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[2019] ZAKZPHC 12
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Ntshayisa NO v African Independent Congress National Executive Committee and Others (5712/2018) [2019] ZAKZPHC 12 (1 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 5712/2018
1/3/2019
In
the matter between:
LULAMA
MAXWELL NTSHAYISA, N.O
APPLICANT
and
AFRICAN
INDEPENDENT CONGRESS
FIRST
RESPONDENT
NATIONAL
EXECUTIVE COMMITTEE
AFRICAN
INDEPENDENT CONGRESS
SECOND
RESPONDENT
MANDLENKOSI
PHILLIP GALO
THIRD
RESPONDENT
KHAYA
MHLABA
FOURTH
RESPONDENT
STEVEN
MAHLUBANZIMA JAFTA
FIFTH
RESPONDENT
SUZAN
GAZI
SIXTH
RESPONDENT
SIVUYILE
NGODWANA
SEVENTH
RESPONDENT
MARGARET
ARNOLDS
EIGHTH
RESPONDENT
MXOLISI
KOM
NINTH
RESPONDENT
NOMBULELO
XATASI
TENTH
RESPONDENT
NINAWE
ZIMBILI
ELEVENTH
RESPONDENT
KATLHEHO
SITHO
TWELFTH
RESPONDENT
FIKISWA
MPUMPU
THIRTEENTH
RESPONDENT
NIKIWE
MADIKIZELA
FOURTEENTH
RESPONDENT
BOB
NCOMBO
FIFTEENTH
RESPONDENT
SIPHON
MAHLANGU
SIXTEENTH
RESPONDENT
LIZZY
SAULE
SEVENTEENTH
RESPONDENT
MXOLISI
NTOBELA
EIGHTEENTH
RESPONDENT
XOLILE
MGUJULWA
NINETEENTH
RESPONDENT
MONGEZI
MPHATHENI
TWENTIETH
RESPONDENT
TEBOHO
STEMMER
TWENTY
FIRST RESPONDENT
VATISWA
NGCUKANA
TWENTY
SECOND RESPONDENT
WISEMAN
MHLONGO
TWENTY
THIRD RESPONDENT
VUYISILE
KRAKRI
TWENTY
FOURTH RESPONDENT
ALFRED
HLOMELA
TWENTY
FIFTH RESPONDENT
MABULU
GADLA
TWENTY
SIXTH RESPONDENT
MATHAPELO
NOSIDIMA
TWENTY
SEVENTH RESPONDENT
SIKIWE
DLOVA
TWENTY
EIGHTH RESPONDENT
INDEPENDENT
ELECTORAL
TWENTY
NINTH RESPONDENT
COMMISSION
ORDER
In
the result, the following order is made:
(a)
The
second national congress of the first respondent held on 27 and 28
April 2018 at Kokstad, KwaZulu-Natal and its decisions, resolutions
and elections are declared unlawful, invalid and unconstitutional and
as such are hereby set aside.
(b)
The
first to twenty eighth respondents, jointly and severally, the one
paying and the other to be absolved are ordered to pay the
costs of
this application including all costs previously reserved.
JUDGMENT
Poyo
Dlwati J:
[1]
The issue to be determined in this application is whether the
national congress of
the first respondent held at Kokstad on 27 and
28 April 2018 ought to be set aside on the grounds that it was
invalid, unconstitutional
and therefore unlawful.
[2]
The
applicant, who averred that he also acted as a representative of 15
others who were also members of the first respondent, was
the deputy
chairperson of the first respondent prior to the congress of27 and 28
April 2018 (April 2018 congress). He is also one
of the founding
members of the first respondent. The second respondent is the
National Executive Committee (NEC) of the first respondent
purportedly elected during the April 2018 congress. The third to
twenty eighth respondents are the National Executive Committee
members of the first respondent also purportedly elected during the
April 2018 congress. The twenty ninth respondent did not participate
in these proceedings and nothing much will be said about it.
[3]
The
gist of the applicant's complaint was that certain irregularities
occurred prior to and at the national congress of the first
respondent held at Tshwane on 15, 16 and 17 December 2017 (December
2017 congress). These, according to the applicant, included
the fact
that there was no Congress Preparatory Committee (CPC) elected and
endorsed by the second respondent prior to the congress
as required
in terms of clause 9.4.6 of the first respondent's constitution.
