IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION: CAPE TOWN)
Case number 23230/2023
In the matter between
ECONOMIC FREEDOM FIGHTERS First Applicant
JULIUS SELLO MALEMA, MP Second Applicant
NYIKO FLOYD SHIVAMBU, MP Third Applicant
MBUYISENI QUINTIN NDLOZI, MP Fourth Applicant
MARSHALL MZINGISI DLAMINI, MP Fifth Applicant
VUYANI PAMBO, MP Sixth Applicant
SINAWO TAMBO, MP Seventh Applicant
And
THE CHAIRPERSON OF THE POWERS
AND PRIVILEGES COMMITTEE N.O. First Respondent
THE SPEAKER OF THE NATIONAL ASSEMBLY Second Respondent
THE SECRETARY TO PARLIAMENT Third Respondent
THE INITIATOR N.O. Fourth Respondent
THE MINISTER OF JUSTICE AND CORRECTIONAL
SERVICES Fifth Respondent
THE CHAIRPERSON OF THE NATIONAL COUNCIL
OF PROVINCES Sixth Respondent
Coram Erasmus, Cloete et Thulare JJ
Date of Hearing 29 January 2024
Date of Judgment 30 January 2024
Page 2
JUDGMENT
ERASMUS, J ( CLOETE J concurring and THULARE J dissenting)
INTRODUCTION
[1] The issue before us, is to determine whether to condone the non- compliance
with a court order that led to the unfortunate delay in finalizing an important matter of
national importance.
[2] I had the benefit of considering the judgment of Thulare J herein, t he
conclusion which I respectfully disagree with. I am of the view that the application
should be struck from the roll for the reasons stated below.
[3] T he Constitutional Court recently reminded us:
“It is indeed the lofty and lonely work of the Judiciary, impervious to public
commentary and political rhetoric, to uphold, protect and apply the Constitution and
the law at any and all costs. The corollary duty borne by all members of South African
society – lawyers, laypeople and politicians alike – is to respect and abide by the law,
and court orders issued in terms of it, because unlike other arms of State, courts rely
solely on the trust and confidence of the people to carry out their constitutionally -
mandated function.”
1
[4] I am of the view that the court must ensure that all litigants have equal access
to the courts in order to have their disputes adjudicated. For this reason, there are
rules, directives, and often court orders that regulate the process. The functioning of
the courts to effectively and efficiently deliver on its constitutional mandate therefore
depends on a proper application and compliance with, inter alia , court orders. A n
undermining of these mechanisms lead to disorder and unnecessary delays and
disruptions as is evident in this case. I pause to note that Thulare J had to postpone a
1 Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud
in the Public Sector including Organs of State v Zuma and Others [2021] ZACC 18 at para [1]
Page 3
criminal matter where witnesses were subpoenaed and the accused is in custody , to
attend to this matter. The timeline will indicate the enormous amount of judicial
resources employed.
[5] The Constitutional Court in Pheko stated:
“[t]he rule of law, a foundational value of the Constitution, requires that the dignity and
authority of the courts be upheld. This is crucial as the capacity of the courts to carry
out their functions depends upon it. As the Constitution commands, orders and
decisions issued by a court bind all persons to whom and organs of State to which
they apply, and no person or organ of State may interfer e, in any manner, with the
functioning of the courts. It follows from this that disobedience towards court orders
or decisions risks rendering our courts impotent and judicial authority a mere mockery.
The effectiveness of court orders or decisions is substantially determined by the
assurance that they will be enforced. Courts have the power to ensure that their
decisions or orders are complied with by all and sundry, including organs of State. In
doing so, courts are not only giving effect to the rights of the successful litigant but
also and more importantly, by acting as guardians of the Constitution, asserting thei r
authority in the public interest.”
2
BACKGROUND
[6] The second to seventh applicants are all members of the first applicant. They
represent the first applicant as elected representatives in the National Assembly,
Parliament of the Republic of South Africa. As m embers of Parliament they are
subjected to the internal rules of the N ational Assembly. The National Assembly and
the National Council of Provinces have sub-committees with designated functions. The
National Assembly has a sub-committee named the Powers and Privileges Committee,
of which the first respondent is the chairperson.
