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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE, CAPE TOWN)

 

Case No: 18204/2024

 

In the matter between:
THAMSANQA FORTUNATE KUZWAYO	First Applicant
ISAAC KALEBOE MENYATSO	Second Applicant
CITRON MPHO MOTSHEGOE	Third Applicant
AUGASTINA MADALA QWETHA	Fourth Applicant
NOMADO GRACE MGWEBI	Fifth Applicant
NTOMBENHLE MKHIZE	Sixth Applicant
SYDWELL MATHOLENI MASILELA	Seventh Applicant
FRANCE BONGANI MFIKI	Eighth Applicant
SENZO SELBY DLAMINI	Ninth Applicant
AGNES MOGOTSI	Tenth Applicant
and
UMKHONTO WESIZWE POLITICAL PARTY	First Respondent
SPEAKER OF NATIONAL ASSEMBLY	Second Respondent

 

Date of hearing: 3 September 2024

Date of judgment: 9 September 2024

 

JUDGMENT

 

SAVAGE J:

 

[1]          This urgent application was first set down for hearing on 21 August 2024, with the papers having been served on the respondents a day earlier, on 20 August 2024. On 21 August 2024 it was postponed to 3 September 2024 with the first respondent, the Umkhonto Wesizwe Political Party (“the MK party”), ordered to serve and file its answering affidavit on 27 August 2024 and the applicants their replying affidavit on 30 August 2024. The parties were ordered to file heads of argument on 2 September 2024.

 

[2]          When the matter came before this Court on 3 September 2024, the MK party had filed its answering affidavit but the applicants had not filed a replying affidavit. Shortly before the commencement of the hearing, the applicants placed confirmatory affidavits into the court file which had apparently been served on the MK party by email on 2 September 2024.

 

[3]          The applicants seek that the matter be heard on an urgent basis and that an order be made:

 

‘…2.    Prohibiting the [MK party] from putting forward candidates before the second respondent to replace the applicants’ membership of the National Assembly pending the outcome of the review application before this Honourable Court under case number 18079/2024.

 

3.         Prohibiting the second respondent from administering the oath or solemn declaration of any candidate put forward by the first respondent to replace the applicants’ membership of the National Assembly pending the outcome of the review application before this Court under case number 18079/2024.

 

4.         Prohibiting the respondents from denying the applicants any and all benefits of membership of the National Assembly, including parliamentary accommodation, pending the outcome of the review application before this Court under case number 18079/2024.

 

5.         That a rule nisi be issued calling upon the MK Party and/or the Speaker of Parliament, and/or any other interested party, to show cause, if any, before this Honourable Court on 1 October 2024, as to why the following order should not be made final:

 

5.1                   That the prayer in paragraphs 2, 3 and 4 above have binding effect until the final determination of the applicants’ review application proceedings before this Honourable Court.

 

5.2                   That the MK party or any other party that opposes this application pays the costs of the application.

 

6.         That paragraph 2, 3 and 4 above operate as an interim interdict/mandamus pending the finalisation of this application.

 

7.         That the MK party and the Speaker of Parliament, and any other affected party, be given an opportunity to anticipate the return day of the rule nisi provided that they do so after providing 5 days (five days) Court days’ notice to the applicant, and any other interested parties.’

 

[4]          The second respondent, the Speaker of the National Assembly (“the Speaker”), filed a notice to abide the outcome of the application.

 

[5]          In his founding affidavit the first applicant, Mr Thamsanqa Fortunate Kuzwayo, stated that “as with all members of the National Assembly, I keep offices at the Parliament of the Republic of South Africa” and that the remaining applicants are all members of parliament. What is not stated by Mr Kuzwayo is that he and the applicants are or were at any time members of the MK party. No details are provided regarding when the applicants were sworn in as Members of Parliament or when they were removed as such. Instead Mr Kuzwayo annexes a copy of the notice of motion and founding affidavit in a review application filed by the applicants on 19 August 2024, which he states “provides a background to the merits in this matter. To avoid repetition, and unnecessary burdening of the papers, we shall rely upon the papers filed in the review application… ”.

 

[6]          Mr Kuzwayo contends that the current application is urgent in that:

 

6.1                 The applicants were advised that the MK party intended to put forward individuals to be sworn into the National Assembly on 20 August 2024 and for this reason, on 19 August 2024, the applicants’ legal representative sought an undertaking from the Speaker that no individuals would be sworn the following day to replace the applicants.

