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[2016] ZAWCHC 189
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Fransman v Shabangu and Others (22690/16) [2016] ZAWCHC 189 (9 December 2016)
Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPE DIVISION, CAPE TOWN]
Case
No: 22690/16
In
the matter between:
MARIUS
LEWELLYN
FRANSMAN APPLICANT
And
SUSAN
SHABANGU
FIRST
RESPONDENT
GWEDE
MANTASHE
SECOND
RESPONDENT
INTEGRITY
COMMISSION OF THE ANC
THIRD
RESPONDENT
AFRICAN NATIONAL
CONGRESS FOURTH
RESPONDENT
JUDGMENT – 09 DECEMBER 2016
LE
GRANGE, J
:
[1]
In this matter the Applicant seeks relief in two parts against the
Four Respondents (“the Respondents”). In
Part A,
the Applicant seeks urgent interdictory relief for the release of
certain documents against the Respondents and in Part
B, in terms of
Rule 53 of the Uniform Rules of Court, the Applicant seeks the review
and setting aside of the findings and recommendations
made by the
Third Respondent, the Integrity Commission of the ANC (“IC”)
dated 14 July 2016, including the findings
and sanctions imposed by
the First Respondent on 9 November 2016.
[2]
Advocate Montzinger appeared for the Applicant and Advocate N Nyman
appeared for the Respondents.
[3]
The factual matrix underpinning this application, in summary, is the
following. The Applicant is currently the Provincial Chairman
of the
Fourth Respondent, the ANC, in the Western Cape. In February 2016,
the Applicant was summonsed to appear before the IC in
respect of
allegations of sexual harassment of a young woman “LW”
during the ANC’s 108 anniversary celebrations
that was held in
Rustenburg in early January 2016. LW was apparently invited by
the Applicant to accompany him and two other
persons to the ANC
celebrations. They travelled from Cape Town to Rustenburg by car and
en-route stayed overnight in Kimberley.
It was during this trip that
the allegations of sexual harassment against the Applicant surfaced.
[4]
The above-mentioned allegations culminated in a criminal
investigation by the South African Police Service (“SAPS”)
and a criminal complaint was laid against the Applicant. SAPS
investigated the complaint and during May 2016, the National
Prosecuting Authority (“NPA”) informed the Applicant that
it would not prosecute the complaint against him.
[5]
The Provincial Executive Committee (“PEC”) of ANC in the
Western Cape, in January 2016, after the allegations of
sexual
harassment surfaced took a decision to refer the Applicant’s
matter to the IC.
[6]
In February 2016, the Applicant was summonsed to appear before the IC
in respect of the allegations made by LW.
[7]
It needs to be mentioned that the IC is a committee of the ANC’s
National Executive Committee (“the NEC”).
One of the IC’s
main responsibilities is,
inter alia
, to “[p]rotect the
image of the ANC” and “[to take] corrective action,
excluding disciplinary action against
leaders and members who are
facing damaging allegations of improper conduct”.
[8]
The IC during the period February to April 2016, interviewed amongst
others, the Applicant and LW. A report was compiled and
produced on 4
July 2016 (“the Report”). In the Report, the IC
recommended that the allegations against the Applicant
be referred to
the ANC’s National Disciplinary Committee (“the NDC”).
[9]
The Applicant, in a letter dated 1 February 2016, was informed by the
deputy chairperson of the IC that at the conclusion of
the
proceedings, it will prepare a report to the NEC and a copy thereof
will be forwarded to him which will include the IC’s
findings
and recommendations.
[10]
A copy of the Report was not immediately made available to the
Applicant. This state of affairs led to a flurry of correspondence
between the Applicant and the Second Respondent, Mr Mantashe,
regarding the delivery of the Report.
[11]
According to the Applicant, despite his attempts to obtain the Report
his requests were met with resistance. Mr Mantashe has
a different
view on this issue. According to Mr Mantashe, in a letter dated 12
July 2016, he requested the Applicant exercise some
patience as the
Report of the IC (who is a sub-committee of the NEC) was only
received by him on 10 July 2016. According to Mr
Mantashe, the Report
at that time needed to be discussed by other responsible structures
in the ANC, namely the National Working
Committee, the National
Executive Committee and the National Officials before a final
decision could be taken regarding the Report.
The Applicant was also
informed that the ANC was in election mode for the Local Government
Elections that was held on 3 August
2016, and that some officials
involved are high ranking government officials with other commitments
and cannot be assembled at
short notice.
[12]
The Applicant, however, decided on 25 July 2016 to institute an
application on an urgent basis against the Deputy Chairperson
of the
IC, Mr Mantashe as the Secretary General, and the ANC for the release
of the Report.
