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[2015] ZAECMHC 2
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Masizenzele Primary Co-Operative Ltd and Others v King Sabata Dalindyebo Local Secondary Co-Operative Ltd and Others (1178/2009) [2015] ZAECMHC 2 (29 January 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION,
MTHATHA)
CASE NO.: 1178/2009
DATE:29 JANUARY 2015
In the matter between:
MASIZENZELE PRIMARY CO-OPERATIVE
LTD
....................................
1st
Applicant
UNCEDO PRIMARY CO-OPERATIVE
LTD
...............................................
2nd
Applicant
LAPHUMIKHWEZI PRIMARY CO-OPERATIVE
LTD
............................
3rd
Applicant
NCEDULUNTU PRIMARY CO-OPERATIVE
LTD
.....................................
4th
Applicant
ITHEMBA PRIMARY CO-OPERATIVE
LTD
..............................................
5th
Applicant
SIYABULELA PRIMARY CO-OPERATIVE
LTD
........................................
6th
Applicant
UKUKHANYA PRIMARY CO-OPERATIVE
LTD
.......................................
7th
Applicant
KUYALUNGA PRIMARY CO-OPERATIVE
LTD
........................................
8th
Applicant
ZOLILE PRIMARY CO-OPERATIVE
LTD
..................................................
9th
Applicant
XOLANI PRIMARYCO-OPERATIVE
LTD
................................................
10th
Applicant
MKATE TRADING ENTERPRISE
CC
.......................................................
11th
Applicant
IRIS NONKOSINATHI
MBODLELA
..........................................................
12th
Applicant
BENNETT PUMELELE
BANZANA
............................................................
13th
Applicant
QANGULE
SIKHOLIWE
..............................................................................
14th
Applicant
NOTHEMBA THEODORA
SEPTEMBER
..................................................
15th
Applicant
ANDILE
MANYIFOLO
..................................................................................
16th
Applicant
MBANA
LIVI
...................................................................................................
17th
Applicant
NOKWALI
THULANI
....................................................................................
18th
Applicant
And
KING SABATA DALINDYEBO LOCAL
SECONDARY CO-OPERATIVE
LTD
.......................................................
1st
Respondent
CROSS BAR BORDER AGENCIES t/a
AMANDLA FOODS COMMODITY
SUPPLIERS
................................
2nd
Respondent
MEMBER OF THE EXECUTIVE COUNCIL
FORTHE
DEPARTMENT OF EDUCATION, EASTERN
CAPE
..........................
3rd
Respondent
JUDGMENT –
APPLICATION FOR LEAVE TO APPEAL
BESHE, J:
[1] This is an application for leave to
appeal to appeal my judgment wherein I dismissed applicants’
application with costs.
The factual background of the matter is
encapsulated in paragraph [3] of my judgment wherein I point out
that:
The dispute between the parties appears
to be a long standing one. At the centre of the dispute is what the
deponent to the founding
and replying affidavits describes as “a
dispute or feud and infighting between sections of the first
respondent hence there
is this application”. This is as a
result of a belief held by the applicants that the moneys paid by the
third respondent
(Department of Education, Eastern Cape) to first
respondent, a local secondary co-operative, for services rendered and
goods supplied
towards the implementation of a school nutrition
program operating with the King Sabata Dalindyebo Region are being
mismanaged
and embezzled by the Board of Directors of first
respondent.
[2] During the course of the on-going
dispute between the parties, and prior to this application the matter
served before Miller
J who upon hearing the matter issued an order
which set aside the election of seven of the eight respondents in
that matter on
31 January 2007 as directors of the applicant in that
matter, being King Sabatha Dalindyebo Local Secondary Co-operative
Ltd. The
first respondent in the present matter.
[3] My decision is sought to be
appealed on the basis that it renders Miller J’s pronouncement
meaningless. I am not convinced
that this is the case, or is the
result of my judgment. Apart from the fact that the respondents in
the matter that served before
Miller J are not the same as the
respondents in this matter, the “old board” which
seemingly was validated by Miller
J’s order, held fresh
elections to elect a new board. As indicated in my judgment, this
appears to have been the catalyst
for the amendment of the notice of
motion to include a prayer that “the meeting and results
thereof which was held on 23
July 2009 (sic) (meeting held in 2008)
in which a purported new Board of Directors was appointed be set
aside as null and void
and of no consequences”. This was on the
basis that the applicant disputed that a meeting was held according
to the relevant
statute. To this end, stated that until the original
attendance register and agenda is produced for copies and inspection
the meeting
remains in dispute, hence my finding that this does not
amount to a genuine dispute. I am unable to find that there are
reasonable
prospects of applicants succeeding on appeal.
[4] The application for leave to appeal
is dismissed with costs.
N G BESHE
JUDGE OF THE HIGH COURT
APPEARANCES
For Applicant : Mr V Kunju
Instructed by : X M PETSE
INCORPORATED
4th Floor – Suite 445
Development House
York Road,
MTHATHA
Tel.: 047 – 531 1572
(Ref.: Mr Magcakini/ns)
For Respondent : Mr Msindo
Instructed by : V V MSINDO &
ASSOCIATES
2nd Floor Absa Bank Building,
Offices 202 - 209
60 Sutherland Street
MTHATHA
Tel.: 047 – 532 2231
(Ref.: Mr Msindo)
Date Delivered : 29 January 2015