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[2018] ZAECMHC 51
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Ntamo and Another v African National Congress, Regional Executive Committee of the Eastern Cape Province and Others (1693/2017) [2018] ZAECMHC 51 (28 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
CASE
NO. 1693/2017
In
the matter between:
BADANILE
NTAMO
First
Applicant
MLANDELI
NDABETHA
Second
Applicant
and
AFRICAN
NATIONAL CONGRESS, REGIONAL EXECUTIVE
COMMITTEE
OF THE EASTERN CAPE PROVINCE
First
Respondent
AFRICAN
NATIONAL CONGRESS, EASTERN CAPE
PROVINCIAL
EXECUTIVE COMMITTEE
Second
Respondent
AFRICAN
NATIONAL CONGRESS, NATIONAL
EXECUTIVE
COMMITTEE
Third
Respondent
AFRICAN NATIONAL
CONGRESS
Fourth
Respondent
APPLICATION FOR LEAVE TO APPEAL
JUDGMENT
Bloem
J.
[1]
On 19 June 2018 the court dismissed the applicants’ application
for an order that the regional conference of the O R Tambo
region of
the African National Congress (the ANC) that was held on 16, 17 and
18 October 2015 as well as the decisions taken at
that conference be
declared unlawful, illegal, unconstitutional and consequently null
and void. The court also ordered the
applicants to pay the
costs of the application. The first applicant (the applicant)
now seeks leave to appeal to the Supreme
Court of Appeal
alternatively the full court of this Division.
[2]
The bases upon which a court
may give leave to appeal are set out section 17 (1) of the Superior
Courts Act
[1]
.
Mr Notyesi, attorney for the applicant, relied on section 17
(1)(a)(i) for the submission that leave to appeal should be
given
because, so the submission went, an appeal would have a reasonable
prospect of success. Although in his notice of application
for
leave to appeal the applicant seeks leave to appeal on numerous
grounds, at the hearing Mr Notyesi relied only on three grounds,
namely that the court erred in finding that the task team which was
under the leadership of Derek Hanekom (the task team) made
decisions
which still stand because they have not been set aside; that the
court erred in finding that it does not follow that,
because the
applicant was not allowed to participate in the branch general
meeting, the regional conference and the decisions taken
at that
conference should also be set aside; and that the court should have
ordered each party to pay his or its own costs of the
application.
[3]
In his answering affidavit Oscar Mabuyane, the then secretary of the
ANC in the Eastern Cape, alleged that the applicants and
other
aggrieved parties appealed internally to the ANC for the re-run of
the branch nomination processes and election of delegates
to attend
the regional conference. The appeals were based on alleged
irregularities at branch level. The ANC appointed
the task team
to consider the appeals. Mr Mabuyane alleged that the task team
“
dismissed all the appeals … and that the decisions
of the ANC on the applicants’ appeals remain extant and will
remain
extant
” because they had not been challenged.
[4]
Another person who filed an
answering affidavit was Mlamli Nonkonyana, the chairperson of the
applicant’s branch. He
alleged that a branch meeting was
called on receipt of the task team’s report. At that
meeting the report was explained
to those in attendance. Mr
Nonkonyana alleged that the applicant was also present in the meeting
and “
was fully aware
of the Hanekom report which also dismissed their appeal
”.
In his replying affidavit the applicant denied that Mr Nonkonyana
ever reported the outcome of the task team’s
deliberations to
him. In the judgment I dealt with the above dispute and
accepted the ANC’s version on the basis of
the
Plascon-Evans
rule. I accordingly accepted that the applicant became aware of
the task team’s report during November 2015.
[2]
[5]
In his replying affidavit the applicant alleged that after he and
others were heard by the task team, Mr Hanekom undertook to
deliver
the outcomes of the appeal, but failed to do so. He furthermore
stated firstly, that the court should not have regard
to the task
team’s report because Mr Hanekom did not file a confirmatory
affidavit; secondly, that the report was not given
to him and he saw
it for the first time on the delivery of Mr Mabuyane’s
affidavit; and thirdly, that even “
if our appeal was
dismissed by Mr Hanekom and his team, that would not bar
”
them from launching the application.
[6]
What emerged from the above is that the ANC, inclusive of the task
team, accepted that the task team had taken a decision to
dismiss the
applicant’s appeal. Whether or not the task team had the
power to take the decision to dismiss his appeal
was not an issue for
determination. The papers indicate that the task team took the
decision to dismiss the applicant’s
appeal. Until that
decision is set aside, it stands. The submission that the task
team did not take that decision must
therefore fail.
