About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2023
>>
[2023] ZAECELLC 2
|
|
Sokomani and Others v African National Congress and Others (EL531/2020) [2023] ZAECELLC 2 (3 February 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
NOT
REPORTABLE
Case
no: EL531/2020
In
the matter between:
ONDELA
SOKOMANI
First Applicant
ANELISA
SONGQUMASE
Second Applicant
FUNDISWA
SIZANI
Third Applicant
LUSAPHO
COTO
Fourth Applicant
XOLANI
LOBESE
Fifth Applicant
and
THE
AFRICAN NATIONAL CONGRESS
First Respondent
NATIONAL
EXECUTIVE COMMITTEE
Second Respondent
EASTERN
CAPE PROVINCIAL TASK TEAM (ANC)
Third Respondent
DR
WB RUBUSANA REGIONAL TASK TEAM (ANC)
Fourth Respondent
JUDGMENT
Govindjee
J
Background
[1]
The applicants launched an urgent
application to interdict an ANC regional conference, which had been
scheduled for 8 and 9 April
2022. They claimed that they had been
excluded from participation, affecting their rights to political
freedom, due to various
irregularities. In addition to non-existing
and deceased ANC members reflecting as having participated in Branch
General Meetings
(BGMs), it was alleged that an ‘out of term’
Provincial Executive Committee (PEC) had disbanded various Branch
Executive
Committees (BECs) and appointed new Branch Task Teams
(BTTs) to lead the branches, without due process having been
followed. It
was also alleged that there had been non-compliance with
the ANC Guidelines for Branch, Regional and Provincial Conferences
(‘the
Guidelines’), as adopted by the National Executive
Committee (NEC) of the party. The application was opposed by the
third
and fourth respondents (‘the respondents’).
[2]
On 7 April 2022, this Court (per Mjali J)
issued a rule
nisi
calling upon the respondents to show cause why the following orders
should not be confirmed:
·
That the Branch Biennial General Meetings
(BBGMs) and BGMs conducted during the months of February and March
2022 in the Dr WB Rubusana
region of the ANC were conducted in an
unconstitutional and unlawful manner.
·
That the decisions, resolutions and
outcomes of the above meetings (‘the branch meetings’)
are void.
[3]
The ANC Regional Conference of the Dr WB
Rubusana region, scheduled to commence on 8 April 2022, was also
interdicted pending the
finalisation of all internal appeals and
subject to the ANC ensuring compliance with its own constitution ‘and
the resolution
of the cause of complaint by the applicants’.
The third and fourth respondents were ordered to pay the costs of the
application,
including the costs of two counsel.
[4]
The key issues to be determined are whether
the rule
nisi
issued on 7 April 2022 should be confirmed, or whether the matter is
moot given that internal appeals have been concluded and considering
that the interdicted conference was subsequently convened, and what
costs order should be made.
[5]
The
applicants were, respectively, members in good standing of Wards 22,
16, 46, 40 and 34 of the ANC in the Dr WB Rubusana Region.
In
addition to raising various irregularities in their own branches,
[1]
the applicants purported to challenge the unlawful disbandment of
branch executive committee structures of the party in Wards 42,
11,
12, 17, 20, 22, 26, 34 and 46. The basis for this challenge is that
it was an ‘out of term’ PEC that resolved to
disband the
affected branches during January 2022. No response to appeals lodged
with the NEC had been received and the dissolutions
were unnecessary.
BTTs were appointed in place of the dissolved BECs without due
process and communication and held branch meetings
without ensuring
proper communication with members. The papers make it clear that the
original application was motivated by the
need to interdict the
Regional Conference scheduled for 8 April 2022 ‘pending
consideration of the appeal processes by the
NEC on the dissolution
of the respective branches’.
[6]
Having
unsuccessfully opposed the granting of the rule
nisi
,
the respondents filed an additional answering affidavit seeking to
demonstrate that the interim order was not capable of confirmation.
They argued that the matter should be confined to those branches
whose members were before the court as applicants
[2]
and in the context of appeals relevant to the interim interdict
having been adjudicated to finality. The answering affidavit and
supporting documentation reflect decisions of the Provincial Dispute
Resolution Committee (PDRC) and, in some cases, the National
Dispute
Resolution Committee (NDRC) in addressing various appeals lodged in
respect of irregularities. In two instances (wards
16 and 22), the
internal process resulted in re-runs being ordered by the NDRC,
nullifying the earlier meetings against which appeals
were lodged.
[3]
The interdicted regional conference had, by time
the
opposing affidavit was filed on 26 May 2022, already been convened,
once the various internal appeals had been finalised.
[7]
Only
limited replying affidavits were filed in response, relating to two
disputed scanner reports from March 2022. Based on these
affidavits
and the attached supporting documentation, it may be accepted that
the scanner reports for wards 46 and 34 reflected,
respectively, one
and two deceased erstwhile members of the ANC appear in the record of
persons in attendance at these branch meetings.
