Qaukeni People’s Organisation t/a Inkonjane Community Radio v Task Team of Inkonjane F.M. And Others (1007/07) [2008] ZAECHC 68 (29 May 2008)

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSKEI DIVISION) CASE NO.: 1007/07

In the matter between:-

QAUKENI PEOPLE’S ORGANISATION T/A

INKONJANE COMMUNITY RADIO Applicant

And

TASK TEAM OF INKONJANE F.M. 1st

Respondent

LIZO RULENI 2nd Respondent

FUNDISILE GULENI 3rd Respondent

THE STATION COMMISIONER, SAPS

LUSIKISIKI 4th Respondent

JUDGMENT

PAKADE, J.:

INTRODUCTION

[1] The issue in this application is whether or not a breakaway group of an association can continue to act, convene general meetings on behalf, conduct elections with a view of changing the board of directors of the association from which it had excised itself or broken away.

BACKGROUND

[2] The applicant is an association of the people who reside in the local municipalities of Mbizana, Qaukeni, Ntabankulu and Port St Johns within the O. R. Tambo District Municipality. It has a constitution from which it derives its juristic personality to sue and be sued in its own name. It is implicit in the constitution of the applicant that the second and third respondents are its members. The second respondent is the deputy chairperson of the task team, the first respondent herein.

[3] The applicant was formed with a view to uniting the community in the areas mentioned in paragraph [2[ above so that they may be able to own and manage a community radio station as part of improving their lives. It is common cause as not having been disputed by the respondents that the constitution of the applicant was adopted at a special meeting of its members held on 30 October 2006. Inkosi Mwelo Nonkonyana, the deponent to the founding and replying affidavits in this application , became the acting chairperson of the interim board of directors of the Qaukeni People` s Organisation , the applicant herein by virtue of having been unanimously elected in that meeting. The applicant established, as it appears herein below, a community radio station known by the trade name of Inkonjane Community Radio. I should, herein below allude to the events which led to the formation of Inkonjane Community Radio in the Region of amaMpondo.

[4] On 7 June 2006 the community mentioned in paragraph [2] above was given a broadcasting licence to operate a community radio station known as Ngqungqushe community radio station for a period of four years. The granting of the broadcasting licence was subject to the conditions, inter alia, that Ngqungqushe Community radio station merges up with Wild Coast FM, its competitor, to establish one entity which would be issued with one broadcasting licence on frequency 91.9MHz. The conditions had to be fulfilled within a period of six months from 7 June 2006.

[5] The two radio stations merged in due course and on 4 December 2006 a letter jointly signed by Inkosi M. Nonkonyana as chairperson of Ngqungqushe FM and by Mrs N. Lande as chairperson of the Wild Coast FM was dispatched to the Head of Licencing, Independent Communications Authority of South Africa under the letter heads of “INKONJANE COMMUNITY RADIO”. The relevant excerpt of the letter reads as follows:

“We are pleased to advise that all the conditions have now been met in that:-

We have merged with our erstwhile competitor, Wild Coast F.M. and annex hereto marked “1” our constitution duly signed by the leadership of both entities.

The minutes of the meeting whereat the merger was discussed and concluded are annexed hereto marked “2”

The list and cv’s of Board of Directors and management that is representative of both parties are annexed hereto marked “3a” and “3b” respectively.

Provision has been made for community participation in the decision making processes, membership and selection and provisioning of programming in our constitution.

……………………………………..”.

[6] On 5 April 2007 the applicant was issued with a community sound broadcasting licence on 91.9 MHz valid up to 4 April 2011. One of the conditions of the licence is that its control shall he vested in the Qaukeni People’s Organisation. One of the technical licence conditions is that the licencee is licensed to operate from a studio located at Zalu Multi –Purpose Community Centre.

FACTS

[7] It was not long after the applicant was up and running that some misunderstanding surfaced concerning its governance. This misunderstanding manifested itself on 4 June 2007 when three members of the erstwhile Wild Coast FM who are now members of the interim board of the applicant directed some complaints and grievances to and against the interim chairman of the board. The letter also invited him to a meeting of stakeholders which would be held at Zalu Hill on 8 June 2007. Some allegations of maladministration were levelled against him, such as his attitude towards other members of the board, the fact that he has a busy schedule and is not always available etc. There are numerous of them. The complaints are penned by Mrs Nombulelo Lande, Mr Mawethu Dubedube and Mr Happy Bongoza as ‘concerned co-founders’. The preamble to the letter reads as follows:

“As members of Inkonjane FM and the former board and management members of the Wild Coast FM under the chairmanship of Mrs Nombulelo Lande and management of Mr Happy Bongoza, we wish to submit this letter to your office to declare the dispute against your governance as the Acting chairperson of the merged Inkonjane FM on the following reasons”.