2 Pheko v Ekurhuleni City [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC) (Pheko II),
see also Witham v Holloway [1995] HCA 3 at para 15, where the Australian High Court held that— “there
is not a true dichotomy between proceedings in the public interest and proceedings in the interest of the
individual. Even when proceedings are taken by the individual to secure the benefit of an order or
undertaking that has not been complied with, there is also a public interest aspect in the sense that the
proceedings also vindicate the court's authority. Moreover, the public interest in the administration of
justice requires com pliance with all orders and undertakings, whether or not compliance also serves
individual or private interests.”
Page 4
[7] Annually, normally early in February of each year, the H ead of S tate (the
President of the Republic of South Africa) address a joint sitting of the two H ouses of
Parliament at what is named the S tate of the Nation Address [“SONA”]. The sitting is
presided over by the Speaker of the N ational Assembly [the second respondent] and
the chairperson of the National Council of Provinces [the sixth respondent]. The State
of the N ation Address for 2023 was held on 9 February 2023. It was attended by
members of Parliament, the executive and representatives of the J udiciary that
included the Chief Justice and the Heads of Court for the different divisions. Local and
foreign dignitaries are often invited and the event is live streamed on television and
other electronic media. Customarily, in the week that follows the address, political
parties in P arliament through the elected representatives , have an opportuni ty to
address questions to the Head of State.
[8] Certain events happened at SONA 2023 that led to the referral of the second
to seventh applicants to the Powers and Privileges Committee. This committee had
the task to consider the matter relating to contempt of Parliament . A process was
followed which led to a guilty finding of the members concerned, which finding and the
sanctions recommended were confirmed by the N ational Assembly on 5 December
2023. The decision of the National Assembly is recorded as follows:
“An order to apologize in person in the house to the President, the S peaker and the
people of South Africa as determined by the house as set out in section 12 [5] [c] of the
Privileges Act; and suspension of the members without remuneration for a period of 30
days, whether or not the house or any of its committees is scheduled to meet during
that period starting from 1 to 29 February 2024 a [SIC] set out in section 12 [5] [g] of
the Privileges Act.”
The second, third, sixth and seventh applicants were present at this sitting.
[9] On 20 December 2023 (some 15 days later) this application was launched
wherein the following relief was sought:
“1. Dispensing with the Rules relating to service and dealing with this matter as one
of urgency in accordance with the provisions of Rule 6(12) of the Uniform Rules of
Court.
Page 5
2. Declaring the National Assembly Rule 214 and the Schedule: Procedure to be
followed in the investigation and determination of allegations of misconduct and
contempt of Parliament (9th edition- 2009) (“the impugned Rules”) relating to the
Powers and Privileges Committee unlawful and unconstitutional to the extent that:
2.1. they fail to ensure that Parliament’s process for disciplining members of
Parliament ( “MPs”) is conducted by an independent and impartial
decisionmaker.
2.2. they fail to provide sufficient guidelines for the exercise of discretion insofar
as sanctions are concerned;
2.3. they provide the Powers and Privileges Committee with unfettered discretion
without providing sufficient guidelines on the right to cross -examine
witnesses, the discovery of documents and information; and the standard of
proof; and
2.4. they fail to provide a time-bar for the institution of charges against an MP.
3. Declaring the impugned Rules relating to the Powers and Privileges Committee
unlawful and unconstitutional to the extent that they fail to conform to the
requirements of section 12(3)(a) of the Powers, Privileges and Immunities of
Parliament and Provincial Legislatures Act No 4 of 2004 ( “the Act”) as well as
sections 1(c) and 57(1) of the Constitution of the Republic of South Africa, 1996.
4. Declaring section 12(5) of the Powers, Privileges and Immunities of Parliament and
Provincial Legislatures Act No 4 of 2004 in that it fails to provide sufficient
guidelines for the imposition of sanctions on a Member of Parliament.