It has also been
established that at least certain branch meetings which took place
during February and March 2022 were beset by
irregularities.
[4]
Whether a case was properly made out to declare all the branch
meetings conducted during those months as unconstitutional and
unlawful, and whether the rule should be confirmed given subsequent
events, are separate matters. The applicants argued that the
irregularities experienced constitute violations of the ANC
constitution and the Guidelines, which constitute the terms of the
agreement between the ANC and its members, so that the applicants are
entitled to the declaratory order sought. The respondents
submitted
that the meetings in question were quorate and that even if these
irregularities had occurred, they did not adversely
influence the
standing and outcomes of the meetings in issue, and that the internal
appeal processes had effectively discharged
the interim interdict, so
that these issues are moot.
The
ANC Constitution and Guidelines
[8]
The
legal nature of a political party is accepted as being that of an
association. As a voluntary association is founded on the
basis of
mutual agreement, the relationship between a political party and its
members is governed by the express or implied terms
of the agreement.
The constitution of a voluntary association, together with all the
rules or regulations passed in terms thereof,
collectively form the
agreement entered into by that association’s members and serve
as the internal statute of that association.
[5]
It is a contract concluded between its members that binds them and
there is a duty on the association to comply with the provisions
of
its own constitution.
[6]
[9]
The
ANC’s constitution together with its rules constitute the terms
of the agreement entered into by its members, who each
have a unique
contractual relationship with the party.
[7]
The relationship is distinct given that the party constitution is the
instrument that gives effect to the political rights entrenched
in s
19 of the Constitution of the Republic of South Africa, 1996 (‘the
Constitution’). A breach of the rules of a
political party may
therefore give rise to a claim founded on the infringement of the
underlying constitutional right.
[8]
[10]
The
ANC is therefore obliged to act in accordance with its own
constitution, based on the broader citizens’ constitutional
right to participate in the activities of a political party.
[9]
How that participation right is exercised is unspecified in the
Constitution and left to political parties to regulate. As the
Constitutional Court held in
Ramakatsa
1:
‘
Therefore,
these parties are best placed to determine how members would
participate in internal activities. The various Constitutions
of
political parties are instruments which facilitate and regulate
participation by members in the activities of a political party.’
[11]
In
Mgabadeli
and Others v African National Congress and Others
,
a full bench of this Division confirmed the principle of general
non-interference with the internal arrangements and management
of a
political party acting within the terms of its constitution.
[10]
Participation in the activities of a political party are regulated by
parties themselves, who are best placed to regulate their
own
internal affairs. As to dispute resolution, the court held as
follows:
[11]
‘
Finally,
by reason of the underlying contractual nature of an association, it
is open to the parties to agree on an internal mechanism
to deal with
disputes. Judicial intervention may as a result be deferred or
suspended until a member has pursued all extrajudicial
remedies that
may be available. Where the rules of an association provide for an
internal remedy a member in the normal course
of events first
exhausts the remedy before seeking relief in a court of law. This is
however not an absolute rule. As in the case
of any other contract,
the existence of an internal or domestic remedy, its content and
effect is to be determined on a proper
construction of the terms of
the constitution of the association.’
[12]
When
it is necessary to interpret a constitution, it must be interpreted
in accordance with the ordinary rules of construction that
apply to
contracts in general. This requires giving effect to the plain
language of the document, objectively ascertained within
its
context.
[12]
In the course of
interpretation, preference should be given to a sensible meaning over
‘one that leads to insensible or unbusinesslike
results or
undermines the apparent purpose of the document’.
[13]
[13]
The
ANC constitution provides that the PEC is the highest organ of the
ANC in a province between provincial conferences. It is empowered
to
‘suspend, dissolve and re-launch Branch Executive Committees
[BECs] and Regional Executive Committees [RECs] where necessary,
subject to any directives from the Provincial Conference.’ The
PEC must appoint an interim structure during the period of
suspension
or dissolution to fulfil the functions of the BEC or REC, as the case
may be. A BEC or a REC which has been suspended
or dissolved enjoys a
right of appeal to the NEC in terms of the ANC constitution.
[14]
[14]
The
Guidelines, adopted in terms of rule 26 of the ANC constitution,
address branch dispute resolution processes, and provide for
the BEC
to consider complaints and deliver verdicts in respect of a range of
matters, including disputes about membership lists
and attendance
registers, and about matters relating to the conduct, proceedings or
constitutionality of BGMs or BBGMs.
[15]
The Guidelines state further that if a member is not satisfied by the
resolution of the dispute by the BEC, the member can appeal
in
writing to the PDRC. The final body of appeal on such disputes is the
NDRC.
[16]
[15]
As indicated, the founding papers, in
addition to their focus on branch meeting irregularities, also
reflect substantive and procedural
complaints about PEC decisions to
disband various branches, the applicants confirming that the affected
branches had exercised
their right to appeal to the NEC and arguing
that their constitutional rights had been violated by the NEC’s
failure to respond.