[7]
It is worth mentioning that
initially the applicant did not challenge the report on the basis
that the task team did not make decisions
but merely
recommendations. At the hearing on 26 April 2018 Mr Notyesi
submitted that the rule, that a decision stands until
it is set
aside, applies only to administrative action. He submitted then
that the task team’s decisions did not amount
to administrative
action.
[3]
Implicit in that submission was an acceptance that the task team made
decisions but that those decisions did not amount to
administrative
action.
[8]
Mr Notyesi relied on paragraph
118 of
Ramakatsa and others
v Magashule and others
[4]
for the submission that, because the applicant was not allowed to
participate in the branch general meeting, the regional conference
and the decisions taken at that conference should be set aside as
invalid. My reading of paragraph 118 is that Moseneke DCJ
and
Jafta J stated no more than that the irregularities summarised in
that paragraph (the prevention of ten members from participating
in a
branch meeting and the exclusion of a branch from the provincial
conference) amounted to conduct that was inconsistent with
section 19
of the Constitution which obliged the Court, in terms of section 172
of the Constitution, to declare that conduct invalid.
In this
case the only irregularity that the applicant established was that he
was prevented from participating in a branch meeting.
That
conduct was inconsistent with section 19 of the Constitution, a
finding which I made in paragraph 24 of the judgment.
It is
that conduct which, in terms of section 172 of the Constitution,
should be declared invalid.
[9]
Paragraph 118 of
Ramakatsa
does not state that the provincial
conference was set aside because of the irregularities referred to in
that paragraph.
The reason therefor is because the
Constitutional Court dealt with additional irregularities. Some
of those irregularities
involved the violation of the ANC’s
constitution and others its Membership Audit Guidelines. The
irregularities relating
to the audit guidelines impacted directly on
the impugned provincial conference because the manipulation of
membership numbers
in some branches enabled those branches to send
delegates to the provincial conference or to send a different number
of delegates
than they would lawfully be entitled; no audit was
conducted in some branches; some branches were not given an
opportunity to query
the findings of a preliminary audit report or
raise objections before the report became final; and in other
branches members complained
that they were not presented with a
preliminary or final audit report before the commencement of the
provincial conference which
allowed persons to attend purportedly as
“delegates” when they were not duly elected by those
branches as delegates
to the provincial conference. In this
application the accreditation and auditing of delegates to the
regional conference
was not raised as an issue. For the
above reasons the present application is accordingly distinguishable
from
Ramakatsa
.
[10]
Insofar as the issue of costs
is concerned, at the hearing on 26 April 2018 both parties submitted
that there was no reason why
the general rule, that costs should
follow the result, should not apply herein. In the exercise of
my discretion as to the
payment of costs of the application, I
considered, as a factor, the parties’ submission in this regard
whereafter I ordered
the applicants to pay the costs of the
application. Mr Notyesi has now submitted that, because the
applicant approached the
court in order to vindicate his rights
contained in section 19 of the Constitution, I should have ordered
each party to pay his
or its own costs of the application. That
submission was made on the basis of what was stated in paragraphs 126
and 127 of
Ramakatsa
[5]
.
[11]
A court of appeal will not readily interfere with the exercise of the
discretion of a court of first instance regarding the
awarding of
costs. It has not been shown that I have not exercised my
discretion properly in this regard or that there are
good grounds for
interfering with the exercise of my discretion. I am of the
view that it is unlikely that a court of appeal
will interfere with
the costs order that I have made. In all the circumstances, I
am of the opinion that an appeal would
not have a reasonable prospect
of success.
[12]
In the result, the application for leave to appeal is dismissed with
costs.
________________________
G
H BLOEM
Judge
of the High Court
For
the first applicant: Mr M Notyesi (attorney) of Mvuso Notyesi Inc,
Mthatha.
For
the third and fourth respondents: Adv A M Bodlani, instructed by N Z
Mtshabe Inc, Mthatha.
Date
heard: 13 August 2018
Date
of delivery of the judgment: 28 August 2018
[1]
Superior
Courts Act, 2013 (Act No. 10 of 2013).
[2]
See paragraph 28 of the judgment in respect whereof leave to appeal
is sought.
[3]
See paragraphs 27 to 30 of the judgment.
[4]
Ramakatsa and others v
Magashule and others
2013
(2) BCLR 202
(CC).
[5]
Ramakatsa and others v
Magashule and others
2013
(2) BCLR 202
(CC).