1
IN THE
LAND COURT OF SOUTH AFRICA
HELD AT RANDBURG
CASE NO: LanC 89/2019B
Before: Bishop AJ
Heard on: 15 July 2025
Order on: 17 July 2025
Reasons on: 18 July 2025
In the matter between:
THE N’WANDLAMHARI COMMUNAL PROPERTY
ASSOCIATION First Applicant
MHLANGANISWENI COMMUNITY Second Applicant
and
MILLINGTON ZAMANI MATHEBULA First Respondent
RICHARD MANGALISO NGOMANE Second Respondent
18 July 2025
DELETE WH ICHE VE R IS N O T APPLI C ABLE
(1) REPORTABLE : 1'E-8 f NO
(2) OF INTERES T TO OT HER JUDG E S: ~ f NO
(3) REVIS ED: 'i"E'S f NO
DATE
-....... -.... .
SIGNATUR E
2
SURPRISE WELCOME NTIMANE Third Respondent
KAIZER MESHACK KHUMALO Fourth Respondent
SIPHO ORANCE MKHWANAZI Fifth Respondent
FRANK SOLLY BHUNGELA Sixth Respondent
RULANI HARRIET MAWELA Seventh Respondent
THUYANI SOUL DLAMINI Eighth Respondent
MAVHURAKA COMMUNITY Ninth Respondent
MINISTER OF RURAL DEVELOPMENT AND
LAND REFORM Tenth Respondent
DIRECTOR GENERAL: DEPARTMENT OF
RURAL DEVELOPMENT AND LAND REFORM Eleventh Respondent
THE CHIEF LAND CLAIMS COMMISSIONER:
COMMISSION ON RESTITUTION OF
LAND RIGHTS Twelfth Respondent
REGIONAL LAND CLAIMS COMMISSIONER:
MPUMULANGA PROVINCE Thirteenth Respondent
THE N’WANDLAMHARI COMMUNAL PROPERTY
ASSOCIATION CONCERNED BENEFICIARIES Fourteenth Respondent
DION SONTO MNISI Fifteenth Respondent
ORDER
1. This application is heard as an urgent application and the provisions
regarding the service requirements and the time periods in the Land
Court are dispensed with.
2. The fourteenth and fifteenth respondents are interdicted and restrained
from taking steps to hold and from holding:
3
2.1. An annual general meeting of or on behalf of the first applicant
scheduled for 19 July 2025; and
2.2. Any other subsequent annual general meeting or any other
meeting of or on behalf of the first applicant, other than in terms
of the applicable provisions of the first applicant’s constitution.
3. There is no order of costs as between the Applicants and the First to
Ninth Respondents.
4. Costs as between the Applicants and the Tenth to Fifteenth
Respondents are reserved for determination in the main action.
JUDGMENT
BISHOP, AJ:
[1] This application arises midstream in the resolution of a profound disagreement
about who should benefit from the restoration of the Mala Mala Game Reserve. The
Applicants approached this Court urgently to prevent the Fourteenth and Fifteenth
Respondents (the Concerned Beneficiaries) from holding a general meeting of the
First Applicant (the NCPA) which was scheduled for 19 July 2025.
[2] The MalaMala land sits between the Kruger National Park and the Sabi Sands
Game Reserve. It is immensely valuable land. So valuable that, in 2012, this Court
concluded that at an estimated cost of R800 million it was not feasible to require the
State to restore it to the communities who had been removed from the land through
racist policies of colonialism and apartheid.1 Despite that conclusion, in 2013 the State
1 Mhlanganisweni Community v Minister of Rural Development and Land Reform and Others [2012]
ZALCC 7.
4
decided to pay over R1 billion t o purchase the land and restore it t he dispossessed
communities.
[3] The dispute at the heart of this case is who should benefit from the restitution
of the MalaMala land. The restitution claim for the land was brought by various people
and communities and consolidated into a single claim in the name of the
Mhlanganisweni Community – the Second Applicant. When the claim was settled in
2013, the Mhlanganisweni Community and the Mavhuraka Community (the Ninth
Respondent) were combined to form a new entity to take ownership of the MalaMala
land. That entity is the NCPA, the First Applicant.
[4] This amalgamation of the Mhlanganisweni and Mavhuraka Communities under
the banner of the NCPA is the genesis of the present litigation and, as I will explain,
other litigation in this Court and the High Court.
[5] To understand why the Applicants seek to prevent the Concerned Beneficiaries
calling a general meeting, I need to canvass t wo categories of evidence. First, the
general dispute between the Applicants, the Mavhuraka Community and the
Concerned Beneficiaries. Next, the specific e vents that preceded the calling of the
meeting that was scheduled for 19 July 2025, precipitating this urgent application.
The Underlying Dispute
[6] The Mavhuraka Community did not lodge a restitution claim for the MalaMala
land. For that reason, t he Mhlanganisweni Community takes the view that, despite
their inclusion in the NCPA, members of the Mavhuraka Community should not benefit
from the MalaMala land.
