCE
HUMAN SETTLEMENTS AND
TRADITIONAL
AFFAIRS
TWELFTH RESPONDENT
THE
MINISTER OF MINERALS AND ENERGY
THIRTEENTH RESPONDENT
MUSHOLOBICOMMUNITY
FOURTEENTH RESPONDENT
THE
MAKUSHU COMMUNITY
FIFTEENTH RESPONDENT
THE
PFUMEMBE COMMUNITY
SIXTEENTH RESPONDENT
THE
MPHEPHU RAMABULANA TRUST
SEVENTEENTH RESPONDENT
JUDGMENT
RANCHOD
J:
[1]
This is an interlocutory application by the first respondent in the
main application, Coal of Africa Ltd (Coal), in terms of
Rule 7(1) of
the Uniform Rules of Court seeking an order in the following terms:
1.
At
the applicant's request in terms of Rule 6(5)(g), that the issue
whether the respondent has the necessary authority to represent
the
Kuvule Community (the second applicant in the main application) is
referred to oral evidence.
2.
The respondent, Joseph Muthupehi Nekuvule, shall
lead oral evidence as required to demonstrate his authority to
represent the second
applicant in the main application. Thereafter,
the respondent and all witnesses on his behalf shall be cross
examined and
applicant shall then lead evidence in rebuttal on the
question of the respondent's authority, after which those witnesses
shall
be cross-examined.
3.
In
respect of the authority issue, all the rules of trial shall apply
save that there will be no need to file any further pleadings
and the
existing Rule 7 application papers shall serve as pleadings.
4.
Costs of the Rule 7 application shall be
determined by the trial court hearing the issue of authority.
[2]
The first applicant in the main application, Mr Joseph Muthupehi
Nekuvule (Mr Nekuvule) opposes the application.
[3]
Coal says it concluded a Broad-Based Black Economic Empowerment (B-B
BEE) deal with seven traditional communities affected by
a coking
coal mining operation·known as the Makhado Project. The
Makhado Project is located across five farms in the Limpopo
Province.
Seven traditional communities (the affected communities) reside on
the five farms including the Kuvule community.
[4]
The main application has been brought by Mr Nekuvule to interdict
Coal from concluding any commercial transaction in relation
to the
Makhado Project that would benefit anybody other than the Kuvule
community. It appears from the founding affidavit that
Mr Nekuvule
seeks,
inter a/ia,
to
prevent implementation of the B-B BEE transaction. In this, he
purports to act on behalf of the Kuvule Community in his capacity
as
Headman of the Kuvule village. Mr Alfeus Denga, of Denga Inc
Attorneys (Denga), purports to act on behalf of both applicants.
[5]
Coal says it has good cause to dispute that either Mr Nekuvule or
Denga has authority to represent the Kuvule Community in the
main
application for at least the following reasons:
5.1.
Coal has in the main application challenged Mr
Nekuvule's authority to act as the Kuvule community's representative.
The purported
authority he provided in response was not only
insufficient to establish such authority; it appeared to be
irregularly created.
Individual members of the community have come
forward on oath to state that they have not authorised Mr Nekuvule to
act for them
as he claims.
5.2.
On the affidavits as they currently stand in the
main application, no authority has been proved. At the very least, a
dispute of
fact exists in the main application that must be resolved
before Mr Nekuvule should be permitted to pursue a claim purportedly
on behalf of the Kuvule community.
5.3.
Instead of pursuing the dispute raised in the
main application to its conclusion, as one would have expected, Mr
Nekuvule has taken
further steps based on these pending proceedings,
persisting in his claim that he represents the Kuvule community. He
launched
an interlocutory application for access to a wide range of
documents, including documents confidential to Coal, in an unfounded
application under rule 35.
5.4.
Who represents the Kuvule community is at the
heart of the main application. Mr Nekuvule attempts in that
application to challenge
a B-B BEE deal which Coal had concluded with
the affected communities, including the Kuvule community. The Kuvule
community democratically
elected its own representatives to act on
their behalf in consultations regarding that B-B BEE deal. Mr
Nekuvule was not elected
by the Kuvule community. The main
application can accordingly not fairly be decided without first
establishing whether Mr Nekuvule
indeed speaks for the Kuvule people,
or whether their democratically elected representative speak for
them.
[6]
Coal says it has engaged with the affected communities since 2008
regarding the establishment of the Makhado Project. In February
2012
a forum called the Makhado Colliery Community Consultative Forum
(MCCCF) was established to facilitate interaction between
the
affected communities and Coal regarding the Makhado Project.
