IN THE LESOTHO COURT OF APPEAL
C of A (CIV) NO 13/91
In the matter between:
LERIBE POULTRY CO-OPERATIVE SOCIETY Appellant
THE MINISTER OF AGRICULTURE 1st Respondeat
THE REGISTRAR OF CO-OPERATIVES 2nd Respondent
THE ATTORNEY-GENERAL 3rd Respondeat
Held at Maseru
Coram: Ackermann, J.A
Browde, J. A.
an appeal against a judgment by Molai, J. in the High Court
dismissing with costs an application by appellant for an interdict
prohibiting the holding of a special general meeting of the appellant
which first respondent ordered second respondent to
convene for the 17th May, 1991; prohibiting the first two respondents from proceeding with the meeting and prohibiting them from calling a similar meeting.
Notice of Appeal in this matter was filed on the 3rd July 1991 but the record only filed with the Registrar on the 25th October 1991, some 22 days out of time. There may be occasions when failure to file a record timeously is completely beyond the control
of appellants or their legal representatives. This does not excuse practitioners from seeking condonation in the prescribed manner.
When the record in the present case was filed it was defective in the following respects:
(a) it contained no Order of Court;
(b) it did not contain the judgment of Molai, J. which, according to the notice of appeal, was delivered on the 3rd June 1991.
(c) pages were missing from the record;
(d) the record was incompletely and improperly paginated.
The factors which are usually taken into consideration when condonation is sought for non-compliance with Rules of Court were set forth by Holmes, J.A. in the case of Federated Employers' Insurance Co. v McKenzie 1969(3) SA 360(A) at 362G as follows:
"....... the degree of non-compliance, the explanation
therefore, the importance of the case, the prospects of success, the
respondent's interest in the finality of his judgment, the
convenience of the Court and the avoidance of unnecessary delay in
the administration of justice ...... The cogency of any such factor
will vary according to the circumstances, including the particular
In terms of Court of Appeal Rule 8(3) an application for condonation must be by notice of motion delivered to the respondent and to the Registrar not less than seven days before the date of hearing. The condonation application in the present case was only
delivered on the 28th January 1991.
We therefore have to consider the condonation not only of non- compliance with the rules in the respects already mentioned, but also condonation of the appellant's failure co deliver an application for condonation within the time prescribed by Rule 8(3).
appear that practitioners are in more than one instance experiencing
difficulties in obtaining typed orders from the Registrar's
well as written judgments. This does not, in the absence of an
application for condonation excuse the
filing of an incomplete record. Without full information on each as to the steps which have been taken to obtain a written judgment (in those cases where oral judgments have been given) and a typed order of court, it is not possible for this court to consider the question of condonation properly. Should it transpire that there has been an inordinate delay between the giving of an oral judgment and the furnishing of the written judgment, the absence of a proper application for condonation precludes this Court from a proper consideration of the causes of such delay. Under such circum-
stances it is not possible to determine whether the delay is caused by a failure of the judicial officer to edit the transcript of the recording of the oral judgment timeously.
In the present case it would seem that the failure to obtain a written judgment (whether an edited one or a verbatim transcript from the tape recording made of the judgment cannot be attributed
wholly, or perhaps even substantially, to failure on the part of legal representatives. The delay in filing the record was not inordinate and the other defects in the record, for which appellant's attorney must ultimately be held responsible, although regrettable, are not of a particularly serious nature. The issues raised in the appeal are important, not only for the appellant, but for all co-operative societies, as well as for the Minister of Agriculture.
The Co-operatives (Protection) Act No. 10 of 1906 ("the Act") confers certain powers and duties on first and second respondents as the Minister of Agriculture and the Registrar of Co-operatives respectively.
In particular section 10 of the Act provides the following:
"(1) The Minister may at any time, notwithstanding any rule or
by-law prescribing the period of notice for a general
a registered society, order the Registrar to convene and preside over
a special general meeting in such
manner and at such time and place as the Minister may direct, and the Minister may specify what matters shall be discussed at such a meeting (emphasis added).
(2) A meeting convened under subsection (1) shall have all the powers of a general meeting convened in accordance with the by-laws of the registered society concerned.
(3) In the case of a special general meeting referred to in subsection (1), the Registrar -
shall be entitled to direct the meeting to proceed, notwithstanding the absence of a quorum as
prescribed in the by-laws of the registered society concerned; and
(b) shall not be entitled to vote except on an equality of votes in which case he shall have a casting vote.
(4) The Registrar may delegate to any person any or all of the powers conferred on him by this section."
