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2024
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[2024] ZAFSHC 23
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Moqolo and Others v African National Congress (A118/2023) [2024] ZAFSHC 23 (1 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
case no:
A118/2023
Case
no:
1852/2023
In
the appeal of
:
LEHLOHONOLO
MOQOLO
1
st
Appellant
PATRICK
MONYAKOANA
2
nd
Appellant
MAKOA
CHRISTOPHEL
LELALA
3
rd
Appellant
MAPASEKA
MOTHIBI-NKOANE
4
th
Appellant
CHABELI
FRANK
RAMPAI
5
th
Appellant
PUSELETSO
LETICIA
SELEKE
6
th
Appellant
MPHO
MOKOAKOA
7
th
Appellant
and
THE
AFRICAN NATIONAL
CONGRESS
Respondent
CORAM:
JP DAFFUE, C REINDERS
& PJ LOUBSER JJ
HEARD
ON:
26 JANUARY 2024
DELIVERED
ON:
01 FEBRUARY 2024
JUDGMENT
BY:
JP DAFFUE J
ORDER
1.
The appeal is dismissed with costs.
JUDGMENT
Introduction
[1]
This is an appeal to the full court of the Free State Division of the
High Court
with leave of the court
a quo
. The appellants are
seven disgruntled former members of the African National Congress
(the ANC). The appeal emanates from a rule
nisi
issued on 14
April 2023 by Van Rhyn J on an urgent basis, the rule
nisi
having
been confirmed by Molitsoane J on 23 June 2023.
The
parties
[2]
The seven appellants, they being the unsuccessful respondents in the
court
a quo,
are Lehlohonolo Moqolo, Patrick Monyakoana, Makoa
Christophel Lelala, Mapaseka Mothibi-Nkoane, Chabeli Frank Rampai,
Puseletso
Leticia Seleke and Mpho Mokoakoa. They are former members
of the ANC and former municipal councillors of the Mangaung
Metropolitan
Municipality. I shall refer to them as the appellants
herein, save insofar as I need to deal with specific individuals.
[3]
The respondent and successful applicant in the court
a quo
is
the ANC, a political party and voluntary association with legal
personality, duly constituted and assembled as such, having adopted
its amended Constitution.
The
rule nisi of 14 April 2023 and its confirmation
[4]
The operative part of the order granted on 14 April 2023, reads as
follows:
‘
3.
A rule
nisi
do issue, returnable on Thursday,
18 May 2023
,
in terms of which the Respondents are called upon to show cause, if
any, why the following order shouldn’t be made final:
3.1.1
The Respondents are interdicted and restrained from in any way
further acting as Councillors of the
Mangaung Metropolitan
Municipality;
3.1.2
The Respondents are further interdicted and restrained from
performing any associated function germane
and/or related to the
holding of a position of a Councillor of the Mangaung Metropolitan
Municipality;
3.1.3
The Respondents are interdicted and restrained from attending the
Mangaung Metropolitan Municipality
council scheduled meeting for 14
April 2023, in any capacity whatsoever and to perform any actions
associated with the holding
a Council seat at said meeting;
3.1.4
The Respondents shall pay the costs of this application on the scale
as between attorney and client.’
[5]
On the extended return date of the rule
nisi
the matter was
heard by Molitsoane J. In addition to their opposition of the relief
sought in the main application, the appellants,
cited as respondents
in the court
a quo
, also filed a counter-application wherein
they sought the review and setting aside of the decision by the ANC’s
Interim Regional
Disciplinary Committee: Mangaung (the Regional
Disciplinary Committee) to expel them during June 2022.
[6]
At the onset of the proceedings before Molitsoane J the appellants
sought leave
to withdraw their counter-application. No arguments were
presented pertaining to the counter-application and after hearing
argument
on the main application the learned judge issued the
following orders:
‘
1.
The respondents (the appellants in this appeal) are hereby granted
leave to withdraw
the counterapplication.
