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[2010] ZAGPJHC 132
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Congress of the People and Others v Lekota and Another (A5043/10) [2010] ZAGPJHC 132 (10 December 2010)
REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
A5043/10
DATE:
10/12/2010
In the matter between-
CONGRESS
OF THE PEOPLE
...................................................
First
Appellant
MBHAZIMA
SHILOWA
..................................................................
Second
Appellant
CHARLOTTE
LOBE
.....................................................................
Third
Appellant
and
MOSIUOA
LEKOTA
....................................................................
First Respondent
PHILLIP
DEXTER
…...................................................................
Second
Respondent
______________________________________________________________
J U D G M E N T
______________________________________________________________
BORUCHOWITZ,
J
:
[1] This appeal relates to an
order granted by Makume J on 29 May 2010 interdicting the holding
of an election. The first appellant
is, nominally, “the
Congress of the People”. As will appear later, “the
Congress of the People” is not, in fact, a party to this
appeal.
[2] The respondents, who are
office bearers of the first appellant, approached the court below on
an urgent basis and obtained an
order in the following terms:
That the first respondent (the first appellant) be interdicted and
restrained from holding an election in contravention of the
undertaking reflected in paragraph 1 of its resolution of 27 May
2010, a copy of which is attached hereto as Annexure “A”.
That the first respondent is ordered to defer the elections for a
period of 4 months in order to allow nominations in terms of
nominations to be accepted as per paragraph 3 of its resolution of
27 May 2010 (Annexure “A”).
Ordering the first, second, third and fifth to forty-third
respondents to pay the costs of this application.
[3] Despite the fact that a full
court of this division was constituted to hear the appeal on an
urgent basis, the appellants have
permitted the appeal to lapse.
There is before us an application for condonation and reinstatement
of the appeal. Condonation
is sought in respect of the late filing
of the appellants’ notice of appeal; the filing of an
incomplete or defective power
of attorney; the late filing and
inclusion of several pages of the appeal record and the late filing
of the appellants’ heads
of argument.
[3] It is appropriate to first deal with the problems relating to
the power of attorney as these are of a fundamental nature and
cannot
be remedied by means of an application for condonation. Rules 7(2)
and (4) read:
“
(2)
The registrar shall not set down any appeal at the instance of an
attorney unless such attorney has filed with the registrar
a power of
attorney authorising him to appeal and such power of attorney shall
be filed together with the application for a date
of hearing.
(4) Every power of attorney
filed by an attorney shall be signed by or on behalf of the party
giving it, and shall otherwise be
duly executed according to law;
provided where a power of attorney signed on behalf of the party
giving it, proof of authority
to sign on behalf of such party shall
be produced to the registrar who shall note that fact on the said
power.
”
[5] The relevant portions of the
power of attorney filed with the registrar in the present case
provide as follows:
“
We,
the undersigned,
MBHAZIMA SHILOWA
AND
CHARLOTTE LOBE
hereby appoint
GUGULETHU OSCAR MADLANGA
and/or
JOHN
SINDISO NGCEBETSHA
of
NGCEBETSHA
MADLANGA ATTORNEYS
with power of substitution to be our attorneys and agents in
instituting appeal proceedings under case number A18845/10 on behalf
of the Appellants in our personal capacities and in representative
capacities as the Deputy President and General Secretary of
the 1
st
Appellant and as mandated by the Congress held on the 27
th
-29
th
of May 2010, as per its resolution. We hereby further revoke, cancel
and annul all and any Power of Attorney, mandate and/or dispositions
heretofore made by us in respect of the matter referred to above.
”
[6] The power is signed by the
second appellant whose signature is qualified by the words “
Duly
authorized in terms of the resolution of the Congress held on 27-29
of May 2010
”.
Contrary to the provisions of Rule 7(4) the power has not been signed
by the third appellant and nor does the second appellant
purport to
sign on her behalf. The Registrar has also not noted on the power,
as required by Rule 7(4), that proof of second appellant’s
authority to sign on behalf of the first appellant was produced.
