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[2023] ZAKZPHC 63
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Zulu and Others v Provincial Executive Committee - ANC, Kwazulu-Natal and Others (189/2022P) [2023] ZAKZPHC 63 (19 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: 189/2022P
In
the matter between:
MHLALISENI
ISMAEL ZULU FIRST
APPLICANT
BONGANI
PATRICK NGUBENI SECOND
APPLICANT
SIPHIWE
MAZIBUKO THIRD
APPLICANT
SIPHAMANDLA
MTHOBISI GULE FOURTH
APPLICANT
BONGANI
MANDLINGOZI FIFTH
APPLICANT
and
PROVINCIAL
EXECUTIVE COMMITTEE – FIRST
RESPONDENT
ANC,
KWAZULU-NATAL
AFRICAN
NATIONAL CONGRESS SECOND
RESPONDENT
ANC
REGIONAL EXECUTIVE COMMITTEE – THIRD
RESPONDENT
EMALAHLENI
ORDER
The
applicants’ claim is dismissed with costs.
JUDGMENT
Smart
AJ
Introduction
[1]
This is an application brought by the applicants for orders setting
aside the
11
th
Emalahleni Regional Elective Conference
(‘the conference’) of the second respondent, the African
National Congress
(‘the ANC’), which was held at
Newcastle on 4 to 5 September 2021 and setting aside its decisions,
resolutions and
elections. The application was launched on 12 January
2022 and the respondents opposed the application and delivered their
answering
affidavit on 9 May 2022. A supplementary affidavit was
delivered by the third respondent on 21 June 2022.
[2]
At the commencement of the hearing counsel for the applicants
confirmed that
objections to the late filing of the third
respondent’s supplementary affidavit were withdrawn and that no
costs order was
to be made in terms of that application. To the
extent that it was necessary, I granted condonation for the late
filing of the
aforesaid affidavit. A further supplementary affidavit,
which was deposed to on behalf of the first and second respondents,
was
handed to me at the hearing and this was not opposed by the
applicants. This supplementary affidavit dealt with an incomplete
annexure
which was annexed to the first and second respondent’s
answering affidavit, being annexure CM3 (the attendance register),
and a complete document was annexed to this affidavit.
[3]
The applicants are members of the ANC registered at various wards in
the Emalahleni
region in Newcastle and Dannhauser.
[4]
The applicants brought the application in their personal capacity and
on behalf
of eleven individual branch leaders and members who were
aggrieved by the calling of the conference which forms the subject
matter
of this application. The eleven branches are reflected in a
list contained at an annexure attached to the applicants’
founding
affidavit, annexure EM1, and includes ten wards in the
Newcastle sub-region and one ward in the Dannhauser sub-region.
[5]
The first respondent is the provincial executive committee of the
African National
Congress, KwaZulu-Natal (‘PEC’). The PEC
is the highest structure or organ of the ANC in the province between
the conferences.
The second respondent is the ANC and the third
respondent is the Emalahleni Regional Executive Committee of the ANC,
KwaZulu-Natal
(‘the regional EXCO’).
[6]
The applicants contend that the respondents have breached the ANC
constitution
and the ANC Conference Guidelines by calling for the
sitting of a Regional Elective Conference without following the ANC
Conference
Guidelines and the provisions of the ANC constitution.
[7]
The complaints of the applicants are that:
(a)
the conference was held even though 70% of the qualifying branches
did not attend the conference;
(b)
a final verification report was not available at the time that the
conference was held;
(c)
disputes were still pending; and
(d)
eleven branches were excluded from participating in the conference.
[8]
The
respondents placed in dispute the correctness of the factual
allegations on which the applicants relied. The respondents contend
that the irregularities relied upon by the applicants are without
merit, alternatively, give rise to disputes of fact which fall
to be
determined in favour of the respondents. No application was made for
the matter to be referred for the hearing of oral evidence
and,
accordingly, the factual disputes raised in the papers are to be
dealt with on the approach described in
Plascon-Evans
Ltd v Van Riebeeck Paints (Pty) Ltd
.
[1]
The general rule is that, where disputes of fact have arisen on
affidavits in application proceedings, a final order may be granted
if those facts averred in the applicant’s affidavits which have
been admitted by the respondent or not placed in dispute,
together
with the facts alleged by the respondent, justify such an order.
