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[2022] ZAKZPHC 14
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African Independent Congress and Others v Ntshayisa and Others (1112/2021P) [2022] ZAKZPHC 14 (9 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
number: 1112/2021P
In
the matter between:
AFRICAN
INDEPENDENT CONGRESS
FIRST APPLICANT
STEVEN
MAHLUBANZIMA JAFTA N.O.
SECOND APPLICANT
MANDLENKOSI
PHILLIP GALO N.O.
THIRD APPLICANT
MARGARET
ARNOLDS FOURTH
APPLICANT
KHAYA
MHLABA
FIFTH
APPLICANT
NIKWE
MADIKIZELA
SIXTH
APPLICANT
TEMBA
AUBREY MHLONGO SEVENTH
APPLICANT
NOMBULELO
XATASI
EIGHTH APPLICANT
SIKIWE
DLOVA
NINTH APPLICANT
TOBEKA
GALO
TENTH APPLICANT
SI
SELEKE
ELEVENTH
APPLICANT
NKOSIVELELE
DUMA
TWELFTH APPLICANT
VUYISILE
KRAKRI
THIRTEENTH APPLICANT
and
LULAMA
MAXWELL NTSHAYISA
FIRST RESPONDENT
FUNDISWA
LANGA
SECOND RESPONDENT
PHAKAMILE
ALFRED HLOMELA
THIRD
RESPONDENT
BULELWA
XOKOYANE
FOURTH RESPONDENT
VATHISWA
XOTHONGO
FIFTH RESPONDENT
CHRIS
MAYEKISO
SIXTH RESPONDENT
Case
number: 811/2021P
In
the matter between:
LULAMA
MAXWELL NTSHAYISA N.O.
APPLICANT
and
MANDLENKOSI
PHILLIP GALO
FIRST
RESPONDENT
STEVEN
MAHLUBANZIMA JAFTA
SECOND
RESPONDENT
MARGARET
ARNOLDS
THIRD RESPONDENT
KHAYA
MHLABA
FOURTH
RESPONDENT
NIKWE
MADIKIZELA
FIFTH
RESPONDENT
TEMBA
AUBREY MHLONGO
SIXTH RESPONDENT
NOMBULELO
XATASI
SEVENTH RESPONDENT
SIKIWE
DLOVA
EIGHTH RESPONDENT
TOBEKA
GALO
NINTH RESPONDENT
TSHEPISO
SELEKE
TENTH RESPONDENT
NKOSIVELELE
DUMA
ELEVENTH RESPONDENT
VUYISILE
KRAKRI
TWELFTH RESPONDENT
AFRICA
INDEPENDENT CONGRESS
THIRTEENTH RESPONDENT
FIRST
NATIONAL BANK, MATATIELE
FOURTEENTH RESPONDENT
ORDER
The
following order is granted:
Case
number: 1112/21P
1.
The application is dismissed; and
2.
There shall be no order as to costs.
Case
number: 811/21P
1.
The application is dismissed; and
2.
There shall be no order as to costs.
JUDGMENT
Mossop
AJ:
Introduction
[1]
The first applicant in the application
under case number 1112/21P, and the thirteenth respondent in the
application under case number
811/21P, is the African Independent
Congress (AIC), a political party. A small political party, but a
registered political party,
nonetheless, duly constituted according
to law. At the time that these two applications were brought, the AIC
had two representatives
in the National Assembly. These
representatives were Mr Mandlenkosi Phillip Galo (Mr Galo), and Mr
Lulama Maxwell Ntshayisa (Mr
Ntshayisa). The party also held several
seats in various municipalities in Gauteng, namely Johannesburg and
Ekurhuleni.
[2]
In addition to having two parliamentarians,
the AIC also has two factions. Predictably, one faction is headed up
by Mr Galo and
the other by Mr Ntshayisa and they will thus be
referred to as ‘the Galo faction’ and ‘the
Ntshayisa faction’
respectively. The two factions have,
essentially, through their inability to countenance accommodating
each other’s views,
and through propagating internecine strife
between each other, driven the AIC to the brink of political
extinction. First National
Bank (FNB) is the AIC’s banker.
