Bakgatla Ba Kgafela Communal Property Association v Department of Rural Development and Land Reform and Others (LCC93/2021) [2022] ZALCC 44 (1 November 2022)

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

CASE NO: LCC93/2021

Before: The Honourable Acting Judge President Meer

Heard on: 1 November 2022

Delivered on: 1 November 2022

In the matter between:

BAKGATLA BA KGAFELA COMMUNAL

PROPERTY ASSOCIATION

Applicant

and

DEPARTMENT OF RURAL DEVELOPMENT

AND LAND REFORM

1st Respondent

DIRECTOR-GENERAL OF THE DEPARTMENT OF

RURAL DEVELOPMENT AND LAND REFORM

2nd Respondent

MINISTER OF RURAL DEVELOPMENT AND

LAND REFORM

3rd Respondent

THE ADMINISTRATOR: MR PHINEAS TJIE

4th Respondent

MOKOPTEDI SOPHY BATLANG

5th Respondent

JUDGMENT

MEER AJP

[1] This application seeks inter alia compliance with paragraphs (2) and (3) of the following order granted by me on 5 November 2018:

“(1) The application is dismissed. Mr L Moya shall pay the costs of the application, such to include the costs for 10 October 2018.

(2) The first respondent is authorised for the purpose of electing an executive committee, to convene a meeting of the general council of the Bakgatla Ba Kgafela Community Property Association and to take all steps necessary to give effect to this.

(3) The fourth to seventh respondents are directed to fully co-operate with the first respondent for the purposes of facilitating the election of the executive committee.

(4) The attorneys for the first to third respondents and the attorneys for the seventh respondent shall not charge a fee for 5 November 2018.”

[2] The order was granted in LCC136/2018. The first respondent in that matter is the same as the first respondent in this matter. The applicant is the same as the applicant in this matter. However, the seventh respondent in that matter Mr Sojane, is the deponent to the founding affidavit in the matter I am now seized with and purports to be duly authorized by the executive committee of the cited applicant.

The Parties

[3] The cited applicant is a communal property association established pursuant to a land claim. The first to fourth respondents are cited in their official capacities. I note that the fourth respondent is described differently in the founding affidavit as the administrator, Moses Kotane Municipality. The first to fourth respondents have not participated in these proceedings. The fifth

respondent is described as the ex-chairperson of the applicant. In her answering affidavit however, she describes herself as the

chairperson of the applicant. The fifth respondent opposes the application. She challenges the locus standi of Mr Sojane, and avers

that the applicant community property association should not have been cited as applicant but should have been joined as a respondent.

She avers moreover that the order of 5 November 2018 has been complied with.

Locus Standi

[4] As proof of his standing Mr Sojane attached Annexure A to his founding affidavit. This is a letter to the fifth respondent dated 19 March 2018 which asserts that at a meeting of 16 March 2018 of the Bakgatla Ba Kgafela Communal Property Association (“the CPA”) General Council, resolutions were adopted inter alia “that the General Secretary, Mr Sojane, be appointed to act as Acting Chairperson pending the expected AGM”. The letter itself is unsigned but was commissioned on 28 May 2021 and the signature of the person commissioning it appears. Attached to the letter as Annexure “C” is a list of executive members of the CPA as of 16 March 2018 and Mr Sojane is reflected as the Chairperson.

[5] The fifth respondent’s answering affidavit states that the unsigned resolution dated 19 March 2018 has no effect as Mr Sojane was dismissed from his position as general secretary of the CPA on 6 April 2018 after he was found guilty of misconduct, unethical conduct, bringing the association into disrepute, violating the association’s constitution, financial misconduct and theft. In this regard she attaches a letter of termination from the applicant dated 11 April 2018. These allegations are met with a bald denial in reply and not at all significantly dealt with. Similarly, the averment in the answering affidavit that the unsigned resolution of 19 March 2018 does not evidence standing, is met with a bald denial in reply.