Both of these issues (branch irregularities and
disbandment) require consideration.
The
legal position
[16]
It
must be emphasised that the present application concerns confirmation
of a rule
nisi
.
The rule has been defined as a court order issued at the instance of
an applicant calling upon another party to show cause before
the
court on a particular day why the relief applied for should not be
granted. The decree, rule or order does not take effect
unless the
person affected fails within the stated time to appear and show cause
why it should not take effect.
[17]
If cause is shown on the return day, the court must decide on the
evidence adduced, and according to the circumstances, either
discharge the rule, or make it absolute, or vary it, or make such
order thereon as seems just.
[18]
[17]
Section
172(1)
(a)
of the Constitution states that, when deciding a constitutional
matter within its power, a court ‘must declare that any law
or
conduct that is inconsistent with the Constitution is invalid to the
extent of its inconsistency’.
[19]
The constitutional issue sought to be raised must arise on the facts
of the case before the court.
[20]
This is a unique, constitutionally-created, remedy.
[21]
The section does not, however, articulate the circumstances in which
a Court should decide a constitutional matter:
[22]
‘
[11]
In determining when a Court should decide a constitutional matter,
the jurisprudence developed under s 19(1)
(a)
(iii)
will have relevance, as Didcott J pointed out in the
J
T Publishing
case. It is, however, also
clear from that judgment that the constitutional setting may well
introduce considerations different
from those that are relevant to
the exercise of a Judge’s discretion in terms of s
19(1)
(a)
(iii).
[12]
What is clear is that the High Court erred in approaching the prayer
for constitutional invalidity as if it were a prayer for
discretionary relief in terms of s 19(1)
(a)
(iii).
The relief was sought in terms of the Constitution itself and not
under the Supreme Court Act. It is already settled jurisprudence
of
this Court that a Court should not ordinarily decide a constitutional
issue unless it is necessary to do so. Nor should it ordinarily
decide a constitutional issue which is moot. The decision as to
whether a Court should decide a constitutional matter remains one
governed by the Constitution and its imperatives, not one determined
solely by a consideration of the circumstances in which declaratory
relief under s 19 of the Supreme Court Act would be granted.’
(Footnotes omitted).
[18]
Cases
in which a ‘bare declaration’ which would have no
tangible, concrete result, because the matter involved an academic,
abstract or hypothetical scenario, would seemingly not warrant such a
declaration.
[23]
As Didcott J
held, with reference to the interim Constitution:
‘
Section
98(5) admittedly enjoins us to declare that a law is invalid once we
have found it to be inconsistent with the Constitution.
But the
requirement does not mean that we are compelled to determine the
anterior issue of inconsistency when, owing to its wholly
abstract,
academic or hypothetical nature should it have such in a given case,
our going into it can produce no concrete or tangible
result, indeed
none whatsoever beyond the bare declaration.’
[19]
Mootness
arises when a matter ‘no longer presents an existing or live
controversy’.
[24]
This
is because judicial resources should be wielded efficiently and
because, in line with the decision in
J
T Publishing
,
abstract, academic or hypothetical questions should be avoided by the
courts. This principle has been repeatedly reaffirmed by
the
Constitutional Court.
[25]
[20]
Nonetheless,
mootness is not always an absolute bar to the justiciability of an
issue, and it has been generally accepted that courts
have a
discretion whether or not to consider it.
[26]
The interests of justice is the key consideration.
[27]
In the context of appeals to the Constitutional Court, the following
factors have been held to be potentially relevant in determining
whether the interests of justice require a decision in a matter no
longer presenting live issues:
[28]
·
the nature and extent of the practical
effect that any possible order might have;
·
the
importance of the issue, including the public importance of an
otherwise moot issue;
[29]
·
the complexity of the issue;
·
the fullness or otherwise of the argument
advanced; and
·
resolving disputes between different
courts.
[21]
Mootness
is likely to be a bar to relief where the constitutional issue is not
merely moot as between the parties but is also moot
relative to
society at large, and no considerations of compelling public interest
require the court to reach a decision.
[30]
Such considerations have also been referenced, in considering the
issue of mootness, by full benches of this Division, also when
sitting as courts of first instance.
[31]
[22]
More
recently, in
Minister
of Justice and Others v Estate Stransham-Ford
,
[32]
(‘
Stransham-Ford
’)
the SCA held that constitutional issues only arise for decision
where, on the facts of a particular case, it is necessary
to decide
the constitutional issue. Courts should avoid dealing with a
situation where events subsequent to the commencement of
litigation
resulted in there no longer being an issue for determination.
[33]
The SCA added that the discretion to hear moot matters in the
interests of justice was reserved by the Constitutional Court to
cases where an order would have a practical impact on the future
conduct of one or both of the parties to the litigation.
