Molotlegi and Another v President of Bophuthatswana and Others

• Jurisdiction: South Africa

Molotlegi and Another v President of Bophuthatswana and Others
1989 (3) SA 119 (BG)

1989 (3) SA p119

Citation	1989 (3) SA 119 (BG)
Court	Bophuthatswana General Division
Judge	Friedman J
Heard	August 19, 1988
Judgment	November 10, 1988

Flynote : Sleutelwoorde B

Practice — Parties — Voluntary association — Locus standi of thereof — Organisation having attributes of universitas personarum, namely perpetual succession and capacity to acquire rights separately C from members — Constitution silent on right to institute proceedings — Right to institute proceedings implied from activities, aims and objectives of organisation — Real, direct and substantial interest in subject-matter and fate of application constituting further ground for conferring locus standi — Unanimous assent of members D sufficient authority to institute proceedings even if quorum not present at meeting at which resolution passed — Authority to institute proceedings incidental to necessary and proper management of second applicant and therefore to be implied. E

Bophuthatswana — Republic of Bophuthatswana Constitution Act 18 of 1977 (B) s 8(4) — Lodging certificate in terms thereof — Application for postponement of proceedings on basis of certificate having been lodged — Certificate to be issued in respect of proceedings relating to specific provisions of Act 18 of 1977 or concerning or incidental to matters of State security only — None of F these covered by present proceedings — Certificate accordingly not applicable and no good cause shown for postponement.

Revenue — Licences — Business licence — Exemption therefrom — Business and Trade Undertakings Act 26 of 1979 (B) s 5 — Sewing project of registered welfare organisation in which organisation members G having no financial interest not being separate business entity — Falling therefore into exemption category — Law applicable being law in force at time of events giving rise to proceedings — Police accordingly not justified in closing project. H

Headnote : Kopnota

First applicant, in her personal capacity, launched an application for an interdict restraining the respondents from unlawful invasion of her privacy, entry and search of her home and seizure of her documents. The second applicant, the Bafokeng Women's Club, an unincorporated association and registered welfare organisation represented by the first applicant as its president, being duly authorised thereto by its executive committee, sought a declaratory order concerning a purported ban on its meetings and the closure of its sewing project, I Mahube Fashions, and an interdict restraining respondents from interfering unlawfully with the activities of the second applicant. Respondents gave notice that the application would be opposed on the grounds that the applicants lacked locus standi (though it was subsequently agreed that the first applicant did have locus standi ), and furthermore that application would be made for postponement of the proceedings on the basis that a certificate in terms of s 8(4) of the Republic of Bophuthatswana Constitution Act 18 of 1977 (B) had been J lodged. This section provided that the State President

1989 (3) SA p120

A could lodge a certificate to the effect that Court proceedings might prejudice general criminal or public investigations into certain matters and therefore should be postponed.

Held, that it was clear from the examination of the provisions of the second applicant's constitution relating to membership and management of its affairs that the second applicant had the attribute of perpetual succession and that the constitution was explicit about the B second applicant's right to hold property apart from its members, attributes which, possessed together, conferred on the second applicant the status of a universitas personarum.

Held, further, that the second applicant's constitution contained no limitation on its right to institute proceedings and that, regard being had to its activities, aims and objectives, the power to sue had to be inherent in the express powers given to its office-bearers: C accordingly the second applicant had locus standi in the proceedings.

Held, further, that the second applicant had a real, direct and substantial interest in the subject-matter and fate of the application and this provided an additional ground conferring on the second applicant locus standi in the proceedings.

Held, with regard to the submission that the resolution passed by the executive committee of the second applicant authorising the institution of proceedings was defective in that a quorum of five members had D not been present at the meeting at which the resolution had been passed, the fact that there had been unanimous assent to the institution of the proceedings eliminated the need for the protection against minority actions afforded by the quorum requirement and therefore there had been sufficient authorisation for the proceedings.

