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[2018] ZAFSHC 196
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Qwaqwa Radio v Salemane and Others (3696/2018) [2018] ZAFSHC 196 (6 December 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3696/2018
In
the matter between:
QWAQWA
RADIO
Applicant
(Registration
no: 023-021-NPO)
and
MEI GEORGE
SALEMANE
1
st
Respondent
MINA
WETES
2
nd
Respondent
SEKA
MOPELI
3
rd
Respondent
PHINDILE
RADEBE
4
th
Respondent
JUDGMENT BY: MHLAMBI J
HEARD ON:
25 OCTOBER 2018
DELIVERED
ON:
06 DECEMBER 2018
MHLAMBI,
J
[1]
On 25 October 2018 this matter served before me as an extended return
date of a
rule nisi
granted by the court on 23 July 2018 in
terms of which the respondents were called upon to show cause why the
following orders should
not be made final:
1.1
Declaring the Board of Directors of QwaQwa Radio nominated and
appointed at the elective general meeting on 23 March 2013 dissolved
in terms of a resolution taken at the special general meeting held on
14 July 2018 (SGM), and furthermore, declare the directors
of the
abovementioned board lawfully removed from office and relieved of
their powers and duties;
1.2
Declaring the interim board of directors of QwaQwa Radio (“
interim
board”),
nominated and appointed at the above mentioned SGM
validly constituted and appointed;
1.3
Interdicting and or restraining the respondents from interfering with
and obstructing the interim board, the station management
and general
staff of QwaQwa Radio to exercise their powers and perform their
duties and functions assigned to them, including,
but not limited to,
the day to day operations of the station;
1.4
Interdicting and or ordering the first respondent to refrain from
continuing to perform any duties or exercise any powers under
the
guise of being a member and or chairperson of the QwaQwa Radio board,
with immediate effect;
1.5
Interdicting and/or ordering the respondents to submit and/ or return
any and/or all property and/ or documents, files and ledgers
of
QwaQwa Radio in their possession and/ or under their control to the
members of the interim board, with immediate effect;
1.6
Interdicting and/ or prohibiting the first respondent and/ or
respondents from entering the premises of QwaQwa Radio under the
guise of being members of the board of directors or station
management, save for visits restricted to their rights as ordinary
members of the community of the Thabo Mofutsanyane District broadcast
spectrum as contemplated in the constitution of the applicant;
2. Paragraphs 1.3 to 1.6
above shall serve and operate as an interim interdict against the
respondents, pending the final determination
of this application.
The
parties
[2]
The applicant is QwaQwa Radio (Registration no: 023-021-NPO), a
community radio station and class broadcasting services and
spectrum
licensee established in terms of its own constitution as a non-profit
organisation; registered in terms of the relevant
statutes of the
Republic of South Africa, with registered postal address at P O Box
17873, Wietsiehoek and principal place of business
at shop 10 B,
Mandela Park Phuthaditjhaba Shopping Centre, Phuthaditjhaba, Free
State Province. The applicant shall, in terms of
its own
constitution, exist in its own right, separate from its members or
office bearers and/ or general staff and is able to
sue or be sued in
its own name as a legal entity separate from its members.
[1]
[3]
The first respondent is cited as the erstwhile chairperson of the
applicant’s board; the second respondent as the erstwhile
deputy chairperson; the third respondent as the erstwhile secretary
of the board and the fourth respondent as the erstwhile director
tasked with the human resources of the applicant’s board of
directors. The respondents assumed and executed their powers
and
duties as duly elected and appointed board members of the applicant
for a four year term, having been appointed as such during
the
elective annual general meeting of QwaQwa Radio, which was held on 2
March 2013 in accordance with the provisions of the applicant’s
constitution.
[4]
The respondents opposed this application on the basis of the voidness
and/or invalidity of the special general meeting and the
decisions
taken during such meeting which was held on 14 July 2018. The
respondents filed a counter- application, seeking a declaratory
order
invalidating this meeting and the decisions taken thereat.
The
background
[5]
In its founding affidavit
[2]
,
the applicant relied on its constitution which it attached as
annexure “UA1” to highlight to the court that it was
established in terms thereof; that provision was made for the board
of directors to be dissolved by the annual general meeting
and the
election of an interim board which shall function as a board until
the next elective annual general meeting. The purpose
of annexing the
constitution was to prevent the overburdening of the court papers,
prolixity in averments and to incorporate the
remainder of the terms
and/or sections of the constitution not specifically mentioned, as if
specifically averred and incorporated
[3]
.
