Provincial Executive Committe of the South African Democratic Teachers' Union, Eastern Cape Province and Others v South African Democratic Teachers' Union and Others (462/14) [2014] ZAECBHC 10 (21 August 2014)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, BHISHO

CASE NO. 462/14

In the matter between:

The Provincial Executive Committee of the South African Democratic Teachers’ Union, Eastern Cape Province 1st Applicant Luvo Mvulana 2nd Applicant Mncekeleli Ndongeni 3rd Applicant Ntombizanele Booi 4th Applicant Khanyisile Boysi 5th Applicant Mandisa Mvoko 6th Applicant Nomxolisi Makayi 7th Applicant Thingazwa Mhlaba 8th Applicant And The South African Democratic Teachers’ Union 1st Respondent Thabile Kunene 2nd Respondent First National Bank, King Williams Town 3rd Respondent

JUDGMENT

STRETCH J:

1. On 11 August 2014 the applicants delivered motion papers for an urgent application to be argued on 14 August 2014, for a rule nisi to be issued, calling on the respondents to show cause on 9 September 2014, why the following order should not be made final:

1.1 That the resolutions of the special National Executive Committee (the “NEC”) meeting of the first respondent (“the Union”) held in Durban on 22 July 2014 be declared wrongful and unlawful, be reviewed and be set aside;

1.2 That the first and second respondents be interdicted from implementing the resolutions made at this meeting, in terms of which resolutions the Union resolved that:

a. The National Working Committee would investigate complaints with regard to the Eastern Cape Provincial Conference held from 8 to 11 July 2014.

b. The second respondent is the chair of the Eastern Cape Province.

c. The Provincial Executive Committee (the “PEC”) of the Eastern Cape is placed under administration.

1.3 That the Union or any of its officials be interdicted from interfering with its Eastern Cape Province bank account held with the third respondent;

1.4 That the Union be directed to forthwith pay the monthly allocation of funds due to its Eastern Cape branch in terms of its constitution.

2. That the above relief should operate as an in interim interdict/mandamus pending the finalisation of the application.

3. That the Union be directed to forthwith make available to the applicant all documents pertaining to the NEC resolutions made on 22 July 2014.

4. That the Union be directed to pay the costs of the application, with the second and third respondents joined in the costs order in the event of opposition from them.

5. On 14 August I ordered the parties to deliver heads of argument by 19 August and postponed the application to 21 August. I made a further consent order directing the first applicant to deliver its list of creditors and debts by 15 August whereupon the Union’s NEC would pay the total reflected by no later than 16h00 on that day, provided that the amounts set forth in the list taken together with that already paid by the NEC after 22 July 2014 did not exceed R1,4 million, and that any amount overpaid to a creditor of the PEC by the NEC would not be taken into account in the aforesaid calculation.

6. This order was, in essence extended by Tshiki J on 5 September 2014.

7. The parties agreed to attempt to confine their legal argument in limine, which they did when the matter was argued before me for final relief, to the following pertinent issues:

a. Whether this Court has territorial jurisdiction to review and set aside resolutions taken in Durban by a respondent ‘residing’ in Johannesburg;

b. Whether the applicants have the necessary locus standi in iudicio;

c. Whether the applicants have exhausted the internal remedies provided for in the Union’s constitution (“the Constitution”);

d. Whether this is an urgent application;

e. Whether this Court has jurisdiction to intervene (rationes jursdictionis) in the internal affairs of the Union (a voluntary association) in the absence of a finding that the Union departed from the prescripts of its own constitution with respect to the manner in which the meeting of 22 July was convened and conducted.

8. On the merits of the application, the applicants contend that:

a. The meeting of 22 July was not authorised to place the first applicant under administration in circumstances where mismanagement of funds had not been shown.

b. The Union’s NEC breached a fundamental principle of legality by resolving to investigate the conference of 8 to 11 July when it was part of that conference.

c. The Union’s NEC imposed the second respondent (“Kunene”) upon the applicants as their chair, before the conclusion of the investigation which it had resolved to undertake.

d. The applicants were not afforded the opportunity to be heard before these resolutions were taken.