[7] In 2019 the NCPA and the Mhlanganisweni Community launched an action in
this Court for a range of relief to achieve that end (the Main Action). The Main Action
seeks to effec tively reverse the 2013 merger of the two communities so that only
members of the Mhlanganisweni Community will benefit from the MalaMala land, or
that only members of the Mavhuraka Community who demonstrate they were
dispossessed from the MalaMala land can benefit from it.
5
[8] The M ain Action is part heard. This Court dismissed a range of preliminary
objections in May 20222 and began hearing evidence in October 2022. A t that point
the Concerned Beneficiaries intervened and raised their own preliminary objections to
the Main Action. Two of those objections are relevant to the current urgent application.
To understand them, I need to take a step back and narrate what had occurred within
the NCPA in the decade after its formation in 2013.
[9] When the NCPA was created an interim committee was appointed to manage
the NCPA. It consisted of members from both Communities. In 2016, a new committee
took office, made up only of members of the Mhlanganisweni Community. This is what
the Applicants call the “Executive Committee”.
[10] Only member s of the Mhlanganisweni Community participated in the 2016
meeting that elected the E xecutive Committee. Why? Because at that point the
members of the Mhlanganisweni Community had been verified while at that stage
members of the Mavhuraka Community had not. Verification was mattered because
of the way the NCPA constitution deals with who can be regarded as members and
therefore who can vote at general meetings, including to elect an executive
committee.3
[11] There is a n ongoing dispute about whether the Executive Committee is
legitimate, and whether it is even an executive committee as envisaged in the NCPA
constitution. Some Respondents say it was only an interim committee elected for a
limited time and for the purpose of facilitating the verification of the Mavhuraka
Community. The Applicants assert that it was a properly elected executive committee
with full powers and for an ordinary term. For simplicity I will call this committee – which
remains in existence – the Executive Committee. In doing so, I do not mean to imply
that it is a lawfully elected executive committee under the NCPA. That is a dispute I
intentionally avoid resolving, for reasons I explain below.
intentionally avoid resolving, for reasons I explain below.
2 N'Wandlamhari Communal Property Association and Another v Mathebula and Others [2022] ZALCC
36 (N’Wandlamhari I).
3 The details of how membership operates is fully set out in the judgment of Cowen J in N'Wandlamhari
Communal Property Association and Another v Mathebula and Others [2023] ZALCC 27
(N’Wandlamhari II), particularly at paras 10-15.
6
[12] Despite the fact that the NCPA’s constitution limits the term of any executive
committee to three years , and requires regular annual general meetings , no new
executive committee has been elected, and no AGM to elect a new committee has
been successfully held. The reasons depend on who you ask. The Applicants say they
have tried to hold AGMs to consider the verification of the Mavhuraka Community and
elect a new executive committee, but that these attempts have been disrupted by the
Concerned Beneficiaries and other members of the Mavhuraka Community. There
were attempts in February 2018, October 2019 and January 2020.
[13] The Respondents do not deny that they have disrupted meetings in the past,
or that this is part of the reason no meeting has been held. But, they say, they disrupted
the meetings because they excluded the Mavhuraka Community. In the view of the
Mavhuraka Community, the Executive Committee and the Mhlanganisweni
Community have refused to call a general meeting since 2020 so that they can hold
onto power and continue to exclude the Mavhuraka Community by not adopting them
as members.
[14] This history must also be understood against the backdrop of a n order of the
High Court granted in 2019. In 2016 the First to Eighth Respondents – who are
members of the Mavhuraka Community – launched an application in the Pretoria High
Court. They claimed the NCPA had not been properly managed and that it required
intervention to ensure compliance with its constitution. They sought a range of relief
including placing the NCPA under administration and compelling the Department of
Rural Development and Land Reform to assist the beneficiaries to hold an AGM and
elect a new executive committee.
[15] On 9 May 2019 Khumalo J granted some but not all of the relief. 4 She did not
place the NCPA under administration. But she did order the Director-General to
complete and release the results of the verification of the Mavhuraka Community, and
complete and release the results of the verification of the Mavhuraka Community, and
to “assist the beneficiaries of the NCPA to prepare for the Annual General Meeting
4 Mathebula and Others v Nwandlamhari Communal Property Association and Others [2019] ZAGPPHC
201. Some of the orders she granted were subsequently overturned on appeal. The details are not
relevant for resolving the present dispute.
7
and the elections of the new executive committee members”. Importantly, the order is
directed at the Director-General, not the Executive Committee or the NCPA.
