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[2012] ZAFSHC 207
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Ramakatsa and Others v Magashule and Others (3453/2012) [2012] ZAFSHC 207 (26 October 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 3453/2012
M P RAMAKATSA AND 5
OTHERS
.......................................
Applicants
versus
E MAGASHULE AND 25
OTHERS
....................................
Respondents
_____________________________________________________
CORAM:
RAMPAI, J
_____________________________________________________
HEARD
ON:
11 OCTOBER 2012
_____________________________________________________
DELIVERED
ON:
26 OCTOBER 2012
_____________________________________________________
REASONS ON 13 NOVEMBER
2012
_____________________________________________________
[1] These were motion
proceedings. Initially the applicants envisaged a two-phased
litigation process. The relief sought was an
interim interdict
pending the finalisation of a review application. The application was
opposed by all the respondents.
[2] The purpose of the
interdict sought was to have the first twenty five respondents
provisionally restrained from politically
acting as the legitimate
members of the Provincial Executive Committee (PEC) of the African
National Congress (ANC) in the Free
State province. The applicants
complained that the process leading up to the ultimate provincial
election of such structure was
manipulated and abused; that the
principle of fair political play was flagrantly undermined and that
the election was not free
and fair.
[3] The purpose of the
review sought was to have the post election decision of the 26
th
respondent, as the mother body, whereby the PEC was recognised as the
lawful, authentic and representative leadership structure,
declared
invalid and annulled. The applicants complained that the 26th
respondent failed to consider their objections and grievances
against
the first respondent and twenty four others in an objective and
impartial manner. They contended, therefore, that such
a decision was
a reviewable administrative act. They sought to have such decision
annulled by the court, the PEC dissolved and
an interim structure
appointed by the 26
th
respondent to level the playing
field so that a true legitimate, authentic and representative
provincial leadership could be elected.
[4] The application was
launched on the 20
th
August 2012 and enrolled for the
initial hearing on Thursday, 6 September 2012. On that day the matter
served before Daffue, J.
By then the application had not yet been
served on the respondents save the 26
th
respondent who was
served on the 28
th
of August 2012.
[5] Notwithstanding the
fact that the first 25 respondents had not yet been served as on that
day, they were all legally represented,
so it would appear. By
agreement between the parties Daffue, J made the following order:
“
1. The
application is postponed to the 27
th
of SEPTEMBER
2012;
2. The respondents to serve and file
their notice of intention
to oppose, if any, within the time
limits as prescribed by the Rules of Court / High Court Act;
3. The respondents to serve and file
their opposing papers,
if any, within 15 days after serving
and filing their notice of intention to oppose;
4. This order is to be served on all
respondents;
No order as to costs.”
[6] The wording of the
order presupposed that the application had already been served on all
the respondents, which was in fact
not the case as on 6 September
2012. On Friday the 7
th
September 2012, in other words a
day after the aforesaid court order was made; the sheriff served the
copies of the application
on the rest of the respondents.
[7] On Thursday the 27
th
September 2012, the matter served before me. The applicants wanted to
have the matter postponed, but the respondents were against
the
proposed postponement. They rather wanted to have the main
application argued and dismissed with costs.
[8] Since September 27,
2012 fell during the recess: there were urgent applications to be
heard; the matter was not an urgent application
and I was the only
available judge, the matter could not be entertained. It had to be
postponed. To the delight of the applicants,
but to the dismay of the
respondents, I indicated to the legal representatives of the parties
what I was inclined to do. They then
asked me to excuse them for a
while.
[9] On their appearance
in court, the lawyers informed me that they had agreed on the
contents of a draft order. The agreed order
reads as follows:
“
The
application for the postponement of this matter having become
opposed and it being impossible for the Court to entertain it,
it is
postponed to
11
October 2012
for
consideration of the aspects which were, but for it being Court
recess, (sic) to be considered today.
The costs of this application are to
stand over for determination on
11 October 2012
.”
[10] On Thursday the 11
th
October 2012, the parties approached the matter from two
diametrically opposed angles. On the one hand Mr Wessels, counsel for
the respondents, submitted on the strength of the court order of 27
September 2012 that the proper approach to the matter was to
freeze
the time and to deal with the matter as if October 11 was September
27. Counsel wanted the court, first of all, to call
upon the
applicants to present their application for postponement as they had
wanted to do a fortnight earlier.
[11] On the other hand Mr
Mpofu, counsel for the applicants, sharply differed. He submitted
that the argument about the freezing
of the time was neither here nor
there. He went on to argue that October 11 was just that: October 11
and not September 27. He
argued that on October 11, unlike September
27, the applicants sought no postponement, but were ready to argue
the main matter,
something the respondents had wanted to do a
fortnight earlier.
[12] In the circumstances
I have to deal with the interlocutory saga of postponement
ante
omnia
. I shall revert to the main application. As regards this
sideshow, the 26
th
respondent abides. The relative notice
to this effect was delivered on the 11
th
October 2012.
[13] I have to revert to
the genesis of these proceedings. They were initiated on the 20
th
August 2012 by way of ordinary motion proceedings. The matter was
placed on the roll of Thursday the 6
th
of September 2012.
On that day it turned out that the respondents, with the exception of
26
th
respondent, had not been served. Although Mr
Rautenbach appeared and informed the court that he appeared on behalf
of the first
25 respondents, it was not placed on record as to which
attorney had briefed him. Seeing that the sheriff’s returns of
service
were still outstanding and seeing that no name of any
attorney had formally been placed on record as the legal
representative of
those respondents, the respondents were legally not
before the court on the 6
th
September 2012.
[14] In the absence of
proof of service, the respondents had to be deemed to be unaware of
the pending application. Such proof is
usually established by the
filing of either a positive return by the sheriff or by the filing of
a formal notice of intention to
oppose. Both were missing in the
current matter on 6 September 2012. Daffue, J clearly appreciated
that he could not act on the
assuring words of Mr Rautenbach alone in
those circumstances. He accordingly directed that the respondents
file the required notices
within the time limits as prescribed by the
rules of court –
vide
par 2 of the court order per
Daffue, J. All the same Mr Rautenbach was, as a matter of courtesy,
recognised as the legal representative
of the respondents. The matter
was then postponed.
[15] The very next day,
on Friday 7 September 2012, the sheriff served the application on the
first twenty five respondents at the
office of the ANC in
Bloemfontein. From that date of service the rest of the respondents
were entitled to a period of 10 court
days, within which to serve and
file the required notice(s) of intention to oppose. However, they all
waved their procedural right
by filing such notices on the 14
th
of September 2012, seven calendar days or five court days earlier
than the rule required. Then the matter became an opposed
application.
Nonetheless it remained an ordinary and not an
extraordinary urgent application.
[16] After delivering the
notices of intention to oppose, the respondents were entitled to a
fifteen court day period, from the
14
th
of September 2012
within which to deliver their answering affidavits if they wished –
vide
par 3 court order per Daffue, J. Such procedural right
was due to lapse on Monday, 1
st
October 2012, in other
words, four calendar days after the date (27 September 2012) to which
the matter had been postponed.
[17] The applicants were
patiently waiting, with expectation, to receive an answering
affidavit from each of the respondents before
Tuesday the 2
nd
of October 2012. Clearly they did not expect the matter to be argued
before that day. Great was apparently their surprise on 21
September
2012 when the fourth respondent’s affidavit was served. The
fourth respondent was and still is the deputy secretary
of the ANC in
the Free State province. She made the affidavit for and on behalf of
the first twenty five respondents. However hers
was not an answering
affidavit as envisaged in the rule or in par 3 of the first court
order per Daffue, J. She did not deal with
the substantive merits.
She confined her affidavit to certain alleged objectionable
procedural features of the application.
