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[2008] ZAFSHC 73
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African Africanist Congress of Azania v Ka Plaatjie and Others (5173/2008) [2008] ZAFSHC 73 (9 October 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No. :
5173/2008
In
the matter between:-
PAN
AFRICANIST CONGRESS OF AZANIA
Applicant
and
THAMI
KA PLAATJIE
1
st
Respondent
BENNY
ALEXANDER AKA KHOISAN X
2
nd
Respondent
CLARENCE
MLAMLI MAKWETU
3
rd
Respondent
MAWABO
SIJILA
4
th
Respondent
MANELISI
LUXANDE
5
th
Respondent
NATIONAL
COORDINATING COMMITTEE
6
th
Respondent
CHARGEIN
MABASO
7
th
Respondent
______________________________________________________________
HEARD
ON:
18
SEPTEMBER 2008
_____________________________________________________
JUDGMENT
BY:
RAMPAI,
J
_____________________________________________________
DELIVERED
ON:
9
OCTOBER 2008
_____________________________________________________
[1]
These
motion proceedings came by way of an urgent application on Tuesday 31
July 2008. My brother Cillié J granted a provisional
order in
favour of the applicant against the seven respondents. The rule
nisi
was returnable on Thursday 29 August 2008. On the return day my
brother Wright J extended the rule
nisi
to Thursday 18 September 2008. The matter was argued before me on
the extended return day.
[2] Mr.
Matanda argued the matter on behalf of the applicant. He submitted
that the applicant had made out a case that entitled
it to the relief
sought. Therefore, he urged me to confirm the rule
nisi
with costs.
[3] Mr.
Sotshongaye argued the matter on behalf of the respondents. Contrary
to the aforegoing submission, he submitted that the
applicant had
failed to make out a case that justified the grant of the redress
sought. Therefore, he urged me to discharge the
rule
nisi
with costs.
[4] On
or about Thursday 24 July 2008 Mr. Mfanelo Skwatsha, the applicant
deponent, received a notice issued by Mr. Mawabo Sijila
under the
banner of the Pan Africanist Congress. Writing in the name of the
PAC and in his representative capacity as its provincial
secretary,
Mr. Sijila invited all the rank and file members of the PAC to attend
a provincial gathering of the organisation’s
branch which was
to be held at Driftsands Community Centre in the Western Cape on
Sunday 27 July 2008. The purpose of the gathering
was to get the
members in a state of readiness to elect a new leadership at the 9
th
National Congress of the PAC to be held in Bloemfontein on Saturday 2
August 2008 to Sunday 3 August 2008.
[5] It
was the aforesaid circular which triggered off these proceedings.
The purpose of the case was threefold:
viz
to restrain the respondents firstly, from holding any gathering or
meeting under the banner or name of the PAC; secondly, from
holding
out that they were assembling as the PAC at the Mangaung Municipality
Hall or at any other venue in Bloemfontein over the
aforesaid weekend
and thirdly, from holding any press conference or issuing press
statements alleging or purporting or holding
out to be the leadership
of the PAC.
[6] The
papers show that there is a deep rift in the PAC. Although there is
one applicant and seven respondents cited in the formal
heading of
the notice of motion, in reality there are only two parties. Each of
the two grouping claims to be the Pan Africanist
Congress. In order
to avoid confusion, when I refer to the applicant in the course of
this judgment, I must be understood to mean
the grouping led by Mr.
Letlapa Mphahlele, which I shall simply describe as PAC –
Mphahlele. This is the applicant party.
Its deponent, Mr. Mfanelo
Skwatsha, is its secretary general.
Brevitas
causa
I
shall refer to the several respondents collectively as PAC-Plaatjie.
Mr. Plaatjie has been cited as the first respondent. He
was also
described as the provincial chairperson of the PAC in the Gauteng
Province. His group is the respondent party. His deponent,
Mr.
Clarence Mayekiso, is its acting secretary general. I intend to
offend nobody by characterising the parties in this fashion.
[7] The
historical background of the events appears to be necessary. The
history of the undivided PAC as a liberation movement
is fully
documented elsewhere. It is not my aim to recite it here. It was
formed in 1959. It was formed as a breakaway group
from the African
National Congress. Its founding father was the late Smangaliso
Robert Sobukwe. In 1994 it participated in the
first democratic
general elections as a registered political party.
[8] Last year there were
three individuals who represented the party in the national
parliament. A year or so ago its deputy president,
Mr. Themba Godi,
led a breakaway from the party. The 2007 breakaways organised
themselves into a new political party now known
as African People’s
Convention. Two of the three PAC members of parliament crossed the
floor during September 2008 and became
members of the breakaway, in
other words, APC.
[9] The
president of the PAC, Mr. L. Mphahlele, was deeply troubled by the
aforegoing developments. After the breakaway, the party
was left
with only one member of parliament in the national assembly. The
president perceived those developments as a crisis.
On 22 September
2007 he reacted to the perceived crisis by suspending the
constitution of the party. Moreover, he also disbanded
its national
executive committee, the NEC, on the same day. For almost nine
months the president ran the affairs of the organisation
alone by
presidential decree.
[10] Six
months or so later, on 28 March 2008, to be precise, the president,
Mr. L. Mphahlele, issued an internal memo to all the
branches of the
PAC. He notified the branches about the annual national congress of
the PAC to be held at Fort Hare University,
outside Alice in the
Eastern Cape Province from Friday 4 June to Sunday 6 June 2008.
Among the items on the agenda were constitutional
proposals, national
general elections 2009 and Dr. Motsoko Pheko’s appeal.
[11] On
Thursday 5 June 2008, approximately nine months after the Godi
breakaway, another monster of a further breakaway reared
its head.
The house of the PAC showed the symptoms that it was beginning to
crack yet again. Two members of the PAC, obviously
sympathetic to
the PAC-Plaatjie camp, if not its members, launched an urgent
application in the Tranvaal Provincial Division of
the High Court
against the PAC president, the same Mr. Letlapa Mphahlele, N.O. The
matter was filed under case number 27276-08.
