IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No: 662/2024
In the matter between:
ELIZABETH DIPUO PETERS Applicant
versus
THE SPEAKER OF THE NATIONAL ASSEMBLY First Respondent
THE CO-CHAIRPERSONS OF THE NATIONAL
COUNCIL OF PROVINCES
Second Respondent
ACTING REGISRAR OF MEMBERS INTERESTS
ADV A GORDON N.O. Third Respondent
The CHAIRPERSON OF THE JOINT COMMITTEE
ON ETHICS AND MEMBERS INTERESTS
Fourth Respondent
THE PRESIDENT OF THE REPUBLIC OF SOUTH
AFRICA
Fifth Respondent
#UNITEBEHIND NPC Sixth Respondent
ABDURRAZACK “ZACKIE” ACHMAT Seventh Respondent
ZUKISWA “VUKA” FOKAZI Eighth Respondent
2
JUDGMENT DELIVERED ELECTRONICALLY ON 29 JANUARY 2024
Delivered: This judgment was handed down electronically by circulation to the
parties' legal representatives by email. The date for the hand- down is deemed
to be on 29 January 2024.
ADHIKARI, AJ
[1] This is an urgent application for an interdict , pending the outcome of judicial
review proceedings instituted under Part B of the Notice of Motion (‘Part B’).
[2] The applicant is a member of parliament and the Deputy Minister of Small
Business Development. In her capacity as the former Minister of Transport, the
applicant was the executive authority responsible for Passenger Rail Agency of South
Africa (‘PRASA’).
[3] In these proceedings, t he applicant seeks an interim interdict , restraining the
first respondent (‘the Speaker’) from implementing the sanction imposed on her by a
resolution of the N ational Assembly which was adopted on 28 November 2023, in
terms of which the applicant is suspended from her seat in all Parliamentary debates
and sittings and from committee meetings and committee related functions , for one
term of the 2024 Parliamentary program , which commences on 30 January 2024
(‘the sanction’).
3
[4] The genesis of this matter is a complaint (‘the complaint’) lodged against the
applicant by #UniteBehind, on 12 September 2022 with the Joint Committee on Ethics
and Members’ Interests (‘the Committee’).1
[5] The complaint sought to hold the applicant to account for what #UniteBehind
terms “serious cases of failing in her Parliamentary duties, maladministration, and
taking [an] active role in inhibiting the work of ensuring that corruption and
maladministration be arrested at PRASA”.
[6] In essence:
[6.1] The complaint alleges that t he applicant was neglectful in her previous
portfolio as M inister of T ransport, by failing to appoint the G roup Chief
Executive Officer (‘CEO’) of PRASA.
[6.2] The complainant alleges that the applicant stated in her testimony before
the State Capture Commission that she did not appoint a permanent
CEO because PRASA was not ready for one, and that her failure to act
on the recommendation of the PRASA board to appoint a CEO resulted
in a loss of R1 767 000 that was paid by PRASA to a recruitment
company.
[6.3] The complainant alleges that the applicant dismissed the PRASA board
that was chaired by Mr Popo Molefe, because the PRASA board had
uncovered R14 billion of irregular expenditure, and it had instituted
investigations into corruption at PRASA.
1 For convenience I refer to the sixth to eighth respondents collectively as ‘#UniteBehind’.
4
[6.4] The complaint alleges that the High Court in Molefe and Others v Minister
of Transport and Others (17748/17)[2017]ZAGPPHC (‘Molefe v Minister
of Transport ’) found that the applicant ’s conduct in dismissing the
PRASA board was irrational, unreasonable and unlawful.
[6.5] The complaint further alleges that the applicant failed to investigate an
allegation that R79 billion of PRASA funds was paid to Swifambo and to
other persons for distribution to the African N ational Congress
(‘the ANC’) while she was under a duty to ensure that corruption was
rooted out from public entit ies falling under the auspices of the
Department of Transport.
[6.6] The complaint alleges that between 2014 and 2015, the applicant utilised
PRASA buses for ANC events without ensuring that there was a payment
from the ANC.
[6.7] The complaint further alleges that the applicant influenced procurement
processes by pressuring the PRASA CEO and the PRASA board, based
on the nationality of the tender applicant , and that she demanded a
change of the procurement pre scripts, despite a legal opinion which
noted that such changes would be unlawful.