[18] She characterised
the dual purpose of her unexpected affidavit as follows:
“
2.1 I wish,
at the outset, to record that this affidavit is not meant or intended
to address or respond to the various allegations
of irregularities
upon which the applicants purport to rely and is only meant and
intended to support my (and the other relevant
respondents’)
opposition of a postponement of the application on 27 September 2012
and to support the submissions which will
be made on my behalf that
the application should then be dismissed with costs.”
That then is the nature
of the affidavit before me.
[19] There was no
substantive application by the applicants for the postponement of the
matter on Thursday, 27
th
September 2012. They expected
that the matter would be automatically postponed. Their expectation
stemmed from the court order
by Daffue, J. The respondents correctly
anticipated that the applicants would make such an application as
evidence by their composite
affidavit through the fourth respondent.
The respondents pre-empted that the applicants would move such an
application. Indeed
the applicants intended to do just that, though
on an informal basis, and seemingly expected no opposition from the
respondents
seeing that the main application had become opposed.
However, the respondents had other ideas about the matter.
[20] The relief sought by
the respondents was not spelled out in a notice of motion. As a
matter of fact there was no notice of
motion but a mere filing sheet.
In the absence of such notice, I had to read the fourth respondent’s
affidavit to ascertain
precisely what relief the respondents sought.
The respondents intended to resist the anticipated application by the
applicants
to have the matter postponed, but to insist that it be
heard on the 27
th
September 2012 and to apply that it be
summarily dismissed with costs.
[21] The respondents’
deponent was at pains to give critical reasons as to why the
respondents decided to launch a provisional
application to have the
main application heard and dismissed with costs on Thursday the 27
th
September 2012. She said:
“
Although, as
I shall attempt to demonstrate below, this application, if it should
be compared to a train had never left the station,
I respectfully
submit that, even if it has, it has been derailed to such an extent
that it cannot be placed back on track and should,
for the
aforementioned reasons alone, not be, as the applicants are bound to
apply for, postponed, but be dismissed”
[22] The first
respondent’s affidavit was described as a provisional opposing
affidavit –
vide
the
filing sheet. It was similarly labelled in its own headnote. Since
the affidavit of the respondents was not really an answering
affidavit and the application was not preceded by any formal
application by the applicants to have the matter postponed, the
procedure
adopted by the respondents boiled down to a new matter,
albeit still an interlocutory one. As such one would have expected it
to
be brought by way of a notice of motion and a supporting
affidavit. As regards the question of postponement, this is how the
affidavit
must be interpreted. If the procedure adopted by the
respondent is generously interpreted in this manner, then the
affidavit of
the applicants described as the responding affidavit was
then supposed to be regarded as an opposing affidavit. Those two
affidavits
should, in my view, be so considered within the limited
context of the question of postponement only.
[23] Mr Mpofu contended,
on the strength of the first court order per Daffue, J, that the
matter had to be postponed on Thursday,
27 September 2012. He argued
that such automatic postponement was justified by virtue of a prior
agreement between him and Mr Rautenbach.
On the contrary Mr Wessels
contended that the respondents were not precluded by that court order
from resisting the postponement
of the main application on 27
September 2012 and demanding that it be heard without any further
delay.
[24] A transcript of the
court proceedings of Thursday the 6
th
September 2012 was handed in as exhibit “b”
on the 27
th
September
2012. The following exchange between Daffue, J and Mr Mpofu was
recorded:
“
COURT
Have
you got a draft? I don’t have.
MR ?
M’lord but I
now notice in the draft that the agreed date is 27 September and your
Ladyship (sic) has pointed out earlier
that that falls outside the
term. May I just ask that the matter stand down so I can get further
instructions?”
[25] After that brief
exchange, the court then briefly adjourned. When the court resumed Mr
Mpofu continued to address the court
about the draft as agreed
inter
parte
s. He said:
“
May it
please the court M’lord, I appear for the applicants in this
matter. M’lord I have been furnished with a draft
order. In
terms of the draft the application is to be postponed to 27 September
2012.
This
will be on the unopposed roll and in the event that the matter then
becomes opposed, the attorneys will make sure that the
judge on duty
does not read the papers unnecessarily and that day will be utilized
to postpone … to the (sic) postponed
roll on an agreed date.
Would the court then be inclined to have a look at the order? As the
Court pleases. I also understand that my learned friend Rautenbach
appears for one of the respondent parties.”
(the highlights are mine)
[26] By the expression:
“... to the postponed roll” as used in the aforegoing
quotation, counsel obviously intended
to mean: “to the opposed
roll”.
[27] Daffue, J then
enquired from Mr Rautenbach whether “that” was correct.
Mr Rautenbach’s answer was positive.
He confirmed that he
appeared on behalf of the first twenty five respondents. I think the
answer was narrower than the question.
I think, and I might be wrong,
that the question went far more than the mere representation of the
respondents. I understood the
question by Daffue, J to mean whether
the representations, as a whole, made to the court by Mr Mpofu, were
correct.
[28] The answer given was
more important for what Mr Rautenbach did not say than what he said.
He did not object that the matter
be postponed to the 27
th
September 2012; that the matter would merely be postponed to the
unopposed roll of that particular day; that the judge doing recess
duty on that particular day would be informed by the attorneys, if
the matter became opposed, not to unnecessarily read the papers;
that
on that particular day the matter would be postponed once again to a
suitable date, and that, should his clients decide to
oppose the
matter, it would then be placed on the opposed roll for argument
after 27 September 2012.
[29] What clearly emerges
from the aforegoing undisputed passages of the proceedings in
question was that it was agreed. At least
by the legal
representatives that September 27, 2012 was a tentative date. It was
understandable why such an agreement was reached.
Firstly, it was and
still is a practice in this division that only unopposed and urgent
applications were heard during the recess.
The current matter did not
come to court as an urgent application in terms of Rule 6(12). It
came as an ordinary, non-urgent application.
[30] Secondly, the
sheriff had not yet served the application on the first twenty five
respondents. On 6
th
September 2012 there were still a few
uncertainties about the future of the matter. Since the sheriff’s
returns of service
were still outstanding, it was uncertain as to by
when each of the respondents would be served, by when each of the
respondents
would, in terms of Rule 6, be required to file notice of
intention to oppose and by when the 10 day procedural right of the
last
served respondent would expire.
[31] It also has to be
borne in mind that on the Thursday 27
th
September 2012, as
a recess duty judge, I was not prepared to hear the matter because it
was not an urgent application and it had
become opposed. That the
matter might become opposed was clearly foreseen by the legal
representatives on 6 September 2012 which
was why they made provision
for such a situation then. In any event, even if the applicants
wanted no postponement, but wanted
to argue the matter just as the
respondents wanted to on the 27
th
September 2012, it was
practically difficult for me to entertain the matter after hours.
Besides that, I had three opposed and
urgent applications to deal
with that particular afternoon.
[32] Notwithstanding any
thing else the fact remains that on 6
th
September 2012, it
was agreed that the main application would not be heard on the 27
th
September 2012, but that it would be postponed. The respondents
probably heard about the pending matter from somewhere or got to
know
about it through the press. Before the application was served on
them, they apparently appointed an attorney and briefed adv
Rautenbach to represent them. Therefore, they were bound by the
agreement concluded on their behalf by those lawyers.
[33] The mere fact that
the respondents subsequently discovered the alleged irregularities
did not, in my view, entitle them to
resile from such agreement.
Similarly they could not without a substantive application circumvent
the first court order made on
the day in question by virtue of an
agreed draft.
[34] I am persuaded by Mr
Mpofu’s submission that the steps taken by the respondents to
oppose the postponement were unusual
and unconventional. It was
unorthodox to renege on the agreed deal in such a procedurally
defective manner, where reliance was
placed on the so-called
provisional opposing affidavit, instead of a formal application on a
proper notice of motion with a supporting
affidavit. I am of the view
that where a party seeks a relief, which is
prima facie
at
variance with an earlier excitant court order, as in this instance,
such a party must approach the court by way of a substantive
application to justify why the hearing of argument had to be
anticipated. It was not done
in casu
. By 27 September 2012 the
answering affidavit(s) were not due as yet.