Because of the conduct of the two factions, FNB has placed a hold on
the AIC’s bank
accounts with it because it remains uncertain as
to which of the two factions, if either, is the true representative
of the AIC.
The AIC has consequently been financially crippled, is
financially moribund and is unable to engage in any financial
transactions.
This has occasioned great hardship to, inter alia, the
salaried employees of the AIC.
[3]
A consequence of the financial hardship
that salaried employees of the AIC have been put to, is demonstrated
by the fact that I
have been contacted personally on at least three
occasions by an affected person or persons associated with the AIC,
complaining
of the financial hardship they are enduring. I have
consistently declined to engage with the person or persons and have
indicated
to them that they are required to formally join the
applications if they require their views to be taken into
consideration. Some
of the messages that I have received contained
insults directed at myself. I am presently an acting judge (being a
practising advocate),
and I can only assume that my personal contact
details were acquired from the Society of Advocates of
KwaZulu-Natal’s website.
When I caused the court file to be
uplifted to prepare this judgment, I noted certain documents in the
court file which were filed
by affected persons. There has been no
joinder of these persons and I have accordingly not considered what
is contained in those
documents.
The
two applications
[4]
The application under case number 1112/21P
is brought at the instance of the Galo faction. I shall refer to this
application as
‘the main application’. The other
application under case number 811/21P, is at the instance of the
Ntshayisa faction.
I shall refer to this application as ‘the
second application’.
[5]
By way of an order of Skinner AJ granted on
25 February 2021, it was directed that both the main and the second
applications would
be heard together.
The
relief claimed in the main application
[6]
The main application was brought as an
urgent application by the AIC and twelve other applicants, some of
whom apparently now serve
on a body that describes itself as the
‘National Executive Committee’ of the AIC (NEC). The
relief claimed in the main
application is wide ranging and is final
in nature. In summary, the applicants claim:
(a)
an order directing that the first
respondent in the main application, FNB, uplift restraints imposed by
it on five bank accounts
held by the first applicant with it (FNB
does not appear in the headnote as a party to the application, but it
is, in fact, the
first respondent);
(b)
an order declaring unlawful a general
meeting organised by the applicant in the
second
application and held on 31 October 2020 and, as a consequence, an
order that any resolutions passed at that meeting be declared
unlawful and be set aside;
(c)
an order declaring the second to seventh
applicants to be lawfully appointed members of the NEC of the AIC;
(d)
an interdict restraining the second and
further respondents from interfering with the business of the AIC;
(e)
an order permitting the applicants to
continue making arrangements for the convening of a national
conference of the AIC;
(f)
an order preventing the second and further
respondents from using the letterheads and stationery of the AIC; and
(g)
costs on the scale as between attorney and
client, such to include the costs of two counsel.
The
relief claimed in the second application
[7]
The only applicant in the second
application, who is also the second respondent
in
the main application, is Mr Ntshayisa, in his representative
capacity. The respondents in the second application are largely
the
applicants in the main application, with one possible exception: one
Tshepiso Seleke is referred to as the tenth respondent
in the second
application. The ninth applicant in the main application is one Si
Seleke. It is not clear whether the two Seleke’s
referred to
are one and the same person.
[8]
As in the main application, FNB is also a
respondent in the second application. This application was also
brought as a matter of
urgency. The relief claimed is also final in
nature and is, in summary, the following:
(a)
a declaratory order is claimed that certain
identified individuals, being the second to sixth respondents in the
main application,
were lawfully appointed to a structure identified
as the ‘second interim structure’ of the AIC and that
they are entitled
to take over the management, administration and
political functions of the AIC;
(b)
an order that all respondents cited in the
second application shall cease to represent that they are members of
the NEC of the AIC;
(c)
an order that those respondents must
physically give up the offices of the AIC
and
restore them to the applicant and must relinquish being signatories
to the AIC’s bank account (singular) held at the Matatiele
branch of FNB;
(d)
an order directing the applicant to
arrange, and hold, the second national elective congress of the AIC
within one year of the date
of the court’s order;
(e)
an order directing FNB to uplift the hold
on the AIC’s bank accounts (plural) with it; and
(f)
costs of suit on the scale of attorney and
client, including the costs of two counsel.
