IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GRAHAMSTOWN 		
	
    Case no : 840/2011
    Date Heard:11/04/2011
  Date Delivered:21/04/11
							
In the matter between:

FUMANEKILE PHUMAPHI				      1ST APPLICANT 

MEKETSI MAGWA 					     2ND APPLICANT 

JOHNSON JONATHAN THAMSANQA MDULI      3RD APPLICANT 

LUNGILE MAHLUTHANA 				      4TH APPLICANT 

NOMABHASO GLORIA NDAKI			      5TH APPLICANT 

THANDIWE MAHLANYANA 				      6TH APPLICANT 

Versus

THE AFRICAN NATIONAL CONGRESS    	  1ST RESPONDENT

THE PROVINCIAL EXECUTIVE COMMITTEE    2nd RESPONDENT
OF THE AFRICAN NATIONAL CONGRESS,
EASTERN CAPE     

THE INTERIM REGIONAL COMMITTEE           3RD RESPONDENT
OF THE AFRICAN NATIONAL CONGRESS 
EASTERN CAPE

INDEPENDENT ELECTORAL COMMISSION 	  4TH RESPONDENT 

THE LIST OF CANDIDATES IN 	  
ACCORDANCE WITH ANNEXURE “A”              5TH TO FURTHER  
TO THE NOTICE OF MOTION 		               RESPONDENTS 

JUDGMENT

SMITH J:

Introduction

 [1]	The applicants launched urgent proceedings against the respondents for an order, inter alia, declaring null and void several candidate lists for the forthcoming local government elections which the African National Congress (the first respondent) submitted to the Independent Electoral Commission (the fourth respondent) in respect of various municipalities in the Amathole region. They also seek an order declaring the appointment of an Interim Regional Executive Committee for the aforesaid region by the first respondent to be null and void. 

[2]   In Part A of their Notice of Motion, which relates to the urgent interim relief, they seek an order prohibiting the fourth respondent from certifying and/or releasing to the public the impugned candidate lists in respect of the affected municipalities in the Ngqushwa, Nxuba, Mbashe, Amahlathi, Nkonkobe, Mnquma and Greater Kei sub-regions, and prohibiting the first, second and third respondents from taking any steps aimed at representing to the public that the persons whose names appear on the said lists are their legitimate candidates in the upcoming local government elections. They also seek an order postponing the voting day in respect of the aforesaid affected municipalities "if necessary".

[3]	In Part B of the Notice of Motion they seek an order declaring the appointment of the Interim Regional Executive for the Amathole region of the first respondent, as well as the impugned lists of candidates for the local government elections to be held on 18 May 2011, to be null and void. They also seek an order declaring that the elections in the affected municipalities would under these circumstances not be free and fair or constitutional. 

[4]	The Notice of Motion further required the applicants, if they wished to oppose the matter, to notify the respondents' attorneys in writing on or before 16H00 on Friday 8, April 2011 and to file answering affidavits, if any, on or before 10 April 2011. 

[5]	The applicants aver that they are all paid up members of the first respondent and in good standing. They allege that they brought the proceedings in their personal capacities as well as their representative capacities on behalf of those members who belong to the respective branches which fall under the various sub-regions that they represent. They allege further that they are all office bearers of the various sub-regions in the Amathole Region.

[6]	The matter has been opposed by the first, second and third respondents and several points in limine were taken on their behalf by Mr Quinn SC, assisted by Ms Beard. These are: 

(a)	That the urgency inherent in the application was self created and that the applicants were dilatory in launching legal proceedings;

(b)	That the applicants and the sub-regions they purport to represent lack the necessary locus standi and authority to launch the proceedings; 

(c)	That this court does not have jurisdiction to hear the matter. In terms of the provisions of the Local Government Electoral Act, no 27 of 2000 the proper court possessing jurisdiction to grant the relief sought by the applicants is the Electoral Court established in terms of s. 32 of the Independent Electoral Commission Act, 150 of 1993.

(d)	That there has not been proper service on all the respondents and interested parties and that the applicants have failed to join other persons and/or institutions that has a direct and substantial interest in the relief being sought.

I am at this stage only required to decide these points in limine. 

