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2024
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[2024] ZAECMHC 26
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Myandlu and Others v Ludidi N.O and Others (1684/2024) [2024] ZAECMHC 26 (2 May 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION: MTHATHA]
CASE NO. 1684/2024
In the matter between:
NOMANDLA
MYANDLU
1
st
APPLICANT
BONGIWE
NELANI
2
nd
APPLICANT
RUTH
MARILLIER
3
rd
APPLICANT
JACQUELINE ANN
THURSTON
4
th
APPLICANT
KIM CHANTELLE
THURSTON
5
th
APPLICANT
and
LITHA HYBERT LUDIDI
N.O
1
st
RESPONDENT
THEMBEKA ELLEN MGUDLWA
N.O
2
nd
RESPONDENT
TABILE MZWAKALI
N.O
3
rd
RESPONDENT
VIVA YOLANDE MGUDLWA
N.O
4
th
RESPONDENT
REBECCA YOLISWA XABA
N.O
5
th
RESPONDENT
VELA SCHOOL
(Registration Number : 401398)
6
th
RESPONDENT
JUDGMENT
Jolwana J:
Introduction
[1]
The applicants all work at Vela School and are employed in various
capacities. They have approached this Court on an urgent
basis
seeking urgent interim relief interdicting an impending disciplinary
inquiry pending the determination of their review application
set out
in part B of the notice of motion.
[2] At the centre of the
dispute is the nature and character of the sixth respondent and
therefore the
locus standi
of the first to the fifth
respondents to subject the applicants to disciplinary processes. Vela
School, having existed for over
three decades, its workers and those
who assert authority and right to run it do not seem to agree on what
it is that they work
for and what it is that they claim a right to
run. Its legal persona has become a matter of dispute and huge
controversy between
the parties. It is that dispute that has resulted
in the applicants launching these proceedings seeking interim
interdictory relief
on the basis that their employer is another
entity, not the one represented by the first to the fifth
respondents.
The parties
[3] The first applicant
has been in the employ of Vela School for the past 38 years. Five
years ago, she was elevated to the position
of principal. The third
to the fifth applicants hold various teaching positions in the school
and it appears that the fourth applicant
is also a head of department
within the school. The second applicant is a bursar of the school. It
is unclear when the second to
fifth applicants got employed at Vela
School.
[4] The first to fifth
respondents are cited
nomino officio
as members of the board
of trustees of Vela School Trust. It is common cause that they are
trustees of Vela School Trust. The sixth
respondent is cited as a
registered Non-Profit Company (NPC) with registration number 401398.
The first respondent is the chairperson
of the board of trustees. For
the sake of brevity, the first to fifth respondents shall henceforth
be referred to simply as the
respondents save where it becomes
necessary to refer to a specific respondent in which case such
respondent shall be referred to
as cited. The sixth respondent shall
be referred to simply as Vela School.
Background information
[5] In 1991 a trust was
registered under Deed of Trust No. T2/91. That trust is described in
the trust deed as Vela School Trust.
Its objects are described in
that Deed of Trust (trust deed) as follows:
“
2.
OBJECTS OF THE TRUST
The objects of the Trust
shall be to –
To run a private school
known as Vela School and shall in fulfilment of this object
2.1 Acquire, develop and
lease fixed property;
2.2 Solicit, for and
accept monies”
[6] In 2011 the 1991
trust deed was amended by the lodgement with the Master of the High
Court (the Master) of a new trust deed
which was signed on 14 April
2011 and lodged with the Master on 29 June 2012. However, the trust
deed number did not change. There
are some eccentricities between the
two trust deeds. I may mention a few that I consider to be of some
significance.
[7]
In the1991 trust deed the objects of the trust are reflected under
the rubric of the objects of the trust and they are the ones
referred
to above. However, in the 2012 trust deed that rubric is not there
but there is a new rubric called trust purposes under
which the
listed objects do not include running Vela School
[1]
.
[8] One can easily
observe that the objects of the trust as they appear in the 2012
trust deed under the rubric of trust purposes
do not expressly
include the looking after and providing for the proprietary and
financial needs of Vela school which has prominence
as objects or
purposes of the trust in the 1991 trust deed. One other significant
peculiarity between the two trust deeds is that
the original trustees
were listed as Wiseman Lumkile Nkuhlu, Jiyana Maqubela, Dowa Vena
Mgudlwa, Barnabas Sanele Titus and Wakeford
Myolisi Dondashe in the
1991 trust deed. In the 2012 trust deed under the rubric of new
trustees it is recorded therein that all
the original trustees
mentioned above were being removed save for Mr Dowa Vena Mgudlwa. In
their stead Philip Horatius Sigqibo
Zilwa, Paul Samuel Stafford, Bob
Mazwana and Litha Ludidi were being substituted to join Mr Dowa Vena
Mgudlwa. The latter, in his
capacity as chairperson of the board of
trustees, was the signatory to the letter of appointment of the first
applicant when she
was appointed to the position of principal. More
about that letter of appointment later in this judgment.
[9] The other peculiarity
also of some huge significance is that the object of the trust
relating to Vela School as stated in the
1991 trust deed was not
deleted from the 2012 trust deed. It appears under the rubric of
“INTRODUCTION” below which
the following is stated:
“
The
Vela School Trust was established in 1991. Its main object is to
assist in the administration and management of a private school
known
as Vela School, situated at Mthatha, through acquisition, development
and leasing of fixed property(ies). The trust will
also solicit and
accept donations of any kind and monies.”
