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[2012] ZAGPJHC 167
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Congress of the People and Another v Shilowa and Others (6779/2011) [2012] ZAGPJHC 167 (22 August 2012)

REPORTABLE
IN
THE SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
CASE
NO : 6779/2011
DATE:22/08/2012
In
the matter between:
CONGRESS
OF THE
PEOPLE
............................................................................
First
Plaintiff
MOSIUOA
LEKOTA
…...........................................................................................
Second
Plaintiff
and
MBHAZIMA
SHILOWA
.............................................................................................
First
Defendant
CONGRESS
OF THE
PEOPLE
.............................................................................
Second
Defendant
MBULELO
NCEDANA
............................................................................................
Third
Defendant
MBULELO
BARA
......................................................................................................
Fourth
Defendant
ARCHIBALD
RALO
….............................................................................................
Fifth
Defendant
NIKIWE
NUM
….........................................................................................................
Sixth
Defendant
AMOS
LUNGEPHI
LENGISI
....................................................................................
Seventh
Defendant
ZAYTOON
KAFAAR
…..............................................................................................
Eighth
Defendant
MLULEKI
GEORGE
…..............................................................................................
Ninth
Defendant
ZALE
MADONZELA
................................................................................................
Tenth
Defendant
MOGAMAT
MAJIET
…............................................................................................
Eleventh
Defendant
SIPHO
NGWEMA
....................................................................................................
Twelfth
Defendant
JUDGMENT
BAVAAJ:
[1]
The First to the Twelfth Defendants are the Applicants in an
application for leave to amend the Defendants' claim in reconvention

in terms of Rule 28(4) of the Uniform Rules of Court. In argument I
was advised that the Sixth and Ninth Defendants were not being

represented in the matter and there was some debate as to whether
certain other Defendants may have withdrawn from the matter.
However,
I was not asked to decide which parties were properly before the
Court and in the absence of any formal notices of withdrawal,
I
proceed on the basis that the First to the Twelfth Defendants
(barring the Sixth and the Ninth Defendants) are the Applicants
in
the application for leave to amend the claim in reconvention.
[2]
While the said Defendants are the Applicants in the application and
the First and the Second Plaintiffs are the Respondents
in the
application, I will refer to the First to the Twelfth Defendants
(excluding the Sixth and the Ninth Defendants) as "the