 

6.2                 On 19 August 2024 the applicants received a response from a senior parliamentary legal advisor in which it was made clear that the applicants’ seats in the National Assembly “would be taken by other people, which include our benefits, before our review application has been considered” by this Court. The letter stated that:

 

‘Given that your clients are challenging their expulsion from the political party, they should interdict the party from filling the positions and interdict the Speaker from administering the oath or solemn affirmation on candidates that would be nominated by the party to fill the positions.

 

There is no legal impediment to the nomination of the new members and the Speaker must proceed with the administration of the earth or solemn affirmation so as to give effect to her constitutional obligations.

 

We would like to add that the Speaker will not be administering the Oath or solemn affirmation to any of the candidates tomorrow, 20 August 2024.’

 

6.3                 On 19 August 2024 the applicants were denied access to parliamentary accommodation. After the intervention of their lawyers, parliamentary officers gave the applicants access to accommodation, with 30 days given to them to vacate their parliamentary residences.

 

6.4                 The applicants resigned from previous employment before becoming members of the National Assembly and have no alternative accommodation for both them and their dependants should they be evicted.

 

6.5                 On 15 August 2024 the applicants were paid R12 000.00 instead of R102 000.00. In addition, the applicants have been denied all parliamentary privileges, including domestic flights, and the respondents delayed the applicants travel to Cape Town, “and secure resources to file this urgent application (sic)”. It was stated that the applicants could not bring this application sooner.

 

6.6                 Given the correspondence of 19 August 2024 received from the parliamentary legal advisor states, without the relief sought by the applicants, “our seats in the National Assembly would be taken by other people, which include our benefits, before our review application has been considered”. As a result, “without an interdict, on an urgent basis, the applicants rights to challenge their expulsion, the applicants right to challenge the respondents decisions in the abovementioned review application, would be curtailed”.

 

[7]          The prima facie right relied upon by the applicants is stated to be the constitutional rights mentioned in the review application, which include but are not limited to just administrative action. The reasonable apprehension of irreparable harm is said to be apparent from the correspondence from the legal advisor of the National Assembly which leaves no doubt that there is no alternative remedy available to the applicants but the interdict and that there is no alternative remedy available to the applicants pending the outcome of the review application.

 

Opposition by MK party

 

[8]          The MK party opposed the relief sought. In his answering affidavit, the President and founder of the party, Mr Jacob Gedleyihlekisa Zuma, states that an Interim Leadership Core (“ILC”) was appointed which was to operate until the party held its first democratic conference. One of the decisions of the ILC was to allow Mr Zuma, in his sole discretion, the power to deploy all members of the MK party until the elective conference, including the power to include and remove persons from any structure of the party after consultation with the ILC.

 

[9]          He states that there were “serious political and security reasons for this decision”, with the space in which the party operates being “highly competitive and susceptible to infiltration and even politic demotivated violence, which must be avoided and prevented at all cost”. Then Secretary General of the party, Mr Thanduxolo Dyodo, a member of ILC, was responsible for compiling party lists but:

 

‘…unbeknown to [Mr Zuma], all sorts of names were improperly and irregularly included in the list with our proper consultation and vetting and simply to achieve compliance with the unreasonably short IEC deadline.’

 

[10]       On 8 March 2024 the MK party submitted its party lists containing approximately 800 names. According to Mr Zuma “(m)ore than 90% of these individuals were not known to me. I was falsely assured of their bona fides and the authenticity of their status.” As a consequence of the “mishandling” of the list, which involved allegations of fraud, Mr Zuma stated that in the exercise of his powers he removed Mr Dyodo as Acting Secretary-General. A criminal case of fraud was opened at the Sandton police station in relation to the irregular compilation of the lists, which remains under investigation by the police.

 

[11]       The party was thereafter subjected to a barrage of litigation including from “disgruntled and opportunistic rogue elements who had been lawfully removed or expelled, right until election day and beyond”. Following the results of the election, Mr Sihle Ngubane was appointed by Mr Zuma as Secretary-General until his deployment to Parliament as Chief Whip of the party.

 

[12]       The process of “cleaning up” the lists had not been completed by the time that members of the National Assembly had to be sworn in. Mr Zuma states that he had no personal knowledge of all the 800 plus individuals on the lists and it was not possible to verify their membership of the MK party “since the membership system was not yet in full place, which is still not completely up to scratch, although some progress is being made”. With the assistance of the ILC a proper audit of the lists was undertaken and it was “discovered that a number of individuals were either not bona fide their members of the MK party or were included on very politically questionable or suspicious grounds by their friends, neighbours, relatives or spouses which is self-evidently unacceptable.” Some of the people on the lists were found not to “possess the necessary skills set, which is probably a reflection on our regrettable lack of time for screening prior to the submission of the lists”. Mr Zuma states that it fell on him “to rectify these teething problems” across the legislatures in which the MK party has representation.