URGENCY
[7]	It is necessary to mention that the applicants previously brought another application on substantially the same facts. Mr Mpofu, who appeared for the applicants, has conceded that the application papers evinced a significant amount of "cutting and pasting". This much is evident from the fact that the certificate of urgency, which was filed belatedly, is virtually verbatim to the one filed in the previous application. In fact there have only been a few amendments and additions in order to render it relevant and applicable to this application. 

[8]	The procedural difficulties facing the applicants in this matter are numerous and, in my view, insurmountable. From the outset they have failed to comply with the Rules of Practise of this division relating to the set down of urgent applications. In terms of Practise Rule 12 the applicants were required to file their certificate of urgency and present that to the duty judge for further directions regarding the hearing of the matter. The purpose of this rule is twofold. Firstly it compels counsel to focus his or her mind on the issue of the extent to which the circumstances justify departure from the rules relating to time periods and service of processes, and secondly it enables the duty judge to determine an appropriate time and date for the hearing of the matter. It is difficult to conceive of circumstances which would render a matter so urgent that this procedural step could not be complied with. In the event there has not been any attempt by the applicants to justify their failure to comply with this rule.

[9]	The truncation of the time periods prescribed in terms of Rule 6 of the Uniform Rules of Court and the form of service on the fifth and further respondents were similarly drastic. The application papers were served on the first respondent by the sheriff of the High Court, Johannesburg on Friday 8 April 2011 at 15h20 and on the second respondent, namely the Provincial Executive Committee of the African National Congress, at its offices in King William’s Town, on the same day. The service on the third and fourth respondents was also effected on Friday 8 April 2011 at 12h15 and 11h47 respectively. A copy of the papers was also handed to the first, second and third respondents’ attorney, Mr Gordon McCune of attorneys Smith Tabata Inc, at 10h10 on the same day. 

[10]	An abridged copy of the Notice of Motion was published in the Daily Dispatch on Tuesday 12 April 2011. This substituted form of service was intended as notice to the fifth and further respondents, being the persons whose names appear on the impugned candidates’ list. The aforesaid abridged notice was also broadcasted on Radio Algoa at 07h57 and again at 16h53 on Monday the 11th of April. 
[11] 	The respondents' attorney, Mr McCune, filed an affidavit confirming that a copy of the application papers was handed to him at approximately 10h15 am on Friday 8 April 2011, at the offices of the applicants' attorneys in Grahamstown. There was however no certificate of urgency annexed to the papers. 

[12]	On Monday 11 April 2011 Mr McCune addressed a letter to the applicants' attorneys pointing out that the certificate had not been annexed to the papers and requesting them to forward it to him as a mater of urgency. When by later that morning he still had not received a copy of the certificate he addressed a further letter to the applicant’s attorneys pointing this out. The certificate of urgency was eventually only sent to him by way of facsimile later that afternoon. This issue is of some moment because the applicants rely almost entirely on the reasons for urgency stated in that certificate for their contention that the matter was sufficiently urgent to be heard on 12 April 2011. The respondents' attorney was therefore totally oblivious of the grounds of urgency relied upon by the applicants up until the afternoon of 11 April 2011. In effect there had therefore not been proper service of a full copy of the application papers on the respondents or their attorney by the afternoon of 11 April 2011. 

[13]	The notice to the fifth and further respondents was in my view also woefully inadequate. The applicants nowhere provide any factual basis for a belief that the broadcast of the abridged notice of motion on Radio Algoa or the publication thereof in the Daily Dispatch would have come to the fifth and further respondents’ attention. The publication in the Daily Dispatch was in fact on the same day as the hearing of this matter. It is common cause that these respondents, being the candidates whose names appear on the impugned candidate lists, had a direct and substantial interest in the relief sought by the applicants. It was in effect their candidature that was being impugned and the postponement of the election would similarly prejudice them. The applicants were well aware of the importance of notice of the application to the fifth and further respondents as it was their failure to accomplish this on the previous occasion that was stated as the reason for the withdrawal of that application. 

[14]	The drastically truncated time periods imposed by the applicants in their Notice of Motion and the liberties which they have taken with regard to the form and timing of service on the fifth and further respondents have to be viewed against the background of the following facts:

(a)  The Interim Regional Council for the Amathole region of the African National Congress was constituted prior to 8 October 2010. The applicants had lodged an internal appeal against the appointment of that structure and the outcome of this appeal was communicated to them on 17 January 2011; 

(b) The applicant’s attorneys were instructed as early as 5 March 2010 to proceed with an urgent application to set aside the outcome of the regional list conference which was held on 6th and 7th March 2011; 

(c)	The previous application brought by the applicants was withdrawn on 24 March 2011 and the impugned candidate lists were submitted to the fourth respondent on 25 March 2011.