[6]
The last AGM (which was elective) was held on 2 March 2013 during
which the respondents were elected into office. As a result
of a
growing number of complaints and a report issued by the Independent
Communications Authority of South Africa (ICASA) relating
to the
non-compliance with the rules of ICASA and the possible termination
of the applicant’s licence, the QwaQwa community
called for a
Special General Meeting (SGM) on 14 July 2018, attended by community
members during which a resolution was taken to
dissolve the
applicant’s board of directors. Seven members (including the
deponent to both the opposing and replying affidavits,
Mr Stanley
Letsela, who was appointed as chairman) were appointed to the interim
board. Its mandate was to take over total control
of the affairs of
the applicant; to report to the community within three months on
progress made in the implementation of the action
plan and to ensure
that an elective AGM was held for the election of a permanent board.
[7]
Following the appointment of the interim board, a letter dated 15
July 2018 was forwarded to the first respondent, informing
him to
refrain from visiting the premises of QwaQwa Radio, save for visits
in the exercise of his rights as an ordinary member
of the community
and to refrain from performing any functions under the guise as a
member or the chairperson of the erstwhile QwaQwa
Radio board.
[4]
Despite having been served with the letter, the first respondent
continued to interfere with the operations of the applicant and
prevented the interim board from carrying out its mandate to take
over total control of the station. It was unacceptable to the
interim
board that the first respondent should enter and continue to occupy
the premises in his capacity as chairman. Consequently,
the applicant
was forced to approach the court for the interim relief pending the
finalisation of the matter.
[5]
[8]
The application is opposed by the first and third respondents only,
the fourth respondent having withdrawn her opposition. The
crux of
their case in opposition to the granting of the relief sought in
terms of the
rule
nisi
and
the counter application is as follows:
[6]
1. The purported special
general meeting which was held on 14 July 2018 in respect the affairs
of QwaQwa Radio did not constitute
a general meeting of QwaQwa Radio.
2. The July SGM was not
convened in terms of the provisions of the QwaQwa Radio’s
constitution, as a result of which any and
all the decisions and
resolutions which were purportedly taken during the meeting regarding
the affairs of QwaQwa Radio, including
the purported decisions to
dissolve the board of directors and establish the interim board, were
null and void;
3. The interim board of
directors did not have any powers, duties or functions regarding the
affairs of QwaQwa Radio, including
its management;
4. The interim board did
not have the power to act on behalf of QwaQwa Radio and to prosecute
these proceedings on behalf of QwaQwa
Radio;
5. The current board of
directors, consisting of the respondents who were appointed as
members of the board of directors during
the elective annual general
meeting of QwaQwa Radio that was held on 2 March 2013, as well as
Sello Patrick Lebeko and Mmathulo
Jane Mofokeng, was and still is
duly appointed and entitled to act as the board of directors in
accordance with the provisions
of the QwaQwa Radio’s
constitution and to exercise the powers, functions and duties
regarding the affairs of the QwaQwa Radio
as provided for in its
constitution.
[9]
During the AGM of 2 March 2013, certain amendments to the first
constitution, adopted during 2000 and which was attached to
and
relied upon by the applicant in its founding papers, were proposed
and adopted. A copy of the amended constitution was signed
by the
first and third respondents in their official capacities and ever
since its adoption; the management of the applicant was
conducted in
accordance with its provisions. Copies of the constitution, the
minutes and the attendance list, signed by the members
who attended
the meeting, were attached.
[7]
[10]
The station manager, as an
ex
officio
member, is empowered to convene an urgent SGM in terms of article 6.2
of the 2013 constitution. The July SGM was not convened and
called by
Mosala, the duly appointed station manager. She was not involved in
any manner in the arrangements of such a meeting.
It was clear from
the evidence on which the interim board relied, that the meeting was
not a special meeting convened by the station
manager or the members
of QwaQwa Radio and was also not called in accordance with provisions
of the 2013 constitution, or even
the first constitution
[8]
.
The meeting did not constitute a meeting of QwaQwa Radio and the
decisions which were taken at that meeting regarding the applicant
and its board, were ultra vires, invalid and void
[9]
.
[11]
In the counter application, the respondents seek a declaratory order
in terms of which all the actions and decisions taken
by the interim
board since 14 July 2018 are declared void and invalid. The court is
also requested to declare that the board of
directors, consisting of
the respondents, Lebeko and Mofokeng should remain in office until
the election of a new board of directors
at an elective AGM; to be
convened by the board of directors within 60 days from the date of
the granting of the order in terms
of the counter application
[10]
.
