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2021
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[2021] ZAGPJHC 491
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Mlambo and Others v African National Congress and Others (2021/42288) [2021] ZAGPJHC 491 (22 September 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 2021/42288
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
YES
DATE:
22 September 2021
In
the matter between:
DORA
MLAMBO
1
st
Applicant
nokuthula
xaba
2
nd
Applicant
phumla
mgidlana
3
rd
Applicant
thabisa
makapaka
4
th
Applicant
ponthso
motloung
5
th
Applicant
anna
mnguni
6
th
Applicant
sesana
mthethwa
7
th
Applicant
dimakatso
sebiloane
8
th
Applicant
LORRAINE
MAHLOSANE
9
th
Applicant
THANDI
MAKGOBOLA
10
th
Applicant
MARIA
MOKOENA
11
th
Applicant
CIKIZWA
KALI
12
th
Applicant
PHUMEZA
NGCUKA
13
th
Applicant
DINAH
KHOZA
14
th
Applicant
BOMIKAZI
SOBALISA
15
th
Applicant
JEMINA
NQALA
16
th
Applicant
PETUNIA
MSOMI
17
th
Applicant
NTOMBI
MEGKWE
18
th
Applicant
PASCALINA
MADODA
19
th
Applicant
GLADYS
NGWANE
20
th
Applicant
ZOLEKA
NGOZI
21
st
Applicant
SIHLE
GREEN
22
nd
Applicant
NOBOMI
WHITEY
23
rd
Applicant
GLADYS
NGOZO
24
th
Applicant
FIKILE
SOBOPHA
25
th
Applicant
PATRICIA
MABUZA
26
th
Applicant
ANDISWA
RONDO
27
th
Applicant
THULI
TWANA
28
th
Applicant
CELIWE
NKOSI
29
th
Applicant
ZOLEKA
NJOBOLOANE
30
th
Applicant
BANYANA
KHUTHAMO
31
st
Applicant
and
AFRICAN
NATIONAL CONGRESS
1
st
Respondent
AFRICAN
NATIONAL CONGRESS
WOMEN’S
LEAGUE, GAUTENG
2
nd
Respondent
AFRICAN
NATIONAL CONGRESS
PROVINCIAL
EXECUTIVE COMMITTEE, GAUTENG
3
rd
Respondent
INDEPENDENT
ELECTORAL COMMISSION
4
th
Respondent
JUDGMENT
EX TEMPORE
WEINER
J
Introduction
[1]
The applicants sought, as a matter of
urgency, relief against the respondents – in effect, directing
that the Ekurhuleni ANC
Women’s League 7
th
Regional Conference be declared irregular, unlawful,
unconstitutional, and in breach of the ANC Constitution; and, that
the decisions
and resolutions taken be declared null and void;
further, that the Conference be reconvened in a lawful manner in
order for free
and fair elections take place.
[2]
The application was issued on 3 September
2021; the respondents were required by the applicant to file an
answering affidavit by
Wednesday, 8 September 2021. They were given
just two-court days, and a weekend, to answer the application. The
applicants were
then to file their replying affidavit by 9 September
2021. After this, heads of argument were to be exchanged.
[3]
The third respondent is the only respondent
who is opposing this matter. It served its notice of intention to
oppose and answering
affidavit two days later than was set out in the
notice of motion, on 10 September, and the applicant then filed
its replying
affidavit on 13 September. No heads of argument were
filed in this matter; the applicants filed a practice note at 11h30
on the
morning of the hearing.
[4]
The issue that was first raised by the
third respondent is that the urgency in this matter has been
self-created. The applicants
stated that they had to wait for all
internal processes to be dealt with. I will deal briefly with the
chronology of events.
(a)
On
14 June 2021, the 29
th
applicant, Celiwe Nkosi, lodged a dispute by letter with the
Provincial Secretary of the third respondent.
[1]
The applicants’ letter was delivered on the 15 June 2021.
(b)
The applicants received a reply from the
Provincial Secretary, later on 15 June 2021. Such letter, the third
respondent contended,
dealt with the complaints of the applicants in
full, addressing all the issues raised. In particular, the
applicants’ allegations
that there were branches which sent
delegates to the Conference while they have failed audits was dealt
with. It was specifically
stated that the third respondent had
received an audit report, which would be made available to the
applicants on request, which
confirmed that proper branch general
meetings had taken place in the relevant wards.
(c)
On 19 June 2021, the applicants sent an
amended notice of dispute to the Secretary General (the SG) of the
ANC Women’s League
(the ANCWL), copying in the Provincial
Secretary, requesting that the Conference and all its resolutions and
outcomes be declared
null and void, and that another conference be
held.
