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[2018] ZAECMHC 65
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Duba v African National Congress Youth League and Others (5248/2018) [2018] ZAECMHC 65 (22 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
CASE NO. 5248/2018
In
the matter between:
MPUTUMI
DUBA
Applicant
And
AFRICAN
NATIONAL CONGRESS YOUTH LEAGUE
1
st
Respondent
NATIONAL
EXECUTIVE COMMITTTEE
2
nd
Respondent
COLLEN
MAINE
3
rd
Respondent
DESMOND
MOELA
4
th
Respondent
NJABULO
NZUZA
5
th
Respondent
THANDI
MORAKA
6
th
Respondent
REGGIE
NKABINDE
7
th
Respondent
EASTERN
CAPE PROVINCIAL TASK TEAM
8
TH
Respondent
SANGA
MANELI
9
th
Respondent
NTOMBI
MENA
10
th
Respondent
AVIWE
SILO
11
th
Respondent
SIVE
KISWA
12
th
Respondent
SIPHE
MJEY
MNYANI
13
th
Respondent
BONGINKOSI
SHETU
14
th
Respondent
ZIYANDA
PENCIL
15
th
Respondent
NOSIPHIWO
POSE
16
th
Respondent
LUZUKO
PATULUKO
17
th
Respondent
VUSUMZI
TSIBAPHI
18
th
Respondent
YOLANDA
MESANI
19
th
Respondent
ZUKISWA
BUNGENI
20
th
Respondent
THE
MASTER OF THE HIGH COURT-SOUTH GAUTENG
21
st
Respondent
JUDGMENT
JOLWANA
J
[1]
On 11 October 2018 this court granted an interim interdict postponing
this matter to the 18 October 2018 and directed the parties
as to the
filing of papers and heads of argument. The second to twentieth
respondents were interdicted from acting in the
name of first
respondent or exercising the duties delegated to the twenty first
respondent. These respondents were also interdicted
from
convening further congresses in the name of the first respondent.
The interim interdict was to prevail until the hearing
of this
application to declare unlawful and set aside the Regional Elective
Congress of the first respondent which was convened
on 24 September
2018.
[2]
The respondents did not oppose the application save for the ninth and
eleventh respondents. The applicant claims to be
a member of
the first respondent. It is common cause that the applicant is
the coordinator of the first respondent in the
Amathole Region of the
Eastern Cape having assumed that position on 19 February 2017.
The ninth to the twentieth respondents
are all cited as purporting to
be chairpersons of the first respondent in the Amathole Region.
It is not clear why all of
them are chairpersons but that is not
relevant for the purposes of determining the issues in this
application.
Jurisdiction
and urgency
[3]
At the commencement of the hearing of this matter one of the
contentious issues was whether on 11 October 2018 my brother Notshe
AJ had dealt with two points
in limine
that had been raised by
the ninth and eleventh respondents. Those were urgency and
jurisdiction. I indicated that this
court has no power to deal
with those issues if they were dealt with and ruled upon by Notshe
AJ.
[4]
Mr Matotie, counsel for the ninth and eleventh respondents submitted
that those issues were not dealt with. I must hasten
to add
that he did not participate during the proceedings of the 11 October
2018 and as I understand it he was not even in court
on that day. It
was Mr Mfeya who appeared for the ninth and eleventh respondents who
was not on brief on the 18 October 2018 when
the matter was heard
before me. Mr Malunga who appeared for the applicant on the 11
October and on the 18 October 2018 insisted
that those issues were
dealt with and ruled upon hence the court issued the court order that
it did.
[5]
The said order reads as follows:
“
1.
The matter is postponed to the 18 October 2018 at 10h00am;
2. The respondents to
file the answering affidavit on or before close of business, 12
October 2018;
3. The applicant to file
the replying affidavit if any on or before close of business, 15
October 2018;
4.
The applicant to file the heads of argument on 16 October 2018;
5.
The respondent to file heads of argument on 17 October 2018;
6. Paragraph 9 of the
notice of motion shall operate as interim interdict until the 18
October 2018; and
7. Costs of today the 11
October 2018 for the postponement of this matter at the request of
the 9
th
and 11
th
respondents
after
their points of law could not
stand
[1]
shall
be determined on the 18 October 2018.”
[6]
My understanding of this court order especially paragraph 7 is that
the points of law raised and dealt with namely, urgency
and
jurisdiction could not stand. I refused the invitation to hear
submissions on jurisdiction and urgency. There are two
reasons
in the main why I refused to deal with those issues.
[7]
The first one is the
Superior Courts Act 10 of 2013
.
Section 21
(1) of the
Superior Courts Act provides
that:
“
A
Division has jurisdiction over all persons residing or being in, and
in relation to all causes arising and all offences triable
within its
area of jurisdiction and all other matters of which it may according
to law take cognisance ….”
[8]
It is simply unfathomable that a court can issue an order granting
the interim interdict as it was done in this case without
determining
the issue of jurisdiction, this in circumstances in which the
respondents were in court represented by counsel contending
that it
has no jurisdiction to entertain the matter.
[9]
In my view regardless of whether or not the issue of jurisdiction is
raised, the court must even
mero motu
, establish that it does
in fact have jurisdiction to entertain the matter before it. If it
fails to do so perhaps in circumstances
where none of the parties has
raised the issue, it runs the risk of acting contrary to the
provisions of
section 21(1)
of the
Superior Courts Act by
determining
an issue that is determinable in another court.
[10]
The second reason is that Mr Matotie submitted that in order for the
hearing of the matter to proceed he was conceding jurisdiction,
as he
put it, “tentatively”. I am not sure I understand
what he meant by saying he was conceding jurisdiction
tentatively.
My view is that there is no half way stop to a concession. A
point must either be conceded or not conceded.
[11]
The applicant relies on two grounds for the relief sought. The
first ground is that the first respondent was placed under
the
administration of the twenty first respondent by the Gauteng High
Court. Therefore convening the Amathole Regional Congress
without the authority of the twenty first respondent was unlawful.
The applicant also contends that the said Regional Congress
had
procedural deficiencies in that the Constitution of the first
respondent and its Guidelines were not adhered to thus rendering
the
congress unlawful and therefore liable to be set aside by the Court.