[34]
The SCA (and other appeal courts) enjoy a similar jurisdiction in
terms of
s 16(2)
(a)
of the
Superior Courts Act, 2013
.
[35]
But courts of first instance should take heed. According to Wallis
JA:
[36]
‘
In
any event, I do not accept that it is open to courts of first
instance to make orders on causes of action that have been
extinguished,
merely because they think that their decision will have
broader societal implications. There must be many areas of the law of
public
interest where a judge may think that it would be helpful to
have clarification but, unless the occasion arises in litigation that
is properly before the court, it is not open to a judge to undertake
that task.’
[23]
The
difference between the exercise of an appeal court’s
jurisdiction in dealing with moot issues and the role of this Court
was explained as follows:
[37]
‘
When
a court of appeal addresses issues that were properly determined by a
first-instance court, and determines them afresh because
they raise
issues of public importance, it is always mindful that otherwise
under our system of precedent the judgment at first
instance will
affect the conduct of officials and influence other courts when
confronting similar issues…The appeal court’s
jurisdiction was exercise because “a discrete legal issue of
public importance arose that would affect matters in the future
and
on which the adjudication of this court was required”. The High
Court is not vested with similar powers. Its function
is to determine
cases that present live issues for determination.’
Analysis
[24]
This matter concerns the confirmation of
the rule
nisi
issued
on 7 April 2022. The rule is framed in two parts. The first relates
to declaratory relief involving unconstitutional and
unlawful conduct
at ANC BGMs and BBGMs conducted during February and March 2022 in the
Dr WB Rubusana region. The second part follows
on from the first,
holding that the decisions, resolutions and outcomes of the meetings
held during February and March 2022 are
void. Following the founding
papers, the ‘unconstitutional and unlawful’ conduct
alleged may be classified under two
headings: irregularities in
meetings and disbandment of the BECs.
[25]
It
is immediately apparent that the rule is couched in extremely wide
terms. The only sensible interpretation of the rule is to
read both
parts to include all ANC BGMs and BBGMs conducted during the months
of February and March 2022 in the Dr WB Rubusana
region. The
difficulty with this is that the applicants were members of a limited
number of wards (22, 16, 46, 40 and 34). The
application was launched
‘in our capacity as the leaders of the disbanded branch
executive committee structures of the ANC,
viz
Ward
42, 11, 12, 17, 20, 22, 26, 34 and 46’. The case the
respondents were required to meet, from the outset, was restricted
to
issues with these branches (in particular, disbandment and specified
irregularities / non-compliance with the Guidelines in
relation to
branch meetings).
[38]
[26]
I find no basis on the papers to confirm a
rule relating to other ANC BGMs and BBGMs in the region that might
have been conducted
during February and March 2022. The mere fact
that the first replying affidavit indicates that the membership
statistics and data
system of the ANC is not linked to the Department
of Home Affairs neither makes out the case for systemic
irregularities nor supports
confirmation of the rule as constructed.
The arguments ignore the reality that there may also be various other
approaches to negating
the fraudulent use of identification documents
by people seeking to participate in branch meetings. In addition,
what occurred
at other meetings in the region during February and
March 2022 was not placed before this court. Nevertheless, I accept
that it
remains possible, in principle, to confirm the rule in a
varied, more restricted form and proceed to consider whether this is
appropriate
in the circumstances.
[27]
The interplay between the ANC’s
constitution and s 19 of the Constitution has been thoroughly
canvassed in the majority judgment
in
Ramakatsa
1. Given that relationship, it must be
accepted that this court is seized with a ‘constitutional
issue’ when it considers
what transpired at the impugned
meetings. This court need not belabour the unquestionable importance
of proper participation in
the activities of a political party, or
reiterate that a breach of the terms of the constitution of a
political party now has a
direct link with a contravention of a
constitutional right. Mr
Katz SC
urged the court to confirm the declaration of invalidity merely
because conduct inconsistent with the Constitution had occurred
at
certain branch meetings. Based on s 172 of the Constitution, it was
argued that such relief was obligatory in the absence of
any
explanation or justification from the respondents regarding the
conduct of those meetings.
[28]
The
Constitutional Court has confirmed that declaratory orders are
flexible remedies which can assist in clarifying legal and
constitutional
obligations in a manner which promotes the protection
and enforcement of the Constitution and its values.
[39]
Following
Islamic
Unity Convention
,
however, it is clear that this court is not always obliged to decide
a constitutional matter raised on the papers before it. This
put paid
to the argument that this court is obliged to declare any irregular
conduct which occurred at branches unconstitutional
and unlawful
simply because the conduct occurred and the applicants seek such
declaratory relief. In fact, a constitutional issue
should not be
decided unless it is necessary to do so, which will not ordinarily be
the case if the constitutional issue is moot.
[29]
Constitutional imperatives must be
considered as part of deciding whether the constitutional matter
should be decided. Hypothetical,
abstract or academic cases where a
‘bare declaration’ would result in no tangible result
would not merit determination.
