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[2015] ZAGPPHC 459
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Body Corporate of the Falcons v Rademan and Others (A637/2013, 16173/2012) [2015] ZAGPPHC 459 (14 July 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: A637/2013
CASE NO: 16173/2012
DATE: 14 JULY 2015
IN THE MATTER BETWEEN
THE BODY CORPORATE OF THE
FALCONS
...........................................................
APPELLANT
AND
MARTINUS PETRUS
RADEMAN
......................................................................
1ST
RESPONDENT
HOFFIE
HOFFMEYER
.......................................................................................
2ND
RESPONDENT
JOHANNA MARIA
PISTORIUS
.........................................................................
3RD
RESPONDENT
LENA
ERSKINE
....................................................................................................
4TH
RESPONDENT
JACQUES
HODSDON
..........................................................................................
5TH
RESPONDENT
JUDGMENT
PRINSLOO, J
[1] This is an appeal against a
judgment by this court, dated 5 December 2012, with Molefe, AJ (as
she then was) sitting as the
court of first instance.
[2] On 12 June 2013, the learned Judge
gave leave to appeal to the Full Court of this Division. This is the
appeal which came before
us.
[3] In the hearing a quo, the appellant
was the unsuccessful applicant, with the respondents successfully
resisting the application.
[4] The learned Judge ordered that the
costs of the application for leave to appeal would be costs in the
appeal.
[5] Before us, Mr Louw SC appeared for
the appellant, and Mr Schabort appeared for the respondents.
Condonation application: the late
filing of the appellant's Notice of Appeal
[6] According to the calculations of
the appellant's attorney of record, the Notice of Appeal was filed
twenty nine days late.
It had to be filed within twenty days from 12
June 2013 when leave to appeal was granted.
[7] Already in September 2013, the
appellant, having unsuccessfully tried to persuade the respondents'
attorney to condone the late
filing of the document, filed a
substantive application for condonation. The application was
supported by an affidavit deposed
to by the appellant's attorney of
record.
[8] Before us, the application did not
receive particular attention, and counsel were allowed to address us
on the merits. However,
the application was not formally abandoned,
so that it remains necessary to pronounce on the fate thereof.
[9] The sole cause of the late filing
of the appellant's Notice of Appeal, was a negligent oversight on the
part of the appellant's
attorney, which oversight he readily admitted
when deposing to the supporting affidavit.
In broad summary, the position is as
follows: the attorney got married in March 2013, and organised a
belated honeymoon with his
new bride in Cuba for the period 7 to 21
June 2013. Leave to appeal was therefore granted during the absence
of the attorney.
He got back to office on 21 June 2013, confronted
by an enormous amount of work. In his haste to reduce the backlog of
work,
he lost sight of the fact that the Notice of Appeal had to be
filed within twenty days from 12 June 2013. On 16 August 2013, the
file was brought to him for his attention. Quite properly, the
attorney admits that he was under the incorrect impression that
the
order granting leave to appeal was sufficient and that the
application would proceed to the appeal stage without a further
formal notice. Afterwards he consulted the rule and realised his
mistake. In his haste, he, initially, filed an incorrectly worded
document with the title "Application for a Trial Date" and
not "Notice of Appeal". He corrected the error
on 22
August by filing a correctly worded document. He apologised for the
oversight, which could not be laid at the door of his
client.
[10] As it turned out, there was no
real inconvenience on the part of anybody and, certainly, no
prejudice in the true sense of
the word. The appeal was only heard
almost two years after the filing of the Notice of Appeal.
[11] In the notice of motion of the
substantive application, costs were also tendered to the respondents
on the unopposed scale.
[12] The condonation application was
opposed. An opposing affidavit was filed and, for good measure, the
respondents also filed
a notice in terms of rule 30(2)(b) alleging an
irregular proceeding on the part of the appellant for filing the
Notice of Appeal
out of time (it was due on 10 July 2013), and
calling on the appellant to remove the cause of complaint by
withdrawing the Notice
of Appeal. I will treat the rule 30 notice as
part of the condonation application, and the opposition thereto, for
purposes of
deciding the application and the issue of costs.
