Bakgatla-Ba-Kgafela Property Association v Pilane and Others (M450/2021) [2023] ZANWHC 62 (25 May 2023)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA,

NORTH WEST DIVISON, MAHIKENG

CASE NO: M450/2021

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

In the matter between:

BAKGATLA-BA-KGAFELA

1st APPLICANT

PROPERTY ASSOCIATION

And

NYALALA JOHN MOLEFE PILANE

1ST RESPONDENT

CORNLEY (PTY) LTD

2ND RESPONDENT

ESLAU BELEGGINGS (PTY) LTD

3RD RESPONDENT

TOGGEKRY LANDGOED (PTY) LTD

4TH RESPONDENT

WINTERVELD BELGGINGS (PTY) LTD

5TH RESPONDENT

BAKGATLA TRIBAL INV (PTY) LTD

6TH RESPONDENT

COMPANIES AND INTERLLECTUAL

7TH RESPONDENT

PROPERTY COMMISSION

THE PREMIER, NORTH WEST PROVINCE 8TH RESPONDENT

JUDGMENT ON POINT IN LIMINE

REDDY AJ

Introduction

[1] This application is based on a legal manoeuvre by the applicants to exercise control over the assets of Bakgatla-Ba-Kgafela Traditional Community. (“the Traditional Community”). In order to attain this control, the following orders are pursued:

That a declaratory order be issued in terms whereof it be declared that:

1.1 The Bakgatla Ba Kgafela Traditional Community is the true owner and entitled beneficiary of the issued share capital of the following private companies (the second to sixth respondents’)

1.1.1 Cornley (Pty) Ltd (Reg No. 1[...]);

1.1.2 Eslau Beleggings (Pty) Ltd ( Reg No.1[...]);

1.1.3 Toggekry Landgoed (Pty) Ltd (Reg No. 1[...]);

1.1.4 Wintersveld Beleggings (Pty) Ltd (Reg No. 1[...]);

1.1.5 Bakgatla Tribal Inv (Pty) Ltd (Reg No. 1[...]),

[2] The first respondent is ordered and directed to sign all documents and take all steps necessary to transfer the issued share capital currently held by him in each of the second to sixth respondents, to the applicant within seven (7) days from the date of this court’s order;

[3] In the event of first respondent failing to comply with the terms of prayer 2 above, that the Sheriff of the High Court, Rustenburg be authorised and directed to forthwith take all steps necessary and sign all required documentation in order to transfer the issued share capital currently held in the name of the first respondent, in respect of each of the second to sixth respondents, from the first respondent to the applicant;

[4] The first respondent is ordered and directed to sign all documents and take all steps necessary to effect his resignation as a director of each of the second to sixth respondents, within seven (7) days from the date of this court’s order;

[5] In the event of first respondent failing to comply with the terms of prayer 4 above, that the Sheriff of the High Court, Rustenburg be authorised and directed to forthwith sign all documents and take all steps necessary in order to effect the first respondent’s resignation as director of each of the second to sixth respondents;

[6] That the first respondent be ordered to pay the costs of this application;

[7] That any other respondent (s) that may oppose this application be ordered to pay the costs of the application, jointly and severally with the first respondent, the one to pay the other to be absolved.

[8] That such further and/or alternative relief as may in the circumstances be required be granted to the applicant.

The parties

[2] A proper description of the parties would be appropriate in order to expedite easy reading. The applicant is the Bakgatla-Ba-Kgafela Communal Property Association (Registration Number: C[...]: 0[...]), a communal property association duly registered as such in terms of s 8 (3) of the Communal Property Association Act No. 28 of 1996, with principal place of business at Pilanesberg Nature Reserve, Manyane Gate, Mogwase, North West Province.

[3] The first respondent is Nyalala John Molefe Pilane, an adult male residing at Lekutung Village, Saulspoort, North West Province. As indicated below, the first respondent is also the previous Kgosi of the Bakgatla –Ba- Kgafela Traditional Community.

[4] The second respondent is Conley (Pty) Ltd, a private company with limited liability duly registered and incorporated in terms of the statutes of the Republic of South Africa with registered address at 5[...] M[...] Road, Erasmia, Pretoria.

[5] The third respondent is Eslau Beleggings (Pty) Ltd, a private company with limited liability duly registered and incorporated in terms of the statutes of the Republic of Soutrh Africa with Registered address at 5[...] M[...] Road, Erasmia, Pretoria.

