Brief Summary

Application — Declaratory orders — Applicants sought relief for alleged non-compliance with a court order regarding the implementation of a settlement agreement — Respondents contended that the relief sought was academic due to lack of admissible evidence. The applicants, members of the ANC, alleged that the respondents failed to properly constitute Regional Task Teams as mandated by a court order from December 2007, which disbanded existing structures and required new ones to ensure broad representation. The court held that the applicants had not sufficiently demonstrated compliance with procedural requirements and that the relief sought had become academic, thus dismissing the application.

Comprehensive Summary

Summary of Judgment

Introduction

The matter consisted of two related applications in the Free State High Court, Bloemfontein, in which eight applicants sought primarily declaratory relief and consequential orders against 133 respondents. The dispute arose from alleged non-compliance by ANC provincial office-bearers and structures with a settlement agreement made an order of court on 6 December 2007, as well as from the suspension and disciplinary steps taken against the first applicant.

The applicants were members of the African National Congress (ANC) associated with branches in three Free State regions (Lejweleputswa, Fezile Dabi and Motheo) and aligned to a grouping opposed to the grouping led by the first respondent. The respondents included the provincial chairperson (first respondent), members of provincial structures (including the Provincial Working Committee and Provincial Executive Committee), members of Regional Task Teams, branch executive committee members, and national office-bearers cited in their capacities, including the Secretary General and chairperson of the National Disciplinary Committee. Three additional respondents were later joined as persons purportedly elected at a provincial conference held after the main application had been launched.

Procedurally, the main application (case 2567/2008) was launched on 2 June 2008. Points of law were raised in July 2008 under Uniform Rule 6(5)(d)(iii), including alleged defects in the notice of motion and non-compliance with the statutory period for extra-territorial service. A separate application (case 5614/2008) was launched on 26 August 2008 seeking joinder of additional respondents and amendments to the notice of motion (including relief aimed at the validity of a provincial conference held on 24 July 2008). Joinder was granted unopposed on 6 November 2008. The matter was argued on 26 February 2009 and judgment was delivered on 19 March 2009.

The general subject-matter concerned internal governance disputes within the ANC in the Free State, focused on the implementation of a prior court order regulating interim regional structures (Regional Task Teams), the lawfulness of processes leading to branch, regional and provincial meetings/elections, and the consequences of a temporary suspension and contemplated disciplinary proceedings against the first applicant.

Material Facts

A settlement agreement was reached following earlier litigation within the ANC and was made an order of court on 6 December 2007. Under that order, the Regional Executive Committees in Motheo, Lejweleputswa and Fezile Dabi were to be disbanded immediately and replaced by Regional Task Teams (RTTs) by 10 January 2008. The settlement required that RTTs be established by the Provincial Executive Committee after consultation with interested groups and NEC deployees, and that the RTTs be composed in a manner ensuring broad representation of all interest groups. The RTTs were to fulfil the functions of Regional Executive Committees until new Regional Executive Committees were elected by 31 May 2008. The settlement also regulated membership qualification for meetings by reference to audited national membership records.

It was common cause that there was sustained disunity and political division within ANC structures in the Free State, with rival groupings competing for support and influence in branch, regional, and provincial structures. The first applicant had held branch leadership roles and was nominated for further positions.

The applicants’ case, in its factual foundation, depended on allegations that the Provincial Executive Committee (first to thirty-third respondents) failed to implement the settlement order properly. The applicants contended that RTTs were constituted in a manner that resulted in gross over-representation of the first respondent’s grouping and under-representation of the applicants’ grouping. They also asserted that branch meetings were inadequately advertised, improperly convened, and that eligible members were excluded, resulting in unlawful branch and regional elections and decisions.

