THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 626/2021

In the matter between:

SABELO VUSUMZI MACINGWANE
Appellant

and

ISAAC NTSHIRELETSA MASEKWAMENG                                        First Respondent
SONYOSI STEPHENS SIKHOSANA                                         Second Respondent
SEKWAMO GILBERT MOSENA
Third Respondent
TEME EMMANUAL LETSOELA                                                 Fourth Respondent
MOTSEPE RAMOTSE DONALD MATLALA
Fifth Respondent
PERSONS APPEARING ON ANNEXURE SMV1                          Sixth Respondent
NATIONAL AFRICAN FEDERATED CHAMBER OF
COMMERCE AND INDUSTRY
Seventh Respondent

Neutral citation:
Macingwane v Masekwameng and Others (Case no 626/2021)
[2022] ZASCA 174 (7 December 2022)

Coram:
ZONDI, VAN DER MERWE and MOLEMELA JJA and WINDELL and
CHETTY AJJA

Heard:
2 November 2022

Delivered:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website
and release to SAFLII. The date and time for hand-down is deemed to be 15:00 am
on 7 December 2022.

Summary:
Voluntary association – interpretation of its constitution – no reason to
deviate from ordinary grammatical meaning of the words used – appellant’s proposed
construction would lead to absurdity and is unbusinesslike and unworkable.
Practice – appeal – when leave to appeal should be granted to Supreme Court of
Appeal.

___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from: Gauteng Division of the High Court, Johannesburg (Farber AJ, sitting
as court of first instance):
The appeal is dismissed with costs.
___________________________________________________________________

JUDGMENT
___________________________________________________________________
Zondi JA (Van der Merwe and Molemela JJA and Windell and Chetty AJJA
concurring)

Introduction
[1] On 31 July 2019 the seventh respondent, the National African Federated
Chamber of Commerce and Industry (NAFCOC), at a meeting of its Council held at its
head office at 13 Summer Street, Rivonia, Johannesburg (the head office meeting),
passed a resolution in terms of which it adopted a motion of no confidence in the
appellant, Mr Sabelo Vusumzi Macingwane, as its President. NAFCOC, acting
pursuant to this resolution, dismissed the appellant. This meeting was convened by
the first respondent, Mr Isaac Ntshireletsa Masakwameng, NAFCOC’s National
Chairperson of Provinces in terms of the notice dated 5 July 2019. Aggrieved by the
decision to dismiss him, the appellant, on 8 August 2019 approached the Gauteng
Division of the High Court, Johannesburg (the high court), seeking among other things,
an order in the following terms:
‘2.
It is declared that the purported special meeting of the Council of the National African
Federated Chamber of Commerce and Industry (“NAFCOC”), held on 31 July 2019, at 1st
Floor, 13 Summer Street, Summer Place, Gauteng, was not lawfully called and convened, and
that all the resolutions passed thereat are invalid and of no force and effect.
3.
The first to sixth respondents are interdicted and restrained from obstructing and
preventing the applicant from carrying out his duties or exercising any of his powers as the
president of NAFCOC, which duties and powers are set out in NAFOCOC’s (sic) constitution,
dated 17 March 2011.

4.
The first to sixth respondents shall restore possession to the applicant of his access to
NAFCOC’s offices situated at 1st Floor, 13 Summer Street, Summer Place, Gauteng.
5.
The first to sixth respondents are declared to be in contempt of the order of Madam
Justice Wanless J, granted on 26 June 2019, under case no: 22114/2019.
6.
In the alternative to prayer 5, the first to sixth respondents are directed to show cause,
within thirty (30) days of the grant of this order, why they should not be declared to be in
contempt of the order of Madam Justice Wanless J, granted on 26 June 2019, under case no:
22114/2019, and imprisoned for a period of ot less than six (6) months or such period as this
Honorable Court deems appropriate.’

[2] The appellant contended that the meeting was unlawful and that the resolution
taken thereat, was invalid. This contention was based on two grounds. In the first
instance, he alleged that the first respondent, in his capacity as a National Chaiperson
of Provinces (the NCP), did not have authority to convene a special meeting of the
Council for the purposes of removing the President. He maintained that such removal
could only be effected at the meeting that was scheduled to take place on 31 July 2019
as contemplated in Acting Judge Wanless’ order of 26 June 2019 (the order) and not
at a special meeting. In the second instance, the appellant contended that the first
respondent, in convening and presiding at the meeting concerned, acted in
disobedience of the order. He stated that in terms of the order the parties undertook
to act ‘within the confines of [NAFCOC’s] Constitution’.

