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[2012] ZAFSHC 209
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QwaQwa United Taxi Association v Mokhasi (1762/2012) [2012] ZAFSHC 209 (15 November 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 1762/2012
In the matter between:-
QWA QWA UNITED TAXI
ASSOCIATION
...............................
Applicant
and
TM MOKHASI
.......................................................................
Respondent
_____________________________________________________
HEARD
ON:
1 NOVEMBER 2012
_____________________________________________________
JUDGMENT
BY:
EBRAHIM, J
_____________________________________________________
DELIVERED
ON:
15 NOVEMBER 2012
_____________________________________________________
[1] The appellant, a
voluntary association, seeks declaratory relief concerning the
ownership of a 2006 model Kia Cerato motor vehicle
(“the
vehicle”). The application is essentially vindicatory in nature
and the respondent’s first and foremost
challenge thereto is
that it is fatally flawed and defective because the material facts,
relied upon by the applicant, are disputed.
That being the case,
respondent has argued that motion proceedings are not competent. The
respondent is the erstwhile chairperson
of the applicant’s
Executive Committee and a serving member of the applicant.
[2] It is convenient at
the outset of this judgment to deal with the nature of the applicant
taxi association. Like any trade union
and employees’
organisation, the applicant is a voluntary association that is
created by agreement between its various members
to perform functions
in the interests and for the benefit of its members. From a reading
of its constitution, a copy of which has
been annexed to the
applicant’s founding affidavit, it is clear that the applicant
possesses the characteristics of a corporate
body,
viz
it
exists quite apart from the individuals who comprise it, though these
may change from day to day, i.e. it has perpetual succession
and it
is capable of owning property apart from its members. It therefore
has all the characteristics of a
universitas
, its capacity to
acquire rights and/or incur obligations being distinct from that of
its members. (
MORRISON v STANDARD BUILDING SOCIETY
1932
AD 229
;
WEBB & CO LTD v NORTHERN RIFLES
1908 TS
462
;
VAN RENSBURG AND OTHERS v AFRIKAANSE TAAL- EN
KULTUURVERENIGING
1941 CPD 179)
It is a lawful
association which has acquired a juristic personality simply by the
voluntary act of its individual members in vesting
property in the
association, which property is owned by it and is separate and
distinct from property owned by its members.
[3]
The applicant’s annual financial statements for the year ending
28 February 2009 reflects that the applicant was/is a
financially
stable institution and that its cash reserves are in credit and
intact. Applicant alleges that it elected to finance
the purchase of
the vehicle in order to maintain its liquidity. The nature of the
relationship between the applicant and its members
is one of
consensus on the essential characteristics and objectives of the
association and it is the constitution of the applicant
together with
all rules and/or regulations pertaining to that association (if they
exist), which collectively constitute the agreement
entered into by
its members. The constitution not only determines the nature and
scope of the association’s existence and
activities, but also
prescribes and demarcates the powers of the association and its
office bearers. (
TURNER v JOCKEY CLUB
OF SOUTH AFRICA
1974 (3) SA 633
(A)
at 645B – C and 645H – 646A;
THERON
EN ANDERE v RING VAN WELLINGTON VAN DIE NG SENDINGKERK IN SUID-AFRIKA
EN ANDERE
1976 (2) SA 1
(A)
at 25B;
Joubert:
The Law of South Africa
,
Vol 1, 303 para 455)
Because its powers are
contractual and not statutory (its powers are limited by its
constitution) if that constitution does not
endow the association
with the power to sue in a Court of law, it simply would have no
locus standi
to issue court proceedings.
[4] The undisputed
factual background to this application it that the applicant resolved
to purchase a motor vehicle, which turned
out to be the Kia Cerato
vehicle referred to in its notice of motion. Because the commercial
banks were not inclined to extend
vehicle finance to the applicant
(it being a voluntary association) it was resolved that the
respondent would in his personal capacity
apply to Absa Bank to
finance the vehicle. The finance was granted and the vehicle
purchased for the sum of R135 000,00, the deposit
having been paid by
the applicant, who thereafter made payment of the licensing and
registration fees, monthly instalments and
all insurance and
maintenance costs. On settlement of the loan on 6 July 2010 with Absa
Bank, the vehicle was registered in the
respondent’s name.