A further factual component concerned the temporary suspension of the first (and originally also the second) applicant. On 10 March 2008 the first applicant received a notice of temporary suspension with conditions restricting participation in ANC structures and media engagement. Disciplinary hearings were scheduled for April 2008 and later rescheduled for May 2008, but did not proceed. The suspension and disciplinary steps were later said by the respondents to have lapsed. The second applicant later resigned from the ANC, and the applicants ultimately pursued suspension-related relief only concerning the first applicant.

On the evidentiary quality of the applicants’ proof of meeting irregularities and exclusions, the court highlighted that various annexures relied upon by the applicants consisted of unsworn statements and hearsay, and therefore did not constitute admissible evidence in motion proceedings. The court treated this as materially significant to whether the alleged irregularities had been established on the papers.

Legal Issues

The court was required to determine, first, whether it should allow the applicants’ amendments to the notice of motion (including the introduction of relief relating to the 24 July 2008 provincial conference), and whether to condone non-compliance with the statutory time period for service where certain respondents resided outside the court’s jurisdiction.

Secondly, the court had to decide whether to grant declaratory and interdictory relief regarding the lawfulness of the first applicant’s suspension and disciplinary steps, including whether such relief had become academic and whether a declarator would have any practical effect.

Thirdly, the court had to decide whether, on the papers, the applicants had established non-compliance with the 6 December 2007 settlement order, particularly the meaning and application of the requirement that RTTs ensure “broad representation of all interest groups”, and whether the alleged irregularities in branch meetings and elections had been proven sufficiently to justify setting aside structures and decisions.

These questions involved a combination of interpretation of the settlement order, application of motion-proceedings principles (including admissibility and disputes of fact), and the exercise of judicial discretion in relation to declaratory relief and procedural condonation.

Court’s Reasoning

The court first dealt with the procedural objections. It held that the omission of a date for set-down in the notice of motion, while not strictly compliant with Form 2(a), caused no prejudice in circumstances where opposition had in fact been noted, rendering the objection effectively academic. The court condoned the non-compliance to the extent necessary.

As to the amendments (including the expansion of prayer 19 and the addition of prayer 19A aimed at the provincial conference of 24 July 2008), the court accepted that the new relief was presented as flowing from the original relief and had been fully canvassed in the affidavits and argument. On that basis, and in circumstances where answering papers had already engaged with those issues, the court allowed the amendments.

On the challenge based on extra-territorial service, the court considered section 27 of the Supreme Court Act 59 of 1959 and the authorities raised. It distinguished the context of urgent applications addressed in some of the cited cases and emphasised the court’s inherent power under section 173 of the Constitution to regulate its own process. It rejected the proposition, framed broadly, that non-compliance with section 27 was incapable of condonation, particularly on the facts of this case: service had taken place more than six months earlier; the cited respondents were associated with the same political party; and no prejudice was demonstrated. The court concluded that insisting on re-service would serve no useful purpose and condoned the non-compliance.

Turning to the suspension-related relief, the court confirmed that the High Court has the power to issue declaratory orders (under section 19(1)(a)(iii) of the Supreme Court Act 59 of 1959), but that this power is discretionary, and that courts will not grant declarators that produce no tangible result beyond the declaration. The respondents’ primary position was that the suspension and disciplinary steps had lapsed and that the issue had become academic. The applicants relied on the character of the ANC as a voluntary association whose constitution has contractual force, and they invoked constitutional political rights (section 19(1)(b)) in support of a contention that there was prejudice in being excluded from party activities.

The court analysed the circumstances surrounding the suspension, including the timing, the onerous conditions, the lack of a prior hearing, the abandonment of the disciplinary process without explanation, and the respondents’ subsequent reliance on mootness. It concluded that these circumstances established that the suspension and disciplinary steps were unlawful and invalid. However, it then applied the discretion governing declaratory relief and held that, because the suspension and disciplinary steps had lapsed, a declarator would have no practical effect and could not be granted on that basis.

