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[2021] ZAGPJHC 405
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Magashule v Ramaphosa and Others (2021/23795) [2021] ZAGPJHC 405 (13 September 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 2021/23795
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
DATE:
13 September 2021
In
the matter between:
ELIAS
SEKGOBELO MAGASHULE
Applicant
and
CYRIL
RAMAPHOSA
First Respondent
JESSIE
DUARTE
Second Respondent
AFRICAN
NATIONAL CONGRESS
Third Respondent
Summary
:
Application for leave to appeal – test for leave to appeal
reaffirmed.
Condonation
–
the applicant contended that
the condonation by the respondents ought not to have been granted
because they did not comply with
the time frames set out in the
Notice of Motion – condonation granted in the interests of
justice – no prejudice resulting
from the delay – no
prospects that the appeal court would find otherwise.
Bias
–
perceived and actual bias –
test for bias restated – the court having considered all the
facts properly before it –
accusation by the applicant of
actual and perceived bias by the court not substantiated.
Precautionary
suspension
–
no reasonable
prospects of success that the appeal court would find that
precautionary suspension attracts the application the
audi
alteram partem
rule – no prospect
of success that the appeal court would find that
au,
in the circumstances, was not complied with.
Power
to suspend
–
no prospects of
success that the appeal court would find that the Deputy Secretary
General did not have power to suspend the applicant
under Rule 25.70
read with Rule 16.9 of the ANC constitution.
NEC
Resolution
– no prospects of
success that the appeal court would find that the NEC’s step
aside resolution narrowed down or amended
the National Conference
resolution.
Suspension
of first respondent
–
no prospect
that appeal court would find that applicant had the authority to
issue letter of suspension.
Held
–
application for leave to appeal dismissed
with costs.
JUDGMENT
KOLLAPEN,
WEINER and MOLAHLEHI JJ
Introduction
[1]
This
is judgment in an application for leave to appeal against the whole
of the order and judgment of this Court of the 9 July 2021.
[1]
The grounds for the application are fully set out in the notice of
application for leave to appeal dated 30 July 2021.
[2]
The applicant has also filed a
supplementary application for leave to appeal, dated 19 August 2021,
which relates to the intention
of the applicant to seek to admit new
evidence not available at the time of the hearing of the main
application, in the event of
leave to appeal being granted either by
this Court or another court. It was not in dispute that the
supplementary application has
no bearing on the adjudication of the
application for leave to appeal in this Court, and will only arise if
the matter is to serve
before another court by way of appeal.
[3]
In the application for leave to appeal, the
applicant relies on both
s 17(1)(a)(i)
and (ii) of the
Superior
Courts Act 10 of 2013
.
The law
[4]
Section 17(1)(a)
of the
Superior Courts Act
provides
that leave to appeal may only be given where the court is of
the opinion that:-
‘
(i)
the appeal would have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be heard
including conflicting
judgments on the matter under consideration;’
[5]
It is generally accepted that the existing
provisions of the Act has brought with it a different and heightened
threshold for an
applicant to meet in securing the granting of leave
to appeal in terms of
s 17(1)(a)(i).
[6]
In
Mont
Chevaux Trust v Tina Goosen & 18 Others
,
[2]
the court said the following:-
‘
It
is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new Act. The
former
test whether leave to appeal should be granted was a reasonable
prospect that another court might come to a different conclusion,
see
Van Heerden v Cornwright and Others
1985 2 SA 342
T at 343H. The use of the word “would” in
the new statute indicates a measure of certainty that another court
will
differ from the court whose judgment is sought to be appealed
against.’
[7]
It is accordingly against that bar that the
application before us falls to be determined.
The grounds on which the
application is based
[8]
The application is advanced on several
grounds and includes findings on preliminary issues as well as on the
merits of the application.
In regard to the preliminary issues, the
stance taken is that the Court erred in various respect, which
include:-
(a)
The court granting the condonation
application of the first respondent;
(b)
The decision in respect of the applicant’s
application to strike out.
