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2024
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[2024] ZAMPMBHC 44
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Makhalini Womlabo Communal Property Association v Skhosana and Others (1877/2022) [2024] ZAMPMBHC 44 (4 July 2024)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: 1877/2022
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE:
04 July 2024
SIGNATURE
In the matter between
Makhalini Womlabo
Communal Property Association
Applicant
And
Botwana Witbooi
Skhosana
1
st
Respondent
Amos Skhosana
2
nd
Respondent
Mandla John Skhosana
3
rd
Respondent
Ester Skhosana
4
th
Respondent
Elvis Mathibela
5
th
Respondent
The Minister of the
Department of Agriculture,
Land Reform and Rural
Development.
6
th
Respondent
Delivered: This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The
date and time for
hand-down is deemed to be 10:00 on 4 July 2024.
Judgment
Phahlamohlaka
AJ
[1] The applicant
launched an application for an order in the following terms:
That
the first to fifth respondents be ordered to disclose the details of
the account opened in the name of the Makhalini Womlambo
Communal
Property Association with a registered financial institution
together with a true and proper statement of account together
with
substanting documents reflecting the correct income, expenditure,
assets and liabilities of the aforementioned account.
That
from the first to fifth respondents be interdicted and restrained
from intimidating and/or threatening current and/or prospective
clients of the Makhalini Womlambo Communal Property Association
including but not limited to Mr Jaap Botha of Onverwacht Boerdery.
That
from the first to fifth respondents be interdicted and restrained
from inviting non-CPA members to meetings organised by
and for
members of the Makhalini Womlambo Communal Property Association by
its current committee members.
That
from the first to fifth respondents be interdicted and restrained
from unlawful and unauthorised communication through attorneys
or
otherwise as if they are still authorized members of the Makhalini
Womlambo Communal Property Association executive committee.
That
from the first to fifth respondents be ordered to pay costs of this
application.
[2] The application is
opposed. In the opposing affidavit the first to third respondents
raised two points
in limine
. At the commencement of the
application the parties informed me that I must first deal with the
points of law raised by the first
and third respondents.
[3]
The first point
in
limine
relates to
the applicant’s failure to exhaust internal remedies before the
launching of this application. The respondents
contend that the
applicant’s constitution regulates the relationship between the
members of the applicant and must, therefore,
be adhered to by all
the members of the applicant with no exception. To this end, the
respondents rely to paragraph 25.1 of the
said constitution which
provides that “
in
the event of any disputes between the members the disputes may,
at the request of any party to the dispute, be referred
to the
disciplinary committee (which shall constitute of elders” who
shall later hear all parties to the dispute and to take
into account
the principles and provisions of the Constitution of the Republic of
South Africa. Should all parties agree thereto
in writing, the
decision of the Disciplinary Committee shall be final and binding on
all parties with regards
to the disputes.”
[4] Paragraph 25.1 of the
applicant’s constitution is not peremptory. It is optional for
any party to a dispute to refer the
dispute to a dispute resolution
mechanism in terms of the applicant’s constitution. It is very
clear in that it provides
that any party to a dispute may refer the
dispute to the elders who will deal with that dispute.
[5] Additionally, the
respondents rely on paragraph 25.2 of the applicant’s
constitution which provides that “
in order to facilitate the
resolution of disputes and avoid unnecessary litigation, the Director
General of the Department of Land
Affairs may on his own accord at
the request of the association or any member thereof, appoint a
conciliator acceptable to the
parties to a dispute to assist in
resolving a dispute between members and committee provided that if
the parties to the dispute
do not agree on the person appointed the
Director General may appoint a person who in his/her opinion has
adequate experience or
knowledge in conciliating disputes according
to sections 10(2) and (3) and (4) of the Communal Property
Association ct, 28 of 1996.”
[6]
The respondents argued
that the applicant also failed to avoid the unnecessary litigation in
that it ignored this remedy in terms
of paragraph 25.2 of the
applicant’s constitution. The respondents contended that
instead of approaching the Director General,
the applicant approached
junior officials who could not assist in the resolution of the
dispute.
[7] Thirdly, the
respondents will rely on paragraph 25.3 of the applicants
constitution which provides that “
should it not be possible
to appoint a conciliator or obtain the services of a conciliator or
convene a meeting upon which such
conciliator must be appointed or
the conciliator cannot proceed for whatever reason, the Director
general may, in addition to the
dispute resolution mechanism
available in terms of the law, at his owner accord assist in the
solving any issues for the purpose
to resolve such dispute.”
[8] As alluded to
earlier, the subsections the respondents rely on, give any party to a
dispute an option of resorting to the dispute
resolution mechanism as
provided for in the constitution of the applicant. In my view, it
does not preclude any party to a dispute
from approaching the courts
of law.
[9] The parties are
ad
idem
that the applicant approached the office of the Director
General. However, the respondents complain that junior officials in
the
office of the director general dealt with the dispute. These
complaints, in my view, are unfounded and lack merit as the director
general's office is an office staffed with members or officials of
that office.
[10] In my view, this
point of law is without merit and therefore stands to fail.
[11]
The second point
in
limine
raised by
the first and third respondents
is
that this court lacks
jurisdiction.
The respondents rely on
paragraph 25.11 of the applicant's constitution which reads as
follows “
nothing
here in contained or implied shall preclude a party from applying to
court for a temporary interdict or other relief of
an agent or
temporary nature, pending the award of the arbitrator here under.”
[12] The respondents’
content that the type of the application brought by the applicant
herein is not covered by the exemption
or the exception provided for
in paragraph 25.11. In my view, this argument also lacks merit
because, as alluded to earlier, the
constitution of the applicant
does not preclude any party from approaching the courts.
Consequently, this point of law also stands
to be dismissed.
[13] The respondents also
argue that the chairperson’s powers to institute the current
proceedings are derived from a resolution
which is unsigned. The
respondents complain that the document is unsigned by those who
allegedly gave the chairperson authority
to depose to the founding
affidavit, let alone instructing attorneys, and secondly, it does not
have a date and place where such
a meeting was held where such an
alleged resolution was taken. In my view, this point of law was
brought late and from the bar.
This point of law too, is meritless
and it stands to be dismissed.
[14] On the issue of
costs, I did not find any reason to deviate from the accepted
principle of our law that the successful party
ought to be awarded
costs.
[15] In the result I make
the following order.
The points
in limine
are dismissed with costs.
K F Phahlamohlaka
Acting Judge of the
High Court,
Mpumalanga
Division,
Mbombela
(Main Seat)
Judgment
reserved on: 28 March 2024
Judgment
delivered on: 4 July 2024
For
the Applicant:
Adv
Sibiya
Instructed
by:
Paul
Du Plessis Attorneys
Email:
miso@pduplessislaw.co.za
theuns@strohcoetzee.com
For
the respondents:
Adv
Mpe
Instructed
by:
JB
Masombuka Attorneys
Email:
info@jmmasombukanpatners.co.za