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2023
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[2023] ZAFSHC 338
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Independent South African National Civic Organization (ISANCO) v Ramosie and Another (3583/2023) [2023] ZAFSHC 338 (18 August 2023)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Application number:
3583/2023
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the application between:
INDEPENDENT
SOUTH AFRICAN NATIONAL
CIVIC
ASSOCIATION (ISANCO)
Applicant
and
BAKOENA
STEPHEN RAMOSIE
1
st
Respondent
INDEPENDENT
ELECTORAL COMMISSION (IEC)
2
nd
Respondent
CORAM:
VAN ZYL, J
HEARD
ON:
11 AUGUST 2023
DELIVERED
ON:
11
AUGUST 2023; 18 AUGUST 2023
[1]
The applicant approached court on an urgent basis and this matter was
argued before
me on 11 August 2023 at approximately 10h30. At
the conclusion of the said hearing, I indicated that I will make an
order
in the matter later that afternoon.
[2]
During late afternoon of 11 August 2023, I issued the following
order:
1.
The non-compliance with the time frames and procedures in terms of
the Rules
of Court is condoned and the application is heard as one of
urgency in terms of Rule 6(12).
2.
A rule
nisi
is hereby issued, calling upon the respondents to
show cause, if any, on Thursday, 14 September 2023 at 9h30, or as
soon thereafter
as the matter may be heard, why the following orders
should not be made final:
2.1
That the order issued under the above application number by Reinders,
J on 27 July 2023 in the matter between Independent
South African
National Civic Organization and Independent Electoral Commission, be
rescinded.
2.2
Interdicting and restraining the second respondent, Independent
Electoral Commission, from removing the name of
Zukile Luyenge as the
President of the applicant, Independent South African National Civic
Organization, and its contact person
in the records of Independent
Electoral Commission.
3.
Paragraphs 2.1 and 2.2 above shall serve as interim interdicts with
immediate effect pending the finalisation
of this application.
4.
The adjudication of the further relief sought by the applicant in the
Notice of Motion, dated 7 August
2023, is postponed to 14 September
2023 at 9h30, to be heard together with the adjudication with the
rule
nisi
.
5.
For purposes of the adjudication of the rule
nisi
and the
aforesaid postponed relief:
5.1
The first respondent is granted leave to file a supplementary
answering affidavit on or before 24 August 2023.
5.2
The applicant is to file its replying affidavit on or before 31
August 2023.
5.3
The applicant is to file its heads of argument on or before 7
September 2023.
5.4
The first respondent is to file his heads of argument on or before 8
September 2023.
6.
The costs of 10 & 11
August 2023 stand over to be adjudicated on 14 September
2023.
7.
This order is to be served upon the first and second respondents in
terms of the Court Rules.”
[3]
Before I adjourned the hearing on 11 August 2023, I requested the
parties to provide
me with a suggested return date and also suggested
time frames should I decide to grant a rule
nisi.
The
aforesaid dates were suggested by the parties and since I was
satisfied with the proposed dates, I incorporated them in my order.
[4]
Considering the contents of the order I made and the reason for the
urgency (which
I will deal with hereunder), I considered it necessary
that the said order be issued as soon as possible. However, due
to
time constraints I was unable to provide the reasons for the said
order at the time. The reasons for the said order are consequently
provided herewith.
[5]
In terms of the Notice of Motion the applicant approached the court
as follows and
for the following relief:
“
Kindly
take notice that an application will be made before the above
Honourable Court on Thursday, 10
th
of August 2023, at 9h30 am or as soon thereafter as the matter may be
heard for an order in the following terms:
1.
That the applicant be and is hereby granted leave to bring this
application as a matter of urgency in
terms of Rule 6(12) of the
Uniform Rules of Court and that all formalities regarding notice for
service and time frames thereof
be and are hereby dispensed with.
2.
