IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE, CAPE TOWN)
Case No: 18204/2024
In the matter between:
THAMSANQA FORTUNATE KUZWAYO First Applicant
ISAAC KALEBOE MENYATSO Second Applicant
CITRON MPHO MOTSHEGOE Third Applicant
AUGASTINA MADALA QWETHA Fourth Applicant
NOMADO GRACE MGWEBI Fifth Applicant
NTOMBENHLE MKHIZE Sixth Applicant
SYDWELL MATHOLENI MASILELA Seventh Applicant
FRANCE BONGANI MFIKI Eighth Applicant
SENZO SELBY DLAMINI Ninth Applicant
AGNES MOGOTSI Tenth Applicant
and
UMKHONTO WESIZWE POLITICAL PARTY First Respondent
SPEAKER OF NATIONAL ASSEMBLY Second Respondent
Date of hearing: 3 September 2024
Date of judgment: 9 September 2024
JUDGMENT
SAVAGE J:
[1] This urgent application was first set down for hearing on 21 August
2024, with the papers having been served on the respondents a day earlier, on
20 August 2024. On 21 August 2024 it was postponed to 3 September 2024 with
the first respondent, the Umkhonto Wesizwe Political Party (“the MK party”),
ordered to serve and file its answering affidavit on 27 August 2024 and the
applicants their replying affidavit on 30 August 2024. The parties were ordered to
file heads of argument on 2 September 2024.
[2] When the matter came before this Court on 3 September 2024, the MK
party had filed its answering affidavit but the applicants had not filed a replying
affidavit. Shortly before the commencement of the hearing, the applicants placed
confirmatory affidavits into the court file which had apparently been served on the
MK party by email on 2 September 2024.
[3] The applicants seek that the matter be heard on an urgent basis and
that an order be made:
‘…2. Prohibiting the [MK party] from putting forward candidates before the
second respondent to replace the applicants’ membership of the
National Assembly pending the outcome of the review app lication
before this Honourable Court under case number 18079/2024.
3. Prohibiting the second respondent from administering the oath or
solemn declaration of any candidate put forward by the first respondent
to replace the applicants’ membership of the Nat ional Assembly
pending the outcome of the review application before this Court under
case number 18079/2024.
4. Prohibiting the respondents from denying the applicants any and all
benefits of membership of the National Assembly, including
parliamentary acc ommodation, pending the outcome of the review
application before this Court under case number 18079/2024.
5. That a rule nisi be issued calling upon the MK Party and/or the Speaker
of Parliament, and/or any other interested party, to show cause, if any,
before this Honourable Court on 1 October 2024, as to why the
following order should not be made final:
5.1 That the prayer in paragraphs 2, 3 and 4 above have
binding effect until the final determination of the
applicants’ review application proceedings be fore this
Honourable Court.
5.2 That the MK party or any other party that opposes this
application pays the costs of the application.
6. That paragraph 2, 3 and 4 above operate as an interim
interdict/mandamus pending the finalisation of this application.
7. That the MK party and the Speaker of Parliament, and any other
affected party, be given an opportunity to anticipate the return day o f
the rule nisi provided that they do so after providing 5 days (five days)
Court days’ notice to the applicant, and any other interested parties.’
[4] The second respondent, the Speaker of the National Assembly (“the
Speaker”), filed a notice to abide the outcome of the application.
[5] In his founding affidavit the first applicant, Mr Thamsanqa Fortunate
Kuzwayo, stated that “as with all members of t he National Assembly, I keep
offices at the Parliament of the Republic of South Africa ” and that the remaining
applicants are all members of parliament. What is not stated by Mr Kuzwayo is
that he and the applicants are or were at any time members of the MK party. No
details are provided regarding when the applicants were sworn in as Members of
Parliament or when they were removed as such. Instead Mr Kuzwayo annexes a
copy of the notice of motion and founding affidavit in a review application filed by
the applicants on 19 August 2024, which he states “provides a background to the
merits in this matter. To avoid repetition, and unnecessary burdening of the
papers, we shall rely upon the papers filed in the review application… ”.
[6] Mr Kuzwayo contends that the current application is urgent in that:
6.1 The applicants were advised that the MK party intended to put
forward individuals to be sworn into the National Assembly on
20 August 2024 and for this reason, on 19 August 2024, the
applicants’ legal representative sought an undertaking from the
Speaker that no individuals would be sworn the following day to
replace the applicants.
