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[2016] ZAKZPHC 81
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Moroka v Zimbali Country Club (AR207/2016) [2016] ZAKZPHC 81 (23 September 2016)
IN THE HIGH
COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
JUDGMENT
NOT REPORTABLE
CASE NO: AR207/2016
In the matter
between:
MANYE RICHARD
MOROKA
APPELLANT
and
ZIMBALI COUNTRY
CLUB
RESPONDENT
Coram
: Seegobin J et Olsen J
Heard
: 5 September 2016
Delivered
: 23 September 2016
ORDER
On
appeal from the Magistrates’ Court, Kwa Dukuza (Stanger)
(sitting as a court of first instance):
1.
The appeal succeeds with costs.
2.
The judgment of the court
a quo
is set aside and is replaced
with the following:
“
In
the result judgment is entered on behalf of the plaintiff as follows:
(a)
Payment of the sum of R6400,00;
(b)
Interest thereon at the rate of 15,5% per annum
from 1 March 2011 to date of final payment;
(c)
Costs of suit, including the costs of counsel on
tariff.”
JUDGMENT
SEEGOBIN
J (Olsen J concurring):
INTRODUCTION
[1]
On 9 May 2012 the Zimbali Country Club as plaintiff sued
Mr
Manye Richard Moroka
as defendant in the
Magistrates’ Court, Kwa Dukuza (Stanger), for payment of two
amounts which the plaintiff alleged were
due to it in respect of
subscriptions arising out of Mr Moroka’s membership as a
composite member of the plaintiff.
The first claim in the sum
of R6400,00 was due by the end of February 2011 (‘the 2011
subscription’) while the second
claim for R6800,00 was due by
the end of February 2012 (‘the 2012 subscription’).
[2]
Mr Moroka raised two special defences to these claims: the
first
was that the court
a
quo
lacked jurisdiction to hear the matter on
the grounds that
he neither resided nor carried on business nor
was he employed within the district as contemplated by section
28(1)(a) of the Magistrates’
Courts Act 32 of 1944 (‘the
Act’), and furthermore, that the whole cause of action did not
arise within the district
as contemplated by section 28(1)(d) of the
Act; the
second
was
that the claim for subscriptions for the 2011 year which was only
introduced by the plaintiff in its amended particulars of
claim
delivered on
4 February 2015 had prescribed by virtue of section
11(d) of the Prescription Act 68 of 1969 (‘the
Prescription
Act&rsquo
;). On the merits Mr Moroka averred that inasmuch as
he and his wife were registered owners of a property in the Zimbali
Estate
in terms of a sale agreement concluded by them in November
2009, he did not complete any application for membership of the
plaintiff.
He accordingly maintained that he never became
a member of the plaintiff.
Mr Moroka further pleaded that
on the plaintiff’s version and having regard to the provisions
of clause 5.6.3 of the plaintiff’s
constitution, he would have
ceased being a member of the plaintiff in 2011 and as such he would
not have been liable for the 2012
subscriptions in any event.
[3]
When the trial came before the learned magistrate,
Mr
Mgobhozi
, on
1 September 2015, he was
requested to decide two issues only: the
first,
concerned the issue of jurisdiction and the second was the question
of
Mr Moroka’s membership of the plaintiff. At
the conclusion of all the evidence the learned magistrate found in
favour of the plaintiff on both issues and granted judgment against
Mr Moroka in the amounts claimed.
[4]
This is an appeal by Mr Moroka against the whole of that judgment.
The issues that arise in this appeal are precisely
the same as those
which occupied the attention of the trial court. At the appeal
hearing on 5 September 2015
Mr Moroka was represented by
Mr
Rathidili
and the plaintiff by
Mr
Combrinck
. I mention at this stage that
in the course of argument one of the issues raised with Mr Combrinck
was whether, in light
of the provisions of clause 5.6.3 of the
plaintiff’s constitution, Mr Moroka had in fact ceased being a
member of the plaintiff
in 2011 by virtue of his non-payment of the
2011 subscriptions and as such he would not have been liable for the
2012 subscriptions
in any event. Despite making certain
submissions on this point at the hearing, a few days after we
reserved judgment in the
appeal, the plaintiff requested leave to
file supplementary heads on the issue. Such leave was granted
and the plaintiff
delivered further heads on 13 September 2016.