(c)
That the Court demonstrated actual or
perceived bias.
Preliminary issues
Condonation
[9]
The applicant submitted that the Court
erred by granting condonation in respect of the filing of the first
respondent’s affidavit,
and by accepting the second and third
respondent’s explanation as to why their affidavits were filed
after that the date
set out in the Notice of Motion.
[10]
The application was set down for 1 June
2021. The Notice of Motion and affidavits were served on the
respondents on 13 May 2021,
calling upon the respondents to file
their answering affidavits before 16h00 on 20 May 2021. The applicant
contended that the failure
to file the affidavits before the deadline
was an ‘arrogant disregard for the rules of court’. The
applicant, however,
did not disclose to the Court that on 18 May 2021
and 21 May 2021, the respondents’ attorneys had sent letters to
the applicant’s
attorneys detailing some difficulties that they
had with the time period, and undertaking to file the answering
affidavits by 25
May 2021. There was no response to these letters.
[11]
The second and third respondents filed
their affidavits on 25 May 2021, presumably assuming that the
applicant had no objection
thereto, in view of the lack of response.
No condonation was necessary until the 25 May 2021 by virtue of the
agreement as evidenced
by the conduct of the parties. The first
respondent filed his affidavit on 27 May 2021, explaining the
difficulties he had encountered
in finalising his affidavit. He
requested condonation in his affidavit, for the two-day delay (the
reasons for the five-day delay
already having been explained).
Condonation was thus granted – it was only granted where and to
the extent that it was sought.
[12]
A case management conference was held on 25
May 2021, before the ADJP (as he then was). Dates for the filing of
outstanding affidavits
and further documents, as well as a date for
hearing, were agreed on. The applicant’s attorney and counsel
did not raise
the issue of the delay and/or the necessity for an
application for condonation at the meeting.
[13]
The
applicant relied on
Republikeinse
Publikasies (Edms) Bpk v Afrikaanse Pers Publiksies (Edms) Bpk
,
[3]
What is clear from this authority is that, if the respondent fails to
adhere to the time periods set by the applicant, it runs
the risk of
having a default judgment entered against it. In our view, it does
not mean that the time periods are set in stone
and cannot be
adjusted, depending on the circumstances.
[14]
The
applicant also referred to
eThekwini
Municipality v Ingonyama Trust
,
[4]
where the Constitutional Court expressed its displeasure in so far as
failure to observe timelines is concerned:-
‘
The
conduct of litigants in failing to observe Rules of this Court is
unfortunate and should be brought to a halt. This term alone,
in
eight of the 13 matters set down for hearing, litigants failed to
comply with the time limits in the Rules and directions issued
by the
Chief Justice….’
[15]
The situation in the present matter is
distinguishable. There was no failure to observe the Uniform Rules of
Court. The applicant’s
timelines were set out in the Notice of
Motion; the respondents’ attorneys requested more time; the
applicant did not respond
to such request; the affidavits were filed
five and seven days late. For the applicant to submit that the Court
failed to ‘even
apply the requirement and the test for
condonation’ and thus committed ‘a gross misdirection’
which would ‘without
doubt’ be overturned by a higher
court is, in our view, an unsound and unwarranted submission.
[16]
The applicant’s counsel made the
quite extraordinary submission that counsel for the first respondent
stated that ‘the
applicant ought to understand that he cannot
dictate timelines to the first respondent as he is the President of
South Africa’.
This submission is factually wrong; no such
statement was made and the Court did not make any such finding.
[17]
In
Brummer
v Gorfil Brothers Investments (Pty) Ltd
,
[5]
the Constitutional Court laid down the standard that applies to the
granting of both condonation and leave to appeal. In that case
the
court said the following:-
‘
It
is appropriate that an application for condonation be considered on
the same basis [as an application for leave to appeal] and
that such
an application should be granted if that is in the interests of
justice and refused if it is not. The interests of justice
must be
determined by reference to all relevant factors including the nature
of the relief sought, the extent and cause of the
delay, the nature
and cause of any other defect in respect of which condonation is
sought, the effect on the administration of
justice, prejudice and
the reasonableness of the applicant’s explanation for the delay
or defect.’
