The N'Wandlamhari Communal Property Association and Another v Millington Zamani Mathebula and Others

The MalaMala Game Reserve land, located between Kruger National Park and Sabi Sands Game Reserve, was the subject of a restitution claim by dispossessed communities. The State purchased the land for over R1 billion in 2013 to restore it to the communities. The restitution claim was brought in the name of the Mhlanganisweni Community (Second Applicant). When settled in 2013, the Mhlanganisweni and Mavhuraka Communities were merged into the N'Wandlamhari Communal Property Association (NCPA, First Applicant) to take ownership. The Mavhuraka Community had not lodged a restitution claim for MalaMala. An interim committee was appointed in 2013 comprising members from both communities. In 2016, an Executive Committee was elected consisting only of verified Mhlanganisweni Community members, as Mavhuraka members had not yet been verified. There is ongoing dispute about whether this Executive Committee is legitimate. No annual general meeting (AGM) has been successfully held since, with previous attempts in 2018, 2019, and 2020 disrupted. In 2019, a High Court order (Khumalo J) directed the Director-General to complete verification of Mavhuraka members and assist in holding an AGM. Verification was completed in 2019 but never adopted by the NCPA. The NCPA and Mhlanganisweni Community launched the Main Action in 2019 seeking to effectively reverse the 2013 merger. Cowen J upheld a preliminary objection finding the decision to authorize the Main Action was invalid as it excluded Mavhuraka members. Leave to appeal was granted and is pending. On 7 June 2025, the Fifteenth Respondent (Mr Mnisi) held a meeting of approximately 300 people who resolved to call a general meeting. On 20 June 2025, notice was issued calling an elective AGM for 19 July 2025, prompting this urgent application to interdict the meeting.

• Whether the application was urgent
• Whether the NCPA had standing and authority to bring the application
• Whether clause 15.1.3 of the NCPA constitution was complied with in calling the 19 July 2025 meeting
• What constitutes membership of the NCPA for purposes of calling a general meeting under clause 15.1.3
• Whether members of the Mavhuraka Community who are verified but not adopted can be treated as members for purposes of clause 15.1.3
• Whether the requirements for interdictory relief were met
• What process should be followed to lawfully convene a general meeting of the NCPA

1. The application was heard as urgent and time periods were dispensed with. 2. The Fourteenth and Fifteenth Respondents were interdicted from holding: (a) The AGM scheduled for 19 July 2025; and (b) Any other meeting of or on behalf of the NCPA other than in terms of the applicable provisions of the NCPA constitution. 3. No costs order as between the Applicants and First to Ninth Respondents. 4. Costs as between Applicants and Tenth to Fifteenth Respondents reserved for determination in the Main Action.

1. When clause 15.1.3 of a CPA constitution requires "100 members of the Association" to sign a written request and hand it to the Chairperson to call a general meeting, there must be objective evidence that 100 members (as defined by the constitution and membership processes) supported the request. The party calling the meeting bears the onus of establishing compliance. 2. The presence of a name on the membership register is prima facie proof of membership, and conversely, the absence of a name is prima facie proof of non-membership (per clause 9.10 of the NCPA constitution). Whatever the requirements for membership may be, the procedures in the CPA constitution for admission of members must be observed when seeking to call a meeting under clause 15.1.3. 3. Clause 15.1.3 does not permit 100 members to independently call and hold a meeting; it requires them to present their request to the Chairperson who is then obliged to convene the meeting. Failure to hand the request to the Chairperson constitutes non-compliance. 4. Legality must prevail in governance processes of CPAs, particularly when there is internal dispute being litigated concerning membership. There is no satisfactory alternative remedy to approaching a court to stop an unlawful meeting from occurring. 5. Where disputes exist about the legitimacy of a CPA executive committee and factual disputes remain about how the committee was elected, courts should avoid deciding those issues in urgent interdict proceedings and should wait until all evidence is led in main proceedings. 6. The pending of substantive litigation about a CPA's composition does not, on its own, justify preventing a lawfully called general meeting from occurring.

The Court made several non-binding observations: 1. On the interpretation of "may" in clause 15.1: The Court noted (agreeing with the parties) that "may" in clause 15.1 is empowering and identifies the exclusive instances in which a general meeting may be convened. It does not leave open other unspecified ways to call meetings, as that would defeat the purpose of having prescribed procedures. 2. On the way forward: While emphasizing it was not giving advice on how to solve disputes, the Court observed that: - The NCPA constitution requires annual general meetings with "membership matters" on the agenda - The Khumalo J order requires the Department to assist beneficiaries in convening a general meeting - It remains open to enforce these obligations - Fear of disruption is not justification for non-compliance with AGM requirements; courts can issue orders to prevent disruption with police assistance if necessary - It remains open to the Concerned Beneficiaries to properly comply with clause 15.1.3 - The Court had not decided who qualifies as a member for clause 15.1.3 purposes - verified but not adopted Mavhuraka members might qualify, but this requires proper evidence 3. On procedural matters: The Court noted it is inappropriate for parties (including government departments) to ambush litigants by only revealing their position at a hearing without filing affidavits in advance. 4. On linking relief to pending litigation: The Court expressed difficulty understanding the logic of linking the interdict to the Main Action, noting that if a meeting is lawfully called, the fact it may impact pending litigation is irrelevant. The NCPA is not "frozen in amber" by litigation. 5. On the nature of the dispute: The Court acknowledged the "real sense of frustration on both sides" and described the competing perspectives sympathetically, noting this reflects tensions when communities are merged for restitution purposes against their will.

This judgment addresses critical issues concerning the governance of communal property associations (CPAs) in South Africa, particularly in the context of land restitution. It establishes important principles about: 1. The requirement for strict compliance with CPA constitutional provisions when calling general meetings, even in circumstances where there are disputes about membership and exclusion. 2. The balance between procedural legality and substantive justice in CPA governance - while recognizing the legitimate grievances of excluded communities, the Court insists that resolution must occur through lawful processes. 3. The application of earlier Land Court precedent (particularly Cowen J's judgments) about membership rights in CPAs where verification processes have been delayed or disputed. 4. The proper approach to deciding disputes about the legitimacy of CPA executive committees - such issues should be decided on full evidence in main proceedings, not in urgent interdict applications. The case illustrates the profound tensions that can arise when communities are merged for restitution purposes, particularly where one community did not bring the original restitution claim. It provides guidance on how courts should manage ongoing governance disputes while substantive litigation about the CPA's composition is pending. The judgment is also significant for its practical guidance to parties trapped in governance deadlocks, identifying lawful avenues for moving forward rather than leaving parties in indefinite stalemate.