It bears mentioning that
in clause 2.2 of the 2012 trust deed the following appears: “
The
headings to the clauses of this Deed have been inserted for reference
purposes only and shall in no way govern or affect the
interpretation
of this Deed
”.
The facts
[10] On 15 November 2023
the current chairperson of the board of trustees Mr Litha Hybert
Ludidi wrote a letter to the first applicant
notifying her of the
board of trustees’ decision to place her on precautionary
suspension from work pending the finalisation
of an investigation
into serious allegations of misconduct. She was further told that the
precautionary suspension was subject
to certain conditions listed
therein which include the fact that the suspension would be on full
pay together with all the fringe
benefits she ordinarily enjoyed. In
that letter she was also told that her contact person during the
suspension period would be
the fourth respondent.
[11] On 28 February 2024
in the same capacity as just indicated hereinbefore, Mr L.H. Ludidi
wrote another letter of suspension
to the first applicant. In that
letter the first applicant was being suspended from her role as
principal of Vela School with effect
from that date. The letter of
suspension of the second applicant is dated 16 January 2024 whilst
the letters of suspension of the
third to the fifth applicants were
all written on 27 February 2024. All the applicants were told in
their individual letters of
suspension that their suspensions would
be on full pay together with all their fringe benefits to which they
were ordinary entitled
until the investigations were completed and a
decision was made.
[12] On 10 April 2024 Mr
L.H. Ludidi wrote letters notifying all the applicants of the date on
which they were each required to
appear in a disciplinary hearing. On
11 April 2024 the applicants’ attorneys of record addressed a
letter to the chairperson
of the board of trustees on behalf of all
the applicants indicating the applicants’ instructions to
challenge both the suspensions
and the intended disciplinary inquiry.
They demanded that pending the finalisation of a review application
that was to be filed
within five days of the date of the said letter,
the disciplinary inquiry should be postponed. The undertaking in that
regard was
required by the 12 April 2024. On the same date, the 12
April 2024 Mr L.H. Ludidi responded to the applicants’
attorneys’
letter. His response was in the form of a letter
captioned “Firm Stance on Scheduled Disciplinary Hearings
Despite Request
for Postponement.” It was indicated therein
that the disciplinary inquiries would proceed as scheduled even if
the applicants
did not attend.
The applicants’
case
[13] The genesis of the
applicants’ case, as I understand it, is that they have a right
not to be subjected to an unlawful
disciplinary process. They allege
that the process embarked upon by the board of trustees is patently
unlawful on the basis that
Vela School is a registered Non-Profit
Company with registration number 401398 (the NPC). The suspension
letters and the invitation
for the applicants to appear before a
disciplinary inquiry were all issued on behalf of the board of
trustees of the Vela School
Trust. The applicants contend that the
authority of the board of trustees of Vela School Trust to run Vela
School was removed in
2011 and Vela School has since been run by the
school management team in consultation with the school governing
body. Most importantly,
the applicants say that the board of trustees
is not their employer. Therefore, it has no legal standing to subject
them to disciplinary
processes. The applicants say that they fear
that if the unlawful disciplinary inquiry is allowed to take place it
could unlawfully
deprive them of their employment which would have
disastrous consequences for them in various ways should it result in
their dismissal.
The respondents’
case
[14] The respondents deny
that Vela School is an NPC. They insist that it is run under Vela
School Trust and the applicants are
employed by its board of
trustees. They say that Vela School Trust is a Non-Profit
Organisation (NPO) and not an NPC as the applicants
allege. They say
that as an NPO it is not profit driven but is established for the
educational benefit of the community it serves.
They explain that the
number 401398 referred to by the applicants as its NPC registration
number is the Education Management Information
System (EMIS) number
assigned to Vela School by the Department of Education for
administrative and monitoring purposes. It is not
a registration
number of Vela School as an NPC. In this regard the respondents have
annexed to their answering affidavit a certificate
of registration
issued by the Department of Education and it reflects the number
401398 as an EMIS number. That registration certificate
bears the
signature of the Superintended General of the Department of
Education. It reflects the name of the school as Vela Private
and it
reflects that it is a certificate of registration as an independent
school.
[15] With regard to the
employment of the first applicant the respondents have annexed her
letter of appointment dated 6 May 2019
signed by Mr D V Mgudlwa in
terms of which it appears that the first applicant was being employed
by the board of trustees of Vela
School Trust. It is worth noting
that Mr D.V. Mgudlwa was one of the original trustees as listed in
the 1991 trust deed. He is
the original trustee that was not removed
when that trust deed was amended in 2011.
[16] The respondents
further contend that the applicants have historically acknowledged
the board of trustees as their employer
and have, on its behalf,
engaged in various formal communications. The respondents have, in
this regard annexed a letter dated
7 February 2023 written on behalf
of Vela School by the first applicant in her capacity as principal.
That letter is addressed
to Mr T Mzwakali, the deponent to the
respondents’ affidavit. It reads:
“
Dear
Mr T Mzwakali
In the meeting of the
Board of Trustees of Vela School held on 02 February 2023, the
appointment of your firm was confirmed and
endorsed as the Auditors
of Vela School. Kindly avail yourself for a Board meeting to be held
at 10:30 am on Thursday 09 March
2023 in the Senior School Library.