That a rule
nisi
do hereby issue calling upon the respondents
to show cause, if any, before this Honourable Court on Thursday, 14
th
of September 2023 at 09h30 am, or as soon thereafter as the matter
may be heard, why the following orders should not be made final:
2.1
Rescinding an order obtained by Bakoena Stephen Ramosie in the name
of the Independent South African National Civic
Organization under
Bloemfontein High Court case number 3583/2023 on 27 July 2023.
2.2 Declaring
the convention of Special National Conference by Bakoena Stephen
Ramosie in the name of applicant at Ferdi
Meyer Hall during week
ending 09 to 10
th
of June 2023 unlawful;
2.3 Declaring
all the resolutions adopted at such a National Conference in the name
of Applicant null and void and of
no force or effect whatsoever;
2.4 Directing
Bakoena Stephen Ramosie to remove all his pictures he posted in
social media as member and President of
ISANCO;
2.5
Interdicting and restraining the Bakoena Stephen Ramosie from acting
as member and President of ISANCO or in any
way direct his supporters
to do so;
2.6
Interdicting and restraining Independent Electoral Commission (IEC)
from removing the name of Zukile Luyenge as
the leader of ISANCO and
its contact person in its records;
2.7 Ordering
the first respondent, Bakoena Stephen Ramosie, to pay costs of this
application on punitive attorney and
own client scale and the second
respondent to pay costs of this application only in the event of it
opposing this application.
3.
That paragraphs 2.4, 2.5 and 2.6 of the rule
nisi
shall
operate as interim relief and
mandamus
pending the
finalization of this application.
4.
Granting the applicant such further and/or alternative relief as the
Court may deem appropriate.
”
[6]
The application was issued on 7 August 2023 and served upon the
attorney of record
of the first respondent on 7 August 2023 at
13h44. It was also served upon the second respondent on 7
August 2023 at 15h46.
[7]
In the Notice of Motion it was stated that should any of the
respondents wish to oppose
the application, such respondent is
required to “
Notify applicant’s attorneys in writing
of such intention to oppose and [to file] any opposing affidavit, if
any, on or before
Tuesday 8 August 2023; …”
[8]
It is to be noted that Wednesday, 9 August 2023, was a public
holiday.
[9]
The first respondent duly filed its answering affidavit at court on 8
August 2023
and it was filed with the applicant’s attorney of
record on 8 August 2023 at 14h45. In his answering affidavit
the
first respondent raised two points
in limine
, namely:
1.
“
Lack of urgency
”; and
2.
“
Zukile Luyenge lacks the authority to institute this
application
”.
[10]
After having dealt with the aforesaid points
in limine
, the
first respondent further stated as follows in his answering
affidavit:
“
SUPPLEMENTATION:
59. This
answering affidavit has been prepared in haste as my attorneys were
served with the full set of this application
on Monday, 7 August
2023, at 13h44, just hours before the applicant expected us to submit
our answering affidavit as evident on
the applicant’s notice of
motion.
60. For these
reasons, the relevant aspects may not have been canvassed as fully
and comprehensively as we would have
liked, and certain facts may
have been overlooked in the process.
61. Under the
circumstances, we will seek leave to supplement this answering
affidavit in due course, if necessary.
CONCLUSION:
62. The
applicant’s clandestine approach in launching these urgent
proceedings deserves this Honourable Court’s
censure.
WHEREFORE
,
I pray that the application should be dismissed. Further that
Mr Zukile Luyenge, the deponent to the founding affidavit,
personally
be ordered to pay costs on an attorney and client scale.”
Background:
[11]
The applicant is the Independent South African National Civic
Organization (“ISANCO”),
an independent civic movement,
which operates in terms of its constitution. ISANCO is a duly
registered political party in
terms of the applicable electoral laws
of South Africa. It is registered as such with the second
respondent (“the IEC”).
In a letter from the IEC
addressed to ISANCO, dated 21 June 2022, attached to the founding
affidavit as annexure “ZL3”,
the following was stated in
paragraph 2 thereof:
“
The
Electoral Commission’s records reflect that Dr. Luyenge is the
leader and duly authorized contact person of ISANCO.”
