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[2014] ZAGPJHC 302
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Letlapa and Another v Moloto and Others (25045/2013) [2014] ZAGPJHC 302 (28 August 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 25045/2013
DATE:
28 AUGUST 2014
In the matter
between:
MPHAHLELE
LETLAPA
.......................................................
First
Applicant
PAN AFRICANIST
CONGRESS OF
AZANIA
..................................................
Second
Applicant
And
MOLOTO,
NARIUS
..........................................................
First
Respondent
DHLAMINI
PHILLIP
...................................................
Second
Respondent
PAN AFRICANIST
CONGRESS OF AZANIA
.................
Third
Respondent
SEROPANE, SENYANE
ALTON MPHETI
.....................
Fourth
Respondent
JUDGMENT
VICTOR J:
[1] This is an
urgent application. It is one of many litigation driven attempts to
resolve the intense internal conflict within
the Pan Africanist
Congress of Azania (PAC). The central issue is whether leave to
execute a judgment pending an appeal should
be granted if the appeal
is a mere 40 days away.
[2] The applicant
seeks an order in terms of Rule 49(11) for leave to execute its
judgment granted by Kgomo J where the expulsion
of the first
applicant as president was set aside. This application for leave to
execute was launched on 12 July 2014. Just prior
to this the first
and second respondents brought an application for leave to appeal and
the third and fourth respondents launched
an application for leave to
intervene. On 31 October 2013 Kgomo J granted leave to the third and
fourth respondents to intervene
in the leave to appeal application
and granted them all leave to appeal. He postponed the Rule 49 (11)
application. His order
also provided that in the event that the
appeal is not expedited or if there was any form of procrastination
the parties could
apply on the same papers duly supplemented to move
the Rule 49(11) application.
[3] The first
applicant has now set the application down because he says “there
is trouble in paradise”. The appeal
process is taking time and
the first applicant wishes to take up the leadership mantle in order
to bring peace to the organisation.
The first applicant justifies the
urgency based on various internal events within the PAC. The first
ground is that the first respondent
has instituted a campaign to
purge all officials of the PAC who are in support of the first
applicant. There has been successful
resistance to this but it has
cost the PAC a lot of money, presumably in respect of the various
court cases. The applicant contends
that the first respondent is
abusing his powers as set out in clause 14 of the Disciplinary code
in that he is ruling by decree.
Clause 14.2 is as follows:
‘The president
shall have emergency powers, which he may delegate, to suspend the
entire constitution of the PAC so as to
ensure that the movement by
decree, and is answerable for these actions to the National
Conference or the National Congress.’
Presumably the word
“ensure” in this clause means that the president can
administer the entire PAC but is accountable.
The second respondent
explained that the emergency power was only to be utilised during the
apartheid era when key members were
incarcerated. In the absence of
consensus as to who the president is and the continuous attacks of
the National conferences as
being quorate, rule by decree is a power
which should not be used.
[4] The first
applicant contends that the purge campaign has not ceased. The
campaign is not authorised by the National Executive
Counsel. The
fourth respondent has now invoked article 14 of the Disciplinary Code
whereby the president must administer the party.
The first respondent
is the existing president but this creates further problems as there
is rift between first and fourth respondent.
[5] The applicant
asserts that the PAC is therefore no longer able to function and
hence the need to empower the first applicant
to stop the fourth
respondent from using his position as secretary general to drive his
agenda of purging anyone who is not perceived
to be with him.
[6] A further reason
for urgency is that the National Executive Counsel has not called a
quorate meeting. The first respondent appears
to have a
disproportionate influence over many members. They have acquiesced in
his continued destructive activities to the extent
that now the PAC
is being ruled by way of emergency powers.
[7] The first
applicant tells the court that he and the fourth respondent have
undertaken to re-unite the PAC and make a fresh start.
The fourth
respondent is not able to succeed in doing this in a democratic way
and now rules by decree. The first applicant wishes
to play a
meaningful role and to stop the divisiveness to which the first
respondent is contributing.
[8] In a very
concise and detailed submission, Mr Phillip Dhlamini, the second
respondent, who appears in person, points out that
there has been a
further annual congress. More than 500 people attended that congress
and there was no reason why the first applicant
could not have
attended that congress. He asserts that in a democratic manner the
organization could have returned to peace and
quiet without people
taking points and furthering the litigation which is fuelling
divisiveness.
[9] In my view Mr
Dhlamini’s submissions were very helpful and the central
question raised by him is the adverse consequence
there would be if
the court imposed the first applicant on the PAC at this stage when
an appeal is only some 40 days away. He suggested
that it would
really cause the organization to disintegrate into chaos. I accept
his submission that the role of the court should
be minimised in this
internal dispute.
