Kunene-Msimanga and Others v Regional Tourism Organization of Southern Africa and Others (21046/2018) [2022] ZAGPJHC 366 (23 May 2022)

Kunene-Msimanga and Others v Regional Tourism Organization of Southern Africa and Others (21046/2018) [2022] ZAGPJHC 366 (23 May 2022)

The court found that the Separation Agreements relied upon by the applicants were invalid and unenforceable due to lack of authority. RETOSA, as a legal entity of SADC, required the approval and consent of SADC member states to conclude such agreements, which was not obtained. The applicants failed to establish that RETOSA or its representative had the necessary authority, either actual or ostensible, to bind RETOSA to the severance packages. Payments made to the applicants did not constitute ratification, as there was no evidence of Board or SADC approval. The misjoinder of the Third to Seventh Respondents was upheld, as no relief was sought against them and their joinder was...

Citation
[2022] ZAGPJHC 366
Parties
Applicant: Thembekile Kunene-Msimang; Applicant: Simbarashe Mandinyenya; Applicant: Kevin Masupe; Applicant: Palesa Motekase; Applicant: Phuti Mulatedzi; Applicant: Kenneth Racombo; Respondent: Regional Tourism Organization of Southern Africa; Respondent: Southern Africa Development Community; Respondent: Dr Stergomena Lawrence Tax; Respondent: Selma Ashipala Musavyi; Respondent: Teofilus Nghitila; Respondent: Lilly Rakorong; Respondent: Dr Sem Shikongo
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
23 May 2022
Case Number
21046/2018
Procedural Posture
Civil Application / Opposed Motion for Specific Performance and Payment of Contractual Severance Packages
Outcome
Application dismissed with costs.
Judges
G Nel
Legal Topics
Severance Packages, Authority of Agent, Ultra Vires Contracts, Specific Performance, Misjoinder, Conflict of Interest
Labour Law Commercial and Corporate Severance Packages Authority of Agent Ultra Vires Contracts Specific Performance Misjoinder Conflict of Interest

Case Brief

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Parties

Thembekile Kunene-Msimang

Applicant

Simbarashe Mandinyenya

Applicant

Kevin Masupe

Applicant

Palesa Motekase

Applicant

Phuti Mulatedzi

Applicant

Kenneth Racombo

Applicant

Regional Tourism Organization of Southern Africa

Respondent

Southern Africa Development Community

Respondent

Dr Stergomena Lawrence Tax

Respondent

Selma Ashipala Musavyi

Respondent

Teofilus Nghitila

Respondent

Lilly Rakorong

Respondent

Dr Sem Shikongo

Respondent

Procedural Posture

Civil Application / Opposed Motion for Specific Performance and Payment of Contractual Severance Packages

Legal Issues

  1. 1 Whether the applicants' attorneys were conflicted and precluded from acting.
  2. 2 Whether the joinder of the Third to Seventh Respondents was proper.
  3. 3 Whether the court had jurisdiction over claims against the Third to Seventh Respondents.

Ratio Decidendi

The court found that the Separation Agreements relied upon by the applicants were invalid and unenforceable due to lack of authority. RETOSA, as a legal entity of SADC, required the approval and consent of SADC member states to conclude such agreements, which was not obtained. The applicants failed to establish that RETOSA or its representative had the necessary authority, either actual or ostensible, to bind RETOSA to the severance packages. Payments made to the applicants did not constitute ratification, as there was no evidence of Board or SADC approval. The misjoinder of the Third to Seventh Respondents was upheld, as no relief was sought against them and their joinder was...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed.
  • The applicants, jointly and severally, are to pay the costs of the application.