Territorial jurisdiction

9. The Union contends that this Court does not have territorial jurisdiction over it because, as a juristic person, it resides at its head office in Johannesburg. Furthermore, the applicants’ cause of action pertains to resolutions which were taken at a meeting held in Durban.

10. The applicants however, contend that the resolutions impact on and affect them here in the Eastern Cape where the office of the first applicant is situated and where the applicants have been and are carrying out the functions which form the subject matter of the resolutions sought to be interdicted.

11. The jurisdiction of this Court has to be determined with regard to the requirement of ‘causes arising’ referred to in section 21(1) of the Superior Courts Act 10 of 2013. ‘Causes arising’ does not only refer to causes of action but to all factors giving rise to jurisdiction under the common law, such as considerations of convenience and connectivity. It is common cause that the effect of the resolutions sought to be interdicted is felt within the area of this Court’s jurisdiction. In the circumstances balance of convenience is a particularly strong consideration to be taken into account in deciding whether this Court has jurisdiction to entertain this application. In my view the balance of convenience clearly favours the applicants. I accordingly find that this Court has jurisdiction to deal with this application.

See: Cordiant Trading CC v Daimler Chrysler Financial Services 2005 (6) SA 205 SCA at 206A-F.

Authority and legal standing

12. It is trite that it must appear ex facie the pleadings that the parties thereto have the necessary locus standi. As a general rule the requirements for legal standing are that the applicants must have a direct, actual and current interest in the relief sought, which is not too far removed (see Public Protector v Mail and Guardian Ltd 2011 (4) SA 420 (SCA) at 427F-428A).

13. The deponent to the applicants’ founding affidavit is the Eastern Cape provincial secretary of the Union (the third applicant). He states that he is authorised to bring the application both in his personal capacity as an office bearer of the first applicant and as a member of the Union. He also avers that he is authorised by all the applicants to depose to the founding affidavit on their behalf and to institute and prosecute the application to its finality. His affidavit states that he has annexed thereto a copy of the “resolution” of the first applicant marked “A”. Annexure “A” to his affidavit purports to be undated minutes of a special meeting held by the first applicant. These minutes state that there is

unanimous agreement by the “PEC” that the decisions of the Union’s NEC at the meeting held on 22 July 2014 should be legally challenged.

14. The third applicant’s affidavit is the only affidavit before me to support the application. There are no confirmatory affidavits for the remaining applicants either in their personal capacities or to authorise the third applicant to launch the application on their behalf and on behalf of the first applicant of whom they are all apparently office bearers.

15. The Union contends that the applicants have no authority to launch this application. It is argued that in terms of clause13.3.3.4 of its constitution, its NEC is the only structure authorised to institute or to defend legal proceedings on its behalf. By virtue of the provisions of clause 15 of its finance manual, its NEC shall authorise the institution of legal action and written instructions to attorneys must be undertaken in the name of its general secretary.

16. The applicants contend that this argument is without merit because the relief sought by the first applicant (being the Union’s provincial structure) is against the Union’s NEC. It is untenable, so it is argued to expect the first applicant to seek authorisation from the very body which it is seeking relief against.

17. That may well be so. However, the background of the Constitution set forth at the beginning of the written document states that the main aim of this Union is to eradicate all forms of discrimination in education and to strive towards a free and democratic system of education in this country. Clause 5 of the Constitution states that the aim of the Union shall be to unite teachers, education workers and educationalists and to work for a non-racial, non-sexist, just and democratic system of education in a free and democratic South Africa, and that the Union shall act in accordance with the spirit and principle of democracy in all of its activities. Clause 6 of the Constitution sets forth the objectives of the Union, primarily being to promote and further the interests of its members and to voice opinions on matters pertaining to education. In particular, clause 6.13 states one of these objectives to be:

‘To institute legal proceedings on behalf of the Union or its members in pursuance of the objects of the Union and to render, where

appropriate, legal assistance to members in matters relating to education and employment.’