[10] A number of
points have been taken in limine. The first point is that there was
an objection in terms of Rule 7.1 to the authority
of the attorneys
Van der Merwe and Associates to act on behalf of the PAC. In my view
this is something which does not affect this
particular application
as it is an application for leave to execute and this point was
properly dealt with before Kgomo J. He found
that the attorneys had
authority to act. Therefore at this stage I do not non-suit the
first and second respondents based on the
fact that the authority of
their attorney has been challenged.
[11] The second
respondent acts in his own personal capacity. He is a member of the
PAC and there is no reason why he, in his
personal capacity, cannot
oppose the application. In so far as the first respondent is
concerned this again emanates from the
matter that was before Kgomo J
and the first respondent is entitled to place his opposition before
the court. I do not find that
he acts on behalf of the PAC. On a
conspectus of all the issues raised in these papers in my view he
really acts in his personal
capacity.
[12] Although the
first and second respondents have been cited in their official
capacities as officers of the PAC, on a proper
reading of the
affidavits it is clear to me from the papers opposing the leave to
execute that they are really doing so in their
own capacities.
[13] The fourth
respondent in a letter dated 4 August 2014 states that there is no
decision that the PAC public representatives
must be replaced and
there is no formal resolution by the PAC for the first respondent to
act in the way that he has. There are
a myriad of disputes of fact
in this matter. Hopefully the appeal will resolve many of these
outstanding issues. Once the status
of the first applicant is
determined in that appeal it will then become clear as to how the
governance of the PAC must continue.
[14] Mr Dhlamini
advised the court that there was a National Congress and it seems to
me the submission made by Mr Dhlamini is proper;
namely, that this
organisation must be organised in a democratic way and that the court
should be reluctant to impose the first
applicant as its president at
this stage. The first applicant has approached the court at a very
late stage and it would be counter-productive
for the court to
interfere at this stage and impose the first applicant on the
organisation.
Superior Courts Act
10 of 2013
[15] The submission
was made on behalf of the first respondent that in terms of
s18
of
the new
Superior Courts Act 10 of 2013
a new test or threshold is
introduced.
Section 18
(1), (2) and (3) which came into force on 23
August 2013 provides that it is only in exceptional circumstances
that a court should
grant an application for leave to execute.
Section 18
states:
'Suspension of
decision pending appeal
(1) Subject to
subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and
execution of a
decision which is the subject of an application for leave to appeal
or of an appeal, is suspended pending the decision
of the application
or appeal.
(2) Subject to
subsection (3), unless the court under exceptional circumstances
orders otherwise, the operation and execution of
a decision that is
an interlocutory order not having the effect of a final judgment,
which is the subject of an application for
leave to appeal or of an
appeal, is not suspended pending the decision of the application or
appeal.
(3) A court may only
order otherwise as contemplated in subsection (1) or (2), if the
party who applied to the court to order
otherwise, in addition proves
on a balance of probabilities that he or she will suffer irreparable
harm if the court does not so
order and that the other party will not
suffer irreparable harm if the court so orders.
(4) If a court
orders otherwise, as contemplated in subsection (1) —
(i) the court must
immediately record its reasons for doing so;
(ii) the aggrieved
party has an automatic right of appeal to the next highest court;
(iii) the court
hearing such an appeal must deal with it as a matter of extreme
urgency; and
(iv) such order will
be automatically suspended, pending the outcome of such appeal.
(5) For the purposes
of subsections (1) and (2), a decision becomes the subject of an
application for leave to appeal or of an appeal,
as soon as an
application for leave to appeal or a notice of appeal is lodged with
the registrar in terms of the rules.'
[16] The wording of
the section is rather curious. In my view, although the statute
introduces the words “exceptional circumstances”
the
proper interpretation of that particular threshold must really be
read within its context. A proper statutory reading of the
words
“exceptional circumstances” does not really take away the
historical manner in which an application for leave
to appeal must be
determined.