[12]
The first respondent, Bakoena Stephen Ramosie, is cited as an adult
male person who was expelled
as a member of ISANCO and who misled the
court to grant an order under the above case number without any
mandate from ISANCO, being
the order sought to be rescinded in the
present urgent application.
[13]
The second respondent, the IEC, is not opposing the application.
[14]
The court order issued by Reinders, J on 27 July 2023 under the above
case number, which order
ISANCO is seeking to have rescinded, is a
court order which, on face value thereof, was issued in an
application of the present
applicant, ISANCO, as applicant, and the
present second respondent, the IEC, as respondent. I will
henceforth refer to the
said application as the main application. The
order reads as follows:
“
1.
Respondent is directed to effect the changes, relating to the
applicant’s party leader and party contact
person in line with
the applicant’s submission notifying the respondent of the
changes in the registration particulars within
30 days from service
of this court order.
2. The
respondent is directed to inform the applicant, in writing, that the
applicant (
sic
) has effected the changes in line with
Regulation 9 of the Regulations for the Registration of Political
Parties, 2004, as submitted
by the applicant in its letter dated 20
June 2023.”
[15]
It is of crucial importance for purposes of the present application
to note that in the main
application, the present first respondent,
Mr Ramosie, deposed to the founding affidavit on behalf of ISANCO on
the basis that
he is the President of ISANCO and that he was duly
authorized by ISANCO to have deposed to the said founding affidavit
in terms
of the applicable constitution of ISANCO, “
as
amended and adopted in its Special National Conference / NGC on 9
th
to 10
th
June 2023
”. A copy of the
constitution referred to is attached to the main application as
annexure “ISA 1”. Attached to
the founding affidavit
filed in the main application is a confirmatory affidavit by one
Cliff Pringle, who alleges that he is the
Treasurer General of ISANCO
and wherein he states that he has read the affidavit deposed to by Mr
Ramosie “
as authorized by the applicant as stipulated in the
applicant constitution in his official capacity as the President of
ISANCO,
in the answering affidavit (sic) and I hereby confirm as far
as the contents related to the Independent South African National
Civic Organization to be true and correct
”. A further
confirmatory affidavit deposed to by one Velly Mokgotho, who alleges
that he is the National Chairperson
of ISANCO, is also attached to
the founding affidavit filed in the main application, which affidavit
contains a paragraph which
reads the same as the aforesaid paragraph
quoted from the confirmatory affidavit of Cliff Pringle.
[16]
Contrary to the main application, the founding affidavit filed in the
present urgent application
was deposed to by Zukile Luyenge, who
alleges that he is the President of ISANCO, “
having been
duly elected by the members of the applicant on 28
th
of November 2020 for a period of five years
”. Mr
Luyenge further alleges that he is duly authorized by ISANCO “
to
defend
(sic)
this application and to depose to all the
affidavits in this matter for and on its behalf
”, in terms
of a resolution adopted by ISANCO at its special meeting which was
held on 2 of August 2023, a copy of which resolution
is attached to
the founding affidavit as annexure “ZL1”.
[17]
On face value of the said resolution it was signed by the Secretary
General of ISANCO on 2 August
2023. For reasons that will become
evident later in the judgment, I do not deem it appropriate to make
any further remarks with
regard to the contents of the resolution.
[18]
According to Mr Luyenge ISANCO was established on 28 November 2020 in
terms of its original constitution
which was adopted by the members
of ISANCO on the said date, which constitution was signed by Mr
Luyenge as its president and by
the first respondent at its Secretary
General. A copy of the original constitution is attached to the
founding affidavit as annexure
“ZL2”. According to Mr
Luyenge ISANCO held its Special National Conference in Mthatha at
Christ the King Senior Secondary
School on 31 March 2023 to 1 April
2023, during which Conference it amended its original constitution,
which amended constitution
was adopted at the said Conference, a copy
of which constitution is attached to the founding affidavit filed in
the urgent application
as annexure “ZL5”. On face value
thereof this amended constitution was signed by Mr Luyenge in his
capacity as President
and by the Secretary General.
