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[2016] ZAGPPHC 485
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Mphahlele and Others v Pan Africanist Congress of Azania of Another (8340/2016) [2016] ZAGPPHC 485 (21 June 2016)
HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION,
PRETORIA)
Not reportable
Not of interest to
other Judges
CASE NO:
8340/2016
21/6/2016
In the matter between:
LETLAPA
MPHAHLELE
First
Applicant
PAN AFRICANIST
CONGRESS OF AZANIA
Second
Applicant
MR
MPHETHI
Third
Applicant
and
PAN AFRICANIST
CONGRESS OF AZANIA
First
Respondent
INDEPENDENT ELECTORAL
COMMISSION
OF SOUTH
AFRICA
Second
Respondent
JUDGMENT - Leave to
appeal
MAKGOKA. J
[1] This is an
application for leave to appeal against the judgment and order of
this Court handed down on 20 April 2016. In terms
of the order of the
judgment, the Electoral Commission was directed to communicate with
Mr Luthando Mpinda and Mr Narius Moloto
as representatives of the Pan
Africanist Congress of Azania (PAC) for the purpose of the upcoming
local government elections. The
application is brought by Mr Letlapa
Mphahlele, the PAC and Mr Mphethi, who, respectively, were the second
respondent, first intervening
party and second intervening party, in
the main application. The application for leave to appeal is opposed
by the PAC which was
cited as the applicant in the main application,
represented by Mr Luthando Mpinda and Mr Narius Moloto. There was no
appearance
for Mr Mphethi in the present application, and only the
application on behalf of Mr Mphahlele was argued.
[2] Mr
Els,
counsel
for the first respondent, contended, among others, that the order is
interim, and therefore, not appealable. The test for
appealability
was established in
Zweni
v Minister of Law and Order
[1]
where it was held that an order must have the attributes of a final
order and be definitive of the rights of the parties or dispose
of at
least a substantial portion of the relief in the main proceedings.
But the
Zweni
attributes
are not cast in stone, as observed in
Moch
v Nedtravel.
[2]
Even where a decision does not bear all these attributes it may
nevertheless be appealable if some other considerations are evident,
including that the appeal would lead to a just and reasonable prompt
resolution of the real issue between the parties.
[3] The overriding
consideration should be that of the interests of justice, as
explained in
Phi/ani-Ma-Afrika
v Mailula.
[3]
There, the Supreme Court of Appeal adapted the general principles on
the appealability of interim orders, and concluded that what
is of
paramount importance in deciding whether a judgment is appealable is
the interests of justice. The approach of the Supreme
Court of Appeal
received the imprimatur of the Constitutional Court in
Intl
Trade Administration v
SCAW.
[4]
The Constitutional Court observed that the Supreme Court of Appeal
had adapted the general principles to accord with the equitable
and
the more context-sensitive standard of the interests of justice
favoured by the Constitution.
[5]
In the present matter, the order is final with regard to the
participation by the parties in the upcoming local government
elections.
For the above considerations, I conclude that the judgment
in this case is appealable.
[4] With regard to merits
of the application, much of the grounds are premised on the arguments
presented in the main application.
They have been dealt with
comprehensively in the judgment, and it would therefore serve no
purpose in regurgitating them here.
The main thrust of the argument
on behalf of Mr Mphahlele is that because there are 'factions' within
the PAC, the court erred
in preferring one 'faction' over the others
as the one that the Electoral Commission should communicate with for
the purpose of
the local government elections. As explained in the
main judgment, Mr Mphahlele was expelled from the PAC. His legal
challenge
to his expulsion ended when the Full Court of the then
South Gauteng High Court upheld the appeal by the PAC. The effect of
the
judgment of the Full Court is that the decision by the PAC to
expel Mr Mphahlele remains. He has done nothing since the judgment
of
the Full Court to challenge the decision.
[5] Although the decision
to expel Mr Mphahlele is not administrative action, I think that by
analogy the reasoning in
MEC
for Health, Eastern Cape and Another v Kirland Investments tla Eye
&
Lazer
lnstitute
[6]
and
Oudekraal
Estates (Pty) Ltd v City
of Cape
Town and Others
[7]
is applicable. In para 101 of
Kirland,
the
Constitutional Court held as follows:
'The essential basis of
Oudekraal
was that invalid administrative action may not
simply be ignored, but may be valid and effectual, and may continue
to have legal
consequences, until set aside by proper process'.
[6] One of the grounds on
which this conclusion was reached is set out in
Kirland
at
para 103:
'The clarity and
certainty of governmental conduct, on which we all rely in organising
our lives, would be imperilled if irregular
or invalid administrative
acts could be ignored because officials consider them invalid'.
[7] Applying the above
principle to the present case, the PAC is entitled to organize its
affairs on the basis of finality of the
judgment of the Full Court
which has restored its decision to expel Mr Mphahlele. Whether the
Full Court came to its conclusion
on a technical basis is of no
moment. What is important is the effect of that judgment. At the risk
of repetition, the effect of
that judgment is that the PAC's decision
in May 2013 to expel Mr Mphahlele stands. Mr Mphahlele is not
entitled to simply ignore
that decision because he considers it wrong
or invalid for one or more reasons. Mr Mphahlele continues to base
his claim to the
membership and presidency of the PAC on selective
obiter
comments in the judgments of Windell J and Sutherland
J. I do not read any of those judgments, or the
obiter
comments
therein, to have the effect Mr Mphahlele purports them to have. But
to the extent they purport to pronounce him as a member
and President
of the PAC, they are at odds with the effect of the judgment of the
Full Court, and on the basis of judicial precedent,
they should be
considered wrong. In
Trade Fairs and Promotions (Pty)
Ltd v
Thomson
&
Another
1984 (4) SA 177
(W) at 1878 Coetzee
J made the following apposite remarks:
'.. (J)udicial comity
also lies at its (judicial precedent) root. And so does common sense.
