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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH

                                                                             Case no. 3922/2015

In the matter between

MZWAMADODA GROOTBOOM                                       1st Applicant

ANDILE GROOTBOOM                                                       2^nd Applicant

NOMKHANGO DLOTHO                                                    3^rd Applicant

SPIWO MKHELE                                                                  4^th Applicant

NOMAYEZA NKOSINKULU                                               5^th Applicant

MONWABISI MLAMBO                                                      6^th Applicant

NONCEBA RHAMNCWANA                                               7^th Applicant

JACOB BONISILE CEKISANI                                            8^th Applicant

versus

ARCHIE MKELE                                                                  1^st Respondent

LUYANDA MATIWANE                                                      2^nd Respondent

PHAZI ALLA                                                                        3^rd Respondent

DEON PRINCE                                                                      4^th Respondent

JOYCE SENSIE                                                                     5^th Respondent

RONA SKOSANA                                                                 6^th Respondent

LUYANDA JAM-JAM                                                          7^th Respondent

YOLISWA GROOTBOOM                                                   8^th Respondent

STEKANA SKOSANA                                                           9^th Respondent

MINISTER OF RURAL DEVELOPMENT

& LAND AFFAIRS                                                                10^th Respondent

MEC FOR AGRICULTURE – EASTERN CAPE                 11^th Respondent

CW MALAN INCORPORATED ATTORNEYS                  12^th Respondent

ISIBANE COMMUNAL PROPERTY ASSOCIATION       13^th Respondent

JUDGMENT

HARTLE J

[1] In this matter – which the 1^st to 8^th applicants (“the applicants”) describe as a “dispute between two executives”, they seek a declaratory order declaring them to be the properly elected members of the executive committee of the Isibane Communal Property Association, the 13^th respondent herein (“Isibane”).[1]They seek a further order declaring the 1^st to 8^th respondents[2], constituting the former members of the executive committee of Isibane, to have been lawfully removed and substituted by their most recent election as members.  They also seek ancillary relief flowing from the declaratory order which will place them in a position to effectively and practically manage the affairs of the association.

[2] The 1^st respondent, in his own capacity as a member of Isibane and vice chairperson of the executive committee of Isibane, but also on behalf of the 2^nd to the 9^th respondents, and purportedly on behalf of Isibane itself, opposes the application on two bases essentially.  He claims firstly that the applicants lack locus standi in these proceedings because, except for the 2^nd and 4^th applicants, they are not members of Isibane and therefore not eligible for office and, secondly, that the purported process followed by the applicants in “removing” the respondents and appointing themselves as the executive committee members of Isibane was unlawful. 

[3] At the outset it should be stated that the 2^nd to 9^th respondents have not filed confirmatory affidavits.  A person elected to office under the constitution of an organization has a personal right to the office and if someone wrongfully usurps the office he is entitled to sue as an individual.  Even where a number of duly elected officers in combination have the right to conduct the affairs of an association then, if their offices are wrongfully usurped by other individuals, the rights which are infringed are personal rights and legal proceedings are properly taken by the persons concerned as individuals.[3]  Each of the 2^nd to 9^th respondents ought to have confirmed their willingness and desire to assert and protect their individual rights of office both individually and or as a group, but have not put up such confirmation.  Further, insofar as the supposed opposition on behalf of the 13^th respondent goes, no resolution has been put up by Isibane authorizing the 1^st respondent’s involvement on this basis notwithstanding the applicants’ objection to his purported acting on the association’s behalf.  It is trite that an association can only act through the agency of a duly authorized representative.  I therefore conclude that the opposition is not supported by any of the respondents except the 1^st respondent himself.

[4] The 10^th and 11^th respondents, included as interested parties, are the national Minister of Rural Development and Land Reform and the provincial MEC of Agriculture respectively.  They are cited in their capacities as executive heads nominally responsible for those officials in their respective departments who have, according to the applicants, assisted the parties in resolving the dispute between them and the 1^st to 9^threspondents culminating in the applicants’ election as executive members of Isibane. 

[5] The complaints in the founding affidavit made against the substituted executive committee leading up to the intervention of the 10^th and 11^th respondent’s officials include a failure on the part of the erstwhile committee to account to and include members in the “goings on” of Isibane; and to convene an annual general meeting since the election of the interim executive committee appointed contemporaneously with the registration of Isibane.

[6] The 12^th respondent is a firm of attorneys in Jeffreys Bay who hold in trust certain funds constituting rental income collected on behalf of Isibane which the applicants pray be paid over to their attorneys so that they, as the executive body, can have the financial wherewithal to carry on the business of Isibane[4].

[7] There is a dispute of fact on the papers concerning the lead up to the impasse which has made this application necessary and lots of finger pointing as to who is to blame for the failure of Isibane’s precursor to the currently constituted entity (known as the Illima Communal Property Association), but these are not issues which it is necessary for this court to decide.[5]  The narrow question in my view is whether the applicants were properly elected as members of the executive committee of Isibane in substantial compliance with its constitution at the purported annual general meeting on 17 November 2012.

[8] Isibane was registered as a communal property association in terms of section 8(3) of the Communal Property Associations Act[6] (“the CPAA”), evidently as a sequel to a land restitution claim of property in Hankey described as “the remaining extent of Farm Boschbok Koppen, Portion 1, Farm No. 182, situated at Boschbok Koppen” on 2 May 2002 under registration number CPA/02/0425/A[7].  Isibane is the registered owner of this property including three other farms held for the use and benefit of designated members of the Boschbok Koppen community which, it appears from official minutes of Isibane coincidentally filed in the present litigation, is land additional to the claim acquired for an extended community including former labourers and the tenants of the previous owners of the three farms ostensibly on one or other of the bases referred to in section 2 (1) of the CPAA.[8]

[9] The CPAA establishes communal property associations for the purpose of holding land restored to communities through the land restitution process.  The act was passed to give effect to the constitutional right of communities to restitution of land dispossessed in terms of discriminatory laws or practices of the apartheid regime.[9]  Whereas the restitution of Land Rights Act[10]regulates the process of claiming restitution of land in the exercise of the constitutional right of individuals in communities to reclaim their lost land, the tandem CPAA creates the mechanisms in terms of which communities may possess land restored under the restitution process.  The act embodies the entitlements (the rights owned by a community) and protection thereof in a new juristic person created in terms of this law.

[10] The CPAA derives its force from the Constitution to which it is inextricably linked. Section 25 (7) of the Constitution recognizes and protects rights in land which go beyond registered ownership.[11]  Thus the CPAA creates a desired legal instrument (upon registration it is established as a juristic person with perpetual succession regardless of changes in its membership)[12] with the necessary safeguards in place through which previously disadvantaged members of the community may acquire and possess land that belongs indivisibly to the entire community.  One of the ways in which this recognition and protection is afforded to members of traditional communities is through a written constitution by which the association is governed, endorsed by the Department of Rural Development and Land Reform (“the Department”) which is responsible for the effective implementation of the CPAA.  Upon registration of an association the constitution becomes a legally binding agreement between the association and its members and is deemed to be a matter of public knowledge.[13] It is to that constitution that the court must look in order to determine whether the “removal” of the 1^st to the 9^th respondents and the substitution of the applicants in their place by the ensuing election were lawful.

