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[2022] ZAECMKHC 111
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Lungisa v African National Congress and Another (4211/2022) [2022] ZAECMKHC 111 (14 December 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION,
MAKHANDA
CASE NO: 4211/2022
In the matter between:
ANDILE
LUNGISA
Appellant
and
AFRICAN NATIONAL
CONGRESS
First Respondent
MEMBERS OF THE EASTERN
CAPE EXECUTIVE
COMMITTEE OF THE
AFRICAN NATIONAL CONGRESS
Second
Respondent
JUDGMENT: URGENT
APPLICATION FOR INTERIM RELIEF
LOWE J
INTRODUCTION
1.
Under cover of a certificate of urgency and
a directive from the duty Judge, this matter came before me as an
urgent application
in which applicant seeks urgent interdictory
interim relief that pending the finalisation of a final interdict
process, in essence,
his suspension as a member of the second
respondent be in turn suspended. Whilst the notice of motion is
considerably more detailed
than this, it comes down to exactly that
as submitted by applicant’s counsel.
2.
The essence is then interim relief
operating with immediate effect returnable, so says the notice of
motion, on 7 February 2023.
3.
Although bought on an extremely stringent
time line, first and second respondents gave notice of intention to
oppose and filed substantial
answering affidavits in support of their
opposition.
4.
In due course, and having been given an
opportunity by myself to do so, applicant filed a short replying
affidavit.
5.
The matter having stood down to enable
applicant to do so, and to enable applicant’s counsel to file
heads of argument, the
matter proceeded on the day allocated for the
matter and full argument was heard, I reserving judgment on the issue
of interim
relief.
6.
The matter is, so say the least, hotly
contested, having regard to the urgency of the matter, applicant
requested that the judgment
be produced as a matter of the greatest
urgency in that context. There is some merit in the question of
urgency, certainly applicant
and respondents make common cause in
that regard. In the circumstances, I produce this judgment as a
matter of urgency and though
I would have preferred more time to do
so, the issues being in instances complicated and argument having
been extensive, I am confident
that my decision is fully motivated
and indeed justified sufficiently on what I set out hereafter.
THE
APPROACH TO INTERIM RELIEF
7.
An interdict is a remedy of a summary and
extraordinary nature suitable in cases where a person requires
protection against an unlawful
interference, or threatened
interference, with that person’s rights.
8.
An
interlocutory interdict is one which is granted
pendente
lite
.
[1]
It is a provisional order given to protect the rights of the
applicant pending an action or application to be brought to establish
the respective rights of the parties. It does, of course, not involve
a final determination of the rights and does not affect such
determination.
9.
It
is trite that the requirements for an interim interdict are the
following
[2]
:
9.1
A prima facie right;
9.2
A well-grounded apprehension of irreparable
harm if interim relief is not granted and the ultimate relief is
eventually granted;
9.3
A balance of convenience in favour of the
granting of the interim relief; and
9.4
The absence of any other satisfactory
remedy.
10.
As
was pointed out in argument in cases such as
Eriksen
Motors (Welkom) Ltd v Protea Motors, Warrenton
[3]
,
the “
sliding-scale”
test as pronounced in a
Limphic
Passenger Service (Pty) Ltd v Ramlagan
[4]
is applied, being the stronger the prospects of success, the less
need for the balance of convenience to favour the applicant;
the
weaker the prospects, the greater the need for the balance of
convenience to favour applicant.
[5]
11.
In this case it is relevant to deal more
fully with the prima facie right requirement. In most interlocutory
interdict cases a clear
right may well not be established upon the
affidavits, being met by counter-allegations or denials and, as the
matter is interlocutory
and the relief granted temporary, not
decisive of either parties’ rights, the degree of proof
required is not as stringent
or exacting as that required for the
grant of final relief.
12.
In
determining the prima facie right issue the court must look not only
at applicant’s allegations but also at the respondent’s
affidavits as set out in
[6]
Webster
v Mitchell,
most recently stated in
Bombardier
Africa Lions Consortium v Lombard Insurance Company
.
[7]
13.
This comes down to the fact that the right
relied on need not be shown to exist on a balance of probabilities,
it being sufficient
if it is “prima facie established though
open to some doubt”. To decide this the applicant’s facts
are considered
together with any facts set out by respondent which
the applicant cannot dispute and then the court to consider whether,
having
regard to the inherent probabilities and the ultimate onus,
the applicant could on those facts obtain final relief at the trial.
The facts set up in contradiction by respondent should then be
considered and if serious doubt is thrown upon the case of the
applicant it cannot succeed as the right prima facie established may
be open to some doubt.
14.
This
was somewhat diluted in
Gool
v Minsiter of Justice
[8]
where the court said that this statement was too favourably expressed
towards the applicant and the criteria on an applicant’s
own
averred or admitted facts is: should (not could) the applicant on
those facts obtain final relief at the trial.
15.
In
the result the test laid down in
Mitchell
(
supra
)
as refined in
Gool
(
supra
)
is the test usually applied to interim interdicts. This of course
applies to a dispute which is one of fact. If the dispute is
one of
law a final decision can be reached and the court may grant a final
interdict.
[9]
16.
To
expand somewhat the prima facie right requisite is prima facie proof
of facts that establish the existence of a right in terms
of
substantive law.
[10]
The
degree of proof of the right referred to can be prima facie
established even if open to some doubt.
17.
In
National
Treasury v Opposition to Urban Tolling Alliance
[11]
the Constitutional Court held that there was no need to fashion a new
test for the grant of interim interdict as the Setlogelo
test
continues to be a handy and ready guide to the bench in the granting
of interdicts. The comment made, however, was that the
test must be
applied cognisant of the normative scheme and democratic principles
that underpin the Constitution, the court considering
whether to
grant an interim interdict must do so in a way that promotes the
objects, spirit and purport of the Constitution.