 Mr Quinn has, in my view, therefore correctly submitted that the applicants were in a position to seek an order declaring the appointment of the Interim Regional Committee null and void as early as the 17th of January 2011. The applicants were similarly in a position to challenge the lists of candidates as early as 8 March 2010. Whatever urgency there was is therefore of their own making.

[15]	An applicant seeking condonation for his or her failure to comply with the time periods and services provided for in Rules 6 and 4 of the Uniform Rules of Court is required to aver circumstances which render the matter urgent and justify a claim that substantial redress would not be afforded at a hearing in due course. It is trite that an applicant must also set forth facts which justify the extent of departure from the prescribed time periods and rules relating to the service of processes. In the matter of Caledon Street Resturant CC v Monica D'Averia (unreported decision, South Eastern Cape Local Division, Case no 2656/79) Kroon J commented as follows in this regard:
“In the assessment of the validity of a respondent’s objection to the procedure adopted by the applicant the following principles are applicable. It is incumbent on the applicant to persuade the court that the non-compliance with the rules and the extent thereof were justified on the grounds of urgency. The intent of the rules is that a modification thereof by the applicant is permissible only in the respects and to the extent that it is necessary in the circumstances.” 

[16]	The applicants have dealt with the issue of urgency in a rather curious fashion. The main founding affidavit deposed to by the first applicant states the following under the heading “Urgency”

“The reasons articulated in the certificate of urgency, of which I have had sight, comprehensively explain the circumstances in which this application is rendered urgent. The 25th of March is the date by which the Candidate Lists are to be submitted to the fifth respondent (sic), the IEC.” 

[17]	This statement is a significantly revealing Freudian slip on the part of the applicants. As I have explained earlier, it seems extremely unlikely that a certificate of urgency was in existence at the time that the first applicant deposed to the affidavit. I may mention also that when I was informed that the matter had been set down on an urgent basis I requested my clerk to direct inquiries to the applicant’s attorneys regarding the certificate of urgency which was required in terms of the Joint Rules of Practice. The certificate was eventually only faxed to my chambers on Monday afternoon, 11 April 2011. 

[18]  The certificate of urgency makes for difficult reading and one searches in vain for any factual basis which could justify the extremely urgent basis on which the application was launched. In the event the grounds of urgency which can be gleaned from the certificate and founding papers are the following:
 
(a)	There has been "an instance of an undermining tendency" shown by those that are in leadership of the ANC at Provincial and National levels; 

(b)	There is "spirit of discontentment" which prevails in the respective areas evidenced by the number of applications that serves before the High Courts.

(c)	The discontent in the political arena may have far reaching consequences for the country’s stability, economy and "it cannot be too far-fetched that there may be incidents of violence flaring out of this discontentment"; 

(d)	There had been incidents of violence at the Eastern Cape Provincial Headquarters of the ANC; 

      (e)  These applications have attracted wide media coverage;
 
(f)	The candidates who have been side-lined by the Interim Regional Council on 5 March will suffer untold prejudice if the nomination and endorsements remain as they are; 

(g)	The lists of endorsed candidates were submitted to the fourth Respondent on 25 March 2011 and the final submission of such list was on 8 April 2011. The local government elections date has been set for 18 May 2011.

[19]	The only fact which in my view could, by any stretch of the imagination, have some relevance to the question of urgency is that the elections have been scheduled for 18 May 2011. By the applicant’s own admission the relevant dates for the submission of the lists to the fourth respondent have already come and gone. 