[6] I note that the purported resolution on which Mr Sojane relies dated 19 March 2018 precedes his expulsion on 6 April 2018. The document relied upon does not prove much, let alone Mr Sojane’s standing. His bald denial does not assist him in the light of the fifth respondent’s averments and accordingly his standing has not been established.

[7] In the applicant’s supplementary heads of argument reliance for Mr Sojane’s authority is placed elsewhere. Reference is made to Mr Sojane’s authoristion appearing at pages 010-4- 010-15 of the pleadings. The fifth respondent’s supplementary heads in reply assumes that this is a reference to an affidavit filed by the applicant’s erstwhile attorney and that referencing it with page numbers is difficult due to the problematic index. I was initially unable to find this affidavit in the court file. During the hearing it emerged that the affidavit had been included in the notice bundle, for reasons unknown. The fifth respondent contends that the document does not mention Mr Sojane by name, and does not authorize him or anyone to bring these proceedings, and that it is dated 3 March 2021, referring to a resolution taken in 2017 which appoints Mr Mudau as the applicant’s legal representation. This does not, so the contention goes clothe Mr Sojane with standing. I agree.

[8] Today, during the hearing reliance was placed yet again elsewhere for Mr Sojane’s authority, on a third document. This is Annexure “SB2” to the replying affidavit, an annexure which was not filed timeously, but was e-mailed on 21 October 2022, long after the date by when applicant’s attorney was directed to prepare the court file in accordance with this Court’s Practice Directions. That annexure does not assist the applicant. It is a resolution dated 21 May 2021 which authorizes an application in a different case, LCC 138/A/B/C- and not the case before me being LCC 93/2021. Moreover, the resolution appoints Braam De Jager and Ruth Mudau as attorney and counsel respectively. The instructing attorney in this matter is Masilela Attorneys and Ms Mudau whilst counsel in this matter, is not appointed according to that resolution.

[9] It is trite that a party that institutes proceedings on behalf of an entity, be it a company or a community property association, must be duly authorized to do so. See Ganes and another v Telecon Namibia Ltd [2003] JOL 12133 (SCA) at paragraph 19.

[10] None of the documents relied upon, duly authorizes Mr Sojane to bring these proceedings. I am accordingly unable to find that he has the requisite standing and the applicstion stands to be dismissed for this reason alone.

Joinder

[11] As the deponent to the founding affidavit was not duly authorized by the CPA, that entity could not have been the applicant. As the CPA clearly has an interest in these proceedings, pertaining as they do to its affairs and meetings, it ought under the circumstances, to have been joined as a respondent.

Merits

[12] The answering affidavit averred that a general council meeting was held to elect a new executive committee on 12 September 2019, and the court order of 5 November 2019 was accordingly complied with. The results of the election were annexed. The averment was met with a bald denial in reply and reference was made to paragraph (3) of the replying affidavit.

12.1 Paragraph (3.1) to (3.16) does not address the issue as to whether or not the meeting occurred in compliance with the court order. Instead it is devoted to allegations concerning the fifth respondent’s legitimacy as chairperson of the CPA. These paragraphs in fact raise new facts which ought to have been averred in the founding affidavit and not in reply. It is trite that a party is expected to make out his case in the founding affidavit as opposed to the replying affidavit.

[13] I note also that the founding affidavit alleges that an interim order was granted in the Mafikeng High Court on 7 May 2019 to the effect that the fifth respondent was not “legible” to represent the applicant which order was later confirmed on 7 June 2019. These two orders are attached to the founding affidavit. The order of 7 June 2019 does not confirm the interim order but, contrary to what is averred by the applicant orders inter alia the removal of the matter from the roll and its case management.

[14] In view of all of the above a case has not been made for the relief sought in the notice of motion.