18.
Turning
to the balance of convenience issue the court must weigh the
prejudice to applicant if the relief sought is refused against
prejudice to respondent if it is granted. As already suggested this
requires a consideration of the prospects of success in the
main
proceedings on the sliding scale test.
[12]
19.
The
court possesses a general and overriding discretion whether to grant
or refuse interlocutory relief and in so exercising a discretion,
which must be exercised judicially, all the relevant elements of
interlocutory relief should be considered cumulatively.
[13]
20.
In this matter, the issue of a prima facie
right and the balance of convenience, were those predominantly
addressed by the parties.
THE BAKCGROUND TO
THE APPLICATION
21.
Applicant is a member of second respondent
(the “ANC”).
22.
He relies, amongst other things, on rights
which are contained in the Constitution and the constitution of the
ANC which he refers
to as political and association rights.
23.
The issues which arise commenced in 2018 at
which time applicant was a member of the mayoral committee at the
Nelson Mandela Metropolitan
Municipality. Respondents allege that the
ANC instructed him to resign this position which instruction he
“
disobeyed.”
Respondents
allege that on 30 January 2020 applicant was reminded to submit his
resignation letter to the secretary of the ANC by
no later than 3
February 2020 which, it is alleged, he failed to do. Respondents
regarded this as an act of misconduct and applicant
was charged
accordingly with such misconduct.
24.
The
“
charge
sheet
”
[14]
relates to the Provincial Disciplinary Committee (PDC) of the ANC for
the province of the Eastern Cape – case no 2/2020.
This refers
to applicant. It records that applicant was “
deployed
”
by the ANC as a municipal councillor and mayoral committee member at
the Nelson Mandela Metropolitan Municipality. It records
that by
letter dated 30 January 2020 applicant was advised of the decision
and directive of the ANC Provincial Executive Committee
(PEC) (of the
Eastern Cape), confirmed by the National Executive Committee, that he
must resign his position in the mayoral committee
and submit his
resignation by 3 February 2020. It was alleged that he had failed so
to do and that he was consequently charged
with four charges related
to his failure to adhere to the directive to resign, having breached
Rule 25.17.6 of the ANC constitution;
essentially failing to execute
or comply with the PEC resolution, behaving in a manner which brought
the ANC into disrepute and
which breached his membership oath in
contravention of Rules 25.17.37; 25.17.5; 25.17.1 of the ANC
constitution.
25.
It is clear from the charge sheet, that the
charges emanate from his alleged failure to abide the instruction to
resign from the
mayoral committee, and do not relate to conduct
underlying that resignation instruction.
26.
Put differently, respondents allege that it
was applicant’s “
persistent
defiance
” (that is not to
resign), as an act of misconduct for which he was charged.
27.
Respondents allege that during pre-hearing
procedures relevant to the charges applicant was requested to present
his resignation
letters against the withdrawal of the charges, which
in fact eventuated, the PEC recording on 18 October 2020, its
acceptance of
his letter of resignation from his position on the
mayoral committee of the Nelson Mandel Bay Metropolitan Municipality
and the
charges withdrawn.
28.
On
18 January 2021 applicant was again charged by the PEC of the ANC for
the province of the Eastern Cape with charges set out in
AA3
[15]
with a charge relating to the fact that it is alleged that on 17
April 2018 he was convicted of assault with intent to do grievous
bodily harm and subsequently sentenced to a term of imprisonment,
without the option of a fine. It was alleged that this constituted
a
violation of the ANC constitution, he facing a charge which reads as
follows:
“
That
by your conduct as set out in paragraph 3 above (the conviction of
assault) you were convicted in a court of law and being
sentenced to
a term of imprisonment without the option of a fine for any offence
and by so doing, breached/violated Rule 25.17.2
of the ANC
constitution.”
29.
It was said that the matter would be heard
by the Provincial Disciplinary Committee (PDC) on 7 February 2021.
30.
On 7 February 2021, and applicant being
absent, the disciplinary committee in considering the notice
confirming receipt of the charge
sheet by respondent, found that it
had not been served on respondent personally and the matter was then
removed from the roll of
cases to be heard for the purpose that
respondent be “
properly served and
be given sufficient notice of 14 days to appear before the PEC
”.
31.
The same charges were then served upon the
applicant relevant to proceedings to occur on 16 May 2021, applicant
appearing in person.
The PDC on the same day found applicant guilty
on the merits as set out below.
32.
Accepting the conviction alleged with
consequent sentence against which appeal proceedings were
unsuccessful, and having heard applicant,
the PDC found applicant
guilty as charged in respect of a contravention of Rule 25.17.2,
postponing the proceedings for sanction
to be considered on 16 June
2021. This conviction related to:
“
25.17.2
Conviction in a court of law and being sentenced to a term of
imprisonment without the
option of a fine, for any offence.”
33.
Applicant did not attend the
sentencing or sanction proceedings, the PDC then issuing a sanction
that applicant should attend an
anger management course for a period
of twelve months, and that “
the
membership of the respondent in the African National Congress is
hereby suspended for a period of 18 (eighteen) months, effective
from
6 June 2021.
”
34.
Applicant’s right to appeal or review
the sanction, to the National Disciplinary Committee, within 21 days
is set out in the
PDC findings and reasons (AA-5).
35.
In due course applicant lodged an
appeal/review to the National Disciplinary Committee (NDC) against
both the finding of guilty
and the sanction imposed. This
appeal/review was upheld by the NDC on 7 September 2021.
36.