[12] The order sought
against the PAC president in the Pretoria High Court included the
following forms of relief:
“2.1 Declaring
the decision taken by the respondent in a meeting held on 22
September 2007, suspending the constitution of
the Pan Africanist
Congress of Azania, ‘PAC’, and disbanding the entire
National Executive Committee, ‘NEC’,
of the PAC unlawful,
unconstitutional and of no force and/or effect;
.....
Directing the respondent to comply
with the constitution of the PAC and call a National Conference
within 60 days from the date
of the finalization of this
application;
Directing the respondent to
re-instate the National Executive Committee of the PAC, forthwith;
.....
2.6 Directing the respondent to
re-instate the Secretary for Finance of the PAC, Charge-In Mabaso,
within 7 days from the date
of the granting of this order;”
[13] The
rule
nisi
was issued on Tuesday 10 June 2008 returnable on Thursday 26 June
2008. The urgent application was opposed. On the return day
the
rule
nisi
was discharged. It will be readily appreciated that the abortive
attempt to have the suspension of the constitution and the
dissolution
of the national executive committee of the PAC nullified
and its proposed annual general conference prohibited, failed in the
Pretoria
High Court seven days prior to the holding of such
conference at Alice.
[14] On Friday 4 July
2008 the applicant party assembled at the University of Fort Hare
where they started with a gathering they
called the annual national
conference. In the founding affidavit the applicant party’s
deponent alleged that about 500 delegates
attended the annual
national conference; that the new leadership, in other words, the
National Executive Committee, consisting
of 44 members, was elected;
that the co-leaders of the applicant party were:
“a). Letlapa
Mphahlele as the President
b).
Mfanelo
Skwatsha as the Secretary General;
c). Andiswa Mjali as the Deputy
Secretary General;
d). Frank Ngidi as Treasurer
General; and”
The
annual national conference ended on Sunday 6 July 2008. During the
course of the conference the 2000 PAC constitution was
amended
and the constitution so amended was adopted as the new 2008
constitution of the Pan Africanist Congress of Azania.
[15] On
or before Thursday 24 July 2008 the applicant party’s deponent
came across a notice issued by the fifth respondent,
Mr. Manelisi
Luxande, on behalf of the sixth respondent, the National Coordinating
Committee, addressed to all Africanists informing
them about the
national conference to be held in Bloemfontein from 2 - 3 August
2008. Although the word “Azania”
appeared twice in the
notice, the name in dispute, namely: Pan African Congress or its
acronym PAC, did not. The theme of the
national conference was to
reposition the Africanists to take the centre stage in the politics
of Azania.
[16] On
Thursday 24 July 2008, 18 days after the annual national conference
at Alice, the applicant party’s received another
notice. On
this occasion the invitation was issued by the fourth respondent, Mr.
Mawabo Sijila. Its heading was:
“
PAC
9
TH
NATIONAL CONGRESS AT BLOEMFONTEIN ON AUGUST 2-3, 2008”
It
addition to what I have already said about this invitation in
paragraph [4],
supra
,
I hasten to remark that the name in dispute, in other words, the word
PAC features on no less than 12 times in annexure MS6.
The first
respondent, Mr. Thami Ka Plaatjie, and the second respondent, Mr.
Khoisan X, were described as candidates for the presidency
of the PAC
of Azania. The fourth respondent described himself as the provincial
secretary general of the PAC. It would appear
that before 22
September 2007 he was recognised as the provincial chair of the PAC
branch in the Western Cape.
[17] On
Monday 28 July 2008 an article by a journalist called Monako Dibetle
appeared in the
Mail
& Guardian. Under that article with the heading:
“PAC
to split again over ‘power grab’”
the journalist reported
about the media interview he had with the first respondent, described
as the provincial chair of the PAC
in the Gauteng Province, who
confirmed that the PAC-Plaatjie was going to hold its own congress in
Bloemfontein in August. The
respondent party voiced a few serious
concerns pertaining to Mr. Mphahlele’s rule by decree.
[18] On
Tuesday 31 July 2008 the applicant party brought an urgent
application against the respondent party. The rule
nisi
issued and prohibited the respondent party, among others, from going
ahead with the national congress in Bloemfontein as planned.
[19] On Saturday 2 August
2008 the respondent party went ahead with its national congress of
the Pan Africanist Congress at Nicro
Hall, Section B, Botshabelo in
the Free State Province. These then are common cause facts plus
facts which are not seriously disputed.
[20] The
question in the case is whether the applicant party has established,
on a balance of probabilities, the requisites for
the grant of a
final interdict. In order to have the rule
nisi
confirmed, the applicant has to prove all the requisites of a final
interdict.
SETLOGELO
v SETLOGELO
1914 AD 221
on p. 227.
[21] As
regards the first requirement, the applicant has to establish a clear
right. Here the starting point is that the authority
and
the designation of Mr. Mphahlele as the president of the undivided
PAC were never in doubt. He was elected as the president
by the
legitimate structure of the PAC apparently at its eighth national
congress. As on 22 September 2007 he was still the undisputed
president of the PAC.
[22] On 22 September 2008
he suspended the constitution of the PAC. At the same time he also
disbanded the national executive committee
of the PAC. However, he
did not relinquish his position as the president of the organisation.
Instead, he gained immense powers
on account of the suspension of
the constitution and the dissolution of the national executive
committee.
[23] In
the answering affidavit the respondent party’s deponent, Mr.
Clarence Mayekosi, accused Mr. Mphahlele of hijacking
the PAC and
using divisive tactics to pursue selfish interest. He further
alleged that Mr. Mphahlele suspended the constitution
and dissolved
the national executive committee of the PAC with the sinister
intention of usurping power for his personal gain.