Furthermore, there was also no Electoral Commission
Committee (ECC)
elected as required in terms of clause 11.9 and 11.l O of the first
respondent's constitution. This, according
to the applicant, led to
the collapse of the national congress on 17 December 2017 as there
was no accreditation process for delegates
and therefore no voters'
roll to enable elections to take place.
[4]
According
to the applicant, this was borne out by the EMCA (Elections
Consulting Agency) report in their final close out report
to the
first respondent where they stated in para 3.4 that 'On Saturday, 16
December 2017 the AIC postponed the Election Process
because the
voters' roll which is required to be presented before the election
takes place had not been verified and finalised'.
According to the
applicant, these irregularities were perpetuated even at the
purported congress of April 2018 which was supposedly
the
continuation of the December 2017 congress. The applicant complained
that he and others were not notified of the April 2018
congress.
Whilst there were other irregularities complained of, I do not deem
it necessary to deal with all of them. It was for
all these reasons
that the applicant believed that the April 2018 congress was invalid
and unlawful and that all its decisions
ought to be set aside.
[5]
The
respondents opposed the application and
in
limine,
raised
various issues. The first was that the applicant did not have
locus
standi
to
launch these proceedings. According to the third respondent, who
deposed to the answering affidavit on behalf of all the respondents,
the applicant was no longer a member nor a deputy president of the
first respondent. His membership expired on 10 March 2018 and
the
application was launched after his membership had expired and not
renewed on 18 May 2018. The applicant, therefore, had no
interest
whatsoever in the dealings of the first respondent and in the
circumstances could also not represent the other 15 members
in that
capacity. He, therefore, could not have been authorized to launch
these proceedings.
[6]
The
second point was that as the other purported 15 members of the first
respondent, on behalf of whom the applicant was acting,
were not a
legal entity, but rather a loose group of individuals, those members
ought to have been joined instead as co-applicants
as the applicant
had no right to represent them. The failure to join those other
members, according to the third respondent, was
fatal to the
application as those members had a direct and substantial interest in
the outcome of the application.
[7]
The
third point was that as the application was riddled with disputes of
facts, and as the applicant ought to have foreseen that,
he ought to
have launched the proceedings by way of action. As he had failed to
do so, and as the disputes of facts were incapable
of being resolved
on the papers, the application fell to be dismissed with costs. In
the respondents' view, the applicant had,
in any event, failed to
make out a case for the relief sought and this again was another
reason why the application fell to be
dismissed with costs.
[8]
On
the main application, the third respondent denied that there had been
any irregularities prior to the national congresses of
December 2017
and April 2018. He averred that the second respondent and the CPC had
a meeting on 26 October 2017. In this regard
he referred to Annexure
'MFG1' being the minutes of that meeting. He, therefore, disputed
that there was no CPC that had been elected
prior to the December
congress. He averred that because the April 2018 congress was the
continuation of the December 2017 congress,
there was no need to
start the process afresh. The third respondent also disputed that no
electoral commission committee had been
appointed. In this regard he
made reference to Annexure 'MFG2' being the minutes of a meeting held
on 25 November 2017 where the
issue of the electoral commission was
discussed.
[9]
Perhaps
it is apposite at this stage to quote an extract from those minutes
about what Ms Arnolds (the eighth respondent) reported
at the meeting
on this issue. She reported that:
'
... as she was mandated to look and consult with the elections
commission, she approached EISA and they said they do not conduct
elections any more so she then approached EMCA. She is still
communicating with this commission but more information is still
needed from the organisation like, the constitution, etc.'
Other
than this report, there does not appear to have been another report
about the ECC nor does it seem that the names of the committee
members were submitted and endorsed by the congress or the second
respondent as provided for in clause 11.9.1 of the first respondent's
constitution.
[10]
With
regard to the voters' roll, the third respondent averred that the
credentials were presented at the NEC meeting of 25 November
2017 by
the Secretary-General. Paragraph 3 of those minutes stated, with
regard to credentials, that 'the credentials were done
by
secretary-general, Cde SM Jafta. No apology received from any member
except Cde Kiviet who was absent'. This part in my view
related to
the credentials of that NEC meeting. However, under the report by the
national organiser, it was recorded as follows:
'The
national organiser presented a document he prepared reflecting the
number of valid branches according to each province. After
his
presentation some members were not happy with the information
regarding their branches. The meeting agreed that those members
with
queries must consult with the national organiser aside to correct the
information'.
Other
than what was contained in the EMCA report, there does not appear to
have been any other report about the voters' roll.
