Court name
High Court of eSwatini
Case number
4227 of 2010

Dlamini v Tshabalala and Another (4227 of 2010) [2011] SZHC 113 (28 April 2011);

Law report citations
Media neutral citation
[2011] SZHC 113













IN THE HIGH
COURT OF SWAZILAND



HELD AT MBABANE







CIVIL CASE
NO.4227/10







In the matter
between:







Sandile Myalo
Dlamini ….............................................Applicant






And






Major
General Jeffery
Tshabalala
….....................1st
Respondent


Attorney
General
…............................................2nd
Respondent







Coram: Hlophe J






For
Applicant: Mr. B. J. Simelane



For Respondents:
Mr. Zwan











JUDGMENT



HLOPHE J







[1]
It is common course that the Applicant was, on the 8
th
November 2010, elected into the position of
Chairman of the Cooperative Society called Hlalawati Savings and
Credit Cooperative Society Limited.











[2] Hlalawati
Savings and Credit Cooperative Society Limited (Hlalawati or The
Cooperative Society) is a Savings and Credit Cooperative Society
formed or established in terms of the provisions of The Cooperative
Societies Act, No. 5 of 2003. This particular Savings and Credit
Cooperative Society comprises of members of the Umbutfo Swaziland
Defence Force. Notwithstanding this fact, it is not in dispute that
the operations or the day to day operations of this Cooperative
Society are governed in terms of the Cooperative Societies Act 5 of
2003 or in terms of the Cooperative Societies Regulations of 2005. I
have not had sight of the by-laws of this Cooperative Society and I
am uncertain if they exist.







[3] The parties
are agreed further that sometime back, and before the November 2010
Elections of New Office Bearers, the members agreed to establish a
position of a patron in Hlalawati Cooperative. It is not in dispute
that this position was then to be occupied by the First Respondent
who occupied the position of Deputy Commander in the Umbutfo
Swaziland Defence Force. There is however no consensus on what the
purpose of this post was. This lack of consensus on this aspect of
the matter is not material as the matter does not in my view turn on
this point at all.











[4] According to
Section 53 (1) of the Cooperatives Societies Act, 2003, the following
are the positions that each Cooperative Society should have;
Chairperson, Vice Chairperson and Treasurer.







[5] The holders of
these positions are to be elected by secret ballot at the Annual
General Meeting in accordance with the procedures laid down in the
by-laws according to Section 53 (1) of the Cooperative Societies Act.







[6]
Other than the provision for the position of the Secretary General in
terms of Section 53 (2) who shall be appointed by The Annual General
Meeting, and need not be a member of the Management Committee, the
Act does not provide for any other position as forming part of the
Management Committee. Of course Section 50 (1) (A) states that the
number of members of the Management Committee of a Cooperative
Society shall be determined by the relevant by-laws. I was not
referred to any by-law indicating the existence of any other position
including that of a Patron but in this particular Cooperative Society
I can see from Annexure "B
M
to the application that there were also elected members
for the positions of Deputy Chairperson, Credit Committee, Education
Committee and Supervisory Committee.











[7] The position
of a patron does not appear to have been one of those for whom an
election was held nor are its functions spelt out anywhere in the
establishing documents as referred to above.







[8] According to
the Respondents the position of a Patron was established to promote
or safeguard the interests of the Umbutfo Swaziland Defence Force
particularly because the Cooperative Societies' membership comprised
members of the army. I presume this is because discipline is key in
the army and therefore this position was said among other things to
be there to ensure that its members uphold the discipline at all
times. Indeed according to the Respondents papers the First
Respondent was appointed into this position to ensure that its
interests do not run counter to the mandate of the Defence Force. It
is not denied by the Applicant as alleged by the Respondent that it
was members of Hlalawati Cooperative Society themselves who
approached the administration of the army and requested from the Army
Commander that a Senior Army Officer be appointed into Hlalawati
Cooperative Society and occupy the position of a patron so that such
an Officer can take the necessary decisions on behalf of the army.
Notwithstanding this fact, it is not in dispute that the said post
was never incorporated into the by-laws of Hlalawati and to that
extent appears to have been a private arrangement.