[18]
In our view, the principles laid down in
Brummer
support
this Court’s ruling that condonation, where necessary, be
granted, in the interests of justice. No prejudice to the
applicant
resulted as a result of the delay.
[19]
The first respondent asked, in his
affidavit, that the delay be condoned and the Court did so. We do not
believe that another court
will find that this Court erred in
granting this order.
The application to
strike out
[20]
The applicant also submitted that this
Court grossly misdirected itself in not granting the application to
strike out several of
the respondents’ documents and the first
respondent’s affidavit in its entirety. We do not find it
necessary to repeat
the findings made in the judgment. For the
reasons stated therein, we believe that the correct order was made.
[21]
It is, however, necessary to deal with
another incorrect submission made by the applicant. In the heads of
argument, the applicant
stated that the court order read:-
‘
The
application to strike out is dismissed with costs, including costs of
three counsel, which costs are to
include
the costs of duplicated documents as set out fully in annexure A and
B to the notice of motion in terms of Rule 6(15).’ [Emphasis
added]
[22]
He stated further that although the Court
held that some of the documents were irrelevant, the Court
nevertheless ‘found it
appropriate to issue a cost order
against the aggrieved applicant. A grosser misdirection is very hard
to imagine.’
[23]
In fact, what the Court actually held in
regard to the strike out application was that:-
‘
The
application to strike out is dismissed with costs, including costs of
three counsel, which costs are to
exclude
the costs of duplicated documents as set out fully in annexure A and
B to the Notice in terms of Rule 6(15).’ [Emphasis added]
[24]
The accusation levelled at the Court in
this regard is thus not only unwarranted, but untrue. The issue of
the documents which the
applicant wished to have struck out had no
bearing on the matter other than in respect of costs. The Court took
this into account
and made the order that it did. We are of the view
that a higher court would not come to a different conclusion in this
regard.
Bias
– actual or perceived
[25]
The applicant’s counsel submitted
that the judgment of the Court was ‘littered with a plethora of
examples which demonstrate
deliberate distortion of the facts and the
case of the applicant to the benefit of the respondents, all with the
aim of justifying
the pre-determined outcome by the court’.
[26]
The applicant set out, in his heads of
argument, various examples, which he submitted showed not only
perceived bias, but actual
bias, accusing the Court of prejudging
issues and, ‘ignoring the facts and the relevant background …
for purposes
of assisting the respondent in its justification of the
approach to the step aside regime.’
[27]
The applicant submitted that the Court
distorted the facts to produce a pre-determined outcome. This can be
nothing other than actual
bias and is a serious matter. Of course,
any litigant is entitled to raise it, provided that there is a proper
basis to do so.
[28]
The examples provided by the applicant, in
which this Court is accused of distorting the facts to arrive at a
pre-determined outcome
include, but are not limited to, the Court:-
(a)
finding that a suspension in terms of the
step-aside rule was precautionary and not punitive;
(b)
finding that hearing before the Integrity
Commission and the various meetings which the applicant attended,
within the ANC as a
member, were part of the broader rubric where his
right to be heard could be exercised;
(c)
distorting arguments made by the applicant,
attributing assertions to him that were not made by him and rejecting
his submissions
in favour of those of the respondents, without
providing reasoning;
(d)
prejudging the issue of the authority of
the Deputy Secretary General (the DSG) in the intervention
application when that same issue
was one for determination in the
main application;
(e)
accepting the respondents’ assertion
that the applicant’s suspension was effected in accordance with
the ANC constitution;
(f)
accepting, without a factual or legal
basis, that the National Conference Resolutions ‘do not
constitute a rule’ and
rejecting the applicant’s
submissions that the step-aside rules were re-engineered for the
express purpose of protecting
the first respondent;
(g)
‘
parachuting its own analysis and gap
fillers’ to come to the conclusion that the suspension letter
(of the first respondent)
was invalid when the first respondent made
no case whatsoever in this regard;
(h)
committing the gross misdirection in
failing to furnish reasons for and/or to even deal with the apparent
rejection by the Court
of numerous material submissions advanced by
the applicant in the exercise of his rights to have the dispute
resolved by a court
of law.
