Mohapi and Others v Magashule and Others (568/07 , 1329/07 , 1637/07) [2007] ZAFSHC 45 (4 June 2007)

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[2007] ZAFSHC 45
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Mohapi and Others v Magashule and Others (568/07 , 1329/07 , 1637/07) [2007] ZAFSHC 45 (4 June 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Application No. :
568/07
Application
No. : 1329/07
Application
No. : 1637/07
In
the application between:-
MODISE PETRUS
MOHAPI
1
st
Applicant
MMAMOKI
BERNICE SETSHIRO
2
nd
Applicant
TSOTETSI
JONES CHABELI
3
rd
Applicant
TSHEDISO
RHASEED MAJOLA
4
th
Applicant
GEORGE POGISHO
HELEPI
5
th
Applicant
JABULANI VELAPHI
MAZIBUKO
6
th
Applicant
MAMOITHERI
LUCY HELEPI
7
th
Applicant
and
ELIAS
MAGASHULE
1
st
Respondent
MADIEPETSANE
CHARLOTTE PHEKO-LOBE
2
nd
Respondent
STEVEN
TSHABALALA
3
rd
Respondent
SIZWE
MBALO
4
th
Respondent
JIHAD
MOHAPI
5
th
Respondent
_____________________________________________________
CORAM:
VAN
ZYL J
_____________________________________________________
HEARD
ON:
24 MAY 2007
_____________________________________________________
JUDGMENT
BY:
VAN ZYL J
_____________________________________________________
DELIVERED
ON:
4 JUNE 2007
_____________________________________________________
[1] The hearing of the
application on 24 May 2007 was the yet further extended return date
of a rule
nisi
issued on 16 February 2007. On the said date I
reserved judgment until today, 4 June 2007, and I also postponed the
return date of
the rule
nisi
to today.
[2] I
consider it necessary to set out a short history of this application:
1. First to fourth
applicants first approached Court on 9 February 2007 for an urgent
interim interdict. After Wright J removed their
application from the
roll, they amended their papers and approached this Court yet again
for urgent interim relief on 10 February
2007 and I granted a
temporary order maintaining the status quo, pending the postponement
of the application to 16 February 2007
in order for respondents to
file answering papers and the filing of subsequent replying papers.
Costs were to stand over.
2. The respondents failed
to file answering papers and on 16 February 2007 I consequently
granted the present rule
nisi
, returnable on 8 March 2007, in
the following terms:
A rule
nisi
is issued, calling
upon the respondents to put forward reasons, if any, on Thursday, 8
March 2007 at 9h30, or as soon thereafter
as the matter may be
heard, why the following orders should not be granted:
1.1 that the implementation of the
resolutions and decisions taken including the election and/or
appointment of office bearers at
the regional conference of the
African National Congress held on
9 to 11 February 2007
at
Orangeville are suspended pending the final outcome of an application
for the review of those resolutions, decisions and elections;
1.2 that the office bearers in office
at the time immediately preceding the said conference remain in
office pending the adjudication
and final decision of the review
proceedings to be instituted;
1.3 that first, second, third, fourth
and fifth respondents are ordered to pay the costs of this
application jointly and severally,
payment by the one the other to be
absolved.
2. The orders in paragraphs 1.1 and
1.2 shall operate as interim orders with immediate effect pending
the final outcome of this application.
3. The application for review to be
instituted within seven (7) days of date of the final order in this
application.”
I ordered the
respondents to pay the costs of the day.
3. On 8 March 2007 it
transpired that respondents had filed what they called “sworn
affidavits” in which they raised certain technical
points
pertaining to a notice of discovery which they had in meantime filed
and which allegedly had not been complied with by first
to fourth
applicants, and they also disputed the
locus standi
of first
to fourth applicants on the basis that they were not members in good
standing of the ANC. The respondents did not address
the merits of
the application in those affidavits. They had in the meantime also
filed a notice in terms of rule 7 requesting the
first to fourth
applicants` attorney to provide them with his power of attorney,
which were duly complied with. The day preceding
the hearing, the
respondents also filed a notice of application to strike out certain
parts of first to fourth applicants` founding
papers. After having
heard submissions from both parties on that day, leave was granted to
the respondents to file supplementary
answering affidavits. The
application was subsequently postponed to 29 March 2007 and ancillary
orders made relating to the filing
of affidavits by the parties. The
costs were to stand over for later adjudication.
4. On 29 March 2007 it
transpired that respondents had filed supplementary answering
affidavits on the merits and first to fourth
applicants filed their
replying affidavits. Theoretically speaking the application was right
for argument on the merits thereof.
However, first to fourth
applicants filed an application for joinder of 17 further persons,
being the members of the newly elected
Regional Executive Committee
(“REC”) at the conference of 9 to 11 February 2007 (in addition
to the newly elected persons who
were already parties to the
application, being third, fourth and fifth respondents) and possible
other unidentifiable persons and/or
entities, who
prima facie
had a direct and substantial interest in the proceedings and who
should have been joined at the outset.
The respondents also
filed a second notice of application to strike out on 27 March 2007,
which was a more amplified version of the
notice originally filed on
7 March 2007. The result of the aforesaid circumstances was that the
application could again not be adjudicated
on the merits thereof.
After having heard lengthy and technical arguments and submissions on
behalf of both first to fourth applicants
and respondents, I reserved
judgment until 4 April 2007.
5. On 4 April 2007 I
handed down my judgment in this application (and certain concurrent
interlocutory applications) (hereinafter
referred to as “my
previous judgment”). For the sake of officiousness, I consider it
appropriate to cite the order that I granted
in my previous judgment
(hereinafter referred to as “my previous order”):
“[18] Consequently the following
order is made:
With reference to the notice of
application to strike out:
The application to strike out in
terms of paragraphs 1, 2, 3, 4, 5 and 17 thereof, is dismissed.
The application to strike out in
terms of paragraph 7 thereof, is dismissed with regard to the
substantive and independent allegations
contained in the said
affidavit.
The application to strike out in
terms of paragraphs 6, 9, 11, 13 and 15 thereof, is granted.
The application to strike out in
terms of paragraph 7 thereof, is granted with regard to the first
sentence of paragraph 2 contained
in the said affidavit.
Leave is granted to the applicants
to have the affidavits referred to in paragraphs 6, 7, 9, 11 and 13
re-drawn (in similar wording
than the current affidavits) and
re-attested, which newly drawn and attested affidavits are to be
filed on or before 23 April
2007.
Conditional leave is granted to the
applicants to have the affidavit referred to in paragraph 15
re-drawn (in similar wording
than the current affidavit) and
re-attested, subject to the condition that the applicants file an
affidavit setting forth a reasonable
explanation to the
satisfaction of the Court explaining the date of attestation
thereof considering that the said date was after
the date of filing
of the replying papers at Court. The said re-drawn affidavit, as
well as the explanatory affidavit, is to
be filed on or before 23
April 2007.
Leave is granted to the respondents
to respond to the aforesaid explanatory affidavit, should they so
wish, which affidavit in
response is to be filed on or before 10
May 2007.
Paragraphs 8, 10, 12, 14 and 16
stand over to be adjudicated on 24 May 2007.
The application for joinder issued
under application number 1329/2007 is granted on the following
terms:
The applicants are ordered to serve
the Notice to interested and affected persons and entities,
attached to this Court order and
marked “X” (or such an amended
notice as I deem necessary after having heard all interested
parties hereto), in terms of
the Court rules on the 17 persons
identified in prayers 1.1 to 1.17 of the Notice of Joinder, on or
before 17 April 2007.
The applicants are ordered to effect
publication of the said Notice to interested and affected persons
and entities, attached
to this Court order and marked “X” (or
such an amended notice as I deem necessary after having heard all
interested parties
hereto), once in The Volksblad and once in The
Star on or before 17 April 2007.
Should any answering affidavit(s) be
filed subsequent to the service and publication of the aforesaid
notice, the applicants are
to file their replying affidavits in
response thereto, if any, on or before 17 May 2007.
The return date of the rule nisi
issued on 16 February 2007 is postponed to Thursday, 24 May 2007 at
9h30.
All of the aforesaid orders are
granted with costs, including the costs of two counsel, in favour of
the respondents, which costs
are to be paid by the applicants’
attorney of first instance, Mr. Sizephe of MJD Sizephe Attorneys,
Welkom,
de bonis propriis
;
alternatively, by the
applicants on an attorney and client scale, the determination of
which (between the aforesaid two alternatives)
stand over for
adjudication on 24 May 2007.
For purposes of the order granted in
4 above, leave is granted to Mr. Sizephe to advance reasons, if any,
under oath on or before
23 April 2007 why the following orders
should not be made:
That he is to pay the costs of the
respondents occasioned by the postponement on 29 March 2007
de
bonis propriis
, which costs are to include the costs of two
counsel.
That he is to pay the respondents`
costs of the application to strike out, including the consequential
costs occasioned by the
granting thereof,
de bonis propriis
,
which costs are to include the costs of two counsel.
That he shall not be entitled to
recover any of the costs in respect of the application for joinder
from the applicants.”
It is essential to point
out that at the time when I issued my previous order, first to fourth
applicants were the only applicants
before court.
6. Immediately preceding
the handing down of my previous judgment, fifth to seventh applicants
launched an urgent application to intervene
as applicants and to be
joined as such in the main application under application no. 568/07.
After I heard argument on behalf of
first to fourth applicants, first
to fifth respondents and the intervening applicants, it was evident
that all parties were
ad idem
that the intervening applicants
were to be joined. However, because they did not at that stage know
what my judgment in the main
application was going to be, they left
it in my discretion whether to first give judgment and then to join
fifth to seventh applicants
or
vice versa
. For the reasons
already advanced on that day, I then ordered that I was going to give
judgment in the main application before joining
the intervening
applicants as fifth to seventh applicants in the main application.
7. Subsequent to the
handing down of my previous judgment in the main application, I
granted the following order by agreement between
the parties in the
joinder application under application no. 1444/07:
“By agreement
between the parties:
1. Condonation is granted for the
non-compliance with the rules of court and the application is heard
as one of urgency in terms of
Rule 6(12).
2. The
following persons are given leave to intervene as applicants and are
joined as such in application no. 568/2007 as applicants
5, 6 and 7
namely
George
Pogisho Helepi
Jabulani
Velaphi Mazibuko
Mamoitheri Lucy HHHhhelepi
3. Fifth, sixth and seventh applicants
are granted leave to file their founding affidavits under application
no. 568/2007 on or before
17 April 2007.
4. The
respondents in application no. 568/2007 are to file their answering
affidavits in response to the aforesaid founding affidavits
on or
before 10 May 2007.
5. First
to seventh applicants are to file their replying affidavits, if any,
on or before 17 May 2007.
6. No
order as to costs.”
[3] The hearing on 24 May
2007 was therefore consequent upon my previous order made in my
previous judgment on 4 April 2007.
