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[2012] ZAKZPHC 28
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Inkatha Freedom Party and Others v African National Congress and Others (6512/2011) [2012] ZAKZPHC 28 (9 May 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
[1]
This application is a sequel to an application by the Tenth Applicant
wherein an order was sought 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. I
will refer to the parties as they were in the main application.
[2]
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.
[3]
The principal 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.
(c)
The procedure laid down in Rule 53 of the Uniform Rules should have
been followed:
[4]
The Applicants dispute the above.
[5] 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
[6] In
Ecker
v Dean
2
the
court set out the basis for the granting of an order as follows:
‘……
.
Notwithstanding dicta to the contrary, it seems to me that the
correct principle underlying these decisions is that every
application
for security must be decided on the merits of the particular case
before the Court, bearing in mind that the basis of
granting an order
for security is that action is reckless and vexatious.’
[7] In
clarifying the question of the merits as propounded in decisions
before
Ecker
v Dean,
Eksteen
AJ in
Israel
v Burger
3
said
the following:
‘
When the
learned Judge refers to the ‘merits of the particular case
before the Court’ I take it he is referring to the
merits of
the application to compel security to be furnished, and not to the
merits of the action instituted by the insolvent.’
[8] 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. It is not easy, in these applications, to attempt
to resolve the dispute between the parties.
For as was stated in
Zietsman
v Electronic Media Network Ltd & Others
4
at
paragraph 21
Streicher
JA
said:
“
I am not
suggesting that a Court should in an application for security attempt
to resolve the dispute between the parties. Such
a requirement would
frustrate the purpose for which security is sought. The extent to
which it is practicable to make an assessment
of a party’s
prospects of success would depend on the nature of dispute in each
case”.
[9] In
fact in
Commissioner,
South African Revenue Service and Another v East Coast
5
McCall
J,
refused
to access the merits of the case. He had the following to say:
“
There is
therefore, ample authority for the proposition that in deciding
whether to order that a plaintiff,
or
applicant, company should be ordered to furnish security for the
costs of the proceedings, the merits of the dispute are irrelevant
and the Court cannot and should not enquire into them or express any
opinion on the prospects of success, save, possibly, if it
is
apparent that the Plaintiff’s action is not bona fide or is
‘vexatious’ or ‘hopeless. See Kuper J in
Beaton’s
case supra at 440. See also Fourie v Ratefo 1972(1) SA 252 (0) at 256
B – D and Agro Drip (Pty) Ltd v Fedgen
Insurance Co Ltd
1998
(1) SA 182
(W) at 187. The reasons for the Court’s refusal to
enter into the merits are obvious. Where the proceedings brought by
the
company are by way of action, there will be no evidence before
the Court to enable it to assess the merits of the claim and the
defence. Where the proceedings are by way of application, there may
be disputes of fact which cannot be resolved on the papers.
I do not
believe, therefore, that the reference in the Shepstone & Wylie
case supra to ‘all the relevant features’
was intended to
extend the enquiry to the merits of the dispute. See also Alexander v
Jokl and Others 1948(3) SA 269 (W) at 281
on the question of
relevance.”
[10]
In order to be classified as vexatious, the action must be obviously
unsustainable
6
Argus
Printing & Publishing Co Ltd v
Anastassiades.
[11]
In
Fitchet
v Fitchet
7
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.’
[12]
It is the Fourth Respondent’s contention that the decision of
the Council of the Fourth Respondent is consistent with
the
provisions of Section 43(1) of the Municipal Structures Act, No 117
of 1998 (Municipal Structures 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.
[13]
Rajendraparsad Maharaj, who is the deponent to the Answering
Affidavit and who asserts that he is duly authorised to depose
to the
affidavit on behalf of all the Applicants states that the parties
were all represented in the council at the relevant time
and that the
councillors are aware that the Inkatha Freedom Party proposed that
the Executive Committee consist of four members
– two from the
African National Congress and two from the Inkatha Freedom Party. He
denies that the Inkatha Freedom Party
failed to propose a four member
Executive Committee at the council. However, any such failure would
at most have a bearing on costs
and not affect the validity of their
cause of action.
[14]
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 Municipal Structures Act, and whether or not
these 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.
[15]
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
number 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)
[16] 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 proportion as they are represented
in the
Council or it may determine an alternative mechanism which ensures
that the parties are fairly represented.
[17]
The Applicants submits that the Respondents have set about
constituting an Executive Committee which does not comply with a
system of proportional representation as provided for in Section
43(2) of the Act, neither did the Council purport to determine
an
alternative mechanism which would allow the parties and interests
reflected within the Council to be fairly represented in accordance
with the provisions of Section 43(3) of the Structures Act.
