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[2019] ZAFSHC 26
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Ramakatsa and Others v African national Congress and Another (3041/2018) [2019] ZAFSHC 26 (21 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3041/2018
In
the matter between:
MATSHEPO
RAMAKATSA 1
st
Applicant
LEBEKO
MAILE 2
nd
Applicant
THEMBA
MVANDABA 3
rd
Applicant
SHASHAPA
JOSHUA MOTAUNG 4
th
Applicant
and
AFRICAN
NATIONAL CONGRESS 1
st
Respondent
MEMBERS
OF THE PROVINCIAL 2
nd
Respondent
EXECUTIVE
COMMITTEE OF THE AFRICAN
NATIONAL
CONGRESS IN THE FREE STATE
HEARD
ON:
07
FEBRUARY 2019
JUDGMENT
BY:
JORDAAN,
J
DELIVERED
ON:
21
FEBRUARY 2019
BACKGROUND
HISTORY
[1]
Various branches of the ANC in the Free State experienced discord and
rivalry between two opposing factions, the so-called “pro-Magashule”
and “anti-Magashule” factions.
[2]
During 2017 a provincial conference (PC) was scheduled for the Free
State ANC to be held from the 1
st
to 3
rd
December 2017. That necessitated the various branches of the ANC in
the Free State to convene and conduct branch general meetings
(BGM)
so as to elect delegates to the PC.
[3]
Some members of some of the branches were of the opinion that some of
the BGM’s were held irregular which tainted the
legality of
such meetings. They brought an application for a declarator that some
of the meetings in certain specific branches
were irregular,
unlawful, unconstitutional and/or in breach of the ANC constitution,
which would affect the legality of the PC.
That application (the
first application) was successful in relation to some 28 wards of the
ANC in the Free State. The application
was heard by a full court and
the orders of the majority handed down on 29 November 2017. (The
first order).
[4]
The first order declared the meetings in 28 of the contested wards
unlawful and the affected wards were specified. The decisions
taken
at the affected meetings were declared null and void. The majority of
the court
inter-alia
issued the following order:
“
4. In holding that
the aforesaid meetings were irregular, unlawful,
unconstitutional and/or in breach of the ANC constitution,
the
Provincial Conference of the ANC, Free State, scheduled for 1 to 3
December 2017, will be a nullity and is not (to) he held
until the
aforesaid meetings have been held in a lawful manner and in
accordance with the constitution of the ANC.”
[5]
It is with this part of the order that the minority dissented, in
effect holding that such order would be premature.
[6]
As a result of the first order, attempts were made to rerun the
affected BGM’s from 6 to 9 December 2017 and the PC rescheduled
to be held on 10 and 11 December 2017. Still dissatisfied with the
lawfulness of the rerun BGM’s, aggrieved members of the
ANC
branches voiced their objection to proceeding with the rescheduled
PC. The PC was however proceeded with and concluded.
[7]
A further urgent application was brought by aggrieved members,
seeking to void the PC and the resolutions and outcomes emanating
therefrom. (The second application). This application was also heard
by a full bench. The application was premised on alleged
irregularities in the rerun of some of the affected wards. Seven of
the wards affected by the first order were not included in the
second
application. The applicants in the second application were aggrieved
in respect of 21 of the wards affected by the first
order. The order
in the second application was handed down on 15 December 2017 (the
second order). The second order invalidated
the BGM’s of 14 of
the 21 wards concerned and invalidated the Free State PC held on 10
and 11 December 2017.
[8]
As a result of the second order, attempts were made to reconvene
BGM’s in the 14 wards affected by the second order. Eventually
the Free State provincial conference was convened and scheduled to be
held on 18 and 19 May 2018. A large number of members of
the
different branches lodged a petition in an attempt to dissuade the
ANC from proceeding with the PC as scheduled. That notwithstanding,
the PC was held, decisions taken and office-earers elected.
THIS
APPLICATION
[9]
Being aggrieved by the fact that the PC was proceeded with in May
2018, the present applicants lodged a new application which
was issued on 15 June 2018. In this application which I heard on 7
February 2019 the applicants seek the following orders:
“
2. A declaration
that the Provincial Conference for the Free State province that took
place on the 18
th
and 19
th
of May 2018 was held in violation of the Court Order of the 29
th
of November 2017 under case number 5942/2017 and that the said
Provincial Conference, decisions/resolutions and/or outcomes are
unlawful and unconstitutional;
3. That the
aforementioned Provincial Conference, its decisions/resolutions
and/or outcomes are a nullity including the appointment
of the
Provincial Executive Committee;
4. A declaration at the
First Respondent is in contempt of court.”
[10]
The applicants also seek a punitive cost order.