6.2 On 19 August 2024 the applicants received a response from a
senior parliamentary legal advisor in which it was made clear
that the applicants’ seats in the National Assembly “ would be
taken by other people, which include our benefits, before our
review application has been considered” by this Court. The letter
stated that:
‘Given that your clients are challenging thei r expulsion
from the political party, they should interdict the party
from filling the positions and interdict the Speaker from
administering the oath or solemn affirmation on
candidates that would be nominated by the party to fill the
positions.
There is no legal impediment to the nomination of the
new members and the Speaker must proceed with the
administration of the earth or solemn affirmation so as to
give effect to her constitutional obligations.
We would like to add that the Speaker will not be
administering the Oath or solemn affirmation to any of the
candidates tomorrow, 20 August 2024.’
6.3 On 19 August 2024 the applicants were denied access to
parliamentary accommodation. After the intervention of their
lawyers, parliamentary officers gave the applica nts access to
accommodation, with 30 days given to them to vacate their
parliamentary residences.
6.4 The applicants resigned from previous employment before
becoming members of the National Assembly and have no
alternative accommodation for both them and the ir dependants
should they be evicted.
6.5 On 15 August 2024 the applicants were paid R12 000.00
instead of R102 000.00. In addition, the applicants have been
denied all parliamentary privileges , including domestic flights ,
and the respondents delayed the applicants travel to Cape
Town, “and secure resources to file this urgent application (sic)”.
It was stated that t he applicants could not bring th is application
sooner.
6.6 Given the correspondence of 19 August 2024 received from the
parliamentary legal adviso r states , w ithout the relief sought by
the applicants, “ our seats in the National Assembly would be
taken by other people, which include our benefits, before our
review application has been considered”. As a result, “without an
interdict, on an urgent basi s, the applicants rights to challenge
their expulsion, the applicants right to challenge the respondents
decisions in the abovementioned review application, would be
curtailed”.
[7] The prima facie right relied upon by the applicants is stated to be the
constitutional rights mentioned in the review application, which include but are not
limited to just administrative action. The reasonable apprehension of irreparable
harm is said to be apparent from the correspondence from the legal advisor of
the National Assembly which leaves no doubt that there is no alternative remedy
available to the applicants but the interdict and that there is no alternative remedy
available to the applicants pending the outcome of the review application.
Opposition by MK party
[8] The MK party opposed the relief sought. In his answering affidavit, the
President and founder of the party, Mr Jacob Gedleyihlekisa Zuma, states that an
Interim Leadership Core (“ILC”) was appointed which was to operate until the
party held its first democratic conference. One of the decisions of the ILC was to
allow Mr Zuma, in his sole discretion, the power to deploy all members of the MK
party until the elective conference , including the power to include and remove
persons from any structure of the party after consultation with the ILC.
[9] He states that there were “serious political and security reasons for this
decision”, with the space in which the party operates being “ highly competitive
and susceptible to infiltration and even politic demotivated violence, which must
be avoided and prevented at all cost ”. Then Secretary General of the party, Mr
Thanduxolo Dyodo, a member of ILC, was responsible for compiling party lists
but:
‘…unbeknown to [Mr Zuma] , all sorts of names were improperly and
irregularly included in the list with our proper consultation and vetting
and simply to achieve compliance with the unreasonably short IEC
deadline.’
[10] On 8 March 2024 the MK party submitted its party lists containin g
approximately 800 names . According to Mr Zuma “(m) ore th an 90% of these
individuals were not known to me. I was falsely assured of their bona fides and
the authenticity of their status.” As a consequence of the “ mishandling” of the list,
which involved a llegations of fraud, Mr Zuma stated that in the exercise of his
powers he removed Mr Dyodo as Acting Secretary -General. A criminal case of
fraud was opened at the Sandton police station in relation to the irregular
compilation of the lists, which remains under investigation by the police.
[11] The party was thereafter subjected to a barrage of litigation including
from “ disgruntled and opportunistic rogue elements who had been lawfully
removed or expelled, right until election day and beyond ”. Following the results of
the election, Mr Sihle Ngubane was appointed by Mr Zuma as Secretary -General
until his deployment to Parliament as Chief Whip of the party.
