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[2016] ZAGPPHC 250
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Pan Africanist Congress of Azania v Independent Electoral Commission of South Africa and Another (Pan Africanist Congress of Azania and Another Intervening) (8340/2016) [2016] ZAGPPHC 250 (20 April 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
20/4/16
Not
reportable
Not
of interest to other Judges
CASE
NO:
8340/201
6
In
the matter between:
PAN
AFRICANIST CONGRESS OF
AZANIA
Applicant
and
INDEPENDENT
ELECTORAL COMMISSION
OF
SOUTH
AFRICA
First
Respondent
LETLAPA
MPHAHLELE
Second
Respondent
PAN
AFRICANIST CONGRESS OF
AZANIA
First
Intervening Party
MR
MPHETHI
Second
Intervening Party
JUDGMENT
MAKGOKA,
J
[1]
In this application the applicant seeks an order to review what it
says is a decision of the first respondent made on 21 December
2015
in terms of which the first respondent allegedly suspended the
applicant from participation in the 2016 local government elections.
Ancillary to the review and setting aside of the alleged decision,
the applicant seeks the following orders:
(a)
That the first respondent restores and involve
the applicant as a participating political party in
the 2016 local government elections;
(b)
That
the
first
respondent
communicates
with
the
applicant
on
issues
pertaining
to
the
2016
local
government elections
through its
Secretary
General
and
President.
[2]
At the commencement of the hearing, by agreement of the parties, I
made an order admitting the first and second intervening
parties to
these proceedings.
[3]
It is prudent at this stage to identify the parties in the dispute.
The applicant (the PAC) is a political party registered
in terms of s
15 of the Electoral Commission Act 51 of 1996 (Electoral Act). It
says that its President is Luthando Mbinda (Mbinda),
and its
Secretary- General, Narius Moloto (Moloto), the deponent to the
founding and replying affidavits in these proceedings.
Mbinda is
currently the PAC's sole representative in the National Assembly,
having been sworn in as such on 19 March 2015. The
second
respondent's application to prevent Mbinda from being sworn in was
dismissed.
[4]
The first respondent (the Electoral Commission) is a commission
established in terms of s 181(1)(f) of the Constitution of the
Republic of South Africa, 1996, and s 3(1) of the Electoral Act. The
core mandate of the Electoral Commission is to manage elections
for
public representatives in all three spheres of government in South
Africa. The second respondent (Mphahlele) is a politician
who claims
to be the President of the PAC. The first intervening party is
represented by Mr Pooe, who aligns himself with Mphahlele.
The second
intervening party (Mphethi) is a politician who also claims to be the
legitimate President of the PAC.
[5]
The Electoral Commission opposes the application mainly on the basis
that the leadership dispute that has bedeviled the PAC
has placed it
in the invidious position of not knowing who leads the organization.
Furthermore, it asserts that no decision was
taken by it on 21
December 2015. Instead, it says that the only decision it took in
relation to the PAC was the suspension of public
funding to the PAC
in terms of the Public Funding of Represented Political Parties Act
103 of 1997 (the Funding Act), until such
time as the leadership
struggle within the PAC had been resolved. That decision was taken by
the Electoral Commission on 17 June
2015. An application in July 2015
by the PAC (Mbinda faction) launched in this court, challenging that
decision, among others,
was dismissed by this Court (Mabuse J). There
has not been any appeal against that order.
[6]
On 21 December 2015 the Electoral Commission, in response to earlier
correspondence from the PAC dated 18 December 2015, regarding
the
alleged removal of the PAC logo from the list of political parties
registered with the Electoral Commission. In response, the
Electoral
Commission stated that it had not removed the PAC from the list of
registered parties. It further stated: 'As matters
stand, the
Electoral Commission has suspended participation by the PAC in
electoral process pending the much needed clarification
of its
leadership through judicial processes that are presently unfolding.
The PAC says that this is a new decision, distinct from
the earlier
one suspending the public funding to the PAC. In light of how the
application was argued, and the view I take of the
matter, it is not
necessary for me to decide the issue.
[7]
This application is one of the many that have occupied this court and
our local division in Johannesburg. At the heart of the
litigation is
the power struggle that has engulfed the PAC over many years. None of
those applications have succeeded in determining
once and for all,
who the legitimate leaders of the PAC are. The present application is
no different. In fact, the issue here falls
within a much narrower
compass. What has to be decided in this application concerns the
relationship or contact that the Electoral
Commission has to have
with the PAC for the purpose of the 2016 local government elections.
