IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE, GRAHAMSTOWN) CASE NO: 813/2011 DATE HEARD: DATE DELIVERED:

Transcription

1 1 IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE, GRAHAMSTOWN) In the matter between CASE NO: 813/2011 DATE HEARD: DATE DELIVERED: DAN BOLMAN BAZIL ROOIBERG First Applicant Second Applicant And THE AFRICAN NATIONAL CONGRESS THE EASTERN CAPE PROVINCIAL EXECUTIVE COMMITTEE OF THE AFRICAN NATIONAL CONGRESS THE BUFFALO CITY INTERIM REGIONAL COMMITTEE OF THE AFRICAN NATIONAL CONGRESS THE NATIONAL EXECUTIVE COMMITTEE OF THE AFRICAN NATIONAL CONGRESS THE INDEPENDENT ELECTORAL COMMISSION THE LIST OF CANDIDATES IN ACCORDANCE WITH ANNEXURE A TO THE NOTICE OF MOTION First Respondent Second Respondent Third Respondent Fourth Respondent Fifth Respondent Remaining Respondents JUDGMENT PICKERING J: On 25 March 2011 I gave an order dismissing the applicants application and intimated that my reasons for so ordering would follow. These are the reasons. On 11 March 2011 applicants launched an application in terms whereof notice was given to the various respondents that application would be made on 24 March 2011 for an order, inter alia, in the following terms: 2. That notice of this application to the List of Candidates marked

2 2 Annexure A to the Notice of Motion by publication in the Daily Dispatch newspaper and broadcast thereof on a radio station broadcasting within the Eastern Cape Region be condoned. 3. That the process in terms of which the Lists for Candidates for Local Government Elections for the Buffalo City Region were finalised, be declared improper, unlawful and/or irregular. 4. That the said Lists of Candidates for Local Government elections for the Buffalo City Region finalised on 8 March 2011 be and are hereby set aside and are declared null and void. 5. That the First Respondent and the Second Respondent be and are hereby interdicted from submitting any final List/Lists of Candidates to the Fifth Respondent, until such time as due and proper compliance with the Guidelines, the Constitution and Procedures for the proper nomination of candidates has been implemented. 6. That all decisions taken by the unlawfully constituted Buffalo City Interim Regional Committee under the chairmanship of Mr. Mxolisi Dimaza and Secretary, Pumla Nazo as from 1 October 2010 to 13 February 2011 be declared invalid and set aside. 7. That the costs of this application be paid by the First, Second, Third and Fourth Respondents, jointly and severally, the one paying the other to be absolved. The respondents cited were the African National Congress, first respondent; the Eastern Cape Provincial Executive Committee of the African National Congress, second respondent; the Buffalo City Interim Regional Committee of the African National Congress, third respondent; the National Executive Committee of the African National Congress, fourth respondent; and the Independent Electoral Commission, fifth respondent. In addition, the list of candidates in accordance with Annexure A to the Notice of Motion were cited as the remaining respondents. The remaining respondents are those candidates whose names appear on the lists which the applicants seek to have set aside in terms of prayer 4 of the Notice of Motion. It is not in dispute that these candidates are the nominees of fifty different branches of the

3 3 African National Congress ( ANC ) in the region. The urgency of the application lay in the fact that the deadline for the filing of the ANC s List of Candidates for the region with the Independent Electoral Commission was Friday 25 March The application was served on the first to fourth respondents on 14 March, the same day on which the respondents were enjoined in terms of the Notice of Motion to notify the applicants of their intention to oppose, if so advised. First to fourth respondents did file a Notice of Opposition dated 15 March On Tuesday 22 March, an answering affidavit attested to by Mr. Mabuyane, the provincial secretary for the Eastern Cape of the first respondent was filed. It should be mentioned that Monday, 21 March 2011, was a public holiday. No Notice of Opposition was filed on behalf of the independent Electoral Commission, the fifth respondent herein, or on behalf of the remaining respondents. For the sake of convenience I will refer to the first to fourth respondents as the respondents. At the hearing of the matter before me on 24 March 2011 a number of points in limine were raised by Mr. Quinn S.C. who, with Ms. Beard, appeared for the respondents. Mr. Quinn submitted that the applicants lacked locus standi; that there had been no or improper service on the remaining respondents and that such urgency as existed had arisen as a result of the applicants own dilatory conduct. LOCUS STANDI Applicants assert that they are the chairperson and secretary of the Esther Canham branch of the first respondent, ward 11, Buffalo City. They allege that they bring the proceedings both in their personal capacities and in their respective capacities as chairperson and secretary of the Esther Canham branch. Respondents deny that applicants are the duly elected chairperson and secretary respectively and have filed affidavits by persons whom they