Loyalty to the higher tribunal in the
hierarchy of authority is
essential for the smooth working of the system. The dignity of the
court is bound to suffer irreparable
harm if every one of the 34
Transvaal Judges can go his own merry way.'
[8] Lastly, I consider
the argument on behalf of Mr Mphahlele that the Court erred in
granting the order it did without setting
aside the Electoral
Commission's decision on 17 June 2015
[8]
in terms of which the Electoral Commission suspended the allocation
of funding to the PAC until such time as the leadership struggle
within the PAC had been resolved. Mr
Mokhari
SC,
counsel for Mr Mphahlele, contended with reference to
Oudekraa/,
that
absent an order setting aside that decision, the order that this
Court made, was not competent. There is no merit to this argument.
The Electoral Commission's decision has always been a conditional and
provisional one. It required of the PAC to get its house
in order,
and once that was done, its decision would automatically fall away.
No court order is needed to set aside its decision.
To demonstrate
this by way of a practical example. If all the factions of the PAC
had resolved their differences and approached
the Electoral
Commission as a united front, the Electoral Commission would have
been satisfied and uplifted its decision. It would
be absurd, under
those circumstances, to insist that there should be a court order
setting aside the Electoral Commission's decision.
[9] Similarly, where the
issue of the leadership struggle in the PAC had been judicially
pronounced on, albeit provisionally, it
serves no purpose to insist
on the setting aside of the Electoral Commission's decision. In fact,
this is the basis on which the
main application was argued. Both in
its written and oral submissions, the Electoral Commission made it
very clear that in the
event that the Court finds a basis of
resolving the leadership dispute, even if only on a provisionally, it
would abide thereby
and give effect to such an order. What is more,
it was generally accepted by all parties during the argument of the
main application
that it was in the public interest for this Court to
make a provisional order for the purposes of the participation by the
PAC
in the upcoming local government elections. All parties suggested
practical ways to achieve this, including Mr Mphahlele. It is
therefore a disingenuous contention advanced on behalf of Mr
Mphahlele in this application that the main application should have
been dismissed, among others, on the basis of the
Oudekraal
principle. In any event, as explained above, the decision of the
Electoral Commission is distinguishable from the range of
administrative
decisions envisaged in
Oudekraal
on the basis
of it being provisional, it being dependent on the resolution, either
way, of the leadership tussle in the PAC. Therefore,
reliance on
Oudekraal
in this context is misplaced.
[10] The common law test
in an application for leave to appeal has always been whether there
are reasonable prospects that another
court, given the same set of
facts, might arrive to a different conclusion. That test has been
codified by s 17(1)(a)(i) and(ii)
of the Superior Court Act 10 of
2013, in terms of which leave to appeal may only be given where a
judge is of the opinion that
the appeal would have reasonable
prospect of success, or that there is some compelling reason why the
appeal should be heard.
(my underlining for
emphasis)
[11] It is clear that by
the use of 'would' in the s 17, the legislature intended a heightened
threshold than the common law one.
Given what has been considered in
this judgment, I conclude that there appeal would not have a
reasonable prospect of success.
There is no compelling reason why the
appeal should be heard.
[12] The sum total of the
above is that the application for leave to appeal is unmeritorious
and falls to fail. The following order
is made:
1. The application by the
first applicant. Mr Letlapa Mphahlele for leave to appeal is
dismissed with costs;
2. The application by the
second applicant, Mr Mphethi for leave to appeal is struck from the
roll with costs.
3. The costs orders in
paragraphs 1 and 2 are in favour of the first respondent, the Pan
Africanist Congress of Azania as represented
by Mr Luthando Mpinda.
4. There is no costs
order as between the applicants and the second respondent, the
Electoral Commission of South Africa.
___________________________
T M Makgoka
Judge of the High Court
Date of
hearing: 17
June 2016
Date of
judgment: 20
June 2016
For the First and Second
Applicants: Adv. W. Mokhari SC
Instructed
by: MR
Phala Attorneys, Benoni
KP
Seabi & Associates, Pretoria
No appearance for the
Third Applicant
For the First
Respondent: Mr
Els
Instructed
by: Van
der Merwe & Associates, Pretoria
For the Second
Respondent: Adv.
M.T.K Moerane SC
Instructed
by: Gildenhuys
Malatji Inc., Pretoria
[1]
Zweni v
Minister of Law and Order of the Republic of South Africa
1993 (1) SA 523 (A).
[2]
Moch v
Nedtravel (Ply) Ltd t/a American Express Travel Service
1996 (3) SA 1
(A) at 10F-11C.
[3]
Philani-Ma-Afrika
v Mailula
2010 (2) SA 573 (SCA).
[4]
Intl
Trade Administration Commission v SCAW SA
(Pty)
Ltd
2012 (4) SA 618 (CC).
[5]
Para 52.
[6]
MEC for
Health, Eastern Cape and Another v Kirland Investments t/a Eye &
Lazer Institute
2014 3 SA 469 (CC).
[7]
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004 6 SA 222 (SCA).
[8]
The decision of the Electoral Commission was taken on 17 June 2015.
This was mischaracterized as 21 December 2015 in the papers.
The
letter dated 21 December 2015 was simply communicated the practical
effect of the decision of 17 June 2015.