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[2019] ZANCHC 10
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Khoi San Revolution and Another v Smith and Others (2021/2017) [2019] ZANCHC 10 (13 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
CASE
NO.: 2021/2017
Date
heard: 07-12-2018
Date
delivered: 13-03-2019
In
the matter between:
The Khoi San
Revolution
1
st
Applicant
William Roderick
Stanley
Peterson
2
nd
Applicant
And
Frank
Smith
1
st
Respondent
Louisa
Uithaler
2
nd
Respondent
Juleen
Denise
Josephs
3
rd
Respondent
Gert
Bitterbos
4
th
Respondent
Marthinus
Pieters
5
th
Respondent
The
Nama Khoi Local
Municipality
6
th
Respondent
The
Municipal Manager:NamKhoi Local
Municipality
7
th
Respondent
The
Independent Electoral Commission
8
th
Respondent
CORAM:
WILLIAMS J:
JUDGMENT
WILLIAMS
J:
1.
In
this application the 2
nd
applicant, Mr WRS Peterson seeks an order declaring him to be the
legitimate and duly elected president of the 1
st
applicant, the Khoi San Revolution and that any of the respondents
who oppose the application be ordered to pay the costs of the
application.
2.
The
Khoi San Revolution is a political party, registered as such in terms
of the Electoral Commission Act, No 51 of 1996 (the Act).
3.
The
1
st
to 5
th
respondents were all at one stage or an other members of the Khoi San
Revolution and are described as being joined in the application
as
they all dispute the fact that Mr Peterson is the duly elected
president of the party.
4.
The
Nama Khoi Local Municipality, The Nama Khoi Municipal Manager and the
Independent Electoral Commission (IEC) are respectively
the 6
th
,
7
th
and 8
th
respondents, joined in this application due to the interest they may
have in the outcome hereof.
5.
Only
the 3
rd
respondent, Ms Juleen Denise Joseph and the 5
th
respondent, Mr Marthinus Pieters, whom I shall refer to as the
respondents, oppose the application.
Background
6.
The
establishment of a political party for the Khoi San Community was the
brainchild of the 2
nd
applicant. He started putting ideas into action during the
latter half of 2015 by contacting various organisations, businesses
and individuals for support, drafting a constitution for the 1
st
applicant and designing its emblem.
7.
During
January 2016 the 2
nd
applicant embarked on a road show with members of the Khoi San
Community to create awareness of the party and to invite the public
to join the 1
st
applicant as members.
8.
On
8 to 10 January 2016 a conference – referred to as a
“mini-konferensie” – was held in Upington where
a
decision was taken to officially register the 1
st
applicant as a political party with the IEC.
9.
At
the same mini-conference the 2
nd
applicant was elected as the president of the 1
st
applicant, the 2
nd
respondent, Ms Louisa Uithaler as the secretary and a certain Mr
Joseph Van Wyk as the treasurer. These members formed the
initial National Executive Committee (NEC) of the 1
st
applicant.
10.
The
1
st
applicant won a seat on the Municipal Council during the 2016
Municipal elections and could appoint the speaker. The 3
rd
respondent was accordingly appointed as the speaker of the Nama Khoi
Local Municipality. She appears to hold this position,
as a
member of the 1
st
applicant, to date.
11.
Barely
a year after its establishment, the 1
st
applicant, consisting of some 6500 members was split into two
factions. I do not, for purposes of this judgment, need to
go
into details of the allegations of misconduct made by one side
against the other and
vice
versa
.
Suffice to say that at a meeting of the extended National Working
Committee (NWC), held on 12 April 2017 it was resolved to terminate
the membership of the 3
rd
respondent with immediate effect. Thereafter and allegedly at a
meeting of the NEC held on 27 May 2017, it was resolved that
the 2
nd
applicant be removed as president of the 1
st
applicant and that his membership of the 1
st
applicant be terminated.
12.
Following
upon the termination of her membership, the 3
rd
respondent brought an application in the Western Cape High Court for
inter
alia
the review and setting aside of the decision to terminate her
membership. That application was removed from the court roll
by
agreement between the parties and the 3
rd
respondent’s membership was apparently reinstated.
However the NWC again during June 2017, terminated the 3
rd
respondent’s membership.
13.
Any
change in a political party’s leadership and executive
membership particulars requires notification to the IEC in terms
of
Regulation 9 of the Act. However as a result of the disputes
relating to the termination of the membership of 2
nd
applicant and the 3
rd
respondent, the IEC in a letter dated 3 July 2017 suggested that the
dispute relating to the legitimate leadership of the 1
st
applicant be adjudicated upon by a court of law. It is for this
reason that the application
in
casu
served before me.
The
issues
14.
The
respondents raised a number of points
in
limine
in their heads of argument. Mr Olivier, who appeared for the
respondents however confined himself to only two issues:
That of
locus standi
and a factual dispute which cannot be determined on the papers.
These issues are to a large extent interlinked and I therefore
do not
intend to deal with it separately.
15.
The
argument by the respondents can be summarised as follows:
15.1 The 2
nd
applicant is no longer president of the 1
st
applicant and
as such has no authority to bring the application in the name of the
1
st
applicant;
15.2 In any event,
in terms of the constitution of the 1
st
applicant (clause
12.2.3,) it is the NEC, which has the power to institute and defend
legal proceedings on behalf of the 1
st
applicant.
The 2
nd
applicant has failed to attach a resolution by the
NEC authorising him to bring this application.
16.
The
argument that the 2
nd
applicant is no longer the president is two-fold. In the first
place it is contended that his leadership was terminated at
a meeting
of the NEC held on 27 May 2017 as alluded to in paragraph 11 above.