The ANC then appealed this outcome at the
NDC to the NDCA (National Disciplinary Committee of Appeal of the
ANC) which appeal was
purportedly upheld on 7 September 2022.
The applicant’s founding affidavit attaches the proceedings
before the NDCA
as AL2 which he refers to as the purported latest
NDCA judgment which is attached, unsigned and not, he points out, on
the ANC’s
letterhead. He alleges that he has been suspended on
the face of an NDCA judgment “
that
does not exist”.
37.
Respondents
contend, however, that on 21 September 2022 applicant appealed to the
National Executive Committee of the ANC (NEC),
annexure AA-9
[16]
,
which ends with the applicant’s name and states “
in
the light of the above, I will request this matter to be corrected by
the NEC or the legal units/division further
”.
The email/letter records the earlier charge of misconduct by the
applicant, before the ECPDC which were withdrawn, recharged
and found
guilty on 6 June 2021, and sets out the sanction recorded. The
subsequent history that this was challenged before the
NDC and a
subsequent appeal on 28 September 2021 to the NDCA is set out. It is
recorded that on 16 September 2022 the NDCA announced
that it was
overturning the decision of the NDC upholding the appeal, the
email/letter then goes on to record that it is applicant’s
view
that this was irregular thereby seeking that the finding be corrected
by the NEC.
38.
It
would seem, thus, that although applicant contends that the NDCA
decision does not exist, and that this is referred to as unsigned
and
that respondents have failed to produce a “properly produced
NDCA judgment” as this does not exist, he wished to
appeal
against the said decision.
[17]
39.
It is respondents’ contention that
the appeal proceedings, one after the other, suspended the sanction
imposed previously,
which suspended applicant’s membership of
the ANC for eighteen months.
40.
During October 2022 the deponent to the
answering affidavit, the Secretary of the ANC in the Eastern Cape
Province, says that he
received the outcome of the appeal to the NEC
and that it was dismissed. He states, “
a
copy of an extract from the minutes of the meeting of the NEC,
containing the ruling of the appeal, concerning the applicant is
attached and marked as such AA-10
.”
41.
AA-10 dated 6 December 2022 is a letter
from the Treasurer General on behalf of the Secretary General’s
office of the ANC,
recording an extract from the minutes of the
meeting of the NEC, which minute purportedly at 157.4 found that all
the convictions
and reasons for doing so by the ECPDC were upheld and
confirmed entirely in respect of applicant’s matter 02/2021.
42.
It is thus respondents’ contention
that the sanction then came into operation.
43.
On a proper reading of annexure AA-10
referred to above, it is perfectly clear that the applicant’s
submission that the decision
was something that came after the launch
of the application cannot be correct, as it is properly explained
that whilst the communication
is on the 6 December 2022, it is the
extract of the minutes of the earlier proceedings of the NEC.
44.
I will deal further with the above as far
as necessary relevant to the submissions that were made, both ways. I
note applicant’s
allegation that the NDCA judgment in terms of
which he was suspended “does not exist” and his challenge
to respondents’’
to produce it with his submission that
they have failed to do so, he stating that the purported judgment AL2
is unsigned, is not
on the ANC’s letterhead, that respondents
have “refused” to produce a proper judgment.
45.
Put otherwise, it is applicant’s
contention that the only ruling decision was that of the NDC
upholding his appeal against
his conviction and sentence and that
accordingly his purported suspension was set aside.
46.
It is respondents’ contention that
this was dealt with properly and fully by the NDCA, contends that the
appeal succeeded
as per AL2, that applicant then appealed this to the
NEC which appeal was dismissed.
47.
It goes almost without saying that in reply
applicant does not contest that his appeal was made to the NEC
(AA-9), and in his reply
the relevant paragraph 12 of the answer is
not dealt with. It is certainly not denied that this was his appeal,
and one may ask
why, if the decision did not exist, applicant
appealed same. What he does allege is that the deponent to the answer
“
misleadingly claims to have
received the NEC rejection of his appeal during October 2022
”
and attaches a letter in support dated 6 December 2022. This is fully
explained on a proper study of the papers and annexures,
not to
mention the answering affidavit as I have already referred to above.
48.
Applicant makes the second point that the
reference to having received the decision in October 2022 cannot be
correct as the document
AA-10 refers to a meeting of 11 – 13
November 2022.
49.
Whilst it may certainly be so that the
deponent erred relevant to his reference to October 2022, this is not
significant as it is
clear from the extracts of the NEC minute that,
considering the issue in November 2022, the appeal/review was
dismissed –
applicant being unable to join issue on the facts
relevant to the dismissal of his appeal prior to the launch of these
proceedings
and thus bringing his suspension, which had been
suspended due to the appeals, into operation.
50.
It is also clear that until such time as
the appeals were finally dealt with, and having regard to the
suspension of the sanction
imposed, applicant was certainly entitled
to participate in the proceedings of the ANC as a fully functional
member thereof.
51.
In his founding affidavit, applicant at
paragraph 17 states “
the NDCA
upheld that appeal”. “Inexplicably, despite many attempts
to source the record and judgment of the NDCA in
terms of which I was
purportedly suspended, I have not been provided with them.
”
He then says that he is “
advised
in confidence that they do not exist …
”
without giving any details as to where, when and what circumstances
and by whom he was so advised, this falling far short
of what is
required to be set out if relying on hearsay evidence in urgent
applications.
52.
Applicant attaches AL3 stating that he
received a letter (dated 4 October 2022) from the ANC provincial
secretary stating that the
provincial office had received the
judgment from the NDCA regarding the appeal upholding the sanction
imposed by the PDC of suspension
of applicant’s membership, the
sentence being a suspension of applicant’s membership in the
ANC for a period of two
years, with immediate effect, with one year
of such suspension being suspended for a period of five years on
condition that he
be not convicted of any act of misconduct during
the period of suspension and pay a fine of R5 000,00 by 30
October 2022.