Mr Moroka was afforded an opportunity of filing further heads in
reply and
these were delivered on 16 September 2016. I will
revert to the issues raised by clause 5.6 of the plaintiff’s
constitution
later in this judgment.
[5]
The first issue to be decided is whether the court
a
quo
erred in finding that it had the
necessary jurisdiction to entertain the matter on the basis that the
plaintiff’s cause of
action arose wholly within its district.
On behalf of
Mr Moroka it was contended that the court
a
quo
lacked the necessary jurisdiction simply
because the sale agreement was signed by Mr Moroka and his wife in
Gauteng. For
the reasons set out hereunder I consider that
Mr
Moroka has misconstrued the basis upon which the court
a
quo
was vested with the requisite
jurisdiction to hear the matter in terms of section 28 of the Act.
[6]
Section 28 of the Act provides as follows:
“
28
Jurisdiction in respect of persons
(1) Saving any other jurisdiction assigned to a court by
this Act or by any other law, the persons in respect of whom
the
court shall, subject to subsection (1A), have jurisdiction shall be
the following and no other:
(a)
Any
person who resides, carries
on business or is employed within the district or regional division;
(b)
any partnership which has business premises situated or any
member whereof resides within the district or regional division;
(c)
any person whatever, in respect of any proceedings
incidental to any action or proceeding instituted in the court by
such
person himself or herself;
(d)
any person, whether or not he or she resides, carries on
business or is employed within the district or regional division, if
the
cause of action arose wholly within the district or regional
division
;
(e)
any party to interpleader proceedings, if-
(i)
the execution creditor and every claimant to the subject matter of
the proceedings reside, carry
on business, or are employed within the
district or regional division; or
(ii)
the subject-matter of the proceedings has been attached by process of
the court; or
(iii)
such proceedings are taken under section 69 (2) and the person
therein referred to as the 'third
party' resides, carries on
business, or is employed within the district or regional division; or
(iv)
all the parties consent to the jurisdiction of the court;
(f)
any defendant (whether in convention or reconvention) who appears
and takes no objection to the jurisdiction of the court;
(g)
any person who owns immovable property within
the district or regional division in actions in respect of such
property
or in respect of mortgage bonds thereon.
(2)
'Person'
and
'defendant'
in this section include the
State.”
[my emphasis]
[7]
In alleging that the court
a quo
had jurisdiction over Mr Moroka, the plaintiff placed specific
reliance on the provisions of sub-sections 28(1)(a), 28(1)(d) and
28(1)(g) of the Act. The phrase ‘cause of action’ as
employed in various statutes defining the jurisdiction of courts
or
providing for the limitation of actions and in other contexts, has
often been considered by our courts.
[1]
In
McKenzie v Farmers’ Co-operative Meat
Industries Ltd,
[2]
the then appellate division held that:
“
...
in relation to a statutory provision
defining the geographical limits of the jurisdiction of a
magistrate's court, 'cause of action'
meant -
'...
every fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to judgment
of the Court. It
does not comprise every piece of evidence which is necessary to
prove each fact, but every fact which is
necessary to be proved.'
(
Per
MAASDORP JA at 23.) And in
Abrahamse & Sons v SA
Railways and Harbours
1933 CPD 626
, a case concerning the
prescription of a claim against the Railway Administration, which
turned on the question as to when the
plaintiff's cause of action
arose, WATERMEYER J stated:
'The
proper legal meaning of the expression 'cause of action' is the
entire set of facts which gives rise to an enforceable claim
and
includes every fact which is material to be proved to entitle a
plaintiff to succeed in his claim. It includes all that a plaintiff
must set out in his declaration in order to disclose a cause of
action. Such cause of action does not 'arise' or 'accrue' until
the
occurrence of the last of such facts and consequently the last of
such facts is sometimes loosely spoken of as the cause of
action.'