[7]
Coal says the MCCCF was established through a negotiated process
facilitated by the government. The process involved, among
other
things, identifying the affected communities, agreeing to a
constitution for the forum, and conducting democratic and
independently
monitored elections of community representatives based
on an official voters roll. Each affected community is represented in
the
MCCCF by five democratically elected members. The current
landowners of the affected farms are also entitled to form part of
the
MCCCF.
[8]
Apparently, the participation of the Kuvule community in the MCCCF
was the subject of earlier litigation. Because the Kuvule
community
fall under the auspices of the Musekwa's traditional leadership, it
had initially not been afforded independent representation
as an
affected community on the MCCCF.
[9]
The Kuvule community approached this court on two occasions in April
and May 2012. They sought orders, among other things, to
interdict
the election of the MCCCF representatives and to seek the independent
representation of the Kuvule community. These orders
were granted.
[10]
What is important to note in this regard is that Coal says Mr
Nekuvule was not elected as a representative on the MCCCF on
behalf
of the Kuvule community. Instead, he is represented at the MCCCF by
the democratically elected Kuvule representatives.
[11]
Coal says from October 2013 to 1 September 2014, Coal consulted with
the affected communities regarding the B-B BEE strategy
for the
Makhado Project, as contemplated by the Mineral and Petroleum
Resources Development Act No. 28 of 2002 (MPRDA) read together
with
the Mining Charter. Elected representatives of the Kuvule community
participated in each of the relevant meetings.
[12]
In his answering affidavit, Mr Nekuvule does not pertinently deny
this allegation of Coal in paragraph 18 of its founding affidavit.
Instead, he responds "AD PARAGRAPHS 12 to 48" saying that
he has "already dealt with the allegations in paragraphs
16 and
17 above" and then deals with an attendance register and
signatures thereon regarding members of the Kuvule Community
who
allegedly attended a meeting on 30 August 2015
[1]
where he was authorised to represent them. I will revert to this
aspect presently. But he does say, with regard to paragraphs 12
to 48
that he denies "the allegations herein insofar as they are
inconsistent with what I have said".
[13]
On 2 September 2014 Mr Nekuvule launched the main application on an
urgent basis and sought to interdict -
13.1.
the establishement of a trust in respect of the
B-B BEE structure of the Mahado Project;
13.2.
taking of resolutions in respect of the subject
land for purposes of the Makhado Project; and
13.3.
payment of any benefits and/or royalties and/or
monies that emanate from the Makhado Project, to any trust and/or
person and/or
community other than the Kuvule community.
[14]
Coal says further that having succeeded in his attempts to obtain the
independent representation of the Kuvule community on
the MCCCF, at
some cost and effort for all parties, it was surprising that Mr
Nekuvule brought this application, purportedly on
behalf of the
Kuvule community, essentially to challenge the agreement reached
between the affected communities and Coal at the
MCCCF.
[15]
In his founding affidavit Mr Nekuvule alleged that he is authorised
to act on behalf of the Kuvule community. He said he did
not attach
proof of his authority only so as not to encumber the application
unduly. He offered to make proof of his authority
available if
required.
[16]
Coal requested a copy of the written authorisation by the Kuvule
Community. In response Mr Nekuvule furnished Coal with a document
said to be a certified extract of the minute of a meeting of the
members of the Kuvule Community held on 30 August 2014. The minute
incorporates an attendance register.
[17]
The attendance register purports to show the name, identity number
and signature of community members, who, according to Mr
Nekuvule
attended the community meeting in which he was authorised to bring
this application.
[18]
In light of the Kuvule community's participation in the consultations
under attack by Mr Nekuvule, Coal says it was surprised
at the claim
that the community had authorised a challenge to the community-based
deal concluded at the MCCCF by the Kuvule's democratically
elected
representatives.
[19]
As a result, Coal enquired from members listed in the attendance
register. At least 22 community members whose personal details
and
signatures appear on the attendance register furnished Coal with
affidavits in which they deny having either attended the meeting
or
signed the register.
[20]
Mr Nekuvule did not file a replying affidavit in the main application
hence the allegations by Coal remained unanswered as
regards his
authority to act on behalf of the Kuvule community. Coal then
launched this Rule 7(1) application.
