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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 26826/2018

In the matter between:

LWANDO YANDISA MAJIZA                                                                           1^st Applicant

LWANDO XOLO MANGQISHI                                                                        2^nd Applicant

and

SOUTH AFRICAN STUDENTS’ CONGRESS                                             1^st Respondent

AVELA MJAJUBANA                                                                                 2^nd Respondent

LUYANDA TENGE                                                                                      3^rd Respondent

MOIPONE MHLONGO                                                                                4^th Respondent

TSHEPO MOHLOMI                                                                                    5^th Respondent

STHEMBISO SIYABONGA NDLOVU                                                         6^th Respondent

THANDEKA TSHABALALA                                                                        7^th Respondent

THABO MOFOKENG                                                                                  8^th Respondent

EUGENE MANANA                                                                                     9^th Respondent

JOEL MAMABOLO                                                                                   10^th Respondent

LEBOHANG NTULI                                                                                   11^th Respondent

MOHLODI PHASHA                                                                                  12^th Respondent

SIBULELE TWASHU                                                                                 13^th Respondent

LERATO DLADLA                                                                                     14^th Respondent

NTOMBIZAWO PHANDE                                                                          15^th Respondent

HLEKANI MTIKILENI                                                                                16^th Respondent

SIMPHIWE JOJA                                                                                       17^th Respondent

NTOKOZOYETHU MNCUBE                                                                    18^th Respondent

RERANG NCHABANE                                                                              19^th Respondent

TUMELO COGANG                                                                                   20^th Respondent

J U D G M E N T

 

MUDAU J

[1] This is an urgent application in terms of which the applicants seek an order, inter alia declaring the respondents’ to be in contempt of a court order issued on 12 June 2018 by this court (per Matojane J in case number 19867/2018) in which they were reinstated in their official positions as duly elected officials of the first respondent pending the determination of a review of the first respondent’s decision to dismiss and revoke their membership. The first respondent is the South African Students Congress (“SASCO”), a student political organization.  In the alternative, the applicants seek an interim order interdicting and restraining the respondents from implementing any decisions taken by SASCO on 4 July 2018 at its national general council meeting by removing the applicants from their respective offices or instituting disciplinary proceedings against the applicants pending the finalization of the main review application as well as costs on an attorney and client scale.

[2] The applicants allege with regards to the question of urgency as intended by  the provisions of Rule (6) 12 of the Uniform Rules of Court  that they are Secretary-General and  Deputy Secretary-General of the first respondent respectively, elected on 8 December 2017 in terms of the applicable rules that govern SASCO’s processes. Their term of office is limited to a non-renewable term of two years. They contend that if this application was to be brought on the normal court roll, valuable time in office would have been lost which cannot be regained given the sui generis nature of their respective offices. The respondents take the point that the matter is not urgent and fall to be struck off the roll. The law with regard to the question of urgency is well established. Given the brief facts alluded to within the context of the relevant facts that I deal with below, I am satisfied that the question of urgency has been sufficiently addressed to justify the applicants approaching this court as per the notice of motion.

[3] In case number 19867/2018 before Matojane J the applicants sought reinstatement and contended that the disciplinary processes that led to their dismissal on 20 May 2018 was unlawful due to non-compliance with the Constitution of SASCO in that, inter alia: (a) the disciplinary committee that expelled them was not properly constituted, (b) the applicants were not afforded an opportunity to conduct their defence properly, (c) they were not furnished with documents they had requested before and after the hearing and (d) there were not allowed to make representations. Matojane J found in the applicants’ favour by way of an interim order that the applicants have a prima facie right to review and set aside the decision to expel them from SASCO. Matojane J found that the applicants’ right to fair disciplinary proceedings was violated, consideration being had inter alia to section (2) C of SASCO’s Constitution which provides that the deputy president of SASCO shall be responsible for disciplinary matters and the implementation of the disciplinary code. In that instance, the disciplinary process against the applicants was spearheaded by a coordinator, without delegation by the deputy president of SASCO as provided.

[4] Following their reinstatement, the first applicant wrote an email to the national executive committee of SASCO in which he informed them of the judgment by Matojane J and highlighted its implications, but also requested an updated report regarding organizational matters. On 27 June 2018 the applicants received an email from the Treasurer General of SASCO, addressed to all members of the NEC, in which they were informed of an NEC meeting on the same date at 9 AM in KwaZulu Natal, at a venue yet to be announced. According to the applicants, they requested SASCO to make all the necessary travel arrangements for them to attend the meeting; however, the request was ignored. Not only was their request ignored, but they were not given the necessary accreditation to attend a meeting by SASCO sitting as the National General Council (“NGC”).

[5] The applicants contend that the refusal by the respondents to make the necessary travel arrangements and to give accreditation for them to attend the NGC was a wilful and intentional violation of Matojane J’s judgment as well as the Constitution of SASCO. On 4 July 2018 the applicants received letters from SASCO in which they were informed of their expulsion and the subsequent revocation of their membership with the first respondent. According to the applicants, they attempted on 5 and 6 July 2018 to resolve the issue internally with the first respondent which came to naught. Subsequently, on 9 July 2018 they instructed their current attorneys of record to inform the respondents of the unlawfulness of the decision to expel them demanding reinstatement.

[6] The respondents were given until 12 July 2018 to remedy the situation. Their attorneys received a letter from the respondents’ attorneys requesting an indulgence until 16 July 2018 for, inter alia the first respondents’ members to meet and consider the demands of the applicants. By 23 July 2018 no response or any other form of communication was received from the respondents’ attorneys. A follow-up letter was written and forwarded by the applicants’ attorneys. No response was forthcoming which led to the launch of the current proceedings.