[19]
According to Mr Luyenge ISANCO had expelled the first respondent from
ISANCO, that he was advised
accordingly by means of a letter dated 18
March 2022 and that he was consequently also removed as the
counsellor representing ISANCO
at Matjhabeng Local Municipality.
It is alleged that a copy of the letter is attached to the founding
affidavit as annexure
“ZL7”, but I was unable to find
such a letter in my copy of the application papers.
[20]
In the answering affidavit of Mr Ramosie, the first respondent, he
alleges that the deponent
to the founding affidavit filed in the
urgent application, Mr Luyenge, is not the president of ISANCO.
According to the first
respondent, Mr Luyenge had been suspended by
ISANCO by means of two letters dated 29 November 2021 and 20 December
2021, respectively,
where after he was finally expelled as leader and
member of ISANCO on 29 December 2021. Copies of the said
letters are attached
to the answering affidavit as annexures “BR5”,
“BR6” and “BR7”. Two letters were also
addressed from ISANCO to the IEC informing the IEC of the expulsion
of Mr Luyenge, copies of which letters are attached to the
founding
affidavit as annexures “BR10” and “BR11”,
dated 24 January 2022 and 17 March 2022, respectively.
It is to
be noted that the letter of 17 March 2022 was signed by the first
respondent, on face value of the letter in his capacity
as Secretary
General of ISANCO at the time.
[21]
According to the first respondent he is in fact currently the
President of ISANCO, for purposes
of which allegation the first
respondent relies on the minutes of the Special National
Conference/NGC of ISANCO held on 9 June
2023 attached to his
answering affidavit as annexure “BR 1”. The first
respondent also relies on the said minutes where
it is stated that Mr
Luyenge was expelled from ISANCO on 29 December 2021 and that after
deliberation, the Conference adopted and
endorsed the expulsion of Mr
Luyenge from ISANCO and that his membership remains terminated.
The alleged lack of
authority of Mr Luyenge:
[22]
In addition to the aforesaid denial that Mr Luyenge is the president
of ISANCO, the first respondent
alleges that even should the court
find that Mr Luyenge is the President of ISANCO, Mr Luyenge still
lacks the authority to have
instituted the urgent application due to
his failure to have complied with mandatory sections of the original
2020-constitution
in this regard, which constitution, according to
the first respondent, is the version of the constitution on which Mr
Luyenge relies
for purposes of his authority.
[23]
Without dealing with it in detail, it is evident that the parties are
in dispute as to which
version of the constitution is presently the
valid and properly adopted constitution of ISANCO. In this
regard it is the
version of ISANCO, as represented by Mr Luyenge,
that the constitution as amended and adopted by the Special National
Conference
held on 31 March 2023 to 1 April 2023, attached to the
founding affidavit as annexure “ZL5”, is presently the
valid
and legally binding constitution of ISANCO. Contrary
thereto, according to the first respondent, the version of the
constitution
as amended and adopted at the Special National
Conference held at 9 to 10 June 2023, is presently the valid and
legally binding
constitution of ISANCO.
[24]
It is evident from the founding affidavit and the answering affidavit
that there is a litigious
history between ISANCO and Mr Luyenge
and/or the first respondent, which litigation directly or indirectly
emanated from disputes
regarding the authority of Mr Luyenge or the
first respondent to act on behalf of ISANCO.
[25]
Some of the aforesaid applications had contradictory outcomes
pertaining to such authority of
Mr Luyenge and the first respondent.
