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IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION. BLOEMFONTEIN

Case number:   2555/2016

In the matter between:

TUMELO JOHN MOKOENA                                                                              1^st Applicant

SIZWE HLUBI                                                                                                   2^nd Applicant

TSEKJSO VICTOR TSIBELA                                                                            3^rd Applicant

TLALENG MOLOI                                                                                              4^th Applicant

MOTLOUNG LEKHETHO                                                                                  5^th Applicant

MARIA MBONAMBI                                                                                           6^th Applicant

PULANE MOLELEKI                                                                                         7^th Applicant

NTEBOHELENG MOOROSI                                                                              8^th Applicant

SOLOMON DLAMINI                                                                                         9^th Applicant

MOMATHI NGOZO                                                                                          10^th Applicant

LEBEKO JACOB MONARE                                                                            11^th Applicant

LEBEKO MAILE                                                                                              12^th Applicant

KINGSLEY LEMPE                                                                                         13^th Applicant

TEBOGOBOZO                                                                                                14^th Applicant

MATOBO KEELE                                                                                             15^th Applicant

PINKY CUZE                                                                                                    16^th Applicant

TSHOKOLO MANJIES                                                                                    17^th Applicant

MOTSHWANE KOBUS KOLOBE                                                                    18^th Applicant

DAVID SHASHA                                                                                              19^th Applicant

BOSALETSE PHEPHENG                                                                              20^th Applicant

SOPHIA HADINKAME RAMAKAE                                                                 21^st Applicant

RAMASIMONG DANIEL TAU                                                                        22^nd Applicant

LANKIRI DANIEL BOLOFO                                                                            23^rd Applicant

DITSEKE ABRAM MOEKETSI                                                                       24^th Applicant

BUSISIWE MBOKOTWANE                                                                            25^th Applicant

SILAS SEJAKE TAU                                                                                       26^th Applicant

and

ELIAS MAGASHULE                                                                                    1^st Respondent

THABO MANYONI                                                                                       2^nd Respondent

WILLIAM BULWANA                                                                                    3^rd Respondent

MAMIKI QABATHE                                                                                       4^th Respondent

MOSEBENZI ZWANE                                                                                   5^th Respondent

MAGGYSOTYU                                                                                              6^th Respondent

NOZILILO MASHIYA                                                                                     7^th Respondent

MALEWATLE NTHEDI                                                                                   8^th Respondent

DISEBO NAKEDI                                                                                          9^th Respondent

JOEY MOCHELA                                                                                        10^th Respondent

MANANA TLAKE                                                                                        11^th Respondent

MANANA SECHOARO                                                                                12^th Respondent

OLLY MLAMLELI                                                                                        13^th Respondent

SARAH MOLELEKI                                                                                    14^th Respondent

MATHABO LEETO                                                                                     15^th Respondent

CONNY RAMPAI                                                                                          16^th Respondent

LUCYMAPENA                                                                                            17^th Respondent

MAUREENSCHEEPERS                                                                             18^th Respondent

MONTSHENG TSIU                                                                                   19^th Respondent

PHINDIWE MASEKO                                                                                  20^th Respondent

TATE MAKGOE                                                                                          21^st Respondent

THANDIWE REACHABLE                                                                        22^nd Respondent

BUTANA KOMPHELA                                                                                23^rd Respondent

MADALA NTOMBELA                                                                               24^th Respondent

SEBENZILE NGANGELIZWE                                                                    25^th Respondent

JONAS RAMOKHOASE                                                                             26^th Respondent

JACK MATUTLE                                                                                         27^th Respondent

CHARLES STOFILE                                                                                   28^th Respondent

NEELS VAN ROOYEN                                                                                29^th Respondent

OUPA KHOABANE                                                                                     30^th Respondent

SIZWE MBALO                                                                                           31^st Respondent

TEFETSO PHITSANE                                                                                32^nd Respondent

THABO MEEKO                                                                                         33^rd Respondent

JIHAD MOHAPI                                                                                           34^th Respondent

AFRICAN NATIONAL CONGRESS                                                            35^th Respondent

SELAKE TLADI                                                                                           36^th Respondent

MODISE ELIAS TSHOPO                                                                           37^th Respondent

BRANCHES OF THE AFRICAN NATIONAL CONGRESS                         37^th Respondent

CORAM:                                    VANZYL, J, MATHEBULA, J, MHLAMBI J

HEARD ON:                              27 November 2017

MINORITY JUDGMENT:           MHLAMBI, J

ORDER GRANTED ON:           29 November 2017
REASONS FOR JUDGMENT:  14 December 2017

REASONS FOR JUDGMENT

MHLAMBI, J

[1] This is a minority judgment, setting out the reasons why I did not concur and dissented from the majority and in particular with paragraph 4 of the majority order; and why I considered that that part of the order should not have been granted. For purposes of this judgment I shall restrict myself to the said paragraph 4 of the order which reads as follows:

"In holding that the aforesaid meetings were irregular, unlawful, unconstitutional and/or in breach of the ANG constitution, the Provincial Conference of the ANC, Free State, scheduled for 1 to 3 December 2017, will be a nullity and is not be held until the aforesaid meetings  have been held in a lawful manner and in accordance with the constitution of the ANC"

[2] As indicated in paragraphs 9 and 10 of the majority judgment, the applicants, at the commencement of the proceedings, handed in a draft order narrowing down the relief they would seek, which, in effect, boiled down to the abandonment of the relief initially sought in terms of prayers 4-10 of the notice of motion. Prayers 9 and 10 of the notice of motion are of relevance and read as follows:

"9. The order obtained apparently by agreement on 6 October 2017 directing that the Provincial Elective Conference must be convened between 1-3 December  2017 is rescinded.