2.
The respondents are ordered to pay the costs occasioned by the
withdrawal of
the counterapplication.
3.
The costs aforementioned shall include the costs occasioned by
employment of
two counsels (sic).
4.
The interim order granted on 14 April 2023 is confirmed with costs
which include
the costs occasioned by employment of two counsels
(sic).’
The
application for leave to appeal
[7]
Immediately after the judgment of the court
a quo
was handed
down, and in open court, the appellants sought leave to appeal. Their
counsel, Mr Gilliland, relied on four grounds
of appeal as is
apparent from his oral address which was transcribed and forms part
of the record before us. These were the following:
a.
The importance of the matter, the fact that by-elections had
by then
been published to be held in July (the next month), that the
appellants intended to approach the court to interdict the
by-elections and that ‘they had already filed application to
review the proceedings by the Regional Branch Committee, the
disciplinary committee.’ Mr Gilliland submitted that in the
event of a successful review application, the expulsion of the
appellants would fall away.
b.
The second ground of appeal was based on the ANC’s
non-compliance
with rule 25.10 of its Constitution insofar as the
Regional Disciplinary Committee continued with disciplinary
proceedings against
the appellants without written authorisation as
provided for in this sub-rule. The court
a quo
was blamed for
not addressing this issue in its judgment, but instead relying on a
case not advanced by the ANC.
c.
The third ground of appeal, in line with the second ground of
appeal,
was that, objectively viewed, the written authority required by rule
25.10 had not been provided; consequently, the appellants’
expulsion was unlawful as the proceedings were not in accordance with
the ANC’s Constitution.
d.
Fourthly, the appellants relied on the fact that Mr Motsoeneng,
who
presented
viva voce
evidence on behalf of the ANC in support
of the urgent application, failed to comply with the onerous duty of
full disclosure expected
of litigants in
ex parte
applications.
[8]
The court
a quo
was not persuaded by the grounds of appeal and
Mr Gilliland’s submissions thereabout. It specifically made the
point that
the court was not called upon to decide on the legality of
the appellants’ expulsion as they had withdrawn the
counter-application.
It also accepted that, as found in its judgment
in the main application, the decision of the Regional Disciplinary
Committee was
final and binding. However, the court
a quo
was
of the view that ‘another court may come to a different
finding’ insofar as the appellants continued to serve as
municipal councillors under the ANC banner for about ten months after
their expulsion until April 2023.
Preliminary
issues
[9]
Before I deal with the submissions of the parties in respect of the
merits
and possible mootness of the appeal, I need to raise two
preliminary issues:
a.
On being allocated the appeal I noticed that although the heads
of
argument of both parties were due by then, they had failed to comply
with this requirement. I immediately made enquiries by
email
whereupon heads of argument as well as condonation applications were
filed. The parties are
ad idem
that condonation should be
granted to them in order to ensure that the matter is finalised.
Although the late filing should be
deplored, little inconvenience was
caused. Consequently, the reasons for the late filing were accepted
and condonation was granted
to both parties.
b.
The ANC filed an application for leave to adduce further evidence
on
23 January 2023, ie a mere three days before the hearing of the
appeal. The main purpose of the evidence that it sought to adduce
was
to prove that the appeal has become moot. Before I could ask Mr
Grobler to make submissions pertaining to this application
on behalf
of the ANC, Mr Gilliland on behalf of the appellants took the floor
and made concessions which he submitted for all practical
purposes
caused the ANC’s application to become redundant. He also
confirmed that even if the further evidence was to be
admitted, the
appellants could not be prejudiced. Mr Grobler insisted that the
application be granted. Having considered the matter,
leave was
granted to the ANC to adduce the further evidence as contained in the
affidavit annexed to its application.
Mootness
[10]
The issue of mootness is in essence intertwined with the merits of
the appeal, but it is
apposite to deal with possible mootness of the
appeal at first.