5. Declaring the following decisions and actions ( “the impugned decisions and
actions”) of the Powers and Privileges Committee unconstitutional, unlawful and
invalid:
5.1. The proceedings in terms of which the second to sixth applicants were
charged and found guilty of contempt of Parliament held from 20 November
2023 to 22 November 2023;
5.2. The report of the Powers and Privileges Committee dated 1 December 2023
conveying its guilty finding and recommending a penalty of an apology to the
President, the Speaker, and the people of South Africa, as well as
suspension of the applicants for a month without remuneration.
5.3. The decision of the National Assembly dated 5 December 2023 to adopt the
report of the Powers and Privileges Committee and to impose the
recommended penalties.
6. Reviewing and setting aside the impugned decisions and actions referred to in
paragraph 5 above.
7. In the event that prayer 2, 3 and 4 is granted, directing the respondents, as
appropriate, to cause the necessary amendments to the Act, Rules and the
Schedule within twelve months of the granting of this order.
8. In the alternative to the prayers set out in paragraphs 2, 3, 4, 5, 6 and 7, an interim
interdict is granted suspending the operation of the sanction and penalty against
the Second to Seventh Applicants until the finalisation of this application.
9. Costs, including the costs of two counsel, one being senior, in the event of
opposition to be awarded against any respondent opposing the relief set out
herein, such costs to be paid on a joint and several basis.
Page 6
10. Further and/or alternative relief.”
[10] The papers were served on the state attorney on Thursday , 21 December
2023. In accordance with the applicants’ unilaterally imposed timeline, the respondents
were called upon to indicate their intention to oppose the relief sought, in writing, by no
later than 29 December 2023. I pause to note that from Friday , 22 December until
Wednesday, 27 December 2023, i t was one long weekend with public holidays
scattered between that led into another long weekend that included 1 and 2 January
2024.
[11] Further, In the event that the respondents opposed the application, the
applicants required them to file their answering affidavits, together with any relevant
documents, by no later than 8 January 2024. The date for the hearing was set for 18
January 2024. It is apparent from these timelines that the times g iven for responses
and setdown was truncated to an extreme extent compared to the timelines set in the
Uniform Rules of Court.
[12] Needless to say the respondents, but for the fourth and fifth respondents who
abide the decision, had difficulty in meeting these deadlines. A voluminous reply was
delivered on 11 January 2024, three days later than the date unilaterally set by the
applicants. No application for condonation was filed as the respondents were of the
view that no condonation was needed. The applicant s wanted to reply to the
documents filed by the respondents and therefore sought a postponement of the
matter set down for 18 January 2024. The parties agreed to an order that was taken
on 17 January 2024 before Cloete J , who coincidentally happened to be the senior
urgent recess judge that day. The order reads as follows,
“1. The matter is postponed for hearing on the urgent roll on 29 JANUARY 2024,
and the parties’ legal representatives are given leave to approach the Acting
Judge President for a special allocation.
2. The Applicants shall deliver their Replying Affidavit by 19 JANUARY 2024.
3. The Applicants shall deliver their Heads of Argument by 22 JANUARY 2024.
Page 7
4. The Opposing Respondents shall deliver their Heads of Argument by 25
JANUARY 2024.”
[13] It is instructive to note that specific timelines were agreed to and confirmed in
an order of court.
[14] The applicant s had difficulty complying with filing their replying affidavit by
Friday, 19 January 2024 due to the unforeseen personal circumstances of one of their
team. Correspondence between the parties was exchange in this regard. I pause to
note that no negative inference is drawn from the first delay in non- compliance of the
court order.
[15] The run up to the date for hearing caused a flurry of activity , particularly with
constituting a bench. On 23 January 2024 in the afternoon it was decided by the Acting
Judge President that the bench be constituted as it is now. I became the presiding
judge and immediately took steps in an attempt to manage the matter so that it was
ripe for hearing on 29 January 2024. I caused a notification to be sent to the attorneys
calling on a judicial case management meeting for the morning of 25 January 2024. At
the meeting it became apparent that the replying affidavit was not filed. I was informed
that an unsigned version was provided to the respondents’ attorneys and that a copy
will be filed on that day. I raised the issue of condonation pertinently in respect of the
non-compliance with a court order as well. My discomfort was that the parties were
aware from 23 January 2024 of the constitution of the bench and the need to prepare
timeously for hearing. I was assured that the heads of argument will also be filed b y
Friday, 26 January 2024 in respect of both parties. I indicated to the applicant s’
attorney that that seemed to be an impossibility which was confirmed by the
respondents’ attorney. I further arranged that a facility be created on the Microsoft
Teams platform to facilitate the uploading of documents, during non- court hours, to
assist the bench and the parties to prepare for the hearing.
