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[2023] ZAKZPHC 140
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Mlotshwa and Others v Msibi and Others (677/2020P) [2023] ZAKZPHC 140 (17 November 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 677/2020P
In
the matter between:
VIKIZITHA
R. MLOTSHWA
FIRST APPLICANT
SILUNGILE
D. DUMISA
SECOND APPLICANT
AHMED
SHAIK EMAM
THIRD APPLICANT
and
VERONICA
ZANELE KAMAGWAZA MSIBI
FIRST RESPONDENT
JEREMIAH
B. MAVUNDLA
SECOND RESPONDENT
BHEKITHEMBA
ABEL DLAMINI
THIRD RESPPNDENT
CHRISTOPHER
H. SIBISI
FOURTH RESPONDENT
OBED
T. NGCAMU
FIFTH RESPONDENT
KELLY
BALOYI
SIXTH RESPONDENT
CONAN
MDLETSHE
SEVENTH RESPONDENT
SKHUMBUZO
ZULU
EIGHT RESPONDENT
NHLANHLA
KHAWULA
NINTH RESPONDENT
THE
NATIONAL FREEDOM PARTY
TENTH RESPONDENT
ORDER
1.
Condonation for the late lodging of the application for leave to
appeal is granted.
The
8th respondent Skhumbuzo Zulu is ordered to pay 50% of the costs of
the application.
2.
Leave to appeal the judgment of Van Zyl J delivered on 19 November
2021 is granted
to appeal to the Supreme Court of Appeal. The costs
of the application for leave to appeal to be costs on appeal.
3.
Costs to include costs of two counsel where so employed.
JUDGMENT
Deemed
to be delivered on: 17 November 2023
Mngadi,
J
[1]
This is an application for leave to appeal the judgment of Van Zyl J
delivered on
19 November 2021. I am seized with the matter since my
brother Van Zyl J has retired.
[2]
Van Zyl J in his judgment set aside as void and invalid a conference
and its resolutions
held on 12 -13 December 2019.
[3]
In the main application before Van Zyl J the applicants were
Vikizitha R. Mlothwa,
Silungile B. Dumisa and Ahmed M. Shaik Emam.
The respondents were Veronica Zanele KaMagwaza Msibi, Jeremiah B.
Mavundla, Bhekithemba
Abel Dlamini, Christopher H Sibisi, Obed T.
Ngcamu, Kelly Baloyi, Conan Mdletshe, Skhumbuzo Zulu, Nhlanhla
Khawula and the National
Freedom Party (NFP) respectively.
[4]
The application for leave to appeal was launched on 7 December 2022
together with
an application for the late lodging of the application
for leave to appeal. The parties for ease of reference this ruling to
retain
their reference in the matter before Van Zyl J.
[5]
The application for leave to appeal stated that the respondents
sought leave to appeal.
The condonation application was accompanied
by an affidavit deposed to by Skhumbuzo Zulu (8th respondent). On 24
March 2023 the
applicants filed grounds for opposing the application
for condonation and the grounds for opposing the application for
leave to
appeal.
[6]
On 26 April 2023 the applicants issued a Rule 7(1) notice disputing
authority of the
attorneys to act on behalf of the first to tenth
respondent in the application for leave to appeal. On 25 October
2023, Sikhumbuzo
Zulu filed an affidavit stating that he was applying
for leave to appeal as he was the 8th respondent in the main
application,
and he remained an active member of the NFP. He stated
that Mlotshwa and Dumisa have left the NFP, and he is interested only
in
the welfare and the functioning of the NFP.
[7]
On 30 October 2023 Silungile Dumisa filed an answering affidavit
stating that she
is the second applicant in the main matter, she is a
data capturer of the NFP. She stated that the 8th respondent
deliberately
attempted to mislead the court by not disclosing in
front that he was the only person seeking leave to appeal. Dumisa
went on to
state that all the other respondents are not seeking to
appeal Van Zyl J's judgment but in fact they accepted and supported
the
judgment of Van Zyl J's judgment, except those who had left NFP.
[8]
In the original application for leave to appeal the grounds of appeal
were stated
to be namely; that the learned Judge erred in not finding
that the material disputes of facts existed; misdirected himself in
not
interpreting the constitution of the National Freedom Party in
its entirely rather referring only to sections that dealt with the
elective process, had he done so, he would have ensured that all
domestic remedies in terms of the grievance procedure of the National
Freedom Party ought to have been followed by the applicants which
would have resulted in the dismissal of the application.
[9]
Zulu on 20 October 2023 filed supplementary grounds for the leave to
appeal. These
grounds are extensive, and they challenge the judgment
of Van Zyl J on multiple fronts. But in my view for purposes of this
ruling
in the application for leave to appeal it is not necessary to
deal with all of them.