[7] Counsel for the appellant
conceded that there was in existence no resolution of the first
appellant that expressly authorised
either the second or third
respondent to institute appeal proceedings on first respondent’s
behalf. He sought to argue, however,
that such authority was to be
implied from the wording of the following resolution purportedly
passed by the Congress at its national
conference held during 27 to
29 May 2010:
“
Given
the legal challenges facing the Congress, Congress agreed on the
following:
That the Congress empowers the CNC to defend the Congress
decisions including the right for the Congress to continue with its
business as per its rejection of the CNC proposal to turn it into a
policy conference.
4.2 That the Congress will
therefore stand adjourned until all the legal impediments have been
dealt with to be resumed based on
the same credentials that
constituted this Congress.
”
[8] There is nothing in the
wording of the above resolution to suggest that the second and third
appellants are authorised to institute
appeal proceedings on behalf
of the first respondent, and to instruct the appellants’
attorneys for such purpose. The defect
in second appellant’s
authority to represent the first appellant cannot be remedied by the
grant of condonation, and no attempt
has been made to rectify the
defective power.
[9] The filing of a power of
attorney in compliance with the requirements of Rule 7(2) and (4) is
peremptory and where these requirements
have not been adhered to the
appeal will not have been properly enrolled. See
Aymac
CC v Widgerow
2009 (6)
SA 433
(W) at para [6] and cases there cited.
[10] It follows that the appeal
of the second appellant only is properly before the court. But that
appeal has lapsed and it is
therefore necessary to consider the
application for condonation and reinstatement.
[11] Rule 49(6)(b) provides that
the court to which the appeal is made may upon “
good
cause shown
”
reinstate an appeal which has lapsed. The applicable principles have
been discussed in a number of cases, most notably
United
Plant Hire (Pty) Ltd v Hills and Others
1976 (1) SA 717
(A) where Holmes JA, in an analogous context, said
the following [at 720E-G].
“
It
is well settled that, in considering applications for condonation,
the Court has a discretion, to be exercised judicially upon
a
consideration of all the facts; and that in essence it is a question
of fairness to both sides. In this enquiry, relevant considerations
may include the degree of non-compliance with the rules, the
explanation therefor, the prospects of success on appeal, the
importance
of the case, the respondent’s interest in the
finality of his judgment, the convenience of the Court, and the
avoidance of
unnecessary delay in the administration of justice. The
list is not exhaustive.
These factors are not
individually decisive but are inter-related and must be weighed one
against the other; thus a slight delay
and a good explanation may be
held to compensate for prospects of success which are not strong.
”
[12] Culpable inactivity or
ignorance of the rules by an attorney may be such as to render the
application for condonation unworthy
of consideration, regardless of
the merits of the appeal. See
Aymac
(
supra
)
at paras [38] to [40].
[13] The appellants have breached
the rules in more than one respect. Apart from filing an incomplete
or defective power of attorney
they have also failed to timeously
file their notice of appeal, a complete transcript of the appeal
record and their heads of argument.
[14] Rule 49(2) provides that if
leave to appeal to the Full Court is granted, the notice of appeal
shall be delivered to all the
parties within 20 days after the date
upon which leave was granted, or within such longer period as may
upon good cause shown be
permitted. The judgment granting leave to
appeal was delivered on 8 June 2010 and the notice of appeal was only
filed on 3 September
2010, some 19 court days out of time.
Appellants’ attorney, Mr Madlanga, has explained that the
failure to deliver
the notice of appeal timeously was due to
inadvertence on his part and pressure from his involvement in various
other matters relating
to the parties. He asserts that his attention
was diverted from the filing of the notice of appeal by virtue of the
fact that
he was involved in preparing an application for leave to
appeal to the Supreme Court of Appeal and in corresponding with the
Judge
President to ensure that the present appeal be heard
expeditiously.
[15] The appeal record, which is
incomplete, was also filed late. It was lodged with the Registrar on
25 October 2010, some seven
court days prior to the hearing of the
appeal. The transcript of the proceedings before the court below is
contained in 15 typed
and numbered pages; however, pages 6 to 10 were
not included in the appeal record. Why these relevant pages were
omitted is not
properly explained. The appellants’ attorney
states that it is not clear to him precisely how this omission arose.