[12] The process of “ cleaning up” the lists had not been completed by the
time that members of the National Assemb ly had to be sworn in. Mr Zuma states
that he had no personal knowledge of all the 800 plus individuals on the lists and
it was not possible to verify their membership of the MK party “ since the
membership system was not yet in full place, which is still n ot completely up to
scratch, although some progress is being made”. With the assistance of the ILC a
proper audit of the lists was undertaken and it was “ discovered that a number of
individuals were either not bona fide their members of the MK party or wer e
included on very politically questionable or suspicious grounds by their friends,
neighbours, relatives or spouses which is self -evidently unacceptable.” Some of
the people on the lists were found not to “ possess the necessary skills set, which
is probably a reflection on our regrettable lack of time for screening prior to the
submission of the lists ”. Mr Zuma state s that it fell on him “ to rectify these
teething problems ” across the legislatures in which the MK party has
representation.
[13] The applicants w ere among the people affected by the process of
cleansing the lists of improperly -included individuals either because of their non -
membership, irregular inclusion, lack of the requisite skills and/or replacement
with more suitable members of the MK party. In the exercise of his powers Mr
Zuma states that he determined that the applicants and others must lose their
membership of the party and consequently their membership of the National
Assembly and that their challenge to the lawfulness of their loss of membership is
meritless.
[14] Mr Zuma states that on 14 June 2024, the day of the official first sitting
of Parliament, all designated members on the MK party National Assembly list
were instructed to boycott the sitting as a form of protest over allegations of vote -
rigging during the elections. At least five people, including the sixth and ninth
applicants, defied the instruction and registered to attend the s itting as a result of
which their membership of the party was terminated. After the MK party reversed
its decision to boycott, arrangements were made with the National Assembly for
the swearing of 58 members of the party. On 25 June 2024, 12 people, includ ing
some of the applicants, were informed by Mr Ngubane and others that following
internal investigations, the party had taken a decision that they should withdraw
from the list and refrain from presenting themselves for the swearing -in
scheduled for the f ollowing day. No objections were raised after the letter to this
effect was presented to these individuals. Yet, on 25 June 2024, the 12 persons,
including those who had been expelled for their earlier defiance, attended the
swearing in ceremony and took t he prescribed oath. Mr Zuma state s that to him
“this was the last straw”.
[15] In addition, some people on the lists failed to show up to take their
seats and were deemed to have resigned. This included the first and second
applicants. As a result, Mr Zuma over saw their replacement by reshuffling the
flawed lists. It was in this sense, that the applicants were said to have resigned ,
although it has never been claimed that they were sent resignation letters. Mr
Zuma stated that he instructed Mr Ngubane to demand that those persons should
either resign from the National Assembly or be summarily expelled from the
party. No objections were received when this message was relayed to these
individuals. Mr Ngubane implemented the decisions of the party from 3 August
2024 to replace the 10 applicants and others who were no longer members of the
party and/or the National Assembly whether by virtue of their resignations or
mass expulsion as the so -called “group of ten ”. All other individuals in the same
position obeyed the o rders of the party and withdrew their names, save for this
group.
[16] The expulsions, state d Mr Zuma, were lawful and valid. None of the
applicants in the urgent application have alleged that they are a member of the
MK party, with nothing put up to prove any such membership. If such
membership existed, it has been lawfully terminated as a result of the sixth and
ninth applicants’ defiance of the order not to attend the first sitting of Parliament,
the failure of the first, second and tenth applicants to atten d the swearing -in and
the defiance by the third, fourth, fifth, seventh and eighth applicants of the
instruction not to attend the swearing-in ceremony. The applicants claim that they
are Members of Parliament is thus disputed.
[17] Mr Zuma states that t he applicants’ application is not urgent in that the
process of removal of the applicants commenced on 3 August 2024 and on 8
August 2024 the applicants sent letters to the Speaker who responded the same
day explaining the legal position. There is no plausible ex planation why the
application for interim relief was not served until 20 August 2024 and set down for
hearing the following day.
[18] Issue is taken with the jurisdiction of the Court on the basis that the
decisions on loss of membership were taken by Mr Zuma, after consultation with
the ILC, sitting in Durban or Nkandla, in accordance with the powers vested in
him and the applicants have not challenged the lawfulness or constitutionality of
the current interim dispensation or protocols of the MK party.