[10]
The applicants before Van Zyl J sought an declaring the meeting held
at Ulundi on 12/13 December 2019 as the Elective National
Conference
of the National Party and the decisions taken in that meeting
unlawful. The main or fundamental reason given by the
applicants was
that the said conference was not called by the INEC in that the INEC
had taken no valid decision to call the said
conference. The other
grounds stated by the applicants which received attention from Van
Zyl J challenged processes leading to
and at the conference. In my
view these grounds were irrelevant before Van Zyl J because the
relief sought did not seek to set
aside a particular decision of the
conference.
[11]
Van Zyl J stated that the NFP has a history of internal factionalism
and dispute which resulted
in a litany of litigation. The situation
resulted in an impasse. The two factions to resolve the impasse
entered on 7 September
2018 into a Settlement Agreement which was
made an order of court. It set up an Interim National Executive
Committee (INEC)
wherein both factions were equally represented. INEC
became solely responsible for the routine administration of both the
political
and administration functions of the NFP. To this end it was
tasked with the appointment of the National Administrator, National
Organiser, National Treasurer and other key personnel instrumental in
the proper functioning of the party, but in compliance with
its
constitution. The INEC would remain in place until the General
National Conference and/or Elective National Conference is held
which
would result in the formation of the National Executive Committee
(NEC which would automatically take over from the INEC.
[12]
Van Zyl J delved into the matter and came out with a decision in
favour of the applicants. It
is not necessary to deal with all the
details which to me appear to have resulted in confusing the issue
rather than clarifying
it. The learned Judge appear to have
overlooked the fact it was common cause that INEC was the body seized
with the calling of
the Elective National Conference and in charge of
the affairs of the party. Further, it was common cause that the
December conference
was called. Lastly, all those who were serving in
the INEC at the time confirmed that the conference was called by
INEC. The applicants
did not challenge INEC in the manner it called
the conference but claimed that INEC did not call the conference.
[13]
Zulu has managed to persuade me that another court might hold
differently from Van Zyl J on the
question of whether the December
conference was called by the INEC or not and on whether the
deviations from the NFP constitution,
if any, had the effect to
nullifying the conference and in its resolutions.
[14]
Dumisa and Emam contends that condonation for the late lodging of the
application for leave to
appeal, despite the view of the court on
merits of the application for leave to appeal should be refused. Mr
Padayachee for Zulu
conceded that Zulu's grounds for the delay in
lodging the leave to appeal are thin but excusable.
[15]
Zulu in the initial application for condonation stated:
I
am a major male, office bearer, of the 10th Applicant and in the
capacity of acting chairman in the Durban Metropolitan Region.
We, 9
applicants desire to appeal against the judgment of Honourable Van
Zyl J handed down on 19 November 2021. We are aware that
this
application for leave to appeal ought to have been fifed within 14
days of the judgment. We are aware that we were late on
filing our
application for leave to appeal. However, we respectively submit that
we have reasonable grounds for this honourable
court to condone our
late filing of the application. The reasons for the late filing of
the application are as follows: (a) We
were involved in preparation
for the Local Government Election which took place in November 2021
and as a consequence thereof did
not have time to meet to consider
the judgment of Van Zyl J; (b) Our Honourable President who is the
casting vote in the Interim
National Executive Committee passed away
on 6 September 2021 effectively rendering the committee
ineffective;(c) All funds that
we had at our disposal were expended
for the Local Government Elections; (d) As a accumulate consequence
of the above and the perilous
state of affairs of the party, the
party was ineffectively dysfunctional.
[16]
Further, Zulu states as follows that the divisive factionalism did
not help the
status quo
. However, they as a collective in the
absence of the erstwhile President accepted that they have a moral
and social responsibility
and an obligation to their constituents and
community in reviving the activities of the party. To this end they
pledged to apply
their personal funds but others failed in honouring
the pledges. Eventually they were in a position to consult with their
attorneys
and counsel briefed for advice. He asked for
condonation and apologised for the delay and stated that the other
side if condonation
is granted shall suffer no prejudice.,
[17]
The applicants responded stating,
inter alia
, that Zulu had
not attached confirmatory affidavit, he has not set out the degree of
the lateness and the reasons thereof, the
INEC has been running the
affairs of the party. In September 2023 it successfully held a
provincial elective conference in Newcastle
and it is now busy
preparing to hold in December 2023 an Elective National Conference.
The continuing litigation is creating a
distraction and unnecessary
uncertainty within the party.
