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2023
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[2023] ZAFSHC 180
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African National Congress v Moqolo and Others (1852/2023) [2023] ZAFSHC 180 (12 May 2023)
IN THE HIGH
COURT OF SOUTH AFRICA
FREE STATE
DIVISION
,
BLOEMFONTEIN
Application
number: 1852/2023
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE
TO MAGISTRATES: YES/NO
In
the application between:
THE
AFRICAN NATIONAL CONGRESS
Applicant
and
LEHLOHONOLO
MOQOLO
1
st
Respondent
PATRICK
MONYAKOANA
2
nd
Respondent
MAPASEKA
MOTHIBI-NKOANE
3
rd
Respondent
CHABELI
FRANK RAMPAI
4
th
Respondent
PUSELETSO
LETICIA SELEKE
5
th
Respondent
MPHO
MOKOAKOA
6
th
Respondent
MARYKE
DAVIES
7
th
Respondent
CORAM:
VANZYL, J
HEARD
ON:
26
APRIL 2023
DELIVERED
ON:
12
MAY 2023
[1] This
is an application in terms whereof the respondents are called upon to
show cause, if
any, why they should not be found guilty of contempt
of court, together with auxiliary relief, in relation to the
interdict order
issued by Van Rhyn, J on 14 April 2023 under the
above case number. The application was brought on an urgent basis,
for which condonation
is being sought in terms of prayer 1 of the
Notice of Motion.
[2] At
the time of the hearing of the application, Mr Grobler, assisted by
Ms Ngubeni, who appeared
on behalf of the applicant, indicated that
although there was no appearance on behalf of the first to sixth
respondents, the applicant
and the first to sixth respondents have
agreed that the application, in so far as the first to sixth
respondents are concerned,
be postponed for hearing to Thursday, 25
May 2023. Mr Grabler consequently requested that an order be made
accordingly.
[3] The
answering affidavit of the seventh respondent in opposition to the
relief sought against
the seventh respondent, had been filed on 24
April 2023 and consequently served before me during the hearing of
the application.
Mr Benade appeared on behalf of the seventh
respondent.
[4]
Mr
Grobler indicated that considering
the substantive averments contained in the seventh respondent's
answering affidavit, the applicant
is requesting an opportunity to
file a replying affidavit in response thereto. Mr Grabler
consequently requested that the application
against the seventh
respondent also be postponed for hearing to 25 May 2023.
[5] Without
going into the details thereof, it is to be indicated that I raised
the following
two issues:
1. The
urgency and/or the degree of urgency of the application.
2. The
fact that a contempt of court order is being sought against the
seventh respondent
who was not cited as a party in the proceedings
which served before Van Rhyn, J and that the interdict order was
consequently not
made against the seventh respondent.
[6] Both
Mr Grabler and Mr Benade addressed me shortly on the aforesaid two
issues. At the time
I was considering the option of adjudicating the
urgency and/or the merits of the application in relation to the
seventh respondent
in order to prevent a situation where the seventh
respondent is to be "dragged along" in the application in
circumstances
where it may eventually be found that the application
against her was fatally defective from the inception thereof.
[7] Mr
Grabler urged me not to deal with the application in a piecemeal
manner, but to grant
the applicant an opportunity to file a replying
affidavit in response to the seventh respondent's answering
affidavit. He submitted
that the proposed replying affidavit may
contain essential averments in response to the substantive
allegations made by the seventh
respondent, which may have a crucial
impact on the merits and on the outcome of the application against
the seventh respondent.
[8] In
the alternative, in view of the fact that I was considering
adjudicating the urgency and/or
the merits of the application in
relation to the seventh respondent on the papers as they stood at the
time, Mr Grabler requested
that the applicant at least be granted an
opportunity to file short heads of argument pertaining to the
question whether the relief
which is being sought against the seventh
respondent is competent in the abovementioned circumstances. I
consequently granted both
the applicant and the seventh respondent
leave to file such heads of argument, which both parties duly filed
on 28 April 2023 as
agreed in court.
[9] I
requested the parties to agree upon dates for purposes of a
postponement of the application
and the filing of further papers,
should I conclude that leave is to be granted to the applicant to
file a replying affidavit,
as requested by Mr Grabler.
[10] I
duly considered the contents of the papers as they served before me
on 26 April 2023, in conjunction with
counsels' oral arguments. I
have also given due consideration to the arguments advanced in the
applicant's and seventh respondent's
respective heads of argument. It
became evident to me that considering the essential and substantive
nature of the allegations
made by the seventh respondent in her
answering affidavit, it would be in the interest of justice that the
applicant indeed be
granted an opportunity to file a replying
affidavit thereto so that all relevant facts and circumstances can
serve before court,
duly ventilated, in order to ensure a proper
adjudication of the application.
[11] I
consequently intend to grant the applicant leave to file a replying
affidavit in response to the seventh
respondent's answering affidavit
and to postpone the totality of the application to 25 May 2023, being
the date agreed upon between
the applicant and the first to sixth
respondents. Mr Benade, upon my enquiry pertaining to a suitable date
should I decide to postpone
the application in relation to the
seventh respondent as well, indicated that the date of 25 May 2023
will also suit him.
[12] The
date as agreed between the applicant and the seventh respondent for
the filing of the replying affidavit,
should I grant leave thereto,
has since passed. I, however, accept that the parties would be able
to agree to a new date for purposes
thereof.
[13] A
further aspect which I raised during the hearing of the application,
is the necessity, or not, for the applicant
to file a transcribed
record of the proceedings which served before Van Rhyn, J on 14 April
2023, since the
viva voce
evidence
which were presented constituted the basis upon which Van Rhyn, J
granted the interdict order relevant to the present application.
In
my view it is not only custom that a transcribed record of such
evidence is to be filed by the applicant in circumstances where
viva
voce
evidence was presented, but it
is also essential. The
viva voce
evidence was presented in the stead
of a founding affidavit and consequently there has to be a
transcribed record thereof. I therefore
intend also making an order
in this regard.
[14]
I deem it necessary to specifically record that I have not determined
the issue of condonation as prayed for in
prayer 1 of the Notice of
Motion. In my view it wilI be proper for the next court to adjudicate
upon the said issue when all the
papers have been filed.
[15]
I wish to also pertinently record that nothing contained in this
judgment is to be seen or considered to be an expression
of my
opinion or view regarding the urgency and/or merits of the
application.
[16]
Considering all the aforesaid facts and circumstances and the order I
am to make, I deem it appropriate that the costs
of 26 April 2023
stand over for later adjudication.
Order:
[17]
The following order is consequently made:
1. The
totality of the application, hence against the first to seventh
respondents, is
postponed for hearing to Thursday, 25 May 2023.
2. Leave
is granted to the applicant to file a replying affidavit in response
to the answering
affidavit filed by the seventh respondent.
3. The
applicant is ordered to forthwith file a transcribed record of the
proceedings under
case number 1852/2023, which served before Van
Rhyn, Jon 14 April 2023.
4. The
costs of 26 April 2023 stand over for later adjudication.
C.
VAN ZYL, J
On
behalf of the applicant:
Adv.
S. Grobler SC
Assisted
by
:
Adv.
T. Ngubeni
Instructed
by
:
SMO
Seobe Attorneys Inc
BLOEMFONTEIN
On
behalf of the 7
th
respondent:
Adv.
H.J.
Benade
I
nstructed
by
: Symington
& De Kok
BLOEMFONTEIN