[4] At
the outset of the hearing of the application on 24 May 2007, it was
unfortunately clear that my previous order had not properly
and duly
been complied with, as a result of which certain procedural
deficiencies still existed in the application that to be addressed.
[5] I
consider it efficacious to deal with the situation of the first to
fourth applicants separately from the situation of the fifth
to
seventh applicants.
FIRST TO FOURTH
APPLICANTS:
[6] The main reason why I
gave such a detailed order in my previous judgment was in an attempt
to ensure that all procedural deficiencies
in the first to fourth
applicants’ application will be rectified so that the application
can (at last) be right for adjudication
on the merits thereof on 24
May 2007. This unfortunately did not materialise. Despite my
previous order and despite the history
of the remissness of first to
fourth applicants and/or their attorney of first instance as
documented in my previous judgment, the
following transpired from the
papers currently before court:
1. In terms of paragraphs
1.5 and 1.6 of my previous order, the re-drawn and re-attested
affidavits, as well as the explanatory affidavit
referred to in
paragraph 1.6 of my previous order, were to be filed by the first to
fourth applicants on or before 23 April 2007.
These affidavits were
however only filed on 24 April 2007.
2. In terms of paragraph
4 of my previous order first to fourth applicants’ attorney of
first instance, Mr. Sizephe, was to advance
reasons under oath on or
before 23 April 2007 why he should not be ordered to pay the costs
de
bonis propriis
referred to in paragraph 5 of my previous order.
These reasons are contained in the same affidavit referred to in
point 1 above,
which was only filed on 24 April 2007.
3. In
terms of paragraph 2.1 of my previous order first to fourth
applicants were ordered to serve the notice referred to therein
(hereinafter referred to as “the notice to interested parties”)
in terms of the court rules on the seventeen persons identified
in
respondents notice of joinder (hereinafter referred to as “the
seventeen persons”) on or before 17 April 2007. It appears
from
the returns of service (which incidentally were also only handed to
me from the Bar and not filed timeously in the court file
in terms of
the practice of this court) that of the seventeen persons, service
was affected in terms of the court rules and timeously
in terms of my
previous court order on only five of those persons. On five of the
other persons service was affected in terms of
the court rules, but
not on or before 17 April 2007 as stipulated in my previous order.
On seven of the seventeen persons there
was attempted service but
without success.
4. In
terms of paragraph 2.2 of my previous order first to fourth
applicants were ordered to effect publication of the notice referred
to therein once in the Volksblad and once in The Star on or before 17
April 2007. Although the said notice was published in The
Star on 17
April 2007, the notice in the Volksblad was only published on 18
April 2007.
5. First
to fourth applicants’ heads of argument, like the heads of argument
of the other parties, should have been served and filed
in terms of
the well-known practice of this court on or before 15h00 on 22 May
2007. The first to fourth applicants’ first set
of heads of
argument was in fact filed at court on 22 May 2007, but only after
15h00. During the hearing of the application I was
informed by Mr.
Wessels, assisted by Mr. Fischer, appearing on behalf of the
respondents, that the said heads of argument was never
served upon
respondents’ attorney of record. Respondents’ attorney of record
only received a facsimile copy of the said heads
of argument and also
only at 15h07,hence also after 15h00 on 22 May 2007.
6. First to fourth
applicants filed an application for condonation in which condonation
was requested in the following terms:
“
(a) That the late publication of
the notice to the interested parties published in the Volksblad of 18
April 2007 be condoned;
(b) That
the late delivery of the affidavit of Mr. Sizephe be condoned.”
This application for
condonation was however only filed at court by means of receipt
thereof by my clerk on 23 May 2007 at 14h50.
It is evident from the
said application that it was served upon the respondents’ attorneys
of record on 23 May 2007 at 13h00.
[7] As mentioned herein
earlier, I dealt extensively with the procedural deficiencies and
irregularities in the application papers
of first to fourth
applicants in my previous judgment. I also recorded my displeasure
with the way in which the applicants and/or
the applicants’
attorney of first instance, Mr. Sizephe, has been handling this
application up to that stage. In this regard I
consider it necessary
to refer to certain extracts from my previous judgment, which dealt
with these issues:
“
In
this application it is in my view in the interests of justice that
the following principles reiterated in
SULIMAN
v RAJARATHENAM AND OTHERS
1964 (3) SA 262
(NPD) at 265 G – H should prevail:
“
...in the absence of prejudice,
‘
technical objections to less than
perfect procedural steps should not be permitted to interfere with
the expeditious and, if possible,
inexpensive decision of cases on
their real merits’
per Schreiner, J.A. in
Trans-African
Insurance Company Ltd v Maluleka
1956 (2) SA 273
(AD) at p. 278
and to enable litigants, without
formalism,
‘
to
come to grips with the real issues between them’ per Herbstein J in
Prudential
Assurance Company Ltd v Crombie
1957
(4) SA 699
(C) at p. 702.”
(See my previous
judgment, p.30 –31)
“
As
recorded earlier, I considered it in the interests of justice to have
taken a lenient approach with regard to the “condonation”
thereof
in deciding the application to strike out. However, I have to express
my dismay, and actually my shock, with the ineptitude,
carelessness,
gross negligence and total lack of conscientious conduct which is
reflected by the poor state of the condition of the
application
papers filed on behalf of the applicants.
The whole of the hearing on Thursday
was spent on presenting and hearing arguments pertaining to issues
which resulted as a direct
consequence of the late filing of the
joinder application and the severe and numerous procedural
shortcomings in the application
papers filed on behalf of the
applicants. In fact, the necessity for this very judgment is also
only and exclusively as a result
of the aforesaid conduct on behalf
of the applicants.”
(See my previous
judgment, p.43)
[8] The type of conduct
of the first to fourth applicants’ attorney, Mr. Sizephe, recorded
in points 1 to 6 above, is similar to
the very conduct with which I
expressed my utmost displeasure in my previous judgment.
[9] The
question which I now have to address and adjudicate is whether the
aforesaid procedural deficiencies and/or irregularities
which now
still exist in the first to fourth applicants` application papers
and/or are additional consequences as a result of first
to fourth
applicants’ (or rather their attorney’s) failure to properly
adhere to my previous order and/or the rules of court
and/or the
rules of practice in this Division, can and/or should be tolerated
and/or condoned any further.
[10] Like
reflected in my previous judgment, the court is reluctant to penalise
a party for its attorney’s conduct. However, where
failure to
comply with the rules is due to neglect on the part of that party’s
attorney, there are limits beyond which a party
cannot escape the
results of its attorney’s lack of diligence.
[11] In
SALOOJEE
AND ANOTHER, NNO v MINISTER OF COMMUNITY DEVELOPMENT
1965 (2)
SA 135
(AD) at 141 B – H the relevant principles were stated as
follows:
“
In
Regal
v African Superslate (Pty.) Ltd.
,
1962 (3) SA 18
(AD) at p. 23, also, this Court came to the conclusion
that the delay was due entirely to the neglect of the applicant's
attorney,
and held that the attorney's neglect should not, in the
circumstances of the case, debar the applicant, who was himself in no
way
to blame, from relief. I should point out, however, that it has
not at any time been held that condonation will not in any
circumstances
be withheld if the blame lies with the attorney. There
is a limit beyond which a litigant cannot escape the results of his
attorney's
lack of diligence or the insufficiency of the explanation
tendered. To hold otherwise might have a disastrous effect upon the
observance
of the Rules of this Court….The attorney, after all, is
the representative whom the litigant has chosen for himself, and
there
is little reason why, in regard to condonation of a failure to
comply with a Rule of Court, the litigant should be absolved from
the
normal consequences of such a relationship, no matter what the
circumstances of the failure are. A litigant, moreover, who knows,
as
the applicants did, that the prescribed period has elapsed and that
an application for condonation is necessary, is not entitled
to hand
over the matter to his attorney and then wash his hands of it. If, as
here, the stage is reached where it must become obvious
also to a
layman that there is a protracted delay, he cannot sit passively by,
without so much as directing any reminder or enquiry
to his attorney
and expect to be exonerated of all blame; and if, as here, the
explanation offered to this Court is patently insufficient,
he cannot
be heard to claim that the insufficiency should be overlooked merely
because he has left the matter entirely in the hands
of his attorney.
If he relies upon the ineptitude or remissness of his own attorney,
he should at least explain that none of it is
to be imputed to
himself. That has not been done in this case.”
The aforesaid principles
were again confirmed in
ADMINISTRATEUR, TRANSVAAL v VAN DER
MERWE
[1994] ZASCA 83
;
1994 (4) SA 347
(AA) at 357 G – H:
“
Die kumulatiewe effek van die
opeenvolgende vertragings en swak bestuur van die appèlverrigtinge
deur appellant se prokureur laat
die vraag ontstaan of hierdie nie 'n
gepaste geval is waar die appellant die spit moet afbyt vir sy
prokureur se gebrek aan vaardigheid
nie.”
[12] It should be
mentioned that in the last mentioned matter of
ADMINISTRATEUR,
TRANSVAAL v VAN DER MERWE
the application for condonation was
granted despite the continuous remissness in the attorneys’
handling of the matter, which decision
in favour of the condonation
was based on the following dicta at 357 I of the said case report:
“
Na veel aarseling, meen ek dat die
meriete van die appèl in hierdie geval maar die deurslag moet gee.
Teenoor die verwyt wat ongetwyfeld
voor die deur van appellant se
prokureur gelê moet word, staan die feit dat appellant nie 'n
private instansie is nie. Appellant
beheer openbare fondse, dit wil
sê belastingbetalers se geld, en daar is 'n element van openbare
belang op die spel. Ook is die
beantwoording van die vrae wat in
hierdie aangeleentheid na vore kom, kwessies wat die openbare belang
raak.”
The last mentioned
considerations are similar to the considerations that compelled me in
my previous judgment to have condoned the
conduct of the applicants’
attorney to the extent I did. However, the important difference in
the current circumstances is the
fact that the applicants’ attorney
again showed conduct that resulted in the non-compliance with the
court order and/or the court
rules and/or the practice of this court
despite the displeasure and dissatisfaction that I showed with this
type of conduct in my
previous judgment.
[13] However, in order to
come to a proper decision it is necessary to look at the nature and
extent of the respective failures to
comply with time limits and/or
procedures and the explanations, if any, for such conduct. I do not
necessarily intend to deal with
it in the same order as it was listed
in paragraph 6 above, because I consider it expedient in the
circumstances to first deal with
the application for condonation,
after which I will deal with the other failures and consequent
deficiencies.
[14] As previously
indicated, the application for condonation which requests condonation
for the late publishing of the notice to
interested parties in the
Volksblad and the late delivery of the affidavit of Mr. Sizephe
regarding the re-attested affidavits and
the reasons he should not be
ordered to pay certain costs
de bonis propriis,
was only filed
and served on the afternoon of 23 May 2007, hence, the afternoon
immediately preceding the hearing of this application.
