IN THE
LESOTHO COURT OF APPEAL

C of A
(CIV) NO 13/91

In the
matter between:

LERIBE
POULTRY CO-OPERATIVE SOCIETY Appellant

and

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.

Kotze, J.A.

JUDGMENT
Ackermann, J.A.

This is
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

2

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

rule
infringed".

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

3

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).

It would
appear that practitioners are in more than one instance experiencing
difficulties in obtaining typed orders from the Registrar's
office as
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

4

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
meeting of
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 -

1. shall
   be entitled to direct the meeting to proceed, notwithstanding the
   absence of a quorum as

   
   

5

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."

6

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;

and

(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

7

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.

On behalf
of the respondents it was contended that a wide construction must be
given to section 10(1) in order to enable the first
respondent to
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:

8

"11. (1) If the Minister is of the opinion that the committee or
a registered society is not performing its duties properly,
he may
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.

2. 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.

   
   

2. 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

   
   

1. may
   recover the assets and discharge the liabilities of the society
   and
   take such other steps as may be necessary in its interest;
   and

   
   

2. may
   exercise all the powers, rights and privileges of a duly
   constituted
   committee.

   
   

4. 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.

   
   

4. The
   person or persons appointed in terms of this section shall, at the
   expiry of the period of his or their appointment, arrange

   
   

9

for the constitution of a new committee in accordance with the
by-laws of the society.

6. 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.

   
   

Sub-section
11(1) is of wide import. It enables the Minister (after the due
process prescribed in the subsection is followed) to
dissolve the
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.

Once he
has issued an order in terms of sub-section 11(1) or the Act
dissolving the committee the Minister is obliged (in terms
of
sub-section 11(1) read with sub-section 11(2)) to appoint:, either by
the same order dissolving the existing committee or by
a
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

10

appointed.

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."

In my
view the provisions of and the interrelationship between sections 10
and 11 are perfectly clear, free from ambiguity, address
the mischief
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

11

meaning.
Section 10 was designed to enable the Minister to convene, through
the Registrar, a special general meeting of a registered
society, to
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

12

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.

In the
unreported judgment in Lesotho Poultry Co-Operative Society v The
Minister of Agriculture and others CIV/a2n/165/32, where
the legal
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 17^th
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;

13

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
applicant's
costs.

Delivered
at Maseru on this 24 day of February 1992.

14

L. W. H.
ACKERMANN

JUDGE OF
APPEAL

I agree

J.
BROWDE

JUDGE OF
APPEAL

I agree

G. P.
KOTZE

JUDGE OF
APPEAL

For the
Appellant :

For the
Respondents : Mr. T. Mohapi