Cape Dairy Co-Operative Ltd v Ferreira

• Jurisdiction: South Africa
• Judge: Van Heerden JA, Vivier JA, Marais JA, Olivier JA and Zulman JA
• Judgment Date: 22 November 1996
• Citation: 1997 (2) SA 180 (A)
• Docket Number: 312/95
• Hearing Date: 05 November 1996
• Counsel: H M Carstens (with him M Scholtz) for the appellant D M Fine (with him M Verster) for the respondent
• Court: Appellate Division

Van Heerden JA:

The basic question raised by this appeal is whether the respondent was still a member of the appellant on 1 November 1993. D

The appellant is a dairy co-operative incorporated under the Co-operatives Act 91 of 1981 ('the Act'). Towards the end of 1992 the respondent decided to terminate his membership of the appellant. The reason was that he intended marketing his dairy products in competition with the appellant, and that in terms of clause 99 of the appellant's statute he could not do so whilst being a member of the appellant. During E November or December 1992 the respondent informed one Thompson, a director of the appellant, of his intention and the reason therefor. Thereafter, during April 1993, the respondent met an employee of the appellant, Marais, and told him that he (the respondent) wished to resign as a member of the appellant. Marais then handed him a F printed form which he completed and signed in Marais' presence.

I shall revert to the contents of the form. At this stage it suffices to say that during June 1993 the respondent received a letter from the appellant's 'hoofbestuurder: lededienste'. The letter was dated 16 June 1993 and read as follows: G

'Aansoek om beëindiging van lidmaatskap is ontvang en is goedgekeur op 'n direksievergadering gehou op 15 Junie 1993. Aangeheg 'n tjek ten bedrae van R700 ten opsigte van u aandelekapitaal gehou in Kaap Suiwelkoöperasie Bpk. . . .'

During September 1993 the appellant's members adopted two special resolutions. These resolutions, which became operative on 1 November 1993, bestowed on the H appellant's members certain benefits which need not be detailed. The respondent did not receive such benefits and consequently initiated motion proceedings against the appellant in the Cape Provincial Division. He contended that in terms of clause 33(1) of the appellant's statute the termination of his membership became effective only at the I end of the appellant's book year (28 February 1994) and hence sought orders declaring that he was entitled to the said benefits. The application was opposed by the appellant on the ground that the respondent's membership of the appellant was terminated when the decision of the board of directors approving his application was J

Van Heerden JA

communicated to him in June 1993. The Court a quo (Van Zyl J) found for the A respondent and consequently granted the declaratory orders sought by the respondent. Subsequently it gave the appellant leave to appeal to this Court.

In order to grasp the import of the reasoning of the Court a quo, reference must be made to the contents of the form completed and signed by the respondent and to B certain provisions of the appellant's statute. The heading of the form is 'Application for termination of membership in Cape Dairy Co-operative Ltd' and it reads as follows:

'I, the undersigned . . . (the respondent) . . . hereby apply for the termination of membership in the abovementioned co-operative. C

In view of the fact that I have permanently relinquished my dairy farming in the area served by the co-operative, I will no longer be making use of the services of the co-operative.'

Clauses 29 and 33 of the statute, insofar as material, provide:

'29(1) Die aandele wat geregistreer is in...