Held, that, with regard to the submission that the second applicant's executive committee was not empowered to institute proceedings by virtue of an absence of authority to do so in the constitution of the E second applicant, such authority was incidental to the proper and necessary function of the management of the second applicant with which the executive thereof had been charged and therefore had to be implied.

Held, that, with regard to the application for postponement of the proceedings, the certificate lodged by the respondents in terms of s 8(4) of Act 18 of 1877 (B) could be issued only in relation to proceedings relating to specific provisions of the Constitution Act or which concerned or were incidental to State security, none of which F was covered by the present proceedings.

Held, accordingly, that the certificate was not applicable and consequently no good cause to postpone the proceedings had been shown.

Held, that, with regard to the closing down of second applicant's sewing project on the basis that it was a business operating without the requisite licence in contravention of s 19 of the Business and Trade Undertakings Act 26 of 1979 (B), it had not existed as a separate legal entity but merely as a project of the second applicant and G accordingly qualified for the exemption from the licensing requirements in terms of s 5 of that Act.

Held, furthermore, that the exemption provision had not been affected by a subsequent amendment to the Act but in any event that amendment had come into force after the events giving rise to the present proceedings, and the applicable law was in any event the law in force before the amendment; the respondents had therefore not been justified in closing second applicant's sewing project.

H Held, that applicants had satisfied the requirements for a final interdict which was accordingly granted in the terms sought.

Case Information

Application for a final interdict. The facts appear from the judgment.

D Kuny SC (with him D B Antrobus ) for the applicants.

I J H Hugo SC (with him L C J Maree ) for the respondents.

Cur adv vult.

Postea (November 10).

Judgment

J Friedman J:

This is the return day of a rule nisi, issued by Lawrence AJ, and consented to by the parties in the following terms:

1989 (3) SA p121

Friedman J

'1.

A That the matter be postponed until 19 August 1988, the respondents to file answering affidavits by not later than 11 August 1988 and the applicants to file replying affidavits by 16 August 1988.

2.

That in the interim the respondents undertake not:

(a)

B to interfere unlawfully with or prevent the second applicant's activities as set out in para 12.2 of the founding affidavit, with exception of the sewing project called ''Mahube Fashions'' and anything connected with such project;

(b)

to act unlawfully against the first applicant.

3.

That costs be reserved.'

C On 19 August 1988 the applicants applied for a final interdict.

The first applicant has launched an application in her personal capacity, and in her representative capacity as president of the second applicant, being duly authorised thereto by the executive of the second applicant.

The second applicant is the Bafokeng Women's Club, an D unincorporated association and registered welfare organisation founded in 1970, which has approximately 3 000 members. It operates from Phokeng within the jurisdiction of this Court.

The first respondent is the President of the Republic of Bophuthatswana, who is cited herein in his official capacity as head of State.

E The second respondent is the Minister of Law and Order, who is cited herein in his official capacity as head of the Bophuthatswana Police.

The third respondent is the Commissioner of Police, who is cited in his official capacity as the Commissioner of the Bophuthatswana Police.

The fourth respondent is Colonel Mmukubyane, cited in his personal capacity, and in his capacity as the Station Commander at GaRankuwa.

F The relief sought by the first applicant in her personal capacity is for interdicting the respondents against unlawful invasion of her privacy, entry and search of her home, and unlawful seizure of her documents.

The second applicant (the club) seeks a declaratory order concerning the purported ban on its meetings and closing of its sewing project, Mahube Fashions, and an interdict restraining the respondents G from unlawfully interfering with the activities of the second applicant.

The first applicant avers in her founding affidavit that she is the wife of Chief Edward Lebone Molotlegi, who is the chief of the Bafokeng tribe, and she states that since the attempted and abortive coup H d'etat, which occurred on 10 February 1988, she and her family and the second applicant have been victimised and harassed, and have suffered humiliation and indignities, at the hands of various...