18. In a nutshell, the Constitution simply does not provide for in-fighting situations such as this, where office bearers at provincial level have engaged lawyers to take action against office bearers at national level in public courts. This does not surprise me. On a reading of the Constitution as a whole, it seems clear that, in the event of differences developing between and amongst office bearers at any level, the intention is that these differences be resolved internally by making use of the ample provisions set forth in the Constitution to do this. It is for that very reason in my view, that the drafters of the Constitution

did not deem it necessary to address the unfortunate situation which would develop if the PEC was constrained to obtain authority from the NEC before incurring costs taken from the funds of the Union which were contributed by the members of the Union to protect and advance their own interests, before taking the NEC to a public court of law and risk the incurring of further costs at the expense of its members.

19. Clause 4.1 of the Union’s Constitution confers the legal status upon it required in terms of the provisions of rule 14 of this court’s uniform rules dealing with proceedings by and against associations. Clause 4.1 states that the Union shall be a body corporate with perpetual succession, capable of entering into contractual and other relations and of suing and being sued in its own name. Thus an association may sue or be sued in its own name if its constitution, regulations or by-laws provide that actions may be brought in the name of the association as such, as in this case. Similarly if it is provided for in the constitution, regulations or by-laws, such action may be brought in the name of specified office-bearers in their capacities as such. Accordingly the Union as an association may sue or be sued through such representatives (see Rainsford v Trustees of the Salisbury Club 1914 AD 499), provided that it appears that the person who makes the application on behalf of the association is duly authorised by it to do so (see Yiba and Others v African Gospel Church 1999 (2) SA 949 (C) at 957H).

20. It has been contended more than once in argument before me on behalf of the applicant, that the Union’s Constitution is a very useful one which provides for everything. In my view the Union’s Constitution does not provide for the situation where one branch of the office bearers of the Union seeks to sue the other, for the very reason that it is expected that problems such as these be resolved internally with the least possible redress to employing Union funds to promote and fund internal wars.

Thus, even if the first applicant has legal standing by virtue of the common law, it remains a subordinate branch of the Union. By virtue of its Constitution, the affairs of the Union are managed by its NEC in whom the power is vested to institute and defend proceedings and/or to authorise the institution and defence of legal proceedings. In the matter before me, the first respondent did not obtain such authority and is accordingly not properly before me. Even if such authority is not a requirement, the first respondent is in any event not properly before me by virtue of the absence of proof of common law authority. I say so because, although the third applicant avers that he has been authorised by the other office bearers to launch the application on behalf of the first applicant, there is no evidence of such authorisation, and there are no signed resolutions by any of the alleged applicants to this application.

21. On behalf of the applicants, it has been contended in the alternative that even if I were to find that the PEC as a structure does not have legal standing, there can be no doubt that the second to eighth applicants have every right both in their official capacities as well as in their personal capacities to “protect the rights enshrined in the Constitution bestowed upon them by the Constitution both as office bearers and members.”

22. It may well be that the remaining applicants have these rights both as office bearers and as members of the Union. However, I reiterate that the only evidence I have on oath before me is that of the third applicant. Dealing with the issues of legal standing and authority, as well as the position of other persons alleged to be applicants as well, his affidavit reads thus:

‘I am an adult male person, Provincial Secretary and member of the Provincial Executive Committee, South African Democratic Teachers’

Union (SADTU) Eastern Cape Province, and I am duly authorised to depose to this affidavit both in my personal capacity as an office

bearer of the First Applicant as well as member of the First Respondent. I am duly authorised by the First, Second, Fourth to the

Eighth Applicants to depose to this affidavit on their behalf and to institute and prosecute this application to its finality. I attach hereto a copy of the resolution of the First Applicant, attached hereto marked Annexure “A” and will also attach confirmatory affidavits of the Second, Fourth to Eighth Applicants to confirm such authority. I, together with the Second to the Eighth Applicants are office bearers of the First Applicant in terms of Clause 12.6 of the constitution of the First Respondent.”