 

[13]       The applicants were among the people affected by the process of cleansing the lists of improperly-included individuals either because of their non-membership, irregular inclusion, lack of the requisite skills and/or replacement with more suitable members of the MK party. In the exercise of his powers Mr Zuma states that he determined that the applicants and others must lose their membership of the party and consequently their membership of the National Assembly and that their challenge to the lawfulness of their loss of membership is meritless.

 

[14]       Mr Zuma states that on 14 June 2024, the day of the official first sitting of Parliament, all designated members on the MK party National Assembly list were instructed to boycott the sitting as a form of protest over allegations of vote-rigging during the elections. At least five people, including the sixth and ninth applicants, defied the instruction and registered to attend the sitting as a result of which their membership of the party was terminated. After the MK party reversed its decision to boycott, arrangements were made with the National Assembly for the swearing of 58 members of the party. On 25 June 2024, 12 people, including some of the applicants, were informed by Mr Ngubane and others that following internal investigations, the party had taken a decision that they should withdraw from the list and refrain from presenting themselves for the swearing-in scheduled for the following day. No objections were raised after the letter to this effect was presented to these individuals. Yet, on 25 June 2024, the 12 persons, including those who had been expelled for their earlier defiance, attended the swearing in ceremony and took the prescribed oath. Mr Zuma states that to him “this was the last straw”.

 

[15]       In addition, some people on the lists failed to show up to take their seats and were deemed to have resigned. This included the first and second applicants. As a result, Mr Zuma oversaw their replacement by reshuffling the flawed lists. It was in this sense, that the applicants were said to have resigned, although it has never been claimed that they were sent resignation letters. Mr Zuma stated that he instructed Mr Ngubane to demand that those persons should either resign from the National Assembly or be summarily expelled from the party. No objections were received when this message was relayed to these individuals. Mr Ngubane implemented the decisions of the party from 3 August 2024 to replace the 10 applicants and others who were no longer members of the party and/or the National Assembly whether by virtue of their resignations or mass expulsion as the so-called “group of ten”. All other individuals in the same position obeyed the orders of the party and withdrew their names, save for this group.

 

[16]       The expulsions, stated Mr Zuma, were lawful and valid. None of the applicants in the urgent application have alleged that they are a member of the MK party, with nothing put up to prove any such membership. If such membership existed, it has been lawfully terminated as a result of the sixth and ninth applicants’ defiance of the order not to attend the first sitting of Parliament, the failure of the first, second and tenth applicants to attend the swearing-in and the defiance by the third, fourth, fifth, seventh and eighth applicants of the instruction not to attend the swearing-in ceremony. The applicants claim that they are Members of Parliament is thus disputed.

 

[17]       Mr Zuma states that the applicants’ application is not urgent in that the process of removal of the applicants commenced on 3 August 2024 and on 8 August 2024 the applicants sent letters to the Speaker who responded the same day explaining the legal position. There is no plausible explanation why the application for interim relief was not served until 20 August 2024 and set down for hearing the following day.

 

[18]       Issue is taken with the jurisdiction of the Court on the basis that the decisions on loss of membership were taken by Mr Zuma, after consultation with the ILC, sitting in Durban or Nkandla, in accordance with the powers vested in him and the applicants have not challenged the lawfulness or constitutionality of the current interim dispensation or protocols of the MK party.

 

[19]       Mr Zuma states that it is false that the applicants have no alternative accommodation since the parliamentary accommodation is additional to their permanent homes and is directly linked to their being a member of Parliament, with no independent entitlement to parliamentary privileges.

 

[20]       Heads of argument, which have been considered by the Court, were filed on 2 September 2024 by the applicants and on the morning of the hearing by the MK party.

 

Discussion

 

[21]       The applicants’ founding papers in this matter are lacking in a number of material respects. Important factual issues are omitted from the founding affidavit, with an attempt to make out the applicants’ case by reference to an annexure to the founding affidavit. The affidavit is silent in a number of significant respects, failing to state that the applicants were members of the MK party or that their membership was terminated, when the applicants were sworn in as Members of Parliament and when, or if, they have been removed as such. The result is that the key averments relating to the relief sought have not been placed before the Court by the applicants. In addition, the constitution of the MK party, which Mr Kuzwayo contended was attached as an annexure to his founding affidavit, was not attached.