He went on to say
that Mr. Mphahlele had divided, confused and threatened the members.
He further blamed the same gentleman for
dismembering certain
rightful members of the organisation by directing the applicant
party’s deponent not to process their
application forms for the
renewal of their membership. By so doing, so claimed the respondent
party’s deponent, and by creating
new branches of the PAC, the
underlying reason for all the actions of the president was a grand
strategy to execute an internal
take-over of the organisation without
any opposition at the University of Fort hare.
[24] The
respondent party alleged further that the militaristic, autocratic
and dishonest tendencies by the applicant party were
to blame for the
2007 breakaway. Therefore, the respondent party lastly alleged that
the applicant party lacked openness and good
governance in general
but in particular in its dealings with public funds allocated to the
PAC as a political party by the Independent
Electoral Commission. In
its replying affidavit the applicant denied all the accusations
levelled at it by the respondent party.
[25] Clause
14 of the Disciplinary Code of the PAC provides as follows under the
heading “Democratic Centralisation”:
“14.1 This
means that the power of directing the PAC is centralised in the NEC
which acts through the Presidend (sic) who
wield (sic) unquestioned
(sic) powers as long as he acts within the grounds laid by the
decisions of the organisation which must
have been democratically
arrived at. it (sic) means a centralisation of directive, and
executive implementation of a decision.
If PAC wants to forge ahead,
it must adopt and carry out this principle with firmness and
thoroughness.
14.2 The President
shall have emergency powers, which he may delegate, to suspent (sic)
the entire constitution of the PAC so as
to ensure that the movement
emerges intact through a crisis. At that time, he directs the
Movement by decree, and is answerable
for his actions to the National
Conference or National Congress”
[26] It
was contended on behalf of the respondent
party
that the president acted unconstitutionally in suspending the
constitution of the PAC. The contention failed to impress.
Clause
14.2 of the Disciplinary Code empowers the president to suspend the
entire constitution if there is a crisis. It is not
open to any
member to argue that the president acted unlawfully in suspending the
constitution because there was no crisis. Whether
the PAC faces a
crisis or not, is not open for any democratic debate. The enquiry is
not whether a reasonably informed member
of the PAC would, in given
circumstances, have objectively thought that the PAC was in a
political crisis or not. On the contrary,
the enquiry is whether the
president subjectively believed that the PAC was in a crisis regard
being had to the prevailing circumstances.
It is a prerogative which
is exclusively entrusted to the president. It resides squarely
within the subjective province of his
own mind. It follows,
therefore, that even if the president’s reading and assessment
of the situation is shown to be objectively
wrong, it cannot, for
that reasons, be challenged.
[27] It
is a matter of democratic centralisation of emergency powers in the
president. He wields unquestionable powers in terms
of clause 14.1.
On 22 September 2007 he was of the opinion that the crossing of the
floor by ⅔ of his party’s members
of parliament, coupled
with the immediate breakaway from his party, together boiled down to
a real crisis. Apparently there had
never been such a rebellion in
the history of the party as a liberation movement or as a registered
political party. During the
state of emergency the president was
empowered to rule the movement alone by decree – clause 14.2.
Implicitly he could lawfully
dissolve any structure including the
national executive committee. For his actions during the crisis he
was obliged to answer
only to the national conference or congress.
[28] In
the circumstances I am not persuaded that Mr. Mphahlele unlawfully
suspended the constitution; that he unlawfully dissolved
the national
executive committee; that he usurped the powers of any elected leader
of the PAC or that he acted improperly in convening
the Alice
conference. The fact of the matter is that he has been leading the
PAC as its duly elected president all along.
[29] It
is now quite clear that certain members of the PAC particularly those
who have been singled out as the respondents in this
case, have not
taken kindly to the way their president exercised his extensive
emergency powers from 22 September 2007 until 6
July 2008. Two
unhappy PAC members attempted to have the suspension of the
constitution and the dissolution of the national executive
committee
by the president declared unlawful and invalid. However, such an
application failed in the Pretoria High Court on 26
June 2008. Now,
unless and until any decisions taken or any actions performed by the
president since 22 September 2007 to date,
are set aside by a court
of law in a formal review application, such a decision or action
exists as an accomplished fact. Accordingly
the suspension, the
dissolution and the Alice conference have legal consequences that
cannot simply be ignored because the respondent
party reckons they
are tainted with illegality.
[30] In
the case of
OUDEKRAAL
ESTATES (PTY) LTD v CITY OF CAPE TOWN AND OTHERS
2004 (6) SA 222
(SCA) at 242A Howie P and Nugent JA said the
following:
“No
doubt it is for this reason that our law has always recognised that
even an unlawful administrative act is capable of
producing legally
valid consequences for so long as the unlawful act is not set aside.”
Although
the court in that case was concerned with an administrative
action
there can be no logical explanation why, by analogy, the same
principle should not apply to any act, private or political,
as in
the instant case.
[31] It
is not the respondents party’s case that it has even taken any
positive legal steps to have the decisions of the man
they, until
22September 2007, recognised as their president with unquestionable
powers, set aside or that any application is pending
to have such
decisions or acts set aside. According to the answering affidavit,
the respondent party is still considering the
matter and an
application for leave to appeal will be launched. The answering
affidavit was signed on 21 August 2008. However,
notwithstanding
their alleged intention to take the matter on appeal, when the
current application was argued before me, 28 days
since the signing
of the answering affidavit, no application for leave to appeal had
been filed in the Pretoria High Court in connection
with the case
that the respondent party lost 11 weeks earlier.
[32] Where
the respondent has not taken appropriate steps to have an act, it
claims to be invalid, judicially reviewed and set aside,
the
respondents is precluded from raising the collateral attack on the
validity of such an act in the subsequent proceedings for
the grant
of a final interdict.
