IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION - MAHIKENG
TEBOGO DESIREE KUKAMA
BETHUEL GAOTINGWE RAMOKOKA
EUGENE LETLAPE
REGINALD NATHANIEL LE TAPE
GOMOTSEGANG MOSES MOKOKA
LEBOGANG KHUMO LETLAPE
and
THEBAPHALANEBARAMOKOKA
PROPERTY ASSOCIATION
THE MINISTER OF RURAL
DEVELOPMENT AND LAND REFORM
THE DIRECTOR- GENERAL FOR THE
DEPARTMENT OF RURAL DEVELOPMENT
AND LAND REFORM
Coram: Reddy J
CASE NO: M634/22
Not Reportable
FIRST APPLICANT
SECOND APPLICANT
THIRD APPLICANT
FOURTH APPLICANT
FIFTH APPLICANT
SIXTH APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
Delivered: Judgment was handed down electronica lly by circulation to the
parties ' legal representatives by email and released to SAFLII. The date and time
for handing down of the judgment are deemed to be 14h00 on 5 January 2026.
Summary: The application of the -Promotion of Administrat ive Justice Act 3 of
2000 - what constitutes administrative action within the context of the Communal
Property Association Act 28 of 1996.
ORDER
1. The First Respondent alternatively the Third Respondent , is directed to
provide the following information and documents (where such documents exist)
to the Applicants within a period of ninety (90) calendar days of the date of this
order:
1.1 the names and where readily available, the identity numbers and the
addresses of the members of the Committee of the First Respondent elected at the
Annual General Meeting purportedly held on 1 October 2022, indicating what
office (if any) is held by each of them.
1.2 the names and where readily available the identity numbers and the
addresses of all new members of the First Respondent whose names do not appear
on the most recent membership list previously furnished by the First Respondent
to the Third Respondent.
1.3 copies of:
1.3 .1. all the First Respondent 's annual balance sheets and financial statements
from the date of registration of the First Respondent to date, save for the annual
financial statements for the financial years ending 2017, 2019, 2020 and 2021.
1.3.2. the minutes of all general meetings of the members of the First Respondent
which have been held since the date of registration of the First Respondent to
date, including the minutes of the last Annual General Meeting purportedly held
on 1 October 2022;
1.3.3 any resolutions taken by the Committee of the First Respondent at the
meetings referred to in prayer 1.3 .2 including any resolutions taken at the last
Annual General Meeting purportedly held on 1 October 2022;
1.4. a list of all meetings in land or rights to land involving the First Respondent
since the date of registration of the First Respondent, which created, altered or
extinguished any right to land held by the First Respondent or any of its members;
1.5. a list of all the members of the First Respondent;
1.6. the extent of the land in hectares registered in the name of the First
Respondent;
2. The First Respondent is directed to provide the following information and
documents (where such documents exist) to the Applicants within a period of
ninety (90) calendar days, of the date of this order:
2.1 The Memorandum oflncorporation ;
2.2 The records in respect of the company's directors;
2.3. The reports to any and all annual meetings;
2.4. The notices and minutes of any and all annual meetings;
2.5. The securities register ; and
2.6. The annual financial statements from 2003 to date; ofBatlase Resources (Pty)
Ltd, NIMA Resources (Pty) Ltd, Matlotlo Resources (Pty) Ltd and Ikhutseng.
3. The Second Respondent , alternatively the Third Respondent , is directed to
provide the following information and documents (where such documents exist)
to the Applicants within a period of ninety (90) calendar days of the date of this
order:
3.1 a copy of all the Annual Reports submitted by the Third Respondent to the
Second Respondent since the date of registration of the First Respondent to date,
save for the annual reports for 2017 and 2022.
3.2. the constitutions of:
3.2.1 the Baphalane Communal Association with registration number 06/0943/A;
3.2.2 the Baphalane Ba Sesobe Communal Property Association with registration
number 03/0563/A.
4. The election of the members of the Committee of the First Respondent at the
Annua l General Meeting purportedly held on 1 October 2022 is declared
unlawful.
5. The First respondent is directed to hold a new election of the Committee of the
First Respondent within a reasonable time;
6. The Third Respondent is authorised to administer the First Respondent pending
the elections referred to in prayer 5;
7. Pending the election referred to in prayer 5, the members of the Committee of
the First Respondent are prohibited from:
7 .1 convening any annual general or other meetings ;
7.2. carrying out and implicating any resolutions taken at any meetings previously
held;
7.3. signing and executing any documents in connection with the transfer of
immovable property or other property or rights or cessions and/or consents to
cancellation of bonds, securities, leases, servitudes and other deeds and/or all
other powers of attorney relating thereto and generally all documents of any kind
or nature whatsoever requisite from time to time in connection with the
acquisition or realisation of the assets of the First Respondent ;
7.4. employing and paying out of the First Respondent funds to any person to do
any act or acts, including the receipt of money;
7.5. expending such portion of the money belonging to the First Respondent;
7.6. lending moneys or leaving moneys on deposit with any company in which
the First Respondent is a shareholder or any other company which is a subsidiary
company of such company or on such terms and condition as may be determined;
7.7. borrowing money for the First Respondent; and
7.8. paying renumeration or allowances to any member of the Committee;
8. The First Respondent shall pay the costs of the application on Scale B of Rule
67A.