[12]
It is common cause that the Gauteng Local Division, Johannesburg
granted an order on the 26 July 2018 placing the first respondent
under final winding-up in the hands of the twenty first respondent.
The applicant’s case is that the effect of the first
respondent
being placed under final winding-up in the hands of the Master is
that the first respondent’s office bearers are
divested of all
their power which is vested in the Master and therefore only the
Master has authority over the first respondent’s
affairs.
[13]
The second ground is that in any event certain procedural
irregularities occurred during the congress and therefore the second
to the twentieth respondents violated the first respondent’s
Constitution and its Guidelines.
[14]
In the applicant’s heads of argument his case in this regard is
summarised as follows:
“
36. The second
ground on which the congress is impugned is the failure of the
Respondents to follow the procedural requirements
for the convening
of a lawful congress in terms of the ANC Youth League Constitution
and its guidelines, which are as follows;
36.1 Section 10 and 10.2
of the ANCYL Constitution requires that the regional congress must be
attended by members of the Regional
Task Team who shall have a full
speaking and voting rights in the ex-officio capacity.
36.2 It is common cause
at paragraph 53 of the applicant’s founding affidavit that the
applicant was prevented from attending
the congress which is an
undisputed fact and then effectively the congress was unlawful.
36.3 Regulation 3.1 and
3.2 of the congress guidelines were flouted in that had this congress
preparatory committee been constituted
the applicant would have
chaired such committee, executed the duties as so described in these
paragraphs, which role would have
encompassed the implementation of
regulation 12.3.
36.4 Regulation 7.1 of
the congress guidelines was flouted in that no dispute resolution
committee was formed to deal with such
disputes and receive reports
of the resolution of any disputes, as the receiver of this report
would have been the applicant.”
[15]
I will now deal with this matter on the basis of the two grounds
relied upon by the applicant
ad seriatim
starting with the
alleged procedural and constitutional irregularities.
Applicant’s
membership of the first respondent
[16]
In his founding affidavit the applicant makes a bald averment that he
is a member of the first respondent. Beyond this
bald averment
he does not say what it is that makes him a member of the first
respondent. This is important because there
is a process
provided for in the constitution of the first respondent through
which a person becomes a member.
[17]
Articles G of the first respondent’s constitution provides as
follows:
“
ARTICLE
G MEMBERSHIP
1.
Membership
of the ANCYL shall be open to all South African youth between the
ages of fourteen (14) and thirty-five (35) who accept
its policy
guidelines, aims and objectives as referred to above.
2.
The
applications for membership shall be received and considered by the
ANCYL Branch Executive Committee, where such exist, or by
the
Regional Executive Committee if no Branch Executive Committee
exists. The Branch Executive Committee and Regional Executive
Committee have the power to accept or reject an application for
membership. In the event of a rejection the applicant must
be
informed in writing and shall be made aware of his/her right to
appeal to the Provincial Executive Committee within twenty one
(21)
working days. The appeal should be in writing. The
Provincial Executive Committee must finalize the appeal
within sixty
(60) working days.
3.
Young
people who qualify for membership in accordance with rules of this
section shall be issued with a membership card upon payment
of a
joining fee. Members shall be expected to pay Annual
Subscription Fees. The national congress or the NEC shall
determine the joining fee and annual subscription fees.
4.
Members
shall join the ANCYL only once, and membership shall lapse when a
person turns 35 years old, is expelled following disciplinary
proceedings, loses his or her South African citizenship, resigns from
the Youth League in writing to the organization, passes away,
and/or
if after an annual membership audit or review, it is found that such
a member has not paid his/her annual subscriptions
for up to three
(3) months.
5.
All members
shall on acceptance into the ranks of the ANCYL solemnly declare
their readiness and willingness to serve the organization
and shall
declare as follows:
“
I,
………………………………
,
solemnly declare that I will abide by the aims and objectives of the
ANC Youth League as set out in the Constitution, the Freedom
Charter
and all other policies adopted from time to time, that I am joining
the organization voluntarily, without expectation of
material gain,
and will participate in the life of the organization as a loyal,
active and disciplined member”
6.
Dual or
multiple memberships by individuals shall be welcome provided the
policies and programmes of those organisations to which
they belong,
are not hostile or contrary to those of the ANCYL.
7.
Young women
who are members of the ANCYL and over the age of eighteen (18) years
shall be obliged to join and play a full and active
part in the
general political life of the ANC Women’s League.”
[18]
It was conceded that the applicant is in fact 37 years old. I
do not see how the applicant could remain a member of the
first
respondent when its constitution says on turning 35 years old his
membership shall lapse. The lapsing of membership
does not
require any process and there is no determination that has to be
made. It is self-executing and lapses automatically
by
operation of law.
[19]
In
De
Lille v Democratic Alliance and Others
[2]
the full court said:
“
[45] The fact that
the statements which were uttered by De Lille may have amounted to
the expression of an intention to resign,
within the meaning of
cl
3.5.1.2, does not however necessarily lead to the conclusion that her
membership ceased, as was submitted by the party, either
automatically or otherwise. It was contended by the DA that the
cessation clause operated automatically and the function
of the FLC
panel and FedEx was simply to determine whether the facts which
triggered the application of the clause existed, and
if this was the
case, De Lille’s membership ceased retrospectively as a matter
of law, to the date when the interview took
place.
[46] For the latter
proposition reliance was placed on the dictum in
Phenithi v
Minister of Education and Others
where the Court concurred with
the finding of Van Heerden JA, in
Minister van Onderwys en Kultuur
en Andere v Louw
. In the latter case, Louw was a general
assistant and in permanent employment at a boarding house of a
certain high school
in Upington. He failed to report for duty
over the period 29 July to 31 August 1992. On 11 September the
principal
wrote Louw a letter informing him, in essence, that
according to the school governing council he had been discharged and
that his
last day of service was 28 July 1992. The principal
relied on a provision, namely s 72 of the then Education Affairs Act
(House of Assembly) 70 of 1988 which provided that ‘
a person
– employed in a permanent capacity at a departmental
institution and who – (a) is absent from service for a
period
of more than 30 consecutive days without consent of the Head of
Education … shall, unless the minister directs otherwise,
be
deemed to have been discharged for misconduct.