[5] On 26 January 2011,
the respondent was suspended by the applicant’s governing body,
the Thabo Mofutsanyana District Taxi
Council, on the grounds of
allegations of misconduct relating to the failure to give a proper
account of funds used (misuse of
funds). He was requested to furnish
the applicant with the spare keys to the vehicle, its registration
certificate and to provide
the applicant with duly completed and
signed documents necessary for the passing of ownership of the
vehicle to the applicant and
for registration thereof into the
applicant’s name. He failed to do so and on 4 May 2012 the
applicant approached this court
on notice of motion for corresponding
relief and for an order declaring applicant the lawful owner of the
vehicle. The applicant
is in possession of the vehicle.
[6] The applicant relies
on para 4.5(h) of its constitution for authority to bring these
proceedings. The respondent has challenged
the applicant’s
authority on the basis that although para 4.5(h) empowers the
applicant’s Executive Committee
“
to appoint
attorneys, accountants and other professional persons to act on
behalf of the Association and take legal action against
all or any
parties or party who may act contrary to the interest of the members
of the Association or in regard to the recovery
of money owing to the
Association”
it
does not authorise the Executive Committee to issue the present
proceedings. This is so because para 7.3 of the applicant’s
constitution requires a quorum of 50% plus one of the members present
and voting at a special general meeting to give such authority.
Respondent’s case is that the special resolution purportedly
taken on 3 May 2011 by the Executive Committee does not constitute
a
special resolution passed at a special general meeting and,
accordingly, the applicant had no
locus
standi
to
apply to this court for its relief.
[7] The allegations made
by the deponent to the applicant’s founding affidavit are
terse, unequivocal and to the point: he
alleges he is the applicant’s
chairperson and that he has been duly authorised to depose to the
affidavit on behalf of the
applicant. The response thereto is that
nowhere is it shown who applicant’s members are, nor which of
them had authorised
the deponent to represent the applicant in these
proceedings, as required by para 4.5(h) of its constitution. In
reply, the applicant
merely refers once again to its constitution, in
terms of which the vital issue, it alleges, is that the Executive
Committee has
been endowed with the power to manage the applicant
(para 3.1) and to that end it has the power to authorise the
applicant’s
attorney of record to launch the present
application on applicant’s behalf.
[8] The requirements for
an unincorporated voluntary association to have the power to sue and
be sued in its own name under the
common law have been set out in
numerous decisions of our courts. (
MORRISON
,
supra
;
WEBB
,
supra
;
BANTU
CALLIES FOOTBALL CLUB (ALSO KNOWN AS PRETORIA CALLIES FOOTBALL CLUB)
v MOTLHAMME AND OTHERS
1978 (4) SA
486
(T)
)
The
applicant has not relied on section 38 of the Constitution of the
Republic of South Africa, Act 108 of 1996 (“the Constitution”)
as a basis for asserting that it has standing to bring this
application. Section 38 bestows standing with regard to the
enforcement
of the rights enshrined in the Bill of Rights. Hence it
will not be necessary for me to consider the issue of whether the
standing
bestowed by section 38 affects the applicant’s right
to institute these proceedings. I have also not been asked by the
parties
to adjudicate the question as to whether the applicant’s
position under the common law as regards its
locus
standi
is compatible with the context
provided by section 38 of the Constitution and I shall not apply my
mind to that aspect.
[9]
Whether or not litigation has been authorised, is not dependent on
the authority of a deponent to depose to an affidavit in
proceedings
relating to that litigation for he/she is merely a witness. But the
practice which has developed of taking issue in
regard to the
authority of a deponent was inspired by the fear that a person may
deny being a party to litigation instituted in
his name. His
signature to the court process or formal proof of authority by way of
a resolution, where the litigation is being
conducted in the name of
a juristic person to whom he is connected, (either as director or
member) avoided risk to the opposing
party and the administration of
justice. (
VILJOEN v FEDERATED TRUST LTD
1971 (1)
SA 750
(O)
at 752D – F)
That risk however is
adequately managed if the attorney is authorised to bring the
proceedings. Uniform Court Rule 7(1) provides
for this with an
appropriate procedure and it is accepted that no attorney will act
for a person without such authority. Proof
is dispensed with except
and only if that authority is challenged by the opposing party. The
respondent has not availed himself
of the procedure provided and I
must accept, which I do, that these motion proceedings, on behalf of
the applicant, are duly authorised.