The
test
[9]
The
principles for adjudicating on applications of this nature are aptly
summarized in
Thebe
Ya Bophelo Healthcare Administrators (Pty) Ltd and others v National
Bargaining Council for the Road Freight Industry and
another
:
[1]
‘
.
. . where an applicant in motion proceedings seeks final relief, and
there is no referral to oral evidence, it is the facts as
stated by
the respondent together with the admitted or undenied facts in the
applicants' founding affidavit which provide
the factual basis for
the determination, unless the dispute is not real or genuine or the
denials in the respondent's version are
bald or uncreditworthy, or
the respondent's version raises such obviously fictitious disputes of
fact, or is palpably implausible,
or far-fetched or so clearly
untenable that the court is justified in rejecting that version
on the basis that it obviously
stands to be rejected
.
’
[10]
It will be
discerned that this is a distillation of the well-known approach set
out in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
.
[2]
Representation
[11]
The applicants in the main application and the respondents in the
second application were represented by Mr Brown, and the
respondents
in the main application and the applicant in the second application
were represented by Mr Combrink. Both counsel are
thanked for their
assistance.
The
death of Mr Ntshayisa
[12]
Argument had virtually been completed on 23 July 2021 when the sad
news reached the court, after the short adjournment had
been taken,
that Mr Ntshayisa had died earlier that morning, while the matter was
being argued. The delay in delivering this judgment
was occasioned by
the appointment of Mr Ntshayisa’s executor and the steps
outlined in Uniform rule 15(3) being taken. It
took several months
for this to be achieved.
[13]
It was a reasonable possibility that the death of Mr Ntshayisa might
bring an end to the dispute between the two factions.
Regrettably,
this was not the case.
Jurisdiction
[14]
It is common cause that the AIC has its roots in the town of
Matatiele. At the time that it was founded, there was a contestation
over which province Matatiele should form part of: KwaZulu-Natal or
the Eastern Cape. Indeed, that was one of the reasons for the
establishment of the AIC.
[15]
That question has been finally resolved. In terms of schedule 1A to
the Constitution of the Republic of South Africa, 1996,
as amended by
the Constitution Thirteenth Amendment Act of 2007, and read with the
Cross-Boundary Municipalities Laws Repeal and Related Matters
Amendment Act 24 of 2007
, the Matatiele Local Municipality now falls
within the geographical boundaries of the province of the Eastern
Cape.
[16]
Given that none of the applicants or respondents in either
application reside within KwaZulu-Natal, I questioned whether this
court had the jurisdiction to entertain the applications. After
hearing argument on other aspects of the two applications, I invited
both counsel to address written argument to me on the question of
jurisdiction. I am indebted, in particular, to Mr Combrink for
his
detailed submissions in this regard.
[17]
Both counsel concluded in their submissions that this court has
jurisdiction.
[18]
Section
21(1)
of the
Superior
Courts Act 10 of 2013
provides that
a division of the high court of South Africa ‘has jurisdiction
over all persons residing or being in, and
in relation to all causes
arising . . . within, its area of jurisdiction’. In terms of
section 21(2)
‘[a] division also has jurisdiction over any
person residing or being outside its area of jurisdiction who is
joined as a
party to any cause in relation to which such court has
jurisdiction’.
[19]
In a
judgment of this division in
Minister
of Rural Development and Land Reform v Tsuputse and others,
[3]
Jeffrey AJ found that this division continues to have jurisdiction
over Matatiele, notwithstanding that it now falls within the
Eastern
Cape Province. I am bound by that judgment unless I believe it to be
incorrect, which I do not. In the result, I am satisfied
that I have
jurisdiction to hear the matter.
The
constitution of the AIC
[20]
The AIC, as is to be expected from a voluntary
association, has a constitution (the constitution). It is attached to
the founding
affidavit in the main application. That document
describes itself as the fourth edition of the constitution, as
adopted by the
first National Congress of the party held at Mount
Currie High School, Kokstad, from 13 to 15 July 2012.