In a letter dated 10th April, 1991 the first respondent, purporting to act in pursuance of the provisions of section 10 of the Act instructed second respondent
"to convene a special general meeting of the Leribe Poultry Co-Operative Society Ltd to elect an Executive Committee of that society under your chairmanship",
which meeting was to be held on 17th May, 1991.
In execution of the above instruction and by means of a letter dated 15th Apri1, 1991 addressed to the chairperson, secretary and members of the appellant (to which letter a copy of first respondent's aforementioned letter was annexed) second respondent invited all members of the appellant to a special general meeting at the Leribe Farmers Centre on the 17th May, 1991 at 11 a.m.
"where will be elected this organisation's Executive Committee."
In this letter the second respondent stated that he was convening the above meeting pursuant to the powers conferred by section 10(1) and (2) of the Act.
It was submitted on appellant's behalf that the convening of the above meeting for the stated purpose fell outside the scope of first respondent's powers in terms of section 10 of the Act. First respondent's powers in terms of section 10(1) went no further than:
(a) to cause second respondent to convene and preside over a special general meeting of a registered society;
(b) to specify what matters are to be discussed at such meeting.
This, it was submitted, was the plain, clear and grammatical meaning of section 10(1) of the Act and that no principle of statutory construction warranted a departure from the plain meaning of the sub-section. Section 10(1) did give first respondent the power to specify the matters to be discussed at the meeting convened in terms of this section. It did not empower him to prescribe to the meeting any further executive actions to be performed at the meeting. The directive and notice in question
went beyond the first respondent's powers in terms of section 10(l), for the minister did not specify what had to be discussed at the meeting but prescribed that something else had to be done, namely the election of an executive committee.
of the respondents it was contended that a wide construction must be
given to section 10(1) in order to enable the first
prescribe the holding of an election as well. This was necessary, so
it was contended, in order to give effect to
the dominant purpose of the Act and to address the mischief or defects prevailing under the Co-operatives Societies Proclamation 1948, which was the predecessor to the Act . The mischief which prevailed under the 1948 Proclamation, so it was contended, was that the Proclamation allowed scope for despotism, corruption,
maladministration and other undesirable actions by the executive committee of a Co-operative Society with no provision for the intervention by an effective outside force, like a Minister, in order to protect members against the corruption and despotism of an executive committee which ignored the general membership and held on to power ad infinitum.
In order to evaluate the above arguments it is necessary to consider what machinery, if any, the Act provides to combat such mischief. The provisions of section 11 of the Act, which are relevant in this regard, provide the following:
"11. (1) If the Minister is of the opinion that the committee or
a registered society is not performing its duties properly,
after giving an opportunity to the committee to state its objections
to the Registrar, and
after considering chose objections, (a) take no action, or (b) dissolve the committee by order in writing and appoint a suitable person or persons to manage the affairs of the society for a specified period not exceeding
two years Provided chat the period specified in such order may , at the discretion of the Minister, be extended from time to time but so that the
order shall not remain in force for more than four years in the aggregate.
If such an order is made in terms of subsection (1) the Minister shall by the same or subsequent order appoint one or more fit and proper persons to manage and administer the affairs of the society and may from time to
time remove or replace any person or persons so appointed.
Subject to the general direction and control of the Registrar, a person or persons so appointed under this section to manage and administer the affairs of a registered society
may recover the assets and discharge the liabilities of the society and
take such other steps as may be necessary in its interest; and
may exercise all the powers, rights and privileges of a duly constituted
The Registrar may fix the remuneration payable to any person or persons appointed by the Minister under this section to manage the affairs of a registered society and such remuneration and other expenses, if any,
incurred in the management of the society shall be payable from its funds.
The person or persons appointed in terms of this section shall, at the expiry of the period of his or their appointment, arrange
for the constitution of a new committee in accordance with the by-laws of the society.
Nothing in this section, shall be deemed to affect the power of the Registrar to cancel the registration of any society in terms of section thirty-seven or section thirty-eight of the Co-Operative Societies Proclamation.
11(1) is of wide import. It enables the Minister (after the due
process prescribed in the subsection is followed) to
committee of a registered society if he is of the opinion that such
committee "is not performing its duties proper-
ly". This would cover despotic, corrupt, maladministrative and other undesirable actions, in fact the very mischief which, it was contended, prevailed under the 1948 Proclamation.
has issued an order in terms of sub-section 11(1) or the Act
dissolving the committee the Minister is obliged (in terms
sub-section 11(1) read with sub-section 11(2)) to appoint:, either by
the same order dissolving the existing committee or by
subsequent order, one or more suitable, fit and proper persons to manage and administer the affairs of the society for a specified period not exceeding two years, which period may however be extended in terms of the proviso to sub- section (1).