[11] The CPAA aims to ensure that through approved governing vehicles, the relevant body/entity is managed in a manner which is non-discriminatory, equitable and democratic and is accountable to its members.  The further objective of the act is to ensure that members of such institutions are protected against the abuse of power by other members.[14]

[12] The registration of permanent associations is approved by the Director-General of Rural Development and Land Reform in terms of the provisions of section 8 (2) of the CPAA which sets forth stringent requirements for eligibility, one of them being that the constitution adopted by the association complies with the principles set out in section 9.

[13] In Bakgatla-Ba-Kgafela Communal Property Association v Bakgatla-Ba-Kgafela Tribal Authority and Others,[15] the Constitutional Court helpfully tabulated the five principles that underpin the democratic nature of associations established in terms of the CPAA as follows:

“[25] … The first principle is that an association’s constitution must embrace fair and inclusive decision-making processes that afford members the opportunity to participate in the association’s decisions.  These include decisions to dispose of or encumber the association’s property, and termination of membership of any person on reasonable grounds, following a fair hearing.

[26] The second principle is equality.  An association’s constitution must proscribe discrimination of any kind, irrespective of whether it is direct or indirect, in particular discrimination based on “race, gender, sex, ethnicity or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language”.  Notably, this equality clause does not leave room for fair discrimination.  The only exception recognised is differentiation based on different classes of membership that existed before the Act was enacted.  But even then, all members in a single class must enjoy equal rights.

[27] The third principle is that the constitution must create democratic processes that govern the manner in which the association’s meetings are to be conducted.  The constitution must confer upon all members the rights: to receive adequate notice of all general meetings; to attend, speak and vote at the meetings; to receive copies of minutes and records of decisions taken at those meetings; and to inspect and make copies of financial statements of the association.

[28] The fourth principle entails fair access to the property of the association.  The constitution must require the association to obtain consent of the majority of the members before it can sell or encumber property.  Further, the constitution must also require the association to manage property for the benefit of all members in a participatory and non-discriminatory manner.  Members of the association may only be excluded from access to its property in accordance with the procedures set out in its constitution.

[29] The last principle relates to accountability and transparency.  The constitution must enable members to hold the association accountable by imposing fiduciary responsibilities on members of the executive committee in relation to the association and its general members.  The constitution should require committees to exercise their powers in the best interest of all members, without any advantage to themselves.  Effective financial management must form part of the constitution’s requirements, which must include opening a bank account in the name of the association into which all its cash should be deposited.  The constitution must also require that the association’s financial records be subjected to an independent verification annually.”[16]

[14] These principles safeguard the interest of members of traditional communities and empower them to participate meaningfully in the management of communal property by way of “participatory democracy” in the affairs of traditional communities.  Through the desired legal instruments and minimum standards of governance “members of the community are afforded an equal voice in matters of the association and the property it holds on behalf of the community.”[17]

[15]  Essential to the proper functioning of such an association, is the appointment of a managing group of persons with executive powers entrusted to them in accordance with its constitution.  “Committee” is defined in the CPAA[18] as “a committee elected by the members of an association to manage the affairs of that association”. Axiomatic to the effective management of a communal property association is that the appointment of its leaders carries the endorsement of its members following an election that is constitutionally compliant.

[16] Further integral to the successful implementation of the CPAA and the protection of the interests of members of the community through an association established for such a purpose is the advisory and oversight function which the Department plays in ensuring that previously disadvantaged members of traditional communities’ rights of access to communal land are meaningfully realized and respected.

[17] The CPAA imposes various duties on the Director-General of the Department.  In the main the act requires the incumbent and those who he authorizes to ensure that its objects are realized.  Firstly he is charged with the responsibility of furnishing all traditional communities with information about the act which may take the form of pamphlets and other documents prepared and distributed by the Department in various communities.  The documents must be in a language spoken in the particular community for them to be widely accessible.[19]

[18] Apart from making decisions concerning the eligibility of associations for registration under the act, whether provisionally or permanently subject to the strict criteria set forth in the CPAA, the Department offers assistance at the inception stage in the preparation of the association’s draft constitution by appointing skilled persons or organizations acceptable to the community and with relevant knowledge or expertise to provide the necessary assistance and support to such community as well as suggesting amendments to proposed constitutions in order to ensure compliance with the provisions of section 9 of the CPAA. The Director-General does so by the designation of any officer in the Department or other suitable person to provide the community with such assistance as may be required and available for the preparation of the draft constitution.  Oversight also comes in the form of an authorized officer of the department attending the association’s meetings prescribed for the adoption of its constitution, by taking minutes of the proceedings, witnessing the adoption of the constitution and compiling a report setting out his or her observations in relations to certain key factors which aim at ensuring a fair and democratic process. (It should be noted however that no similar involvement is prescribed by the Department post registration, although in practice – and this is evident from random minutes co incidentally filed in the present application, officers appear to keep an active presence at meetings.)

[19] The Department (through the designated “Registration Officer”[20]) also has a record keeping function and ensures transparency by providing members of the public with the information contained in the register and with a copy of the constitution of any registered association or similar entity. 

[20] Once registration has been effected, the Director-General assumes other responsibilities in respect of a registered association.[21]

[21] The Director-General or Registration Officer issues certain prescribed certificates,[22] which appear to constitute prima facie proof of the correctness of their contents.[23] These are no doubt necessary for objective clarity and confirmation of information collated concerning the associations or other entities registered under the act.

[22] The Director-General may inspect the affairs of the association to determine whether it continues to comply with the CPAA and its constitution.[24]  In performing this function the Director-General may demand to be furnished with any relevant information.[25]The duty to provide information by an association is addressed in paragraph 6 of the regulations promulgated under the CPAA, read together with section 11 (1), which provides that associations are obliged, at prescribed times, to furnish prescribed documents and information to the Director-General in order to enable him “to monitor compliance with the provisions of the relevant constitution and (the CPAA)”.[26] Paragraph 6 (1) thereof provides in this regard, albeit not with any specificity as to content, that:

“A communal body must on request provide the Director-General and the Registration Officer respectively with all the information and documents to which each of them is entitled, or which each is required to possess in terms of the Act and these regulations, including the information and documents that are reasonably necessary for the purposes of the Act and Regulations.”[27]

[23] Paragraph 8 of the regulations is particular relevant to an aspect raised by the parties which I deal with below and I digress to highlight these provisions which provide that the following categories of information fall to be furnished to the Director-General in respect of a registered association, evidently at the key moments indicated in the text below:-

“8(a)    the names and where readily available the identity numbers, and the addresses of the members of the body's governing body elected at the Annual General Meeting indicating what office (if any) is held by each of them;[28]

(b)        the names and where readily available the identity numbers and the addresses of all new members whose names do not appear on the most recent membership list previously furnished to the Director-General;[29]

(c)        copies of—

(i)         the body's annual balance sheet or financial statements which have been independently verified as approved by the Director-General;[30] and

(ii)        the minutes of all general meetings of the members of the body which were held since the registration of the body or the previous Annual General Meeting, including the minutes of the last Annual General Meeting;[31]

(d)       a list of all dealings in land or rights to land involving the body during the period since the registration of the body or the previous Annual General Meeting, which created, altered or extinguished any right to land held by the body itself or by any of its members;

(e)        any other information and documents required by the Director-General which he/she requires to enable him/her to carry out his/her duties in terms of the Act and these regulations.”