The
two competing entities
[21]
The applicants in both applications assert
that the body that they respectively promote is the only legitimate
body presently entitled
to make decisions concerning the AIC. Both
applicants contend that they should have access to the AIC’s
bank accounts held
at FNB, Matatiele. In the main application, the
body claiming this entitlement is described as ‘the NEC’
and in the
second application, the body claiming this entitlement is
described as the ‘second interim structure’.
[22]
The essential question to be determined in
these two applications is whether either of these bodies is the true
representative of
the AIC.
The
NEC
[23]
Dealing firstly with the main application, the
AIC’s constitution provides that the National Congress of the
AIC elects the
NEC, the National Congress being the highest
decision-making body of the AIC. The National Congress is to be
convened at least
every five years. Clause 10.7 of the constitution,
which is entitled ‘Election an (sic) Composition of the NEC’,
sets
out a detailed exposition of who shall form part of the NEC, how
such persons are to be nominated, and the voting procedure that
follows once all nominations have been received. Briefly put, the NEC
shall hold office for a period of five years. It is to be
elected by
secret ballot by the National Congress. The NEC is to be comprised of
the president, deputy president, national chairperson,
the secretary
general, the deputy secretary general and the treasurer general, and
19 additional members, together with certain
ex officio members,
being the chairperson and secretary of each of the provincial
executive committees, the national chairperson
and secretary of the
AIC Women’s Movement and the national chairperson and secretary
of the AIC Youth Movement. Provision
is also made for the co-option
of no more than five additional members to the NEC. In all, the NEC
may thus be comprised of more
than 29 members.
[24]
In terms of clause 11 of the constitution, the NEC
is required, as soon as possible after the conclusion of a National
Congress,
to meet and elect a National Working Committee (NWC). The
NWC is required to carry out decisions and instructions of the
National
Congress and the NEC.
[25]
From the constitution, it is apparent that the NEC is the highest
organ of the AIC between the National Congresses. It is the
body that
guides and directs the functioning of the AIC. For example, it
appoints an Electoral Commission and a National Finance
Committee. It
is thus an important and influential body and is endowed with
substantial powers.
[26]
The AIC convened its first National Congress from
15 to 17 July 2012 and a NEC was duly voted in. Five years later, the
first attempt
at convening the second National Congress of the party
occurred from 15 to 17 December 2017. Given that the NEC was elected
only
for a period of five years, it appears that by the time the
first attempt at convening the second National Congress was
attempted,
the term of office of the first NEC had already expired by
the effluxion of time. No allegations have been made that its life
was
extended or that such extension was possible in terms of the
constitution.
[27]
The
second National Congress collapsed for reasons that need not be
considered and no NEC was consequently elected. A second attempt
to
hold the second National Conference occurred on 27 and 28 April 2018
and certain decisions were taken and elections were successfully
held. However, Mr Ntshayisa, the applicant in the second application,
challenged the results of this National Congress in legal
proceedings
lodged with this court. Poyo-Dlwati J, under case number
5712/2018,
[4]
ultimately granted
the following order:
‘
The
second national congress of the first respondent held on 27 and 28
April 2018 at Kokstad, KwaZulu-Natal and its decisions, resolutions
and elections are declared unlawful, invalid and unconstitutional and
as such are hereby set aside.’
[28]
The judgment was delivered on 1 March 2019. The
election of the members of the NEC was accordingly set aside. Since
the date of
the judgment, the AIC has lacked a validly constituted
NEC elected by a National Congress of the AIC.
[29]
The second to seventh applicants in the main
application, however, submit that notwithstanding this, they are
members of the NEC
of the AIC. The basis of this submission is that
after the judgment of Poyo-Dlwati J, the two warring factions
allegedly agreed
to:
‘
.
. . reconvene the National Executive Committee which existed before
the litigation mentioned above under case number 5712/2018,
for the
purpose of continuing to run the affairs of the party . . .’
