Brief Summary

Universitas personarum — Juristic personality — Requirements for universitas personarum — Applicant seeking declaration that the 'Save the Maize Belt Society' is not a true universitas personarum and lacks locus standi — Court finding that the Society does not hold property and is merely a vehicle for litigation without consequence — Society declared not a universitas personarum and may not litigate in its own name.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an application in the High Court of South Africa, Gauteng Division, Pretoria, in which the applicant sought declaratory relief directed at the legal status and litigation capacity of a voluntary association. The application was brought by Dialstat at Trading 115 (Pty) Ltd (Dialstat) against the Save the Maize Belt Society (the Society) as first respondent, together with various individuals cited as the second to twelfth respondents, who were described as the Society’s identified members and/or persons connected to it.

The matter arose against the background of extensive, long-running litigation concerning a proposed coal mining operation. Dialstat sought an order declaring that the Society was not a universitas personarum and, consequentially, that it had no locus standi to litigate in its own name against Dialstat going forward.

The application was opposed. The respondents’ opposition proceeded on two main bases. First, they contended that Dialstat had not shown that the Society lacked the status of a true universitas personarum. Second, they raised additional defences including jurisdiction, res judicata, non-joinder, and alleged disputes of fact.

The application was heard on 14 October 2025 and 5 November 2025, with judgment delivered electronically on 30 January 2026 by Millar J.

2. Material Facts

Dialstat had applied under the Mineral and Petroleum Resources Development Act 28 of 2002 for a coal mining right in the Delmas district, Mpumalanga. The application was granted. A property adjacent to the proposed mining area, portion 43 of the Farm Dwarsfontein, was owned by members of the Omar family and was also their residence and business base. In 2013, following the grant of the mining right, the Society was formed and it lodged an appeal against the relevant decision.

It was common cause that, since its formation, the Society had litigated exclusively in relation to the proposed mining operation, including litigation against Dialstat and others. Over approximately fourteen years, there had been multiple proceedings between the parties. The Society had instituted numerous applications and counter-applications, and had opposed several applications instituted by Dialstat.

Dialstat had obtained four costs orders against the Society (arising from two decided cases in Dialstat’s favour, a postponement in 2018 relating to an environmental authorisation review, and an unsuccessful application for leave to appeal). The outstanding amount stated in the judgment was R359 703.34, and these costs orders remained unsatisfied. Although the Society had obtained a costs order against Dialstat at least once, Dialstat paid that costs order into the trust account of the Society’s attorneys when payment was due.

The factual basis advanced by Dialstat for the declaratory relief was that execution on its costs orders was effectively impossible because the Society had no discernible assets. Dialstat alleged, and the court treated as established on the papers, that the Society did not take contributions from members, did not hold funds of its own, and that its capacity to litigate was dependent on contributions from private and undisclosed sources. It was also not in dispute that the Society had not held annual general meetings every year despite a constitutional requirement to do so.

Further, it was common cause that the Society did not open a bank account in its own name from 2013 until an annual general meeting held on 20 May 2023, where members unanimously agreed that a bank account be opened. Despite constitutional provisions requiring annual financial reporting and the deposit of income into a bank account, no annual financial statements had been produced. The Society had also not acquired or held property in its own name, notwithstanding constitutional provisions that contemplated it could do so.

The judgment recorded that the only identified members of the Society, as far as Dialstat could ascertain, were the second to twelfth respondents (being those who attended the Society’s 2023 AGM), and that membership information was peculiarly within the Society’s knowledge. The court noted that Dialstat had requested updated membership lists but these were not furnished in a complete or consistent manner. The court also recorded that, in 2023 AGM minutes dealing with funding, a proposal for members to pay an annual contribution was repudiated by certain members, and it was resolved by majority that member contributions would not be obligatory and would be voluntary.

To the extent that any matters were characterised as disputed, the court ultimately held that the application could be decided on the common-cause history, the Society’s constitution, and the disclosed documents evidencing how the Society conducted its affairs over time, and that there were no disputes of fact requiring referral to oral evidence.

3. Legal Issues

The central legal question was whether the Society qualified as a universitas personarum under the common law, and thus whether it had locus standi to litigate in its own name. This required the court to determine whether the Society had the essential characteristics of a juristic person, and whether the Society’s formation and subsequent conduct supported (or undermined) the inference that it was a genuine universitas rather than a litigation vehicle.

Although the requirements for a universitas personarum are formulated as legal criteria, the dispute required an assessment that was partly legal (the correct test and principles), partly factual (what the constitution provided; what the Society and its members in fact did over time), and substantially an application of law to fact (whether the Society’s constitution and conduct demonstrated the requisite intention and existence of a true universitas).

