IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO: 2026-122389
In the matter between:
AFRICAN NATIONAL CONGRESS FIRST APPLICANT
FIKILE APRIL MBALULA SECOND APPLICANT
40 PERSONS APPOINTED TO CONSTITUTE THIRD APPLICANT
THE EASTERN CAPE PROVINCIAL TASK
TEAM AS LISTED IN ANNEXURE “A” TO THE
NOTICE OF MOTION
And
LWAZI ROTYA FIRST RESPONDENT
SINETHEMBA MPANDE SECOND RESPONDENT
NOMPUMELELO MZOTHWA THIRD RESPONDENT
JUDGMENT
Noncembu J
[1] The first and second applicants (hereinafter referred to as the ANC); and
the third applicant (hereinafter referred to as the PTT) 1 have brought two
separate applications for leave to appeal to the full court of this division,
alternatively, the Supreme Court of Appeal, against the whole judgment and
order of this court handed down on 18 June 2026. In addition, the ANC has
lodged an application in terms of section 18 (2) of the Superior Courts
Act,2where it seeks a declarator that the order granted by this court on 18 June
2026 is final, alternatively, and in the event the said order is viewed as interim
relief, an order suspending the operation and execution thereof.
[2] The latter application was brought on an urgent basis and was initially set
down for hearing on the motion court roll on 21 July 2026. Before the said date,
however, Govindjee J issued a directive that the matter be heard before this
court together with the application for leave to appeal, as it was apparent on the
papers that the matter was contingent upon an application for leave to appeal
being lodged, and that the parties had already agreed on a date of hearing for the
1 Jointly referred to as the applicants.
2 Superior Courts Act, 10 of 2013.
leave to appeal application. Both applications therefore were argued before me
on 31 July 2027.
[3] Although the respondents had initially taken issue with the urgency of the
section 18(2) application, this aspect was conceded during argument before
court. I am also satisfied that the matter is urgent enough to warrant a hearing
on an expedited basis and on truncated time periods, with condonation for non -
compliance with the rules being granted.
[4] I propose to first deal with the question of appealability and the
application for leave to appeal, as findings thereon will have a direct bearing on
the outcome of the section 18(2) application.
Whether the order granted by this court on 18 June 2026 is appealable
[5] One of the issues arising in this matter is whether the order sought to be
appealed against by the applicants is appealable. In the main application, this
court granted, inter alia, the following relief which is the subject of the current
applications:
‘2. An interim interdict is hereby granted, suspending the decision to appoint an interim
Provincial Task Team in the Eastern Cape pending the final determination of the orders in
paragraphs 3 to 8 below.
3. It is declared that the announcement of the appointment of the Provincial Task Team to
replace the elected Provincial Executive Committee of the African National Congress in the
Eastern Cape is:
3.1 unconstitutional (in breach of section 19 of the Constitution of the Republic of South
Africa, 1996);
3.2 unlawful and in breach of the applicants' contractual rights as governed by the
Constitution, rules, policies, and directives of the African National Congress (“ANC”);
3.3 violates the ANC's Constitution and the ANC's guidelines for ANC Branch General
Meetings, Branch Biennial General Meetings, Regional, Provincial, and National
Conferences as adopted by the National Executive Committee; and
3.4 reviewed and set aside.
4. Any decision to recognize or give effect to the said announcement is declared to be invalid
and is set aside.
5. The appointment of the fifth to forty -fourth respondents as members of the ANC Eastern
Cape PTT is declared invalid, reviewed, and set aside.
6. All decisions taken by the fifth to forty -fourth respondents are declared unlawful, invalid,
and of no force or effect.
7. The fifth to forty -fourth respondents are interdicted from holding themselves out as
members of ANC Eastern Cape PTT.
8. The fifth to forty-fourth are interdicted from representing the Eastern Cape province in any
structure, function, meeting, conference, or activity of the ANC at any level whatsoever.
9. Paragraphs 3 to 8 are to operate as an interim interdict pending the final determination of
the matter.’
