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[2016] ZAFSHC 46
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Motheo Multimedia and Another v Selebedi and Others (637/2016) [2016] ZAFSHC 46 (10 March 2016)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
number: 637/2016
DATE:
10 MARCH 2016
In
the matter between:
MOTHEO
MULTIMEDIA
.................................................................................................
1
st
Applicant
MOTHEO
FM
.....................................................................................................................
2
nd
Applicant
And
KONSTABLE
SELEBEDI
...............................................................................................
1
st
Respondent
PULE
MANGONYANE
..................................................................................................
2
nd
Respondent
DINEO
DISEKO
.............................................................................................................
3
rd
Respondent
MOTSATSI
MOTHUPI
..................................................................................................
4
th
Respondent
FIRST
NATIONAL BANK
(FNB)
..................................................................................
5
th
Respondent
CORAM:
A KRUGER, J
HEARD
ON: 03 MARCH 2016
DELIVERED
ON: 10 MARCH 2016
[1]
This matter served before me as an urgent application. Part A
of the notice of motion dealt with the Banking Account of the
Applicants
and the freezing thereof and the signatories thereto. Part
B of the Notice of Motion dealt with the issue as to who the
Directors
of the first applicant are.
[2]
The first applicant is Motheo Multimedia Institute and Motheo
FM is the second. In the founding affidavit the first applicant is
described as an association incorporated under section 21 of the 1973
Companies Act, not having a share capital. The Articles of
Association of the first applicant, which constitute its
Constitution, are contained in Annexure KS2 to the founding
affidavit.
[3]
The second applicant is Motheo FM, an association not for gain
incorporated under section 21 of the Companies Act, which does
business
from the same premises as the first applicant. The first
applicant was granted a broadcasting licence by the Independent
Communications
Authority of South Africa (ICASA) to provide community
broadcasting services known as MOTHEO FM, being the second
respondent. The
licence was effective from 8 December 2008. Control
of the licence vests in the first applicant under clause 2.1 of the
licence.
[4]
According to the form CM26 attached to the founding affidavit
dated 2 February 2009 the directions of the first applicant are:
(i)
Lekhotla Simon Sethole
(ii)
Motladile Frank Kitsa.
Sethole
is the deponent to the founding affidavit.
[5]
According to form COR39 the director of the second applicant
are:
(i)
Lekhotla Simon Sethole
(ii)
Bernice Seipati Dichabe
(iii)
Molefi Sullivan Monei.
THE
DISPUTES
[6]
The dispute about the control of the Banking Account appears
to have been resolved in accordance with the court order of 25
February
2016.
[7]
The dispute is whether the first four respondents are
directors of the first respondent, or whether the persons listed in
the CM26,
including the deponent to the founding affidavit, are the
directors. The four respondents launched a counter-application
seeking
an order that the persons elected as directors at the meeting
of 6 December 2015 (being the four respondents) are the directors
of
the first respondent. The fifth respondent did not feature in the
application before me.
MEMBERS
[8]
The Constitution deals with membership in clause 2.
Application for membership is subject to conditions prescribed by the
Board.
Full and Associate Members must pay annual subscription fees
as determined by The Board. The first applicant keeps a register of
members at its Head Office as provided in section 105 of the 1973
Companies Act. That list is
prima
facie
proof of who the members of the first applicant are. Any
list prepared by anyone else has no status,
prima
facie.
DIRECTORS
[9]
Directors are elected at an Annual General Meeting (AGM). At
each AGM at least half of the Directors must retire and make their
positions available for re-election. They are eligible for
re-election (clause 15.14 and 15.15).
THE
HISTORY
[10]
At a meeting of 19 September 2015 it was decided that:
(i)
a Special General meeting be held on 24 October 2015 to
discuss amendments to the constitution
(ii)
that the Annual General Meeting be held on 28 November 2015.
The
applicants’ deponent Sethole points out that the respondents
attended the meeting on 19 September 2015, their names did
not appear
on the membership list. A task team was appointed by the meeting of
19 September 2015 to deal with the aspect of membership.
The
applicants say the meetings of 25 October 2015 and 28 November 2015
could not proceed due to disruptions caused by the respondents.
The
respondents deny that they caused disruptions.