[29]
The
applicant referred to the
President
of South Africa v South African Rugby Football Union
,
[6]
where the Constitutional Court stated that the reasonable
apprehension of bias, not actual bias, was the guiding principle and
declared that:-
‘
A
cornerstone of any fair and just legal system is the impartial
adjudication of disputes which come before the courts and other
tribunals. This applies, of course, to both criminal and civil cases
as well as to quasi-judicial and administrative proceedings.
Nothing
is more likely to impair confidence in such proceedings, whether on
the part of litigants or the general public, than actual
bias or the
appearance of bias in the official or officials who have the power to
adjudicate on disputes.’
[30]
The
applicant also referred to the Constitutional Court decision in
South
African Commercial Catering and Allied Workers Union v Irvin and
Johnson Ltd (Seafoods Division Fish Processing)
,
[7]
where the court defined impartiality as follows:-
‘
Impartiality
is that quality of open-minded readiness to persuasion –
without unfitting adherence to either party or to the
Judge’s
own predilections, preconceptions and personal views – that is
the keystone of a civilised system of adjudication.
Impartiality
requires, in short, “a mind open to persuasion by the evidence
and the submissions of counsel”; and, in
contrast to
neutrality, this is an absolute requirement in every judicial
proceeding.’
[31]
The applicant submitted that this Court
failed to meet the threshold enunciated by the Constitutional Court
in the cases quoted.
He contended further that ‘the plethora of
factual mistakes articulated above are so unreasonable as to give
rise to a conclusion
that they were actuated by bias.’
[32]
In the context of these proceedings,
although asserting actual bias in the heads of argument, the
applicant’s counsel, at
the hearing, appeared to rest his case
on perceived bias. The submissions made in the heads of argument of
actual bias (in the
form of the distortion of facts to reach a
pre-determined outcome) were not supported by any evidence to that
effect. In essence,
it would mean that three judges of this Court
sitting together would have collectively:-
(a)
agreed on a pre-determined outcome and then
having done so;
(b)
would agree to distort the facts, arguments
and conclusions to reach such an outcome.
[33]
The accusation of actual bias accompanied
by collusive conduct on the part of judicial officers to reach a
pre-determined outcome
is a gravely serious one to make, and while no
one should be precluded from advancing such a complaint, the
integrity of the judiciary
and the judicial system must require that
such allegations be adequately supported when they are so advanced.
[34]
The Court thoroughly analysed each material
issue and came to a conclusion based upon the facts and the law
applicable. The fact
that the applicant may disagree with the factual
findings of the Court, even if such disagreements are copious, does
not lead to
the ineluctable conclusion that the Court was biased.
[35]
In so far as the charge is made that the
Court prejudged an issue, namely on the authority of the DSG of the
ANC, there was in fact
no prejudgment in the sense described by the
applicant. This Court, in the context of adjudicating an intervention
application
by a party seeking to join the main application, had to
consider and deal with a challenge to the authority of the DSG to
represent
the ANC in those intervention proceedings. The issue of the
challenge to the authority of the DSG was necessary in the
adjudication
of the intervention application and not a prejudgment.
It was raised in a different context and it remained open to the
applicant
to pursue the issue in the context of the main application.
This this was indeed so pursued. No reasonable perception of bias on
the part of the Court could conceivably arise from that issue which
was limited to the intervention application and dealt with
in a
different context.