JUDGMENT
Reddy J
Introduction
[l] In this opposed motion the applicants in an amended notice of motion seek
the following relief:
' I. The First Respondent alternatively the Third Respondent, are directed to provide the
fo llowing informati on and docum ents (where such docume nts exist) to th e App licants
w ithin a reasonab le time determine d by this Court:
1. 1 the names and where readily avai lable, the identity numbers and the addresses of the
members of the Committ ee of the F irst R espo ndent elected at the Annual General
Meeting purported ly held on I October 2022, indicat ing what office (if any) is held by
each of them.
1.2. the names and where readily availab le the identity numb ers and the addresse s of all
new members of the First Respondent whose names do not appear on the most recent
membership list previously furnished by the First Respo ndent;
1.3. copies of:
1.3. l . all the First Respondent's annual balance sheets and financial statement s from the
date of registration of the First Respondent to date, save for the annual financial
statements for the financial years ending 2017, 20 I 9, 2020 and 2021.
1.3.2. the minute s of all general meetings of the members of the First Respondent which
have been held since the date of registration of the First Respondent to date, including
the minutes of the last Annual General Meeting purportedly held on I October 2022;
1.3.3 any resolutions taken by the Comm ittee of the First Respondent at the meetings
referred to in prayer 1.3.2 including any resolutions taken at the last Annual Genera l
Meeting purportedly held on 1 October 2022; and
I .4. a list of all meeting s in land or rights to land involving the First Respondent since
the date of registration of the First Respondent, which created, altered or extinguished
any right to land held by the First Respondent or any of its member s;
1.5. a list of all the member s of the First Respondent;
1.6. the extent of the land in hectares registered in the name of the First Respondent;
2. The First Respondent is directed to provide the follow ing information and documents
(where such document s exist) to the Applicants within a reasonable time determined by
this Court
2.1 The Memorandum of Incorporation ;
2.2 The records in respect of the company 's directors;
2.3. The reports to any and all annual meeting s;
2.4. The notices and minute s of any and all annual meetings;
2.5. The securities register; and
2.6. The annual financial statements from 2003 to date; of Batlase Resources (Pty) Ltd,
NIMA Resources (Pty) Ltd, Matlot lo Reso urces (Pty) Ltd and lkhut seng.
3. The Second Respondent, alternativ ely the Third Respondent , is directed to provide the
following information and documents (where such documents exist) to the Applicant s
within a reasonable time as determined by this Court.
3.1 a copy of all the Annua l Reports submitted by the Third Respondent to the Second
Respondent since the date of registration of the F irst Respondent to date, save for the
annual reports for 2017 and 2022.
3.2. the constitution s of:
3.2. 1 the Bapha lane Communal Associat ion with registra tion number 06/0943/A;
3.2.2 the Baphalane Ba Sesobe Communal Property Assoc iation with registration number
03/0563/A;
4. The e lection of the members of the Committee of the First Respondent at the Annual
Genera l Meeting purport edly held on I October 2022 is declared unlawful.
5. The First respondent is directed to hold a new election of the Comm ittee of the First
Respondent within a reasonab le time;
6. The Third Respondent is authorised to administer the First Respondent pending t he
election referred to in prayer 5;
7. Pending the election referred to in prayer 5, the membe rs of the Committee of the First
Respondent are prohibited from:
7.1 convening any ann ual general or other meetings;
7.2. carrying out and implicating any resolutions taken at any meetings previous ly held;
7.3. signing and executing any documents in connection with the transfer of immovable
propert y or other propert y or rights or cessions and/or consents to cancellati on of bonds,
securities , leases , servitudes and other deeds and/or all other powers of attorney relating
thereto and generally all documents of any kind or nature whatsoeve r requisite from time
to time in connection with the acquisition or r ealisation of the assets of the First
Respondent ;
7.4. employing and paying out of the First Respondent funds to any person to do any act
or acts, including the rece ipt of money;
7.5. expending such portion of the money belonging to the First Respondent;
7.6. lending moneys or leav ing moneys on depos it with any company in which the First
Respondent is a shareholde r or any other company w hich i s a subs idiary company of
such company or on such terms and condition as may be determined;
7. 7. borrowing money for the First Respondent; and
7.8. paying renumer ation or allowances to any member of the Committee;
8. The Respondents are directed to pay the costs of the application; and
9. Further and alternative relief.'
The parties
[2] The first to sixth applicants, Tebogo Desiree Kukama (Kukama); Bethuel
Gaotingwe Ramokoka (Ramokoka); Eugene Letlape (Eugene Letlape);
Reginald Nathaniel Letlape (Reginald Letlape); Gomotsegang Moses
Mokoka (Mokoka); and Lebogang K.humo Letlape (Lebogang Letlape), are
all members of the first respondent. They are at times referred to as the
applicants in this judgment.