[35] The applicants,
rightly or wrongly, got the postponement they wanted on 27
th
September 2012. Obviously I caused the matter to be postponed for
various reasons. But what the reasons were was of no significance.
What was significant was the fact the matter was in fact postponed.
By virtue of the prior agreement which was substantially incorporated
into the court order, the postponement was justified. It should be
apparent from my reasoning here that even if on 27
th
September 2012 I had heard the argument for and against the
postponement, I would still have ruled in favour of the applicants
then as now.
[36] Two weeks later, on
Thursday the 11
th
October 2012, the applicants no longer
sought any further postponement. They were ready to argue the matter.
The question of postponement
was water under the bridge. The stance
of the respondents was overtaken by events. I simply could not
logically rewind the hands
of time. Time did not stand still. October
11 could not logically be treated as though it were September 27.
This was not an appropriate
matter where time had to be frozen.
However, even if it were, it would still not have made a difference
to the conclusion I have
come to.
[37] In the circumstances
I am inclined to dismiss, with costs, the application of the
respondents for the earlier hearing of the
matter. The matter was not
ripe for argument on Thursday, 27
th
September 2012 being
the date on which the respondents wanted it argued.
[38] Now I turn to the
main application. Initially the applicants intended seeking relief in
the form of an interdict as an interim
relief. On 11
th
October 2012 Mr Mpofu abandoned such relief and urged me to consider
the ultimate relief,
viz,
the review application. His
principal submission was that the applicants had made out a case for
the grant of the relief sought
in accordance with the second leg of
the notice of motion.
[39] Mr Wessels differed.
He principally submitted that the application was riddled with
defects so materially serious that it ought
to be dismissed on that
ground alone. Seeing that the respondents did not put up a defence on
the substantive merits, counsel urged
me, first and foremost, to
entertain their procedural objections and, if needs be, to afford
them an opportunity to file an answering
affidavit to deal with the
substantive merits, should their procedural challenge fail.
[40] I allowed Mr Mpofu
to address me on both the preliminary points and the substantive
merits even though Mr Wessels was not properly
armed with an
answering affidavit to launch an orchestrated and sustained attack on
the enemy on that front. The 26
th
respondent was served on
28
th
August 2012. As a
peregrinus
the 26
th
respondent had time until 8
th
October 2012 to file its
answering affidavit. The first respondent was served on 7
th
September 2012. As an
incola
, the first respondent had time
until 1
st
October 2012 to file his answering affidavit.
The matter was argued before me on 11
th
October 2012. By
then none of the respondents had filed an answering affidavit to deal
with the substantive merits.
[41] Mr Mpofu contended
that the respondents deliberately refrained from addressing the
substantive merits. He submitted that they
all had adequate time to
do so. Therefore, he urged me to give them no more time. The
contention and the submissions were correct.
The respondent had ample
opportunity to deal with the substantive merits, but elected not to
do so. Dealing with the procedural
issues; first in one court sitting
and then postponing the matter to another court sitting, to deal with
the real substantive issues,
clearly entailed great expense and thus
undesirable piecemeal litigation.
[42]
In the case of
DEMOCRATIC ALLIANCE AND OTHERS v ACTING
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS
2012 (3)
SA 486
(SCA)
par [49] Navsa JA said the following
about piecemeal litigation:
“
Generally
courts should be slow to allow parties to engage in piecemeal
litigation, with attendant delays. Put differently, courts
should be
intent on obviating prolonged litigation. This case has shown
precisely how undesirable for the administration of justice
to-ing
and fro-ing between the high court and this court over a long period
of time, without the merits being finally adjudicated,
can be. Courts
should be circumspect when suggestions are made about the procedure
to be followed on the basis that it might shorten
rather than
lengthen litigation.”
[43]
In
BADER AND ANOTHER v WESTON AND ANOTHER
1967
(1) SA 134
(CP
D) per Corbett J and
STANDARD
BANK OF SOUTH AFRICA LTD v RTS TECHNIQUES AND PLANNING (PTY) LTD AND
OTHERS
1992 (1) SA 432
(TPD)
per Daniels
J, it was held that established practice required that a respondent
should file answering affidavit on the substantive
merits,
irrespective of whether a preliminary point was to be argued, and
cautioned that a respondent should not optimistically
rely on
subjective confidence in the expected success of the preliminary
challenge. See also
RANDFONTEIN
EXTENSION LTD v SOUTH RANDFONTEIN MINES LTD AND OTHERS
1936 WLD 1
per Greenberg J.
[44] In the light of the
view I take of the matter it became desirable and logical to first
consider the preliminary points as raised
by the respondents. The
first preliminary point raised
in limine
by the respondents
concerned the publication of the notice whereby the relief sought by
the applicants was brought to the attention
of interested third
parties and the public invitation extended to them. Before I proceed
to examine the grounds of the objection,
it seemed necessary to give
an overview of the rules applicable to service of legal processes.
[45] The general method
of service of legal proceedings are governed by uniform rule 4. Sub
rule 1(a)(vii) provides that where any
voluntary association is to be
served, service shall be effected at the place of business of such a
voluntary association in accordance
with section 1(a)(ii), otherwise
service shall be effected on the chairperson or secretary of its
committee.
[46] Where two or more
persons are sued in any joint representative capacity, over and above
those representative capacities expressly
specified in rule 4(1),
service shall be effected upon each of them in any manner set forth
in the rule –
vide
uniform sub rule 1(a)(ix).
[47] There is provision
made in uniform rule 4(2) for the departure from ordinary service
methods as prescribed in uniform rule
4(1). If it is practically not
possible, in any given circumstances, to effect ordinary service in
terms of uniform rule 4(1),
the court may, upon application by a
person wishing to cause special service to be effected, give
directions as to how the envisaged
legal proceedings may best be
brought to the attention and knowledge of third parties with possible
interest in the court order
sought –
vide
uniform rule
4(2).
[48] In general every
application has to be brought on notice of motion, supported by an
affidavit as to the facts upon which the
applicant relies for the
relief sought, save where otherwise provided by law –
vide
uniform rule 6(1). Obviously this applies to an application for
judicial leave for substituted service in terms of uniform rule
4(2)
as well.
[49] Where relief is
claimed against any specific person or where it appears necessary or
proper to give notice to any other person,
notice of motion
concerning such an application, shall be addressed to both the
registrar and such other person otherwise it shall
be addressed to
the registrar only –
vide
uniform rule 6(2).
[50] Every application
except one brought
ex parte
, shall be brought on notice of
motion as near as may be in accordance with form 2A of the first
schedule, and true copies of the
notice and all annexures thereto
shall be served upon every person to whom notice thereof needs to be
given –
vide
uniform rule 6(5).
[51] Any proceedings for
judicial review have to be institute without unreasonable delay
within 180 days after the date on which
internal remedies have been
concluded or after the date on which the aggrieved person was
informed of the administrative action
taken or became aware of such
action and the reason for it or might reasonably have been expected
to have become aware of such
action and such reasons –
vide
section 7(1)
Promotion of Administrative Justice Act, 3 of 2000
,
which deals with the procedure for judicial review.
[52] The judicial review
of an administrative action, which is obviously an external remedy,
is subject to the following statutory
provisions:
“
7
(2)
(a)
Subject
to paragraph
(c)
,
no court or tribunal shall review an administrative action in terms
of this Act unless any internal remedy provided for in any
other law
has first been exhausted.
(b)
Subject to paragraph
(c)
,
a court or tribunal must, if it is not satisfied that any internal
remedy referred to in paragraph
(a)
has been exhausted, direct
that the person concerned must first exhaust such remedy before
instituting proceedings in a court or
tribunal for judicial review in
terms of this Act.