 

[22]       Confirmatory affidavits of eight applicants were placed in the court file on the date of the hearing of the matter on 3 September 20204, without the leave of the Court sought to introduce these affidavits at such late stage. This when certain factual issues, although limited in nature, were included in the affidavits to which the MK party was given no opportunity to respond. Furthermore, no replying affidavit was filed, which left all of the factual issues detailed in Mr Zuma’s answering affidavit unchallenged by the applicants. This is so even if Mr Zuma paints a worrying picture as to the manner in which the MK party currently operates, manages its operations, its membership and the apparent impunity with which it appears to take decisions outside of the control of its own constitution.

 

Urgency

 

[23]       The applicants approached this Court on exceedingly tight timeframes, seeking that the respondents file answering papers within only hours of the application having been served on it, with no explanation as to why they had not approached this Court earlier given that on the first respondent’s version their membership of the MK party had been terminated on 3 or 8 August 2024. The applicants found their claim for urgency on the basis of the letter received from the parliamentary legal advisor on 19 August 2024, although this letters states that no person would be sworn in as a Member of Parliament on 20 August 2024 and indicated no other date on which persons would be sworn in. They claim to have been advised that the MK party intended to put forward individuals to be sworn into the National Assembly on 20 August 2024, with no details provided as to when such advice was received or from whom and with no reference to their own membership status in the party. The applicants also claim urgency on the basis that on 19 August 2024 they were denied access to parliamentary accommodation, that they were short-paid on 15 August 2024, could not travel to Cape Town or find resources for the urgent application as a result and could not bring this application sooner.

 

[24]       In Commissioner for South African Revenue Service v Hawker Air Services (Pty) Ltd^[1] it was stated that:

 

‘Urgency is a reason that may justify deviation from the times and forms the rules prescribe. It relates to form, not substance, and is not a prerequisite to a claim for substantive relief. Where an application is brought on the basis of urgency, the rules of court permit a court (or a judge in chambers) to dispense with the forms and service usually required, and to dispose of it ‘as to it seems meet’ (Rule 6(12)(a)). This in effect permits an urgent applicant, subject to the court’s control, to forge its own rules (which must ‘as far as practicable be in accordance with’ the rules). Where the application lacks the requisite element or degree of urgency, the court can for that reason decline to exercise its powers under Rule 6(12)(a). The matter is then not properly on the court’s roll, and it declines to hear it. The appropriate order is generally to strike the application from the roll. This enables the applicant to set the matter down again, on proper notice and compliance.’

 

[25]       An applicant may not create its own urgency^[2] and must bring an application at the first available opportunity in that the longer it takes to do so may have the effect of diminishing urgency.^[3] While the fact of delay will not automatically result in a matter not being considered urgent, particularly where the applicant’s rights are being continually infringed,^[4] the applicant is required explicitly to set out why the application is urgent, justify the degree of deviation from the Rules of Court sought,^[5] explain any delay and state why substantial redress cannot be obtained at a hearing in due course.^[6] If the relief sought would not be able to be obtained effectively in proceedings heard in the ordinary course, the matter will ordinarily be considered urgent.^[7]

 

[26]       The applicants have failed to show that a deviation from the Rules is justified in this matter. Important factual averments are missing from the founding affidavit and the attempt to include certain of these by reference to an annexure to such affidavit amounts to an unacceptable approach to pleading which cannot be sanctioned by this Court. The delay in bringing the application is not adequately explained given the facts - and relevant dates - set out in the answering affidavit, to which no reply was filed.

 

[27]       The letter received from the parliamentary legal advisor does not in itself show that the matter is urgent, nor does unexplained advice received that the MK party would seek to have members sworn in on an undisclosed date. The fact that the applicants were denied access to parliamentary accommodation on 19 August 2024, were short-paid on 15 August 2024, could not travel to Cape Town or find resources for the urgent application similarly do not justify a finding that the matter is urgent. This when the applicants have failed to plead the matter fully and properly, setting out all requisite material facts to support the relief sought, and have not shown why substantial redress could not be obtained at a hearing in due course.

 

[28]       Ordinarily, such a failure to show urgency may have resulted in an order striking the matter off the roll. However, having regard to the substance of the application, such an order would, in my mind, not be appropriate given the serious material shortcomings discussed below.

