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[2015] ZAGPPHC 1013
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Nafcoc (Limpopo) and Others v Kgolane and Others (35826/2011) [2015] ZAGPPHC 1013 (31 July 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
[GAUTENG
DIVISION, PRETORIA]
CASE
NUMBER: 35826/2011
DATE:
31 JULY 2015
In the matter
between:
NAFCOC
(LIMPOPO)
..........................................................................................
FIRST
APPLICANT
IZAAC
MASEKWAMENG
.............................................................................
SECOND
APPLICANT
SG
MOSENA
.........................................................................................................
THIRD
APPLICANT
HK
MAKGAE
...................................................................................................
FOURTH
APPLICANT
MR
SHAI
................................................................................................................
FIFTH
APPLICANT
A
MONAKEDI
.......................................................................................................
SIXTH
APPLICANT
R
LIVHOYI
.....................................................................................................
SEVENTH
APPLICANT
MPHO
MOGALE
..............................................................................................
EIGHTH
APPLICANT
And
SELLO MAHLAGAUME
KGOLANE
...........................................................
FIRST
RESPONDENT
THEMBA
MALULEKE
...............................................................................
SECOND
RESPONDENT
NOAH
SERAGE
...............................................................................................
THIRD
RESPONDENT
JUDGMENT
A.J. LOUW AJ
[1] This matter has
a long history. The heading as set forth above also does not
correctly set forth the parties to the application
and
counter¬application. The First, Second and Third Respondents
namely in the course of these proceedings brought a
counter-application.
In the counter-application the First, Second and
Third Respondents joined as further Respondents in the
counter-application, as
First Respondent NAFCOC (Limpopo), izaac
Masekwameng (as Second Respondent) NAFCOC (National) as Third
Respondent and Lawrence
Mavundla was Fourth Respondent.
[2] I intend to
refer to the parties as follows:
NAFCOC (Limpopo) as
First Applicant;
Izaac Masekwameng as
Second Applicant;
SG Mosena as Third
Applicant;
HK Makgae as Fourth
Applicant;
MR Shai as Fifth
Applicant;
A Monakedi as Sixth
Applicant;
R Livhoyi as Seventh
Applicant;
Mpho Mogale as
Eighth Applicant.
Sello Mahlagaume
Kgolane as First Respondent;
Themba Maluleke as
Second Respondent;
Noah Serage as Third
Respondent;
NAFCOC (National) as
NAFCOC (National); and Lawrence Mavundla as Mavundla.
[3] The application
started off as an urgent application for an interdict. Part A of the
Notice of Motion that was dated June 2011
is an urgent application
for an interdict. Part B, namely the main application, is what is
relevant for purposes of my judgment.
The amended relief sought in
the main application is as follows:
“1. A
declarator declaring that the purported election of office bearers
(including Respondents 1 - 3) on 21 April 2011 is
ultra vires the
constitution of Nafcoc (Limpopo) and as such null and void;
2. The respondents
are interdicted from:
(a) holding
themselves out as the duly elected executive committee members of
Nafcoc (Limpopo);
(b) interfering with
the day to day activities of running of Nafcoc (Limpopo);
(c) appropriating or
attempting to appropriate Nafcoc’s (Limpopo) assets and/or
entering into contracts with third parties
whilst holding themselves
out as the duly authorised representatives of Nafcoc (Limpopo);
(d) arranging
meetings and chairing meetings whilst holding themselves out as the
duly elected representative of Nafcoc (Limpopo).
3. Costs.
4. Further and/or
alternative relief. ”
[4] The First,
Second and Third Respondents brought a counter-application against
the First Applicant, the Second Applicant, NAFCOC
(National) and
Mavundla in terms of a counter-application that was filed on the 18th
July 2011. By notice of withdrawal dated the
28th January 2013, the
First, Second and Third Respondents withdrew prayers 1.1 and 1.2 of
the counter-claim. Prayers 1.1 and 1.2
intended to declare the 2008
NAFCOC Constitution the valid and binding constitution and to declare
the 2011 Constitution void.
Prayers 2, 3 and 4 of the
counter-application were not withdrawn. In terms thereof relief that
can be summarised as follows is
sought:
4.1 That the NAFCOC
(National) decision to declare a moratorium on elections be declared
invalid and be set aside;
4.2 That the
decision taken on 28 (sic) April 2011 to terminate the First, Second
and Third Respondents’ membership of NAFCOC
(Limpopo) be found
to have violated the First, Second and Third Respondents’
rights to procedural fairness and an order setting
aside the 28 (sic)
April 2011 decision;
4.3 A conditional
prayer, namely if it is found that the 21 April resolutions were not
validly passed, an order directing that NAFCOC
(Limpopo) convene a
meeting of its council, that the financial affairs including full and
proper reporting on all financial matters
be placed on the meeting
agenda; that a motion of no confidence be placed on the meeting
agenda and that nominations of new office
bearers of the Executive
Committee, to the extent necessary, be tabled. The
counter-application is opposed by the First to the
Eighth Applicants
as well as NAFCOC (National).
[5] At the hearing
of the application only the First to the Eighth Applicants appeared.