’
Following unsuccessful negotiations between the parties Louw
instituted application proceedings in the High Court,
seeking
inter
alia
the setting aside of the decision to terminate his
services. Van Heerden JA, in reversing the decision of the High
Court
said:
“
The
deeming provision [s72(1)] comes into operation if a person in the
position of the respondent (i) without the consent of the
‘Head
of Education’ (ii) is absent from his service for more than 30
consecutive days. Whether these requirements
have been
satisfied is objectively determinable. Should a person allege,
for example, that he had the necessary consent and
that allegation is
disputed, the factual dispute is justiciable by a court of law.
There is then no question of a review
of an administrative decision.
Indeed, the coming into operation of the deeming provision is not
dependent upon any decision.
There is thus no room for reliance
on the audi-rule which, in its classic formulation, is applicable
when an administrative –
and discretionary – decision may
detrimentally affect the rights, privileges or liberty of a person.
”
[47] The rules which deal
with cessation of membership in terms of Clause 3.5 of the party’s
constitution are those set out
in Part C of the FLC rules. The
relevant ones which are applicable in this matter are as follows:
“
Rule
2 –As soon as the relevant Provincial Executive or Federal
Executive receives prima facie evidence which indicates that
a public
representative’s membership has ceased by virtue of the
provisions of s3.5.1 of the Federal Constitution, then this
evidence
must be referred to the Chairperson of the FLC.
Rule
3- In the instance where a member publicly declares (as contemplated
in s3.5.1.2. and s3.5.1.3 of the Federal Constitution)
his/her
resignation or intention to resign from the party or intention to
join another party or him/her joining another party,
the mere
tendering of proof by means of a visual or audio clip from the
relevant electronic medium, or a screen shot from the relevant
social
media platform and/or a copy of a printed letter, report or article
in the case of print media constituting such public
declaration of
his/her resignation or intention to resign from the Party or
intention to join or joining another party, shall constitute
sufficient proof of such resignation, intention to resign or
intention to join or joining another party.
Rule
4 - ……………
Rule
5-A letter of cessation, including a sufficient description of the
public declaration as set out in paragraph 3 hereof, or
where
applicable, including the relevant statements as set out in paragraph
4 hereof, must be served on the affected member.
This letter
shall state that the member has twenty-four (24) hours, after having
been served with such letter of cessation to provide
the Chairperson
of the FLC with clear and unequivocal written reasons why his or her
membership did not cease.
Rule
6-The Chairperson of the FLC must as soon as possible after receipt
of the written reasons contemplated in paragraph 5 hereof,
or upon
completion of the twenty-four (24) hours as set out in paragraph 5
hereof, present to a panel of the FLC:
6.1
A copy of the public declaration and or statements which allege the
cessation of membership; and
6.2
The written response, if any, by the affected member.
Rule
7- Upon receiving the copy of the public declaration and/or
statements and the written response by the affected member, the
panel
must without undue delay make a determination on the papers as
presented to it and communicate this determination to the
Chairperson
of the FLC.
Rule
9- In the event that a determination is made that the member’s
membership has ceased, this determination shall be presented
to the
Federal Executive, which may then confirm the determination of the
cessation of the membership of the affected member.
Rule
10-In the event that a determination is made by the panel, or a
resolution is passed by the Federal Executive that the written
reasons provided by the affected member sufficiently dispute the
facts on which cessation may be based in terms of the Federal
Constitution, the matter may be referred to the FLC for a
disciplinary hearing, or to follow the process set out in paragraphs
5,6 and 7 of Part F of these rules.”
[48] Unlike the operative
provisions in
Pheniti
and
Louw
cessation of membership
in terms of the party’s rules does not occur automatically in
terms of a deeming provision, and before
a public declaration of the
intention to resign has legal effect the rules require that there be
a determination of the cessation
by an FLC panel, which is then
confirmed by FedEx. In essence the panel functions almost like
a tribunal or court would-
it is required to evaluate the contents of
the member’s public declaration and her response thereto and
needs to be satisfied
that 1) the declaration constitutes the
expression of an intention to resign from the party, as envisaged by
the cessation clause
and 2) despite this the member has failed to
provide clear and unequivocal reasons why his/her membership did not
cease.
Thereafter, FedEx is required to confirm the
determination. And, as we read the rule in this regard FedEx
has a wide discretion,
which, notwithstanding the contents of rule 10
is not limited to simply deciding whether or not to confirm that the
declaration
is covered by the cessation clause. The discretion
not to confirm the determination by the FLC panel could be exercised
on
the basis of extraneous considerations, such as whether for
example, in the light of the explanation which was tendered by the
member and the member’s value to the party, it should condone
the declaration which he/she made. In the circumstances
counsel
for the DA was constrained to concede that until such confirmation by
FedEx, as a matter of law, cessation of membership
does not occur.
In the absence of such a finding the membership of an affected member
remains extant and does not cease to
exist in law.
[49] Our finding that in
terms of the party’s constitution and its rules, membership
does not cease automatically, by operation
of law, and is dependent
upon a determination which has to be made to that effect, which must
in turn be confirmed in order to
become operative, has two further,
important consequences. Firstly, it must follow that where
there is a material defect
in relation to the process ie where a
panel is not properly constituted in terms of the party’s
constitution or rules, then
there cannot be a valid determination
made that membership has ceased, and secondly, there can be no valid
and effective confirmation
of such a determination.”
[20]
No contention was made by the applicant that there was a
constitutional process necessary that would have led to the lapsing
of his membership which was not followed or that such lapsing was not
automatic but was subject to a process. I therefore
find that
on reaching the age of 35 years old his membership lapsed and
therefore the constitutional rights which accrue to the
members of
the first respondent were not available to him as he was already
automatically not a member on the 24 September 2018
when the congress
was convened.
Applicant’s
locus standi
– membership
[21]
I find the argument of applicant about his
locus standi
unconvincing. In the applicant’s heads of argument the
following submission is made:
“
9. The phrase
locus
standi
is a requirement that a party must have a direct and substantial
interest in the right, which is the subject matter of the litigation
and in the outcome of the litigation. It is then said that if a
party does not comply with this requirement he or she lacks
legal
standing.
10. The applicant has
established his
locus standi
in the founding affidavit and if
the respondents’ reliance on the applicant’s age that an
administrative decision which
stays in standing and which has been
set aside and as such remains valid.”