[8] The host of complaints and grievances are not relevant for the purpose of this judgment. Suffice it to know that there are some members of the applicant who are dissatisfied with the manner the Community Radio Station is managed by the interim board of directors.

[9] The acting chairperson and his interim board did not attend the meeting held on 8 June 2007 to resolve the complaints and grievances against him. Again by notice dated 8 June 2007 Inkosi Mwelo Nonkonyana and his interim board was invited to the stakeholders` meeting which was scheduled for 17 June 2007. He attended the meeting and the concerned co founder members of the applicant were afforded an opportunity to direct their complaints to the board. Of note is that Mrs Lande , Mr Dubedube and Mr Bongoza left the meeting in the middle of the discussion and in their absence Inkosi Mwelo Nonkonyana levelled accusations against Mrs Lande that she had instigated the people to present some demands to him and that the three of them had fraudulently opened the radio station`s bank account with the Lusikisiki First National Bank. It is clear from the minutes of that meeting that the relationship between the interim board members and the general membership of the applicant was not cordial. The 2nd and 3rd respondents were in attendance at that meeting.

[10] On 3 July 2007, Inkosi Mwelo Nonkonyana reacted to the letter of demand written to him on 4 June 2007. He informed each of them that the Board had, at a special meeting held on 2 July 2007, resolved to suspend them as board members of Inkonjane Community Radio. However, at a later stage at a board meeting held on 8 July 2007 the suspension of the three concerned co founder members were uplifted.

[11] On 20 July 2007 acting chairperson of the applicant wrote a letter to the chairperson of the task team of Inkonjane FM. The letter was addressed to the 3rd respondent. The relevant portion thereof, the last paragraph of which reads as follows:

“It has been brought to my attention that a notice has been issued for (sic) election of the Board for Inkonjane F.M. I trust that you will withdraw such notice in the interest of unity and cohesion”.

[12] Already there was a letter addressed to the acting chairperson of the interim board of the applicant on 17 July 2007 which, I guess, had not yet been delivered to him when he wrote the above extract. The letter invites him to join preparations for the AGM and launch of Inkonjane FM. The letter is penned by the 3rd respondent. I have to reproduce it herein below:

“Re: Invitation to join preparations for AGM and Launch Inkonjane FM.

You and your board members are kindly invited to join the preparations as stated herein above .These preparations include , among other things :-

> Public meetings that are held in districts of the

media coverage area.

Committees that are established to assist in preparations.

Furthermore you are advised that the public meetings are commencing as follows :

Port St Johns 10h 18 -07-2007

Lusikisiki 10h 19-07-2007

Flagstaff 10h 19-07-2007

Ntabankulu 10h 20-07-2007

NB: Be advised further, that on Sunday the 22-07-2007 there will be a mass meeting that will be held at Zalu Hills MPCC which will deal, among other things, (sic) the reviewal of the constitution.

Lastly, you are reminded that on the 28-07-2007 Annual General Meeting and Launch will be proceeded (sic).

We will appreciate any other kind of assistance you might deem necessary to render in the circumstances”.

[13] Following upon this letter, public invitations along the following lines were extended to the people of the Mpondo Region:

“ INVITATION : ISIMEMO

We kindly invite everyone to the launch of a brand new community radio station – Inkonjane Community Radio. It is in this occasion that a permanent board will be elected to be in charge of the governance of the station. This occasion will be held in this order:

District : Lusikisiki

Venue : Zalu Hills MPCC

Date : 28 July 2007

Time : 10H ”.

[14] As a result of the aforesaid letter written to him and public invitations to attend the meeting, the acting chairperson approached this Court for an urgent relief. He obtained, ex parte on 26 July 2007, the following order with interim relief:

“3.1 Declaring the Qaukeni People’s Organisation

(QAPO) as the only legal entity that is the owner of Inkonjane Community Radio Station;

Declaring the decision of the task team of Inkonjane

FM to hold an Annual General Meeting of the Community of Mbizana, Ntabankulu, Qaukeni (Ingquza Hill) and Port St Johns Local Council on Saturday 28 July 2007 at Zalu Multi Purpose Centre, Lusikisiki null and void and of no force or effect whatsoever;

Interdicting and restraining the members of the Task

Team including 2nd and 3rd Respondents and/or any of

their supporters/ agents from holding any meeting

including the Annual General Meeting scheduled to take place on Saturday 28 July 2007 under the auspices of Inkonjane FM without the authority from the Interim Board of the Applicant herein;

Interdicting and/or restraining the members of the

Task Team including 2nd and 3rd Respondents herein or any of their supporters/ agents from corresponding with ICASA, MDDA or any competent authority for or on behalf of Inkonjane Community Radio;

Authorising and directing the 4th Respondent herein to

appoint and deploy such members of SAPS for Lusikisiki to ensure that the meeting scheduled to take place on Saturday 28 July 2007 is not held and to ensure that this order is complied with;

Directing the Respondents to pay the costs of the application jointly and severally, the one paying and the others to be solved.