During his argument Mr De Wet, who appeared
on behalf of the
Applicants, also made submissions on behalf of NAFCOC (National) who
also instructed Mr De Wet to argue on its
behalf. I grant the
amendment of the date of 15 April 2011 to read as 21 April 2011 in
prayer 1 of the main application applied
for in terms of the written
notice of amendment dated 9 October 2014.
[6] In view of the
fact that I have the First, Second and Third Respondents’
version in front of me, I have to take cognisance
of their defences
and counter-application, despite their absence. Accordingly Mr De Wet
presented his argument and I adjudicate
the matter on the full set of
papers.
[7] I had the names
of the First, Second and Third Respondents called out before argument
by Mr De Wet started. The Respondents
were not present.
[8] Before setting
forth the facts relevant herein I need to point out that there were a
number of urgent or interlocutory applications
that were adjudicated
upon in the course of these proceedings. This included a joinder
application by the Second to Eighth Applicants
to be joined as
Applicants in the main application. The necessity for the joinder
application arose because of the fact that the
First to the Third
Respondents raised a defence of non-joinder. The plea of non-joinder
was raised because of the fact that a purported
meeting of the First
Respondent was held on the 21st April 2011. At this purported meeting
(the legality whereof I will deal with
herein later) elected a new
executive committee of the First Applicant and voted out the then
executive committee of the First
Applicant. The First, Second and
Third Respondents are respectively the new president elected on the
21st April
2011, the
vice-president elected on the 21st April 2011 and the treasurer
elected on the 21st April 2011.
[9] The Second
Applicant deposed to the affidavit in the joinder application. At the
time he was not aware of the identity or the
physical whereabouts of
the other members of the purported new executive committee and they
are not mentioned by name in the joinder
application to be joined as
Respondents. Insofar as it is relevant at this time, the Applicants
were of the view that the purported
meeting of the 21st April 2011
was not properly constituted and any election that took place at the
time was null and void or ultra
vires the constitution of the First
Applicant.
[10] The Second
Applicant then states in paragraph 6 of the paginated papers of the
joinder application the following:
“I am advised
that during the hearing of the urgent application it was informally
agreed between the representatives of the
parties that Respondents
1-3 will inform the other members of the “new executive”
of the order sought whereupon the
other members of the “new
executive” will join/intervene in this application as
Respondents or furnish an affidavit
to the effect that they abide the
Honourable Court’s decision. ”
[11] The following
order was made by Mr Acting Justice Van der Bijl in the joinder
application on the 8th November 2011:
‘IT IS ORDERED
1. THAT they be
joined in the Main Application hearing, as Applicants Two to Eight as
appears from the heading herein.
2. THAT the
Applicants two to Eight shall, within 3 days of this order, deliver
their founding affidavit, which is Annexure “J”
hereto,
on the First, Second and Third Respondents’ attorneys of
record.
3. THAT the
Respondents One to Three are entitled to deliver and answer to the
Founding Affidavit of Applicants Two to Eight within
15 days after
service of this Order should the Respondents wish to do so.
4. THA T the costs
of this Application be const (sic) in the cause. ”
[12] In an urgent
application brought by the First Applicant Jordaan, J granted an
order in the following terms against the First,
Second and Third
Respondents on the 19th July 2011:
BY AGREEMENT between
the parties, the following order is made:
1. The Respondents
are hereby interdicted from:
a) interfering in
any way with the bank account held at Absa, Polokwane, in the
Applicant’ name;
b) interfere with
the rights and obligations created by the current lease agreement in
respect of 103 Marshall Street, Polokwane,
nor will they take steps
to occupy these premises other than by order of Court;
c) From interfering
with the daily activities of the person’s (sic) identified in
paragraph 2.1 to 2.10 of Annexure “G”
to the founding
papers insofar as such persons’ activities purport to be in
relation to the Applicant.
This order serves as
an interim interdict pending the final adjudication of Part B of this
application.
2. The parties shall
ensure that a copy of this order is furnished to all members of their
executive committees or alleged executive
committees;
3. Costs are
reserved;
4. The parties shall
refer this application and the counter-application to the Deputy
Judge President with a joint request for a
special allocation and
they shall adhere to the following time table:
a) the Applicant
will supplement the answering affidavit on or before 29 July 2011, if
so advised;
b) the Applicant
will furnish a replying and/or answering affidavit on or before 19
August 2011;
c) the Respondent
will have the opportunity to reply to the answering affidavit to the
counterclaim on or before 2 September 2011;
d) the Applicant
will file heads of argument on 16 September 2011 and Respondent will
file heads of argument on or before 23 September
2011.”
[13] On 19 June 2012
Fabricius, J granted the following order in favour of the First to
Eighth Applicants against the First to the
Third Respondents in the
urgent court:
IT IS ORDERED
1. THA T the
respondent (sic)are interdicted from organising, arranging, or
holding or attending a meeting purported to be a meeting
of the first
applicant, which meeting has been scheduled to be an alleged
‘‘elective council meeting”, to be
held on 22 June
2012 at Meropa Casino, or any other place.