[9]
The respondents furthermore contended that the applicants had failed
to comply
with internal remedies and that the applicants lack
locus
standi
to act on behalf of other members. As I understand it
these contentions were not persisted with in argument and it was
agreed that
the only issue which was to be decided was whether or not
there were irregularities in the lead up to the conference and, if
so,
whether these irregularities constituted grounds to set aside the
conference.
The
applicants’ case
[10]
The essence
of the applicants’ claim is that the irregularities they allege
to have occurred in the run up to the conference
constitute an
infringement of their constitutional right in terms of section 19 of
the Constitution to participate in the activities
of a political
party and a breach of their rights provided for in Clause 5.1.4 of
the ANC constitution. Section 19 of the Constitution
provides for the
protection of the right of all citizens to participate in the
activities of a political party and Clause 5 of
the ANC constitution
deals with the rights and duties of members’
[2]
.
Clause 5.1.4 of the ANC constitution provides that ‘(a) member
shall be entitled to take part in the elections and be elected
or
appointed to any committee, structure, commission or delegation of
the ANC’.
[11]
The
applicants allege that, at the time of the conference certain
branches of the region had not held branch meetings. This meant
that
the minimum required threshold was not met for the conference to
proceed, the conference was not ripe for sitting and certain
branches
had not held re-runs subsequent to those branches having failed an
audit. It is common cause that the 70% minimum threshold
requirement
applies which means that at least 70% of the branches must have
completed all of the steps required in the process
leading up to the
conference. The 70% threshold requirement is set out in the judgment
of
Dube
v Zikalala
[3]
at paragraph 9 and provides that ‘(a) conference is convened if
there is a minimum of 70% of the branches that have successfully
completed all steps in the pre process for the conference.’
[12]
According to the applicants, eleven branches of the region were not
permitted to participate in the
conference. Furthermore, four
branches of the Emalahleni region should have been excluded from the
conference as those branch meetings
were not quorate, members of
those branches were excluded and identity documents of persons not at
the meeting were scanned to
give the impression that a quorum was
achieved. These issues and/or disputes were not resolved by the
respondents prior to the
conference and persons were permitted to
participate at the conference in circumstances where they were not
qualified to participate.
[13]
The applicants set out specific grievances and irregularities which
were not dealt with by the respondents
which meant that irregular
meetings of the branches were validated by the respondents in
violation of the conference guidelines.
In particular, the applicants
refer to the following disputes:
(a)
The first applicant was excluded from the branch meeting of Ward 27
of the Newcastle sub-region on 23 May
2021. The first applicant
submitted a dispute to the respondents but this was not resolved.
Instead, according to the first applicant,
delegates were elected
from that branch meeting to represent his branch at the conference.
(b)
Irregularities relating to the scanning of identity documents
occurred at the branch meeting of the fifth
applicant’s branch
resulting in non-ANC members being allowed to participate in the
meeting at which delegates to the conference
were elected. Those
delegates who did attend the conference were not elected at a valid
meeting.
(c)
A member of Ward 33, Newcastle launched a dispute concerning a branch
meeting held on 10 April 2021. This
dispute was not attended to by
the respondents.
(d)
The fourth applicant launched a dispute regarding a branch meeting
held on 16 May 2021 at Ward 10, Dannhauser
on the basis that,
inter
alia
, insufficient notice was given for the meeting and no quorum
was met. This dispute was ignored by the respondents.
(e)
Eleven branches listed in EM1 were not provided with an opportunity
to hold branch meetings or re-runs of
branch meetings.
(f)
Draft credentials for the verification of delegates were not
provided.
(g)
A final audit report signed by the acting secretary general of the
ANC had not been provided.
(h)
The final outcome of disputes had not been resolved.
The
respondents’ opposition
[14]
The respondents opposed the application on the basis that:
(a)
The applicants do not have
locus standi
to act on behalf of or
represent other persons or members of the ANC.
(b)
The applicants should have exhausted internal remedies before
approaching court.
(c)
The correct procedure for the holding of a conference was followed.
(d)
The complaints referred to by the applicants had been adequately
addressed, alternatively, were invalid.
[15]
It was conceded by the respondents that the applicants have
locus
standi
in their personal capacities and the matter was argued on
that basis. As I stated, the parties agreed that the only issue to be
decided was that relating to whether or not there were irregularities
in the procedures leading up to the holding of the conference.