(See
also
Coetzee v SA Railways &
Harbours
1933 CPD 565
at 570 - 1;
Slomowitz v Vereeniging Town Council
(supra
at 330A - F.)”
[8]
In
The Master v
IL Black and Co. Ltd,
[3]
Tebbut J pointed out that a debt can only be said to be claimable
immediately if the creditor has the right immediately to institute
action for its recovery. This can only happen once the creditor
has a complete cause of action available to it. In
other words
it must be in possession of every fact, which if proved, will entitle
it to judgment.
[9]
In the present matter the material facts (
facta
probanda
) which were alleged and proved by
the plaintiff in order to disclose a cause of action were the
following viz: the plaintiff’s
principal place of
business is situated within the court’s district; Mr Moroka’s
application for membership to the
plaintiff was submitted and
accepted by the plaintiff within the district; the plaintiff operates
its banking account within the
district and Mr Moroka’s
non-payment of subscriptions to the plaintiff occurred within the
district.
[10]
In my view, the fact that the sale agreement was signed by Mr Moroka
and his wife outside the district of the court, is not
a fact
material to the plaintiff’s cause of action – anymore
than it was material to the cause of action in
McKenzie’s
case,
supra
,
where the application for shares had been signed outside the district
of Pietermaritzburg.
[4]
[11]
It would seem to me that the vital enquiry in a matter such as this
would concern the legal relationship of the parties within
the
district (after the agreement was concluded) giving rise to an entire
set of facts which if established would entitle a party
to judgment.
It is such facts that would give rise to a cause of action and not
where or when a contractual relationship
had its origin.
[5]
[12]
In light of the above and the material facts found proved by the
plaintiff as set out in para [9] above, I consider that the
learned
Magistrate was correct in finding that the court
a
quo
had the necessary jurisdiction to
entertain the matter.
[13]
With regard to the second issue concerning Mr Moroka’s
membership of the plaintiff, it is necessary to sketch the following
background facts which are not only common cause but which serve to
provide some insight into what actually transpired:
13.1
On 6 February 2009 a close corporation known as Motshaotshele
Transport CC which was owned by Mr Moroka’s
wife concluded an
agreement of sale (‘the first sale agreement’) with
Little Rock Trading 295 CC (‘Little Rock
Trading’) for
the purchase of certain immovable property described as section 1 in
a sectional title development in the Zimbali
Estate. The sale
was made conditional upon the close corporation meeting certain
conditions.
13.2
A material condition of the sale was that the purchaser was obliged
to become a composite member of the plaintiff
within the meaning of
its constitution. This was governed by Clause 4 of the sale
agreement and had to be read with the relevant
provisions of annexure
A to the plaintiff’s constitution. Since the issue of
membership goes to the heart of Mr Moroka’s
defence, it is
necessary to set out the relevant clauses in some detail.
13.3.
Clause 4 of the sale agreement reads as follows:
“4.
SALE CONDITIONAL UPON MEMBERSHIP
4.1
The PURCHASER shall be obliged to become a Composite member of the
Zimbali Country Club,
within the meaning of the Constitution of the
said Club.
4.2
The PURCHASER undertakes duly to complete and sign the membership
application form which
is Annexure “B” hereto. As
soon as the other suspensive conditions to this CONTRACT have been
fulfilled, the
SELLER shall submit the application to the Club.
4.3
The PURCHASER shall be obliged to accept transfer of the PROPERTY
subject to a condition
registered against the Title Deed to the
PROPERTY to the effect that the PROPERTY, or any position thereof or
interest therein,
shall not be alienated or otherwise transferred
without the prior written consent of the Zimbali Country Club first
being had and
obtained, provided that the Zimbali Country Club shall
grant the aforesaid consent in the event of the Transferor having
complied
with all its obligations to the Zimbali Country Club (and in
no way detracting from the generality of the aforesaid, the
Transferor
having paid all amounts due to the aforesaid Club) and the
Transferee undertaking to become a composite member of the aforesaid
Club and purchasing the requisite DEBENTURE(S) in this regard.