The 2
nd
applicant denies any knowledge of such a meeting of the NEC or of
having received any notification of disciplinary proceedings
to be
held against him. The 3
rd
respondent has failed to attach any such notification of the NEC
meeting or of the disciplinary proceedings. She has also
failed
to attach the minute of such a meeting or even a confirmatory
affidavit of a member of the NEC who had attended the meeting
at
which the leadership of the 2
nd
applicant has allegedly been terminated. There is in fact no
substantiation for her averment that the 2
nd
applicant’s membership/leadership has been validly terminated.
17.
In
these circumstances, the averments by the 3
rd
respondent regarding the termination of the 2
nd
applicant’s leadership can in my view safely be rejected as
false.
18.
In
the second instance, the argument is that the 2
nd
applicant has never been duly elected as the president of the 1
st
applicant. In this regard however it must be mentioned that the
3
rd
respondent acknowledges that the 2
nd
applicant was the president of the 1
st
applicant at some stage. The 5
th
respondent denies completely that the 2
nd
applicant was elected at the mini-conference of 8 to 10 January 2016
as president and states that the 2
nd
applicant was elected at the conference as an administrative official
who was tasked with the registration of the 1
st
applicant.
19.
The
attitude of the 5
th
respondent, which is the basis of the factual dispute referred to,
can however not be sustained, for the reasons which follow.
The
handwritten minute of the mini-conference which is attached to the
founding affidavit and which is not specifically disputed,
states at
point 3 thereof that:
“’
n
Interim eksekutief moet gekies word. Die volk stem eenparig vir
leier Stanley Peterson aan as leier, Pastoor Van Wyk
as kassier
en Louisa Louis as algemene sekretaresse.”
Any factual dispute in
the regard, emanating from the averments of the 5
th
respondent, is in any event countered by the subsequent registration
by the IEC of the 2
nd
applicant as president and the
recognition of his status as such by both the executive and
non-executive membership of the 1
st
applicant. In my
view no real dispute of fact has been raised in this regard and the
dispute raised by the 5
th
respondent has no substance.
20.
A
further argument raised by Mr Olivier is that the Constitution makes
no provision for an interim president and that the 2
nd
applicant is therefore not the president of the 1
st
applicant in terms of and as provided for in the constitution of the
1
st
applicant. Whilst it is so that the constitution does not
provide for an interim president and in fact dictates that the
president be elected by the National Conference (Clause 11.4), it
should not be forgotten that at the time when the 2
nd
applicant was elected as “
interim”
president, the 1
st
applicant was still in the process of establishing itself.
Structures within the 1
st
applicant had not been held established yet and even the Constition
had not been formally registered yet. In the meantime
interim
executive leadership had to be elected in order for instance to have
the 1
st
applicant registered as a political party. To now hold that the
2
nd
applicant (and by implication the interim executive committee, since
the Constitution also makes no provision for such) was not
validly
elected could lead to the wholly unsatisfactory conclusion that the
1
st
applicant was never validly registered as a political party with the
IEC.
21.
In
my view and until the 2
nd
applicant is lawfully dismissed as president of the 1
st
applicant or he is replaced as such by a meeting of the National
Conference, the 2
nd
applicant remains the
de
facto
president of the 1
st
applicant.
22.
That
being said I now turn to the second leg of the argument – that
is that the 2
nd
applicant was not authorised by the NEC to bring this application on
behalf of the 1
st
applicant.
The 2
nd
applicant avers in the founding affidavit that he is duly authorised
by the Management Committee and all delegates who elected
him at the
conference to depose to the affidavit and to file the application on
behalf of the 1
st
applicant. He does not attach a
resolution to this effect by the “
Management Committee”,
which I assume should in fact be the NEC. In fact it is clear
from the replying affidavit that the NEC did not make such
a
resolution.
23.
The
2
nd
applicant explains that as the president and head of the NEC, he is
responsible to orientate and direct the activities of the NEC
in
terms of clause 14 of the Constitution, and that the Constitution
does not require a resolution to be passed before he is entitled
to
bring legal proceedings on behalf of the 1
st
applicant. He further explains that he is the only remaining
elected member of the NEC and that he has only appointed acting
members to assist him in his duties until the next National
Conference in 2019. I have been made to understand that the
National Conference is scheduled to be held before 31 May 2019.
24.
Be
that as it may, the Constitution is clear that the NEC is endowed
with the power to institute and defend legal proceedings on
behalf of
the 1
st
applicant, not an individual member of the NEC. The fact that
the other members of the NEC are acting members does not detract
from
the fact that they constitute the NEC at present. Without a
resolution authorising the 2
nd
applicant to bring the application also on behalf of the 1
st
applicant or even affidavits to this effect by the members of the
NEC, the 2
nd
applicant has failed to prove his authorisation to do so.
This does not however
mean that the application should fail, the 2
nd
applicant
has also brought the application in his personal capacity and has in
my view shown that he is entitled to the relief
sought.
Costs
25.
Despite
having found that the 2
nd
applicant is entitled to the relief sought, the opposition of the
respondents to his authority to bring the application on behalf
of
the 1
st
applicant, is well founded. They should therefore not be held
liable for the applicant’s costs. The 1
st
applicant should also not be held responsible for any costs
pertaining to this application.
The
following orders are made:
a)
The
second applicant, Mr William Roderick Stanley Peterson is declared to
be the legitimate and duly elected president of the first
Applicant.
b)
I
make no order as to costs, save to state that no costs pertaining to
this application are to be recovered from the first applicant.
CC
WILLIAMS
JUDGE
For
Applicant:
Adv J M Rust
Elliot, Maris, Wilmans &
Hay Attorneys
For
the 3
rd
and 5
th
Respondents:
Adv D Olivier
Fletchers Attorneys