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                    NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

EAST LONDON CIRCUIT LOCAL DIVISION

CASE NO: EL 1173/2017

                   ECD 2673/2017

In the matter between

NOMAWETHU MGABADELI & 4 OTHERS                                          Applicant

and

PUMULO MASUALLE & 38 OTHERS                                                 Respondent

JUDGMENT IN RESPECT OF

URGENT APPLICATON FOR INTERIM RELIEF

HARTLE J

1. The applicants approached this court on the night of 30 September 2017 with a certificate of urgency and pro-forma papers for the launch of an urgent application in which they proposed seeking interim relief in order to bring a halt to the eighth ANC Eastern Province Conference until certain alleged disputes/grievances and appeals launched by the branches, which the applicants purport to represent in this matter, were fully determined and finalized.

2. Underpinning this relief the applicants complained that the steering committee of the ANC had unlawfully forged ahead with the conference, which had commenced on 29 September 2017, without first “investigating, (or) hearing (their) grievances and appeals”.  They alleged that this conduct was unlawful and unconstitutional and fell to be set aside ultimately on review.[1]

3. The applicants had hoped to secure an interim order on the basis proposed, without giving the respondents notice, but I was not prepared to entertain the matter on an exparte basis.[2]

4. Instead I issued a directive which was forwarded by email to the applicants’ instructing attorney, Mr. Notyesi, at 20h49 on Saturday, in the following terms:

“1. The registrar may issue the proposed application tonight, with the matter to be heard at 8.30 am tomorrow.

2.      Proper notice must be given to the respondents in whatever manner is possible between now and the hearing.

3.      The notice of motion must be amended to comply with the demands of the matter.  In other words it should direct the time periods, relevant to the proposed hearing, within which notices to oppose and opposing papers should be filed.  You should also consider that no relief of a permanent nature can be entertained under these time constraints.  Indicate what limited immediate interim relief is to be sought and separate out the other issues to be dealt with in the normal course.

4.      (Not relevant for present purposes) ...”[3]

5. Since the applicants’ papers had already been prepared and only a minor amendment to the Notice of Motion had been proposed, I expected that the registrar, who was on standby, would promptly issue out the application leaving the respondents at least ten hours or so after service on them at the conference to file their opposing papers, however brief.  Indeed I was informed by her at 21h31 that the applicants’ representative had made contact with her and had indicated that he would there within 10 mins.

6. When the matter served before me on Sunday, 1 October 2017, there was initially no appearance for the respondents, but I was informed by my clerk that Mr. Bodlani (who appeared together with Mr. Mtshabe for the 3^rd, 4^th, 36^th, 38^th and 39^th respondents) was on his way to court to oppose the application.  I also learnt that the registrar, who had placed herself at the disposal of the applicants’ instructing attorney to issue out the application at his prompting had waited throughout the night, to no avail until she was called back at 04h20 finally to open a file and to allocate a case number.

7. It is common cause that the papers were thereafter served on the then Provincial Secretary of the ANC, Mr. Oscar Mabuyane (who apparently accepted service on behalf of all the respondents) between 06h00 – 07h00,[4] rendering nugatory the intimation in the applications’ notice of motion that if they wished to oppose they should deliver such notice by 05h30 and their answering affidavits by 06h00.[5]

8. It is not surprising that Mr. Sakhela, standing in for Mr. Bodlani who was enroute to East London at that stage, requested time to obtain instructions and to prepare an affidavit.  As a result I stood the matter down until 14h00.

9. When the matter was argued before me at this time the applicants’ instructing attorney, Mr. Notyesi put up an affidavit dealing with the manner of service.   He explained that the sheriff was unavailable and that the police had refused to assist, resulting in him personally serving the papers on Mr. Mabuyane.  His evidence was not challenged in this regard and I accept that this delay, between the hours of 04h30 and 07h00, was beyond the control of the applicants.

10. What is not accounted for, however, are the hours between the emailing of my directive to Mr. Notyesi and the issue of the application in the early hours of the morning.  Mr. Mneno, who appeared for the applicants, tried to persuade me from the bar that there had been some incident on the road from Mthatha which played a role in the time lost, but this was not explained in any detail so that these circumstances could be fully appreciated or the motives of the applicants assessed, neither did they seek condonation for their failure to comply with my directive or apply for an order for any further extension of time to enable them to meet the supposed exigencies of the matter, leading to the ineluctable conclusion that they had hoped to frustrate the rights of the respondents to receive reasonable notice of the application.[6]

11. They applicants appear to have missed the plain objective of my directive, which was to ensure that, notwithstanding the very tight time constraints, the respondents should not be taken by surprise and at least have an opportunity to prepare a brief response.  If their failure to issue out the application promptly was not deliberate, they acquiesced in my view in losing the supposed urgency of the matter.

12. Counsel for the respondents contended that this lackadaisical approach was fatal to the application on the issue of urgency.  I am inclined to agree.  Against the applicants’ assertion that the matter was one of “extreme urgency”, I find it unacceptable that, upon being given leave to forthwith issue out the application on Saturday night, they then dallied while the very conference which they had hoped to interdict continued.