[20]	One also searches in vain for facts justifying the drastically truncated time periods and departure from the rules relating to the service of processes. Mr Mpofu has sought to justify, what he referred to as the "inconvenience" to the applicants, on the basis that this inconvenience was by far outweighed by the threat to the applicant’s fundamental and basic rights which affect the constitutional values of democracy and citizenship entrenched in the Constitution. He submitted that what is at issue in this application is the effective disenfranchisement of the applicants "as well as the broader citizenry in the affected municipalities". The issue of urgency, so he submitted, must be considered in the broader context of these weighty constitutional issues. There is in my view simply no factual or legal basis for this very contrived and ponderous constitutional argument. The issues in this case involve, firstly, the procedural validity of the appointment of one of the ANC's internal structures, namely the Interim Regional Executive Committee, and secondly the validity of lists of candidates submitted by the first respondent to the fourth respondent. As Mr Quinn SC has correctly argued, the applicants aver that candidates of their own choice have been ignored and should have been placed on the impugned lists. It is therefore abundantly clear that the s. 19 Constitutional rights of the applicants and those who allegedly support them, remain intact and they will be free to cast their votes for whatever political party they may wish to vote for on 18 May 2011. There has also not been any interference with their right to stand for public office or to make themselves available as candidates in the upcoming elections. Mr Mpofu’s attempt therefore to justify the absence of factual grounds for the drastic truncation of time periods and departure from rules relating to service by reference to s. 19 Constitutional rights is therefore in my view simply misplaced and without any foundation in law. 

[21]	Pickering J had occasioned to consider similar circumstances in the matter of Dan Bolman and another v The African National Congress and Others (unreported case, Case no 813/2011). That matter was based on substantially the same facts as those on which the applicants’ previous application was founded. The matter was also heard on 24 March 2011, the day on which the applicant’s previous application was withdrawn. 

[22]	In that matter the applicant’s cause for complaint had arisen on 15 February 2011. The applicants however only launched the application on 14 March 2011, setting it down for hearing on 24 March 2011, which was one day before the deadline for the submission of the candidate lists. Pickering J held as follows in this regard: 
“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 2011. They must bear the consequences.”

[23]	The service on those respondents who were cited on the basis of their candidature was in substantially the same form as was the case in this matter. In considering whether or not the form of service on those respondents were justifiable in the circumstances and deserving of condonation, Pickering J held as follows:
“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 obligations to follow the prescribed rules.” 

[24]	It was also suggested by Mr Mpofu that it was incumbent on the first respondent to ensure that the fifth and further respondents be made aware of the application. This in my view is a very lackadaisical and impermissible manner of litigating. The applicants could not, simply because they anticipated procedural and logistical difficulties with service on these respondents, legitimately burden the other respondents with such a cumbersome obligation. Rule 4 of the Uniform Rules of Court prescribes the forms of service and requires court processes to be served by the sheriff in any of the prescribed manners. Where, for whatever reason, it is not possible to effect service in the prescribed manner an applicant may approach a court to give directions regarding any appropriate form of substituted service. Where the whereabouts of respondents are not known an applicant is required to approach court in terms of Rule 5(2). A court will only condone irregular service where compelling reasons have been provided by an applicant who has adopted a form of substituted service without the court's prior sanction. See: Hessel's Cash & Carry v SACCAWU and others 1992 (4) SA 593 (E) at 599F-600B.
No such reasons have been provided by the applicants in this matter.

[25]	In the result I am of the view that the applicants have failed to set out facts which justify the drastic truncation of the time periods provided for in the Rules of Court and have also failed to provide a factual basis for the condonation sought in respect of the liberties taken with regard to the service on the fifth and further respondents.

[26]	In my view therefore the application should be dismissed on this basis alone. 

Jurisdiction
[27]	Mr Quinn has also submitted that this court does not have jurisdiction to entertain the matter by virtue of the provisions of s. 78 of the Local Government: Municipal Electoral Act no 27 of 2000 and that the Electoral Court is the only court with jurisdiction to grant the relief sought by the applicants. This is particularly so, he submitted, because the relief sought by the applicants will effectively result in the invalidation of the fifth and further respondents' candidature and postponement of the elections in the affected areas. He pointed to the fact that the applicants also seek an order declaring that the elections in the affected areas would under the prevailing circumstances not be free and fair. 

[28]	Section 78 reads as follows:
“(1) The Electoral Court has jurisdiction in respect of all electoral disputes and complaints about infringements of the Code, subject to section 20 (4) of the Electoral Commission Act. 

(2) If a court having jurisdiction by virtue of section 20 (4) (b) of the Electoral Commission Act finds that a person or party has contravened a provision of Part 1 of this Chapter, it may in the interest of a free and fair election impose any appropriate penalty or sanction on that person or party.