[16]
The respondents dealt with each of the complaints relied on by the
applicants and argued that the facts
in support of their complaints
were disputed by the respondents. According to the respondents these
were disputed on reasonable
grounds.
[17]
I shall deal with each of those complaints and the responses thereto
by the respondents.
Whether
the first applicant was denied entry to a re-run of a branch meeting
[18]
The first applicant alleges that he was refused entry to a re-run of
a branch meeting. The respondents
contend that the first applicant
was not a member in good standing at the cut-off date and he
accordingly did not qualify to participate
in the branch meeting. In
support of this contention the respondents attached a printed
register reflecting all members in good
standing. In reply, the
applicants attached a printout from the ANC database reflecting his
membership. Furthermore, the respondents
alleged that the first
applicant’s dispute had been dealt with at the time that it was
raised by the first applicant and
the respondents attached to the
answering affidavit documents detailing the finding of this dispute.
Dispute
raised by the fifth respondent
[19]
Various
irregularities were relied upon by the fifth applicant in respect of
the branch meeting held in Ward 2, Dannhauser. These
irregularities
are set out in a letter which the applicants allege was addressed to
the respondents. The respondents deny that
they received this letter
and the applicants did not provide proof of delivery in reply. In any
event, according to the respondents,
none of the applicants were
present at the meeting in question. In reply, the applicants allege
that Ward 2 never had 100 members
in good standing and was
accordingly not permitted to participate. In argument, the
respondents contended that this constitutes
a new case in reply which
is not permitted unless there is reason to do so.
[4]
The applicants do not explain why these allegations were not raised
in their founding affidavit. In any event, say the respondents,
there
were not less than 100 members present at the meeting.
[20]
A clear dispute of fact exists as far as this issue is concerned and
it should accordingly be concluded
in favour of the respondents.
Ward
33, Newcastle
[21]
The applicants allege that a dispute relating to a branch meeting was
not attended to by the respondents.
In answer, the respondents
contend that any disputes relating to Ward 33 were dealt with and
annexed to their affidavit a document
containing the findings of the
dispute resolution committee. The version of the respondents is
accordingly corroborated by documentary
evidence attached to the
answering affidavits and the dispute of fact should be concluded in
favour of the respondents.
Ward
10, Dannhauser
[22]
The complaint of the applicants is that disputes relating to short
notice of the meeting and to the
lack of a quorum at the meeting held
at Ward 10 were not finalised or attended to by the dispute
resolution committee. The respondents
contend that the letter
containing details of the complaint had not been received by the
respondents.
[23]
In reply, the applicants simply allege that the complaint was indeed
sent to the respondents but they
do not set out how or when the
complaint was sent to the respondents.
[24]
The respondents contend further that what is alleged by the
applicants is not consistent with what
is contained in the final
verification report.
Branches
not allowed to re-run
[25]
It is the complaint of the applicants that eleven branches were not
permitted to hold re-runs of branch
meetings. The respondents contend
that this complaint is without merit as the decision to hold a branch
meeting is one that is
initiated at branch level. These eleven
branches were given the proper opportunity to qualify but failed to
do so.
Short
notice of conference
[26]
The applicants allege that the conference is invalid due to a failure
by the respondents to comply
with the guidelines in respect of the
distribution of the notice 21 days before the conference in question.
In response, the respondents
allege that the relevant calculation for
the number of days for the notice is from the date of the original
conference which, it
is common cause, was due to take place in May
2021. The conference was postponed and the 21 days’ notice was
not required
again. Furthermore, the applicants do not allege or
prove any prejudice which arises from this.
The
challenge by the applicants to the final audit report
[27]
In support of the applicants’ claim that the branches from the
region had not met the 70% threshold
to qualify to hold a conference,
the applicants relied on a branch general meeting preliminary
verification audit report which
proved, according to the applicants,
that the 70% threshold had not been met.
[28]
In response to this contention, the respondents allege that a final
verification report was prepared
and signed by the acting secretary
general of the ANC on 12 August 2021 and was presented before the
conference was held. According
to the respondents the preliminary
report relied on by the applicants had been overtaken by the final
verification report. In short,
and from what appears from that
report, what the applicants allege is simply not correct.
[29]
The final verified audit report contained the following information:
(a)
The number of the ward, the branch meeting dates, the venue, the
audited total membership, the expected quorum,
the number of members
who attended, the number of members who were in good standing, the
verified quorum, the ultimate branch status,
that is whether the
branch qualified or was disqualified.