[9]
It was within the foregoing background, according to the Applicant,
that on the 16
thNovember
2010, and following his election into the post of Chairperson of
Hlalawati Savings and Credit Cooperative Society on the 8
th
November 2011, he was called to a meeting with the First
Respondent in the presence of one Brigadier Gwalagwala Dlamini and
Lieutenant Colonel Derrick Nkambule. The Applicant does not give much
detail on what transpired at the said meeting (this I say for
purposes of determining whether he was given a hearing) except to say
that he was told by the Respondent to relinquish his chairmanship in
Hlalawati Savings and Credit Cooperative Society Limited. The reasons
for such an instruction were said to be his alleged poor discipline
as well as his net pay which was allegedly below a third of his
earnings. Applicant was later served with a letter which confirmed
the revocation of his chairmanship in the said Cooperative Society.











[10] The Applicant
alleged that the First Respondent purported to revoke his
(Applicant's) chairmanship in the said Cooperative Society in his
(First Respondent's) capacity as its Patron. It was contended that
the Patron of the Cooperative Society had no such power in terms of
the establishing documents. It was alleged further that the supreme
body in Hlalawati Savings and Credit Cooperative Society is the
general meeting whose decisions or resolutions guide the Management
Committee. It was contended further that the expulsion of a member of
the Cooperative Society could legally be done by the Management
Committee or by the General Meeting comprising the entire membership
and not by the patron who had no such powers in terms of either the
Act, Regulations or By-laws.











[11]
It was contended further that there was no legal provision for the
expulsion or revocation of a member's election into office by a
patron. By taking the decision he took in revoking Applicant's
election into the position of Chairman, the First Respondent had
misconceived his powers or duties and functions and had acted ultra
vires his mandate and authority and therefore his actions or decision
was
void abinitto.







[12] The Applicant
went on to dispute that there was in law any sound reasons for the
purported revocation of his election into the said office. According
to him there was no law or legal provision in the Act or Regulations
which required him to earn above a third of his salary as chairman in
order to retain or maintain his position. Section 51 of the Act only
prohibits an insolvent from taking office in the said organization.
As insolvency can only be declared by a Court of Law: he has never
been so declared. In any event he denied that his salary was below a
third as alleged and as proof of this contention he annexed his
salary advice which showed that he was correct.







[13] On the
contention he had a poor discipline record, he denied such and
contended that if such were true the First Respondent as his senior
would have disciplined him in accordance with the existing laws and
established structures. I must say that I was taken aback by this
contention because other than Respondent's alleged say so no
demonstration of such a poor discipline record has been established
or proved nor has there been demonstration on how such a poor record,
if it does exist, impacts adversely on Applicant's membership in or
chairmanship of Hlalawati Cooperative Society or even the
legislation^that prohibits same.







[14]
Because of the foregoing contentions the Applicant instituted the
current proceedings seeking
inter alia the
following orders:-




  1. Declaring
    Respondent's revocation of Applicant's chairmanship of Hlalawati
    Savings & Credit Cooperative Society Limited to be null and
    void.



  2. That Respondents
    pays the costs of the application.



  3. Any further or
    alternative relief.
















[15] The First
Respondent signed and filed a Notice of Intention to oppose the
application personally. This was subsequently followed by an
application to intervene in the proceedings filed by the Attorney
General who asked this Court to allow him to intervene in the
proceedings alleging mainly that he had an interest therein by virtue
of the fact that whatever actions the First Respondent took in
Hlalawati Cooperative Society (which include his purported revocation
of Applicant's chairmanship), he did so on behalf of the army which
had appointed him into the position of patron to take decisions on
its behalf. By this contention it was claimed that the Army or
Defence Force had the right to be represented by the Attorney
General.











[16] The
intervention by the Attorney General was allowed following its not
being opposed by the Applicant. This called for a rearrangement in
the citation of the Respondents as the hitherto Respondent became the
First Respondent whilst the then intervening party became the Second
Respondent.











[17]
The Respondents raised certain points
in
limine, which it was agreed
at the commencement of the argument, were to be argued simultaneously
with the merits. The points aforesaid are the non-joinder of
Hlalawati Savings and Credit Cooperative Society Limited as a party;
that this Court has no jurisdiction to hear this matter as such a
dispute had, in terms of Section 98 (1) (b) of the Cooperative
Society Act 2003, to be referred to the Tribunal established in terms
of Section 99 of the same Act as well as the failure by the Applicant
to exhaust the Local Remedies which is a point closely related to
that of this Court having no jurisdiction to hear this matter. I
shall now deal individually with the points raised in the manner
hereinafter set out. It suffices to mention at this point that as
concerns the merits, the Respondent applied that in the event the
points aforesaid were not being upheld, it was to then apply for
leave and an opportunity to file an opposing affidavit to deal fully
with the Applicant's contention. This application I shall deal with
later on in this judgment.