[3) The first respondent is the Baphalane Ba Ramokoka Communal Property
Association , (Baphalane Ba Ramokoka) a communal property association
incorporated in terms of the provisions of the Communal Property
Association Act1 (the CPAA). The second respondent is the Minister of
Rural Development and Land Reform, tasked with the implementation of
the CPAA (the Minister). The third respondent is the Director- General for
the Department of Rural Development and Land Reform (the Director
General). Baphalane Ba Ramokoka opposes the relief.
Background
[4] The promulgation of the CPAA was aimed at redressing discriminatory
practices of the past relating to the dispossession of land. Subsumed within
the architecture of CPAA are provisions which allow for communal property
associations to be established to acquire, hold and manage property on
behalf of members of a community for their benefit. Baphalane Ba
Ramokoka is governed by a Constitution. The land which is registered in the
name of the Baphalane Ba Ramokoka is fully described in its Constitution,
which is substantial in size. This land of the Baphalane Ba Ramokoka is
predominantly utilized for inter alia lodging, telecommunications , mining
and farming.
The version of the applicants '
[5] Baphalane Ba Ramokoka has concluded numerous lease agreements with
several commercial tenants. The applicants appositely assert that due to
maleficence and corruption , the almost seven hundred and seventy-eight
1 Act 28 of 1996
members and the beneficiaries of the Baphalane Ba Ramokoka have not
benefited from the commercia l investments. Moreover, in almost two
decades of existence, the applicants claim Baphalane Ba Ramokoka has not
produced an audited annual financial statement. The applicants affirm that it
stands to reason that the extent of the exclusion of the members and
beneficiaries from accrued benefits is unacceptable.
[6] On l October 2022, Baphalane Ba Ramokoka held an Annual General
Meeting at Ramokok Wonkwang Preschool (the AGM). The applicants
declare that aside from a late change in the initial venue and a late start to
the meeting, the details of the election appeared to have been circulated to a
closed group of community members.
[7] In sum the holding of the meeting contravened a few of the clauses of the
Baphalane Ba Ramokoka Constitution. Amongst others, the meeting itself
did not quorate. Resultantly, the meeting was unlawful. On 7 November
2022, the applicants brought this to the attention of the Minister and Director
General. The Director General was requested to disseminate documents and
information to aerate the true state of affairs of Baphalane Ba Ramokoka.
The failure of the Minister and the Director General to respond triggered the
relief now sought.
The version of the Baphalane Ba Ramokoka
[8] Baphalane Ba Ramokoka contends that the applicants are all members. That
being so, the applicants are clothed with the right as enshrined in the
Baphalane Ba Ramokoka Constitution to access documents, minutes,
reports or any information pertaining to any business of Baphalane Ba
Ramokoka. Surprisingly, Bapha lane Ba Ramokoka asserts that the
applicants have failed to make a request for any information. As an indicator
of a constitutionally acquiescent association, Baphalane Ba Ramokoka
tendered the information and invited the applicants ' legal representative to
peruse same at the attorneys of the Baphalane Ba Ramokoka and to make
copies if so inclined.
[9] Baphalane Ba Ramokoka claims that the relief sought in prayers 3-5 is
incompetent. This is predicated on a disguised review that the applicants
attempt to introduce notwithstanding a failure to have adhered to the
Uniform Rules of Court, the Promotion of Administrative Justice
Act2,(PAJA) or the common law. Moreover, an internal remedy available to
the applicants was not exhausted .3 Importantly, Baphalane Ba Ramokoka
contends that this application is not one for the administrat ion, liquidation
and/or deregistration of Baphalane Ba Ramokoka and to have approached
the court in this fashion was simply misplaced and bad in law.
[10] Baphalane Ba Ramokoka posits that prayer 6 is a prohibitory interdict in
form, for which relief the applicants have failed to meet the peremptory
requirements for this relief.
[11] Insofar as the AGM is concerned, Baphalane Ba Ramokoka avers that due
and lawful process was followed. By virtue of the fact that the Independent
Elections Facilitators of Southern Africa were appointed by the Department
of Agriculture , Land Reform and Rural Development to conduct the election
process attached credibility to same. To this end, the applicants could have
followed due process by compelling the Minister and the Director General
to file a report oftheAGM.
2 53 of2002
3 s I O of the Communal Property Association Act 28 of 1996.
