Ex-TRTC United Workers Front and Others v Premier, Eastern Cape Province

• Jurisdiction: South Africa

Ex-TRTC United Workers Front and Others v Premier, Eastern Cape Province
2010 (2) SA 114 (ECB)

2010 (2) SA p114

Citation	2010 (2) SA 114 (ECB)
Case No	203/2000
Court	Eastern Cape High Court, Bhisho
Judge	Van Zyl J
Heard	February 25, 2009
Judgment	June 4, 2009
Counsel	T Delport (attorney) for the plaintiffs.; SM Mbenenge SC (with CTS Cossie) for the defendants.

Flynote : Sleutelwoorde B

Voluntary association — Locus standi — Although association can under Uniform Rules sue or be sued in own name, this not conferring locus standi on entity where otherwise lacking — Uniform Rules of Court, rule 14(2).

C Voluntary association — Universitas — Requirements — Whether association amounting to universitas to be determined with reference to its nature, object and activities — Written constitution desirable but not essential — Where association formed for limited purpose and would cease to exist once purpose achieved, object to have perpetual succession and hold property separate from members lacking — Such association lacking D essential element of universitas.

Headnote : Kopnota

In an action in the High Court for damages for breach of contract, after a separation of issues, the court was asked to determine the issue of the locus standi of the first plaintiff. The plaintiff was described in the particulars as E a voluntary association whose objective was 'to represent its members in regard to their rights and interests emanating from their employment by and the closure of the Transkei Road Transport Corporation and to jointly institute legal proceedings to achieve [that objective]'. The plaintiff had no written constitution. The defendant argued that the plaintiff lacked locus standi, as it was not a universitas, did not have a constitution and did not F have a direct and substantial interest in the subject-matter of the action. Conversely, the plaintiffs argued that the first plaintiff was able to sue in its own name by virtue of the provisions of rule 14(2) of the Uniform Rules of Court.

Held, that rule 14(2) was nothing more than a procedural aid that assisted a plaintiff to cite certain legal entities that did not have any existence separate G from their members or owners. (Paragraph [15] at 125C.)

Held, further, that rule 14 did not turn a partnership, firm or unincorporated association into a different entity that existed separately from its members, or vest it with locus standi where it was otherwise absent. (Paragraph [16] at 126B.)

Held, further, that there was no merit in the submission that the first plaintiff H could not be a universitas because it did not possess a written constitution. Although advisable, it was not essential for a universitas to have a constitution. Accordingly, the mere fact that the first plaintiff in the present matter had no written constitution was not determinative of the question whether or not it had locus standi. (Paragraphs [18] - [19] at 126E - 128C.)

Held, further, that whether the first plaintiff was a universitas therefore had to be I decided by having regard to its nature, object and activities. From a reading of the particulars of claim, it was clear that the rights and interests referred to were those that arose from a contract entered into between the defendant and a labour union (the Transport and General Workers Union) which represented the persons who were employed by the said corporation prior to its dissolution. The conclusion was inescapable that the first plaintiff was J formed for a very limited purpose and that, once that purpose was achieved,

2010 (2) SA p115

there would be no further need for it and it would cease to exist. The very A object of the association negated an intention that it would have perpetual succession and hold property separate from its members. It was clearly not necessary for the achievement of its purpose to possess those characteristics. The first plaintiff consequently lacked the requisites for a universitas. (Paragraph [20] at 128D - F.)

Held, further, an association could sue on behalf of its members under rule 14(2) B only if there existed a sufficient nexus between the individual members in their capacities as members of the association, and the right that formed the subject-matter of the litigation. Applied to the present matter, the first plaintiff did not institute the present proceedings to protect or enforce an interest which it had as a body or organisation. Stated otherwise, it did not propose to enforce the rights of its members which they possessed by reason C of their membership of the association. The right to claim damages from the defendant for the alleged breach of contract was a personal right that vested in each one of the members of the association individually. (Paragraph [25] at 131B - F.)

Held, further, that the plaintiffs, in deciding to jointly pursue their claims against the defendant, were consequently not an association of persons within the D meaning of that word. Their intention was rather, having regard to the purpose of the first plaintiff and the nature of the relief claimed, to use the first plaintiff as a convenient vehicle to bring a representative action, which action did not exist in our civil procedure. (Paragraph [26] at 131F - H.)

Held, further, that, in conclusion, it had not been shown on the pleadings that the E first plaintiff had locus standi and the defendant's objection in that regard had to be upheld. (Paragraph [30] at 133C.)