[22]
The first point to be made about this submission is that it is not a
model of clarity. Secondly, it has a footnote in
which
reference is made to
Oudekraal
Pty Ltd v City of Cape Town and Others
[3]
.
In
Oudekraal
the court said:
“
26. For those
reasons it is clear, in our view, that the Administrator’s
permission was unlawful and invalid at the outset.
Whether he
thereafter also exceeded his powers in granting extensions for the
lodgement of the general plan thus takes the matter
no further.
But the question that arises is what consequences follow from the
conclusion that the Administrator acted unlawfully.
Is the
permission that was granted by the Administrator simply to be
disregarded as if it had never existed? In other words,
was the
Cape Metropolitan Council entitled to disregard the Administrator’s
approval and all its consequences merely because
it believed that
they were invalid provided that its belief was correct? In our
view it was not. Until the Administrator’s
approval (and
thus also the consequences of the approval) is set aside by a court
in proceedings for judicial review it exists
in fact and it has legal
consequences that cannot simply be overlooked. The proper
functioning of a modern state would be
considerably compromised if
all administrative acts could be given effect to or ignored depending
upon the view the subject takes
of the validity of the act in
question. No doubt it is for this reason that our law has
always recognised that even an unlawful
administrative act is capable
of producing legally valid consequences for so long as the unlawful
act is not set aside.”
[23]
In this case the maximum
ominia praesumuntur
rite
esse acta
finds no application. This is so because the applicant would
have joined and become a member of the first respondent at an
appropriate age. There was nothing unlawful about that.
His coming of age or turning 35 years old did not make his
earlier
membership an invalid act liable to be set aside. What happens
is that on turning 35 years old the constitution of
the first
respondent kicks in and his membership lapses automatically. No
administrative act is required, no letters need
to be written to him,
he simply automatically ceases to be a member.
[24]
This is different for instances from a situation when it is found
that he had not paid his annual subscriptions for up to three
(3)
months. In that event it would be necessary to establish that
he had in fact not paid his membership fees for up to three
months.
This is a process in which the
audi alteram
principle would be
applicable so as to make a valid finding that annual subscriptions
had been outstanding for three months or
longer. The date of
lapsing of membership on turning 35 years old is determinable on the
date on which he joins and becomes
a member and therefore the lapsing
of membership is constitutionally predetermined requiring no process
when the date arrives.
Therefore on the date of the congress
the applicant was not a member as he had long turned 35 years old by
then. He therefore,
fails to prove that he had
locus standi
on this ground.
Applicant’s
locus standi
–RTT coordinator
[25]
This brings me to the issue of the applicant’s appointment to
the Regional Task Team of the first respondent in the Amathole
Region. That he is a coordinator of the RTT of the first
respondent in the Amathole region is not in issue or that he assumed
that position on 19 February 2017 in a Special Regional General
Council of the first respondent held at Great Kei Hall. This
is
the second basis on which the applicant seeks to found his
locus
standi
in these proceedings. It is common cause between the
applicant and the ninth and eleventh respondents that there are two
fundamental documents that govern the affairs of the first
respondent. The Constitution governs the affairs of the first
respondent generally. However, when it comes to congresses, the
affairs of the first respondent are governed by the Constitution
and
the Congress Guidelines.
[26]
The introduction to the Congress Guidelines reads as follows:
“
1.
INTRODUCTION
1.1
The
guidelines are intended to provide more details on organizational
requirements to be adhered to for congress preparations and
ensure
consistency in our processes in line with the unitary character of
the African National Congress Youth League. They
must always be
read together with the ANCYL Constitution as adopted by the 25
th
National Congress held at Gallagher Estate, Midrand in Gauteng
Province. These guidelines are standing guidelines not
developed
for purposes of a specific congress but for all congresses
from Regional to National Level.”
[27]
The Congress Guidelines introduce task teams at different levels of
the organisation as follows:
“
2.
DEFINITIONS
AND ABBREVIATIONS
2.1 The word National
Executive Committee (herein under abbreviated as NEC)refers to the
elected national executive committee, elected,
National Congress as
determined by constitution of ANCYL where it does not exist it refers
to the National Task Team or NTT.
2.2 The word Provincial
Executive Committee (herein under abbreviated as PEC) refers to the
elected provincial executive committee
in a province as determined by
constitution of the ANCYL where it does not exist it refers to the
Provincial Task Team as appointed
by NEC or NTT.
2.3 The word Regional
Executive Committee (herein under abbreviated as REC) refers to the
elected regional executive committee in
a region as determined by
constitution of the ANCYL where it does not exist it refers to the
Regional Task Team as appointed by
PEC/PTT.
2.4 The word branch
executive committee refers to the elected branch executive committee
in a region as determined by constitution
of ANCYL where it does not
exist it refers to the branch task team as appointed by REC/RTT.”
[28]
The applicant makes the following averments in his founding affidavit
which the ninth and eleventh respondents do not deny:
“
51. On the same
day I addressed a correspondence to all the regional task team
members for a meeting to be held at Walter Sisulu
University, Ibika
Campus at 12:00pm on the 24
th
September 2018.
52. On my arrival at the
venue for an RTT meeting where I learnt of the impugned regional
congress of Amathole region which was
said to be taking place at
Peddie on the same day. I attach hereto a notice convening the
RTT meeting marked “MD9”.
53. I immediately drove
to Peddie where I was chased away by the security personnel on the
instructions of the PTT members who claimed
to have been delegated by
the fifth respondent.”
[29]
I will not deal with other alleged irregularities which the applicant
says took place regarding preparations for the congress.
For
instance he alleges that he wrote numerous letters requesting an
audit report and a list of delegates from the fifth respondent
and
these requests were not given heed. There is nothing in either
the Constitution or the Congress Guidelines of the first
respondent
which says that only the Regional Coordinator must dealt with the
audit process of the congress or that the congress
will be invalid if
the preparations for the congress are not handled by the regional
coordinator.
[30]
Clause 10.2 of the Constitution reads:
“
10.2
Powers and Duties
The
Regional Congress shall:
(a)
Be held at
least once in 18 months or more frequently if requested by two thirds
of all branches in the region.
(b)
Receive and
consider reports by the Regional Executive Committee, which shall be
presented by the Chairperson, the Secretary and
Treasurer.