[12] On 12 April 2022, Baphalane Ba Ramokoka held a meeting at Bakubung
Lodge, Pilanesberg Game Reserve. The purpose of the meeting was to
mediate between the various splinter groups of Baphalane Ba Ramokoka
and agree on an action plan. A working team was formed. Several meetings
followed in preparation for the AGM.
[13] Baphalabe Ba Ramokoka aver that the AGM that was duly convened at
Ramokok Wongkwang Preschool , which was tasked with inter alia, the
election of a new executive committee, which was to include a new
chairperson. Kukama was in attendance and contested for the position of
treasurer. Overseeing the meeting were officials of the Department of
Agriculture Land Reform and Rural Development from Limpopo and North
West Provinces. Furthermore, Independent Election Facilitators were in
attendance. Both bodies were seized with, ensuring due compliance and a
lawful process.
[14] Kukama was unsuccessful for the position of treasurer which she had
contested for securing a mere eleven (11) votes. Ramokoka did not
participate in the AGM and was not cited on the ballot paper. Eugene
Latlape was present and contested for the position of deputy chairperson but
only secured eight votes. He was unsuccessful. Reginald Letlape was in
attendance and was on the preliminary voters ' roll. Mokoka was not at the
AGM and did not contest for any position. Lebogang Letlape attended the
AGM and was on the preliminary voters' roll.
[15] Baphalane Ba Ramokoka advance that due process was followed with the
executive being duly elected. Notwithstanding the best efforts to secure the
minutes of the AGM, this proved to be unsuccessful. Baphalane Ba
Ramokoka states that video footage is available in confirmation of due
process. Baphalane Ba Ramokoka contends that in circumstances where the
executive was duly elected the basis for the entire application and the basis
for the launching of same is ill-founded and misplaced. Importantly,
Baphalane Ba Ramokoka claims that the purported bona fide dispute of fact
as regards the process followed at the AGM is one to be investigated by the
Director General in terms of the provisions of sl0. 4 It follows that motion
proceedings would be an inappropriate vehicle to resolve this dispute.
In reply
[16] In reply the applicants declare that the invitation extended by Baphalane Ba
Ramokoka to present documentation in their possession was accepted. To
this end, Baphalane Ba Ramokoka, presented (i) the chairperson's report
dated 12 February 2017 and 10 September 2022, (ii) the audited annual
financial statements of Baphalane Ba Ramokoka for 2017, 2019, 2020 and
2021, and (iii) the extent of the land in, hectares in the name of Baphalane
Ba Ramokoka.
[17] Baphalane Ba Ramokoka by process of lateral reasoning the applicants aver
are not in possession of the following documents, alternatively same does
not exist:
(i) A list of all committee member s elected since the inception of Baphalane Ba
Ramokoka .
(ii) Any balance sheets.
(iii) The annual financial statement s for a period of ten years.
(iv) A list of member s of Baphalane Ba Ramokoka.
• Communal Property Association Act 28 of 1996.
(v) The minute s of any committee and AGM meetings.
(vi) A list of reso lutions taken by the committ ee and;
(vii) A list of all land dealings affect ing the rights of the members.
[18] The applicants' underscore that it is imperative for Baphalane Ba Ramokoka
to have a record keeping system. Should same exist and not be in Baphalane
Ba Ramokoka 's possession this too would lead to the ineluctable conclusion
that Bapha lane Ba Ramokoka is mismanaged which would constitute
grounds for liquidation.
[19] Critically, the applicants alleged that Baphalane Ba Ramokoka had failed to
rebut the conclusion that the election of the executive committee
contravened the Constitution. Resultantly it was unlawful. Significantly, the
applicants ' reason that any reliance on a report from the Independent
Elections Facilitators of Southern Africa is misdirected. This the applicants
continue is founded on the failure by Baphalane Ba Ramokoka to have
attached same.
[20] Notably, the applicants refute any suggestion that the documentation that
forms the substance of this applicat ion was not previous ly requested. Several
written and verbal requests for same were made. On both scores the
requested information was not made available. It follows; the applicants
continue that any tender of these documents or that same is readily available
is simply fallacious given Baphalane Ba Ramokoka 's failure to attach most
of these documents to th e answering affidavit or making it available for
inspection. Given the conduct of Baphalane Ba Ramokoka, the applicants
persist with the narrative that the documentation is not in possession of
Baphalane Ba Ramokoka or it simply does not exist.
[21] Remarkably, the applicants state that Baphalane Ba Ramokoka as a
communa l property association that oversees assets in hundreds of millions
of rands ought to have a record of its annual balance sheets and financial
statements since its inception. The applicants claim that Baphalane Ba
Ramokoka attempts to attribute the absence of these crucial financial
documents to historical inept record keeping is disingenuous. This the
applicants aver illustrates the depth of the disorganization and stands as one
of several reasons justifying Bapha lane Ba Ramokoka 's liquidation. Also,
the applicants identify Mr. Peter Bosielo as being a member of the executive
committee since its inception therefore he could be classified as a member
with institutional knowledge .