Defendants". The First and the Second Plaintiffs will be
referred to as "the Plaintiffs".
BRIEF
HISTORY OF THE PLEADINGS
[3]
On the 11
th
of February 2011, this Court granted an
interim interdict in favour of the First Plaintiff in terms of which
the First Defendant
was interdicted on an interim basis, pending the
final end and determination of an action to be instituted by the
First Plaintiff
against the First Respondent.
[4]
On the 16
th
of February 2011, the Plaintiffs issued
summons in the above Honourable Court in terms of which the
Plaintiffs sought, inter alia,
the following declarations:
[4.1]
That the First Plaintiff lawfully expelled the First Defendant as a
member of the First Plaintiff with effect from 8
th
February 2011;
[4.2]
That with effect from 8
th
February 2011 the First
Defendant lost his seat as a member of the National Assembly
nominated by the First Plaintiff;
[4.3]
That the Second Plaintiff is the president of the First Plaintiff.
[5]
The Plaintiffs sought ancillary relief and it is not necessary for
the purposes of this judgment to set out all the relief sought
by the
Plaintiffs.
[6]
On the 22
nd
of March 2011, the First Defendant filed its
plea to the Plaintiffs' Particulars of Claim without filing a claim
in reconvention.
On the 20
th
of April 2011, the Third to
the Twelfth Defendants filed an application for leave to intervene in
the proceedings, which application
was granted by this Court on the
22
nd
of November 2011.
[7]
Pursuant to the joinder of the Third to the Twelfth Defendants, the
Defendants filed a plea and a claim in reconvention on the
26
th
of January 2012. The Plaintiffs pleaded to the Defendants' claim in
reconvention on the 23
rd
of February 2012. In the claim in
reconvention, the Defendants sought declarations, inter alia, that:
[7.1]
Article 2.9 of COPE's Constitution, as adopted on 16 December 2008 in
Bloemfontein ended on 16 December 2010;
[7.2]
That the Plaintiffs are not members of the Congress National
Committee ("CNC") of COPE;
[7.3]
That the 2008 Constitution was validly amended by the National
Congress on 30 May 2010 to provide for a National Congress
quorum of
50% plus one instead of two-thirds of the membership of the Congress;
[7.4]
That the National Congress which convened at Heartfelt, Pretoria,
from 15 to 17 December 2010 was duly constituted and that
the
decisions taken there on 17 December 2010 are valid and binding;
[7.5]
That the First Defendant is COPE'S lawful president and its
parliamentary leader;
[7.6]
That the Second Plaintiff has ceased to be COPE's president with
effect from 16 December 2010.
[8]
The Plaintiffs amended their plea to the Defendants' claim in
reconvention on the 4
th
of June 2012 and on the 12
th
of June 2012, the Defendants served a notice of amendment in terms of
Rule 28(1). On the 22
nd
of June 2012, the Plaintiffs
served a notice of objection to the proposed amendment in terms of
Rule 28(3). On the 6
th
of July 2012, the Defendants served
an application to amend in terms of Rule 28(4) and (6) - (8).
[9]
The Defendants seek to amend their claim in reconvention by
introducing a paragraph 51A as an alternative to the paragraphs
50.1
to 50.8 and 51.1 to 51.9 and to paragraphs 68 and 71.1 to 71.3 of the
claim in reconvention where the essence of the amendment
seeks to
direct that the parties convene an elective National Congress under
the auspices of an independent and overseeing body,
within a period
of 3 (three) months of the date of an order being granted. The
purpose of electing a leadership in this way is
to allow such
leadership to take over from the interim leadership appointed in
December 2008. The convening of such elective National
Congress under
the auspices of an independent overseeing body is to be done subject
to certain provisos.
[10]
In order to realise the amendment to the body of the Particulars of
Claim in reconvention, a new prayer is sought to be introduced
as
prayer 12A seeking the relief caused by the introduction of paragraph
51A to the claim in reconvention.
THE
SUBMISSIONS
[11]
Defendants contend that they are requesting the Court, in terms of
the proposed amendment, to assist COPE, which is a voluntary

association, in overcoming the impasse that has burdened it over the
past years. They indicate that the arrangement which they
suggest in
the amendment of convening an Elective National Congress under the
auspices of an independent overseeing body will be
the subject of
discussion and agreement between the parties and should the parties
fail to reach consensus then the Court should
issue a direction in
that regard.
[12]
The Defendants indicate further that the Elective National Congress,
under the auspices of an independent overseeing body,
insofar as the
detail of convening the Congress and the manner in which the results
of the congress will be dealt with needs to
be agreed between the
parties failing which the Court is also to issue a direction. The
Defendants stress that the prime importance
in the matter is securing
the services of an independent and credible overseer trusted by both
parties. They argue that the Constitution
of COPE, as a voluntary
association, is a contract between its members and that it is trite
law that the Constitutions of voluntary
associations will be
interpreted benevolently and not narrowly or restrictively. The
Defendants, therefore, ask for a robust approach
to be adopted
insofar as the Constitution is concerned and they intimate that a
court will instinctively and rightly shy away from
telling COPE who
its leaders are. They argue further that since the leaders of COPE
are clearly unable to resolve the issues themselves
that the Court
will want to be informed of the views of the majority of COPE's
members and that these views can only be established
at a National
Congress through the ballot box.
[13]
In addition to this and on the day of hearing, I was furnished with
Defendants' notes on argument and in these notes on argument
the
Defendants submit the following:
[13.1]
That the crux of the matter to be determined is : who the validly
elected leadership of COPE is;
[13.2]
That in terms of Section 169 of the Constitution, the High Court may
decide any constitutional matter with the exception
of those reserved
for the Constitutional Court or assigned by an Act of Parliament to
another Court of similar jurisdiction and
any other matter not
assigned to another Court by an Act of Parliament;
[13.3]
That in terms of Section 173 of the Constitution, the High Court has
an inherent power to protect and regulate its own process
and to
develop the common law taking into account the interests of justice;
[13.4]
That the modification or creation of relief to meet a remediless
right has been considered by the Courts under two separate
and
distinct heads, namely:
[13.4.1
] first, by virtue of the maxim
ubi ius ibi remedium
; and
[13.4.2] under its inherent jurisdiction.
[14]
In dealing with all of these issues, the Defendants contend that the
issue that they have raised in their pleadings constitutes
a triable
issue and that it should be left for the trial Court to determine. In
this regard, the Defendants argue, this Court should
not curtail the
Defendants' rights to proceed to have this remediless right tested at
the trial Court and it is for that Court
to determine the outcome of
the amended counterclaim.
[15]
The Plaintiffs, on the other hand, submit that the objection to the
amendment is premised on the fact that the amendments do
not sustain
a cause of action. Furthermore, the Plaintiffs submit, in the
alternative, that if the amendments sought by the Defendants
are to
be allowed, they will render the pleadings vague and embarrassing.
The Plaintiffs indicate that on the case authorities
an amendment
should not be allowed if it renders the pleading excipiable.
[16]
The Plaintiffs further submit that the central aspect to the action
instituted by the Plaintiffs is the Inaugural Constitution
of COPE
(2008) and that the allegations of the Defendants pertaining to the
Constitution's amendments at St George's are denied
by the
Plaintiffs.
[17]
Furthermore, the Plaintiffs submit that by becoming a member of COPE,
the Constitution of COPE forms the basis of the contractual