(c)
A court or tribunal may, in
exceptional circumstances and on application by the person concerned,
exempt such person from the obligation
to exhaust any internal remedy
if the court or tribunal deems it in the interest of justice.”
[53] Section 27 of the
Supreme Court Act 59 of 1959 (now the High Court Act) deals with the
time allowed for appearance:
“
The time
allowed for entering an appearance to a civil summons served outside
the area of jurisdiction of the court in which it
was issued shall be
not less than-
(a)
twenty-one days if the summons is to be served at a place more than
one hundred miles from the court out of which
it was issued; and
(b)
fourteen days in any other case.
[54] Now I proceed to
examine the grounds on which the first objective was premised. The
objection concerned the publication in
the press of the notice of
motion. The strongest of the critiques that could be levelled against
the publication of these motion
proceedings in the print media was
that it was not judicially sanctioned. The applicants, on their own
free accord, caused the
notice to be published. Since no special
leave to serve interested parties by publication in the press, was
first sought and obtained
from the court and since no appropriate
directions whatsoever were first given by the court – the
notice was thus published
in contravention of uniform rule 4(2).
[55] It follows,
therefore, that the applicants also violated the provisions of
uniform rule 6(1). The rule provides that every
application,
obviously this includes an application for special leave in terms of
uniform rule 4(2), shall be brought on notice
of motion supported by
a sworn statement as to the facts upon which the applicant relies for
the relief sought. In this matter
no such substantive application was
made.
[56] The applicants
themselves reckoned, rightly or wrongly, that there were three
identifiable classes of third parties with a
potentially direct and
substantial interest in the relief sought, namely: the first, second
and third classes who were to be found
among the readers of “The
Star”, “Daily Sun” and “Die Volksblad”,
but not necessarily in that
respective order. Notwithstanding the
fact that the applicants themselves had identified those three
newspapers as being the preferred
newspapers of such classes of
interested third parties – it was uncertain as to whether the
notice had indeed appeared in
two of those newspapers, namely “The
Star” and “Daily Sun” as it did in “Die
Volksblad”. The
question which then arose on my mind was
whether in those circumstances it could be said, with certainty, that
the unauthorised
notice had probably come to the knowledge of those
targeted classes. It appeared to me, therefore, that uniform rule
6(2) was not
complied with. If I am correct on this point, it follows
that those two classes of interested thirds were prejudiced.
[57]
The court, if satisfied that none of the ordinary methods of service
is likely to bring the proposed proceedings to the attention
of the
potentially interested thirds, may authorise an alternative method of
service and give appropriate directions –
vide
CONSANI ENGINEERING (PTY) LTD v ANTON STEINECKER
MASCHINENFABRIK GmbH
1991 (1) SA 823
(T).
In
the confirmatory affidavit made by Mr Vollenhoven, in support of the
affidavit by the 4
th
respondent, he averred, and the applicants
admitted, that notwithstanding the press invitation to the interested
thirds, the applicants,
through their attorney, refused to furnish
many interested thirds with copies of the main application. By their
own admission their
attorney made it publically known to the
multitudes of interested thirds, who had probably travelled from all
over the province
to obtain free copies thereof, that such copies
would only be furnished provided those who demanded such copies
produced proof
that they had given written notices of their intention
to oppose the application.
[58] The applicants and
their attorney strangely and belatedly called upon the interested
thirds to demonstrate their interest in
the matter by producing
written notices of their intention to oppose, before they could be
given copies of the application. But
the law required the converse.
It was contended on behalf of the applicants that the condition was
reasonably necessary to curtail
costs. I was not impressed by the
contention. It was a hollow argument. Firstly the interested thirds
had to be served, first and
foremost, so that they could make
informed decisions whether to oppose the matter or not. Had the
applicants first applied in terms
of uniform rule 4(2) read with
uniform rule 6(1) the court would not have given such an untenable
direction or allowed such a condition
to be imposed by the applicants
on any interested third party.
[59] The service of any
court process initiating any legal proceedings, such as a notice of
motion, has to be effected by giving
notice of such an application to
the respondent before (s)he can be legally called upon to give notice
of intention to oppose such
an application. That procedure is a
cornerstone of our legal system. When relief is claimed against any
person, notice of motion
initiating such an application has to be
given to such a person. The potential respondent’s mere
knowledge, through the press
that an application has been issued in
which an order adverse to his interests would be sought, does not
constitute service. It
can never, in my view, substitute the required
service.
[60] Therefore it was
impermissible to require interested thirds such as Mr Vollenhoven and
others to first oppose before they could
be served. The rule requires
the very opposite of what the applicants, through their attorney,
erroneously demanded from the interested
parties. Such a flawed
procedure could not be justified on account of the high costs,
however prohibitive they could have been.
The costs of serving this
legal process legally had to be borne by the applicants. By inviting
interested parties to the office
of their attorney the applicants
imposed an onerous financial burden on such third parties.
[61] Secondly the
argument of the applicants failed to take into account the fact that
the interested thirds themselves had made
financial sacrifices by
travelling at their own expense, presumably from various places in
the province to the office of the attorney
for the applicants, who
had invited them, to facilitate easy personal service of the
important application upon them. They were
unceremoniously turned
away. The majority of them apparently never went back with the
notices as demanded by the attorney for the
applicants. The published
notice or invitation in the press was therefore defective and the
conduct of the attorney for the applicants
improper. From the outset
the applicants embarked upon a highly irregular process which had an
adverse impact on the procedural
rights of many members of the ANC
across the length and width of the province.
[62] The applicants were
not entitled to embark on a special method of service other than the
ordinary methods provided in uniform
rule 4. From a procedural law
perspective the unsanctioned press publication of a structurally very
defective notice of motion,
which was calculated to be a substituted
service, was entirely devoid of legal consequences. Whatever
resemblances of efficacy
the unauthorised process might have had,
were completely eroded by the misguided demand for the delivery of
the notice to oppose
before service of the application. In my view
that was the high watermark of the cynical abuse of the court
processes –
HUDSON v HUDSON AND ANOTHER
1927 AD
259
and
BEINASH v WIXLEY
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA).
[63] Service of an
application on all interested thirds before any relief had been
granted was, subject to certain exceptions, essential
and a
fundamental tenet of the
audi alteram partem
principle –
vide uniform rule 6(2) which expressly requires that wherever it is
necessary or proper to give any person notice
of an application,
notice of motion shall be addressed to both the registrar and such
person.
[64] It has been held
that where legal proceedings have been begun without due citation of
the defendant (or the respondent), the
subsequent proceedings are
null and void and that any judgment given pursuant to such
proceedings is if no force and effect in
law. In such a situation an
interested but uncited party has a right to have the offensive
proceedings annulled –
vide
DADA v DADA
1977 (2) SA 287
(T).
[65] In the circumstances
I have no hesitation in declaring the aforesaid press publication,
purportedly as a form of substituted
service, to be null and void and
thus of no legal consequences whatsoever. This completes my
consideration of the first objection.
[66]
The second preliminary point raised
in
limine
by the respondents concerned the
manner in which the specified individuals expressly cited by their
names from the second to the
25
th
respondents, were served. All in all there were 26
respondents cited in the current matter. The ground of the objection
was that
none of them, save for the first and the last respondents,
were served with the complete application. It was common cause that
24 of the 26 respondents were not provided with bundles “a”
and “b” which, in essence, formed part of the
annexures
to the application.
[67]
The applicants contended that since the first respondent, as the
chair of the PEC, and the 26
th
respondent, as the voluntary association of which
all the 25 respondents were members, it was legally unnecessary to
serve each
of the remaining 24 respondents with a complete copy or
set of the founding application.