This is
despite the fact that the respondent already raised first to fourth
applicants’ aforesaid non-compliance with my previous
order in
their answering affidavits which they filed in response to fifth to
sixth respondents’ founding affidavits and which answering
affidavits were filed on 10 May 2007 already. Therefore, despite
having been pertinently made aware of their aforesaid failures
to
comply with the time limits set out in my previous order, first to
fourth applicants, and more particularly their attorney, only
attested to the affidavit filed in support of the application for
condonation on 22 May 2007, which application was only served and
filed on 23 May 2007.
[15] It is trite that an
application for condonation should be filed as soon as a party
realises that it had not complied with a specific
rule and/or court
order and/or time period. (See
DE BEER EN 'N ANDER v WESTERN
BANK LTD
1981 (4) SA 255
(A) at 257 A – B.) In this
instance first to fourth applicants (and their attorney) provided no
reason whatsoever for the late
filing of the application for
condonation as such. In this regard it should be recorded that Mr.
Wessels indicated that respondents
wish to oppose the application for
condonation by the filing of appropriate answering affidavits, but
due to the late filing of the
application, they have not had such an
opportunity.
[16] In addition to the
aforesaid, it is a well-known principle that condonation for the
non-observance of the rules of court and/or
time periods stipulated
in a court order is by no means a mere formality. It is for the
applicant to satisfy the court that there
is sufficient cause for
excusing him from compliance. (See
MEINTJIES v H D COMBRINCK
(EDMS) BPK
1961 (1) SA 262
(AD) at 264.)
[17] In this instance the
explanation that was given by Mr. Sizephe for the late filing of his
affidavit and the attachments thereto,
only refers to alleged limited
available time due to time spent on the preparation of a similar
application than the current one.
Without expressing my view of the
allegation that close to nineteen hours per day were worked for
almost three weeks for purposes
of the preparation of the other
similar application, it suffice to say that in my view the
explanation contained in this affidavit
is not even “remotely
satisfactory”. In addition to this, there is no explanation by or
on behalf of the first to fourth applicants
themselves to explain
that the conduct of their attorney can or should not be imputed to
them, especially considering the previous
similar conduct of the said
attorney. In my view this is also a situation where the explanation
for the failure to observe the relevant
time limits is so
unsatisfactory that not even the possible good prospects of success
can save the application for condonation under
these particular
circumstances. In
IMMELMAN v LOUBSER EN ‘N ANDER
1974 (3) SA 816
(AA) at 824 C – G this principle was cited as
follows:
“
Redelike vooruitsigte op sukses by
appèl is natuurlik ook 'n belangrike oorweging. Maar hoewel dit 'n
belangrike oorweging is, is
dit nie noodwendig in elke geval 'n
deurslaggewende oorweging nie….
In
die huidige geval was daar, aan die kant van een of ander van die
applikant se prokureurs, in 'n heel aantal opsigte gebrek aan
nakoming van die Reëls van die Hof wat 'n lang versuim tot gevolg
gehad het. Daarby is ook die omstandigheid dat geen voldoende
verduidelikings aangebied is nie, hetsy vir die fout wat begaan is
met die aantekening van appèl hetsy vir die versuim wat daar
was om
afskrifte van 'n volledige oorkonde betyds in te dien nadat die
getikte oorkonde bekom is. Boonop is daar nie behoorlik aansoek
gedoen om kondonasie van die applikant se versuim om betyds die
Griffier in kennis te stel dat sekuriteit vir die respondente se
koste verskaf is nie, en geen rede is aangebied waarom daar in
hierdie verband versuim was nie.
Onder
genoemde omstandighede kon daar nie verwag word dat hierdie Hof
toeskietlik moes wees op grond van beweerde belowende vooruitsigte
op
sukses by appèl nie…. Die applikant se aansoeke is gevolglik, om
die redes hierbo genoem, afgewys.”
[18] For
the aforesaid reasons, in addition to the late filing of the
application for condonation without any explanation for it,
I have no
other option but to dismiss the application for condonation for the
late filing of Mr. Sizephe`s affidavit and the annexures
thereto.
[19] With
regard to the explanation tendered for the late publication of the
advertisement of the notice to interested parties in
the Volksblad,
the application for condonation referred to the explanation set out
in Mr. Sizephe’s affidavit dated 18 May 2007.
This affidavit is an
affidavit that was filed as part of replying papers in response to
answering papers that respondents filed
simultaneously with the
answering papers that they filed in response to the founding papers
of fifth to seventh applicants. As will
be evident hereinafter, the
respondents were not allowed to file those further answering papers.
That is probably also why the first
to fourth applicants’ indicated
on the filing sheet of the said affidavits that it is filed to oppose
the filing of further papers
by the respondents, but should the
respondents’ answering papers be allowed, the said papers of first
to fourth applicants should
be considered to be replying papers.
Consequently, for purposes of the merits of the application regarding
first to fourth applicants,
the further replying affidavits that were
filed by first to fourth applicants were also not allowed and cannot
be considered.
I
should also mention that first to fourth applicants were entitled to
file replying affidavits in response to the answering affidavits
that
respondents filed on 10 May 2007 in terms of the order I granted in
the application for intervention by fifth to seventh applicants.
However, if the aforesaid affidavit of Mr. Sizephe was intended to
have been filed in reply to those answering papers, in terms of
the
order I issued in the application for intervention, the replying
papers were supposed to have been filed by 17 May 2007, whilst
this
affidavit of Mr. Sizephe was only filed on 18 May 2007 – late
again. It can therefore also not be considered on this basis.
However, even if I were
willing to consider the explanation tendered by Mr. Sizephe in his
further replying affidavit of 18 May 2007
regarding the late
publication of the notice solely for purposes of the application for
condonation, it will still make no difference.
It is evident from the
explanation advanced that despite the fact that my previous order was
issued on 4 April 2007, Mr. Sizephe’s
office only approached the
offices of the Volksblad regarding the proposed advertisement on 10
April 2007. Despite having received
a quotation on 10 April 2007
already, nothing further was done regarding this advertisement before
16 April 2007 when he personally
made contact with the Volksblad.
Only then further arrangements regarding payment etc. were made. It
is therefore evident that
once again there was a failure to attend
timeously to the arrangements to effect timeous publication.
[20] For the same reasons
I have already recorded regarding the explanation pertaining to the
late filing of Mr. Sizephe’s affidavit
and the newly attested
affidavits attached thereto, I do not consider this explanation to be
satisfactory under the circumstances.
This factor, in addition to
the late filing of the application for condonation without any
explanation therefore, necessitates me
to also dismiss the
application for condonation regarding the late publication of the
notice in the Volksblad.
[21] Considering the
aforesaid dismissal of the application for condonation, the affidavit
of Mr. Sizephe dated 23 April 2007, together
with the annexures
thereto, filed on 24 April 2007, cannot be considered to be part of
the application papers before court. This
has the consequent result
that the newly attested affidavits filed together with Mr. Sizephe’s
aforesaid affidavit, should be considered
to be
pro non scripto
.
This has the result that the objections raised in paragraphs 8, 10,
12, 14 and 16 of respondents’ previous application to strike
out
and which in terms of paragraph 1.8 of my previous order stood over
for adjudication on 24 May 2007, are to be successful and
the
application is to be granted.
[22] With
regard to the late and/or non-service on the seventeen persons, there
is no application for condonation with regard to this
failure of the
first to fourth applicants. The only reference made to this in the
application for condonation was one paragraph
that reads as follows:
“
In
conclusion I also want to draw the attention of Honourable Court the
fact that ANNEXURE “X” to the judgment of this Honourable
Court
dated 4 April 2007 was send and received by the respective sheriff
on/or before the 16 April 2007 to be served on the affected
and
interested parties.” (
sic)
In
my view this paragraph adds insult to injury. I understand this
paragraph to mean that despite the fact that the court order was
issued on 4 April 2007 already, Mr. Sizephe once again delayed in
taking action in ensuring that service takes place timeously in
that
he apparently only provided the sheriff with the instruction to serve
on 16 April 2007. This inference is actually confirmed
by the
details appearing on the returns of service to which I referred
earlier. The earliest date, on which any of the successful
service
and/or attempted service took place, was on 17 April 2007. In those
instances where service and/or the first attempt to
serve did not
take place on 17 April 2007, it took place on even later dates such
as 18 April 2007, 20 April 2007, 27 April 2007
and even so late as on
8 May 2007. Had the instructions been given to the respective
sheriffs at an earlier date, any problems with
service could and
would have been ascertained also at earlier dates and then there
probably would have been time for first to fourth
applicants to still
have attempted to resolve difficulties with correct addresses,
possibly approach court with an application for
substituted service
etc. But due to the late instruction given to the respective
sheriffs there was no time to attend to the problems
that were
incurred during attempted service. Be that as it may, paragraph 2.1
of my previous order was therefore also not properly
and/or timeously
complied with, without any explanation for it.
[23] With regard to the
failure to timeously publish the notice in the Volksblad as ordered
in paragraph 2.2 of my previous order,
I have already dismissed the
application for condonation with the regard to this failure.
Therefore this part of the said order
was also not adhered to by
first to fourth applicants.
[24] As already indicated
above Mr. Sizephe’s explanatory affidavit in which he was to
provide reasons why he should not be ordered
to pay certain costs
de
bonis propriis
which was supposed to have been filed by 23 April
2007, was only filed on 24 April 2007. I have already determined
that the application
for condonation for the late filing thereof is
to be dismissed and therefore it is to be considered that no such
reasons have been
advanced. However, I will again deal with this
aspect when I deal with the issue of costs.
[25] With regard to first
to fourth applicants late and improper filing of their heads of
argument, Mr. Wessels referred me to the
case of
GENERAL
ACCIDENT INSURANCE CO SOUTH AFRICA LTD v ZAMPELLI
1988 (4) SA
407
(C) at 409 D – H, which judgment dealt with Rule 49(15)
regarding the delivery of heads of argument in appeals from the
Supreme
Court. Based on this judgment, read with Rule 4(aA) and the
definition of deliver in Rule 1, he submitted that not only was the
heads of argument filed late at court, but the manner in which it was
received by the respondents’ attorneys of record is also
not
acceptable and not in accordance with the Rules of Court and the
accepted practice in this division. I agree with this contention.

However, it is a well known principle that heads of argument are
mainly there for the convenience of the court. Therefore, although
there is no application for condonation regarding the late and
improper filing and delivery of the heads of argument, I am still
willing to consider the said heads of argument in support of the
first to fourth applicants’ case. But this does not detract from
the fact that only once again there was a lack of timeous attention
and/or conscientious conduct in the handling of the application
on
behalf of first to fourth applicants, which unfortunately, has been
evident throughout these proceedings.