It
is further submitted that the applicant in the second application, Mr
Ntshayisa, and his faction agreed to this occurring and
participated
to a certain point in the business of the reconvened NEC, before
withdrawing their support. This is not disputed by
Mr Ntshayisa and
his explanation for this is that the reconvened NEC was illegitimate
in terms of the AIC’s constitution.
His agreement to
participate, and his subsequent participation, could not change that
fact. Once he and his faction were made aware
of the fact that the
constitution of the AIC did not countenance what was being done, he
and his faction withdrew their support.
[30]
It is trite
that 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
serves as the internal statute of that association.
[5]
It
is a contract concluded between its members that binds them. There is
thus a duty on the AIC to act lawfully and in compliance
with the
provisions of its own constitution.
[6]
[31]
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.
[7]
This
requires giving effect to the plain language of the document,
objectively ascertained within its context.
[8]
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’.
[9]
[32]
There simply is no provision in the constitution
of the AIC for the reconvening of an NEC or the revival of an NEC
whose term of
office has already expired. Nor is there any provision
for the appointment of members of an NEC other than through election
at
a National Congress. There is consequently nothing in the
constitution to interpret. The constitution makes it perfectly plain
that the NEC is elected at the National Congress. Absent a validly
convened National Congress, there can be no validly elected NEC.
The
second to seventh applicants in the main application, who purport to
be members of the NEC, were not placed in the position
that they
presently claim to occupy by a vote of the National Congress.
[33]
It is, moreover, acknowledged in the applicants’
heads of argument in the main application, that it is common cause
that the
term of the first NEC has expired and that it has not been
possible to convene an elective conference to elect a new NEC. This
concession is the death knell for the applicants’ application
where the only method of electing a new NEC is by way of a National
Conference.
[34]
Absent any other power to re-establish, re-extend,
reconvene or put in place an acting NEC, and no such power has been
referenced
in the founding affidavit, I am simply unable to conclude
that the NEC allegedly presently populated by the second to seventh
applicants
is a body countenanced or permitted by the constitution of
the AIC. Mr Ntshayisa’s contention that the NEC that purports
to bring the main application lacks legitimacy must thus be upheld.
[35]
In the
applicants’ heads of argument in the main application, my
attention was drawn to
Mcoyi
and others v Inkatha Freedom Party; Magwaza-Msibi v Inkatha Freedom
Party
.
[10]
That judgment involved internal disputes within the Inkatha Freedom
Party. In the judgment of Patel DJP, he made reference to the
dicta
of Lord Ormrod in
Lewis
v Heffer and others
,
[11]
and the applicants have likewise relied upon Lord Ormrod’s
words in this matter. Lord Ormrod made reference to the situation
in
a political party where an established, well-known, and unquestioned
practice in use in the party has been established and that
such
practice has become part of the terms and conditions which are
accepted by persons joining the party.
[12]
[36]
I assume that this particular case was referred to by the applicants
in an attempt to press home the argument that the strict
wording of
the constitution could in some way be modified by conduct and general
acceptance. In certain circumstances that may
well be true. The
difficulty that I have with that proposition is that the failure to
abide by the terms of the constitution does
not establish a practice
that should be endorsed or that, indeed, a practice has been
established. A practice would tend to suggest
that the conduct has
been repeated with general acceptance, or without objection, on a
number of occasions. That is not the case
in this instance. In a
party riven with internal conflict, it would be impossible for
consensus to exist on an issue that favours
one faction to the
exclusion of the other. I cannot therefore find that what the
applicants in the main application contend for,
namely the
re-establishment of the NEC, is a well-known, unquestioned practice.
[37]
Whilst there has been a great emphasis on the
existence of the two warring factions, it seems likely to me that
there may be members
of the AIC who prefer to regard themselves as
not being aligned to either the Galo faction or the Ntshayisa
faction. There is no
evidence before me that all the members of the
party fall into one or the other faction. Those unaligned members, as
are all members,
are entitled to insist that proceedings of the AIC
be conducted in terms of the constitution to which all members have
subscribed.
They are entitled to the protection of their
constitutional rights, embodied in section 19(1)
(b)
of the Constitution. That section
provides that: '
(1) Every
citizen is free to make political choices, which includes the right —
(
b
)
to participate in the activities of, or recruit members for, a
political party.’
