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[2014] ZAGPPHC 129
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Montjane and Others v Moloto and Others (75993/13) [2014] ZAGPPHC 129 (20 February 2014)
REPUBLIC
OF SOUTH AFRICA
NORTH GAUTENG
HIGH COURT
PRETORIA
Case
no:75993/13
DATE:
20 FEBRUARY 2014
In
the matter between:
MZWANDILE
MONTJANE
..............................................................
FIRST
APPLICANT
AUBREW
DIAPOLENG NGWATLE
.........................................
SECOND APPLICANT
KOMOSASA
JONAS
MORABA
.....................................................
THIRD
APPLICANT
JAMES
KGASHANE MONYELA
..............................................
FOURTH
APPLICANT
ALFRED
TOONA
MATHABA
.........................................................
FIFTH
APPLICANT
MOGOANE
MANCHIDI
................................................................
SIXTH APPLICANT
FRANK
MONO
MAIBELO
.......................................................
SEVENTH
APPLICANT
EUGINE
EUGENT
KHOZA
...........................................................
EIGTH
APPLICANT
AND
NARIUS
MOLOTO
.........................................................................
FIRST
RESPONDENT
PAN
AFRICANIST CONGRESS OF AZANIA
.......................
SECOND
RESPONDENT
THE
TSHWANE METROPOLITAN MUNICIPALITY
...........
THIRD
RESPONDENT
THE
GREATER TUBATSE LOCAL MUNICIPALITY
…
........
FOURTH
RESPONDENT
THE
MARULENG LOCAL MUNICIPALITY
............................
FIFTH
RESPONDENT
THE
MAKHUDUTHAMAGA LOCAL MUNICIPALITY
............
SIXTH
RESPONDENT
THE
EPHRAIM MOGALE LOCAL MUNICIPALITY
.............
SEVENTH
RESPONDENT
THE
MUSINA LOCAL MUNICIPALITY
.................................
EIGHTH
RESPONDENT
THE
MOPANI DISTRICT MUNICIPALITY
.........................
NINETH
RESPONDENT
PHALA
WA PHALE KATSHELA
...........................................
TENTH
RESPONDENT
GERT
MASILELA
...
................................................
ELEVENTH RESPONDENT
MOSOTHO
MOEPYA N.O
…......................................
TWELFTH
RESPONDENT
THE
CHAIR PERSON OF THE ELECTORAL.
...........
THIRTEENTH
RESPONDENT
COMMISSION
JUDGMENT
BAQWA
J
[1]
This is an application which has been brought mainly as a result of
disagreements and factionalism which has occurred within
the Pan
Africanist Party. The result has been the expulsion of some members
which has been contested in the courts. The said expulsions
have in
turn affected the positions of some of the members occupying
positions in government.
[2]
The details of the on-going factionalism are apparent from the papers
filed by both parties and I do not propose to reiterate
them.
[3]
The essence of the application is to interdict the substitution of
the applicants as members of municipal councils cited as
respondents.
Such substitution would be based on an assumption that applicants are
no longer members of the PAC.
[4]
Part A of the application is intended to preserve the
status
quo
ante
by preventing the swearing in of new councillors by the respondent
municipal councils.
[5]
In Part B of the application, appellants intend to seek a review of
the decision of second respondent to suspend the applicants
from
membership of the second respondent and expelling them from
membership of the second respondent.
[6]
First and second respondents’ have filed an opposing affidavit.
This is despite the fact that a notice of intention to
abide the
decision of this court forms part of the papers before me. In my view
this apparent contradiction has no practical effect
as the parties on
both sides are members of the PAC and arguments about the status quo
of the second respondent would therefore
be academic.
[7]
The respondents in opposing the application have made submissions
about improper service and that according to them the matter
is not
urgent. They also submit that the relief sought is moot and
unsustainable.
[8]
In order to succeed in an application of this nature an applicant is
required to establish a prima facie right, a reasonable
apprehension
of irreparable harm if the interim relief is not granted, a balance
of convenience in its favour and the absence of
an alternative remedy
adequate in the circumstances.
[9]
Concerning a
prima
facie
right, the
applicants are members of various respondent municipal councils. They
obtained such membership by virtue of being members
of the PAC from
which they have now been allegedly suspended or expelled. The
underlying reason for the application is the expulsion
or suspension
but more pertinently the relief sought in Part A of this application
is the prevention of the swearing in of substitute
members in the
respondent municipal councils.
In
my view, members of the respondent councils does establish a
prima
facie
right which
applicants are entitled to protect.
[10]
Respondents’ counsel has argued that almost all the relief
sought by the applicants on an urgent basis is moot. She submits
that
all the applicants (except the sixth applicant) have already been
replaced on the respective municipal councils as a result
of the
declarations of the IEC.
[11]
The fault line in this submission is that it assumes the legitimacy
of the basis on which the IEC made its decisions. Applicants
strenuously dispute the legitimacy of the IEC decisions and submit
that the IEC has on some spurious basis preferred one of the
warring
factions within the PAC. Whilst I do not have to decide this issue in
making a ruling concerning Part A of this application,
I cannot adopt
a stance that assumes or accepts the legitimacy of the IEC
declarations. This is a matter to be considered in Part
B of the
application. For present purposes I do not consider applicant’s
case to be moot. Neither do I consider a decision
on present issues
to be abstract, academic or hypothetical.
See
JT Publishing (Pty) Ltd v Minister of Safety and Security
1996 12
BCLR 1599
(CC) at paragraph 15
[12]
Applicants’ counsel has referred to an unreported decision of
the South Gauteng High Court in which a similar application
was
launched under
Case
number 43892/2013 NS Pooe and Another v N Moloto and Others
.
Victor J did not find the issues to be moot and granted an order in
favour of the applicants. A councillor who was about to lose
his seat
has since resumed his duties as a councillor subsequent to that
order.
[13]
It bears noting that none of the applicant councillors were subjected
to a disciplinary hearing. Respondents have made the
allegations that
applicants were expelled from the party but have proffered no
evidence in that regard. Such expulsion would accordingly
be contrary
to the provisions of the PAC constitution which formed part of the
papers before me.
[14]
On the applicant’s version, the replacement councillors for
first, second , third, fifth and eight applicants have not
yet been
sworn in. Their situation is similar to that in the
Pooe
decision of the South Gauteng High Court and is accordingly
rectifiable. Whilst the swearing in process may not be necessarily
a
legal trigger of appointment, it is a significant pointer in the
process of appointment.
Section
26(2)
of the
Local Government Municipal Structures Act 117 of 1998
which provides that ‘’
A
person assumes office as a councillor when declared elected or when
appointment, as the case may be.’’ should be read
to
imply ‘’legitimately appointed’’
and compliance with all the necessary legal prescripts and procedures
having been followed.
[15]
The swearing in process for replacement councillors is imminent and
logically, applicants would not be afforded redress in
due course if
not granted interim relief. By necessary implication they will suffer
irreparable harm if interim relief is refused.
Harm will ensue not
only to their reputation but also in their loss of capacity to earn a
living. Further, the balance of convenience
favours the applicants
and this can be inferred from the possible consequences of applicants
losing their means of earning a livelihood.
[16]
In the result the following order is made:
Having
read the documents files of record and having considered the matter:
An
order is granted in terms of prayers 1, 2,3,4 and 5 of Part A of the
Notice of Motion.
S.A.M
BAQWA
(JUDGE
OF THE HIGH COURT)