KHABISI
NO AND ANOTHER v AQUARELLA INVESTMENT 83 (PTY) LTD AND OTHERS
[2007] ZAGPHC 116
;
2008 (4) SA 195
(TPD) per Bosielo J. Therefore, the respondent party
in this case is debarred from contending that, because it considered
the
applicant’s actions unlawful,
viz
the actions whereby the PAC constitution was suspended and its
national executive committee disbanded, the respondent party was
not
bound by such acts.
[33] The
right of the applicant party is perfectly clear. It is led by the
president who was democratically elected at the national
congress.
He has remained in actual control and leadership position of the PAC.
He ascended to that position by perfectly valid
and popular vote.
Throughout the crisis he retained his title as the president and the
sole leader of the PAC. He never relinquished
such a title and
active functional role. Now, he is entitled to be protected against
any person who, against his will, forcibly
or otherwise endeavours to
oust him from such position. Since the applicant party is the
original and legitimate public face of
the PAC, it is entitled to be
protected against any disenchanted dissidents attempting to project
themselves as the real or old
PAC.
[34] The
rest of the respondent party’s allegations are wild and
emotional claims. The entire answering affidavit is riddled
with
vagueness and baseless accusations. I am still in the dark as to the
precise details: of how much funds of the PAC Mr. Mphahlele
has
abused or embezzled for his personal gain; of members who applied for
renewal of the membership but were never provided with
the requisite
membership cards; of the members who travelled to the University of
Fort Hare but were prevented from participating
in the deliberation
because they did not have membership cards; of non-members who were
shipped to the University of Fort Hare
to masquerade as delegates
whereas they were not; of the new branches that were created for the
purpose of purging the applicant
party’s supposed deponent.
All these claims were extremely vague and embarrassing. Virtually
all of them were not substantiated
by any credible and reliable
factual allegations.
[35] Mr.
Sotshongaye contended that the applicant party had no right to create
new branches, design new membership cards and to
convene gatherings
in the name of the PAC during the period of the suspension of the
constitution. The contention that nobody
could organise such
activities in the name of the PAC before the suspension of its
constitution had been uplifted, is erroneous
and absurd.
[36] The
national executive committee of the PAC is ordinarily the structure
that executes the decisions of the national congress,
implements the
policies and reinforces the programmes and sees to it that the
disciplinary rules are followed and the constitution
obeyed. In
short, it is the general responsibility of the national executive
committee to organise the activities of the applicant
party during
times of peace, in other words, in accordance with the constitution.
However, when the operations of the constitution
are stayed during
extraordinary and troubled times, the structures cannot function in
accordance with a suspended constitution.
But the activities of the
PAC do not come to a standstill on account of the suspension of its
constitution or the disbanding of
its national executive committee.
The applicant party has the right, through its president, to carry on
organising its activities
or affairs in accordance with the
directives from time to time decreed by the president.
[37]
If the suspension of the constitution also entailed the automatic
freezing of any form of organising the activities, it would
certainly
have deepened the crisis. The suspension would have aggravated the
situation. The real purpose of the suspension together
with the
unquestionable emergency powers exclusively centralised in the
president were designed to ensure that the PAC survives
the crisis.
The president believed that the existence of the PAC was imperilled
by the rebellion. The president was obliged by
the code which, I was
made to understand, is one of the five basic documents of the PAC, to
ensure not only that the struggle movements
survives, but also that
it emerges stronger when the turmoil is over than it was when it
began.
[38] I
have, therefore, come to the conclusion that the applicant has a
clear right, embodied in the president: to mobilise the
followers; to
replace the old membership cards with new ones; to create new
branches; to convene gatherings anywhere at any time
and above all
these, to take such steps and perform such acts as he, in his free
and unfettered discretion, considered necessary
to effectively and
decisively deal with the factors that precipitated the crisis. It
follows, therefore, that if this clear right
is violated or
threatened the applicant is entitled to an interdict to have it
protected. To contend, as the respondent party
does, that because of
the suspension of the constitution, the applicant party was barred
from organising such activities under
the banner of the PAC, is
flawed.
[39] As
regards the second requisite for the grant of a final interdict, it
is incumbent upon the applicant to prove that it has
a reasonable
fear or apprehension of irreparable harm if the respondent is not
finally restrained. Since the applicant party has
a clear right to
organise and to assemble under the banner of the PAC, it accordingly
expects everyone to respect its right, which
is protectable by law.
Anyone who infringes another’s right commits a delict, in other
words, a civil wrong. Such a violation
has certain adverse legal
consequences against the perpetrator. To ascertain whether the
applicant’s apprehension of harm
was reasonable, the actions of
the respondent party about which the applicant has complained, have
to be scrutinised.
[40] The
respondent party invited the Africanists to a national convention to
be held in Bloemfontein from 2 – 3 August 2008
and to deposit
an amount of R150,00 per person into a bank account with the name of
“Africanist Cause” account held
at the Tableview Branch
of the First National Bank in Cape Town. The notice was issued by
Mr. Manelisi Luxande, the fifth respondent,
on behalf of the National
Coordinating Committee, the sixth respondent.
[41] The
author indicated that he was an Africanist dedicated to the struggle
for the total liberation of Azania. The two words
“Africanists”
and “Azania” are an integral part and parcel of the name
in dispute - “Pan Africanist
Congress of Azania”.
Although the fifth respondent belongs to the PAC-Plaatjie, he did not
use the name PAC in the notice
– annexure MS5. This omission
is not without significance. In my view, it strengthens the
contention of the applicant party
that the respondent party was not
entitled to the use of the name PAC or to assemble under its banner.
Even though the applicant
party did not react to this notice, it
certainly must have seen red lights flashing again since the Pretoria
case.
[42] The
bank account name was apparently something new that did not exist
prior to 22 September 2007. The organisational structure
of the PAC
did not have a structure called a National Coordinating Committee,
the sixth respondent. This too was something new
which the
respondent party possibly created during the state of the crisis.