[12]
The applicant filed its replication and opposition to the
respondents’ counter- application and raised certain
preliminary
points which are not relevant for the adjudication of
this matter. In its opposition, the applicant stated that as a
registered
non-profit organisation, it was subject to the regulatory
framework described in the NPO Act
[11]
.
The amended constitution relied on, and attached to the respondent’s
opposing affidavit, did not pass muster in terms of
the provisions of
the NPO Act and the required registration of such amended
constitution
[12]
. It was
therefore a nullity as there was no documentary proof to substantiate
its validity and existence as an amended constitution.
The only
registered constitution that was still valid was obtained from the
founders of the radio station and was attached as annexure
“GJO3”
to the applicants’ replying affidavits. The SGM was called and
convened by concerned and affected community
members with insight
into the incriminating ICASA report. The notice of the urgent SGM was
publicised on various platforms for
three to four weeks before the
SGM was held. The platforms used were the social media, various radio
stations, Facebook, WhatsApp
and flyers.
[13]
[13]
In their replying affidavit in respect of the counter application,
first and third respondents stated that the applicant raised
a new
matter in its replying affidavit or relied on allegations which were
of a hearsay, vexatious, scandalous or defamatory nature
[14]
.
In its founding affidavit, the applicant referred to the constitution
annexed thereto as “UA1” as the applicant’s
constitution which was established, valid and binding. To the
contrary, Mr Letsela stated in his replying affidavit that annexure
“GJO3” (the third constitution) to the replying affidavit
was deemed to be the registered constitution which was currently
valid. The content of the two constitutions differed substantially.
To the extent that the allegations in reply were inconsistent
with
the applicant’s case in founding and constituted new matter
that had to be relied upon in founding, the allegations
contained in
paragraph 7 to 7.2 and paragraph 68 ought to be struck out.
[15]
[14]
In paragraph 6.9, 11 and 70 of the replying affidavit a new case and
additional relief were sought which did not form part
of the
applicant’s case in the founding affidavit to the extent that
the applicant sought an order declaring the board of
directors
delinquent. Vexatious, scandalous and defamatory allegations were
contained in paragraphs 6.13 to 6.17, 10, 39.6, 42,
49.2 to 49.4,
53.1, 58 and 60 and the court was requested to strike these
allegations from the replying affidavit as Letsela falsely
accused
the first respondent of fraudulent conduct.
The
issues
[15]
The parties are
ad idem
that the issues in dispute for
determination are:
4.2 Whether
the
special general meeting which was held on 14 July 2018 was properly
convened and constituted a special general meeting of QwaQwa
Radio;
4.2 Whether the meeting,
as convened, duly notified the public of and/ or provided for
resolutions to be taken at the meeting regarding
the dissolution of
the board of directors and the appointment of the interim board;
4.3 Whether the decisions
taken at the July SGM were valid, being whether the board of the
directors was validly dissolved and the
interim board validly
appointed by the said July special general meeting.
[16]
The parties are furthermore
ad idem
that, should the court
find that the July special general meeting was not properly convened,
the main application must automatically
fail and the counter
application succeed.
The
parties’ submissions
[17]
Mr Thompson submitted in his written heads and oral submissions
that
[16]
the constitution of
the QwaQwa Radio and the NPO Act were of paramount importance to this
application and that both the main and
counter-applications would
stand or fall thereby. He submitted that of paramount importance for
purposes of the main application
was clause/article 11 of the
registered constitution which stated that, in case the board was
dissolved, the special general meeting
should elect an interim board
which would function as such. The special general meeting of 14 July
2018 acted in accordance with
this clause after the resolution was
taken that the 2013 board be dissolved. The 2013 board failed to
honour the provisions of
the constitution, and there were no
compelling reasons for the reinstatement of the 2013 board for the
purpose of convening an
elective AGM. That duty was already assigned
to the interim board which had already resolved to hold an elective
AGM on 04 November
2018, pending the outcome of the hearing. The
community had no alternative but to call an urgent SGM on 14 July
2018 as it was
entitled to do in accordance with the passage that Mr
Thompson relied on in
National
African Federated Chamber of Commerce And Industry v Mkhize
[17]
that
“
I
think it is self-evident that in any organization members should have
the power to request a meeting of the organization or of
its
decision-making structures”
[18]
.
I have
serious doubts with this line of thinking as shown below.