[36]
The
question of bias was dealt with by the Constitutional Court in
S
v Basson
,
[8]
in dealing with mistakes on the facts by the court. The
Constitutional Court stated that, ‘…to give rise to a
reasonable
apprehension of bias, it would need to be established that
the
mistake of fact is so unreasonable on the record that it must have
arisen from bias or given rise to a reasonable apprehension
of bias
.’
[Emphasis added]
[37]
In
our view, none of the decisions that this Court made on the various
factual issues which we decided on were so unreasonable that
a
perception of, or actual bias, can be shown. The Court was fully
entitled to question the applicant’s counsel on the submissions
being made; this does not lead to a conclusion that we had prejudged
an issue. As was stated in
Hamata
and another v Chairperson, Peninsula Technikon Internal Disciplinary
Committee and other
:-
[9]
‘
It
is our view that it is not bias
per se
to hold certain tentative views about a matter. It is human nature to
have certain
prima facie
views on any subject.
A line must be
drawn, however, between mere predispositions or attitudes, on the one
hand, and pre-judgment of the issues to be
decided, on the other
.’
[Emphasis added.]
[38]
There were no political imperatives which
influenced our decision, nor did we prejudge the issues before us. We
therefore reject
the applicant’s contentions that we displayed
bias, either actual or perceived, and do not believe that a higher
court would
come to a different conclusion.
Merits
[39]
The applicant submitted that the Court
erred in the following material respects in its determination of the
merits of the dispute:-
In finding that Rule
25.70 is not a rule of discipline
[40]
In its judgment the Court considered the
rule in relation to its content, objective and relationship with the
other provisions of
the Constitution of the ANC and, in particular,
those that related to disciplinary proceedings. It concluded for the
reasons given
that it was not a rule of discipline, that it did not
attract the measures that would apply to disciplinary hearings (in
particular
Appendix 3 of the ANC’s Constitution) and further
that the rule was not activated or connected to any disciplinary
processes
within the ANC.
[41]
There is in our view no reasonable prospect
that another Court will come to different conclusion on this aspect
of the application.
In finding that a
suspension under Rule 25.70 is ‘precautionary’ and ‘not
punitive’ and therefore attracts
different legal protections
and considerations, as well as the question of ‘audi’
[42]
The applicant contended that this Court
erred and misdirected itself in its approach in dealing with the
issue of precautionary
suspension. The two grounds upon which the
judgment is attacked in this regard can be summarised as follows:
(a)
The
principle in
Long
v
South African Breweries (Pty) Ltd
,
[10]
which
this Court applied, is distinguishable on the facts of the present
matter. That case dealt with suspension in the context
of the
employment relationship, and had nothing to do with the rules of
natural justice as applicable to voluntary associations
such as
political parties.
(b)
The
correct approach that ought to have been followed was that of
Lewis
v Hefer,
[11]
and
John
v Rees
,
[12]
where it was held that the suspension was punitive and deprived the
suspended person of his or her rights.
[43]
The above means that the applicant's
suspension would amount to expulsion and thus, according to him,
attracting the
audi
alteram partem
rule.
[44]
The
applicant’s counsel criticised this Court's application of the
principle in
Ramakatsa
.
[13]
He contended that political parties are regarded as being so
important that they do not operate like other voluntary
organisations.
In this context, according to him, the suspension
limited the applicant’s right of participation in the political
activities
of the ANC, which he was entitled to in terms of s 19
of the Constitution.
[45]
In
support of the proposition that
audi
also
applied to a precautionary suspension, the applicant’s counsel
referred us to the case of
Mhlauli
v The Minister of the Department of Home Affairs and others NNO,
[14]
the decision of the then South Eastern Cape Local Division. The
issue, in that case, involved the suspension of a permanent employee
of the Department of Home Affairs in terms of the Public Service Act,
21 of 1984 on the charges of misconduct. The suspension was
conducted
in terms of s 15(1) read with s 16(1) of that Act. Section
15(1) provided for suspension pending a disciplinary
inquiry. The
consequences of the suspension would, in terms of s 16(1), lead
to the cessation of all employee benefits, including
the salary. This
means that the suspension, in that case, was punitive.