Non loinder











[18] As indicated
above, the Respondents contended that Hlalawati Savings and Credit
Cooperative Society, to which the Applicant was chairman before his
contested removal by the First Respondent, should have been cited and
served as a party in these proceedings. It was contended that the
said Cooperative Society had an interest in the proceedings and
therefore had to be cited and served. The failure to cite and
Cooperative Society with the papers instituting these proceedings, it
was contended, necessitated that they be dismissed on this point
alone.











[19]
It was argued further in this regard that Hlalawati Cooperative
Society would be prejudicially affected by the carrying into effect
of an order of this Court and it was contended that in such a case it
became imperative for such a party to be cited and served with the
papers. I was in this regard referred to an excerpt in the case of
Amalgamated Engineering Union vs Minister of
Labour 1949 (3) SA 637 (A) at 659
which reads
as follows:











"If
a party has a direct and substantial interest in any order the Court
might make in the proceedings, or if such order cannot be sustained
or carried into effect without prejudising that party he is a
necessary party and should be joined in the proceedings unless he has
waived his right to be joined."











[20] It is
contended that the order sought by the Applicant herein cannot be
carried into effect without prejudising the interests of Hlalawati.
The feared prejudice is however raised in a speculatory manner in the
heads as follows,











"It
is submitted that prejudice
man
arise where an order is
granted by this Honourable Court only to find that another person has
been elected into the position of the Applicant. Further there may be
another person acting as Chairman in the absence of the Applicant."







[21] It was
further argued that Hlalawati's interest also arises from the fact
that it was the one required to comply with the order that may be
issued by this Court.











[22]
Since it was not a party to the proceedings, so the argument went, it
would not be bound by an order granted in these proceedings. If this
order would not be binding on Hlalawati, it would be
Brutum
Fulman,
and this Court cannot grant such an
order.











[23]
I was further referred to
Khumalo v Wilkins
and Another 1972 (4) SA 470 (N) at 475
where
the position is stated as follows:-







"In
my view, once it is shown that a party is a necessary party in the
sense that he is directly and substantially interested in the issues
raised in the proceedings before Court and that his right may be
affected by the judgment of the Court, the Court will not deal with
those issues without such a joinder being effected, and no question
of discretion nor convenience arises."











[24] In response
to the point on the non-joinder of Hlalawati the Applicant argues
that the test whether or not a party alleged to be a necessary party
has a substantial interest in a matter is whether the interest of
such a party may be prejudicially affected by such a judgment or
order.











[25]
It was argued on behalf of the Applicant that no prejudice would be
suffered by Hlalawati Cooperative Society if the matter is heard with
an order being issued against the First Respondent. It was argued
that in fact Hlalawati had indicated its full confidence in Applicant
as opposed to prejudice because he had just been elected into the
chairmanship of the organization on the 8
th
November 2010, when his chairmanship was supposedly
revoked by the First Respondent on the 16
th
November 2010. Furthermore, immediately prior to the
said election, the Applicant served Hlalawati as a Deputy
chairperson. It was said these were indicators that Hlalawati had
confidence other than prejudice in the Applicant.











[26]
Having considered the submission by both Counsel including having
read the papers filed of record as well as the Heads of Argument, I
have no hesitation that the position stated in the authorities cited
by the Respondent's attorneys is correct. This however does not
decide the matter as the excerpts from the
Amalgamated
Engineering Union v Minister of Labour 1949 (3) SA 637 at 659
and
that stated in
Khumalo v Wilkins 1972 (4) SA
470 (N) at 475
are not applicable in the
matter at had. The judgment that may be granted in this matter is not
shown to be prejudicial to the Cooperative Society. If it cannot be
shown from the facts that Hlalawati will be prejudicially affected by
the order, then it means the latter has no direct and substantial
interest in the matter or even that the order can be granted as no
harm is envisaged.







[27] I in fact
agree with Applicant's Counsel that Hlalawati is shown from the facts
as having indicated its confidence in the Applicant as opposed to
prejudice when one considers the Applicant's repeated election into
the Management Committee together with the lack of complaint by
Hlalawati against the Applicant leading to the revocation of his
appointment by the First Respondent.