[3] The high court (per Farber AJ) rejected the appellant’s proposed interpretation
of clause 28.4.4 and dismissed the application. It nevertheless granted the appellant
leave to appeal to this Court. At the hearing, counsel for the appellant abandoned the
contention, which was a second leg of his attack on the lawfulness of the meeting, that
the NCP and those who attended the Head Office meeting, acted in contempt of the
order. In my view, the abandonment of the contention was rightly made, having regard
to the fact that there were no factual averments to support a case based on contempt
of a court order.

The issue
[4] The main issue, therefore, is whether the head office meeting at which the
members of NAFCOC voted in support of a motion of no confidence in the appellant,

was lawfully convened. If not, all resolutions passed at that meeting would be invalid
and of no force and effect. The determination of this issue requires the interpretation
of the NAFCOC Constitution, in particular clause 28.4.4, which regulates the
convening of meetings and clause 23.3, which provides for the removal of the
President from office.

The facts
[5] Before setting out the facts which gave rise to the dispute, it is necessary to say
something about the organic structure of NAFCOC and the manner in which it
conducts its business through its various internal structures as set out in its
Constitution. NAFCOC was formed with the objective of promoting the economic
growth and development of its members, which included businesses operating as
small, medium and micro-enterprises in the different economic sectors. One of its core
functions is to engage and lobby government and other relevant stakeholders in the
creation of an enabling business environment for its members.1 NAFCOC has 20
constituent affiliated members. Representatives of these affiliates constitute the
Federal Council (the Council) of NAFCOC.

[6] The Council is NAFCOC’s supreme decision-making body on matters of policy
and strategy. Among other things, it determines policy for the attainment of the objects
and fulfilment of the functions of NAFCOC. A quorum for a meeting of the Council is a
simple majority of its members; a decision of the majority of Council members present
at any meeting constitutes a decision of that meeting; and, in the event of an equality
of votes, the Chairperson of the meeting shall have a casting vote in addition to his or
her deliberative vote.

[7] Ten members of the Council form the Executive Committee (EXCO). The
President and the NCP form part of this 10-member EXCO.The powers and
responsibilities of the President are set out in clause 29.8.4.1.1. He is the head and
official spokesperson of NAFCOC and ‘subject to the provisions of the Constitiution’,
chairs all meetings of NAFCOC, Council, the EXCO and the Annual General Meetings.
The Deputy President assumes ‘all responsibilities of the President’ if the latter is

1 Clause 3 of the Constitution.

absent or is unable to perform his functions. In terms of clause 23.3, the President
ceases to hold office on a resolution adopted by a two thirds majority of all the Council
members present at a meeting of the Council specially convened for that purpose.

[8] The problem began when the third respondent, Mr Sekwamo Gilbert Mosena
(Mr Mosena), the Deputy President,2 on 19 June 2019 issued a notice calling for a
meeting of the Council to be convened on 27 June 2019 for the purpose of tabling and
debating a motion of no confidence in the appellant, as the President of NAFCOC. The
appellant lodged an urgent application in the high court against NAFCOC and certain
other respondents to interdict them from holding the meeting.

[9] The parties to the urgent application agreed to settle the matter in terms of the
order (dated 26 June 2019). The order provides, inter alia, that:
‘2.
The meeting scheduled for the 27 Jue 2019 is cancelled.

3.
The scheduled meeting for the 31 July 2019 shall take place as planned. None of the
parties shall cancel the said meeting.

4.
Any party shall be entitled to place any issue on the agenda for the 27 June 2019 for
discussion at the 31 July 2019 meeting.