Notwithstanding the respondent party’s obvious
caution not to
convene their national conference in the name of the PAC, there were
aspects in the fifth respondent’s notice
which should have made
the applicant party somewhat apprehensive as to what the obscure
Africanists were really up to.
[43] The
notice of 23 July 2008 issued by Mr. Changein Mabaso stated in no
uncertain terms that the national conference which was
to be held in
Bloemfontein on 2 – 3 August 2008 was organised by the National
Coordinating Committee under the banner of
and in the name of the
PAC. Unlike the cautious previous notice by the fifth respondent,
the notice by the seventh respondent
made a direct claim to the name
of the PAC under its recognised flag. The notice stated:
“The
congress will also assist the PAC in reversing the serious damage
caused by irresponsible acts of the PAC President.”
Vide
MS6(1).
[44] The
seventh respondent convened the PAC national conference in his
representative capacity as the national secretary for finance.
Where
and when such a structure was formed, does not appear. Besides the
seventh respondent’s and possibly the fifth respondent’s
names, the rest of its members, if any, do not appear. It is rather
obscure as to where the structure precisely fits in the PAC
organisational hierarchy of structures recognised by the
constitution. The fact that it was suspended at Botshabelo on 2/3
August
2008 suggests that it was formed subsequent to 22 September
2007 in response to the alleged irresponsible acts of the PAC
president,
Mr. Letlapa Mphahlele. Since the constitution did not
make provision for the formation of any new structure during the
crisis,
or the suspension of the constitution by anyone other than
the president, the National Coordinating Committee was not a
legitimate
structure of the PAC, in my view. It was therefore
impermissible for its members to organise and to operate in a domain
exclusively
reserved for the president. As I have already indicated
it is not open to any PAC member to contend that the members of the
National
Coordinating Committee were entitled to do so because there
was no crisis. In the opinion of the PAC president there was.
[45] It
follows from the aforegoing finding about the illegality of the
National Coordinating Committee formed by the respondent
party, that
the applicant party feared, on reasonable grounds, that the national
congress which the illegal structure, with no
fixed physical address,
according to the respondent party’s deponent, was planning to
hold in Bloemfontein on 2 August 2008
in the name of the PAC, would
cause a great deal of confusion among its members in particular and
its supporters and the public
in general. The holding of the second
national conference, planned at it were less than four weeks after
the first national conference
both in the name of the same party,
therefore, created a serious state of political confusion that could
have adverse impact on
the PAC at the time when it is supposed to be
preparing for the general elections of the country next year.
[46] On
24 July 2008 the fourth respondent issued and circulated yet another
notice in the name of the PAC. The notice was strikingly
similar to
that of the seventh respondent in certain respects. In the name of
the PAC the fourth respondent also invited the members
of the party
in the Western Cape Province to a provincial gathering which was to
be held at Driftsands. He informed the members
that they had to
prepare “to elect a new, legitimate, visionary, mass-based and
visible leadership at its Bloemfontein PAC
9
th
National Congress on 2 – 3 August 2008”.
[47] In
the same notice, annexure MS6, the fourth respondent went a step
further and stated:
“There
will also be a press conference consisting of senior party leaders,
former PAC presidents, and candidates for presidency
comrades Thami
ka Plaatjie and Khoisan X respectively, formerly known as Bennie
Alexander, to adopt a draft programme of action
for 2009 and beyond,
as seen by the incoming PAC leadership, subject to ratification by
congress.”
Nowhere in the answering
affidavit could I find any averment by Mr. Mfanelo Mayekiso, the
respondents’ deponent, to the effect
that the fourth and
seventh respondents were entitled to circulate such notices because
the applicant party’s had uplifted
the suspension of the
constitution. In the absence of such an averment, concerning the
upliftment of the constitution which would
signify the end of the
state of the crisis and the end of the emergency powers of the
president it cannot be said that the fourth
and the seventh
respondents acted lawfully in circulating such notices.
[48] It
must also be borne in mind that seeing that the applicant party’s
national conference at Alice was never legally challenged
and
declared unlawful by a court of law and not a disgruntled faction of
its members, it remains valid and binding upon all notwithstanding
the alleged procedural and constitutional defects complained of.
Therefore, any gathering and press conference held in the name
of the
PAC which undermines the Alice conference and anything done there
endangers the interest of the applicant party. Since
the unlawful
notice by the fourth respondent was potentially harmful to the PAC,
the applicant party’s apprehension was justified.
The
political feuding between the two groupings using the same name may
have very serious repercussions for the PAC as a whole.
[49] On
28 July 2008 the first respondent, Mr. Thami Ka Plaatjie, in a press
statement which was attributed to him was reported
to have said:
“’That’s
why we are having our own congress in Bloemfontein next month.’”
The
averments made in the article were substantially not denied save the
reporter’s comment that the first respondent had
added that
after the Bloemfontein conference in August there would be two PACs.
According to the article the first respondent
complained about what
had transpired at the Alice conference of the PAC. He complained,
among others, that
bona
fide
members were excluded from that congress. I did not find any
averment in the answering affidavit that any of the six respondents
ever attended any branch meeting where delegates were elected to
attend the Alice conference. Similarly, I could find no averment
that any of the six respondents indeed attended the National Congress
at Alice and that they were turned away. This is the general
complaint of the respondents. However, no specific factual
allegations of any sort were given in the answering affidavit.
