IN
THE HIGH COURT OF SWAZILAND
Civil
Case No.977/92
NATIONAL
HOUSING BOARD TENANTS' ASSOCIATION
v.
NATIONAL
HOUSING BOARD
HUMAN
SETTLEMENT AUTHORITY
ATTORNEY
GENERAL
QUORUM
Hull, C.J.
FOR
THE APPLICANT Mr. Ntiwane
FOR
THE FIRST RESPONDENT Mr. Mabuza
ORDER
(14/6/93)
On
4th August 1992. the National Housing Board Tenants' Association
filed an application on a basis of urgency for a rule nisi in the
following terms:
(a)
Interdicting and restraining the National Housing Board from -
(i)
imposing rental increases of 16 percent and; (ii) locking out or
ejecting its tenants from its estate -
"pending
the matter being finalised"; and
(b)
Directing that a Commission of Enquiry be set up to look into the
question of new leases and rental increments and that the matter be
referred to the Human Settlement Authority -
2
and
for incidental relief.
It
also sought an order in terms of paragraph 2 (a) on an interim basis,
i.e.-pending the return day.
The
Association's founding affidavit was sworn by Mr. Nelson Muss.
Sibandze, who has stated in paragraph 1 of it that he is the
president of the Association authorized to give the affidavit
pursuant to the power of attorney and a resolution of the Association
annexed to it..
In
paragraph 6 he has stated "The applicant represents tenants
occupying various properties owned by the first respondent and has
the mandate to bind the said tenants."
Thereafter
his affidavit recounts a history of negotiation between the
Association and the Board following an intimation by the Board that
it intended to increase the rentals for the properties owned by it.
Mr. Sibandze says that, appreciating that the Association was an
interested party, the Board's directors delegated to its management
the task of holding negotiations with the Association's committee.
The General Manager of the Board invited the committee accordingly to
meet with management. They did so. on two occasions, but no agreement
could be reached. The Board then referred the matter to the Minister
for Housing and Township Development as an arbitrator. On 29th June
1992 the Association was invited to send its representatives to a
meeting to be held on the following day at the Minister's Office.
Because of the short notice, it could not do so. Thereafter on 1st
July 1992, the Board issued a notice to all of its tenants saying
that its rents would be increased by 16 per cent with effect from
that day and requiring the tenants to sign lease agreements by the
end of July 1992.
3
The
president goes on to assert that the Association's members take the
view that the Board is a non-profit making body which is legally
bound to provide affordable housing. He, the president, further
asserts that for various reasons specified by him the Board is not
justified in increasing the rents as it has done, and that a
Commission of Enquiry should be set up to investigate the Board's
affairs.
On
5th August 1992, the High Court made a rule nisi as sought,
returnable on 28th August, and ordered the interim relief sought,
pending the finalisation of the matter. This order was expressed to
have been made by consent.
On
12th August 1992 the Board filed notice of its intention to oppose
the application.
It
also filed an opposing affidavit by its General Manager, Mr. T.J.
Dlamini, who deposed in the first paragraph that he was authorised to
give the affidavit.
In
paragraph A, he has admitted that the Association itself is a
non-profit making body and he annexes at "A" what he
describes as a copy of its constitution. He denies however that the
Association represents tenants of properties owned by the Board and
that it has a mandate to bind them.
The
General Manager agrees with the history of events leading up to the
meeting that was to be held in the Minister's Office. However, he
explains that he proposed that the Board's management and the
Association's committee should meet as the result of a recommendation
from the Minister that the Board should try and discuss the question
of the increase. He also explains that the 16 per cent increase was
an award by the Minister at the meeting, in the Minister's Office, to
which the Association's representatives had been invited.
4
As
to the other matters raided in the founding affidavit, the General
Manager states that the Board is fully empowered to increase (or
decrease) rents, and in the absence of signed leases to eject its
tenants on one month's notice.
He
denies the other allegations made by the Association generally and
specifies reasons why the increases were necessary.
I
think it is worth noting in passing, that he asserts that the setting
up of a Commission of Enquiry is the prerogative of the Minister, in
terms of the Commission of Enquiry Act 1963. (No. 35 of 1963).
On
13th August 1992, the Board applied for the matter to be set down for
hearing on the contested roll on 14th August. On that latter day, the
contested motions judge declined to hear it indicating that he had
not been given sufficient notice. He ordered it to be postponed to a
date to be fixed but he also said that certain points raised in
limine could be included on the contested roll on a Motion Day.
On
27th August the Association lodged its affidavit in reply, also from
its president. In it, he states that the constitution produced by the
General Manager of the Board was not the Association's constitution.