[18]
The Fourth Respondent focuses his submissions only on the
interpretation of Section 43(1). No reference is made to Sections
43(2) or 43(3) of the Act. The Court hearing the main application
will be in a better position to make that determination once
all the
facts are placed before it. In my opinion, the Fourth Respondent has
not demonstrated that the applicants case is obviously
unsustainable.
[19]
Therefore turning to the second issue viz that it is unlikely that
the Applicants have the means to pay an adverse costs order,
all that
the Respondents have put up is a newspaper article wherein Inkatha
Freedom party leader Dr Mangosuthu Buthelezi, allegedly
told
delegates at a conference, that the Inkatha Freedom Party was cash
strapped.
[20]
An Applicant for security must, in order to discharge the onus, it
bears, adduce facts on which the Court can conclude that
there is
reason to believe that the Plaintiff will be unable to satisfy an
adverse costs order.
[21]
The Fourth Respondent did not seek to have the newspaper article
admitted in terms of Section 3 of the Law of Evidence Amendment
Act
45 of 1988 (the Act).
[22]
Section 3 of the aforementioned Act provides:
“
3. (1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence at criminal or civil proceedings,
unless
–
(a) each party
against whom the evidence is to be adduced agrees to the admission
thereof as evidence at such proceedings.
(b) the person upon whose
credibility the probative value of such evidence depends, himself
testifies at such proceedings; or
(c) the court, having regard to –
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the
evidence is tendered;
(iv) the probative value of the
evidence;
(v) the reason why the evidence is
not given by the person upon whose credibility the probative value of
such evidence depends;
(vi) any
prejudice to a
party which the admission of such evidence might entail; and
(vii) any other factor which should
in the opinion of the court be taken into account.
Is of the opinion that such
evidence should be admitted in the interests of justice.
(2) The provisions of subsection
(1) shall not render admissible any evidence which is inadmissible on
any ground other than that
such evidence is hearsay evidence.”
[23]
The Applicants have placed it in dispute by alleging it is hearsay.
[24]
Without facts, it is difficult to arrive at a decision in favour of
the Fourth Respondent on this issue.
[25]
That said there is thus no evidence before me to suggest that the
Applicants do not have funds to satisfy an adverse court
order. The
Applicants submit, that they have the wherewithal to satisfy an
adverse costs order, by virtue of the fact that they
are councillors.
This is not disputed. A cost order of R300 000.00, would amount to
R30 000.00 per individual applicant.
[26]
The Applicants are in fact not immune from liability for a costs
order as they are not protected by Section 28 of the Structures
Act
as the application is one that has been submitted to this Court and
not to the council or any of its committees. This section
provides:
’
28.
Privileges
and immunities - (1) Provincial legislation in terms of section 161
of the Constitution must provide at least –
that councillors have freedom of
speech in a municipal council and in its committees, subject to the
relevant council’s
rules and orders as envisaged in section
160 (6) of the Constitution; and
that councillors are not liable to
civil or criminal proceedings, arrest, imprisonment or damages for –
anything that they have said in,
produced before or submitted to the council or any of its
committees; or
anything revealed as a result of
anything that they have said in, produced before or submitted to
the council or any of its
committees.
(2) Until
provincial legislation contemplated in subsection (1) has been
enacted the privileges referred to in paragraphs (a) and
(b) of
subsection (1) will apply to all municipal councils in the province
concerned.’
[27] A
further issue raised by the Respondents is that since the order
sought by the Applicants is in effect a review of the decision
of the
Council of the Fourth Respondent, that the procedure laid down in
Rule 53 of the Uniform Rules of Court should have been
followed.
[28] The Applicants
counter 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 officer performing judicial, quasi
judicial or administration functions.
[29]
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.
[30]
The decision which they seek to have set aside is the result of a
vote; accordingly there are no reasons to be obtained. The
Applicants
are also in possession of the record of the Councils deliberations.
[31]
However, even if the decision were to be considered an administrative
decision, a failure to follow Rule 53 in reviewing a
decision of an
administrative organ is not per se irregular as the rule exists
primarily in the interests of an Applicant, who
may choose to waive
it. In this case they chose to bring the application in accordance
with the procedure prescribed by Rule 6.
[32] I
am therefore unable to find that the Fourth Respondent has succeeded
in making out a case for the relief sought.
[33]
The application for security is accordingly dismissed with costs,
including costs consequent upon the employment of two counsels.
_________________
K PILLAY J
Date of Judgment : 9 May 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
1938
AD 102
at 110
3
1961
(1) SA 827
(0) at 830 C-D
4
2008(4)
SA 1 (SCA)
5
2000(4)
SA 533 (D)
6
1954(1)
SA 72 (W) 73 A-H
7
1987(1)
450 @ 454 E-C-D