[22] The applicants accentuate that the relief sought is not moot as Baphalane Ba
Ramokoka must be directed to declare under oath that the provided
documentation is the only documentation in their possession and whether
the documentation provided does not exist. In so far as the contention that
the applicants have approached this Court under a veiled review, the
applicants claim that the election of the executive committee does not
constitute administrative action within the provisions of PAJA5 nor a
decision for the purposes of a common law review.
[23] The applicants suggest that the contention by Baphalane Ba Ramokoka that
the applicants ought to have employed the remedy within the provisions of
s 106 before launching this application is misdirected. The applicants state
that s 10 empowered the Director General to appoint a conciliator to assist
an association to resolve a dispute. The provisions of s 10 were employed
with no retort from the Director General forthcoming. In as much as s 10
5 3 of2000 .
6 Comm unal Property Associat ion Act 28 of 1996.
was employed the use of the word 'may ' within the context of this provision
unequivocally indicates that the Director General may appoint a conciliator.
[24] As part of the applicant's case two supplementary affidavits were admitted
by this Court.7 The first of which sought amongst others to justify the
amended relief. The second broached the recent amendment of the CPAA
which empowers the newly created Registrar of the CPA Office with the
oversight duties that the Director General was previously clothed with.
Further this affidavit sought to expound on why there had been a non-joinder
of this party. It would be apposite to dispense with the issue of non-joinder
at this juncture. The amended legislation provides that the Director General
may appoint a competent officer until the post is formally filled. The
applicants have delineated the difficulties in attempting to contact the
Registrar of CPA or any competent officer during the transitional period of
the new legislation being fully operational. Of note, the Director General
has elected not to intervene nor to notify this Court of specific compliance
with the amended legislation. It follows axiomatically, that the Director
General remains the appropriate party to represent the state's oversight
functions. Properly understood the non-joinder of the new Registrar of CPA
during the transitional phase does not denude this application where the
Minister and Director General who exercise ultimate authority in these
circumstances have already been cited. It probably explains why Baphalane
Ba Ramokoka did not proceed with this preliminary with any gusto. The
failure to join the newly established Registrar of CPA is not fatal.
[25] Afore, proceeding to address the substantive relief it would be apposite to
deal with the points in limine raised by the Baphalane Ba Ramokoka.
1 De Kock v Du Plessis and Others 2024 JDR 3115 SCA.
Lack of jurisdiction
[26] The law pertaining to the jurisdiction of the court is well established and is
simply this. A judgment granted in instances where the court lacks
jurisdiction , is a nullity and of no force or effect. This was recognized in our
early jurisprudence and has transcended into our constitutional epoch8. The
authorities are quite clear that where legal proceedings are initiated against
a party, and he is not cited to appear, they are null and void; and upon proof
of invalidity the decision may be disregarded, in the same way as a decision
given without jurisdiction , without the necessity of a formal order setting it
aside.9
[27] In terms ofs 21 (1) of the Superior Courts Act10, a division of the High
Court has jurisdiction over 'all persons residing or being in, and in relation
to all causes arising ... within its area of jurisdiction. ' In terms of s 21 (2), a
division also has jurisdiction over any person residing or being outside its
area of jurisdiction who is joined as a party to any cause in relation to which
such court has jurisdiction or who in terms of a third party notice becomes a
party to such a cause, if the said person resides or is within the area of
jurisdiction of any other Division.
[28] Thus, this Court is endowed with jurisdiction in relation to (i) all persons
residing or being within its area of jurisdiction ; and (ii) all causes
arising within its jurisdiction; and (iii) over any person residing or
8 Willis v Cauvin 1904.
9 Travelex Limited v Maloney and Another (823/ 15) ZASCA I 28 27 September 2016, The
Master of the High Court (North Gauteng High Court, Pretoria) v Mota/a NO &
Others,(172/ 11) [201l)ZASCA2 38( 1 December20l1) .
10 10 of 2013.
being outside its area of jurisdiction when such person is joined as a party to
any cause in relation to which the court has jurisdiction if such person resides
or is within the area of jurisdiction of any other division.
[29] Applying these foundational principle s that relate to juri sdiction , it follows
that this Court is clothed with the necessary jurisdict ion. Consequently, this
point in limine is meritless and falls to be dismissed.
Is this a veiled review?
(30] As a point of departure is the consideration whether a particular matter falls
within the four comers of administrative action. Pivotal to this determination
two legal resources are key, namely, s 33 of the Constitution 11 and the
definition in sl of PAJA.
