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[2015] ZAGPJHC 24
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Agang-South Africa and Another v Mayoli and Others (2015/2772) [2015] ZAGPJHC 24 (9 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2015/2772
DATE:
09 FEBRUARY 2015
In
the matter between:
AGANG-SOUTH
AFRICA and
Another
..........................................................
1st
and 2nd Applicants
And
MAYOLI,
MONGEZI and
Others
...................................................................
1st
to 12th Respondents
JUDGMENT
SPILG,
J:
9
February 2015
THE
APPLICATION
1.
The application concerns the on-going
dispute over the leadership of Agang-South Africa (‘Agang-SA’),
a political party
that has two members in Parliament, Mr Andries
Tlouamma who is the second applicant and Mr Michael Tshishonga who is
the second
respondent.
The
leadership tussle is between the two men and their respective
supporters.
2.
While the party has a clear interest,
little turns on it being cited as the first applicant and not as a
respondent.
3.
The second applicant is the incumbent
chairperson of Agang-SA pursuant to a meeting convened by those
persons who were declared
to be members of the party’s National
Executive Council (‘
NEC’)
in terms of a court order issued by Potgieter AJ out of the Western
Cape Division of the High Court sitting in Cape Town High Court
on 19
December 2014 under case 16127/2014.
4.
The application seeks to interdict a
meeting of the party, called a Special National Congress of the
party, from taking place on
31 January 2015.
5.
Interdictory relief is also sought to
prevent the individual respondents from holding out that they are
office bearers or entitled
to convene meetings or perform any other
power or function conferred on the NEC under article 6.1 of its
Constitution.
6.
In addition a number of declaratory orders
are sought.
One
is to declare that members of the NEC invited to a meeting that had
been convened on 22 December 2014 constitute for the time
being the
party’s NEC pursuant to Potgieter AJ’s order of 19
December).
The
balance is to declare two purported provincial general meetings held
in Gauteng and the Free State to be unlawfully convened
and to have
any decisions taken at those meetings (which would include selecting
delegates to attend the Special National Congress)
reviewed and set
aside.
BACKGROUND
7.
Agang-SA secured two seats in Parliament
during the May 2014 general elections. Since then the party has
experienced internal divisions.
The first fracture occurred when
issues arose between Dr M Ramphele and her supporters on the one hand
and those who supported
the second applicant and the second
respondent on the other. This lead to a number of court applications
brought before this court
and Western Cape High Court.
8.
The significance of the order granted by
this court in June 2014 was that the meeting convened of the NEC
could go ahead. At the
meeting a new NEC was constituted and it
members identified the document which they recognised as being the
party’s governing
constitution.
9.
Davis J in the subsequent proceedings
before the Cape High Court in August 2014 held that;
a.
The valid and binding constitution of the
party was the one of 27 April 2013; and
b.
The lawful NEC is that constituted by the
body that convened on 29 June 2014 in Gauteng with the membership as
reflected in the
founding affidavit.
10.
These decisions were a victory for the
Tlouamma and Tshishonga group over Dr Ramphela’s supporters.
However by September 2014
divisions had surfaced within the former
group and spilled over into litigation.
11.
The first was an application in September
2014 to effectively remove Tshishonga as the party’s treasurer
by replacing him
with four other members as signatories the party’s
bank accounts. The applicants, who represented the Tlouamma group,
relied
on a decision purportedly taken by the NEC. The application
was brought urgently in the Cape High Court for interim relief
pending
the outcome of the main proceedings. An interim accord was
reached pending the outcome of those proceedings.
12.
In October another urgent application was
launched in order to interdict Tshishonga from holding himself out as
the party’s
president and restraining him from attending a
meeting scheduled by the State President two days hence. There were
also orders
sought to declare a number of purported NEC meetings to
be invalid. These proceedings were postponed to be heard with the
main
application mentioned in the previous paragraph.
13.
Prior to the main application being heard
the Tshishonga group brought a counter-application to have the court
declare who were
the members of the NEC. Other relief was also sought
regarding disciplinary proceedings that had been brought in the
meantime against
Tshishonga and other matters concerning the
appointment of party employees and payments made.
14.
The main application together with the
subsequent matters that had been conjoined to it were heard by
Potgieter AJ.
15.