[13] Because of the view I take of the
matter, I deem it unnecessary to deal with all the arguments raised
by the respondents in
opposition to the condonation application. It
must be recorded, however, that one of the grounds of opposition is
that the prospects
of success of the appeal is one of the main
considerations when the condonation application has to be decided,
and if the prospects
are considered to be poor, a court should be
slow to grant condonation.
[14] In Herbstein and Van Winsen, The
Civil Practice of the High Courts of South Africa, 5th edition,
volume 2, the following is
said at page 1227:
"It has already been observed that
a failure by a party to comply properly or timeously with the rules
governing appeals may
in its discretion be condoned by the Court of
Appeal. Particular provision on the point is made by statute or
rules of court in
the case of appeals from the magistrates' courts,
appeals to the full court of a provincial division and appeals to the
Supreme
Court of Appeal, but the court has in any event inherent
jurisdiction to grant relief, even in the absence of any such
provision.
In Suidwes-Afrikaanse Munisipale
Personeel Vereniging v Minister of Labour (the reference is
1978 1 SA
1027
(SWA) at 1038B-C) Hart AJP held that the principle has now been
firmly established that, in all instances of time limitation, whether
statutory or in terms of the rules of court, the Supreme Court had an
inherent right to grant condonation when principles of justice
and
fair play demand it to avoid hardship and when the reasons for non
compliance with time limits have been explained to the satisfaction
of the court."
(I do not quote all the references from
the footnotes, for the sake of brevity.)
In dealing with the requirement that
prospects of success on the merits ought to be shown for purposes of
obtaining condonation,
the learned authors say the following on page
1233:
"The court will not, for instance,
require an applicant to show a prospect of success on the merits
where the failure to comply
with the rules is due entirely to
circumstances beyond his control, for example the illness of the
magistrate."
In my view, the same principle applies
in the present matter. Although the learned authors do point out, on
page 1233, that courts
will be slow to grant condonation where the
prospects are considered to be very poor, they also say the following
on page 1234:
"A reasonable prospect of success
on appeal is naturally an important consideration relevant to the
granting of condonation,
but it is not necessarily decisive in every
case. Standing alone, it cannot in itself be conclusive."
(Reference to authorities listed in
footnotes is again omitted.)
[15] In all these circumstances, and
despite my negative view of the merits of the appeal, as will appear
later in this judgment,
and where we were fully addressed on the
merits of the case during the hearing, I have come to the conclusion
that this will be
an appropriate case for granting the condonation.
I am not persuaded that the opposition to the application was
unreasonable in
this particular case. Consequently, I have come to
the conclusion that justice will best be served by ordering the
costs, on the
opposed scale, flowing from the condonation
application, to be costs in the appeal.
[16] What remains, is for me to order,
as I do, that the condonation is granted.
The background of the case, and a brief
overview of the issues between the parties
[17] The appellant, as cited, purports
to be the "Body Corporate" of a so called "sectional
titles development scheme"
which was created, and is governed,
in terms of the provisions of the Sectional Titles Act no 95 of 1986
("the Act").
[18] The name of the development
scheme, in this case, is "the Falcons".
The Falcons consists of 79 individual
sectional title units and the development is situated in Pretoria,
relatively close to the
Union Buildings. In the founding affidavit,
the Falcons is described as "an upmarket" development with
the individual
sectional title units being "considerably more
valuable than the average sectional title unit in South Africa".
[19] In terms of the provisions of
section 35 of the Act, a development scheme, such as The Falcons,
shall, as from the date of
the establishment of the Body Corporate be
controlled and managed subject to the provisions of the Act and by
means of certain
"management rules" and "conduct
rules".
In terms of section 36, and with effect
from the date on which any person other than the developer becomes an
owner of a unit in
a scheme, there shall be deemed to be established
for that scheme a Body Corporate of which the developer and such
person are members,
and every person who thereafter becomes an owner
of a unit shall be a member of that Body Corporate.