[68]
The applicants expressly cited 26 and not 2 respondents and claimed
relief from each one of them. Therefore, the applicants
were estopped
from making such differentiation in the manner the respondents were
supposed to be served with the founding papers.
By citing, as they
did, all the 26 respondents as distinct individuals and not as a
collective in terms of uniform rule 4(1)(a)(vii),
the applicants
tacitly acknowledged that it was necessary and indeed proper to give
specific notice of the current application
to each of them –
vide
uniform
rule 6(2).
[69]
In my view service in terms of rule 4(1)(a)(ii) on the 26
th
respondent as a voluntary association or service
in terms of rule 4(1)(a)(vii) on the first respondent as the
chairperson of the
PEC could not, on the facts, be construed as
proper service on the remaining 24 respondents. The irregular service
on those 24
respondents could not be redeemed in that manner. The
applicants chose to cite them in their representative capacities as
individual
members of the PEC which represented the ANC in the
province, not as a single entity led by the first respondent.
Therefore, the
applicants were barred from contending that service on
the first respondent amounted to service on all the respondents. Each
of
them had to be properly served – rule 4(1)(a(ix).
[70] It was undisputed
that each of the respondents had a substantial and direct interest in
the ultimate review order prayed for
by the applicants. Such an
unequal treatment of the respondents could not, in my view, be
justified on any reasonable grounds.
The mere fact that the
applicants, subsequent to the service of the respondents’ heads
of argument, delivered ten more copies
of the two bundles to the
attorney for the respondents did not retrospectively cure the defects
in the earlier service of the founding
papers on the 24 respondents.
[71]
It has to be mentioned again that the applicants caused this review
application to be issued and to be enrolled before it had
been served
on 25 of the respondents. In
TLADI v GUARDIAN NATIONAL
INSURANCE CO LTD
1992 (1) SA
76
(T) at
77A, the court per Botha J determined that the crucial question in
the application was whether an ordinary application could
be
considered to have been made if it had merely been issued, but not
served. The court considered the applicants’ contention
that
mere issue of an application was sufficient. However, it found that
there was no authority for such proposition. Bearing in
mind the
distinction between procedural steps over which an applicant has
control, such as the issue and service of process, on
the one hand,
and steps over which an applicant has no control, like dates of
hearing and postponements, on the other hand, the
learned judge
concluded, and I am in respectful agreement, that it was not too
onerous to require of an applicant not only to issue
an application,
but also to serve it. The decision was sound and accorded well with
the normal procedural course of motion proceedings
as envisaged in
uniform rule 6(2).
[72] The instant matter
was placed on the roll for the first time on 6 September 2012. By
then the vast majority (96%) of the respondents
had not been actually
served. The application had only been issued, but not served. Because
it had not been served, there was legally
no application made against
those 25 unserved respondents. The applicants did not take effective
control over the service of the
application –
TLADI
’s
decision,
supra
. Moreover, the one and only respondent who had
been served by then was the 26
th
respondent. However, even
the service on that particular respondent was not properly served in
accordance with section 27, High
Court Act, 59 of 1959, as amended.
The 26
th
respondent, as an
peregrinus
of this
court, was entitled to a maximum of 21 court days within which to
deliver notice of intention to oppose.
[73] Such a procedural
right was also undermined by the applicants in that the 26
th
respondent was called upon to deliver such notice within a
drastically and erroneously reduced period of ten court days only. Mr
Mpofu countered Mr Wessels’ objection. He contended that
notwithstanding the apparent defect in the notice of motion and
the
resultant short service (or notice), the 26
th
respondent
nonetheless received the application and reacted to it within a
period of about eight court days. That being the case,
counsel
submitted that the real purpose of serving court process was not
defeated by the failure of the applicants to comply with
section 27.
He further submitted that, in the circumstances, the 26
th
respondent must be regarded to have waived its procedural right,
which entitled it to a period of 21 court days in which to decide
what line of action to take. There was force in those submissions.
[74] A pretty much
analogous factual situation arose in the case of
CONSANI
ENGINEERING
,
supra
, where Goldstein J held, at page
824 F:
“
It
seems to me, however, that, once a defendant has entered appearance
to defend as it has done in the present matter, non-compliance
with
the Rules as to service and with s 27 becomes irrelevant.”
That was a complete
answer to the objection in that case.
[75] It is so that the
law requires actual and not mere potential prejudice before an
objection that a legal process was so irregular
as to warrant its
setting aside by the court. In this particular instance, the
magnitude of the irregularity did not entail proven
actual prejudice.
However, an important feature of this case cannot be ignored. Here it
was shown that through the breach of section
27, cumulatively and not
singularly considered, together with other breaches of the rules,
that the applicants had displayed a
regular pattern of cynical abuse
of the legal process. The courts have to frown upon such repeated
abuses of the rules. This disposes
of the second objection raised by
the respondents.
[76] As regards the third
objection the respondents contended that the applicants had failed to
specifically cite the Branch Executive
Committees (BECs) of the ANC
in the province. Such failure, so submitted Mr Wessels, constituted
fatal non-joinder of a very important
structure of the organisation.
[77] The branches occupy
a vital position in the structural hierarchy of the ANC. They are
like points of entry into the political
arena of the membership of
the organisation. All the rank and file members in good standing
belong to one or other branch. Members
of the organisation rise from
the BEC through the ranks to the NEC, the supreme structure of the
organisation. From the BEC, as
the foundational structure, delegates
are elected, once every five years to represent the various branches
at the nine elective
provincial conferences where members of the PEC
are elected.
[78] Once the question of
joinder is raised in this circumstances there can be only one answer
to it, to use the words of Schreiner
JA in
COLLIN v TOFFIE
1944 AD 456
at 520. It would appear that the Branch Executive
Committees should have been afforded an opportunity of being heard on
the point,
namely the ultimate review of the outcome of the
provincial elections. The rationale of the question of joinder is
that it is a
basic segment of the
audi alteram partem
rule, a
normative rule informed by the dictates of substantial justice in the
peculiar circumstances of a particular case. One
essential principle
of our law is that the court should not make an order that may
prejudice the rights of third parties not before
it. See
DADA
,s
case,
supra
, at page 288 C – E.
[79] In this instant
matter it was common cause that many, third parties who showed
interest, were turned away. Who they really
were, precisely what
legal interest each one of them had in the matter and what the
magnitude of their
prima facie
interest was, were all
questions that could not be ascertained
ex post facto
when the
matter was argued before me.
[80] In the circumstances
and in view of the undeniable fact that the conduct of the applicants
was responsible for the disappearance
of a huge number of potentially
interested third parties, the attendant uncertainties and the
potential prejudice occasioned by
the conduct of the applicants, I
have to assume that all those individuals had a substantial and a
direct interest in the outcome
of the order sought. Their interest
was clearly frustrated by the applicants.
“
The
question of joinder should surely not depend on the nature of the
subject-matter of the suit, as some of the head-notes I have
referred
to would seem to imply,
but
-
whether the suit relates to a will, an aqueduct, a partnership or
anything else -
on
the manner in which, and the extent to which, the Court's order may
affect the interests of third parties
.”
(my own emphasis)
See
AMALGAMATED
ENGINEERING UNION v MINISTER OF LABOUR
1949 (3) SA 637
(A) at
657, per Fagan AJA, as he then was.
[81] At every such
provincial conference, in this instance Parys, a provincial list of
elected delegates to the elective national
conference, in this
instance Mangaung, is compiled and submitted to the
secretary-general. At such national conference the national
leadership of the organisation, NEC, is elected. Since the ANC is the
current ruling party, its president becomes the State President
of
the Republic of South Africa. Here lies the importance of the matter.
About it the parties were agreed.