5.
All parties undertake to act within the confines of the Constitution.’

[10] On 5 July 2019, the NCP, in consultation with the EXCO, gave notice of a
meeting to be held on 31 July 2019 at 11h00 and at NAFCOC Head Office. The
purpose of this meeting was to discuss the following:
‘1.
To consider and vote on a notice of no confidence and the removal from office of the
president Mr Sabelo Macingwane in terms of clause 23.3 of the Constitution.
Please note that:
1.
The National Chairperson has received a written expression of more that two
thirds of the NAFCOC Council members, supported by the majority of EXCO members as well
as overwhelming support from NAFCOC President’s Council calling for this motion as a result

2 The deponent to the answering affidavit.

of the President having brought NAFCOC into disrepute. This motion is tabled after having
consulted with the EXCO members;
2.
Notice in respect of item 1 above is accordingly a special notice to members in
terms of clauses 28.4.1 and 28.4.4 of the Constitution and in terms of a court order handed
down in the High Court of South Africa Gauteng Local Division, Johannesburg on 26 June
2019 annexed hereto as Annexure “A”.
3.
In terms of the provisions of clause 23.3 of the Constitution, the resolution
proposed in 1 above has to be adopted by a two thirds majority of all the Council members
present at the meeting to be adopted.
4.
The president Mr Macingwane will be afforded a reasonable opportunity to
make representation in the meeting before the resolution is put to a vote.
2.
Consideration and ratification of DC Reports and/or the Implementation of Council
Resolutions on the termination of NAFCOC membership by members who take NAFCOC to
the Courts and/or the Media.’
The Agenda which accompanied the notice included the following:
‘4.1 To table a motion of no confidence and the removal from office against the President of
NAFCOC Mr Sabelo Macingwane in terms of clause 23.3 of the Constitution.’

[11] The attendees of the head office meeting constituted a quorum, and 50 affiliated
representatitives unanimously voted in favour of the acceptance of the proposed
resolutions. Mr Mosena contends that the head office meeting was a planned and
scheduled meeting. He states that at a meeting held on 5 December 2018, the
NAFCOC EXCO, under the chairmanship of the appellant, had approved a schedule
of dates proposed for the holding of meetings for the year 2019 and had resolved that
all meetings be held at the NAFCOC head office to save costs. The venue could be
changed if the budget permitted and with the approval of the President’s Council. In
this regard, Mr Mosena states that on 18 January 2019, during the EXCO meeting
also chaired by the appellant, the EXCO approved a schedule of dates for the holding
of the EXCO, the Council, President and Chairpersons and Annual General Meetings
during 2019. It was envisaged that the Council meeting would be held on 31 July 2019.
The appellant does not dispute any of this.

[12] After receiving a notice of the head office meeting, the appellant, as the
President of NAFCOC, on 22 July 2019, called a Federal Council meeting to be held
on 31 July 2019 at 10h00 at Emperor’s Palace in Johannesburg (Emperor’s meeting).

The appellant dispatched the notice for the meeting on 26 July 2019. The agenda for
this meeting did not make provision for a debate and consideration of a motion of no
confidence in the appellant as NAFCOC’s President.

[13] In response to the notice issued by the appellant, the third respondent issued
a letter to the members of NAFCOC’s Federal Council, warning them not to attend the
meeting convened by the appellant on the ground that it ‘. . . is a parallel structure and
can not be attended by NAFCOC loyal members who love this organization’ and that
‘[a]ll members who will go to EMPERORS will be declared [a] parallel structure and
will [lose] the benefits of NAFCOC should it happen’.

[14] The appellant alleges that during the Emperor’s meeting, the agenda initially
circulated, was amended to include a debate and discussion on the notice of no
confidence that had been raised against him. He states that the Council affirmed its
confidence in him as the President and took a decision to suspend the first to fourth
respondents as office bearers and members of the EXCO.

[15] It is common cause that when the appellant reported for work on 1 August 2019,
he was refused entry into the premises, and that on 2 August 2019 he received an
email from the second respondent, the Secretary General of NAFCOC, informing him
of his removal as President of NAFCOC. On his instruction, on 6 August 2019, his
attorneys of record wrote a letter to NAFCOC demanding that it withdraw its resolution
to remove him as President. NAFCOC refused to accede to the appellant’s demand.
In consequence, the appellant instituted these proceedings.

[16] It is submitted by the appellant that the order, properly construed, cannot be
read as providing the first respondent, in his capacity as a NCP, with authority to
convene a special meeting of the Council for the purposes of removing the President.
Such removal, so ran the argument, could only be effected at the meeting which in
terms of the order was scheduled to take place on 31 July 2019. The argument was
that the meeting convened by the first respondent was not a ‘scheduled meeting’ and
was therefore unlawful. In my view, the order read in its context was intended to create
a mechanism for those Council members who wanted to bring a notice of no

confidence in the appellant, but were prevented from doing so because the appellant
would not call a Council meeting at which the issue could be raised. The order did not
prescribe to them how such meeting was to be called. In terms of the order, any party
was entitled to place on the agenda any issue that had been on the agenda of the
meeting scheduled for 27 June 2019. The high court was correct therefore to dismiss
the appellant’s contention that the order granted precluded the NCP from convening
the head office meeting.