[7] It is common cause that on receipt of the complaint , the third respondent
(‘the Registrar’) on 15 September 2022, furnished the applicant with the complaint and
afforded her an opportunity to make representations and to respond thereto.
5
[8] The applicant , through her attorneys , responded to the complaint on
29 September 2022 as follows:
[8.1] The applicant contended in her response that the complaint regurgitated
the findings and recommendations of the State Capture Report;
[8.2] The applicant stated that she was taking legal advice on the possible
remedies available to her and that she intended to take the State Capture
Report on review judicial review to the extent that the report related to
her;
[8.3] The applicant further stated that she was awaiting the President of the
Republic of South Africa (‘the President’) taking steps to put in place an
implementation plan on how the state capture matters would be dealt
with by Parliament;
[8.4] The applicant further stated that she would deal with the complaint in a
holistic manner and not in a piecemeal fashion, and that she therefore
would await the President’s implementation plan;
[8.5] The applicant requested that any further processes by the Committee be
held in abeyance until the President’s implementation plan was put in
place;
[8.6] The applicant indicated in her response that she elected not to engage
further with the conclusions in the State Capture Report at that stage;
and
6
[8.7] The applicant further stated that she remained available and willing to
engage with the office of the Registrar and the Committee.
[9] The Committee on 17 April 2023 deliberated on the complaint. The Speaker in
her answering affidavit states that the C ommittee considered all relevant documents
including the S tate Capture Report and the judgment of the High Court in Molefe v
Minister of Transport.
[10] The Committee dealt with three aspects of the complaint . First, t hat the
applicant had failed to appoint a CEO of PRASA which resulted in R1 767 000 of
fruitless and wasteful expenditure for PRASA. Second, t hat the applicant had
irrationally dismissed the PRASA board. Third, that the applicant had misused PRASA
assets, in the form of bus services to the ANC, which services were not paid for by the
ANC.
[11] Firstly, in respect of the failure to appoint a CEO, the Committee found that the
applicant had breached clause 10.1.1.3 of the Code of Ethical Conduct and Disclosure
of Members’ Interests for Assembly and Permanent Council Members (‘the Code’),
read with clauses 4.1.3 and 4.1.4 of the Code, in that:
[11.1] she had failed to act on all occasions in accordance with the public trust
placed in her; and
[11.2] she had failed to discharge her obligations, in terms of the Constitution,
to Parliament and the public at large, by placing the public interest above
her own interests,
when she failed to appoint a CEO , after the PRASA b oard had commissioned a
recruitment process, which resulted in a financial loss to PRASA of R1 767 000.
7
[12] Secondly, in respect of the dismissal of the PRASA board, the Committee found
that the applicant had breached clause 10.1.1.3 of the Code, read with clauses 4.1.3,
4.1.4 and 4.1.5 of the Code, in that:
[12.1] she had failed to act on all occasions in accordance with the public trust
placed in her;
[12.2] she had failed to discharge her obligations, in terms of the Constitution,
to Parliament and the public at large, by placing the public interest above
her own interests; and
[12.3] she had failed to maintain public confidence and trust in the integrity of
Parliament and thereby engender the respect and confidence that
society needs to have in Parliament as a representative institution,
when she dismissed the PRASA board on the same day when Mr Molefe wrote to
the Portfolio Committee on Transport, which dismissal was ruled by the High Court
in Molefe v Minister of Transport to be irrational, unreasonable and unlawful.
[13] Thirdly, in respect of the misuse of PRASA assets , the Committee found that
the applicant had breached clause 10.1.1.3 of the Code, read with clause 4.1.4 of the
Code, in that she had failed to discharge her obligations, in terms of the Constitution,
to Parliament and the public at large, by placing the public interest above her own
interests, when she requested buses from PRASA to be used for the ANC 2015,
January 8th celebrations, that were not paid for by the ANC.
[14] On 18 April 2023, the Committee informed the applicant that it had finalised its
deliberations on the complaint. It does not appear to be in dispute that the applicant
was invited to make written representations on the sanction to be imposed.
8
[15] On 18 May 2023, the applicant submitted written representations to the
Committee in respect of sanction. In the applicant’s representations, she requested
that she be given the opportunity to make oral representations to the Committee. The
Committee granted the applicant that opportunity, and the applicant duly made oral
representations to the Committee on the issue of sanction on 28 September 2023.
[16] On 20 October 2023 the Committee met to finalise its deliberations on the
complaint. On 24 October 2023 the Committee informed the applicant that it had
finalised its deliberations, and that it had made recommendations to the National
Assembly.