[50] Although
the newspaper remark about a PAC split was denied in the answering
affidavit, the undisputed phrase “our own
congress in
Bloemfontein” and the election of “a new ..... and
visible leadership” as the fourth respondent put
it, in my
view, justified the reasonable apprehension that the sixth respondent
operating through its members, particularly the
seventh, the fifth
and the first respondents was on a brazing trail spreading an
unfortunate gospel that the PAC was on the brink
of another
breakaway. The launching of these urgent proceedings to restrain the
respondent party from projecting their group as
the genuine guardian
of the true “traditions and principles of the real PAC”,
was well founded. Such press statements
were damaging to the
applicant’s party. In my view, such a press statement or
newspaper article, issued as it was in the
name of the PAC, seriously
threatened the applicant party’s very foundation of its
cohesive existence by insinuating that
the PAC-Mphahlele unlike the
PAC-Plaatjie was not the genuine face of the party. The harm which
such a press statement can cause,
if it is later shown to be
incorrect, cannot be accurately measured. Bearing in mind the role
which the PAC had played over the
years for the liberation of this
country, our budding democracy will be poorer should the PAC fade
away from the political scene.
There is no hope for the group of a
party so bedevilled by squabbles for leadership.
[51] For
the reasons enumerated above, I have come to the conclusion that the
applicant party has shown a likelihood of detrimental
and harmful
confusion resulting from the respondent party’s parallel use of
the name – Pan Africanists Congress of
Azania. The aforegoing
multiple acts of interference committed by the respondent party, have
probably caused the applicant party
actual injury or at least
reasonable apprehension of injury. This disposes of the second
requisite for the grant of a final interdict.
[52] At
this juncture, before I proceed to consider the third requisite; I
pause to reflect of the actions on the four respondents
I have just
analysed. The analysis reveals a striking contrast between the
first, fourth and seventh respondents, on the one hand,
vis-a-vis
the fifth respondent, on the other. The crux of the contrast is that
the latter, unlike the former, absolutely stayed away from
advertising the Bloemfontein or more correctly the Botshabelo
conference under the name and banner of the PAC. What this
fundamental
contrast shows, is that among the members of the National
Coordinating Committee or shall I say the respondent party there was
no common conviction that the respondent party was entitled to
organise itself under the banner of the PAC and to hold itself out
as
the true PAC. This important difference which was not at all
explained in the answering affidavit fortifies the contention
that
the respondent party had no right to use the name of the PAC. This
aspect appropriately bolsters my conclusion under the
first
requisite.
[53] As
regards the third requirement the applicant has to establish that it
had no other ordinary remedy to avert the harm posed
by the
respondent party’s conduct.
SETLOGELO
v SETLOGELO
,
supra
.
I deem it unnecessary to labour this requirement. The respondent
party contended that the applicant party’s president,
Mr. L.
Mphahlele, should first have held a consultative meeting with the
third and other stalwarts and ex-presidents of the PAC
before he
resorted to the legal process. Of course, an amicable and mutual
solution would have been a preferred option, in my
view, for settling
this political dispute. However, the argument is like a sword with
two edges. If the respondent party itself
really believed that,
through the mediation of the former presidents, the rift between the
two camps could have been narrowed and
the dispute resolved, they
should have given such a mediation process ample opportunity to get
the two sides to the negotiating
table instead of organising their
own conference, as they did.
[54] It
takes the matter nowhere to argue that the mediation efforts were
frustrated by the applicant party. For as long as the
two camps
carry on apportioning blame, this painful dispute will continue to
plague their organisation. However, it must be borne
in mind that
none of the parties was legally obliged to embrace the idea of having
the dispute mediated. There was no suggestion
that such mediation
was obligatory in terms of the constitution or the code. Therefore,
I find that the applicant party had no
other ordinary remedy to
afford it a similar protection of its right to the legal protection a
court interdict can afford.
[5
5] As
regards the fourth requirement, the applicant has to establish that
the balance of convenience favours the grant of the final
interdict.
The stronger the right, the less important this requirement becomes.
The PAC is a registered political party. It
receives funding from
the State. Currently the applicant party is in control of such
public funds. In addition to that, the three
banking accounts of the
PAC at the First National Bank as would more fully appear from
annexure MS4, p. 31 of the record, are also
controlled by the
applicant party. The applicant party is led by the person who was
elected before 22 September 2007 as an undisputed
president of the
undivided PAC. Since then he has remained the public face of the
PAC. He exercised his emergency powers as the
president of the PAC.
In the final analysis it has been shown that the respondent party has
no clear right to use that name.
In the light of all these factors I
am of the view that the balance of convenience favours the applicant
party.
[56] In
the circumstances I am inclined to confirm the rule
nisi
seeing that the applicant has established all the requisites for the
grant of the final interdict.
[5
7] I
grant this discretionary and extraordinary remedy mindful that it
does not follow, as a matter of course, that the remedy always
has to
be granted once all its requisites have been proven. The court has a
discretion, even in such a situation, not to grant
the remedy. Where
the applicant established all the requisites, as in the instant case,
there must be some very compelling reasons
why he, she or it should
be deprived of the protection the remedy ordinarily affords to those
whose clear rights have been infringed.
[58] I
am of the firm view that, in all the circumstances of this case, no
such compelling reasons exist. Because they do not,
if I were to
discharge the rule
nisi
in these circumstances, my decision would not be compatible with the
proper exercise of judicial discretion. The essence of the
remedial
measure I am moved to grant in favour of the applicant party is not
to gag the respondent party by denying them their
fundamental right
to assemble or associate.
[59] By
all means they are at liberty to organise themselves under one
umbrella; to constitute themselves in any lawful manner;
to convene
any meeting, congress, conference or gathering anywhere at any time
provided they refrain from projecting themselves
as the leaders of
the PAC of Azania and by holding out or purporting to hold out that
whatever organising structure they form,
the notices they circulate
among their followers, the media statements they release and the
gatherings, congresses, conferences
and meetings they attend, are
held under the banner of the PAC. In brief, the order outlaws
nothing but prohibits everything done
by the respondents in the name
of the PAC.
[60] The
continued and sustained repetition of such acts of interference
orchestrated by the respondents against the applicants
coupled with
public denunciation of its legitimacy will cause irreparable harm to
the applicant. On the contrary, the discontinuance
of such acts of
interference will cause the respondents no irreparable harm. They
have not been expelled from the PAC. The first
three respondents are
countrywide known politicians. Together with the current leadership,
they are collectively capable of solving
the problems in a way that
no court order can ever do. They can only do so if, and only if,
they let the genuine interests of
the PAC prevail over their
individual ambitions. However, I hasten to add that it is perfectly
natural for persons to be ambitious.