It continued to say that effectively applicant’s
membership in the ANC was suspended to 16 September 2023.
53.
A reading of the very lengthy appeal
document from the National Disciplinary Committee, (NDCA), discloses
that there were twenty-nine
respondents of which applicant was twenty
seventh. The document is 121 pages in length, all of which are
attached, and at page
59 applicant’s “
review
”
is considered.
54.
There is then a detailed exposition of some
13 paragraphs covering seven pages and which clearly and in detail is
linked to what
had gone before me in respect of applicant.
55.
The finding at paragraph 110 of the NDCA
was that the charged members, including applicant, had failed to show
any material procedural
irregularity in the ECPDC proceedings which
rendered the hearing unreasonable or unfair.
56.
This is followed thereafter by the NDCA
order/directive setting aside the decision or finding of the NDC in
applicant’s review,
the convictions of the ECPDC being upheld
and confirmed.
57.
Although
unsigned, at the end thereof, the detail, references and finding are
clearly established and relate to applicant’s
matter, and the
probabilities are remote that this document is not a decision of the
NDCA. The document itself discloses that the
judgement was released
on 7 September 2022
[18]
, and
accords with the time line adverted to above in sequence.
58.
The letter AA-10 previously referred to
dated 6 December 2022, refers to a meeting of the National Executive
Committee of second
respondent of 11 – 13 November
2022 and not to the judgment of the NDCA. It considered a report from
the NEC
which amongst other things, dealt with the work of the NDCA.
The findings and conclusions of the NDCA were dealt with by way of
extracts of the minutes, the NEC simply noting the report.
59.
On that analysis it is clear that the
alleged deficiency in the time line contended for by applicant is
unsubstantiated.
60.
Applicant in his papers, and further
advanced in argument, contends that in a letter from the ANC to the
NDCA chairperson on 24
May 2022 it was recorded that applicant’s
case was similar to that of another member, Mnqwazi, where the NDCA
refused to
hear the appeal on grounds of jurisdiction. It continued
to say that for the PEC to move forward and “
to
be certain of which steps to be taken next, we need a full judgment
from the NDCA on this matter
”. It
is argued that this indicates that the NDCA had already taken a
decision that it had no jurisdiction to entertain applicant’s
matter and was thus thereafter
functus
officio
.
61.
The difficulty with this argument is,
however, that the letter to which I have just referred, is not a
decision of the NDCA at all
but in fact a letter from the Provincial
Secretary, the deponent to the founding affidavit, which he says he
drafted to the chairperson
of the NDCA demanding the outcome in the
appeal the ANC had lodged against the decision of the NDCA.
62.
On the face of it on the papers there is
merit in the response hereto and there is no sustainable submission
that the NDCA had declined
to hear the applicant’s matter for
want of jurisdiction, other than in the case of another member and
not applicant.
63.
In support hereof respondents annex AA-11,
a communication from the chairperson of the NDCA, dated 20 August
2021 referring to the
NDCA decision “
on
the OR Tambo Councillors” in which the NDCA in that matter (not
applicant’s matter) advised the ECPDC to appeal directly
to the
NEC through the “SGO
”.
64.
The above exposition deals substantially
with the facts relevant, the allegations and counter allegations. I
have already set out
the approach to be adopted at the interim
interdict stage and the extent to which regard may be had to the
allegations and counter
allegations on the papers.
65.
In this matter, much is common cause as to
the background, with islands of factual dispute here and there,
particularly the issue
of whether there is an NDCA decision relevant
at all, and as to whether the NDCA previously took a decision that
they had no jurisdiction.
66.
Applying the approach which I have set out
above, and upon the factual allegations both ways, and my analysis
thereof, I now turn
to the requisites which applicant must establish
at the interim interdict stage to succeed as fully set out above.
THE INTERIM
INTERDICT REQUISITES
67.
As to a prima facie right to the relief
sought, even if it is open to some doubt, I have fully and
comprehensively dealt with the
facts, the allegations and counter
allegations.
68.
On the papers, and as already dealt with
fully above, on the appropriate test and approach at this stage,
applicant’s argument
cannot be sustained that there was no NDCA
decision relevant to applicant’s position on the merits of the
matter imposing
the sanction to which I have referred above. In my
view, on applicant’s own papers when analysed against the
annexures, he
fails to establish prima facie proof of facts which
establish the existence of a right to the extent required, as what is
put up
on his behalf in this regard discloses considerable difficulty
in the argument, and there is far more than “
some
doubt
” as to the correctness and
veracity of the submissions, allegations and argument. It hardly
needs be repeated that applicant
himself appealed against the
decision of the NDCA which he alleges now does not exist, and in that
appeal/review dated 21 September
2022 he specifically states “
on
16 September 2022 the NDCA announced that it has overturned the
decision of the NDCA and upheld the appeal.
”
Applicant then sets out shortly the basis of his appeal against the
decision of the NDCA, this inconsistent with the suggestion
that
there is no decision against which applicant even needed to appeal if
he was of the view that the NDCA decision does not exist.
It is that
appeal (of the NDCA) which was dismissed by the NEC as referred to in
their minutes attached in document AA-10.
69.
In the result, in respect of the first
requisite, a prima facie right established, though open to some
doubt, applicant has failed
to establish the existence of such right,
prima facie relevant to the non-existence of the NDCA decision.
70.