23. However, as I have said, the third applicant’s affidavit is the only evidence on oath in support of this application, both in the founding and in the replying papers before me. In the premises I find that while the third applicant has laid a basis for his locus standi as a member in his personal capacity, there is no such evidence before me with respect to the other applicants.

24. In the premises then, I am of the view that the third applicant is the only applicant who is properly before me. As for his capacity, it is common cause that he has not obtained the requisite authority in terms of the Union’s Constitution to be before me as a litigant in his official capacity. I accept that he is thus before me in his personal capacity.

Exhausting of internal remedies and urgency

25. The essence of this application is for certain resolutions made by the Union’s NEC on 22 July 2014 to be reviewed and to be set aside. Final relief is sought.

26. It is trite that internal remedies must be exhausted as far as possible before litigation is resorted to, particularly when the relief sought is not in the nature of tiding over pending the resolution of the impasse on an internal basis. For this Court to allow litigants to proceed directly to final public litigation would undermine the autonomy of the administrative processes of a private body such as the Union. I am obliged to turn away the applicants if I find that they have not exhausted their

internal remedies (see Koyabe and Others v Minister for Home Affairs and Others (CCT 53/08) [2009] ZACC 23).

27. The first respondent contends that the application is premature as the relief sought during mid-August 2014 (originally by way of a rule nisi returnable on 9 September 2014) could have been dealt with at the Union’s national conference scheduled for 2 October 2014.

28. The resolutions which are sought to be set aside on an urgent basis are the following:

a. That the National Working Committee is mandated to investigate complaints against the Eastern Cape provincial conference held from 8 to 11 July 2014;

b. That the second respondent be declared to be the chair of the Eastern Cape Province;

c. That the first applicant is placed under administration.

29. The applicants have failed to traverse why these three resolutions could not and should not be traversed at a meeting which was scheduled to be six weeks away from the date on which they launched their urgent application.

30. Instead they have contended that the decision to place the first applicant under administration has resulted in the Union “messing up” the finances of the province because the Union is not up to this task which it has “unlawfully” assumed and which “rightly belongs to the first applicant” in terms of the Union’s Constitution. It is further contended (and this seems to me to be the high water mark of the applicants’ case on the exhaustion of internal remedies) that the applicants have succeeded in making out a prima facie case that the first applicant has been put under pressure by its creditors to pay its dues forthwith, and that in these circumstances

the conference due to commence on 2 October would be of no assistance to the applicants and would not provide a suitable remedy to the applicants in the circumstances of the matter. I digress to mention that when reference is made to the “applicants”

it is intended to include all the applicants cited in the application proceedings.

31. It is averred in the third applicant’s affidavit that the Eastern Cape Province allocation of R1,4 million per month was due to be deposited into the bank account allocated to the first applicant on 31 July 2014 but because of the resolution taken at the meeting on 22 July 2014, the funds had, by 7 August 2014, not yet been allocated and paid. It is furthermore alleged that certain creditors have given the first applicant up until 8 August 2014 to pay, failing which action would be taken against the Union’s provincial office.

32. It is alleged that this action by the NEC would cause irreparable damage to the integrity, trustworthiness, reliability and the credit-worthiness of the first applicant, that it has prejudiced future business relationships and that it has brought the Union’s Eastern Cape provincial office into disrepute.

33. On 1 August 2014 the applicants’ attorneys wrote a letter to their Union, seeking reasons for the resolutions taken at the 22 July meeting, and explaining the financial pressure under which the Union’s Eastern Cape office was labouring. According to the affidavit of the third applicant, there had been no response to this letter by the time he deposed to his affidavit on 7 August.

34. In response to these averments the Union’s general secretary deposed to an affidavit wherein it is alleged that the Union’s NEC deposited substantial funds (with proof thereof) into the Eastern Cape bank account on 31 July 2014. It is furthermore alleged (with proof) that a letter was written to the third applicant on 28 July 2014, requesting him to provide the NEC with a list of all creditors requiring payment, and that this request was ignored.