Held, accordingly, that the defendant's objection to the locus standi of the first plaintiff was upheld and the first plaintiff's claims were dismissed. (Paragraph [35] at 134D.) F

Cases Considered

Annotations

Reported cases

Absa Bank Ltd v Blignault and Another and Four Similar Cases 1996 (4) SA 100 (O): referred to

African National Congress and Another v Lombo 1997 (3) SA 187 (A): referred to G

Ahmadiyya Anjuman Ishaati-Islam Lahore (South Africa) and Another v Muslim Judicial Council (Cape) and Others 1983 (4) SA 855 (C): dictum at 861C applied

Ahmed v Belmont Supermarket 1991 (3) SA 809 (N): referred to

Bantu Callies Football Club (also known as Pretoria Callies Football Club) v Motlhamme and Others 1978 (4) SA 486 (T): referred to H

Boonzaier v Kiley 1981 (2) SA 618 (W): referred to

Burger v Rand Water Board and Another 2007 (1) SA 30 (SCA): dictum at 34D - E applied

Collin v Toffie 1944 AD 456: referred to

Commissioner for Inland Revenue v Witwatersrand Association of Racing Clubs 1960 (3) SA 291 (A): dictum at 302A - B applied I

Congregation of Oblates of Mary Immaculate in the Transvaal v Moluele and Others 1949 (3) SA 885 (T): referred to

DF Scott (EP) (Pty) Ltd v Golden Valley Supermarket 2002 (6) SA 297 (SCA) ([2002] 3 All SA 1): referred to

Dada v Dada 1977 (2) SA 287 (T): referred to

Dadoo Ltd and Others v Krugersdorp Municipal Council 1920 AD 530: referred to J

2010 (2) SA p116

De Meillon v Montclair Society of the Methodist Church of Southern Africa 1979 (3) SA 1365 (D): dictum at 1368H - 1369E applied A

Devonia Shipping Ltd v MV Luis (Yeoman Shipping Co Ltd Intervening) 1994 (2) SA 363 (C): dictum at 369J - 370A applied

Du Toit v African Dairies Ltd 1922 TPD 245: referred to

Ex parte Doornfontein-Judiths Paarl Ratepayers Association 1947 (1) SA 476 (W): B criticised and not followed

Ex parte Johannesburg Congregation of the Apostolic Church 1968 (3) SA 377 (W): dictum at 377E applied

Friends of the Sick Association v Commercial Properties (Pty) Ltd and Another 1996 (4) SA 154 (D) ([1996] 2 All SA 611): applied

Graham v Milnerton Turf Club 1921 CPD 688: referred to C

Gross and Others v Pentz 1996 (4) SA 617 (A) ([1996] 4 All SA 63): dictum at 632F applied

Henri Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O): referred to

Highveldridge Residents Concerned Party v Highveldridge Transitional Local Council and Others 2002 (6) SA 66 (T): referred to

Ho Ling v Leung Quinn 1909 TH 64: referred to D

Home Sites (Pty) Ltd v Senekal 1948 (3) SA 514 (A): referred to

Interim Ward S19 Council v Premier, Western Cape Province, and Others 1998 (3) SA 1056 (C): referred to

Kock & Schmidt v Alma Modehuis (Edms) Bpk 1959 (3) SA 308 (A): referred to

Leschin v Kovno Sick Benefit and Benevolent Society 1936 WLD 9: dictum at 11 applied E

Levin v Transvaal Miners Association 1912 WLD 144: referred to

Mahomed v Karp Brothers 1938 TPD 112: referred to

Malcomess Co v Kuhn 1911 CPD 546: referred to

Michalow NO v Premier Milling Co Ltd 1960 (2) SA 59 (W): referred to F

Molotlegi and Another v President of Bophuthatswana and Others 1989 (3) SA 119 (B): referred to

Morgan and Another v Salisbury Municipality 1935 AD 167: referred to

Morrison v Standard Building Society 1932 AD 229: referred to

Muller en 'n Ander v Pienaar 1968 (3) SA 195 (A): referred to

Nelson Mandela Metropolitan Municipality and Others v Greyvenouw CC and Others 2004 (2) SA 81 (SE): referred to G

Nibo (Edms) Bpk v Voorsitter van die Drankraad en Andere 1984 (2) SA 209 (NC): referred to

PE Bosman Transport Works Committee and Others v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 801 (T): referred to

PK Stores (Pty) Ltd t/a Eric's Spar v Mike's Kitchen 1994 (2) SA 322 (O): referred to H

Parents' Committee of Namibia and Others v Nujoma and Others 1990 (1) SA 873 (SWA): dictum at 878G - 879B applied

Parker v Rand Motor Transport Co and Another 1930 AD 353: referred to

Permanent Secretary, Department of Welfare, Eastern Cape, and Another v Ngxuza and Others I 2001 (4) SA 1184 (SCA) (2001 (10) BCLR 1039): distinguished

Press v Barker 1919 CPD 243: referred to

Rail Commuter Action Group and Others v Transnet Ltd t/a Metrorail and Others (No 1) 2003 (5) SA 518 (C) (2003 (3) BCLR 288): distinguished

Rees v Feldman 1927 TPD 884: referred to

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