In respect of the prima facie right
argument there is the further submissions that the charges against
him were simply a duplicate
set of charges brought in respect of the
same matter, but in two separate proceedings, the second set of
charges which formed the
crux of this matter then being impermissible
and, secondly, that the NDCA was
functus
officio
as set out above, and thirdly
an argument as to waiver.
71.
I have, in respect of all the above,
already set out the facts and time line relevant on the proper
approach to the papers. It is
more than clear that the two charges,
are entirely different the first relating to applicant having
declined to follow the instructions
of the ANC that he resign his
position as a member of the Mayoral committee at the Nelson Mandela
Metropolitan Municipality. This
was finally resolved as I have set
out by applicant tendering his resignation which was accepted. The
second charge, during February
2021, as I have also set out in
detail, related to the actual relevant event and alleged assault with
intent to do grievous bodily
harm and a finding in the courts of
guilt in this regard and a sentence of imprisonment being imposed,
forming the basis of the
charge which proceeded before the PDC.
72.
It is apparent from the facts and the
reading of the charge sheets and the allegations made, even on
applicant’s papers viewed
alone, that the two charges were by
no means the same in any way, although their origin all surrounded
the events relevant to the
mayoral committee procedures and assault
referred to above. The one clearly related to applicant’s
refusal to follow an instruction
of the ANC to resign, the second
related to the actual events and his conviction on a charge of
assault with intent to cause grievous
bodily harm. Thus once again no
prima facie right whatsoever is made out in this regard.
73.
In respect of the jurisdictional argument
already set out above in respect of the NDCA, once again in my view,
on the papers and
the common cause facts, this has not been
established.
74.
Finally, in respect of waiver, this appears
to rely on the argument that after a finding in the PEC’s
favour by the NDCA,
the PEC in full knowledge thereof permitted
applicant to exercise his membership rights representing to applicant
that it had waived
its reliance on the determination of the NDCA. It
is more than apparent on the papers that the sequence of events and
facts which
I have outlined above, that second respondent permitted
applicant to exercise his membership rights at all times when there
were
appeals pending against findings against applicant from one
successive appeal body to another, this being, so it is alleged, and
not seriously contradicted, relying on the tradition and practice of
the ANC, put otherwise, that whilst there are appeal proceedings
pending, members in their own interests are permitted to exercise
their membership rights even though those decisions impact upon
the
suspension of those membership rights.
75.
As
was pointed out in
Mcoyi
and others v Inkhata Freedom Party, Magwaza-Msibi v Inkhata Freedom
Party
[19]
it is not only permissible but required of an organisation to follow
established and well known practices this being part and parcel
of
the terms and conditions accepted by members who join a particular
association. In
Mgabadleli
and others v ANC
[20]
the court held that in principle there is no reason for not accepting
that an established or well-known practice in use in the
ANC can form
part of the terms of the relationship between the parties and its
members.
76.
It seems to me, that it is this practice
that has been applied, this to the benefit of the applicant during
the period over which
his appeals were being determined and is
certainly not a waiver such as is contended. Waiver is a question of
fact and in this
matter there is no prima facie proof of facts
establishing the right contended for.
77.
Thus, once again, no prima facie right is
established in this regard whatsoever.
INTERPRETATION
78.
It
must be emphasised, and always remembered, that in the current day,
interpretation of a document, including a statute, requires
careful
regard to context. When a court determines the nature of the party’s
rights and obligations in a contract it is involved
in an exercise of
contractual interpretation. There is now a settled approach to the
interpretation of contracts, documents and
indeed statutes.
[21]
In that matter the following was said:
“
[18]
Over the last century there have been significant developments in the
law relating to the interpretation of documents, both
in this country
and in others that follow similar rules to our own. It is unnecessary
to add unduly to the burden of annotations
by trawling through the
case law on the construction of documents in order to trace those
developments. The relevant authorities
are collected and summarised
in
Bastian
Financial Services (Pty) Ltd v General Hendrik Schoeman Primary
School.
The
present state of the law can be expressed as follows. Interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into existence.
Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary
rules of grammar and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material
known to those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the
light of all these
factors.
15
The
process is objective not subjective. A sensible meaning is to be
preferred to one that leads to insensible or unbusinesslike
results
or undermines the apparent purpose of the document. Judges must be
alert to, and guard against, the temptation to substitute
what they
regard as reasonable, sensible or businesslike for the words actually
used. To do so in regard to a statute or statutory
instrument is to
cross the divide between interpretation and legislation. In a
contractual context it is to make a contract for
the parties other
than the one they in fact made. The ‘inevitable point of
departure is the language of the provision itself’,
16
read
in context and having regard to the purpose of the provision and the
background to the preparation and production of
the document.”
79.
As was emphasised this approach to
interpretation requires that from the outset one considers the
context and language together,
with neither predominating over the
other.
80.
In
Chisuse
v Director - General Director of Home Affairs
[22]
(at paragraph 52) the Constitutional Court speaking in the context of
statutory interpretation held that this “
now
settled
”
approach to interpretation, is a “
unitary
”
exercise. This means said the court in
University
of Johannesburg v Auckland Park Theological Seminary and another
[23]
that interpretation is to be approached holistically: simultaneously
considering the text, context and purpose. To make it clear,
it has
been explicitly pointed out in cases subsequent to Endumeni that
context and purpose must be taken into account as a matter
of course
whether or not the words used in the contract (or statute) are
ambiguous.
[24]
81.
In
Cool
Ideas 1186 CC v Hubbard
[25]
the court in dealing with the interpretation of statutes said the
following:
“
[28] A
fundamental tenet of statutory interpretation is that the words in a
statute must be given their ordinary grammatical
meaning, unless to
do so would result in an absurdity.