[16] The verification of the Mavhuraka Community was subsequ ently completed in
2019. However – for the disputed reasons set out above – the verification report has
not been adopted by the NCPA as envisaged in the NCPA constitution.5
[17] That brings us back to the two preliminary issues that the Concerned
Beneficiaries raised in the M ain Action. Cowen J determined these in a judgment
delivered on 10 August 2023.6
[18] The first objection was to the authority of the Executive Committee to bring the
Main Action on behalf of the NCPA. The Concerned Beneficiaries argued that , as it
was not a properly elected executive committee and had exceeded its term, it could
not have authorized the NCPA to launch the Main Action. Cowen J dismissed the
objection because the NCPA did not rely on a decision of the Executive Committee,
but a decision of a special general meeting held on 9 March 2019. In doing so, she
intentionally did not resolve the ongoing dispute about the legitimacy of the Executive
Committee.
[19] The second preliminary objection was to the validity of the decision taken at
that special general meeting. The Respondents argued that because it was taken
solely by members of the Mhlanganisweni Community and excluded the Mavhuraka
Community, it was invalid. That was not a problem, according to the Applicants,
because only members of the Mhlanganisweni Community were members of the
NCPA as only they had, at that point, been verified (the meeting occurred before the
verification of the Mavhuraka Community was finalised).
[20] Cowen J disagreed. She held that even though the membership of the
Mavhuraka Community had not yet been verified, they were entitle d to vote, at least
on an issue as fundamental to the NCPA as whether to pursue the Main Action.
on an issue as fundamental to the NCPA as whether to pursue the Main Action.
5 The Concerned Beneficiaries state at one point that the verification was adopted at a special general
meeting of the NCPA on 12 December 2020. This was also the evidence of Mr Mnisi (the Fifteenth
Respondent) in N’Wandlamhari II (n 3) at para 18. But later in the answering affidavit Mr Mnisi s tates
expressly that the membership of the Mavhuraka Community has been verified, but not adopted. I
understood Ms Gana to accept in argument that this is indeed the position. I proceed on that basis.
6 N’Wandlamhari II (n 3).
8
“[W]here the verification process has been delayed,” she held, “the members’ register
– and thus the voter’s roll – would have to be compiled in a different way, at least
pending finalisation of the verification process and its adoption. ”7 The register should
be compiled using the process adopted for the initial election in 2013 and “in a way
that includes members from both constitutive communities.”8
[21] The Applicants applied for and were granted leave to app eal that decision in
January this year.9 The appeal to the Supreme Court of Appeal is still pending. The
Main Action is on hold until that appeal is resolved.
[22] Against this contentious background, it is perhaps unsurprising that there have
been two previous occasions on which the holding of a general meeting has come
before this Court.
[23] First, in February 2022 the Department sought to convene an AGM of the
NCPA. The Applicants urgently approached this Court to interdict it from doing so. The
reasons are essentially the same as the reasons t hey advance in the present
application – the proposed AGM was not called in line with clause 15 of the NCPA’s
constitution. Cowen J agreed, in essence, because the Department had provided no
proof that 100 members of the NCPA had supported a call for a general meeting.10
[24] Second, on 11 December 2023 – after she had upheld the preliminary objection
to the decision to authorize the Main Action – Cowen J granted an interim interdict
against the Concerned Beneficiaries preventing them from proceeding with a general
meeting scheduled for the next day. The interdict was to operate pending the
determination of Part B which, as far as I am aware, was never determined. I was only
provided with the order Cowen J granted. I do not know the context in which the order
was granted or what relief was sought in Part B. I mention it only as it shows this is not
7 Ibid at para 48.
8 Ibid.
9 N’Wandlamhari Communal Property Association and Another v Mathebula and Others [2025] ZALCC
9 N’Wandlamhari Communal Property Association and Another v Mathebula and Others [2025] ZALCC
3 (16 January 2025)
10 N’Wandlamhari I (n 2).
9
the first time the Concerned Beneficiaries have attempted to call a general meeting,
and not the first time the Applicants have approached this Court to block it.
[25] That sets the background for the present dispute. I have described it at some
length because the contours of the current dispute only make sense against an
understanding of the long and difficult road that led the parties here.
The Calling of the Meeting for 19 July 2025
[26] The events that imme diately precipitated this dispute began on 5 June 2025
when Mr Mnisi – the Fifteenth Respondent – issued a notice calling a meeting of the
NCPA to be held on 7 June 2025. The purpose was to resolve to call a general
meeting. On the same day, the Applicants’ attorneys wrote to Mr Mni si. The letter
contends that Mr Mnisi was not entitled to call an elective AGM and demanded that he
desist.
[27] Mr Mnisi ignored the demand and held the meeting on 7 June 2025.
Approximately 300 people were present. Who exactly attended is uncertain, and I
address it below. The meeting resolved, purportedly in terms of clause 15 of the NCPA
constitution, to call a general meeting.
[28] On 13 June 2025, Mr Mnisi issued a notice inviting people who were not yet
verified to attend a new verification exercise to be held on 16 and 1 7 June 2025. On
18 June 2025, the Applicants ’ attorneys wrote to Mr Mni si to demand that he stop
purporting to verify beneficiaries and taking steps to hold a meeting of the NCPA. Mr
Mnisi responded the next day effectively confirming that a general meeting would be
convened.