[82] It follows from the
aforegoing exposition of the ANC organisational hierarchy, that the
BECs, particularly those that were
implicated in the numerous reports
and complaints lodged with the former provincial secretary, Mr
Besani, earlier this year, have
a direct and substantial interest in
the relief, primary or ultimate, sought in this matter. It stands to
reason that annulling
the Parys election, declaring the current PEC
illegitimate and ordering the 26
th
respondent to dissolve
it immediately, would have profound adverse impact on constituent
branches and their branch executive committees.
[83] The grant of the
order sought by the applicants would have resulted in the denial of
the rights of the affected branches to
show whether or not they
factually and lawfully existed; to show that they were functionally
operative or not; to show that they
had properly held branch
elections in accordance with the domestic rules, procedures,
practices and processes as laid down in the
constitution of their
organisations and to show whether or not the delegates they had sent
to the provincial elective conference
were their
bona fide
members and authentic representatives of their branches. The
applicants should have been aware that the ultimate relief they
sought,
threatened to undermine the voting rights at certain branch
levels. In my view, the citation of such branches was essential.
[84] In the case of
VRYSTAATSE LEWENDE HAWE KOÖP BPK v OLDEWAGE EN ‘N
ANDER
1965 (4) SA 16
(O) the applicant unsuccessfully opposed
the intervention of an interested third party who had applied to be
joined. The case of
the intervening third party, who was slotted in
as the second applicant, was that he had a claim in the proceeds of
the harvest,
which the first applicant was claiming from the first
respondent. The second applicant, just like the first applicant,
wanted to
have the first respondent permanently interdicted from
delivering a portion of the proceeds of the harvest in dispute, to
the second
respondent. The court allowed the third party to join,
despite the opposition of the first applicant on the ground that
Groenewald,
the third party, had not shown a
prima facie
case
that he had a legal interest, in the outcome of the matter.
[85] In
AMALGAMATED
ENGINEERING UNION v MINISTER OF LABOUR
1949 (3) SA 637
(AD)
on page 659 Fagan AJA said the following about the question of
joinder:
“
Indeed
it seems clear to me that the Court has consistently refrained from
dealing with issues in which a third party may have a
direct and
substantial interest without either having that party joined in the
suit...”
The interests of the
branches in the validity of the provincial elections certainly
invited the question whether they should not
have been afforded an
opportunity of being heard before the provincial elections were
reviewed, set aside and the provincial executive
committee defunct.
[86] Consequently any
decision which might have been taken by any Branch Executive
Committee prior to and in connection with the
elective provincial
conference, held at Parys, and any subsequent decisions taken by the
Branch Executive Committee, pursuant to
the resolutions, directions
or orders of the Provincial Executive Committee might also be tainted
by an element of the alleged
illegality and irregularities. Since the
order may render the entire organisation in the province
dysfunctional, I am of the firm
view that notice had had to be given
to all those who had demonstrated their interest in the matter.
[87]
In the circumstances I am persuaded that non-joinder, if not
of all, then at least of certain specific branch executive
committees,
constituted a material procedural defect in the
application. I would, therefore, uphold the third objection.
[88] By the same token,
it was contended on behalf of the respondents that the branch
delegates who were elected, whether regularly
by truly representative
and authentic branches, or irregularly by the alleged fake,
undemocratic and opportunistic so-called parallel
branch structures,
should have been identified, specified, cited and joined as
respondents. There was substance in the submission.
In my view there
was a lot at steak in the application. Not only for the BECs, but
also for their delegates who represented their
various branches at
the provincial conference. They too had considerable interest in the
matter, in their representative as well
as their personal capacities.
[89] As regards the
fourth objection, the respondents contended that there was no
administrative decision actually taken by the
ANC to recognise the
current PEC at the time the current proceedings were actually
initiated.
[90] It has to be borne
in mind that the previous provincial elections were set aside and a
re-run done at the special instance
and demand of the applicants. The
second attempt was then made to appease the belligerent factions. The
subsequent provincial conference
of the ANC in the Free State was
held at Parys. It endured for four consecutive days. It commenced on
Wednesday the 21
st
June 2012 and ended on Saturday, the
24
th
June 2012. At that conference, certain decisions were
taken, resolutions were passed and provincial leaders elected.
[91] The applicants were
still deeply aggrieved by a continuum of certain events that took
place before, during and after that conference.
It was their case
that the previous and current PEC under the leadership of the first
respondent was guilty of a number of undemocratic
and unsavoury
practices. That was the major accusation levelled against the first
twenty five respondents.
[92] However the
accusation did not end with the 25
th
respondent. The
applicants went further than that. They also accused the mother-body,
in other words the ANC, of taking partisan
sides in the factional
saga in the province by condoning the alleged serious wrongs
committed by the one faction, but disregarding
the averred serious
irregularities complained by the other faction. The thrust of the
conduct complained of was that the 26
th
respondent took a
final decision whereby the first respondent and his 24 co-respondents
were officially recognised as the authentic
and representative PEC of
the ANC in the Free State province, notwithstanding the grievances of
the applicants to the contrary.
[93] The chief and
ultimate relief sought by the applicants and around which the whole
application revolved, was the review of the
26
th
respondents’ alleged decision. The alleged decision was not
identified or particularised in the notice of motion as was
customarily the case in the review matters. In the founding affidavit
the applicants averred, that the 26
th
respondent took the
offensive decision in Johannesburg during the policy conference held
during July 2012. However, no specific
item on the agenda of that
conference was mentioned in support of the allegation. As a matter of
fact, neither the agenda was annexed
to the founding affidavit nor
was specific reference made to the relative item on that agenda.
[94] Moreover, hardly any
specific resolution was relied upon. Such obvious vagueness tendered
to support the respondents’
contention that no such decision
was taken before the 20
th
of August 2012, being the date
on which these motion proceedings were instituted. The law is
stringent. Any proceedings for judicial
review must be instituted
without unreasonable delay. The regulatory deadline in terms of rule
53 is 30 days from the date on which
the alleged offensive decision
was taken. In this matter woefully inadequate reasons, if any, were
given for the delay between
the dates on which the decision was
taken, as alleged by the applicants, and the date on which the review
application was launched.
[95] The 26
th
respondent was called upon by the applicants to give a record in
terms of rule 53. The 26
th
respondent duly complied. It
was never a case of the applicants that such record was incomplete or
defective in any other manner.
There was no request directed to the
26
th
respondent to augment the record. That being the
case, the record had to be regarded as a true reflection relative to
the decision
complained of. Contrary to Mr Mpofu’s contention,
it was incumbent upon the applicants and not the respondent to have
the
record supplemented. It was not the respondents’ business
to make out a case for the applicants.
[96] The record shows
that the 26
th
respondent, the ANC, did not take the
alleged decision to recognise the provincial leadership led by the
first respondent at the
time, as alleged by the applicants. This
strongly militated against the contention of the applicants. It was
argued on behalf of
the respondents that the review application was
premature, because no decision had actually been taken at the time
the application
was launched.
[97] The record
materially bolstered the assertion by the secretary-general of the
26
th
respondent. According to his sworn statement the
decision was actually taken on the 14
th
of September 2012,
some twenty five calendar days after the launch of the current
application. It followed therefore, as a matter
of logic, that where
the decision targeted did not, in truth and reality, even exist when
the application was moved, then the application
was premature.
[98] It is absurd to
imagine that a decision that does not really exist can be logically
reviewed. The very edifice of the relief
sought did not really exist
at the critical moment. The
causa
for the review was, at best
for the applicants, still in an embryonic stage. The futile endeavour
by the applicants to rely on
either the policy conference or the
website of the 26
th
respondent or both, was indicative of
the spurious grounds on which some of the averments in support of the
alleged reviewable
decision, were made. No legal consequences flowed
from such an abortive application –
CHAIRMAN, STATE
TENDER BOARD v DIGITAL VOICE PROCESSING (PTY) LTD & OTHERS
2012 (2) SA 16
(SCA) par [21].