relationship between the members and COPE, as a voluntary
association.
[18]
The Plaintiffs state that the Defendants' case is that the
Constitution was amended at St George's to reduce the quorum from
the
requirement of two-thirds to a simple majority of 50% plus one. The
Defendants allege that as a result of this amendment the
meeting
convened at Heartfelt was quorate where the Defendants allege that
the leadership of COPE was properly elected. Plaintiffs
deny such an
amendment to the Constitution and they deny that the meeting at
Heartfelt was quorate.
[19]
The Plaintiffs then referred to the provisions of the Constitution of
COPE and in argument indicated that the Defendants have
not
established a right where they seek to convene an Elective National
Congress under the auspices of an independent overseeing
body.
Plaintiffs indicate that nowhere is this to be found in the
Constitution and that the Defendants have not established such
a
right. Plaintiffs argue that the Court should accept that no right
has been established by the Defendants and accordingly the
remedy
sought by the introduction of the amendment (51 A) and the prayer
(12A), should not be allowed.
[20]
Plaintiffs then also filed their response to the Defendants' notes on
argument. These notes on argument were served on the
Plaintiffs on
the afternoon of Monday 6
th
August 2012, the afternoon
before the matter was heard. Plaintiffs submit that:
[20.1]
the reference to the maxim
ubi ius ibi remedium
by the
Defendants does not assist them in seeking the amendment;
[20.2]
the reference to Section 172(1)(b) of the Constitution and the
reference to the inherent power of the High Court does not
advance
the Defendants' case at all in the application.
[21]
The Plaintiffs further submit and emphasise that the matter is not a
Constitutional matter and that matters that are purely
questions of
fact are not Constitutional matters. The Plaintiffs also submit that
the fact that this involves a political party
does not make it a
Constitutional matter.
[22]
The Plaintiffs summarise that the central issues to the dispute
between the parties are:
[22.1]
either the Constitution was amended at St Georges or it was not;
[22.2] either Heartfelt constituted a National Congress
or it was
not; [22.3] either Heartfelt was quorate or it was not.
[23]
The Plaintiffs submit that the Defendants are not remediless and in
fact there is a remedy available which remedy is to have
their
dispute determined by the Court. They indicate that the Court will
determine whether it is the Plaintiffs who constitute
the leadership
or the Defendants. The Plaintiffs also submit that the Court will
determine whether the expulsions from the party
of the Defendants was
valid and once the leadership issue is determined by the Court the
disputes between the parties will be resolved.
The Defendants, so the
Plaintiffs argue, seek to introduce a cause of action which does not
exist and which will amount to an exercise
in futility. Furthermore,
the Plaintiffs submit that a Court should be reluctant to interfere
in what are essentially political
questions.
[24]
Insofar as the development of the common law is concerned, the
Plaintiffs indicate that Section 39 of the Constitution has
no
application to this matter and that this matter is not a novel matter
which requires the development of the common law.
[25]
Furthermore, the Plaintiffs also referred to the fact that the
Defendants applied to the Constitutional Court for direct access