2. Costs in main
application. ”
[14] On 14 August
2013 Bertelsmann, J ordered in favour of the First to the Eighth
Respondents against the First to the Third Respondents
as follows:
“ITIS ORDERED
THAT:
1. The Respondents
are interdicted from organising, arranging, holding or attending a
meeting purported to be a meeting of the Applicants’
Limpopo
Council, to be held on 15 August 2013 at 11h00 at Waterland,
Polokwane or any other place or time;
2. The order be
forthwith e-mailed to the Respondents at nafcoclimpopo. org(a).amail.
com;
3. The Respondents
forthwith distribute this order to all their followers and
publicising this Order and distributing same, in the
same manner in
which they had sent out notices convening the abovementioned meeting,
as referred to in paragraph 1 above;
4. Costs, on
attorney and client scale. ”
[15] NAFCOC is the
acronym for the National African Federated Chamber of Commerce and
Industry. It is an organisation with legal
personality and perpetual
succession. It is a voluntary organisation not for profit and is an
organisation representing small,
medium and micro enterprises in
general and
historically disadvantaged people in particular within the Republic
of South Africa.
[16] Two
Constitutions of NAFCOC are referred to. I refer to the provisions of
the 2011 Constitution and point differences with
the 2008
Constitution where necessary.
[17] The financial
year of NAFCOC ends on the last day of February of each year or such
other date as the council of NAFCOC may
determine.
[18] The members of
NAFCOC are the subscribed affiliated sectorial constituencies,
organised sectorial based provincial structures
and other organised
business formations, bodies or associations admitted in accordance
with its Constitution. Individual members
admitted to membership
shall be entered in the province and/or sector's register of members.
Applicants for membership shall pay
the subscription fee applicable
at the time of applying for membership which shall be repayable if
the application is unsuccessful.
The subscription fees must be paid
annually by each member, the subscription fees shall be paid directly
into the national membership
account or existing members on or before
the expiry of the 12 month period from the date of joining or last
renewal, upon which
a grace period of no more than 60 days shall be
provided for the renewal of membership. Failure to renew membership
shall result
in the automatic termination of membership without
further
notice. New members
joining NAFCOC shall serve 12 months probation during which he/she
shall not vote any member into office and/or
be voted into any
executive position at any level unless the NAFCOC National Executive
Committee decides otherwise.
[19] Membership
terminates on receipt by NAFCOC of written notice from the member of
his resignation, or if the council decides
to terminate the
membership of a member on grounds considered reasonable in their
discretion and if it gives written notice to
the member of such
termination or if, in terms of clause 13.3 of the Constitution a
person’s membership can be suspended
if the member is guilty of
conduct which brought or is likely to bring NAFCOC or any of its
affiliate members into disrepute provided
that such member shall be
furnished with particulars of such alleged conduct and and provided
further that the council shall furnish
its reasons for such
termination or suspension. Such member shall be afforded the
opportunity of stating his or her case at a sitting
of the
disciplinary committee constituted in terms of the provisions of the
Constitution and/or Code of Conduct. Any member who
ceases to be a
member after failing to pay membership fees shall be regarded as a
new member upon application for membership by
such member.
[20] In terms of
clause 14.1 of the Constitution NAFCOC shall hold an annual general
meeting not later than 9 months after the end
of each financial year
in addition to any other general meetings held during that year and
shall designate the meeting as such
in the notice convening the
meeting. In terms of clause 14.2 not more than 15 months shall lapse
between the date of one annual
general meeting and the next.
[21] In terms of
clause 15 NAFCOC shall hold electoral conferences once every 5 years
for its general membership. The electoral
conference shall be held in
the last quarter of the 5th calendar year on a date and venue to be
determined by the executive committee.
[22] In terms of
clause 16 other general meetings shall be referred to simply as
general meetings with no absolute decision making
powers but convened
solely for the purpose of sharing business information, ideas and
strategies.
[23] It is necessary
to point out that the 2008 Constitution has identical wording
regarding the times when annual general meetings
must take place. The
electoral conference in terms of the 2008 Constitution, however, must
be held every 3 years. The limitation
of the nature of general
meetings other than an annual general meeting is not to be found in
the 2008 Constitution.
[24] The 2008
Constitution does not contain a clause similar to clause 22.10 of the
2011 Constitution. In terms of clause 22.10
of the 2011 Constitution
the council and/or executive committee may terminate membership if it
suspects that the particular member
is plotting against and/or
conniving with the opposition for the purpose of undermining and
discrediting the authority and vision
of the duly elected council
and/or executive of NAFCOC.
[25] The council of
NAFCOC is NAFCOC’s supreme decision making body on matters of
policy and strategy. The council elects
an executive committee
constituting of at least 10 members of the Council. In terms of the
2011 Constitution members of the executive
committee shall be elected
once every 5 years at a council meeting to be held within 60 days
from the date of expiry of the term
of office of the executive
committee. The provisions of the 2008 Constitution regarding the
constitution of the council are not
the same. The 2008 Constitution
provides that the members of the executive committee shall be elected
once every 4 years at a meeting
to be held within 60 days from the
date of expiry of the term of office of the executive committee.
[26] By notice dated
the 30th September 2014 the attorneys for the First to the Third
Respondents withdrew as attorneys for the
First to the Third
Respondents.
[27] It is necessary
to bring the dispute between the Applicants and the Respondents to
finalisation. The question that must first
and foremost be resolved
is whether all the necessary parties are before the court. Not
only does the First
to the Third Respondent raise, in paragraph 10.2 of their answering
affidavit, the non-joinder of parties with
a direct and substantial
interest in the dispute, but also and even in the absence of it being
raised by any of the parties, a
court is obliged to mero motu raise
the question whether all necessary parties are joined in the
proceedings.