[38]
The rights
in section 19 of the Constitution are enjoyed through the membership
of, and participation in, political parties. In
Ramakatsa
and others v Magashule and others,
[13]
the Constitutional Court held that:
'
In
relevant part section 19(1) proclaims that every citizen of
our country is free to make political choices which include
the right
to participate in the activities of a political party. This right is
conferred in unqualified terms. Consistent with
the generous reading
of provisions of this kind, the section means what it says and says
what it means. It guarantees freedom to
make political choices and
once a choice on a political party is made, the section safeguards a
member’s participation in
the activities of the party
concerned. In this case the appellants and other members of the ANC
enjoy a constitutional guarantee
that entitles them to participate in
its activities. It protects the exercise of the right not only
against external interference
but also against interference arising
from within the party.
'
[39]
Such members are entitled to expect that the affairs of the AIC will
not be interfered with by factions within the party that
seek solely
to advance their own interests.
The
second interim structure
[40]
Turning now to consider the second application and
the position of the ‘second interim structure’, being the
body that
Mr Ntshayisa represented in bringing the second
application, the same reasoning that was applied when considering the
legitimacy
of the NEC finds application. It was pointed out during
argument to Mr Combrink that any argument criticising the legitimacy
of
the NEC may well be a two-edged sword and may also apply to the
legitimacy of the ‘second interim structure’. He
acknowledged
that this may be the case.
[41]
Whilst there is nothing in the constitution to
indicate that an NEC may be reconvened or revived or elected other
than through a
National Congress, there is also nothing to indicate
that a ‘second interim structure’ could exist or have any
standing
in the AIC.
[42]
The body supported by the late Mr Ntshayisa is
called the ‘second interim structure’ presumably by
virtue of the fact
that an entity known as ‘the first interim
structure’ was brought into existence at the time when the AIC
was initially
founded. It was the first interim structure that would
construct the skeleton of the party and breathe life into it before
the
first National Congress. This structure was established, and it
carried out its mandate and then was dissolved and played no further
part in the life of the AIC.
[43]
The ‘second interim structure’ was
brought into existence after an invitation to ‘all AIC members’
was sent
out by a Mr Tshosane Emmanuel Jafta (Mr Jafta) to attend an
alleged general membership meeting. I point out that the only general
meetings that are referred to in the constitution are the National
Congress and a mid-year congress. This meeting was neither.
[44]
There was no attempt in the papers to define to
whom this invitation was actually extended by Mr Jafta other than
that it was sent
to ‘all AIC members’. It follows that
there is no evidence on record as to how many members of the AIC the
invitation
was extended to and was ultimately delivered to.
Significantly, the invitation did not disclose precisely where the
meeting was
to be held: it simply said that the venue would be in
Durban and would be disclosed later. Ultimately, it appears that part
of
the meeting was held in Durban and part in Pinetown. Whether all
addressees were aware of this is not clear. Mr Ntshayisa states
in
his answering affidavit in the main application that the meeting was
held at Pinetown. There is no evidence that any notification
changing
the venue to Pinetown was sent out to the general membership of the
AIC.
[45]
Apparently, only some 73 persons attended the
meeting called by Mr Jafta, which was held on 31 October 2020. There
is thus considerable
doubt that this was indeed an invitation
extended to all members of the AIC. This is rendered more uncertain
by virtue of the fact
that it is contended by Mr Ntshayisa in his
answering affidavit in the main application that there are no proper,
reliable records
of membership kept by the AIC. If that is accepted,
it strikes at Mr Ntshayisa’s assertion that the invitation to
attend
the meeting was sent to all members: if it is not known how
many members there were, or who they were, how can it be said that
they all received notice?
[46]
There is thus no evidence that the ‘second
interim structure’ was created at a meeting by the majority of
the members
of the party or a group that reflects a substantial
portion of the membership of the AIC.
[47]
In my view, the second interim structure cannot
claim any constitutional legitimacy and it has no more authority than
the NEC to
claim the relief that it claims.
