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2023
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[2023] ZAFSHC 255
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African National Congress v Moqolo and Others - Leave to Appeal (1852/2023) [2023] ZAFSHC 255 (28 June 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
1852
/2023
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the appeal of:
THE
AFRICAN NATIONAL CONGRESS
APPLICANT
and
LEHLOHONOLO
MOQOLO
FIRST
RESPONDENT
PATRICK
MONYAKOANA
SECOND
RESPONDENT
MAKOA
CHRISTOPHELN LELALA
THIRD
RESPONDENT
MAPASEKA
MOTHIBI-NKOANE
FOURTH
RESPONDENT
CHABELI
FRANK RAMPAI
FIFTH
RESPONDENT
PUSELETSO
LETICIA SELEKE
SIXTH
RESPONDENT
MPHO
MOKOAKOA
SEVENTH
RESPONDENT
JUDGMENT
BY:
MOLITSOANE,
J
HEARD
ON:
23 JUNE 2023
DELIVERED
ON:
The judgment was handed down electronically
by circulation to the parties’ legal representatives by email
and release to SAFLII
on 28 JUNE 2023. The date and time for
hand-down is deemed to be 28 June 2023 at 10h00
[1]
On 8 June 2023 after the hearing of the main application, the
Respondents requested
this court to deliver its judgment in open
court. The reason given was that if this court were to find against
the Respondents
in the main application, then in that case they
intended to bring an application for leave to appeal Subsequently
this court confirmed
the rule nisi in terms which the respondents
were interdicted and restrained from inter alia:
3.1.1… further
acting as Councillors of the Mangaung Metropolitan
Municipality;
3.1.2…
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…
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 of a Council seat at said
meeting.”
[2]
After this court had confirmed the rule nisi, true to what the
Respondents had intimated
during the hearing of the main application,
Counsel for the Respondents launched an Application for leave to
appeal from the bar.
The essence of the application was twofold,
namely:
(i)
The importance of this case before court;
and
(ii)
That the case for the Applicants was
anchored on clause 25(10) of the ANC Constitution and that this court
failed to deal with that
issue.
After the hearing of the
application for leave to appeal, the Applicant filed supplementary
Heads of Arguments. I issued directives
and granted the Respondents
the same opportunity if they also wished to file and their Heads of
Arguments’ were filed on
the same day of the directive.
[3]
Section 17 of the Superior Court Act 10 of 2013 states:
“
Leave
to appeal
17.
(1) Leave to appeal may only be given where the judge or judges
concerned are of the opinion that—
(a)
(i) the appeal would have a reasonable prospect
of success; or
(ii) there is
some other compelling reason why the appeal should be heard,
including conflicting judgments on the matter
under consideration;
(b)
the decision sought on appeal does not fall within the ambit of
section 16(2)(a);
and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the
case, the appeal would lead to a just and prompt
resolution of the real issues between the parties
.”
[4]
Section 17(1) requires that an applicant seeking leave to appeal is
required to convince
the court that there is a reasonable prospect of
success and not merely a possibility of success in the appeal. In
Democratic
Alliance v President of the Republic of South Africa and Others
[1]
the Full Court held as follows:
“
The
test as now set out in s17 constitutes a more formidable threshold
over which an applicant must engage than was the case. Previously
the
test was whether there was a reasonable prospect that another court
might come to a different conclusion. See, for example,
Van
Heerden v Cronwright and Others
1985(2)
SA 342 (T) at 343 H. The fact that the Superior Courts Act now
employs the word ‘would ‘as opposed to ‘might
‘serves to emphasise this point. As the Supreme Court of Appeal
said
in Smith v S
2012(1) SACR 567 (SCA) at para 7;
‘
More
is required to be established than that there is a mere possibility
of success, that the case is arguable on appeal or that
the case
cannot be categorised as hopeless. There must in other words be a
sound, rational basis for the conclusion that there
are prospects of
success on appeal.’
[5]
The
court
in
Ramakatsa
and Others v African National Congress and Another
[2]
held as follows:
“
[10]
Turning the focus to the relevant provisions of the Superior Courts
Act
[3]
(the
SC Act), leave to appeal may only be granted where the judges
concerned are of the opinion that the appeal would have a reasonable
prospect of success or there are compelling reasons which exist why
the appeal should be heard such as the interests of justice.
[4]
…
I
am mindful of the decisions at high court level debating whether the
use of the word ‘
would
’
as opposed to ‘
could
’
possibly means that the threshold for granting the appeal has been
raised. If
a
reasonable prospect of success
is established, leave to appeal should be granted. ... The test of
reasonable
prospects of success
postulates a dispassionate decision based on the facts and the law
that
a
court of appeal could reasonably arrive at a conclusion different to
that of the trial court
.
In other words, the appellants in this matter need to convince this
Court on proper grounds that they have
prospects
of success
on appeal. Those prospects of success must not be remote, but there
must exist
a
reasonable chance
of succeeding. A sound rational basis for the conclusion that there
are
prospects
of success
must be shown to exist.