The Mbinda faction, the Mphahlele faction
(supported by the first
intervening party led by Pooe) and the Mphethi faction, all claim
legitimacy of the leadership of the PAC.
[8]
From these factions, I must determine which one, or more, or all,
should the Electoral Commission communicate with for the purpose
of
the 2016 local government elections. The history of squabbles between
the above factions is long and complex, and has formed
the basis of
several applications in this court. These were mainly applications of
interlocutory nature by one faction against
each other, but none had
a direct bearing on the legitimacy of the leadership of the PAC. I
will not attempt to recite the full
factual background here. For the
present purposes, I am of the view that the following should suffice.
[9]
Mphahlele was elected the President of the PAC in July 2012. He was
expelled in May 2013. He approached the High Court {South
Gauteng) to
challenge his dismissal. He was successful in that court {Kgomo J)
and his expulsion was set aside. The PAC appealed
against the order
of Kgomo J to the Full Court. Mphahlele made an application in terms
of rule 49(11) of the Uniform Rules of Court,
seeking the execution
of Kgomo J's judgment pending the determination of the appeal. That
application was postponed
sine
die.
On 18
October 2013 the chairperson of the Electoral Commission, in view of
these development, conveyed to Moloto that it had decided
to
recognize the Mbinda faction as the legitimate PAC, 'until the
court otherwise decides.' I shall revert to this aspect
later.
Mphahlele's application in terms of rule 49(11) for leave to execute
the order granted by Kgomo J, pending the appeal to
the Full Court,
was finally heard by Victor J, who dismissed the application on 10
November 2014 by Victor J
.
[10]
On
9
October
2015
the Full
Court
upheld
the
appeal by
the
PAC
and
overturned the order of Kgomo J
.
It appears that
there were faint attempts to appeal the judgment
of the
Full
Court to the
Supreme
Court of Appeal
(SCA).
During the hearing of this application, counsel
for Mphahlele confirmed that there is no appeal pending against the
judgment of
the Full Court. After the judgment of the Full Court,
Mphahlele
apparently
approached
the
Electoral
Commission,
claiming
to
be
the
President
of
the
PAC.
[11]
In these proceedings, Mphahlele asserts himself as the President of
the PAC, based on his election in July 2012. According
to him, he was
re-elected in July 2015, and his term would endure until July 2018,
in terms of the constitution of the PAC. What
Mphahlele conveniently
fails to mention, and deal with, is the fact of his expulsion from
the PAC in May 2013. In my view, his
expulsion, and its consequences,
presents insurmountable obstacle for Mphahlele. He has sought to
challenge it through the court.
The judgment of the Full Court
referred to above, until set aside by either the Supreme Court of
Appeal or the Constitutional Court,
should,
de
Jure,
be the guiding point of departure on the issue.
[12]
Mphahlele seeks to downplay that judgment and its effect. Instead, he
places reliance on the
dicta
in three judgments of this
Court (per Windell J, Sutherland J and Mabuse J). But none of these
judgments made substantive pronouncements
on the leadership issue.
What is more, the judgment of Windell J was granted before the
judgment of the Full Court in October 2015.
All what Windell J did
was to dismiss the application on the basis that there non-disclosure
of material facts and insufficient
information. Regarding the
judgment of Mabuse J, the learned Judge was seized of a specific
aspect, namely, whether the Electoral
Commission was within its right
to suspend public funding to the PAC, and not with the determination
of the leadership of the PAC.
Sutherland J also was faced with an
urgent application to prevent the holding of a congress by one of the
factions of the PAC.
Like Windell J, Sutherland J found himself
unable to deal with the factual disputes raised in the papers. In
the course of
his judgment, the learned Judge made the
following pertinent remarks:
'Nothing this judgment
has to say will any way dent any claims which they have made, and I
make specific reference to the fact that
because it is plain that the
judgment of Windell J, in dismissing a similar application by the
respondents ...has been seriously
misunderstood. That judgment, too,
did not in any way confer any status or validation on either of the
PAC factions. Windell J,
like me in this application, was met with
the insuperable problem of having to decide a dispute of fact on
paper which is not something
Courts are able to do.'
[13]
It is therefore clear that reliance by Mphahlele on the judgments of
Windell J and of Sutherland J is misplaced. They do not
serve as
res
judicata,
as suggested by Mphahlele in his
answering affidavit.