[46]
The common features of
Mhlauli
and
Long
are that the suspensions were done in the context of an employment
relationship. However,
Long
was
decided by the Supreme Court of Appeal and
Mhlauli
by the High Court. This Court was
therefore bound to follow
Long.
For this reason, this Court found that the correct approach to follow
in dealing with a precautionary suspension was that stated
in
Long
.
Mhlauli
dealt with the statutory punitive suspension, whereas the applicant’s
case involved a precautionary suspension. The present
case does not
involve a suspension pending a disciplinary inquiry; nor does the
applicant suffer the cessation of all employee
benefits, including
his salary. They remain intact.
[47]
The
applicant’s counsel also referred, in support of the
proposition that
audi
applies
to precautionary suspension, to the text
Grogan:
Employment Rights
.
[15]
The author in that book draws a distinction between preventative
(cautionary) and punitive suspensions in the context of the
employment
relationship. He deals in detail with the concept of
‘precautionary’ suspension with reference to several
Labour Court
and the Labour Appeal Court cases. In distinguishing
between preventative and punitive suspensions, the author writes:
‘
Preventative
suspension differs from punitive suspension in that, in the former
case, the employee has not been found guilty of
an offence; in the
latter, the employee has been found guilty and suspension is imposed
as a sanction. The procedural requirements
for a fair preventative
suspension, therefore, differ from those of a punitive suspension. In
the latter case, the normal principles
subject to all disciplinary
penalties apply: the employee must have been given a fair hearing;
the employee must have been proven
guilty of the offense; and the
sanction must be appropriate.’
[16]
[48]
In
analysing the decision in
MEC for
Education, North West Provincial Government v Gradwell
,
[17]
the author said the following:
‘
The
LAC then turned to the Labour Court’s finding that
Gradwell
had not been afforded a hearing before being suspended. It found that
the court
a
quo
had
failed to justify his view that
audi
alteram partem
rule
applied to precautionary suspension.’
[18]
[49]
The author further said:
‘
While
this might suggest that the requirements of procedural fairness apply
to both precautionary and punitive suspension imposed
as a
disciplinary sanction, the proposition that all suspensions must be
procedurally fair, requires qualification. The court pointed
out that
the requirements of procedural fairness are flexible and ultimately
depend on the balancing of a range of factors. In
cases of
precautionary suspension, a hearing may be attenuated and the
requirements of procedural fairness is relaxed because the
employee
is not deprived of pay, the period of suspension will normally be
limited, and because the balance of convenience normally
favours the
employer.’
[19]
[50]
In
dealing with the issue of whether
audi
finds
application in suspension cases, this Court found that,
“the
audi
rule
is part of the rules of natural justice, which is entrenched in our
law.”
[20]
In relation to
the application of the
audi
in
precautionary suspensions, it further found that the current legal
position as set out in
Long
is that
audi
does
not apply in precautionary suspensions.
[51]
In light of the above discussion, we are
not persuaded that there are reasonable prospects that another court,
faced with the same
facts and circumstances as those in the present
matter, would find otherwise.
[52]
The other complaint of the applicant is the
finding of the Court that there was compliance with
audi
if,
on the facts and the circumstances of the case, it was to be found
that compliance was required.
[53]
The applicant contended that the Court
erred in failing to recognise that he could not, by participating in
the meetings of the
NWC, the NEC and the Integrity Commission, be
said to have waived his right to
audi
; neither
could such participation amount to
audi
.
It must be recalled that he undertook to the Integrity Commission
that he would stand down, if the NEC required that he do so.
This, in
our view, is unsustainable because the argument elevates the
audi
to
the level of a formalistic and rigid procedure akin to a trial or a
disciplinary hearing. As stated in our judgment,
audi
is part of the flexible rules of
natural justice.