[13]
On 27 July 2016 the parties reached a settlement as to when the
Report will be released to the Applicant. This settlement was
made an
Order of Court by Klopper AJ.
[14]
In terms of Paragraph 2 of the Order of Court, Mr Mantashe was
ordered to deliver the complete Report to the Applicant’s
erstwhile Attorneys.
[15]
A copy of the Report was ultimately handed to the Applicant on 27
July 2016. In a letter dated 15 August 2016, the erstwhile
Attorney
of the Applicant confirmed that the High Court application was
withdrawn after receiving a copy of the Report. Paragraph
3 of the
letter recorded the following:
‘
Having studied the Report
our client is now more convinced than ever that the Report is not
only fatally flawed but was inspired
by a desire to settle a local
factional ANC dispute
.’
[16]
At paragraph 5 of the letter it is stated that “
many of the
annexures and documents mentioned in the Report, was [sic] not
supplied”.
[17]
In paragraph 6 of the letter, the Applicant noted the list of
documents it now sought, namely:
1.1
The
transcripts and records of the interviews with Angie Motshega and
Derek Hanekom;
1.2
The
affidavit of Ilse Folscher;
1.3
Copy
of the Report filed by the NEC deployees of the Western Cape led by
Derek Hanekom;
1.4
Transcript
of the interview conducted with me by the Commission;
1.5
Transcript
of LW’s interview with the Commission;
1.6
Copies
of LW’s statements;
1.7
Copies
of any other statements considered by the Commission;
1.8
Copies
of any other documents mentioned in the Commission’s report.
[18]
The following day, 16 August 2016, Mr Mantashe replied by stating,
inter
alia
,
that “
all
the information sought in your letter could be requested and obtained
at the pre-hearing conference”
.
The letter continued and it was recorded that “
As
your client is aware, neither the National Officials nor the National
Executive Committee can intervene in the disciplinary machinery
of
the ANC
”.
[19]
The NDC, on 22 August 2016, issued a charge sheet against the
Applicant containing three charges, which consists
inter
alia
of abusing his office for sexual or any other undue advantage, and
the making of certain utterances which brought or could potentially
bring the ANC into disrepute.
[20]
On 23 August 2016, the Attorney of the Applicant sent a letter to the
current Respondents’ Attorneys stating the following:
‘
1. We refer
to the correspondence received from your client on 16 August 2016.
2. We are concerned
that all of the documents we requested in paragraph 5 of our letter
of 15 August 2016 has not been received
despite this being
specifically included in the Court Order under case number
13132/2016.
(the
Klopper AJ, Order)
3. This is an issue
between our client and Mr Mantashe in his official capacity and
compliance is sought without further delay by
close of business on
Wednesday, 24 August 2016
.’
[21]
The abovementioned letter was not met with a response.
[22]
On 22 September 2016, the Applicant requested further particulars to
the charge sheet. The request included a request for copies
of the
documents received by the Commission.
[23]
The ANC’s Chief National Presenter, during October 2016, in its
reply to the request for further particulars, answered
the request
for documents as follows at paragraph 9:
‘
The Integrity Commission
Report will not be submitted as evidence and, as such, the
particulars sought are not relevant
.’
And
at paragraph 15:
‘
The
information sought is not necessary for the purpose of pleading or
preparation for the disciplinary hearing
.’
[24]
The disciplinary enquiry was held during November 2016. The Applicant
elected not to attend the proceedings but was represented
by his
Attorney who restricted his submissions to the request for the
documents.
[25]
On 9 November 2016 in its written findings, the NDC found the
Applicant guilty of only two charges and suspended him for a
period 5
years.
[26]
On 15 November 2016 the Applicant’s Attorney sent a letter of
demand to the current Respondents’ Attorneys requesting
it to
provide the documents by 16 November 2016, failing which the
Applicant will approach this Court on an urgent basis.
[27]
This application was launched on 22 November 2016 and the matter was
set down on 30 November 2016 for hearing but was postponed
to 6
December 2016 at the Applicant’s request.
[28]
The Respondents oppose the relief sought by the Applicant, and raised
various grounds in opposition to the relief sought. The
points raised
are primarily directed at the relief as contained in Part A of the
notice of motion, although some grounds are also
directed to deal
with Part B of the notice of motion. The grounds of opposition
include a number of points in limine,
inter
alia
urgency, the existence of alternative remedy, res judicata and the
lack of jurisdiction.
[29]
As a result of the view I have taken in this matter, it is
unnecessary to consider all of them.