[29]	In the matter of Mketsu and Others v ANC 2003 (2) SA 1 (SCA) Scott JA stated the following in this regard at 7F: 
“What is clear is that the jurisdiction conferred on the Electoral Court in terms of s. 78(1) was intended to be exclusive, subject to the power of the Electoral Court to determine which courts of law would exercise concurrent or exclusive jurisdiction to hear particular electoral disputes and complaints about infringement of the Code.”

[30]	It is however trite that the ousting of the High Court's jurisdiction will not be lightly inferred. In the event the learned judge's remarks were obiter as the issue which fell for determination in that matter concerned an interpretation of s. 65 of the Local Government Municipal Electoral Act. The Appeal Court found that that section conferred exclusive jurisdiction on the Electoral Court to adjudicate objections concerning any aspect that is material to the declared result of an election. 
[31]	The argument advanced by Mr Quinn to the effect that an interpretation of s. 78 of the Municipal Electoral Act leads to the conclusion that during the period leading up to elections the Electoral Court has exclusive jurisdiction in respect of the issues which would fall for decision in this matter, is in my view not without merit. 

[32]	In the light of my findings regarding the other points in limine I do however not regard it necessary to decide this issue. In the event, as Mr Quinn SC has correctly argued, insofar as the applicants are seeking a declaration which would effectively nullify the fifth and further respondents candidature, postponement of the elections in the affected areas and a declaration that the elections would not be free and fair, they were required to give notice to all other interested parties that would be affected by such order. These would include, but may well not be limited to, other political parties and candidates contesting the elections on 18 May. In my view their failure to ensure that all interested persons were given adequate notice renders the application fatally defective. 

LOCUS STANDI
[33]	The applicants have instituted the proceedings in their personal capacities as members of the first respondent and also as office bearers of the various sub-regional structures of the first respondent. 

[34]	It is common cause that the sub-regional structures are administrative structures which have been formed by the first respondent for organisational purposes and have no legal persona separate from the first respondent. These structures can therefore not have the necessary locus standi to institute proceedings. Even though the applicants would have locus standi in their personal capacities as members of the first respondent, they cannot in their representative capacities purport to act on behalf of the organisational structures which have no legal persona and existence separate from the first respondent. Their locus standi could therefore only entitle them to challenge proceedings in so far as their own branches are concerned. 

[35]	In the Bolman matter (supra) Pickering J, when deciding a similar point, held as follows: 

“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.” 

[36]	There is however a further difficulty facing the fifth and sixth applicants. Both of them have been suspended as members of the first respondent and they would consequently lack the necessary locus standi, even in their personal capacities.

[37]	For these reasons I am of the view that the application must fail on this ground also. 

CLASS ACTION
[38]	The applicants also purport to bring the proceedings on behalf of persons whose names appear on a schedule annexed to their papers and who are members of the various branches of the African National Congress, as a class action in terms of the provisions of s. 38 of the Constitution. 

[39]	Section 38(c) and (d) reads as follows: 
	 
“Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are-
(c)     anyone acting as a member of, or in the interest of, a group or class of persons; 
      		(d)     anyone acting in the public interest; and” 

In the matter of Ferreira V Levin NO and other; Vryenhoek and Other v Powell NO and Others 1996 (1) SA 984 (CC) at para 234 Justice O’Regan stated the following in this regard: 
“This Court will be circumspect in affording applicants standing by way of s 7(4) (b) (v) and will require an applicant to show that he or she is genuinely acting in the public interest. Factors relevant to determining whether a person is genuinely acting in the public interest will include considerations such as: whether there is another reasonable and effective manner in which the challenge can be brought; the nature of the relief sought, and the extent to which it is of general and  prospective application; and the range of persons or groups who may be directly or indirectly affected by any order made by the Court and the opportunity that those persons or groups have had to present evidence and argument to the Court. These factors will need to be considered in the light of the facts and circumstances of each case.”

[40]	I have already held previously that Mr Mpofu’s submission that the conduct of the first, second and third respondent amount to a breach of the applicants' and the persons they represent's s. 19 Constitutional rights is without merit. 

[41]	Mr Quinn has submitted also that s. 19 of the Constitution guarantees the right to participate in the affairs of a political party and to stand for and be elected for public office. It does not permit one to stand for public office as a representative of a particular political party if you have not been nominated to do so by the political party concerned. 