[17]
Section 18
appears to be enacting the existing carefully crafted jurisprudence
which has been the classical test as set out in South Cape
Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd
1977 (3) SA 534
(AD) at 545C-G,
‘it is today
the accepted common law rule of practice in our Courts that generally
the execution of a judgment is automatically
suspended upon the
noting of an appeal, with the result that, pending the appeal, the
judgment cannot be carried out and no effect
can be given thereto,
except with the leave of the Court which granted the judgment. To
obtain such leave the party in whose favour
the judgment was given
must make special application. …The purpose of this rule as
to the suspension of a judgment on
the noting of an appeal is to
prevent irreparable damage from being done to the intending
appellant, either by levy under a writ
of execution or by execution
of the judgment in any other manner appropriate to the nature of the
judgment appealed from . The
Court to which application for leave to
execute is made has a wide general discretion to grant or refuse
leave and, if leave be
granted, to determine the conditions upon
which the right to execute shall be exercised …This discretion
is part and parcel
of th
e inherent
jurisdiction which the Court has to control its own judgments .. In
exercising this discretion the Court should, in my
view, determine
what is just and equitable in all the circumstances, and, in doing
so, would normally have regard, inter alia,
to the following factors:
(1) the potentiality
of irreparable harm or prejudice being sustained by the appellant on
appeal (respondent in the application)
if leave to execute were to be
granted;
(2) the potentiality
of irreparable harm or prejudice being sustained by the respondent on
appeal (applicant in the application)
if leave to execute were to be
refused;
(3) the prospects of
success on appeal, including more particularly the question as to
whether the appeal is frivolous or vexatious
or has been noted not
with the bona fide intention of seeking to reverse the judgment but
for some indirect purpose, e.g., to gain
time or harass the other
party; and
(4) where there is
the potentiality of irreparable harm or prejudice to both appellant
and respondent, the balance of hardship or
convenience, as the case
may be. ‘
[18] In the Law
Society of the Northern Provinces v Mahon
2011 (2) SA 441(SCA)
the
Supreme Court of Appeal referred to how a statute must be
interpreted. See also in Kubyana v Standard Bank of South Africa
2014 (3) SA 56
(CC) at para 77 where Jafta J stated:
‘It is a
fundamental principle of interpretation that words used in a statute
or written document must be construed in their
proper context. In
Bato Star this court held that “the technique of paying
attention to context in statutory construction
is now required by the
Constitution”. The court said: “'It is no doubt true
that it is a primary rule of statutory
construction that words in a
statute must be given their ordinary grammatical meaning. But it is
also a well-known rule of construction
that words in a statute should
be construed in the light of their context”’
[19] It is no doubt
true that it is the primary rule of statutory construction that words
in a statute must be given their ordinary
grammatical meaning. It is
a well-known rule of construction that words in a statute be
construed in the light of their context.
[20] Rule 49(11) is
still in place and the jurisprudence has evolved, more particularly
in the various cases referred to namely
the South Cape judgment
supra. In this case if the court were to impose the first applicant
on the PAC for a period of 40 days,
the consequent chaos will be, in
my view, irreparable. There is sufficient division in the
organization as it is. The first applicant
has a noble motive to try
and bring about peace and in so doing he has thought out a plan,
namely to put the past behind and for
the organization to go forward.
[21] In my view,
this is laudable but this can be done after 40 days when the members
of the PAC will know the outcome of the appeal.
In this case the
status ante quo in my view would cause more havoc than have a
constructive effect. Obviously the features that
I have referred to
are not exhaustive and despite the wording of
s18
of the
Superior
Courts Act I
find that this court retains a discretion and the
threshold, in my view, is no higher than the traditional threshold.
Costs
[19] There is the
question of costs. The first applicant, in my view, has brought the
application on a bona fide basis. He has not
sought to embellish his
position. It is correct that counsel, Advocate Pilani on behalf of
the applicants, did make submissions
on the personal circumstances of
the first applicant. In my view, the import of this application is
really a wish by the first
applicant that peace be brought to the
organization and the rule by decree and the purging of members of the
PAC by the first respondent
be brought to an end. In other words,
the first applicant is trying to promote the adherence by the members
to the Constitution.
[20] The application
fails but I am not going to order that the first applicant must pay
the costs for the reason that I have already
referred to. Any cost
orders at this stage will simply create further acrimony. The order I
grant is the following:
1. The application
is dismissed.
2. There shall be no
order of costs.
VICTOR J
COUNSEL FOR FIRST
APPLICANT: ADV S PILANI
ATTORNEY FOR
FIRST APPLICANT: NGENO & MTETO INCORPORATED
COUNSEL FOR FIRST
AND THIRD RESPONDENTS: ADV APJ ELS
ATTORNEY FOR
RESPONDENTS: VAN DER MERWE AND ASSOCIATES
COUNSEL FOR
SECOND RESPONDENT: APPEARS HIMSELF
DATE OF HEARING :
26 AUGUST 2014
DATE OF JUDGEMENT
: 28 AUGUST 2014