[6] The applicants contend that the orders, whilst explicitly stated to be
interim, are in effect final. They base this on various reasons, which include the
fact that: (a) there were no pending proceedings foreshadowed in the
respondents’ main application; (b) paragraph 3 of the order had the effect of
reviewing and setting aside various decisions, which review was determined
without a record and cannot be undone in later proceedings; (c) paragraph 6
finally determined the effect of decisions taken by the PTT, and cannot have its
effect varied or amended at a later stage; and (d) although the court sought to
grant interim remedy, it granted declaratory rights, an order which is final in
nature and in effect, and as such incapable of being granted on an interim basis.
[7] The respondents, on the other hand, contend that the order, as explicitly
stated thereon, is interim and that nothing precludes the applicants from setting
the matter down for its final determination. They contend thus that the matter is
not appealable.
[8] There can be no question that the law is replete with authorities on the
appealability of interim orders. In my view, the question for determination in
the present matter is not about whether the order is final in effect, but rather,
whether or not it is appealable. Below I deal with the authorities on which I base
the said view.
[9] In City of Tshwane Metropolitan v AfriForum and Another 3 the
Constitutional Court held as follows in this regard:
‘Unlike before, appealability no longer depends largely on whether the interim order
appealed against has final effect or is dispositive of a substantial portion of the relief
claimed in the main application. All this is now subsumed under the constitutional
interests of justice standard. The over -arching role of interests of justice
considerations has relativised the final effect of the order or the disposition of the
3 City of Tshwane Metropolitan v AfriForum and Another [2016] ZACC 19; 2016 (9) BCLR 1133 CC; 2016 (6)
SA 279 (CC) 21 July 2016.
substantial portion of what is pending before the review court, in determining
appealability. The principle was set out in OUTA4 by Moseneke DCJ in these terms:
“This Court has granted leave to appeal in relation to interim orders before. It has
made it clear that the operative standard is ‘the interests of justice’. To that end, it
must have regard to and weigh carefully all germane circumstances. Whether an
interim order has a final effect or disposes of a substantial portion of the relief sought
in a pending review is a relevant and important consideration. Yet, it is not the only
or always decisive consideration. It is just as important to assess whether the
temporary restraining order has an immediate and substantial effect, including
whether the harm that flows from it is serious, immediate, ongoing and irreparable.”’
[10] In Phillips v SA Reserve Bank and Others 5 Farlam JA made the following
remarks on the question of appealability of orders:
‘The question of appealability in a case such as this, where a party seeks to attack on
appeal an order made in judicial proceedings which have not yet terminated, was
discussed by Nugent JA in a judgment with which the other members of the court
concurred in National Director of Public Prosecutions v King 6, where he said the
following:
“There will be few orders that significantly affect the rights of the parties concerned
that will not be susceptible to correction by a court of appeal. In Liberty Life
Association of Africa Ltd v Niselow (in another court), which was cited with approval
by this court in Beinash v Wixley7 I observed that when the question arises whether an
order is appealable what is most often being asked is not whether the order is capable
of being corrected, but rather whether it should be corrected in isolation and before the
proceedings have run their full course. I said that two competing principles come into
play when that question is asked. On the one hand, justice would seem to require that
play when that question is asked. On the one hand, justice would seem to require that
every decision of a lower court should be capable not only of being corrected
forthwith and before it has any consequences, while on the other hand the delay and
4 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).
5 Phillips v SA Reserve Bank and Others [2012] 2 All SA 532 (SCA) at 539 para 26.
6 [2010] ZASCA 8; BCLR 656 (SCA); 2010 (2) SACR 146 (SCA) [also reported at [2010] 3 All SA 304 (SCA)
-Ed].
7 1997 (3) SA 721 (SCA).
inconvenience that might result if every decision is subject to appeal as and when it is
made might itself defeat the attainment of justice.”