[24] In carrying out inspections the Director-General may peruse and make copies of any document relating to the affairs of an association and may also subpoena any person with relevant information.[32]

[25] Perhaps the most important role which the Department has in keeping oversight of an association’s affairs is acting when any dispute arises within the body.  The relevant provisions of the CPAA are set out below and demonstrate the level of involvement on its part under the leadership of the Director-General. Firstly, conciliation by skilled and credible officials or organizations is offered as a tool to assist community members with vested interests in an association’s affairs to resolve disputes.  Section 10  provides in this regard that:

“(10)

(1)…

(2)        The Director-General may, of his or her own accord or at the request of a community, an association, a provisional association or any member thereof, appoint a conciliator acceptable to the parties to a dispute to assist in resolving any issues for the purpose of the preparation or adoption of a constitution or to resolve a dispute between an association or provisional association and its members or between members or committee members: Provided that if the parties to the dispute do not reach agreement on the person to be appointed, the Director-General may appoint a person who has adequate experience or knowledge in conciliating community disputes.

(3)       A conciliator appointed in terms of subsection (2) shall attempt to resolve the dispute

(a)        by mediating the dispute;

(b)        by fact-finding relevant to the resolution of the dispute;

(c)        by making a recommendation to the parties to the dispute;

(d)       in any other manner that he or she considers appropriate.

(4)        The conciliator shall report to the Director-General and the parties on the result of his or her conciliation and make recommendations in relation thereto.

(5)        All discussions taking place and all disclosures and submissions made during the conciliation process shall be privileged, unless the parties agree to the contrary.

(6)        …

(7)        …

(8)        …”

[26] Secondly, the Director-General may himself take certain steps to resolve disputes, aiming to do so in accordance with the provisions of the relevant association’s constitution.  Sections 11 (6) and (7) provide as follows in this regard:

“(6)      If a dispute arises within an association or provisional association the Director-General may, of his or her own accord, or at the request of a member of the association or provisional association-

(a)        undertake an enquiry into the activities of the association or provisional association, in which event he or she shall take reasonable steps to ensure that interested parties are made aware of the enquiry and of its outcome;

(b)        advise the association or provisional association and the members of their respective rights and obligations;

(c)        make a conciliator contemplated in section 10(2) available to assist in the resolution of the dispute;

(d)       require the members to conduct an election for a new committee, if the integrity, impartiality or effectiveness of the committee or any member of the committee is in question;

(e)        initiate proceedings contemplated in section 13; or take such other reasonable measures as he or she considers appropriate in the circumstances.

(7)        When acting in terms of subsection (6) the Director-General shall be guided by the aim of resolving the dispute in accordance with the provisions of the constitution of the association.”

[27] The Director-General may also initiate proceedings to have an association placed under his administration or place it under liquidation where, because of insolvency or maladministration or for any other cause the association is unable to pay its debts or meet its obligations, or when it would otherwise be just and equitable in the circumstances to seek such relief.[33]It would appear that the Director-General might do so under circumstances where members are unable to resolve disputes among themselves or through the Department’s agency, which drag on interminably, and result in the association not being managed effectively.[34]

[28] Finally, the Director-General may help any member of an association to challenge the validity of transactions which do not comply with section 12 of the CPAA.

[29] It is evident from the foregoing that the role of the Director-General and of the department is not a supine one but requires constant monitoring and particular oversight and involvement on its part to ensure the meaningful protection of the interests of members in respect of the exercise of their right of access to communal property and participatory democracy in the governing structure.[35] This is a Constitutional imperative in my view borne out by the preamble to the CPAA and the various provisions in the act requiring the Department’s supervision over a particularly vulnerable member group, who let alone having experience of registered ownership of immovable property with its attendant obligations of any kind, are required to hold and manage their property interests through a very complex legal entity by the application of wieldy rules contained in the entity’s constitution and in the provisions of the CPAA.

[30] The question though is where the fine line between the Department’s oversight and the envisaged and desired autonomy of a communal association (which through the rigorous process of registration one assumes has established a fully-fledged democratic institution especially able and obliged to serve the needs of its vulnerable member group) begins and ends. As I will indicate below the Department’s officials concerned in this instance perhaps lost sight of the restrictions on their capacity to involve themselves in the affairs of Isibane on an acceptable basis and, instead of empowering the association, may have unwittingly disabled it quite substantially given the manner in which the simmering tension between the “two executives” has dragged on for years now[36].

[31] The applicants rely for the relief they seek on two principal submissions. The first is that there was substantial compliance with the provisions of Isibane’s constitution in convening the annual general meeting at which they were elected. In stating this conclusion the applicants aver that: 1) proper notice of the meeting was given; 2) the majority of the families (who are members of Isibane) were represented at the meeting. (Only the 1^st to the 9^th respondents, who knew of the meeting, are alleged not to have attended it and consciously so); 3) the meeting was properly convened by Ms Goci, an official of the Department, who was entitled to do so, and to dissolve the prior executive, since she was appointed by the Director-General  in terms of section 10(2) of the CPAA to conciliate the dispute that had its impetus in the 1^st to the 9^th respondents’ neglect or refusal to convene “a meeting of (Isibane) since the date of their election”; and 4) that all decisions taken were by a majority of members present at the meeting.

[32] The 1^st respondent refutes all of these grounds.  He denies that proper notice was given of the meeting as required by Isibane’s constitution.  He rejects the notion that the 10^th respondent resolved any disputes between the parties culminating in the supposed election of the applicants as members of the executive and in any event contends that Ms Goci was not authorized nor empowered to either convene the meeting or to dissolve the executive committee of which he was the vice chairperson. Despite not having being present at the impugned meeting he also denies that the meeting was properly constituted, quorum wise. He added another string to his bow by asserting that, except for the 2^nd and 4^th applicants, the other applicants are further not eligible for appointment to office because they are not members of Isibane.