[18]
Zulu without leave of court, but with no objection from the other
side on 26 October 2023 filed
another affidavit in support of the
application for condonation, stating that he arrived at only
supplementing the averment contained
in the primary affidavit seeking
condonation. He stated that although in his reasons for submitting
the application for leave to
appeal were weak they should and ought
to be considered against the extremely good prospects of success.
Zulu then stated that
he intended on appeal if granted leave to lead
evidence to show that Van Zyl J's judgment benefits only Emam since
both Mlotshwa
and Dumisa have left the NFP.
[19]
Dumisa in the answering affidavit filed on 30 October 2023 stated as
follows. After the judgment
of Van Zyl J was handed down on 19
November 2021 INEC continued as the managing executive committee of
the NFP in accordance with
the 2018 order of the court which
authorized its creation and purpose. The INEC is made up of two
factions within the NFP. Each
faction is represented by four (4)
members. The other member of INEC was the late NFP President. All the
respondents in the main
application including the 8th respondent
accepted and acquiesced in the judgment of Van Zyl J. In particular
the 8th respondent
accepted that INEC was the only managing executive
committee of the NFP. Furthermore, it was accepted that the alleged
new elected
office bearers following the 2019 Ulundi meeting were
null and void. On 23 November 2021, 8th respondent in his capacity as
the
secretary of faction A of INEC wrote to INEC to advise it that
two (2) members of faction A were withdrawn and were replaced by
two
(2) other NFP members. The third applicant happened to be one of the
faction A members who the 8th respondent attempted to
replace with
another member. He attached copies of the relevant communication to
this fact. On 30 November 2021 the both respondents
repeated the
aforesaid statement that faction A of INEC had changed two (2) of
their representatives. On 10 December 2021 INEC
received a letter
from 8th respondent claiming that INEC did not have the
constitutional powers to arrange a general National Conference
and
calling for the reconstruction of INEC. Dumisa then refers to the
roles of the two respondents in the main application in the
affairs
of INEC demonstrating that they accepted Van Zyl J's judgment.
[20]
The above-mentioned alleged facts by Dumisa on which the claim of
acquiescence is founded must
be contracted with the content of the
grounds for opposition of condonation for late filing of leave to
appeal by applicant dated
24 March 2023 which reads as following:
'Ad
par 6
The
content of this paragraph is noted hence the applicant and those in
his faction refuse to accept the authority of /NEC and have
been
rebellious and in contempt of the court order declaring their
elective conference null and void and a contempt of court application
had to be brought against them and to date they still refer to
themselves as the NEC members, thus meeting confusion to the public
and the members of NFP.
5.
....
The applicant and his faction have created a parallel structure
causing disorder and undermining the authority of /NEC and
causing
instability in the party ...... applicant and his faction have opened
an unlawful bank account on behalf of the party and
illegally
collected monies from the members of the NFP and the NFP ward
Councillors without the approval of /NEC and the NFP ward
Counsellors
of eDumbe Municipality and Ethekwini Municipality were the victims to
the aforesaid scam and fraud of the applicant
and his faction.
[21]
The applicant in the main application in addition claim
Brutum
fulmen
in that even if Zulu is granted leave to appeal, and the
appeal succeeds, it will serve no purpose because none of the persons
elected in the 2019 conference are in position to commence the
positions they were elected to. It is argued that since all the 2019
Ulundi elected leaders have accepted that they were not validly
elected, INEC would inevitably have to remain in charge of the
party.
until new leaders are validly elected at the forth coming Durban
Elective National Conference, therefore, it is argued the
appeal is
brutus fulmen.
[22]
Mr Padayachee for Zulu argued that members of political parties are
entitled to look at the court
to resolve their disputes in accordance
with the law. The subsequence events don't justify refusing a party
an appeal hearing to
a party who put his faith to the law to
adjudicate the dispute. I agree with Mr Padayachee that there is a
delay involved in resolving
disputes through litigation but that is a
fact of life which must not undermine the role of the courts in
resolving the disputes.
In fact, knowledge that eventuality the court
shall give a fair and considered judgment promotes respect for the
law. The judgement
when given might pose some challenges with the
issue of retrospectivity and practical implementation but that is a
fact of life.
[23]
I am not persuaded on the facts that peremption has been established.
Once judgment has been
delivered it bounds the parties and it has to
be complied with until set aside on appeal. Van Zyl J's judgment
created a factual
situation and a reality the parties had to contend
within. Those who resisted complying with the judgment were pursued
through
contempt of court proceedings. There is no voluntary
acquiescence or unequivocal abandonment of the right to challenge the
judgment
of Van Zyl J has been demonstrated or proved by those
alleging it. In addition, I am of the view that since
brutum
fulmen
and peremption were not issues before Van Zyl J it is not
for me to make a definitive decision on the issues.