Section 16(2)(a)(i)
of the
Superior Courts Act 10 of
2013
reads as follows:
‘
When
at the hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect or result,
the appeal
may be dismissed on this ground alone.’
[11]
Bearing in mind Mr Gilliland’s concessions and the further
evidence produced on behalf
of the ANC, it is now common cause that
by-elections were indeed held in the Mangaung Metropolitan
Municipality to fill the vacancies
occasioned by the orders of the
court
a quo
. The former ANC ward councillors, Lehlohonolo
Moqolo, Makoa Christophel Lelala, Chabeli Frank Rampai and Mpho
Mokoakoa, respectively
the first, third, fifth and seventh
appellants, unsuccessfully stood as individual candidates during
these by-elections. The other
three appellants represented the ANC as
proportionate representatives, the so-called PR councillors. It was
already recorded in
paragraph 3.2.3 of the appellants’
answering affidavit that the PR councillors had been replaced by
others at the time when
the answering affidavit was deposed to. I
take cognisance of the fact that the reference in this paragraph is
to second, third
and fifth respondents which is apparently incorrect
insofar as it should be to second, fourth and sixth respondents, they
being
respectively Patrick Monyakoana, Mapaseka Mothibi-Nkoane and
Puseletso Leticia Seleke. Whatever the situation, it is now common
cause that the vacancies in respect of the PR councillors were filled
in line with item 18 of Schedule 1 of the
Local Government: Municipal
Structures Act 117 of 1998
, whilst the remainder of the appellants –
the previous ward councillors - were out-voted during the
by-elections. Therefore,
the vacancies that occurred after the
appellants’ expulsion from the ANC have been filled by other
ANC members.
[12]
Notwithstanding the common cause facts set out in the previous
paragraph, Mr Gilliland
submitted that the appeal was not moot. He
submitted that the appellants would be interdicted
ad infinitum
from ever becoming municipal councillors of the Mangaung Metropolitan
Municipality, bearing in mind the permanency of the interdict
as it
stands. I do not agree. The interdict was obtained based on the facts
presented to the court
a quo
. In accordance with the accepted
facts the appellants were no longer members of the ANC due to their
expulsion and consequently,
they were not entitled to remain in their
positions of municipal councillors. I do not have to speculate, but
much may change in
future. The appellants may decide to review the
decision taken against them in the hope to restore their membership
with the ANC.
A new ANC leadership may in future be inclined to
accept the appellants as members of the ANC and deploy them to
whatever positions
it may require them to fill.
[13]
Although much criticism may be levelled at the manner in which the
application was presented
in the first place in order to obtain an
urgent interdict, as well as the failure of the ANC to immediately
act upon the sanction
of expulsion imposed by its Regional
Disciplinary Committee, the decision sought by the appellants will
have no practical effect
or result. Even if the appeal is to succeed,
the meeting of 14 April 2023 has come and gone. Furthermore, the
appellants’
positions in the Municipal Council have been filled
and there is just no way in which they can now claim to act as
councillors
and/or perform any associated functions germane or
related to the holding of positions of councillors of the Mangaung
Metropolitan
Municipality. The horse has bolted, or put differently,
the egg cannot be unscrambled.
[14]
I am satisfied that the decision sought by the appellants will have
no practical effect
or result and consequently, the appeal should be
dismissed on this ground alone.
The
merits of the appeal
[15]
Insofar as
the merits play a role in the adjudication of this appeal, I take
cognisance of the fact that just as the ANC as the
legal entity is
subject to its own Constitution, so is every member thereof. The
Constitutional Court stated the following in respect
of the rights
and obligations of political parties and their members in
Ramakatsa
and Others v Magashule and Others
[1]
:
‘
I
do not think that the Constitution could have contemplated political
parties could act unlawfully. On a broad purposive construction,
I
would hold that the right to participate in the activities of a
political party confers on every political party the duty to
act
lawfully and in accordance with its own constitution. This means that
our Constitution gives every member of every political
party the
right to exact compliance with the constitution of a political party
by the leadership of that party.’