It is common cause that various
internal appeal processes were pending at the time the application
was launched. The applicants’
replying affidavit, filed on 5
April 2022, confirms as much in relation to alleged irregularities in
branch meetings:
‘
In
any event, the fact of the matter is that no appeal has been convened
to determine these issues and the deponent is not the PDRC,
as such
we seek that the appeal for this branch be convened and a
determination be made.’
[30]
As
indicated, the respondents subsequently provided responses as to the
outcome of the various internal appeal processes, which,
leaving
aside the misplaced claim of systemic irregularities, relate to all
the alleged irregularities in the different branches
that were
referenced in the founding papers. Following the completion of those
internal processes, the regional conference was
convened. There is
nothing on the papers before me to suggest that any live issues or
controversies emanating from those matters
persist. The events
subsequent to the granting of the rule
nisi
,
particularly the various internal appeal processes followed, and
their outcomes, have altered the landscape so that there is no
real
issue for determination.
[40]
As the Labour Appeal Court has noted in a different context, this is
not an unusual occurrence.
[41]
Reverting to what occurred at the impugned branch meetings, and
declaring that conduct to be unconstitutional and unlawful would
lack
practical effect considering the subsequent events.
[42]
If anything, confirming the second part of the rule may cause
unnecessary consternation about whether the various subsequent
occurrences,
including internal appeal outcomes, re-runs and the
regional conference itself, should now be rewound. No case for any of
those
drastic outcomes has been made. The confirmation of the rule
based on irregularities at certain branch meetings is now unnecessary
given the outcome of the internal appeal processes.
[31]
Following
Stransham-Ford
,
as a court of first instance, that appears to be the end of the
matter and there is no discretion to nevertheless proceed in the
interests of justice, or because an issue of public importance has
been raised, where there is no live issue for determination.
The
various cases cited by the applicants deal with the exercise of a
discretion in appeal cases and are distinguishable.
[43]
I might add that even had I applied the factors traditionally
considered by appeal courts in deciding whether the interests of
justice require a decision, my view would have remained the same.
[32]
There
are different difficulties in respect of confirming the rule based on
the issues raised in respect of the disbandment of certain
branches.
It appears from the papers that appeals against the dissolution of
BECs were submitted to the NEC in terms of the ANC
constitution,
seemingly without response. One question is whether entering the
merits of this aspect of the case is appropriate
absent the NEC’s
response. The timing of a constitutional challenge and the doctrine
of ripeness in the context of an ANC
provincial conference and the
duty to exhaust an internal remedy was carefully analysed in
Mgabadeli
.
[44]
Applying the principles confirmed in that decision, I am unconvinced
that this dimension of the present application remains a ‘real,
earnest, and vital controversy between the litigants’ given the
flow of subsequent events. In particular, given that the
Regional
Conference has been held some time ago, the matter would appear to be
of academic interest only. I do not consider the
circumstances to
warrant the exercise of a discretion to nevertheless proceed to
address the merits in relation to a matter to
be determined by the
NEC.
[45]
[33]
The
outcome would remain unchanged even if this court were to accept that
the NEC’s failure to respond should be treated as
a final
position to refuse the appeal.
[46]
I hasten to add that this was not the applicants’ argument. The
respondents second answering affidavit took the point that
any appeal
to the NEC in respect of a dissolution would not return the affected
BECs to office, so that the BTTs were within their
rights to proceed
to convene the various meetings that followed, pending any decision
by the NEC to overturn the dissolution. This
averment was left
unchallenged in reply and in argument and must be accepted as
reflecting the correct position, so that the rule
nisi
cannot
be confirmed based on reasons related to disbandment.
[34]
I am in any event also unconvinced by the
applicants’ arguments on the merits related to the dissolution
of the BECs, given
the facts at hand. It is common cause that the
COVID-19 pandemic resulted in the NEC postponing all conferences, and
that the Secretary-General
of the party mandated that all ANC
structures should not be disbanded based (only) on the fact that the
date by which they were
to hold a conference was overdue. It may be
accepted that this proclamation effectively postponed provincial and
regional conferences,
as well as branch meetings. The directive
cannot be interpreted to have placed an absolute moratorium on
disbandment of branches.
[35]
The
position changed during January 2022 when structures were advised to
ensure that regional and provincial conferences should
be finalised
by the end of March 2022. As the applicants conceded in reply, the
PEC is empowered to suspend, dissolve and re-launch
BECs where
necessary, subject to any directives from the Provincial
Conference.
[47]
The PEC must
then appoint an interim structure during the period of suspension or
dissolution to fulfil the functions of the BEC.
[48]
The founding affidavit, while complaining about the appointment of
BTTs to substitute the functions of the BECs in existence at
the
time, focused on the failure of BTTs to notify members of meetings
and the subsequent irregularities discovered in relation
to those
meetings. In reply, the applicants accepted that the PEC has the
power to disband a BEC but questioned only whether, given
a directive
from the Secretary-General not to disband branches, it was open for
the PEC to do so without consultation with the
REC.