[6] The fourth respondent is Toggekry Landgoed (Pty) Ltd, a private company with limited liability duly registered and incorporated in terms of the statutes of the Republic of South Africa with registered address at 5[...] M[...] Road, Erasmia, Pretoria.

[7] The fifth respondent is Wintersveld Beleggings (Pty) Ltd, a private company with limited liability duly registered and incorporated in terms of the statutes of the Republic of South Africa with registered address at 5[...] M[...] Road, Erasmia, Pretoria.

[8] The sixth respondent is Bakgatla Tribal INV (Pty) Ltd, a private company with limited liability duly registered and incorporated in terms of the statutes of the Republic of South Africa with registered address at 5[...] M[...] Road, Erasmia, Pretoria.

[9] The seventh respondent is the Companies and Intellectual Properties Commission, duly established in terms of s 185 of the Companies Act of 2008, with Principal place of business at the DTIC Campus, Entfutfukweni, Block […], 7[...] M[...] Street, Sunnyside, Pretoria. The seventh respondent is only joined in these proceedings as an interested party and to give effect to the relief claimed in these proceedings. No particular relief is sought against the seventh respondent save for a costs order in the event of it opposing any of the relief sought herein.

[10] The eighth respondent is the Premier of the North West Province, in his official capacity as head of North West Provincial Government, with principal place of business at Garona Building, corner of Provident –and University Drive, Mmabatho. The eighth respondent is only joined in these proceedings as an interested party and no particular relief is sought against the eighth respondent save for a costs order in the event of opposition to any of the relief sought herein.

Background facts

[11] The Bakgatla- Ba- Kgafela Traditional Community comprises of 32 sub-villages and approximately 300 000 tribe’s people. The capital village is Moruleng or Saulspoort situated within the North West Province. In accordance with the provisions of the Restitution of Land Rights Act 22 of 1994, the community previously lodged a claim for the restitution of land it had lost under the apartheid regime. This claim was recognized by the Minister in October 2006 and in terms of section 42D of the Restitution of Land Rights Act 22 of 1994.

[12] Pursuant to the claim being duly recognized, the Traditional Community began the process of establishing an association to begin the transition process through which the Traditional Community would take possession of the restored land. To this end, the applicant was formed. The applicant had a specific purpose. In broad the applicant was to manage the land for the purposes of the Traditional Community. The resources of the Traditional Community included those derived from platinum mining and the Sun City Resort in addition to immovable properties acquired for the benefits of the community.

[13] The first respondent was previously recognized as the Kgosi of the community and therefore at the helm, in control of the property and the funds of the community.

[14] On 3 December 1996, Rustenburg Platinum Mines (Pty) Ltd (RPM) purchased certain farms and implements in the Dwaalboom area, Limpopo Province for the benefit of the Traditional Community. These farms at the time were registered as the sole property of the second to fifth respondents. These farms were not purchased and transferred into the names of the community, instead, the full shareholding capital (all of the issued share capital) in these companies were purchased with the funds of the Traditional Community. Consequent to this, the first respondent was appointed as the sole director and shareholder of the second to fifth respondents. This was a result of the first respondent being Kgosi of the community, which placed the first respondent at the head of the administration and the funds of the community.

[15] The farms registered into the names of the second to fifth respondent are:

(i) Farm Lydenburg 203 KP, held under Deed of Transfer: T1[...]8 (Second Respondent)

(ii) Farm Frankfort 219 KP, Portion1, held under Deed of Transfer: TT 7[...]7 (Third Respondent)

(iii) Farm Rustenburg 205 KP, Portions 0 and 1, held under Deed of Transfer T1[...]6 and T1[...]7 (Fourth Respondent)

(iv) Farm Wintersveld 220 KP, Portio 0 held under Deed of Transfer, T 7[...]6

(Fifth Respondent)

[16] It is so that the community had a functioning Traditional Council legitimately established via the provisions of the North West Traditional Leadership and Governance Act, No 2 of 2005. (“NWTLGA”). The term of office of the Traditional Council lapsed in 2017 and the Traditional Council was also disbanded by the appointment of an administrator as per the findings of the Baloyi Commission. There is a pending review application regarding the findings and recommendations of the Baloyi Commission. As such, there is no Traditional Council as per the NWTLGA.