In one of the applications referred to in the founding affidavit
filed in the present urgent
application, being an application which
served in this court under case number 5374/2022, ISANCO was the
applicant and the first
respondent deposed to the founding affidavit
on behalf of INSANCO in his capacity as the Secretary General of
INSANCO and Mr Luyenge
was the first of seven respondents. The
requested relief,
inter alia,
entailed declaratory orders that
Mr Luyenge had been expelled as a member of ISANCO and was removed as
President of ISANCO as from
29 December 2021. Mr Luyenge raised a
point
in limine
in which he attacked the authority of Mr
Ramosie to have deposed to the founding affidavit on behalf of
ISANCO. Naidoo, J found,
inter alia,
as follows at paragraphs
[17], [24] and [26] of her judgment dated 20 June 2023 (the founding
affidavit in that application was
deposed to in 2022):
“
[17]
As I indicated earlier, the applicant appears to be a divided
organisation, with its senior members locked in battle with each
other, attempting to assert themselves over the “opposing”
group. A number of inconsistencies appear in the evidence
put up by
both Ramosie and the first respondent, where both purport to be
authorised to act in the name of the applicant. …
[24] From
what I have said it appears that neither Ramosie nor the first
respondent have approached this court with
clean hands. There appears
to be all manners of manipulation, which creates a situation that
this court cannot decide the matter
on the papers. …
[26] With
regard to costs, both parties purport to be acting in the name of the
applicant. The applicant asked
for costs only in the event of
the application being opposed, while the first respondent seeks
punitive costs against Ramosie for
acting without proper authority.
I have made my view clear regarding Ramosie’s
locus standi
,
and regarding the conduct of both parties. In any event, the evidence
placed before me is confusing, contradictory and insufficient
to
justify granting the relief sought. I am also of the view that
it would be unfair for costs to be paid out of the coffers
of the
applicant, as the conduct of Ramosie and the first respondent
indicates that neither of them were committed to furthering
the aims
and objectives of the applicant or complying with the constitutional
prescripts that bind them, but rather appear to have
been pursuing
their own ends.”
The application was
dismissed and the point
in limine
raised by Mr Luyenge was
also dismissed. They were both ordered to pay the costs in their
respective personal capacities.
[26]
In the circumstances and considering the background facts and
circumstances, I am in no position
to properly determine and
adjudicate the issue in respect of the authority of Mr Luyenge to
have instituted this application on
behalf of ISANCO on the papers as
they stand. I accept that the first respondent did not have enough
time in the circumstances
to have filed an answering affidavit which
also dealt with the merits of the application. However, in my view
the issue of the
authority of Mr Luyenge is intertwined with the
merits of the application. Therefore, in the absence of an answering
affidavit
which fully deals with all the allegations contained in the
founding affidavit, I cannot determine this point
in limine
raised
by the first respondent.
[27]
Having said that, I must remark that I am not convinced that the
court will be able to adjudicate
the issue of authority on the papers
even after the filing of all the outstanding affidavits. However,
that will be decided by
the Judge who presides over this matter on
the return date.
[28]
In the circumstances I will accept for purposes of this stage of the
proceedings that Mr Luyenge
was duly authorised to have instituted
this application on behalf of the applicant, without deciding same.
Therefore, the first
respondent will be entitled to fully deal with
this point
in limine
in his supplementary answering affidavit
and INSANCO will be entitled to respond to such affidavits in its
replying affidavit, subject
to the usual rules and principles
applicable to replying affidavits.
Urgency:
[29]
Under the head of urgency the following allegations were made in the
founding affidavit on behalf
of ISANCO:
“
32.
The matter is urgent for the following reasons:
32.1 The order sought to
be rescinded is based on misinformation intended to mislead the Court
and to effect unlawful taking over
of the leadership of the applicant
by the first respondent by deceit and unconstitutional means;
32.2 The first respondent
is taking steps to remove all the
bona fide
members of the
applicant representing it in various Municipalities in South Africa;
32.3 The applicant has
embarked on programmes in preparation of the national elections
expected to take place in 2024 and in this
regard meetings are
scheduled to take place from week ending 11 August 2024 (
sic)
and sponsors have been secured and may withdraw as a direct result of
the order of this court of 27 July 2024 (sic) sought to be
rescinded.
33. The
members of the applicant who have been deployed in Municipalities are
being prejudiced as IEC is not amending
the list to pave the way for
them to fill in the vacancies declared by some Municipalities because
of the order sought to be rescinded.”