There are three important interrelated
riders to this general principle, namely:
(a) that
statutory provisions should always be interpreted purposively;
(b) the
relevant statutory provision must be properly contextualised; and
(c) all
statutes must be construed consistently with the Constitution, that
is, where reasonably possible, legislative provisions
ought to be
interpreted to preserve their constitutional validity. This proviso
to the general principle is closely related to
the purposive approach
referred to in (a).”
THE RELEVANT
PORTION OF THE ANC CONSTITUTION IN CONTEXT (ANCC)
82.
The
ANCC in Rule 25, has carefully set out organisational disciplinary
structure
[26]
.
83.
All members of the ANC are subject to this
disciplinary structure.
84.
Once
instituted the disciplinary proceedings are a “
one-stage
inquiry
”.
[27]
85.
One
of many “
acts
of misconduct
”
is the conviction in a court of law of any offence and being
sentenced to a term of imprisonment without the option of a
fine.
[28]
86.
The
“officials”, the NEC, the PEC, the PWC amongst others may
institute disciplinary proceedings (“invoke”).
[29]
87.
The Provincial Disciplinary Committee
(PDC), the National Disciplinary Committee (NDC), the National
Disciplinary Committee of Appeal
(NDCA), the National Executive
Committee (NEC) and the National Conference has disciplinary or
appeal/review authority as is more
fully referred to hereafter.
88.
The ANC generally has jurisdiction to
discipline any member in respect of Rule 25.17 in respect of
misconduct as per Rule 25.4.
89.
The
PDC has jurisdiction to hear and adjudicate any act of misconduct
referred to it by the PEC.
[30]
90.
A
member found guilty has a right of appeal/review to the next higher
disciplinary committee within 21 days of a public announcement
of the
ruling and sanction.
[31]
91.
The words “appeal” and “review”
are defined in the ANCC as follows:
“
Appeal”:
“Means to resort to or apply to a higher
authority in the ANC structures for a decision”;
“
Review”:
“Means to consider the acceptance or refusal of;”
92.
The
decision of the disciplinary committee adjudicating the appeal or
review is said to be “final”.
[32]
93.
Disciplinary
proceedings shall be disposed of expeditiously and within a
reasonable time, failing which the member may apply for
the
withdrawal of the charge or that the proceedings be stopped.
[33]
94.
The
NDC has both original and appeal/review jurisdiction in respect of
cases adjudicated by the PDC.
[34]
95.
Where
the NDC acts as a tribunal “of first instance” a
review/appeal is to the NDCA.
[35]
96.
The
NDCA has jurisdiction to adjudicate appeals/reviews in matters
determined by the NDC and appeals bought to it in terms of the
ANCC.
[36]
97.
Reviews
by the NEC relate to the review of a decision of the disciplinary
committees as to procedural fairness.
[37]
98.
In this matter the initial proceedings were
to the PDC as a committee of first instance, then on appeal/review to
the NDC on 7 September
2021 where the applicant was successful. These
were appeals/review proceedings and applicant’s suspension was
uplifted.
99.
This finding was later appealed by the PDC
to the NDCA which upheld the appeal. The matter then came before the
NEC on appeal/review
brought by applicant and was dismissed, as I
have already set out above.
100.
Applicant contends that the appeal from the
NDC to the NDCA was by implication, on interpretation of Rule 25.24,
out of order as
“
by implication
appeals and reviews of the NDC cannot serve before the NDCA as an
appeal or review body
”. It is
argued that the finding of the NDC on appeal/review was thus final
and was in applicant’s favour, referring
to Rule 25.41 in
addition which sets out that the decision of the appeal or review
committee shall be final.
101.
I have carefully considered the ANCC in its
entirety, and applying the proper approach to interpretation I have
also had regard
to the Rules relevant to this matter in their
context. Having done so I do not agree with the interpretation urged
upon me, which
is vigorously challenged by respondents.
102.
On
a careful analysis of the relevant rules in context and approaching
the interpretation in the manner that I have set out carefully
above
under interpretation, it is clear that all decisions of first
instance, and reviews/appeals are subject to a cascade of
appeals/review opportunities through to the NEC and then the National
Conference.
[38]
103.
It makes no sense in the overall context of
the ANCC to suggest that Rule 25.24 limits the appeal process at the
NDC level, save
and unless it is a tribunal of first instance.
Indeed, all it does is to make it clear that an appeal/review as of
first instance
from the NDC is to the NDCA and does not, clearly in
my view, suggest (or even say) that if the NDC decides a
review/appeal that
is the end of appeals and reviews so that the
remaining structures at a higher level are disentitled from deal with
same.
104.
The interpretation sought by the applicant
also, in my view, flies the face of the NDCA jurisdiction as set out
in Rule 25.26, which
refers to appeals and reviews in matters
determined by the NDC. The argument also ignores the subsequent
review by the NEC.
105.
It is clear accordingly, in my view, that
on a proper interpretation in context the NDCA has appeals/review
jurisdiction in respect
of the appeals/reviews decided by the NDC, as
in this matter.
106.
Indeed, it is plain from the papers, that
this was also at least originally applicant’s view. He launched
an appeal against
the decision of the NDCA to the NEC, without
challenging the authority of the NDCA to decide the original
appeal/review from the
NDC.
107.
Applicant’s argument then in this
regard has to be rejected.
IRREPARABLE HARM
108.
As
to the next requisite, of irreparable harm, the question is whether a
reasonable man confronted by the facts, would apprehend
the
probability of harm, requiring the court to decide on the basis of
the facts it presented whether there was any ground for
the
entertainment of a reasonable apprehension of harm by applicant.
[39]
109.
