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[2015] ZAWCHC 22
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Tlouamma and Others v Mbete, Speaker of the National Assembly of the Parliament of the Republic of South Africa and and Another (3236/2015) [2015] ZAWCHC 22 (27 February 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
CASE NUMBER : 3236/2015
DATE : 27 FEBRUARY 2015
In the matter between:
ANDRIES
TLOUAMMA
....................................................................................................
1st
Applicant
AGANG
SA
.........................................................................................................................
2nd
Applicant
MOSIUOA GERARD PATRICK
LEKOTA
....................................................................
3rd
Applicant
CONGRESS OF THE
PEOPLE
........................................................................................
4th
Applicant
BANTUBONKE HARRINGTON
HOLOMISA
..............................................................
5th
Applicant
UNITED DEMOCRATIC
MOVEMENT
.........................................................................
6th
Applicant
And
BALEKA MMAKOTA MBETE, SPEAKER OF
THE NATIONAL ASSEMBLY OF THE
PARLIAMANT OF THE REPUBLIC OF
SOUTH
AFRICA
.............................................................................................................
1st
Respondent
JACOB GEDLEYIHLEKISA ZUMA
PRESIDENT OF THE REPUBLIC OF
SOUTH
AFRICA
............................................................................................................
2nd
Respondent
JUDGMENT
BINNS-WARD, J
The matter with which the Court is
concerned at this stage of proceedings involves paragraphs 1 to 3 of
the notice of motion. Procedural
and substantive questions arise for
determination.
The procedural questions are whether
the application for interim relief should be entertained as a matter
of urgency and, assuming
that it is so entertained, whether the
relief sought in terms of paragraph 3 for the programming of the
hearing of the application
in respect of the issues on which the
applicants seek final relief should be granted.
The substantive question goes to the
interim interdict sought in terms of paragraph 2 of the notice of
motion.
The first respondent contended that the
applicants had brought the application in a situation of self-created
urgency. The basis
for this argument was that the applicants had been
in a position to institute these proceedings as from the end of
November 2014
and that the institution of proceedings in this Court
only in the latter part of February 2015 was unreasonable and
inexcusable.
It had denied the first respondent the opportunity to
deal with the allegations in the founding papers adequately. In this
regard
it should be noted that the first respondent, understandably,
confined herself in her answering affidavit to dealing with the
matters
centrally relevant to the relief sought in terms of
paragraphs 1 to 3 of the notice of motion and indicated her intention
to deliver
further answering papers in respect of the final relief
sought by the applicants.
It should be noted that the applicants
had sought to obtain relief directly from the Constitutional Court.
Direct access to the
Constitutional Court was refused by that Court
in late February 2015 and the current application to this Court was
brought virtually
immediately thereafter. As mentioned, the first
respondent contends that the application directly to the
Constitutional Court
was misguided and consequently the applicants
should pay the price for not approaching this Court earlier in a
manner that would
have allowed the issues to be more properly and
thoroughly ventilated. The first respondent was essentially
contending therefore
that the manner in which the application for
interim relief has been brought was an abuse of process.
I am unable to agree that the
application to the Constitutional Court was fundamentally misdirected
and so unreasonable that its
bringing should count against the
applicants on the basis of the respondents’ self- created
urgency argument. The principal
relief sought by the applicants
raises constitutional questions of pressing significance and in
certain respects entails matter
in respect of which it is arguable
that only the Constitutional Court might have jurisdiction.
The questions integral to the final
relief sought by the applicant are also matters which might
reasonably have been found to have
been of such pressing
constitutional urgency that the Constitutional Court might have
decided, exceptionally, to entertain them
as a court of first and
final instance. I accordingly reject the first respondent’s
argument that the urgency in the current
application is self-created.
The debate which the applicants wish to
have stayed pending the determination of the principal relief is
scheduled to take place
on 3 March 2015 - next Tuesday. It is
therefore plain that the applicants could not obtain relief at a
hearing in the ordinary
course. Relief in terms of paragraph 1 of
the notice of motion will therefore be granted in respect of the
relief sought in terms
of paragraph 2.
Turning to the interim interdict, the
principles to be applied in respect of applications for interim
relief are well established.
They are (a) the existence of a prima
facie right, even if it is open to some doubt; (b) a reasonable
apprehension by the applicant
of irreparable and imminent harm to the
right if an interdict is not granted; (c) the balance of convenience
must favour the granting
of the interdict; and (d) the applicant must
have no other effective remedy.
Moreover, the remedy is discretionary.
Thus even, if an applicant satisfies all the requirements, it remains
within the discretion
of the court, obviously to be exercised
judicially, to grant or decline an interim interdict. The court
assesses the evidence holistically
to determine whether the
requirements have been satisfied and, if they have, how to exercise
its discretion.
It is common ground in the current
matter that the relief sought in terms of paragraph 2 of the notice
of motion will, if granted,
result in an impingement on the first
respondent’s powers and functions as Speaker of the National
Assembly and thus entail
the judicial arm of government treading on
the territory of the legislative branch of government. It is within
the authority and,
indeed the duty, of the courts to do so in
appropriate cases. How the principles governing interim interdict
applications are
to apply in these circumstances was treated of by
the Constitutional Court in National Treasury and Others v Opposition
to Urban
Tolling Alliance and Others 2012(6) SA 223. The Court in
that matter held that although the requirements pertaining to the
determination
of interim interdict applications were initially
fashioned for, and ideally suited to, interdicts between private
parties, they
were nevertheless endorsed, at least by the majority of
the Court, as sufficient to determine applications to restrain the
exercise
of statutory power pendente lite, provided that any court
disposed to do so is required to take appropriate cognisance of the
trenching
effect the grant of such restraining order can have on the
exclusive domain of another branch of government, and therefore
proceeds
sensitively to the constitutional role of the doctrine of a
separation of powers in respect of any decision to make the order.