35. The Union alleges that the applicants have resolved to defy the NEC. The Union also alleges that the first applicant has been using Union funds in contravention of its finance policy and its Constitution to finance its former president who was suspended and subsequently dismissed. Despite this, so it is alleged, the first applicant has continued to use Union funds to cover his travelling costs. Bank statements as proof of this expenditure are annexed to the answering affidavit of the Union’s deponent.

36. It is also alleged that the third applicant (Mr Ndongeni) was paid a salary by the province on 26 March 2004, which ought to have been reversed when he was also paid the same salary by the national office. Despite being the secretary of the first applicant, who has alleged on oath that he and the present treasurer are the only parties in whose hands the management of the finances of the province lie, he has not reversed this double payment. It is averred that this in itself, is clear mismanagement of funds.

37. It is significant that the applicants, upon proof that substantial funds had indeed been deposited by the Union into the account held by the third respondent bank, conceded that some monies had been received (that is the money to cater for debit orders), but not all. I would have expected the third applicant to have declared this at the outset.

38. It is also of particular significance that the applicants, upon proof of the transmission of the aforementioned letter of 28 July, now also admit receipt of this letter. This too, was not declared in the founding papers. The applicants are expected to approach this court with clean hands. This is particularly so when the only affidavit before this court when the urgent application was brought was one deposed to by the provincial secretary of the Union whose duty it is (in terms of clause 12.6.4 of the Constitution) to conduct all Union correspondence, to keep originals of letters received and copies of those dispatched, to perform such duties imposed by decisions of the Union and to ensure that the funds of the Union are administered and managed in accordance with the Union’s financial policy.

39. The letter dispatched by the general secretary of the Union to the third applicant reads as follows:

‘Dear Comrades,

Our letter sent to you on 28th July 2014 regarding the Eastern Cape Under Administration has reference.

We kindly request the account numbers of the Eastern Cape Regional and Branch offices in order for our accounts department to process payments to the relevant offices of the Eastern Cape. The account numbers do not reflect on the bank statements provided by yourselves.

Thanking you in advance.

Comradely Regards,

(signed)

M Maluleke

General Secretary’

40. The third applicant having admitted in reply that the letter was indeed received, in defence of having nevertheless approached this Court on an urgent basis, says the following in his replying affidavit:

‘I admit having received the letter dated 28 July 2014 but contend that the First Respondent is not at liberty to infringe upon the rights of the PEC contained in the constitution of the First Respondent. Whilst I admit that the First Respondent has the powers, such powers must be exercised in accordance with the provisions of the constitution and the law…

The Respondents have not proved that the Applicants have misused the funds of the Eastern Cape Province at all. I have noted that annexures “JMM11 to JMM14” refer to transactions that occurred before the current Eastern Cape leadership was elected during the conference that took place on 8 to 11 July 2014. The Respondents have not pointed out a single transaction which occurred after the election of the current Eastern Cape Provincial leadership….

I have noted reference to a transaction in respect of my salary that occurred on 26 March 2014 but do not understand the relevance of such transaction in respect of the issues that this Court has to determine in this application. The First Respondent is at liberty to recoup whatever money has been improperly paid to me, if it so desires. A case has not even been put that I was informed of such anomaly and requested to make a refund and refused to do so. I submit that this has no relevance to this application and must be struck out.’

41. Despite then having admitted that he failed to respond to the Union’s letter of 28 July, the third respondent thereafter simply dismisses the letter altogether in his affidavit in reply. He does not thereafter make out any case as to why the application should still be entertained by this court, particularly as an urgent one, when it is common cause that a simple internal remedy, commonly known as communication, was rejected, at the very least by the third applicant. I say so because, although the third applicant avers that he speaks on behalf of the other applicants, there is nothing before me to confirm this.