[17] The second ground on which the appellant attacks the lawfulness of the head
office meeting and validity of the resolutions taken thereat, is based on the meaning
he ascribes to clause 28.4.4 of the Constitution. Before considering in greater detail
the appellant’s contention, it is necessary to set out the provisions of clause 28.4.4
first. This clause regulates the holding of Council meetings and it provides the
following:
‘Council meetings shall be held at such times and places as the President or Chairperson of
a Provincial Executive Committee or National Chairperson of Provinces in consultation with
other members of Executive committee, may determine; provided that Council shall meet no
less than 4 (four) times in each calendar year.’ (Own emphasis.)

[18] As already alluded to, the appellant contends that, properly interpreted, clause
28.4.4 does not vest authority in the first respondent in his capacity as the NCP to
convene a special meeting of Council for the purpose of removing the President. That
authority, he argues, is vested in the President, or in his or her absence, his or her
Deputy. Based on this construction, the appellant argues that the head office meeting,
which was convened by the NCP, was therefore unlawful and any resolution taken at
that meeting, was invalid and of no effect. The appellant contends that a proper
contextual, sensible and businesslike interpretation of clause 28.4.4 indicates that the
word ‘or’ appearing in the clause must be read to mean as ‘failing which’ or ‘failing
whom’ and that any alternative interpretation would undermine the purpose of the
Constitution. It is significant to note that the appellant does not state what the purpose
of the Constitution is that would be undermined by an interpretation which is contrary
to his proposed interpretation.

[19] The appellant’s proposed construction is elaborated upon in paragraphs 22.3 –
22.6 of his replying affidavit:
‘On such an interpretation, the authority vests solely in the preserve of the president unless
one of the following events transpires: (i) he is requested to convene a meeting and fails to do
so (which was not the case); (ii) he is unable to perform his functions; or (iii) he is absent.
The aforesaid interpretation is the most common sense and business-like approach. If either
of the parties could convene a council meeting at any time they chose to do so, as the
respondents suggest, absolute chaos and disorder would result.
If the respondents’ interpretation is favoured, then the very situation which currently prevails
shall be a common feature of NAFCOC’s administration. This is surely not suitable or in the
best interests of the administration of NAFCOC or its members.
The interpretation proposed by the respondents also begs the question of the role of a
president and the need to delineate the functions and authority of each office bearer in relation
to one another. Clause 29.8 of the constitution stipulates these functions. I draw attention to
clause 29.8.4.2.2, which states that the Deputy President, “In the absence or inability of the
president to perfom his functions, assume all responsibilities of the President”. This is
indicative that the functions of the respective office-bearers are clearly defined. This accords
with my proposed interpretation.’

[20] The first respondent disputes the appellant’s contention that clause 28.4.4 does
not provide him with authority to convene a special Council meeting for the purpose of
removing the President. He contends that the language used in clause 28.4.4 must be
given its ordinary grammatical meaning and that based on this approach the word ‘or’
in the clause should be interpreted to mean that the President or any one of the nine
Chairpersons of Provincial Executive Committees or the NCP shall have the power to
call a Council meeting in consultation with the EXCO. Essentially, anyone of the 11
officials has the power to call a Council meeting after having consulted the EXCO.

Interpretation
[21] The issue therefore revolves around the correct interpretation of clause 28.4.4
of the Constitution. The proper approach to statutory interpretation is well-known,
following the judgment of this Court in Natal Joint Municipal Pension Fund v Endumeni

Municipality,3 which was endorsed as follows in Capitec Bank Holdings and Another v
Coral Lagoon Investments 194 (Pty) Ltd and Others:4
‘Our analysis must commence with the provisions of the subscription agreement that have
relevance for deciding whether Capitec Holdings’ consent was indeed required. The much-
cited passages from Natal Joint Municipal Pension Fund v Endumeni Municipality (Endumeni)
offer guidance as to how to approach the interpretation of the words used in a document. It is
the language used, understood in the context in which it is used, and having regard to the
purpose of the provision that constitutes the unitary exercise of interpretation. I would only add
that the triad of text, context and purpose should not be used in a mechanical fashion. It is the
relationship between the words used, the concepts expressed by those words and the place
of the contested provision within the scheme of the agreement (or instrument) as a whole that
constitutes the enterprise by recourse to which a coherent and salient interpretation is
determined. As Endumeni emphasised, citing well-known cases, “[t]he inevitable point of
departure is the language of the provision itself.”’