(d)
Despite the offer for the audit report to
be made available, the applicants chose not to request the audit
report, and in their
replying affidavit have stated that they do not
need it. Instead, they sent the amended notice of dispute.
(e)
The applicants consulted attorneys on 5 and
7 July 2021, stating that there had been no reply to their amended
notice of dispute.
The third respondent contended that by 19 June
2021, the issues had already been addressed, because the amended
notice of dispute
dealt with some of the issues already set out in
their first notice of dispute, and accepted that some of the other
issues did
not need to be dealt with further.
(f)
Some three weeks later, on 27 July 2021,
the third respondent’s attorneys wrote a letter to the
erstwhile attorneys of the
applicants, making the applicants’
attorneys aware that they were acting on behalf of the Provincial
Secretary. In that letter,
the attorneys of the applicants were
requested to provide supporting documents to back up their
allegations that the Conference
was held unlawfully.
(g)
In response, the applicants’
attorneys in a letter dated 30 July 2021, set out that they undertook
to provide the supporting
documents. To date, they have not been
provided.
(h)
Such supporting documents were not
provided. In a letter from the third respondent’s attorneys
dated 17 August 2021, it was
stated that: ‘Kindly be informed
that our offices await supporting documents in order to
comprehensively respond to your
client’s points of contention.’
The letter goes on to say that—
‘
We
hereby instruct you to desist from making follow-ups and engaging
with the mother body, national WL [Women’s League] as
we are on
record to deal with the intricacies of the dispute at this level,
being at provincial level, it is irregularly unprocedural
to engage
two structures at the same time, unless it is an appeal after
attempts to resolve the issues at this level has failed.’
[5]
It is noteworthy that the applicants did
not disclose this to the Court in the founding affidavit. The third
respondent states that
they are still open to address the concerns of
the applicants, if the supporting documents are provided.
[6]
The
applicants relied on the fact that the Constitutional Court only
confirmed the election date in the order of 3 September 2021,
[2]
and thus this matter is urgent. But they cannot now plead urgency
based on the order. The applicants have known that the elections
would be held on 27 October since 21 April 2021, when same was
announced by the President of the Republic.
[7]
The third respondent contended that the
urgency has been self-created; the disputes, according to the third
respondent, were settled
internally by 15 June 2021. Since then, the
information which the third respondent requested has not been
provided, for it to deal
more comprehensively with the matter. The
application was issued on 3 September 2021, and sent to the
Provincial Secretary’s
email on 4 September 2021 when she
was attending a funeral. She only became aware of the application on
5 September 2021,
and she had to consult with members of the
third respondent before she could instruct attorneys. She held a
consultation on 7 and
8 September 2021. The deadline for delivering
the affidavit by 17h00 on 8 September 2021 could not be met, and an
indulgence of
two days was requested.
[8]
Although the applicants refused such
indulgence, they did suggest that the affidavit be filed by 14
September 2021, the applicants
to reply by 15 September 2021 and the
matter to be heard on 16 September 2021.
[9]
As stated above, in the Notice of Motion,
the respondents were given approximately two court days (four
calendar days) to submit
their answering affidavit. The applicants
were to deliver their reply on 9 September, a day later. In terms of
the Practice Manual
of this Court, all papers need to be filed on the
Thursday preceding the hearing of the urgent application. They must
be paginated
and all affidavits, including the replying affidavit,
must be filed by that day. In addition, heads of argument are
required, which
have not been filed in this matter, due to the fact
that the truncated time periods and the filing of the affidavits did
not allow
for same.
[10]
In my view, the applicants have failed to
make out a case that this matter is that urgent that it needs to be
heard in the course
of this week, when the rules of the Practice
Manual were not complied with in regard to the filing of papers; they
gave the respondents
insufficient time to properly deal with the
matter; they could have brought this matter as one of semi-urgency;
but they waited
from 15 June 2021 until 3 September 2021 to launch
the application, with no justifiable explanation for the delay. Thus,
the urgency
has been self-created.
ORDER
[11]
For those reasons, the matter is struck off
the roll for lack of urgency, with costs.
SE
WEINER
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
This
revised 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 22 September 2021.
Date
of hearing:
14
September 2021
Judgment
ex tempore
:
14
September 2021
Date
of revised judgment:
22 September 2021
Appearances:
Counsel
for the applicants:
Adv. M Ramaili
Attorney
for applicants:
Avela Nontso Attorneys Inc
Counsel
for the 3
rd
respondent:
NK Mathipa
Attorney
for the 3
rd
respondent:
Nkadimeng Attorneys
[1]
Letters
were addressed to the SG and copied to the Provincial Secretary of
the ANCWL.
[2]
The
reasons for the order were delivered on 18 September 2021.
See
Electoral
Commission v Minister of Cooperative Governance and Traditional
Affairs and Others
[2021]
ZACC 29.