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| Colin Webster at the Zulman Commission of Inquiry. |
MSSA's General Secretary, Colin Webster, also appeared before the Zulman Commission of Inquiry which is investigating maladministration in SASCOC.
In his testimony, Colin Webster raised the following:
- SASCOC as a
Company and as a Voluntary Association
- Unlawful payments by the NDLTF to the SASCOC (NPC's) bank account
- Enabling activities by the then Minister of Sport and Recreation, Mr Fikile Mbalula
- The 'so-called' suspension of Mind Sports South Africa
- Issues surrounding the Collins' Commission of which he was a member
- The dissolution of the Legal and Arbitration Committee when it started to investigate one of its own members
- Victimisation of those who spoke out against SASCOC
- The attempt by SASCOC to silence him through the Adv. David Beasley tribunal
- SASCOC's unlawful interference in the affairs of its members
Without doubt the most serious of all the allegations are those surrounding SASCOC as a Company and as a Voluntary Association.
SASCOC was registered on 26 November 2004 as a Non Profit Company (a Section 21
company under the old Act) under company number 2004/033949/08.
The company remains registered and in business to this day according
to CIPC.
The
registered directors are:
SAMBASIVAN RAMSAMY - Director Active
MARK
RANDALL ALEXANDER - Director Active
HAJERA KAJEE - Director Active
LESLIE
DANIEL WILLIAMS - Director Active
REMEMBER
RAYMOND MALI - Director Active
MARSHA MARESCIA - Director Active
AURELIA
BONGEPHIWE MTHETHWA - Director Active
GIDEON
NAPOLEON SAM - Director Active
LEHLOHONDLO
JAMES LETUKA - Director Active
MUBARAK MAHOMED - Director Active
JAYSEELAN NAIDOO - Director Active
The
Companies Act was amended in 2008, coming into effect on 1 May 2011, however, certain clauses were not in full effect until 1 May 2013.
However, SASCOC took a decision to create a voluntary
association under the same name.
It adopted a constitution in those
terms on 26 September 2015.
SASCOC
purported to ‘convert’ itself from a company to a voluntary
association via this process, which was obtained via resolution
passed by the members of the company at a meeting of a company.
It must be noted that there
is no provision in the Companies Act 71 of 2008 for a company to
‘convert’ to any other legal entity. The Co-operative Act
14 of 2005 permits a company to convert to a Co-operative, but under
that Act subject to stringent requirements.
Accordingly,
what SASCOC attempted to do in 2015 was not possible in law.
All that
was achieved was to create a second legal entity so that SASCOC is now
a company and a voluntary association.
The
consequences of this are the following:
-
SASCOC
has publically (and according to all notifications to its members)
ceased to carry on its operations under the banner of the company.
-
Accordingly,
SASCOC has ‘transferred’ staff, assets, bank accounts, contract,
etc, from the company to the voluntary association without any legal
grounds for doing so.
-
The
directors of SASCOC NPC (listed above) have effectively
assets-stripped the company in favour of the voluntary association,
despite their fiduciary duties to the company as directors.
-
SASCOC,
the NPC, is the legal entity recognised as by the Minister of Sport
in terms of the National Sport and Recreation Act. The Minister has
not terminated that recognition and recognised the voluntary
association in its place. Accordingly, the voluntary association is
acting illegally by purporting to act as the Sports Confederation in
terms of the National Sport and Recreation Act.
-
SASCOC
NPC is also the body which was affiliated to the IOC and several
other international bodies, although the voluntary association has
taken over that affiliation without reapplying afresh.
-
SASCOC
NPC is further the body registered with SARS for tax. The voluntary
association could not just take over that registration or exemption
as a Public Benefit Organisation.
The
full impact of SASCOC’s conduct of purporting to ‘convert’ to a
voluntary association is that the rules of governance have changed
dramatically. This is best explained as follows:
In
terms of the Companies Act, the company does not have special powers
vis-à-vis its members (it is impossible to think of Anglo-American
taking over one of its shareholders if it is unhappy with that
shareholder). The rules of governance are geared towards the members
holding the board of directors of the company accountable, and not
the board of directors hold the company accountable.
Schedule
1 of the Companies Act has rules relating to Non Profit Companies.
The ones which impacted SASCOC the most were that:
- One
third of the board of directors have to be replaced each year. SASCOC
has never complied with this provision.
- Membership
can only be voting or non-voting – it is not possible to have
differently weighted votes.
- Ex
officio membership is not permitted. So a board member cannot become
a member by virtue alone of being a board member. This means that
board members (unless they have other rights in their personal
capacities) do not have the right to vote as such at SASCOC members’
meetings.
SASCOC
could provide for how membership could (or would) be lost. However,
it would be in conflict with many provisions of the Companies Act for
SASCOC to take over a member (or place it under administration, as
SASCOC terms it).
Accordingly,
all acts committed before September 2015 in which SASCOC purported to
interfere directly (as opposed to suspending or terminating
membership) in the affairs of its members was in conflict with the
Companies Act and therefore invalid and unlawful. (The SASCOC
Articles/Constitution or MOI, whatever term it uses, cannot trump the
Companies Act. Section 5 of the Act provides for the situations where
the Companies Act will not automatically prevail, and nowhere is
SASCOC mentioned.)
By
purporting to ‘convert’ to a voluntary association SASCOC has
attempted to avoid the governance provisions of the Companies Act and
rather resort to the rather looser basis of a voluntary association
(purportedly based in contract). The reasoning being that the members
of SASCOC can agree to SASCOC interfering in their affairs by
agreeing to it in a constitution. Accordingly, any member of the
SASCOC voluntary association is subject to its constitution and to
any action taken against then by SASCOC when it is acting as the
voluntary association. However, members who did not agree to join the
voluntary association are protected by the Companies Act, and all
members who were interfered with prior to 2015 would have a claim
against the directors and senior management of SASCOC for any harm
caused.
The
directors of SASCOC NPC have been derelict in their duties by
permitting the asset stripping of the company in favour of the
voluntary association. Further, in so far as they violated the rights
of any members in breach of the provisions of the Companies Act, they
have been delinquent.
The
directors have also failed to hold meetings of the company since
2015, and have not continued to produce financial statements of the
company or fulfil their other functions as directors. On these
grounds they should be reported to the Companies Tribunal to take
action against them in their personal capacities.