under case number CCT17/2012 in March 2012 where the relief sought of
the Constitutional Court by the Defendants is identical to
the
amendment that the Defendants seek to introduce in terms of paragraph
51A. The Plaintiffs opposed the application for direct
access and the
Constitutional Court refused the Defendants' application for direct
access with costs.
GRANTI
N
G
OR REFUSING AN AMENDMENT
[26]
It is trite that where a Court is to decide whether to grant or
refuse an application for an amendment, the Court exercises
a
discretion. This discretion, needless to say, has to be exercised
judicially. In
Commercial Union Assurance Co Ltd v Waymark NO
1995 (2) SA 73
(TkGD) the Court set out the principles governing
applications for amendment of pleadings and indicated that:
[26.1]
the Court has a discretion whether to grant or refuse an amendment;
[26.2]
an amendment cannot be granted for the mere asking. Some explanation
must be offered therefor;
[26.3]
the Applicant must show that prima facie the amendment "has
something deserving of consideration, a triable issue";
[26.4]
the modern tendency lies in favour of an amendment if such
"facilitates the proper ventilation of the dispute between
the
parties";
[26.5]
the party seeking the amendment must not be mala fide;
[26.6]
the amendment must not "cause an injustice to the other side
which cannot be compensated by costs";
[26.7]
the amendment should not be refused simply to punish the Applicant
for neglect;
[26.8]
a mere loss (the opportunity of gaining) time is no reason, in
itself, for refusing the application;
[26.9]
if the amendment is not sought timeously, some reason must be given
for the delay.
[27]
In Trans-Drakensberg Bank Ltd (under judicial management) v Combined
Engineering (Pty) Ltd and Another
1967 (3) SA 632
(D), Caney J, at
641A, states:
"Having
already made his case in his pleading, if he wishes to change or add
to this, he must explain the reason and show prima
facie that he has
something deserving of consideration, a triable issue; he cannot be
allowed to harass his opponent by an amendment
which has no
foundation. He cannot place on the record an issue for which he has
no supporting evidence, where evidence is required,
or, save perhaps
in exceptional circumstances, introduce an amendment which would make
the pleading excipiable."
[28]
See also Caxton Ltd and Others v Reeva Forman (Pty) Ltd and Another
[1990] ZASCA 47
;
1990 (3) SA 547
(A) at page 565 where Corbett CJ (as he then was)
quoted Caney J with approval.
[29]
In this particular matter it is common cause that the Constitution of
COPE is a contractual relationship between its members
and COPE. In
Turner v Jockey Club of South Africa
1974 (3) SA 633
(A) at 645 B,
Botha J A stated:
"It
is common cause that the relationship between a jockey licensed under
the Respondent's rules - such as the Appellant -
and the Respondent,
is contractual, and that that relationship is governed by the
Respondent's rules and regulations, which constitute
the terms of the
contract between the parties, and the applicable principles of common
law. (Jockey Club of S.A. v Transvaal Racing
Club,
1959 (1) SA 441
(AD) at p. 450)."
[30]
Then in Matlholwa v Mahuma and Others
[2009] 3 All SA 238
(SCA) at
page 240 [8], Van Heerden AJ stated:
"As
was correctly emphasised by the court below, a political party is a
voluntary association founded on the basis of mutual
agreement. 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. In construing the
provisions of the Party's constitution
for the purposes of this
appeal, it is important to bear in mind that expulsion is the most
drastic form of punishment which a
voluntary association can impose
on its members and the power to do so must consequently appear
expressly or by necessary implication
from the provisions of its
Constitution."
[31]
See also Yiba and Others v African Gospel Church
1999 (2) SA 949
(C)
at 960 D - 961 B.
[32]
In Mcoyi and Others v Inkatha Freedom Party, Magwaza-Msidi v Inkatha
Freedom Party
2011 (4) SA 298
(KZP), Patel DJP at 309 B [30] stated :
"A
political party is a voluntary association, and a voluntary
association is founded on the basis of mutual agreement, which

entails an intention to associate, and consensus on the essential
characteristics and objectives of the association..."
[33]
In considering the current amendment, I am guided by the principles
dealing with amendments as set out in Commercial Union
Assurance Co
Ltd v Waymark NO supra and the cases referred to in that judgment. In
this particular matter, the Defendants have
correctly described what
the crux of the issue is between the parties, namely, the trial Court
will have to determine who the validly
elected leadership of COPE is.
This, to my mind, suggests, very clearly, that the ambit of the
dispute falls within the confines
of the Constitution of COPE.
[34]
In having regard to the nature of the dispute and the fact that the
parties are ad idem that the relationship is a contractual