[18]
Mr Pienaar submitted that the applicant attempted to rely on the
third version of the QwaQwa Radio’s constitution in
its
replying and opposing affidavits to the respondents’
counter-application in order to make out a new case and seek
additional
relief to have the board of directors declared delinquent
and be removed
[19]
. The
introduction of a new matter was tantamount to an abandonment of an
existing claim and the institution of a fresh and completely
new
claim on a different cause of action. In the founding affidavit, the
applicant relied on the constitution as contained in annexure
“UA1”
whereas in the replying affidavit it relied on a third constitution
in annexure “GJO 3”. The said
constitution was allegedly
provided by the founders of the radio station but did not state who
the founders were, when that constitution
was registered and whether
it was still so registered. The applicant’s reliance on the
third constitution was untenable as
the allegations constituted
hearsay evidence and contrary to the express allegations in its
founding affidavit without explaining
the contradiction at all. The
question whether the July SGM constituted a valid meeting, has to be
considered and determined based
on the provisions of the 2013
constitution.
[19]
He further submitted that the dispute of fact regarding which of the
constitutions formed the current constitution, has to
be determined
in terms of the
Plascon
Evans
[20]
test, being the fact averred in the applicant’s affidavits
which have been admitted by the respondents, together with the
facts
alleged by the respondents. The respondents did not take issue with
the first constitution but alleged that it was consequently
amended
during 2013, which was also not expressly denied by the applicant in
reply, save for its purported reliance on the provisions
of the NPO
Act. The said Act did not expressly provide that if the amended
constitution was not registered, it constituted a nullity.
I agree
with this view.
Discussion
[20]
The provisions as contained in article 6.1 and 6.2 of the 2013
constitution do not differ materially from those provided for
in
article 6.1 to 6.2 of the first constitution on which the applicant
relies in its founding affidavit (annexure “UA1”
to the
founding affidavit). Clause 6.27 of the first constitution and 6.28
of the second constitution contain similar provisions
which read as
follows:
“
Should any
vacancies arise in the board, the board shall co-opt a suitable
replacement. In case the board is dissolved by the AGM,
the station
manager, as ex-efficio member, shall take charges thereby preparing
for an urgent SGM within 21 day which shall then
elect an interim
board.” (
The 2013 constitution does not mention the period
of 21 days)
[21]
The “
registered”
constitution as reflected on annexure “GJO3” to the
replying affidavit, does not contain the same provisions as in
clauses 6.27 and 6.28 of the other two constitutions. Mr Thompson
relied in his written
[21]
and
oral submissions on clause 11.11 of the third constitution which
reads as follows:
“
Should any
vacancy in the board (sic), the board shall co-opt a suitable
replacement. In cases the board is dissolved, the special
general
meeting shall elect an interim board, which will function as board.”
It
is evident that unlike the other constitutions, the third
constitution is silent on the manner, time and appointment of the
SGM. Startling was the submission on behalf of the applicant
[22]
that the applicant maintained throughout the papers that the 14 July
2018 SGM was validly convened. It was also within the
powers of
the SGM to dissolve the 2013 board and appoint an interim board as
per clause 11 of the registered constitution obtained
from its
founding members who were responsible for the registration of QwaQwa
Radio as a non-profit organisation.
[22]
In
National
African Federated Chamber of Commerce and Industry and Seven others
vs. VPN Mkhize and others
[23]
it was stated that it was trite that the constitution of a voluntary
association together with all the rules and regulations, collectively
formed the agreement entered into by that association’s
members. The constitution must be interpreted in accordance with
the
ordinary rules of construction applying to contracts in general. It
is evident that the applicant failed to act in accordance
with the
constitution as relied upon in his founding documents, and the
tacking back and forth as evidenced in its papers was ill-advised.
It
is evident from the minutes of the special meeting/conference of 14
July 2018
[24]
that the meeting
was convened as a result of the concerns of the QwaQwa Radio
Listeners’ Forum, based on rumours that all
was not well at
QwaQwa Radio. It is evident that the deponent to the founding and
replying affidavits, Mr Letsela, is an attorney
by profession
[25]
who is described as an advocate in the Minutes, took an active part
in the said meeting. He advised the community that it would
be best
to elect an interim board that would have to do its best to save the
community radio station. No mention was made that
the applicant
and/or its office bearers were invited to the said meeting.
[23]
It is clear that the special general meeting was not lawfully
convened in terms of its constitution and that neither the
QwaQwa Radio Listeners’ Forum nor the community members had the
necessary
locus standi
to convene a special general meeting
contrary to the provisions of the applicant’s constitution.
Alternatively, no evidence
was presented to show that the convenors
of the said meeting had the necessary authorisation to do so. It
follows that all the
decisions and resolutions passed at such meeting
were invalid and of no force. I therefore find that the special
general meeting
held on 14 July 2018 in respect of the affairs of
Qwaqwa Radio was not properly constituted. The parties are
ad idem
that should I find that the meeting was not properly convened, the
main application must fail and the counter application should
succeed.
