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2012
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[2012] ZAECBHC 8
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Congress of the People and Others v Speaker, Eastern Cape Provincial Legislature, Mluleki George and Others (447/2011) [2012] ZAECBHC 8 (27 September 2012)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION
- BHISHO)
CASE
NO: 447/2011
DATE
HEARD: 31/07/2012
DATE
DELIVERED: 27/09/2012
In the matter between
CONGRESS
OF THE PEOPLE
1
ST
APPLICANT
MOSIUOA
LEKOTA
2
ND
APPLICANT
DEIDRE
CARTER
3
RD
APPLICANT
And
THE
SPEAKER, EASTERN CAPE
1
ST
RESPONDENT
PROVINCIAL
LEGISLATURE
MLULEKI
GEORGE
THE
SECRETARY, EASTERN CAPE
2
ND
RESPONDENT
PROVINCIAL
LEGISLATURE
MLULEKI
GEORGE
3
RD
RESPONDENT
N
C SIWISA
4
TH
RESPONDENT
SAM
KWELITA
5
TH
RESPONDENT
JUDGMENT
ROBERSON J:-
[1] This is an
application for rescission of an order granted on 22 September 2011
by Revelas J under case number 377/2011.
The application was
opposed by the fifth respondent (Kwelita). The first applicant
(COPE) is a political party, and conflict
within COPE, between those
claiming leadership of COPE and those claiming to represent COPE in
the Eastern Cape Province, is prominent
in the application.
[2] In order to
provide some background it is useful to refer to the provisions of
COPE’s constitution which deal with
the affairs of COPE at a
provincial level. Article 7 of the constitution provides
inter
alia
that a provincial congress shall be the highest authority of
the congress of the people within a province, and that the provincial
congress shall elect the Congress Provincial Committee (CPC).
Article 8 provides
inter alia
that the CPC shall have general
responsibility for the affairs of COPE within a province, subject to
the provisions of the constitution
and to resolutions or other
actions of the provincial congress. Article 9 regulates the
duties and functions of provincial
office bearers, article 10
provides for the holding of a provincial congress policy conference,
and article 11 provides for the
establishment of a provincial finance
committee which has general responsibility for the management and
control of finances of
COPE within the province.
[3] The application
before Revelas J (the main application) was brought by COPE,
initially against the first respondent (the
Speaker) and the second
respondent (the Secretary). COPE sought an order setting aside
the Secretary’s decision not
to pay constituency and caucus
funds into COPE’s Standard Bank accounts, and an order that the
Secretary pay such funds into
those accounts not later than 26
September 2011.
[4] Prior to the
hearing of the application, the second applicant (Lekota), the third
applicant (Carter), the third respondent
(George), the fourth
respondent (Siwisa) and two others were joined as respondents.
The Speaker and the Secretary opposed
the application, while George
and Siwisa raised no objection to the order sought. Lekota and
Carter were served with the
application papers but did not appear to
oppose the application. In this application they claimed that
they did not have
knowledge of the application until it had been
granted.
[5] The founding
affidavit in the main application was deposed to by Kwelita, who
claimed in his answering affidavit in the
present application to
represent COPE in the Eastern Cape Provincial Legislature (the
Legislature). The resolution to bring
the main application
appears to have been taken at provincial level.
[6] For the purpose
of this judgment it is not necessary to mention in detail the issues
which were argued before Revelas
J and the reasons for her order.
Suffice it to say that payment of constituency and caucus funds to
political parties represented
in the Legislature is governed by a
policy document, which sets out,
inter alia
, the purpose of
such funding, and how it is determined, allocated and used. It
emerged from the papers in the main application
that the Legislature
was receiving conflicting instructions regarding into which bank
account payments of such funds should be
made. The instructions
emanated on the one hand, from Lekota, as president of COPE, and on
the other hand from Kwelita, as
provincial leader of COPE. On
26 July 2011 the Legislature informed Kwelita’s attorneys that
it had decided to comply
with the instructions of Lekota, who they
regarded as the leader of COPE. On 3 August 2011 this Court
ordered by agreement
that the decision to change the bank accounts
into which constituency and caucus funds were to be paid (the
accounts requested
by Lekota) was reviewed and set aside. The
parties in that matter were COPE as applicant, and the Speaker and
the Secretary
as respondents. Despite this order, on 30 August
2011 the Secretary informed Kwelita’s attorneys that he had
decided
as a precautionary measure to direct the Legislature to hold
payment of constituency and caucus funds due to COPE in abeyance,
pending a lawful resolution by COPE concerning the bank accounts into
which funds should be paid.
[7] As already
indicated, Revelas J granted COPE’S application and there was
no appearance for Carter and Lekota at
the hearing.