[17] On 7 July 2020, the Premier of the North West Province withdrew the letter of designation of the first respondent as Kgosi of the Traditional Community, issuing a certificate of recognition of an interim Kgosi for six months. On the expiration of the six months, no interim or permanent Kgosi had been appointed for the Traditional Community. As such, the Community is without a duly recognized Kgosi. The sequence of these events has left the applicant as the only organized structure of the Traditional Community. The applicant consists of four councillors elected from each village with the fifth member being the headman. The applicant, therefore has the locus standi in iudicio (locus standi) to move this application.

[18] At the time of the hearing of the application, the respondents raised a point in limine contending the applicant did not have the necessary locus standi to move the application. Predictably the applicant argued to the contrary. Counsel for both parties agreed that the legal point be first determined as it may be dispositive of the entire application. This ruling is therefore confined to the point in limine that has been raised.

Respondents Submissions

[19] The respondents contend that the applicant has no locus standi and in essence is in a struggle for power over the assets of the Traditional Community. The applicant contends that the first respondent was removed from his position as Kgosi of the Traditional Community, resultantly, he has no right as a member of the same community to be the director of any of the entities holding ownership of the properties of the community.

[20] That being so, the applicant is then the only organised structure of the traditional community and is therefore clothed with the necessary locus standi to launch this application and seek the relief as per the notice of motion.The respondents opined that it was then purely in its own interests as the so-called only remaining organised structure within the Traditional Community that the applicants acted.

[21] The respondents submit that in terms of the prevailing legislative prescripts, the traditional community, ought to specifically and expressly authorise the applicant to act on its behalf, more especially since the immovable properties which are the subject matter of the application, are not derived from the restitution process.

[22] The claim of locus standi by the applicant is blunt. It asserts that in the absence of structures like the Kgosi of the community or traditional council, the applicant remains the only organised structure and assumes standing to move the present application and seek a declaratory order.

[23] In short, the applicant has failed to establish locus standi, either in terms of section 38 of the Constitution or meet the threshold as required by the common law.

Applicant’s Submissions

[24] The applicant submitted that the respondents’ attacks on the locus standi is meritless. These are based on the following:

(i) At no time did the applicant indicate that it purports to act for and on behalf of the Bakgatla-Ba-Kgafela- Traditional Community.

(ii) The applicant has not asserted, in its founding affidavit or elsewhere, that it purports to act for and on behalf of the Traditional Community.

(iii) The applicant seeks relief that it does in the interests of the Traditional Community.

(iv) None of the relief sought by the applicant in its notice of motion purports to be in its own interest.

(v)The declaratory relief pursued (prayer 1) is for a declaratory that the Traditional Community is the true owner and entitled beneficiary of the issued share capital of the second to sixth respondents.

(vi) The transfer of the issued share capital in the second to sixth respondents (prayer 2) is sought against the first respondent. This issued share capital be transferred to the applicant, in its capacity Bakgatla-Ba-Kgafela Communal Property Association, because the applicant is statutorily entitled and obliged to hold and manage the relevant immovable properties for and on behalf of the Traditional Community.

(vii) Notwithstanding the transfer of the share capital that is being sought by the applicant, it must be understood in the context of the applicant’s existence as the Bakgatla-Ba-Kgafela Communal Property Association, and importantly so the argument ran, in the context of the common cause fact that the right (and obligation) to hold and manage the issued share capital of the second to sixth respondents is that of the applicant. This much, so it was submitted, was not placed in dispute by the first respondent in his answering affidavit.

(viii) In addition, the relief pursued in relation to the first respondent’s directorship of the second to sixth respondent (all being companies in whose names the immovable properties aforementioned are registered, for the benefit of the Traditional Community) is sought in the interests of the Traditional Community, in order that those property holding companies be managed not by the first respondent (an erstwhile Kgosi of the Traditional Community) but for and on behalf of the Traditional Community, by the applicant (the statutorily designated functionary).

The law

[25] The respondents have placed locus standi in dispute. Locus standi is thus an issue which needs to be determined preliminarily in this judicial process. See: Watt v Sea Plant Products 1998 (4) All SA 109 (C) at 113-114. Put differently, the issue of locus standi has to be decided in limine before the merits. See: Giant Concert v Rinaldo 2013 (3) BCLR 251 (CC) at 58. It must be evident that parties have the necessary legal standing or locus standi in iudicio, ex facie the founding affidavit (pleadings). See: Commissioner of Inland Revenue v Van der Heever 1999 (3) SA 1051 (SCA) at para [10].

[26] Locus standi is a Latin phrase that means a place to stand. The term refers to:

(i) a party’s right to be heard by the court on a particular issue;

(ii) a party has either a direct connection with a case before the

courts;

(iii) a reasonable connection with the case or is legally entitled to

be heard.