42. In my view, the prima facie case for urgent financial relief from this Court which he endeavoured to make out in his founding papers, has no basis whatsoever when read in conjunction with the answering and replying papers. It is clear that there were prospects of resolving the financial aspect of this implication internally. Whether that would have happened this Court simply does not know, because the internal remedies available to the third applicant with respect to the financial impasse were not only overlooked or ignored, they were dismissed outright.

43. I am also of the view that the question of suspension and the appointment of the second respondent are not issues which this Court ought to have been called upon to indulge on an urgent basis or at all, in the absence of the parties having attempted to resolve these problems by resorting to the very avenues made available to them in terms of their own Constitution. They are the following:

a. In terms of clause 13 of the Constitution, the National Congress shall be the supreme governing body of the Union and shall meet at least (my emphasis) once every four years. It is common cause that this meeting is scheduled for 2 October 2014. In terms of item 13.1.5 of the Constitution, the National Congress shall adopt policies by means of resolutions in furtherance of the aims and objects of the Union and will consider and decide upon confirmation of the agenda, credentials of delegates, amendments to the constitution, codes of ethics, codes of discipline and standing rules, reports from the national general council, the national executive committee and national office bearers, financial reports including the auditors’ reports, resolutions, election of national office bearers, establishment of portfolios as formal structures of the Union and any other matter entrusted to it under the Constitution or which is in the interest of the Union (my emphasis). In my view, and with regard to the imminence of the meeting, this would have been, and still remains for that matter, the appropriate forum to internally address the grievances raised by the third applicant, the gravamen of which seems to be the previous passing of certain resolutions. In my view this matter is similar to that of Theron and Others v FAWU and Others 1998 (5) BLLR 528 (LC) where the following is said:

‘The respondents’ case is that they acted in terms of section 8.2.1.7 which gives the NEC the power to remove office bearers.

Clause 34.2 makes provision for a procedure for office bearers of the NEC, BBC or REC to follow after such office bearers have been removed in terms of the union constitution but not in terms of clause 30.1 Furthermore, the National Conference is the supreme governing body of the union and it has the power to ratify all the decisions of the NEC. I am of the view that it was open for the applicants to take the route suggested in clause 34.2 if they thought that they had enough support within the union membership to upset the NEC resolution. Anyway the National Conference is to take place shortly and if anything I think that it is the proper forum where the applicants should present their case. In any way the rights at stake which the applicants seek to protect are no different to the rights which any ordinary member of the union does not have, which do not have any patrimonial or financial implications.” I agree.

b. Clause 13.3 specifies that the NEC, in whose hands the management of all the affairs of the Union vests, shall meet at least (my emphasis) once every three months on a date to be fixed by the president in consultation with the general secretary. If at least

three provinces deem it necessary to call an emergency meeting of the NEC, then they have the right to request that such meeting be convened at the earliest possible date. The third applicant contends that it was at a meeting of the NEC that the resolutions

were taken which the third applicant seeks to have reviewed and set aside by this Court, primarily because this meeting was not properly convened in terms of the Constitution. The Constitution itself however provides for an emergency meeting to be called as an internal remedy to address this dissatisfaction. It has been contended on behalf of the applicants that it is unlikely that the applicants would have managed to successfully call such a meeting. In my view, that is not sufficient to show that an internal remedy has been exhausted. At the very least, the applicants must show that they attempted to call such a meeting, but that they were not successful.

c. The Constitution furthermore makes specific provision for resolutions to be reviewed internally as opposed to approaching a court of law. This is governed by clause 10 of the Union’s rules of procedure regarding meetings. Even if the applicants had been successful in attempting to call an emergency meeting, the constitution makes it clear that the other meetings referred to may be called more often than that provided for in the Constitution by the insertion of the words “at least” when meetings are referred to.

44. In my view, the applicants have failed to exhaust the internal remedies available to them. On this ground alone, the application falls to be dismissed.