The Body Corporate shall, subject to
the provisions of the Act, be responsible for the enforcement of the
rules referred to in section
35.
In terms of section 37, the Body
Corporate is endowed with certain functions which it shall perform
and in terms of section 38,
it is endowed with certain powers which
it may exercise.
In terms of section 39, the functions
and powers of the Body Corporate shall, subject to the provisions of
the Act, the rules and
any restriction imposed or direction given at
a general meeting of the owners of the sections or units, be
performed and exercised
by the Trustees of the Body Corporate holding
office in terms of the rules.
In terms of section 40, each Trustee of
a Body Corporate shall stand in a fiduciary relationship to the Body
Corporate. This means
that a Trustee shall, in relation to the Body
Corporate, act honestly and in good faith and avoid any material
conflict between
his own interests and those of the Body Corporate.
[20] It is against this statutory
background, that the following happened:
(i) In June 2011, the deponent to the
founding affidavit, Dr Nicholas van Straaten, ("Dr Van
Straaten") and four other
owners of units at the Falcons were
elected as Trustees of the Body Corporate at a duly convened Annual
General Meeting of the
applicant.
Two of the elected Trustees resigned
and they were replaced by the Trustees at a Trustee meeting of 3
August 2011. The "replacements"
duly co opted, were Mr
Louis Swart ("Mr Swart") and Ms Cari Jordaan ("Ms
Jordaan").
The other two duly elected Trustees,
who did not resign, were Ms Trix Theron ("Ms Theron") and
Mr Pieter Theron ("Mr
Theron").
I will refer to these five persons as
"the former Trustees" as did the learned Judge a quo.
(ii) It is common cause that there was
tension between the former Trustees and, what appears to be, the
majority of the other owners
or members of the Body Corporate.
Details appear from the papers about certain complaints which other
members had against the
former Trustees, and, in particular, Dr Van
Straaten. I consider it unnecessary to particularise those
complaints.
(iii) On 14 November 2011, some of the
owners of units, and members of the Body Corporate, gave notice that
they wanted a Special
General Meeting ("SGM") convened. It
is common cause that the necessary quorum, prescribed by the rules,
filed this
request. A petition was also signed by aggrieved owners.
The former Trustees responded by
indicating that an SGM would be arranged for 30 March 2012. The
aggrieved members of the Body
Corporate did not accept this offer and
convened an SGM for 9 February 2012. They did so with the assistance
of a former managing
agent (appointed in terms of the rules),
Trafalgar Property Managers. The aggrieved members, and their units,
were listed in the
request to convene the SGM. A detailed agenda for
the meeting was circulated. There were fourteen items on the agenda
and four
of them, which may be of relevance, read as follows:
"7. Majority of Trustees is not
owners.
8. Trustees disregard restrictions as
per attached [annexure B].
9. Possible conflict of interest
between Trustees and Bluestrata Properties.
11. Determination of the number of
Trustees and election of Trustees."
(iv) At the SGM of 9 February 2012,
forty five owners were present in person or by proxy. The previous
managing agent (Trafalgar)
was represented and so was the current
managing agent at the time (Pro Admin).
Some of the former Trustees, then in
office as Trustees, were present but refused to answer questions from
the floor.
During the course of the meeting, one
Mr Figgins proposed a motion that the agenda be extended to make
provision for an item dealing
with the removal of the former Trustees
(then current Trustees) and the election of new Trustees. The vote
was carried with an
overwhelming majority of forty three to three.
After a lively debate, the present five
respondents were elected as Trustees in the place of the former
Trustees, who were duly
relieved of their positions. This process
was also carried by an overwhelming majority.
I add that, at the meeting and during
the debate, it was argued on behalf of the former Trustees that they
could not be relieved
of their posts because they were not notified,
in the formal notification, that an agenda point would be aimed at
removing the
Trustees. A counter argument recorded in the minutes of
the SGM was that the intention was clear that the meeting was
convened
for the purpose of electing new Trustees, because of the
item on the agenda "determination of the number of Trustees and
election
of the Trustees".