[33] The second submission on which the applicants rely for the relief sought by them (which I will deal with first) is that since the Registration Officer of the 10^th respondent “registered” the changes in the executive committee of Isibane to reflect that the executive committee of Isibane is comprised of the applicants with effect from 2 May 2014, this makes it so, or at least constitutes the necessary proof of the substitution of the applicants in the place of the 1^st to the 9^th respondents as the executive committee.  Mr Nobotana, who appeared on behalf of the applicants, contended that the issue of the letter by the Registration Officer dated 9 May 2014 constituted a valid administrative decision with legal effect which stands until it is set aside by order of court.[37]

[34] At some stage the 1^st to the 9^th respondents were evidently advised to seek a declarator concerning the confusing impact of the so called registration of the purported change of executive committee members of Isibane, but by the launch of the present application the first respondent was firmly of the view that the act of registering the changes, inasmuch as it purported to constitute an administrative decision with the consequences contended for by the applicant, was ultra vires the CPAA. In the 1^st respondent’s view the recordal by the Registration Officer of a change of executive committee members was therefore to be regarded as pro non scripto.

[35]  As indicated above, the regulations framed under the CPAA enjoin the communal body annually and within two months of the date of its annual general meeting to furnish the Director-General with the names and identity numbers and addresses of the members of the body’s governing body elected at the annual general meeting indicating what office is held by each of them. It also enjoins the Director-General to receive this information evidently firstly as a record, secondly in the interests of transparency so that a public record is available which promotes accountability, and thirdly because it is necessary in my view for him to maintain an oversight function to ensure that the objects of the CPAA are being achieved.  For this reason I do not agree that the recordal is pro non scripto because it serves the necessary functions aforementioned. Indeed the 10^th and 11^th respondents would be failing the members of Isibane by not calling for or noting in the registry’s  files any changes to an executive committee following an association’s annual general meeting within the prescribed time period. Why it did so in this instance some sixteen to eighteen months after the supposed annual general meeting, however, and without flagging with Isibane that its constitution in actual fact required a review of the management body in November each year is quite besides the fact that the changes are necessary to be recorded in order to give effect to the objects of the CPAA.

[36] As for the legal effect of the Registration Officer’s letter dated 9 May 2014 it constitutes nothing more in my opinion than an acknowledgement that he has updated the Department’s records at the behest of the applicants who asked him to note the purported change of executive committee members.[38]  I am not in agreement that what the letter amounts to is an administrative decision which is required to be set aside or that it clothes the purported elections with any legitimacy. The validity or not of the appointment of the executive committee flows from the prescripts of the association’s constitution and must be determined with reference to these requirements.  Inasmuch as the letter may constitute a “certificate” (which is not pertinently called for under the provisions of either the CPAA or the regulations) it would at most provide prima facie evidence as to its contents.  In this instance however the 1^st respondent has denied the validity of the election of the applicants both from a substantive and procedural point of view.  The refusal by the 1^st to the 9^th respondents to verify the impugned election was also apparent to the applicants long before the Registration Officer recorded the changes in the executive committee which were advised to him by the applicants.

[37] It is apposite at this stage to have regard to some of the provisions of Isibane’s constitution which bear on the election of members to serve on the executive committee and the procedures for meetings etc.:

“6.       Committee[39]

6.1       The Committee, which is responsible for the implementation of the provisions of this Constitution subject to the aims and objectives thereof, undertakes the management of the affairs of the CPA subject to the instructions of the Members taken at any General Meeting as are consistent with the aims of the constitution.

6.2       An Interim Committee, comprising of those persons whose names and particulars are contained in Schedule “B” to this constitution, is hereby appointed to serve in this capacity until the holding of the first Annual General meeting after registration of this CPA with the Director-General of the Department of Land Affairs, provided that such Annual General meeting shall be held within 1 (one) year from date of registration.

6.3       At the Annual General Meeting persons are elected to form the Committee.  The committee will consist of as many members as the Annual General Meeting deems fit.  The appointment of Committee Members will be for a period of 1 (one) year ending at the following annual General Meeting and this procedure is to be repeated yearly thereafter.[40]  Members will ensure that Committee Members are elected democratically

6.4       The appointment of the Committee Members shall be done with due consideration of the following principles:

6.4.1    Committee Members serving at any given time shall be persons who are individual members of household Members of the CPA.[41]

6.4.2    No two or more members of the same household may hold office at the same time

6.4.3    All future appointments of Committee Members shall be done with due consideration of the principles of representation as stated in the Act.

6.5       If at any time during the period of office of the committee, a vacancy should arise, whether in consequence of death, resignation, disqualification, removal, or for any other reason, the remaining Committee members shall co-opt a Member of the CPA as a Committee Member to fill the resultant vacancy for the balance of the period of office of the committee then serving, with due regard to the representational criteria, and the needs and exigencies of the committee.

6.6       The Committee’s power of co-option as stated in Clause 6(v) shall be limited in so far as not more than 2 (two) Committee Members may be co-opted by the remaining Committee Members as aforesaid.  In the event of the need arising for the co-option of more than 2 (two) Committee Members the remaining committee shall as soon as possible, convene a Special General Meeting for the purpose of electing and appointing such additional Committee members as may be necessary for the balance of the term of office of the committee then serving.

6.7       Retiring Committee Members shall be eligible for re-election.  No members may serve on the committee for more than two consecutive times.

6.8       ….(Not applicable)

6.9       The office of a Committee Member shall be vacated if she or he:

…..(Not applicable)

6.10     Notwithstanding anything to the contrary herein before contained:

6.10.1. A duly convened general meeting of members shall have the right to remove, substitute or appoint additional committee members, as it may deem appropriate.

6.10.2 No removal of a Committee Member shall be of force or effect, unless adopted at a Special General Meeting called on not less than 21 (twenty one) days’ prior written notice, which shall state the intention to propose a Resolution for the removal of a Committee Member.

6.10.3  Provided that the rules of natural justice shall be adhered to when a Committee Member is removed; viz.:

…..(Not applicable)

6.11     Each Committee Member shall have the right to appoint any Member of the association, in writing, as her or his proxy to act during her or his absence.

6.12     Provided that when a Committee Member is absent for more than three months she or he will be removed as Committee Member.

6.13     ….(Not applicable)

6.14     ….(Not applicable)

7.         Committee Powers

7.1       ….

7.2       ….

8.         Committee Meetings

8.1       The Committee may arrange its meetings and execute its duties as it deems fit, subject to the following provisions:

8.1.1    The Chairperson, Secretary, Treasurer and Disciplinary Officer are elected by the general membership and hold office for the term of office of the Committee.

8.1.2    The Committee will meet monthly, but is obliged to convene a committee meeting on request of at least two (2) Members of the Committee.  The notice of such a meeting must be in writing and must include an agenda and be dispatched at least seven (7) days before the meeting unless, in special circumstances, an urgent meeting is required, in which case notice shall be given in a manner prescribed by the Chairperson (or acting Chairperson when relevant).

8.2       The quorum required at committee meetings shall be 50% plus 1 member of Committee Members serving at any given time.

8.3       Each Committee Member will have one vote with all resolutions being taken by majority vote.

8.4       In the event of equality in votes the Chairperson will have a final and decisive vote.

8.5       Minutes are kept of all committee meetings and are to be signed by the Chairperson.

8.6       Minutes of all committee meetings shall be made available to any Member upon request.

8.7       A written resolution signed by the necessary quorum of Committee Members shall have the same validity as a decision taken by the Committee at a duly consisted committee meeting.