[16] The replying affidavit was filed on 25 January 2024. It became apparent that
the affidavit was commissioned on 24 January 2024 and that an unsigned version was
Page 8
sent to the respondent s the day before. The application for condonation was only
received by the respondents’ attorney late in the afternoon of Friday, 26 January 2024.
The applicants’ heads of argument were uploaded, until now still not filed, shortly
before midnight on Friday, 26 January 2024. No application for condonation for this
non-compliance with the previously agreed court order and P ractice Directives in this
division has been filed to date. This caused the matter not to be ripe for hearing on 29
January 2024 as was seen by myself on the 25 th and the parties alerted to the
possibility. I indicated to the parties on the 25th, with the foreseen possibility, that they
should seek an agreement for interim relief, if at all possible, as it was apparent that
the matter could not be heard on Monday 29 January 2024 given the time constraints
and the volume on which the bench had to prepare. T he parties could not agree on
some form of interim relief and the applicants’ heads of argument filed on Friday , the
26th still dealt with all the issues, including the main relief still persisted with at that
point. Accordingly, both the respondents and the court were still required by the
applicants at that stage to prepare for the entire case.
[17] Although the respondents do not oppose the application for condonation for
the late filing of the replying affidavit, t hey argue strongly that the court should strike
the matter due to the conduct of the applicants. The applicants in turn argue, primarily,
that by striking the matter w e would infringe on their right of access to the courts .
Further, that there is no proper application for striking before us and it should therefore
not be entertained at all. I do not agree that in exercising my discretion i nsofar as it
relates to condonation for the non- compliance of a court order, that the applicants ’
argument can hold.
[18] The applicants are dominus litis. They chose to approach court on an urgent
basis, which they were entitled to do. It would have been clear from the outset , given
the time of year and the particular circumstances that the respondents are mostly of
an institutional nature, Parliament had already risen for the year. The court was in
recess on the date that they unilaterally chose, meaning there were only two judges
on duty. Managing the hearing of a matter like this, launched during the court recess
and set down to be heard during court recess becomes an almost impossible task. The
judiciary has an obligation to perfor m their duties and functions for all the parties
Page 9
involved in litigation to have a fair hearing. This includes proper preparation and
reading of all the necessary papers.
[19] An applicant who applies for the date for a matter that they foresee will be
opposed, as in the instant matter, must ensure that the timelines they set are not only
reasonable in the particular circumstances but that it can be accommodated on the
court roll and that the matter will be ripe for hearing on the date so chosen or agreed.
The agreed order of this court dated 17 January 2024 included the possibility of
approaching the A cting Judge President for special allocation, which eventually
happened in this matter.
[20] The applicants in this matter had the obligation to ensure that the matter was
ripe for hearing. No reasons were given for the midnight filing of the heads of argument
on the Friday preceding the Monday hearing which clearly left no time for the
respondents to file their heads of argument. Not only were the applicants forewarned
of the effect of late filing of heads of argument but also the requirement to apply for
condonation for the non-compliance with a court order.
[21] I can put it no better than Gilbert AJ i n Chonqin Gingxing Industries SA (Pty)
Limited v Ye and Others
3:
“[25] Having so applied for the opposed date, the applicant represented that the
matter was ripe for hearing. As discussed above, the whole purpose of the procedures
is to ensure that as far as practically possible a matter is ripe for hearing before
becoming deserving of allocation on the busy opposed motion court roll.