[21]
Mr Nekuvule filed an answering affidavit of about 27 pages (excluding
the annexures). His submissions in opposing the Rule
7(1) application
have been set out in his counsel's heads of argument. It is contended
that in an application in the Land Claims
Court under case number LCC
71/14 the Court declared Mr Nekuvule to be the legitimate
representative of the Kuvule Community. That
order has not been set
aside, hence it remains valid and, so the argument went, Mr
Nekuvule's right and authority to represent
the Kuvule community
remains intact as well as his right to instruct Denga Attorneys.
[22]
In my view, neither of the submissions withstand scrutiny. The fact
that Mr Kuvule was recognised as the legitimate representative
of the
Kuvule Community in the LCC case does not necessarily mean that he
has the authority to represent the community in another
separate
legal case. It may well be, for whatever reasons, that the community
or some of its members may not want to litigate on
an issue and
therefore not provide the requisite authorisation. In this matter it
goes further. Mr Nekuvule chose to prove his
authority by furnishing
a minute and the attendance register. At least twenty two
persons deny having attended the meeting
and also their signatures in
the attendance register.
[23]
Mr Nekuvule counters these allegations by saying that a
representative of Coal had coerced some of the individuals to furnish
the affidavits and in other instances bribing them by offering them
jobs at Coal.
[24]
Clearly, there is a dispute of facts which cannot be resolved on the
papers.
[25]
A further submission which was made by Mr Kuvule's counsel during
oral argument was that a Headman of a tribe or community
is
automatically authorised to represent the community. I was referred
to
Hlaneki v Commission on Restitution of Land Rjghts
[2006] All
SA
633
(LCC) at 637 paras {7] and [BJ
where Moloto J said
-
'7 It is common cause
that the claim form states that the claimant is the third applicant
and that the basis on which the first
applicant contended that he
represented the third applicant is that he is the chief of the third
applicant. It is also common cause
that, with the form was submitted,
among others, a document entitled "Gazankulu Wetgewende
Vergadering: Sertifikaat van Regsmag:
Kaptein Chabane Jackson
Hlaneki." The body of this document grants Chief Chabane Jackson
Hlaneki (the first applicant) civil
and criminal jurisdiction over
his tribe, the third applicant. The document was submitted in
substantiation of the contention that
the first applicant represented
the third applicant in submitting the claim form. None of the
respondents queried the validity
of the document or the chieftainship
of the first applicant over the third applicant. Yet the second and
third respondents decided
the form did not comply with section 10(3).
8 It is important to note
that section 10(3) calls for a "resolution or document" (my
emphasis) in support of the contention
that the actor represents the
principal. It is a well-known fact, which this Court can take
judicial notice of, that chiefs act
as representatives of their
tribes. A document showing that the first applicant acts on behalf of
the third applicant by virtue
of the powers and jurisdiction he has
over the third applicant is sufficient proof of this representative
capacity without necessarily
necessitating a special resolution
authorizing him to lodge the claim.'
[26]
The case of
Hlaneki
can
be distinguished from the present matter in that the court was
clearly referring to the "Gazankulu Wetgewende Vergadering:
Sertifikaat van Regsmag: Kaptein Chabane Jackson Hlaneki" as
being the basis upon which it was not necessary in that case
to
provide a special resolution. That is not the case in this matter
before me.
[27]
In all the circumstances, a proper case has been made out by Coal for
a referral to oral evidence regarding the issue of Mr
Nekuvule's
authority to represent the Kuvule Community in the main application.
[28]
I make the following order -
1.
At
the applicant's request in terms of Rule 6(5)(g), the issue whether
the respondent has the necessary authority to represent the
Kuvule
Community (the second applicant in the main application) is referred
to oral evidence.
2.
The respondent, Joseph Muthupehi Nekuvule, shall
lead oral evidence as required to demonstrate his authority to
represent the second
applicant in the main application. Thereafter,
the respondent and all witnesses on his behalf shall be cross
examined and
applicant shall then lead evidence in rebuttal on the
question of the respondent's authority, after which those witnesses
shall
be cross-examined.
3.
In
respect of the authority issue, all the rules of trial shall apply
save that there will be no need to file any further pleadings
and the
existing Rule 7 application papers shall serve as pleadings.
4.
Costs of the Rule 7 application shall be
determined by the trial court hearing the issue of authority.
_____________________
RANCHOD
J
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the Applicant
:
Adv. G.M Ameer
Instructed
by
:·Edward Nathan Sonnenbergs
Counsel
for the First Respondent
:
Adv. Shakoane SC
Instructed
by
: Denga Inc.
Date
heard
:
29 January 2018
Date
delivered
:
12 February 2018
[1]
This is probably an error and the correct year is 2014.