[28] The First,
Second and Third Respondents expressly and in detail in paragraphs 18
to 23 (paginated papers 106 to 107) of the
counter¬application
raised the defence of non-joinder. Firstly it is raised with regard
to the five Executive Committee (EXCO)
members not joined at the
inception of the matter (a defect that was rectified with the joinder
of the Second to the Eighth Applicants)
as well as the non-joinder of
the four new EXCO members that were elected at the purported NAFCOC
(Limpopo) meeting on the 21st
April 2011. It is interesting to note
that neither were the names of these persons mentioned nor were they
indeed joined by the
First to the Third Respondents nor did these
persons attempt to intervene in these proceedings. The approach of
the First to the
Third Respondents in this regard certainly were not
in any way assistive of speeding matters up to finalisation. It was
also said
in the said paragraphs 18 to 23 that NAFCOC (National) must
be joined. This defect was rectified in that the First to the Third
Respondents themselves joined NAFCOC (National) as a Respondent in
the counter¬application.
[29] Mr De Wet does
not dispute that the “new” EXCO members ought to be
joined. His argument is that the First to the
Third Respondents,
whilst being represented, agreed that the unnamed additional members
of the “new executive” will
file affidavits to the effect
that they will abide the decision of this Court. I referred to the
undertakings in this regard in
paragraph 11 of this judgment. It is
also dealt with in the replying affidavit of the Applicants and their
answering affidavit
in the counter-application (paragraph 10 page
219).
[30] Undoubtedly the
unnamed new EXCO members have a direct and substantial interest in
the dispute as intended in judgments such
as Amalgamated Engineering
Union v Minister of Labour
1949 (3) SA 637
(AD). From that judgment
as well as later judgments there are two essential principles of law
to be borne in mind:
(1) That a judgment
cannot be pleaded as res judicata against someone who was not a party
to the suit in which it was given, and
(2) That the court
should not make an order that may prejudice the rights of parties not
before it.
See: Amalgamated,
supra at 651.
[31] Courts refrain
from dealing with issues in which a third party may have a direct and
substantial interest without either having
that party joined in the
suit or taking other adequate steps to ensure that its judgment will
not
prejudicially affect
the non-joined parties’ interests. The third possibility is
that the non-joined party consents to be
bound by the judgment
without it being represented in the matter. This invariably will have
to be done in writing. The mere non-intervention
of an interested
party who has knowledge of the proceedings does not make the judgment
binding on him as res judicata. The undertakings
referred to in the
papers of this matter are not direct undertakings from the unnamed
“new” EXCO members.
See: Amalgamated,
supra at 659 - 660.
[32] In the
circumstances the matter must either be postponed so as to enable the
joinder of the unnamed new EXCO members or the
application must be
dismissed or, thirdly consideration must be given to the granting of
a rule nisi.
See: Amalgamated,
supra at 651; Mashike and Ross NNO and Another v Senwesbel Limited
and Another f2013l (3) All SA 20 (SCA) at par
22.
[33] In the
circumstances of the matter Mr De Wet in the alternative submitted
that a rule nisi be issued and indicated proposed
terms of such a
rule nisi.
[34] I am inclined
to adhere to this request in view of the fact that dismissing the
application and ordering the First to the Eighth
Applicants to join
all necessary parties in new proceedings, will just prolong an
already drawn
out dispute.
Secondly, such an approach will be of little value in the absence of
knowledge on the part of the Applicants as to
who the additional
persons are that they ought to join. The First to the Third
Respondents did not disclose the names of the other
“new”
EXCO members. In these circumstances and although it is clearly not,
on the case law that I consulted, a consistent
general approach to
issue a rule nisi in circumstances where there is a difficulty of
non-joinder, it appears to be the proper,
just and correct approach
in the circumstances of the matter. In addition the issue of a rule
nisi in such circumstances has the
sanction of the Supreme Court of
Appeal as well as the sanction of courts of this Division.
See: Ex parte Sengol
Investments (Ptv) Ltd
1982 (3) SA 474
(T) at 478A - 479B;
Ex parte Jacobson:
In re Alex Jacobson Holdings
1984 (2) SA 372
(WLD) at 377 - 378;
Amalgamated, supra
at 651 and 652.
[35] A rule nisi
will cater for the exigencies of this matter. Van Dijkhorst, J in Ex
parte Sengol Investments (Pty) Ltd supra at
478E - G explained the
nature of a rule nisi as follows:
“A rule nisi
is a judicial invitation to join issue and the failure to appear
after proper notice thereof is regarded as a
waiver of the right to
be joined and a submission to the order of the Court. ”
[36] The facts
relevant for purposes of this matter are now discussed. On 17 March
2011 the First Applicant’s EXCO met. The
EXCO requested the
Second Respondent to arrange a council meeting, he being the deputy
secretary on the EXCO. The request to the
Second Respondent was that
he must arrange a council meeting, that is a meeting of the Limpopo
Province Council of the First Applicant.