[14]
Mphahlele further seeks to downplay the effect of the judgment of the
Full Court by saying that it was decided on a technicality
without
dealing with the merits of the leadership dispute in the PAC. That
might be true, but this does not detract from the effect
of the
judgment. At the risk of repetition, the effect of the Full Court
judgment is that Mphahlele's expulsion from the PAC stands.
Absent
any appeal to set it aside, it remains an important focal point in
the leadership tussle in the PAC. It might not be the
final word on
the leadership battle for the heart and soul of the PAC. But it
cannot simply be ignored, as Mphahlele seeks to do.
Mphahlele has
not, in his answering affidavit, mentioned any intention to appeal
against that judgment. In fact, he does not seem
to have any
intention to appeal that judgment. Instead, he seems to pin his hope
on an action suggested by Sutherland J in his
judgment. Despite the
fact that learned Judge made that suggestion in December 2015
already, Mphahlele has not instituted the envisaged
action, to date.
[15]
During argument, counsel for Mphahlele, Mr
Mokhari
SC, took
the argument further regarding the effect of the judgment of the Full
Court upholding the PAC's expulsion of Mphahlele.
He relied on an
event of 4 April 2015. On that occasion, the Mphahlele faction met as
the 'National Executive Council' of the PAC
and took a number of
'resolutions'. One of those was to 'derecognise and put aside
expulsions and counter expulsions of individuals
and structures from
the PAC that (had) taken place to date.' In the same breath, they
resolved to indefinitely suspend Moloto as
Secretary-General for
failing to attend that meeting. Accordingly, so was the argument by
counsel, the PAC's appeal, and the Full
Court's judgment, became moot
and of no consequence, because of a resolution by the Mphahlele
faction of 4 April 2015 to reinstate
him.
[16]
There is no merit in this argument. Until the Full Court pronounced
itself on the issue, Mphahlele remained expelled from the
PAC. The
meeting of the 'National Executive Council' on 4 April 2015, which
purported to re-instate Mphahlele and others, was therefore
of no
consequence. Mphahlele had elected to challenge his expulsion through
the courts, and he had to await the outcome of the
appeal lodged by
the PAC. It is an untenable proposition that Mphahlele could
circumvent the appeal process by simply 're-instating'
himself. The
Full Court heard the appeal on 9 October 2015, months after that
decision had been taken. Even if one accepts the
validity of the
resolution of April 2015, it should have been argued before the Full
Court that the appeal had become moot as a
result. I was informed
from the Bar that this was never argued. As stated earlier, the first
intervening party, represented by
Pooe, aligns itself with the
Mphahlele faction. As a result, the remarks made with regard to
Mphahlele are apposite to the first
intervening party.
[17]
Now to the second intervening party, Mphethi. He was appointed acting
President of the PAC in August 2013, following the expulsion
of
Mphahlele earlier during May 2013. In August 2014 Mbinda was elected
President at a National Congress of the PAC. Although there
is muted
dissatisfaction with the legitimacy of that congress, it has to date
not been set aside in any competent court. In December
2014 Mphethi
was expelled from the PAC for, among others, seeking to rule the
organization by decree. He thereafter lodged several
applications
challenging his expulsion, which were all dismissed. There is
currently an application pending to review his expulsion.
[18]
It is correct that before the judgment of the Full Court, there was
uncertainty and confusion on the part of the Electoral
Commission, as
to who the leader of the PAC is. But not after the judgment of the
Full Court. Earlier I mentioned the stance taken
by the Electoral
Commission that it would await the outcome of the legal process as to
the leadership battle in the PAC. That stance
was, with respect, the
correct one by the Electoral Commission. Clarity in that regard was
provided by the judgment of the Full
Court, in terms of which the
expulsion of Mphahlele was upheld.
[19]
In the light of the above, one should decide on the appropriate order
in the circumstances. During the argument, all counsel
representing
the parties were in agreement that this court should find in the
public interest, especially for the PAC members and
supporters, to
make a provisional order for the purposes of the upcoming 2016 local
government elections, on which faction within
the PAC the Electoral
Commission should interact with concerning the management of the
elections and the PAC's participation in
such elections. This relates
to prayer 4 of the notice of motion. It became clear that the prayers
2 and 3 (the alleged suspension
of the PAC from participation in the
local government elections, and its restoration as a participant
therein) were no longer in
in issue. As stated earlier, the focus was
on the faction with which the Electoral Commission should interact
for the purposes
of the local government elections.