[11]
The
third respondent, therefore, denied that there was no valid, verified
voters' roll prior to both congresses. He, however, conceded
that
there were no accreditation tags due to sabotage and destructive
conduct of the 16 AIC members but that branches were provided
with a
list of delegates with identity numbers as a form of identification
for those authorised to attend the December congress.
[12]
With
regards to the April 2018 congress, the third respondent averred that
it was agreed at the NEC meeting held on 9 January 2018
that another
congress had to be convened in order to finalise the December
congress. In this regard, an extract from those minutes
states that
it was resolved that the next congress date must be in mid-February
2018 and that will be determined by the availability
of funds.'
Whilst the third respondent seemed to be in agreement with this
extract, he did not explain why the congress was not
proceeded with
in February 2018. He, however, contended that on or about 6 April
2018, an invitation for the resumption of the
December congress was
sent to all branches including the alleged AIC 16 informing them that
the national congress would be continued
on 27 to 28 April 2018. The
communication was through telephone calls to the various branches of
the first respondent as that was
the first respondent's culture and
practice.
[13]
The
third respondent further contended that the AIC 16 chose not to
respond to the invitation for the meeting but instead launched
interdict proceedings which were unsuccessful in the Gauteng High
Court to try and stop the congress. According to the third
respondent,
the invitation to attend the congress was also orally
communicated to the AIC 16 at the Gauteng High Court on 26 April 2018
when
the matter was heard and subsequently struck off the roll for
lack of urgency. It was for all these reasons that the third
respondent
believed that there were no irregularities, both at the
December 2017 and April 2018 national congresses warranting again the
dismissal
of the application costs.
[14]
I will deal with the points m
limine
first and thereafter
answer the question whether there were any procedural irregularities
prior to and at the national congresses
of December 2017 and April
2018.
[15]
With regards to the
locus standi
of the applicant, it was
common cause that his membership expired on 10 March 2018. Clause
5.32 of the first respondent's constitution
states that 'membership
access cards will be issued once subject to renewal of membership
status yearly over three months grace
period, to revive such status
after which such membership expires for readmission'. The applicant
averred that he renewed his membership
on 22 May 2018, within the
three month grace period allowed in the constitution. He attached
proof of payment and renewed membership
card to his answering
affidavit. Whilst the third respondent alleged fraud on the
applicant's renewal of his membership in that
it had not been issued
by the relevant branch nor relevant chairperson, the first
respondent's constitution is silent on a procedure
to be followed
when one renews membership. In any event, this point was not pursued
any further in argument by Mr
Gama
who represented the
respondents.
[16]
Mr
Gama
instead contended that the renewal of membership by
the applicant within the grace period did not confer a right to
membership on
the applicant. The membership, in his argument, still
had to be confirmed. I do not know by whom and in terms of what
provision
in the first respondent's constitution. I, however, do not
agree with his submission. In fact, the opposite is true if one has
regard to the first respondent's constitution that if one fails to
renew membership within the three months grace period, then the
membership expires for readmission. In my view, once the applicant
renewed his membership on 22 May 2018, he became a member in
good
standing of the first respondent. His membership status was renewed
as this was not the first time he was applying for membership.
Therefore, nothing more was required. Accordingly, this point must
fail.
[17]
Mr
Gama
further argued that the applicant was not properly
authorised by the other 15 AIC members to launch these proceedings
but had in
fact only been authorised to launch the interdict
proceedings in the Gauteng High Court. If one has regard to annexure
'LMN1',
it is clear that the purpose of the resolution was to
challenge irregularities identified in the process leading up to the
April
2018 national congress. Whilst the interdict proceedings were
not successful because of technicalities, this did not take away the
desire of the 15 AIC members and the applicant to challenge what they
believed to be irregularities prior to the April 2018 national
congress. I must mention that this point was never dealt with in the
respondent's answering affidavit nor in the supplementary
filed later
in this court. It was not even dealt with in the heads of argument
filed on behalf of the respondents. I am, however,
satisfied that the
institution of these proceedings was authorized and in any event the
applicant, on his own, was justified and
competent to institute these
proceedings.
[18]
In any event, it is trite that any challenge to authority must be by
way of a rule 7 notice. In
ANC
Umvoti Council Caucus & others v Umvoti Municipality
[1]
Gorven
J held that:
'
... the position has changed, since Watenneyer J set out the approach
in the
Merino Ko operasie Bpk
case. The position now is
that, absent a specific challenge by way of rule 7(1), "the mere
signature of the notice of motion
by an attorney and the fact that
the proceedings purport to be brought in the name of the applicant"
is sufficient. It is
further my view that the application papers are
not the correct context in which to determine whether an applicant
which is an
artificial person has authorised the initiation of
application proceedings. Rule 7(1) must be used.'