4. Directing that paragraph 3.3 to 3.5 of the Rule Nisi to operate as interim relief/mandamus pending the finalisation of the application.

IT IS FURTHER ORDERED THAT:

5. Leave be and is hereby granted authorising any member of the South African Police Service to serve this application and this order on the Respondents.”

[15] Mr Hinana, counsel for the applicant, premised his argument on the basis that the governance of the applicant vests in its interim Board of Directors and that the task team which is not even a legal entity cannot lawfully convene and hold meetings to discuss the affairs of the Inkonjane Community Radio without the consent of the Board. I agree. The task team is not constituted in terms of the constitution of the applicant but by a minority membership of the Qaukeni People`s Organisation. It appears at best to be part of the “concerned co founders” who now constitute a breakaway group from the applicant’s membership and its interim Board. The very name “task team” suggests to me that they are not the majority members of the applicant hence I refer to them as a breakaway group. It appears to me that the majority members of the applicant who are represented by its interim board cannot be bound by the resolutions taken by a minority group. It therefore follows in my view that the meeting scheduled for 28 July 2007 was unlawful and its resolutions are null and void.

[16] Mr Dilizo, counsel for the 2nd and 3rd Respondents submitted that as the meeting was held before the service of the order such order is now academic and must be discharged with costs. I do not agree. The meeting was illegal and had to be interdicted. The institution of the application by the applicant on an urgent basis was justified because the meeting was unlawful. The 2nd and 3rd respondents have admitted that they had attended the meeting which was illegally convened by the 3rd respondent. There is unchallenged evidence from a policeman, Zola Gana that he pertinently brought the order to the attention of a member of the task team on 27 July 2007 and that he warned him that they would be held in contempt of the court order if they held the meeting on 28 July 2007. There is nothing to gainsay that averment from the respondents. There is a further unchallenged evidence that another policeman actually visited the venue of the meeting on 28 July 2007 and found the meeting being chaired by the mayor, Ngozi. He brought to the attention of mayor Ngozi the contents of the order but he ignored it and continued with the meeting with impunity. If the matter is decided on the basis of Plascon –Evans Paints v Van Riebeeck Paints [1984] ZASCA 51; 1984 (3) SA 623 (A ), a final interdict should be granted on the facts stated by the respondents together with the admitted facts in the applicant` s affidavit. Where it is clear that the facts, though not formally admitted, cannot be denied they must be regarded as admitted. In this respect, I bear in mind and adopt the words in Stellenbosch Farmers` Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 at 235E-G that:

“In certain cases the denial by the respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact. If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross examination under Rule 6(5)(g) of the Uniform Rules of Court and the Court is satisfied as to the inherent credibility of the applicant`s factual averment, it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief he seeks. There may be exceptions to this general rule, eg where the allegations or denials of the respondent are so far –fetched or clearly untenable that the Court is justified in rejecting them merely on the papers”.

[17] I am satisfied that the matter falls to be decided on the basis set out in paragraph [16] above. The meeting was not authorised by the applicant and the opposition of the application was also not authorised by the applicant.

ORDER

[18] In the circumstances the following order is made:

Rule nisi issued on 26 July 2007 is confirmed in paragraphs 3.1; 3.2; 3.3; 3.4; and 3.5 thereof.

The 2nd and 3rd Respondents are ordered to pay costs of this application on an attorney and client scale and such costs to be paid by them in their personal capacity, jointly and severally the one paying the other to be absolved.

__________________________

JUDGE OF THE HIGH COURT

Heard on: 27 May 2008

Delivered on: 29 May 2008

Counsel for the Applicant: Adv Hinana

Instructed by: Mr Mgxaji Mdunge Inc.

Applicant’s Attorneys

45 Leeds Street

MTHATHA

Counsel for the Respondent: Adv R M Dilizo

Instructed by: Messrs P. Madikizela & Co.

2nd & 3rd Respondent’s Attorneys

38 Leeds Road