[19] Mr Zuma states that it is false that the applicants have no alternative
accommodation since the parliamentary accommodation is additional to their
permanent homes and is directly linked to their being a member of Parliament,
with no independent entitlement to parliamentary privileges.
[20] Heads of argument, which have been considered by the Court, were
filed on 2 Septe mber 2024 by the applicants and on the morning of the hearing
by the MK party.
Discussion
[21] The applicants’ founding papers in this matter are lacking in a number
of material respects. Important factual issues are omitted from the founding
affidavit, with an attempt to make out the applicants’ case by reference to an
annexure to the founding affidavit. The affidavit is silent in a number of significant
respects, failing to state that the applicants were members of the MK party or that
their membership was terminated , when the applicants were sworn in as
Members of Parliament and when, or if, they have been removed as such . The
result is that the key averments relating to the relief sought have not been placed
before the Court by the applicants . In addition, the constitution of the MK party,
which Mr Kuzwayo contended was attached as an annexure to his founding
affidavit, was not attached.
[22] Confirmatory affidavits of eight applicants were placed in the court file
on the date of the hearing of the matter on 3 September 20204, without the leave
of the Court sought to introduce these affidavits at such late stage. This when
certain factual issues, although limited in nature, were included in the affidavits to
which the MK party was given no opportunity to respond. Furthermore, n o
replying affidavit was filed, which left all of the factual issues detailed in Mr
Zuma’s answering af fidavit unchallenged by the applicants. This is so even if Mr
Zuma paints a worrying picture as to the manner in which the MK party currently
operates, manages its operations, its membership and the apparent impunity with
which it appears to take decisions outside of the control of its own constitution.
Urgency
[23] The applicants approached this Court on exceedingly tight timeframes,
seeking that the respondents file answering papers within only hours of the
application having been served on it, with no explanation as to why they had not
approached this Court earlier given that on the first respondent’s version their
membership of the MK party had been terminated on 3 or 8 August 2024. The
applicants found their claim for urgency on the basis of the l etter received from
the parliamentary legal advisor on 19 August 2024 , although this letters states
that no person would be sworn in as a Member of Parliament on 20 August 2024
and indicated no other date on which persons would be sworn in . They claim to
have been advised that the MK party intended to put forward individuals to be
sworn into the National Assembly on 20 August 2024 , with no details provided as
to when such advice was received or from whom and with no reference to their
own membership status in the party. T he applicants also claim urgency on the
basis that on 19 August 2024 they were denied access to parliamentary
accommodation, that they were short-paid on 15 August 2024, could not travel to
Cape Town or find resources for the urgent application as a result and could not
bring this application sooner.
[24] In Commissioner for South African Revenue Service v Hawker Air
Services (Pty) Ltd1 it was stated that:
‘Urgency is a reas on that may justify deviation from the times and
forms the rules prescribe. It relates to form, not substance, and is not a
prerequisite to a claim for substantive relief. Where an application is
brought on the basis of urgency, the rules of court permit a court (or a
judge in chambers) to dispense with the forms and service usually
required, and to dispose of it ‘as to it seems meet’ (Rule 6(12)(a)). This
in effect permits an urgent applicant, subject to the court’s control, to
forge its own rules (which must ‘as far as practicable be in accordance
with’ the rules). Where the application lacks the requisite element or
degree of urgency, the court can for that reason decline to exercise its
powers under Rule 6(12)(a). The matter is then not properly on the
court’s roll, and it declines to hear it. The appropriate order is generally
to strike the application from the roll. This enables the applicant to set
the matter down again, on proper notice and compliance.’
1 Commissioner for South African Revenue Service v Hawker Air Services (Pty) Ltd; Commissioner
for South African Revenue Service v Hawker Aviation Services Partnership and Others [2006] ZASCA
51; 2006 (4) SA 292 (SCA) ; [2006] 2 All SA 565 (SCA) at para 9.