[54]
This Court decided the issue of
whether
audi
was
satisfied in the context of its flexibility and the facts and the
circumstances of the case, after having regard to the
evidence
properly presented before it. In this respect, the Court took into
account the totality of the evidence before it, and
concluded that
the requirements of
audi
were
satisfied. This includes attendance by the applicant of the various
meetings of the structures of the ANC, including
attendance at the
Integrity Commission.
[55]
The important aspect of the Court’s
finding in relation to the meetings attended by the applicant was
that, in the context
of the flexibility of
audi,
the
applicant acquired information about his suspension and had the
opportunity to state why he believed that his suspension
was
inappropriate. We stand by this finding and do not believe that there
are reasonable prospects that another court could come
to a different
conclusion than that of this Court.
In finding that the
jurisdictional requirements of Rule 25.70 were met and/or that the
power to suspend was ever delegated to the
DSG and/or that she
derived that power from Rule 16.9 of the ANC Constitution.
[56]
The applicant contended that the Court
erred in finding that the DSG had the authority to suspend him as the
Secretary General of
the ANC. According to him, the suspension was a
nullity because the DSG had no authority to suspend him. The
issue of whether
the DSG had the authority to suspend the applicant
is fully dealt with in the judgment. We stand by that finding and do
not believe
that the appeal court would find otherwise.
[57]
The other point raised, was that the DSG
failed to exercise her discretion in that she did not show that she
had “satisfied”
herself that the suspension of the
applicant was in the best interest of the ANC. The issue of the
applicant’s suspension
by the DSG and her power to do so, is
also fully dealt with in the judgment. We have not been persuaded
that the appeal court is
likely, in this regard, to find otherwise.
In misdirecting itself
in finding that the applicant’s suspension did not prima facie
limit the applicant’s political
rights, thereby triggering the
duty on the part of the respondents to justify the limitation of such
rights.
[58]
In its judgment, the Court analysed the
provisions of the ANC Constitution and concluded that the
participation rights of its members
guaranteed by s 19 of the
Constitution were properly provided for, particularly if regard was
had to Rules 4 and 5 of the
ANC Constitution. Beyond that, it found
that the ANC was entitled, in terms of its autonomy and its
associational rights, to regulate
the exercise of those rights. In
doing so it must of course comply with its own constitution. This,
the Court pointed out, was
consistent with the
dicta
in
Ramakatsa
that:-
‘
Section
19 of the Constitution does not spell out how members of a political
party should exercise the right to participate in the
activities of
their party. For good reason this is left to political parties
themselves to regulate. These activities are internal
matters of each
political party. Therefore, it is these parties which are best placed
to determine how members would participate
in internal activities.
The constitutions of political parties are the instruments which
facilitate and regulate participation
by members in the activities of
a political party.’
[21]
[59]
This is precisely the architecture of the
Constitution of the ANC. It guarantees, in Rules 4 and 5, the right
to participate and
then having done so, regulates how the right is to
be exercised internally. There is, in our view, no reasonable
prospect that
another court would come to a different conclusion on
this matter.
NEC Resolution and the
complaint that it narrowed/repurposed the NASREC resolution
[60]
The applicant contended that the Court
erred in concluding that the NEC’s, step-aside resolution did
not amount to a narrowing
down, repurposing or amendment of the
resolution of the National Conference. This issue is dealt with
fully in the judgment;
we stand by the conclusion reached therein and
do not believe that an appeal court would find otherwise.
Suspension of the
first respondent
[61]
The applicant criticised the Court’s
finding on this issue, stating that the grounds upon which the issue
was decided were
not those raised by the first respondent. The
applicant contended that:-
(a)
he acted on the authority of the NWC;
(b)
he suspended the first respondent in terms
of Rule 25.70.
[62]
But the applicant did not act on the
authority of the NWC; it was never given. And, Rule 25.70 only
applies to persons who have
been indicted; the first respondent had
not been charged with any offence.
[63]
The applicant, in his replying affidavit
raised a new ground: that in 2018, the NEC delegated to him the power
to take all steps
necessary or warranted for the due fulfilment of
the aims end objectives of the ANC.