[26] Considering the
remissness on the part of first to fourth applicants, and more
specifically their attorney, Mr. Sizephe, as
documented in my
previous judgment, read together with their continuing and seemingly
perpetual remissness for which they, and more
specifically their
attorney, failed to ask, alternatively failed to show good cause for
condonation, have reached the point where
first to fourth applicants
can no longer escape the results of their attorney’s lack of
diligence. The remissness, ineptitude,
carelessness and total lack
of conscientious conduct in the handling of this application by Mr.
Sizephe, have unfortunately resulted
in a situation where first to
fourth applicants’ prospects of success can no longer save their
application. (See
IMMELMAN v LOUBSER EN ‘N ANDER,
supra,
at 824 C – G)
[27] In
MAKUWA v
POSLSON
2007 (3) SA 84
(TPD) at 88 F the following applicable
principle was also again confirmed:
“
Finally,
there appears to be a growing prevalence of failure to comply with
the Rules of Court and having a total disregard for the
practice in
this Division as enjoined by the Manual. Coetzee J, in
Reitmann
v Jansen van Rensburg
1984 (2) SA 174
(W) at 179 H, said:
‘
Rules are made to be followed and
Rules are there so that rights and duties flow; in the event of
non-compliance legal results flow.’”
[28] Whilst in my
previous judgment I considered it in the interests of justice and of
all relevant parties to be lenient towards
the procedural defects in
order to come to a point where the merits of the application can be
adjudicated, the proceedings between
first to fourth applicants and
respondents have now come to a point where it will be a travesty of
justice should I further condone
and tolerate the manner in which
this application has been handled on behalf of first to fourth
applicants. Mr. Danzfuss, assisted
by Mr. Edeling, acting on behalf
of first to fourth applicants, also duly conceded after the taking of
instructions that he cannot
responsibly submit that the aforesaid
failures and deficiencies should be condoned and he also conceded
that the rule
nisi
should be discharged as between first to
fourth applicants and the respondents.
[29] The legal result
that flows from the aforesaid is that I have no other option but to
discharge the rule
nisi
currently in place as between first to
fourth applicants and respondents. By doing this, the doors of the
court will in any event
not be closed to first to fourth applicants
as they will still be entitled to institute their proposed
application for review.
[30] Although I do not
have to adjudicate the merits of this part of the application anymore
due the aforesaid necessitated discharge
of the rule
nisi
, I
do consider it apposite and in fact necessary in the circumstances of
this application to remark that if my previous order had
been
properly complied with to the extent that the procedural deficiencies
had been rectified, I would have confirmed the rule nisi
as between
first to fourth applicants and respondents. In my view they duly made
out a
prima case
for purposes of obtaining the interim relief.
The alleged irregularities in the meetings that lead up to the
election of the REC,
are of very serious nature.
[31] I
will deal with the issue of costs at the end of this judgment.
Fifth to seventh
applicants:
[32] As previously
indicated herein, fifth to seventh applicants were joined in these
proceedings immediately after the handing down
of my previous
judgment on 4 April 2007. My intention with the order of
intervention and subsequent joinder which I issued under
application
number 1444/07, was that the rule
nisi
which I issued on 16
February 2007 was also to operate in favour of fifth to seventh
applicants. As furthermore indicated herein
earlier, the aforesaid
order was granted by agreement between the parties and my distinct
impression from all relevant parties was
that they were
ad idem
that the rule
nisi
previously issued, was also to operate in
favour of fifth to seventh applicants. This is also in accordance
with the legal position,
which is stated as follows in
Superior
Court Practice,
Erasmus, at B1–104:
“
When leave to intervene is granted
by the Court, the party given it is placed in the same position as
and is clothed with the same
rights as the parties, unless of course
such rights are specifically curtailed.”
[33] Therefore, in my
view the rule
nisi
which I issued on 16 February 2007 is still
in place as between fifth to seventh applicants and respondents
despite the proposed
discharge thereof as between first to fourth
applicants and respondents.
[34] The particular
question that now has to be addressed is whether this rule
nisi
should now be discharged, extended or confirmed.
Joinder
and service:
[35] Like
I have already indicated herein earlier, when my previous judgment
was handed down, fifth to seventh applicants were not
yet parties to
these proceedings. In their application for intervention they also
only cited first to fifth respondents. Technically
speaking their
application had the same procedural problems than the main
application of first to fourth applicants regarding non-joinder
of
interested parties as respondents. However, this issue was not
raised by any of the parties at the time when the application
for
intervention by fifth to seventh applicants was heard. This is
probably because at the time when I granted the order allowing
them
to intervene and consequently joining them as fifth to seventh
applicants, all parties hereto, and myself, had the reasonable
expectation that first to fourth applicants will comply with my
previous order which would have had the result that any procedural
defects that existed at the time when fifth to seventh applicants
intervened, would then have been rectified. My previous order
did
not place any obligation on fifth to seventh applicants to take any
steps pertaining to service of the notice to interested parties
on
the seventeen persons and/or the publication of the said notice in
the two newspapers. This obligation rested squarely and solely
on
the shoulders of the first to fourth applicants. First to fourth
applicants’ failure to have complied with this obligation,
did
however also affect the fifth to seventh applicants’ application.
The question arises whether first to fifth applicants’
failure to
comply with my previous order pertaining to service and publication
of the notice to interested parties is now also fatal
to fifth to
seventh applicants’ application with regard to the question of
non-joinder.
[36] It
should immediately be emphasised that fifth to seventh applicants’
current position is totally different from the position
in which
first to fourth applicants found themselves during the hearing on 29
March 2007 and also again during the hearing on 24
May 2007 as a
result of their failure to comply with certain parts of my previous
order. In this regard I wish to point out the
following:
1. When fifth to seventh
applicants intervened, they found the papers as they stood at that
time, hence, without the seventeen persons
having been joined as
respondents. They did not initiate the main application with the
initial failure to cite the said seventeen
persons.
2. My
previous order did not put any obligation on them to take any steps
regarding the non-joinder of the seventeen persons and they
were
consequently not the parties who failed to comply with certain
provisions of my previous order.
3. They have up to now
not been remiss in any way in the manner in which they have been
conducting this application. Although they
intervened at quite a
late stage of the proceedings, the reason for this late intervention
was duly and properly explained in their
application for intervention
(see application for intervention, application no. 1444/07, par. 2 to
3, p. 7 to 8).
4. At
the time of the previous hearing on 29 March 2007, no publication of
any sorts inviting any potential parties who may have an
interest in
this application, to intervene as respondents, has yet been effected,
The current situation is that in the meantime
the notice to
interested parties had been published in two newspapers, one of which
has regional circulation and one of which has
national circulation.
[37] I consequently have
to decide whether under the current circumstances I am satisfied that
the adjudication of this application
can proceed without any further
service and/or notice to any persons and/or entities, or whether such
further notice and/or service
is necessary. Even should I decide
that further notice and/or service is in fact necessary, I will not
dismiss the application of
fifth to seventh applicants like I intend
doing with first to fourth applicants’ application. Because of the
reasons already listed
above, fifth to seventh applicants should then
be granted a fair opportunity of their own to rectify and cure such
procedural defect,
like I did in favour of first to fourth applicants
in my previous order. Should I however find that for purposes of
fifth to seventh
applicants’ application as it currently stands I
am satisfied with the notice and/or service that had been effected up
to now,
I will obviously continue to address the other remaining
issues.
[38] As previously
pointed out, fifth to seventh applicants did not fail to comply with
any court order pertaining to publication
and/or service of the
notice. The fact that publication in the Volksblad was effected one
day later than what my court order prescribed,
is therefore in my
view irrelevant for purposes of fifth to seventh applicants’
situation. The fact that service of the notice
to interested parties
on the seventeen persons that I ordered in my previous order was not
fully complied with, also does not reflect
negatively in any manner
on fifth to seventh applicants. The only question which needs to be
addressed is whether or not I am satisfied
at this stage of the
proceedings with the effectiveness of the service that has occurred,
in the sense that I must be satisfied that
persons and/or entities
who have or might have a direct and substantial interest in the
current application had been duly informed
of their right to
intervene as respondents and of the fact that their failure to do so
will have the implication that they will be
bound by my judgment. I
am of the view that I am not bound by the instructions pertaining to
service that I gave in my previous
order and I am entitled to review
those in the current circumstances considering that:
1. my previous court
order did not put any obligation pertaining to the effecting of
service and/or publication on fifth to seventh
applicants;
2. two
publications of the notice had in the meantime been effected in two
newspapers;
3. further
information regarding the feasibility of service upon the seventeen
persons have been forthcoming since the previous hearing;
and
the totality of the
circumstances of this application.
(See
EX PARTE
OPTIMAL PROPERTY SOLUTIONS CC
2003 (2) SA 136
(CPD) at
141 G to 142 E. Although in that case the court on the return date
of a rule
nisi
was not satisfied with a particular form of
service that had previously been sanctioned by the court and ordered
additional and better
service, I am of the view that the principle,
being that the court can reconsider the adequacy of service at the
return date of a
rule
nisi
, will also be applicable in an
instance such as this application where there have been changed
circumstances in the meantime.)
[39] Before I continue to
consider the adequacy of service which had been effected in this
application, I deem it necessary to clarify
my previous judgment in
one respect which was raised and questioned during argument in court
on 24 May 2007. There seems to be uncertainty
amongst the parties as
to my intention with the order that is reflected in paragraph 2 of my
previous order pertaining to the application
for joinder. When this
issue was raised during argument, I was, for the moment, also unsure
about the implication of that order,
which uncertainty was only due
to the fact that at that stage I had not again read my previous
judgment since the day it was handed
down. The apparent uncertainty
is whether the order which I issued meant that the seventeen persons
were in fact joined as sixth
to twenty-second respondents or not.
From a proper reading of my previous judgment it is clear that the
seventeen persons had in
fact not been joined as respondents and that
it was never my intention to have done so by means of the order which
I granted in paragraph
2 of my previous order. In this regard I wish
to refer to an extract from my judgment appearing on pages 40 to 41
thereof, which
reads as follows:
“In my view the
said respondents cannot be joined as respondents in the absence of
service upon them of the application. I therefore
intend to provide
in my order for appropriate service upon them, pursuant to which they
can decide whether they wish to intervene
as respondents or not.”
This intention with and
meaning of my order is furthermore confirmed by the fact that the
notice to interested parties which I ordered
should be served upon
the seventeen persons, stated,
inter alia
, that:
“… are hereby
invited to intervene as respondents in the abovementioned
application. Should you wish not to intervene as respondents,
you
will be considered to abide by the decision of the Court.”
The
seventeen persons were therefore not joined as respondents, but were
invited to intervene as respondents, should they so wish,
in the
absence of which they will be considered to be bound by the decision
of court. When I used the words “the application for
joinder
issued under application number 1329/2007 is granted on the following
terms” I did not mean that the seventeen persons
are in fact being
joined as respondents. If I had intended that, I would have made an
order as part of paragraph 2 of my previous
order that they in fact
are being joined as sixth to twenty-second respondents, as prayed for
in prayer 1 of the Notice of Motion
in the application for joinder.