[11]
It should be noted that the second applicant in this application was
an applicant in the first application and the first applicant
in this
application was an applicant in the second application as well. It is
obvious that, although different applicants feature
in the different
applications, all the applications including this one has been
brought in the furtherance of the same grievances
and in effect
constitute continuation of the same dispute.
[12]
In the founding affidavit the deponent on behalf of the applicants
describes the purpose of the application as being to seek
a
declaration that the PC was held in violation of the first order and
the resultant relief.
[13]
It is alleged that the application is based on the fact that the
further BGM’s were not held lawfully, that the respondent’s
conduct amounts to a breach of the ANC constitution and infringement
of members rights in terms of section 19 of the Constitution
of the
Republic of South Africa and infringes on the applicants common-law
and contractual rights flowing from their membership
of the ANC. It
is alleged that the process of authorising the PC was tainted
by conflict of interest, bias, unfairness and
mala fides.
[14]
In this application the applicants rely on alleged irregularities
concerning the following wards;
-
Thabo Mofutsanyana: wards 3,5,6,7,8,9,11,12,13,14,17,19,22, and 23.
-
Lejweleputswa: wards 3,7 and 25.
-
Mangaung: wards 5,8,11 and 45.
[15]
Wards 3, 7 and 12 Thabo Mofutsanyana, and ward 25 Lejweleputswa were
subject to scrutiny in the second application and not
voided in the
second order.
[16]
Wards 8 and 13 Thabo Mofutsanyana which formed part of the first
order was not questioned in the second application and also
not wards
11 and 45 Mangaung.
[17]
Ward 17 Thabo Mofutsanyana did not form part of any of the previous
applications.
[18]
The applicants now seek to revive the question as to legality of the
BGM’s in those wards which were already considered
in the
second application and in wards not complained of in the second
application. To allow that will open the door for repeated
applications, each of which for a different ward and will lead to a
piecemeal adjudication of what is in essence the same dispute.
Those
wards already considered in the second application and not voided
then, cannot be open for reconsideration now. Those wards
which they
decided not to question in the second application when they had the
opportunity of doing so, clearly signified their
satisfaction and
lack of concern in regard to those. It is not in the interest of
justice and finality of litigation to allow the
applicants to deal
with their complaints in such a piecemeal and haphazard way. The only
wards that remained open for attack are
those 14 that were voided in
the second application and order.
[19]
I was a member of the full bench in the second application and deem
it necessary to mention that, in respect of a number of
the wards
complained of in that application, the answering affidavits handed in
on behalf of the respondents were not signed or
attested and
therefore not regarded as admissible evidence. The allegations on
behalf of the applicants in that application therefore
largely
remained unanswered. In this application there are proper admissible
answering affidavits. I therefore have to apply the
well-known
Plascon-Evans rule in the adjudication of this application.
VIOLATION
OF THE COURT ORDERS
[20]
The complaints of the applicants in regard to the 14 wards that were
voided in the second application can be summarised as;
-insufficient
or no notification of rerun BGM’s;
-no
further reruns of meetings done at all;
-meetings
concluded without being quorate;
-one
branch having less than the required minimum membership numbers;
-non-members
participating and
-irregular
and questionable attendance registers.
[21]
I do not intend to deal with each branch and each complaint in
detail. I will rather deal with complaints and allegations in
respect
of some wards, the respondents’ answers thereto and the
applicants’ response as examples of the general disputes.
The
allegations contained in the founding affidavit on behalf of the
applicants are obviously based on information allegedly received
from
the relevant members of the specific wards, who are named in the
affidavit. No confirming affidavits were attached to the
founding
papers. They were only attached to the replying affidavits and
purport to confirm the founding affidavit. They do not
confirm the
replying affidavit.
[22]
The following wards in the Thabo Mofutsanyana area are used as
examples;
-
Ward 5. Applicants allege that Mr Motaung, member of the ward alleges
that only 30 members attended the meeting. In answer the
second
respondent attaches an attendance register containing 60 signatures
and maintains that some attendees refused to sign the
register.
-
Ward 6. The applicants allege that this ward had only 84 members,
less than the minimum requirement of 100. It is also alleged
that the
names of some of the members did not appear on the register. In
answer the second respondent alleges that the branch consists
of 103
members and that three reruns of the BGM were held respectively on 11
February 2018, 21 March 2018, both of which were not
quorate. The
meeting was postponed 13 May 2018 when a quorum was reached, 72
members voted and delegates elected. The allegation
by applicants
that non-members were allowed to attend is denied by respondents.
