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[2008] ZAFSHC 74
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Legau and Others v Mokhasi (6749/2007) [2008] ZAFSHC 74 (19 June 2008)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 6749/2007
In the case between:
DALTON THULANE
LEGAU
First Applicant
TUBATSI SHADRACK
MOLOI
Second Applicant
MHO JOHANNES
MOTHIJOA
Third Applicant
RAMAELE JOHANNES
MOTAUNG
Fourth Applicant
MOLAHLEHI AUGUSTUS
THOABALA
Fifth Applicant
SEPUTSWE DANIEL
MOFOKENG
Sixth Applicant
THABO JOSIAS
MOKOENA
Seventh Applicant
PAULUS SEMOLA MOLOI
Eight Applicant
PETROS MATJALE
NTOMBELA
Ninth Applicant
POKANE ELIAS
TSHABALALA
Tenth Applicant
MIKE MOSIUWA
MOFOKENG
Eleventh Applicant
and
THABISO MOSES
MOKHASI, THE
Respondent
CHAIRPERSON OF THE
EXECUTIVE
COMMITTEE OF QWAQWA
UNITED
TAXI ASSOCIATION
JUDGEMENT:
MOLEMELA, AJ
_____________________________________________________
HEARD ON:
22 MAY 2008
_____________________________________________________
DELIVERED ON:
19 JUNE 2008
_____________________________________________________
[1]
This
is an application launched by 11 applicants against THABISO MOSES
MOKHASI in his capacity as a chairperson of a taxi association
of
which the applicants are members. The application is for an order in
the following terms:
“
1. That the
Respondent be ordered to set a date for the holding of an annual
general meeting by the Qwaqwa United Taxi Association
(“
the
Association
”),
and to give notice thereof within seven days of the date of this
order in accordance with the provisions of clause 6.2.2.
of the
Standard Constitution being Annexure “C” to the Free
State Interim Passenger Transport Regulations published
in Provincial
Gazette (FS) No 104 of 27 November 1998 (“
the
Standard Constitution
”),
alternatively,
to set a date for the holding of a Special General Meeting by the
Association, and to give notice thereof within seven days of
the date
of this order in accordance with the provisions of clause 7.2 of the
Standard Constitution.
2. That, should the
Respondent fail to comply with the provisions of paragraph 1 of this
order the Free State Transport Registrar
(“
the
Registrar
”)
is ordered to call a Special General Meeting of the Association in
accordance with his powers in terms of clause 7.1.1(c)
of the
Standard Constitution.
3. That the
Respondent, in consultation with the Registrar, comply with the
provisions of clauses 4.2(b) and (c) of the Standard
Constitution
prior to the date of the meeting referring (sic) to in paragraphs 1
and 2 of this order (“
the
meeting
”).
4. That the
Respondent,
alternatively,
the Registrar be ordered to ensure that the election of the Executive
Committee of the Association is an item on the agenda of
the meeting.
5. That the Respondent, in his
personal capacity, be ordered to pay the costs of this application.
6. That further and/or alternative
relief be granted to the Applicants.”
[2]
For
background purposes, it must be mentioned that on the 2
nd
February 2007 the association had approached the High Court and
applied for an interdict against 9 (nine) of the present 11 (eleven)
applicants. By agreement between the parties, the following order
was granted by the court on the 19
th
April 2007:
“
1.
The
first to Eighth respondent be interdicted and restrained from,
directly or indirectly:
1.1 Organising and/or participating in
any subversive activity against the Applicant;
1.2 Calling, holding or attending
protest meetings or arranging any other form of protest against the
Applicant in a manner which
is contrary to the provisions of the
Standard Constitution and/or the grievance procedure;
1.3 Threatening and/or intimidating
any members of the Applicant;
1.4 Participating in activities that
could in any way induce violence;
1.5 Inciting
members of Applicant not to adhere to the rules of the organization;
1.6 Purposefully disrupting the
activities of the Applicant;
1.7 Inciting members not to pay the
obligatory and/or membership fees and other levies.
2. The First to Eighth Respondent are
only allowed to operate their taxi’s, of which they have a
legal permit, issued by the
Free State permit board, to such an
extent, and only to such an extent to which their permits allow them
to operate, specifically
referring to the routes allocated and stated
in their permits.
3. That the First to Eighth
Respondent, with a legal permit which permits them to operate on the
long distance routes between Qwa-Qwa
and Frankfort as well as Qwa-Qwa
and Ladysmith, must make use of Phase 1 of their depature in Mampol
Street, Qwa-Qwa.
4. That the First to Eight Respondent,
with a legal permit which permits them to operate the routes between
Qwa-Qwa and Bethlehem
as well as Qwa-Qwa and Harrismith, must make
use of Phase 2 for their departure in Mampoi Street, Qwa-Qwa.