[8] The founding
affidavit in the rescission application was deposed to by Carter.
She stated that she is the acting
General Secretary of COPE, and that
Lekota is the president of COPE. According to her, in the main
application Kwelita misled
the Court into believing that he
acted on behalf of COPE. Kwelita was not authorised by COPE to
bring the application,
and is neither a member of COPE nor a
representative of COPE in the Eastern Cape Province. On 22
January 2011 the Congress
National Committee of COPE (the CNC) was
informed that two separate provincial congresses had been held in the
Eastern Cape in
October 2010, and that two CPC’s had been
elected. The CNC resolved to disband both CPC’s and
established an
interim committee headed by three CNC members.
Further on 22 January 2011 the CNC resolved to suspend Kwelita from
all party
activities, and in due course, following a disciplinary
hearing, Kewlita was expelled from COPE, and advised accordingly.
George was also expelled. Accordingly, so Carter averred,
Kwelita had no
locus standi
to institute proceedings on behalf
of COPE. The “true” COPE was therefore not a party
to the application.
[9] Carter stated
that she only became aware of the judgment on 23 September 2011.
Her personal assistant, Linda Geraghty,
had received the application
papers on 16 September 2011 but did not bring them to Carter’s
attention.
[10] Lekota deposed to a
confirmatory affidavit and also stated that the application papers
had been served on his personal assistant,
Lebogang Thobye, who did
not bring them to his attention. He too only learned of the
application after the order was granted.
He annexed to his
affidavit a letter he addressed to the COPE caucus in the
Legislature, informing them of changes of office bearers
of COPE in
the Legislature.
[11] Geraghty
deposed to an affidavit in which she stated that she had received the
application papers from Thobye and had
locked them up for safekeeping
pending Carter’s return to Cape Town. Although she
noticed that the papers related to
litigation involving COPE, she was
under the impression that they related to previous litigation
involving COPE. Thobye deposed
to an affidavit in which he
stated that the application papers had been served on him by the
Sheriff. He did not realise
that the papers related to an
urgent matter and did not inform Lekota, who was in Johannesburg at
the time.
[12] In his
answering affidavit, Kwelita challenged the assertions that
Lekota was the president of COPE and that Carter
was the acting
General Secretary. He stated that leadership of COPE was in
dispute and was the subject of litigation.
He denied that he
had misrepresented himself in the main application and maintained
that he does represent COPE in the Legislature
and that he acted on
behalf of COPE, having been authorised to do so. He also relied
on the provision in COPE’s constitution
to the effect that the
provincial congress was the highest authority in the province, and
stated that there was no need for a resolution
from the CNC to
institute the proceedings. The “true” COPE was
therefore before the Court.
[13] He professed
no knowledge of the disbandment of the CPC’s and stated that as
far as he was aware COPE’s constitution
did not provide for the
disbandment of CPC’s. Even if it did, such disbandment
would be invalid, as the CNC would have
acted
ultra vires
.
[14] With
regard to his expulsion from COPE, he stated that he had appealed
against his expulsion. As proof of
this assertion, he annexed a
letter from Carter to his attorneys in which he and other persons who
had been expelled from COPE
were advised of the person through whom
they should lodge an appeal. He annexed a further letter from
COPE’s attorneys
addressed to his attorneys, setting out the
appeal procedure, and attaching an “appeal form” for
completion.
He annexed two letters from his attorneys addressed
to COPE’s attorneys, to the effect that COPE had given an
undertaking
not to “commence or continue with” any
disciplinary proceedings against expelled COPE members pending the
conclusion
of argument in the South Gauteng High Court in a matter
involving COPE and Mbazima Shilowa. Accordingly, Kwelita
maintained
that he is still a member of COPE and leader of the party
in the Eastern Cape.
[15] In her
replying affidavit Carter pointed out that COPE is not a federal
political party and that the power to institute
proceedings lies with
the CNC. She agreed that the issue of leadership of COPE was
the subject matter of litigation in the
South Gauteng High Court but
referred to a judgment of Mathopo J in the South Gauteng High Court,
delivered on 6 June 2010 , declaring,
inter alia
, that Lekota
was still the incumbent president of COPE.
[16] She accepted
that Kwelita had lodged an appeal against his expulsion and that the
appeal had not been finalised, but
said that he had still been
dismissed as a member of COPE. Further, so she stated, Kwelita
is not a member of the CPC because
the CPC was disbanded, a task team
was formed, and Kwelita is not a member of the task team.