It
is common cause that no rule 7(1) challenge was filed in this matter.
It was accordingly not necessary for the applicant to prove
the
authority to initiate the application, nor appropriate to attempt to
do so on the papers. Accordingly, this point in
limine
must
fail.
[19]
Interlinked
with this point was the contention about the non-joinder of the other
15 AIC members as co-applicants in these proceedings.
In my view, it
was not necessary for them to be joined as co-applicants in these
proceedings. That they had signed resolutions
(Annexure
LMN1)authorizing the applicant to launch these proceedings meant that
they were confirming that they were aware of these
proceedings and
they would abide by the decision of this court. As held in
Judicial
Service Commission & another v Cape Bar Council & another:
[2]
'
... the joinder of a party is only required as a matter of necessity
-- as opposed to a matter of convenience - if that party
has a direct
and substantial interest which may be affected prejudicially by the
judgment of the court in the proceedings concerned.
The mere fact
that a party may have an interest in the outcome of the litigation
does not warrant a non-joinder plea.'
In
my view, there is no prejudice that the other 15 AIC members will
suffer even if they are not joined in these proceedings. This
point,
therefore, must also fail.
[20]
With
regards to the disputes of facts, I do not believe that these are
incapable of resolution on the papers. I am not satisfied
that the
respondents have seriously and unambiguously addressed the facts said
to be disputed,
[3]
hence I have decided to take a robust view of the matter. I say this
for the following reasons, in light of the findings that I
have made
on the points
in
limine,
the
only issue left to be decided is whether there were any procedural
irregularities prior to the congress of April 2018. In order
to
answer this question, the starting point is the EMCA report and
whether there was an ECC prior to the December 2017 congress.
[21]
There
is nothing on the papers before me that suggests that prior to the
December 2017 congress an ECC was ever endorsed by the
meeting of the
first or second respondents. I have already referred to Ms Arnold's
report about her intention to engage EMCA as
at November 2017. One
assumes therefore that EMCA was engaged for purposes of being the
election commission. However, this cannot
mean EMCA replaced the ECC.
If it was, then it ought to have been recorded somewhere and endorsed
by the first or second respondent
which was not done. In the absence
of that, it can safely be concluded that there was no ECC in place
prior to December 2017 congress.
If there was, the names of its
members would have been disclosed to this court.
[22]
At
the December 2017 congress we know that EMCA dealt with the elections
and provided a report. The report was that the elections
could not
take place as the voters' roll which was required to be presented
before the elections took place was not verified and
finalised. This
part of the report is in line with the second respondent's minutes of
25 November 2017 where, under the national
organiser's report, there
was an issue about information regarding branches. Again, one can
safely conclude that as at 16 or 17
December 2017, no voters' roll
had been verified and finalised. The issue of the voters' roll was
not discussed at the second respondent's
meeting held on 9 January
2018 nor was EMCA endorsed as the election commission at that
meeting. This can only mean that as at
9 January 2018 the voters'
roll was not finalised and verified.
[23]
Whilst
I will deal separately with the meeting of 27 to 28 April 2018, I
must allude at this stage to the fact that the issue of
the voters'
roll was never discussed in that meeting. Under item 2 of the agenda
of that meeting, being confirmation of credentials,
all that the
secretary-general did was to advise that in December, 76 branches
passed the audit to attend the congress. However,
as this was one of
the reasons why the December 2017 congress co\lapsed in terms of the
EMCA report, and this report has not been
disputed by any of the
parties, one would have expected a confirmation that the voter's roll
was then finalised and verified before
the elections could take
place. Either that roll could have been attached to the third
respondent's answering affidavit or a close
out report from EMCA for
the April 2018 congress. None has been provided. This can only mean
that the voters' roll issue was never
dealt with again, therefore was
not finalized or verified. This, in my view is fatal to the April
2018 congress as the first respondent
did not comply with its own
constitution. On this reason alone, the April 2018 congress ought to
be set aside. However, that is
not the end of the matter.
[24]
In
the second respondent's meeting of 9 January 2018, it was resolved
that the next congress date ought to be mid-February 2018
subject to
availability of funds. The congress did not happen in February 2018.
There is no explanation as to why it did not happen.
