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[2018] ZAGPPHC 708
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Coal of Africa Limited v Nekuvule (64389/2014) [2018] ZAGPPHC 708 (12 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INEREST TO
OTHER JUDGES
(3)
REVISED
CASE
NO: 64389/2014
12/2/2018
In the matter between:
COAL OF
AFRICA LIMITED
APPLICANT
and
JOSEPH
MUTHUPHEI NEKUVULE
RESPONDENT
In re:
In
the matter between:
JOSEPH
MUTHUPHEI NEKUVULE
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
MUSHOLOBI
COMMUNITY
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
alia,
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 Oenga, 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-8 BEE strategy for
the Makhado Project, as
contemplated by the Mineral and Petroleum Resources Development Act
No. 28 of 2002 (MP.RDA) 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 establishment of a trust in respect
of the 8-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 unansw red a. s 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 theseallegations 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 Rights
[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.