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[2012] ZAKZPHC 24
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Inkatha Freedom Party and Others v African National Congress and Others (6512/2011) [2012] ZAKZPHC 24 (1 April 2012)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
CASE
NO : 6512/2011
In
the matter between:
THE
INKATHA FREEDOM PARTY
…..............................................................
First
Applicant
MBANGISENI
SHADRACH YENGWA
…....................................................
Second
Applicant
DUDU
NONHLANHLA ZONDI
….....................................................................
Third
Applicant
IGNATIUS
NYOKA
…....................................................................................
Fourth
Applicant
VILOSHENE
PILLAY
…....................................................................................
Fifth
Applicant
SILAM
VINCENT ZONDI
…..............................................................................
Sixth
Applicant
RAJENDRAPARSAD
MAHARAJ
…..........................................................
Seventh
Applicant
MTHULISENI
LEANERD SHEZI
…................................................................
Eighth
Applicant
EMMANUEL
NKOSIKAYISE MNCUBE
…......................................................
Ninth
Applicant
MBONGISENI
RICHARD DLAMINI
…............................................................
Tenth
Applicant
and
THE
AFRICAN NATIONAL CONGRESS
….................................................
First
Respondent
THE
NATIONAL FREEDOM PARTY
…..................................................
Second
Respondent
THE
DEMOCRATIC ALLIANCE
….............................................................
Third
Respondent
THE
UMVOTI MUNICIPALITY
…..............................................................
Fourth
Respondent
AHMED
MOHAMED SHAIK
….....................................................................
Fifth
Respondent
PHILANI
GODFREY MAVUNDLA
…..........................................................
Sixth
Respondent
SIKHUMBUZO
ENOCK MNGIMA
…......................................................
Seventh
Respondent
PAMELA
THANDAZILE ZUMA
…............................................................
Eighth
Respondent
BONGANI
EUGENE MLONDO
…...............................................................
Ninth
Respondent
ZANDILE
CHRISTINA NGEMA
…..............................................................
Tenth
Respondent
BETHUEL
GCINA DLADLA
…..............................................................
Eleventh
Respondent
SIBONGISENI
ANTHONY NZAMA
….....................................................
Twelfth
Respondent
KHULEKANI
LINDOKUHLE CHONCO
…..........................................
Thirteenth
Respondent
NQOBILA
SIPHIWAYINKOSI VICTORY MAPHANGA
….................
Fourteenth Respondent
ZAMOKWAKHE
WILSON XABA
…......................................................
Fifteenth
Respondent
ENOCH
SIBONGISENI SHANGE
…....................................................
Sixteenth
Respondent
PAUL
RICHARDS BUSS
…............................................................
Seventeenth
Respondent
______________________________________________________________
J U D G M E N T
K
PILLAY J
The Tenth Applicant
instituted an application seeking an order declaring the decision of
the Council of the Fourth Respondent at
its meeting held on 31 May
2011 to appoint an “
Executive Committee consisting of two
members of the African National Congress and only one member of the
Inkatha Freedom Party”
unconstitutional and invalid and
declaring that all decisions made by the Executive Committee from 31
May 2011 to date of application
as null and void.
The Fourth Respondent
opposed the application and on 21 July 2011 demanded security from
the Applicants. The Applicants opposed
the notice demanding security
for costs. This opposition then gave rise to the present application.
The basis on which
security is sought is as follows:
(a) The main application
is vexatious;
(b) The First Applicant
has serious financial problems and that it is highly unlikely that it
will pay the Fourth Respondent’s
costs should it be ordered to
do so.
The Applicants deny both.
In
dealing with the first issue, it is so that this Court has an
inherent jurisdiction to prevent a vexatious action as being an
abuse
of the process of Court by ordering the vexatious litigant to furnish
security for costs.
Western
Assurance Co v Caldwells Trustee
1
At the same time this
Court is mindful of the provisions of Section 34 of the Constitution
that allows everyone the right to have
any dispute that can be
resolved by the application of law decided in a fair and public
hearing before a Court or tribunal, which
right may be limited in
terms of a law of general application to the extent that the
limitation is reasonable and justifiable in
an open and democratic
society.
In
order to be classified as vexatious, the action must be obviously
unsustainable
2
Argus
Printing & Publishing Co Ltd v
Anastassiades.
In
Fitchet
v Fitchet
3
the
Court held that:
“
It may
well be that, in applications for security for costs, the test should
be somewhat different. Where, in an application for
dismissal of an
action, the Court without hearing evidence on the merits will require
moral certainty alone that the action is
unsustainable, in an
application for security for costs the merits test should be somewhat
less stringent, and other factors, which
are irrelevant in a
dismissal application, should be taken into account. I am therefore
in respectful agreement with the statement
of Klopper J in Davidson’s
Bakery (Pty) Ltd v Burger 1961(1) SA 589 (O) at 593E, viz:
‘
Myns
insiens is die meriete van eiser se aksie nie altyd deurslaggewend
nie, maar slegs ‘n factor wat in oorweging geneem
moet word.