The court was also required to determine ancillary procedural defences raised by the respondents. These included whether the court lacked jurisdiction (and whether the application was brought for an improper motive), whether the issue was barred by res judicata, whether there had been non-joinder of necessary parties, and whether the application was defeated by disputes of fact.

4. Court’s Reasoning

The court approached the matter by first setting out the common-law principles governing when an association has juristic personality as a universitas personarum. Relying on authority, it stated that an association need not be created by statute or registered to qualify as a juristic person, and may acquire juristic personality under the common law. The test is generally established by examining the association’s constitution or rules, with key characteristics being perpetual succession and the capacity to own property separate from its members.

The court further recognised that, depending on the clarity of the constitution, the inquiry may extend beyond the text to include consideration of the association’s objects, activities, and the intention of the founding members as reflected in subsequent conduct. In this regard, the court treated the Society’s long operational history as a relevant lens through which to evaluate whether the Society’s asserted juristic personality was genuine and consistently maintained.

Applying these principles to the Society, the court held that the Society’s written constitution, on its face, contained provisions reflecting both perpetual succession and capacity to own property. In particular, the constitution framed the Society’s purpose as protecting environmental integrity for “current and future generations,” which the court treated as implying a future-oriented, enduring existence. The constitution also expressly contemplated that the Society could sue and be sued, acquire and hold property, and open a bank account in its own name.

However, the court accepted Dialstat’s contention that the inquiry did not end with the presence of these textual requirements on “day one.” It considered that the present case was distinguishable from instances where locus standi is challenged immediately upon formation, because the Society had been in existence for many years, during which its conduct could be evaluated against its constitutional scheme. The court therefore considered not only whether the constitutional requirements were drafted, but also whether the Society’s affairs had been conducted in a manner consistent with those requirements and with the genuine existence of a juristic entity.

On the evidence placed before it, the court emphasised the Society’s persistent failure to comply with key operational provisions of its constitution, particularly regarding finances and governance. The court attached significance to the fact that the Society did not open a bank account for roughly a decade after its formation, did not produce annual financial statements as required, did not hold annual general meetings as constitutionally required, and did not acquire or hold assets or property in its own name. It also viewed as significant the recorded position of members at the 2023 AGM rejecting obligatory member contributions, which the court treated as demonstrating an unwillingness to fund the Society in a way consistent with assuming the ordinary consequences of litigation.

The court also referred to the Society’s invocation of the Fund-Raising Act 107 of 1978 in its constitution and observed that, in the circumstances, there were no audited financial statements available, despite the statutory references in the judgment to public inspection and auditing provisions. The court’s broader point was that the Society’s constitutional and contemplated financial architecture was not implemented in practice.

In considering the relevance of deviations from a voluntary association’s constitution, the court referred to authority cautioning against an overly technical approach that magnifies minor deviations. Nonetheless, it treated the Society’s failures as systemic rather than minor, and concluded that the Society’s “life” appeared to exist only when needed for litigation. The court reasoned that, while it is permissible for groups to form associations to address matters of common concern (including through litigation), the separate juristic personality of a universitas personarum should not be used to enable litigation without the ordinary risks of adverse costs. The persistent inability to satisfy costs orders and the absence of assets were treated as supporting the inference that the Society functioned as a vehicle allowing individuals to litigate without consequence.

On that holistic assessment, the court concluded that the Society was established and used for no purpose other than to litigate against Dialstat without fear of legal consequence, and that this amounted to an abuse of the concept of a separate juristic personality. It therefore held that the Society was not a true universitas personarum and should not litigate in its own name.

The court then addressed the respondents’ further defences. On jurisdiction, the court held that jurisdiction is determined when proceedings are instituted and that Dialstat, as the initiating party, chose a court of competent jurisdiction. Since Dialstat had sought relief against the twelfth respondent when instituting proceedings, the subsequent election not to pursue relief against him did not divest the court of jurisdiction. The jurisdiction point therefore failed.

On res judicata, the respondents argued that a 2015 High Court judgment had already resolved the Society’s status as a universitas personarum. The court relied on a later judgment of the Mpumalanga High Court (handed down on 10 March 2023) which held that the 2015 conclusion had been reached without evidence that the issue had been properly assessed in 2013 or 2015 and that the question had not finally been decided. The court endorsed that reasoning and held that res judicata did not apply.

On non-joinder of alleged members, the court held that the Society could not rely on non-joinder where it had failed to provide a complete membership list despite being requested to do so. On alleged non-joinder of state entities, the court accepted Dialstat’s contention that those entities were functus officio and, in any event, held that the party alleging non-joinder must lay a basis for it; the respondents had not done so, and their complaint was characterised as overly broad.

On disputes of fact, the court held there were none material to the determination, and that the matter could be decided on the common-cause history and documentary record.