(b)
According to the respondents, a summary of the final verification
report reveals that, out of fifty-three
potential branches of the
region, 37 were required to qualify, (ie 70%) and 42 branches were in
fact qualified. This exceeded the
minimum threshold requirement of
70% for the holding of the conference, and the conference could
lawfully proceed.
(c)
Ward 30, Newcastle, was not listed in the verification report because
it did not hold a branch meeting. Ward 32, Newcastle,
is not
reflected in the verification report because, consequent the
upholding of a complaint, it was entitled to hold a re-run
but did
not.
(d)
At the time of verification based on membership for the cut-off date
of the conference, Ward 1 of the Dannhauser
sub-region did not have a
minimum of 100 members to make it eligible to participate.
[30]
In reply, the applicants disputed what was contained in the final
verification report and alleged that
the final verification report
relied on by the respondents was ‘manipulated’.
[31]
There is no way of making a factual finding on the papers as to
whether or not the preliminary verification
report or the final
verification report is valid and I am accordingly unable to find in
favour of the applicants on this issue.
Conclusion
[32]
I am satisfied that the respondents have raised genuine disputes of
facts on the issues referred to
above. The respondents’
affidavits unambiguously addressed the facts said to be disputed and,
where necessary, their version
is corroborated by documentary
evidence attached to the answering affidavits. According to the
Plascon-Evans
rule, and where there are genuine disputes of
fact, the respondent’s version must be accepted.
[33]
For these reasons I conclude that the applicants have not established
that there were irregularities
in the procedures leading up to the
conference and it follows that the application must fail.
Costs
[34]
There is no reason to deviate from the normal principal that costs
follow the result. It follows that,
as the applicants have been
unsuccessful, they have to be held liable for the costs, jointly and
severally.
Order
[35]
I accordingly grant an order in the following terms:
The
applicants’ claim is dismissed with costs.
Smart
AJ
APPEARANCES
DATE
OF HEARING: Friday, 7 October
2022
DATE
OF JUDGMENT: Friday, 19 May 2023
Counsel
for the applicants: ADV
HP JEFFRIES SC with
ADV BS KHUZWAYO and ADV V
SIBEKO
Instructed
by: NGWANE
ATTORNEYS
Applicants’
Attorneys
7 Wedmore Building
Princess Street
Pietermaritzburg
Ref.
Mr Khanyile
Email: ngwaneattorneys@gmail.com
Counsel
for the first and second
respondents:
ADV
GD HARPUR SC
Instructed
by: BERKOWITZ
COHEN WARTSKI
First and Second
Respondents Attorneys
16
th
Floor, Southern Life Building
88
Field Street
Durban
Ref.
Prisha / Anusha
Tel:
031
– 314 9300
Email:
esibiya@berklaw.co.za
preddy@berklaw.co.za
C/O
J LESLIE SMITH & CO
332
Jabu Ndlovu Street
Pietermaritzburg…KZN
Counsel
for the third respondent: ADV J
NXUSANI SC
Instructed
by: PURDON
& MUNSAMY ATTORNEYS
Third Respondent’s
Attorneys
Ref: KRM/ep/A049/0003
Tel:
031
– 201 4100
Email: rama@purdon.co.za
C/O CARLOS MIRANDA
ATTORNEY
273
Prince Alfred Street
Pietermaritzburg
Ref.
A617/cm
Email: cmiranda@iafrica.com
[1]
Plascon-Evans
Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A).
[2]
Ramakatsa
and others v Magashule and others
[2012] ZACC 31; 2013 (2) BCLR 202 (CC).
[3]
[2017] 4 All SA 365 (KZP)
[4]
National
Council of Societies for the Prevention of Cruelty to Animals v
Openshaw
[2008] ZASCA 78
;
2008 (5) SA 339
(SCA);
[2008] 4 All SA 225
(SCA)
paras 29 – 30,
Lagoon
Beach Hotel v Lehane
[2015] ZASCA 210
;
2016 (3) SA 143
(SCA);
[2016] 1 All SA 660
(SCA)
para 16, and
MAN
Financial Services (SA) (Pty) (RF) Ltd v Elsologix (Pty) Ltd and
others
[2021] ZAGPJHC 655 paras 6 – 9.