In terms of sub-section (3) such persons may, inter alia, exercise all the powers, rights and privileges of a duly constituted committee. In terms of sub-section 11(2) the Minister may from time to time remove or replace any person or persons so
Sub-section 11(5) of the Act prescribes that it is the duty of the person or persons appointed by the Minister in terms of sub- section 11(1) and (2) of the Act to take steps to constitute a new committee.
Mr. Mohapi, who appeared for the respondents, could point to no type of mischief on the part of an executive committee (which the Act was designed to redress) which could not be effectively and adequately eliminated by the machinery introduced through the provisions of section 11.
In Dadoo Ltd and Others v Krugersdorp Municipal Council 1920
AD 530 (an authority relied upon by Mr. Tip who appeared for the appellant) the following principle of interpretation was enunciated at 552 per Innes, C.J.:
"It is a wholesome rule of our law which requires a strict construction to be placed upon statutory provisions which interfere with elementary rights. And it should be applied not only in interpreting a doubtful phrase, but in ascertaining the intent of the law as a whole."
view the provisions of and the interrelationship between sections 10
and 11 are perfectly clear, free from ambiguity, address
which could arise under the 1948 Proclamation and lead to no
absurdity. That being the case there is no warrant
for giving the sections anything but their plain grammatical
Section 10 was designed to enable the Minister to convene, through
the Registrar, a special general meeting of a registered
have such meeting presided over by the Registrar of Co-Operatives and
to compel the meeting so called to discuss any
matter specified by
the Minister. Whether and to what extent a specification by the
Minister in terms of sub-section 10(2) of the
Act (i.e. that certain
matters "shall be discussed at" such meeting") is
capable of enforcement by order of court
is by no means certain. The
question may even be raised as to the effect of
a statutory provision, if it is found that the provision is impossible to carry out. None of these matters has been raised or argued before us. In these circumstances I do not propose commenting on them at all, save for making plain that this judgment
is not to be regarded as an implied endorsement of the enforceability of such a specification. Section 11 was designed to enable the Minister to dissolve the existing committee of a society, to place the affairs of a society temporarily under the
control of persons appointed by him and through such persons, to bring about the constitution of a new committee.
No permissible construction of section 10 of the Act can authorize the Minster to compel a society to elect a new committee. It follows then the actions of the first respondent in the present case in instructing second respondent to convene a special general meeting of the appellant in order to elect an executive committee and the actions of second respondent in calling a meeting of
appellant for such purpose were not authorised by section 10 or any other section of the Act. They were accordingly ultra virus the provisions of the Act and void and of no legal effect.
unreported judgment in Lesotho Poultry Co-Operative Society v The
Minister of Agriculture and others CIV/a2n/165/32, where
issues were the same as in the present case, Kheola, J. came to the
conclusion that the actions of the Minister
of Agriculture in convening a special general meeting of a Co- Operative society for the purpose of electing a new executive committee were contrary to the powers conferred on him by section 10 of the Act and were null and void. I agree.
It follows that appellant must succeed in its appeal and that its application for condonation ought to be granted.
In considering the appropriate order to be made on appeal it must be borne in mind that the meeting convened for Friday the 17th May 1991 has already taken place and a new executive committee elected at the meeting. An appropriate order must therefore also rectify the illegality of such election.
The following order is made:
1. Appellant's application for condonation is granted and appellant is ordered to pay the costs thereof;
2. The appeal is allowed with costs;
3. The order of the High Court is set aside and replaced with the following:
(a) The convening of the special general meeting of the applicant for Friday the 17th May 1991 is declared invalid;
(b) The proceedings at such meetings are declared invalid and set aside;
(c) The election of the persons (whose names are set forth in the document marked "EPM II" at p.95 of the record as having been elected) to the executive committee of applicant at such meeting is declared invalid and set aside;
(d) First and Second Respondents are interdicted from convening any general meeting of the applicant in terms of section 10(1) of Act No. 10 of 1966:
(i) for the purpose of electing an executive commit- tee; or,
(ii)for any purpose other than discussing matters
specified by first respondent .
(e) First and Second Respondents are ordered to pay the
Delivered at Maseru on this 24 day of February 1992.
L. W. H. ACKERMANN
JUDGE OF APPEAL
JUDGE OF APPEAL
G. P. KOTZE
JUDGE OF APPEAL
For the Appellant :
For the Respondents : Mr. T. Mohapi