Relying
on the aforesaid
dictum
of the Constitutional Court, the Supreme Court of Appeal reiterated
in
Ramakatsa
and Others v African National Congress and Another
[2]
‘that the ANC just like other political parties, is under an
obligation to act in accordance with its own Constitution.’
[16]
There is uncertainty as to whether the Regional Disciplinary
Committee merely recommended
that the appellants be expelled, or
whether it in fact expelled them. The decision never surfaced
ex
facie
the record in these appeal proceedings, neither during the
proceedings when urgent relief was sought, nor at any stage
thereafter.
I have scrutinised the ANC’s Constitution, but
could not find any option allowing a Disciplinary Committee to
recommend a
sanction, instead of imposing a sanction. I refer in this
instance to rule 61 of appendix 3 of the ANC’s Constitution
stating
as follows:
‘
If
a charged member is found guilty, such ruling shall include a
sanction as provided for in the ANC Constitution’.
‘
Sanction’
is not defined in the definitions of the ANC Constitution, but rule
25.21, read with rule 25.34 provides sufficient
clarity. Rule 25.21
reads as follows:
‘
Where
the NDC acts as disciplinary tribunal of first instance, it shall
have the competence to impose the following sanctions:
25.21.1
a fine;
25.21.2
a reprimand;
25.21.3
payment of compensation;
25.21.4
performance of useful tasks;
25.21.5
remedial action;
25.21.6
suspension of membership;
25.21.7
expulsion from the ANC;
25.21.8
in the case of an office bearer, removal or suspension from office;
25.21.9
in the case of a public representative, cancellation or suspension of
his or her contract of deployment and/or
removal from any list or
instrument which entitles such person to represent the ANC at any
level of government; and
25.21.10
A combination of sanctions set out in 25.21.1 to 25.21.6 above.’
Rule
25.34 provides that rule 25.21
mutatis mutandis
applies to a
Regional Disciplinary Committee. Therefore, no provision is made in
the Constitution for a Disciplinary Committee
to merely recommend any
sanction.
[17]
It is common cause that there is no review or appeal pending against
the decision of the
Regional Disciplinary Committee. Consequently,
the appellants’ reliance on non-compliance with rule 25.10 of
the ANC’s
Constitution is immaterial. Neither the court
a
quo,
nor this court was called upon to adjudicate that issue,
bearing in mind the withdrawal of the counter-application and the
internal
processes that the appellants were supposed to follow in
accordance with the ANC’s Constitution.
[18]
Mr Gilliland also submitted that in the absence of the appellants’
review and/or
appeal of the Regional Disciplinary Committee’s
decision, the matter had not been elevated to a review or appeal
body. Therefore,
the ANC’s Provincial Executive Committee could
not ratify such decision on 30 March 2023 as Mr Motsoeneng testified
under
oath. The ANC correctly conceded this in paragraphs 13 to 15 of
the replying affidavit, the reason being that the ANC’s
Constitution
does not provide for such a ratification process. Be
that as it may, the letter of 30 March 2023 was written by Mr
Motsoeneng as
Provincial Secretary of the Provincial Executive
Committee and not in his capacity as a member of the Provincial
Disciplinary Committee.
[19]
Mr Gilliland quoted paragraph 8.8 of the answering affidavit fully.
It is accordingly apposite
to do so as well. It reads as follows:
‘
It
is necessary to direct the Honourable Court’s notice to the
fact that the 2022 disciplinary proceedings that are referred
to
hereunder were held by the ANC’s Interim Regional Disciplinary
Committee: Mangaung, who, in terms of the ANC’s Constitution,
should recommend a sanction to the ANC’s Provincial Executive
who may, amongst other, concur with the recommendation. The
sanction,
if any, that is then imposed is considered to be imposed by the
Provincial Executive.’