[28] On the
speculation by the Respondents that it could be that someone has;
already been appointed chairman by the Cooperative Society I must say
that I find that to be too speculative to be relied upon and
secondly, I do not believe that any prejudice in that case would be
to Hlalawati as opposed to the person who would have been so
appointed. In any event the Respondents cannot be heard to be saying
that because even though First Respondent's role and functions in
Hlalawati are not covered in any statutes, regulations or by-laws, it
is clear that he is closely associated therewith and; would have
informed the Court specifically if there was any such likely
prejudice to Hlalawati.







[29]
In any event it has to be borne in mind that, Applicants chairmanship
was revoked on the 16
th
November 2010 and on the 18th
November 2010 Applicant filed this application under a
certificate of urgency. It would therefore be very clear to me that
if Hlalawati would have gone on to appoint or elect someone into the
position of chairman in the face of the undetermined challenge by the
applicant to the revocation of his election into the same position,
the said Hlalawati would have been trying to defeat the possible
order against the revocation of Applicant's chairmanship. By so doing
the said Hlalawati would have acted in a manner that does not attract
any sympathy to it from the Court because prudence would have called
upon it to await the outcome of the matter before attempting to
fill-in the said position.







[30] I am
therefore convinced that in the circumstances of this matter, and
whilst it could have been neater to cite and serve Hlalawati Savings
and Credit Cooperatives Society with the application, it was not
legally necessary for that to be done given the conclusion I have
come to that the latter did not have a substantial interest in the
judgment or order as its execution would, in my view, not
prejudicially affect it.











[31] Consequently
the point on the non-joinder of Hlalawati be and is hereby dismissed.















The Court has
no jurisdiction to entertain this matter











[32] It was argued
on behalf of the Respondents that this Court has no jurisdiction to
hear and determine this matter because in terms of Section 98 of the
Cooperative Societies Act 2003, a dispute like the current one has to
be referred to the Commissioner who shall refer it to the Cooperative
Tribunal established under Section 99 of the Act for determination.











[33] The
Applicant's Counsel argued otherwise and in fact stated that Section
98 was not applicable in the present matter because the Section
envisages a dispute between a member and the Cooperative or its
Management Committee or any other officer. The First Respondent was
not shown to be a member nor a past member of the Cooperative just as
he was not an Officer of it. It was argued that since the office of
patron was not established in terms of either the Act, by-laws or
regulations; the current dispute was between the Applicant a member
and Officer of the Cooperative Society and a stranger. The dispute to
be resolved in terms of Section 98 and 99 is that between a member
and the Cooperative or its officer and a past member and not one
between a member or officer and a stranger. It was contended, that
the First Respondent was neither a member, past member nor an Officer
of the Cooperative Society. It was further argued that the nearest
First Respondent could be in the Cooperative, was an officer. This
however could not be when considering the fact that in terms of the
definition Section of the Act, an "officer" of the
Cooperative Society, was a term of art, whose parameters are set out
in the said section where the list of position holders in a
Cooperative Society is set out without a patron being included as one
of them.







[34] Section 98 of
the Cooperative Societies Act 2003, provides as follows in so far as
it may be relevant to this matter:-















Settlement
of Dispute



"98
(1) If a dispute concerning the by-laws, election of officers,
conduct of meetings, management or business of a Cooperative arises -







(b)
between a member, past member, and the Cooperative, its Management
Committee or any other officer of the Cooperative,











Such
dispute may be referred, after due attempts to settle the issue
within the Cooperative or by local informal mediators have failed, to
the Commissioner who shall refer the case to the Cooperative Tribunal
established under Section 99 of this Act for decision."







[35] It is
therefore not every dispute that arises in the Cooperative Society
that should be resolved following the provisions of Section 98 of the
Act. As I understand it and for a dispute to qualify for resolution
in terms of the Act, such has to arise either among members or
between a member, past member on the one hand and the Cooperative,
its management or any other officer of the Cooperative on the other
hand.







[36]
Is this dispute between a member, on the one hand and the Cooperative
or an officer of the Cooperative on the other, which would
necessitate that it be resolved through the provisions of Sections 98
and 99 of the Act? My answer to this question has to be in the
negative. This is because, as submitted by Applicant's Counsel, the
First Respondent is neither a member nor a past member of the
Cooperative and is also not an officer of the same. Although at a
first glance one would be tempted to think that by being appointed to
the position of Patron, which was indisputably established at the
request of the members of Hlalawati, the First Respondent was an
officer in the Cooperative Society, a closer look clarifies that that
cannot be the case in this matter for, as indicated above, the term
officer, is used as a
term of art and its true meaning is set out in the interpretation
Section, which provides as follows:-











"Officer
of a Cooperative includes a Chairperson, Vice Chairperson, Secretary,
Treasurer, Manager or any other person empowered by this Act, the
Regulations or the by-laws to give directives in regard to the
business of the Society or to supervise such business."







