STRYDOM v ROODEWAL MANAGEMENT COMMITTEE AND ANOTHER

[1958] 1 All SA 489 (O)

 

Division: Orange Free State Provincial Division

Judgment Date: 28 November 1957

Case No: not recorded

Before: De Villiers J

Parallel Citation: 1958 (1) SA 272 (O)

• Keywords • Cases referred to • Judgment •

Keywords

Agency - Delegation of authority - Discretionary powers

Election law - Vote - Proxy - Small holdings committee of management - Delegation of

powers not competent

Cases referred to:

Belonje v African Electric Co (Pty) Ltd 1949 (1) SA 592 (E) - Applied

Hammond, Harvey and Newton v Union Textile Mills, Ltd 1949 (3) SA 398 (E) - Applied

Harben v Phillips (1883) 23 ChD 14 (ChD) - Referred to

Shidiack v Union Government 1912 AD 642 - Applied

Page 490 of [1958] 1 All SA 489 (O)

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Judgment

DE VILLIERS, J.: Applicant is a European male and owner of plot No. 70, Roodewal,
District Bloemfontein. First respondent is the Committee of Management of Roodewal,
with corporate capacity, established in terms of the Small Holdings Ordinance 17 of
1954. Second respondent is also a plot-owner in Roodewal. On the 14th September,
1957, one van Vuuren, chairman of first respondent, convened a meeting for the purpose
of electing a 7th member to the Roodewal Committee of Management. Applicant and
second respondent, both registered plot-owners in terms of sec. 40 of Ord. 17 aforesaid,
were the only duly nominated candidates for the vacancy. At
 Page 491 of [1958] 1 All SA 489 (O)
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the meeting despite applicant’s protest, the chairman admitted a number of proxy votes
on behalf of second respondent. The majority of votes cast by the members present at the
meeting and the votes cast by proxy were in favour of second respondent, and second
respondent was declared duly elected. The majority of the votes cast by the members
present at the meeting were in favour of applicant.

On the 26th September, 1957, applicant on notice of motion petitioned this Court for an
order

(a)

setting aside the decision of first respondent and/or its chairman allowing the proxy votes
as validly cast votes and declaring second respondent as having been duly elected

(b)

declaring applicant as having been duly elected to the said Committee

(c)

ordering first respondent to pay the costs of this application.

At the hearing there was no opposition on behalf of first respondent and second
respondent consented to the orders sought. The Court granted the orders as prayed and
intimated that reasons would be handed in later.

The aforesaid Ord. 17 of 1954 provides in sec. 27 that members of a Committee of

Management shall be elected by the persons whose names appear on a list compiled in
terms of sec. 40, for the small-holding area in respect of which such committee has been
established, at a meeting convened and held in accordance with the provisions of sec. 30.
Sec. 30 provides inter alia that no person shall vote at such meeting unless his name
appears on the list compiled in terms of sec. 40, and that election shall be by secret or
open vote as the meeting may determine. Sec. 40 (1) provides for the compilation of a list
of European persons, of or over the age of twenty-one years, who are owners of land in
the area proclaimed as a small-holding area, whereas sub-sec. 3 is to the following effect:

“Whenever a legal person or partnership is the owner of land in a smallholding area, such
legal person or partnership may authorise a European person of or over the age of twenty-
one years to vote on its behalf for the purposes of this Ordinance, and such person’s name
shall also appear on the list compiled in terms of sub-sec. (1).”

The crisp question which arises in this case, is, whether the proxy votes in question were
validly cast or not, although, in general, what a person sui juris may do himself, he may
delegate to another to do for him (cf. van der Linden Institutes 1.15.14). There are certain
exceptions. For instance it is against public policy to allow a person to delegate to another
authority to do an unlawful act. (Cf. Story on Agency p. 10). Also, where the act to be
performed is of a personal nature in the sense that the identity and personal attributes of
the performer of the act are of material importance to another who has an interest in its
performance, delegation is not permitted. (Cf. Belonje v. African Electric Co. (Pty.) Ltd.,
1949 (1) S.A. 592 (E); Hammond Harvey & Newton v. Union Textile Mills Ltd., 1949 (3)
S.A. 398 (E)).

Similarly where a person is required by statute to perform an action involving the

exercise of his discretion in a matter in which another has an interest, he may not delegate
his power (cf. Shidiack v. Union Government, 1912 A.D. 642, and cases cited in de
Villiers & MacIntosh on Agency, 2nd ed. at p. 28). In para. 18 of the volume dealing with
agency in The American Restatement of the Law, it is stated that unless otherwise agreed,
a person cannot properly delegate to another

Page 492 of [1958] 1 All SA 489 (O)

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the exercise of discretion in the use of a power held for the benefit of a third party, and as
an example of such a power is mentioned the right of a citizen to vote at a public election,
presumably because the citizen is in the position of a fiduciary. In so far as members of a
corporation are concerned it was decided as far back as 1883 in England that by Common
Law they have no right to vote by proxy (cf. Harben v. Phillips, 23 Ch.D. at p. 35).

In the light of the foregoing I am of opinion that the proxy votes in question were
wrongly admitted. In Ord. 17 of 1954 the legislature created a special class of persons as
being entitled to vote for the election of members to a committee of management, namely
plot-owners of or over the age of 21 years who are furthermore registered as such in
terms of sec. 40 and are not affected by any of the disabilities referred to in sec. 28. A
member of this class in exercising his or her vote exercises a discretion and in doing so
acts in a fiduciary capacity. Since the Committee to be elected will have power to make
regulations affecting thousands of other persons who have no vote (cf. sec. 51), for this
reason he must exercise his vote personally and cannot delegate his voting power to
another. The present case is an example of the exception to the general rule that a person
may delegate to another a power which he may himself exercise, namely that he may not
do so where by statute he has been chosen by reason of special qualifications to exercise
a particular power in the exercise of which others have an interest. Nor is there any
indication in the statute that the legislature intended otherwise. On the contrary sec. 40
(3) quoted above affords some indication that the legislature intended that all votes
should be cast personally and not by proxy. (Cf. Belonje v. African Electric Co. (Pty.)
Ltd., supra at p. 599).

For the above reasons the Court granted an order as prayed.

Appearances
CEL Beck - Advocate/s for the Applicant/s

Symington and de Kok - Attorney/s for the Applicant/s

No Appearance - For the Respondent/s

Parallel Citation
Page 272 of 1958 (1) SA 272 (O)
Parallel Citation
Page 273 of 1958 (1) SA 272 (O)
Parallel Citation
Page 274 of 1958 (1) SA 272 (O)