[17] The Committee recommended to the National Assembly, that in respect of each
of the three breaches found, the applicant be suspended from her seat in all
Parliamentary debates and sittings, and from committee meetings and committee
related functions and operations for one term of the Parliamentary program. The
Committee further recommended that the suspension in respect of all three breaches
run concurrently during a term of the Parliamentary program as determined by the
National Assembly.
[18] On 26 October 2023, the applicant received the report of the Committee in
respect of the complaint.
[19] The National Assembly placed the matter on its agenda for 28
November 2023.
It appears from a letter dated 28 November 2023, from the applicants ’ erstwhile
attorneys, which is annexed to the S peaker’s answering affidavit , that the applicant
was notified of the 28 November 2023 sitting of the National Assembly and of the
agenda.
9
[20] In that letter of the 28 November 2023 the applicant through her erstwhile
attorneys, advised inter alia, the Speaker that she was of the view that the State
Capture Commission process as well as the process of the Committee had “violated
her rights to a fair quasi judicial process”. The applicant’s erstwhile attorneys state in
the letter that they had been instructed to “take the matter and in particular the Joint
Committee on Ethics matter, to court to set aside the findings and sanction” and that
“the court papers will be launched next week by 6 December 2023”.
[21] On 28 November 2023, the National Assembly adopted the report of the
Committee with its findings and recommendations. The sanction recommended by
the Committee was approved and adopted as a decision of the N ational Assembly.
The National Assembly imposed the sanction for the first term of the 2024
Parliamentary session.
[22] On 6 December 2023, the applicant was notified in writing of the decision of the
National Assembly and, in particular, the applicant was notified that the sanction had
been imposed for the first term of the 2024 Parliamentary session.
[23] Both the Speaker and #UniteBehind contend that the application is not urgent,
alternatively that any urgency that may exist is self -created and that the application
should be struck from the roll with costs for this reason alone, and further that the
applicant has failed to make out a case for interim relief in any event. Consequently
both the Speaker and #UniteBehind contend that if the application is not struck from
the roll for lack of urgency, the application for interim relief should be dismissed on the
merits.
10
[24] It is well settled that the question as to whether this application warrants this
Court’s urgent attention is to be determined on the facts.2 Where an application lacks
the requisite element or degree of urgency, the C ourt can for that reason decline to
exercise its powers under Rule 6(12). The matter is then not properly on the Court’s
roll, and it declines to hear it. The appropriate order is generally to strike the
application from the roll. 3 An applicant may not create its own urgency 4 and must
bring an application at the first available opportunity, since the longer it takes to do so
may have the effect of diminishing urgency.5 An application for an interdict pendente
lite, from its very nature, requires the maximum expedition on the part of an applicant,6
and an unexplained delay has as its consequence a forfeiture of any right to temporary
relief.7
[25] Both the Speaker and #UniteBehind in essence contend that if this Court were
to grant the applicant the interim relief that she seeks, it would effectively render the
sanction imposed on her nugatory because the sanction is time -bound, having been
imposed only for the first term of 2024 Parliamentary session, which terminates on
28 March 2024, and that by the time the review is heard, the first term of 2024
Parliamentary session would have come and gone.
2 Commissioner for South African Revenue Service v Hawker Air Services (Pty) Ltd; Commissioner
for South African Revenue Service v Hawker Aviation Services Partnership and Others 2006 (4) SA
292 (SCA) at para [9].
3 Id.
4 East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd [2012] JOL 28244 (GSJ) at para [7].
5 Collins t/a Waterkloof Farm v Bernickow NO and Another [2001] ZALC 223 at para [8] and [9].
6 Juta & Co. Limited v Legal & Financial Publishing Co, Limited 1969 (4) SA 443 (C) at 445E-F.
7 Id at 445D-E.
11
[26] The applicant contends that while the sanction was imposed on
28 November 2023, she only became aware, on 6 December 2023 of the fact that the
sanction would commence on 30 January 2024.
[27] The applicant states in her founding affidavit that this application was ready to
be launched on 17 December 2023 but that she was advised by the Registrar of this
Court (‘the Court Registrar’) “that if this application was launched during the December
break…, the application would have had to be heard within a two weeks (sic) thus first
week of January 2024”.