[16] Both the rules of court
(Rule 49(15)) and the Consolidated Practice Directives Manual of this
division oblige appellants to
deliver their heads of argument not
later than 15 days before the appeal is heard, but the appellants
sought to file their heads
of argument with the Registrar on 26
October 2010, six court days prior to the date for the hearing of the
appeal Appellants’
attorney has explained that this delay was
caused by the appellants’ inability to pay counsel’s fees
and counsel’s
refusal to prepare the heads of argument until
the outstanding fees were paid.
[17] The failure to timeously
file the notice of appeal and a complete record resulted in the
respondents delivering their heads
of argument on 1 November 2010,
some three days prior to the date designated for the hearing of the
appeal instead of the stipulated
ten-day period. Moreover, the
appellants’ heads of argument, which were hurriedly prepared,
contain references to the record
that do not accord with the typed
transcript. This was due to the incompleteness of the transcript of
the proceedings.
[18] The appellants’
failure to comply with the rules and practice requirements of this
division has occasioned prejudice
not only to the respondents but
also to the members of the court hearing the appeal. In a busy court
such as the South Gauteng
High Court it is essential that heads of
argument be delivered within the time parameters laid down in the
rules of court and practice
manual. The fact that an urgent and
special date for the hearing of the appeal was allowed by the Deputy
Judge President did not
absolve the appellants from their duty to
properly and timeously comply with the rules relating to the
prosecution of appeals.
[19] A further factor relevant
to the discretion whether to reinstate the appeal relates to the
question of mootness. Section 21A(1)
of the Supreme Court Act 59 of
1959 provides as follows:
“
When
at the hearing of any civil appeal to the Appellate Division or any
provincial or local division of the Supreme Court the issues
are of
such a nature that the judgment or order sought will have no
practical effect or result, the appeal may be dismissed on
this
ground alone.
”
[20] Section 21A(1) encapsulates
the long-standing principle that courts of law exist for the
settlement of concrete or live controversies
and not for the
determination of abstract, academic or hypothetical questions. See
Coin Security Group
(Pty) Ltd v S A National Union for Security Officers and Others
[2000] ZASCA 137
;
2001 (2) SA 872
(SCA) at para
[7]
;
Port
Elizabeth Municipality v Smit
2002 (4) SA 241
(SCA);
Radio
Pretoria v Chairman, Independent Communications Authority of South
Africa & another
2005 (1) SA 47
(SCA)). The section confers a discretion on the Court
to deal with the merits of the appeal where the appeal involves a
question
of law which is likely to arise again (see
Land
& Landbountwikkelingsbank van Suid-Afrika v Conradie
2005 (4) SA 506
(SCA);
Ethekwini
Municipality v Combined Transport Services
(115/10)
[2010] ZASCA 158
(1 December 2010)).
[21] The respondents submit that
the appeal is moot, and would be of academic interest only. I am in
agreement therewith. The
respondents, Mr Lekota and Mr Dexter,
approached the High Court on an urgent basis in order to prevent
certain members of
the first respondent from trying to hold an
election. It is apparent from the notice of motion that they sought
to interdict elections
from being held in contravention of the
resolution of 27 May 2010 of the executive body of the first
respondent. By implication,
the interdict was designed to ensure
that no election of office bearers took place on the weekend of 29
May 2010 and that the attempted
holding of further elections be
postponed for a period of four months, as had been resolved. That
weekend has come and gone, as
have the four months. The case is thus
clearly moot and the appeal against the judgment of the court below
would have no practical
effect or result. The issues that were in
dispute are no longer justiciable and were the appeal to be heard, it
should be dismissed
on this ground alone.
[22] The explanations given in
respect of the appellants’ numerous procedural shortcomings are
not reasonable or sufficient
to justify the reinstatement of the
lapsed appeal. In reaching this conclusion I have taken into
consideration (1) that multiple
breaches of the rules and practice
procedures of this Court have occurred; (2) the unexplained
dilatoriness of the appellants’
attorney; and (3) that the
issues in the appeal appear to be moot and will have no practical
effect or result.