[29] The next day, 20 June 2025, the Applicants became aware that Mr Mni si had
distributed a notice calling an elective AGM of the NCPA for 19 July 2025. The issues
on the agenda of that meeting would include updating the verification register,
appointing lawyers for the NCPA, and the election of a new executive committee.
[30] That notice, combined with Mr Mnisi ’s refusal to accede to their demands,
[30] That notice, combined with Mr Mnisi ’s refusal to accede to their demands,
prompted the Applicants to bring the present application.
10
The Application and the Defences
[31] It was launched on 25 June 2025 and seeks an interim interdict against Mr Mnisi
and the Concerned Beneficiaries preventing them from holding the general meeting of
the NCPA on 19 July 2025, or any other meeting. The interdict would operate pending
the final determination of the Main Action.
[32] The primary basis for the relief is that Mr Mnisi and the Concerned Beneficiaries
have not complied with clause 15.1.3 of the NCPA constitution. The clause requires
the calling of a general meeting if “100 (one hundred) members of the Association …
sign a written request and hand it to the Chairperson”. The second basis is that the
meeting would interfere with the Main Action. That is why the interdict was only sought
until the Main Action is finalized.
[33] I struggled to understand the logic of linking the unlawful calling of the meeting
to the Main Action. If a meeting is lawfully called, then the fact that it may impact on
the Main Action – by altering the balance of power in the NCPA, causing the withdrawal
of the Main Action, or in any other way – is irrelevant. The Applicants have no right to
prevent a lawful meeting of the NCPA merely because it will have consequences for
the Main Action. The Main Action does not freeze the NCPA in amber until its
resolution; it remains governed by its constitution, not by the pending litigation. At the
same time, the Applicants are entitled to prevent an unlawful meeting whether it will
impact on the Main Action or not.
[34] I put these concerns to Ms Barnes SC at the hearing. In response she proposed
a new draft order that sought final relief against Mr Mnisi and the C oncerned
Beneficiaries that was not linked to the completion of the Main A ction. The new
proposed relief reads:
“That the fourteenth and fifteenth respondents are hereby interdicted and
restrained from taking steps to hold and from holding an annual general
restrained from taking steps to hold and from holding an annual general
meeting of or on behalf of the first applicant scheduled for 19 July 2025 and
from holding any other subsequent annual general meeting or any other
meeting of or on behalf of the first applicant, other than in terms of the
11
applicable provisions of the NCPA Constitution, in particular clause 15 of the
NCPA Constitution.
[35] The draft was circulated to the other par ties and they were afforded an
opportunity to comment on it. Other than persisting with their objections to any form of
relief, there was no new objection to the Applicants seeking this amended relief, or to
the way it was worded. I intend to treat the application as one for this form of relief,
rather than the interim relief initially sought.
[36] How did the Respondents respond to the application? Mr Mnisi and the
Concerned Beneficiaries oppose the application. They contend it is not urgent, that
the First Applicant lacks standing to bring it, and that the Applicants have failed to meet
the requirements for an interim interdict.
[37] The Tenth to Thirteenth Respondents ( the Department) filed a notice to
participate, but no affidavit. Mr Modisa appeared for the Department at the hearing
and argued against granting the application. I permitted him to do so as it is always
valuable for this Court to know the position of the Department. But it is not generally
appropriate for a party to ambush other litigants by only revealing their position at a
hearing. All parties, the Department included, should file affidavits setting out their
position in advance. This allows other parties, and the Court, to properly consider the
issues at stake.
[38] The First to Nin th Respondents – the Mavhuraka Community – filed a n
explanatory affidavit. They do not directly oppose the order the Applicants seek. But
they asked that, if it is granted, the Court also grant further orders requiring the
Applicants to convene an annual general meeting, to shar e all benefits of the NCPA,
to disclose the legal fees spent to date on the Main Action, and not to use the NCPA’s
funds for further legal processes without a valid community resolution. This relief was
not sought in a formal counter-application.
not sought in a formal counter-application.
[39] At the hearing, Mr Mbhalati informed me that his clients did not persist with
seeking that relief. But he emphasized the difficult position in which the Mavhuraka
Community finds itself. Its members are excluded from participating in the NCPA until
their verification is adopted. But a meeting to adopt the verification will be held without
them and only with members from the Mhlanganisweni community. And, despite a
12
constitutional requirement for an annual general meeting, none has been successfully
held since the verification was complete. I suggested that the Court, although it could
not grant relief resolving this impasse, could indicate the need to resolve it and how
that might be achieved. Mr Mbhalati supported that s uggestion and no other party
argued it would be improper.
[40] These, then, were the questions I was required to answer:
[40.1] Is the application urgent?
[40.2] Is there merit in the objection to the NCPA’s standing?
[40.3] Would the 19 July 2025 meeting be lawful?
[40.4] Are the other requirements for interdictory relief met?
[40.5] What is the appropriate order?
[40.6] Is there a way out of the current deadlock?
[40.7] Who should pay the costs of this application?