-
Ward 14. Mrs Moorosi allegedly reports no further meetings were held
after 7 December 2017. Second respondent avers that a rerun
of the
BGM was held on 25 February 2018 to which she was personally invited
but refused to sign a receipt of the invitation. In
reply the
applicants allege that the meeting held on 25 February 2018 was not
conducted lawfully.
-
Ward 22. The applicants allege that the last meeting held in this
ward was on 6 December 2017 and no further meetings were convened.
Second respondent alleges that a successful rerun of the BGM was held
on 25 February 2018. In reply the applicants allege that
the last
mentioned meeting was not held lawfully because the membership list
was based on an outdated audit.
[23]
The two wards in Mangaung also serve as examples;
-
Ward 5. Applicants allege that no further meetings were held after
the previous court orders. In reply second respondent alleges
that a
rerun was convened for 18 February 2018 but the meeting was disrupted
by the third applicant resulting in the meeting not
being quorate. A
further meeting was held on 12 March 2018 where the same happened.
The last meeting held on 13 May 2018 was also
disrupted and thus
cancelled. In reply the applicants allege that the third applicant
was not notified of such meetings, no formal
attendance register was
held at the meeting of 18 February 2018 and notice of the meeting of
13 May 2018 was inadequate.
-
Ward 8. The applicants allege that a meeting was scheduled for 12 May
2018 and, not being quorate, postponed to 16 May 2018 and
a quorum
again not attained. Respondents allege that four reruns were
scheduled respectively on 12 February 2018, 24 February 2018
and the
two dates referred to by the applicants. None of the meetings were
quorate.
[24]
Ward 3 in Lejweleputswa is another example. The applicants allege
that no further meetings were scheduled or held after the
second
order of 15 December 2017. The respondents allege that a successful
BGM was scheduled and held on 19 February 2018. In reply
the
applicants aver that the meeting was unlawful in that 31 of the
attendees were not members in good standing.
[25]
According to the respondents various attempts were made to schedule
and hold reruns of the BGM’s in respect of all 14
of the wards
affected by the second order. Some were successful and delegates
elected, some did not reach a quorum and therefore
no delegates were
elected and some were disrupted by disgruntled members. These
allegations are supported by documentary evidence,
inter-alia notices
of meetings and attendance registers. The allegations of the
applicants to the effect that no additional meetings
were held in
some of the affected wards after December 2017 are conclusively
gainsaid. The veracity of the information given to
the applicants by
the relevant members is therefore suspect. It is only in reply that
the applicants raise alternative attacks
on the legality of the
meetings by inter-alia questioning the regularity of the attendance
registers and the question whether attendees
were members in good
standing. As far as the allegations in the reply are based on
information obtained from the relevant branch
members, such are not
confirmed in their Supporting affidavits which only confirms the
founding affidavit.
[26]
If the allegations of the respondents are accepted, various attempts
were made to reconvene BGM’s at all of the affected
branches.
Some have admittedly not resulted in a successful outcome due to lack
of quorum or disruption, even after repeated attempts.
[27]
Paragraph 4 of the first court order could never have intended an
obligation to not only rerun the BGM’s but also to
see that it
results in a successful outcome. If a properly convened meeting did
not reach a quorum or is disrupted by disgruntled
members, the fate
of such meeting is not in the control of the respondents.
Unfortunately, paragraph 4 of the first order opened
the door for
dissatisfied members to create apparent irregularities and then rely
on those so as to invalidate the meetings and,
as a result, also the
Provincial Conference. That could never have been the intention of
the majority in the first order.
[28]
The applicants also complain that the rerun of the BGM’s were
done at such a late stage that no room was left
for postponed
meetings or enough time to seek internal relief by means of the
internal dispute processes. In this regard the deponent
to the
founding affidavit stated; “
For
the vast majority of the 28 affected branches, no attempt was made to
rerun the BGM’s……… In few branches
where
BGM’s were held, they were only scheduled to take place
in May 2018, one week prior to the Provincial Conference.”
[29]
As is apparent from the examples relating to the relevant affected
branches referred to above, if the respondent’s version
is to
be accepted, the aforesaid quoted allegations are simply false and
misleading. The meetings in May followed upon various
prior attempts
to conclude successful meetings.
CONFLICT
OF INTEREST AND BIAS
[30]
The applicants allege that the secretary general of the ANC, Mr
Magashule is conflicted as far as disputes surrounding the
lawfulness
of the provincial conference are concerned. Therefore, he should not
have been allowed to preside over disputes in that
regard. No
examples of such instances are provided. In view of that, no basis
exists for a finding that the alleged bias affected
the lawfulness of
the PC.
MEMBERSHIP
AUDIT
[31]
Applicants allege that the membership status relating to the affected
branches were outdated and not verified. It is also stated
that the
guidelines for regional and provincial conferences require an audit
of branches and membership not more than nine months
before the
conference. According to them the last audit was done in April 2017.
