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2011
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[2011] ZANCHC 26
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Khuis Communal Property Association v Gaotsenwe (77/2011) [2011] ZANCHC 26 (9 September 2011)
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IN THE
HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Case Nr:
77/2011
Case
Heard: 09/09/2011
Date
delivered: /09/2011
In
the matter between:
Khuis
Communal Property Association
…..................................
Applicant
and
Obiditse
John Gaotsenwe
…..................................................
RESPONDENT
JUDGMENT
Olivier J:
The
applicant is the Khuis Communal Property Association, an association
registered in terms of
section 8
of the
Communal Property
Associations Act, 28 of 1996
. The respondent, mr Obiditse John
Goaotsenwe, is a member of the applicant.
The
main relief claimed by the applicant in its notice of motion is for
the termination of the respondent’s membership and
certain
ancillary relief. In the alternative thereto, the applicant claims
relief aimed at the enforcement of a decision by the
applicant to
allow the respondent to farm in the Stokwana Camp of farm property
owned by the applicant, compelling the respondent
to remove his
livestock from the Garona Camp on the property interdicting the
respondent from interfering in or interrupting
the activities of the
applicant and from disrupting meetings of the applicant and an order
that the respondent pay the costs
of the application. At this stage
the applicant is only persisting with the relief claimed in the
alternative.
The
property referred to was awarded to the members of the applicant in
terms of a land settlement agreement. It includes the
farms called
Khuis 181 and Police 180 on which, respectively, the Stokwana and
Garona Camps are situated. The applicant was established
for the
purposes of,
inter alia
, managing the property. In terms of
the applicant’s constitution this function, and other day to
day activities, are performed
by a committee established in terms of
the constitution.
For
these purposes the applicant’s committee subdivided the land
into camps like Stokwana and Garona and laid down rules,
which are
applicable to all members.
It
is common cause that the committee has the power to allocate the use
of the land, and more specifically of the individual camps,
to
members, and that members need the permission of the committee to
farm in any such camp.
During
2006 the use of the Stokwana Camp was allocated to the respondent,
in other words permission was granted to the respondent
to farm in
that particular camp.
The
use of the Garona Camp was allocated to other members of the
applicant.
During
July 2007 the respondent moved livestock into the Garona camp and
started farming there. It is common cause that he did
not have the
permission of the committee itself to do so. It is also common cause
that the respondent was thereafter requested
more than once to
remove his livestock from the Garona camp, and that he at one stage
indicated that he would need three months
to do so. He nevertheless
did not remove his livestock from the Garona camp, and he is now
refusing to do so.
The
respondent has, however, in the meantime applied to the committee
for permission to farm, together with other members, in
the Garona
camp.
The
respondent contended
in limine
that the applicant lacks
capacity to act in this matter, because of the fact that its
committee, and the chairperson of the committee,
had not been
validly elected and appointed.
Mr
Botha, counsel for the respondent, did not pursue this, and in my
view wisely so. I will therefore not deal with it at this
state.
The
constitution of the applicant limits the term of office of such a
committee to three years. It is not disputed that the term
of office
of the last elected committee expired in September 2007.
In
terms of the applicant’s constitution the members of such a
committee must be elected at an annual general meeting of
the
members of the applicant.
In
his founding affidavit on behalf of the applicant the deponent, mr
Isaac Moeti Leboko, states that he is the chairperson of
what he
refers to as the interim committee of the applicant. The deponent
states that the interim committee was established at
a general
meeting which took place on 17 November 2010. The deponent further
states, also in his founding affidavit, that the
interim committee
then took a decision, on 23 November 2010, to authorise this
application.
It
was the respondent’s contention that the chairperson and the
interim committee were not properly elected and appointed.
In this
regard the respondent said, with reference to the meeting of
17 November 2010, the following:
The
respondent referred to clause 15.6 of the constitution and stated
that the required quorum for a general meeting was 33
% of the
registered members, and that those present had not constituted such
a quorum.
It
was furthermore the respondent’s contention that , in terms
of clause 15.4 of the constitution, decisions at a general
meeting
should be taken by means of voting, and that no voting took place
at the meeting of 17 November 2010. He challenged
the applicant to
produce the minutes of the meeting.
In
reply the deponent for the applicant stated that a general meeting
had initially been convened for 3 November 2010. He stated
that the
number of members present at that meeting had, however, not
constituted a quorum, and that the meeting had then been
adjourned
to 17 November 2010 in accordance with the provisions of clause 15.7
of the constitution. He went on to state that
the number of members
who attended the meeting of 17 November 2010 had, with reference to
the provisions of clause 15,7, indeed
then constituted a quorum at
that stage.
In
terms of clause 15.6 of the constitution “
a quorum for any
decision to be taken at a General Meeting, unless stated otherwise,
is 33 % of the registered Members of the
Association
”. It
is quite clear that the requirement of a 33 % quorum is qualified by
the words “
unless stated otherwise
”.
This
is where, clearly, the provisions of clause 15.7 come in. They
provide that, should the required quorum not be achieved at
such a
meeting, the meeting may be adjourned and that, at the later
meeting, the members present will constitute a quorum.