4 4 allege in fact occupy these positions. Mr. Cole, who appeared on behalf of the applicants, pointed to certain of the annexures which, so he submitted, indicate that the applicants do indeed hold the positions alleged by them. I am unable, however, to decide this dispute on the papers and, in the absence of a referral to oral evidence, the matter must be decided in accordance with the rule set out in Plascons-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634F 635C. In any event, even on the assumption that the applicants do indeed hold the positions alleged by them, their authority to launch these proceedings in their representative capacities has been put in issue by the respondents who rely on the absence in the founding papers of any empowering resolution of the Esther Canham branch or indeed of any of the other forty nine branches of the ANC in the region whose candidates appear on the list (Annexure A). As appears from the applicants founding papers the relief they seek is extremely broad. The applicants are, in effect, purporting to act on behalf of fifty branches of the ANC in the Buffalo City region. In Nahrungsmittel GmbH v Otto 1991 (4) SA 414 (C) Conradie J stated as follows at 418C D: In motion proceedings by an artificial person it is not absolutely necessary to attach the resolution authorising institution of the proceedings of the founding affidavit. See South West African National Union v Tjozongoro and Others 1985 (1) (SA) 376 (SWA) at 318D E where relevant cases are collected. Where there is a challenge to a deponent s authority, which should be more than a bare complaint that he failed to annex an empowering resolution, it would usually be prudent for an applicant to produce the resolution in reply. See Baeck and Co SA (Pty) Ltd v Van Zummeren and Another 1982 (2) SA 112 (W). In the present matter the authority of the applicants to launch the present

5 5 proceedings in their representative capacities has been pertinently placed in dispute. All that the applicants state in reply is that the respondents seek to cloud the issue by raising various technical points in limine, which points are without any substance. In my view, in the absence of any empowering resolutions, the challenge to the applicants locus standi on the above basis must succeed. There is, however, a further problem confronting the applicants In the matter of Luvela and Others vs The African National Congress and Others, unreported Eastern Cape, Mthatha case no 543/11, dated 23 March 2011, Nhlangulela J stated with regard to a similar matter: The branches are not legal personae. They also do not have a life which is separate from that of the ANC. They have no constitution of their own which is separate from that of the ANC. There is no evidence available to show that the ANC has permitted its branches to institute these legal proceedings. Instead the ANC has been sued. I therefore hold that the applicants have no right to sue for and on behalf of the branches of the ANC. In coming to that decision the learned Judge no doubt had in mind the matter of Nasionale Party in die Oos Kaap en n Ander v Port Elizabeth Oorgangsraad en Andere 1998 (2) BCLR 141 (SE). In that matter the first applicant, a minority party represented in first respondent, a local authority, and second applicant, the caucus of first applicant, sought an order declaring that first respondent s decision as to the manner of election of an executive committee be set aside. A challenge was launched by the respondents regarding applicants locus standi. That challenge, in respect of first applicant s locus standi was dismissed. With regard to second applicant, however, Ludorf J stated that it was clear that it had no legal personality and accordingly had no locus standi in the matter. It had no constitution of its own and was purely a structure within first applicant intended to ensure internal