[25] An applicant may not create its own urgency2 and must bring an
application at the first available opportunity in that the longer it takes to do so may
have the effect of diminishing urgency. 3 While the fact of delay will not
automatically result in a matter not being considered urgent, par ticularly where
the applicant’s rights are being continually infringed, 4 the applicant is required
explicitly to set out why the application is urgent, justify the degree of deviation
from the Rules of Court sought, 5 explain any delay and state why subst antial
redress cannot be obtained at a hearing in due course. 6 If the relief sought would
not be able to be obtained effectively in proceedings heard in the ordinary course,
the matter will ordinarily be considered urgent.7
[26] The applicants have failed to show that a deviation from the Rules is
justified in this matter. Important factual averments are missing from the founding
affidavit and the attempt to include certain of these by reference to an annexure
to such affidavit am ounts to an unacceptable approach to pleading which cannot
be sanctioned by this Court . The delay in bringing the application is not
adequately explained given the facts - and relevant dates - set out in the
answering affidavit, to which no reply was filed.
[27] The letter received from the parliamentary legal advisor does not in
itself show that the matter is urgent, nor does unexplained advi ce received that
the MK party would seek to have members sworn in on an undisclosed date. The
fact that the applicants w ere denied access to parliamentary accommodation on
19 August 2024, were short -paid on 15 August 2024, could not travel to Cape
Town or find resources for the urgent application similarly do not justify a finding
that the matter is urgent. This when the ap plicants have failed to plead the matter
fully and properly, setting out all requisite material facts to support the relief
sought, and have not shown why substantial redress could not be obtained at a
2 Nelson Mandela Metropolitan Municipality v Greyvenouw CC 2004 (2) SA 81 (SE) at paras 33; East
Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd [2012] JOL 28244 (GSJ) at para 7.
3 Collins t/a Waterkloof Farm v Bernickow NO and Another [2001] ZALC 223.
4 East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd supra par 8 and 5-6.
5 Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another t/a Makin’s Furniture Manufacturers
1977 (4) SA 135 (W) at 137F-G.
6 Salt v Smith 1991 (2) SA 186 (NmHC) at 187A-B.
7 Velocity Trade Capital (Pty) Ltd v Quicktrade (Pty) Ltd and Others [2019] ZAWCHC 92; [2019] 4 All
SA 986 (WCC) at para 23.
hearing in due course.
[28] Ordinarily, such a failure to show urgency may have resulted in an
order striking the matter off the roll. However, having regard to the substance of
the application, such an order would , in my mind, not be appropriate given the
serious material shortcomings discussed below.
Interim relief
[29] An interim interdict is a court order preserving or restoring the status
quo pending the final determination of the rights of the parties and does not
involve a final determination of these rights, nor affect the final determination of
such rights. The court’s jurisdiction to grant interim relief depends upon its
jurisdiction to maintain or restore the status quo and not on whether it has
jurisdiction to decide the main dispute. 8 It is an extraordinary remedy with in the
discretion of the court. 9 The well-known requirements for the grant of an interim
interdict were set out in Setlogelo10 and refined in Webster,11 and require that an
applicant must establish (a) a prima facie right even if it is open to some doubt;
(b) a reasonable apprehension of irreparable and imminent harm to the right if an
interdict is not granted; (c) the balance of convenience must favour the grant of
the interdict and (d) the applicant must have no other remedy. The Setlogelo test,
as adapted by case law, must be applied cognisant of the normative scheme and
democratic principles that underpin our Constitution and when considering
whether to grant an interim interdict the Court must do so in a way that promotes
the objects, spirit and purport of the Constitution.12
[30] In National Treasury and Others v Opposition to Urban Tolling Alliance
8 National Gambling Board v Premier , KwaZulu-Natal 2002 2 BCLR 156 (CC); 2002 2 SA 715 (CC)
730–732; President of the RSA v United Democratic Movement (African Christian Democratic Party
Intervening, etc) 2002 11 BCLR 1164 (CC); 2003 1 SA 472 (CC); Legal Aid Board v Jordaan 2006
JOL 18798 (SCA); 2007 3 SA 327 (SCA).