5. The parties will ad here to the
provisions of the Standard Constitution and must comply with the
provisions thereof.
6. The Applicant will insure that a
copy of the Standard Constitution will be available for perusal at
every meeting convened by
the Applicant.
7. The Applicant will insure that a
copy of the Standard Constitution is available for perusal by any
member of the Applicant at
the Applicant’s offices situated at
Office no 2, Century Building, Setsing, Phuthaditjhaba, from 08:00 to
17:00 Monday to
Friday.
8
. The
First to Eighth Respondent pay their arrears regarding the annual
membership fees and levies within six (6) months, of this
Order,
regardless of the number of permits being held by each Respondent.
9. Each party to pay his own legal
costs.”
I will
return later to the aforesaid order
(hereafter
referred to as “the court-order”.
[
3] The
importance of mentioning the dates of the filing of the respective
affidavits in the current application will emerge later
on in the
judgment. The notice of motion was issued by the applicants on the
13
th
December 2007. The respondent filed an answering affidavit on the 8
th
February 2008 in which he
inter
alia
averred that the applicants had, in light of the problems that led to
the association obtaining the interdict referred to in paragraph
7
above, launched this application prematurely as the first possible
compliance with the Standard Constitution of the pertaining
to the
holding of an annual general meeting could only have been in the
months of February 2008, March 2008 or April 2008. It
was further
averred that the respondent’s attorney had, subsequent to
receiving the notice of motion, requested the applicants
in writing
on the 21
st
January 2008 to withdraw their application on the basis of the
assurance given by the respondent by virtue of the same letter,
that
the respondent intended holding the annual general meeting during
March 2008.
[4] In their replying
affidavit filed on the 2
nd
April 2008, the applicants admitted having received the letter of the
21
st
January 2008 from the respondent’s attorneys and also admitted
their refusal to withdraw the application .The reason for
their
refusal was expressed as follows on p.188 of the papers: “It is
an unfortunate truth that if this application is withdrawn,
the very
real possibility exists that Mokhasi may simply continue to find
reasons to postpone the holding of the annual general
meeting
indefinitely. The only reliable way to obtain finality is to seek the
assistance of the Honourable court”.
[5] Adv. Knoetze SC
argued on behalf of the applicants that
their main complaint
was that despite the provisions of
paragraph 6.2.1 of the
Standard Constitution, no annual
general meeting was
held by the Association either during
2006 or 2007. It is
apposite to, at this stage, quote the
provisions of the
relevant clause which provides as follows:-
“
6.2.1 The AGM
must
take place in the month of
February, March or April (each association should choose a specific
month (month to be filled in by Association)
of each year at a time
and place determined by the Executive Committee.”
(“AGM” is the acronym in
the Regulations for “annual general meeting“).
(my underlining.)
[6] Adv. Knoetze SC
submitted further that there can be no doubt about the fact that the
that the annual general meeting must be
held every year strictly
during one of the months referred to in clause 6.2.1. He submitted
that the usage of the word “must”
was indicative that
those
provisions were
peremptory. He argued that it was not in
dispute that up to the
time of the launching of the application by the applicant’s no
annual general meeting had been held.
He submitted that the reasons
advanced by the respondent for its failure to hold the annual general
meeting did not hold any water.
[7] My view is that the
whole content of the order of court dated the 19
th
April
2007 cannot be disregarded. In any event counsel for the applicant
does in fact place reliance on it with regards to the
terms of office
of the executive committee insofar as he submits that “whatever
may or may not have been decided at the meeting
of the 25
th
August 2005 in respect of the term of office of the Executive
Committee was subsequently superseded by paragraph 5 of the order
of
the above Honourable Court…”. The application is
basically premised on the respondent’s non-compliance with
the
provisions of that paragraph.
[8] Reliance having
placed by the applicants on paragraph 5 of that court-order it would,
with respect, not make sense for anyone
to seek to consider that
particular paragraph of the order in isolation. Other clauses of the
same order are relevant to this application.
Having accepted that the
whole order is of relevance
in
casu
,
it can therefore safely be accepted that there had in fact been some
obtrusiveness in as far as the operations of the association
were
concerned, necessitating an application and the granting of an order
as set out in paragraphs 1.1 – 1.7 of that court-order.
I am
therefore inclined to agree with adv Snellenburg’s submission
that valid reasons have been advanced as to why the annual
general
meeting had not been held during 2007.
[9] Considering that the
court order of the 19
th
April 2007 was obtained by consent of the parties, it would not
amount to stretching it too far to accept that the effect of the
order was to amicably resolve past issues, including previous
non-compliances and to agree to act in accordance with clause 5 from
the date of the court-order. This would equally mean that the failure
to hold the annual general meeting in 2006 had effectively
been
condoned by virtue of that court-order.