4.4
The PURCHASER hereby purchases 1 (ONE) R class debenture in the
Zimbali Country Club, for
a purchase price of R50 000,00 (FIFTY
THOUSAND RAND). The purchase of such DEBENTURE shall be on the
terms and conditions
set out in this CONTRACT OF SALE and those
conditions set out in the DEBENTURE certificate.”
13.4
Annexure A to the plaintiff’s constitution deals with the
various classes of membership and the obligations
which flow from
such membership. Composite membership is dealt within clause 1
of the plaintiff’s constitution.
For purposes of this
judgment I merely set out the relevant provisions of clause 1 which
are as follows:
“1.
COMPOSITE MEMBERS
1.1
General
The
Club shall be entitled to admit, as composite members up to 1000 (ONE
THOUSAND) persons who are residents in the Zimbali Estate
and up to
100 (ONE HUNDRED) persons who are not resident in the Zimbali
Estate.
It is recorded, that certain residents within the
Zimbali Estate, including those deriving their membership through the
purchase
of property in the Zimbali Golf Course Estate as well as
residents who have purchased in certain parts of the Zimbali Estate,
are
obliged to become composite members
.
1.2
…
1.3
Debenture
A
composite member will be required to hold a composite member’s
debenture, the current par value of which is R20 000,00
(TWENTY
THOUSAND RAND) but which amount shall be subject to increase from
time to time. The debenture will carry with it
the rights and
obligations specified on the conditions of the debenture and will be
redeemable only when the composite member ceases
to be a composite
member. The debenture will not be transferable nor will it be
convertible.
1.4
Subscriptions
Composite
members hall pay full annual subscriptions to the Club
.
1.5
…”
[my
emphasis]
13.5
Clause 9 of the constitution is an explanatory note which relates to
members who are residents of the Zimbali Estate.
Once again I
merely set out the relevant provision for purposes of this appeal.
Clause 9.1 reads as follows:
“9.1
General
Although
there shall not be a specific class known as “residential
member” for the purposes hereof “residential
member”
refers to those members of the Club who are residents in the Zimbali
Estate. Such persons will be either social
members or composite
members.
The
provisions hereof are intended to deal with the different types of
entitles which may become residents in the Zimbali Estate
and hence
qualify for either composite or social membership of the Club
.”
[my
emphasis]
13.6
Clause 9.2 deals with joint ownership/syndicates and provides,
inter
alia
, that 'where co-owners own a property in
the Zimbali Golf Course Estate, at least one of the co-owners shall
be obliged to be a
composite member’.
13.7
In compliance with the conditions pertaining to membership as set out
above, Mr Moroka and his wife duly completed
an application for
composite membership on 6 February 2009. However, as matters
turned out, for some reason or the other,
the first sale fell through
and was cancelled.
13.8
On 1 November 2009 Mr Moroka and his wife, now acting in their
personal capacities, concluded the second sale agreement
with Little
Rock Trading for the same immovable property and on precisely the
same terms and conditions as on the first agreement.
The only
difference, however, was that neither of them signed another
application for membership of the plaintiff.
13.9
On 18 November 2009 the plaintiff consented to the sale agreement and
on 23 December 2009 the immovable property
was transferred into the
names of Mr Moroka and his wife. On 24 December 2009 Mr Moroka
duly paid the sum of R50 000,00
which amount represented the
purchase price for the single R class debenture referred to in
sub-clause 4.4 of the agreement and
clause 1.3 of the plaintiff’s
constitution.
13.10
On 30 August 2010 Mr Moroka caused an amount of R6 100,00 to be
transferred from his personal bank account into that
of the
plaintiff’s. As far as the plaintiff was concerned this
amount was paid in respect of subscriptions for the
2010 year.
Mr Moroka, on the other hand, averred that it was in respect of
levies. He further disputed that he was
liable for any
subscriptions on the grounds that he never signed a further
application for membership of the plaintiff when the
second sale
agreement was completed and as such he was not a member of the
plaintiff.