The Second Respondent must
arrange the meeting in consultation with the Second Applicant as the
chairperson of EXCO. The date and
agenda of the council meeting would
be finalised during discussions between the Second Respondent and the
Second Applicant. There
is some dispute between the Second Applicant
and the Second Respondent as to the arrangements. The Second
Respondent alleges that
the Second Applicant refused to convene a
meeting but then “in a moment of weakness" instructed the
Second Respondent
to convene a meeting for the 21st April 2011. The
Second Applicant’s version is that shortly after the EXCO
meeting of the
17th March 2011 the Third Respondent contacted the
Second Applicant telephonically and in a rude and aggressive tone
demanded to
know why a meeting had not been convened as yet.
According to the Second Applicant the Third Respondent demanded that
the Second
Applicant sanctions a meeting that had been convened for
the 21st March 2011. The Second Applicant explained to the Third
Respondent
that there was no urgency in the proposed meeting and that
the proposed meeting would only be an information meeting. The Second
Applicant further explains that the
National Executive
of NAFCOC (National) resolved earlier in 2011 that no committee
meetings to elect or to dissolve structures shall
be convened,
without consent of the President of NAFCOC (National), in
consultation with the National Council.
It is clear from the
explanation of both the Second Applicant and the Second Respondent
that there was dissatisfaction with the
council, there are
allegations of mismanagement of funds and that Mavundla dispatched a
letter on the 18th March 2011 to all provincial
and sector councils
and EXCO members that explained that a rift had formed within NAFCOC
and Mr Mavundla (as National President)
announced a moratorium on the
formation of any new NAFCOC structures and any elections. The
moratorium was to remain in force for
24 months. The moratorium was
also to be applied at both national ievei as weil as provincial and
sectoral level. The persons in
the grouping of the First, Second and
Third Respondents were dissatisfied with this situation. The said
letter is Annexure “B”
(paginated pages 60 to 61) to the
founding affidavit. It indeed refers to questions of mismanagement.
It indeed refers to a moratorium
on formation of NAFCOC and affiliate
structures and it expressly states that no structure shall be
dissolved or realigned or be
elected without an explicit written
permission from the President.
[37] The Second
Applicant explains that during the first week of April 2011 he became
aware that the Second Respondent had nevertheless
gave
notice by SMS of a
proposed council meeting on the 21st April 2011. This was to take
place at the Miami Lodge, Polokwane where the
First Applicant’s
meetings are normally held. The Second Applicant says he met with the
Second and Third Respondents at Phalaborwa
on the 9th April 2011. At
this meeting he told them that the proposed meeting of the 21st April
2011 was unauthorised and that
neither the date, nor the agenda were
discussed with or approved by the Second Applicant. The Second and
Third Respondents refused
to cancel the meeting scheduled for the
21st April 2011. The Second Applicant then cancelled the proposed
meeting scheduled for
the 21st April 2011 by means of an SMS
addressed to all members containing the following wording:
“Nafcoc
member: purported council meeting for 21/4/11 called by Mr Maluleke T
is not constitutional and therefore cancelled
forthwith until further
notice. From Masekwameng Nl Chairperson”.
It is common cause
that the meeting of the 21st April 2011 went ahead. It is the version
of the First to the Third Respondents that
at this meeting the
council, at a validly convened meeting, determined that the then
current EXCO should be dissolved in its entirety
and that a new EXCO
should be elected and they went forth and did so. He says in the
answering affidavit that the newly elected
EXCO conducted themselves
thereafter as the new leadership of Limpopo and the Second Respondent
says that the old guard (led by
the Second Applicant) resisted,
refusing to acknowledge that they have been voted out of office and
they refused to relinquish
power.
18] On 13 April 2011
the Second Applicant handed a letter to the Second Respondent (that
is Annexure “C” to the founding
affidavit at page 62)
wherein a number of allegations are made and wherein the Second
Respondent is directed to respond within
72 hours of receipt of the
letter why the EXCO should not consider charging him with gross
misconduct that borders on bringing
the organisation into disrepute
and to implement sections 13.2, 13.3 and 22.10 of the EXCO
Constitution against the Second Respondent.
Similar letters were
directed tot the First and Third Respondents. The First to the Third
Respondents were invited to attend an
EXCO meeting on the 20th April
2011, but they failed to turn up. On the 28th April 2011 the First to
the Third Respondents’
membership were terminated. The dispatch
and receipt of the letters are not in dispute.
Subsequent to the
meeting of the 21st April 2011 the First to the Third Respondents and
presumably their newly elected EXCO members
endeavoured to sign a
lease agreement on behalf of the First Applicant, endeavoured to
change the authorised signatories of the
Applicants’ bank
account, endeavoured to physically take over the premises of the
First Applicant and arising out of all
that the interdictory relief
granted by Jordaan, J on 19 July 2011 followed. A further order by
Fabricius, J on 19 June 2012 followed
as referred to earlier and a
further order of Bertelsmann, J followed in the next year, namely on
the 14th August 2013. In summary
there is a continuous dispute
between the Applicants
on the one hand and
the Respondents on the other hand as to the validity of the 21 April
2011 meeting and the validity of the resolutions
of that meeting.