8.8       Members are entitled to attend committee meetings and the Chairperson may allow a Member to address the Committee at such a meeting.

8.9       A Committee Member who has a conflict of interest in a matter before the Committee shall declare her or his interest and recuse herself or himself from participating in that decision.

9-13     ……..

14.       General Meetings

14.1     General Meetings of members are convened monthly, or whenever a need arises, in order to deal with the affairs of the CPA, including but not restricted to the appointment, removal and replacement of Committee Members, and guidance and commanding of the committee, and the handling of such other matters that require the consent of Members at a General Meeting as prescribed by the Act[42] or this Constitution; with due regard that:

14.1.1  An Annual General Meeting shall be conducted within 21 (twenty-one) days prior notice to all Members whose names appear on the Membership list at any given time where reasonably possible.

14.1.2  A General Meeting shall be conducted within 7 (seven) days prior notice to all Members whose names appear on the Membership list at any given time where reasonably possible.  Shorter notice may in exceptional circumstances be given subject to the approval of the Chairperson of the Committee.

15.       Annual General Meetings

15.1     The first Annual General Meeting shall be conducted within one year reckoned from the date of registration of the CPA, and the subsequent Annual General Meetings will be held in November of each year.[43]  The agenda of the Annual General Meeting shall include the following:

15.1.1  The submission and approval of the written annual report by the committee.

15.1.2  The Financial Year report.

15.1.3  The election of the Committee members.

15.1.4  Such other matters deemed appropriate.

15.2     ….

15.3     ….

16.       Procedures at General Meetings16.1     Monthly general meetings shall be called by the Secretary.

16.2     The General Meeting may at any time be convened on request of any of the following:

16.2.1  The Chairperson or Acting Chairperson of the committee

16.2.2  Any two Committee members.

16.2.3  At least 10% of the members as reflected in the membership register at any given time.

16.3     The notice of the General Meetings shall be served in a manner as the committee may deem appropriate from time to time, provided that if the Secretary of the committee, after having been duly requested to call a meeting, omits to give notice that a meeting will be convened, the requester/s has the right to give notice of such meetings as mentioned above.

16.4     The Chairperson, or in her or his absence, the Acting Chairperson of the committee shall act as Chairperson at the General Meeting.

16.5     Except where a special resolution is required all decisions that are taken at a General Meeting shall be decided by simple majority vote of those present and entitled to vote.

16.6     In the event of an inequality in votes the Chairperson will have a casting vote.

16.7     A quorum for any decision to be taken at a General Meeting unless stated otherwise is:

16.7.1  Fifty percent of the Members as reflected in the Membership register at any given time.

16.8     In the event of a quorum not being present the meeting shall be adjourned for 7 (seven) days, during this time written notice shall be given to all the members in writing where reasonably possible.  At the latter meeting the members present shall be deemed to constitute a quorum, provided that where a defined majority is required in terms of the Act a valid decision may not be taken unless such majority is obtained.

17.       Notice of General Meetings

17.1     Notice of General meetings shall be given to all members of the CPA whose names are reflected on the membership list at any given time.

17.2     Notice of General Meetings will be served at the last known address of the member to some person apparently not less than 16 years of age and apparently residing there; the bona fide omission to give notice of a General Meeting will not cause the invalidity of the meeting.”

[38] The applicants assert that they were appointed by members present at an annual general meeting properly conducted and that this meeting was called by Ms Goci as a culmination of the resolve of a dispute. Although a removal of the 1^st to the 9^th respondents as members of the executive committee was alleged, this is not a ‘removal’ contemplated in clauses 6.10 or 6.12 of Isibane’s constitution and certainly no case was made out by the applicants that they purported to follow this route for which provision is made in the specified instances.  The prayer in their notice of motion declaring the 1^st to the 9^th respondents to have been “lawfully removed” follows the allegation that Ms Goci at the purported annual general meeting dissolved the executive committee for whatever reason she was prompted to do so. The applicants evidently simply assume that she was entitled to do so and to call the annual general meeting.

[39] It is apposite to refer to the minutes of the purported meeting prepared by the 3^rd applicant and edited by the 1^st applicant (who it seems took the lead at this gathering).They reveal that Ms Goci addressed those present under an item referred to on the agenda as “Regularizing of the CPA” following the opening of the meeting by the 2^nd applicant:

“4.       Brief Background of the Meeting:

·         Mr Mzwamadoda Grootboom briefed the meeting that this meeting is the culmination of a series of meetings aimed at resolving the exclusion of the legitimate title deed holders (beneficiaries) of the farm Boschbokkoppen Farm No.182 as well as the legitimacy of the executive that is currently administering the affairs of the farm.  He informs the meeting that the meeting was agreed upon by both the disputed executive of the CPA and us the representatives of the excluded beneficiaries (title deed holders) as well as the Legal Department of RD&LR at a meeting held at the offices of Dept. of RD&LR at their regional offices in Port Elizabeth in September 2012.  Mr M Grootboom informs the meeting that this meeting was also sanctioned by both parties’ attorneys.  The first meeting was held on 04 November 2012 and the whole executive of the Isibane CPA was not present and no apology was tendered to that effect.  Mr Grootboom further informs the meeting that after the deliberations at the meeting of 04 November 2012 it was resolved that the follow up meeting be summoned where the executive of Isibane will be invited to the meeting and the responsibility was for the Department of RD&LR to invite them to the meeting that was then scheduled for the 18 November 2012.[44]

5.         Regularizing the CPA:

*    Ms Xolelwa Goci who is the legal manager of RD&LR informs the meeting that she was briefed by the officials who attended the meeting on 04 November 2012 that the executive was not present in the meeting.  Ms Xolelwa Goci wanted to know if the executive was present so that the process of regularizing the CPA can proceed and the whole executive was again absent clearly ratifying the allegations made by the beneficiaries that no accountability from the executive since they took over the reign in 2006.  Ms Xolelwa Goci informs the meeting that the Isibane executive is officially dissolved.  She further informed the meeting that she is not going to waste time as it is clear to them as the Department that the executive of Isibane is not accountable to the very same members they claim to be representing and that the meeting will proceed and the nine (9) member committee representing each family to be elected that will administer the affairs of the CPA.  The meeting agreed elected members to work closely with the Department to ensure that the CPA is regularized and that all beneficiaries benefit equally from land of their forefathers.

6.         Election of Legitimate Structure:

·         The elections were conducted by Ms Xolelwa Goci, Mr Siyabonga Ngxingolo, Ms Mafundityala all from the office of RD&LR.

·         The nine (9) member committee was agreed upon by the meeting and that they will be elected from each family who has title deed so as to ensure accountability.

·         The meeting resolved before the elections that both Mr Andile Grootboom and Mr Mzwamadoda Grootboom will form part of the nine (9) member committee as they have been tasked to challenge the legitimacy of the executive of Isibane and the exclusion of the beneficiaries from all the activities of the land since the year 2000.