[5]
”
[6]
The submission that that this case is so important is underpinned by
the fact that
there are various cases pending before this court in
involving the same parties founded on different causes of actions. It
was
also reiterated during the application for leave to appeal that
the Respondents intend to review the decision to expel them, which
forms the basis for the application in this case. The fact that the
case is important to a party does not in itself imply that
there is a
measure that the appeal would arrive at a conclusion different from
the trial court. I am not convinced that the Respondents
should be
granted leave to appeal on this ground. There is in my view no
compelling reason to grant the Applicants leave
to appeal simply
because there are numerous cases pending before the courts in
different forms.
[7]
The Respondents submit that their application is anchored on the
non-compliance of
clause 25(10)
[6]
of the ANC Constitution, which according to the Respondent this court
failed to deal with. As a starting point it is necessary
to confirm
that this court was not called upon to decide on the legality or
otherwise of the expulsion of the respondents. That
function would
the subject of another forum should the Respondents persist with
their application for review as it was so intimated
during an
application for leave to withdraw the counter application and the
application for leave to appeal.
[8]
It is in my view clear that the Respondents were well aware that this
court could
not review the decision to expel them hence they sought
to apply to declare same null and void by way of a counter
application,
which they subsequently withdrew. What was important for
this court to adjudicate upon was the status of the Respondents in
relation
to the Applicant. For the court to determine this, this
court had of necessity, inter alia, to decide if there was an
expulsion
of the Respondents or not. If there was an expulsion
whether the appeals filed with the NDC constituted proper appeals and
suspended
the decision to expel the Respondents. It was not within
the jurisdiction of this court, in
this application
to decide
on the lawfulness of the expulsion. In its judgment this court
pertinently said the following:
“
[18]
At
the beginning of this hearing I
listened to an application for leave to withdraw the counter
application by the Respondents. I will
not dwell into the counter
application as it is not before me. Of importance for me is that it
was submitted that the Respondents
intended to, inter alia, review
the decision to expel them as members of the Applicant. To my mind,
the Respondents seem thus to
have accepted that they were expelled.
Whether the expulsion was unreasonable or irrational is not an issue
before me.”
[9]
It is within this context that the court did not pertinently deal
with section 25(10)
as its invocation seeks to impugn the
Disciplinary proceedings. It has to be borne in mind that the ANC
Constitution has its own
internal processes of appeal and review set
out in clauses 25.35 to 25.42. It is not the case for the Respondents
that they have
exhausted those internal processes save for the
ill-fated appeal filed with the National Disciplinary Committee of
Appeal as more
fully dealt with in the main judgment. I already, in
the main application held that the decision of the Disciplinary
Committee
was final and binding. The Respondents can only appeal or
review same in terms of the prescripts of the ANC Constitution.
[10]
Against this backdrop, I cannot, however, ignore the compelling
argument by the Respondents in
the supplementary Heads of Arguments
that in spite of the expulsion, the Respondents continued to serve as
Councillors of the Applicant
for about ten months, specifically from
April 2022 until April 2023. The Respondents argue that the
Applicants must have also viewed
the expulsion on this basis as null
and void. On this basis alone, I am of the view that another court
may come to a different
finding and I accordingly make the following
order:
ORDER
1.
The
Respondents are granted leave to appeal the whole judgment of this
court granted on 23 June 2023 to the Full Court of this Division;
2.
The costs
shall be costs in the Appeal
P.
E. MOLITSOANE, J
On
behalf of the Applicant:
Adv.
S Grobler SC
Appearing
with:
Adv.
T Ngubeni
Instructed
by
SMO
Seobe Attorneys
BLOEMFONTEIN
On
behalf of the Respondents:
Adv.
J.G Gilliland
Instructed
by
Noordmans
Attorneys
BLOEMFONTEIN
[1]
(21424/2020)
[2020] ZAGPPHC 326(29 July 2020) paras [4] – [5].
[2]
[2021]
ZASCA 31(31 March 2021.
[3]
“
5.
Section 17(2)(d)
Act 10 of 2013
.”
[4]
“6.
Nova
Property Holdings Limited v Cobbett & Others
[2016] ZASCA 63:
2016 (4) SA 317
(SCA) para 8.”
[5]
“
9.
See
Smith v S
[2011] ZASCA 15
;
2012 (1) SACR 567
(SCA)
;
MEC
Health, Eastern Cape v Mkhitha
[2016] ZASCA 176
para 17.”
[6]
Clause
25(10) of the ANC Constitution provides: “If a REC, RWC or BEC
or office bearers of these structures, as the case
may be, is
satisfied that the institution of disciplinary proceedings is
warranted against a member or office bearer of an REC
or BEC within
its Region or Branch in respect of any misconduct referred to in
Rule 27.17 below, it, he or she shall first obtain
written approval
of the provincial Secretary before commencing with the institution
of such disciplinary proceedings,”