The positive force of their
ambitions should, first and foremost, be constructively employed to
advance and to promote the general
interest of the collective rather
than the particular interests of the individuals who now wrongly see
themselves as rivals.
[
61] The
liberation movement for which so many have sacrificed so much, is
lately plagued by a leadership crisis. Perhaps I am guilty
of
oversimplifying the real problem. In case I am wrong, I apologise.
The movement is now on a hazardous course. It is precariously
hanging on the verge of a very high cliff. If it falls from that
precipice it may finally disintegrate. Even if it survives it
may be
crippled for ever. In a soccer match when a referee blows a final
whistle, the match comes to an end. The players shake
hands with
their opponents. As a judge I am a different kind of a referee. As
I give this final order I am uncertain whether
it will really bring
an end to the contest. I can only hope that unselfish men and women
of conscience from both sides of the
battle line, will rise up with
courage, conviction and common purpose to save the soul of the PAC.
[
62] I
am now through with the merits of the application. Now I turn to the
points
in
limine
.
Both parties raised certain preliminary objections to each others
papers. The fact that I have started dealing with the substantive
issues of the case first instead of the procedural or technical
issues thereof indicates the view I took. In my view, none of
the
points
in
limine
raised by either of the parties, was not disposive of the dispute.
This explains why I shelved such preliminary points for last.
[63] On
behalf of the applicant it was contended that the deponent to the
answering affidavit was not duly authorised by the respondents
to
oppose these proceedings. The document, annexure MC1 attached to the
answering affidavit, p. 62 of the record, contains four
resolutions
of the respondent party which were adopted at Botshabelo on 2 or 3
August 2008. Indeed none of the four resolutions
authorised the
deponent, Mr. Clarence Mayekiso, to defend this application on behalf
of the respondents. As a matter of fact,
there is virtually no
mention of these proceedings in the annexure concerned.
[64] On
behalf of the respondent it was similarly contended that the deponent
to the founding affidavit was not duly authorised
by the applicant to
institute these proceedings. There was simply no resolution
whatsoever to back up the deponent, Mr. Mfanelo
Skwatsha’s
allegation that he was authorised to do so.
[6
5] On
the one hand Mr. Matanda asked me to dismiss the answering affidavit
and to grant a final order against the respondents on
that ground
alone. On the other hand Mr. Sotshongaye asked me to dismiss the
entire application on that ground alone. None of
the submissions
persuaded me. Firstly, both were guilty of the same transgression.
The omission by one neutralised the omission
by the other. Secondly,
the case has generated such a great deal of public interest that it
is now of paramount importance to
decide it on its substantive
grounds rather than inconclusive technicalities which, quite often,
merely delay the expeditious finalisation
of the case. Accordingly I
rule that both are precluded from objecting about each others failure
to attach the requisite resolution
indicating that their respective
deponents were authorised to act on behalf of the parties.
[6
6] The
second point
in
limine
raised by counsel for the applicant was that the respondents went
ahead with their national congress at Botshabelo on 2 –
3
August 2008 in flagrant disregard of the provisional court order,
issued by Cillié J which outlawed and prohibited such
a
gathering. The applicant contended that they perceived the conduct
of the respondents as unlawful, disrespectful and contemptuous
–
par. 3, replying affidavit, p. 144 of the record.
[67] Counsel
for the respondents admitted on behalf of the respondent that the
Botshabelo annual national congress was held as his
clients had
originally planned. However, he contended that the respondents did
not deliberately defy the provisional court order.
They averred,
counsel said, that they were not aware of it, because it was never
served on them.
[68] The
provisional court order was granted on Thursday 31 July 2008. The
very next day, on Friday 1 August 2008, an article appeared
in the
newspaper called “The Mercury”. The article reads:
“The
fight for the soul of one of the country’s oldest liberation
movements, the PAC, has intensified with party stalwarts
saying they
are pressing ahead with their planned national conference this
weekend in the face of a court order forbidding this
and a court
battle today to stop the party’s sole remaining MP being
stripped of his seat.
..........
While the ‘genuine
PAC’ group, led by Gauteng-based PAC activist Thami KaPlaatjiem
vowed
to defy Thursday’s successful court interdict
.....
..........
Skwatsha’s
comment came after his party successfully won an interim order in the
Bloemfontein high court on Thursday that
the other (KaPlaatjie) group
must ‘not meet under the banner and/or name of the applicant
(PAC)
’.
..........
..........
‘We have been vindicated that
the PAC had a legitimate congress at Fort Hare and therefore nobody
else can gather under the
guise of the PAC. The people gathering in
Bloemfontein are either former members of the PAC or non-members.
The judgment alluded
to the fact that they have a right to freedom of
association, but not under the banner of the PAC,’ said
Skwatsha.
..........
But
KaPlaatjie said the conference would go ahead
and they intended to reinstate the party’s constitution and
elect a new leadership.
..........
‘We
are determined to go ahead with the conference come rain or shine
because they (the Mphahlele group) have no jurisdiction over us.’
..........
..........”
[6
9] The
article, unless it is false, attributes certain comments to Mr. Thami
Ka Plaatjie, the first respondent. The newspaper reports
that he
vowed that the conference would go ahead. From the Bar, counsel for
the respondents, took instructions from time to time.
During the
course of his argument he denied some allegations and admitted
others. The article suggested that at least a day before
their
national congress, the first respondent was well aware that such a
gathering had been prohibited.
[70] The
sheriff returns of service, annexure MS9(1) – MS9(7) of the
replying affidavit, show that the copies of the provisional
court
order were served by affixing.