[27] The founders of the Constitution expressed locus standi as follows in Section 38:

“Anyone listed in the section has the right to approach a competent court, alleging that the right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach the a court are-

(a) anyone acting in their own interests;

(b) anyone acting on behalf of another person who cannot act in their name;

(c) any acting as a member of, or in the interests of, a group of a class of persons;

(d) any one acting in the public interest; and

(e) an association acting in the interests of its members”

[28] It is the duty of the applicant to allege and to prove its locus standi. See: Four Wheel Drive Accessory Distributors v Rattan NO 2019 (3) SA 451, Mars Incorporated v Candy World (Pty) Ltd [1990] ZASCA 149; 1991 (1) SA 567 (A) at 575H–I; Kommissaris van Binnelandse Inkomste v Van der Heever 1999 (3) SA 1051 (SCA) at 1057G–H. (SCA). In broad, the requirements for locus standi are these: the plaintiff must have an adequate interest in the subject matter of the litigation, usually described as a direct interest in the relief sought; the interest must not be too remote; the interest must be actual, not abstract or academic; and it must be a current interest and not a hypothetical one. See: D E van Loggerenberg and E Bertelsmann Erasmus: Superior Court Practice 2 ed vol 1 (loose-leaf) at D1-186.

Discussion

[29] In the founding affidavit, the chairperson of the applicant addresses the issue of locus standi as follows:

“[1] I am an adult female and the chairperson of the applicant in this application. I am duly authorized to represent the applicant and to depose of this affidavit and also to instruct the applicant’s attorneys of record to institute this application.

[2] I confirm that I am also a member of the traditional community known as Bakgatla Ba Kgafela Traditional Community”

Further:

“[38] I submit with respect that in the circumstances the applicant is the only remaining organized structure of the Community, which includes four councillors elected from each village and the fifth member being the headman.

[39] As the entity charged with the obligation to manage and control all assets of the Community in the best interests of the community, the applicant(so it is contended) has the necessary locus standi to institute this application, in order to obtain the relief sought set out in its notice of motion”.

[30] Afore, the averments made in the founding affidavit, the respondents countered by delivering a notice in terms of Rule 7 of the Uniform Rules of Court, Rule 7(1) provides as follows:

“Subject to the provisions of sub-rules (2) and (3) a power of attorney to act need not be filed, but the authority of anyone acting on behalf of a party may, within 10 days after it came to the notice of a party that such a person is so acting, or with the leave of the court on good cause shown at any time before judgment, be disputed ,whereafter such person may no longer act unless he satisfied the court that he is authorised so to act, and to enable him to do so the court may postpone the hearing of the action or application.”

[31] Using the machinery as provided in Rule 7(1) the respondents requested the production of the following:

(a) Copy of the resolution of the members of the Bakgatla-Ba-Kgafela Communal Property Association authorising the deponent to the founding affidavit to launch the present application and depose to the founding affidavit;

(b) Copy of the resolution of the members of the Bakgatla-Ba- Kgafela Community Property Association authorising Du Plessis Van Der Westhiuzen Inc. of Rustenburg or its correspondence to act as attorneys on behalf of the communal property association, alternatively, a copy of the power of attorney specifically granted to Du Plessis Van der Weshiuzen Inc. of Rustenburg and its correspondents to act as attorneys of record of the communal property association and launch this application;

(c) Copy of the resolution of the members of the Bakgatla- Ba-Kgafela Traditional Community, consisting of some 32 villages, authorising

the Bakgatla-Ba-Kgafela Communal Property Association or SOPHY BATLANG MOKOTEDI to institute the present application on their behalf.

[32] Replying thereto, the applicant presented a Resolution of the Executive Committee of the Bakgatla-Ba-Kgafela

Communal Property Association of 19 August 2021 , which resolved as follows:

1. That Mrs Sophy Batlang Mokotedi in her capacity as the chairperson of the association hereby be authorised to instruct DU PLESSIS VAN DER WESTHUIZEN ATTORNEYS INC. to institute on behalf of the association, a high court against MR. NYALALA JOHN MOLEFE PILANE, CORNLEY (PTY) LTD, ELSAU BELEGGINGS (PTY) LTD, TOGGEKRY LANDGOED (PTY) LTD , WINTERSVELD BELEGGINGS (PTY) AND BAKGATLA TRIBAL INV(PTY) LTD.