We look forward to seeing
you there.
Sincerely
…………………
N.D. Myandlu (MS)
For and on behalf of Vela
School.”
[17] This letter appears
to have been signed by the first applicant. Mr T Mzwakali is cited as
the third respondent in his capacity
as a member of the board of
trustees in these proceedings. I must hasten to point out that the
applicants have not filed a replying
affidavit to deal with any of
the issues raised by the respondents including the purported
acknowledgment of the authority of the
board of trustees and the
respondents’ assertion that the applicants are employed by the
board of trustees of Vela School
Trust. The first applicant has not
disputed the purported authorship of that letter or even explained
the circumstances in which
she wrote the said letter.
[18] The respondents have
also raised as a preliminary issue the non-joinder of the trustees
for the time being of Vela School Trust.
I do not understand the
basis on which this preliminary issue is raised. This is because as
indicated earlier, the respondents
have been cited in the papers
specifically as members of the board of trustees of Vela School
Trust. In my view the issue of non-joinder
is, on the facts of this
case, totally misplaced and has no merit whatsoever. I do not think
that more needs to be said on this
issue.
[19] The second
preliminary issue is that of urgency. The respondents do not seem to
challenge the timelines that appear to be common
cause regarding the
date on which the notices to attend a disciplinary inquiry were
issued and the dates set out for the sitting
of the disciplinary
inquiry. I may mention again that the invitations to the disciplinary
inquiry were issued on 10 April 2024,
and it was indicated therein
that the hearing was scheduled for the 22 April 2024 to the 23 April
2024. It seems that it was these
dates that triggered the launching
of this application on an urgent basis. The papers were issued on 15
April 2024. I do not think
that the applicants tarried in taking the
steps they did in having the papers issued and setting out truncated
timelines for the
respondents to file their answering papers regard
being had to the impending dates for the disciplinary inquiry.
[20] The respondents’
challenge on urgency does not appear to be about the fact that the
time frames were truncated. It appears
to be about the matter not
being urgent at all on the basis that there are other remedies that
are ordinarily available to the
applicants in the normal course. The
respondents seem to accept that an employer’s disciplinary
processes can be interdicted.
However, they contend that that could
happen only if exceptional circumstances are shown to exist where
grave injustice would otherwise
occur. They further contend that it
remains open to the applicants at the inception of the disciplinary
inquiry to object to any
perceived unfairness that could jeopardise
their right to a fair process. The respondents contend that this
application was instituted
prematurely in circumstances in which the
issue of their authority to discipline the applicants could have been
raised at the disciplinary
inquiry as the applicants are legally
represented. For whatever reason the applicants have not filed a
replying affidavit to deal
with all or any of these issues or points
of objection to the applicants’ application being necessary or
even urgent.
The analysis
[21]
Urgency is always a contested issue which unfortunately has, in some
instances often been used to the point of being abused
where the
invocation of the urgency rules is not warranted and is sometimes
calculated to circumvent the normal rules of court
to get ahead of
the que of the hearing of cases in the normal course. I consider it
useful to make a timely reminder of what the
rules of urgency
generally require of an applicant. In
Caledon
Street Restaurants
[2]
Kroon J summarised our rules of urgency in the following terms:
“
In
the assessment of the validity of a respondent’s objection to
the procedure adopted by the applicant the following principles
are
applicable. It is incumbent on the applicant to persuade the court
that the non-compliance with the rules and the extent thereof
were
justified on the grounds of urgency. The intent of the rules is that
a modification thereof by the applicant is permissible
only in the
respects and to the extent that is necessary in the circumstances.
The applicant will have to demonstrate sufficient
real loss or damage
were he to be compelled to rely solely or substantially on the normal
procedure. The court is enjoined by rule
6(12) to dispose of an
urgent matter by procedures “which shall as far as practicable
be in terms of these rules”.
That obligation must of necessity
be discharged by way of the exercise of a judicial discretion as to
the attitude of the court
concerning which deviations it will
tolerate in a specific case. Practitioners must accordingly again be
reminded that the phrase
“which shall as far as practicable be
in terms of these rules” must not be treated as
pro
non scripto
. The mere existence of some
urgency cannot therefore necessarily justify an applicant not using
Form 2 (a) of the First Schedule
to the rules. If a deviation is to
be permitted, the extent thereof will depend on the circumstances of
the case. The principle
remains operative even if what the applicant
is seeking in the first instance, is merely a rule nisi without
interim relief. A
respondent is entitled to resist even the grant of
such relief. The applicant, or more accurately, his legal advisor
must carefully
analyse the facts of each case to determine whether a
greater or lesser degree of relaxation of the rules and the ordinary
practice
of the court is merited and must in all respects responsibly
strike a balance between the duty to obey rule 6(5)(a) and the
entitlement
to deviate therefrom, bearing in mind that that
entitlement and the extent thereof, are dependent upon, and are thus
limited by
the urgency which prevails. The degree of relaxation of
the rules should not be greater than the exigencies of the case
demand
(and it need hardly be added these exigencies must appear from
the papers). On the practical level it will follow that there must
be
a marked degree of urgency before it is justifiable not to use Form
2(a). It may be that the time elements involved, or other
circumstances justify dispensing with all prior notice to the
respondent. In such a case Form 2 will suffice. Subject to that
exception it appears that all requirements of urgency can be met by
using Form 2(a) with shortened time periods or by another adaptation
of the form, e.g. advanced nomination of a date for the hearing of
the matter or omitting notice to the registrar accompanied by
changed
wording where necessary. Adjustment, not abandonment of Form 2(a) is
the method.”