(c)
Elect the
REC that must be composed of the Chairperson, Deputy Chairperson
Secretary, Deputy Secretary, Treasurer, and Twelve (12)
additional
members.
(d)
Develop and
implement the policies and programs of the ANCYL guided by the
National and Provincial resolutions and programs of actions,
within
the context of each region.”
[31]
All these are the powers and duties of the Regional Congress.
It is not difficult to imagine a situation in which a member
of the
RTT such as the applicant, is indisposed and therefore unable to
attend. Does that mean that whatever functions he
would have
performed will necessarily not be performed? I do not think so.
In any event the eleventh respondent has annexed
a letter to his
answering affidavit written by the fifth respondent dated 12 July
2018 which reads as follows:
“
To:
Eastern Cape ANCYL PTT
All Eastern Cape Regional
Chair/Convenor and Secretaries / Coordinators
This
serves to inform you that as from date all processes leading to
Regional Congresses and Provincial Congress in the Eastern
Cape will
be led by the Secretary General’s Office.
Comradely
yours
NJABULO
NZUZA
SECRETARY
GENERAL (ANC YOUTH LEAGUE)”
[32]
The applicant does not challenge the validity of this letter nor does
he take issue with the fifth respondent exercising all
powers
pertaining to the congress preparations. He makes no reference
to it in this founding affidavit as one of the addresses
and he does
not claim to have not received it in his replying affidavit.
His insistence on performing congress preparation
tasks does not make
sense as they fly in the face of the fifth respondent’s letter
dated 12 July 2018 in which the fifth
respondent assumed all congress
preparation tasks. He does not challenge on any constitutional
basis, the fifth respondent’s
right to assume congress
preparation tasks.
[33]
I now turn to deal with the undisputed allegation by the applicant
that he attended the Regional Congress on the 24 September
2018 and
was chased away by the security personnel on the instructions of the
PTT and the fifth respondent.
[34]
To understand the ominousness of the chasing away of the applicant or
any member of the RTT from the Regional Congress one
need look no
further than two provisions of the first respondent’s
Constitution, namely sections10.1 and 12.2 which read
as follows:
“
10.1
Composition
The
Regional Congress shall:
(a)
Be attended
by delegates elected democratically by and from branches in good
standing in proportion to their membership.
(b)
Branch
delegates shall constitute at least ninety percent (90%) of all
voting delegates to congress.
(c)
Be attended
by members of the Regional Executive Committee who shall have full
speaking and rights in their ex-officio capacity.
10.2
Powers and duties
(a)
…
(b)
…
(c)
…
(d)
…
Section
11: Region General Council
(a)
…
(b)
…
(c)
…
(d)
…
(e)
…
(f)
…
Section 12: Regional
Executive Committee
12.1 Composition
(a)
…
(b)
…
(c)
…
(d)
…
(e)
…
12.2
Powers and Duties
(a) The REC shall convene
at least once a month. Its duties shall be to:
(b) At its meeting after
the Regional Congress, elect the Regional Working Committee.
(c) It is
responsible for the implementation of decisions of the Regional,
Provincial and National Congress as well as decisions
of the PEC, PGC
and NEC;
(d) Organise,
establish, service and coordinate branches of the ANCYL in the
Region;
(e) Implement the
policies and programs of the ANCYL and strive to further the
interests, aims and objectives of the Youth
League as a whole;
(f) Manage and control
the funds and property of the Youth League in the region;
(g) Represent the ANCYL
on the ANC REC in an ex-officio capacity through the Regional
Chairperson and Secretary;
(h) Carry out other
responsibilities delegated by the PEC and NEC.
(i) The REC shall have
the power to co-opt not more than three members, in order to ensure
that all different sections of the youth
are well represented;
(j) One shall cease to be
a member of the REC upon absenting oneself from two successive
meetings without a valid reason.”
[35]
It is self-evident from the reading of these constitutionally imposed
duties that the REC is a very important structure of
the first
respondent. It performs very important tasks in the life of the
first respondent. It is also a vital connecting
point of all
branches in the region.
[36]
In the absence of the REC all of the above mentioned REC powers and
duties are assumed and performed by the RTT. Therefore
the
applicant together with other members of the RTT have had these
responsibilities since their appointment to the RTT on the
19
February 2017.
[37]
It is clear from the provisions of clause 10.1 (c) of the first
respondent’s Constitution that the applicant in his ex-officio
capacity as a member of the RTT had both the speaking and voting
rights in the congress. That this is so is further amplified
by
the Congress Guidelines as follows:
“
13.4 The final
determination of the structure of voting and non-voting delegates to
congress will be made by the NEC for purposes
of National Congress
and Province in the case of Provincial Congress.
In
the region voting delegates will only be Branches and the outgoing
REC or RTT
.”
[4]
[38]
Section 19 (1) of the Constitution
[5]
provides as follows:
“
Political
rights
19.
(1) Every citizen is free to made political choices, which includes
the right –
(a) to form a
political party;
(b)
to participate in the activities of or recruit members for, a
political party; and
(c) to campaign for a
political party or cause.”
[39]
There are many young people who chose to exercise their section 19
(1) constitutional rights through their membership of the
first
respondent and through the activities of the first respondent.
The relationship between the first respondent and its
members as well
as the relationship between the first respondent and its office
bearers is of a contractual nature and therefore
it is binding.
[40]
In
Ramakatsa
and Others v Magashule and Others
[6]
the Constitutional Court had this to say:
“
[79] Before
demonstrating that some of the irregularities raised were established
it is necessary to outline the nature of the legal
relationship that
arises from membership of the ANC. At common law a voluntary
association like the ANC is taken to have
been created by agreement
as it is not a body established by statute. The ANC’s
constitution together with the audit
guidelines and any other rules
collectively constitute the terms of the agreement entered into by
its members. Thus the relationship
between the party and its
members is contractual. It is taken to be a unique contract.
[80] As in the case of an
ordinary contract, if the constitution and the rules of a political
party like the ANC, are breached to
the prejudice of certain members,
they are entitled to approach a court of law for relief. In
Saunders v Committee of the Johannesburg Stock Exchange
the
Court said:
‘
There
is no doubt that the rules and regulations of a body like the Stock
Exchange, just like the rules and regulations of an ordinary
club, or
the Articles of Association of a Company constitute a contract
between its members and that is the reason why any particular
member,
if the contract is broken to his disadvantage has the right to come
to the Court for the appropriate remedy.