·         The following members (these include the eight applicants in these proceedings) … were elected representing each family tree...” (Emphasis in italics added.)

[40] It is unnecessary for this court to determine whether there was any validity to the alleged dispute or what the precise nature thereof was as advised to the Department’s officials by the applicants.  It is unfortunate that no affidavit was delivered by the 10^th or 11^th respondents in order to give an objective account of what problems were raised or whether the help of the Department was in fact solicited on a formal basis in terms of the provisions of section 10 (2) of the CPAA.[45] If that were the case one would have expected a formal request outlining the dispute which brings it within the ambit of the subsection, the appointment of an approved conciliator acceptable to all the parties to that dispute, and a conciliation process culminating in a report to the Director-General with that official’s recommendation to him.  This is evidently what the inclusive provisions of subsection 10 require, not some casual handling of the matter at probably the most critical of a communal property association’s meetings.

[41] It appears from the contents of an email attached to the founding papers dating back to 31 October 2011 that a colleague of Ms Goci had referred a request to her from “beneficiaries of the farm” (the applicants align themselves with this group) to deal with on the basis that she was already “engaged with the beneficiaries” and because it was believed that she could “shed some light with regard to the issues if any was needed.  The colleague, Ms Klaas (ostensibly from the Department), clarifies in the email that the aggrieved beneficiaries “are requesting the provincial office to facilitate a general meeting which needs to be convened so that new trustees can be appointed so that work progress at the (Bosch Boshoek Koppen) farm can continue”.  Whilst I am prepared to accept for present purposes that the applicants and those families they represent felt aggrieved - Indeed this is ostensibly an extremely emotive issue for them, and that this did indeed culminate in the Department’s involvement (I put it no higher than that) at the purported annual general meeting on 17 November 2012 on the basis reflected in the minutes, the facts do not establish in my view that a formal conciliation process in terms of the CPAA was properly commissioned or that the outcome (the convening of the annual general meeting and seeking to “regularize the CPA” by dissolving one executive and replacing it with another - assuming even for the moment that this election carried the blessing of the majority of members present at the meeting) is one permitted by the provisions of section 10 of the CPAA.

[42] Even the proper commissioning of a conciliator is limited to him or her attempting to resolve the dispute by mediation, or fact-finding relevant to its resolution or by making a recommendation to the parties to the dispute (as opposed to only one of those parties).[46]

[43] I am not in agreement with the submission made on behalf of the applicants that the general provision in section 10 (3) (d) of the CPAA, namely that the conciliator may attempt to resolve the dispute “in any other manner that he or she considers appropriate” extends to or covers over Ms Goci purporting to “regularize” the association as she did, however well intentioned she might have been in this regard.     It is apparent from the provisions of section 11 (6) of the CPAA that the power of even the Director-General himself is limited to requiring the members to conduct an election for a new committee once the integrity or impartiality or effectiveness of the committee or any member of the committee is called into question.[47]

[44] The reason why Ms Goci’s convening of the annual general meeting and purported decision cannot be countenanced is quite apparent.  The power to call an annual general meeting firstly reposes strictly in the executive leadership itself in terms of Isibane’s constitution.  Secondly, once an office has been conferred, it can be revoked only in terms of an association’s constitution, in this instance (on the basis of the case pleaded by the applicants) by valid elections taking place at a properly constituted annual general meeting.  Further, the provisions of the CPAA do not say what the applicants contend for.  Ms Goci is simply not authorized by the provisions of the act to either convene the meeting, or to pronounce an executive committee disbanded. What the provisions of the act authorize her to do (assuming that she was called upon to act as a conciliator) is to conciliate a dispute within the ordinary meaning of that concept and then only in a manner consistent with what the association’s constitution dictates in this regard,[48] The governing principles which the members have agreed to should not be ignored or overridden by highhanded officials.

[45] It is worth mentioning incidentally that Isibane’s constitution has its own unique provisions for the mediation of disputes which require such between members to be undertaken by a disciplinary committee appointed by the committee and acting as a mediator, and between a member and the committee to be undertaken by members elected at a general meeting to mediate the dispute.  Specific complaints of the abuse of power or the transgression of the constitution are to be addressed by a disciplinary committee appointed by the committee which may be referred to the general membership. If disputes and complaints cannot be resolved at either of those levels then and only in that event are the parties entitled to resort to outside mediation and, failing that, to litigation.  Although somewhat ambiguously stated in the constitution, aggrieved members have the right to appeal (I suppose in the ordinary context of the word) to the Director-General and the court for “appropriate relief and redress.” Finally, the costs of any mediation will be for the account of the parties to the dispute and will not be the responsibility of Isibane.

[46] Even when constitutional resort may be had to conciliation in terms of the CPAA, it is plain that this too follows a democratic process which respects the rights of both parties to the dispute.  Although a member may ostensibly have the decision of the Director-General to conciliate the dispute foisted on him in the sense that he or she may not be in agreement that there is a dispute or at least on the terms complained of, that party is still entitled, for example, to be involved in the choice of an appropriate conciliator to be appointed.[49] The very concept of conciliation further requires the conscious involvement of both parties in the process who are evidently not obliged to accept the possible outcome suggested to them by the neutral third party conciliating the issues between them.[50] The role of the conciliator is limited to assisting in the resolution of the dispute in my view to the extent that the parties are prepared to go along with his or her suggestions regarding the manner in which the matter can be resolved.  Whilst the shunning of the advice given or possible resolution of the dispute may result in the Director-General seeking an order of court placing the belabored association under his administration or being placed under liquidation if the particular malady (occasioned by the dispute) constitutes the requisite basis for such drastic action, a party is certainly not obliged to adopt what is proposed to him or her as an outcome. Axiomatically, the departmental official tasked with attempting to assist the parties to resolve a dispute cannot make a binding decision in this regard.

[47] I am satisfied therefore that the involvement of Ms Goci on the basis outlined in the minute constitutes an impermissible intervention which runs entirely contrary to the tenets of the CPAA which encourages and supports the autonomy of communal associations. Her pronouncement of the dissolution of the executive committee is of no legal effect and can simply be ignored in my view although it would appear prudent in all the circumstances to issue an appropriate declarator to this effect and to restore the status quo ante her purported dissolution of the executive committee of which the 1^st to the 9^th respondents were members.

[48] I need add, however, that although it is apparent from Isibane’s constitution that meetings are not public, and although the CPAA does not prescribe nor envisage the presence of the Department’s officials at meetings once the communal property association has been registered and its constitution formally adopted,  it does appear to be the trend – as I indicated above, for officials of the Department to keep a presence at meetings with a view to making or receiving reports, updating members on important information and, I expect, to keep a watching brief to facilitate the Department’s oversight and monitoring functions prescribed by the CPAA.  It would have been helpful had the 10^th or 11^th respondent’s explained their position and role in this regard, which is unfortunately left for the court to speculate, but there would appear to be no objection to these officials either “facilitating” meetings or “conducting elections,” provided this is done in my view with the consent of members and if the necessary objective distance is maintained. Their advice and guidance may be useful - and their particular skills which they bring empowering for the community, but they should not inhibit free and uninhibited discussion, expression of views or voting by members at meetings.  In my view Ms Goci plainly overstepped the boundary of her permissible involvement.

