LOCUS STANDI AND AUTHORITY
[4]
The TYC was originally cited as the applicant. Mr van Rooyen, a trustee of the TYC, deposed to the
founding affidavit. He said that the application was brought ‘by the applicant as represented by me and Brian Macdonald Scott
and Anthony Money as trustees of the applicant by virtue of the authority vested in us by paragraph 14 of the Constitution of the
applicant’. A copy of the TYC’s constitution was annexed to the founding affidavit. So were a resolution of the trustees
authorising Van Rooyen to bring the application on behalf of the TYC and confirmatory affidavits by Scott and Money.
[5]
It is necessary to quote paragraph 14 of the TYC’s constitution in full. It reads:
’14 TRUSTEES
The role of Trustees shall be to hold in trust the Club’s assets and to protect the legal and financial viability of the Club
in pursuit of the Club’s objectives. The tenure of trustees shall be for multiple years to enable them to provide continuity
over the long-term affairs of the Club. The President of TYC shall de facto be a Trustee of the Club and there shall be up to three
other Trustees.
Trustees shall be elected at an AGM according to the same procedures applying to the election of officers. They do not require to
be re-elected at each AGM but shall hold their position until either they advise the Secretary in writing that they resign from that
position, they cease to be a member of the Club or they are voted out of that position by a motion at an AGM or Special General Meeting.
When Trustee positions fall vacant it shall be incumbent on the remaining Trustees to ensure nomination and replacements by the time
of the next AGM, or SGM if an urgent need arises.
The Trustees shall represent the Club in any legal actions and shall involve themselves sufficiently in the Club’s operational
affairs to forestall or mitigate any legal actions they consider may harm the Club’s position. They shall consult the committee
of the day on any legal matters. A Trustee shall only act in a legal capacity for the Club if his actions have the agreement of the
other available Trustees and such action follows the minuted direction of the Executive Committee. Any major expenditure or commitments
that will require the Club to borrow or pledge funds in any form shall, unless approved at an AGM or SGM require the approval of
the Trustees. They shall have the right to call for independent audits of the Club’s financial affairs and to call special
general meetings of the Club in any serious matters relating to their responsibilities.
The Trustees, for the time being shall be entitled to seats upon the Committee, to take part in its deliberations and shall possess
equal voting rights with other members thereof. They do not lose their seats on the Committee through non-attendance, as do the other
Members.
The following are provided as guidelines only regarding Trustees.
Trustees should ideally be long-standing members of the Club who have been flag officers and preferably past Commodores. They should
bring legal, financial or business experience to their role and be persons of recognised integrity and sound judgement. They should
not hold operational responsibilities at the Club but can vote at Committee Meetings and provide guidance from their experience.
The Trustees should meet from time to time to consider issues of strategic importance to the Club. They should act in consensus.’
Clause 9 of the constitution makes it clear in the following provision that the references in paragraph 14 to ‘the Committee’
are to the executive committee:
‘NB: Where the word Committee is used without qualification in these Rules, the Executive Committee is signified.’
The function of the executive committee is set out in clause 9 as follows:
‘The Executive Committee shall be appointed at the Annual General Meeting and shall manage, control and have entire conduct of the
affairs of the Club save as shall be prescribed by the duties of the Trustees.’
[6]
The argument of Seale’s counsel was based on that part of clause 14 of the constitution which
reads:
‘A Trustee shall only act in a legal capacity for the Club if his actions have the agreement of the other available Trustees and such
action follows the minuted direction of the Executive Committee.’
It is common cause that there was no minuted direction of the executive committee authorising the application. That, according to
the argument advanced on behalf of Seale, is fatal.
[7]
Counsel for the TYC relied on that part of clause 14 which reads:
‘The Trustees shall represent the Club in any legal actions . . . ‘.
The submission was that this provision authorised the trustees to decide whether legal proceedings should be instituted.