The second respondent maintains that an audit and
verification of the
affected branches was done at the beginning of February 2018 as
appears from the report of the National working
committee annexed.
The first respondent alleges that a provincial audit was completed on
10 December 2018 and refers in that regard
to what appears to be an
audit summary. That document is referred to as annexure ES8 but
during argument it became clear that the
document is the annexure
marked ES7. It however is not dated. The argument on behalf of the
applicants was advanced in the mistaken
belief that the said annexure
was not annexed. Due to that, the authenticity and date of the
document was not addressed.
If
an audit was done in December 2017, that disposes of the applicant’s
complaint.
NOTICE
TO DELEGATES
[32]
Applicants contend that the PC was also unlawful due to the fact that
no or insufficient notice was given to duly elected delegates.
It was
alleged that Mr SJ Motaung, the chairman of a branch and elected
delegate was only notified by SMS the morning that the
PC was due to
commence. The branch secretary Me V Makafu, also a delegate, was also
not notified. Mr G Mokotso, branch chairman
and delegate received no
notification. Second respondent alleges that both men attended a
meeting of the Regional General Council
held on 13 May 1918 where the
PC was discussed. Second respondent claims that they all were
notified and were aware of the PC by
7 May 2018. These allegations by
respondents were not answered to in the reply.
CONTEMPT
OF COURT
[33]
The applicants seek an order declaring the first respondent to be in
contempt of court. That is sought on the basis of the
alleged
violation of paragraph 4 of the first court order. Again, if the
version of the respondents is to be accepted, the respondents
went to
great lengths in their efforts to comply with the order. There would
be no foundation for a finding that they acted in
wilful disregard of
the order.
CONCLUSION
[34]
I have carefully considered the various allegations. There is no
basis on which the allegations of the respondents can be found
to
be baseless, patently false, fictitious or unsubstantiated. Their
material allegations are to a large extent substantiated
by
documentary evidence. The matter has therefore to be adjudicated on
the basis of the acceptance of that evidence.
[35]
The disputes raised by the respondents are real and material. To the
contrary, material allegations made by the applicants
were clearly
unfounded, if not patently false. The main thrust of the applicant’s
case related to the alleged non-compliance
with the first order. In
that regard it was stated that only a few of the affected branches
held rerun BGM’s and then only
in May 2018. That is clearly far
from the truth and in stark contrast with reality.
[36]
In discussing the various issues herein-before I have already
intimated that, should the respondent’s version be accepted,
the applicants cannot succeed. That applies to all the aforesaid
issues.
COSTS
[37]
All the parties sought costs on a punitive scale. I have already
pointed out that the applicants purported to revive issues
relating
to wards that have already been dealt with in the previous
applications and not open to reconsideration. That was blatantly
opportunistic. However, I am not convinced that, in all the
circumstances of this matter, a punitive order is called for or
justified.
There is however no compelling reason why costs should not
follow the result. I am not convinced that the application was
motivated
by a bona fide attempt to vindicate the applicants’
constitutional rights instead of attempting to score political points
in the factional rivalry. Moreover, the applicants relied on
half-truths, not mentioning the material fact that various rerun
BGM’s were scheduled and held in almost all of the affected
wards.
[38]
The applicants enrolled the matter for hearing on the 6
th
December 2018. Respondents objected to the set down as being
irregular. My learned colleague on the 6
th
December 2018 ordered the application to be removed from the roll and
(curiously) made an alternative order to the effect that
the notice
of set down is set aside as irregular. Costs were reserved. I accept
that the aforesaid alternative order served as
the basis for the
removal from the roll. In view of that it follows that the wasted
costs were caused by the irregular set down
and should be borne by
the applicants.
[39]
In the result, the application is dismissed in
toto
with
costs, including the costs occasioned by the employment of two
Counsel where so employed, including the costs reserved on
6
th
December 2018.
________________
A.
F.
JORDAAN, J
On
behalf of Applicants
:
Adv.
D.C. Mpofu, SC
Adv.
T.N. Ngcukaitobi
Adv.
K.A. Magan
Instructed
by:
Selepe
Attorneys
c/o
Bekker Attorneys
Provost
Building
BLOEMFONTEIN
On
behalf of
1
st
Respondent: Adv. I. Semenya, SC
Instructed
by:
Moroka
Attorneys
48
Pres. Reitz Avenue
Bloemfontein
On
behalf of
2
nd
Respondent: Adv. W.R. Mokhare, SC
Instructed
by:
Moroka
Attorneys
48
Pres. Reitz Avenue
Bloemfontein