[41] Having considered them , I granted an order on 17 July 2025 in the following
terms:
5. This application is heard as an urgent application and the provisions
regarding the service requirements and the time periods in the Land
Court are dispensed with.
6. The fourteenth and fifteenth respondents are interdicted and restrained
from taking steps to hold and from holding:
6.1. An annual general meeting of or on behalf of the first applicant
scheduled for 19 July 2025; and
6.2. Any other subsequent annual general meeting or any other
meeting of or on behalf of the first applicant, other than in terms
of the applicable provisions of the first applicant’s constitution.
7. There is no order of costs as between the Applicants and the First to
Ninth Respondents.
8. Costs as between the Applicants and the Tenth to Fifteenth
Respondents are reserved for determination in the main action.
13
[42] I granted the order without reasons because the meeting was scheduled for 19
July 2025 and I wanted to give as much notice of my order as possible, but I was not
yet ready to provide my reasons. These are my reasons for the order which will be
delivered on 18 July 2025.
Urgency
[43] The matter is plainly urgent. The proposed general meeting is on 19 July 2025.
In order to prevent the meeting occurring, the Applicants require a hearing before that
date. They have not unduly delayed in approaching the C ourt. They learnt that the
meeting was scheduled for 19 July 2025 on 20 June 2025 and launched this
application on 25 June 2025.
[44] The claim that the Applicants would be able to obtain substantial redress in due
course by seeking to set aside the results of the proposed meeting after the fact misses
the point. Whatever resolutions are taken at the meeting wi ll have either a legal or a
factual impact un til a decision on their legality is taken. Some of the consequences
may be impossible to unscramble months after the fact when a hearing in due course
occurs.
[45] Cowen J treated two virtually identical applications to prevent allegedly unlawful
meetings of the NCPA from occurring as urgent. I see no reason to treat this
application differently.
Standing Authority
[46] The next defence is framed as one of standing. T he Concerned Beneficiaries
argue that the Executive Committee does not have authority to litigate on behalf of the
NCPA. They contend that it was appointed in 2016 as an interim committee and that
it “was never intended that this structure would operate as a de facto executive
committee.” The resolution purporting to authorise this application was taken by the
14
Executive Committee. But if the Executive Committee is illegitimate, it cannot instruct
attorneys to litigate on behalf of the NCPA.
[47] There are three difficulties with this line of argument.
[48] First, although raised as a standing issue, it is in fact a question of authority.
There is no doubt that the NCPA has the necessary interest to bring litigation
preventing what it alleges is an unlawful meeting. The question is w hether a properly
constituted body has validly acted on behalf of the NCPA to instruct attorneys to bring
the application. That is an issue that ought to have been raised through Rule 7, not as
a complaint about standing. Procedurally, the issue is not properly before me.
[49] Second, the status of the current Executive Committee is a dispute that will
need to be determined in the Main Action. As I explained earlier, t he Respondents
made the same argument before Cowen J: that the Executive Committee did not have
the authority to act on behalf of the NCPA. C owen J avoided deciding the issue
because the NCPA did n ot rely on a decision of the Executive Committee, but a
decision at a special general meeting.11
[50] But she explained why “the interests of justice would not – in my view – be
served by venturing to deal with that issue now ”.12 Most importantly, the Court had
already heard some, but not all, of the evidence about what occurred at the 16 October
2016 meeting when the Executive Committee was elected. There remains a factual
dispute about how and for what purpose the Executive C ommittee was elected in
2016. That dispute, Cowen J held, should be resolved once all the evidence is led. I
take the same view . Deciding the issue in these proceedings, on scanty evidence ,
when it is hotly contested in the Main Action would cause more harm than good.
[51] Third, it is no t necessary to decide whether the NCPA has validly authorised
this application because there is no challenge to the standing or authority o f the
this application because there is no challenge to the standing or authority o f the
Second Applicant – the Mhlanganisweni Community – to interdict an unlawful meeting.
11 N’Wandlamhari II (n 3) at para 32.
12 I should note, for completeness, that the issue is slightly different from the one before Cowen J. She
had to consider the authority for the NCPA to bring the Main Action which could redefine or alter the
very nature and composition of the NCPA. This application is far more mundane – preventing the
holding of an allegedly unlawful meeting. There was no argument that it would not fall within the ordinary
authority of the Executive Committee, if it had been lawfully appointed.
15
Even if the NCPA has not taken a valid decision to instruct its attorneys, no party
contended that the Mhlanganisweni Community has not. It cannot be denied relief
merely because the Executive Committee may not have had the requisite authority to
act on behalf of the NCPA.
[52] I therefore make no finding about the status of the current Executive
Committee; the issue must be decided based on all the evidence and full argument. I
find only that: (a) the authority of the Executive Committee was not properly placed in
issue; and (b) the Mhlanganisweni Community has standing and there is no challenge
to its decision to bring this application.
Was it Lawful for the Respondents to Call the 19 July 2025 Meeting?
