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Court dismisses challenge by Nafcoc Mpumalanga

A court challenge against the legitimacy of one faction of a business chamber’s leadership in Mpumalanga and its control of shares worth R22 million has been dismissed.

The National Federated Chamber of Commerce (Nafcoc) – an organisation formed during apartheid to serve black business’ interests – has been riven by factions in recent years, which saw the Mpumalanga branch under its president Sydney Kunene operating independently of the national structure.

Josiah Skosana, the president of a Mpumalanga faction aligned to Nafcoc’s national president, Lawrence Mavundla, had taken the Kunene-led group to the Pretoria High Court – questioning its legitimacy.

Skosana’s application to the court in December intended to stop trustees in the Kunene faction from distributing shares valued at R22 million.

The Kunene faction sold the shares invested in hotel and entertainment group Tsogo Sun Investment Holdings to Hosken Consolidated Investments in December and invested the money in another institution – details of which have been confidentially submitted to the court.

But the Skosana faction was displeased and successfully applied for an urgent application in May to stop the Kunene faction from distributing the shares, and called for a forensic investigation into the administration of the Nafcoc Trust.

Judge Francis Legodi discharged the urgent application on August 4 and reserved his judgment, which he has now passed.

Legodi has dismissed Skosana’s application for the removal of Nafcoc trustees with costs and also questioned the authority of the Skosana faction to litigate on behalf of Nafcoc Mpumalanga, as they had not established a balance of probability that they were the legitimate structure.

He said there was “a mystery” to the appointment of the Skosana faction to be the leader of Mpumalanga Nafcoc after perusing various letters from national Nafcoc leadership, which intended to support Skosana.

Skosana had submitted letters from the national Nafcoc office, which sought to prove that he was the Mpumalanga president and his faction was the legitimate structure.

Two letters from Nafcoc secretary Moga Phaladi, dated November 27 last year and April 19 this year, that intended to show the Skosana faction’s executive legitimacy, could not be relied on because another letter from Mavundla, dated February 28 2012, listed a different executive with a term that would expire next year.

Judge Legodi said: “The difficulty is that it must first be explained what happened to those members whose term expires on February 28 2017.

“There is, in fact, in my view, a mystery to the election of the Skosana faction to the leadership of Nafcoc Mpumalanga.”

Skosana’s lawyer, Ivan Ka-Mbonane, said he had filed a notice to appeal Legodi’s judgment.

“The question of who was Nafcoc’s leadership … the judge said is a highly contested issue and can’t be resolved in papers [affidavits] and we were supposed to take it for oral evidence.

“Now, he decided to dismiss the application on the basis that it’s not a matter that should be decided in papers and he did not refer it for oral evidence. We are appealing that he should have referred it for oral evidence if he believed there was a dispute of facts,” Ka-Mbonane said.

Though the Kunene faction indicated that it held new elections on December 20, Judge Legodi also questioned why there was no structure before then.

“Such proof has not been shown in the present proceedings [that the Kunene faction members are executive members] of Nafcoc Mpumalanga,” Legodi said.

The judge said the Skosana faction should have used the Trust Property Act, act 57 of 1988, to order the Master of the High Court to remove the Kunene faction as trustees. Therefore, its attempt for a forensic audit to be conducted on the affairs of the trust fell away.

Kunene said: “They’re appealing and their appeal is [just] attacking the judge. They couldn’t prove they’re the legitimate structure.”

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