In relation to the alleged non-compliance with the settlement order and the validity of RTTs and meetings, the court placed substantial weight on the nature of motion proceedings. It reiterated that evidence in motion proceedings must be contained in sworn affidavits, and that unsworn statements and hearsay do not constitute evidence. It applied the principles that final relief on motion can be granted only if the facts stated by the respondents together with admitted facts justify the order, and that disputes of fact are not resolved by assessing probabilities in motion proceedings.

A central aspect of the applicants’ case was their construction of “broad representation of all interest groups” as requiring approximately equal (50/50) representation between two rival groupings. The court held that the settlement order did not support that interpretation on the papers. It accepted that, while the settlement was reached between the opposing groupings, the wording contemplated representation of “all interest groups”, not solely two blocs. The applicants’ assertion of a roughly equal split in support lacked evidential foundation capable of displacing the respondents’ version in motion proceedings.

On the alleged irregularities in branch meetings and exclusions of members, the court found that the applicants had failed to present admissible evidence establishing the alleged irregularities. The lists and declarations relied upon were largely not under oath. On that basis, the respondents were under no obligation to answer those allegations, and the respondents’ denials could not be characterised as far-fetched or untenable merely because the applicants repeated inadmissible material.

The court therefore concluded that the applicants had failed to establish non-compliance with the 6 December 2007 settlement agreement and were not entitled to the extensive consequential relief sought, such as declarations invalidating RTT appointments, decisions, branch meetings, regional conferences, and the provincial conference.

On costs, the court considered that although the applicants were unsuccessful on most substantive issues, the litigation concerned political rights and governance of a political party and was a matter of public interest. It also took into account that certain procedural points raised by the third respondent were without merit and consumed time, and that the suspension issues had been handled in a manner the court described as unlawful and invalid. It concluded that fairness required no order as to costs.

Outcome and Relief

The court granted the applicants’ application to amend the notice of motion (as sought in the separate joinder/amendment proceedings). The court also condoned the applicants’ non-compliance with section 27 of the Supreme Court Act 59 of 1959 regarding service on certain respondents outside the court’s jurisdiction.

The only substantive operational relief granted was an order directing the first to tenth respondents and the one hundred and thirtieth respondent, within five days, to furnish the applicants’ attorneys with the report required by paragraphs 25.12(g) and/or (j) of the ANC Constitution concerning the first applicant’s suspension/disciplinary process, alternatively to furnish reasons if no such report had been prepared or forwarded.

The remainder of the declaratory and setting-aside relief, including relief attacking the validity of RTTs, branch and regional processes, and the provincial conference and its resolutions, was not granted.

No order as to costs was made.

Cases Cited

Shield Insurance Co Ltd v Van Wyk 1976(1) SA 770 (NC)

Turquoise River Incorporated v McMenamin and Others 1992(3) SA 653 (D)

Scott v Hough 2007(3) SA 425 (O)

Gouws v Venter & Co 1961(2) SA 329 (D)

Minister van Wet en Orde v Jacobs 1999(1) SA 944 (O)

Robinson v Randfontein Estates G.M. Co., Ltd 1925 AD 173

Shill v Milner 1937 AD 101

Trans-African Insurance Co Ltd v Maluleka 1956(2) SA 273 (A)

Preston v Vredendal Co-Operative Winery Ltd and Another 2001(1) SA 244 (E)

J T Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others 1997(3) SA 514 (CC)

Rajah & Rajah (Pty) Ltd and Others v Ventersdorp Municipality and Others 1961(4) SA 402 (A)

Napolitano v Commissioner of Child Welfare, Johannesburg and Others 1965(1) SA 742 (A)

Du Plessis v Prokureursorde, Transvaal 2002(4) SA 344 (T)

Sebenza Kahle Trade CC v Emalahleni Local Municipal Council and Another [2003] 2 All SA 340 (T)

Coetzee v Meintjies 1976(1) SA 257 (T)

BEF (Pty) Ltd v Cape Town Municipality and Others 1990(2) SA 337 (C)