6 6 discipline. At 144 E F the learned Judge stated as follows in this regard: Wat die locus standi van die tweede applikant betref sien die saak daar anders uit. Die tweede applikant mag nou wel n vereeniging wees maar hy het geen konstitusie nie en sy doelstellings is slegs na binne gerig om na sake soos byvoorbeeld interne dissipline binne die eerste applikant om te sien. Die tweede applikant het wel n reglement maar dit is na my oordeel geen konstitusie nie. Gevolglik meen ek dat die tweede applikant nie regspersoonlikheid het nie en dus ook nie locus standi nie. Reël 14 van die Hooggeregshofreëls kan nie daardie leemte aanvul nie. Die reël is niks meer as n prosesregtelike hulpmiddel wat die regsproses vereenvoudig in gevalle waar daar wel regspersoonlikheid bestaan nie (sien Bantu Callies (supra) [1978 (4) SA 486 (T)] op bladsy 489A). In the circumstances respondents submissions that applicants have no authority to bring this application in their respective capacities must be upheld on this basis as well. Applicants do, however, clearly have the requisite locus standi to seek relief in their personal capacities. Such relief, however, can in my view, only relate to those proceedings pertaining to their own branch which they wish to impugn. In the event that I might be wrong in the conclusion which I have reached above with regard to the locus standi of the applicants I deal hereunder with the issues relating to urgency and service. URGENCY This matter concerns the ANC s list of candidates for the Buffalo City region. The problems giving rise to the application spring ostensibly from the upgrading of Buffalo City to Metropole status with the result that the Buffalo City region became a separate region to that of the Amathole region under which Buffalo City previously fell. By virtue of the upgrading the first

7 7 respondent had to realign its branches in order for them to correspond with the geographical boundaries of the Buffalo City Metropole. The newly aligned region was required to have its own regional executive committee. Because demarcation of the Buffalo City Municipal region occurred before an elective conference of the Amathole region could be held it was necessary to establish an interim regional committee for the Buffalo City region. During August 2010 the first respondent duly issued a document headed Guidelines for the realignment of Structures. With regard to the interim regional committees the document provided, inter alia, that a new structure which is representative of the current core leadership serving in the affected area should be established to run elections and affairs of the ANC. It is common cause that in terms of the guidelines six members of the Amathole region who resided in Buffalo City were to become the so-called core of the interim regional committee. Amongst the six members was one Joe Sotshana, the secretary of the Amathole region. According to applicants the second respondent regrettably appointed other individuals from the Buffalo City sub-region who are not erstwhile members of the Amathole committee and accordingly were not the core of the erstwhile leadership in the affected area. Applicants aver further that most surprisingly, even the said Joe Sotshana was overlooked by the second respondent and was not appointed as secretary of the interim regional committee for the Buffalo City region. In this regard, however, the respondents take issue with applicants averments and allege that each of the six members was in fact requested to become a core member but that five of them, including Sotshana, declined to accept appointment because of their view that the Amathole regional branch should preside over both the Buffalo City branch and the remaining portion of the Amathole regional branch, something which was not acceptable to second respondent. Having regard to the Plascon-Evans rule, supra, the respondents allegations in this regard have to be accepted.

8 8 It is common cause that on 8 October 2010 the aforementioned Sotshana addressed a letter (Annexure J) to Mr. Mantashe, the secretary general of the ANC, requesting that his office intervene in the ANC regional re-alignment process in the Amathole/Buffalo City region. In particular, Sotshana stated therein as follows: Based on the above factors, comrade secretary general, the REC would wish to bring it to your attention the following: 1. The re-alignment guidelines indicate that members of the current Amathole REC must serve as the core of the new IRC s. 2. Amathole REC members residing within Buffalo City are completely distancing themselves and will not participate in the unconstitutional IRC established by comrade Qhoboshiyane. 3. REC members residing in the remaining Amathole region will not be part of a PEC (Provincial Executive Committee) imposed leadership arrangement All parallel structures illegitimately imposed or created by the ANC PEC would not be recognised. Following upon this letter a delegation visited Luthuli House on 11 October 2010 in order to present the case on behalf of the Executive members of the Amathole region. In turn, Mr. Mantashe sent a delegation to Bhisho to address the problem. In the interim, according to applicants, the incorrectly and unlawfully constituted IRC continued to allow and to supervise branch general meetings at which candidates were nominated and lists were finalised. Applicants aver that this resulted in their being unlawfully excluded from the lists of candidates which were to be put forward at certain lists conferences to be held in due course. Thereafter, on 17 January 2011, Mr. Mantashe addressed a letter (Annexure B) to the Provincial Secretary of the ANC stating, inter alia:

9 9 Buffalo City regional IRC The regional secretary of the former Amathole region was confirmed as such by former acting provincial secretary, Pemmy Majodina. He is therefore a legitimate regional secretary and should be confirmed as such in the Buffalo City IRC. With these corrections the IRC as set up by the PEC are accepted as legitimate. Sotshana then agreed to take up his position as secretary. A regional general council meeting was then held on 13 February 2011, the purpose thereof being to deal with the letter from Mr. Mantashe, to inaugurate the IRC members, and to endorse Sotshana as the secretary of the Buffalo City interim regional committee. This meeting led in turn to the first meeting of the reconstituted interim regional committee including Sotshana and the other erstwhile members of the Amathole region as core members. With regard to this meeting applicants state that somewhat to the amazement of all the provincial secretary advised that any business that had been concluded before 15 February was not to be challenged. Applicants aver that those present were most upset by this directive because none of the legitimate core members had had the opportunity to do what they had been democratically mandated to do and because the directive was unfair to the branch memberships as a whole as they had been precluded from participating in a full, open and proper manner. With regard to these allegations respondents point out that none of the delegates present at the meeting had then or since challenged what had been said by the provincial secretary. I should mention that applicants raised further issues concerning certain alleged irregularities with regard to the holding of the lists conference during March 2011 and the alleged irregular approval of the lists in question. These latter allegations are denied by respondents and it is not possible, in my view,

10 10 to determine this dispute on the papers. Be that as it may, it is clear, in my view, from the papers that the gravamen of applicants complaint relates to the above directive of the provincial secretary. Indeed, Mr. Cole confirmed that this was so. Applicants aver that the legitimisation of the interim regional committee on 15 February 2011 could never remedy their situation because, at that stage, the branch general meetings had already concluded the process of nominating prospective candidates for the local government elections and their names had been omitted therefrom. In this regard first applicant states as follows: Notwithstanding all the irregularities, the list conference took place on the 7 th March 2011 in East London. I state that, whatever the outcome of the meeting of the 7 th March 2011 and whatever lists may or may not be generated, such lists are tainted by irregularity, have been improperly obtained and have their genesis in unauthorised meetings by unauthorised bodies, in the absence of the real and legitimate secretary who should have called the meetings in the first place. I state that the membership of the Esther Canham branch had been precluded from full and proper participation from the compilation of the list, and relevant names have not had the opportunity of being considered or put forward as candidates for local government elections by virtue of the events that have been set out above. It is clear in the circumstances that applicants cause for complaint, whatever its merits might be, arose on the 15 February 2011 when the provincial secretary stated that no action which had been taken prior to that date could be challenged. Applicants fully appreciated this. In these circumstances applicants should, in my view, have further appreciated that their application had to be instituted without delay given the drastic consequences which would flow from the setting aside of the List of Candidates. Had they launched the application without delay and had it been successful there would then have been time for the respondents to have

11 11 taken the necessary steps to remedy the situation and to have produced lists untainted by any irregularity in order for such lists to be filed timeously with the Independent Electoral Commission on or before 25 March 2011, such date being the final date for the filing of such lists. Instead, applicants delayed, only serving the application on certain of the respondents on 14 March 2011 and setting the application down for hearing on 24 March 2011, one day before the deadline. Their dilatory conduct necessitated a drastic deviation from the provisions of rule 6(5). Because of this delay, success in the application would inevitably carry with it the consequence that the list could not timeously be rectified and that the ANC would therefore be precluded from filing any list for the Buffalo City region with the Independent Electoral Commission. The local government election would accordingly proceed without the participation of any ANC candidates in the Buffalo City region. Not only would the respondents thereby suffer great prejudice but a large percentage of the electorate in the region would also thereby be deprived of the opportunity of voting for the party of their choice. In these circumstances considerations of public policy must come strongly to the fore and militate against condonation of the noncompliance by applicants with the provisions of Rule 6(5). As to urgency see, inter alia, Mangala v Mangala 1967 (2) SA 415 (E) at 416A D; Luna Meubel Vervaardigers v Makin and Another 1977 (4) SA 135 (W) at 137F G; Sweitzer Reineke Vleis Mkpy (Emds) Bpk v Die Minister van Landbou en Andere 1971 PH.F23 (T) at 23 and the unreported decision of Kroon J in Caledon Street Restaurant CC v D aviera, South Eastern Cape Local Division, case no 2656/97: [1998] JOL1832 (SE). I was accordingly of the view that although the matter had been urgent and that although some deviation from the provisions of the rules would have been justified had the application been timeously instituted, the applicants, by their own delay, created the extreme urgency which existed on 24 March They must bear the consequences.