I am prepared to accept that on the face of
it that if in fact applicant is entitled to participate in the ANC
and the upcoming
affairs, he will suffer at least potentially and
perhaps even on the probabilities, the harm which he apprehends. On
the other
hand, if he is not entitled to participate in the affairs
of the ANC, his participation may well impact upon the outcome of the
affairs of the ANC, but this goes rather to the balance of
convenience than to the apprehension of harm.
BALANCE OF
CONVENIENCE
110.
As to the balance of convenience, I have
set out the test and approach to be applied. On the sliding scale,
and as I have set out
above, applicant has no or at best remote
prospects of success on the approach to be adopted at the interim
interdict stage, and
thus the greater the need would be required in
respect of the balance of convenience to favour him as opposed to
applicant. It
seems to me, that the balance of convenience in this
matter is evenly balanced on the allegations set out in the papers.
However,
having regard to the extremely weak prospects of success
enjoyed by applicant, at least on the test at this stage, this too
must
be resolved predominantly against applicant.
NO OTHER
SATISFACORY REMEMDY
111.
In respect of the requirement of no other
satisfactory remedy, it is certainly so that the applicant has no
other remedy than to
continue to pursue the internal appeal processes
of the ANC over the next period. This then is one aspect to be
resolved in applicant’s
favour.
DISCRETION
112.
As I have already set out above, I have a
discretion in this regard and all the elements relevant to the
determination of interlocutory
relief must be viewed cumulatively.
113.
In my view, it flows from what I have
already set out above that viewed cumulatively in my judicial
discretion, the applicant has
entirely failed to demonstrate any
basis for interlocutory relief such as he claims in the notice of
motion. Not only has he failed
to establish a prima facie right on
the appropriate test to the extent required, but further the balance
of convenience at best
evenly balanced stands against relief being
granted in the matter viewed cumulatively.
114.
I have taken into account the
submissions made for applicant relevant to the constitutional
entitlement that applicant has in terms
of section 18 of the Bill of
Rights that every citizen is free to make political choices which
include the right to participate
in the activities of all recruit
members for a political party. I also take note of the argument for
applicant that his children
whose best interests this court must
maintain, have been equally affected, applicant having no income as a
result of his having
been asked to resign by the ANC. That is, of
course, however, not the end of the matter, and the proper approach
and interpretation
of relevant issues raised must be considered in
the light of the constitutional imperatives. I am also mindful and
have regard
to the applicable principles in the ANC’s
constitution.
115.
My analysis, however, of the allegations
relevant, read with supporting documents even taking into account the
constitutional and
rights in the ANC Constitution as referred to
above, do not change the conclusion and the basis therefor which I
have reached in
this matter.
116.
That the applicant has continued to fight
his suspension over a four-year period, and whilst I take note of
Rule 25.48 of the ANC
Constitution, and that disciplinary proceedings
shall be disposed of expeditiously and in a reasonable time, delays
on the papers
were as much due to successive appeals/reviews as the
issues which eventuated.
117.
There is in my view, no merit in the
argument advanced for applicant that the matter before the PDC was a
“
review
”
and not an appeal this being so it is argued deliberately mislabelled
in order to found jurisdiction of the NDCA. The concept
of review and
appeal in the ANC Constitution seems to me to effectively be used
without the distinction drawn between these two
kinds of proceedings
in the courts of law, as against their definition and in any event
this in my view takes the matter no further.
118.
I have applied the principles applicable to
the interpretation of documents set out below.
THE RESULT
119.
Accordingly, and in the circumstances,
applicant has failed to make out a case for interim interdictory
relief in this matter, and
the application falls to be dismissed as
appears from the order below.
COSTS
120.
In respect of costs, no sustainable reason
was advanced as to why applicant, should he be unsuccessful, should
not pay the respondents’
costs, bar that he was attempting to
enforce his constitutional rights.
121.
In my view, there is no reason to depart
from the well-established rule that costs follow the result.
122.
In
Biowatch
Trust v Registrar, Genetic Resources and Others
[40]
it was pointed out that generally in constitutional litigation
against the State, the successful litigant should not be ordered
to
pay the costs. This is a judicial discretion having regard to all
relevant considerations, and only if not frivolous, vexatious
or
manifestly inappropriate.
123.
In this matter if a genuine Constitutional
issue arose for consideration in the merits Biowatch may well be of
application, but
as I see it this is not the case.
124.
The
usual rule that a successful party should be awarded costs in any
event is always subject to judicial exercise of the Court’s
discretion. Where constitutional issues are raised
bona
fide
this must necessarily be taken into account in respect of an
appropriate just and equitable costs order. The judicial discretion
has been described as “
very
wide”
or “
overriding”
[41]
.
Judicially in this context means “
not
arbitrarily”
one
must consider the circumstances, weigh the various issues that have a
bearing on costs and make an order that is fair and just
between the
parties
[42]
.
125.
It seems to me that in all the
circumstances and having regard to the above considerations, and
Biowatch
and
in my general costs discretion, and further on the basis of justice
and equity it is justified to order that Applicant pay respondent’s
costs.
126.
The costs of two counsel are usually
allowed where this is regarded as a “
wise
and reasonable precaution
”, and
where this is not regarded as “
luxury
”.
127.
In
this regard, as generally in respect of costs, the Court has a
discretion
[43]
.
128.
In
De Naamloze
Vennootschap Alintex v Von Gerlach
1958
(1) SA 13
(T) 13 the Court (referring to the previous authorities)
mentioned the following factors as some warranting the granting of
costs
of the second advocate; the length of the hearing or argument,
the importance of questions of principle or of law involved and the
number of legal authorities quoted.
129.
In my view and in the Court’s
discretion the decision turns on the circumstances of each individual
case.
130.
