Macingwane v Masekwameng and Others

The appellant, Mr Macingwane, was President of NAFCOC (National African Federated Chamber of Commerce and Industry), a voluntary association. On 31 July 2019, at a meeting convened by the first respondent (the National Chairperson of Provinces) at NAFCOC's head office, the Federal Council adopted a motion of no confidence in the appellant and removed him from office. The meeting was convened pursuant to a notice issued on 5 July 2019. This meeting was preceded by an earlier attempt on 19 June 2019 by the Deputy President to call a meeting to table a no confidence motion, which was settled by court order dated 26 June 2019. That order cancelled the 27 June meeting but permitted the scheduled 31 July 2019 meeting to proceed, allowing any party to place any issue on the agenda. The appellant subsequently called his own Federal Council meeting for the same date (31 July 2019) at a different venue (Emperor's Palace), which did not include the no confidence motion on its agenda. After his removal at the head office meeting on 31 July 2019, the appellant was denied access to NAFCOC's offices. He challenged the lawfulness of the head office meeting and the validity of resolutions removing him, arguing that the National Chairperson of Provinces lacked authority to convene a special meeting to remove the President under clause 28.4.4 of NAFCOC's Constitution.

• Whether the National Chairperson of Provinces had authority under clause 28.4.4 of NAFCOC's Constitution to convene a special meeting of the Federal Council for the purpose of removing the President
• The proper interpretation of clause 28.4.4 of NAFCOC's Constitution, specifically the meaning of the word 'or' in the phrase 'the President or Chairperson of a Provincial Executive Committee or National Chairperson of Provinces'
• Whether the meeting of 31 July 2019 was lawfully convened and whether the resolutions passed thereat were valid
• Whether leave to appeal should be granted to the Supreme Court of Appeal rather than to a full court

The appeal was dismissed with costs. The Court found that the meeting of 31 July 2019 held at NAFCOC's head office was properly convened and the decisions taken thereat (including the removal of the appellant as President) were valid. Costs were awarded against the appellant but the Court declined to award costs for two counsel as the matter was not sufficiently complex to warrant such an order.

When interpreting the constitution of a voluntary association, the court must give the words used their ordinary grammatical meaning unless this results in absurdity, repugnancy or inconsistency with the rest of the document. Where a provision uses the disjunctive 'or' to list several officials who may exercise a power, this ordinarily means any one of those officials may exercise the power, not that a hierarchy must be observed. A proposed interpretation that is unbusinesslike, unworkable and would undermine the clear purpose of a constitutional provision (as evidenced by its amendment history) must be rejected in favor of an interpretation that gives effect to that purpose. In this case, clause 28.4.4 of NAFCOC's Constitution, properly interpreted, empowered the National Chairperson of Provinces to convene a Council meeting (in consultation with the Executive Committee) for the purpose of considering a motion of no confidence in the President, without requiring the President or Provincial Chairpersons to first fail to call such a meeting.

The Court expressed concern about the developing practice of High Courts invariably granting leave to appeal directly to the Supreme Court of Appeal, even in cases that should properly be heard by the full court. The Court emphasized that the full court is the primary appellate forum for decisions of a single judge sitting as court of first instance, unless questions of law or fact or other considerations dictate that the matter should be decided by the Supreme Court of Appeal. The Court noted that there was no reason the full court could not have dealt with the present appeal, which involved an uncomplicated interpretation of a voluntary association's constitution. The inappropriate granting of leave to the Supreme Court of Appeal increases litigants' costs and results in more deserving cases having to compete for a place on the court's roll. The convenience of judges is not a proper consideration when deciding which appellate court should hear an appeal.

This case provides important guidance on the interpretation of constitutions of voluntary associations in South African law. It affirms that the ordinary grammatical meaning of constitutional provisions should be applied unless such meaning leads to absurdity, repugnancy or inconsistency. The judgment emphasizes the importance of considering the purpose and historical context of constitutional amendments when interpreting provisions. It demonstrates that courts will not adopt interpretations that are unbusinesslike, unworkable or would undermine the clear purpose of a provision. The case also addresses the important procedural issue of when leave to appeal should be granted to the Supreme Court of Appeal versus the full court, reminding High Courts that the full court is the primary appellate forum for single judge decisions unless the matter warrants the attention of the Supreme Court of Appeal due to questions of law, fact or other considerations.