[39] It is the
Applicants’ version that the meeting of the 21st April 2011 was
not properly constituted and any decisions
arising from that meeting
are void and of no effect. The First to the Third Respondents contend
that a meeting was validly constituted
and the resolutions thereof
are valid and binding. It is thus clear that there are directly
opposite views as to the validity of
the 21 April 2011 meeting. What
is common cause with regard to the 21st April 2011 meeting is that it
was constituted as an information
meeting. (See paragraph 74 at page
123 of the Second Respondent’s opposing affidavit).
[40] It is common
cause that the First, Second and Third Respondents attempted to
interfere with the day to day activities of the
First Applicant,
attempted to appropriate assets and to enter into contracts whilst
holding themselves out as the duly authorised
representatives of the
First Applicant and lastly also that they arranged meetings and
chaired meetings whilst holding themselves
out as the duly elected
representatives of the First Applicant and more particularly as duly
elected executive committee members
of the First Applicant.
[41] It is common
cause on the affidavits that the provincial structures of NAFCOC
operate autonomously from the national structure.
(Founding affidavit
paragraph 4 at page 10 and answering affidavit paragraphs 91 to 93 at
page 120). It is thus necessary to keep
in mind that this is a
dispute essentially between the First Applicant, being the Limpopo
Provincial Structure and members of the
First Applicant. For purposes
thereof the Limpopo Provincial Structure adopts and uses the National
Constitution of NAFCOC to direct
the relationship between the First
Applicant and its members. The dispute that is raised in the papers
regarding the NAFCOC (National)
Constitution of 2008 as opposed to
the NAFCOC (National) Constitution of 2011 again essentially pertains
to the dispute that exists
in the Limpopo Province between inter alia
the First to the Third Respondents and the First to the Eighth
Applicants. For purposes
of the dispute NAFCOC (National) the First
to the Third Respondents indeed joined Mr Mavundla and NAFCOC
(National). The First
Respondent and NAFCOC (National) are both in
terms of their Constitutions organisations with legal personality and
perpetual succession,
capable of suing and been sued in their own
name and holding properties of all kinds apart from their members in
terms of clause
2 of the Constitutions. Thus for purposes of the
attack on the Constitution of NAFCOC (National) only NAFCOC
(National) is the
party to sue or to be sued. It is not necessary to
join all its members.
See: De Waal v Van
Per Horst
1918 TPD 277.
[42] The import of
the withdrawal and abandonment of prayers 1.1 and 1.2 of the
counter-application, namely the declarations of
invalidity of the
March 2011 Constitution and for a declaration that the 2008 version
of the Constitution is valid and binding,
must be considered. That
withdrawal came on the 28th January 2013. NAFCOC (National) filed an
opposing affidavit to the counter-application
on the 23rd September
2011 and thereafter also filed a supplementary opposing affidavit
dated the 5th September 2012. In both these
affidavits detailed
evidence is presented with regard to the process of amendment of the
Constitution of NAFCOC (National) and
extensive evidence is presented
therein of the fact that the First and Second Respondents (if not the
Third Respondent) took part
in these procedures that the Respondents
now wish to attack. The only conclusion to be made from the fact that
there is a withdrawal
and abandonment of prayers 1.1 and 1.2 of the
counter-application, is that the validity of the 2011 Constitution is
accepted by
the First, Second and Third Respondents and that the
issue as to whether the 2011 Constitution or the 2008 Constitution
applies,
is not in issue since the 28th January 2013. I will
accordingly adjudicate the matter with reference to the provisions of
the 2011
Constitution in the dispute between the First to the Third
Respondents and NAFCOC (National).
[43] What must be
added, is that there is no replying affidavit to the supplementary
answering affidavit of NAFCOC (National) as
deposed to by the Third
Applicant. The telling further actions from the First, Second
and Third
Respondents after filing of the supplementary answering affidavit by
NAFCOC (National) is the notice of withdrawal of
the relief claimed
in prayers 1.1 and 1.2 of the counter-application. Thus the whole
attack on NAFCOC (National) and in particular
the attack on the 2011
version of the Constitution of NAFCOC (National) as a separate
entity, falls away.
[44] In addition for
the reasons mentioned in the supplementary opposing affidavit of
NAFCOC (National), I find that prayer 2 of
the counter¬application,
namely that NAFCOC (National) could not place a moratorium on its
elections is not relief that the
First, Second and Third Respondents
have locus standi to apply for as they are not members of NAFCOC
(National), they were only
members of the First Respondent.
[45] The reiief in
prayer 3 of the counter-application, concerning the termination of
the First, Second and Third Respondents’
membership of the
First Applicant, is a matter that I must consider and the relief
sought in prayer 4 similarly are matters that
I would need to
consider.
[46] Having regard
the evidence of NAFCOC (National) regarding the process of amendment
of its Constitution resulting in the acceptance
of the 2011 version
of the NAFCOC (National) Constitution on 17 March 2011 it is clear
that the version of the First to the Eighth
Applicants that the
applicable Constitution as regards the First Applicant and its
constituent members, must be incorrect. The
First to the Eighth
Applicants make the mistake to assume that by replacing of the NAFCOC
(National) Constitution on 17 March 2011,
ipso facto the Constitution
of the First Applicant also changed to the 2011 Constitution. That is
not so. The First Applicant operates
as an independent and autonomous
body. A constitutional amendment requires a long process in terms of
clause 32 of the 2011 Constitution
and a similar process of amendment
for repeal of its Constitution is prescribed in clause 33 of the 2008
Constitution. It is in
any event also nowhere in the evidence on
behalf of the First to the Eighth Applicants even mentioned that
after adoption of the
2011 Constitution by NAFCOC (National) that the
2008 Constitution was replaced through the process prescribed in
clause 33 of the
2008 Constitution. I therefore find that the
applicable Constitution of the First Respondent is not the 2011
Constitution but indeed
the 2008 Constitution as annexed to the
answering affidavit and counter-application of the First to the Third
Respondents.