[22] What this means in the context of this case, is that one considers the language
used, which must be given its ordinary grammatical meaning unless this results in
absurdity, repugnancy, or inconsistency with the rest of the document. The language
used must be understood in the context in which it is used and having regard to the
purpose of the provision of the document.

[23] It is apparent from the appellant’s contention that he proposes that a
hierarchical approach must be followed when determining who has the power5 to
determine the times and places of a meeting of Council. The appellant contends that
the President, to the exclusion of the nine Chairpersons of Provincial Executive
Committees and the NCP, is empowered to call for a Council meeting. If the President
fails to call a Council meeting due to absence or inability to do so, a Chairperson6 of a
Provincial Executive Committee shall become empowered to call for a Council
meeting. Should all of them fail, the NCP shall become entitled to call a Council
meeting.

3 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262
(SCA).
4 Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others
[2021] ZASCA 99; [2021] 3 All SA 647 (SCA) para 25.
5 In consultation with the EXCO.
6 One of nine such officials.

[24] The hierarchical approach propounded by the appellant does not find support
in clause 28.4.4. Clause 28.4.4 should be compared with clause 29.8.4.1 dealing with
the powers of the President, Deputy President, the Senior Vice President and the
Second Vice President. For example, in clause 29.8.4.2.2 it is specifically provided
that in the absence or inability of the President to perform his functions, the Deputy
President assumes all responsibilities of the President. The point is that where
NAFCOC wishes the hierarchy to be observed in determining who has the power to
act, it says so, and specifies how it would happen.

[25] The construction of clause 28.4.4 contended for by the appellant must fail as it
is neither supported by the text, the context of the clause nor the purpose for which it
was introduced. As regards the text, the question really is about the meaning of the
word ‘or’ appearing in clause 28.4.4. The appellant’s proposed meaning entails that
the words ‘failing which’ or ‘failing whom’ must be read in the place of the word ‘or’
wherever it appears. There is no reason to deviate from the ordinary grammatical
meaning of the word ‘or’. Counsel for the appellant was unable to explain why
assigning the ordinary grammatical meaning to the word ‘or’ would result in absurdity,
repugnancy, or inconsistency with the rest of the Constitution.7 Properly interpreted
the clause means that the President or any one (or more) of the nine Chairpersons of
Provincial Executive Committees or the National Chairperson of Provinces shall have
the power to call for a Council meeting in consultation with the EXCO. Moreover the
appellant’s proposed interpretation of clause 28.4.4 does not address the problem of
a President’s refusal to call a special meeting where the purpose of the meeting is to
call into question his or her fitness to continue to be a face of the organisation.

[26] The President does not need to be absent or unable to call a meeting for the
operation of clause 28.4.4 to be triggered. The suggestion by the appellant that giving
the word ‘or’ its ordinary meaning would undermine the purpose sought to be achieved
by the Constitution by delineating the functions and authority of each office bearer in
relation to one another, has no merit. The office bearers who are authorised to exercise
powers to call for the meeting in clause 28.4.4 do not have a free hand to do so. They

7 Privest Employee Solutions (Pty) Ltd v Vital Distribution Solutions (Pty) Ltd  [2006] 1 All SA 111 (SCA)
para 21.

are required to exercise those powers in consultation with the members of the EXCO.
This requirement acts as a control mechanism to prevent potential abuse of powers
by either any one of the nine National Chairpersons of Provincial Executive
Committees or the NCP. I agree with the interpretation of the respondents. It is more
plausible than that advanced by the appellant. The appellant’s proposed construction
of clause 28.4.4, if accepted, would result in an insensible and unbusinesslike
outcome. On the appellant’s proposed interpretation, there is no time period or
mechanism to determine a failure to call a meeting by any of the officials and all nine
Provincial Executive Committee Chairpersons would have to fail before the NCP would
be empowered to call a Council meeting.

[27] It is thus implicit in the appellant’s proposed interpretation that the NCP will only
become empowered when the President and the nine Chairpersons of Provincial
Executive Councils have failed to exercise their powers to call a Council meeting. But
his supposed empowerment would, of course, be conditional upon the failures of this
ten predecessors having occurred in the correct sequence, and the failures being
demonstrable. It is apparent that the appellant’s proposed interpretation would result
in an absurdity and is unworkable.