[14]
For the reasons that follow I consider that the trial court was
correct in concluding that Mr Moroka did in fact become a member
of
the plaintiff and as such he became liable for the payment of
subscriptions. This conclusion is based not only on the
evidence of the plaintiff’s witness
Mr
Shearer
who is the general manager of the
plaintiff, but is also borne out by the conduct of
Mr Moroka
himself after the second sale agreement was concluded in November
2009.
14.1
Firstly
, as I already
pointed out, it was a material condition of the sale agreement that
the purchaser shall become a member of the plaintiff
in terms of
clause 4 of the agreement read with the relevant provisions of its
constitution. To this end Mr Moroka purchased
a single R class
debenture in the plaintiff for the sum of R50 000,00 as provided
for in clause 4.4. Pursuant to this
the plaintiff issued a
debenture certificate in his name. As Mr Shearer explained the
par value of the debenture was R20 000,00
and as reflected on
the debenture certificate was payable on transfer. The
remaining R30 000,00 went directly to the
plaintiff in order to
meet its cash flow commitments for the year.
14.2
Secondly
, Mr Moroka
paid an amount of R6 100,00 from his own bank account into that
of the plaintiff on 30 August 2010. While he contended
that this was
in respect of levies, the correspondence emanating from the
plaintiff’s side shows that it was for the 2010
subscriptions.
14.3
Thirdly
, as Mr Shearer
further explained the application form that was completed in February
2009 and submitted to the plaintiff was a
valid document as nothing
in the plaintiff’s constitution precluded it from considering
Mr Moroka’s membership despite
the fact that the form was
signed some nine months previously. In my view, Mr Moroka and
his wife were purchasing the same
property on precisely the same
terms and conditions as before and as such it would have been an
unnecessary duplication on the
plaintiff’s part to have them
sign another application for membership. On behalf of Mr Moroka
it was submitted that
since a further application for membership was
not signed when the second sale agreement was concluded, it cannot be
said that
the parties had the requisite intention to conclude a
binding agreement. In my view, this is a fallacious argument,
one which
ignores completely the fact that transfer and registration
of the property into the names of Mr Moroka and his wife would not
have
been possible unless the plaintiff confirmed that Mr Moroka and
his wife had complied fully with their obligations relating to
membership of the plaintiff.
[15]
In a well-considered and well-reasoned judgment the learned
magistrate found, correctly in my view, that Mr Moroka had indeed
become a composite member of the plaintiff. He further found
that Mr Moroka was not an impressive witness whose version was
‘not
without scrutiny and contradictions’. Having closely
examined Mr Moroka’s evidence on record I am
satisfied that the
learned magistrate’s findings in this regard cannot be faulted
in any way. I further find that his
conclusions regarding Mr
Moroka’s membership of the plaintiff cannot be assailed on the
evidence.
[16]
I now turn to address the issue which arises from clause 5.6 of the
plaintiff’s constitution and the further submissions
made by
the parties in this regard. The provisions of clause 5.6 deal
with matters pertaining to a defaulting member and
read as follows:
“5.6
DEFAULTING MEMBER
5.6.1
In this sub-clause “debt” shall mean any amount due and
owing by a MEMBER to the CLUB, whether
in respect of subscription for
membership, an amount due under a DEBENTURE held by a MEMBER or any
other amount due and owing,
howsoever arising.
5.6.2
Without prejudice to 5.6.3. A member who has failed –
5.6.2.1
to pay his annual subscription by the due date therefor; or
5.6.2.2
has failed to pay any other debt for a period of 30 (THIRTY) days
after the same is due, shall cease to be able to enjoy
the privileges
of the CLUB or to use the facilities or amenities of the CLUB and
shall become a DEFAULTING MEMBER.
5.6.3
Any DEFAULTING MEMBER who fails to remedy his breach within 30
(THIRTY) days of receipt of written notice
from the SECRETARY calling
upon him to do so shall cease to be a MEMBER of the CLUB.