There does not
appear to have been another meeting by the second respondent prior to
April 2018 congress. If there was none, then
who decided and
sanctioned the April 2018 congress? The third respondent acknowledged
on his own in paragraph 17 of his answering
affidavit that the second
respondent had a responsibility to convene a national congress to
finish off what was left out before
the national congress was
disrupted in December 2017.
[25]
At
that stage, the second respondent included the applicant and would
have been or ought to have been involved in organising the
next
congress including the date upon which the congress would be held. As
this was not the case, surely then the process was procedurally
flawed. The second respondent ought to have acted as a collective in
such matters, in line with clause 4.B.1 of the first respondent's
constitution, and in this instance, it did not, as the applicant who
was one of its members and the Deputy President of the first
respondent was not aware of the decision. It seems that the third
respondent took it upon himself to run with the affairs of the
first
respondent but this was wrong. In the absence of any justifiable
explanation as to why there was no collective decision about
the date
of the congress, then again the April 2018 congress ought to be set
aside.
[26]
Even
if one were to speculate and say perhaps it was because of lack of
funding that the congress did not happen in February 2018,
it still
begs the question whether this was communicated to the second
respondent which included the applicant at that stage. The
other
question is whether the April 2018 date was communicated to all the
first respondent's members. In my view, it was not. In
this regard,
paragraph 24 of the third respondent's answering affidavit stated as
follows:
'On
or about 6 April 2018, an invitation for the resumption of the
December National Congress was sent to all Branches including
the
alleged AIC 16 informing them that the National Congress will be
continued on 27 to 28 April 2018. It is the first respondent's
culture and practice to communicate with Branches by telephone...'
[27]
The
third respondent did not mention in his affidavit as to who made the
telephone calls to the Branches or to the AIC 16 and there
was also
no confirmatory affidavit from such a person in this regard. There
was no proof of such telephone calls let alone one
to the applicant.
The applicant refuted this averment in his replying affidavit. The
third respondent elected not to deal with
this averment in a further
supplementary affidavit which was handed in with the leave of the
court. There was also no confirmation
by any of the branch
chairperson to confirm that indeed there was such an invitation to
attend the congress. The failure to notify
the applicant and the 15
AIC members was a violation of their constitutional right to
participate in the activities of their political
party.
[4]
[28]
This
leads to the question whether there was a CPC established prior to
both conferences. In my view, there wasn't any prior to
the April
2018 congress. If there was one or if the one that had been appointed
prior to the December congress, which appears at
page 200 of the
indexed papers under Annexure MFG1, had been allowed to continue to
perform its work as this congress was a continuation
of the December
congress, then it would have circulated all the congress information
prior to the April congress as provided for
in terms of clause 9.4.6
of the first respondent's constitution. It seems that that
communication was left to some unidentified
individual by the third
respondent and this is an indication that the third respondent
delegated some of the key functions required
by the first
respondent's constitution prior to the congress to his own cronies as
the applicant was kept in the dark. As held
in
Ramakatsa
& others v Magashule & others,
[5]
the right to participate in the activities of a political party
confers a duty on every political party to act lawfully and in
accordance with its own constitution.
[29]
In
my view, as the third respondent's denials are uncreditworthy and
fall short of raising real, genuine or bona fide disputes of
fact,
[6]
I am justified to
APPEARANCES
Date
of Hearing
: 13 February
2019
Date
of Judgment
: 01 March 2019
Counsel
for Applicant
:
Mr D Combrink
Instructed
by
: KMNS Incorporated
c/o Mbili Attorneys
Respondent
: Mr Gama
Instructed
by
: Messrs Ngcebetsha
Madlanga Attorneys
c/o
Botha & Olivier Inc
[1]
ANC Umvoti Council Caucus & others v Umvoti Municipality
2010
(3) SA 31
(KZP) para 28.
[2]
Judicial
Service Commission
&
another v Cape Bar Council
&
another
2013 (l) SA 170 (SCA) para 12, and also
Mulaudzi v
Old Mutual Life Assurance Co (South Africa)Ltd
&
Others
2017 (6) SA 90
(SCA) para 23
[3]
See:
Wightman t/a J W Construction v Headfour (Pty) Ltd
&
another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) para 13.
[4]
Section 19 (I)(b) of the Constitution of the Republic of South
Africa, 1996.
[5]
Ramakatsa & others v Magashule & others
2013 (2) BCLR
202
(CC) para 16.
[6]
See:
Fakie NO v CCII Systems (Ply) Ltd2006
(4) SA 326 (SCA)
para 55 and
National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
SCA para 26,