[28] The applicant further states in her founding affidavit that the exigencies of the
matter “did not call for such super -urgency given that [she seeks] to suspend the
sanction which effectively kicks in on 30 January 2024” and that the applicant had
“sought to comply with the directive advised by the [Court] Registrar.” In her replying
affidavit, the applicant states that because the sanction would only commence on
30 January 2024, and in light of the “directive” of the Court Registrar that urgent
matters must be heard within two weeks of being instituted, she was compelled to
launch this application in the second week of January 2024.
[29] I am not aware of any P ractice Directive of this Court that required or requires
urgent applications to be instituted and disposed of within two weeks. Counsel for the
Speaker and #UniteBehind, both of whom practice in this Division, confirmed that they
too are unaware of any such Practice Directive.
[30] In any event, the applicant makes it clear in her replying affidavit that she was
not prevented from launching this application in December 2023, but that she chose
not to do so because if she had launched the application on 17 December 2023, “that
would have meant that the matter would be heard in the first week of January 2024”.
12
[31] #UniteBehind quite fairly asks why, despite the fact that the application was
“ready” (in the applicant’s words ) on 17 December 2023, the application was not
brought to the attention of the respondents until it was served (on or about
10 January).8 In response, the applicant states in her replying affidavit that “[t]here
was no obligation on me or my legal team to advise the respondents that I had papers
ready but could not launch them. It sufficed that I launched them at the correct time”.
[32] The applicant’s stance in this regard is quite unfortunate. The applicant would
have suffered no prejudice at all (and alleges none) if a copy o f the unissued, yet
finalised application had been provided to the respondents on 17 December 2023.
The informal exchange of papers at the earliest possible opportunity in urgent
proceedings of this nature, where the papers are voluminous and where issues of
some degree of complexity are raised, is not uncommon in practice, and is to be
encouraged.
[33] It is well settled that while the procedure set out in Rule 6(12) is not there for
the taking, the question of whether a matter is sufficiently urgent to be enrolled and
heard as an urgent application is underpinned by the issue of absence of substantial
redress in the application in due course, which is something less than the irreparable
harm that is required before the granting of an interim relief .
9 Rule 6(12) confers a
general discretion on a Court to hear a matter urgently - when urgency is an issue the
primary investigation should be to determine whether the applicant will be afforded
substantial redress at a hearing in due course.
8 There is a dispute as to when the application was served on the first to fourth respondents. I deal
with the dispute in this regard later in the judgment.
9 East Rock Trading at para [6] and [7].
13
[34] If the applicant cannot establish prejudice in this sense, the application cannot
be urgent but once such prejudice is established, other factors come into
consideration, including, inter alia , whether the respondents can adequately present
their cases in the time available between notice of the application to them and the
actual hearing, other prejudice to the respondents and the administration of justice,
the strength of the case made by the applicant and any delay by the applicant in
asserting its rights (that is, self-created urgency).
[35] Both the Speaker and #UniteBehind raised legitimate concerns about the short
period of time that that they have been afforded to respond to this application.
[36] #UniteBehind was served with the application on 10 January 2024. There is a
dispute about when the first to fourth respondents (‘the Parliamentary respondents’)
were served with the application. The Sheriff’s returns of service on which the
applicant seeks to rely are not a model of clarity. On the one hand the returns of
service state that the application was served on the Parliamentary respondents on
10 January 2024, but at the same time states that service was done electronically due
to restricted acc ess to the Parliament precinct and that confirmation of receipt of
service was only received on 17 January 2024. The Speaker in her answering affidavit
states that the application papers were only served in Parliament on 15 January 2024.
[37] In terms of the timetable set by the applicant, the respondents were expected
to deliver notices of intention to oppose on 10 January 2024, the same date on which
the applicant contends that #UniteBehind and the Parliamentary respondents were
served, and to deliver their answering affidavits four court days later. There is no
justification on the papers for such extremely truncated time periods. Bearing in mind
the voluminous nature of the papers and the complexity of the issues involved, the
14
unreasonableness of the timetable imposed by the applicant is made more stark , in
particular if regard is had to the fact that the application papers were ready to be issued
by 17 December 2023 and the applicant elected to hold off on providing the papers to
the respondents until, on her version, almost a month later on 10 January 2024. There
is no justification for the applicant’s conduct in this regard.