He
annexes, at X" in the replying affidavit what he describes as
the constitution as amended"
Thereafter,
on 4th November the Board applied to have the points in limine set
down for argument in the contested motion court on 13th November.
According to the court's records it came on for hearing first on 20th
November and then on 27th November. On both occasions it was
postponed, presumably at the request of the parties and eventually
until 4th December. On that day. I think because of the state of the
list it was stood over until 8.30 a.m. on Monday 7th December, but
there may have been some misunderstanding because according to my
minute on that
5
latter
day, there were no appearances and the matter was accordingly
postponed sine die for a date of hearing to be set. In the end, the
matter came in for hearing on the points in limine on 19th February
1993 on the contested roll, having been earlier postponed on 5th and
12th February.
The
first point in limine, taken by the Association, was that; it did not
appear from the face of Mr. Dlamini's founding affidavit, in the
absence of a. resolution, that he was authorised to give it on behalf
of the Board,. This is in my view a very technical objection and I do
not consider that it can be sustained. He has said in the affidavit
that he is the General Manager of the Board and that he is authorised
to make the affidavit. The Association's own founding affidavit
indicates at "B", "C" , "E" and "F"
annexures which refer to Mr., Dlamini as the Board's General Manager.
The Association has not put forward any evidence to suggest that Mr.
Dlamini is not authorised by his Board to make the affidavit. As a
matter of law the annexing of a resolution is not essential, and in
the present instance it is not necessary: see Mall (Cape) (Pty)Ltd v.
Merino Ko-operasie Bpk 1957 (2) SA 347(C). This objection in limine
is rejected.
Three
points in limine were in turn taken by the Board, which it is
convenient to deal with in the following order-First, it was argued
that the Association has no locus standi in judicio to bring its
application because it is not a body corporate and is therefore not a
legal person. An unincorporated association may nevertheless sue in
its own name : see Rule 14(2) of the Rules of the High Court.
That
is sufficient for present purposes but an unincorporated association
may also sue in its own name if its rules so provide: See Herbstein
and Van Winsen The Civil Practice of the Superior Courts in South
Africa Third Edition, page 159.
6
The
Board's General Manager annexed to his affidavit a registered copy of
the Constitution of the Association, which does not refer to any
power to sue or to be sued. In his replying affidavit, the president
of the Association annexed a document which he identified as the
constitution as amended.
Clause
(2) of this document does specify that the Association may sue or be
sued. It was objected that the Association had not proved that the
amendment had been duly made. Mr. Sibandze has however identified the
document on oath as the amended constitution. It is certified as
having been registered on 20th August 1991. On its face it appears to
be a valid document and in any event, as I say, the rules of court
permit an unincorporated association to sue in its own name. This
ground of objection fails.
The
second objection in limine was that the second and third respondents,
who are the Human Settlement Authority and the Attorney General (the
latter sued as representative of the Minister), have been wrongly
joined. It appears to me in the first instance that both of the
second and third respondents may have a direct and substantial
interest in the proceedings that the Association seeks to sustain,
and further that it is for either of them, rather than the Board, to
raise the issue of misjoinder. This ground of objection is therefore
also rejected.
The
Board's third point in limine is that the Association has no locus
standi in judicio because it is apparent that it is suing as an agent
on behalf of its principals. The response of the Association to the
objection is, first, that the Association is suing in its own right
and not as the agent of the Board's tenants and. secondly, that the
Board is in any event estopped from denying the Association's
authority to act on behalf of the Board's tenants.
This
objection in my judgment has substance.
7
What
the Association is seeking in the first instance is to prevent the
Board from increasing the rents of persons who are tenants; and from
locking out or ejecting persons who are tenants. In its own founding
affidavit it says that it "represents tenants" who are
occupying "various" properties owned by the Board., and
further that it - the Association -"has the mandate" to
bind "the said tenants". That in the first place is in my
view a clear statement that it is acting as the agent of tenants of
the Board. It is also vague. It does not specify either that it is
acting for all of the Board's tenants or which ones it is acting for.
The constitution of the Association does not show that it acts for
all of the Board's tenants and it does not show which and how many
tenants it acts for.
In
Sentrakoop Hondelaars Bpk v. Lourens and Another (1991) 3 SALR 540, a
decision of the Witwatersrand Local Division, it was held by Marais J
that it was not proper in principle or on the authorities for an
agent to sue in his own name on behalf of the principal whom he
represents where the claim being enforced is that of the principal
and the principal is the true plaintiff. In the course of the
judgment, the learned judge reviewed the previous authorities at some
length, distinguishing the case where an agent has the right to sue
in his own name, i.e. where he is acting for an undisclosed
principal. With respect I find the- judge's reasoning and conclusions
persuasive. In paragraph B and C on page 545 he refers to some of the
difficulties that might arise if an agent is permitted to sue in his
own name.