[22] If regard is had
solely to the date set out for the disciplinary inquiry against the
date on which the applicants received
the notice to present
themselves thereat and if that was the sole criterion, the applicants
would have indeed complied with these
time honoured rules of urgency
in my view. However, there is another important aspect. That is the
existence or lack of an alternative
remedy. This requirement is very
central to the issue of urgency. It is unfortunate that more often
than not lip service often
gets paid to it by simply mentioning it in
passing in making an allegation about its non-existence.
[23]
The applicants’ case as explained in its heads of argument is
that it is common cause that Vela School is a registered
NPO and is
therefore clearly a separate legal entity with its own legal persona
distinct from its office-bearers. Therefore, it
is the employer that
has the power to deal with matters of discipline in relation to the
applicants not the respondents. The applicants
place much reliance
for this contention on section 12 (2) of the Non-Profit Organisations
Act No. 71 of 1997 (the NPO Act) which
deals with the requirements
for the registration of an NPO
[3]
.
[24] The applicants base
their contention that Vela School is an NPO on what they contend is a
common cause fact that it is an NPO.
They rely on the provisions of
section 12(2) of the NPO Act for their contention that they are being
subjected to a disciplinary
process by another entity in the form of
the board of trustees and not their employer which they argue is the
NPO. It is not lost
to me that the issue of the determination of what
Vela School is, is a matter for determination by the court that will
be hearing
part B of this application. However, the applicants are
facing this conundrum which chiefly is about them seeking protection
of
what they contend is their
prima facie
right not to be
subjected to an unlawful disciplinary process. There is another
undeniable fact that there is an entity known as
Vela School Trust
which in both trust deeds appears to be expressly concerned with the
administration and management of Vela School
and its running.
[25] In their founding
affidavit, the applicants have not provided any form of evidence for
the case they appear to be making which
is that their employer is
Vela School NPC with registration number 401398. There is not a
single document that they have annexed
to their founding affidavit in
support of Vela School being an NPC in the first place and
secondarily being their employer. There
is no letter of appointment
for any of them which shows that they were employed by Vela School
NPC. There is no contract of employment,
there is no communication
from an outside entity or person to Vela School or from Vela School
to any other entity or person suggestive
of Vela School being their
employer or even sending out any form of communication indicating
that it is involved in some way with
the employment of staff at Vela
School. I emphasise the fact that the case made by the applicants in
their founding affidavit and
therefore under oath is that Vela School
is an NPC.
[26] For a reason that
defies fathomability the case argued by the applicants in their
written submissions is not that Vela School
is an NPC. It is that
Vela School is an NPO. However, the word non-profit organisation or
its acronym, NPO is not mentioned at
all in the founding affidavit,
not even once. Similarly, and almost inexplicably, the word
non-profit company or its acronym NPC
is not mentioned, not even once
in the applicants’ written submissions. This disjunction stands
out very prominently as being
unusual and it is difficult if not
impossible to ignore. When the submission of the applicants in their
written submissions is
made about Vela School being an NPO as a
common cause fact, they are not saying that with reference to their
founding affidavit.
It seems to be based on no more than their
acceptance of the respondents’ assertions in that regard. It
seems to me that
the applicants are relying on what the respondents
put forward as their case, that Vela School is an NPO to foreground a
case they
have not even tried to make in their founding affidavit.
One would have expected them to file a replying affidavit to explain
their
assertions in the founding affidavit about Vela School being an
NPC. And their acceptance of the respondents’ postulation
that
Vela School is an NPO.
[27] If one accepts the
applicants’ argument about Vela School NPO being a body
corporate with its own identity, something
that they did not even
allege in their founding affidavit, it must therefore be that Vela
School is not an NPC. Unless they are
contending that an NPC is or
can be an NPO. This is not the case the applicants are making as they
have said nothing about Vela
School being an NPO in their founding
affidavit. The applicants’ case is largely based on bald
averments without even an
attempt to go into some detail in their
founding affidavit which is characterised by terseness. My
understanding of section 12(2)
of the NPO Act is that it makes the
NPO status of an organisation subject to the laws in terms of which
that organisation is established.
In this regard the respondents say
that Vela School Trust is registered under the Trust Property Control
Act 57 of 1988. Section
12(2) of the NPO Act makes it possible for an
entity registered under another legislation to be registered as NPO.
This means that
there is no legal impediment in a trust or an NPC
becoming an NPO and being registered as such. I do not understand the
provisions
of section 12(2) to mean that on being registered as an
NPO a trust would then lose its status as a trust and that its board
of
trustees would cease to exist in law. The applicants’ have
not made that assertion in their founding affidavit in any event.
[28]
There is yet another difficulty for the applicants. That is that a
non-profit company that they say Vela School is, is registered
in
terms of
section 8
of the
Companies Act 71 of 2008
[4]
.
