The N'Wandlamhari Communal Property Association Concerned Beneficiaries v The N'Wandlamhari Communal Property Association and Others

The matter concerned disputed entitlement to benefit from land known as Mala Mala land, comprising 9 land parcels subject to land claims under the Restitution of Land Rights Act 22 of 1994. The N'Wandlamhari Communal Property Association (NCPA) was established in October 2013 by the Mhlanganisweni and Mavhuraka Communities jointly. The first and second plaintiffs (NCPA and Mhlanganisweni Community) sought declaratory relief that only Mhlanganisweni Community members are entitled to benefit from the land, excluding Mavhuraka Community members. After trial commenced in 2019, the fourteenth defendant (concerned beneficiaries from the NCPA) intervened in February 2023. Three preliminary issues arose concerning: (1) whether the current executive committee had locus standi to sue on behalf of the NCPA; (2) whether there was a valid resolution by NCPA members authorizing the litigation; and (3) whether the NCPA was non-suited due to conflict of interest. The NCPA's first executive committee, elected in October 2013, comprised members of both communities. In October 2016, only Mhlanganisweni members attended an AGM where seven members were allegedly elected as an interim committee for six months. This committee continued operating and on 9 March 2019 convened a special general meeting attended only by Mhlanganisweni members, which passed a resolution to institute proceedings to separate the two communities.

• Whether the current executive committee of the NCPA has legal competence (locus standi) to sue on behalf of the NCPA
• Whether there is a valid resolution by members of the NCPA authorizing the institution of the action
• Whether a special general meeting comprising only verified members of one constituent community (Mhlanganisweni) can validly take decisions on behalf of the NCPA when the other constituent community (Mavhuraka) remains unverified
• Whether the NCPA is non-suited to bring the action by reason of conflict of interest
• Interpretation of the NCPA Constitution regarding membership, voting rights, and the relationship between verification and membership
• The Land Claims Court's incidental jurisdiction under section 22(2)(c) of the Restitution of Land Rights Act

The Court ordered: (1) The first objection relating to legal competence of the Executive Committee to sue on behalf of the NCPA is dismissed; (2) The second objection is upheld and it is declared that the first plaintiff has not duly resolved to authorize the action on behalf of the NCPA pursuant to the decision of 9 March 2020 [sic - 2019]; (3) The third objection relating to whether the NCPA is non-suited to bring the action by reason of conflict of interests is dismissed; (4) Each party shall carry its own costs.

A special general meeting of a communal property association that was established by two constituent communities and whose constitution embraces principles of equity cannot validly take fundamental decisions affecting the constitutive basis of the association when only members of one constituent community are present and able to vote, even where only that community's members have been verified. The constitution of the NCPA, properly interpreted in light of its text, context and purpose, required both constituent communities to be represented in decision-making on matters of this nature. Verification is not necessarily a prerequisite for membership rights including voting rights under the NCPA Constitution - this depends on the context in which the term 'member' is used. Restricting voting rights to only verified members where verification is substantially incomplete for both communities would defeat the purposes of the CPA, undermine the electoral system, and violate equity principles. Where verification processes are delayed, the members' register and voters' roll must be compiled in a way that includes members from both constituent communities, using methods similar to those employed for the initial electoral process.

The Court declined to decide the status and legal competence of the executive committee elected at the October 2016 meeting, noting this raised complex issues affecting thousands of people that should not be decided without hearing all affected parties, including departmental officials whose representations were instrumental. The Court noted appropriate deference to existing High Court jurisdiction and an existing court order by Judge Khumalo. The Court observed that deep divisions in the community have given rise to profoundly different views about what constitutes legitimate NCPA action and procedures, and that it is vital these be peacefully and lawfully resolved. The Court noted that while disruption of meetings is not condoned, legitimate grievances about how the NCPA has been run may partly explain the disruptive history. The Court suggested a mediated solution may be warranted to resolve the impasse. The Court indicated it would not make a costs order regarding complaints about counsel's conduct raised in supplementary submissions, as these should have been raised at appropriate earlier times or will be dealt with as costs in the main action. The Court observed that if the decision had been taken by an Executive Committee composed only of Mhlanganisweni members, a conflict of interest argument would have had traction given the committee's fiduciary duties under Clause 11.2 of the Constitution.

This judgment provides important guidance on the interpretation and application of constitutions of communal property associations established under land restitution processes. It establishes that where a CPA is constituted by multiple communities, fundamental decisions affecting the constitutive basis of the association cannot be taken by a general meeting comprising only members of one constituent community, even where only that community's members have been verified. The judgment emphasizes that verification is not a constitutional prerequisite for all membership rights, and that excluding an entire constituent community from decision-making violates principles of equity. It demonstrates the Land Claims Court's willingness to exercise incidental jurisdiction under section 22(2)(c) of the Restitution Act where necessary and in the interests of justice, while showing appropriate deference to High Court jurisdiction and caution in making findings affecting thousands of people in divided communities. The case highlights the importance of completing verification processes timeously and the consequences of prolonged institutional dysfunction within CPAs. It also illustrates the application of modern principles of contractual interpretation (Endumeni/University of Johannesburg) to constitutional documents of associations.