[31] In Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd
and Others (Treatment Action Campaign and Another as Amici Curiae)12 the
apex court found as follows:
' Where , as here, the Const itution requires Parliament to enact legislation t o give
effect t o the constitutional rights guaranteed in the Constitut ion, and Parliament
enacts such legislation, it will ordinarily be impermissible for a litigant to found a
cause of action direct ly on the Const itution without alleging that the statute in
question i s deficient in the remedies that it provides. Legislation enacted by
Parliament to give effect to a constitutional right ought not to be ignored.'
[32] Section 1 of PAJA, defines a decision as:
11 108 of 1996.
12 2006 (2) SA 3 11 (CC).
' decision' means any decision of an administrative nature made, proposed to
be made, or required to be made, as the case may be, under an empowering
provision, including a decision relating to-
(a) making , suspending, revoking or refusing to make an orde r, award or
determination ;
(b) giving , suspend ing, revoking or refusing to give a certificate, direction ,
approva l, consent or permission ;
(c) issuing, suspe nding, revoking or refusing to issue a licence, authority or other
instrument;
(d) imposing a condition or restriction;
(e) making a declaration , demand or requirement ;
(f) retaining , or refusing to deliver up, an art icle; or
(g) doing or refusing to do any other act or thing of an administrative nature, and a
reference to a failure to take a decision must be construed accord ingly.'
[33] In interpreting the relevant clauses of PAJA, I am guided by the approach
followed by the Constitutional Court in University of Johannesburg v
Auckland Park Theological Seminary and Another 13:
'The Supreme Court of Appeal famously set out the position in the followi ng
widely quoted statement in its decision in Endumeni:
"Interpretation is the process of attributi ng meaning to the words used in a
document , be it legislation , some other statutory instrument , or contract , having
regard to the context provided by reading the particular provision or provisions in
the light of the document as a who le and the circumsta nces attendant upon its
coming into existence. Whatever the nature of the document , consideration must
13 University of Johannesburg v Auckland Park Theological Seminary and Anoth er[20) [2021]
ZACC 13; 202 1 (8) BCLR 807 (CC); 2021 (6) SA I (CC) paras 64 and 65. Also see Natal
Joint Municipal Pension Fund v Endumeni Municipality 2012 ZASCA 13; 20 12 ( 4) SA
593 (SCA) ; [2012] 2 All SA 262 (SCA) (Endumeni) para 18.
be given to the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears; the apparent purpose to which
it is directed and the material known to those respons ible for its production. Where
more than one meaning is possible each possibility must be weighed in the light of
all these factors. The process is objective , not subject ive. A sensible meaning is to
be preferred to one that leads to insensible or unbusine sslike results or undermines
the appare nt purpose of the document. Judges must be alert to, and guard against,
the temptation to substitute what they regard as reasonable, sensible or businessl ike
for the words actually used. To do so in regard to a statute or statutory instrument
is to cross the divide between interpretation and legis lation; in a contractual context
it is to make a contract for the parties other than the one they in fact made. The
"inevitable point of departure is the language of the provision itse lf", read in context
and having regard to the purpose of the provision and the background to the
preparation and production of the document. "'
(34] PAJA oversees the review of administrative action, which is defined as
a decision taken by an organ of state or a natural/ juristic person when
exercising a public power or performing a public function. By extension
the central question is whether the election of a committee within a
communal association constitutes the exercise of a public power. It is
relevant to point out, that CPAs are created by statute and monitored.
CPAs are communal entities governed by their own Constitution . This
Constitut ion is a founding document which forms a contract between the
association and its members. Therefore, it is significant to highlight that
when a community holds an AGM it is participating in a process of self
governance sanctioned by its Constitution. It is essential to underscore
that a failure to comply with the intent of the Constitution of a communa l
that a failure to comply with the intent of the Constitution of a communa l
entity is a breach of its Constitution rather than a failure of
administrative justice. Accordingly, the applicants are correct m
contending that the election process does not strictly constitute
administrative action for the purposes of PAJA.
[35] Even if the election were considered to have a public gloss due to the
state's oversight role or the scale of assets involved the applicants would
not be barred from seeking this relief. As a failsafe our law has
established the principle of legality for the review of any exercise of
power that is not encompassed under the definition of administrative
action in PAJA. Under this legal premise, all power must be exercised
lawfully, rationally and in accordance with enabling law. The relief
sought by the applicants is founded on judicial precedent for challenging
the irregular proceedings of voluntary or statutory associations. By
invoking the failure ofBapha lane Ba Ramokoka as a failure to cohere to
its own Constitution the applicants in my view of properly approached
this, Court. In sum, the purported relief is not encapsulated in PAJA nor
a decision for the purposes of a common law review. Therefore , this
point in limine must be dismissed.