10. It is declared that in accordance with the resolution of the National Executive Committee of the thirty-fifth respondent no provincial or regional conferences in the Free State will take place beyond 30 September 2017;"

[3] Paragraphs 4 to 6 of the draft order read as follows:

"4. It is directed that any delegates nominated and/or appointed in the BGM's at the meetings highlighted in annexure 'A' hereto are prohibited from attending the National Conference, to be held on 16 November 2017, and/or the Provincial Conference scheduled for 1 - 3 December 2017;

5.  It is declared that as a result of the above mentioned in prayers 2 to 4, the provincial conference scheduled to take place on 1 to 3 December 2017 is fatally defective, unconstitutional, unlawful and breaches the constitution of the ANC;

6.  The respondents are interdicted and prohibited from holding, convening, electing leaders, or making any decisions at the provincial conference, scheduled to take place on 1 to 3 December 2017."

[4] The draft order was in essence a substitution or a paraphrase of the abandoned prayers of the notice of motion. In my view, the notice of motion, save for a few changes, was in essence the draft order for the following reasons: On perusal of paragraph 5 of the draft order, it was evident that paragraph 4(excluding for the moment paragraphs 2 and 3) served as the basis for seeking the granting of the relief in paragraphs 5 and 6. Such orders should not have been granted as they would be prescriptive to the respondents. The introduction of the directive in paragraph 4 prohibiting any nominated and/or appointed delegates from attending conferences was a conduit to the declaratory order and the interdict of the respondents in paragraphs 5 and 6. The remedy sought in these paragraphs was without base and should not have been entertained. Appellants' counsels, on being taxed as to the reasons or the foundation for the court to grant such relief, suggested that should the relief in paragraphs 2 and 3 of the draft order be granted, the court should adopt a robust approach and grant the rest of the relief sought therein. This was in line with the conclusion reached in their heads of argument which stated the following: "The irregularities identified are clearly serious. The (sic) impact on the legality of the attendance by the branch delegates  to the  PEC  election  that will take  place  during  the  provincial conference. The relief sought in the amended draft order can be granted without more. It should be granted on a final basis because the applicants have demonstrated a clear right to the relief that they seek. "

[5] The effect of the relief sought in the draft order  was  a circumvention of the difficulties the applicants faced with the proof of the prayers in the notice of motion. I have read the relevant parts of the majority judgment that refer to paragraph 4 of the majority order. It is clear that the majority view was that the applicants had, inter alia, serious problems with the setting aside of the order granted on 6 October 2016[1]. However, in my view, the effect of the order granted by the majority is in effect overriding and rescinding that order without further ado. To hold that the validity of that order could not be challenged and yet be of the view that "the court that issued that order could never have intended that the Provincial Conference was to be held at those dates irrespective of whether it will cause the conference to be unlawful and invalid due to the facts and circumstances subsequent to the issuing of the said order[2]" is not helpful. In granting the order it did, the court descended into the arena. It would appear that the majority judgment is based on Ramakatsa[3]   for  the  justification  of the order  in paragraph  4. The

difference between that case and the matter at hand is that the former was an appeal of review proceedings while the court, in nthis instance, pronounced itself prognostically. In  Ramakatsa[4] the court was careful not to overstep or over-extend itself.

[5] My decision to dissent was also influenced by the following dicta by Justices Moseneke DCJ and Jafta J in  Ramakatsa[5]

"[124] In our view, a declaration that the provincial elective conference of the ANC and the decisions taken at the conference are unlawful and void should suffice. We emphasise that the declaration of invalidity applies only to the Provincial Conference. The declaratory order we make does not relate to or affect the rights of delegates who have been elected at properly constituted branch general meetings of the Free State province to serve as delegates at any other conference of the party.

[125] We are disinclined to determine how the political party concerned should regulate its internal process in the light of the declaration made by this Court. We are satisfied that the ANC's constitution confers on the NEC or the National Conference adequate authority to regulate its affairs in the light of the decision of this Court. "

[7] These considerations I found appropriate and applicable in the present matter. In my view the court would over-extend itself if it made an order as envisaged in clause 4 of the draft order, more especially as the conferences being assailed by the respondents were to take place in the future.

[6] There are my reasons.

 

Counsel for the applicants:                       Adv DC Mpofu SC

                                                                      Adv TN Ngcukaitobi

                                                                      Adv K Magan

Instructed by:                                           Bekker Attorneys

                                                                      150 Charlotte Maxheke Streets

                                                                      BLOEMFONTEIN

 

Counsel for Respondents:                       Adv R Mogagabe SC

1^st - 34^th respondent                                 Adv PT Masihleho

Instructed by:                                           Moroka Attorneys

                                                                      84 President Reitz Avenue

                                                                      Westdene

                                                                      BLOEMFONTIEN

Counsel for Respondents:                       Adv W Mokhare SC

35th respondent Instructed by:                Adv PG Seleka SC

                                                                      Adv KAdams

                                                                      Moroka Attorneys

                                                                      84 President Reitz Avenue

                                                                      Westdene

                                                                      BLOEMFONTIEN

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