THE
MEETING OF 28 NOVEMBER 2015
[11]
It is not in dispute that the AGM was properly scheduled for
28 November 2015. It is in dispute what happened at that meeting. In
the founding affidavit the applicants’ deponent says that the
meeting could not proceed on 28 November 2015 due to disruptions
caused by the first, second and third respondents, and possibly also
the fourth respondent. In the answering affidavit the first
respondent denies that he or the other respondents attempted to
disrupt the meeting. In the replying affidavit the deponent of
applicants reiterates that the respondents disrupted the meeting and
snatched the microphone from him. In the respondents’
replying
affidavit in the counter-application the first respondent refers to
the fact that the Board had a voters’ roll of
320 members,
whereas the list of the task team had 178 names. The first respondent
says that there was a discussion between the
two groups on this
discrepancy. It is significant that the first respondent refers to
the “two groups”. There was a
degree of animosity. The
first respondent says the meeting decided unanimously that the Board
be dissolved, while the deponent
to the founding affidavit, Mr
Sethole was present and “participated to the very end”.
In the answering affidavit the
first respondent says that because of
Sethole’s accusations the AGM on 28 November 2015 was “reduced
to a battle stage”
between the two groups of leadership. I
presume he means battlefield. The first respondent says the meeting
of 28 November 2015
decided to dissolve the Board with immediate
effect. An interim committee was elected.
[12]
In the replying affidavit Sethole denies that he and Pilliso
and Monei, the Board Members, were part of the meeting after the
scuffle
(this must be the “battle stage”) between the
Board Members and the respondents. Sethole said the task team usurped
the Board’s powers and continued with the meeting.
[13]
The respondents seek an order in the counter-application that
they be declared the proper directors of the first applicant. The
applicant disputes that they were validly elected.
THE
CHAIR
[14]
In his very useful and practical book, The Conduct of and
Procedure at Public and Company Meetings 9
th
Ed (1927)
Albert Crew sets out the qualifications of a chairperson:
“
The
ideal chairman should be a man of infinite tact and patience, possess
a judicial mind, be able to command the respect of the
meeting, be
absolutely impartial in his rulings—never allowing the latter
to be questioned—and always ready and resourceful
when
difficulties arise. He should be firm, yet courteous, able to govern
men, not allow himself to be carried away by party or
other feelings,
able to endure bores cheerfully and circumvent mere obstructionists
skilfully.
A
chairman should possess a calm, placid temperament, have a proper
sense of the dignity of his position, not be garrulous, and
be
accustomed to rule without fussiness, hauteur, or bullying. A
remarkable feat by a woman was recorded in the Press in 1926.
This
lady who is not only single but singular has the unique record of
being in the chair of a committee for some eight years without
having
spoken for more that half an hour in the aggregate during the whole
of her term of office. She is rightly regarded by the
members of this
committee as an ideal chairman, and her example might be followed
with advantage by other chairmen.
A
good chairman should be able to govern a meeting with genial
domination and be a benevolent autocrat—not overbearing or
brusque in manner, but determined in a quiet way to have the business
of the meeting transacted in an orderly and expeditious manner.
He
should have a wide knowledge of men, and some acquaintance with the
subject under discussion. He should remember that men at
meetings are
often but children of a larger (sometimes not much larger) growth,
and should combat their petulance, unreasonableness,
and pettiness by
common sense, sweet reasonableness, and quiet determination. He must
believe in himself, but not allow his masterfulness
to obtrude too
much. A chairman should have some strength of character; hearing and
seeing all things, but conveniently and quietly
ignoring at times
those matters which might better have been left unsaid or not done.
Occasionally he may be subjected to rude
or personal remarks; if
these are unjust, it is generally well to leave them unnoticed. On
the other hand, should there be some
cause for such ill-natured
criticism, he might change his manner or tactics. Nothing impresses a
meeting so much as strict impartiality—especially
the minority,
the strength of whose opposition is often in inverse ratio to their
numbers. Above all, he should not lean over-much
to the popular side;
a little judicious praise or approbation of the other side will tend
to disarm and counteract the suspicious
and quell the incipient
disorder of the opposition. At all events he should never allow the
unpopular side to feel that ‘minorities
must suffer.’ In
fine, he must get his own way in the conduct of the meeting, and get
it—if he can—peacefully
and without friction, making it
appear that his will and that of the meeting are one and the same.”