An NPC is not registered in terms of section 12 (2) of the NPO Act.
An NPC acquires its status as a juristic person by virtue
of its
existence as a registered company in terms of the
Companies Act. The
other difficulty is that section 1(1) (x) of the NPO Act defines a
non-profit organisation as “
a
trust, a company or other association of persons –
(a)
established for a public purpose; and
(b)
the income and property of which are not distributable to its members
or office-
bearers except as
reasonable compensation for services rendered.”
[29] My understanding of
this definition is that both a trust and a company can be registered
as an NPO. Registration of an entity
which is an NPO is done in terms
of section 13 of the NPO Act. That section merely provides for
procedural requirements for an
entity that intends to be registered
as an NPO. The Minister responsible for NPOs is the Minister of
Welfare and Population Development
which I presume is now what is
called the Minister of Social Development. What all of this means is
that the fact that Vela School
is or maybe an NPO as the respondents
allege and the applicants seem to accept does not mean that it is or
may not be a trust.
The applicants’ case is argued in their
written submissions on the postulation that Vela School is an NPO and
therefore not
a trust. Part of the applicants’ case is in part
also expressed as follows in their heads of argument:
“
9.
Beyond the debate about the authority to run the school, it is
important to keep in mind that the issue in this matter is much
narrower than running the school. The issue specifically relates to
the question of employment. The applicants are employed by
Vela
School, a separate entity. It is Vela School that concluded contracts
of employment with the applicants and the board of trustees,
which is
a creature of a Trust, has no authority to suspend and discipline the
employees of Vela School.
10. There exists no legal
basis on which the 1
st
to 5
th
respondents can
suspend or discipline the employees of Vela School, a separate legal
entity. Any suspension or disciplinary process
of Vela School
employees by the 1
st
to 5
th
respondents is
unlawful.”
[30] Section 1(1)(xi) of
the NPO Act defines an office-bearer of a NPO as a director, trustee
or a person holding an executive position.
A juristic person is
obviously incapable of acting on its own. It must act through
individuals who must be duly appointed persons
in terms of the
instrument that establishes the entity concerned. The applicants do
not say who the office-bearers of Vela School
NPO are and who on
behalf of the NPO must discipline them when the need arises. This is
important because as earlier indicated
it is clear that even a trust
can be an NPO in terms of the NPO Act. Therefore it is not enough for
the applicants to merely say
that the board of trustees has no
authority to discipline them without saying who is the repository of
that authority. This is
more so that it is not their case that the
school management team and the school governing body which they say
run the school,
is the one that must or can discipline them when the
need arises.
[31] It is equally not
enough for them merely to allege that it is Vela School NPO that is
their employer with no evidence undergirding
their allegations in
this regard. On the other hand, the respondents do not simply deny
that Vela School is an NPC. They say that
Vela School exists under
Vela School Trust which is registered with the Master under the Trust
Property Control Act with registration
number T02/1991. They further
say that it is an NPO but it is not an NPC which has to be registered
under the
Companies Act. Herein
lies another problem for the
applicants. It is not the respondents’ case that Vela School
Trust is a registered NPO. They
just say that it is an NPO. Section
12(2) of the NPO Act does not make it compulsory for an NPO to be so
registered as such. What
it requires is that if an NPO intends to be
registered as such it must ensure that its constitution provides for
the matters listed
therein if those are not provided for in the
primary legislation.
[32] The respondents also
contend that a registration number of an NPC is different from the
number that the applicants regard as
the registration number of Vela
School as an NPC. They explain that not only is that number not that
of Vela School as an NPC which
they say it is not. They say that that
number is an EMIS number allocated to Vela School by the Department
of Education for administrative
and monitoring purposes. None of the
facts placed before court by the respondents have been gainsaid by
the applicants. The letter
of appointment as principal of Vela School
signed by Mr D.V. Mgudlwa on 6 May 2019 in his capacity as chairman
of the board of
trustees is similarly not gainsaid. So is the
respondents’ assertion that the applicants have historically
always accepted
the authority of the board of trustees. Besides their
ipse dixit
there is no evidence at all provided by the
applicants in support of any of their contentions that they are
employed by Vela School
NPO or Vela School NPC depending on whether
regard is had to their evidence in their founding affidavit or their
heads of argument.
The first applicant says that as a teacher and
principal she is familiar with the management, governance and day to
day running
of Vela School. Precisely for that reason she is well
positioned to do more in the founding affidavit than basing her case
on bald
unsubstantiated averments.
[33]
These are motion proceedings and how a matter is determined depends
on the material before court in the form of pleadings.
In
Molusi
[5]
the Constitutional Court had this to say:
“
It
is trite law that in application proceedings the notice of motion and
affidavits define the issues between the parties and the
affidavits
embody evidence. As correctly stated by the Supreme Court of Appeal
in
Sunker
:
“
If
an issue is not cognisable or derivable from these sources, there is
little or no scope for reliance on it. It is a fundamental
rule of
fair civil proceedings that parties …should be apprised of the
case which they are required to meet; one of the
manifestations of
the rule is that he who alleges [asserts] … must …
formulate his case sufficiently clearly as to
indicate what he is
relying on.