[24]
The respondents submitted that the applicant approached the court on
an urgent basis represented by the deponent and the alleged
interim
board. The deponent, Mr Letsela, did not disclose to the court the
manner and circumstances in which the special meeting
was convened
and did not disclose the true and correct facts regarding the
composition of the board of directors. Furthermore,
the applicant
relied on a totally different constitution in its replying affidavit.
The respondents, in view of the above sought
and order directing Mr
Letsela to pay the costs of the application, including the costs of
the counter application on an attorney
and client scale. Bearing in
mind that the deponent is an attorney who should have advised and was
in a position to do so or adopted
a prudent approach to the
circumstances and litigation in this matter, the request is not
inappropriate.
[25]
I grant the following order:
Order
1. The
rule nisi
granted on 7 September 2018 is discharged and the application is
dismissed.
2. It is declared that
the special meeting which was held on 14 July 2018 at Phuthatditjhaba
Multi-Purpose Hall (“
the special general meeting”)
did
not constitute a special general meeting convened by or in respect of
the affairs of the applicant, alternatively the special
meeting is
declared
ultra vires
and void.
3. All the decisions
taken at the special general meeting which concerned the affairs of
the applicant, including the decision to
dissolve the board of
directors to the applicant and to appoint an interim board of
directors on behalf of the applicant, are declared
to be
ultra
vires,
alternatively unlawful and void
ab initio
.
4. The board of
directors, which was in office as at 14 July 2018, consisting of the
first to fourth respondents, Sello Patrick
Lebeko and Mathulo Jane
Mofokeng, is declared not to have been lawfully dissolved and remains
in office until the appointment of
a new board of directors in
accordance with the provisions of the applicant’s constitution.
5. The first respondent,
alternatively the respondents in their capacities as members of the
board of directors of the applicant,
are directed to take any or all
steps necessary to convene an elective annual general meeting of the
applicant as contemplated
in article/clause 6 of the applicant’s
constitution, which should be held within a period of 60 days from
the date of the
granting of this order.
6. Any or all decisions
taken since 14 July 2018 until the date of the granting of this order
by the purported interim board of
directors, regarding the affairs of
the applicant are declared to be null and void, including but not
limited to the decision to:
6.1
withdraw any or all disciplinary proceedings instituted against Mr
Veli Moloi and Mr Tumelo Ernest Mahlaba; and
6.2
appoint any persons as managers or presenters of Qwaqwa Radio since
July 2018.
7. Mr Nako Stanley
Letsela, the deponent to the founding and replying affidavits to the
applicant’s application, is directed
to pay the costs of the
application and counter application on a scale as between attorney
and client.
______________
MHLAMBI,
J
Counsel
for the defendant: Adv CD Pienaar
Instructed
by: Mhlokonya Attorneys
:
Suite 311-313, Sunday School Building
:
154 Charlotte Maxeke Street
:
Bloemfontein
Counsel
for Respondents: Adv. DR Thompson
Instructed
by: Azar & Havenga Inc.
:
Unit 6, 65 Parkroad
:
Willows
:
Bloemfontein
[1]
Para
7:FA
[2]
Paragraph 7, 17, 23 and 24
[3]
Para
28: FA
[4]
Paragraph 37: FA
[5]
Paragraphs 38 and 39: FA
[6]
Para
17: Answering Affidavit
[7]
Paras
21-23: AA
[8]
Paras
54,55 and 58:AA
[9]
Para
67: AA
[10]
Para
86:AA
[11]
Non-Profit
Organizations Act, Act71 of 1997
[12]
Para
7.2: Replying Affidavit
[13]
Para
6.5: Replying affidavit
[14]
Para
38:Reply
[15]
Paragraph 38 to 42 of the reply
[16]
Applicant’s Heads of Argument page 4 paragraph 3.1.1
[17]
(805/13)
(2014) ZASCA 177
(21 November 2014) para 25
[18]
The
remainder of the paragraph reads as follows:” But this is not
the question to be decided here. The issue for determination
is
whether the December 2012 was lawfully convened. “(as it is
the case in casu).
[19]
Para
6: Respondents’ replying heads of argument
[20]
Plascon
Evans Paints (Pty) Ltd vs. Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(a) at 634 to 635
[21]
Paragraph
5.19 of the applicants heads of argument
[22]
Paragraph
5.20 of the applicants heads of argument
[23]
Supra,
para 21
[24]
Page
492 of the indexed papers
[25]
Para
1: Applicants replying affidavit