[36]
The PEC in office at the time resolved to
disband various branches, even though there may have been internal
consternation with
that decision. There is nothing on the papers to
suggest that the NEC had exercised its power, in terms of clause
12.2.4 of the
ANC constitution, to suspend or dissolve the PEC prior
to the time the PEC exercised this power, or that it had been
automatically
dissolved through the passing of time. In the
circumstances, the respondents’ averment that the repository of
the power to
disband the BECs exercised this power must be accepted.
[37]
As
for the reasons for the disbandment, both the first and second
answering affidavits make repeated reference to various BECs having
been dysfunctional at the time they were dissolved. The implication
is that dissolution was perceived to be necessary by the PEC.
Procedurally, the power to dissolve branches was never delegated to
the REC and a basis for a more complete form of consultation
and
notification of disbandment than that which occurred has not been
established.
[49]
The
dissolutions, and various related matters, were discussed with the
affected BECs. Applying
Plascon-Evans
,
these answers stand on the papers and must be preferred to the
arguments to the contrary. BTTs were then put in place and fulfilled
the functions of the BECs.
[50]
The answering papers add that the PTT, once in office, ratified those
decisions, and that the same protocol would be followed in
cases
where the term of office of a REC or BEC ended without a regional
conference or BBGM being called, averments left unchallenged
in
reply. To the extent that this remains a relevant consideration, I am
not satisfied that the respondents’ version as to
ratification
can safely be rejected on the papers.
[38]
The rule must be discharged for all these
reasons.
[39]
As for costs, the applicants were
successful in obtaining a costs order against the respondents when
the rule
nisi
and
interdict was granted in their favour. Various subsequent
postponement orders were granted with costs to be costs in the cause.
The rule
nisi
was
confirmed by Stretch J on 4 October 2022, with costs following the
result, but that order was subsequently rescinded, with no
order as
to costs, on 7 October 2022. The question is whether the usual order
in respect of the costs of proceedings subsequent
to the granting of
the rule and interdict, should follow, so that the applicants are
saddled with a costs order.
[40]
In
Ramakatsa
1,
the majority of the court considered whether the appellants, who had
been substantially successful in their application for leave
to
appeal directly to the Constitutional Court, should obtain their
costs following the usual approach, and because they had been
compelled to approach the court to vindicate constitutional rights.
The relevant part of the judgment reads as follows:
[51]
‘
It
is so that, ordinarily, a party that successfully vindicates a
constitutional right is awarded costs. That is so particularly
if the
respondent is a public body that bears an obligation to uphold the
Constitution. The present dispute amounts to not much
more than a
power struggle within provincial structures of the same political
party. If these rifts are to heal, in time, the parties
will have to
talk to each other. A costs order may make the healing and
reconciliation more difficult for those concerned. The
second
relevant consideration is that this is a class action against, in
addition to the ANC, several individual provincial and
branch office
bearers. A cost order against the personal estates of one or more of
them may not be just and equitable. We accordingly
make no order as
to costs.’
[41]
The
awarding of costs is a discretionary matter, to be determined after
careful consideration of the proceedings as a whole. While
the
applicants have been unsuccessful in obtaining confirmation of the
rule, these proceedings involved the continuation of proceedings
centred around a constitutional issue. I am cognisant of the practice
in constitutional-related litigation that an unsuccessful
litigant
ought not to be ordered to pay costs. This is primarily due to the
chilling effect such an order may have on future litigants
seeking to
vindicate constitutional rights, and because constitutional
litigation, irrespective of outcome, often transcends the
resolution
of the dispute between the parties and has a wider impact on the
rights of similarly situated persons.
[52]
Despite the outcome, I am satisfied that genuine and substantive
issues were raised in a proper manner when the applicants sought
confirmation of the rule. To that consideration may be added the
sentiments expressed in
Ramakatsa
1 about disputes that emanate from power struggles within a political
party, and the need to move towards the healing of rifts,
as well as
the concern regarding the appropriateness of a costs order against
the personal estates of party members. In these circumstances,
I am
of the view that each party should bear their own costs.
Order
1.
The application is dismissed.
2.
Each party is to pay its own costs.
A. GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard
:28
October 2022
Delivered
:03
February 2023
Appearances:
For the
Applicants:
Adv A Katz SC
Adv D
Cooke
Adv S
Maliwa
Instructed
by:
Makangela Mtungani Inc.
Applicant’s
Attorneys
58
Free Square
Unit A
Vincent
Email:sinawom@makangelamtungani.co.za
For the
Respondents:
Adv AM Bodlani SC
Adv Z
Mashiya
Instructed
by:
Sakhela Inc.
Respondent’s
Attorneys
54
Stewart Drive
Baysville
East
London
Email:sakhelan@sakhelainc.co.za
[1]
The
complaints relate mainly to the names of people appearing in branch
meeting scanner reports when they did not attend or could
not have
attended because they were incarcerated or deceased.