[30] In
his answering affidavit the first respondent relied on the absence of
a certificate of urgency.
However, during the hearing of the
application, Mr Kleingeld, who appeared on behalf of the first
respondent, conceded that the
necessity for a certificate of urgency
is not a requirement for urgent applications in this division of the
High Court and he consequently
indicated that he is not persisting
with the said point, in my view correctly so.
[30]
According to the first respondent ISANCO has not alleged why it will
not be able to obtain relief
in due course. ISANCO stated that it has
embarked on programs in preparation of the national elections
expected to take place in
2024 and that meetings in this regard had
been scheduled to take place during the weekend of 11 August 2023 (in
the affidavit it
was stated to be in 2024, but in my view it is
evident that this is a typing error and should be read to be 2023, as
is the reference
to 2024 as being the date of the court order in the
main application). Although the first respondent challenged certain
allegations
made on behalf of ISANCO in support of the alleged
urgency of the application, the aforesaid allegation with regard to
the meetings
of the weekend was not denied, nor responded to.
[31]
It is the case of ISANCO that the court order issued by Reinders, J
is based on misinformation
which is intended to effect the unlawful
taking over of the leadership of ISANCO and which will result in the
IEC`s records not
to be updated with the correct information, which
will not only prejudice ISANCO as such, but also the members of
ISANCO who have
been deployed in the Municipalities, since the
incorrect information will prevent such members from filling the
vacancies declared
by some Municipalities.
[32]
The purpose of the
Electoral Commission Act, 51 of 1996
, is, amongst
others, “…[
T]o
make provision for the establishment and composition of an Electoral
Commission to manage elections for national, provincial
and local
legislative bodies and referenda…
”
In terms of
section
5(f)
of the Act the IEC is to compile and maintain a register of
parties. From the Regulations for the Registration of Political
Parties,
issued in terms of the Act and published under GN R13 in GG
25894 of 7 January 2004, as amended, it is evident that
Regulation 7
determines as follows in this regard:
“
7
Register of parties and registration of documents
(1)
The Chief Electoral Officer must keep a register of parties in which
is recorded all registrations, renewals of registrations,
failures to
renew registrations, changes of the registered names, abbreviated
names, distinguishing marks or symbols of parties
and cancellations
of registrations.
(2)
The register of parties and a copy of every document
lodged with the Chief Electoral Officer for the purposes of
the
registration of a party, or the renewal of the registration of a
party, the changes of the registered name, abbreviated name,
distinguishing mark or symbol of a party or the cancellation of the
registration of a party, shall be kept for inspection by the
public
at the office of the Chief Electoral Officer and any person may
inspect the register and if requested a copy of the register
to be
made available free of charge during office hours.”
[33]
When a party applies for registration, such an application must,
inter alia,
contain
the names and contact details of the party`s “
leader
”
and its “
contact
person
”,
as well as the n
ames
and address of members constituting the executive body of the party.
[34]
From the aforesaid, it is clear that
the
register (and the website) of the IEC constitute the formal records
pertaining to information regarding registered political
parties. It
consequently goes without saying that it is crucial for every
political party, including ISANCO, that the correct information
is
reflected in such records.
[35]
It is evident from the papers which have been filed to date in this
application, that there is
a history of rivalry between Mr Luyenge
and the first respondent regarding their leadership of ISANCO and the
concomitant authority
to act on its behalf. Logic therefore dictates
that it is essential that the record of IEC reflect the true and
correct position
regarding the identity and contact details of the
legitimate leader and legitimate contact person of ISANCO.