[49] It may also be that it is acceptable and within the bounds of the CPAA for officials to assist administratively with the giving of notice of meetings (in practice they appear to involve themselves because transport must also be arranged for members to attend meetings), but where the association’s constitution prescribes in whom the authority to convene reposes, notice must be given by the duly authorized person.  It goes without saying that Ms. Goci is not such a person and was not entitled to convene the purported annual general meeting.

[50] Whilst being alive to the applicants’ complaint that the 1^st to the 9^th respondents were being remiss in getting on with the calling of the annual general meeting, their recourse in terms of the constitution was either to request the secretary to convene a general meeting as a prelude to forcing their hand by the subsequent convening of the mandated annual general meeting[51], or to ask that their dispute be mediated, or to seek a mandamus from this court compelling the committee to hold the meeting. I have already expressed my view on Ms Goci’s so-called conciliation falling short of the formal standard of such intervention.  Properly availed however this was a desirable option open to the applicants to persuade the 1^st to the 9^th respondents of their fiduciary duty to follow the prescripts of the constitution. The Director-General could also have been prevailed upon to request the members to conduct an election in terms of the provisions of section (11) (6) (d) of the CPAA. Evidently however the only attempt made to “regularize” Isibane (apart from asking its attorneys to convene a meeting, which request on the 1^st respondent’s version it complied with) was through Ms Goci on the unlawful basis described above.

[51] It is trite that the failure to convene a meeting properly invalidates the transaction of business at it. In order that all persons obliged or entitled to be present at a meeting may fulfill their obligation or exercise their right as members, they must be accorded adequate opportunity to do so which requires that due notice be given of the time and place of the meeting and the nature of the business to be transacted[52]. One of the chief issues in this matter is whether the applicants have established on the papers that this requirement for the annual general meeting was met in all the circumstances.

[52] The applicants have contented themselves with the assertion that “during September 2012”a meeting was held at the Land Restitution Commission at the offices of Land Affairs in Port Elizabeth with Ms Goci with a specific view to discussing the 1^st to the 9^th respondent’s exclusion of them from the affairs of Isibane and their failure to call an annual general meeting since registration of the communal property association. The applicants allege that it was agreed at this meeting that an annual general meeting would be held at Rooidraai, Hankey, on 4 November 2012.  This is denied by the 1^st respondent.  The applicant on the other hand assert that this “arrangement” was known and sanctioned by the attorneys of both parties and that the 1^st to the 9^th respondents deliberately failed to attend the meeting despite having knowledge that it had been convened and that it was thereafter postponed to 17 November 2012 because of the respondents’ absence.

[53] No specific date is given and no minute of either meeting in September or on 4 November 2012 were made available to the court. The copy of the supposed notice of the meeting which was attached to the applicants’ founding papers and presented as the seminal proof of notice of the annual general meeting which culminated on 17 November 2102 is in fact the initial email message addressed by Ms Goci dated 12 September 2012 to the 1^st respondent and the 1^st applicant under the subject heading: “Meeting regarding Isibane claim.” It simply reads; “Please be advised that there will be a meeting regarding the above claim on Friday, the 14^th day of September 2012 @ 09H00am at Land Affairs offices in Port Elizabeth, 66 Ring Road, 2^nd Floor in Fairview Building.” This by no stretch of the imagination constitutes notice of an annual general meeting neither is it clear from it that this notice reached all who were entitled to notice of an annual meeting.  Further, applying the well-known approach to be adopted in opposed applications containing factual disputes where final relief is sought, the denial of the 1^st respondent that any of the executive committee members agreed to the convening of an annual general meeting on 4 November 2012 must prevail especially where the applicants have not bothered to attach copies of the minutes of either the meeting of 14 September (the purpose of which the 1^st applicant says was rather to discuss Isibane’s acquisition of further land which would provide certain tenant and labourers of the land with rights in respect of Isibane’s property)  or 4 November 2012. (But even if agreement was reached by the parties to hold an annual general meeting it still had to be convened in compliance with the constitution.)  In any event and even assuming that the 1^st to the 9^th respondents had deliberately absented themselves from a meeting which they agreed to attend on 4 November 2012, that meeting was unconstitutionally postponed to 17 November 2012.  Ideally a new annual general meeting should have been convened on proper notice rather than seeking to breathe life into a process that, on the applicants’ version, had come undone. I need add that despite the applicants’ opportunistic reliance on the so called notice of annual general meeting, they have overlooked that the minute of 17 November 2012 records rather that it was “resolved” at the failed meeting of 4 November 2012 that a follow up meeting would be “summonsed” and that it would fall to the Department’s officials to invite the 1^st to the 9^th respondents to this meeting. Implicit in this is that the applicants do not distinguish between meetings which may have focused on discussing a dispute as opposed to an annual general meeting which has its own requirements for validity in terms of the constitution.

[54] A further challenge raised by the 1^st respondent (for the moment assuming that the meeting was properly convened) is that the applicants have also failed to put up proof that it was properly constituted. It is not clear why the applicants have not furnished a list of members present at the meeting to understand the context in which the assertion is made that the elections were proper.  Who is elected to form the committee is determined by members voting at the annual general meeting so it is critical to establish firstly that effective notice was given to all members entitled to attend, secondly  that the persons present at the meeting are members entitled to vote, and thirdly, that the appropriate quorum was established.

[55] This is particularly relevant in the context of the challenge thrown up by the applicants attorneys in correspondence attached to the applicants’ founding papers which identifies their clients as persons who “challenge the Constitution of Isibane by virtue of their exclusion as the legitimate beneficiaries to the land leased by Isibane”.   This is further complicated by the fact that neither of the executive committees - or the Department for that matter, holds current lists of membership. A further concern is that it is evident from the minutes which have been disclosed to this court, that other interested parties were contemplated as being added to the original community sought to benefit from the land redistribution claim and may therefore not have received notice of the  meeting.  Another area of concern is that the minutes of the purported annual general meeting suggest that the nine member committee elected there are representative of each family whereas there are ostensibly many more families who are members of Isibane. (This obviously calls into question whether everyone who is entitled to attend received notice of the meeting).  The applicants merely content themselves in this regard with the assertion that it is entirely improbable that Ms Goci would have allowed anyone other than an eligible member to participate at the meeting, but it remains for the applicants to establish the alleged substantial compliance with Isibane’s constitution in respect of the impugned election, which it has in my view failed to do.

[56] I am not satisfied on the number of bases referred to above that the applicants have established that the election of the applicants was in conformity with Isibane’s constitution and accordingly their application must fail.