12 12 SERVICE There was no personal service upon any of the remaining respondents. In this regard applicants attorney, Mr. Moodley, filed an affidavit of service. He states that service in respect of the remaining respondents was effected by way of publication of a slightly abridged notice of motion in the Daily Dispatch in both English and Xhosa on the 15 March A further abridged notice was aired on Algoa FM on the 17 March 2011 at 07h53 and 17h50. Rule 4(2) of the Uniform Rules of Court provides that where it is not possible to effect service in any manner set out in Rule 4(1) the Court may, upon the application of the person wishing to cause service to be effected, give directions in regard thereto. Clearly in the circumstances of this matter the applicants should have approached the Court for leave to effect service by means of substituted service whereupon this Court would have given such directions. In the absence of such application for leave to effect substituted service having been made applicants now seek condonation in this regard. In the ordinary course, service, in order to be valid, must be in accordance with an order of Court. Obviously this Court may condone such irregular service on good cause shown. See Hessel s Cash and Carry v South African Commercial Catering and Allied Workers Union and Others 1992 (4) SA 593 (E). In Steinberg v Cosmopolitan National Bank of Chicago 1973 (3) SA 885 (RA) MacDonald ACJ stated at 892 C that [i]t is a corner-stone of our legal system that a person is entitled to notice of legal proceedings instituted against him. Having found in that matter that judgment had been entered against the appellant without notice to him the learned Judge stated, at 892D, that it followed, of necessity, that the proceedings were contrary to natural justice. This is obviously not to say that there may not be matters of such urgency that

13 13 notice to a respondent may not be dispensed with. It is necessary therefore to have regard to the nature of the service upon which the applicants rely. Applicants state that by virtue of the number of candidates involved and the limited time available it is practically impossible for the candidates to be identified and for copies of the papers to be served on them individually. According to applicants these candidates are cited merely as interested parties and no relief is sought against them they are notified of this application for information purposes only. I interpose to state that the fact that limited time was available was due to applicants dilatory conduct as set out above. The adequacy or otherwise of the service effected by them must be considered in the context of what I have said above with regard to the urgency of the matter. The statement that no relief is sought against the candidates is disingenuous. The effect of the relief sought by applicants, if granted, would be to disqualify the remaining respondents as candidates for the elections. In my view they clearly had a direct and substantial interest in the subject matter of the application in the sense of a legal interest which would be affected prejudicially should the application succeed. The notice in the Daily Dispatch newspaper was published on page 15 thereof in the classified section under a column headed Legal Notices. In my view, in the circumstances of this matter, steps should have been taken to afford the advertisement greater prominence in order to ensure that it came to the attention of the remaining respondents. An advertisement in a newspaper, in compliance with an order authorising substituted service, is often published more in hope than in the expectation that it will in fact come to the attention of the respondent, the belief being that the respondent is somewhere within the Republic. In the present case, however, the applicants were aware that all the remaining respondents were in fact within the area of Buffalo City and