In this case it was said on behalf of Mr King that the order is not appealable because it
is interlocutory. Whether that is its proper classification does not seem to me to be
material. I pointed out in Liberty Life that while the classification of the order
might at one time have been considered to be determinative of whether it is
susceptible to an appeal, the approach that has been taken by the courts in more
recent times has been increasingly flexible and pragmatic. It has been directed
more to doing what is appropriate in the particular circumstances than to
elevating the distinction between orders that are appealable and those that are
not to one of principle. Even the features that were said in Zweni v Minister of
Law and Order to be characteristic, in general, of orders that are appealable were
later said by this court in Moch v Nedtravel (Pty) Ltd not to be exhaustive nor to
cast the relevant principles in stone. As appears from the decision in Moch, the
fact that the order is not 'definitive of the rights about which parties are
contending in the main proceedings' and does not 'dispose of any relief claimed in
respect thereof', which was one of the features that was said in Zweni to generally
identify an appealable order, is far from decisive. "’ (Emphasis intended)
[11] The court went further8:
‘The matter was further discussed in two recent decisions of this Court in Health Professions
Council of South Africa v Emergency Medical Supplies and Training CC t/a EMS 9 and
Government of the RSA v Von Oho10, where Snyders JA said:
“It is fair to say there is no checklist of requirements. Several considerations need to be
weighed up, including whether the relief granted was final in its effect, definitive of the rights
of the parties, disposed of the substantial portion of the relief claimed, aspects of convenience,
the time at which the issue is considered, delay, expedience, prejudice, the avoidance of
piecemeal appeals and the attainment of justice. “'
8 At para 27.
9 2010 (6) SA 469 (SCA); [2010] 4 All SA 175 (SCA); [2010] 4 All SA 175 (SCA).
10 2011 (5) SA 262 (SCA) at 270B - D para 17.
[12] The Constitutional Court in United Democratic Movement and Another v
Lebashe Investment Group11, stated the following on this issue:
‘Thus, an order which appears in form to be purely interlocutory will be appealable if its
effect is such that it is final and definitive of any issue or portion thereof in the main action.
By the same token, an order which might appear, according to its form, to be finally
definitive in the above sense may, nevertheless, be purely interlocutory in effect. 12 Whether
an order is purely interlocutory in effect depends on the relevant circumstances and factors of
a particular case.’
[13] The court stated further:13
‘What is to be considered and is decisive in deciding whether a judgment is
appealable, even if the Zweni requirements are not fully met, is the interests of justice
of a particular case and whether or not an order lacking one or more of the factors set
out in Zweni constitutes a “decision” for the purposes of section 16(1)(a) of the
Superior Courts Act. Over and above the common law test, it is well established that
an interim order may be appealed against if the interests of justice so dictate. It is thus
in the interests of justice that the impugned interim interdict is appealable on the
allegation that the interdictory relief in question resulted in the infringement of the
right to freedom of expression.’
[14] In Machele and Others v Mailula and Others 14, Skweyiya J, relying on
what this Court held in TAC, reaffirmed the importance of “irreparable harm” as
a factor in assessing whether to hear an appeal against an interim order, albeit
an order of execution:
11 United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others [2022] ZACC
34; 2022 (12) BCLR 1521 (CC); 2023 (1) SA 353 (CC), para 41.
12 South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at
535G-536A; and Metlika Trading Ltd v Commissioner for the South African Revenue Services [2012]
ZAGPPHC 360; 2012 JDR 1278 (GNP).
13 At para 45.
14[2009] ZACC 7; 2010 (2) SA 257 (CC); 2009 (8) BCLR 767 (CC).
‘The primary consideration in determining whether it is in the interests of justice for a
litigant to be granted leave to appeal against an interim order of execution is,
therefore, whether irreparable harm would result if leave to appeal is not granted.’
[15] On a consideration of the factors stated in the above authorities, I am
satisfied that the orders in the present matter are, on the application of the
interests of justice principle, appealable. This then brings one to the question of
whether the applicants have satisfied the test for leave to appeal.
Application for leave to appeal
[16] Both applicants (the ANC and the PTT) pin their case on the provisions
of section 17(1) (a) of the Superior Courts Act15, which provides –
‘Leave to appeal may only be given where the judge or judges concerned are of the opinion
that –
(a)(i) the appeal would have reasonable prospects of success;
(ii) there is some other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.’
[17] The test for leave to appeal is well established in our law. The Supreme
Court of Appeal (SCA) in MEC for Health, Eastern Cape v Mkhitha and
Another (Mkhitha),16 expressed the test as follows:
‘An applicant must convince the court on proper grounds that there is a reasonable prospect
or realistic chance of success on appeal. A mere possibility of success, an arguable case, or
15 Act 10 of 2013.
16 MEC for Health, Eastern Cape v Mkhitha and Another [2016] ZASCA 176 (25 November 2016).
one that is not hopeless is not enough. There must be a sound, rational basis to conclude that
there is a reasonable prospect of success on appeal.’
