Nafcoc (Limpopo) and Others v Kgolane and Others (35826/2011) [2015] ZAGPPHC 1013 (31 July 2015)

Nafcoc (Limpopo) and Others v Kgolane and Others (35826/2011) [2015] ZAGPPHC 1013 (31 July 2015)

The court found that the meeting of 21 April 2011 was not properly constituted as an electoral meeting, and no valid notice was given for the election of office bearers, rendering the resolutions and elections at that meeting ultra vires the applicable 2008 Constitution of NAFCOC (Limpopo) and thus null and void. The purported termination of the First, Second and Third Respondents' membership was also invalid as the prescribed procedures under the 2008 Constitution were not followed. The moratorium on elections imposed by NAFCOC (National) was declared invalid, as the constitution did not confer such power. The court held that all necessary parties with a direct and substantial interest...

Citation
[2015] ZAGPPHC 1013
Parties
Applicant: NAFCOC (Limpopo); Applicant: Izaac Masekwameng; Applicant: SG Mosena; Applicant: HK Makgae; Applicant: MR Shai; Applicant: A Monakedi; Applicant: R Livhoyi; Applicant: Mpho Mogale; Respondent: Sello Mahlagaume Kgolane; Respondent: Themba Maluleke; Respondent: Noah Serage; Respondent: NAFCOC (National); Respondent: Lawrence Mavundla
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
31 July 2015
Case Number
35826/2011
Procedural Posture
Urgent Application / Main Application and Counter Application; Rule Nisi Issued
Outcome
Rule nisi issued with interim interdict; declaratory and interdictory relief granted subject to return date; no costs order.
Judges
J Louw
Legal Topics
Non Joinder, Ultra Vires, Interdict, Corporate Governance, Constitutional Compliance, Termination of Membership
Civil Procedure Commercial and Corporate Non Joinder Ultra Vires Interdict Corporate Governance Constitutional Compliance Termination of Membership

Case Brief

Summary, issues, holding and outcome

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Parties

NAFCOC (Limpopo)

Applicant

Izaac Masekwameng

Applicant

SG Mosena

Applicant

HK Makgae

Applicant

MR Shai

Applicant

A Monakedi

Applicant

R Livhoyi

Applicant

Mpho Mogale

Applicant

Sello Mahlagaume Kgolane

Respondent

Themba Maluleke

Respondent

Noah Serage

Respondent

NAFCOC (National)

Respondent

Lawrence Mavundla

Respondent

Procedural Posture

Urgent Application / Main Application and Counter Application; Rule Nisi Issued

Legal Issues

  1. 1 Whether the election of office bearers on 21 April 2011 was valid under the applicable constitution.
  2. 2 Whether the termination of the First, Second and Third Respondents' membership was procedurally and constitutionally valid.
  3. 3 Whether all necessary parties were joined in the proceedings.

Ratio Decidendi

The court found that the meeting of 21 April 2011 was not properly constituted as an electoral meeting, and no valid notice was given for the election of office bearers, rendering the resolutions and elections at that meeting ultra vires the applicable 2008 Constitution of NAFCOC (Limpopo) and thus null and void. The purported termination of the First, Second and Third Respondents' membership was also invalid as the prescribed procedures under the 2008 Constitution were not followed. The moratorium on elections imposed by NAFCOC (National) was declared invalid, as the constitution did not confer such power. The court held that all necessary parties with a direct and substantial interest...

Court Disposition

Rule nisi issued with interim interdict; declaratory and interdictory relief granted subject to return date; no costs order.

Orders

  • A rule nisi with return date 3 November 2015 is issued, calling upon all interested persons and in particular the persons purportedly elected as executive committee members of the First Respondent on 21 April 2011 to show cause why the following orders should not be made:
  • It is declared that the purported election of office bearers (including First, Second and Third Respondents) on 21 April 2011 is ultra vires the then applicable Constitution of the First Applicant, being the 2008 Constitution, and as such is null and void.