[42]	As I have already stated earlier, the nature of the relief sought by the applicants in this matter, insofar as it pertains to possible postponement of elections in the affected areas and the declaration that the elections in these areas would not be free and fair, would directly and substantially affect the rights of a diverse group of persons and interested parties who are not before the court. 

[43]	The case made out by the applicants in this regard fall short of the requirements set out by Justice O' Regan in the Ferreira v Levin matter (supra). For these reasons I am of the view that the applicants have failed to set forth facts which would entitle them to bring a class action on behalf of the persons listed in the schedule to their founding papers. 

AUTHORITY OF LUBABALO OSCAR MBUNYANA 
[44]	Mr Mpofu submitted that Mbuyana did not show that he had authority to act on behalf of the first, second and third respondents and that his answering affidavit should therefore be regarded as pro non scripto. 

[45]	Mbuyana deposed to the main answering affidavit on behalf of the first, second and third respondents and stated that he had been duly authorised by the said respondents to make the affidavit and to oppose the relief sought by the applicants. Mr Mpofu has submitted that “the naked claim” that he is duly authorised to act without annexing a resolution or mandate is not sufficient proof of his authority to do so. In my view there is no merit on this submission. Mbuyana is the provincial secretary for the Eastern Cape of the African Nation Congress, who is the second respondent in this matter. He is the person therefore who would ordinarily be representing the second respondent in court proceedings. It would in my view only have been incumbent on Mbuyana to produce a resolution authorising him to act on behalf of the respondents if there had been a serious challenge to his authority other than a mere bold allegation that he has no such authority. See in this regard Nahrungsmittel Gmbh v Otto 1991 (4) SA 414 (C). There has in my view not been any substantive challenge to his authority.

COSTS
[46]	Mr Quinn has asked for costs of two counsel to be allowed. He submitted that in the light of the importance of the matter, the workload and the complicated legal issues involved, it was a sensible and prudent precaution for the respondents to employ two counsel. I agree. 

[47]	Mr Quinn has also argued that the court should award costs on an attorney and client basis against all of the applicants. He submitted that the application is procedurally flawed and that at least certain of the relief sought in the first part of the Notice of Motion had been overtaken by events. He submitted further that the 
fact that the applicants had previously instituted proceedings on substantially the same factual basis should not be viewed as mitigation but rather a further indication that these proceedings were aimed at harassing the respondents and frustrating their preparations for the forthcoming elections.

[48]	It is trite law that an order for costs on an attorney and client scale is a punitive one and should be awarded in exceptional circumstances only. See in the regard Sentrachem Ltd v Prinsloo 1997 (2) SA 1 (A).  In the matter of Nel v Waterberg Landbouwers Ko-Operatieve Vereeniging 1946 AD 597 Tindall JA said the following in this regard at 607:
“The true explanation of awards of attorney and client cost not expressly authorised by Statute seems to be that, by reason of special considerations arising either from the circumstances which give rise to the action or from the conduct of the losing party, the court in a particular case considers it just, by means of such an order, to ensure more effectually than it can do by means of a judgment for party and party costs that the successful party will not be out of pocket in respect of the expenses caused to him by the litigation.” 

[49]	I am of the view that the conduct of the applicants in this matter is, for the reasons which I have stated previously, indeed deserving of a punitive costs order. Not only have the applicants shown scant regard for the court rules but also did not bother to set forth facts which justify their departure therefrom. The fifth and sixth applicants have disingenuously failed to disclose that their membership of the first respondent had been suspended.  In my view the applicants have abused the court processes and in the result I am satisfied that it is appropriate for costs to be ordered on an attorney and client scale. 
[50]	In the result I make the following order: 
(a) 	The application is dismissed with costs, such costs to be on the attorney and client scale and shall include costs attendant upon the employment of two counsel by the first, second and third respondents. 	

_______________________
J. E SMITH 
JUDGE OF THE HIGH COURT
Appearances 
Counsel for the Applicants 		:	Advocate Mpofu 
Attorney for the Applicants		:	Neville Borman & Botha
							22 Hill Street 
							GRAHAMSTOWN 
							6140
							Ref: Mr J Powers

Counsel for the Respondents		: 	Advocate Quinn, SC 
							Advocate Beard 
							Dullabh Attorneys 
							GRAHAMSTOWN
							6140 

Date of Hearing 			 	:	11 April 2011
Date of Delivery 				: 	21 April 2011