See South
African Revenue Service v Commission for Conciliation, Mediation and
Arbitration & Others
2017 (1) SA 549
(CC) ;
Dabner v South
African Railways & Harbours
1920 AD 583
[24]
Rule 49 (1) Provides that the application for leave to appeal must be
made within fifteen (15)
days of the judgment sought to be appealed.
Failure to lodge the application for leave to appeal within the
prescribed period,
may on good cause be condoned.
[25]
Mr Padayachee conceded that the reasons furnished by Zulu for the
failure to lodge the application
for leave to appeal on time is thin.
He however, argued that the NFP was consumed by challenges and
dysfunctionality. It was lethargic.
It is general knowledge that the
NFP as a party faced numerous challenges as evident from the litany
of litigation involving its
members and factions.
[26]
It is common cause that Van Zyl's judgment impacted the party, its
factions and its members.
Zulu needed to know what measures would be
taken either by a faction or individuals not happy with the judgment.
The dysfunctional
position of the party did not make its possible for
a decision to be taken within a period of fifteen (15) days.
[27]
Zulu needed to reflect before making a decision to expend his own
funds for a course not his
individual benefit. The INEC was
established in 2018. It scheduled and held an elective conference in
Dec 2019. In November 2021
Van Zyl J set aside the conference and its
resolutions. Up to date INEC has not held an elective national
conference resulting
in a structure not in accordance with the
constitution of the party running the affairs of the party for a
period of about five
(5) years.
[28]
The delay by Zulu in lodging the application for leave to appeal is
not related to a failure
of INEC to hold an elective conference. INEC
has not blamed Zulu for the delay to hold an elective conference. If
there was general
lethargy in the party run by INEC or which the
applicants were part of they cannot be held to shout louder when Zulu
delayed in
lodging the application for leave to appeal
[29]
In
Uitenhage Transitional Council v SA Revenue Service
2004
(1) SA 292
(SCA) at 297 the court stated:
'Condonation
is not to be had merely for the asking; a full detailed and accurate
account of the causes of the delay and their effects
must be
furnished.....if the non-compliance is time-related then the date,
duration and extent of any obstacle on which reliance
is placed must
be spelled out. The party seeking indulgence must be bona fide in
that he must genuinely seek to contest not engaged
in a strategy to
serve another agenda. The paucity of the reasons given for the delay
justifies an inference of substantial laxity
on the part of Zulu. In
Gordon v Robinson
1957(2) SA 549 (SR) at 552 C-D the court
held that lack of diligence or negligence on the part of applicant or
applicants' attorneys
even if gross, is not necessary a bar of
relief.
[30]
The court in deciding whether to grant condonation is guided by what
is in the interest of justice.
A judicial discretion upon
consideration of all the facts, including, degree of non-compliance,
prejudice, if any, to the other
party caused by the delay, importance
of the case, fairness to the parties. See
Melane v Sanlam
Insurance v Co Ltd
1962(4) SA 531 (A) at 532 B -D;
Torwood
Properties (Pty) Ltd v South African Reserve Bank
1996 (1) SA 215
(W) at 228;
Fortman v SAR & H
(2)
1947 (3) SA 505
(N) AT
509.
[31]
In my view, good cause has been shown to grant condonation for the
late lodging of the application
for leave to appeal. It has been
shown too that another court may decide the matter differently from
Van Zyl J. I am of the view
that the matter is relatively complex for
leave to appeal to be granted to the Supreme Court of Appeal.
Zulu in seeking condonation
for the late lodging of the application
for leave to appeal is seeking an indulgence. The delay is
substantial, and it is poorly
explained. These are some of the
factors that have a bearing on the question of costs and they
constitute exceptional circumstances
justifying a deviation from the
standard rule that costs follow the results.
[32]
It is ordered as follows:
4.
Condonation for the late lodging of the application for leave to
appeal is granted.
The
8th respondent Skhumbuzo Zulu is ordered to pay 50% of the costs of
the application.
5.
Leave to appeal the judgment of Van Zyl J delivered on 19 November
2021 is granted
to appeal to the Supreme Court of Appeal. The costs
of the application for leave to appeal to be costs on appeal.
6.
Costs to include costs of two counsel where so employed.
Mngadi,
J
APPEARANCES
Case Number:
677/2020P
For the Applicants
(In the application
for leave to appeal):
R. Padayachee SC
Instructed by:
Bharath and
Associates
PIETERMARITZBURG
For the respondents
(In the application
for leave to appeal):
De Wet SC with Du
Plessis
Instructed by:
SLK Attorneys
PIETERMARITZBURG
Matter argued on:
31 October 2023
Date Judgement
delivered:
17 November 2023