Failure to previously request information within PAJA
[35] On 6 November 2018, a member of Baphalane Ba Ramokoka submitted a
written request for several documents which included audited financial
statements, the minutes of members meetings and all resolutions taken from
2013 to 2018. In 2022 two of the applicants requested financial statements
and any leases concluded by Baphalane Ba Ramokoka. For whatever reason
Baphalane Ba Ramokoka elected not to proffer a response to the request to
disclose the information requested. To contend that the applicants have
failed to previously request the information is devoid of fact. It follows that
an application of legal prescripts to an incorrect factual background does not
serve Baphalane Ba Ramokoka. This point in limine suffers the same fate. It
therefore falls to be dismissed.
The internal remedy: s 10 of the CPAA
[36] To properly consider the availability of s I O as an internal remedy, its
construction must be assessed. The use of the word may in the language of
s l O is a clear indicator that the appointment of a conciliator is subject to the
exercise of a discretion by the Director General. The text of s 10 provides a
facilitated alternative mediation platform which does not on the face of it
oust the High Court's jurisdiction. It stands to reason that for an internal
remedy to be at the disposal of a litigating party that remedy must be
effective, available and adequate. 14 The applicants in my view are
irreproachable as they have attempted to use the mechanism as provided for
ins 10. The Minister and the Director General adopted a non-possum stance.
This in tum resulted in the s 10 as an internal remedy impotent. It follows
that this point in limine is meritless and falls to be dismissed.
Failure to comply the requirements of a prohibitory interdict
[37] It would be more convenient that this point to be encapsulated within the
main relief.
The main relief
[38] Decisive to the relief sought by the applicants is the finding regarding the
AGM that was held on 1 October 2022. Several procedural safeguards for
the constitution of a lawful meeting were absent. Undoubtedly this impacts
14 Basson v Hugo and Others (968/16) [2018] ZASCA l ; [2018] 1 All SA 621 (SCA); 2018
(3) SA 46 (SCA) (17 January 2018) paragraph 24.
on resolutions and decisions taken. I do not propose to delineate every
irregularity. Conjunctively this led to the contravent ion of the critical
clauses of the Baphalane Ba Ramokoka Constitution. First, no notice was
delivered to the members by hand or post, secondly, the notice of the AGM
was not delivered fourteen (14) days prior to the AGM, thirdly, no agenda
was provided , and fourthly the members were not provided with written
confirmation that the persons who were nominated for the election into
office were in fact confirmed and verified as such by an independent organ
assigned by the Department of Agriculture Land and Reform Development.
[39] It is now well established since National Director of Public Prosecutions v
Zuma15:
' Mot ion proceedings, unless concerned with interim relief, are all about the resolu
tion of legal issues based on comm on cause facts. Unless the circumstances are
special they cannot be used to resolve factua l issues b ecause they are not designed
to determine probabilitie s.'
[40] The most recent offering on the topic is Wightman tla JW Construction v
Head/our (Pty) Ltd and another 16 where certain guidelines to be employed
in determining whether there exists a real, genuine and bona fide dispute of
fact were vocalized. The SCA held that:
' [1 2] R ecog nising that the truth almost always lies beyond mere linguistic
determination the courts have said that an applicant who seeks final relief on
motion must, in the event of conflict, accept the version set up by his oppo nent
unless the latte r's allegat ions are, in the opinion of the court, not such as to raise a
real, genuine or bona fide dispute of fact or are so far-fetched or clearl y untenabl e
15 [2009] 2 All SA 243 (SCA) para 26
16 2008 (3) SA 371 (SCA)
that the court is justified in rejecting them merely on the papers: Plascon Evans
Paints Ltdv Van RiebeeckPaints (Pty) Ltd [1984) ZASCA 5 1; 1984 (3) SA623 (A)
at 634E - 635C. ..
[ 13) A rea l, genuine and bona fide dispute of fact can exist only where the court is
satisfied that the party who purport s to raise the dispute has in his affidavit seriously
and unambi guously addressed the fact said to be disputed. There will of course be
instances where a bare denial meets the requirement because there is no other way
open to the disputing party and nothing more can therefore be expected of him. But
even that may not be sufficient if the fact averred lies purely within the knowledge
of the averring party and no basis is laid for disputing the veracity or accuracy of
the averment. When the facts averred are such that the disputing party must
necessaril y possess knowledg e of them and be able to provid e an answer (or
countervailing evidence) if they be not true or acc urate but, instead of doing so,
rests his case on a bare or ambiguous denial the court will genera lly have difficulty
in finding that the test is satisfied. I say "genera lly" because factua l avennents
seldom stand apart from a broader matrix of circumstances all of which needs to
be borne in mind when arriving at a deci sion.'
[ 41] Given these material irregularities any suggestion that a dispute of fact is
extant is simply misplaced. To make a finding that this application must be
referred to oral evidence is inconsistent with trite legal principles.
