National African Federated Chamber of Commerce and Industry and Others v Mkhize and Others

NAFCOC, a voluntary association governed by a constitution, became divided into rival factions. A group of members (the respondents) purported to requisition and convene a special meeting of the NAFCOC Council on 6 December 2012, at which resolutions were adopted removing certain executive committee members and electing a new president. The appellants contended that the meeting had not been lawfully convened in terms of the applicable NAFCOC constitution and sought declaratory relief that the meeting and its resolutions were invalid. The High Court dismissed the application, holding inter alia that the meeting was properly convened and that the president’s term had expired. The appellants appealed to the Supreme Court of Appeal.

The appeal was upheld. The High Court’s order was set aside and replaced with a declaration that the purported Council meeting of 6 December 2012 was not lawfully convened and that all resolutions taken there were invalid and of no force and effect. The respondents were ordered to pay the appellants’ costs, including the costs of two counsel.

The case restates and clarifies South African law on the interpretation of constitutions of voluntary associations, confirming that they are to be interpreted like contracts using a sensible, contextual approach. It underscores that internal power struggles must be resolved strictly in accordance with constitutional provisions and that courts will not recognise non-existent offices or implied powers inconsistent with the constitution.