[64]
Besides this ground being impermissibly
raised only in reply:-
(a)
the applicant did not provide any proof
that the NEC delegated such powers to him and did not show whether
the delegation was still
in force;
(b)
he did not have the power to override the
decisions of the NEC and the NWC.
[65]
Thus, it was unnecessary to traverse the
myriad of allegations made by the applicant on the conduct of the
NEC, the NWC, the DSG
and the first respondent, which he raised in
support of his decision to suspend the first respondent. It was clear
that he had
no authority to do so. This ground of appeal is also
without merit.
[66]
It is for these reasons that we conclude
that there is no prospect that another court would come to a
different conclusion, nor
are there any compelling reasons why leave
to appeal should be granted.
[67]
In the circumstances we make the
following order:-
1.
The application for leave to appeal is
dismissed with costs including the costs of three counsel.
J
KOLLAPEN
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
SE
WEINER
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
E
MOLAHLEHI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
This
judgment was handed down electronically by circulation to the
parties’ and/or parties’ representatives by email
and by
being uploaded to CaseLines. The date and time for hand-down is
deemed to be 10h00 on 13 September 2021.
Date
of hearing:
25
August 2021
Date
of judgment:
13
September 2021
Appearances:
Counsel
for the applicant:
DC Mpofu SC
M Sello SC
M Qofa
Z Khumalo
Attorney
for the applicant:
Mabuza Attorneys
Counsel
for the respondents:
W Trengove SC
N Maenetje SC
F Nalane SC
B Lekokotla
Attorney
for the respondents:
Ledwaba Mazwai Attorneys
[1]
Magashule
v Ramaphosa and Others
[2021] ZAGPJHC 88; [2021] 3 All SA 887 (GJ).
[2]
Mont
Chevaux Trust v Tina Goosen & 18 Others
2014 JDR 2325 (LCC) para 6.
[3]
Republikeinse
Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk
1972 (1) SA 773 (A).
[4]
eThekwini
Municipality v Ingonyama Trust
[2013] ZACC 7
;
2014 (3) SA 240
(CC) para 26.
[5]
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
[2000] ZACC 3
;
2000 (2) SA 837
(CC) para 3.
[6]
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1999] ZACC 9
;
1999 (4) SA 147
(CC) para 35. See also
S
v Le Grange and Others
[2008] ZASCA 102
;
2009 (2) SA 434
(SCA) para 21.
[7]
South
African Commercial Catering and Allied Workers Union and Others v
Irvin & Johnson Limited Seafoods Division Fish Processing
[2000] ZACC 10
;
2000 (3) SA 705
(CC) para 13.
[8]
S
v Basson
2007 (3) SA 582 (CC).
[9]
Hamata
and Another v Chairperson, Peninsula Technikon Internal Disciplinary
Committee and Others
2000 (4) SA 621
(C) para 67.
[10]
Long
v South African Breweries (Pty) Ltd and Others
[2019]
ZACC 7
; (2019) 40 ILJ 965 (CC).
[11]
Lewis
v Hefer and Others
[1978]
3 All ER 354
.
[12]
John
v Rees
[1969]
2 All ER 274.
[13]
Ramakatsa
and Others v Magashule and Others
[2012]
ZACC 31
;
2013
(2) BCLR 202 (CC).
[14]
Mhlauli
v The Minister of the Department of Home Affairs and others NNO
1992
(3) SA 635
(SE) at 639
[15]
J
Grogan
Grogan:
Employment Rights
2 ed (2014).
[16]
Ibid
at 143.
[17]
MEC
for
Education, North West Provincial Government v Gradwell
[2012]
ZALAC 8
; (2012) 33 ILJ 2033 (LAC).
[18]
Grogan
(note 15 above) at 165.
[19]
Ibid
at 166.
[20]
Magashule
v Ramaphosa
(note
1 above) para 110.
[21]
Ramakatsa
(note
13 above) para 73.