[53] This turns on the proper interpretation of c lause 15.1.3 of the NCPA’s
constitution. To repeat, it provides that a general meeting “ may be convened at any
time on the requisition of: … 100 (one hundred) members of the Association who sign
a written request and hand it to the Chairperson”.13 This is the only provision the
Respondents rely on to justify the meeting they called. The simple question is whether
they complied with it.
[54] On these papers, I can only conclude that they did not. But that does not mean
they cannot in future. That is an issue I need not and should not decide.
[55] The first problem is that the request was not made by 100 members of the
NCPA. The Applicants attached a list of the members of the NCPA to the founding
affidavit. The Concerned Beneficiaries admitted the accuracy of th at list. But in their
answering affidavit they do not put up evidence to show that 100 members of the
NCPA on that list supported the decision on 7 June 2025 to call for a general meeting.
There was no evidence of who attended that meeting. In fact, there is no positive
13 The Department made an argument that because clause 15.1 uses the word “may”, it does not
preclude other ways of calling a general meeting. Wisely, no other party supported this argument. The
“may” in clause 15.1 is empowering. It identifies the instances in which a general meeting may be
convened. It does not leave open the possibility for other unspecified ways to call a general meeting.
That would defeat the purpose of the provision as nobody would know whether a general meeting called
outside the prescripts of clause 15.1 was validly called.
16
averment in the answering affidavit that 100 members of the NCPA supported the
decision to call for the general meeting.
[56] Shortly before the hearing, the Concerned Beneficiaries put up the minutes of
the 7 June 2025 meeting and an attendance register. The attendance register shows
that approximately 300 people attended. B ut there is still no averment , let alone
evidence, that 100 of those people are members of the NCPA. It is not for the Court
to compare the two lists to try and resolve the question, particularly without any
evidence or argument.
[57] In any event, it became plain at the hearing that the Concerned Benefi ciaries
did not contend that 100 of the people listed in the NCPA ’s membership register had
supported the call for the general meeting. The reason is that only members of the
Mhlanganisweni Community a ppear on the membership register . That is the very
injustice they want to resolve in a general meeting.
[58] In her heads of argument and at the hearing, Ms Gana argued instead that the
logic Cowen J adopted to hold that the Main Ac tion was not properly authori sed,
established that members did not need to appear on the membership register in order
to be regarded as m embers under the NCPA constitution. Verified, and potentially
even unverified, members of the Mavhuraka Community were members who could
call a general meeting under clause 15.1.3 even if they were not on the membership
register.
[59] There are two reasons this l ogic cannot prevail, at least in these urgent
proceedings.
[60] The first is the way the Concerned Beneficiaries pleaded t heir case. Mr Mnisi
states in the answering affidavit: “it is true that only members of the Mhlanganisweni
Community have been verified and adopted, the Mavhuraka Community members
have been verified but not adopted.” It is exactly that problem they seek to resolve
through a new AGM. It needs solving precisely because there is currently a distinction
through a new AGM. It needs solving precisely because there is currently a distinction
between the members of the Mhlanganisweni Community and the Mavhuraka
Community. The Applicants’ understanding, and my own understanding prior to
argument, was that this was a concession that there was a difference between verified
and unverified members that mattered for the purpose of clause 15.1.3.
17
[61] The argument that, despite not being on the membership register, members of
the Mavhuraka Community must be treated as members, is not made in the answering
affidavit; it was advanced by counsel in heads and at the hearing. I would be hesitant
to decide the issue on that basis when it was not clearly pleaded and where the
Applicants have not been afforded a fair opportunity to answer it.
[62] Even if I was to overlook the failure to plead the point, there is another reason
Cowen J ’s reasoning on membership cannot aid the Concerned B eneficiaries.
Assume I accept that verified members of the Mavhuraka Community are members of
the NCPA even prior to adoption by the NCPA; there is no evidence to show that 100
such members supported the request. Clause 9.10 of the NCPA constitution provides
that the “presence of the name of any member in the register shall be prima facie proof
of membership of the Association, and conversely, the absence of any member ’s
name in the register shall be prima facie proof that such person does not have any
right to membership”.
[63] The Mavhuraka Community could put up the verification report and compare
that to the attendance list of 7 June 2025. But the verification report of the Mavhuraka
Community is not before me. That makes it impossible for me to assess whether 100
of the people who attended the meeting on 7 June 2025 were verified members of the
Mavhuraka Community even if they were not on the membership register.
[64] Even on a more attenuated basis that members of the Mavhuraka Community
could be regarded as members of the NCPA without verification but through some
other process (which was the holding of C owen J), I am in no better position. I have
no basis to assess whether those who attended the meeting on 7 June 2025 are
members of the Mavhuraka Community. The C oncerned Beneficiaries certainly
provided none.
[65] What Co wen J envisaged is that there would be some informal but agreed
provided none.