“On
this 02-Aug-2008 at 11:23 I properly served this COURT ORDER by
affixing a copy thereof to the outside or principal door,
security
gate at NICRO HALL SECTION B, BOTHSABELO of the SIXTH RESPONDENT’s
meeting venue on instruction of MR GWF and PAC
Correspondent MR
ARTHUR from the first up to the seventh respondent they were evading
service.”
[
71] The
respondents denied, according to Mr. Sotshongaye, that they received
the provisional court order. They, however, admitted
that the
national congress was held at the venue as specified in the sheriff’s
returns. It was not contended on behalf of
the respondents that
anyone of them was not at the national congress. The sheriff stated
in the returns that the respondents evaded
him which was why he
affixed the seven copies of the court order to the main security gate
or the main door of Nicro Hall. If
the newspaper article is anything
to go by, it was estimated that about 1200 delegates would attend the
national congress of the
respondents.
[72] Now
bearing in mind the number of delegates, it seems quite unlikely that
no-one in such a huge gathering had seen any of the
seven copies of
the provisional court order conspicuously affixed to the main door of
the hall in which the respondents had gathered.
On the facts it can
be legitimately deduced that all the six natural respondents were
present at the national congress; that they
were in the hall or on
the premises at the time the sheriff was struggling to have the
provisional court order served on them;
that they evaded the sheriff
on purpose; that their followers were probably instructed not to
point them out to the sheriff; that
nobody should receive the
provisional court order on their behalf; that they schemed to evade
the sheriff because they knew that
their national congress was
prohibited.
[73] There
are high probabilities which strongly militate against their claim
that they only became aware of the provisional court
order after
their national congress through the media. My findings are that they
first became aware of the provisional court order
before the national
conference through the media and that at 11h35 or soon thereafter on
the first day of their national congress
they saw the seven copies of
the provisional court order which the sheriff had affixed to the main
door. Accordingly the excuse
of unawareness is not available to
them. They have to be constructively deemed to have received the
provisional court order.
“
’With
or without a court interdict we are proceeding with the conference.
’”
..........
See annexure “MS8”
– replying affidavit.
[7
4] Such
a public and defiant press statement by a leading politician of the
stature of Mr. Thami Ka Plaatjie is disturbingly inappropriate
and
indeed irresponsible. This sort of contemptuous incidences, where
outstanding public figures defiantly rubbish the courts
of the land,
appears to be on the increase. It is very perturbing indeed. The
judges have to act firmly and decisively to eradicate
this
disrespectful tendency. Unless this is done the country might sink
deeper and deeper in a state of lawlessness. Since the
national
congress of the respondents held at Botshabelo on 2 – 3 August
2008 was prohibited, it was an unlawful gathering.
The legal
consequences flowing from an unlawful act, are clear. They are
adverse in nature. No lawful act emanates from an unlawful
gathering. Since the gathering was illegal, the election of the new
leadership there was tainted with illegality. Because it
was so
tainted, the law nullifies it
ab
initio
.
Such elections are not legally recognised because they should never
have taken place in the first place. On account of their
collective
defiance alone, I was tempted to ignore the answering affidavit and
to proceed with the matter as if it were unopposed.
[75] The
applicant also applied
in
limine
to have portions of the answering affidavit struck out. The first of
these appears in par. 5 and reads:
“
..... I
aver that Mr. Skwatsha together with his attorney Mr. Gwe are
pathological liars.”
The second passage
complained of appears in par. 25 and reads as follows:
“
Needless to say that Mr.
Mphahlele is a former Apla commander who has refused to appear before
the Truth and Reconciliation Commission
(TRC) and can be facing
prosecution by the National Prosecuting Authority (NPA) anytime.”
[7
6] The
applications to strike out are governed by Rule 6(15). The rule
empowers the court to strike out from any affidavit any
matter which
is scandalous, vexatious or irrelevant. The three offensive matters,
in other words, scandalous matter, vexatious
matter and irrelevant
matter were elucidated in the case of
VAATZ
v THE LAW SOCIETY (NAMIBIA)
1991 (3) SA 563
(NHC) at 566C – E per Levy J.
“
The context in which they are
used can lead to variations of meaning but basically they have the
meanings allotted to them by The
Shorter Oxford English Dictionary.
In Rule 6(15) the meaning of these
terms can be briefly stated as follows:
Scandalous matter - allegations which
may or may not be relevant but which are so worded as to be abusive
or defamatory.
Vexatious matter - allegations which
may or may not be relevant but are so worded as to convey an
intention to harass or annoy.
Irrelevant matter - allegations which
do not apply to the matter in hand and do not contribute one way or
the other to a decision
of such matter.
”
[77]
I
am persuaded that the two passages complained of were indeed
scandalous, vexatious and irrelevant. Accordingly the application
to
strike out was well grounded and granted with costs.
[78] The
applicant has been successful. The general rule is that the
successful party is entitled to have its costs paid by an
unsuccessful party. Therefore in this case the applicant must reap
the fruits of its success. Moreover, I am of the view that
the
respondents have to be penalised to demonstrate that our civilised
nation frowns upon people who have no respect for the due
process of
the law and the authority of the courts of the land.
[79] Accordingly
I make the following order:
79.1 The
rule
nisi
is confirmed as a final order.
79.2 The
respondents are directed to pay the applicant’s costs relating
to this application, jointly and severally, the one
paying, the
others to be absolved.
79.3 The
respondents are directed to pay such costs on the scale as between
attorney and client.
______________
M. H. RAMPAI, J
On
behalf of
applicant: Adv.
E.M. Motanda Instructed by:
Mphafi
Khang Inc
BLOEMFONTEIN
ex Jo GWE Inc
JOHANNESBURG
On
behalf of respondents: Adv. V. Sotshongaye
Instructed
by: Qwelane, Theron & Van Niekerk
BLOEMFONTEIN
ex M M Heshula
Attorneys
EAST LONDON
/sp