[38] The respondents have not been able to engage in detail with the grounds on
which the interim relief has been sought. In this regard it must be recalled that the
well-established requisites for interim interdict, (being a prima facie right ; a well-
grounded apprehension of irreparable harm if the interim relief is not granted, and the
ultimate relief is eventually granted; that the balance of convenience favours the
granting of an interim interdict; and that the applicant has no other satisfactory remedy)
must not be considered in isolation, but in conjunction with one another in order to
determine whether the Court should exercise its discretion in favour of granting interim
relief.
10
[39] Prospects of success in the main application is a key factor in determining
whether interim relief pendente lite should be granted, in that the stronger the
prospects of success, the less the need for the balance of convenience to favour the
applicant, and vice versa . Further where a Court is asked to grant a temporary
restraining order against the exercise of statutory power (or as in this case a
constitutional oversight function), it may only do so in exceptional cases and when a
strong case for that relief has been made out.11 It must be satisfied that the applicant
10 Olympic Passenger Services (Pty) Ltd v Ramlaga 1957 (2) SA 382 (D) at 383E-F.
11 National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223
(CC) at paras [41] – [45].
15
for an interdict has good prospects of success in the main review, based on strong
grounds which are likely to succeed.12
[40] It is thus imperative in matters where interdictory relief of the nature sought in
this matter are at issue, that opposing parties are given a fair and reasonable
opportunity to engage with the issues arising in the main review so that the Court has
before it sufficiently comprehensive submissions on the relief sought for the purposes
of determining whether interim relief falls to be granted, having regard to whether the
interim interdict sought will impermissibly trench upon the constitutional tenet of
separation of powers - what has been called the “separation of powers harm”.
13
[41] In the circumstances, the respondents’ complaint that they have been
prejudiced by the applicant’s failure to set a reasonable timetable is well made. The
manifestly unreasonable timetable imposed on the parties by the applicant has
prejudiced the respondents by depriving them of a proper opportunity to respond fully
to the applicant’s case, in circumstances where there is no justification on the papers
for any such prejudice.
[42] Further, it is apparent from the common cause facts that the applicant was
aware of the Committee’s findings and the sanction recommended by the Committee
on 26 October 2023 when she says that she received the report of the Committee.
Further, the applicant had by 28 November 2023 decided that she would seek to
challenge the Committee’s findings as well as the sanction recommended by the
Committee, and she informed the Speaker that she would do so by 6 December 2023.
12 Economic Freedom Fighters v Gordhan and Others; Public Protector and Another v Gordhan and
2020 (6) SA 325 (CC) (29 May 2020) at para [42].
13 OUTA at para [47].
16
Ultimately, the applicant was in a position to institute this application by
17 December 2023.
[43] Her explanation for failing to do so does not withstand scrutiny. The applicant
states that she did not institute these proceedings in December 2023 because if she
had done so the matter would have had to be heard within two weeks and the matter
“did not call for such super -urgency”, because the sanction w ill only commence on
30 January 2024. However, given that the applicant instituted these proceedings on
10 January 2024 to be heard on 26 January 2024, she effectively set the matter down
to be down to heard within two weeks from when the application was instituted in any
event, and chose to do so some four days before the sanction is due to commence.
There is simply no reasonable explanation for the applicant’s conduct in this regard.
[44] For these reasons I am not satisfied that the application warrants an urgent
hearing. However, a further issue arises from the applicant’s delay in instituting these
proceedings.
[45] Having regard to the Notice of Motion, i n Part B the applicant seeks to review
and set aside:
[45.1] The decision of the National Assembly taken on 28 November 2023 to
adopt the report and accept the recommendations of the Committee and
to impose the sanction that applicant be suspended for the first term of
2024 Parliamentary session (‘the NA decision’); and
[45.2] To the extent necessary the decisions of the Committee:
[45.2.1] To consider the complaint;
17
[45.2.2] Not to conduct a further investigation into the complaint in
terms of clause 10.4.3 of the Code;
[45.2.3] That the applicant had breached the Code in the three
respects described above; and
[45.3] To the extent necessary, t he report, recommendations and sanction of
the Committee.
[46] It bears emphasis that the NA decision that the applicant seeks to review, is in
effect a decision that she is suspended for first term of the 2024 Parliamentary session.
[47] The applicant is at pains to point out that if she does not get an order
suspending the implementation of the sanction imposed by the N ational Assembly,
before it commences on 30 January 2024, she will not be able to obtain substantial
redress if the review application were to be heard in the ordinary course.