1.1 Obtain a declaratory order to establish ownership and entitled beneficiary of the issued share capital in the above named companies

1.2. An order for the transfer of the shared capital in the named companies to the association

1.3. An order for the removal of Nyalala John Molefe as a director of the named companies

1.4. To obtain any related relief.

[33] Affidavits are simply another species of evidence. It axiomatically follows, that Mokotedi is a witness who deposes under oath to germane facts that lie within her personal knowledge. The truthfulness of such averments that are contained in her founding affidavit must be beyond reproach in respect of the accuracy of facts. Mokotedi is no different from a witness who testifies orally, in any of the competent forms that evidence may be introduced regarding events within their personal knowledge.

[34] The applicant is cited as Bakgatla–Ba-Kgafela Communal Property Association, in fortification of her being duly authorised, Mokotedi states as follows at paragraph [1].

[1] I am an adult female and the chairperson of the applicant in this application, I am duly authorised to represent the applicant and to depose to this affidavit and also instruct the applicant’s attorney of record to institute this application.

[35] The contention that Mokotedi was duly authorised is not borne out by the incontestable facts. Mokotedi’s

affidavit was duly sworn to before a Commissioner of Oaths at Rustenburg on 20 July 2021. The resolution dated 19 August 2021 in essence provides a power of attorney to the applicant’s erstwhile attorney of record. It does not address pertinently the issue of Mokotedi being duly authorised to represent the applicant. Even if a munificent interpretation is attached to the resolution of 19 August 2021 is adopted, it would be unanswerable that Mokotedi would not have been authorised to depose to the affidavit given the timeframes set out.

[36] To make short shift of the matter, there is no authorisation by the applicant. Answering, the respondents Rule 7 notice in terms of the Uniform Rules of Court, Mokotedi relies on paragraphs 33-41 of the founding affidavit to establish locus standi. A microscopic examination of these paragraphs do not address the Rule 7(1) notice. In the absence of a specific authorisation by the applicant, Mokotedi would not be clothed with the peremptory locus standi to depose to the founding affidavit.

[37] Even if I have missed the mark on this score, the entire resolution filed by the deponent is defective. It goes to the heart of the locus standi of the applicant. The authorization raises more questions than answers.

[38] Corbett J said the following in Griffiths & Inglis (Pty) Ltd 1972 (4) SA 249 (CPD ) at 252F the following was stated:

“In the present case the founding affidavit makes no express mention of authorization by the Company acting through its board of directors. The question of authority has been challenged in the opposing affidavit, and thus the onus is upon the applicant to show that the application has been authorised by the directors of the company. In as much as no contrary evidence had been placed before the Court by the Respondent, the minimum of evidence to use the words of Watermeyer J in Malls’s case will suffice.”

[39] On reflection of the resolution filed by the applicant, there appeared to be no formal process that was followed. The founding affidavit makes a legal conclusion which is unsupported by the facts. The resolution attached appears to be a hastily drafted document, probably explaining the difference in dates. There appears to be no formal resolution that was taken by the applicant. There also appears to be no register, one cannot help but wonder as to the nature of the formal process that was followed. These nagging questions lean toward enhancing, the respondents’ contentions that the applicant, “brings this application in its own interest as the so-called only remaining organised structure within the community.”

[40] Even if I have missed the first two marks, I offer the final string in my bow: more specifically, the applicant does not establish that it has been explicitly authorized to act on behalf of the traditional communities by the association acting through its directors. To claim that it is the only organized structure in the vast traditional community is opportunistic. Even if there was a shred of evidence fortifying this assertion, a resolution from the traditional community would have been peremptory.

Notwithstanding a Rule 7 request prompting the response to ventilate same, it declined.

[41] The applicant does not have the necessary locus standi in iudicio to have instituted the application.

[42] There is no reason to deviate from the usual cost order.

Order

The point in limine is upheld with costs, which includes the costs of Senior Counsel.

A REDDY

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

Appearances:

Date of Hearing: 03 November 2022 Date of Judgment: 25 May 2023 Counsel for the Applicant: Adv JP Van Den Berg SC Attorney for Applicant: LB INC. Attorney C/O Maree& Maree Attorneys 11 Agate Avenue Mahikeng Tell: 018 381 7495/7947 Counsel for Respondent: Adv PF Louw Attorney for Respondent: Smit Sewgoolam Inc C/O Smit & Stanton Inc 29 Warren Street Golfview Mahikeng Tel: 018 381 0180/1/2