[26] Having made that representation, the applicant must, insofar as practically
feasible, ensure that the application remains ripe for hearing. Should the application
become no longer ripe for hearing, then the application should be removed from the
roll. Understandably there may be instances where recalcitrant respondents may
conduct themselves, with varying degrees of ingenuity, in an attempt to render an
allocated matter no longer ripe for hearing and so seek to avoid a hearing. The court
will be alive to these attempts, but where the applicant itself take steps that render its
3 [2021] ZAGPJHC2; 2021 (3) SA 189 (GJ) at paras 25-27.
Page 10
own matter no longer ready for hearing, it can hardly complain that its opposed
application is struck from the roll.
[27] This is such an instance”
[22] The respondents were clearly prejudiced by the conduct of the applicants but
more importantly, the court is prejudiced despite our best efforts and literally having to
disadvantage other litigants in an attempt to accommodate the matter . All litigants
before the courts have equal rights of access and, by accommodating this matter, other
litigants had to be prejudiced. Courts must ensure that the integrity and efficient use of
the judicial resources is protected. As pointed out above by allowing litigants to ignore
court orders that they’ve agreed to without a proper explanation, will bring the
administration of justice into disrepute.
[23] I am mindful of the importance of this matter and that the applicants might not
get the relief they wish before the next State of the Nation Address and/or the Budget
Speech, but this is of their own making. The court was willing and ready to not only
accommodate the parties but to go the extra mile in sacrificing the weekend to read in
excess of a thousand pages and prepare for the hearing.
I observed that the applicants
lamented the fact that they had eight days to prepare on less papers for the hearing
before the committee.
[24] I can see no reason why the non-compliance with the agreed court order and
the effect thereof should be condoned with no reasons proffered. The result can only
be ascribed as self-made by the applicants.
[25] Insofar as it relates to costs. There is no reason why the costs should not follow
that result. Consequently, I am of the view that the applicant s pay the wasted costs.
Both employed more than one counsel as it was necessary.
Page 11
[26] Consequently, the following order is made:
1. The application for condonation for the late filing of the applicants’
replying affidavit is granted.
2. Save as aforesaid, the application is struck from the roll.
3. The applicants shall pay the first, second, third and sixth
respondents’ costs of the application, jointly and severally, the one
paying the others to be absolved, such costs to include the cost of
two counsel where so employed.
_________________________
N C Erasmus
Judge of the High Court
I agree
_________________________
J I Cloete
Judge of the High Court
IT IS SO ORDERED
THULARE, J [DISSENTING]
[27] I have read the judgment of Erasmus J wherein he set out the background
facts to the matter. He has dealt with the facts and I will only deal therewith to the
extent necessary to set out the reasons why I am unable to agree with his order. Life
happened, especially during both Parliament and Court recess periods of the 2023-
2024 year -end and beginning, the festive period and most importantly during the
generally long leave periods of business and active social life. That is the milieu in
which I understood the exchange of pleadings, and the difficulties of the lawyers getting
the role players for the parties readily available to depose to the necessary affidavits.
Emerging from the dust of that arena, in his opening address, Adv Ngcukaitobi, Senior
Counsel leading the applicants’ team, advised the court that what was sought, on the
Page 12
morning of 29 January 2024 before court, was a two-pronged approach. The first was
what would be the first prize for the applicants, which was the hearing of the alternative
prayer, to wit, an interim interdict suspending the operation of the sanction and penalty
against the second to seventh applicants until finalization of the application. The
second, an alternative to the first prize, was the postponement of the matter to a date
on, before or soon after 1 February 2024, to enable the parties and the cour t to be
ready on all fronts to hear the application.