Daar kan gevalle wees waar die Hof sekurieteitstelling sal verleen al
word did slegs bevind dat die kanse van welslae
op die aksie alleen
twyfelagtig is sonder dat dit gesê kan word dat dit geen
vooruitsigte van sukses inhou nie.’
Section 43 of the
Structures Act provides:
“
Composition
of Executive Committees
(1) If the Council of
a municipality establishes an executive committee, it must elect a
member of councillors necessary for effective
and efficient
government, provided that no more than 20 per cent of the councillors
or 10 councillors, whichever is the least,
are elected.
An
executive committee may not have less than three members
.
(2) An executive
committee must be composed in such a way that parties and interests
represented in the municipal council are represented
in the executive
committee in substantially the same proportion they are represented
in the council.
(3) A municipal
council may determine any alternative mechanism for the election of
an executive committee, provided it complies
with Section 160(8) of
the Constitution.” (our emphasis)
It is the Fourth
Respondent’s contention that the decision of the Council of the
Fourth Respondent is consistent with the
provisions of the Section
43(1) of the Act in that the Executive Committee consists of one
member of the African National Congress,
one member of the National
Freedom Party and one member of the Inkatha Freedom Party.
In this regard the
Applicants contend that the decision of the Council is neither
consistent with the provisions of Section 43(2)
nor Section 43(3) of
the Act, and whether or not this allegations are supported by the
minutes does not affect their cause of action,
as the Municipality is
bound to follow the prescripts of the statute.
I have perused the main
application. Therein the Applicants assert that a Municipality which
has an Executive Committee must either
constitute it so that its
members represent the parties and interests in substantially the same
preposition as they are represented
in the Council or it may
determine an alternative mechanism which ensures that the parties are
fairly represented.
The Applicants contend
that the Respondents have set about constituting and Executive
Committee which does not comply with a system
of prepositional
representation as provided for in Section 43(2) of the Act. It is
submitted that at no stage did the Council purport
to determine an
alternative mechanism which would allow the parties and interests
reflected within the Council to be fairly represented.
The Respondents focus
their submissions only on the interpretation of Section 43(1). No
reference is made to Sections 43(2) or 43(3)
of the Act. I am not
persuaded that the Applicants case is obviously unsustainable.
Turning to the second
issue viz that it is unlikely that its costs will be paid if the
Applicants are unsuccessful in their application,
all that the
Respondents have put up is a newspaper article wherein the......
The Respondents did not
seek to have it admitted in terms of Section 3 of the Law of Evidence
Amendment Act 45 of 1988 (the Act).
Section 3 of the aforementioned
Act provides ......
The Applicants have
placed it in dispute by alleging it is hearsay.
If this Court were to
accept the newspaper article as proof its contents, then it could
give rise to a situation where any litigant
can simply rely on a
newspaper article to ....
No proper foundation has
been laid for its admission
Procedure laid down in
Rule 53 of the Uniform Rules of Court should have been followed.
The Applicants counter
claim this by stating that Rule 53 only applies to proceedings to
bring under review the decision or proceedings
of any inferior Court
and of any tribunal, board or offices performing judicial, quasi
judicial or administration function.
The Applicants assert
that the Fourth Respondent does not fall under any one of these
categories. In addition, it is contended that
the application does
not pertain to administrative, judicial or quasi judicial actions,
but declaratory relief concerning the legality
of a resolution passed
by a legislative body.
The decision which they
seek to have set aside is the result of a vote; accordingly there are
no reasons to be obtained. They are
also in possession of the record
of the Councils deliberations.
_________________
K PILLAY J
Date of Judgment : April 2012
Applicants Counsels : Advocate R J Seggie SC
Advocate A L Christison
Instructed by : J Leslie Smith & Company Applicant’s
Attorneys
332 Jabu Ndlovu
(Formerly Loop Street)
Pietermaritzburg
Ref : W Smith/tm/MAT 15225
4
th
Respondent’s Counsel : Advocate T V
Norman
Advocate W S Kuboni
Instructed by : Garlicke & Bousfield Inc
4
th
Respondent’s attorneys
La Lucia Ridge Office Estate
c/o Ngcobo Poyo & Diedricks Inc
190 Hoosen Haffejee Street
Pietermaritzburg
Ref :Thoba Poyo-Dlwathi/nelly
1
1918
AD 262
at 274
2
1954(1)
SA 72 (W) 73 A-H
3
1987(1)
450 @ 454 E-C-D