[17] The
application for rescission was ostensibly brought in terms of Rule 42
(1) (a), on the basis that the order had been
erroneously granted in
the absence of the applicants. It was submitted that if Revelas
J had been aware of Kwelita’s
expulsion she would not have
granted the order. I am of the view that the circumstances of
this case are not those envisaged
in Rule 42 (1) (a). The issue
of
locus standi
raised by the applicants is a defence to the
main application. In
Lodhi 2 Properties Investments CC v
Bondev Developments
2007 (6) SA 87
(SCA) at para [27], Streicher
JA said the following:
“
Similarly,
in a case where a plaintiff is procedurally entitled to judgment in
the absence of the defendant the judgment if granted
cannot be said
to have been granted erroneously in the light of a subsequently
disclosed defence. A Court which grants a
judgment by default
like the judgments we are presently concerned with, does not grant
the judgment on the basis that the defendant
does not have a
defence: it grants the judgment on the basis that the defendant
has been notified of the plaintiff’s
claim as required by the
Rules, that the defendant, not having given notice of an intention to
defend, is not defending the matter
and that the plaintiff is in
terms of the Rules entitled to the order sought. The existence
or non-existence of a defence
on the merits is an irrelevant
consideration and, if subsequently disclosed, cannot transform a
validly obtained judgment into
an erroneous judgment.”
[18] The applicant
in the main application was procedurally entitled to the order.
Rule 42 (1) (a) was therefore not
of application.
[19] However I was
of the view that the application could be considered as one at common
law. The applicants purported
to give an explanation for the
failure to appear and oppose the application, and to set out the
grounds of a defence.
[20] There was some
carelessness on the part of Geraghty and Thobye in not bringing the
application immediately to the attention
of Carter and Lekota,
especially considering their positions as personal assistants.
However there is no reason to suspect
that they were not honest in
their affidavits. Moreover, the application for rescission was
launched on 30 September 2011,
very soon after the order was granted,
which indicates in my view a
bona fide
intention to oppose the
main application.
[21] There is
clearly a dispute about Kwelita’s current status in COPE and
the disbandment or otherwise of the CPC’s.
These issues
cannot be decided in an application for rescission. In my view,
the applicants have set out sufficient averments,
which, if
established at a hearing, would enable them successfully to resist
the application. If there was no CPC to authorise
the
institution of proceedings and Kwelita was not a member of COPE, then
the “true” COPE was not before the court
and the persons
or association purporting to be the “true” COPE did not
have
locus standi
. Further, there is no indication in
COPE’s constitution that CPC’s or provincial congresses
have legal personality.
Kwelita’s assertion that the
CNC’s authority to institute proceedings in the name of COPE
was not required, appears
prima facie
to be wrong. In my
view the issue of national leadership which was raised falls outside
the boundaries of this application.
[22] Lastly it was
submitted on behalf of Kwelita that the application was academic
because the funds directed by Revelas
J to be paid, had in fact been
paid. The specific decision of the Legislature to withhold
funds which Revelas J set aside,
was contained in a letter dated 22
August 2011 (and was repeated in a letter dated 30 August 2011).
It was submitted that
this decision related only to the quarterly
payment then due and Revelas J’s order pertained only to those
funds. Because
funds were paid quarterly, so it was submitted,
a fresh decision regarding payment of funds would have to be made
quarterly by
the Legislature. The applicants’ avenue of
relief would be to apply for an order interdicting payment into the
Standard
Bank accounts each quarter. I do not agree with these
submissions. The import of the letter dated 30 August 2011 was
that in principle funding would be held in abeyance pending a
resolution of the internal conflict in COPE. Further in my
view, the import of Revelas J’s reasons and order was
that the Speaker and the Secretary were irregularly withholding
payment of constituency and caucus funds, not just those immediately
due, but those due in the future. According to Revelas
J
competing leadership in COPE was not a good reason for withholding
funds. She specifically mentioned in her judgment that
after
the further respondents were joined, no issue of competing bank
accounts was raised. Carter and Lekota were not before
Revelas
J and the issues which they seek to raise are relevant to the main
application.
[23] The
application must therefore succeed. In view of the issues
canvassed I am not of the view that the application
was vexatiously
opposed, and an appropriate costs order would be that the costs of
this application should be costs in the main
application.
[24] The following
order will issue:
[24.1] The order
granted by Revelas J under case number 377/2011 in this Court is
rescinded.
[24.2] The
applicants are ordered to deliver their answering affidavits in the
main application within 15 days of the date
of this order.
[24.3] The costs of
the application for rescission are to be costs in the application.
J M ROBERSON
JUDGE OF THE HIGH
COURT
Appearances:
For
the Applicants:
Adv
N Gqamana,
Instructed
by
Hutton
& Cook Attorneys,
King
William’s Town
For
the 5
th
Respondent:
Adv
A de Silva,
Instructed
by
Squire
Smith & Laurie Attorneys,
King
William’s Town