Jockey Club of South Africa and Others v Feldman 1942 AD 340

Turner v Jockey Club of South Africa 1974(3) SA 633 (A)

Natal Rugby Union v Gould 1999(1) SA 432 (SCA)

Die Dros (Pty) Ltd and Another v Telefon Beverages CC and Others 2003(4) SA 207 (C)

National Director of Public Prosecutions v Zuma (573/08) [2009] ZASCA 1 (12 January 2009)

Da Mata v Otto, NO 1972(3) SA 858 (A)

Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 1957(4) SA 234 (C)

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623 (A)

Ex parte the Minister of Justice: In re Rex v Jacobson and Levy 1931 AD 466

Gascoyne v Paul and Hunter 1917 TPD 170

Legislation Cited

Constitution of the Republic of South Africa, 1996 (sections 2, 19(1)(b), 172(1)(a), 173)

Supreme Court Act 59 of 1959 (sections 19(1)(a)(iii), 27)

Road Accident Fund Act 56 of 1996

Compulsory Motor Vehicle Insurance Act 56 of 1972

Rules of Court Cited

Uniform Rules of Court, Rule 6(4)(a)

Uniform Rules of Court, Rule 6(5)(d)(iii)

Uniform Rules of Court, Rule 6(12) and Rule 6(12)(c)

Uniform Rules of Court, Rule 27(3)

Uniform Rules of Court, Rule 28

Uniform Rules of Court, Form 2(a) in the First Schedule

Held

The court held that the applicants were entitled to amend their notice of motion to incorporate the additional relief sought (including relief relating to the provincial conference), and that the applicants’ failure to allow the statutory period contemplated by section 27 of the Supreme Court Act 59 of 1959 for certain out-of-jurisdiction respondents should be condoned on the facts, given the absence of prejudice and the court’s inherent power to regulate its process.

The court held further that although the circumstances of the first applicant’s suspension and disciplinary steps indicated unlawfulness and invalidity, a declaratory order concerning those steps would have no practical effect because the suspension and disciplinary steps had lapsed, and the court therefore declined to grant the declarators sought on that score.

On the core dispute regarding compliance with the settlement agreement and the lawfulness of RTT composition and ensuing branch and regional processes, the court held that the applicants failed to establish, on admissible evidence in motion proceedings, the alleged breaches and irregularities. The applicants’ interpretation of “broad representation of all interest groups” as requiring equal representation between two blocs was not accepted as established by the settlement order on the papers, and the applicants’ allegations about meeting irregularities were largely supported by inadmissible hearsay and unsworn material.

The only substantive order beyond procedural relief was a directive compelling the relevant respondents to provide, within five days, the report contemplated by the ANC Constitution relating to the suspension/disciplinary process, alternatively reasons for not providing it. No costs order was made.

LEGAL PRINCIPLES

A High Court’s power to grant a declaratory order under section 19(1)(a)(iii) of the Supreme Court Act 59 of 1959 is discretionary, and a declarator will generally not be granted where it would have no tangible or practical effect beyond the bare declaration.

In motion proceedings, evidence must be presented by sworn affidavit, and unsworn statements and hearsay annexures do not constitute admissible evidence. A respondent is not obliged to answer allegations not supported by admissible evidence that “calls for an answer”, and repetition of inadmissible material does not convert it into proof.

Final relief in motion proceedings is governed by the principle that it may be granted only if the facts stated by the respondent (together with admitted facts in the applicant’s papers) justify the order, and disputes of fact are not determined by weighing probabilities on affidavit where the dispute cannot properly be resolved on the papers.

The court recognised its inherent power under section 173 of the Constitution to regulate and protect its own process, and held that non-compliance with statutory provisions regulating procedural time periods for service is not, in principle, incapable of condonation in all circumstances; the presence or absence of prejudice and the utility of insisting on re-service remain material considerations.

Mayekiso and Others v Magashule and Others (2567/2008, 5614/2008) [2009] ZAFSHC 31 (19 March 2009)