Finally, on costs, the court considered that a postponement on 14 October 2025 had been occasioned by the late appointment of new attorneys for certain respondents and the raising of jurisdiction for the first time shortly before the hearing. It held that the relevant respondents should bear those costs. Since Dialstat succeeded on the merits, costs were awarded against the respondents in accordance with the result, and the court considered that the importance, nature, and complexity justified taxation of counsel’s fees on scale C.

5. Outcome and Relief

The court granted declaratory relief holding that the Save the Maize Belt Society is not a universitas personarum, and that it may not litigate in its own name.

The court ordered that the second, seventh, eighth, ninth, and tenth respondents pay the costs of the postponement on 14 October 2025, jointly and severally, on a party-and-party scale including counsel’s costs on scale C.

The court further ordered that the second to eleventh respondents pay Dialstat’s costs of the application, jointly and severally, on a party-and-party scale including counsel’s costs on scale C.

Cases Cited

Airports Company of South Africa v Big Five Duty-Free (Pty) Ltd and Others 2019 (5) SA 1 (CC). Ex Parte Johannesburg Congregation of the Apostolic Church 1968 (3) SA 377 (W). Ex-TRTC United Workers Front and Others v Premier, Eastern Cape Province 2010 (2) SA 114 (ECB). Commissioner for Inland Revenue v Witwatersrand Association of Racing Clubs 1960 (3) SA 291 (A). Interim Ward S19 Council v Premier, Western Cape Province, and Others 1998 (3) SA 1056 (C). Molotlegi and Another v President of Bophuthatswana and Others 1989 (3) SA 119 (BG). Ahmadiyya Anjuman Ishaati-Islam Lahore (South Africa) and Another v Muslim Judicial Council (Cape) and Others 1983 (4) SA 855 (C). Rail Commuter Action Group and Others v Transnet Ltd t/a Metrorail and Others (No 1) 2003 (5) SA 518 (C). De Lange v Presiding Bishop, Methodist Church of Southern Africa and Another 2015 (1) SA 106 (SCA). Motaung v Mukubela and Another NNO 1975 (1) SA 610 (O). Standard Bank of South Africa Ltd and Others v Mpongo and Others 2021 (6) SA 403 (SCA). Nedbank Limited v Gqirana NO 2019 JDR 1379 (ECG). Ascendis Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and Others 2020 (1) SA 327 (CC). Save the Maize Belt Society v MEC for Agriculture, Rural Development, Land and Environmental Affairs, Mpumalanga Province and Others 2023 JDR 1756 (MM). Democratic Alliance v Brummer 2021 (6) SA 144 (WCC). Hyprop Investments Ltd and Others v NSC Carriers and Forwarding CC and Others 2014 (5) SA 406 (SCA). Gordon v Department of Health 2008 (6) SA 522 (SCA).

Legislation Cited

Mineral and Petroleum Resources Development Act 28 of 2002 (section 22). Fund-Raising Act 107 of 1978 (section 12).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, despite the Society’s constitution containing provisions that, on their face, reflected the classic requirements of a universitas personarum, the Society’s subsequent conduct over many years—particularly its failure to operate as an asset-holding and financially accountable association and its use as a litigation vehicle—demonstrated that it was not a true universitas personarum.

The court held that the Society therefore lacked the capacity to litigate in its own name. It further held that the procedural defences of lack of jurisdiction, res judicata, non-joinder, and disputes of fact were without merit on the record before it. Costs were awarded against specified respondents, including reserved costs for the postponement, with counsel’s costs taxed on scale C.

LEGAL PRINCIPLES

A voluntary association may acquire juristic personality under the common law and need not be created by statute or registered under legislation to qualify as a juristic person. The core characteristics for recognition as a universitas personarum are perpetual succession and the capacity to own property independent of its members, ordinarily determined primarily from the association’s constitution or rules.

Where the constitution is unclear or equivocal, the intention of the founding members may be assessed with reference to the association’s nature, objects, activities, and subsequent conduct. Even where the constitution contains provisions consistent with a universitas personarum, the court may consider whether the association’s conduct over time aligns with the constitutional scheme and the genuine maintenance of a separate juristic existence.

Jurisdiction is determined at the time proceedings are instituted, and subsequent amendments or changes in the relief pursued do not necessarily divest a court of jurisdiction it possessed when the litigation commenced.

A party raising non-joinder bears the obligation to lay a proper factual and legal basis for the contention. A litigant cannot readily rely on non-joinder premised on information peculiarly within its own knowledge where it has failed to disclose that information when called upon to do so.

Costs generally follow the result, and the court may award reserved costs for a postponement against the party or parties whose conduct occasioned the postponement, and may, where appropriate, direct that counsel’s fees be taxed on a higher scale where the matter warrants it.

Dialstat Trading 115 (Pty) Ltd v Save the Maize Belt Society and Others (098869/2023) [2026] ZAGPPHC 12 (30 January 2026)