’
[81] We have set out in
detail specific clauses in the ANC’s constitution and its audit
guidelines which the appellants claimed
were violated. It
emerges from the papers that the appellants relied on two types of
irregularities. The first type
relates to what was done in
breach of section 19 of the Constitution. The second arises
from the breach of the audit guidelines
and the ANC’s
constitution. Proof of both types of irregularities entitles
the appellants to relief. But before
we consider the remedy
which the appellants ought to obtain, it is necessary to show the
irregularities established by evidence
and record.”
[41]
The section 19 constitutional rights are fundamental to the creation
of a peaceful political culture in the country.
Most
significantly, they are an indispensible catalyst to the
establishment of the democratic state and key building blocks to
the
functioning culture of democracy and the enjoyment of civil liberties
by the citizenry.
[42]
In the recent past the Constitutional Court said in
My
Vote Counts NPC v Minister of Justice and Correctional Services and
Another
[7]
:
“
[32]
The right to vote derives its fundamentality from the central role
voting plays in the establishment, functionality and vibrancy
of the
constitutional democracy. It is a prerequisite for the very
existence of the legislature and the executive at all
levels of the
state. And the proper exercise of that right is so critical to
the coming into being of our political arms
of the state and the
effective and efficient functioning of the entire state machinery
that the need for transparency and accountability
from those seeking
public office is self-evidently more pronounced. The future of
the nation largely stands or falls on how
elections are conducted,
who gets elected into public office, how and why they get voted in.
Only when transparency and accountability
occupy centre stage
before, during and after the elections may hope for a better tomorrow
be realistically entertained.”
[43]
The fact that the applicant was denied access to the congress venue
for reasons that have not be explained without any due
process is
inimical to constitutional democracy. It was a denial of his
right to speak at that congress and his right to
vote thereat.
This was a violation of both the constitution of the first respondent
as well as the violation of the Constitution
of the Republic and
therefore unlawful.
Non-joinder
of the other members of the RTT
[44]
It was argued on behalf of the ninth and eleventh respondents that
the applicant qua member and coordinator of the RTT ought
to have
joined the other members of the RTT as they have a direct and
substantial interest in this matter. I do not think so.
It can
never be that the entitlement and therefore the enforcement of the
applicant’s constitutional rights must depend on
other members
of the RTT. It would be akin to saying that an individual
member of the first respondent should be non-suited
for his failure
to join every member of the first respondent. I cannot see
anything that could potentially erode the rights
of members of any
organisation or structure than their non-suitment by the requirement
that every member of that organisation or
structure be joined even in
circumstances where no relief is sought against those members.
[45]
It is the applicant who was denied access to the venue. The
other members of the RTT may have an interest in the congress
and may
even have participated to their satisfaction. However, the
applicant was refused participation and therefore it is
his rights to
participate as indicated above that were denied. The
non-joinder of other members of the RTT even if they have
an interest
in these proceedings is irrelevant and can certainly not be a basis
for the quashing of applicant’s case on that
basis. In
any event they have signed confirmatory affidavits in these
proceedings. This means that they did become
aware of these
proceedings and have not expressed any desire to join or be party to
these proceedings to protect whatever interest
they may have.
They have contented themselves with supporting the ninth and the
eleventh respondents in opposing the relief
sought by the applicant.
Failure
to exhaust internal remedies
[46]
The ninth and eleventh respondents have submitted that the applicant
should be non-suited for his alleged failure to exhaust
internal
remedies contrary to the first respondent’s constitution.
In this regard reference is made to annexure “MD13”,
the
Congress Guidelines. The answer to this lies no further than
the deponent’s own annexure “A”, the letter
from
the fifth respondent dated 12 July 2018. In that letter the
fifth respondent indicated that all processes leading to
the Regional
Congresses and Provincial Congress in the Eastern Cape would be lead
by his office. Nothing in the said letter
suggests that the
dispute resolution processes were excluded from the powers that the
fifth respondent assumed in relation to congress
preparations.
I go back to the undisputed allegation by the applicant that the
fifth respondent was involved in the applicant
being chased away from
the congress. To expect the applicant to complain about the
fifth respondent’s conduct to the
fifth respondent in relation
to an issue that has to do with congress preparations is unhelpful
and serpentine.
The
winding-up of the first respondent
[47]
I now come to the final winding up of the first respondent by the
Gauteng High Court. That the first respondent was placed
under
final winding up in the hands of the Master, the twenty first
respondent is common cause. In the matter of
De Waal v
African National Congress Youth League
, case no. 49137/2017 (30
July 2018) giving reasons for ordering that the first respondent be
placed under final winding-up in the
hands of the Master, Weiner J
stated thus:
“
[31] For purposes
of this application, the enquiry is whether the respondent, as an
association, constitutes a body corporate that
is susceptible to
being liquidated. The authors of Henochsberg say the following
in respect of whether an association can
be a body corporate:
[8]
“
At
common law an association of natural persons may be a
universitas
,
ie. a body corporate. The characteristics of such a body are
that it should be capable of owing property apart from its
members
and it should have perpetual succession… Whether a particular
association is such a body depends on its nature,
its constitution,
its objects and its activities … But it is decisive of its
being a
universitas
if its constitution indicates that it has the said characteristics.”
[32] The authors opine
that the definition of a body corporate bears its common-law
meaning. This opinion was confirmed in
Lawclaims (Pty) Ltd v
Rea Shipping Co
. SA: Shiffscommerz Aussenhandelsbetried der VVB
Schiffbau Intervening, where the Full Court of the Natal High court,
as it then
was, held:
“‘
Body
corporate’ is not specifically defined and it therefore bears
its common law meaning, an association of individuals capable
of
holding property and of suing and being sued in its corporate name.”
At
754H, the Court stated:
“
A
body corporate is not defined but, since a body corporate is included
within the meaning of ‘company’ for the purposes
of s 337
it is difficult to escape the conclusion that the Legislature
intended that they should be wound up like an ordinary company
or an
external company in terms of chap XIV of the Act and that, when one
sought to place such a body in liquidation, it could
only be done in
terms of chap XIV and in no other manner.