In the subsequent judgment delivered on 19
December 2014 by Potgieter AJ, the learned judge noted that the rift
between the two
groups over the control of party finances started at
the 10 August 2014 NEC meeting and that this was the last NEC meeting
that
Tshishonga attended until Tshishonga then called an NEC meeting
on 27 September. Tlouamma called a rival NEC meeting scheduled for
the same day (see para 21 of the judgment).
16.
The further history of NEC meetings
revealed in the judgment of Potgieter AJ (in paras 22 to 27) is that
during the period from
August to September neither group attended the
NEC meetings convened by the other. A classic illustration is that on
27 September
2014 two meetings were held, one in Braamfontein by the
Tlouamma group and the other in Arcadia. Both purported to be duly
convened
meetings of the party’s NEC.
17.
This appears to have precipitated another
urgent application brought on 8 October 2014.
18.
. The main application was then heard and
oral evidence was led. The court then determined which members
constituted the NEC at
11 November 2011. Both Tlouamma and Tshishonga
were agreed as members. The court recognised 10 other persons as
members of the
NEC making a total of 12 members.
19.
The court considered that the best way to
resolve the signatory to bank accounts issue was to ‘
freeze’
the accounts until the new NEC as
determined by the judgment. Until then the court directed that no
payments may be made without
at least the co-signatures of Tshishonga
and Tlouamma.
The
court also considered that there should be no order as to costs.
CURRENT
ISSUES
20.
The orders made by Potgieter AJ did not end
the litigation.
21.
On 11 January 2015 an application was
brought before this court challenging the validity of the NEC meeting
held on 22 December
2014. Wright J had struck the matter off the roll
as not urgent.
22.
According to the Tlouamma group the NEC as
constituted in terms of Potgieter AJ’s orders properly met on
22 December 2014
in order to prepare a National Congress to be
convened in March 2015. According to the Tshishonga group they
deny that the
Congress is to be held in March. They aver that at the
meeting of 29 June 2014, which had been called by Tshishonga as
National
Chairperson, it was resolved that the Congress would be held
by the end of January 2015.
23.
In the present application the Tlouamma
group confirm that 7 of the 12 members attended the 22 December
meeting which meant that
the meeting was quorate. These are
exclusively members of the Tlouamma group. In short the Tshishonga
group were not in attendance.
They are in the minority of the NEC as
determined in the judgment of 19 December 2014.
24.
The Tshishonga group then convened a rival
meeting on 28 December at which one of the resolutions passed was to
disband the interim
NEC constituted by Potgieter AJ’s order,
appoint an ad hoc committee to oversee the day to day running of the
party and guide
the organisation to its National Congress. It was
also resolved to place Tlouamma under suspension.
25.
The Tlouamma group on becoming aware of
these resolutions responded by disputing the regularity of the
resolutions contending
that they were in defiance of the 19 December
court order and the resolutions passed on 22 December. There was also
a challenge
as to who attended.
26.
On 4 January the NEC purported to hold a
meeting at which it was resolved that a constitutional and elective
conference meeting
(clearly the National Congress) would be convened
on 28 March 2015 and that anyone who wished to attend was required to
renew his
or her membership by 28 February.
27.
On 20 January a Special National Congress
of Agang-SA was ostensibly called by the Tshishonga group for 31
January 2015. It was
purportedly called by the “
majority
of members
”.
A
short while later another invitation was issued by the Tshishonga
group convening a general meeting of the Gauteng province on
24
January in Midrand. The applicant contends that the purpose of the
meeting was to elect a provincial structure. As will appear
later
provincial delegates to the National Congress are appointed by the
provincial structures.
28.
The applicant contends that there is an
existing elected membership of the Gauteng Provincial Executive
Committee duly appointed
in 2014. Moreover the applicant contends
that it is first necessary to ensure that only party members in good
standing may be accredited
to participate. That validation is done by
the NEC which has not occurred. Moreover in terms of article 8.2.3
the Provincial Congress
which is the highest organ within each
province (and subject to decisions of the NEC) comprises at least the
provincial political
leadership, key provincial party leadership and
“
representatives from the
branches”
.
29.
The meeting did proceed and resolutions
were passed.
30.
The Tshishonga group also purportedly
convened a Free State Provincial General meeting on 24 January to the
same end. Again the
applicant contends that there was in place a duly
elected provincial executive committee which should have been
responsible for
convening such a meeting. It turns out that the
meeting which did go ahead resolved to elect a new interim structure.
THE
ISSUES
31.
The applicant contends that neither the
national Congress to take place on 31 January was duly convened in
terms of the party’s
constitution nor were any of the two
provincial general meetings that had taken place.