The purpose of pleadings
is to define for the other party and the Court. And it is for the
Court to adjudicate upon the disputes
and those disputes alone. Of
course, there are instances where the court may, of its own accord
(
mero motu
), raise a question of law that emerges fully from
the evidence and is necessary for the decision of the case as long as
its consideration
on appeal involves no unfairness to the other party
against whom it is directed. In
Slabbert
the Supreme Court of
Appeal held:
‘
A
party has a duty to allege in the pleadings the material facts upon
which it relies. It is impermissible for a plaintiff to plead
a
particular case and seek to establish a different case at the trial.
It is equally not permissible for the trial court to have
recourse to
issues falling outside the pleadings when deciding a case.”
This is what the
applicants have, in my view, failed to do – to provide evidence
sufficient to at least make out a
prima facie
case that they
have a right not to be subjected to a disciplinary process by the
board of trustees of Vela School Trust. I understand
that the
unlawfulness they say will taint the intended disciplinary process is
said to arise from being subjected to a disciplinary
process by an
entity that is not their employer.
[34]
This brings me to an issue raised by the respondents to which I
alluded earlier. It is that in order to succeed in their quest
for
the type of an urgent interim interdict the applicants want, they are
required to raise exceptional circumstances. The applicants
have not
dealt with this issue in their founding affidavit. The issue of an
intervention by the court in
medias
res
has a long history in our case law bestriding criminal and civil
cases and
sui
generis
proceedings like disciplinary inquiries. The requirement that
exceptional circumstances justifying the required intervention by
a
court in ongoing proceedings must be set out in the pleadings has
been restated by our courts a number of times. In
S
v
Makhubele
1987
(2) SA 541 (T)
[6]
the
court, per Kriegler J (as he then was) said:
Trivial irregularities or
procedural imperfections are immaterial; only where there has been a
failure of justice, real and substantial
prejudice to the accused,
are the proceedings liable to interference. (See
Hiemstra (op cit
at 673 – 678). By the same token s 304A is not to be
invoked in the absence of such a failure of justice.
Indeed, in the case of a
review in
medias res
such as is envisaged by s 304A, the test,
if anything, is to be applied with even greater caution. For this
there are a number
of reasons. First and foremost, piecemeal
litigation is inherently undesirable –
interest
rei
publicae ut sit finis litium
. The divergence of views evident in
the cases referred to in the above quoted passage from
Hiemstra
is largely ascribable to judicial disapproval of untimely
intervention and consequent prolongation and proliferation of
proceedings.
Hence, also, the formulation of strict criteria even in
those cases where there was intervention before the conclusion of the
case,
eg
S v Mametja
1979 (1) SA 767
(T) and
S v Taylor
1976 (4) SA 185
(T).”
[35]
In
Equisec
(Pty)
Ltd v Rodriques and Another 1999 (3) SA 113 (WLD)
[7]
which
was a civil matter Nugent J expressed himself as follows:
“
Where
a person is accused of having committed an act which exposes him to
both a civil remedy and criminal prosecution, he may often
find
himself in a dilemma. While on the one hand he may prefer for the
moment to say nothing at all about the matter so as not
to compromise
the conduct of his defence in the forthcoming prosecution, on the
other hand, to do so may prevent him from fending
off the immediate
civil remedy which is being sought against him. Where he finds
himself in that dilemma he might appeal to a court
to resolve the
issue for him, which is what has occurred in the case which is now
before me.
…
The prejudice to which
the first respondent is said to be exposed in the present case is not
extraordinary. I think that on a fair
reading of his affidavit it
comes down to this: the first respondent would prefer for the moment
to say nothing at all about the
matters which have given rise to his
prosecution, which of course he is ordinarily entitled to do. If the
sequestration proceedings
are not stayed, however, he might be called
upon to disclose information relating to those self-same matters and
he wishes to avoid
being in that position. There are two
circumstances in which the first respondent will face the prospect of
disclosing information
which may be relevant to whether he has
committed the offence with which he is now charged. Firstly, he is
called upon in these
proceedings to answer the allegations made
against him by the applicant in the founding affidavit if he is to
avoid his estate
being placed under a final liquidation under. There
is, of course no legal compulsion on him to do so. Whether a court
should intervene
to relieve a person of the perhaps difficult choices
he faces in that regard was considered by me in
Davis v Tipp N.O.
and Others
1996 (1) SA 1152
(W), which was subsequently followed
in
Seapoint
Computer Bureau (Pty) Ltd v Mcloughlin and De
Wet NNO
1997 (2) SA 636
(W). I see no reason to depart from the
conclusion which was reached in those cases. In my view, the choice
which the first respondent
may face between abandoning his defence in
civil proceedings or waiving his right to remain silent (cf Templeman
LJ in
Rank Film Distributors Ltd and Others v Video Information
Centre and Others
[1982] AC 381
, especially at 423 D-G does not
constitute prejudice against which he should expect to be protected
by a Court and I would not
exercise my discretion in favour of the
first respondent on those grounds alone.”
[36]
Recently in
George
v
Nyoka and Others [2023] 7 BLLR 654 (LC)
[8]
which
was a labour matter like this one, Tlhotlhalemaje J expressed the
legal position as follows:
“
[1]
This application is representative of the now familiar and habitual
abuse of the urgent court by employees, especially those
who occupy
senior positions in all spheres of government, especially in
municipalities. These employees, after being placed on
prolonged
periods of precautionary suspensions and when called upon to answer
to the charges of misconduct, will take all means
necessary in order
to avoid the conclusion of those enquiries. When all the strategies
deployed to avoid the hearing comes to nought,
the next step is to
seek sanctuary from this Court, with contrived and legally
unsustainable urgent applications, with the hope
that the serious
charges of misconduct will vanish.