[28] Before the first prize and its alternative was heard, the Senior Counsel asked
to be permitted to first deal with the application for condonation for non- compliance
with the court order dated 17 January 2024 in respect of the late filing of the applicant’s
replying affidavit which, in terms of that order, had to be delivered on or before 19th
January 2024. Life happening, the personal circumstances of the Advocate assigned
to finalise the replying affidavit on behalf of the applicants, which were beyond hi s
control, led to the applicants only serving their unsigned replying affidavit on 23
January 2024. The deponent to the applicant’s replying affidavit, Mr Julius Sello
Malema MP, was in Ghana on 23 January 2024. The applicants’ representatives only
received his signed copy at 16h15, upon his return on 24 January 2024 and
immediately served it on the respondents’ representatives. As it was after court hours,
the applicants’ correspondence attorneys were only able to file the signed affidavit at
court on 25 January 2024. The unsigned replying affidavit was served two days late
and filed five days late. It was the applicants’ case that they would be greatly prejudiced
should the court not condone the late filing of their replying affidavit. The MP’s stood
to be suspended and removed from Parliament and the information contained in the
replying affidavit was crucial. The submission was that neither the attorneys nor the
applicants themselves were overtly dilatory or mala fide, and that the non-compliance
with the agreed deadline which was made an order of court was unintentional and for
the most part unavoidable.
[29] The respondents did not oppose the condonation for the late filing of the
applicants’ answering affidavit. They abided by any order so granted, subject to two
points. The first was that some factors were be taken into consideration. The second
was that regardless of whether condonation was granted, the broader issue remained
Page 13
and that was the matter was not ripe for hearing on Monday 29 January 2024 and that
the respondents and the court were prejudiced by the non- compliance, and that the
matter should be struck from the roll. Already by 23 January 2024, when the unsigned
answering affidavit was served, Parliament would have been left only with two days
from the date of receiving it, to file their heads of arguments. Against the background
that the applicants had not had their heads of argument ready by then, and given the
nature of the issues herein, it was unfair to both the respondents and the court. Already
by 23 January 2024, the respondents alerted the applicants to these challenges, noting
that the record was then 845 pages without the applicants’ replying affidavit and heads
of arguments. On that same date, 23 January 2024, Parliament proposed to both the
applicants’ legal representatives and the Acting Judge President that the matter be
urgently case managed determining the new date for the hearing of the matter. As at
the morning of Thursday 25 January 2024, two court days before the hearing on
Monday 29 January 2024, the court had not yet received the applicant’s replying
affidavit, the applicants’ heads of argument and the respondents’ head of arguments.
The applicants only served the condonation application on Friday 26 February 2024 at
16H00, after an electronic attempt failed at 11h40. The respondent had to prepare and
deliver its affidavit over the weekend, in anticipation of the hearing on Monday. The
condonation application did not provide a time by which the respondents were to file
their answering affidavit and only dealt with the lateness of the replying affidavit and
not the heads of argument. The heads of argument served at 23h22 on Friday 26
January 2024 were 66 pages and dealt with the entire case and did not explain why
they were filed five court days late and just before midnight of the Friday before a
Monday hearing.
[30] The respondents submitted that the late filing of the replying affidavit, the
heads of argument and the condonation application prejudiced Parliament in that it
was given inadequate time to consider the replying affidavit and the heads of
arguments, to draft the respondents’ heads of argument and to respond to the
condonation application and to prepare for hearing given this matter’s complexity and
potential serious consequences for the business of Parliament. It was the respondents’
case that the court was prejudiced in the same way and that moreover the court did
not have Parliament’s heads of argument at all as the applicants’ filed their heads of
Page 14
argument so late that Parliament did not have time to file its heads and that even if
Parliament had been able to file heads of argument the court would only have received
them on the day of the hearing. If the matter was heard, whether interim relief of f inal
relief, on 29 January 2024, it will not be a fair hearing as Parliament and the court
would have been denied adequate time to be ready. The respondents’ case was that
the applicants’ late filing of their replying affidavit and heads of argument had materially
prejudiced both the respondents and the court. The respondents argued that the matter
be struck off the roll. The matter was not ready to proceed on the merits.
[31] In Member of the Executive Council for Health and Social Development of the
Gauteng Provincial Government v Motubatse and Another (182/2021) [2023] ZASCA
162 (30 November 2023) at para 11 and 12 it was said:
“[11] With regard to the explanations for the delays on behalf of the MEC, there is no
doubt that they are far from satisfactory. They are excessive, and the explanations
therefor are woefully inadequate. The ignorance of the rules and procedures of this
Court for failing to timeously file the record and the heads of argument, is no excuse.