[20]
Counsel for the PAC, for Mphahlele and the intervening parties,
provided me with draft orders for consideration. On 15 April
2015
counsel for the Electoral Commission filed supplementary submissions
commenting on those draft orders and their likely practical
effect.
Mphahlele's draft order envisages the recognition of the Mbinda and
Mphahlele factions as both being representatives of
the PAC. It is
suggested that the nomination of candidates for the 2016 local
government elections shall be done on a 50/50 basis
split between, on
one hand, members of the Mphahlele faction and first intervening
party, and those of the PAC, on the other, in
all wards which the PAC
will be contesting.
[21]
Counsel for the Electoral Commission have pointed out that this would
give rise to more complex issues, in part, because of
the legislative
framework that details the nomination of electoral candidates, the
composition, membership, operation and dissolution
of municipal
councils. Counsel proceed to demonstrate that for the proposal to be
implemented, a high degree of co-operation between
the contending
factions of the PAC is required the Electoral Commission to comply
with its statutory obligations. Given the very
deep-seated problems
that exist already among the various factions of the PAC,
co-operation is not possible. What is more, counsel
point out, the
50/50 split does not explain how the contesting factions of the PAC
would manage the nomination of candidates on
the relevant
proportional representation party list in respect of seat allocation.
[22]
I have given very careful and anxious thought to each of the draft
orders presented to me, as well as the comments on behalf
of
Electoral Commission. Much as one would wish to be as accommodative
as possible to the various factions in the PAC, I have to
defer to
the views of the Electoral Commission, and not hamstring it with a
complicated and difficult-to-implement order. In the
result, I must
have a basis for identifying any of the factions as the contact
centre for the PAC that the Electoral Commission
would interact with.
That basis, in my view, must be informed by the current legal status
of each faction.
[23]
I have already outlined that earlier. Mbinda's faction has been
successful in upholding Mphahlele's expulsion from the PAC
(in terms
of the judgment of the full court). There is currently no pending
litigation between the PAC and Mphahlele concerning
the leadership of
the PAC or his expulsion from the PAC.. He therefore remains expelled
from the PAC. All his conduct and actions
purportedly on behalf of
the PAC, while his suspension remains, are obviously without any
force. This includes the purported congresses
where he was
're-elected' as 'PAC President.' The same goes for Pooe faction.
Mphethi has also been expelled from the PAC. His
review application
has yet to be determined. That leaves only the Mbinda faction as the
only one on a superior legal standing at
the moment.
[24]
The above must not be understood to mean that the Mbinda faction is
the legitimate one for all intents and purposes. I consider
this only
for the purposes of the upcoming local government elections. Given
all of the above, I am of the view that the Electoral
Commission
should interact with Mbinda's faction for the purposes of the
up-coming local government elections.
[25]
There remains the issue of costs. The PAC, as the applicant, has been
successful. There is no reason why the costs should not
follow the
cause with regard to Mphahlele and the two intervening parties. There
shall be no costs order as between the PAC and
the Electoral
Commission.
[26]
In the result the following order is made:
1.
The first respondent (the Electoral Commission of
South Africa) is directed to, for the purposes of the
up-coming 2016 local government
elections, to communicate with the Pan
Africanist Congress of
Azania
(PAC) through its President, Mr Luthando Mbinda and its
Secretary-General, Mr N. Moloto;
2.
The second respondent (Mr Letlapa Mphahlele), the
first intervening party (represented by Mr Pooe) and the second
intervening party
(Mr Mphethi), are ordered to pay
the costs of
the
applicant (the PAC),
jointly
and severally, the one paying
the others to be absolved.
________________________
T.M.
Makgoka
Judge
of the High Court
Date
of hearing: 30
March 2016
Date
of judgment: 20
April 2016
For
the Applicant: Adv.
F.
Botes
SC
Adv.
M.Thipe
Instructed
by: Van
der
Merwe
& Associates, Pretoria
For
the First Respondent: Adv.
M.T.K Moerane SC
Adv.L.Gcabashe
Instructed
by: Gildenhuys
Malatji Inc., Pretoria
For
the Second Respondent: Adv.
W. Mokhari SC
Adv.
P.
Managa
Instructed
by: Ngeno
& Mteto Inc., Johannesburg
For
the
1st
Intervening
Party: Adv.
W.
Mokhari
SC Adv.
P.
Managa
Instructed
by: MR
Phala Attorneys, Benoni
KP
Seabi
& Associates,
Pretoria
For
the 2nd Intervening Party: Mr
MB Tshabangu
Firm: M.B.
Tshabangu Inc., Pretoria