[7] Section 31 (1) (f) of SASCO’s Constitution provides:

“NEC, PEC or BEC meeting may by absolute majority of its members present in a meeting suspend or demote from office any member or representative appointed by it pending disciplinary hearing. With regard to the BEC such a decision shall be ratified by the BGM”.

As members of the PEC, the applicants contend that, they may only be removed by an absolute majority of its members present in a meeting pending a disciplinary hearing. Furthermore, that there is no provision in the Constitution of SASCO empowering the NGC to remove and expel them as Secretary and Deputy Secretary General respectively of the first respondent. It is further contended that the decision to expel and revoke their membership is not only prima facie in violation of Matojane J’s judgment, but their rights to a fair hearing in accordance with the law of the land.

[8] Section 10 of the Constitution of SASCO outlines the role and powers of the NGC. It reads as follows:

“1. The NGC shall have the following powers and duties:

1. The NGC shall be every year in between NC.

2. It shall assess the state of the organisation and any matter that desires the attention of the organisation,

3. a Political input, organisational update and financial update shall be presented by the President, Secretary General and Treasury General respectively, on behalf of the NEC.

4. It shall have powers to deliberate on major policy issues and any issue referred to it by the NEC. The National Congress shall ratify such decisions taken on policy issues.

5. The NGC shall sit when convened by the NEC or when demanded by at least by two-thirds majority of the SASCO Provinces, in writing to the office of the Secretary General.”

[9] In opposing this application, the first respondent’s President, Avela Mjajubana, deposed to an affidavit in which he alleges that, following the court order alluded to above, the applicants were reinstated with immediate effect. However, following a meeting of the NGC on 26 June 2018 to 1 July 2018 in KwaZulu Natal, one of the items raised as per the agenda was the special motion of no-confidence on the applicants. The reasons advanced for the motion of no-confidence included, inter alia, the applicants’ presence at the NGC and their subsequent disappearance without notice or apologies; the statements released by the applicants on 14 June 2018 as divisive and bringing the name of the organization into disrepute. Further, that, there was uncertainty with regard to the “studentship” by the first applicant and that he lied before court. The first respondent contends that the applicants were lawfully removed from their posts. This contention is without merit as it flies in the face of a court order and in clear violation of section 10 of the first respondent’s Constitution.

[10] The requirements for civil contempt of court are well established. An applicant who seeks a committal order must establish the following: (a) that a court order was made; (b) that the order had been served; (c) the respondent has not complied with the order; (d) such non-compliance is wilful and mala fide. Proof beyond reasonable doubt is required. But, once the applicant has adduced sufficient evidence to prove requirements (a), (b) and (c), the respondent bears an evidentiary burden in respect of requirement (d). A failure by the respondent to adduce evidence that establishes a reasonable doubt as to whether non-compliance was wilful and mala fide will mean that civil contempt will have been established beyond reasonable doubt.[1]

[11] In the instant case, it is common cause between the parties that the notice of motion was not served personally on the 3^rd to the 20^th respondents. In argument before this court counsel for the applicants readily conceded that, as personal service is required, it would not be competent for this court to find the mentioned respondents guilty of contempt of court.

[12] It remains for determination whether a case has been made out by the applicants for the grant of the interim relief pending the determination of the review in the main application. The requirements for interim relief are fourfold: First, the right which is the subject matter of the main action and which the applicant seeks to protect by means of interim relief is clear or, if not clear, is prima facie established though open to some doubt; Second, a well-grounded apprehension of irreparable harm if interim relief is not granted and the ultimate relief is eventually granted; Third, a balance of convenience in favour of granting the interim relief and Fourth, the absence of any other satisfactory remedy.[2]

[13] As Matojane J pointed out in paragraph 20 of his judgment with which I respectfully agree, fairness is one of the core values of our constitutional order and the pre-requisite of the applicants’ right to a fair disciplinary hearing. In the instant case, it is clear that they were expelled without any hearing. To this extent I am satisfied that they have demonstrated a well-grounded apprehension of irreparable harm if the interim interdict is not granted. This is against the background that a clear or at the very least a prima facie right in this regard given the common cause facts has been established.

[14] To my mind there is no other practical alternative remedy to the relief sought. If the situation is left as it is, and the applicants were to succeed in the pending review that victory would be hollow and rendered meaningless. In my view, the respondents are unlikely to suffer any inconvenience if the balance of convenience is in favour of the applicants given the circumstances of this case. On the main, the conduct of the respondents is reprehensible given that it follows closely from the previous application which resulted in the judgment by Matojane J. There is no reason why costs should not follow the result but on a punitive scale.

[15] In the result I make the following order:

(a) The applicants are reinstated to their respective positions as Secretary-General and Deputy Secretary-General of the first respondent forthwith.

(b) The respondents are directed, interdicted and restrained from enforcing any decision(s) taken by the first respondent on 4 July 2018 at its NGC meeting against the applicants pending the finalization of part B of the main review application.

(c) The respondents are to pay the costs of this application jointly and severally on an attorney and client scale.

 

 

 

________________

MUDAU T P

[Judge of the High Court,

Gauteng Local Division,

Johannesburg]

 

APPEARANCES

For the Applicants: Adv Ramabulana & Adv Bokaba

Instructed by: Sikade Tshabala Attorney 

For the Respondents: Adv T L Dikolomela

Instructed by: Ramatshosa Attorneys

011 431 3834

Date of Hearing: 25 July 2018

Date of Judgment: 15 August 2018

 

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