Rationes jurisdictionis

45. The Union contends that this Court cannot interfere with resolutions passed by its NEC when those decisions have been made in terms of a Constitution which its members have agreed upon. To this end it is argued that the Union has powers in terms of item 13.3.4(i) of its constitution to place the first applicant under administration.

46. Item 13.3 of the Constitution deals with the powers of the Union’s NEC. It makes it clear that the management of the Union’s affairs vests with its NEC. Item 13.3.4(i) states that the NEC shall have the power to suspend any PEC, REC or BEC for action contrary to the terms of its constitution or to the policies or decisions of the National Congress, NGC or NEC and to take over the management of the affairs of the Province, Region or Branch until such other committees are elected.

47. The applicants agree with this contention. However, they contend that the decisions made by the Union were not made in terms of the Constitution and that this court is accordingly entitled to interfere. For the reasons which I have already mentioned, this court can only determine whether the applicants have acted constitutionally, and can only then consider interfering with the conduct of the applicants, once the applicants have exhausted their internal remedies and remain justifiably dissatisfied with the outcome on this aspect. I have already found that they have not. Nor have they made out a case for approaching this court on an urgent basis either on the question of setting aside the resolutions passed by the Union or on the question of whether they had no avenues available to them for approaching this court on the issue of the availability of finances. Likewise on the question of urgency then, the application also falls to be dismissed with costs.

Costs

48. It has been contended on behalf of the Union that, in the event of this Court having found that the first applicant does have authority and legal standing to launch these proceedings, but that it has failed in the application, I should not make the usual costs order. Because the first applicant is part of the body of the Union, and because the funds of the Union in terms of its Constitution are earmarked to further the objectives of the Union and to promote and further the interests of its members on matters of education, and not to promote infighting amongst the ranks and the office bearers, to make a costs order against the first applicant would be ordering Peter to pay Paul. I agree. To take it even further, it would have the effect of ordering Peter to Pay Paul with Jo’s money.

49. However, that is not the end of the matter. I have found that the first applicant does not have authority to institute these proceedings. I have also found that the second, fourth, fifth, sixth, seventh and eighth applicants have placed nothing before me to confirm that they intend to be parties to these proceedings, either by way of confirmatory affidavits, letters of authority or signed resolutions.

50. In the premises, the only party before me is the third applicant in his personal capacity as a member of the Union. It is so that clause 16 of the constitution indemnifies officials, office bearers (such as the third applicant) and committee members of the Union (provided they have not acted in a manner which would constitute misconduct) against all proceedings, costs and expenses incurred by reason of the performance of their duties on behalf of the Union (my emphasis). However the third applicant has not brought this application on behalf of the Union. He has purported to bring the application in his official capacity as an office bearer of the first applicant (in which regard I have already found that he has no authority and no legal standing) against the Union. He has also purported to bring the application on behalf of the balance of the remaining applicants with their authority (in which regard I have found that there is nothing before me from these applicants to confirm this), against the Union. Lastly, he has also brought the application in his personal capacity as a member of the Union against the Union. It has been successfully argued that he has locus standi to do so and I have made a finding in this regard (see Mtshali v Mtambo and Another 1962 (3) SA GWLD 469).

51. The application falls to be dismissed with costs. The usual costs order in the circumstances which I have just described would not result in the Union having to pay the Union as contended on its behalf and I see no reason therefore, why such an order should not follow.

52. In the premises I make the following order:

ORDER:

1. The application is dismissed.

2. The third applicant (Mncekeleli Ndongeni) is directed to pay the costs of the application in his personal capacity.

I T STRETCH

Judge of the High Court

23 September 2014

Matter heard on: 21 August 2014

For the applicants: P.H.S. Zilwa SC with M Simoyi Instructed by Malusi & Co Attorneys East London Locally represented by: Potelwa & Co. King Williams Town Ref.: Mr Malusi Tel. 043-722 9316 For the first respondent: J.G. Rautenbach S.C. Instructed by Cheadle Thompson & Haysom Locally represented by: Hutton & Cook King Williams Town Ref. Kalpa Ravala Tel. 043-642 3410