[37] Clearly
whilst this dispute is between a member or officer of the
organization on the one hand and the Patron of the Cooperative on the
other, such is not the dispute envisaged by Section 98 of the Act
because the position of patron is not that of a person empowered by
the Act, or the by-laws or the Regulations as provided for in
definition. This therefore means that in revoking the chairmanship of
the Applicant, the First Respondent misconstrued his powers and acted
ultra vires the enabling documents listed above.







[38] Consequently
and on this point alone, the contention by the First Respondent that
this Court does not have jurisdiction to hear and determine this
matter cannot be sustained and the point aforesaid is hereby
dismissed.















Failure to
exhaust local remedies















[39] The First
Respondent further contended that Applicant should not have
instituted these proceedings before exhausting the local remedies or
the remedies availed it by the Act. The Act, it was argued provided
machinery for the resolution of disputes in the Cooperative. This
point is in my view closely related to the foregoing one with the
result that a decision of that one, also affects this one.











[40] It has just
been decided that the dispute between the Applicant and the First
Respondent is not one between the persons or entities envisaged by
Section 98 and 99 of the Cooperative Societies Act 2003. If this is
the case it simply means that one cannot even talk of the need to
exhaust local remedies because the remedies referred to apply to the
persons or entities envisaged in the Sections aforesaid. This is to
say since a patron is not a person empowered by the Act, the
Regulations or the by-laws to give directives in regard to the
business of the Society, there are no local remedies set out in terms
of the Act to exhaust in his case. This further means that since the
dispute is between a member or officer and a non member same is not
one to be settled in terms of Section 98 and 99 of the Act and if
that is the case, there are no applicable remedies set out in terms
of the Act.







[41] Mr. Simelane
for the Applicant argued further that even if Applicant were an
officer of the Cooperative Society envisaged in Section 98 of the
Act, the question of the exhaustion of the local remedies by the
Applicant would still not arise because there is no general rule of
law which precludes a person from having access to a Court of Law so
that his matter could be dealt with by a certain Tribunal.















In
Welkom Village Management Board v Leteno 1958
(1) SA







490
the position was expressed in the following
terms:-















"Whenever
domestic remedies are provided by the terms of a statute, regulation
or Conventional Association, it is necessary to examine the relevant
provisions in order to ascertain in how far, if at all, the ordinary
jurisdiction of the courts is thereby excluded or deferred."







[42]
The Court went on to assert the position that even in those instances
where the applicability of the limitation statute (that is a statute
in the realm of Section 98 of Cooperative Societies Act 2003) can be
assumed, "there is no general rule of law that a person who
considers that he has suffered a wrong is precluded from having
recourse to a Court of Law while there is hope of extrajudicial
redress:" See also
Bindura Town
Management Board v Desai and Company 1953 (1) Sa 358 (AD) at 362.







[43]
The position that has evolved over the years is that set out in
Shames v South African Railways and Harbours
1922 AD 228
which is to the effect that an
aggrieved Applicant who had certain remedies availed him by statute
was not entitled to have recourse
to the
Courts except on the ground of some illegality or irregularity in the
proceedings
, and even then only when such
irregularity or illegality had been persisted in until the final
stage and he had exhausted his statutory remedies.







[44]
In
Jockey Club of South Africa and Others v
Feldman 1942
AD 360 at 351 - 2 the
rule set out in Shames v South African Railways and Harbours (Supra)
was interpreted to read that the Courts' jurisdiction was excluded
only if that conclusion flows by necessary implication from those
particular provisions under consideration and even then only to the
extent indicated by such necessary implication.











[45]
In a case where the legislation or regulations provide (s) that an
aggrieved party might appeal or take the matter to some local remedy,
there is no reason to imply an intention in the particular regulation
or legislation that the jurisdiction of the Court should only be
limited to those instances where the aggrieved person shall have
exhausted his remedies under the regulations or legislation. In fact
in
Golube v Oosthuzen and Another, 1955 (3) SA
1 (T)
the position was put as follows:-











"The
mere fact that Legislature has provided an extra-judicial right of
review or appeal is not sufficient to imply an intention that
recourse to a Court of Law should be barred until the aggrieved
person has exhausted his statutory remedies."