(v) On 12 March 2012 the respondents
(then the newly elected Trustees) notified all the owners, as members
of the Body Corporate,
through the then managing agent, Pro Admin,
that an annual general meeting would take place on 27 March 2012 in
the Falcons clubhouse.
One of the items on the bilingual agenda was
-
"11. Trustees
11.1 Determination of number.
11.2 Election of Trustees."
At the duly constituted Annual General
Meeting ("AGM") of 27 March 2012, and with the necessary
quorum present, the respondents
were again elected as Trustees.
(vi) On or about 23 March 2012 the
former Trustees launched the application which was dismissed by the
learned Judge a quo and which
forms the subject of this appeal. It
is not clear when the application was served on the respondents,
because the stamp of the
Deputy Sheriff bears the date of 18 April
2012 which would have been after the 27 March AGM. There are no
returns of service in
the file. The answering affidavit is only
dated 23 May 2012.
The relevant prayers in the notice of
motion, initially set down for 14 May 2012, but eventually only heard
on 12 November 2012,
read as follows:
"1. Setting aside a resolution
taken by the members of the applicant to terminate the appointment of
the persons referred to
in paragraphs 5.2.3, 5.2.4, 5.4.1 and 5.4.2
of the founding affidavit as Trustees and to appoint new Trustees at
a Special General
Meeting on 9 February 2012;
2. That the respondents be interdicted
from:
2.1 representing themselves to be the
elected Board of Trustees;
2.2 interfering illegally and contrary
to the provisions of the
Sectional Titles Act and
the Rules issued
thereunder, with the business and management of the applicant in any
way or manner."
There was also a prayer for costs to be
paid on the punitive scale by the respondents.
The people listed in the paragraphs
mentioned in prayer 1 are four of the former Trustees, Ms Theron, Mr
Theron, Mr Swart and Ms
Jordaan. Surprisingly, Dr Van Straaten, no
doubt the leader of the former Trustees, is not mentioned in prayer 1
of the notice
of motion, so that his removal as a Trustee does not
appear to be challenged. Nevertheless, I consider this to be an
oversight
and a point not worth dwelling on.
(vii) Significantly, the former
Trustees, who launched this application well after the 12 March
notification of the 27 March AGM
was circulated, at no stage
challenged the validity of the 27 March AGM, neither did they, for
example, attempt to stop the meeting
through legal action, neither
did they at any stage attack the validity of any of the decisions
taken at the 27 March AGM, including
the appointment of the
respondents as Trustees.
(viii) The main thrust of the argument
of the former Trustees, in support of their application, is based on
the provisions of Management
Rule 13(e).
The rule reads as follows:
"13. A Trustee shall cease to hold
office as such –
(a) ...
...
(e) if by resolution at a general
meeting of the Body Corporate, he is removed from his office,
provided that the intention to vote
upon the removal from office has
been specified in the notice convening the meeting."
The former Trustees argue that the
notice they received of the 9 February SGM, including the agenda, do
not specifically provide
for an item aimed at removing them from
office. I have listed what I consider to be relevant items on that
agenda.
My prima facie view is that, where the
agenda contained items consisting of complaints that the majority of
the Trustees is not
owners of the units, that the Trustees disregard
restrictions set out in an annexure, that there is a possible
conflict of interest
between the Trustees and Bluestrata Properties
and also provision for an election of Trustees, there was substantial
compliance
with the requirements of
rule 13(e).
The former Trustees
were also present at the meeting and also represented by their
attorney, one of those attending the SGM.
Moreover, in their opposing affidavit,
the respondents rely on the provisions of Management
Rule 11.
In the
work by Van der Merwe, Sectional Titles, Shareblocks and
time-sharing, volume 1, the learned author says the following
at
14-152:
"14.5.11 Validity of acts by
Trustees
The rules provide that any act
performed by the Trustees shall be valid, notwithstanding that it is
subsequently discovered that
there was some defect in the appointment
or continuance in office of any Trustee."
