Brief Summary

Civil Procedure — Membership Dispute — Expulsion of member — Applicant sought to declare the expulsion of the first respondent as unlawful and to invalidate subsequent decisions made by him — First respondent alleged he was not properly notified of suspension or expulsion and claimed authority to act on behalf of the applicant — Court held that the applicant's National Management Committee had the authority to suspend and expel the first respondent in accordance with its constitution, and that the first respondent's actions post-expulsion were unlawful and void ab initio.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were a motion application in the Free State Division of the High Court, Bloemfontein, in which the applicant sought predominantly declaratory relief concerning the internal governance of a civic organisation and consequential steps flowing from that relief, including directions to the Electoral Commission of South Africa.

The applicant was the Independent South African National Civic Organisation. The principal opposing parties were the first respondent, Zukile Luyenge, who (on his version) remained the organisation’s president, and the second respondent, Molahleli Jacob Rantso, who opposed but did not file an answering affidavit. Other respondents included individuals deployed as councillors, two municipalities, a district municipality, and the Electoral Commission of South Africa.

The matter was heard on 9 February 2023 and judgment was delivered on 20 June 2023. The relief sought was rooted in alleged suspension and expulsion decisions taken internally within the applicant organisation during late 2021, and the alleged invalidity of actions taken thereafter, including purported changes to councillor deployments and party leadership/contact details reflected with the Electoral Commission.

A substantial procedural feature was a point in limine raised by the first respondent, challenging the authority of Bakoena Stephen Ramosie, the deponent to the founding affidavit, to launch the application and to depose to the affidavit on behalf of the applicant. The first respondent also relied on an earlier Free State High Court matter (case number 2830/2022) described as similar, in which an application was dismissed on the basis that Ramosie lacked authority to depose to the affidavit.

2. Material Facts

The dispute arose within the applicant organisation, with the court describing it as “essentially a dispute between two groups” within the applicant: one associated with Ramosie (the founding deponent) and the other led by the first respondent, who was described as the president of the applicant.

On the applicant’s version, a letter dated 29 November 2021 from the office of the Deputy Secretary General notified the first respondent that the National Management Committee (NMC) had resolved to suspend him with immediate effect on stated grounds. Those grounds included allegations that the first respondent had acted contrary to an NMC resolution and the organisation’s constitution by unilaterally convening a meeting in East London, despite an asserted resolution about the convening of NMC meetings and their venue. The first respondent was also notified of a disciplinary hearing scheduled for 29 December 2021 in Pietermaritzburg.

The applicant alleged that the first respondent ignored the suspension and continued acting as president. A further letter dated 20 December 2021 expanded the allegations of gross misconduct, including that the first respondent had purportedly “replaced” and “rearranged” office-bearers without mandate, misrepresented the applicant to organs of state (including the IEC and municipalities) during a period in late November to early December 2021, and colluded with third parties in conduct described as fraudulent misrepresentation of representatives. The disciplinary hearing was again stated to be set for 29 December 2021.

On 29 December 2021, according to the applicant, the first respondent failed to attend the disciplinary hearing, and a resolution was taken to expel him both as president and as a member. The applicant stated that a letter to that effect was addressed to the first respondent on that date (and transmitted to him on 6 January 2021, as recorded in the judgment). The applicant further asserted that the first respondent did not respond to the correspondence, did not challenge the decisions, and did not utilise internal review/appeal procedures allegedly available under the constitution.

In addition, the applicant alleged that the first respondent withdrew the applicant’s candidates who were holding seats in local municipalities and replaced them with his own candidates without consent or mandate from the NMC, and in breach of the constitution. The applicant contended that the replacement candidates were not members of the organisation. It further complained that the IEC continued to communicate with the municipalities and refused to reinstate the applicant’s candidates on its proportional representation list.

A number of these factual assertions were disputed. The first respondent denied that he was notified of suspension or expulsion and alleged that he was never invited to a disciplinary hearing. He maintained that he remained the president and that his actions were authorised and constitutionally compliant. He also asserted that Ramosie and the Deputy Secretary General had been expelled and were no longer members.

A further set of material facts related to authority and internal governance. The first respondent challenged Ramosie’s authority on the basis that an NMC meeting of 22 October 2022 was not properly convened or constituted and that only six members were present. The court, however, recorded that the minutes and attendance register for that meeting reflected 28 members present and that this would render the meeting quorate according to the constitutional definition of quorum (being 50% + 1 of members present as determined by the structure’s composition). The court further noted that the first respondent produced no evidence supporting the allegation that Ramosie had been expelled, while Ramosie appended a membership form in reply.

The record also reflected significant inconsistencies in competing accounts concerning meetings on 27 November 2021. The applicant relied on minutes of an NMC meeting in Pietermaritzburg on that date at which the first respondent was suspended, while the first respondent relied on minutes of a “National Consultative Meeting” held in East London on the same date in which Ramosie was reflected as attending as Secretary General. The court emphasised that these materials raised unanswered questions and contributed to its view that the matter could not be properly decided on the papers.

Finally, the court recorded that internal remedies had not been shown to have been utilised, despite constitutional provisions assigning the NMC functions to enforce discipline and mediate and settle disputes within and between structures.

3. Legal Issues

The central legal questions concerned the authority (locus standi) of the founding deponent to represent the applicant in launching the application, and whether the application could competently be resolved on the papers given the depth of internal conflict and contradictions in the evidence.

The dispute primarily involved the application of organisational constitutional provisions to contested facts, including questions about whether meetings were properly convened, whether disciplinary steps were properly taken, and whether the internal structures had validly authorised litigation. The court also confronted a broader value-laden and institutional question concerning the propriety of judicial intervention where internal constitutional mechanisms existed to resolve disputes and enforce discipline.