[46]
As observed by
Ogilvie Thompon AJA in the
Welkom Village Management Board v Leteno (Supra) at page 503 B-C,
"the mere existence of a domestic remedy
did not conclude the question (whether or not the jurisdiction of the
Court is excluded,) since it is in each case necessary to consider
all the circumstances in order to determine whether a necessary
implication arises that the Court's jurisdiction is either wholly
excluded or at least deferred until the domestic remedies have been
exhausted."











[47] The
implication whether the Court's jurisdiction has been excluded
through the provision of domestic remedies in a given setting, does
not arise in a case where the aggrieved person's complaint is the
illegality or fundamental irregularity of the decision he seeks to
challenge.











[48]
In the
Johannesburg Municipality Council v
Maserowitz and Maserowitz 1914 TPD 439,
it
was held by the Transvaal Provincial Division that an aggrieved
person whose grievance was the failure by the Municipal Council to
give him a hearing was not to be precluded from approaching Court for
a remedy, simply because of a provision in the Legislation or
Regulations to the effect that his dispute ought to be resolved
through some domestic or other suggested remedy. The position was in
fact put as follows:-



'This
Court has the inherent
right, as has been laid down in various cases, to take cognisance of
an application against a public body like a Town Council, where that
body has come to a decision contrary to the fundamental principles of
our law, namely, by having refused an application and condemned a
person without giving him a hearing.
That
jurisdiction which the Court has, has not, in
mu
opinion, been
ousted bu the fact that the legislature has given the applicant a
right of
appeal
to a Magistrate when his application is refused.

Assuming that Mr. Feetham's
contention is correct, that the Magistrate would have been bound, on
appeal to Him by the Respondents, to have set aside the decision of
the Town Council and to have ordered the licence to be issued,
nonetheless it seems to me that the right, which the Respondents had
to come to this Court for relief is not taken away by that provision.
They have been condemned unheard."







[49]
In the matter at hand, it has become clear therefore that the
provision calling for the settling of disputes by a tribunal is not
only not obligatory and it not being necessary in the circumstances
of this matter to determine whether or not from
the facts a
necessary implication arises that the Court's jurisdiction
is either excluded wholly or deferred until the domestic remedies
have been exhausted, but that in so far as the Applicant's complaint
is the illegality in the actions of the First Respondent (which I
must add seems to be well grounded), the jurisdiction of this Court
is not excluded and it therefore has the jurisdiction to hear and
determine the matter.











[50]
In any event, the rule that requires a party to first exhaust local
remedies before resorting to the Courts, is applied sparingly because
"generally an aggrieved person should have unrestricted access
to the Courts to seek redress." There certainly is no general
rule that "a person who considers that he has suffered a wrong
is precluded from having recourse to a Court of Law while there is
hope of extra-judicial redress." Furthermore, the mere fact that
a legislature has provided an extra-judicial right of review or
appeal is not sufficient to imply an intention that recourse to a
Court of Law should be barred until the aggrieved person has
exhausted his statutory remedies." See in this regard
Ntame
v MEC for Social Development Eastern Cape 2005 (6) SA 248.







[51] Consequently
I have come to the conclusion that the point on the exhaustion of
local remedies cannot be upheld in the circumstances of this matter
and particularly on the grounds that the Applicant is complaining
about the illegality of the First Respondent's decision in revoking
his election as the chairperson of Hlalawati Savings and Credit
Cooperative Society Limited, given what has already been stated above
to be the effect of an illegality in the action of the Applicant in
this matter.















Merits











[52]
The First Respondent's attorney also made an application, that if his
points
in limine are
not upheld his client should be allowed an opportunity to file an
answering affidavit where he was going to bring some further facts to
the attention of the Court. It was argued that not all the necessary
information had been put pefore this Court at this stage.







[53]
This application was opposed by the Applicant's attorney who
contended that this Court ought to dismiss this latter request by the
First Respondent. The Respondents, it was argued had no justification
not to file all their papers together with their Notice to raise
points of law or points
in limine
so that all the facts of the matter are
placed before Court so as to enable it deal with the matter in its
entirety should the points
in
limine not be upheld.







[54] As indicated
above the First Respondent did not file any opposing papers and
instead of doing so, there was filed an application to intervene by
the Attorney General who stated in such application what the
Respondents' defence was to the application. It would appear that
notwithstanding such, the Respondents want to file further
affidavits. Whilst this could be their right, it cannot be disputed
that such right has to be exercised within the framework established
in terms of the Rules of Court, which include the manner and time
limits of filing such papers.