5.6.4
Any MEMBER suspended in terms of 11.4 during the period of such
suspension and any MEMBER who has been requested
to resign in terms
of 11.4 shall be deemed to be a DEFAULTING MEMBER.
5.6.5
For as long as MEMBER is a DEFAULTING MEMBER such MEMBER shall not be
entitled to exercise a vote.
5.6.6
The EXECUTIVE COMMITTEE or PROFCO as the case may be, may subject to
the approval of the BOARD OF GOVERNORS
reinstate any person who has
ceased to be a MEMBER or who is a DEFAULTING MEMBER.”
[17]
On behalf of the plaintiff it was contended that clause 5.6 of its
constitution was not an issue that was identified for determination
by the court
a quo
and
that the only issues which required determination were (a) the
jurisdiction of the court
a quo
,
and (b) whether Mr Moroka became a member of the plaintiff or not.
[18]
As I pointed out in para [4] above, the provisions of clause 5.6.3
were specifically pleaded by Mr Moroka in sub-para 9.9 of
his amended
plea. At no stage was this defence ever abandoned.
Additionally, the record reveals that the provisions
of the clause
were raised at various stages of the trial by
Mr
Naicker
, who appeared on behalf of Mr Maroka
in the court below. The references in the record are set out
here below:
18.1
Mr Shearer was first cross-examined by Mr Naicker on the implications
of the clause. Mr Combrinck only interjected
when the witness
was asked to interpret the document. The interjection by
Mr
Combrinck went as follows:
“Your
Worship, sorry, I didn’t want to interrupt when it comes to
interpretation of documents, including contracts,
legislation,
etcetera, it is not a question of an interpretation that is done by
the witnesses it si done by the Court. It
is left to the Court
to interpret a document using the normal rules of interpretation, so
this questioning of the witness as to
what his understanding is and
what my learned friend’s understanding is, is not allowed
because we are dealing with the interpretation
of documents.
He’s well within his rights to argue at the end of the matter
that the interpretation that should be
placed on the clause is
whatever interpretation he wants to put on it, no problem, but it’s
not something that the witnesses
are required to give evidence about
as to how it should be interpreted. That’s the basis of
my objection.”
18.2
It is significant that the learned magistrate’s ruling in this
regard was confined to the issue of interpretation
and nothing else.
18.3
In his closing argument Mr Naicker submitted that Mr Moroka’s
membership had ceased in 2011 by virtue of
the provisions of clause
5.6 of the plaintiff’s constitution.
18.4
In paragraph 6.4 of his Notice of Appeal, the issue was once again
raised as follows:
“Clause
5.6 of the plaintiff’s/respondent’s constitution also
provides that a defaulting member ceases to be member
of the
plaintiff/respondent if he or she fails to remedy his or her breach
within thirty days of receipt of a notice calling upon
him or her to
do so, which the defendant filed to do
.”
18.5
The issue was again raised in the heads of argument filed on behalf
of Mr Moroka in this court.
[19]
In light of all of the above, it seems to me that the issues raised
by clause 5.6 of the plaintiff’s constitution were
very much
alive both on the pleadings and in the evidence when the matter was
heard. There is, in my view, no substance in
Mr Combrinck’s
argument that clause 5.6 had nothing to do with the issue of Mr
Moroka’s membership which was the second
issue which required
determination in the court
a quo
.
I accordingly agree with the submissions advanced on behalf of Mr
Moroka to the effect that clause 5.6 and in particular
5.6.3 of the
plaintiff’s constitution are inextricably linked to the issue
of membership and cannot be overlooked having
regard to what
transpired at the time. I deal with this aspect hereunder.