relationship between COPE and its members and that this contractual
relationship is governed by the terms of the Constitution.
I am not
persuaded that the amendment relates to either a Constitutional
matter or that it requires the development of the common
law where
such relationship is governed by contractual terms. If I am to grant
such an amendment, it will lead to the absurd situation
where parties
conclude an agreement, for example, and where they exclude an
arbitration clause, that a party disgruntled with the
terms of the
agreement would seek a Court to direct that the parties subject
themselves to an independent arbitrator. This is the
absurdity in
granting the amendment to the Defendants in the current matter.
[35]
In Benjamin v Sobac South African Building and Construction (Pty) Ltd
1989 (4) SA 940
(CPD) at 958 A-D, Selikowitz J stated:
"Where
a proposed amendment will not contribute to the real issues between
the parties being settled by the court, it is, I
think, clear that an
amendment ought not to be granted. To grant such an amendment will
simply prolong and complicate the proceedings
for all concerned and
must, in particular, cause prejudice to the opposing party who will
have to devote his energy and expend
both time and money in dealing
with an issue, the resolution of which may satisfy the needs (or
curiosity) of the party promoting
it but which will not contribute
towards the adjudication of the genuine dispute between the parties."
[36]
In the case of Cross v Ferreira
1950 (3) SA 443
(C), Van Winsen AJ
held that where the proposed amendment of a declaration would render
it excipiable, it is a good ground for
refusing the amendment.
[37]
I have given the matter considerable consideration in view of the
fact that it is an important matter and that it affects the
political
landscape of our country. In considering the amendment proposed by
the Defendants it is apparent that the Defendants
seek a solution to
the impasse reached between the parties. However good the intention
or however reasonable the suggestion may
be, it is not a suggestion
that finds its home in the context and within the ambit of the terms
that govern the relationship between
the parties. The terms that
govern the relationship between the parties is, as agreed to by both
parties, the terms contained in
the Constitution of COPE. In Van
Diggelen v De Bruin and Another
1954 (1) SA 188
(SWA) at page 193,
paragraph (5), Claassen J stated the following:
"The
Court's paramount concern is always, within the frame-work of the
law, to do justice between man and man. It will be guided
by the
terms and circumstances of the contract under consideration."
[38]
It is trite that the Court should not make an agreement for the
parties but may enforce the agreement between parties. See

Koumantarakis Group CC v Mystic River Investment 45 (Pty) Ltd and
Another
2007 (6) SA 404
(D) at page 414, paragraph [49].
[39]
If I am to allow suggestions of alternate dispute resolution
mechanisms not agreed to between the parties, this would allow

parties to seek to introduce external resolution mechanism into
contracts where such resolutive terms are not incorporated in an

agreement. I repeat the cautionary note expressed by Patel DJP in
Mcoyi and Others v Inkatha Freedom Party Magwaza-Msidi v Inkatha

Freedom Party supra where he stated at page 306, paragraph [23] of
the judgment that a court should be reluctant to interfere in
what
are essentially political questions.
[40]
I am of the view, therefore, that the amendment that the Defendants
seek to introduce in terms of paragraph 51A and the concomitant

relief sought in the intended prayer in terms of prayer 12A are
excipiable. I do not hold the view that they are remediless rights

that the Defendants seek to introduce but rather that the
introduction of these paragraphs are not rights in law. The result
being
that where there is no right there cannot be a remedy and
furthermore that where there is no right, the Defendants cannot
introduce
a supposed or hypothetical claim which would satisfy the
Defendants but which finds no basis in law.
ORDER
[41]
Accordingly, I make the following order:
1.
The application for leave to amend the Defendants' claim in
reconvention is dismissed with costs and such costs to include the

costs of two Counsel.
Counsel
for the Applicants (Defendants): Advocate J C Heunis SC
Advocate
S van Zyl
Counsel
for the Respondents (Plaintiffs): Advocate Hilton Epstein SC
Advocate
P A Venter Advocate Ayayee
Attorneys
for the Applicants: Marais, Muller, Yekiso Incorporated
Attorneys
for the Respondents: Wertheim Becker Incorporated
Date
of hearing: 7
th
August 2012
Date
of judgment: 22 August 2012
Bava
AJ _