Costs

[15] The fifth respondent seeks costs de bonis propriis against both the applicant’s attorneys and counsel, one paying the other to be absolved. Mr Mbeki pointed to the fact that both the attorneys and counsel for the applicant were put on terms in a letter by the fifth respondent’s attorneys on 26 August 2022, that if they did not withdraw what he referred to as “this spurious application”, such costs would be sought against them.

[16] In considering the question of costs the following must be borne in mind:

16.1 As is aptly pointed out by Mr Mbeki for the fifth respondent, the matter was previously removed from this court’s roll precisely because of lack of authority and for sloppiness by the applicant’s then attorneys who neither prepared the court file on time nor filed an index. Ms Mudau also appeared for the applicants at the previous hearing. Costs de bonis propriis were awarded against the applicant’s erstwhile attorney. Her current instructing attorneys were appointed on 19 July 2022. They had three months to be brought up to speed by Ms Mudau, about the deficiencies in the previous application, and indeed to establish these on their own and prevent their repetition, as expected from a diligent practitioner. Yet Ms Mudau and her instructing attorneys have once again approached this court with precisely the same deficiencies. This is indeed an abuse of the Court process.

16.2 In addition to the repeat of the Locus standi deficiency, pages were missing from the court file, which was prepared out of time, and a woefully inadequate index was filed in which none of the annexures were paginated. The Registrar wrote to the applicant’s attorney on 20 October 2022 cautioning that the matter would be struck if these were not attended to. The missing pages still do not appear to have been sorted out and the applicant can consider itself fortunate that the matter was not struck.

16.3 Supplementary heads of argument were filed by the applicant’s counsel without the courtesy of an explanation as to the reason therefor, heads which I might add did not shed any further light on any aspect. As a matter of good practice if a party wishes to file supplementary heads, the reason therefor, if not leave of the court should be present.

16.4 The applicant’s attorney filed an amended notice of motion without notice. Rule 22 makes abundantly clear that an amendment occurs on notice to all other parties. There is no notice of amendment in the court file. An amendment contrary to Rule 22 is an irregular step.

[17] In Ebenhaesar (LCC05/2015) [2019] ZALCC 2; [2019] 3 All SA 530 (LCC) this court had occasion to consider the award of costs de bonis propriis. At paragraph 48 it was stated

“As was stated in Multi-Links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd; Telkom SA Soc Limited and Another v Blue Label Telecoms Limited and Others [2013] 4 All SA 346 (GNP), at paragraph 35:

“Such an order is reserved for conduct which substantially and materially deviates from the standard expected of the legal practitioners, such that their clients, the actual parties to the litigation, cannot be expected to bear the costs, or because the court feels compelled to mark its profound displeasure at the conduct of an attorney in any particular context. Examples are, dishonestly, obstruction of the interests of justice, irresponsible and grossly negligent conduct, litigating in a reckless manner, misleading the court, and gross incompetence and a lack of care.”

[18] The conduct of the applicant’s legal team deviated materially from the conduct expected of legal practitioners. The respondents and this Court were once again visited with an application that repeated the same flaw in respect of standing, clearly an abuse. In preparing the court files no heed was paid to the court’s practice directions and furthermore to rule 22 in respect of the purported amendment to the notice of motion. Their conduct demonstrates either wanton disregard for the rules and practice directions of this court or ignorance thereof. This was a serious dereliction of duty which prejudiced the respondents and inconvenienced and disrespected the Court. In the circumstances I am satisfied that the award of costs de bonis propriis, as sought, is warranted.

[19] I order as follows:

1. The application is dismissed;

2. The Applicant’s attorney, Masilela Attorneys and the Applicant’s counsel, Advocate R Mudau shall bear the costs of the application de bonis propriis, the one paying the other to be absolved.

Y S MEER

Acting Judge President

Land Claims Court

For the Applicant: Adv. R. Mudau Instructed by: Masilela Attorneys For the Fifth Respondent: Adv. S.D Mbeki Instructed by: Avela Nontso Attorneys