[18] In S v Smith (Smith),17 the SCA stated the following on the test:
‘What the test of reasonable prospects of success postulates is a dispassionate decision, based
on the facts and the law, that the Court of Appeal could reasonably arrive at a conclusion
different than that of the trial Court. In order to succeed, therefore, the appellant must
convince this Court on proper grounds that he has prospects of success on appeal and that
those prospects are not remote, but have a realistic chance of succeeding. More is required to
be established than that there is a mere possibility of success. That the case is arguable on
appeal or that the case cannot be categorised as hopeless. There must, in other words, be a
sound, rational basis for the conclusion that there are prospects of success on appeal.’
[19] There is a case made for the proposition that the threshold for reasonable
prospects of success has been raised in terms of the new Act. In this regard,
Bertelsmann J, said the following in Mont Chevaux Trust v Tina Goosen and 18
Others18:
‘It is clear that the threshold for granting leave to appeal against a judgment of a High Court
has been raised in the new Act. The former test whether leave to appeal should be granted
was a reasonable prospect that another court might come to a different conclusion, see Van
Heerden v Cornwright & Others 1985 (2) SA 342 (T) at 343H. The use of the word “would”
in the new statute indicates a measure of certainty that another court will differ from the court
whose judgment is sought to be appealed against.’
17 S v Smith 2012 (1) SACR 567 (SCA).
18 Mont Chevaux Trust v Tina Goosen and 18 Others 2014 JDR 2325 (LCC) at para 6 (3 November 2014); see also
Van Wyk v S; Galela v S [2014] ZASCA 152; 2015 (1) SACR 584 (SCA) para [14].
[20] Whether or not that is the case is not for this court to decide at this point.
What is indisputable, though, is that there must be reasonable prospects of
success, as contemplated in Mkhitha and in Smith referred to above, or
compelling reasons why the appeal should be heard.
[21] Both applicants, as can be ascertained from their notices of motion,
premise their applications on the requirement that there are reasonable prospects
of success on appeal (section 17 (1) (a) (i)).
[22] To that extent, both applicants raise a number of grounds as a basis for
asserting reasonable prospects of success on appeal. For the ANC, these include
the fact that the court erred: by failing to consider material averments it made in
support of its case; by incorrectly interpreting the ANC Constitution,
specifically rule 12.2.4; by finding that the extract of the Minutes from the NEC
meeting was mala fide; and in granting final relief styled as interim relief.
[23] For the PTT, the grounds mainly centred on the court’s misdirection in
granting declaratory relief as an interim interdict; in granting a review order as
an interim interdict and in granting both interim and final relief in the same
application. The PTT also contended that no case was made for either interim or
final relief as materially disputed facts stood in the way.
[24] As a starting point, I find it quite telling that the PTT takes no issue with
the court’s findings on the merits of the matter. Its attack on the judgment
revolves mainly on the nature of the orders made by this court and their effect.
The argument raised in this regard is that because of the final nature of the
orders styled as interim relief, the court applied an incorrect test when it should
have applied the Plascon-Evans test.
[25] The difficulty I have with this argument is that it refers to material
disputes of fact which were in existence in the matter, and yet fails to state what
those disputes of fact are. The true state of the matter, however, is that there
were no real disputes of fact that arose in the matter, as the matter was decided
solely on the interpretation of the ANC Constitution. The question that had to be
decided was whether the ANC had met the jurisdictional requirements for the
installation of the PTT. The applica bility of the Plascon -Evans test or any other
test, for that matter, did not arise.
[26] On a similar vein, the ANC contends that the court failed to consider its
material averments and decided the matter on the deficiencies in the PTT’s
version. This cannot be further from the truth. The deficiencies the court
referred to concerned the PTT’s version vis-à-vis that of the ANC, as well as the
deficiencies/contradictions inherent in the ANC’s version on its own, as both
these parties were opposing the application and both were party to the events
leading to the installation of the PTT.