[10] Accepting Adv
Knoetze’s submission that clause 6.1 is peremptory, in other
words that the meeting could only have
been held in the months of
February, March or April, I am inclined to agree with Adv
Snellenburg’s submission that, given
the date of the
court-order, the first possible months during which the annual
general meeting could be held would be during the
months of February
2008, March 2008 or April 2008. When confronted with Adv
Snellenburg’s latter submission, Adv Knoetze
argued that the
annual general meeting could still have been held between the date of
the court-order and the end of April 2007,
i.e. between the 20
th
April and 30
th
April. I am not persuaded by that argument and am of the view that it
would have simply been impractical to do so, given that the
respondent would first have to give members at least 7 (seven) days’
notice of such meeting.
[11] In my view, the
earliest annual general meeting to be convened after the order would
be one convened for February 2008, March
2008 or April 2008. Given
that the Standard Constitution provides that a mere 7 (seven) days’
notice of the annual general
meeting be given, the applicants quite
clearly launched their application prematurely. Having done so, they
ignored the respondent’s
attorney’s notification of the
respondent’s intention to hold the meeting in March 2008 and
refused to withdraw their
application.
[12] The respondent then
proceeded, correctly in my view, to file its opposing affidavit and
attached the letter in question to
their papers, thus repeating the
respondent’s intention to hold the meeting in
March
2008
.
The applicants then filed a replying affidavit on the
2
nd
April 2008,
which
is
obviously
a date
after
the proposed date of the AGM. In their replying affidavit the
applicants focussed on denying the averments set out in the opposing
affidavit. The one important denial they failed to make was that the
annual meeting was not held as per the respondent’s
undertaking. To the extent that this has not been denied by the
applicants in their replying affidavit when they had an opportunity
to do so, I accept that the annual general meeting was in fact held
during March 2008.
[13] In drawing this
inference I rely on the well-known principle
enunciated in the case
of
Plascon-Evans
van Riebeeck Paints (Pty) Ltd 1984(3) SA 623 at 634H
where it was stated as follows: “It is correct that, where in
proceedings on notice of motion disputes of facts have arisen
on the
affidavits, a final order, whether it be an interdict or some other
form of relief, may be granted if those facts averred
in the
applicant’s affidavits which have been admitted by the
respondent, together with the facts alleged by the respondent,
justify such an order.” On the application of the aforesaid
principle alone I am entitled to accept that the annual general
meeting was held in March as per the respondent’s written
undertaking.
[14] Although the above
finding in itself disposes of the matter, I will venture to state
that I am fortified in my acceptance
that the annual general meeting
was held by the fact that it was evident, from the papers that were
filed by the same parties in
respect of an interlocutory application
that I subsequently dismissed in an
ex
tempore
judgment, that the annual general meeting was held even prior to the
filing of the replying affidavit in the application under
consideration. I am referring
specifically
to the opposing affidavit of Thabiso Moses Mokhasi where he stated as
follows: “the annual meeting was duly constituted and
was held
on the 6
th
March 2008.”
[15] In the absence of
any replying affidavit stating to the contrary, I accept that the
annual general meeting was indeed held
on that date as per the
averment made in the opposing affidavit. Adv Knoetze SC contended
that I should not consider the content
of that opposing affidavit as
it was filed in a different application than the one under
consideration. He could not provide me
with any authorities in
support of his contention. I am of the view that nothing in law
precludes me from doing so. In fact, my
view is that I would still
not be precluded from doing so even if that interlocutory application
had been heard by a different
judge.
[16] The annual general
meeting that was held might perhaps not have been held or conducted
to the applicants’ satisfaction,
but that is really beside the
point in as far as this application is concerned, as it was not the
case that was made out on the
pleadings. The fact of the matter is
that the respondent did convene an annual general meeting as per its
undertaking in a letter
addressed to the applicants’ attorneys.
[17] As stated before,
the mere launching of the application by the applicants was
premature. As it turns out, the applicants’
persistence with
the matter beyond the filing of the Notice of Motion was foolhardy as
it has more negative cost implications for
them. Perhaps the
applicants could have saved themselves some of the costs if they
could have heeded the advice to withdraw its
application after
receipt of the respondent’s letter dated 21 January 2008. This
they did not do. They could perhaps also
have resorted to internal
remedies. They have not substantiated their bald assertion of having
taken steps to exhaust such internal
remedies. Having considered all
the circumstances of this case, I am not persuaded that there is no
reason for me to deviate from
the general rule that costs should
follow the cause.
[18] I therefore make
the following order:
The application is
dismissed with costs.
_
__________________
M. B. MOLEMELA, AJ
On
behalf of the Applicants:
Adv.
Knoetze SC
Instructed by:
Lovius - Block
BLOEMFONTEIN
On
behalf of the Respondent: Adv. N Snellenburg
Instructed
by: Honey and Partners
BLOEMFONTEIN
/em