[48]
In a further argument advanced in the second application, the
applicants in the
main
application argued that the second application had to fail because Mr
Ntshayisa had been expelled from the AIC by the NEC and
accordingly
had no legal standing to bring the second application. I agree that
the second application must fail, but not for that
reason. The NEC,
as presently constituted and as already found earlier in this
judgment, lacks legitimacy itself and is not the
NEC of the AIC. It
accordingly lacks the power to do anything on behalf of the AIC and
it consequently lacked the power to expel
Mr Ntshayisa.
Summation
[49]
Both applications thus are brought by bodies not
countenanced by the AIC’s constitution. In my opinion, neither
faction has
the legal standing to claim that it, to the
exclusion
of the other, is the true representative of the AIC. The meeting
of 31 October 2020 convened by the ‘second
interim structure’
was not a meeting of the AIC. Both applications must thus fail.
[50]
It
appears that neither of the two opposing bodies on their own can, or
will, of their own accord be able to convene a constitutionally
valid
meeting with a view to obtaining a mandate to revive the fortunes of
the AIC and to elect a new NEC. Neither the Galo faction
nor the
Ntshayisa faction represents the party. They each represent their own
self-interests and convene meetings to further their
own needs.
[14]
[51]
The
only way in which the AIC can hope to regain its former glory is
through the two factions setting aside their differences and
co-operating for the greater good of the party. If this is not done,
the AIC will perish. This court is simply not able to solve
what is,
in essence, a political conundrum. Indeed, in
Mcoyi
,
Patel DJP stated that a court should be reluctant to interfere in
what are essentially political issues.
[15]
I agree with this statement.
Urgency
[52]
Both
applications were brought as urgent applications.
It
is trite that urgent applications are governed by the provisions of
Uniform rule 6(12).
[16]
A
party claiming urgency needs to set out objective grounds why the
matter is urgent. Of critical importance is whether such an
applicant
has explained why substantial redress could not be obtained at a
hearing in due course.
[17]
By
alleging urgency, and not complying with the prescribed rules
relating to service, a party is able to jump the queue of matters
awaiting the attention of the court. If there is no urgency, despite
what is said in the founding affidavit, that party obtains
an unfair
advantage in having its matter adjudicated before those parties
patiently awaiting their turn. The burden is thus on
the party
claiming urgency to show in its papers that the matter deserves to be
heard on an urgent basis.
[53]
The basis for the allegations of urgency in the
main application is that FNB placed a hold on the AIC’s bank
accounts held
with it after the bank became uncertain as to which of
the two factions legitimately claimed to represent the AIC.
A
letter from FNB to this effect was received by the AIC on 13 January
2021. Nothing was done until the main application was launched
on 10
February 2021. Nearly a month lapsed before any positive steps were
taken and the main application was launched. There is
simply no
explanation from the applicants in the main application for this
lethargy. In addition, there are no submissions made
as to why
substantial redress could not be obtained at a hearing in due course.
[54]
In the second application, the urgency is alleged to be the fact that
local elections were to be held sometime between 3 August
2021 and 3
November 2021. The source of this prediction was an article emanating
from the Daily Maverick, an online free daily
news site. In terms of
the Constitution, local elections are held every five years. This is
a generally known fact. No explanation
has been provided as to why
this was not appreciated by the applicant in the second application
and why the second application
was not brought earlier.
[55]
In my view, neither of the applications is urgent. Even if my
reasoning in refusing
the
applications as already indicated is incorrect, I would, in the
exercise of my discretion, have refused them for want of urgency.
Practice
directives
[56]
Finally, something needs to be said about compliance with the
practice directives of this division relating to opposed matters.
The
specific directives are succinctly set out in practice directive 9.4.
Only the applicant in the second application ensured
that his heads
of argument were filed by the prescribed date. The applicant in the
main application, with my leave, handed up its
heads of argument on
the day. Those heads did not comply with the practice directive,
which provides that heads of argument should
not exceed five pages in
length. The applicants in the main application submitted no practice
note. The applicant in the second
application did deliver a practice
note but it did not conform with the practice note required in this
division. Neither party
notified the registrar in writing three days
before the date of hearing that its application would be argued.