By using the aforesaid words my intention was to say that the orders
that I grant in the application
for joinder were the orders contained
in subparagraphs 2.1, 2.2 and 2.3 of my previous order.
[40] The
seventeen persons had therefore not been joined as respondents.
[41] From
the information currently before Court, more particularly so from the
returns of service which was handed to me from the
Bar on behalf of
first to fourth applicants, it is evident that service could not be
effected on all seventeen persons. This appears
to have been mostly
because either the specific person was unknown at that particular
address or the premises at the particular address
was found to be
unoccupied. From a comparison between the returns of service and the
report of the tracing agents attached to first
to fourth applicants’
application for joinder as annexure P5, it appears that even some of
the addresses which were provided by
the said tracing agents, were
apparently incorrect in that those premises were found to be
unoccupied.
[42] It
is furthermore evident from the aforesaid report of the tracing
agents that problems were encountered in their attempts to
obtain the
addresses of the seventeen persons in that they did not receive the
co-operation of the officials from whom they made
enquiries. It
therefore appears that not only will it be a time-consuming and
costly exercise to again order service upon the seventeen
persons in
terms of the court rules, but on probabilities it will in any event
not be practically possible to do so considering the
lack of
information regarding their residential and/or work addresses.
[43] The
substituted service by means of the publication of the notice to
interested parties in two newspapers have however taken
place and
although the advertisement in the the Volksblad was one day late, any
person who wished to intervene as respondent would
still have had
enough time to do so. I deem it necessary to consider to what extent
the said publications can be considered to have
been effective
service under the circumstances, both for purposes of the seventeen
identified persons and for unknown and unidentified
persons and/or
entities.
[44] In
AMALGAMATED
ENGINEERING UNION v MINISTER OF LABOUR
1949 (3) SA 637
at 651
and 653 the following dicta appear:
“
We
are not, of course, dealing with judgments
in
rem
,
such as decrees of divorce, or with cases in which the Court, by the
publication of a rule
nisi
,
gives all parties who may consider themselves interested an
opportunity of appearing to oppose the grating of an order, with the
implication that they should be bound by it if they fail to do so.”
and
“
It
is, of course, a well-known practice of our Courts to issue a rule
nisi
in appropriate cases, calling upon parties not before the Court to
show cause why an order which may affect them, should not be made.”
In
EX PARTE SENGOL
INVESTMENTS (PTY) LIMITED
1982 (3) SA 474
(TPD) at 478 A to E
the aforesaid approach was reconfirmed:
“
It
follows that the State is a necessary party and should be joined in
these proceedings unless I am satisfied that the State has
unequivocally waived its right to be joined and undertaken to be
bound by any decision the Court may make.
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 367
(A)
.
…
In
stating the rule that a Court should not make an order that may
prejudice the rights of parties not before it, FAGAN AJA, [in
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
(A)] who delivered the judgment in the latter case, expressly
excluded the case where a rule
nisi
issued, in these words (at
651):
'We
are not...dealing with cases in which the Court, by the publication
of a rule
nisi,
gives all parties who may consider themselves
interested an opportunity of appearing to oppose the granting of an
order, with the
implication that they should be bound by it if they
fail to do so.'
(See also at 653.)
A rule nisi is a judicial invitation
to join issue and the failure to appear after proper notice thereof
is regarded as a waiver of
the right to be joined and a submission to
the order of the Court. In these circumstances service of the rule
nisi
which I will order will obviate the joinder of the
State.”
The Appeal Court (as it
then was) endorsed the aforesaid expedient process in
EDEN
VILLAGE (MEADOWBROOK) (PTY) LIMITED v EDWARDS
1995 (4) SA 31
(AD) at 47 C to 49 C where the following relevant extracts appear:
“
In
the light of the dicta contained in
Amalgamated
Engineering Union v Minister of Labour
1949 (3) SA 637
(A)
and the cases there referred to, it seems to me that this attitude
was justified in the present instance. In view of the fact that
the
objection had only been taken in this Court, and not in the Court
a
quo
,
and in the light of the tenuous nature of the interest, Mr. Cooper
submitted, however, that we should adopt the expedient process
referred to in the
Amalgamated
Engineering Union case supra at 663
…
This would not only expedite the
decision in this matter, but it would also avoid causing the parties
unnecessary expense and delay.
Mr. Slomowitz agreed with this
submission.
We accordingly issued a direction to
the respondents’ attorneys to notify all the residents of Eden
Village of these proceedings
and of the declaratory order granted by
the Court
a quo
; and to publish this order in a conspicuous
place in the village. Residents were called upon, within a period of
two weeks from
such notification and publication to indicate to the
registrar whether or not they consented to be bound by the judgment
of this
Court, notwithstanding the fact that they had not been cited
as parties to the proceedings. …
This direction was complied with by
respondents’ attorney, and an affidavit confirming this was filed
by him. …
The
attorneys have now informed the registrar that, on reconsideration,
their clients had decided to abide by the decision of the
Court.
This appeal may therefore be considered on the basis that all the
residents of Eden Village are bound by our decision, despite
the fact
that they had not formally been joined as parties to the suit.”
[45] Considering that on
probabilities it is evident that fifth to seventh applicants will not
be able to serve the said notices upon
the seventeen persons in terms
of the court rules, strictly speaking they should bring an
application for substituted service (see
OLIVIER v AHRENS
1964 (1) SA 178
(OPD)). They were not in a position to have brought
such an application before the hearing of this application on 24 May
2007, as
they could not have ascertained whether the notice to
interested parties had in fact been served timeously or at all on the
seventeen
persons, considering that the returns of service were only
handed to me from the Bar on the day of the hearing. In order to
enable
them to bring such an application, this application will have
to be postponed again. Considering the information currently before
court, they will probably be successful with such an application for
substituted service. In my view it is nonsensical to insist
upon
such a formal application, only to then authorise substituted service
and order publication of a similar notice to interested
parties than
the one that had already been published in two newspapers. A
repetition of this process will serve no purpose.
[46] The
notice to interested persons clearly and unequivocally stated that
the application was to be heard on 24 May 2007. Any person
and/or
entity who had the intention to intervene and who might have had
problems obtaining copies of the application papers as alleged
in
respondents’ answering affidavits, could have attended the
proceedings on 24 May 2007. During the hearing on 24 May 2007 no
such persons and/or entities were present. I also find it
significant that not one of the three persons whose affidavits were
attached
to the respondents’ answering affidavits alleges that they
wish to intervene as respondents. In fact, two of those persons
specifically
state that they have decided not to pursue the matter.
Whether they have done so on the basis of legal advice received, on
the advice
of some ANC officials and/or on account of their own
decision, is irrelevant. The fact remains that they made that
decision at their
own peril after having been duly informed by the
notice to interested persons what the consequences will be should
they decide not
to intervene as respondents.
[47] For
purposes of service on unknown and unidentified persons and/or
entities who might have a direct and substantial interest
in the
outcome of this application, I consequently find that the publication
of the notice in the two newspapers constituted effective
service
upon them.
[48] In so far as the
seventeen identified persons are concerned, I take into
consideration, in addition to the aforesaid considerations,
the fact
that their interest in this application is actually a group interest
in their capacity as the members of the newly elected
Regional
Executive Committee (“REC”) at the conference of 9 to 11 February
2007 (in addition to such newly elected members who
are already
parties to the application, being third, fourth and fifth
respondents). Having said that it is so that it is evident
from the
first to fourth applicants’ application for joinder that the
application for joinder had previously been served upon the
ANC
regional offices at 102 Southern Building, Fichardt Street, Sasolburg
as a form of substituted service on each and every one
of the
seventeen persons. First to fourth applications had furthermore been
successful in serving the notice in terms of the court
rules on ten
of the seventeen identified persons. Three members of that very same
newly elected REC have been parties to this application
from the
outset hereof, being third, fourth and fifth respondents.
Considering the nature and effect of the rule
nisi
which has
been effective since 16 February 2007 with the result that the
aforesaid newly elected members of the REC have been prevented
from
performing their duties in their capacities as such, they must surely
be aware of the pending application. In view of all these
circumstances I am satisfied that on probabilities the seventeen
persons are not only aware of and have proper knowledge of the
pending
application, but moreover I am satisfied and based upon
probabilities convinced that the publication of the notice in the two
newspapers
constituted proper and effective substituted service upon
the seventeen identified persons. The said notices to interested
parties
duly and properly advised them what the consequences will be
should they decide not to intervene as respondents.
[49] Without
hesitation I definitely consider it substantial justice in the
particular circumstances of this case that this application
is not to
be postponed again for purposes of further service and/or publication
that in any event will probably be futile.
[50] Considering
the contents of the notice to interested persons which was published,
the aforesaid case law and the applicable legal
principles referred
to, I am consequently of the view that under the circumstances I can
proceed to adjudicate this application on
the basis that the
identified seventeen persons and other persons/entities who might
have a direct and substantial interest in the
outcome of this
application, are and will be bound by my decision which I make in
this application, despite the fact that they had
not formally been
joined as parties (respondents) to the application.
Locus standi
:
[51] Both the first to
fourth applicants as well as the fifth to seventh applicants have
based their
locus standi
to have launched and/or intervened in
the current application on the allegation that they are legitimate
members in good standing
of the ANC. It has throughout been the
contention of the respondents that both sets of applicants do not
have
locus standi
because they are not
bona fide
members of the ANC as their membership was not acquired in terms of
the Constitution.
[52] In their founding
affidavits, fifth to seventh applicants attached their ANC membership
cards as
prima facie
proof of their allegation that they are
bona fide
members in good standing of the ANC. In addition to
that they also attached copies of the membership reports of their
respective
wards/branches, being ward 12 (otherwise known as
Phomolong-Moqhaka branch), ward 4 (otherwise known as Itumeleng
branch) and ward
6 (also known as Matseki Majoro branch). It should
be noted that the heading of these branch membership reports reads
“Membership
in Good Standing …”. With regard to the status of
these reports, the fifth to seventh applicants alleged in their
founding affidavits
that these reports are the only authentic lists
of members in good standing of the ANC within a specific branch and
that they represent
the national list referred to in rule 4(10) of
the Constitution of the ANC. For a person to be listed on these
lists, such person
must have attained status of full membership.
They furthermore explained that there is a process of accessing or
retrieving such
membership reports from the website of the ANC, but
in order to do so one needs an accredited pin code or password. Only
officials
of the ANC internally, with accredited pin codes or
passwords, can access these membership reports.
[53] I have already dealt
in my previous judgment with the admissibility of such reports as
evidence. For the reasons already recorded
in my earlier judgment,
on pages 36 to 39 thereof, I also consider the current membership
reports as admissible evidence.
[54] When considered in
vacuo
, the aforesaid allegations pertaining to their
membership, as supported by the membership cards and the branch
membership lists,
fifth to seventh applicants in my view made out a
prima facie
case pertaining to their
locus standi
.