[65] What Co wen J envisaged is that there would be some informal but agreed
process to assess community membership for voting rights at an AG M. She did not
hold that , absent any agreement or process , any person could merely assert
membership of one of the communities and thereby claim membership of the NCPA.
Nor did she hold that there must be no objective c heck on membership for the
purposes of assessing compliance with clause 15.1.3.
18
[66] Quite the opposite. I n interdicting the Department from convening an AGM in
2022, Cowen J took the same approach I have taken on these facts. The Department
argued that it was entitled to convene a meeting under clause 15.1.3 because a
meeting of 100 members of the Mhlanganisweni and Mavhuraka communities had
supported such a call. Cowen J rejected that argument because the Department had
“not placed any evidence before me upon which I can conclude that the persons who
resolved … to request the Department to convene the … AGM were in fact then
members of the NCPA.”14 As she explained, when it comes to calling an AGM under
clause 15.1.3 and “[w]hatever the duties of the NCPA may be to admit persons entitled
to membership, the procedures of the NCPA Constitution for admission of members
must be observed. ”15 Because there was no evidence seeking to establish
membership, it was unnecessary for Cowen J to “ make any findings about precisely
how [the process of admitting members] must unfold under the NCPA Constitution,
nor who the current members in fact are.”16
[67] The same applies here. Whatever the requirements for membership are for the
purposes of clause 15.1.3, the onus was on the Concerned Beneficiaries to show that
100 members had supported the call for a general meeting. How they could establish
that is an issue I expressly leave open. On any approach, they have not satisfied their
burden on these facts.
[68] Lastly, even leaving aside the question of whether 100 members supported the
request to call a meeting, it was not handed to the Chairperson. Clause 15.1.3 does
not permit 100 members to call for a meeting and then hold it. It permits them to
present their request to the Chairperson who is then obliged to convene the meeting.
14 N’Wandlamhari I (n 2) at para 40.
15 Ibid.
16 Ibid
19
This was simply not done.17 And as Cowen J held in 2022, that on its own constitutes
non-compliance with clause 15.1.3.18
[69] What this means is that the Applicants have established not just a prima facie
right, but a clear right to interdict the meeting on 19 July 2025 . I see no unfairness in
treating this as final relief. A s the C oncerned Beneficiaries themselves pointed out,
insofar as the meeting scheduled for 19 July 2025, the relief was always final in effect.
Insofar as future meetings are concerned the relief now sought applies only to
meetings called without compliance with clause 15.
Irreparable Harm and Alternative Remedy
[70] The Concerned Beneficiaries argued that the Applicants had failed to show
irreparable harm or the absence of an alternative remedy. The Applicants, they said,
could challenge the results of the planned general meeting after the fact.
[71] I disagree, as did C owen J in 2022. She held in directly comparable
circumstances that “ [t]here is no alternative satisfactory remedy but to approach a
Court for relief to stop the Department from calling an unlawful meeting.”19 The same
is true here. Moreover, permitting an unlawful meeting to occur “ can result in chaotic
and illegitimate governance of a CPA that is embroiled in litigation about the very issue
of membership.”20
[72] I see no purpose in allowing an unlawful meeting to occur . The results of the
meeting will be hugely disruptive for the NCPA and the two communities. It may be
that disruption is necessary to resolve the current stalemate. But it must occur lawfully,
not unlawfully. To quote Cowen J (again): “ Legality must prevail in governance
17 The reason may be that the Respondents do not recognize that the Executive Committee is legitimate
and therefore there is no Chairperson to whom to present the request. This explanation was not pleaded
or properly argued. Even if it had it would not avail the Respondents. I have left the legitimacy of the
Executive Committee undecided. Even if it is illegitimate, that would not entitle the Respondents to
convene a meeting outside of the strictures of clause 15.
18 N’Wandlamhari I (n 2) at para 37.
19 Ibid at para 41.
20 Ibid.
20
processes of CPA’s, not least when there is an internal dispute being litigated
concerning membership.”21
[73] I treat this as final relief because it is untethered to the Main Action. But even if
I was to consider it as interim relief and assess the balance of convenience, that would
plainly favour the Applicants. The order now sought only prevents the meeting on 19
July 2025, and any other unlawful meeting. It does not prevent the Concerned
Beneficiaries from seeking to must er the support of 100 members to call a lawful
meeting. And my judgment does not decide how membership is defined or proved for
that purpose.
The Relief
[74] I agreed in substance with the relief the Applicants sought in their draft order. I
reworked it slightly to make its meaning plain. The relief prevents the meeting on 19
July 2025. It also interdicts Mr Mnisi and the Concerned Beneficiaries from holding or
taking steps to hold another meeting other than in accordance with the NCPA
constitution. Their conduct demonstrates that, absent an order, there is a reasonable
apprehension that they may again attempt to convene an unlawful meeting.
[75] The order is framed that way exactly because it recognizes that it may be
possible for them to convene a lawful meeting. It is delinked from the Main Action
because the Applicants did not establish a right to pr event a lawful meeting merely
because the Main Action is pending.