14 14 would in all probability read the news section of the Daily Dispatch. The two advertisements are also deficient in certain respects. The notice in the Daily Dispatch does not set out in the heading thereof the members of the ANC to whom it is addressed and who would be affected by the application. It refers merely to the list of candidates marked annexure A to the Notice of Motion without the names of those candidates being published. Furthermore, it states that if any candidate wished to oppose he/she was required to notify applicants attorney on or before 16h00 on Monday 14 March The advertisement itself, however, was only published on Tuesday 15 March The broadcast on Algoa FM was made on 17 March 2011, some three days after the remaining respondents were required to deliver their notice of opposition, if any. That advertisement did not specify any address in terms of the Rules of Court to which the remaining respondents were to deliver their notice of opposition or opposing affidavits, if so advised. In my view, in the light of the above, there is no indication or guarantee that this application did come to the attention of the remaining respondents. Mr. Cole submitted, however, that the remaining respondents could not but have been aware of the application, in view of the publicity afforded to it in the local press. Mere knowledge of the issue of summons, however, does not constitute service and cannot relieve a plaintiff of his or her obligations to follow the prescribed rules. See First National Bank of SA Ltd v Ganyesa Bottlestore (Pty) Ltd; First National Bank of SA Ltd v Schweizer Drankwinkel (Pty) Ltd 1998 (4) SA 565 (NC) at 568B C. See too generally Erasmus; Superior Court Practice at B1 20. Mr. Cole submitted further, however, that the applicants were not in possession of any contact numbers for the remaining respondents and that the procedure adopted by applicants in respect of service was, in effect, the only method available to them.

15 15 If applicants were unaware of the contact numbers of the remaining respondents they were not entirely remediless. The first to fourth respondents would obviously have been in possession of the necessary information. Applicants could have requested first to fourth respondents as a matter of urgency to furnish the addresses and contact numbers of the remaining respondents and, in my view, on the authority of Stuart v Ismail 1942 AD 327 they would have been obliged to do so. In Stuart v Ismail supra the secretary of a trade union refused to disclose to the applicant the names and addresses of members of the executive committee of the union for the purposes of an action which the applicant intended instituting against the secretary and committee of the union. At 331 Centlivres JA stated: There are a number of cases where superior Courts in South Africa have ordered the disclosures of names for the purpose of bringing an action. The practice is so well established that it is too late to question it now. At 332 the learned Judge continued as follows: [T]he principle underlying the procedure sanctioned by the Courts in these cases is that the Courts have, as stated in the passage quoted above, very large powers of ordering a disclosure of facts where justice would be defeated without such a disclosure. In Ex parte Matshini and Others 1986 (3) SA 605 (E) Kannemeyer J, after referring to a number of authorities, stated at 610J that in Stuart v Ismail supra the Appellate Division had relied on the Court s inherent power ex debito justitiae to prevent a denial of justice because of a procedural difficulty facing the applicant. The learned Judge referred further with approval at 610B E to Colonial Government v WH Tatham (1902) 23 NLR 153 where it was stated that before granting an order against a respondent compelling the disclosure of names in such circumstances, the Court must be satisfied that the applicant believes that he has a bona fide claim against some person or persons whose name

16 16 he seeks to discover, and whose name can be supplied by the respondent, and that he has no other remedy. Had applicants requests for such information been refused by the respondents I have no doubt that this Court would have ordered its disclosure. Mr. Cole submitted further that in any event the remaining respondents were not prejudiced by any deficiencies which existed in the service upon them inasmuch as their interests coincided with those of the ANC which, as an organisation, represented them. In my view this contention cannot be upheld. It is quite clear that, had they not been joined, a plea of non-joinder would have been upheld. Mr. Cole conceded as much. To join parties as respondents but thereafter not to effect service upon them because their interests coincided with the interests of other respondents would be an exercise in empty formalism. A similar argument was dismissed in Xhungu and Others v Independent Electoral Commission and Others unreported Eastern Cape, Mthatha, case no 1903/2010 delivered on 24 August 2010 where Griffiths J stated that there were a plethora of reasons as to why these persons ought to be joined in a matter of this nature as their interests and the interests of the public at large are at stake in an election of this nature. I respectfully agree. In all the circumstances I was not prepared to grant the applicants the condonation sought by them in paragraph 2 of the Notice of Motion. CONCLUSION It was for the above reasons that I dismissed the application with costs. J.D. PICKERING JUDGE OF THE HIGH COURT

17 17 Appearing for Applicants: Adv. S. Cole Instructed by Neville Borman and Botha: Mr. Powers Appearing for Defendants: Adv. R. Quinn and Adv. M. Beard Instructed by Dullabh Attorneys: Mr. Wolmarans