[15]
Disorder can be caused at a meeting by organised opposition:
“
Organised
opposition is very difficult to deal with, especially when the
conveners of the meeting are unprepared for it. Generally,
there is
some indication beforehand, when it is folly not to be fully ready
for it. People who merely come to disturb a meeting
generally prefer
the back of the room, so that, should their courage fail them, there
is a convenient exit for escape in time of
trouble. It is a good plan
to put probable disturbers in the front of the room, keeping them
apart as much as possible. If they
know there is a stronger force in
the rear they will often come to the conclusion that discretion is
the better part of valour.”
(Crew p65)
[16]
If the Chair is firm, competent and impartial, trouble can be
avoided. The Chair should always be careful to observe the spirit and
temper of the audience and act accordingly, “quelling at the
instant any signs of incipient disorder” (Crew p. 67).
“
At
the same time he should allow the audience to have a little of their
own way. An audience objects to being domineered over, but
does not
mind being dominated in a pleasant yet masterful way. When disorder
appears to be imminent it is unwise for the chairman
to get angry and
talk about expulsion and the police; rather, he should endeavour to
soothe the audience by a few well-chosen remarks,
and appeal for fair
play; above all, not appear to be injured or insulted. In a public
meeting, when he has ruled on a point of
order, he should abide by
his decision, even though he may be wrong. The chairman, again, can
remove one not uncommon cause of
disorder, by seeing that the meeting
commences at the duly appointed time.
As
to well-conducted opponents, it is a great mistake to browbeat them;
courtesy to them costs little, and is worth much.”
PEJUDICE
[17]
Mr Steenkamp, who appeared for the first four respondents,
stressed, with reference to the Jockey Club of South Africa and
Others
v Feldman
1942 AD 340
at 359 and Jonker v Ackerman en Andere
1979 (3) SA 575
(O) at 603B-F that courts will not set aside
decisions of private tribunals unless prejudice is shown. In my view
the prejudice
to the applicants in this case is manifest. The
applicants had to come to court to regularise the banking account.
The first four
respondents believed that they were properly elected
directors of the first applicant and acted as such. It is essential
that certainty
by obtained as to who the true directors of the first
applicant are.
CONCLUSION
[18]
The meeting of 6 December 2015 was not validly held because
the Constitution requires that not less that seven days written
notice
be given to all members (Clause 10.6). In the answering
affidavit it appears that only the 83 persons who attended the
meeting
of 28 November 2015 were “formally invited”.
There is no allegation that they were given seven days’ written
notice. All members were not invited and the meeting could take no
valid resolution - See LAWSA. s.v. “Meetings” Vol
17 part
2 para 189 page 159. On 3
December
2015 Sethole received a sms from the first respondent that the AGM
would proceed on 6 December 2015. The invitation is
dated 3 December
2015. That was not proper timeous notice.
[19]
It is clear that there was a situation in which the AGM
scheduled for 28 November 2015 could not continue. That is why a
follow-up
meeting was scheduled for 6 December 2015. No valid
decisions were taken on 28 November 2015. The respondents were never
validly
elected as directors.
[20]
The counter-application must fail because the respondents have
not shown that they were properly elected. The result is that the
persons who were directors of the first applicant remain as
directors.
COSTS
[21]
As to costs, the problems addressed in this application arose
due to the manner in which the Board of first applicant managed its
affairs. The Annual General Meetings were not held as required by the
Constitution and a proper membership register was not kept.
The
manner in which Sethole conducted the meeting on 28 November 2015 led
to the uncertain situation which arose as to who the
directors are,
and necessitated this application. No order as to costs should be
made.
ORDER
1.
The election of the first, second, third and fourth
respondents as directors of the first applicant at the meeting of 6
December
2015 is set aside.
2.
All decisions taken by the first, second, third and fourth
respondents in their purported capacity as directors of the first
applicant
are set aside.
3.
The counter-application is dismissed.
4.
The fifth respondent, First National Bank, is directed to
re-activate the account number [6……….] in the
name
of the second applicant, Motheo FM.
5.
All the current signatories are removed and replaced by the
Station Manageress, Manko Tsoehlisi and Finance Manageress, Shiiwe
Malukazi.
6.
Both the signatories Manko Tsoehlisi and Shiiwe Malukazi shall
operate the account subject to prior written approval of the
applicants’
attorneys of record, Mr Khang.
7.
No order as to costs is made.
A KRUGER, J
On
behalf of applicants: Mr M Khang
Instructed
by:
Mphafi
Khang Inc.
Bloemfontein
On
behalf of first to fourth respondents: Adv MDJ Steenkamp
Instructed
by:
Azar
& Havenga Inc.
Bloemfontein