[20]
It is apparent on the evidence that by 2011 Mr Moroka was vehemently
denying that he was a member of the plaintiff for reasons
already
dealt with above. He refused to pay any subscriptions for the
2011 and 2012 years. On 15 March 2011 he was
placed on terms by
Mr Dan De Bruyn
, the
plaintiff’s then golf director, to pay the 2011 subscriptions
within 30 days of the notice, failing which his privileges
would
cease. A further letter was sent to Mr Moroka on
11 June
2011 advising him that the subscription became due on 28 February
2011. A further demand emanating from the finance
department
was sent on
28 June 2011. Perhaps more importantly, the
respondent instructed its attorneys to demand payment, which they did
by letter
dated 5 August 2011. It is common cause that Mr
Moroka continued to remain in default and in terms of clause 5.6.2.2
he was
a defaulting member. This position continued into 2012.
[21]
Mr Combrinck submitted that clause 5.6.3 contemplates that the
written notice referred to in the clause was required to emanate
from
the secretary of the club and no one else before it could be said
that Mr Moroka’s membership had ceased. For
the reasons
that follow, I do not consider that there is any merit in this
argument.
[22]
As pointed out by Mr Combrinck in his supplementary argument, the
term ‘Secretary’ is defined in the Constitution
of the
respondent as the person appointed to that office, but including “any
person, in the absence of the Secretary, fulfilling
the functions of
the Secretary”. The situation is thus that no recipient
of a written notice not signed by the Secretary,
but being one which
the Secretary may give in the performance of the functions of his or
her office, can discern whether it is
given by a person who is
fulfilling the function of Secretary. Furthermore, a notice
furnished by someone giving it on instructions
of the Secretary is
the latter’s agent in this regard. When the plea was
delivered the plaintiff was fully aware of
the fact that more than
one notice had been given to Mr Moroka after he had become a
defaulting member, and yet:
(a)
no replication was delivered to the effect that all such notices were
given by persons not stand
ing in for the
Secretary (as contemplated by the definition); and to the effect that
none of the persons in question gave such notice
as agent of the
Secretary; and
(b)
the question of the occupation of the office of “Secretary”,
and authorities given by him
or her, was igno
red
in the presentation of the plaintiff’s case, despite the fact
that these matters were presumably within the exclusive
knowledge of
the plaintiff.
[23]
In the end, whatever may be said about the roles of Mr De Bruyn and
the officials in the plaintiff’ finance department,
it is
overwhelmingly probable that the demand sent by the plaintiff’s
attorneys was authorized by the Secretary.
[24]
In light of the above, I conclude that the consequences flowing from
clause 5.6 of the constitution were relevant to the overall
issue of
membership which the learned magistrate was required to decide.
To that extent the judgment of the learned magistrate
insofar as the
2012 subscriptions are concerned is wrong and must be corrected.
The effect of this is that the appeal succeeds
insofar as the
plaintiff’s claim for the 2012 subscriptions is concerned.
In view of the fact that Mr Moroka has been
substantially successful
in his appeal, there is no reason why the plaintiff should not bear
the costs of the appeal.
ORDER
[25]
The order I make is the following:
1.
The appeal succeeds with costs.
2.
The judgment of the court
a quo
is set aside and is replaced
with the following:
“
In
the result judgment is entered on behalf of the plaintiff as follows:
(a)
Payment of the sum of R6400,00;
(b)
Interest thereon at the rate of 15,5% per annum
from 1 March 2011 to date of final payment;
(c)
Costs of suit, including the costs of counsel on
tariff.”
_________________
_________________
I agree
OLSEN
J
Date
of Hearing
: 5
September 2016
Date
of Judgment
: 23
September 2016
Counsel
for Appellant
:
N.R.
Rathidili
Instructed
by
: Naicker
& Naicker
c/o Siva Chetty & Company
Counsel
for Respondent
:
P
Combrinck
Instructed
by
: Messrs
De Wet Leitch Hands Inc.
c/o Stowell & Company
[1]
Evins v Shield Insurance Co. Ltd
1980(2) SA 838 (AD).
[2]
1922 AD 16.
[3]
1981(4) SA 763 (CPD)
[4]
See the judgment of Maasdorp JA at pp.20 and 21
of the report.
[5]
Kings Transport v Viljoen
1954(1)
SA 133 (C) at 137.