[36]
Although the annexures to the founding affidavit filed in the main
application do reflect the
existence of alleged disciplinary issues
with Mr Luyenge in his capacity as leader (at the time) and member of
ISANCO, the true
nature and seriousness of the history of the
disputes, specifically the involvement of the first respondent, with
regard thereto,
are not evident and were not raised in the founding
affidavit filed in the main application. The first respondent was
even interdicted
form convening the very same Special National
Conference held on 8 and 9 June 2023 on which the applicant
relied for purposes of the relief it sought in the main application,
but importantly, in which main application the founding affidavit
was
deposed to by the first respondent, by an order issued on 8 June 2023
under case number 2447/2023 in the High Court of the
Eastern Cape
Division, Mthatha. The said application has not yet been finalised.
However, despite the first respondent`s knowledge
of this
interdictory order, it approached court by means of the main
application, relied on decisions which were taken during the
said
Conference, whilst being full well aware that the validity of the
conference and the decisions is the subject matter of a
pending
application. Despite this, no mention was made thereof in the main
application and the first respondent was not cited as
a party, even
though he clearly had a direct and substantial interest in the relief
which was being sought, I am quite sure that
had Reinders, J been
aware thereof, she would not have entertained the application in the
absence of the first respondent.
[37]
In the circumstances I am satisfied that ISANCO made out a proper
case for urgency with regard
to the necessity for the IEC to reflect
the information as it existed prior to the court order of 27 July
2023.
[38]
The requirements for interdictory relief have also been met.
[38]
I am consequently of the view that the said relief should be granted
with immediate effect.
The further relief:
[39]
In view of the essential factual dispute pertaining to the authority
of the deponent of the founding affidavit,
I am of the view that the
rest of the requested relief should stand over for determination at
the return date, by which time the
issue pertaining to authority
would have properly been ventilated and can then be adjudicated.
Costs:
[40]
As indicated earlier in this judgment, this matter was enrolled to be
heard on Thursday, 10 August
2023, at 09h30.
[41]
It is practice in this Division that the unopposed motion court is
dealt with by the same duty
judge who is responsible for the dealing
with urgent applications.
[42]
Although I attempted to prepare the application during the public
holiday of 9 August 2023, I
was unable to do so due to the horrendous
state of the application papers. At that stage same had not been
indexed, nor paginated,
in accordance with the practice in this
Division. In addition, some of the annexures were incorrectly marked
with the wrong annexure
numbers, etc. I consequently requested my
registrar at 8h00 on Thursday morning, 10 August 2023, to make
contact with the applicant’s
attorney of record and to instruct
them to properly index and paginate the papers, which my registrar
duly did.
[43]
Thereafter I attended to the unopposed motion court and only received
the indexed and paginated
papers during lunchtime. At 14h00 I
continued with motion court and only finalized same at approximately
16h30.
[44]
By that time counsel for the applicant was still not in court and I
was advised by the applicant’s
attorney of record that counsel
for the applicant was still traveling from the Eastern Cape to
Bloemfontein, but that he was only
about 20 minutes away from
Bloemfontein. I indicated that due to the state in which the
papers were, I have not been able
to properly prepare same.
However, I also indicated that should the legal representatives
submit that the application is
as urgent that it should be dealt with
on Thursday evening, I was willing to let the matter stand down in
order for me to properly
prepare the application, where after I was
willing to hear the application. However, both the attorney of
record of the applicant
and Mr Kleingeld indicated and submitted the
application was not as urgent and that it could be rolled over until
Friday morning.
Due to the fact that I had another urgent
application for Friday morning at 09h30, I rolled the matter over to
be heard at 10h00.
I also made an order that the wasted costs of 10
August 2023 stand over for adjudication during the hearing of the
application
on 11 August 2023.
[49]
In my view the final outcome of the application may have an impact
upon the appropriate order
to be made with regard to the aforesaid
costs and I consequently ordered that the said costs of 10 August
2023 and 11 August 2023
should stand over to be adjudicated on the
return date of the rule
nisi
.
C VAN ZYL, J
On
behalf of the applicant:
Adv
M Nonkonyana
Instructed
by:
Gcasamba
Attorneys Inc
BLOEMFONTEIN
On
behalf of the first respondent:
Mr
AJ Kleingeld
Instructed
by:
Kleingeld
Attorneys
BLOEMFONTEIN