13. As it turned out, after I issued the directive, the business of the conference continued through the night and had, according to the brief answering affidavit of Mr. Mabuyane, concluded by the time the matter was argued before me.  Not unexpectedly counsel for the respondents submitted that apart from the short notice and the drastic abridgment of the rules, this rendered the interim relief sought by the applicants academic.

14. Mr. Mneno unconvincingly sought to persuade me to the contrary that the conference was in fact still underway at the time of the hearing (on the simple basis that it was scheduled to carry on until the end of the day on 1 October 2017) and that the relief sought was in that sense still competent, but I cannot ignore the respondents’ allegations in this regard.   Indeed not only did the respondents clarify that the business of the conference (which was the harm in essence the applicants sought to interdict from happening before their grievance and appeals were dealt with), but added that the elections had culminated in certain decisions being taken which significantly altered the premise of the applicants’ case resulting, for example, in a change of personnel in the portfolios of the PEC of the ANC in the province so that those cited in certain specified capacities no longer hold such positions.  Without determining the impact those decisions pose to the applicants case,  I agree with the respondents that these changes signify the stage to which the conference sought to be interdicted progressed and advanced by the time the matter was argued before me.  The fact that the conference was still extant when I issued my directive, despite it being over when the matter was argued before me at 14h00 on 1 October 2017, is not an argument that redounds to the applicants’ benefit either.  This is because they missed the opportunity to enroll the matter in accordance with my directive allowing for the abridgment of the rules concerning form and service under the peculiar circumstances.

 

15. In the result, the application was not properly enrolled and falls to be struck out, it being trite law that where a court finds a lack of urgency, this is the appropriate order to be granted.[7]

16. Of course that is not to say that the applicants have lost the right to challenge the legality of the conference in due course by virtue of the fact that the formalities have brought the conference to an end, but self-evidently the entire premise upon which the remedy of an interim interdict rested has fallen away.  Mr. Mneno appeared reluctant to concede that a review was possibly the only way forward for the applicants now, assuming for present purposes that there is merit in their allegations that they were denied the right to have their appeal and grievances dealt with and that certain delegates were not accredited etc.

17. As an aside although the respondents reserved their rights to deal with the merits of the purported case against them under different circumstances not driven by urgency, they in broad terms deny that the applicants’ appeals presented during the conference were not heard fairly or that they were not given an opportunity to present their cases.  They claim that each grievance was examined and a finding made per case presented.  So too they deny that any of the delegates attending the conference were not properly accredited members in good standing of the ANC.  They plead that the conference proceeded because all the constitutional requirements for a valid conference were met.

18. It is unnecessary for me to decide the merits of the application because of the view taken above that a case for present urgency is not made out.  It is evident however in any event that a clear dispute of fact exists between the parties concerning the applicants’ supposed complaints of material irregularities warranting the discontinuation of the conference on the applicants’ version.  This goes to the heart of whether the applicants’ accepted rights of participation in the conference were infringed under the circumstances.[8]  In this regard and taking into account the test to establish the prima facie right where there are conflicting versions on this issue referred to in Webster v Mitchell[9] and clarified in Gool v Minister of Justice & Another,[10] the version put forward by the respondents that there was no breach of the applicants rights as alleged by them (not controverted at all by the applicants)[11] cannot be simply dismissed as offering up a “mere contradiction” or an “unconvincing explanation”.  On the contrary serious doubt is thrown on the applicants’ purported protectable interest it seeks to assert in the present application.

19. In the result, and for the reasons already indicated, the application falls to be struck off the roll, given that it was not properly enrolled before me and the respondents’ rights compromised by the applicant’s failure to adhere to my directive giving recognition to their right to be properly heard under the relevant and very pressed circumstances.  The costs must follow that result.

20. I am mindful that the applicants may wish to still pursue a review.   Since they have gone to the trouble to set out the basis for it in the present application, I am inclined to allow them to make out their case on these papers, suitably amended, should they wish to avoid a duplication of costs by later issuing out a fresh application.  The order I intend to make accordingly takes account of this contingency.

21. I issue the following order:

1.     The urgent application for interim relief is struck from the roll.

2.     The applicants are to pay the respondents costs, such costs to include the costs of two counsel.

3.     The applicants are granted leave to use the same papers, suitably amended, to pursue an application for review, if so advised.

_________________

B   HARTLE

JUDGE OF THE HIGH COURT

 

DATE OF HEARING   :        1 October 2017

DATE OF JUDGMENT:       2 October 2017

Appearances:

                                   

For the applicants: Mr. Mneno instructed by Mvuzo Notyesi Inc. c/o L L Singqumba & Associates, East London, Ref. Mr Notyesi.

 

For the respondents:  Messrs Mtshabe & Bodlani instructed by Dayimani Sakhela Inc., East London, Ref. Mr Sahkela.

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