A further issue was whether the relief sought would entail impermissible judicial involvement in matters implicating separation of powers, given that the applicant sought orders that would effectively direct or constrain the conduct of other organs/entities of state (notably the IEC and municipalities) in relation to party leadership/contact details and councillor deployments.

Costs raised an additional issue: given that both factions purported to act in the applicant’s name, the court had to decide whether it would be appropriate for costs to be paid from the applicant’s resources, and whether any personal costs consequences were justified in light of the conduct and posture of the parties.

4. Court’s Reasoning

On the point in limine challenging authority, the court engaged with the first respondent’s contention that Ramosie lacked authority because the relevant NMC meeting of 22 October 2022 was not properly constituted and because Ramosie was allegedly expelled. The court assessed the documentary material and recorded that the minutes and attendance register reflected 28 attendees, and that this would satisfy the constitutional quorum requirement. The court treated the first respondent’s assertion of only six attendees as either an oversight or a deliberate attempt to subvert the record.

The court also considered the allegation that Ramosie was no longer a member. It noted the absence of supporting evidence from the first respondent and the presence of a membership form appended by Ramosie in reply. Against that background, the court stated that it was satisfied that Ramosie was properly authorised to launch the application and to depose to the necessary affidavits.

The court then turned to the broader merits and context and formed the view that the papers reflected a “distasteful pursuit of position and power” and serious infighting among senior members. It highlighted the existence of multiple High Court applications brought by the rival factions in different divisions, all aimed at ousting the opposing group. The court did not treat the litigation as an appropriate mechanism to “referee” the internal conflict.

The court stressed that both sides’ papers contained contradictions and irregularities. It referred in particular to the conflicting accounts of the 27 November 2021 meetings and the unexplained implausibility arising from Ramosie’s apparent appearance in minutes for different meetings in different provinces on the same day. It also pointed to complexities relating to communications and documents concerning disciplinary action against the Deputy Secretary General, including uncertainty about authorship and authorisation of certain correspondence. On the first respondent’s side, the court noted unsupported assertions (including alleged expulsions) and questioned the reliability of documents relied upon, including an attendance register presented as an NMC register which was alleged by a confirmatory deponent to be a register for a public community meeting.

In this evidentiary setting, the court concluded that there was “all manner of manipulation”, which created a situation in which the court could not decide the matter on the papers. The court also found that no evidence had been placed before it to show that internal remedies had been utilised, let alone exhausted. It connected this conclusion to provisions of the organisation’s constitution that vested the NMC with responsibilities to enforce discipline and mediate disputes.

The court then articulated a cautionary principle: parties should be slow to approach courts to resolve disputes that are adequately catered for in internal instruments like an organisation’s constitution. It considered that the relief sought would require the court to breach separation of powers boundaries and to impermissibly interfere in how other organs/entities of state perform their functions. The court regarded such interference as unjustified in circumstances where internal processes had not been invoked to address the underlying disputes.

On costs, the court rejected both parties’ approaches as framed. It considered it unfair for costs to be paid from the applicant’s “coffers” because, on its assessment, neither faction demonstrated a genuine commitment to the organisation’s aims and constitutional prescripts, but rather appeared to be pursuing their own ends. This evaluation informed the court’s decision to structure the costs order so that costs were borne personally by the protagonists rather than by the organisation.

5. Outcome and Relief

The court dismissed the application in its entirety.

The court also dismissed the point in limine raised by the first respondent challenging Ramosie’s authority.

The court ordered that each party pay their own costs, but directed that Bakoena Stephen Ramosie personally pay the applicant’s costs and that Zukile Luyenge personally pay the costs of the opposition in the matter.

Cases Cited

No reported case law was cited in the judgment. The judgment referred to a prior Free State High Court matter, described by case number only, namely Free State High Court case number 2830/2022 (unreported, further citation details not provided in the judgment).

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

Uniform Rule 35(12).

Held

The court held that the founding deponent, Bakoena Stephen Ramosie, was duly authorised to launch the application and to depose to the founding affidavit, and the first respondent’s authority challenge was therefore rejected.

Notwithstanding that finding on authority, the court held that the matter could not appropriately be determined on the papers because the evidence reflected material contradictions and indications of manipulation by both factions, and because the court was not an appropriate forum to referee internal power struggles where internal constitutional mechanisms existed.

The court further held that the relief sought would entail impermissible judicial intrusion, including interference implicating separation of powers, particularly in circumstances where internal remedies had not been invoked to resolve the disputes.

LEGAL PRINCIPLES

The judgment applied the principle that internal dispute-resolution and disciplinary mechanisms contained in an organisation’s constitution should, where available and adequate, be utilised to resolve disputes before seeking judicial intervention, especially in conflicts that are fundamentally internal and political/organisational in nature.

It further applied the procedural principle that where the papers reveal material contradictions, inconsistencies, or manipulations that prevent a reliable determination on affidavit, a court may decline to grant the substantive relief sought in motion proceedings on the existing record.

The judgment also applied separation-of-powers-related restraint, emphasising that a court should not grant relief that would require it to impermissibly interfere with the functioning of other organs/entities of state, particularly where alternative internal remedies exist and have not been pursued.

On costs, the judgment reflected the principle that where litigants purport to act for an organisation but their conduct demonstrates pursuit of factional interests, it may be inappropriate for costs to be borne by the organisation itself, and a court may craft a costs order that places the financial consequences personally on the individuals driving the litigation.

Independent South African National Civic Organisation v Luyenge and Others (5374/2022) [2023] ZAFSHC 249 (20 June 2023)