Put
otherwise, was it proper and reasonable to brief two counsel in the
circumstances relevant to the matter, but the costs of two
counsel
should never be allowed as some kind of penalty analogous to an award
of attorney and client costs.
[44]
131.
As examples, the costs of two counsel may
not be allowed where the matter is of no unusual difficulty, or
straight forward on the
papers, or where the whole case turns on
simple issues of fact where little law is involved or where the
matter is of no great
difficulty or complexity.
132.
It goes without saying that the lengthy
application brought in this matter was both difficult and
complicated.
133.
In the circumstances the costs of two
counsel in this matter should be allowed.
134.
In the circumstances, in my view, there is
no reason why the usual approach to costs should not be adopted and
that they follow
the result.
135.
In this matter, a very substantial
application was brought as a matter of extreme urgency, the papers in
the end exceeding 280 pages,
and it is in my view in those
circumstances just and equitable were respondents to be afforded the
costs of two counsel, this being
most certainly a wise and reasonable
precaution.
ORDER
136.
In the result the following order issues:
1.
The application for urgent interim relief
is dismissed.
2.
Applicant is to pay first and second
respondents’ costs including the costs of two counsel.
M.J. LOWE
JUDGE OF THE HIGH
COURT
Appearing on behalf of
the Applicant: Adv.
Ka-Siboto, instructed by Mabuza Attorneys,
c/o Mgangatho Attorneys.
Appearing on behalf of
the Respondent: Adv. Bodlani together with Adv.
Mashiya, instructed by Sakhela Inc.
Date
heard:
8 December 2022.
Date
delivered:
14 December 2022.
[1]
Pikolli
v President of the Republic of South Africa
2010
(1) SA 400
(GNP) at 403H.
[2]
Setlogelo
v Setlogelo
1914 AD 221
at 227; RS v MS and others
2014 92) SA 511
(GJ) [26] to [28].
[3]
1973
(3) SA 685
(8); See also
Marinpine
Transport (Pty) Ltd v local Road Transportation Board,
Pietermaritzburg
1984 (1) SA 213
(N) at 234C.
[4]
1987
(2) SA 382 (D).
[5]
SA
Securitisation (Pty) Ltd v Chesane
2010 (60 SA 557
(GSJ) at 565D –
F.
[6]
1948
(1) SA 1186
(W) at 1189.
[7]
2021
(1) SA 397
(GP) at [12]; Eskom Holdings SOC Ltd v Lekwa Rate
Association
[2022] 1 All SA 642
(SCA) at [21].
[8]
1955
(2) SA 682
(C) at 688 D – E.
[9]
Zulu
v Minister of Defence
[2005] ZAGPHC 16
;
2005 (6) SA 446
(D) at 460D – 461C.
[10]
LAWSA
Vol 5 Civil Procedure Para 15: CIPLO Medipro (Pty) Ltd v Aventis
Pharma SA (treatment Action Compaing as amicus curiae)
2012 JOL
29165
SCA [40].
[11]
2012
(6) SA 223
(CC) at 231C –E.
[12]
This
most recently set out in
South
African informal traders forum v City of Johannesburg
2014 (4) SA 371
(CC) at 380 d which approved Ferreira v Levinno
1995
(2) SA 813
(W) at 832D – 833h.
[13]
Breedenkamp
v Standard Bank of Sourh Africa Ltd
2009
(5) SA 304
(GSJ) at 314H.
[14]
AA-1
page 190 dated 14 July 2020
[15]
Page
198
[16]
Page
262.
[17]
This
is contradicted by AA-9 of applicant’s appeal to the NEC
against the decision of the NDCA.
[18]
Page
36 of the papers.
[19]
2001
(4) SA 298
(KZP) [43].
[20]
EL
1303/2017
[2017] ZAECHC 131
(12 December 2017) at p
ara
24.
[21]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA).
[22]
2020
(6) SA 14 (CC).
[23]
2021
ZACC 13
at
[65]
.
[24]
Novartis
SA (Pty) Ltd v Maphil Trading (Pty) Ltd
2016
(1) SA 518 (SCA).
[25]
2014
(4) SA 474 (CC).
[26]
Rule
25.
[27]
Rule
25.11
[28]
Rule
25.17.2
[29]
Rule
25.9
[30]
Rule
25.33
[31]
Rule
25.34; Rule 25.38.
[32]
Rule
25.41
[33]
Rule
25.48 – 25.52.
[34]
Rule
25.20 – 25.23.
[35]
Rule
25.24.
[36]
Rule
25.26.
[37]
Rule
25.29
[38]
Rules
10 and 11 and particularly 11.3.
[39]
Minister
of Law and Order v Nordien
1987
(2) SA 894
(A) at 896 H – I;
National
Council of Societies for the Prevention of Cruelty to Animals v
Openshaw
[2008] ZASCA 78
;
2008 (5) SA 339
(SCA) at 347D – E.
[40]
2009
(6) SA 232
[41]
K
& S Dry Cleaning Equipment (Pty) Ltd and Another v South African
Eagle Insurance Co Ltd
and
Another
2001
(3) SA 652
(W) at 668;
Griffiths
v Mutual & Federal Insurance Co Ltd
[1993] ZASCA 121
;
1994 (1) SA
535
(A);
Ferreira v Levin NO and Others; Vryenhoek and Others v
Powell NO and Others
1996 (2)
SA
621 (CC) para [3].
[42]
Cilliers
on Costs 2.01 to 2.04
[43]
International
(Pty) Ltd v Lovemore Brothers Transport
CC
2000 (2) SA 408
(SE) 413H.
[44]
Rand
Townships and Small Holdings (Pty) Ltd v Griebenow
1956 (2) SA 42
– 45.