[28] Furthermore, the appellant’s proposed interpretation would undermine the
purpose which NAFCOC sought to achieve by introducing clause 28.4.4 through the
amendment of the Constitution in 2011. In this regard it is significant to note that prior
to its amendment in 2011, clause 28.4.4 provided that ‘Council meetings shall be held
at such times and places as the President may determine; provided that Council shall
meet no less than FOUR (4) times in each calendar year’.

[29] In paragraph 2.7 of the Commission Reports and Resolutions that served at the
NAFCOC Bi-Annual Summit on 5-8 May 2010, it was reported that:
‘Calling of Council Meetings: In the past there had been problems with the National President
not calling the Council meetings as is required in terms of the Constitution. To obviate the re-
occurrence of such problems the National Chairperson of Provinces in consultation with the
other members of the Executive Committee shall determine the place and time where Council
Meetings shall be held.’

[30] It is apparent from the contents of paragraph 2.7 quoted above that the decision
makers at the time knew that there had been problems in the past relating to the
National President not convening Council meetings. By amending clause 28.4.4 to
empower persons other than the President to convene Council meetings, the decision
makers at the time sought to obviate the reoccurrence of the said problem.

[31] The Summit resolved as follows:
‘RESOLUTION: CLAUSE 28.4.4 must be amended as follows: Council meetings shall be held
at such times and places as the President or Chairperson of a Provincial Executive Committee
(in the case of Provinces) or National Chairperson of Provinces in consultation with other
members of the Executive Committee, may determine, provided that Council shall meet no
less than 4 (four) times in each Calendar year.’

[32] The amended version of clause 28.4.48 was adopted on 17 March 2011.
Significantly, throughout the process preceding the adoption of the 2011 amendment
to clause 28.4.4, no trace can be found of any hierarchy amongst the 11 officials
empowered to call for Council meetings. The purpose of clause 28.4.49 was therefore
to obviate the re-occurrence of a recalcitrant President by increasing to 11 the number
of persons empowered to convene a Council meeting,10 in order, among other things,
to subject the continuation of the President’s office to a democratic motion of no
confidence in terms of clause 23.3.

[33] It is clear that in light of the text and context of the provision, the plain purpose
of clause 28.4.4 is to obviate the problems that the members experienced in the past
with the National President refusing to call Council meetings as required in terms of
the Constitution. The appellant’s interpretation fails to fulfil this purpose and in fact
undermines it. It must be rejected.

[34] The high court was therefore correct to find that the meeting of 31 July 2019 of
the Federal Council held at NAFCOC’s Head Office was properly convened and that
the decisions taken thereat were validly taken. It follows therefore that the appellant

8 With slight variations.
9 As amended in 2011.
10 In consultation with the EXCO.

was legitimately removed as the President of NAFCOC. His application was correctly
dismissed by the high court.

Leave to appeal to SCA
[35] Before proceeding to costs, I consider it necessary to express my disquiet about
a practice which has developed recently in terms of which, it would seem that when
leave is sought from the high court to appeal against the judgment of a single judge, it
is invariably granted to this Court. An appeal from a judgment or order of a high court
sitting as court of first instance lies either to the full court or this Court in terms of ss
16 and 17 of the Superior Court Act 10 of 2013. These sections make it clear that the
primary court of appeal from a single judge of the high court is the full court of the
relevant division of the high court, unless the questions of law or fact or other
considerations dictate that the matter should be decided by this Court.11 The
convenience of the judges of any particular court is not a proper consideration.

[36] Harms in Civil Procedure in the Superior Courts at C1.23 states:
‘In granting leave to appeal, it is essential to direct which court of appeal is to hear the appeal.
The court granting leave to appeal – whether the court of first instance or the Supreme Court
of Appeal – must, unless it is satisfied that the question of law or fact and the other
considerations involved in the appeal are of such a nature that the appeal requires the
attention of the Supreme Court, direct that the appeal be heard by the full court. The court
must consider the issue irrespective of the wishes of the parties.’
In this matter the high court made an order granting leave to appeal to this Court.
There is no reason why the full court could not have dealt with the present appeal,
which essentially concerns an uncomplicated interpretation of the Constitution of a
voluntary association. Marais JA in his concurring judgment in Shoprite Checkers (Pty)
Ltd v Bumpers Schwarmas CC and Others12 was also concerned about the trend of
invariably granting leave to this Court, even in circumstances where leave should not
have been granted to this Court. He had this to say at para 6:

11 MTN Service Provider (Pty) Ltd v Afro Call (Pty) Ltd [2007] ZASCA 97; 2007 (6) SA 620 (SCA) para
24.
12 Shoprite Checkers (Pty) Ltd v Bumpers Schwarmas CC and Others 2003 (5) SA 354 (SCA).