[2]
In
sequence, the branches implicated are wards 11, 12, 16, 17, 20, 22,
26, 34, 40, 42 and 46.
[3]
In
the case of ward 16, the reasons provided by the NDRC included
membership fraud and glaring discrepancies in the scanner report.
The branch was ordered to rerun the meeting with a Provincial Task
Team member deployed to oversee the meeting. In the case of
ward 22,
the NDRC noted that sworn affidavits had been provided by members
whose identification documents had been scanned despite
their
non-attendance at the meeting, so that a rerun was ordered.
[4]
On
24 February 2022, for example, the Provincial Secretary of the party
advised that a PEC Investigative Team would conduct a
process in
respect of reported violent incidents in wards 1, 2, 6, 22 and 42,
yet no report was forthcoming. See
Ramakatsa
and Others v African National Congress and Another
[2021] ZASCA 31
(‘
Ramakatsa
2’)
para 16, where attendance register irregularities were found to
render a BGM unlawful.
[5]
Turner
v Jockey Club of South Africa
1974
(3) SA 633
(A) at 645B-C;
Natal
Rugby Union v Gould
[1998] ZASCA 62
;
1999 (1) SA 432
(SCA) at 440F-G.
[6]
Ramakatsa
and Others v Magashule and Others
[2012]
ZACC 31
;
2013 (2) BCLR 202
(CC) (‘
Ramakatsa
1’)
para 16.
[7]
Ramakatsa
1
ibid fn 6 para 79.
[8]
Mgabadeli
and Others v African National Congress and Others
[2017]
ZAECGHC 131 (‘
Mgabadeli
’)
para 15.
[9]
Ramakatsa
1
op cit fn 6 para 16.
[10]
Mgabadeli
op
cit fn 8 para 16.
[11]
Ibid
para
17 (footnotes omitted).
[12]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
2012 (4) SA 593
(SCA) para 18.
[13]
See
National
Federated Chamber of Commerce and Industry and Others v Mkhize and
Others
[2014] ZASCA 177
;
[2015] 1 All SA 393
para 21.
[14]
Clause
19.9.12 of the ANC constitution.
[15]
Clause
7 of the Guidelines.
[16]
Clause
7.6 and 7.9 of the Guidelines. Also see Appendix 4 of the ANC
constitution on the National Dispute Resolution Committee
and the
National Dispute Resolution Appeal Committee.
[17]
Shoba
v Officer Commanding, Temporary Police Camp, Wagendrift Dam and
Another; Maphanga v Officer Commanding, South African Police
Murder
and Robbery Unit, Pietermaritzburg and Others
1995
(4) SA 1
(A) at 18-19.
[18]
GB
Van Zyl
The
Theory of the Judicial Practice of South Africa
(4
th
Ed) (Juta) 401. The court is not bound by the exact terms of the
rule
nisi
,
but may mould it so as to meet the justice of the case.
[19]
S
172(1)
(b)
adds that a court ‘may make any order that is just and
equitable’.
[20]
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development and Others
2009
(4) SA 222
(CC) para 43.
[21]
Islamic
Unity Convention v Independent Broadcasting Authority and Others
(‘
Islamic
Unity Convention
’)
[2002] ZACC 3
;
2002 (4) SA 294
(CC) (‘
Islamic
Unity Convention
’)
para 10. On the differences between the jurisdiction of the High
Court to grant declaratory relief and s 172 of the Constitution,
also see
National
Director of Public Prosecutions and Another v Mohamed NO and Others
2003 (4) SA 1
(CC) paras 55-56. In
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
[2004] ZACC 20
;
2005 (2) SA 359
(CC) (‘
Rail
Commuters
’),
the Constitutional Court confirmed, with reference to s 38 of the
Constitution, that a declaratory order might also
be appropriate
where a court has not found conduct to be in conflict with the
Constitution: para 106.
[22]
Islamic
Unity Convention
ibid
paras 11 and 12. Section 21(1)
(c)
of the Superior Courts Act, 2013 (Act 10 of 2013) contains similar
wording to s 19(1)
(a)
(iii)
of the repealed Supreme Court Act, 1959 (Act 59 of 1959).
[23]
J
T Publishing (Pty) Ltd and Another v Minister of Safety and Security
and Others
(‘
J
T Publishing
’)
[1996] ZACC 23
;
1997 (3) SA 514
(CC) para 15. Also see
Islamic
Unity Convention
ibid para 10.
[24]
National
Coalition for Gay and Lesbian Equality and Others
v
Minister of Home Affairs and Others
2000 (2) SA 1
(CC) para 21 and fn 18.
[25]
[25]
See,
for example,
Director-General
Department of Home Affairs and Another v Mukhamadiva
[2013] ZACC 47
paras 33-37, where Moseneke DCJ traced the
development of this position.