[48] What the applicant fails to appreciate, however, is that the NA decision that she
seeks to review, is time- bound as Mr Solik for #UniteBehind correctly submitted.
Consequently, if the applicant does not urgently obtain an order reviewing and setting
aside the NA decision (that she is suspended for first term of the 2024 Parliamentary
session), the review relief sought in respect of that decision will be rendered moot, as
the first term of the 2024 Parliamentary session will have run its course by the time the
review is heard in the ordinary course.
[49] In this matter, the sanction was imposed by the National Assembly as
contemplated by clause 10.7.7.2 of the Code, which provides that in the event of the
Committee finding that a member is guilty of contravening, inter alia , clause 10.1.1.3
of the Code, the Committee shall not impose any of the sanctions in clause 10.7.7.1,
18
but shall recommend any greater sanction it deems appropriate to the National
Assembly, and the National Assembly shall decide on the appropriate sanction to be
imposed, after consideration of the recommendation of the Committee. Consequently,
the findings and recommendations of the Committee are not the operative decisions
for the purposes of the review relief sought by the applicant in Part B. The operative
decision in this case is the decision of the National Assembly to impose a particular
sanction on the applicant (that is the NA decision).
[50] The applicant does not, in the application before me, seek an urgent review of
the NA decision. Instead, the applicant seeks , at this stage, only to interdict the
sanction from coming into operation.
[51] However, if I were to grant an interim interdict as sought by the applicant, by
the time that the review is heard in the ordinary course, the time period within which
the NA decision was to have run (30 January 2024 to 28 March 2024), would have
expired, rendering the review moot. As High Courts are not vested with similar powers
to those of the Supreme Court of Appeal or the Constitutional Court to decide a case
notwithstanding that it has become moot,
14 the review court would not be empowered
to hear the Part B review relief in due course. Further, where the operative decision
has been rendered moot, it is unclear on what basis a review court could nonetheless
entertain a challenge to the underlying decisions of the Committee.
15
14 Minister of Justice and Others v Estate Stransham-Ford 2017 (3) SA 152 (SCA) at para [24] – [25].
15 In the remainder of the relief sought by the applicant in Part B, she challenges the jurisdiction of the
Committee to consider the complaint, the procedure followed by the Committee in reaching its
decisions, the substance of the Committee’s findings again st her, as well as the Committee’s
recommendations on sanction.
19
[52] Thus, the effect of granting an interim interdict suspending the implementation
of the sanction would be to render the sanction nugatory for all intents and purposes.
I am in effect being asked to grant an order that would have the effect of setting aside
the sanction imposed by the National Assembly , in circumstances where I am not
seized with the review. There is no basis in law for me to grant such relief. Further,
the effect of the interim relief sought by the applicant has serious implications for the
separation of powers. A Court is effectively being asked to grant an order that would
undermine and render nugatory a sanction imposed by another branch of government
exercising its constitutionally mandated oversight powers, in the absence of any legal
basis for such interference, given that the Court is not seized with the review
application.
[53] As pointed out by #UniteBehind, the appropriate course of action would have
been for the applicant to have approached this Court on an urgent basis to review and
set aside the decisions which she seeks to review in Part B. She chose not to do so
and must live with the consequences of her election.
[54] Where matters are not urgent, t he appropriate order is generally to strike the
application from the roll as this enables the applicant to set the matter down again, on
proper notice and compliance. 16 However, for the reasons already addressed, the
effect of the applicant’s delay in instituting these proceedings is that by time the review
is heard in due course, the review relief will have been rendered moot. Given that the
review court would not be empowered to decide the Part B review relief
notwithstanding that it has become moot , no purpose would be served in striking the
16 Hawker Air Services
20
matter from the roll and, in the circumstances of this matter the appropriate order is to
dismiss the application in its entirety.
[55] As to costs, t here is no reason why costs ought not to follow the result.
Ms Samkange for the Speaker submitted that this i s a matter which warrant s the
attention of two counsel. She further submitted that senior counsel had been briefed
and had been involved in the preparation of the Speaker’s papers, but due to the
urgency of the matter was unable to appear at the hearing. In view of the complexity
of the matter and the importance of the issues, I am satisfied that the costs of two
counsel is warranted.
In the result I make the following order:
1. The application is dismissed.
2. The applicant is to pay the costs of the first to fourth and sixth to eighth
respondents, such costs to include the costs of two counsel where so employed,
on a party and party scale.