In
the present case, so far as the first heads of relief are concerned
(i.e. against the rent increases or lock out or ejectments) these are
prima facie matters of concern to the individual tenants themselves.
It
is true that one of the assertions in the founding affidavit is that
under the National Housing Board Act 1988. the Board has a statutory
duty to provide "affordable housing generally in Swazi land"
,but this in my view underlines in this case the
8
importance
of the need for the right applicant to bring the proceedings in his
or its own name. That function of the Board, expressed in section
4(1), is a very wide one. The Act itself does not deal with specific
relationships between the Board and its tenants. I would construe
section 4(1) as charging the Board, by legislation, with a broad
policy objective. There is a great deal of open ground between a
general duty to provide, as a matter of statutory policy, affordable
housing generally in Swaziland, and the specific situation in which
the Board may seek to increase its rental by a given percentage.
It
may be - though I express no firm view on it - that a body such as
the association could show that it has locus standi in judicio, as an
association of a class of persons who have- an interest in the policy
laid down in the act, to bring proceedings in its own name against
the Board, being proceedings intended to challenge the Board's
execution of its policy. But then I think it should do so, and say so
-in the interests, apart from anything else, of clear definition of
the real questions in issue. To take one aspect of the present
proceedings by way of example, if the Association overtly sued on
that basis, it appears to me that very different considerations might
well have applied when deciding whether to give interim relief
pending the final outcome of the proceedings. It is one thing for an
individual tenant, or a group of tenants suing together to protect
their position under their own tenancies, to seek interim interdicts
pending the outcome of their applications. It is in my view quite a
different situation where an association, as a body of persons with
an interest in the scheme of the Act, seeks to challenge the Board's
execution of its statutory duties under the Act and, pending the
outcome of the proceedings, also seeks interim relief for individual
tenants.
The
other head of relief, i.e. for a Commission of Enquiry to be
established, also to my mind underlines the importance
9
of
insisting that proceedings are brought in the name of the proper
party. As far as this head of relief is concerned, I have in any case
very strong reservations as to the appropriateness of such relief. I
do not think this Court has power to make any such order and I have
very strong doubts that it should ever have formed part of the basis
on which interim relief was based. Apart from this, however, a
Commission of Enquiry is the kind of body which would usually be
concerned, in its eventual objectives, with the intended policy of
the Act rather than specific tenancies. As I say, I doubt that anyone
would be entitled to an order for an enquiry but if that were a
possible order, it seems to me that it would be more appropriately
sought by an association suing in its own name, as a body having an
interest in the policy of the Act, rather than as an agent for
individual tenants.
And
apart from each of these things, there are practical issues involved
in permitting the Association to sue in its own name on behalf of the
tenants - notably on whose behalf exactly is the association suing,
and to what extent is it authorised to do so?
I
do not consider that it can be said that the Board is estopped from
denying that the Association represents the Board's tenants. The
issue still arises - which tenants? The Association's own pleadings
do not make that clear. It cannot in my view be said properly that
because the Board was willing to discuss and negotiate the question
of rent-increases with the Association, or even to refer the matter
to the Minister as an arbitrator, it was thereby by its conduct
acknowledging the Association's locus standi in judicio to sue the
Board in its own name on behalf of the Board's tenants.
In
SentraKoop Marais J considered the consequences of the case where an
agent incorrectly commences proceedings in his own name on behalf of
a principal. He held, for reasons
10
that
I adopt and follow, that such a situation was not necessarily fatal
to the course of the proceedings. A suitable amendment might be
allowed.
Here,
however I do not consider that appropriate. The third objection in
limine by the Board does in my view succeed. These proceedings should
have been commenced at the outset either by the tenants themselves or
by the Association in its own right. In the latter event, it would in
my view have had to couch the basis for its claims to relief on
somewhat different grounds. If it have sued in its own right, I think
it is a very moot point indeed as to whether it would have obtained
any interim relief at all, pending the outcome of the case. On the
papers as they stand, it is not at all apparent that if the other
course is pursued (i.e. if the tenants sue in their own names) they
can be permitted easily to do so by straightforward amendments. In
the meantime, the Association and, through it. tenants who may be its
members have had the advantage of the interim interdict.
In
the circumstances, I consider that the proper course is to discharge
the rule nisi (and thus the interim interdict) with costs to the
Board, leaving it to the Association or the tenants to bring further
proceedings in their own names respectively, as they may see fit.
I
make orders accordingly.
DAVID
HULL
CHIEF
JUSTICE
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