Counsel for the MEC was hard-pressed to concede that the non-compliance with the
rules of Court were excessive, and the explanations for non-compliance were
inadequate. This is indicative of a disturbing pattern regard being had to the instances
in the high which led to her defence being struck out. Ordinarily, on these facts, that
would be the end of the matter.
“It is trite that good prospects on the merits may compensate for poor explanation for
the delay.”
In United Plant Hire (Pty) Ltd v Hills and Others 1976 (1) SA 717 (A) at 720E-G it was
said:
“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 therefore,
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.
Page 15
These factors are not individually decisive but are interrelated and must be weighed
one against the other, thus a slight delay and a good explanation may help to
compensate for prospects of success which are not strong.”
In Darries v Sheriff of the Magistrate’s Court Wynberg and Another 1998 (3) SA 34 at
40G-41D it was said:
“The number of petitions for condonation of failure to comply with the rules of this Court,
particularly in recent times, is a matter for grave concern. The reported decisions show
that the circumstances which have led to the need for applications for condonation of
breaches of the rules have varied widely. But the factors which weigh with the Court
are factors which have been consistently applied and frequently restated. See
Federated Employers Fire and General Insurance Co Ltd and Another v McKenzie
1969 (3) SA 360 (A) at 362 F-H; United Plant Hire (Pty) Ltd v Hills and Others 1976 (1)
SA 717 (A) at 720 E -G. I will content myself with referring, for present purposes, only
to factors which the circumstances of this case suggest should be repeated.
Condonation of the non -observance of the Rules of this Court is not a mere formality
(see Meintjies v H D Combrinck (Edms) Bpk 1961 (1) SA 262 (A) 263H-264B; Saloojee
and Another NN.O. v Minister of Community Development 1965 (2) SA 135 (A) 138 E-
F.
In all cases some acceptable explanation, not only of, for example, the delay in noting
an appeal, but also, where this is the case, any delay in seeking condonation, must be
given. An appellant should whenever he realises that he has not complied with a r ule
of court apply for condonation as soon as possible. See Commisioner for Inland
Revenue v Burger 1956 (4) SA 446 (A) at 449 F-H; Meintjies's case, supra, at 264 B;
Saloojee's case, supra, at 138 H. Nor should it simply be assumed that where non-
compliance was due entirely to the neglect of the appellant's attorney that condonation
will be granted. See Saloojee's case, supra, at 141 B-G. In applications of this sort the
appellants' prospects of success are in general an important though not decisive
consideration. When application is made for condonation it is advisable that the petition
should set forth briefly and succinctly such essential information as may enable the
court to assess the appellant's prospects of success. See Meintjies's case, supra, at
265 C-E; Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) at 131 E-F; Moraliswani
v Mamili 1989 (4) SA 1 (A) at 10 E. But appellant's prospect of success is but one of
the factors relevant to the exercise of the court's discretion, unless the cumulative effect
Page 16
of the other relevant factors in the case is such as to render the application for
condonation obviously unworthy of consideration. Where non-observance of the rules
has been flagrant and gross an application for condonation should not be granted,
whatever the prospects of success might be. See Ferreira v Ntshingila 1990 (4) SA 271
(A) at 281 J - 282 A; Moraliswani v Mamili, supra, at 10 F; Rennie v Kamby Farms (Pty)
Ltd (supra, at 131 H; Blumenthal and Another v Thomson NO and Another [1993]
ZASCA 190; 1994 (2) SA 118 (A) at 1211 - 11 122 B.”
In Valor IT v Premier, North West Province and Others (322/19) [2020] ZASCA 62;
[2020] 3 All SA 397 (SCA); 2021 (1) SA 42 (SCA) (9 June 2020) it was said:
“[38] One of the factors that must be considered whenever condonation is sought is the
applicant’s prospects of success on the merits. It must be borne in mind that the grant or
refusal of condonation is not a mechanical process but one that involves the balancing
of often competing factors. So, for instance, very weak prospects of success may not off-
set a full, complete and satisfactory explanation for a delay; while strong prospects of
success may excuse an inadequate explanation for the delay (to a point).”