I
accordingly find that there is no merit in the respondent’s
challenge to the
locus standi
of the applicant. (
GANES AND ANOTHER
v TELECOM NAMIBIA LTD
2004 (3) SA 615
(SCA))
[10] I turn now to the
merits. It is clear from the applicant’s founding papers that
it brings these motion proceedings on
the basis of its common law
real right to derivative acquisition of ownership. The applicant
alleges that during 2006 it resolved
in a general meeting to purchase
the vehicle for utilisation by the applicant’s chairperson in
attending applicant’s
affairs and that it was intended and
decided that ownership of the vehicle would vest and remain in the
applicant despite the vehicle
being registered in respondent’s
name due to the commercially practical considerations mentioned.
Applicant has lost the
minutes taken at that meeting and relies on
the memory of members present at the meeting to justify its claim to
ownership. On
the other hand it is the respondent’s case that
members of the applicant resolved to purchase the vehicle exclusively
for
him as compensation for personal financial losses, which he
sustained as a result of his dedication as chairperson in attending
to the daily administrative affairs of the applicant. As
corroboration for his version the respondent relies on the minutes of
a general meeting of members of the applicant held on 13 September
2006. The respondent accordingly contends that the vehicle is
his
personal property. The applicant’s reply is to take issue with
the authenticity and veracity of the minutes recorded,
because they
have not been attested to under oath, there are discrepancies as to
the date of the meeting to which the minute refers
and the content of
the minute which has a direct bearing on the issue of ownership is
not clear, but convoluted and “nonsensical”.
[11]
On behalf of the respondent Mr Snellenburg applied for the dismissal
of the application on the ground that, in view of the
existence of
disputes of fact, it was not possible for the issue to be resolved on
the papers and that, in electing to proceed
with a vindicatory
application (
res judicata
)
on motion instead of by way of action (summons), applicant had done
so at his peril. Mr Van Aswegen argues for a decision based
on
probabilities, which he asserts are overwhelmingly in applicant’s
favour. That being so and having regard to the presumption
of law
that, the possessor of a movable asset is the owner thereof, (
RUSKIN,
NO v THIERGEN
1962 (3) SA 737
(A)
), he
submits that this court should grant an order in applicant’s
favour.
[12]
On the basis of the diametrically opposed versions of the parties, it
is inescapable that a
bona fide
dispute of fact exists as to what precisely was
decided by the members of the applicant in the general meeting during
2006 in the
context of the ownership of the vehicle. I fail to
understand the applicant’s election to prove their claim by way
of motion
and not by trial action. There is nothing untenable or
farfetched about either party’s version. The probabilities are
equivocal
and, therefore, neither party’s version warrants mere
rejection on the papers. Decisions of fact cannot be founded on
probabilities
where they are equivocal. (
ADMINISTRATOR,
TRANSVAAL, AND OTHERS v THELETSANE AND OTHERS
[1990] ZASCA 156
;
1991 (2) SA 192
(A)
at 196 I – 197A;
ROOM HIRE
CO (PTY) LTD v JEPPE STREET MANSIONS (PTY) LTD
1949 (3) SA
1155
(T)
at 1162 – 1168)
The crucial and only test
is whether a
bona fide
dispute of fact exists between the
parties. That issues of fact would arise ought reasonably to have
been anticipated by the applicant.
The question of ownership of the
vehicle is the only issue between the parties, which raised its ugly
head, apart from the respondent’s
suspension. Applicant must
have known before launching proceedings what respondent’s
stance would be. In these circumstances,
the appropriate order is one
of dismissal of the application with costs and it is so ordered.
_____________
S. EBRAHIM, J
On behalf of applicant:
Adv W A van Aswegen Instructed by:
Naudes
BLOEMFONTEIN
On behalf of respondent:
Adv N Snellenburg
Instructed by:
Honey Attorneys
BLOEMFONTEIN
/sp