…
[11] The question whether
the Court can intervene in on-going internal disciplinary proceedings
has been before it on countless
occasions and the principles are
fairly settled. It is accepted that this Court has jurisdiction and
discretion to intervene in
on-going disciplinary proceedings. It is
however specifically required of an applicant to demonstrate
exceptional circumstances
necessitating such intervention, and to
also demonstrate that grave injustice will result should the Court
not intervene. In this
case, no such exceptional circumstances were
pleaded in the founding affidavit.”
[37] The matter of
George
is on all fours with this matter. The applicants have focused on the
usual requirements in respect of interim interdicts. They
have
essentially pleaded a
prima facie
right not to be subjected to
an unlawful disciplinary process and thereby have their contractual
relationship with Vela School
unjustifiably interfered with by a
separate entity. They complain that if an interdict is not granted
the disciplinary hearing
could result in them being unlawfully
dismissed. They could lose their salaries which would result in them
suffering irreparable
financial harm including losing their homes,
vehicles, insurance policies, medical aid policies and the ability to
provide for
their dependents. They complain that once dismissed they
could be replaced even before the decision to dismiss them is set
aside
on review. On the basis of all of the above they contend that
balance of convenience favours the granting of the interim interdict
and that no prejudice will be suffered by the respondents if the
disciplinary hearing is postponed pending the determination of
part B
of this application.
[38] While one
understands the applicants’ difficulties if all or some of
these possibilities were to eventuate, the fact
of the matter is that
there is nothing exceptional or extraordinary about them. This is
because every employee who has to go through
a disciplinary inquiry
especially for serious charges of misconduct faces these ominous
possibilities. On applicants’ postulation
all disciplinary
hearings in all work places could be interdicted if the general
requirements for the granting of interim interdicts
are met to
prevent this kind of serious harm which may very well be irreparable.
The cases referred to above show that more than
just pleading the
ordinary requirements for interim interdicts the applicants were
required to plead exceptional circumstances
justifying an
intervention in
medias res
in what is essentially an internal
disciplinary process in the workplace which has its own remedies. The
applicants have not done
so. Absent exceptional circumstances being
pleaded, this Court lacks jurisdiction to exercise its discretion and
interfere in ongoing
disciplinary processes in the workplace.
Conclusion
[39]
I am not unmindful of the fact that the main case and therefore the
final determination of the important issue of the applicants’
right not to be subjected to an unlawful disciplinary process is due
to be adjudicated finally in part B of this application. I
am,
however, required to consider some of the aspects of that very issue
as I have done above for the sole purpose of determining
if indeed I
should halt the disciplinary processes that are currently under way.
As Moseneke DCJ said in OUTA
[9]
:
“
Having
granted leave to appeal, we must now decide the merits of the appeal.
To do that I need not determine the cogency of the
review grounds. It
would not be appropriate to ursurp the pending function of the review
court and thereby anticipate its decision.
I have kept in mind that
the Rule 53 procedure might result in the lodging of a supplemented
case record which may entail new matters
or disputes of fact which
will best be dealt with by the review court itself. I nonetheless
proceed to describe the subject matter
of the review for the
restricted purpose of probing whether the High Court was right in
granting the interim interdict.”
[40] It was argued on
behalf of the respondents that there is nothing preventing the
applicants from raising the issue of the board
of trustees of Vela
School Trust not being their employer at the disciplinary hearing.
The chairperson of the disciplinary inquiry
will be at large to deal
with that issue either as a point
in limine
or even deal with
it through hearing oral evidence from which the agency of
cross-examination of the respondents’ witnesses
and the
discovery processes or exchange of documents will be most useful in
probing that very issue. The respondents further contend
that in the
event of an adverse finding there are remedies including referring
the matter to the Commission for Conciliation Mediation
and
Arbitration (the CCMA) which is an independent body that would have
jurisdiction to deal with any employee or applicant against
whom an
adverse finding could be made. The CCMA’s arbitration rulings
are themselves subject to review by the Labour Court
and all the way
to the Labour Appeal Court and even further. The applicants have not
shown why or how these alternative remedies
would not be appropriate
or available to them. In all these circumstances the application must
fail.
Costs
[41] The respondents have
asked for costs on a punitive scale of attorney and client in the
event that the applicants are not successful.
There may very well be
a prospect of the normal future employer/employee relations being
restored in the event of the applicants
being successful in respect
of part B. If they are not successful in respect of the review
application the ultimate outcome of
the disciplinary process may very
well be in their favour. It would therefore be inappropriate for
costs to be on a punitive scale
at this stage. I am of the view that
ordinary costs albeit on scale C of Rule 69 of the Uniform Rules of
Court in terms of Rule
67A thereof would be more appropriate
especially this being essentially an employer/employee dispute.
Result
[42] In the result the
following order is made:
1. The application is
struck off the roll.
2. The applicants are
ordered to pay the costs of this application jointly and severally,
the one paying the others to be absolved
on scale C of Rule 69 of the
Uniform Rules of Court.
