Natal Rugby Union v Gould

• Jurisdiction: South Africa
• Judge: Howie JA, Harms JA, Zulman JA, Plewman JA, Melunsky AJA
• Judgment Date: 10 September 1998
• Citation: 1999 (1) SA 432 (SCA)
• Docket Number: 173/96
• Hearing Date: 24 August 1998
• Counsel: MJD Wallis (with him GR Thatcher) for the appellant DA Gordon for the respondent
• Court: Supreme Court of Appeal

Howie JA:

For about 40 years before 1995 it had been unnecessary to hold an election at the annual general H meeting of the Natal Rugby Union with regard to the office of president. At the meeting in that year an election was required because there were two nominees. They were Keith Parkinson and Rodney Lloyd Gould, the retiring president and deputy president respectively. The meeting was held on 3 March 1995. Parkinson, as president, was I chairman during the disposal of all such business as preceded the matter of the election of president. When that item came up he called upon the union's general manager, Brian James van Zyl, to conduct the election. Parkinson had decided in advance that the election would be by secret ballot and had arranged for voting papers to be prepared accordingly. A voting paper was furnished to each of the J

Howie JA

28 eligible voters present, the candidates among them. Van Zyl appointed two honorary vice-presidents of the A union to act as scrutineers. Having counted the votes, they advised Van Zyl of the result. He announced the meeting's decision that Parkinson had been duly elected. The ballot papers were later destroyed. In every one of these respects the election proceeded with the concurrence of all those at the meeting or at least without B objection. It subsequently transpired, and is not in dispute, that the voting was 15 to 13 in favour of Parkinson.

Some weeks later, on 29 March, Gould brought a review application in the Natal Provincial Division, alleging that the outcome of the election was invalidated by procedural irregularities, inter alia, in that Parkinson either C appointed Van Zyl chairman of the meeting during the election or himself remained chairman. He accordingly sought the setting aside of the decision electing Parkinson president and an order requiring the union to hold a re-election. The application succeeded. The union was directed to hold a special general meeting for the purpose of electing a president 'in terms of its constitution'. D

Immediately after judgment had been handed down on 12 April 1995 an application for leave to appeal was noted and postponed for later hearing. This had the effect of suspending the order but on 21 April Gould enrolled an application that the order be implemented. While that application was pending the council of the union met on 2 May. At this meeting it was resolved to defer a decision to pursue the appeal until after 4 May when the E application for leave was expected to be heard. It was also decided to convene a special general meeting in order to hold a fresh presidential election. On 15 May that was done. Parkinson on this occasion recused himself from the meeting. He was duly elected by 17 votes to 11. In these circumstances Gould's application for implementation F of the Court's order was abandoned.

The application for leave to appeal was eventually heard on 27 March 1996 and granted.

The parties' competing contentions on appeal give rise to the following questions: G

(a)

Whether the decision electing Parkinson was invalidated by

(i)

his appointing Van Zyl, or himself being, chairman of the meeting throughout the election process, and/or

(ii)

the voting being by ballot instead of by way of a show of hands.

(b)

Whether the right to appeal has not in any event been perempted by the union's having, in effect, H complied with the order against which it is sought to appeal.

(c)

Whether the appeal should be entertained at all if, in essence, the only issue concerns the costs in the Court a quo.

Relative to (c), counsel had, prior to the hearing of the appeal, been requested to present argument as to whether it I was not appropriate to deal with the matter in terms of s 21A of the Supreme Court Act 59 of 1959, according to which this Court may dismiss an appeal where a judgment or order in favour of the appellant on the merits would have 'no practical effect or result'. In the view I take of the case this question, in conjunction with question (c), can be left until last. J

Howie JA

Beginning with question (a), it is necessary to refer at this point to the relevant provisions of the union's A constitution.

The union consists of six bodies including four sub-unions (clause 7). It is managed by a council comprising, inter alia, an annually elected president and deputy president, and one representative of each of the union's six constituent bodies just mentioned (clause 10). B

Clause 13 is headed 'Proceedings of Council Members' and reads as follows:

'(a)

The president, or in his absence the deputy president, shall act as chairman of all meetings of the union and council and, in their absence those entitled to attend and vote at a general meeting, in the case of the meetings C of the union, or the remaining council members, in the case of a council meeting, shall choose one of their number to act as chairman at such meeting. In the event of an equality of votes, the chairman shall have a second or casting vote.

(b)

The quorum necessary for the transaction of the business of the council may be fixed by the council and, unless so fixed, be eight. If the number of members personally present does not constitute a quorum, the meeting shall stand adjourned for seven days from the date thereof and if at the adjourned meeting the number of members D personally present does not constitute a quorum, such members as are personally present shall be deemed to constitute a quorum and the proceedings of such meeting shall be valid.

(c)

A council member may, and the general manager on the requisition of a council member shall, at any time summon a meeting of the council. E

(d)

The continuing council members may act notwithstanding any vacancy in their body, but, if and so long as their number is reduced below the number fixed by or pursuant to the constitution of the union as the necessary quorum of council members, the continuing council members may act for the purpose of increasing the number of council members to that number, or of summoning a general meeting of the union, but for no other F purpose.

(e)

The council may delegate any of their powers to committees consisting of such members or member of their body as they think fit; any committee so formed shall, in the exercise of the powers to be delegated, conform to any regulations imposed on them by council. The president shall, ex officio, be a member of all such committees.

(f)

A committee may elect a chairman of their meetings; if no such chairman is elected, or if at any meetings the G chairman is not present, the members present may choose one of their number to be chairman of the meeting.

(g)

A committee may meet and adjourn as they think proper. Questions arising at any meeting shall be determined by a majority of votes of the members present, and in the case of an equality of votes, the chairman, unless otherwise determined by the council, shall have a second or casting vote. H

(h)

All business to be transacted by the council shall be decided by the vote of the council, every member of which shall have one vote except as provided in terms of para 13(a) and (g) above.

(i)

Voting will be by a show of hands provided, however, that if a majority of members so desire, voting on any particular matter shall be by secret ballot. I

(j)

Voting by proxy shall not be allowed.

(k)

No person, unless he be a member of council or an alternate in terms of para 10(vi)...