[ 42] After a careful consideration of the requirements that underpin the relief
sought by the applicants, it is my view that a proper case has been made.
[43] There is no basis to deviate from the general principle that costs follow the
result.
Order
[44] In the premises the following order is made.
1. The First Respondent alternatively the Third Respondent, is directed
to provide the following information and documents (where such
documents exist) to the Applicants within a period of ninety (90) calendar
days of the date of this order:
1.1 the names and where readily available, the identity numbers and the
addresses of the members of the Committee of the First Respondent elected
at the Annual General Meeting purportedly held on 1 October 2022,
indicating what office (if any) is held by each of them.
1.2 the names and where readily available the identity numbers and the
addresses of all new members of the First Respondent whose names do not
appear on the most recent membership list previously furnished by the First
Respondent to the Third Respondent.
1.3 copies of:
1.3.1. all the First Respondent 's annual balance sheets and financial
statements from the date of registration of the First Respondent to date,
save for the annual financial statements for the financial years ending 2017,
2019, 2020 and 2021.
1.3.2. the minutes of all general meetings of the members of the First
Respondent which have been held since the date of registration of the First
Respondent to date, including the minutes of the last Annual General
Meeting purportedly held on 1 October 2022;
1.3.3 any resolutions taken by the Committee of the First Respondent at
the meetings referred to in prayer 1.3.2 including any resolutions taken at
the last Annual General Meeting purportedly held on 1 October 2022;
1.4. a list of all meetings in land or rights to land involving the First
Respondent since the date of registration of the First Respondent, which
created, altered or extinguished any right to land held by the First
Respondent or any of its members;
1.5. a list of all the members of the First Respondent;
1.6. the extent of the land in hectares registered in the name of the First
Respondent ;
2. The First Respondent is directed to provide the following information
and documents (where such documents exist) to the Applicants within a
period of ninety (90) calendar days, of the date of this order:
2.1 The Memorandum of Incorporation ;
2.2 The records in respect of the company's directors ;
2.3. The reports to any and all annual meetings ;
2.4. The notices and minutes of any and all annual meetings ;
2.5. The securities register; and
2.6. The annual financial statements from 2003 to date; of Batlase
Resources (Pty) Ltd, NIMA Resources (Pty) Ltd, Matlotlo Resources (Pty)
Ltd and Ikhutseng .
3. The Second Respondent , alternatively the Third Respondent, is directed
to provide the following information and documents (where such
documents exist) to the Applicants within a period of ninety (90) calendar
days of the date of this order:
3 .1 a copy of all the Annual Reports submitted by the Third Respondent to
the Second Respondent since the date of registration of the First
Respondent to date, save for the annual reports for 2017 and 2022.
3.2. the constitutions of:
3.2.1 the Baphalane Communal Association with registration number
06/0943/A;
3.2.2 the Baphalane Ba Sesobe Communal Property Association with
registration number 03/0563/ A.
4. The election of the members of the Committee of the First Respondent
at the Annual General Meeting purportedly held on 1 October 2022 is
declared unlawful.
5. The First respondent is directed to hold a new election of the Committee
of the First Respondent within a reasonable time;
6. The Third Respondent is authorised to administer the First Respondent
pending the elections referred to in prayer 5;
7. Pending the election referred to in prayer 5, the members of the
Committee of the First Respondent are prohibited from:
7 .1 convening any annual general or other meetings;
7.2. carrying out and implicating any resolutions taken at any meetings
previously held;
7.3. signing and executing any documents in connection with the transfer
of immovable property or other property or rights or cessions and/or
consents to cancellation of bonds, securities, leases, servitudes and other
deeds and/or all other powers of attorney relating thereto and generally all
documents of any kind or nature whatsoever requisite from time to time in
connection with the acquisition or realisation of the assets of the First
Respondent ;
7.4. employing and paying out of the First Respondent funds to any person
to do any act or acts, including the receipt of money;
7.5. expending such portion of the money belonging to the First
Respondent;
7.6. lending moneys or leaving moneys on deposit with any company in
which the First Respondent is a shareholder or any other company which
is a subsidiary company of such company or on such terms and condition
as may be determined;
7.7. borrowing money for the First Respondent; and
7.8. paying renumeration or allowances to any member of the Committee;
8. The First Respondent shall pay the costs of the application on Scale B
of Rule 67A.
/
I
J GE OF THE HIGH COURT OF SOUTHAFR lCA
NORTH WEST DIVISION. MAIIIKENG
Appearances
For the applicants:
Attorneys for the applicants:
For the first respondent:
Attorney of the first respondent:
For the second respondent:
For the third respondent:
Date of hearing:
Date ofjudgment:
Advocate C Louis
Padayachee Attorneys
Advocate A J Schoeman
Strydom & Bredenkamp
No Appearance
No Appearance
21 November 2024
5 January 2026