”
[33] The common law
meaning of body corporate has its origins in the Appellate Division
decision of
Morrison v Standard Building Society
, where it was
held:
“
In
order to determine whether an association of individuals is a
corporate body which can sue in its own name, the Court has to
consider the nature and objects of the association as well as its
constitution, and if these show that it possesses the characteristics
of a corporation or universitas then it can sue in its own name
.”
[34] The applicant
submits that the respondent fulfils the common-law requirements for
an
universitas personarum
and is, therefore, a body corporate
under section 337. The requirements for a
universitas
personarum
were restated by the erstwhile Appellate Division in
African National Congress and another v Lombo
(per Corbett
CJ):
“
It
is conceded by counsel for the appellants (correctly in my view) that
prior to the enactment of certain legislation which resulted
in each
of the appellants being declared an ‘unlawful organisation’
… each of them constituted a universitas
personarum. ie. an
artificial or juristic person constituting a legal entity apart from
the natural persons (members) composing
it, having the capacity to
acquire rights and incur obligations and to own property apart from
its members and to sue and be sued,
and having perpetual succession.”
[35] Accordingly, an
entity must fulfil three main requirements to qualify as an
universitas personarum
.
35.1 First, it must have
a legal existence apart from its members and thus be capable of suing
and being sued in its own name.
35.2
Second, it must have perpetual succession.
35.3 Third, it must have
the capacity to acquire rights and incur obligations as well as own
property in its own name.
[36] In having regard to
an entity’s constitution, one can determine whether it has a
legal existence apart from its members.
[37] All three the
requirements set out above are borne out by the respondent’s
constitution, which in relevant part, provides:
“
The
ANCYL shall be legal persona with a perpetual succession of power
apart from its individual members to acquire, hold and alienate
property, enter into arrangements, do all things necessary to carry
out its aims and objectives, and defend its members, property
and
reputation
.”
[38] Further, the
respondent’s constitution provides that it may be wound up
separately from its members and any assets, remaining
after
satisfaction of all the respondent’s liabilities, must then be
transferred to the African National Congress:
“
Upon
dissolution or winding up, the assets of the ANCYL remaining after
satisfaction of all its liabilities, shall be given or transferred
to
the ANC.
”
[39] The pursuit of
profit is not a common-law requirement to qualify an entity as an
universitas personarum
.
[40] Accordingly, based
upon the respondent’s own Constitution and the authorities
referred to above, the respondent falls
within the definition of a
body corporate, as defined in section 337 of the old Act and is
liable to be liquidated as such.
GROUNDS
OF LIQUIDATION
[41] As Chapter 14 of the
old Act and its accompanying definitions remain the applicable law
under which an insolvent company is
wound up, they will be considered
below.
[42] The applicant
submits that respondent cannot pay its debts as envisaged by section
345 (1)(b) read with section 344(f) of the
old Act and, accordingly,
falls to be wound up on that basis.
[43] Section 345(1)(b) of
the old Act stipulates when a company is deemed to be unable to pay
its debts:
“
(1)
A company or body corporate shall be deemed to be unable to pay its
debts if –
(a)
…
(b)
Any
process issued on a judgment, decree or order of any court in favour
of a creditor of the company is returned by the sheriff
or the
messenger with an endorsement that he has not found sufficient
disposable property to satisfy the judgment, decree or order
or that
any disposable property found did not upon sale satisfy such process;
(c)
…
.
[44] The Sheriff has
rendered two separate
nulla bona
returns of service.
This meets the requirement for purposes of section 345(1)(b).
As set out above, the application
was served on 15 December 2018
(sic), the
nulla bona
return was dated 29 June 2018, and
several other processes have been served on the respondent in the
past seven months. The
respondent has not reacted to any of
such processes. It has not opposed the application to show that
it is now able to pay
its debts and that its financial position has
changed. The respondent is deemed to be unable to pay its
debts. There
is no evidence before this Court that rebuts the
deeming provision.”
[48]
The applicant deals with the first respondent’s winding up as
follows:
“
59. Justice Weiner
J of the South Gauteng High Court on the 26
th
July 2018 issued an order with the following terms:
59.1 That the African
National Congress Youth League is hereby placed under final winding
up;
59.2
Costs of the application to be costs in the liquidation.
60. In the presence of
this Court Order, the authority to run the affairs of the first
respondent lies with the 21
st
respondent and/or the
liquidator once same is appointed by the 21
st
Respondent.
61. The second to the
20
th
respondents have no authority whatsoever to purport
to take decisions on behalf of the first respondent as same after the
26
th
day of July 2018 have been taken over by the 21
st
respondent.
62. Without this
authority from the 21
st
respondent, that congress falls to
be declared unlawful and set aside for the lack of authority to
convene such a congress.
I attach hereto a Court order dated
26
th
July 2018 together with reasons and same is marked
“MD14” and MD15” respectively.”
[49]
In their answering affidavit the ninth and eleventh respondents
respond as follows:
“
47.
AD PARAGRAPH 60, 61, 62 AND 67.
The
contents of these paragraphs are denied. The denial is premised
on the fact that the 21
st
respondent’s authority
does not include the power to do political transactions. Whilst
the 21st respondent is handling
the financial affairs of the first
respondent, structures of the first respondent are obliged to do
political work on behalf of
the first respondent. If
applicant’s claim was to obtain then he would not have any
right to assert in these proceedings
but the 21
st
respondent.”
[50]
Putting aside the illogicality of this submission there are other
difficulties with saying that the Master must only deal with
the
finances of the first respondent whose other activities must
otherwise continue unhindered. This illogicality is
self-evident
from the submission that structures of the first
respondent are obliged to do political work.
[51]
That the very existence of the first respondent is to do political
work is a given and on this there should be no ambiguity.
Its
aims and objectives as contained in its constitution make this
abundantly clear. They read:
“
ARTICLE
D: AIMS AND OBJECTIVES
The
ANCYL shall:
1.
Strive to
rally the youth of our country to support and unite behind the ANCYL,
and actively participate in the struggle to create
a non-racial,
united, democratic and prosperous society;
2.
Support and
reinforce the African national Congress in the attainment of
the goals of the National Democratic Revolution;
3.
Ensure that
the youth make a full and rich contribution to the work of the ANC
and to the life of the Nation;
4.
Champion
the general interests and rights of the South African Youth and the
working class in the socio-economic and political life
of the
country;
5.