In the footnote, the learned author
refers to Management
Rule 11
and also compares it to
rule 9
of
schedule 1 of the New South Wales Strata Titles Act 68 of 1973.
The respondents raised this issue in
the opposing affidavit but, in reply, Dr Van Straaten did not counter
the point.
In view of the aforegoing, it appears
that, even if their appointment on 9 February was flawed (which
appears not to be the case)
the subsequent actions of the
respondents, as newly elected Trustees, to, for example, arrange the
27 March AGM, with the subsequent
further election of the respondents
as Trustees, was valid.
The learned Judge a quo, in her
judgment, dealt comprehensively with this issue in the following
terms:
"[19] It is my view that the
owners in this case were empowered to call the extraordinary special
meeting, to pass a vote of
no confidence and to remove the Trustees.
They submitted the notice of the Special General Meeting to the Body
Corporate which
was signed by the statutory (sic, should be
statutorily) prescribed number of owners and I find nothing unlawful
about their actions.
Annexure 8 rule 13(e) also supports my view; in
terms of this rule a Trustee may be removed from office before the
expiry of his
or her term of office by a resolution passed by a
simple majority at a special meeting of the Body Corporate.
[20] At a general meeting held on 27
March 2012, the respondents were elected as the new Trustees for the
second time, clearly showing
the wishes of the majority of the
owners. The former Trustees were notified of the annual general
meeting of 27 March 2012 and
that an election of new Trustees will
take place. They did not take any steps to prevent the Annual
General Meeting and have clearly
associated themselves with the
validity and the result of the election at the Annual General
Meeting. Furthermore, in terms of
Management Rule 11, any act
performed by the Trustees shall, notwithstanding that it is after the
performance of the act discovered
that there was some defect in the
appointment or continuance in office of any Trustee, be as valid as
if such Trustee has been
appointed.
[21] The issue of the appointment of
the new Trustees at the Annual General Meeting of 27 March 2012 has
become purely academic.
Even if it was found that the resolution
taken at the Special General Meeting of 9 February 2012 was invalid,
(which is not the
case) it is irrelevant in the face of the Annual
General Meeting held on 27 March 2012. The appointment of the new
Trustees on
27 March 2012 is therefore valid."
[21] In all the circumstances, and for
the reasons mentioned, I find myself in respectful agreement with the
reasoning of the learned
Judge a quo, and I am of the view that the
appeal, for this reason alone, ought to fail.
[22] So much for the introduction and
the issues between the parties.
Mootness
[23]
Section 16
of the
Superior Courts
Act 10 of 2013
provides for "appeals generally".
Section 16(2)(a)(i)
provides "when
at the hearing of an appeal the issues are of such a nature that the
decision sought will have no practical
effect or result, the appeal
may be dismissed on this ground alone".
[24] Mr Schabort referred us to Radio
Pretoria v Chairman, Independent Communications Authority of South
Africa and Another
2005 1 SA 47
(SCA) where the court applied the
provisions of the similarly worded
section 21A(1)
of the, now
repealed, Supreme Court Act 59 of 1959:
"(1) When at the hearing of any
civil appeal to the Appellate Division or any Provincial or Local
Division of the Supreme Court
the issues are of such a nature that
the judgment or order sought will have no practical effect or result,
the appeal may be dismissed
on this ground alone."
At 56G-H the learned Judge of Appeal
refers to Premier, Provinsie Mpumalanga, en 'n Ander v Groblersdal se
Stadsraad
1998 2 SA 1136
(SCA) where the learned Judge of Appeal, in
that case stated at 1143A-C:
"Die bedoeling van artikel 21A van
die Wet op die Hooggeregshof is klaarblyklik om die drukkende werklas
van howe van appèl
te verlig. Appèlle behoort slegs
vir beregting voorgelê te word as daar 'n werklike, praktiese
uitwerking of gevolg
van 'n uitspraak van die hof van appèl
sal wees ..."
