Mandlekonsi General Radebe and Others v Mathulini Communal Property Association and Others

The First Applicant, Mr Radebe, purportedly acting on behalf of nine other applicants, sought to have the Annual General Meeting (AGM) of Mathulini Communal Property Association (CPA) held on 6 December 2017 declared invalid or unlawful and set aside. He further sought to set aside the election of the Second to Thirteenth Respondents to the committee and the termination of his and two others' membership to the committee. The parties had an extensive history of litigation with at least 11 prior court encounters. Two previous judgments were particularly relevant: Canca AJ's judgment of 5 September 2018 which found Mathulini's constitution valid and dismissed Radebe's counter-application challenging the notice for the 6 December 2017 AGM; and Barnes AJ's judgment of 3 December 2018 which amended Canca AJ's orders by deleting provisions that had declared all committee positions vacant, finding this was based on a patent error that the AGM had not taken place when it actually had. The Supreme Court of Appeal dismissed a petition against Barnes AJ's judgment in July 2019.

• Whether the AGM of 6 December 2017 took place
• Whether the AGM of 6 December 2017 was unlawful and/or invalid
• Whether the election of committee members at the AGM was lawful and valid
• Whether the termination of Radebe's and two others' committee membership was unlawful
• Whether Radebe had authority to act on behalf of the other applicants
• Application of the principles of res judicata
• Whether attorney and client costs were warranted

The application was dismissed with costs on an attorney and client scale.

Once a court of competent jurisdiction has made a final determination on an issue, that issue is res judicata and cannot be relitigated in subsequent proceedings between the same parties. An applicant who purports to act on behalf of others bears the burden of proving their authority to do so when challenged, and failure to discharge this burden is fatal to the application. Attorney and client costs may be awarded where a litigant acts mala fide, dishonestly, or makes false averments to the court. An AGM of a Communal Property Association is valid where: (1) proper notice is given in accordance with the constitution; (2) the meeting is held within the timeframes prescribed by the constitution; and (3) a quorum is present as defined by the constitution. The validity of resolutions and elections at such meetings follows from the validity of the meeting itself.

The court observed at paragraph 10 that making bald, untrue averments is unacceptable and punishable by law, and noted that the court could refer the matter to the National Director of Public Prosecutions to investigate prima facie perjury, though it did not do so in this instance. The court also commented on the unfortunate history of litigation between the parties, noting a minimum of 11 court encounters, expressing implicit concern about the abuse of court processes and the pattern of vexatious litigation. At paragraph 25, the court noted that the replying affidavit was filed 5 months after the answering affidavit was served and the application came to hearing more than a year after pleadings closed and more than one and half years from commencement, observing that in view of the nature of the remedy sought these delays were exorbitant.

This case illustrates the application of res judicata principles in the context of communal property associations, preventing parties from relitigating issues already determined by competent courts. It demonstrates judicial intolerance for mala fide litigation and dishonest averments, particularly in the context of internal CPA disputes. The case provides guidance on compliance with CPA constitutional requirements for AGMs including notice periods, quorum requirements, and validity of member lists. It reinforces that courts will not entertain attempts to circumvent or relitigate previous court orders through new applications based on the same issues. The case also demonstrates the court's willingness to award punitive costs (attorney and client scale) where litigants act dishonestly, make false averments, and abuse court processes through vexatious litigation. This is significant in discouraging abuse of process in land reform matters involving CPAs.