[8]
The constitution is not a model of clarity. It is my view, however, that the argument on behalf of the
TYC is correct. Clause 9 of the constitution vests the entire conduct of the affairs of the club in the executive committee ‘save
as shall be prescribed by the duties of the Trustees’. The duties of the trustees are, in terms of the third paragraph of clause
14 of the constitution, to ‘consult’ the executive committee on any legal matters. These provisions read together are
inconsistent with an interpretation that requires the trustees to act only on the minuted direction of the executive committee. There
is nothing startling in this. The trustees are the TYC’s elder statesmen and –women who are given particular responsibility in regard to legal matters
affecting the Club. That responsibility appears also from provisions of clause 14 other than those to which I have already specifically
emphasised, namely:
‘The role of Trustees shall be . . . to protect the legal . . . viability of the Club . . . The Trustees . . . shall involve themselves
sufficiently in the Club’s operational affairs to forestall or mitigate any legal actions they consider may harm the Club’s
position . . . They should bring legal, financial or business experience to their role . . .’.
One of the guidelines at the end of clause 14 is that the trustees should act in consensus. The provisions relied upon by Seale were
inserted in my view to cater for the situation where a single trustee is to act alone. The resort to the singular, ‘a trustee’,
is significant. In such a case the single trustee is not enjoined to act in consensus with the other trustees ? those ‘available’
have to agree; and a further safeguard, inserted only because a single trustee will be acting, is that the action taken by that trustee
has to follow the minuted direction of the executive committee.
[9]
The argument on behalf of Seale that the trustees of the TYC required the authority of the executive
committee to bring these proceedings must accordingly fail. The only other preliminary point taken in Seale’s answering affidavit
was that the TYC lacked standing to bring the application in its own name. That argument was abandoned on appeal. Counsel representing
Seale sought, however, to mount two further challenges: the first relating to the alleged non-participation of the president of the
TYC in the bringing of the application and the second, that it had not been shown that the trustees had been properly appointed as
such.
[10]
It was only in argument in the court a quo that the non-participation of the president was raised. The submission, repeated on appeal, was that the president, who is (in terms
of the first paragraph of clause 14 of the constitution quoted above) a trustee, had not joined with the other trustees in bringing
the application. There may be a perfectly good reason for this: the president may have died, or resigned and the vacancy may not
yet have been filled. Or ? for all this court knows ? Van Rooyen, Scott or Money, or Mr Antweiler (who was a trustee sailing in the
Mediterranean when the application was brought, and subsequently ratified the action of the other three trustees) could have been
the president: such a supposition is not far-fetched because, in terms of the first paragraph of clause 14 of the constitution, the
number of trustees is limited to the president and three others. But it is not necessary to speculate. The question was not raised
in the affidavits delivered by Seale and the TYC had no opportunity of dealing with it. The argument advanced by counsel depends
on a fact not canvassed in the papers and it cannot be entertained for this reason.
[11]
Although the constitution of the TYC was annexed to the founding affidavit, Seale did not suggest in his answering
affidavit that the trustees who brought the application had not been properly elected as such. The point was raised in the interlocutory
proceedings for the substitution of the then trustees as applicants. But Seale did not appeal against the order of the court a quo granting this application; and in any event, the position was clarified by Van Rooyen in a further affidavit. Counsel for Seale cavilled
at the fact that resolutions of the annual general meeting at which the trustees were elected, were not annexed; but had Seale entertained
any doubt on this point, he could have obtained those minutes by invoking rule 35(11) which applies to motion proceedings (Pieters v Administrateur, Suidwes-Afrika) and reads (to the extent relevant):
‘The court may, during the course of any proceeding, order the production by any party thereto under oath of such documents . . . in
his power or control relating to any matter in question in such proceeding as the court may think meet, and the court may deal with
such documents . . ., when produced, as it thinks meet.’
MERITS
[12]
It was submitted on behalf of Seale (I quote from the heads of argument):
‘The decision by the State Attorney, to proceed with the registration of the Deed of Servitude, at a time when it was authorised to
do so, should in itself have been the subject of judicial review, before the registration could be set aside. That never happened.’
The submission is without substance. There was no ‘decision’ by the State Attorney. The execution of the power of attorney
by the official of the Province to enable the notarial deed of servitude to be registered, the conclusion of the notarial deed of
servitude itself and the lodging of the documents with the Registrar of Deeds by the State Attorney were not ‘decisions’
but acts performed to give effect to the decision of the Premier to register a notarial deed of servitude in favour of Seale. This
court held in Bullock that that decision amounted to administrative action based upon incorrect advice fundamental to its proper exercise and it was accordingly
set aside.