[23] During the course of
argument the respondents waived or abandoned any right to claim costs
against the first and third respondents.
[24] The following order is
therefore made:
The application for condonation and reinstatement of the appeal is
dismissed.
The costs of the application for condonation and reinstatement are
to be paid by the second appellant.
The costs of the appeal are to be paid by the second appellant.
_____________________________
P BORUCHOWITZ
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
I agree:
_____________________________
R E MONAMA
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
[
25]
I agree with my brother Boruchowitz that that the application for
condonation should fail and that the appeal should not be
heard. I
do, however, have certain additional reasons which I think should be
recorded to underline the fact that there has been
no injustice in
this matter.
[26] Counsel
for the appellant submitted that even if the point of the appeal is
moot, the appeal may, however, be heard and that,
in this particular
case issues of such high public importance present themselves that
justice requires that the appeal be considered.
It seems clear enough
from the wording of section 21A of the Supreme Court Act and the
cases of
Premier
Mpumalanga en ‘N Ander v Groblersdalse Stadsraad
1998
(2) SA 1136
(SCA) at 1141J-1142F
and
Western
Cape Education Department and Another v George
1998
(3) SA 77
(SCA) 83F-84F that even where the outcome of the appeal
will have no practical effect, a court of appeal may nevertheless
hear
the matter in exceptional circumstances.
[27] In the
calm, measured and relaxed atmosphere of an appeal hearing, I am
inclined to think that it may have been better for
the court below to
have cast its order in incontestably interim terms. Nevertheless, it
seems to me to be most unlikely that a
court of appeal would go so
far as to find that the court below erred in making the order which
it did. It is undesirable that
a court of appeal should easily
second-guess the decisions of judicial colleagues. It is clear that
the court below acted fairly
and carefully in tense, difficult and
volatile circumstances to cast an order which best dealt with the
situation. That order deserves
respect rather than criticism by this
court.
[28] Counsel
for the appellant also submitted that the case brings to the fore
important matters of policy as to when it is appropriate
for a court
to intervene in the internal affairs of a political party. I shall
accept, in favour of the appellant, that this issue
has been raised
by the appellant, however cryptically, in the process leading up to
the consideration of the application for condonation.
Nevertheless,
it is clear from the heads of argument of the appellant that, on the
day of the hearing, counsel was in no position
to do justice to this
argument of potentially considerable significance. In making this
observation, I wish to make it clear that
I cast no aspersions on
counsel. Counsel for the appellant is well known to the court for his
competence and argued this particular
case impressively. The fault
lies with the appellant himself. It is clear from the application for
condonation that he failed timeously
to place his attorney in funds
in order properly to brief counsel. Such an issue would have required
considerable preparation.
The appellant has only himself to blame if
he wished to have an important precedent established. In all the
circumstances of the
matter, he can hardly claim indulgence by the
court on the grounds of his being indigent. In any event, he did not
even make such
a claim.
[29] Besides,
a whisk through the law reports will make it clear that this is not
the first time that a court has intervened, even
under our modern
constitutional order, to make orders that affect political parties in
quite profound ways. It is unlikely to be
the last. The judgment and
order of the court below has created no precedent sending a tremor
quivering through the ranks of either
the legal or the political
fraternity. Political contestation for election to office within the
political party concerned is, at
present, free from any restraining
order by the court. In all the circumstances of this matter, I am
satisfied that it best for
this court to adopt an attitude of “let
it be”. In my respectful opinion, justice will be well served
by the order
proposed by Boruchowitz J.
_____________________________
NP
WILLIS
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR
APPELLANTS : ADVOCATE G I HULLEY
INSTRUCTED
BY : NGCEBETSHA MADLANGA
ATTORNEYS
COUNSEL FOR
RESPONDENTS: ADVOCATE K HOPKINS
INSTRUCTED
BY : WERTHEIM BECKER INC