.
32.
The respondents submit that they are
entitled to place reliance on the 29 June 2014 resolution that a
national congress is to take
place at the end of January and the
failure of the Tlouamma group to take any steps to prepare for the
congress either nationally
or provincially (which it will be seen is
a necessary precursor) justifies their calling the meetings.
REGULARITY
OF CALLING THE 31 JANUARY NATIONAL CONGRESS
33.
In my view the convening of the national
congress for 31 January 2105 fails at every elementary level.
34.
The respondents conceded that there has
been no verification either at local branch, provincial or national
level of who are eligible
to participate. Although the constitution
was drawn up in great haste and is anything but a model of clarity,
it is evident from
a consideration of Article 11 (which is concerned
with, membership and dues) and Articles 8 and 12 that only paid up
members are
eligible to vote and to stand for office either at
provincial or national executive level.
35.
Moreover an agenda has been prepared at the
eleventh hour (on 26 January) which is inadequate to inform members
of the business
of the congress. The agenda indicates that their
approval is sought to increase the number of provincial delegates
attending and
that ominously ‘
a
“Founding Cabinet” will be put in place during the
congress’.
36.
There is no prior calling for nominations
or any indication of how the “
Founding
Cabinet”
is to be put in place.
At best they are to be elected at an annual general meeting of
members “
during the foundational
phase
” which lasts until June
2016 in terms of article 10.10 as read with article 12.1.
37.
In this regard it also appears that the
Tshishonga group have resurrected the “
Founding
Cabinet”
. The original
members of the “
Founding Cabinet”
in terms of articles 10.13 to
10.17 were Dr Ramphele, M Soko, Z Dawood and T Leshilo. The founding
cabinet was the highest
decision making body (article
10.1). It was obliged to operate by consensus (article 10.11). On
their departure from
the party no “
Founding
Cabinet “existed
. In my view it
appears implicit in the numerous court cases to determine the office
bearers of the party that it was common
cause that the founding
cabinet was defunct and that power now resided in what was identified
in the constitution a the second
highest decision making body ,
namely the NEC.
38.
It seems that no point would be have been
served in requiring Potgieter AJ to make the decisions he did if it
were otherwise. It
would have been an exercise in futility. The
respondents now seek to resurrect that body. Irrespective of whether
that is now competent,
it appears impossible to expect members to
distil the implications of the matters now placed on the agenda, to
canvass, to lobby
or to appoint speakers to address the topics, let
alone nominate candidates for a post that may have become abrogated
by the common
actions of the main protagonists since the effective
defeating of the Ramphele group pursuant to the order of 4 August
2014 by
Davis J.
39.
While
the party’s constitution is sparse and does not detail the
convening of meetings or nominations of members to the NEC
or the
Founding Cabinet the common law provides the necessary fillers. The
failure to establish a verified list of members negates
the purported
appointment by the two provincial meetings of delegates to
attend the congress and the failure to timeously
prepare an
agenda
[1]
(which should be clear
and unambiguous) or timeously call for nominations undermines the
fundamental requirements for a validly
constituted meeting of a
voluntary association. See generally
Ramakatsa
and others v Magashule and others
2013(2)BCLR 202 (CC) at paras 43, 63, 71, 73-74 and 90
[2]
,
on the infringement of the Constitutional right under section 19 to
participate in the activities of a political party by reason
of
irregularities amounting to violation of the party’s own
constitution. Compare Lewin ‘
The
Law, Procedure and Conduct of Meetings
(5
th
ed) at pp37-38 (on agendas) and p134 (on nominations) .
40.
On
these grounds the attempt by the respondents to convene the meeting
of 31 January 20165 for its avowed purpose is stillborn.
In addition
the meeting would have had to appoint a chairperson. Counsel was
driven to concede that no meeting would pass the stage
of determining
who would preside as chairperson. The determination of the
chairperson is an essential perquisite before a meeting
can proceed
in an orderly fashion
[3]
. The
history of some dozen court cases within a year demonstrates that no
genuine meeting to determine the will of the membership
will see the
light of day and the elective processes underpinning the appointment
of the leadership under the party’s constitution
is
fundamentally compromised. Another court application is inevitable.
Considering that the constitution required consensus by
the highest
organ, which the respondents now seek to resurrect, the internal
procedural objectives of the constitution for the
appointment of
properly representative leaders by the membership cannot be achieved
in the present climate. I will deal with the
consequences of this
more fully under the next heading.