9 Scalabrino Centre Cape Town v Minister of Home Affairs 2012 JOL 29322 (WCC) 21–22.
10 Setlogelo v Setlogelo 1914 AD 221.
11 Webster v Mitchell 1948 (1) SA 1186 (WLD).
12 National Treasury and Others v Opposition to Urban Tolling Alliance and Others [2012] ZACC 18;
2012 (6) SA 223 (CC); 2012 (11) BCLR 1148 (CC).
and Others 13 it was made clear that the prima facie right a n applicant must
establish is not merely the right to approach a court in order to review an
administrative decision, since the right to review the impugned decisions does not
require any preservation pendente lite.14 It is a right to which, if not protected by
an interdict, irreparable harm would ensue. The Court noted that an interdict is
meant to prevent future conduct and not decisions already made. Quite apart
from the right to review and to set aside impugned decisions, the applicants
should demonstrate a prima facie right that is threatened by an impending or
imminent irreparable harm. This need not be shown by a balance of probabilities,
with it sufficient if the right relied on is prima facie established, though open to
some doubt. A court must also be satisfied that the balance of convenience
favours the granting of a temporary interdict. It must first weigh the harm to be
endured by an applicant if interim relief is not granted as against the harm a
respondent will bear, if the interdict is granted. Thus a court must assess all
relevant factors carefully in order to decide where the balance of convenience
rests.
[31] Motion proceedings concern the resolution of legal issues based on
common cause facts and cannot be used to resolve factual issues because they
are not designed to determine probabilities. 15 It is trite that in terms of the
Plascon-Evans16 rule where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts averred in the applicant’s
affidavits, which have been admitted by the respondent, together with the facts
alleged by the latter, justify such order. This is so unless the respondent’s version
consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is
palpably implausible, far-fetched or so clea rly untenable that the court is justified
in rejecting them merely on the papers.
[32] The applicants contend that they h old a prima facie right to the relief
sought based on the review application they have filed and their constitutional
rights set out in that application, which include, but are not limited to just
13 Supra
14 With reference to Setlogelo (supra) at 227.
15 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at 290D
16 Plascon-Evans Paints v Van Riebeeck Paints 1984 (3) SA 623 (A) at 634E -635D
administrative action . In claiming this, without pleading any factual basis to
support this claim, the applicants fail to show the existence of a prima facie right
to the relief sought.
[33] The letter received from the parliamentary legal advisor is said to
establish a reasonable apprehension of irreparable harm and th e existence of no
alternative remedy available to the applicants. The applicants claim further that
the balance of convenience favour them in that they have no alternative remedy
save for obtaining an interdict pending the outcome of the review application.
[34] In Ramakatsa and Others v Magashule and Others17 it was made clear
that the Constitution could not have contemplated that political parties could act
unlawfully and that the right to participate in the activities of a political party
confers on every political party the duty to act lawfully and in accordance with its
own const itution. This was found to mean that “our Constitution gives every
member of every political party the right to exact compliance with the constitution
of a political party by the leadership of that party”.18
[35] Despite the concerning picture painted by Mr Zuma regarding the
manner in which the MK party currently operates and makes decisions involving
its members, it remains for the applicants to show that the prerequisites for the
interim relief sought by them have been met . An interim interdict is not to be
granted by a court simply on the asking . Even if regard is had to the version of
events advanced by Mr Zuma, th e applicants have filed to show the existence of
a prima facie right worthy of protection . Given the paucity of relevant material
averments set out in their papers, they have not established a reasonable
apprehension of irreparable harm , nor that no alternative remedy is available to
them or that the balance of convenience is in their favour. In such circumstances,
with the requirements for the grant of an interim interdict not met, the application
cannot be granted and it consequently falls to be dismissed.
17 [2012] ZACC 31; 2013 (2) BCLR 202 (CC) at para 16.
18 Ramakatsa and Others v Magashule and Others [2012] ZACC 31; 2013 (2) BCLR 202 (CC) at para
16.
[36] Having regard to the pleadings and the provisions of the Superior
Courts Act, 2013, 19 there is no merit in the MK party’s c ontention that this Court
lacks jurisdiction to determine the matter, nor that the applicants lack the requisite
locus standi to bring the application.
[37] Turning to the issue of costs, there is n o reason why the ordinary rule
relating to the award of costs should not apply and c ounsel for both parties
accepted as much. Costs must therefore follow the result.
Order
[38] For these reasons the following order is made:
1. The application is dismissed with costs.
__________________
SAVAGE J
APPEARANCES:
For applicants: S Chitando
Instructed by Wendy Cele and Associates
For first respondent: N Nyathi
Instructed by Zungu Inc. Attorneys
19 Act 10 of 2013.