The next question is whether voting should have been by way of a show of hands. The argument in favour of an affirmative answer was
based on the terms of clause 13 (i). It will be recalled that this says that voting will be by a show of hands unless members wish
a vote by secret ballot. In my view, however, this sub-clause does not provide the support necessary for the argument. Clause 13
(a) explicitly covers meetings of the Union and the council but the rest of clause 13, in line with its heading, is confined to council
meetings. In addition, subclause (h) is the first of the clause's various provisions to deal with the subject of voting in council
meetings. Following immediately upon that as it does, sub-clause (i), in context, must be intended to refer to the voting just referred
to in (h), namely, voting in council.
The subject of voting in general meetings is dealt with in clause 24. As to voting procedure, sub-clause (c), unlike sub-clause(i)
23 of clause 13, does not fix upon the one method as the one to be used,
subject to a majority request for the other. On the contrary, clause 24 (c)
merely says that whenever voting does take place by way of ballot
everyone must record a vote or an abstention. Accordingly there is no provision requiring a vote at Union meetings to be according
to the one procedure or the other. It is open to the chairman to choose in the first instance before any indications from the floor.
If, contrary to his chosen procedure, the other is then requested, it will be for him to decide which will be employed. Parkinson
made his choice initially. No objection or counter suggestion was made. Accordingly, a vote by secret ballot was not irregular in
the present instance.
In the light of that conclusion it is unnecessary to consider the effect of everybody's assent (or non-objection) had there been some
irregularity.
It follows that Gould's review application ought to have been
24 dismissed.
Turning to question (b) - the matter of peremption - it is settled law that Gould bears the onus of showing conduct on the part of
the Union which points "indubitably and necessarily" to the conclusion that its decision to hold a re-election is inconsistent
with an intention to attack the judgment of the Court below. If the Union's decision is equivocal and consistent with some intention
other than the intention to appeal, Gould will have failed to establish peremption. Dabner v South African Railways and Harbours 1920 AD 583 at 594.
Some of the relevant facts have already been mentioned. Straight after judgment was given counsel for the Union noted an application
for leave to appeal. That was on 12 April 1995. The Union's council met on 18 April. The meeting was specially called to consider
the judgment and was chaired by the newly elected deputy president, C J Edwards. (Gould did not stand for re-election as deputy
25
president.) The council members present were equally divided as to
whether to appeal. That issue, and the question whether to petition the Chief Justice if the application for leave to appeal failed,
were only decided by Edwards's casting vote in favour of steps being taken to pursue an appeal. Edwards then asked members to give
consideration to the possibility of eventually holding a re-election. No conclusion was reached on that aspect and further discussion,
if necessary, was deferred to a subsequent council meeting.
Later that month three sub-unions indicated their opposition to an appeal. Two of them also proposed the holding of a re-election.
Both subjects were discussed at a special council meeting on 2 May. It was unanimously decided to proceed with a presidential re-election
at a special general meeting to be held on 15 May. As to an appeal, it was agreed to defer this matter to the next routine council
meeting which would be held after 4 May when the application for leave to appeal was
26
expected to be heard and decided. As already mentioned, the application
was not heard then and the issue of an appeal was still unresolved when the monthly council meeting of 8 May was held. After discussion
it was agreed again to defer a final decision on an appeal until after the outcome of the application for leave to appeal was known.
On 15 May the re-election was held, with the result mentioned above. The question of the appeal was not referred to at all.
It is clear that in these circumstances the re-election proceeded subsequent to a decision to appeal which was never rescinded and
without regard to whether an appeal would in fact be pursued. In conjunction with that consideration, the evidence on record indicates
that the litigation in this case left Union and council members disturbingly but understandably divided and that the motive in proceeding
with the re-election was to terminate dissension if at all possible and to get on with the work of administering rugby in what was,
with the scheduled holding
27 in Durban of some of the 1995 rugby World Cup events, a momentous
season in the Union's history.
Accordingly I find that the decision to hold the re-election was consistent with administrative considerations and certainly not inconsistent
with the intention to appeal. Gould has therefore failed to establish peremption.
Turning, lastly, to question (c), it is manifest from the minutes of the general meeting on 15 May that the election procedure adopted
mere was greatly influenced by the decision of the Court a quo. That is hardly surprising. The Court's order was to elect "in
terms of (the) constitution" and that meant in terms of the Court's interpretation of the constitution. Parkinson recused himself
"to obviate any suggestion of his being a judge for his own cause" and did not vote. He therefore handed the chair to Edwards.
Despite the latter's being the duly elected deputy president, he nonetheless thought it advisable, despite the terms of
28 clause 13 (a), to ask whether anybody objected to his being chairman.
(Nobody did.) Personnel from the Union's auditors were specially
engaged to act as scrutineers. As regards the voting procedure, Edwards
announced that the constitution was "unclear as to how this should be
done at a general meeting" and invited those present to decide. A vote
was then taken that voting be conducted by a show of hands.
From what I have said above it follows that all those precautions and uncertainties were unwarranted. According to the constitution
Parkinson was required to act as chairman and entitled to cast his deliberative vote, failing him, Edwards was required to be chairman.
And it was for whoever the chairman was to decide upon the scrutineers and the method of voting.
Had there been no appeal the judgment of the Court below would in all probability have continued to influence the procedure adopted
in respect of office bearer elections at future Union meetings. There was,
29
of course, nothing irregular or unfair in the procedures adopted at the re-election meeting, viewed purely in isolation, without regard
to the constitution. But the Union does have this constitution. It is the chosen instrument by which the Union's affairs are to be
regulated and the Union, its office bearers and council members are entitled to have it interpreted in order to guide them for the
future. In the circumstances I consider that determination of the appeal, will quite apart from the issue of costs in the Court below,
have a "practical effect or result" within the meaning of s 21 A of the Supreme Court Act. (The section was amended subsequent
to the grant of leave in this case but in the result it is unnecessary to decide if the section in its pre-amendment or post-amendment
form would have applied.)
It is therefore ordered as follows: 1. The appeal is allowed with costs, including the costs of two counsel.
30
2. The order of the Court a quo is set aside and substituted by the following:
"The application is dismissed with costs, such costs to include the costs of two counsel."
CT HOWIE
HARMS JA) ZULMAN JA) PLEWMAN JA) MELUNSKY AJA)
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