I
have already indicated above that the ANC’s Constitution does
not make provision for such a procedure. However, even if
the
Regional Disciplinary Committee did make a mere recommendation to
expel, the appellants were still duty-bound to appeal and/or
review
that decision which they failed to do.
[20]
On 5 April 2023 the appellants filed notices to appeal to the ANC’s
National Disciplinary
Committee (the NDC). They did this apparently
after being informed on 30 March 2023 that the Provincial Executive
Committee had
ratified a decision to expel them as members of the
ANC. Yet, in their notices to appeal they alleged that ‘the
termination
of [their] membership is based on recommendations made by
the Mangaung Interim Regional Committee (‘IRC’).’
Further
on, they alleged that this committee’s ‘entire
disciplinary process…and a sanction for expulsion are regarded
as constitutionally flawed and null and void.’ They had no
right to appeal to the NDC. The ANC’s Constitution is clear.
They should have appealed to the Provincial Disciplinary Committee as
provided for in rule 25.33, read with rule 25.35 which they
failed to
do. The appellants were expelled on their own version and they remain
expelled as they failed to take the appropriate
steps provided for in
the ANC’s Constitution.
[21]
It is emphasised that the appellants did not apply to interdict the
by-elections referred
to in the first ground of appeal relied upon
and although a review application had apparently been prepared
earlier, they decided
not to proceed therewith.
[22]
Cognisance may be taken of the ANC’s failure to act immediately
upon the sanction
of expulsion by the Regional Disciplinary
Committee, if it was indeed an expulsion and not merely a
recommendation. The appellants
did not rely as a defence on the ANC’s
abandonment of rights or their legitimate expectation that their ANC
membership would
not be terminated notwithstanding their expulsion
insofar as they were allowed to participate as councillors
thereafter. The court
a quo
granted leave to appeal as
mentioned above based on supplementary heads of argument filed by the
appellants whilst the initial
grounds of appeal referred to earlier
herein did not cater for either of the two defences. What is
clear from the record
is that uncertainty was created. I refer in
this regard to a letter dated 2 August 2022 by a certain Nompondo, an
ANC official,
who suggested that the Regional Disciplinary
Committee’s disciplinary process was flawed. Also, there was a
belief that ratification
was required, which was later conceded to be
incorrect. Mr Gilliland placed it on record as mentioned above that
the appellants
had already filed an application to review the
Regional Disciplinary Committee’s process by the time he argued
the application
for leave to appeal. There is nothing on the record
to show when this review application was issued and/or when was it
withdrawn.
I do not believe that all relevant facts have been placed
on record by both parties in this regard. Also, full legal argument
with
reference to relevant authority was not advanced to us and in
the circumstances there is no need to deal with these aspects any
further.
[23]
I am satisfied that the court
a quo
acted correctly in
confirming the rule
nisi
issued on 14 April 2023. The ANC had
met the threshold for the granting of a final interdict. Save for the
submissions dealt with
herein, Mr Gilliland did not try to convince
us to the contrary. Bearing in mind the merits of the appeal, no
proper grounds have
been pleaded for the appeal to succeed and it
should be dismissed.
[24]
Consequently, the following order is granted:
1.
The appeal is dismissed with costs.
_______________________
JP
DAFFUE J
I
concur
_______________________
C
REINDERS J
I
concur
_______________________
PJ
LOUBSER J
On
behalf of the Appellants: Adv JG Gilliland
Instructed
by:Noordmans Attorneys
BLOEMFONTEIN
On
behalf of the Respondent: Advv S Grobler SC
and TM Ngubeni
Instructed
by: SMO Seobe Attorneys Inc
BLOEMFONTEIN
[1]
[2012] ZACC 31
;
2013 (2) BCLR 202
(CC) para 16.
[2]
(Case No. 724/2019) [2021] ZASCA (31 March 2021) para 11.