[32] The applicants raised novel and complex constitutional issues and the relief, if
granted in the terms sought in the interim relief which is the main prize for the
applicants for now, would have serious consequences for Parliament. Both parties
therefore needed to deal with the issues raised comprehensively, and the court needed
to consider and formulate an appropriate response. Parliament did not agree to interim
relief as according to them that would almost certainly defeat the purpose of the
sanction that Parliament had imposed on the applicants. The applicants insist on their
right according to them peacefully and unarmed, to assemble, to demonstrate, to picket
and to present petitions even where the sole business of the day was the State of the
Nation address by the President of the Republic of South Africa, in circumstances
where the opposing respondents amongst others allege that the applicants deliberately
created and took part in a serious disturbance, disorder and disruption in the joint sitting
of Parliament, and acted in a manner which was seriously detrimental to the dignity,
decorum and orderly procedure of Parliament. The applicants allege that the real
intention was to prevent the Economic Freedom Fighters (EFF) from expressing its
views against the President.
Page 17
[33] In paragraphs 214 to 215 of the application the applicants said the following:
“URGENCY AND INTERIM RELIEF
[214] We have requested that this matter be heard as one of semi -urgency and that it
be placed on the roll for January 2024.
[215] The semi-urgency is a result of our suspension which is set to commence on 1
February 2024. If the application cannot be heard before 1 February 2024, the EFF
shall ask for an interim order for the suspension of the coming into operation of the
sanction, until the matter can be heard.”
In para 324 to 325, the respondents’ answer hereto is:
“Ad paras 214-5
324. Parliament does not object to an urgent determination of this application, on 18
January 2024, or on another date determined by the court.
325. I deny that the Applicants are entitled to come to court for final relief, and then
seek interim relief in the alternative. They must choose a horse and ride it.”
[34] The parties are agreed that the matter deserved the urgent attention of this
court. It is against this background that I understood the lapses in the punctuality of
both parties to adhere to time frames, in their respective earnest quest to have this
matter dealt with preferably before the State of the Nation address 2024, scheduled
for 8 February 2024. There were delays, but I am not persuaded that the explanation
for the delay in the filing of the replying affidavit is woefully inadequate such that it
should lead to the refusal of the condonation application. The degree of non-
compliance with the time for the filing of the replying affidavit was not excessive. There
is no doubt that this case is important for our constitutional democracy and the sanctity
of its institutions, especially Parliament and its committees. The avoidance of
unnecessary delay in the hearing of this important matter of public interest is a factor
that needed to be considered. Where the delay is slight and the explanation good, the
scales of justice tilted in favour of the applicant.
[35] I appreciate that the notice of motion placed the entirety of the application
before the court. At the commencement of the hearing, the approach adopted as I
understood the applicants’ Senior Counsel, was to narrow down the relief sought for
Page 18
29 January 2024. The applicants, as dominus litis, had not yet addressed the court on
its relief which it indicated it sought for 29 January 2024. The applicants only dealt with
their application for condonation for the filing of their replying affidavit. My
understanding was that it was after the decision on whether the affidavit was admitted
or not, that they would have commenced their submissions on their narrowed relief for
29 January 2024. It would have been apposite to consider whether the application was
ripe for hearing when the applicants dealt with their submission on their first prize or
its alternative of a postponement to a truncated date. In my view, the call for the striking
of the application from the roll by the respondents was simply premature.
[36] In fairness to both sides, upon consideration of all these factors, in exercising
my judicial discretion, I would make the following order:
1. Condonation for the late filing of the applicants’ replying affidavit is
granted.
2. The parties are called upon to address the court on the question of
costs, as well as the further conduct of the matter.
…………………………………………..
D M Thulare
Judge of the High Court
Counsel for Applicants Adv Tembeka Ngcukaitobi SC &
Adv Kameel Premhid
Attorneys for Applicant Ian Levitt Attorneys
Counsel for 1st, 2nd, 3rd Adv Adiel Nacerodien &
& 6th Respondents Adv Michael Bishop
Attorneys for Respondent The State Attorney, Cape Town