[57]  It would however be prudent for this court (especially in the light of the obvious infringement of members’ Constitutional right of access to community property)[53] to ensure by ordering appropriate alternative relief that the association be moved out of its moribund status by directing the executive committee comprising of the 1^st to the 9^th respondents to give timeous and adequate notice of the next anticipated annual general meeting to be held in November 2016 as provided for in Isibane’s constitution.  It is trite that a duly elected committee continues to hold office until it retires or is dismissed even though, where no steps are taken to elect a new committee, its term of office under the constitution of the organization has expired.  The appropriate course of action to be adopted in such an instance, where a committee fails to put in motion the prescribed procedures for the election of a new committee after its own period of office has expired, is for the members of the organization to enforce the constitution by obtaining an order compelling it to do so. If the parties to this litigation have any sense of duty they will appreciate that such intervention by this court is necessary in all the circumstances. It also appears desirable that the membership list should be updated as is required by the constitution for objective clarity and that a banking account be opened in due course.

[58] The members have already been put to considerable disadvantage (even more so in my view since the 1^st respondents suggests that business has continued as normal with the holding of the customary general meetings by his group as early as 8 days after the purported annual general meeting despite the alleged election of the applicants as office bearers), and should not have to endure this ambiguity any longer.  It is with disappointment that our courts have had to reflect on “internecine disputes” between competing factions of traditional communities who instead of triumphantly enjoying the benefits won and recovered for them under the Land Distribution Act engage themselves in battles when it comes to managing the post-restitution process. In Louw& Others v Richtersveld Agricultural Holdings Company (Pty) Ltd & Others[54] the court noted with reference to the fallout between members of that community to whom land and mineral rights were restored resulting in court proceedings that “(t)he resort to litigation regrettably not only drains valuable financial resources but also has a…debilitating effect on efforts of the community to create a sustainable future from the mineral resources and the land for the community.  Most importantly it …creates divisions in a community which had courageously fought for decades to recover what is rightfully theirs.” The court expressed regret that the matter before it “sadly demonstrates that even the best intentions and the most meticulously crafted plans (envisaged by the statutory machinery put in place to implement these gains) can be undone by personal self-interest and avarice when it comes to managing the post-restitution process.”[55]

[59] The community in dispute here would be well advised to adopt this salutary advice, put aside their differences, and begin to manage the affairs of Isibane in a professional manner that celebrates their communal ownership rather than detracts from it.  Stewardship and a complete eschewing of any kind of self-interest are essential to the successful management of the community’s interests through the governing body in order to attain the jealously guarded Constitutional vision of community ownership.  Further, those elected as office bearers must be properly and fully supported in their various responsibilities. It is not an easy task to serve office in such an entity. On the contrary it requires a selfless zeal on the part of the individual member to realize the collective objects set forth in a communal property association’s constitution.

[60] Before concluding I need reflect briefly on the 1^st respondent’s submission that the applicants had no locus standi to bring these proceedings.  I find it unnecessary to determine the issue of the applicants’ eligibility as members as such although I suspect from correspondence addressed to the 13^th respondent’s attorneys that the complaint of the applicants being “excluded” from Isibane runs deeper than a mere lack of accountability or keeping them in the loop regarding meetings. Be that as it may the contention on the applicants’ behalf that the fact that the purported elections took place under the auspices of the Department carries with it the distinct probability that those elected are indeed eligible in terms of the membership criteria set forth in the 13^th respondent’s constitution has merit. Even absent a current membership record by any of the parties it is evident that the relevant officials have peculiar knowledge of this community and all its peccadilloes because tensions have been simmering for ages and it is unlikely that the officials who “conducted” the elections would have entertained the nomination of non-members. That aside, despite the challenge by the 1^st respondent to their appointment as office bearers it cannot be gainsaid that they were appointed as a fact (under the assumption at least that the annual general meeting had been properly convened and that the officials were entitled to involve themselves on the basis which they did) and that this attracted certain personal rights to them to maintain that the election of them under these circumstances was a valid one. Who else could have asserted these putative personal rights to office on their behalf but the applicants themselves?

[61] The applicants having failed to establish that the elections were valid and that they are as a consequence entitled to the relief which they seek, the 1st respondent is entitled to accost order against them. He should however bear the wasted costs occasioned by the postponement on 29 March 2016 since he sought an indulgence in order to file an answering affidavit which was by then already overdue for delivery. The reserved costs of 10 May 2106 were wasted but cannot be ascribed to either party since the matter was inadvertently placed on the unopposed roll instead of the opposed roll for that day.  In fairness these costs should be borne by each party themselves and in consequence I will make no costs order regarding this set down.

[62] It would not be out of place to make some observations regarding the futility of these proceedings and the huge financial burden which will now redound to the applicants who sought to breathe life into the elections which were not valid to start with.  Officials of the 10^th and 11^th respondents perhaps created the misconception that they were entitled to convene the meeting and to conduct the elections without regard to the rights of the 1^st to the 9^th respondents and that their endorsement thereof, by the subsequent “registration” of the changes in the registry, somehow gave it the hallmark of legitimacy. This is most unfortunate and an indictment of the Department which is expected to empower and promote associations through reliable information rather than to add to their confusion and uncertainty.  If costs had been sought against them I might have entertained such relief on the basis of their misguided involvement in the affairs of the association which led the applicants down this path. However the applicants sought legal advice and had numerous options open to them beside their recourse to this court years after the election.  They could simply have waited until the next annual general meeting to see matters rectified particularly since it is not about them, but about Isibane and protecting the interests of all its members. Ultimately they litigated at their own peril and must live with this fact.

[63] A copy of this judgment should be made available to the 10^th and 11^th respondents who it is hoped will note the lessons learnt from this unfortunate debacle and revisit their peculiar but vitally significant role to be played in ensuring that the objects of the CPAA are realized.

[64] In the result I issue the following order:

1.                 The application is dismissed;

2.                 The purported decision of Ms Goci dated 17 November 2012 to dissolve the executive committee of the 13^th respondent is set aside;

3.                 The reinstated executive committee of the 13^th respondent (comprising of the 1^st to the 9^th respondents) is directed to give timeous and proper notice as provided for in its constitution of the next Annual General Meeting to be held in November 2016;

4.                 the 12^th respondent is authorized to continue to retain the funds of the 13^th respondent which are in its trust account until the latter has opened a banking account;

5.                 The 13^th respondent is requested to update its membership list with the Registration Officer forthwith;

6.                 The applicants are directed to pay the 1^st respondents costs of the application, except for the reserved costs of 29 March 2016 which are to be borne by the 1^st respondent;

7.                 The will be no order regarding the reserved costs of 10 May 2106; and

8.                 The registrar is requested to make a copy of this judgment available to the 10^th and 11^th respondents.

________________

B HARTLE

JUDGE OF THE HIGH COURT

 

DATE OF HEARING:             28 July 2016

DATE OF JUDGMENT:           27 September 2016

 

APPEARANCES:

 

For the applicants: Mr. Nobotana (instructed by Andile Ngqakayi Inc., Port Elizabeth).

 

For the 1^st to 9^th and 13^th respondents:  Mr. Williams (instructed by Liston Brewis & Co., Port Elizabeth).

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