It
is not disputed that the meeting of 17 November 2010 was such a
later meeting as envisaged in clause 15.7. The applicant has,
in
answer to the respondent’s challenge, in reply produced the
attendance register for that meeting, as well as a typed
version of
the minutes. From the register and minutes it appears that 63
members signed the attendance register, that a mr Olyn
proposed that
the previous committee, of which the term of office had expired,
should “
remain
”, that this motion was seconded by
3 members, that it was further proposed that the term of office of
the interim committee
be 2 years and “
The meeting
(community) accepted the motion that the committee be reinstated as
it is”.
It was also recorded that “
No one was
against this point
”, which would mean that this decision
had been taken unanimously.
In
my view it is clear that the previous committee was indeed for all
purposes properly reinstated at the meeting of 17 November 2010.
It is in any event not clear at all why the respondent, if he was
indeed of the view that there is at the moment no properly
elected
and appointed committee, took the trouble of now applying for
permission to farm in the Garona camp. I will revert to
his
application at a later stage.
In
his opposing affidavit the respondent also took the point that,
since a labourer of his is at present living in the Garona
camp, the
applicant is not entitled to his “
ejection from the farm
”
until the provisions of the Prevention of Illegal Eviction from and
Unlawful Occupation of Land Act, 19 of 1998, have
been complied
with. In reply the deponent for the applicant agrees that the
respondent’s son is indeed living in the Garona
camp at the
moment.
There
is absolutely no merit in this point and the short answer to it is
that the relief claimed in the alternative by the applicant
is not
aimed at the eviction of either the respondent or his son, but
merely at the removal of the respondent’s livestock
from the
Garona camp. Obviously only a “
person
” can be an
“
unlawful occupier
” as envisaged and defined in
section 1 of this Act. The case of
Ndlovu v Ngcobo, Bekker and
Another v Jika
2004 (1) SA 113
(SCA), referred to by mr Botha,
does not support this argument. The fact remains that, although I
would not recommend it, the
relief in alternative prayers 1 and 2
would not prevent the respondent’s son from staying on in the
Garona Camp.
As
regards the relief claimed in prayers 3 and 4 in the alternative,
the applicant has not in my view made out any case at all
that it
has a right which is being infringed at threatened. The deponent for
the applicant refers to “
obstructive conduct
” on
the part of the respondent which prevented “
a constructive
annual general meeting for the purposes of electing new committee
members
”. This allegation is completely vague and
undetailed and is not substantiated in any way. Insofar as the
deponent for the
applicant may have been referring, in this regard,
to the meeting of 3 November 2010, it should be kept in mind that
the allegation
in reply is simply that that meeting had failed
because of insufficient attendance; not because of any obstructive
conduct on
the part of the respondent.
The
deponent for the applicant also makes the allegation that the
addition by the respondent of his small livestock to the other
members’ stock in Garona Camp resulted in the permissible
number of small livestock in that camp being exceeded and his
alleged refusal to pay amounts due by him, set an example to others
to do the same. He does not, however, make specific mention
of any
other cases where the permissible number of small livestock was
exceeded or where amounts due were not paid, and where
this was the
result of the alleged example set by the respondent.
As
far as the relief claimed in prayers 1 and 2 of the alternative part
the notice of motion is concerned, the respondent alleges
that the
chairperson of the committee granted him permission to move his
small livestock to the Garona camp. He does not say
when this
happened.
The
deponent for the applicant who, as already mentioned, is – and
was in 2007 - also the chairperson of the committee,
denies having
granted such permission to the respondent.
Apart
from the fact that the respondent has chosen not to provide any
details of when and where the alleged discussion between
himself and
the deponent for the applicant took place, it is also so that there
is no evidence that he at any stage raised the
alleged permission
when he was requested to remove his stock from the Garona Camp. As
already mentioned, it is common cause that
he was more than once
requested to remove his livestock, and that he at one stage even
agreed to do so, but requested 3 months’
time. Why did he not
then make mention of the permission alleged granted to him by the
chairperson? In fact, in paragraph 58
of the opposing affidavit the
respondent admits to having at that stage refused to remove his
livestock, and advances, as a reason
for his refusal, the fact that
the portion of land allocated to him for farming purposes is not
suited for small livestock farming.
He does not advance the alleged
permission as a basis for his refusal, and he does not say that he
at any stage mentioned the
alleged permission to anybody.
The
question also arises why the applicant has, in the meantime, applied
for the committee’s permission to keep his small
livestock in
the Garona Camp. If he was satisfied that he has proper permission
to do so, granted by the chairperson, he would
not have applied for
the committee’s permission. Also he apparently did not, in his
letter of application, make any mention
of having already been
granted permission by the chairperson before. Instead he motivated
his application by stating that one
of the other members had removed
his stock from the Garona Camp, and that there was therefore space
and grazing for his own small
livestock.
The
respondent’s contention that he had the chairperson’s
permission is so untenable that I have no hesitation to
reject it on
the papers (see
National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para [26])
It
is in any event quite clear that the chairperson would not have had
the authority or power to grant such permission to the
respondent.
