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2024
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[2024] ZAFSHC 30
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Independent South African National Civic Association v Ramosie (3583/2023) [2024] ZAFSHC 30 (5 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
3583/2023
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In the matter between:
INDEPENDENT
SOUTH AFRICAN
NATIONAL CIVIC
ASSOCIATION
and
BAKOENA STEPHEN
RAMOSIE
APPLICANT
RESPONDENT
In
re:
INDEPENDENT
SOUTH AFRICAN
NATIONAL CIVIC
ASSOCIATION (ISANCO)
AND
INDEPENDENT
ELECTRORAL COMMISSION (IEC)
APPLICANT
RESPONDENT
JUDGMENT
BY:
MOLITSOANE,
J
HEARD
ON:
2
November 2023
DELIVERED
ON:
5
February 2024
[1]
“
In
this matter a picture emerges of a distasteful pursuit of position
and power, resulting in serious in-fighting amongst national
office
bearers, who are senior members of the applicant. It emerged from the
papers that there have been several High Court applications
made by
Ramosie and the first respondent (Dr Luyenge) in the name of the
applicant, in the Eastern Cape and in the Free State,
all with the
aim of each party attempting to oust the other, or other members of
the applicant.”
[1]
The
remarks by my sister Naidoo J, made about six months ago with
reference to Dr Ramosie and Dr Luyenge still hold true to their
claim
in ISANCO. The pursuit of position, power and attempt to oust each
other continues unabated in these proceedings. The end
result is
that, the authority of each party, like in this case, to represent
the Applicant or bring any legal proceedings is challenged.
[2]
In these proceedings the applicant seeks in essence rescission of an
order of this
Court granted on 27 July 2023 by my sister Reinders J.
Looking at this application and the order of Reinders J, the anomaly
becomes
apparent. In the main application before Reinders J, in which
Ramosie deposed to an affidavit, the Applicant is cited as ISANCO.
In
these, Luyenge also deposed to a founding affidavit, both profess to
have been authorised by ISANCO. The anomaly arises on the
fact that
the Applicant sought an obtained an order which had the effect of
removing Luyenge as the party leader and its contact
as registered at
the Independent Electoral Commission. The relief sought would have
the effect of reinstating him as the party
leader and contact person
and thus rescinding the very order the applicant sought in the first
place.The reason for this lies in
the confusion of which ISANCO is
before Court; is it the one led by Luyenge or the one led by
Ramosie.
[3]
The preliminary issue in this application is whether Luyenge is
authorised to bring this application
on behalf of the applicant.
Luyenge has attached a resolution dated 2 August 2023 which according
to him authorises him to bring
these proceedings. Ramosie contends
the validity of the resolution.
[4]
Ramosie contends that he is authorised to oppose these proceedings
and his authority purports
to emanate from the meeting of the
applicant held on 9 June 2023.According to Ramosie, the Applicant
suspended Luyenge by letters
dated 29 November 2021 and 20 December
2021. He was then expelled as a leader and member on 29 December
2021, this according to
the respondent. Relying on the judgment of
the High Court in Makhanda, the respondent contends that the said
judgment noted that
Luyenge was no longer a member of the applicant.
Correspondence was also forwarded to Luyenge confirming the said
expulsion.
[5]
In my view the issue of the authority to represent ISANCO cannot be
resolved on the
papers. The papers as they stand raise serious
dispute of fact incapable of resolution on the papers. What compounds
the problem
is that Luyenge on behalf of the applicant in the
rescission application has also failed to file a replying affidavit
as ordered
by my sister Van Zyl J on 11 August 2023.
[6]
The evidence as contended in the affidavit of the respondent appears
to be that Luyenge
was expelled as a member of the applicant. In my
view, the sentiments of the Court in Makhanda as well as the
correspondence confirming
the expulsion lends suspicion that Luyenge
is no longer a member of the applicant. In the absence of a contrary
view to the answering
affidavit, I must accept evidence as contended
by the respondent. The decision to expel him has not been reviewed
and set aside.
I accordingly cannot find that he is properly
authorised in these proceedings. This application cannot succeed.
[7]
In the absence of a finding as to who is authorised to
act for the applicant in these
proceedings, it will not be correct to
give any cost order against any party herein. I accordingly make this
order:
ORDER
1.
The rule nisi granted on 11 August 2023
is discharged;
2.
There is no order as to costs.
P
E MOLITSOANE, J
On
behalf of the Applicant:
Adv.
Nonkonyane
Instructed
by:
Gcasamba
Attorneys
BLOEMFONTEIN
On
behalf of the Defendant:
Mr.
Kleingeld
Instructed
by
Kleingeld
Attorneys
BLOEMFONTEIN
[1]
Independent
South African National Civic Organization v Zukile Luyenge
(5374/2022)
[2023] ZAFSHC 249(20 June 2023)
para [13].