[55] The aforesaid
allegations by the said applicants are being denied by the
respondents. In their attempted rebuttal of this
prima facie
case, the respondents relied on a letter from the Secretary General
of the ANC, Mr. Kgalema Motlanthe received by the respondents
on 28
February 2007, which letter has been attached to the answering papers
filed in response to the first to fourth applicants’
founding
papers as annexure C, and in which letter Mr. Motlanthe confirmed the
following:
“
Membership
of the ANC is determined by rule 4 of the ANC Constitution as adopted
at the 51
st
National Conference, December 2002 at page 6. Any person who does
not comply with this rule in its entirety does not become a
bona
fide
member of the movement even if he produces a purported membership
card.”
In
addition thereto, the respondents have now filed an affidavit of the
said Mr. Motlanthe as part of their answering papers in response
to
the founding papers of fifth to seventh applicants. I consider it
expedient to record the contents of the said affidavit herein:
“
1.
I am a major male Secretary General of
the African National congress (ANC) based at Luthuli House in
Johannesburg and as such duly
authorised and able to depose to this
affidavit as the contents hereof, unless otherwise indicated, fall
within my personal knowledge
and are, to the best of my belief, both
true and correct.
2.
I have, over the past several months,
and in my capacity aforementioned, expressed great reservations both
orally and in writing regarding
the practice of individuals obtaining
membership cards through what has become known as parallel
recruitment procedures and which
entail joining the ANC and obtaining
membership cards contrary to the provisions of the Constitution of
the ANC.
3.
As recently as the weekend ending 18
March 2007 and at a National Executive Committee meeting of the ANC,
the problem was raised in
a discussion document in which the
importance was emphasized of recruitment and registration of
membership through a particular branch
and, thus, as provided for in
and in accordance with the provisions of the ANC.
4.
My attention has been drawn to the
names and identities of the four (initial) applicants as well as the
three applicants that joined
at a later stage, in the pending
application serving before the High Court of South Africa, Free State
Provincial Division under
case number 568/2007 and I can state
unequivocally that these individuals obtained their membership cards
by means of the so-called
parallel recruitment procedure and not in
terms of rule 4 of the Constitution of the African National Congress.
5.
I can furthermore state unequivocally
that their applications for membership were never considered at
branch level and, more specifically,
at the branches situated in the
wards in question.
6.
These seven individuals are,
accordingly, not legitimate members of the African National Congress.
7.
Because of the parallel recruitment
procedure, the lists of members of the ANC published on the internet
do not correctly reflect
who are legitimate members and who are not
and those lists are, therefore, not reliable and information therein
contained cannot
be accepted and relied upon.”
[56] In response to the
aforesaid denial of fifth to seventh applicants’
locus standi
,
they elaborated on their
locus standi
in reply. I am of the
view that in the circumstances applicants were entitled to have done
so. (See:
MSUNDUZI MUNICIPALITY v NATAL JOINT MUNICIPAL
PENSION/PROVIDENT FUND AND OTHERS
2007(1) SA 142 at 147 G to
I.
Fifth applicant conceded
that his application for membership was not considered at branch
level. He however appealed to Rule 4.5
of the Constitution in terms
whereof membership need not be considered at branch level only. He
explained that when he wanted to
join the ANC it was just after the
demarcation and for some time there was no ward in the vicinity where
he lived. A ward only came
into existence shortly after he became a
member of the ANC in September 2005. He then set out elaborately how
he attained membership
by having applied at Luthuli House in
Johannesburg. After having paid his subscription fee, the ANC
accepted his membership. He
also referred to Rule 4.9 of the
Constitution in terms whereof the Secretary General may rule that
membership might be rejected if
it was invalidly obtained. Such a
ruling has not been made regarding his membership. He has been a
member in good standing of the
ANC since September 2005 and his
membership will only expire on 29 June 2010.
Sixth
applicant explained that he applied for membership and that his
membership had been accepted otherwise he would not have been
issued
with a membership card. His application for membership and/or his
membership as such have not since then been rejected by
the Secretary
General and therefore he persists that he is a legitimate member of
the ANC. He joined the ANC in November 2006 and
his membership is
valid until 7 November 2008.
Seventh
applicant avers in reply that she obtained membership at branch level
in 2002. Her subscription thereafter fell in arrears
in 2003, which
resulted in her remaining a member but not in good standing. During
January 2007 she paid all the arrear amounts
at Luthuli House and was
again since then regarded as a member in good standing. Pursuant to
this a new membership card was issued
to her at Luthuli House. She
has therefore been a member of the ANC since 2002 and her membership
will expire on 16 October 2009.
[57] Fifth to seventh
applicants also applied for Mr. Motlanthe’s affidavit to be struck
out as inadmissible hearsay evidence.
In the alternative Mr.
Danzfuss, assisted by Mr. Benadé, appearing on behalf of fifth to
seventh applicants, contended that if Mr.
Motlanthe’s affidavit is
not struck out as inadmissible, I should in any event take a “robust,
common sense approach” and find
that Mr. Motlanthe’s affidavit
does not refer to facts or adduce evidence of such a nature as to
throw into judicially cognisable
doubt the applicants’ claim to
membership. Mr. Wessels, assisted by Mr. Fischer, appearing on
behalf of the respondents, pointed
out that fifth and sixth
applicants in fact concede that their membership applications were
never considered at branch level as envisaged
in the Constitution.
He furthermore submitted that the denial of membership is supported
by one of the most senior members of the
National Executive Committee
of the ANC which is the highest organ of authority in terms of the
Constitution and that I ought not
to be dismissive of what is claimed
by the Secretary General, having regard to his powers and duties as
set out in the Constitution.
[58] It is trite that
when it is not evident from an affidavit that the facts therein are
within the personal knowledge of the deponent
thereto, such statement
must be supported by facts showing how the information was obtained
or on what grounds the deponent’s belief
of the truth and
correctness of the contents thereof are based. See
BRIGHTON
FURNISHERS v VILJOEN
1947 (1) SA 39
(GW) at 41:
“
The petition and the verifying
affidavit are signed by the applicant's attorney who affirms that all
and singular the allegations
of fact contained in the petition are
true to the best of his information, knowledge and belief. This
statement is not supported
by any facts showing how the information
was obtained or on what grounds the belief is based, nor are any
reasons given which would
justify me to disregard the general rule
that the basis of the knowledge or belief must be disclosed.”
In
GIANOTES v
GIANOTES
1947 (2) SA 512
at 514 to 515 the principle was also
stated as follows:
“
It
will be noticed that the petitioner fails to give the source of her
information or the grounds of her belief. In
GRANT-DALTON
v WIN AND OTHERS
(1923, W.L.D. 180)
, it was laid down that the court will not admit
statements of belief and information in interlocutory matters unless
the grounds
of such information and belief are set out …Mr. Justice
Krause at page 186 said,
inter
alia:
‘
The grounds of the deponent’s
belief must be stated so as to show that he has reasonable and proper
cause for making the statement,
and has not shown merely to raise an
issue. The Court of Appeal England In re Young manufacturing Co.,
Limited
(1900, 2 Ch. 753)
, held that an affidavit of information and
belief not stating the sources of information of belief is irregular,
and therefore inadmissible
as evidence, whether on an interlocutory
or a final application; and a party or solicitor attempting to use
such an affidavit will
do so at his own peril as to costs.’”
(Also see
THE
MASTER v SLOMOWITZ
1961 (1) SA 669
(TPD) at 672 A – C and
673 D – E.)
[59] Mr. Wessels
submitted that it is evident from Rule 16.6 (a) of the Constitution
that Mr. Motlanthe in his capacity as Secretary
General is the chief
administrative officer of the ANC and in his capacity as such he
keeps all records of the ANC. On the basis
of this Mr. Wessels
contended that I should accept that the national membership list
referred to in Rule 4.10 of the constitution
is also under the
control of Mr. Motlanthe and that he based his allegations in his
affidavit on these records under his control.
I cannot agree with
this contention. If Mr. Motlanthe perused the national membership
list for purposes of ascertaining whether
fifth to seventh applicants
are members in good standing of the ANC, he should have stated that
fact; even better, he coeld have
attached the relevant lists which he
claims are the correct lists. The mere fact that he has the relevant
documentation under his
control, does not necessitate an inference
that he in fact perused the said documents. He provides no basis for
his bold statement
that he can “unequivocally” state that fifth
to seventh applicants are not legitimate members of the ANC and that
they obtained
their membership cards by means of the so-called
parallel recruitment procedure (which alleged procedure he does not
even attempt
to explain). The mere fact that fifth and sixth
applicants in fact concede that their membership applications were
not considered
at branch level does not change the hearsay nature of
these allegations made by Mr. Motlanthe. He also provided no proper
factual
basis for his statement that the membership lists published
on the internet do not correctly reflect who are legitimate members
and
who not.
[60] I
am consequently of the view that paragraphs 4, 5, 6 and 7 of the Mr.
Motlanthe’s affidavit should be struck out. For the
further reasons
hereinafter, I do net even consider it necessary to make a formal
order with regard to the aforesaid striking out.
[61] With those
allegations struck out I am of the view that I only need to consider
the aforesaid
prima facie
allegations made by the applicants
in their founding papers, which are now only met by a bare denial by
the respondents. I consequently
find that based on these allegations,
the fifth to seventh applicants have prime facie established their
locus standi.
(See
MSUNDUZI MUNICIPALITY v NATAL JOINT
MUNICIPAL PENSION/PROVIDENT FUND,
supra
, at 147 H to
I.)
[62] Even if I am wrong
in my aforesaid conclusion regarding the hearsay nature of the
relevant allegations contained in Mr. Motlanthe’s
affidavit, and I
am to consider the whole of Mr. Motlanthe’s affidavit in response
to fifth to seventh applicants’ allegations
made in their founding
papers, read with the replying papers, my conclusion regarding the
establishment of their
locus standi
is the same.
[63] When Mr. Motlanthe’s
affidavit is considered, it appears that he refers to, what he calls,
“parallel recruitment procedures”
which “entail joining the ANC
and obtaining membership cards contrary to the provisions of the
Constitution of the ANC”. Mr.
Motlanthe unfortunately nowhere
explains how it happens that the ANC issues membership cards without
the correct procedures in terms
of the Constitution having been
followed; moreover, how the ANC can apparently accept membership fees
from them but then deny that
very member’s alleged membership. His
statement to the effect that fifth to seventh applicants obtained
their membership cards
by means of such parallel recruitment
procedure and that they are accordingly not legitimate members in
good standing of the ANC,
is also just a bold statement without him
explaining how he gained this information and on what facts these
allegations are based.
Similarly, in paragraph 7 of the affidavit,
he again makes a bold statement to the effect that because of the
parallel recruitment
procedure the lists published on the internet do
not correctly reflect who are legitimate members and who are not and
that those
lists therefore are not reliable, without any attempt to
explain how it happens in practice that members’ names appear on
lists
which appear to be the lists of members in good standing within
particulars branches, whilst those members are allegedly not
legitimate
ANC members. This failure to explain is once again very
significant considering the allegations that only officials of the
ANC have
access to these membership lists published on the internet.