[55]
It is also important to bring to bear the fact that the matter came
before this Court as an urgent application on the 18
th
November 2010),
following a decision of the First Respondent
purporting to revoke Applicant's election as chairman of Hlalawati
Cooperative Society on the 16
th
November 2010.











[56]
In line with the provision of the Notice of Motion, where it was
stated that the matter be heard on the 25
th
November 2010 if no opposing papers would have been
filed by then, the First Respondent entered his Notice of Intention
to oppose on the same date. } The Notice of Intention to oppose was
filed together with the application for intervention by the Attorney
General. Although indicated that a full answering affidavit would be
filed in due course, none ended up being filed, resulting in the
Respondents filing a document called a Notice in terms of Rule 6 (12)
(c) on 16
thDecember
2010. The said Notice raised points of law only. The Notice concerned
stated as follows in the very last paragraph before the date line.



"In
the event this Honourable Court does not uphold the points of law in
limine, the Respondents beg leave to file their answering affidavit
on the merits."



[57]
On the 31
stMarch
2010 I heard the application and noted that there was still no
opposing affidavit filed except for the Respondent to ask to be give
an opportunity to file a further affidavit in due course, which
request was vigorously opposed by the Applicant's Counsel.











[58] As this
application was made, the Respondents did not disclose what this
defence they intended to raise after four months was rior even
justification why the intended affidavit could not have been filed
earlier. In fact their defence as repeatedly raised in the affidavit
accompanying the application to intervene was that the First
Respondent did not act personally but on behalf of the Army and that
the action taken was because of Applicant's undisclosed poor
disciplinary record. About this other defence I am still in the dark
today.







[59] A party who
raises points of law, also needs, in my view, to file an answering
affidavit so that in the event his points are not upheld he is in a
position to proceed to the merits. The position in my view, becomes
even more compelling where a considerable period has passed between
the filing of the point of law and the time of the argument.







[60]
I must hasten to clarify that I should not be understood to be saying
that it can never happen that a party be allowed to file an affidavit
after arguing points
in limine.
I believe it is a discretionary issue for
that discretion to be exercised judicially and judiciously by the
Judicial Officer involved.











[61]
As concerns the matter at hand I have noted that the Respondents did
state their defence
ex facie the
Founding Affidavit to the application to intervene as such affidavit
had a portion where the Respondents' case was set out. Other than the
gaps that appeared when the matter was being argued forcing the First
Respondent's Attorney to ask for an opportunity to file an affidavit
later, clarifying such gaps, I do
not think that
when this party approached Court for arguing the matter there was
ever a belief that the case was incomplete. This being the case, and
as I am of the view that I have a discretion to exercise, I would not
exercise it in favour of the Respondents in this case as they appear
to be engaged upon what I would call a fishing expedition.











[62]
Furthermore,
I
genuinely do not think that a party would not
file an opposing or answering affidavit in an application brought
under a certificate of urgency for a period exceeding four months,
sunder the guise of reserving a right to file an answering affidavit
after the disposal of points
in hmine against
him. It perhaps would be a different case if such affidavit had
already been filed as at the hearing date with the only issue being
whether or not to accept it in view of its having perhaps been filed
out of time.











[63] It is even
worse in my view where the central issue is really crisp points of
law to which a further affidavit can neither add nor delete anything
as that seems the case in this matter. There can be no doubt in this
matter that the issue is simply whether or not the First Respondent,
who occupies a position (of Patron) which is not established in the
terms of the Act, Regulations or By-laws, including its functions not
being spelt out in terms of the said enabling documents, can have the
authority to act in the manner he did, which supercedes even the
resolutions of the highest body in Hlalawati called the General
Meeting, and revoke its election of a Chairman.











[64] When
considering who an "officer" is in the definition Section
of the Act there can be little doubt that in the circumstances of
this matter that the First Respondent did not have the power to take
the decision he did as he is simply neither an officer nor member of
the Cooperative Society in the sense mentioned in the Act.











[65] I can only
add that in my view, and on the material before me which is not
disputed, I am very much doubtful that anything would have changed in
this matter even if the First Respondent was shown to be an officer
in Hlalawati, given the principle of legality which goes beyond the
possession of power by a Public Officer including the Applicant's
entitlement to a hearing before a prejudicial decision is taken
against him. I must however clarify that I am not making any decision
on the issues contained in this paragraph, but I am merely commenting
in passing on what I am seeing on the material before me.