[47] In the opposing
affidavit the First, Second and Third Respondents raised as number of
points in limine, I already dealt with
the non-joinder point and will
return to that later.
[48] The point of
urgency is not relevant any longer.
[49] The third point
raised is what is termed in Hoexster, Administrative Law in South
Africa, Second Edition at 518 - 519 that
the Applicants proceed by
way of indirect review of the resolutions of the meeting of 21 April
2011. In Oudekraal Estates (Pty)
Ltd v City of Cape Town and Others
2004 (6) SA 222
(SCA) at par 32 it is also described as “defensive”
or “collateral” challenge to the validity of an
administrative
act. Oudekraal at par 35 says a collateral challenge
to the validity of an administrative act will be available "...
only
“if the right remedy is sought by the right person in the
right proceedings”. Whether or not it is the right remedy
in
any particular proceedings will be determined by the proper
construction of the relevant statutory instrument in the context
of
principles of the rule of law.” When the validity of an
administrative act may be challenged collaterally a court has
no
discretion to allow or disallow the raising of that defence because
the validity of the administrative act constitutes the essential
pre-requisite for the legal force of the action that follows and
accordingly the subject may not then be precluded from challenging
its validity. If a court is on the other hand asked to set aside an
invalid administrative act in procedures for judicial review
it has a
discretion whether to grant or withhold the remedy. This discretion
is an essential and pivotal role in the Administrative
Law for it
constitutes the indispensible moderating tool for avoiding or
minimizing injustice when legality and certainty collide.
See: Oudekraal at
par 36.
No hard and fast
rules can in this regard be laid down.
See: Metal and
Electrical Workers Union of South Africa v National Panasonic Co
(Parrow Factory)
1991 (2) SA 527
(CPD); and National Industrial
Council v Photocircuit
1993 (2) SA 245
(CPD) at 252J - 254B.
[50] This is
undoubtedly a case where there is no reason to refuse Applicants
relief on grounds of the fact that their attack on
the resolutions of
21 April 2011 is a collateral attack.
[51] The alleged
lack of authority point in limine is not a valid point in view of the
fact that the proceedings is indeed also
supported through the
Secretary and executive committee of the First Applicant.
(See: paginated
papers 228 - 230).
[52] In summary, I
found that the 2011 Constitution applies with regard to NAFCOC
(National) and that the 2008 Constitution applies
insofar as the
First Applicant and the further Applicants the First to the Third
Respondents are concerned.
[53] On the papers
it is common cause that the meeting of 21 April 2011 was intended to
be an information meeting. That is the version
of the Applicants and
that is also the version of the First, Second and Third Respondents.
(See paragraph 74 at page 123 of the
paginated papers). Nowhere was
any notice given thereof that an election of office bearers
would take place on
the 21st April 2011. In terms of clause 18.2 of the 2008 Constitution
notice of the place, day and hour of the
meeting as well as in the
case of special business, the general nature of such business must be
indicated. Purely on grounds hereof
the resolutions taken and in
particular the replacement of office bearers is invalid and of no
force or effect as there was no
compliance with this provision of the
2008 Constitution.
See: Visser v
Minister of Labour and Another
1954 (3) SA 975
(WLD) at 983C - 984F.
The wholesale
replacement of office bearers must take place in terms of the
provisions for an electoral conference that are described
in inter
alia clause 15 of the 2008 Constitution.
[54] The purported
termination of the membership of the First, Second and Third
Respondents in terms of the documents contained
in Annexures “D1”
to “D11” (pages 62 to 73 of the paginated papers) simply
does not comply with the provisions
of the applicable Constitution,
namely the 2008 Constitution. The 2008 Constitution does not contain
the clause 22.10 upon which
the Applicants wish to rely and the
provisions of clauses 13.3 and 13.4 of the 2008 Constitution were not
complied with by the
First Applicant. Accordingly the termination of
membership of the First, Second and Third Respondents cannot stand.
[55] The Applicants
as well as NAFCOC (National) attempt to rely on the provisions that
prescribe when annual subscriptions must
be paid. However, in terms
of the 2008 Constitution the non-payment of subscriptions in terms of
clause 12.7 of the 2008 Constitution
will only apply after notice to
rectify in terms of clause 13.2 is given. Accordingly I cannot find
in favour of the Applicants
and NAFCOC (National) that the membership
of the First, Second and Third Respondents was terminated as a result
of non-payment
of their annual subscriptions. In view of my findings
it is not necessary to refer this specific question to oral evidence
as was
in the alternative submitted in the Heads of Argument on
behalf of the First to the Eighth Applicants.
[56] In the
circumstances prayer 1 of the main application, subject to the
question of joinder,
must be granted.