[25] In this case, the 27 March 2012
AGM, where the respondents were, for the second time, elected as
Trustees, took place more
than three years ago. As I pointed out,
the validity of that meeting, and the resolutions there taken, were
not challenged in
any way by the former Trustees.
[26] On 17 March 2015, the respondents'
attorney wrote a lengthy letter to the attorney for the appellant (de
facto, the attorney
representing the former Trustees) suggesting that
the appeal is moot and proposing that the appeal be withdrawn. It is
convenient
to quote extracts from this letter:
"4. We in particular wish to draw
your attention to
section 16(2)(a)
of the
Superior Courts Act, which
provides that where the decision sought will have no practical effect
or result, the appeal may be dismissed on this ground alone.
5. Since the initial launching of the
application in the court a quo events have simply superceded the
application as you may have
been informed by your client.
6. Various general meetings were since
held at which new Trustees were from time to time elected. The
election of Trustees as it
occurred from time to time were not
objected against or sought to be impugned. Both as a matter of fact
and law the election of
later Trustees were therefore valid. As
matters presently stand, none of the respondents are currently
Trustee of the Body Corporate
and more than 5 general meetings, where
Trustees have been elected, took place since February 2012.
7. In the circumstances, it is pellucid
(my note: I did not know what this word meant and looked it up. It
means 'clear in style
or expression') that even should the appeal
succeed it will have no practical effect or result whatsoever."
And:
"11. It is our instructions to
inform you that the issue of mootness will be addressed and dealt
with in the heads of argument
on behalf of our client. This letter
will also be handed to the presiding judges at the hearing of the
appeal in order to bring
to their attention the contents of this
letter."
[27] The letter was not met with any
favourable response. The former Trustees pressed on regardless.
[28] It is obvious, given the history
of this particular case, that the issues, in the spirit of
section 16
of Act 10 of 2013, "are of such a nature that the decision
sought will have no practical effect or result ..."
The 9 February 2012 SGM took place more
than three years ago. A second, unchallenged, decision was taken at
the 27 March AGM, appointing
the respondents as Trustees. This was
followed, over the years, by some five other similar meetings and
appointments. The respondents
are no longer Trustees. None of the
subsequent decisions was challenged. Even if this court were to
declare the appointment of
the respondents as Trustees at the 9
February 2012 SGM flawed, it would have no practical "effect or
result" for present
purposes.
In my view, this is clearly a case
falling inside the ambit of section 16(2)(a)(i), and, for that reason
also, the appeal falls
to be dismissed.
[29] I add that, in supplementary heads
of argument, Mr Louw submitted that the issues in this appeal cannot
be said to involve
"an academical question or a matter providing
legal advice" by the court to the parties. He argued that the
Management
Rules, the interpretation thereof and the application
thereof to the practicalities of the management of the Falcons are
all at
issue. He referred to a passage from MEC for Education,
Kwa-Zulu Natal and Others v Pillay
2008 1 SA 474
(CC) at 486B-E where
the learned Chief Justice said the following:
"[32] With regard to mootness,
this court has held that 'a case is moot and therefore not
justiciable if it no longer presents
an existing or live controversy
which should exist if the court is to avoid giving advisory opinions
on abstract propositions of
law' (my note: the learned Chief Justice
refers to National Coalition for Gay and Lesbian Equality and Others
v Minister of Home
Affairs and Others
2000 2 SA 1
(CC) at 18H 19B and
authorities there quoted). Sunali is no longer at DGHS and the isue
is therefore moot. This court has however
held that it may be in the
interests of justice to hear a matter even if it is moot if 'any
order which [it] may make will have
some practical effect either on
the parties or on others'. The following factors have been held to
be potentially relevant
. the nature and extent of the
practical effect that any possible order might have;
• the importance of the issue;
• the complexity of the issue;
• the fullness or otherwise of the
argument advanced; and
• resolving disputes between
different courts."
(References in footnotes omitted.)