[66]
Otherwise on the point in issue after the disposal of the points
in
limine, which is whether or
not the application to file a further affidavit is being granted in
favour of the Respondents, I have considered several judgments on the
question. These include the cases of
Standard
Bank of South Africa Limited v RTS Technique & Planning (Pty)
Limited 1992 (1) SA 432 at page 441 A - H
of
the Law Report concerned, where Daniels J, whilst quoting Corbett J
in
Bader and Another v Weston and Another 1967
(1) SA 134 (c) at 136
stated the following
which I find to be apposite in this matter:-















"It
seems to.me that, generally speaking our application procedure
requires a Respondent, who wishes to oppose an application on the his
case oh the merits before the Court by way of affidavit within the
normal time limits and in accordance with the normal procedures
prescribed by the Rules of Court. Having done so it is also open to
him to take the preliminary point that (in this case) the petition
fails to disclose a cause of action and this will often be a
convenient procedure where material disputes of fact have arisen
which cannot be resolved without recourse to the hearing of oral
evidence. On the other hand,
I
do not think that normally, it is proper for such a Respondent not to
file opposing affidavits but merelu to take the preliminary point
.
I say "normally" because situations may arise where this
procedure is unexceptionable. For example a Respondent who is
suddenly and without much notice confronted with a complex
application and who would normally be entitled to a substantial
postponement to enable him to frame opposing affidavits, might well
be permitted there and then to take such a preliminary point.
Generalhj
speaking, however, where a Respondent has had adequate time to
prepare his affidavits, he should not omit to prepare and file his
opposing
affidavits and merely take the preliminary objection .... [I]t is
interesting to note that Rule 6 (5) (d) of the Uniform Rules of Court
appears to contemplate a Respondent in motion proceedings, who wishes
to oppose the application, giving notice of his intention to do so
and then delivering his answering affidavits within 14 days.
It
is only where he intends to raise a question of
law
onlu that he is directed to within the same time limit to deliver a
Notice of
this
Intention setting forth the question of
law."



[67] By analogy,
the provisions of the Rules and practice of the South African Courts
is similar to ours and I am convinced that as a general rule, it is
not open to a Respondent to file only a Notice to raise points of law
on the understanding he will file an Opposing Affidavit after such a
point shall have been dismissed. My observations are that the facts
of this matter do not point me to any exceptions to the general rule
aforesaid.











[68]
In fact in
Randfontein Extension Limited vs
South Randfontein Mines Limited and Others 1936 WLD 1 at 5,
the
Court per Geenberg J stated the position as follows:-















"
(A)nd I do not think the court would countenance a procedure which



would
enable a Respondent to delay the case and get a postponement by
raising unsuccessful preliminary points. One cannot ask the
Respondent to
assume
that his point will be successful; he must be prepared for the
possibility of
his
point failing."







See
also: (i)
Lipschitz and Schwarts NNO v
Markowitz 1976 (3) SA 772 (w) at 776



(ii) Bader and
Another v Weston and Another 1967 (1) SA 134



[69]
Reluctant as t am to continue with the matter without
the Respondent having
filed the affidavit it was
said they required
to, and for the reasons
set out above, I cannot help but refuse the application and proceed
with the matter because I do not think the Respondents are ever real
to ask for a postponement of the matter to enable them file an
opposing affidavit after 4 months. Furthermore as indicated above,
the circumstances of
the matter do not justify a
postponement of the matter in my view as this matter concerns a crisp
legal issue.







[70]
Consequently I cannot grant the Respondents application that they
afforded an opportunity to file an opposing affidavit after all the
time it has; taken them to do so and in my view they only seeks

the postponement because their points in limine
have been dismissed.







[71]
As concern the merits of the matter and in view of the approach I
have adopted, I have no hesitation to agree with the Applicant

that the First Respondent misunderstood
his powers in the manner he dealt with the matter and that he had no
such power in law to
revoke the Applicant's
few-days-old election into the chairmanship of Hlalawati Cooperative
Society. I also find
action the First Respondent,
in so far as they are not supported any legal foundation in the form
of the Act, regulations or by-laws ought to be set aside which I
hereby do. Consequently I make the following order.







71.1
The Respondent's revocation of Applicant's
Chairmanship of
Hlalawati Savings and Credit
Cooperative Society Limited be and is hereby declared null and

void.







71.2.
The respondents are to pay the costs of this application.







Delivered
in open Court on this the 28
th
day of April 2011.







N.J.
HLOPHE



JUDGE