The allegation on behalf of the applicant that it is the committee
that subdivided the land into camps and that is
responsible for
applying the rules in respect thereof, has not been challenged.
There is no provision in the constitution which
could be interpreted
to grant the chairperson the power to grant such permission. To the
contrary, clause 10.2 of the constitution
makes it clear that the
“
allocation of specific sites for the exclusive occupation
of members
” and the “
allocation of land for
purposes other than residential use
”, as well as “
disposal
or encumbrance of any immovable property or any right or interest in
and to movable or immovable property
”, would constitute
“
special business
”, which would have had to have
been approved by special resolution passed at a special general
meeting by 75 % majority
by all members present (see clause 10.1.1
of the constitution). A mere discussion with the chairperson and his
verbal permission
would not have sufficed.
As
far as the relief claimed in prayers 1 and 2 in the alternative part
of the notice of motion is concerned, therefore, I am
of the view
that the applicant has made out a case that it has a clear right to
protect the land by means of the camps, and by
the allocation and
control of their use by the members. The applicant has a duty to
protect the interests of members, in general,
in the land. This can
obviously only be done if members adhere to the rules regarding the
allocation of the use of camps. The
respondent’s conduct in
farming in a camp in respect of which such right was not granted to
him constitutes a clear invasion
of the applicant’s rights in
this regard and it is equally obvious that, should the applicant not
take steps to guard against
such self-help, and to protect its land,
complete chaos may follow.
It
was argued on behalf of the respondent that the respondent’s
averment that no other member complained about his behaviour
was
left uncontested, and that the provisions of clause 18 of the
constitution provide an alternative remedy which was available
to
the applicant, and which the applicant failed to exhaust.
This
is not a dispute between members, as envisaged in clause 18.1, that
could be settled by the committee acting as a mediator.
Clause
18.2 does provide for mediation of disputes between members and the
committee, by “
The chief and his council
”, but
there is not a shred of evidence that such a chief or a council is
at present in place in this case.
I
am in any event of the view that a process of mediation would not
have afforded the applicant protection similar to that now
being
sought.
Even
if it could be said that the provisions of the constitution, which
provide for mediation, provided an alternative remedy
for the
applicant, I am of the view that the applicant has made out such a
clear case that its rights are being infringed as
far as the
respondent’s use of the Garona Camp is concerned that I would,
in the exercise of my discretion, nevertheless
have granted the
relief in alternative prayers 1 and 2 of the notice of motion (see
Interdicts and Related Orders
, Meyer, page 76 and
Commissioner for Inland Revenue, Transkei, and Another, v JALC
Holdings (SA) (Pty) Ltd and Another
1991 (4) SA 646
(TkGD)
654G-H).
Mr
Botha argued on behalf of the respondent that the committee is in
all probability going to grant the respondent’s application
to
farm in the Garona Camp and that it would therefore be senseless to
order the respondent at this stage to remove his livestock
from the
Garona Camp. This argument is based on conjecture. The fact that the
applicant has not stated that there are other competing
applications
in respect of the Garona Camp, does not exclude such a possibility.
Even if there are no such other applications
the committee may
nevertheless have other grounds for refusing the respondent’s
application. It may, for example, be of
the view that, even now that
one member has removed his stock, the state of the grazing in the
Garona Camp would be insufficient
to accommodate the respondent’s
stock. Another possible basis for refusing the application of the
respondent may be the
fact that he has in the past, not adhered to
the rules applicable to the use of land, by farming where he had no
permission to
do so and by falling behind with payments. One can
only speculate.
The
respondent has also not applied for a postponement of this matter
until after the committee has decided on his application.
It
follows that I am of the view that the applicant is entitled to the
relief set out in alternative prayers 1 and 2, but not
to the relief
set out in the alternative prayers 3 and 4. Even so the applicant
would still have achieved substantive success
in its application and
would be entitled to its costs. No reason was advanced why costs
should not follow such a result.
As
regards alternative prayer 1, the decision by the applicant’s
committee would of course not have been as set out in prayer
1, but
simply that the respondent was granted permission to farm in the
Stokwana Camp. There is no evidence that it was, at the
same time,
specifically decided that the respondent would not be entitled to
farm in the Garona Camp. Such a decision would not
have been
necessary. As regards alternative prayer 2, I see no reason to
compel the respondent to move the livestock from the
Garona Camp to
the Stokwana Ccamp. The applicant is only entitled to an order that
respondent remove his livestock from the Garona
Camp. What he does
with it then, is his own affair.
I
therefore make the following orders:
The
respondent shall adhere to a decision taken by the applicant whereby
he was allowed to farm in the Stokwana Camp of the farm
Khuis 181.
The
respondent shall remove his livestock from the Garona Camp of the
farm Police 180 within 30 days of this order.
The
respondent shall pay the costs of the application.
______________________
C J
OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
For
the Applicant: Adv A D Olivier
Instructed
by: Job Attorneys
KIMBERLEY
For
the Respondent: Adv C H Botha
Instructed
by: Duncan & Rothman
KIMBERLEY