41.
The provincial branch meetings that were
held also fail to meet the minimum requirements of a duly constituted
meeting of a voluntary
association in that there was no verified
membership list to ensure the regularity of the process. Moreover
inadequate notice was
given of the meeting and of the business to be
conducted. Its very purpose was undermined by the failure of proper
notice.
42.
So far I have dealt with the application on
the basis of compliance with the minimum norms for convening a valid
meeting of a voluntary
association of this nature.
43.
In considering the other orders sought it
is necessary to deal with another aspect which also renders invalid
and of no effect the
convening of the meeting for 31 January and the
provincial meetings that were held on 24 January or the resolutions
passed at the
latter. I deal with this in the following paragraphs.
Nonetheless the
ratio
is
equally applicable and determinative of the issues I have now dealt
with.
THE
OTHER RELIEF SOUGHT
44.
The other relief applied for is intended to
elevate the second applicant’s group as the rightful leadership
of Agang-SA to
the effective exclusion of the respondent’s
group.
45.
In an application of this nature the
applicants are seeking final relief. Even if the orders could be
couched in the form of interim
relief, the applicant would
nonetheless have to demonstrate a clear right, balance of convenience
(by which I would include no
prejudice to the members of the party)
and no other effective remedy.
46.
In my view all these issues must be
answered by reference to whether the party operates form grass roots
upwards or leadership downwards.
47.
It is evident that with the demise of the”
Founding Cabinet
”
and the requirement that even the “
Founding
Cabinet
” members are subject to
being replaced at an annual general meeting of the members which is
to take place o by the 30
th
of June of each year commencing in 2014 (article 12.1) that the
constitution determines how the leadership is to be elected.
48.
Articles 4 through to 12 make it clear that
the party adopts the basic principle of democracy, namely that
leaders are elected by
the party’s members who are in good
standing. It commences at branches, going up to provincial then
national level. Provincial
and national executive committees are
appointed by the membership.
49.
The history of convening meetings
demonstrates that since at least September each group has purported
to convene meetings at which
the other does not participate and is
either barricaded from attending (I can make no finding but on
paper that is the respondent’s
contention) or precipitated the
other to hold a rival meeting.
In
my view the situation has deteriorated, that having regard to the
constitution and its proper interpretation where there is a
lacuna,
neither group can or will of their own accord be able to convene a
competent or valid meeting. Neither represents the party.
They
represent their own self-interests and convene meetings to further
their own ends.
50.
The only basis upon which any valid meeting
can be convened is once an NEC is voted in by a properly convened
meeting of verified
members in good standing. , or if the membership
agrees by vote to a new
Founding cabinet
to which is then voted on, although the
latter appears unnecessary if regard is had to the rationale for
setting up the founding
cabinet.
51.
It is therefore the ratio of this court
which will constitute an issue estoppel if transgressed, that neither
group is capable of
convening a meeting until there has been a proper
meeting convened of the membership and the membership has elected the
office
bearers to the highest decision making body or bodies after a
duly constituted provincial congresses as required by the
constitution.
The only basis upon which that can occur in law is if
the two grounds reach consensus on the process otherwise the intent
and purport
of the constitution will be incapable of implementation.
THE
ORDER
52.
On 30 January I therefore ordered that;
1.
The matter is urgent;
2.
The respondents are interdicted from
convening, holding or attending the meeting, described as a
Special National Congress,
scheduled for 31 January 2015;
3.
The Gauteng General Meeting of 24
January and the Free State General Meeting of the same date are
declared not to have been lawfully
convened;
4.
Each party is to pay its own costs.
The
Honourable Judge Spilg
DATE
OF HEARING: 28-29 JANUARY 2015
DATE
OF ORDER: 29 JANUARY 2015
DATE
OF JUDGMENT: 09 FEBRUARY 2015
LEGALREPRESENTATION
FOR
APPELLANT ADV M. OSBOURNE
FOR
RESPONDENT ADV S.VAN VUUREN
[1]
See
eg;
Merion
Court Durban Ltd v Kidwell & others
1976(4)
SA 584 (D)
See
also
Visser
v Minister of Labour
1954(3)
SA 975 (W) at 983
[2]
Para
90 of the decision identifies the irregularities complained of.
[3]
Compare
Joynt
v Joubert &others
1959(1)
SA 512 (T). See generally Lewin at p46