In my view, none of these examples of
whether a case may be heard even when it is moot, is applicable to
the present case. The
reasons I have mentioned. In any event, the
test for mootness in the Supreme Court of Appeal (the case under
consideration does
not have a constitutional flavour, in my view) is
different from what it may be in the Constitutional Court such as
Pillay, referred
to by Mr Louw: in Absa Bank Ltd v P J J Van Rensburg
and Another (228/13)
[2014] ZASCA 34
(28 March 2014) the Supreme
Court of Appeal also had occasion to apply section 21A of the Supreme
Court Act 59 of 1959 ("Act
59 of 1959"). In paragraph [7]
the following is said:
"According to section 21A(1), if
the issues in an appeal 'are of such a nature that the judgment or
order sought will have
no practical effect or result, the appeal may
be dismissed on this ground alone'. These provisions set a direct
and positive test:
whether the judgment or order will have a
practical effect or result and not whether it might be of importance
in a hypothetical
future case (my note: here the learned Judge of
Appeal refers to the case of Groblersdalse Stadsraad). As a result,
this court
will not 'make determinations on issues that are otherwise
moot merely because the parties believe that, although the decision
or order will have no practical result between them, a practical
result could be achieved in other respects'."
(References to footnotes omitted.)
In Absa Bank, notably paragraphs [8] to
[12], the learned Judge of Appeal considered matters where, despite
mootness, it was decided
to hear the appeal in any event. The
example mentioned in paragraph [10] is the well-known case of Sebola
v Standard Bank
2012 5 SA 142
(CC) where the court held, at 150D F,
that the case was moot, but said the following:
"Yet mootness is not an absolute
bar to deciding an issue. That is axiomatic: the question is whether
the interest of justice
require that it be decided (my note: the
learned Judge refers to another Constitutional Court case, that of
Van Wyk v Unitas Hospital
and Another
[2007] ZACC 24
;
2008 2 SA 472
(CC) at paragraph
[29]
). One consideration is whether the court's order will have any
practical effect on either the parties or others."
In Absa Bank, paragraph [10] footnote
14, the learned Judge of Appeal points out that the "provisions
of the Act, (a reference
to Act 59 of 1959) including section 21A,
did not apply to the Constitutional Court which uses a different
yardstick, the interests
of justice test, in deciding whether to hear
an appeal whose issues have gone dead".
On this authority, Mr Louw's argument
cannot avoid an adverse finding against the appellant on the ground
of mootness. In any event,
I have expressed the view that the
examples mentioned in Pillay, quoted above, do not apply to the
present case.
I add, as a matter of interest, that
counsel for the appellant in Radio Pretoria attempted a similar
approach, without success.
See the judgment at 55B-D where counsel
attempted to persuade the court that a decision on the interpretation
of a certain Act
and on the correctness of ICASA's refusal in respect
of the employment practice "would be useful as a guide for the
court
reviewing ICASA's decision in respect of the four year licence
application and to other broadcasters who might experience similar
problems".
[30] For all these reasons, I have come
to the conclusion, and I find, that the appeal also falls to be
dismissed on the ground
of mootness: on the basis of the facts of
this case and the principles I have attempted to summarise, I agree
with the submissions
by counsel for the respondents that the granting
of the relief sought in prayer 1 of the notice of motion cannot
invalidate any
of the subsequent elections of Trustees and will be of
no consequence. It has become academic. Likewise, the relief sought
in
prayer 2 of the notice of motion will have no practical effect or
result in circumstances where not one of the respondents is still
a
Trustee against whom the interdict sought can be granted. The
situation does not represent an existing or live controversy,
which
should exist if the court is to avoid giving advisory opinions on
abstract propositions of law – National Coalition
for Gay and
Lesbian Equality, supra.
Do the former Trustees have the
necessary locus standi to pursue this appeal, and do they have the
necessary authority from the
appellant, as cited, to do so?
[31] In my view, there is much to be
said for Mr Schabort's argument that the former Trustees, not having
been in the proverbial
saddle as Trustees for more than three years,
do not have the authority from the Body Corporate to pursue the
appeal.