[57] The common
cause facts show that prayers 2(b), (c) and (d) must be granted,
again subject to the joinder question. The Applicants
are not
entitled to prayer 2(a) as the First, Second and Third Respondents
were indeed duly elected executive committee members
and the process
in terms of which their membership of the First Applicant was
purportedly terminated is void accordingly that prayer
cannot be
granted. A duly elected committee continues to hold office until it
retires or is dismissed where no steps are taken
to elect a new
committee, even though its term of office under the Constitution of
the organisation has expired.
See: Joubert, The
Law of South Africa, First re-issue volume 17 par 329 at p251.
[58] As regards the
counter-application prayer 1 was abandoned and prayer 2 is relief
that the First, Second and Third Respondents
cannot apply for as
discussed above.
[59] As regards
prayer 3 of the counter-application relief must be granted in view of
my findings that neither the provisions of
the correct Constitution
nor any proper procedure was followed with regard to the termination
of the membership of the First, Second
and Third Respondents.
[60] The Applicants
as well as NAFCOC (National) rely on clause 28.2, 28.2.1, 28.2.4 and
28.2.6 of the 2011 Constitution for the
so-called moratorium on
elections. The wording of especially clause 28.2.6 that refers to the
fact that the council may perform
“any other related function
for the benefit or interest of NAFCOC” simply is not open for
the wide interpretation that
it enables its council to place a
moratorium on elections. It needs to be remembered that the
Constitutions of NAFCOC (National)
as well as of the First Applicant
constitute the agreement between the members thereof. They are all
this bound by the terms thereof
and they must comply with its
provisions. The moratorium is invalid.
See: Engineering
Workers SA v Abrahams and Others 1982 (2) SA SECLD at 333D-F.
[61] I am of the
view that the First, Second and Third Respondents are not entitled to
the wide relief applied for in prayer 4 of
the counter¬application.
It is 2015 and elections of office bearers and so on might have taken
place in the intervening time
before the hearing of the matter and
before this judgment. Accordingly the order will be limited to an
instruction that the executive
committee and council of the First
Applicant must convene a general meeting where the following must be
agenda points:
1. Election of
office bearers;
2. The reporting on
the financial affairs of the First Applicant;
3. Compliance with
the electoral provisions as provided for in the applicable
Constitution.
I make no finding as
to whether the 2008 Constitution is still applicable as, in the
meantime, through proper procedure the 2011
Constitution might have
been adopted.
[62] In view of the
absence of the “new” fellow EXCO members of the First,
Second and Third Respondents, per force a
rule nisi must be issued.
[63] I considered
the question of the costs. In view of the findings I have made and
the order I propose it is clear that both the
Applicants and the
Respondents have had
a measure of success in these proceedings. In addition they are or
were all members of the First Respondent
who all appeared to
genuinely have the best interests of the First Respondent at heart.
In the circumstances the fairest order
is that no costs order is
made.
[64] Mr De Wet
informed me the local newspaper is the Polowane Observer.
[65] I accordingly
make the following order:
1. A rule nisi with
return date 3 November 2015 is issued, calling upon all interested
persons and in particular the persons purportedly
elected as
executive committee members of the First Respondent on the 21st April
2011 to show cause why an order should not be
made in the following
terms:
1.1 It is declared
that the purported election of office bearers (including First,
Second and Third Respondents) on 21 April 2011
is ultra vires the
then applicable Constitution of the First Applicant, being the 2008
Constitution, and as such is null and void;
1.2 The First,
Second and Third Respondents are interdicted from:
1.2.1 Interfering
with the day to day activities or running of the First Applicant;
1.2.2 Appropriating
or attempting to appropriate the First Applicant’s assets
and/or entering into contracts with third parties
whilst holding
themselves out as the duly authorised representatives of the First
Applicant as purportedly elected on the 21st
April 2011;
1.2.3 Arranging
meetings and chairing meetings whilst holding themselves out as the
duly elected representatives of the First RespsPftfent
as
purportedly elected
on the 21st April 2011.
1.3 The moratorium
on elections as set forth in the NAFCOC (National) notification dated
18 March 2011 is declared invalid.
1.4 The purported
termination of membership of the First, Second and Third Respondents
taken on 28 April 2011 by the First Respondent
is declared void and
of no effect.
1.5 The First
Respondent is ordered to convene a meeting of its Council in
accordance with the provisions of its Constitution as
applicable as
at date of this order and the following issues must be placed on the
agenda (without thereby limiting the enrolment
of other issues):
1.5.1 Reporting on
the financial affairs of the First Applicant;
1.5.2 The election
of office bearers at a future date in accordance with the provisions
of the applicable Constitution of the First
Applicant;
1.6 The meeting of
the Council of the First Respondent must be convened within 3 months
from the date of the final order;
1.7 No costs order
is made.
2. The rule nisi
must be served on the First, Second and Third Respondents’ main
place of business situated at 107 Marshall
Street, Polokwane by
Sheriff;
2. The rule nisi
must be published once in English in the Polokwane Observer;
3. The order must in
addition be served on the attorneys who represented the First, Second
and Third Respondents in these proceeding;
4. The contents of
paragraph 1.2 (with its subparagraphs) operate as an interim
interdict pending the return day.
SIGNED AT
PRETORIA ON THIS DAY 31 OF JULY 2015.
J LOUW AJ