[13]
Counsel for both Seale and the TYC sought to rely in argument on passages in the decision of this court in
Oudekraal Estates (Pty) Ltd v City of Cape Town which adopted the analysis by Christopher Forsyth of why an act which is invalid may nevertheless have valid consequences and concluded:
‘Thus the proper enquiry in each case ? at least at first ? is not whether the initial act was valid but rather whether its substantive
validity was a necessary precondition for the validity of consequent acts. If the validity of consequent acts is dependent on no
more than the factual existence of the initial act then the consequent act will have legal effect for so long as the initial act is not set aside by a competent court.’
Applying that analysis to the present facts, the substantive validity of the decision of the Premier (the initial act by the first
actor) was not a necessary precondition for the validity of the consequent act (the registration of the servitude by the Registrar
of Deeds, the second actor); as long as the decision stood the validity of the registration was dependent on no more than the factual
existence of the Premier’s decision. But all of this is irrelevant and the reliance by counsel on the decision in Oudekraal, misplaced. As appears from the italicised part of the judgment just quoted, the analysis was accepted by this court as being limited
to a consideration of the validity of a second act performed consequent upon a first invalid act, pending a decision whether the
first act is to be set aside or permitted to stand. This court did not in Oudekraal suggest that the analysis was relevant to that latter decision. The judgment emphasised that:
‘[A] court that is asked to set aside an invalid administrative act in proceedings for judicial review has a discretion whether to
grant or to withhold the remedy. It is that discretion that accords to judicial review its essential and pivotal role in administrative
law, for it constitutes the indispensable moderating tool for avoiding or minimising injustice when legality and certainty collide.’
I think it is clear from Oudekraal, and it must in my view follow, that if the first act is set aside, a second act that depends for its validity on the first act must
be invalid as the legal foundation for its performance was non-existent. It is precisely because of this consequence that a court
asked to review the first act and set it aside has, and must have, a discretion whether or not to do so. Some of the factors relevant to the exercise of that discretion were discussed in Oudekraal; they include the lapse of time, the need for finality, the consequences for the public at large and the extent to which persons may
have acted in reliance on the decision which it is sought to set aside. But the question whether or not the decision by the Premier
in this matter should be set aside, has already been answered by this court in Bullock. The result is that all acts done consequent upon that decision (including the registration of the servitude), and all acts to give
effect to it (including those to which I have referred in the previous paragraph of this judgment), are of no force or effect.
[14]
It was submitted on behalf of the TYC, following upon views expressed from the bench during the hearing of
the appeal, that the decision of this court in Bullock was retrospective in that it must be substituted for the order of the court of first instance in Bullock, and it accordingly operated from the date upon which the latter court gave its order; and that because that date preceded the date
of registration of the servitude, the registration of the servitude was invalid for that reason. That is so (although an order to
this effect would have been required before the Registrar could cancel the registration of the servitude) but the result would have
been the same even if the registration of the servitude had preceded the date on which the court of first instance gave its order
in Bullock. The reason is that acts performed subsequent to a decision which is set aside and which can no longer depend upon the mere existence
of that decision for their own validity, are invalid once the decision is set aside, irrespective of whether those acts were performed
before or after the court order invalidating the decision.
COSTS
[15]
As I have already said, the court a quo ordered the Province to pay the costs of both Seale and the TYC. Seale abandoned the order in his favour. But he only did so in the
heads of argument for this court delivered on 17 September 2007. It was pointed out by his counsel that he did not oppose the Province’s
applications for leave to the appeal made to the court a quo and to this court; but the fact remains that until he abandoned the order, the Province was obliged to bring those proceedings and
to proceed to appeal. The Province is accordingly entitled to its costs up until 17 September 2007 and its counsel sought nothing
more.
[16]
Counsel for the TYC submitted that the order of the court a quo was justifiable on the basis that had the State Attorney informed this court of the registration of the servitude timeously, the
point would have been argued and decided in its favour in Bullock