The Way Forward
[76] The current attempt to convene a general meeting is unlawful and cannot be
allowed to proceed. But that does not mean that the Mavhuraka Community or the
Concerned Beneficiaries have no options open to them.
21 Ibid.
21
[77] I appreciate the real sense of frustration on both sides of this dispute. T he
Mhlanganisweni Community feels they have been forced into a marriage they did not
want and compelled to share land they think should be theirs alone. They instituted
litigation six years ago to resolve that dispute which has no immediate end in sight.
[78] The Mavhuraka Community feels excluded from the NCPA in which they
believe they should be equal partners. They see constant attempts to deny them the
rights and benefits promised by the NCPA’s constitution, and feel powerless to change
their position because they are not acknowledged as member s by the Executive
Committee and the Mhlanganisweni Community.
[79] The Main Action will likely take years to finally resolve the substantive disputes.
Must all sides just accept the stalemate until then? No.
[80] I do not wish to give the parties advice on how to solve their disputes. Parties
must define their own disputes and resolve them how they deem best. But I do want
to emphasise that my finding that this particular attempt to call a general meeting was
unlawful does not mean that no meeting can be called to move the parties forward
until the Main Action is resolved. It means only that any meeting must be call ed
lawfully. That leaves several options.
[81] The NCPA constitution requires annual general meetings. An item on t he
agenda of each meeting must be “membership matters”. The Khumalo J ju dgment
required the Department to assist the benefi ciaries to convene a general meeting to
resolve the issue of the verification of the Mavhuraka Community.
[82] It remains open to affected parties to seek to enforce these obligations in the
NCPA constitution and the Khumalo J order so that a general meeting is held and the
issues are resolved. Ms Barnes SC rightly conceded that the pending Main Action on
its own was no basis to object to a lawfully called general meeting.
[83] To the extent that the Applicants may say that the f ear of disruption is the
[83] To the extent that the Applicants may say that the f ear of disruption is the
reason no AGM has been called, it is open to them to secure a meeting from disruption.
The Court can be called on to issue orders to prevent disruption and, if necessary, to
enlist the aid of the Sheriff and the South Afri can Police Service to enforce those
22
orders. The possibility a meeting may be disrupted is not a justification for non-
compliance with the obligation to hold annual general meetings.
[84] It is also open to the Concerned Beneficiaries to call a meeting in compliance
with clause 15.1.3. I have not decided who is and is not a member for purposes of that
clause. It may be that verified members of the Mavhuraka Community must be treated
as members even if they are not on the register – that issue remains undecided. But
then the Concerned Beneficiaries must be able to show that 100 of the verified
members supported a call for a general meeting, and that they presented that request
to the Chairperson.
[85] I do not suggest that any of these courses of action are simpl e or cost free.
Each side will no doubt seek to resist a move by the other t hat they perceive will not
be in their interest. And there remain thorny legal questions about the powers of the
Executive Committee and the scope of membership. T hose must be resolved when
they are properly raised and fully ventilated.
[86] But the parties are not powerless to move forward. The key point is this – they
must move forward lawfully. Other wise whatever steps are taken are likely to cause
further discord, and are unlikely to resolve the present deadlock.
Conclusion and Costs
[87] The final issue is costs. The Applicants initially sought costs. In their revi sed
order they asked that costs should be reserved for determination in the Main Action.
The Mavhuraka Community asked that there should be no costs order against them
and costs should only be reserved as between the Applicants and the other
Respondents. The Applicants agreed.
[88] So do I. This Court does not ordinarily make costs awards. Whether one is
justified here is best sorted out when the primary disputes between the parties are
resolved.
[89] Those then are the reasons for my order. For completeness and convenience,
I repeat it below:
23
[89.1] This application is heard as an urgent application and the provisions
regarding the service requirements and the time periods in the Land
Court are dispensed with.
[89.2] The fourteenth and fifteenth respondents are interdicted and restrained
from taking steps to hold and from holding:
[89.2.1] An annual general meeting of or on behalf of the first applicant
scheduled for 19 July 2025; and
[89.2.2] Any other subsequent annual general meeting or any other
meeting of or on behalf of the first applicant, other than in terms
of the applicable provisions of the first applicant’s constitution.
[89.3] There is no order of costs as between the Applicants and the First to
Ninth Respondents.
[89.4] C osts as between the Applicants and the Tenth to Fifteenth
Respondents are reserved for determination in the main action.
____________
M BISHOP
Acting Judge of the Land Court
24
APPEARANCES:
For the Applicants: Adv H Barnes SC and Adv M
Musandiwa
Instructed by: Malatji & Co Attorneys
For the First to Ninth Respondents: Adv Mbhalati
Instructed by: GW Mashele Attorneys
For the Tenth to Thirteenth Respondents: Adv Modisa
Instructed by: State Attorney, Pretoria
For the Fourteenth and Fifteenth Respondents: Adv D Gana
Instructed by: Mculu Incorporated Attorneys