[99] I perused the
founding affidavit and it appeared that no meaningful steps where
taken by the applicants on the domestic front,
to challenge the
legality of the 26
th
respondent’s decision on the
domestic front. The 26
th
respondent was apparently never
called upon to reconsider its decision. The 26
th
respondent, as the repository of the power complained of, was not
notified the applicants’ intention to take allege adverse
decision either on internal review or internal or internal appeal.
Generally court is not entitled to review an administrative
action
before internal remedies had been completely exhausted by an
aggrieved complainant -
section 7(1)(a)
of the
Promotion of
Administrative Justice Act 3 of 2000
. In this instance, I am of the
view that no proper case has been made out to justify deviation from
the general principle.
[100] It is only in
exceptional circumstances that an administrative action performed, or
an administrative decision taken, may
be judicially reviewed before
the aggrieved complainant has exhausted the available internal
remedies –
Section 7(2)(c)
of the
Promotion of Administrative
Justice Act 3 of 2000
. The applicants did not make out a case that
exceptional circumstances existed, which justified their abandoning
of internal remedies
and their venturing out to seek external
remedies by way of judicial review.
[101] In
KOYABE &
OTHERS v THE MINISTER FOR HOME AFFAIRS
(Lawyers for Human
Rights as
amicus curiae
)
2010 (4) SA 327
(CC) the court held, that the mere lapsing of a prescribed statutory
period for the exhaustion of internal remedies did not, in
itself,
constitute exceptional circumstances. I am in respectful agreement.
If it could cynical abuses would occur giving rise
to absolute
absurdities. Accordingly I am inclined to uphold the sixth objection.
[102] Our constitution
proclaims that everyone has a right to just administrative action –
vide
section 33.
When such right is adversely affected by an
unjust administrative action the bearer of the infringed
constitutional right has a
further remedial right to have the
dispute, pertaining to the infringement, resolved by the application
of law decided in a fair
public hearing before a court or, where
appropriate, another independent and impartial tribunal or forum –
vide
section 34.
[103] The respondents
contended that the applicants did not exhaust internal remedies but
the applicants contended that they had
no such remedies in terms of
the constitution of the 26
th
respondent. The alternative
contention of the applicants was that, if an internal review remedy
was available, its pursuit in the
domestic sphere would have been
futile. They submitted that the impartial stance of the 26
th
respondent precluded them from meaningfully challenging that decision
by way of internal review.
[104] Both parties were
members of a voluntary association. The existence of an internal
administrative remedy ordinarily defers
instant access to an external
judicial remedy until the internal remedy has been exhausted. The
principle of internal remedies
recognises the vital relationship
between internal administrative remedies and the external judicial
remedies. The former entails
an internal administrative review of an
internal administrative decision by an impartial and independent
domestic tribunal. The
latter entails an external judicial review of
an internal administrative decision as well as its internal
administrative review
by an internal review tribunal.
[105] Where appropriate,
the principle requires that an administrative decision be challenged
by way of an internal review process
in order to exhaust available
internal remedies prior to challenging it by way of an external
judicial review process.
[106] The available
internal remedies of a voluntary association just like those of an
administrative body are designed to provide
an immediate, effective
and inexpensive domestic relief before aggrieved parties resort to
litigation. They give the repository
of the power an opportunity of
utilising its own domestic mechanisms, processes and procedures to
rectify irregularities complained
of, if any, first. A process of
internal review adjudication at times renders litigation unnecessary.
[107] The ambit of the
principle of domestic remedies was aptly discerned by Mokgoro, J in
KOYABE v MINISTER FOR HOME AFFAIRS
2010 (4) SA 327
(CC)
par [38 -39] on 343:
“
[38] The
duty to exhaust internal remedies is therefore a valuable and
necessary requirement in our law. However, that requirement
should
not be rigidly imposed. Nor (sic) should it be used by administrators
to frustrate the efforts of an aggrieved person or
to shield the
administrative process from judicial scrutiny. PAJA recognises this
need for flexibility, acknowledging in
section 7(2)(c)
that
exceptional circumstances may require that a court condone
non-exhaustion of the internal process and proceed with judicial
review nonetheless. Under
section 7(2)
of PAJA, the requirement that
an individual exhaust internal remedies is therefore not absolute.
[39] What constitutes exceptional
circumstances depends on the facts and circumstances of the case and
the nature of the administrative
action at issue. Thus, where an
internal remedy would not be effective and/or where its pursuit would
be futile, a court may permit
a litigant to approach the court
directly. So too where an internal appellate tribunal has developed a
rigid policy which renders
exhaustion futile.”(sic)
[108] The applicants
directly approached this court before any higher domestic tribunal
was first approached to internally review
the decision of the
administrative repository of power. I was not persuaded by the
argument that they had to go down that direct
route because no
internal remedies were available to them. The re-run of the earlier
PEC elections fortified my view. The recent
domestic case of Mr
Julius Malema, the former president of the ANC Youth League is of
significance in this regard. The appeal against
the verdict and
sanction followed the internal disciplinary hearing. The matter
showed that there were internal remedies available
to an aggrieved
member of the ANC. Accordingly the main contention that the
applicants were domestically remediless failed to persuade
me.
[109] Although the
organisation’s constitution did not give a right to an
aggrieved member to present evidence or argument
to the national
disciplinarily committee (NDC) prior to the imposition of a sanction,
the national disciplinarily appeal committee
(NDAC) upheld the
accused gentleman’s appeal as regards the sanction imposed. In
the interest of fairness and justice, the
higher appellate tribunal
reviewing the sanction, set it aside and remitted the matter to the
disciplinary tribunal below with
the explicit direction that the
aggrieved gentleman be given an opportunity of presenting his plea in
mitigation of sanction before
the NDC imposed the punishment.
[110] The point I’m
trying to make is that even if I am wrong in finding that there were
available internal remedies spelt
out in the organisation’s
constitution, the highest internal tribunal of the organisation has
publicly demonstrated, that
it can invent internal remedies and, for
the benefit of an aggrieved member, retrospectively make them
available.
[111] The aforesaid
salutary practice also demonstrated that the NDAC of the organisation
was an objective, impartial and independent
internal review tribunal.
Mr Mpofu, who also fearlessly defended the former president of the
Youth League in that matter, did not
suggest let alone contend that
the internal appellate tribunal had, over the years, developed a
rigid policy that rendered any
endeavour to exhaust internal remedies
a futile exercise. On the facts, it could not be confidently argued
that the internal appellate
tribunal, currently still chaired Mr
Cyril Ramaphosa, was in any way pro-repository of the administrative
decision that is under
attack in these review proceedings.
[112] Where pursuit of an
available internal remedy was not shown to be futile, a court may not
ordinarily permit a litigant to
directly approach the court. A
litigant’s mistrust of a repository of an administrative
decision should not be unfairly attributed
to an internal review
tribunal. The repository as an original decision-maker and an
internal review tribunal are distinct internal
structures a must be
seen and treated as such unless it can be shown that there exists an
unholy alliance between them. In the
absence of good cause shown as
to why the exhaustive pursuit of internal administrative review would
be futile, direct access to
the court for external judicial review
should be denied. And I do.
“
[36] First,
approaching a court before the higher administrative body is given
the opportunity to exhaust its own existing mechanisms
undermines the
autonomy of the administrative process. It renders the judicial
process premature, …”
Mokgoro, J in Kayobe,
supra, par 36
Accordingly the
alternative contention by the applicants, that it was futile to
pursue and exhaust internal remedies, failed to
persuade me.
[113] On the factual
matrix of this particular matter I am inclined to uphold the
preliminary objection raised
in limine
by the respondents that
the applicants failed to discharge their duty to exhaust internal
remedies before they approached this
court for an external judicial
review. I am of the view that there were no exceptional circumstances
to condone their failure.
I am inclined to uphold the sixth
objection.