Mr. Motlanthe’s failure to refer to facts or adduce evidence as
basis
for these allegations have the consequent result that I
consider these allegations as bare denials of fifth to seventh
applicants’
alleged
locus standi
.
[64] Therefore,
in my view the allegations in Mr. Motlanthe`s affidavit have no
proper evidential value.
[65] In
SOFFIANTINI
v MOULD
1956 (4) SA 150
(E) at 154 G to H the following
approach was followed in similar circumstances:
“
If by a mere denial in general
terms a respondent can defeat or delay an applicant who comes to
Court on motion, the motion proceedings
are worthless, for a
respondent can also defeat or delay a petitioner by such a device.
It
is necessary to make a robust, common-sense approach to a dispute on
motion as otherwise the effective functioning of the Court
can be
hamstrung and circumvented by the most simple and blatant stratagem.
The Court must not hesitate to decide an issue of fact
on affidavit
merely because it may be difficult to do so. Justice can be defeated
or seriously impeded and delayed by an over-fastidious
approach to a
dispute raised in affidavit.”
In addition to the
aforesaid it should be remembered that the current application deals
with an interim interdict in which instance
the applicant only needs
to make out a “
prima facie
case though open to some doubt”.
(See:
WEBSTER v MITCHELL
1948 (1) SA 1186
(WLD) at
1189.)
Also
see
LADYCHIN
INVESTMENTS v SOUTH AFRICAN NATIONAL ROADS AGENCY AND OTHERS
2001 (3) SA 344
(NPD) at 353 D – C:
“
The principles established by the
cases where an interim interdict is sought where there are conflicts
of fact are as follows:
1. …
2. …
3. Even
if there are material conflicts of fact the Courts will still grant
interim relief. The proper approach is to take the facts
as set out
by the applicant, together with any facts set out by the respondent,
which the applicant cannot dispute, and to consider
whether, having
regard to the inherent probabilities, the applicant should on those
facts obtain final relief at a trial.
4. The
facts set up in contradiction by the respondent should then be
considered. If serious doubt is thrown on the case of the applicant
he should not succeed in obtaining temporary relief, for his right,
prima facie established, may only be open to 'some doubt'.
5. If
there is mere contradiction, or unconvincing explanation, the matter
should be left to trial and the right be protected in the
mean time,
subject of course to the respective prejudice in the grant or refusal
of interim relief.”
[66] Applying the
aforesaid principles to the question regarding fifth to seventh
applicants’
locus standi
, I am of the view that even if I
take the whole of Mr. Motlanthe’s affidavit into consideration, the
applicants have
prima facie
still established their
locus
standi
in their founding papers.
[67] When I go further
and consider fifth to seventh applicants’ further explanations in
their replying affidavits, more specifically
fifth and sixth
applicants’ explanation that their applications for membership were
in fact not considered on branch level, those
allegations, in my
view, do not negate their
prima facie
locus standi
. On
my interpretation of Rule 4.5 of the Constitution it is evident that
applications for membership may also be considered by other
structures in that Rule 4.5,
inter alia,
specifically provides
as follows:
“
The
branch executive committee, the regional executive committee,
or such interim structures as the Provincial Executive Committee or
the NEC may create from time to time to decide on applications
,
may accept or refuse any application for membership provided such
acceptance or refusal shall be subject to review by the next higher
organ of the ANC.”
(
Own
underlining)
There is nothing
currently before me that throws serious doubt on fifth and sixth
applicants’ allegations that the process which
they followed to
obtain membership were legitimate processes in that it fell within
the ambit of “interim structures” as provided
for in Rule 4.5.
On probabilities this is moreover so considering that the process
followed by fifth applicant entailed an application
which was made at
the ANC headquarters in Johannesburg at a certain floor where a
department of the ANC has specifically been created
by the ANC to
process applications for membership.
[68] For the sake of
completeness I also wish to point out that
prima facie
seventh
applicant’s application for membership was made and considered at
branch level and therefore, even should it be found during
the review
application that fifth and sixth applicants did not have
locus
standi
to have launched the current application, such finding
will not negatively affect seventh applicant’s alleged
locus
standi
.
[69] I consequently find
that, whether or not paragraphs 4, 5, 6 and 7 of Mr. Motlanthe’s
affidavit are struck out, fifth to seventh
applicants’
locus
standi
have
prima facie
been established.
[70] I deem it necessary
to make some remarks about the
locus standi
of first to fourth
applicants, considering that they were the initial applicants who
obtained the rule
nisi.
Firstly I wish to point out that
respondents were not entitled to have filed any further opposing
affidavits in the part of the application
as between first tot fourth
applicants and respondents as they apparently opportunistically
attempted to do by also making allegations
in Mr. Motlanthe’s
affidavit pertaining to the membership of first to fourth applicants.
That set of affidavits filed on 10 May
2007 cannot be taken into
consideration for purposes of the part of the application as between
first to fourth applicants and respondents.
When the principles and
considerations that are applicable to the allegations pertaining to
the
locus standi
of fifth to seventh applicants and which I
dealt with at length above, are applied to the allegations pertaining
to first to fourth
applicants’
locus standi
, I am satisfied
that first to fourth applicants’
locus standi
have also
prima facie
been established.
Merits
of the application/alleged constitutional irregularities:
[71] Fifth to seventh
applicants’ application for the interim relief and their proposed
application for review are based on the
following allegations of
irregularities in the branch general meetings of wards 12, 4 and 6,
which led to the alleged irregular election
of the new REC members:
1. The branch general
meetings that were held to elect delegates to be sent on behalf of
the respective branches to the regional conference
were not properly
constituted, in that,
inter alia
, no proper notice of the said
meetings was given and the required quorum of 50% plus one member was
not met. Ward 12, for example,
had 142 members in good standing, but
only approximately 35 members attended the branch general meeting.
Ward 4 had 142 members
in good standing whilst only 7 members
attended the branch general meeting.
2. With
exclusion of one delegate, the delegates so elected to attend the
Regional Conference were not ANC members in good standing
(they
weren’t members of the respective wards/branches) and therefore not
constitutionally qualified to represent those wards/branches.
3. The
said delegates were nominated to attend the regional conference by
non-ANC members. In fact during the branch general meeting
held in
ward 12, ANC membership forms were handed out by third respondent to
people and they completed the forms during the meeting,
subsequent to
which they were apparently considered to be ANC members for purposes
of the meeting. In striking contrast to the aforesaid,
persons who
are in fact members in good standing of the ANC were prevented from
participating in the said meetings.
4. The
currently elected REC members were therefore elected by a meeting
consisting of not properly delegated persons and persons
who at that
stage were not members of the ANC in good standing.
Some of the currently
elected REC members and thus serving on the REC are not even members
of the ANC, or their membership have
expired, or they have not been
a member for at least a year.
6. Fifth to seventh
applicants therefore contend that the reasons for the irregularities
are that the respondents wanted to manipulate
the results of the
elections at the regional conference to ensure a predetermined
outcome, being the election of those who are “fanatically
loyal”
to the first respondent and furthermore their own friends.
[72] Despite the fact
that the respondents filed answering affidavits to the fifth to
seventh applicants’ founding affidavits, the
respondents have not
touched upon the merits and have not made one single allegation in
rebuttal of the said allegations of fifth
to seventh applicants.
Considering the very serious nature of the aforesaid allegations, I
find it significant that respondents did
not attempt to rebut the
said allegations of the fifth to seventh applicants.
[73] The
requirements, which an applicant for an interim interdict has to
satisfy, are the following:
“(a) A
prima facie
right;
A well-grounded apprehension of
irreparable harm if the interim relief is not granted and the
ultimate relief is eventually granted;
A balance of convenience in favour of
the granting of the interim relief; and
The absence of any other satisfactory
remedy.”
See:
SUPERIOR
COURT PRACTICE,
Erasmus, at E8-9
[74] The aforesaid
prima
facie
right has been explained in the well-known case of
WEBSTER
v MITCHELL,
supra
, at 1189:
“
If the phrase used were 'prima
facie case' what the Court would have to consider would be whether
the applicant had furnished proof
which, if uncontradicted and
believed at the trial, would establish his right. In the grant of a
temporary interdict, apart from
prejudice involved, the first
question for the Court in my view is whether, if interim protection
is given, the applicant could ever
obtain the rights he seeks to
protect. Prima facie that has to be shown. The use of the phrase
'prima facie established though open
to some doubt' indicates I think
that more is required than merely to look at the allegations of the
applicant, but something short
of a weighing up of the probabilities
of conflicting versions is required.”
[75] When applying the
aforesaid test to the averments made by the fifth to seventh
applicants, especially in the absence of any contradictory
averments
made by the respondents, I am satisfied that the applicants have
established a
prima facie
right as required for purposes of an
interim interdict; if not even a “clear right”. The aforesaid
events not only constitute
severe irregularities contrary to the ANC
Constitution, but more importantly the said irregularities prima
facie seriously violated
and impeded upon fifth to seventh
applicants’ rights as members in good standing of the ANC in terms
of Rule 5 of the Constitution.
[76] With regard to the
requirement of an apprehension of irreparable harm, I am of the view
that because fifth to seventh applicants
have in fact established a
clear right and not only a
prima facie
right, it is not even
necessary for them to establish an apprehension of irreparable harm.
(See
SETLOGELO v SETLOGELO
1914 AD 221
at 227).
However, the applicants in my view have in any event established the
requirement of irreparable harm should the interim
relief not be
granted. (See the founding affidavit, p. 86 to 88, par. 9.1 to
9.1.5).
[77] I am furthermore
satisfied that fifth to seventh applicants have established that the
balance of convenience favours them, especially
considering the said
applicants’ strong prospects of success with the proposed review
application. (See
LADYCHIN INVESTMENTS v SOUTH AFRICAN NATIONAL
ROAD AGENCY AND OTHERS
,
supra
, at 353 G.)
[78] With regard to the
requirement of no alternative remedy, I am
prima facie
convinced that the applicants would not have been able to effectively
make use of the internal remedies provided for in the Constitution
in
order to resolve this dispute. Where the very basis of fifth to
seventh applicants’ possible entitlement to even make use of
the
internal procedure is disputed, namely their ANC membership, I am
convinced that the internal dispute resolution provided for
in the
Constitution,
prima facie
would not have constituted an
alternative remedy, let alone an effective alternative remedy. (See
SORENSON v EXECUTIVE TRAMWAY WORKERS UNION
1974 (2) SA
545
(CPD) at 552 E – F)
[79] I
consequently conclude that the applicants have satisfied all the
requirements for an interim interdict pending the proposed
review
proceedings and are therefore entitled to confirmation of the rule
nisi
issued on 16 February 2007.