[27] The material facts which were not in dispute in the matter were that the
PEC was never dissolved (in fact both the ANC and the PTT maintained this
version), as both contended that dissolution was not necessary as the PEC’s
term of office had been terminated by the effluxion of time. This was
notwithstanding the ANC later contradicting itself in this regard by contending
(through the later presented extract of the NEC minutes) that the PEC was
dissolved. Needless to say, the court accepted their earlier version in this regard,
which version was also corroborated by the PTT.
[28] As is evident from above, there were no material contradictions of fact
between the version of the applicants (the ANC and the PTT) and those of the
respondents. The matter and the ultimate judgment of the court turned on the
interpretation of Rule 12.2.4 of the ANC Constitution, as both the respondents
and the ANC contended that the ANC had exercised powers vested upon it by
the said provision when it installed the PTT.
[29] This court notes the attempt by the ANC to recast their case in the leave
to appeal application by stating that it was necessary for the PTT to be installed
as the PEC was dysfunctional. That, unfortunately, was not the case they
presented in the main application and therefore cannot be raised for the first
time in the leave to appeal application.
[30] The other grounds raised by the ANC in its application have been dealt
with extensively in the judgment on the main application; they will therefore not
be rehashed in this judgment. Suffice it to say that the remaining grounds,
specifically, the probative value of the extract of the minutes of the NEC
meeting, pertain to remarks made in obiter by the court, and do not in any way
present the ratio for the court in coming to its decision.
[31] The remarks were specifically intended to show the inconsistencies in the
ANC’s own version. The ultimate ruling of the court was premised on the
finding that the ANC had failed to satisfy the jurisdictional requirements for the
appointment of the PTT as provided for in rule 12.2.4 of its Constitution. This,
inevitably, entailed the interpretation of the said provision.
[32] On the aspect of the court granting review relief in the absence of a
record in the matter, it is not clear to me how that avails the ANC or the
applicants in the matter. All the parties were afforded the opportunity to file
their papers in the matter, and the issues were fully ventilated and canvassed
before the court. Furthermore, it is a trite principle that a record in such
proceedings is for the benefit of the applicant (respondents in the present case).
The respondents had all the information they needed to fully present and argue
their case, and as already stated, the matter turned solely on the interpretation of
the ANC Constitution, an aspect for which the record would have had no
bearing, the facts having either been common cause or not in dispute.
[33] There is also no basis for the unsubstantiated claim made by the PTT that
no case was made for either interim or final relief in the matter. As to the nature
and effect of the orders, I have already stated above what I view as the
relevance thereof. Having found in that regard that the matter is appealable,
nothing more needs to be said on the issue.
[34] Taking into account all that has been stated above, I am unable to find
that the applicants have satisfied the test of establishing reasonable prospects of
success on appeal in the matter. On that basis therefore, both applications for
leave to appeal must fail.
Section 18(2) Application
[35] Having found as I did in the preceding paragraph, it follows that the
section 18(2) application falls to be dismissed with costs because, by its nature,
it is contingent on the leave to appeal being granted.
Costs
[36] There is no reason why the general rule, that costs follow the event,
should not apply in the present matters.
Order
[37] In the result, the following orders are made:
(a) The two applications for leave to appeal (by the ANC and the PTT
respectively) are dismissed with costs.
(b) The section 18(2) application is dismissed with costs.
_______________________
V P NONCEMBU
JUDGE OF THE HIGH COURT
APPEARANCES
Counsel for the 1st and 2nd Applicants (ANC) : Y Saloojee and D Canham
Instructed by :Ntanga Nkuhlu
Incorporated
C/O Mfundo Ntshwaxa
Attorneys
Makhanda
Counsel for the third applicants (PTT) : A M Bodlani SC with Ntikinca
and
Z Nxazonke-Mashiya
Instructed by : Enzo Meyers Attorneys
C/O Makanya Incorporated
Makhanda
Counsel for the Respondents : D Mpofu SC with M Salukazana
Instructed by : Makangela Mtungani Inc
: East London
C/O White Sides Attorneys
Makhanda
Date of hearing : 31 July 2026
Date judgment delivered : 6 August 2026