In City of Cape Town v South African
National Roads Agency Ltd and Others 2013 ZAWHC 74, at paragraph 75,
I described the effect
of the judgment of the Constitutional Court in
the OUTA case just referred to as follows:
“I have concluded that the
intention in the reasoning of the majority judgment in OUTA was to
reiterate, as a matter of established
constitutional principle, that
courts seized of applications for interim interdictory relief
pendente lite in matters where the
functions and powers of the
executive or the legislature are susceptible to being restrained must
be consciously sensitive to the
impact on the constitutionally
ordained separation of powers of any order they might be inclined to
consider making restraining
the use of executive or legislative
power. Where, on such an assessment, the impact of the restraining
order (what the Constitutional
Court labelled for convenience as
‘balance of power harm’) looks to be significant, a court
will incline against making
the order unless a strong case for the
relief has been made out, and only in the clearest of cases. A strong
case would be one
in which the right at issue, although established
only prima facie and open to a measure of doubt, nevertheless appears
to enjoy
good prospects of being established in the main proceedings,
and also one in which the need for the intervention of an interim
interdict is clearly shown if irreparable harm to the applicant is to
be averted – in other words, a case in which the balance
of
convenience clearly militates in favour of the granting of the
remedy. Such a construction would give effect, in my view, to
the
evident intention in the Constitutional Court judgment (i) to confirm
the application of the well-established requirements
of the interim
interdict remedy in such cases; and (ii) to explain how they should
be applied in a manner consistent with respect
by the courts for the
constitutional scheme of a separation of powers where the remedy
would restrain the exercise of executive
or legislative power. The
greater the impact of the impinging effect of the postulated
restraining order on the domain of the executive
or the legislative
branches the more circumspect, and demanding of the applicant’s
case, the court will be before deciding
that it is appropriate to
grant it. The principle that a court does not lightly grant an
interim interdict pending the review of
executive action even if all
the requirements for an interdict have been established is nothing
new. The Constitutional Court judgment
in OUTA has fleshed out the
articulation of the principle.”
The principal relief sought by the
applicants raises novel and complex constitutional issues. The
outcome of the application for
the principal relief is by the nature
of the matter therefore essentially unpredictable. Some of the relief
sought might reasonably
be described as ambitious. Certainly, this
Court is not in a position, without the benefit of detailed and
considered argument
from all sides and the opportunity for mature
reflection, to essay an opinion on the probable outcome of the
application for principal
relief. This must, in my view, bear on the
issue of the strength of the prima facie case on which the applicants
rely for interim
relief. The effect of the relief sought by the
applicants in terms of paragraph 2 of the notice of motion is that
the debate on
the motion of no confidence in the President will not
proceed next Tuesday, and that it will proceed only after the
determination
of the principal relief.
The first respondent contends that it
is within the applicant’s power to achieve that of its own
doing without the Court’s
intervention by simply withdrawing
the motion and re-enlisting it after the determination of the final
relief. The argument is
that the applicants will not be irremediably
harmed if the interdict is not granted. The first respondent also
contends that in
the circumstances the “balance of power harm”
weighs against the applicants, having regard to the trenching effect
of an interim interdict on the separation of powers. In my judgment
these contentions carry convincing force.
The applicant’s answer is that
they will be prejudiced because, if they succeed in obtaining the
principal relief, they may
face obstruction in getting the motion
re-enlisted. In this regard, the applicants’ counsel laid
emphasis on certain provisions
of Rule 102A of the National Assembly,
in particular sub-rule (3).
I am not persuaded by these arguments.
On the contrary, I consider that the first respondent would be
hard-pressed in the face of
her averments in paragraph 15 of her
answering affidavit to frustrate the re-enlistment of the motion on
the agenda as soon as
practically possible and without unreasonable
delay after the determination of the application for final relief, if
re-enlistment
were applied for. If the motion has already passed
muster in terms of Rule 102A(3), it is not easy to conceive why it
should not
do so again when, and if, the matter is re-enrolled. The
issue might in any event be addressed by the relief sought in terms
of
paragraph 4.4 of the applicant’s notice of motion to this
Court, if it were to be granted - as the applicant’s clearly
believe it should.
In the circumstances I am not persuaded
that the applicants have established all the requirements for interim
relief. But, even
where I wrong in this regard, I would not be
inclined, in view of the separation of powers issues involved, to
exercise my discretion
in their favour.
The enrolment of the application for
principal relief on the semi-urgent roll of this Court is justified.
There was no argument
to the contrary.
Mr Heunis submitted that if the
applicants were unsuccessful in obtaining an interim interdict there
should be no orders to costs.
He made this contention on the basis
of the so-called Biowatch principle. Time has not allowed me the
opportunity to give that
submission proper consideration. In the
circumstances I am going to reserve the costs of this stage of the
proceedings to be determined
together with the principal application.
The following orders are made:
1. In terms of paragraph 1 of the
notice of motion it is declared that the application for interim
relief was properly brought and
entertained as a matter of urgency in
terms of uniform Rule 6(12).
2. The application for an interim
interdict in terms of paragraph 2 of the notice of motion is
dismissed.
3. The application for relief in terms
of paragraph 4 of the notice of motion shall be heard on the
semi-urgent roll of this Court
on a date and timetable to be approved
by the Judge President.
4. The question of costs shall stand
over for determination in the hearing for the principal relief.
BINNS-WARD, J