Wellem v Cathcart Residents Association and Another (2665/2014) [2016] ZAECGHC 13 (1 March 2016)

Wellem v Cathcart Residents Association and Another (2665/2014) [2016] ZAECGHC 13 (1 March 2016)

The court found that the applicant was aware of his expulsion from the first respondent as of 15 July 2011 and did nothing to challenge it for nearly three years. The applicant's failure to act, despite knowledge of the alleged unlawfulness, constituted an objective waiver of his right to challenge the expulsion....

Source-derived case information.

Citation
[2016] ZAECGHC 13
Parties
Applicant: Thandi Wellem; Respondent: Cathcart Residents Association; Respondent: Kenneth Sigidi
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
1 March 2016
Case Number
2665/2014
Procedural Posture
Review Application / Final Judgment on Application to Review and Set Aside Expulsion From Voluntary Association
Outcome
Application dismissed with costs.
Judges
M Makaula
Legal Topics
Voluntary Association Membership, Expulsion of Members, Waiver of Rights, Delay in Review Applications
Civil Procedure Commercial and Corporate Voluntary Association Membership Expulsion of Members Waiver of Rights Delay in Review Applications

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Summary, issues, holding and outcome

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Parties

Thandi Wellem

Applicant

Cathcart Residents Association

Respondent

Kenneth Sigidi

Respondent

Procedural Posture

Review Application / Final Judgment on Application to Review and Set Aside Expulsion From Voluntary Association

Legal Issues

  1. 1 Whether the applicant waived his right to challenge his expulsion from the first respondent.
  2. 2 Whether the delay in bringing the review application was unreasonable and fatal to the applicant's case.
  3. 3 Whether the expulsion of the applicant was unlawful and should be set aside.

Ratio Decidendi

The court found that the applicant was aware of his expulsion from the first respondent as of 15 July 2011 and did nothing to challenge it for nearly three years. The applicant's failure to act, despite knowledge of the alleged unlawfulness, constituted an objective waiver of his right to challenge the expulsion. The delay was unreasonable and unexplained, and the applicant's subsequent application was motivated by the loss of his PR councillor seat rather than the membership itself. The court held that a declaratory order would have no practical effect, as the applicant had already been replaced and could not be restored to his former position. Accordingly, the application was dismissed...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.