[26]
Independent
Electoral Commission v Langeberg Municipality
[2001] ZACC 23
;
2001
(3) SA 925
(CC) (‘
Langeberg
Municipality
’)
para 9;
Sebola
and Another v Standard Bank of South Africa Ltd and Another
2012 (5) SA 142
(CC) para 32; Also s
ee
Ramuhovhi
and Another v President of the Republic of South Africa and Others
2016 (6) SA 210
(LT) para 19.
[27]
See
Van
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
Amicus Curiae)
[2007] ZACC 24
;
2008
(2) SA 472
(CC); para 29; In the context of decisions of the ANC,
see
Motswana
and Others v African National Congress and Others
[2019] ZAGPJHC 4 para 19.
[28]
MEC
for Education, KwaZulu-Natal, and Others v Pillay
[2007] ZACC 21
;
2008
(1) SA 474
(CC) para 32;
Langeberg
Municipality
op cit fn 26 para 11.
[29]
Director-General
Department of Home Affairs and Another v Mukhamadiva
[2013]
ZACC 47
para 40.
[30]
President
of the Ordinary Court Martial NO v Freedom of Expression Institute
[1999] ZACC 10
;
1999
(4) SA 682
(CC) para 16.
[31]
Centre
for Child Law and Others
v
Minister of Basic Education and Others
2020 (3) SA 141
(ECG) para 59;
Malawu
v MEC for Cooperative Governance and Traditional Affairs, Eastern
Cape and Another
[2022] ZAECMKHC 27 para 42. Also see the remarks of the court in
The
Fonarun Naree Trustees, Copenship Bulkers A/S (In Liquidation) and
Others v Afri Grain Marketing (Pty) Ltd and Others
2020 (4) SA 188
(GJ) para 21.
[32]
Minister
of Justice and Others v Estate Stransham-Ford
2017
(3) SA 152
(SCA) (‘
Stransham-Ford
’)
paras 21-27.
[33]
The
SCA appeared to confine consideration of the term ‘mootness’
to instances where events overtake matters after
judgment has been
delivered, so that further consideration of the case by way of
appeal would not produce a practically effective
judgment. The
situation where a cause of action ceased to exist before judgment in
the court of first instance was distinguished
on the basis that
there was then no longer a claim before the court for its
adjudication: para 26.
[34]
Stransham-Ford
op
cit fn 32 para 23.
[35]
Act
10 of 2013.
[36]
Stransham-Ford
op
cit fn 32 para 24. Cf
J
and Another v Minister of Home Affairs and Another
[2023] ZAECQBHC 1 para 20.
[37]
Stransham-Ford
op
cit fn 32 para 25 (references omitted).
[38]
On
the importance of accuracy of pleadings and the need to hold parties
to their pleadings in such matters, see
SATAWU
v Garvas and Others (City of Cape Town as Intervening Party and
Freedom of Expression Institute as Amicus Curiae)
2012 (8) BCLR 840
(CC) paras 113, 114.
[39]
Rail
Commuters
op
cit fn 21 at 410F.
[40]
See
Wings
Park Port Elizabeth (Pty) Ltd v MEC, Environmental Affairs, Eastern
Cape and Others
2019 (2) SA 606
(ECG) para 47.
[41]
Ekurhuleni
Metropolitan Municipality v South African Municipal Workers Union
and Others
[2011]
ZALAC 1
;
[2011] 5 BLLR 516
(LAC); (2011) 32
ILJ
1686 (LAC) paras 18-20.
[42]
Cf
Ntamo
v African National Congress, Regional Executive Committee of the
Eastern Cape Province
2018
JDR 0881 (ECM) para 24.
[43]
See,
for example,
Pheko
and Others v Ekurhuleni Metropolitan Municipality
2012 (2) SA 598
(CC) para 31.
[44]
Mgabadeli
op
cit fn 8 para 17 and following.
[45]
See
Mgabadeli
op cit fn 8 para 34.
[46]
See
Ramakatsa
2
op cit fn 4 para 28.
[47]
Clause
19.9.12.2 of the ANC constitution.
[48]
Clause
19.9.12.3 of the ANC constitution.
[49]
The
erstwhile secretary of the REC in the region confirms that he was
consulted on behalf of the REC whenever the PEC dissolved
branches
in the region, that he, representing the REC, ‘was always
aware and participated in what was happening’.
Also see clause
21.10 of the ANC constitution: ‘The powers of the REC are
those as may be delegated to it by the PEC. In
addition, the REC
may, subject to the directions and instructions of the PEC, exercise
the following powers …’
[50]
See
Ntamo
op
cit fn 42 para 33.
[51]
See
Ramakatsa
1 op cit fn 6 para 127. Also see
Dube
and Others
v
Zikalala and Others
[2017] 4 All SA365 (KZP) paras 160-163.
[52]
See
Affordable
Medicines Trust v Minister of Health
[2005] ZACC 3
at para 138 and following.