[32] Indeed, when the respondents were
elected, for the second time, as Trustees, on 27 March 2012, and when
they, by then, were
made aware of the application, they resolved, at
a meeting of Trustees, on 3 May 2012, to withdraw the application.
Subsequently, on about 8 May 2012, the
respondents called upon the "applicant" to submit a power
of attorney, in terms
of Uniform Rule 7(1), "to embark on this
action on behalf of the applicant".
In reply to the Rule 7(1) notice, the
former Trustees supplied a resolution entitled "round-robin
resolution of the Trustees
of the Falcons Body Corporate". This
resolution, purportedly taken on 27 February 2012, although the date
above the signatures
of the five former Trustees is left blank,
stipulates that Dr Van Straaten "in his capacity as chairperson
of the Board of
Trustees of the Falcons Body Corporate" is
authorised to approach this court to rescind the vote of no
confidence passed at
the 9 February 2012 SGM and to interdict the
"unlawfully elected" respondents from conducting themselves
as duly elected
Trustees. The five former Trustees, Mr and Ms
Theron, Ms Jordaan, Mr Swart and Dr Van Straaten, are mentioned by
name in the resolution
as the signatories. They also signed the
document.
[33] It is perhaps arguable that the
five former Trustees, as aggrieved persons, had the locus standi to
approach the court to set
aside their removal and to bring about
their reinstatement. They could do so on the strength of their
interpretation of the binding
effect of Management Rule 13(e).
[34] The issue of locus standi was not
mentioned in the judgment of the learned Judge a quo, neither was the
appellant, as cited,
non-suited by the learned Judge.
[35] However, the learned Judge found,
correctly in my view, that the true litigants were the former
Trustees and not the Body Corporate.
She said so in the following
terms:
"[22] Regarding the issue of
punitive costs, it would be unfair to grant a costs order against the
applicant ('the Body Corporate')
in the circumstances as the
applicant is in reality the former Trustees."
The learned Judge then went on,
correctly in my view, to order the former Trustees to pay the costs
of the abortive application.
[36] It appears that the former
Trustees held the view at the time when launching the application,
that they were still the Trustees,
with the necessary locus standi to
proceed in the name of the Body Corporate. Their resolution also
predates the AGM of 27 March.
However, in my view, after the 27 March
meeting and the (second) election of the respondents as Trustees, the
former Trustees ought
to have joined themselves as co applicants in
their personal capacities. Their failure to do so, amounts to an
abuse of the rules.
I also see no basis for holding that the
respondents were obliged to join the former Trustees as co
applicants.
[37] In view of the aforegoing, it is
obvious that the true litigants or applicants (later appellants) are
the former Trustees.
Their authority to proceed in the name of and
on behalf of the Body Corporate has long since fallen away.
[38] In the result, and whilst I make
no formal pronouncement on the locus standi of the former Trustees to
proceed with this litigation
in their personal capacities, as they
have in fact been doing, I find that they are clearly the parties to
be ordered to pay the
costs of the appeal in their personal
capacities. To this extent, I also find myself in respectful
agreement with the costs order
made by the learned Judge a quo.
The order
[39] I make the following order:
1. The appeal is dismissed.
2. The former Trustees, jointly and
severally, and in their personal capacities, are ordered to pay the
costs.
W R C PRINSLOO
JUDGE OF THE GAUTENG DIVISION,
PRETORIA
A637-2013
I agree
M F LEGODI
JUDGE OF THE GAUTENG DIVISION,
PRETORIA
I agree
M W MSIMEKI
JUDGE OF THE GAUTENG DIVISION,
PRETORIA
HEARD ON: 15 APRIL 2015
FOR THE APPELLANT: A J LOUW SC
INSTRUCTED BY: E Y STUART INC
ATTORNEYS
FOR THE RESPONDENTS: J W SCHABORT
INSTRUCTED BY: JARVIS JACOBS
RAUBENHEIMER INC