COSTS:
[80] I now turn to the
question of costs. All parties were ad idem that all costs orders
should include costs of two counsel. I consider
it convenient to
again deal with the two “sets” of applicants separately.
Costs
- first to fourth applicants/ respondents:
[81] There are two
aspects contained in my previous order of 4 April 2007 which stood
over for adjudication on 24 May 2007 and which
has a bearing on
costs. The first hereof is respondents’ application to strike out
in terms of paragraphs 8, 10, 12, 14 and 16
of their notice of
application to strike out. As indicated herein earlier, in paragraph
21,
supra
, this application is to be granted. In my view there
is no reason why it should not similarly to the other parts of that
application
which I have already granted, be granted with costs in
favour of the respondents, including the costs of two counsel, and
furthermore
subject to the payment thereof as set out in the
following paragraph.
[82] The other aspect
which stood over is whether the order as to costs which I granted in
paragraph 4 of my previous order dated
4 April 2007, should be paid
by Mr. Sizephe or by the first to fourth applicants on an attorney
and client scale. In paragraph 5
of my previous order I ordered that
should Mr. Sizephe wish to advance reasons why he should not be
ordered to pay the relevant costs
de bonis propriis
, he should
file such reasons under oath on or before 23 April 2007. As
indicated herein earlier in paragraph 24,
supra,
the said
affidavit of Mr. Sizephe was only filed on 24 April 2007. I have
also already indicated that first to fourth applicants’
application
for condonation with regard to the late filing of the the said
affidavit is to be dismissed. This has the result that
I cannot take
any cognisance of the reasons or explanations advanced by Mr. Sizephe
in the said affidavit. I can however add that
even if I take that
affidavit of Mr. Sizephe into consideration only for purposes of
considering the issue of costs, and I accept
those explanations as
true and correct, I am of the view that they are in any event not
sufficient to excuse him from being held
liable for such costs. His
conduct which I fully dealt with in my previous judgment and the
degree of ineptitude, carelessness,
gross negligence and total lack
conscientious which was reflected by his conduct, cannot be excused
on the basis of the reasons advanced
by him. The mere fact that the
very same affidavit in which he was to explain his conduct was
again
filed a day late is in my view indicative of a total disregard of and
lack of respect for the court, compliance with court orders
and
compliance with time limits.
I
therefore intend to order Mr. Sizephe to pay the costs referred to in
paragraphs 5.1, 5.2 and 5.3 of my previous court order.
[83] With regard to the
dismissal of first to fourth applicants’ application for
condonation dated 23 May 2007 and the dismissal
of first to fourth
applicants’ (main) application against the respondents, it is
evident from the reasons already recorded earlier
in this judgment
that the dismissal of both these applications again resulted as a
direct consequence of the continuing and perpetual
remissness on the
part of Mr. Sizephe. Despite the potential order of costs
de
bonis propriis
which was at the time hanging over his head, he
continued with similar unacceptable conduct which again is not only
indicative of
his continued remissness, but in my view it shows a
continued, blatant and flagrant disrespect for and disregard of court
rules,
court orders and time limits which are suppose to be complied
with. Like I have also indicated earlier, if it had not been for the
said failure of Mr. Sezephe to properly comply with my previous order
and his subsequent failure to properly and timeously apply
for
condonation, the
rule nisi
would also have been confirmed in
favour of first to fourth applicants.
[84] In
my view I consequently have no other option but to again show my
dismay, displeasure and actually my shock with his conduct
by means
of a punitive costs order. Like previously, the blame for the
aforesaid conduct and failures to comply with court orders
and time
limits, do not lie with first to fourth applicants. Although
pursuant to my previous judgment they could and maybe should
have
reconsidered their position with regard to their choice of attorney,
I am still of the view that they cannot be faulted for
the aforesaid
reprehensible conduct of their attorney.
[85] In my previous
judgment I referred to the cases of
WAAR v LOUW
1977
(3) SA 297
(O) at 304 D and
MACHUMELA v SANTAM INSURANCE
COMPANY
LIMITED
1977 (1) SA 660
(A) in which the basis
for an order of costs
de bonis propriis
were comprehensively
explained. Those principles are again applicable in this instance.
In addition to the
aforesaid cases I also wish to refer to
IMMELMAN v LOUBSER EN
‘N ANDER,
supra,
at 825 E –
C:
“
Die Hof het die applikant se
advokaat die vraag gestel of die applikant se prokureurs nie beveel
moet word om self die applikant se
koste te dra nie vanweë hulle
nalatige en gebrekige optrede. Sy antwoord was dat die Hof, in die
afwesigheid van die applikant se
plaaslike prokureur, mnr. Briel, en
sy Pretoriase prokureurs, en sonder dat hulle geleentheid gehad het
om aangehoor te word, nie
so 'n bevel sou maak nie.
Indien
hierdie Hof in staat sou gewees het om op die stukke voor hom vas te
stel welke van applikant se prokureurs verantwoordelik
was vir een of
meer van die vele foute wat begaan is en vir die gebreke wat daar in
die aansoeke was, sou die Hof, na my mening,
met regverdiging so 'n
bevel kon gemaak het, en dit selfs sonder om die betrokke prokureur/s
aan te hoor.”
(Also see
WEBB AND
OTHERS v BOTHA
1980 (3) SA 666
(NPD) op 673 D – F)
[86] I will obviously
grant Mr. Sizephe the opportunity to be heard before I make my
decision. Because this application will not again
be adjudicated in
open court, I intend granting him an opportunity to file written
representations, should he so wish, as to why
he should not pay
respondents the aforesaid costs of the first to fourth applicants’
application for condonation and of their main
application
de bonis
propriis.
After the consideration of his written representations
I will issue an order pertaining to the said costs.
[87] As
dealt with herein earlier, the respondents were not entitled to file
any further affidavits in the main application between
first to
fourth applicants and respondents. The respondents are therefore not
entitled to claim any costs in this application pertaining
to their
“further opposing affidavits” that had been filed on 10 May 2007
from either the first to fourth applicants or Mr. Sezephe
(depending
on who is eventually to pay the costs of the application pursuant to
the order which I am still to give in this regard).
[88] The last relevant
issues pertaining to costs which need to be referred to, is the two
costs orders which previously stood over
for later adjudication,
being the costs of 10 February 2007 and 8 March 2007 respectively.
The postponement on 10 February 2007
was due to the fact that
respondents indicated that they wished to be granted an opportunity
to file answering affidavits in response
to the applicants’
founding papers. The postponement on 8 March 2007 was in order to
grant respondents the opportunity to file
supplementary affidavits in
opposition of the application of first to fourth applicants.
Prima
facie
it seems to me that the wasted costs of 10 February 2007
should be costs in the main application between first to fourth
applicants
and the respondents, whilst the wasted costs occasioned by
the postponement on 8 March 2007 should be borne by the respondents.
However, because the first to fourth applicants’ and respondents’
counsel have not had the opportunity of addressing me on these
two
costs orders, I intend to let them stand over and grant both the
first to fourth applicants and the respondents the opportunity,
should they so wish, to file written submissions regarding the
aforesaid costs, after the consideration of which I will issue an
order with regard to those costs.
Costs - fifth to
seventh applicants/ respondents:
[89] With regard to the
confirmation of the rule
nisi
as between fifth to seventh
applicants and the respondents, there is no reason why the costs of
the said application should not follow
the success and that
respondents should therefore be ordered to pay the costs of fifth to
seventh applicants’ main application.
[90] Consequently
the following order is made:
As between first to
fourth applicants and respondents:
The application for
condonation dated 23 May 2007 is dismissed, with costs, including
the costs of two counsel.
The respondents’
application to strike out in terms of paragraphs 8, 10, 12, 14 and
16 of their notice of application to strike
out, dated 27 March
2007, and which application in terms of paragraph 1.8 of the order
granted on 4 April 2007 stood over adjudication
on 24 May 2007, is
granted with costs, including the costs of two counsel.
The rule
nisi
issued on 16 February 2007 is discharged as between first to fourth
applicants and respondents, with costs, including the costs
of two
counsel, but subject to 1.6 and 1.8,
infra
.
The aforesaid orders as
to costs granted in 1.1, 1.2 and 1.3 above are to be paid by the
first to fourth applicants’ attorney
of first instance, Mr.
Sizephe of MJD Sizephe Attorneys, Welkom,
de bonis propriis
;
alternatively, by the first to fourth applicants, the
determination of which (between the aforesaid two alternatives)
stand over
to be determined in a court order to be issued on or
before 29 June 2007.
For purposes of the
order granted in 1.4 above, leave is granted to Mr. Sizephe to file
written representations, should he so
wish, on or before 20 June
2007 as to why he should not pay the costs referred to in 1.1, 1.2
and 1.3 above
de bonis propriis.
The costs occasioned by
the postponements of the main application on 10 February 2007 and 8
March 2007 respectively, and which
costs stood over for later
adjudication, stand over to be determined in a court order to be
issued on or before 29 June 2007.
For purposes of the
order granted in 1.6 above, leave is granted to both first to
fourth applicants’ counsel and respondents’
counsel to file
written submissions, should they so wish, on or before 20 June 2007
regarding appropriate orders pertaining to
the said costs.
The respondents are not
entitled to claim any costs in this part of the application
pertaining to their “further opposing affidavits”
filed on 10
May 2007.
With regard to the
orders as to costs in terms of paragraphs 4 and 5 of the order of 4
April 2007 which stood over for adjudication
on 24 May 2007, the
following orders are made:
1.9.1 First to fourth
applicants’ attorney of first instance, Mr. Sizephe of MJD Sizephe
Attorneys, Welkom, is to pay the costs
of the respondents occasioned
by the postponement on 29 March 2007
de bonis propriis
, which
costs are to include the costs of two counsel.
1.9.2 The
said Mr. Sezephe is to pay the respondents` costs of the application
to strike out, including the consequential costs occasioned
by the
granting thereof,
de bonis propriis
, which costs are to
include the costs of two counsel.
1.9.3 Mr. Sezephe shall
not be entitled to recover any of the costs in respect of the
application for joinder from the applicants.
As between fifth to
seventh applicants and respondents:
2.1 The rule
nisi
issued on 16 February 2007 is confirmed with costs, including the
costs of two counsel, which costs are to be paid by the respondents,
jointly and severally, payment by the one the other to be absolved.
____________
C.
VAN ZYL, J
On behalf of 1
st
to 4
th
applicants: Adv. F.W.A. Danzfuss SC,
with Adv. W.J. Edeling
Instructed by:
Slabbert
Attorneys
Bloemfontein
On behalf of 5
th
to 7
th
applicants: Adv. F.W.A. Danzfuss SC,
with Adv. H.J. Benade
Instructed
by: Stander Venter & Kleynhans
Bloemfontein
On
behalf of respondents: Adv. M.H. Wessels SC,
with
Adv. P.U Fischer
Instructed by:
Gous
Vertue & As. Inc.
Bloemfontein
/sp