[114] There was no
attempt whatsoever made by the applicants to have their defective,
irregular and non-complaint steps condoned.
The failure to comply
with the various rules of procedure could not be fairly ignored and
the respondents put to their defence
on the substantive front. On the
facts, even if the applicants had applied for condonation, the
prospects of success on the merits,
however cogent they might have
been, would not have been fairly treated as a justification to
overcome the material shortcomings
on the procedural front.
[115]
Having considered all the points
in
limine
taken
by the respondents, I have come to the ultimate conclusion that the
application was lamentably riddled with fatal defects.
It is my view
that none of those proven procedural defects, particularly the one
which triggered off the objection pertaining to
the decision, was
curative. Given the national importance of the matter, defects of
that magnitude, cannot be lightly overlooked.
On account of all those
procedural blemishes I am inclined to grant the application.
[116]
In view of the aforegoing conclusion, it became unnecessary to
consider the substantive merits of the matter. Fairness entails
a
value judgment to be determined according to the peculiar
circumstances of each particular case. Fairness is an abiding
hallmark
of any civilised civil justice system. It is a flexible,
elastic and elusive concept with two fundamental dimensions, namely
procedural
fairness, on the one hand, and substantive fairness, on
the other hand –
vide
GREATER
LETABA LOCAL MUNICIPALITY v MANKGABE AND OTHERS
[2007] ZALC 74
;
[2008]
3 BLLR 229
(LC) 235 par 28.
[117]
The general principle in motion proceedings is that a respondent
should ideally file his or her answering affidavit in order
to deal
with the substantive merits.
1
He or
she should not merely take a preliminary point(s) in the expectation
that should the preliminary challenge to the founding
affidavit fail,
he or she would be given extra time to file an answering affidavit
afterwards.
2
[118] The principle is
premised on the supposition that an applicant’s founding papers
are found to be substantially in order
and that they were not
preceded and blemished by a procedure which was materially irregular
and objectionable. This implicit rule
of procedure underscores a
vital exception to the aforesaid general rule. The current matter is
a classic example that good merits
will not always prevail over bad
procedure. The balance of spherical transition and equity at times
dictates for the converse.
[119] The correct and
logical approach in matters like the instant one, is to deal with
issues procedural first and issues substantive
afterwards. To
consider the respondents’ failure to file answering affidavits
before the applicants’ compliance with
the rules of procedure
would have been a flawed approach. Putting a cart before the horses
leads nobody nowhere.
[120] The thrust of my
decision is that notwithstanding the deliberate and calculated risky
strategy of the respondents to file
no answering affidavit in which
the substantive merits of the matter were canvassed, the dismissal of
the review application was
for a procedurally fair reason. The
procedural defects collectively and objectively considered, derailed
the process of review
before the transition from the procedural
sphere into the substantive sphere of analytic consideration. The
applicants failed to
jump over the first hurdle of procedural
fairness. This then disposes of the fourth objection.
[121]
The question that remains to be answered now concerns what an
appropriate order should be. In a case where the court process
was
served in breach of the prescribed statutory method, the court upheld
the defendant’s objection that such service was
fatally
irregular; that the matter could not simply be postponed to enable
the careless plaintiff to amend the summons and to have
it properly
served. Implicitly the court held the view that the irregular service
vitiated the entire process and that the appropriate
order in those
circumstances was to dismiss the summons with costs –
vide
COLLIER v ALGOA TOWNSHIPS LTD
1947 (2) SA
559
(E) per Gardner J. I hasten to point out that
in that case there was a single irregularity. In this matter, on the
contrary, there
was a great variety of irregularities. Therefore, a
stronger case for the dismissal of the matter was made out here than
there.
[122] Finally, I need to
comment on the notice of motion. It provided that after the interdict
had been granted, the applicants
would then apply for leave to serve
notice of the proceedings by way of advertisement in the newspapers –
vide
Part A. Similarly the same form of service was envisaged
after the ultimate relief, the review, had been granted –
vide
Part B. Clearly the notice of motion was seriously flawed. It did
not comply with the prescribed form 2A of the First Schedule. I
say
no more.
[123] The respondents
have emerged victorious in this lamentable factional struggle for the
political leadership of the province
in which the ANC is at war with
itself. Save for the cost of the unnecessary opposition to the agreed
earlier postponement, which
costs have to be borne and paid by the
respondents, they are entitled to the rest of the costs of the
application, which costs
shall include the costs occasioned by the
employment of two counsels.
[124] Accordingly I make
the following order:
124.1 The first
preliminary point raised
in limine
by the respondents was well
taken. The publication, by the applicants, of the notice of motion in
the press purportedly as some
sort of substituted service in terms of
uniform
rule 4(2)
was procedurally irregular and thus materially
defective. Accordingly the first objection is upheld. The purported
service, on
the unidentified and uncited but interested thirds,
without prior judicial leave first sought and granted is declared
procedurally
irregular, null and void and of no force and effect in
law
124.2 The second
preliminary point raised in
limine
by the respondents was well
taken. The incomplete service of the founding papers, on 24 of the 26
respondents, by the sheriff on
behalf of the applicants, was
materially defective as it substantially infringed the procedural
rights of the respondents as set
out in the uniform
rule 6(5).
Accordingly the second objection is upheld. The deficient service on
the respondents is declared incurably irregular unprocedural
null and
void and of no force and effect in law.
124.3 The third
preliminary point raised
in
limine
by the respondents
was good in law. The failure of the applicants to join the BEC, the
fundamental structure and nucleus of the
ANC, by specifying, citing
and serving the chairpersons, of at least those branches accused of
manipulating the important lists
of delegates to the provincial
conference, was procedurally irregular. Accordingly the third
objection is upheld. The non-joinder
of certain identifiable BECs
with direct interest in the matter as demonstrated in the applicants
founding papers was procedurally
irregular.
124.4 The fourth
preliminary point raised
in
limine
by the respondents
was good in law and, therefore, well taken. The applicants
prematurely launched the current application for
the judicial review
of an administrative decision before it was actually taken.
Accordingly the fourth and final objection is also
upheld. In their
notice of motion the applicants did not, as it is ordinarily the
practice in review matters, precisely identify
and particularise the
alleged offensive act done or decision taken by the NEC, the
authoritative structure of the ANC, in other
words, the 26
th
respondent. These motion proceeding were thus procedurally abortive
ab initio
.
124.5 On the strength of
the aforegoing fatal procedural defects and irregularities, the
application is dismissed.
124.6 The applicants are
directed to pay the costs of this application, including the costs
occasioned by the employment of two
counsels, save those that were
occasioned by the respondents’ unnecessary opposition of the
postponement of the matter on
Thursday, 27 September 2012.
______________
M.H. RAMPAI, J
On behalf of applicants:
Adv D C Mpofu
With him:
Adv L A Roux
Instructed by:
Bezuidenhouts Inc
BLOEMFONTEIN
On behalf of respondents:
Adv M H Wessels SC
With him:
Adv N Snellenburg
Instructed by:
Gous, Vertue &
Associates
BLOEMFONTEIN
On behalf of 26
th
respondent: No counsel
Instructed by:
Bomela Attorneys
BLOEMFONTEIN
/sp
1
DU
TOIT v FOURIE
1965 (4) SA 122
(O)
at 128 – 9 per Smuts AJ and
EBRAHIM
AND ANOTHER v GEORGOULAS AND ANOTHER
1992
(2) SA 151
at 154E – G per Khumalo J.
2
MOSKOVITZ
v METEOR RECORDS (PTY) LTD
1978
(3) SA 996
(C) at 1000A per Friedman J. A respondent is not entitled
to assume that he will successfully argue a point of law raised
in
limine
.
NORDBAK
(PTY) LTD v WEARCON (PTY) LTD AND OTHERS
2009
(6) SA 106
(WLD) at 116A – 117D per Levenberg AJ.