Neither party broke
down the documents in their respective
applications into volumes of 100 pages, as required: in the main
application I was faced,
inter alia, with a single volume of 521
pages and in the second application, one volume was 171 pages in
length. Perusing these
enormous volumes was difficult as a
consequence.
[57]
Practice directives are crafted and put in place in order to help
regulate and streamline the preparation for, and the hearing
of,
opposed motions. They are not discretionary measures that the parties
can choose to comply with or to disregard as they deem
fit. Indeed,
practice directive 9.4.3 of this division specifically cautions
practitioners that if the practice directives are
not complied with,
the matter may be dismissed or struck from the roll with an
appropriate order as to costs. By rights, I ought
not to have
permitted the hearing of the matter. That I did so was purely because
of the fact that all the parties’ legal
representatives were
from Gauteng and it may well have occasioned further expense to
adjourn the matter to another date. When discussing
these issues of
non-compliance with the respective counsel on the day that the matter
was argued, I pointed out that I took a very
dim view of the attitude
of the attorneys in this matter and that there may well be
consequences at the end of the hearing. Those
consequences will be
reflected in the cost orders that will be made.
Conclusion
[58]
Both applications are to be refused. Whilst each respondent in each
matter may hold the view that they were successful in resisting
the
relief claimed against them in the application where they were cited
as a respondent, because of their egregious failure to
comply with
the practice directives of this division, I decline to grant any
costs in both matters.
Order
[59]
I accordingly make the following order:
Case
number: 1112/21P
1.
The application is dismissed; and
2.
There shall be no order as to costs.
Case
number: 811/21P
1.
The application is dismissed; and
2.
There shall be no order as to costs.
Mossop
AJ
APPEARANCES
Counsel
for the applicants in the :
Mr D. Brown
main
application and the first to
Instructed by:
thirteenth
respondents in the second
Chris Billings Attorneys
application
3
rd
Floor West Wing OPH Building
132
Fox Street
Johannesburg.
Counsel
for the respondents in the
:
Mr D. J.
Combrink
main
application and for the applicant
Instructed by:
in
the second application
KMNS Incorporated
2
nd
Floor, Schreiner Chambers
94
Pritchard Street
Johannesburg.
Date
of Hearing
: 23 July
2021
Date
of Judgment
: 9 May
2022
[1]
Thebe
Ya Bophelo Healthcare Administrators (Pty) Ltd and Others v National
Bargaining Council for the Road Freight Industry and
Another
2009 (3) SA 187
(W) para 19.
[2]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A).
[3]
Minister
of Rural Development and Land Reform v Tsuputse and others
2015
(5) SA 537 (KZD).
[4]
Ntshayisa
NO v African Independent Congress National Executive Committee and
others
[2019]
ZAKZPHC 12.
[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) para 16.
[7]
Wilken
v Brebner and others
1935 AD 175
at 187.
[8]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) para 18.
[9]
Ibid; see also
National
African Federated Chamber of Commerce and Industry and others v
Mkhize and others
[2014] ZASCA 177
;
[2015] 1 All SA 393
para 21.
[10]
Mcoyi
and others v Inkatha Freedom Party; Magwaza-Msibi v Inkatha Freedom
Party
2011 (4) SA 298 (KZP).
[11]
Lewis
v Heffer and others
[1978]
3 All ER 354 (CA).
[12]
Ibid
at
367.
[13]
Ramakatsa
and others v Magashule and others
[2012]
ZACC 31
;
2013 (2) BCLR 202
(CC) para 71.
[14]
Agang-South
Africa and another v Mayoli and others
[2015] ZAGPJHC 24
at
49.
[15]
Mcoyi
and others v Inkatha Freedom Party; Magwaza-Msibi v Inkatha Freedom
Party
2011
(4) SA 298
(KZP)
para
23.
[16]
Republikeinse
Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk
1972
(1) SA 773
(A) at 782A-G.
[17]
East
Rock Trading 7 (Pty) Ltd and another v Eagle Valley Granite (Pty)
Ltd and others
[2011]
ZAGPJHC 196 paras 6-7.