‘The inappropriate granting of leave to appeal to this court increases the litigants’ costs and
results in cases involving greater difficulty and which are truly deserving of the attention of this
court having to compete for a place on the court’s roll with a case which is not.’

[37] The remaining issue to determine is the question of costs. Counsel for the
respondents asked for costs of two counsel to be awarded if the appeal should be
dismissed. As I have said, the issues raised in this matter are not so complex as to
warrant the services of two counsel.

The order
[38] In the result, the appeal is dismissed with costs.

____________________
D H ZONDI
JUDGE OF APPEAL

APPEARANCES

For appellant:

T C Kwinda
Instructed by:

Tube Attorneys, Pretoria

Maduba Attorneys, Bloemfontein

For respondents:

C A C Korf with K Mashile
Instructed by:

VFV Attorneys, Pretoria

Symington & De Kok Attorneys, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

7 DECEMBER 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
Macingwane v Masekwameng and Others (Case no 626/2021) [2022] ZASCA 174 (7
December 2022)
Today, the Supreme Court of Appeal (SCA) handed down judgment dismissing an appeal
against a decision of the Gauteng Division of the High Court, Johannesburg (the high court).
The issue before the SCA was whether the head office meeting at which the members of
National African Federated Chamber of Commerce and Industry (NAFCOC) voted in support
of a motion of no confidence in the appellant, was lawfully convened. The determination of
this issue required the interpretation of the NAFCOC Constitution, in particular clause 28.4.4,
which regulates the convening of meetings and clause 23.3, which provides for the removal
of the President from office.
On 19 June 2019, Mr Sekwamo Gilbert Mosena, the Deputy President of NAFCOC, issued a
notice calling for a meeting of the Council to be convened on 27 June 2019 for the purpose of
tabling and debating a motion of no confidence in the appellant, Mr Sabelo Vusumzi
Macingwane, as the President of NAFCOC. The appellant lodged an urgent application in the
high court against NAFCOC and certain other respondents to interdict them from holding the
meeting. The parties to the urgent application agreed to settle, which agreement was made
an order of court (the order). The order provided that the meeting scheduled for 31 July 2019
was cancelled and that the meeting scheduled for 31 July shall take place as scheduled.
On 31 July 2019, NAFCOC, at a meeting of its Council held at its head office at 13 Summer
Street, Rivonia, Johannesburg (the head office meeting), passed a resolution in terms of which
it adopted a motion of no confidence in the appellant as its President. NAFCOC, acting
pursuant to this resolution, dismissed the appellant. This meeting was convened by the first
respondent, Mr Isaac Ntshireletsa Masakwameng, NAFCOC’s National Chairperson of
Provinces in terms of the notice dated 5 July 2019. Aggrieved by the decision to dismiss him,
the appellant, on 8 August 2019 approached the high court.
The appellant contended that the meeting was unlawful and that the resolution taken thereat,
was invalid. This contention was based on two grounds. In the first instance he alleged that
the first respondent, in his capacity as a National Chairperson of Provinces (the NCP), did not
have authority to convene a special meeting of the Council for the purposes of removing the
President. He maintained that such removal could only be effected at the meeting which was

scheduled to take place on 31 July 2019 as contemplated in the order and not at a special
meeting. In the second instance, the appellant contended that the first respondent, in
convening and presiding at the meeting concerned, acted in disobedience of the order. He
stated that in terms of the order the parties undertook to act ‘within the confines of [NAFCOC’s]
Constitution’.
The SCA found that clause 28.4.4 properly interpreted means that the President or any one
(or more) of the nine Chairpersons of Provincial Executive Committees or the National
Chairperson of Provinces shall have the power to call for a Council meeting in consultation
with the EXCO. It found that the President does not need to be absent or unable to call a
meeting for the operation of clause 28.4.4 to be triggered.
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