[30]
It is trite that in order to obtain a final interdict the Applicant
must establish that it has a clear right, that an unlawful
interference with the right has actually taken place or is reasonably
apprehended and that there is no other satisfactory remedy
available
to him. Even if those requirements are satisfied, the court may in
the exercise of its discretion decline to grant an
interdict. See
Erasmus Superior Court Practise
Vol 2 at D6-12 and the cases
referred to therein.
[31]
At the heart of the Applicant’s complaint is the purportedly
incomplete Report he received pursuant to an order of this
Court on
17 July 2016. Moreover, according to the Applicant, he urgently
required the said documents on or before 2 December 2016
to timeously
lodge his appeal or review against the findings of NDC that was
chaired by the First Respondent. The Applicant further
gave evidence
on the importance of the documents in order to prepare his defence
as, according to him, on a mere perusal of the
Report the findings
and deliberations of the IC were unlawful, irrational, totally
removed from the facts and only aimed to endorse
a deliberate agenda
to unseat him from his leadership position of the ANC, in the Western
Cape.
[32]
The claim by the Applicant that the IC’s report was aimed to
endorse a deliberate agenda to unseat him from his leadership
position in the Western Cape was rejected as unfounded by the
Respondents. It was repeatedly stated by the Respondents that the
Report was not used as evidence during the NDC proceedings or in its
findings and recommendations. Moreover, Mr Mantashe implored
the
Applicant to adhere to the constitution of the ANC and exhaust the
internal remedies available to him.
[33]
It is now well established in our law that “a political party
is a voluntary association founded on the basis of mutual
consent.
Like any other voluntary association, the relationship between a
political party and its members is a contractual one,
the terms of
the contract being contained in the constitution of the party”.
See
Matlholwa v Mahuma
[2009] 3 ALL SA 238
(SCA) at para [8].
As such a voluntary association’s power to punish
offending members must be exercised in conformity
with the terms of
its constitution. A court will not normally intervene in the internal
domestic affairs of a voluntary association
duly constituted and
operating in terms of its rules, but will reluctantly intervene where
the domestic tribunal is properly constituted
but fails to follow the
prescribed procedural rules of its constitution or if it acts
ultra-vires or unlawfully. In this regard
see
Yiba and Others v
Gospel Church
1999 (2) SA 949
CPD at 961 D and
Ramakatsa v
Magashule
2013 (2) BCLR 202
(CC) at para [16].
[34]
In the present instance, the Applicant’s rights emanate from
his contractual relationship with the ANC. As member of
the ANC the
Applicant is entitled to be treated fairly and in accordance with the
rules and procedure of the ANC’s constitution.
[35]
The relief sought in Part A by the Applicant, in my view, is
premature and ill– conceived. On a careful reading of the
ANC’s
constitution, Rule 25.24 provides that ‘
[W]here the NDC acts
as a disciplinary tribunal of first instance, an appeal from or
review of its decision shall be to the National
Disciplinary
Committee of Appeal’
(“the NDCA”). Furthermore,
the Rule empowers the NDCA to ‘
[U]phold the appeal and set
aside the decision of the NDC; dismiss the appeal and confirm the
sanction imposed by the NDC; dismiss
the appeal and impose
appropriate sanction; uphold the application for review and refer the
matter back to the NDC for rehearing
or with an appropriate
directive; uphold the application for review, consider the merits and
impose an appropriate sanction, if
necessary; and uphold or dismiss
the application
’. The decision of the NDCA is final.
[36]
The Applicant’s contention that he could not exhaust his
internal remedies as long as the documents are not provided
to him
is
contrived. The Applicant indeed instituted internal review
proceedings as envisage by the ANC’s constitution on 1
December
2016. There is nothing before me to suggest that the NDCA will not
give the Applicant a fair hearing whether on review
or appeal as
provided for in its constitution. Moreover, the Applicant failed to
advance any cogent evidence that his internal
remedies would be
ineffective, futile and or stifled.
[37]
Although Courts are duty bound in terms of the Constitution to uphold
the Rule of Law and to provide aggrieved litigants access
to justice,
this is clearly not a matter that falls within those categories where
judicial interference is warranted in the domestic
affairs of a
voluntary association. In my view, to not allow the NDCA the
opportunity to exhaust its own existing mechanisms would
be to
undermine the very essence of the ANC’s constitution and the
autonomy of its internal processes. Although the relief
sought in
Part B stands over for later determination, due deference to the NDCA
in that matter may equally be applicable.
[38]
For these reasons, the relief sought by the Applicant in Part A
cannot be sustained.
[39]
It follows that the Application must be dismissed.
[40]
In the result, the following order is made:
The Application is
dismissed with costs.
________________
LE
GRANGE, J