M.S. JOLWANA
JUDGE OF THE HIGH
COURT
Appearances
Counsel for the
Applicants :
V.V. Msindo
Instructed
by:
VV Msindo & Associates Inc.
Mthatha
Counsel for the
Respondents:
S.G. Poswa
Instructed
by:
M.P. Ncame Inc Attorneys
East
London
Date
heard:
19 April 2024
Date
delivered:
02 May 2024
[1]
“
TRUST
PURPOSE
The objects of the Trust
shall be:
5.1
to establish a Board of Trustees to initiate, carry on or be
concerned with the
collection or raising of
funds and the administration thereof in terms of the provisions of
this Deed;
5.2 to receive any
funds, property (movable or immovable property, corporeal or
incorporeal) and/or money donated or otherwise
made over to the
Trust;
5.3 establish this Trust
for the purpose of receiving donation to be used for the defrayal of
any expenditure directly incurred
in pursuing and achieving the
Trust Purposes;
5.4 to invest and deal
with the Trust Fund as set out herein;
5.5 to apply the Trust
Fund in or towards;
5.5.1 the acquisition,
development and leasing of fixed property(ies),
5.5.2 the furtherance of
any of the objects of the Trust;
5.6 the Trust shall
utilise the Trust Funds solely for the objects for which it has been
established or invest such Trust Funds;
5.6.1 with a financial
institution as defined in section 1 of the Financial Services Board
Act, 1990 (Act 97 of 1990);
5.6.2 in securities on a
licenced stock exchange as defined in Section 1 of the Stock
Exchange Control Act, 1985 (Act No.1 of
1985; or
5.6.3 in such other
financial instruments as the Commissioner for Inland Revenue may
approve.
5.7 At least 75% of the
net revenue (excluding donations) of the Trust is to be expended in
the furtherance of its objects within
a period of twelve months from
the end of the financial year during which it accounts, provided
that where funds are to be accumulated
for a specific capital
project, the prior written permission of the Commissioner for the
South African Revenue Services (to which
the Trust submits its
annual tax returns) must be obtained.
5.8
The activities of the Trust shall be confined to the Territory and
the Trust Funds will be applied within this area.”
[2]
Caledon
Street Restaurants CC vs D’Aviera
1998
JDR 0116 (SE)
[3]
Section
12 (2) reads:
“
Unless
the laws in terms of which a nonprofit organisation is established
or incorporated make provisions for the matters in this
subsection,
the constitution of a nonprofit organisation that intends to
register must –
(a)
state the organisation’s name;
(b)
state the organisation’s main and
ancillary objectives;
(c)
state that the organisation’s income
and property are not distributable to its members or office-bearers,
except as reasonable
compensation for services rendered;
(d)
make provision for the organisation to be
a body corporate and have an identity and existence distinct from
its members or office-bearers;
(e)
make provisions for the organisation’s
continued existence notwithstanding changes in the composition of
its membership
or office-bearers;
(f)
ensure that the members or office-bearers
have no rights in the property or other assets of the organisation
solely by virtue
of their being members or office-bearers.
(g)
specify the powers of the organisation;
(h)
specify the organisational structure and
mechanisms for its governance;
(i)
set out the rules for convening and
conducting meetings, including quorums required for and the minutes
to be kept of those meetings;
(j)
determine the manner in which decisions
are to be made;
(k)
provide that the organisation’s
financial transactions must be conducted by means of a banking
account;
(l)
determine a date for the end of the
organisation's financial year;
(m)
set out a procedure for changing the
constitution;
(n)
set out a procedure by which the
organisation maybe wound up or dissolved; and
provide that when the
organisation is being wound up or dissolved, any asset remaining
after all its liabilities have been met,
must be transferred to
another non-profit organisation having similar objectives.”
[4]
Section
8 reads:
(1) Two types of
companies may be formed and incorporated under this Act namely
profit companies and non-profit companies.
(2) A profit company is
–
(a)
a state-owned company; or
(b)
a private company if –
(i)
it is not a state-owned company; and
(ii)
its Memorandum of Incorporation –
(aa)
prohibits it from offering any of its securities to the public; and
(bb)
restricts the transferability of its securities;
(c)
a personal liability company if –
(i)
it meets the criteria for a private company; and
(ii)
its Memorundum of Incorporation states that it is a personal
liability
company; or
(d) a public company, in
any other case.
(3) No association of
persons formed after 31 December 1939 for the purpose of carrying on
any business that has for its object
the acquisition of gain by the
association or its individual embers is or may be a company or other
form of a body corporate
unless it –
(a) is registered as a
company under this Act;
(b) is formed pursuant
to another law; or
(c)
was formed pursuant to Letters Patent or Royal Charter before 31 May
1962.
[5]
Molusi
and Others v Voges N.O. and Others
2016
(3) SA 370
(CC) para 27 - 28
[6]
S
v Makhubele
1987
(2) SA 541
(T) at 545 A-D
[7]
Equisec
(Pty) Ltd v Rodriques and Another
1999
(3) SA 113
(WLD) at 115 A-B and I – J and 116 A-D.
[8]
George
v Nyoka and Others
[2023]
7 BLLR 654
(LC) para 1 and 11.
[9]
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
2012
(6) SA 223
(CC) at para 31.