Promote
unity and patriotism among the youth;
6.
Promote the
creation of a broad, non-aligned pioneer movement and fight for the
rights of children as enshrined in the Constitution
of the Republic
of South Africa;
7.
Strive and
work for the educational, moral and cultural upliftment of the youth;
8.
Promote
gender equality in all spheres of life, especially amongst the youth;
9.
Promote
among youth a spirit of international solidarity, peace and
friendship with other nations;
10.
To champion
the cause, of the African Renaissance.”
[53] These are all noble
and admirable political objectives. However, there is no legal basis
for excluding the first respondent
from the general law of the land
that applies to everybody. I was not given any legal basis or
authority for the proposition that
the twenty first respondent should
handle only the financial affairs of the first respondent as against
all of its affairs being
under the authority of the Master. I could
find no authority for the said proposition either.
[54] On the contrary even
the organisations such as the first respondent are bound by and
subject to the limitations of the law.
In
Ramakatsa and Others v
Magashule
and Others (supra) the Constitutional Court said:
“
[71] In
relevant part Section 19 (1) proclaims that every citizen of our
country is free to make political choices which include
the right to
participate in the activities of a political party. This right is
conferred in unqualified terms. Consistent with
the generous reading
of provisions of this kind, the section means what it says and says
what it means. It guarantees freedom to
make political choices and
once a choice is made, the section safeguards a member’s
participation in the activities of the
party concerned. In this case
the appellants and other members of the ANC enjoy constitutional
guarantee that entitles them to
participate in its activities. It
protects the exercise of the right not only against external
interference but also against interference
coming from within the
party.
[72] This right may be
limited only on authority of a law of general application. But
even then only to the extent that the
limitation is reasonable and
justifiable in “
an open and democratic society based on
human dignity, equality and freedom.”
As no law of
general application has been invoked to justify the limitation here,
it follows that if any limitation is established
by the appellants it
will be unjustifiable. What this means is that constitutions and
rules of political parties must be consistent
with the Constitution
which is the supreme law.”
[55]
I will refer to a few cases to demonstrate the law of general
application that the ninth and eleventh respondents say the first
respondent should be exempted from so that it can continue to do its
political work even though it has been wound up.
[56]
In
Engen
Petroleum v Goudis Carriers
(Pty) Ltd (In Liquidation)
[9]
Sutherland J had this to say:
“
[8]…..In my
view, Blackman articulates his rationale admirably in the cited
passage; i.e. first, the impotence of the complainant’s
office
bearers after the final winding-up order and the passing of control
into the hands of the master and liquidator, and secondly
and
consequently, the subjugation of the company being wound up to the
statutory purposes of the insolvency regime. Henochlierg
true
enough, does not in the cited passage, offer a rationale save to
invoke the concursus, and it may fairly be understood that
he thought
the point self-evident that after concursus the court could have no
further role because of the effect off concursus.”
[57]
The second case is
Richer
v ABSA Bank Ltd
[10]
in which it was stated that:
“
[10] The reasoning
of the court a quo was motivated by an erroneous premise that upon
Liquidation Bloempro ceased to exist, that
it was stripped of its
original legal status. The correct position is that upon the
final order of liquidation being granted
the company continues to
exist, but control of its affairs is transferred from the directors
to the liquidator who exercises his
or her authority on behalf of the
company. As to when liquidation commences, in terms of section 348 of
the Companies Act 61 of
1973 (the 1973 Act) liquidation of a company
by the court is deemed to commence on presentation to the court of
the application
for the winding-up and continues until the affairs of
the company have been finally wound up and the master’s
certificate
to the effect is published in the Government Gazette,
thus dissolving the company. Similarly s82 of the Act provides
for
existence of a company until deregistered by the Commission.”
[58]
These authorities, if nothing else, do say that on winding-up the
control of the affairs of the first respondent was transferred
to the
twenty first respondent and that the office bearers of the first
respondent became impotent. This, in my view, does
not mean
that the first respondent or its office bearers are either helpless
or hapless in so far as the need to continue functioning.
All
that it means is that they must do so either through the twenty first
respondent or with his or her consent or the liquidator,
when the
latter is appointed. The decisions of the Master are, in my
view, reviewable should the first respondent’s
office bearers
be dissatisfied with how he/she handles the affairs of the first
respondent or is disinterested or in any way obstructive.
However, the Master cannot simply be ignored.
[59]
To suggest that on the face of the winding up order it should be
business as usual for the first respondent would be to make
a mockery
of the winding-up process and therefore the constitutional order
which is founded on the rule of law. The repository
of power
and authority to run the affairs of the first respondent is the
twenty first respondent not the first respondent’s
office
bearers or leadership whose constitutional and legal authority is
divested from them and vested upon twenty first respondent.
[60]
In the result the applicant succeeds in his application. The
following order shall issue:
1.
The first respondent’s congress in the Amathole Region which
was convened on the 24 September 2018 is declared unlawful
and set
aside.
2.
The resolutions and outcomes of the Amathole Regional Congress of the
first respondent which was convened on 24 September 2018
are declared
unlawful and set aside.
3.
Any decisions taken by the leadership elected at the Amathole
Regional Congress of the first respondent which was convened on
24
September 2018 are declared unlawful and set aside.
4.
The ninth and eleventh respondents are ordered to pay costs of this
application on a party and party scale including all reserved
costs,
such costs shall include the costs of two counsel.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the Applicant: S.Y. MALUNGA
WITH S.H. MALIWA
Instructed
by:
MAKANGELA MTUNGANI INC.
MTHATHA
Counsel
for 9
th
& 11
th
Respondents: L MATOTIE
WITH D SIKOTI
Instructed
by:
GUBEVU HLALUKANA INC.
MTHATHA
Matter
heard on: 24 October 2018
Judgment
handed down on: 22 November 2018
[1]
My underlining
[2]
[2008] 3 All SA 684 (WCC)
[3]
[2004] 3 All SA 1
(SCA)
[4]
Mr underlining
[5]
Constitution of the Republic of South Africa, 1996.
[6]
2013 (2) BCLR 202 (CC)
[7]
2018 (5) SA 380 (CC)
[8]
All footnote references referred to in these paragraph have been
omitted.
[9]
2015 (6) SA 21
(GJ) para (8)
[10]
2015 (5) SA 57
(SCA)