 

Interim relief

 

[29]       An interim interdict is a court order preserving or restoring the status quo pending the final determination of the rights of the parties and does not involve a final determination of these rights, nor affect the final determination of such rights. The court’s jurisdiction to grant interim relief depends upon its jurisdiction to maintain or restore the status quo and not on whether it has jurisdiction to decide the main dispute.^[8] It is an extraordinary remedy within the discretion of the court.^[9] The well-known requirements for the grant of an interim interdict were set out in Setlogelo^[10] and refined in Webster,^[11] and require that an applicant must establish (a) a prima facie right even if it is open to some doubt; (b) a reasonable apprehension of irreparable and imminent harm to the right if an interdict is not granted; (c) the balance of convenience must favour the grant of the interdict and (d) the applicant must have no other remedy. The Setlogelo test, as adapted by case law, must be applied cognisant of the normative scheme and democratic principles that underpin our Constitution and when considering whether to grant an interim interdict the Court must do so in a way that promotes the objects, spirit and purport of the Constitution.^[12]

 

[30]       In National Treasury and Others v Opposition to Urban Tolling Alliance and Others^[13] it was made clear that the prima facie right an applicant must establish is not merely the right to approach a court in order to review an administrative decision, since the right to review the impugned decisions does not require any preservation pendente lite.^[14] It is a right to which, if not protected by an interdict, irreparable harm would ensue. The Court noted that an interdict is meant to prevent future conduct and not decisions already made. Quite apart from the right to review and to set aside impugned decisions, the applicants should demonstrate a prima facie right that is threatened by an impending or imminent irreparable harm. This need not be shown by a balance of probabilities, with it sufficient if the right relied on is prima facie established, though open to some doubt. A court must also be satisfied that the balance of convenience favours the granting of a temporary interdict. It must first weigh the harm to be endured by an applicant if interim relief is not granted as against the harm a respondent will bear, if the interdict is granted. Thus a court must assess all relevant factors carefully in order to decide where the balance of convenience rests. 

 

[31]       Motion proceedings concern the resolution of legal issues based on common cause facts and cannot be used to resolve factual issues because they are not designed to determine probabilities.^[15] It is trite that in terms of the Plascon-Evans^[16] rule where in motion proceedings disputes of fact arise on the affidavits, a final order can be granted only if the facts averred in the applicant’s affidavits, which have been admitted by the respondent, together with the facts alleged by the latter, justify such order. This is so unless the respondent’s version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers.

 

[32]       The applicants contend that they hold a prima facie right to the relief sought based on the review application they have filed and their constitutional rights set out in that application, which include, but are not limited to just administrative action. In claiming this, without pleading any factual basis to support this claim, the applicants fail to show the existence of a prima facie right to the relief sought.

 

[33]       The letter received from the parliamentary legal advisor is said to establish a reasonable apprehension of irreparable harm and the existence of no alternative remedy available to the applicants. The applicants claim further that the balance of convenience favour them in that they have no alternative remedy save for obtaining an interdict pending the outcome of the review application.

 

[34]       In Ramakatsa and Others v Magashule and Others^[17] it was made clear that the Constitution could not have contemplated that political parties could act unlawfully and that the right to participate in the activities of a political party confers on every political party the duty to act lawfully and in accordance with its own constitution. This was found to mean that “our Constitution gives every member of every political party the right to exact compliance with the constitution of a political party by the leadership of that party”.^[18]

 

[35]       Despite the concerning picture painted by Mr Zuma regarding the manner in which the MK party currently operates and makes decisions involving its members, it remains for the applicants to show that the prerequisites for the interim relief sought by them have been met. An interim interdict is not to be granted by a court simply on the asking. Even if regard is had to the version of events advanced by Mr Zuma, the applicants have filed to show the existence of a prima facie right worthy of protection. Given the paucity of relevant material averments set out in their papers, they have not established a reasonable apprehension of irreparable harm, nor that no alternative remedy is available to them or that the balance of convenience is in their favour. In such circumstances, with the requirements for the grant of an interim interdict not met, the application cannot be granted and it consequently falls to be dismissed.

 

[36]       Having regard to the pleadings and the provisions of the Superior Courts Act, 2013,^[19] there is no merit in the MK party’s contention that this Court lacks jurisdiction to determine the matter, nor that the applicants lack the requisite locus standi to bring the application.

 

[37]       Turning to the issue of costs, there is no reason why the ordinary rule relating to the award of costs should not apply and counsel for both parties accepted as much. Costs must therefore follow the result.

 

Order

 

[38]       For these reasons the following order is made:

 

1.    The application is dismissed with costs.

 

SAVAGE J

 

APPEARANCES:

 

For applicants:                    S Chitando

                                            Instructed by Wendy Cele and Associates

 

For first respondent:            N Nyathi

                                            Instructed by Zungu Inc. Attorneys

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