African Liberty Movement v National Lotteries Commission and Others (2020/57493) [2020] ZAGPPHC 635 (15 November 2020)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

15 November 2020

case Number: 2020/57493

In the matter between:

AFRICAN LIBERTY MOVEMENT

Applicant

(REGISTRATION NO: 2002/497603/08)

and

NATIONAL LOTTERIES COMMISSION

1st Respondent

PORTFOLIO COMMITTEE ON TRADE AND INDUSTRY

2nd Respondent

MINISTER OF TRADE, INDUSTRY AND COMPETITION

3rd Respondent

JUDGMENT

MOKOSE J

[1] The applicant seeks an order:

(i) interdicting the National Lotteries Commission from publishing the names of beneficiaries of grants in its 2019/2020 Annual Report as required by the Lotteries Act 57 of 1997;

(ii) interdicting the Parliamentary Portfolio Committee on Trade and Industry from ordering the National Lotteries Commission to publish such list of beneficiaries in any public platform, on social media or other platform 'causing such statements to be made'; and

(iii) that no party may publish the names of beneficiaries in compliance with the instruction of the Parliamentary Portfolio Committee on Trade and Industry.

[2] The facts are briefly that for the first eighteen years after the establishment of the National Lotteries Commission the annual report always included a list of beneficiaries who had received funding together with the specific amount received. The 2018/19 annual report did not have the information in the Annual Report, for the reason that publication of the information would amount to a breach of Regulation 8 of the regulations relating to Distribution Agencies issued in terms of Section 60 of the Lotteries Act 57 of 1997. This had occurred after reports of maladministration and corruption at the National Lotteries Commission had been published and investigations of such allegations instituted.

[3] The Parliamentary Portfolio Committee decided on 16 July 2020 that the names of beneficiaries be published which triggered the urgent application the court is now seized with. The Portfolio Committee:

(i) instructed the National Lotteries Commission to submit the names of beneficiaries who had received funds from the Covid-19 relief fund as well as the amount granted to each beneficiary;

(ii) instructed the National Lotteries Commission to submit the names of beneficiaries for the previous financial years where their details had not been included in the Annual Reports together with their category and the amount of funding which had been granted;

(iii) requested that the National Lotteries Commission publish the names of beneficiaries for the 2019/20 Annual Report 'as is required by law'.

[4] The applicant avers that during the middle of October, it came to its attention that the Portfolio Committee was persisting in its instruction to have the names of the beneficiaries published in the Annual Report to be published in the first week of November 2020. An urgent letter was sent to the Chairperson of the committee and the commission itself citing an irregularity in publishing the names of the beneficiaries and giving them five business days within which to respond. It came to the applicant's attention that the publication was intended to be made in the week beginning 16 November 2020.

[5] The applicant seeks to interdict the disclosure to Parliament of the names of all beneficiaries of grants awarded by the National Lotteries Commission.

[6] The Minister of Trade, Industry and Competition as the executive authority is obliged to account to Parliament in respect of the administration of the National Lotteries Commission. He applied to the court to intervene as a respondent in the application. The intervention application was not opposed. The court found that a case had been made out for the intervention and accordingly granted the third respondent leave to intervene. It must also be noted that the first respondent had filed a notice to abide.

Locus Standi

[7] It is common cause that the applicant is not a beneficiary of grants awarded by the Commission. It purports to act on behalf of a member who joined on 26 August 2020. The applicant, in its heads of argument, makes reference to Section 38 of the Constitution which enables anyone listed in the section to approach a competent court alleging that a right in the Bill of Rights has been infringed or is threatened. Those who may do so include an association acting on behalf of its members. The applicant merely places before the court that their members afford them the requisite locus standi.

[8] The applicant avers that it is an organisation that caters for its members and seeks to advance the plight of black people who are marginalised. It avers further that they act on the mandate of their members who do not have the funding to approach a court to ventilate their issues.

[9] I note that the applicant has not provided any particulars on whose behalf it purports to act. There are no allegations in the founding affidavit that it is impracticable for the beneficiary on whose behalf they act to act on its own behalf nor is any averment made that the applicant acts on behalf of a beneficiary who has received a grant from the National lotteries Commission during the 2019/20 financial year.

[10] The applicant further avers that it is authorised by its constitution to act and bring the application in casu on behalf of the alleged beneficiary whose details are to be disclosed to Parliament in the Annual Report. It is, however, not indicated by the applicant whether the alleged beneficiary is a natural person or has a juristic persona. If it is a juristic person, no evidence has been given to indicate that it has authorised the applicant to bring the matter on its behalf.

[11] Furthermore, the constitution of the applicant is not attached to the papers. There is no indication of whether it permits litigation on to be conducted on behalf of its members. The resolution of the applicant merely states the following:

"1.3 institute and or defend legal action against/and for the Organisation, sign any court proceedings papers on behalf of the Organisation; and "

This clause certainly does not grant the organisation the mandate to institute and defend legal actions for the members of the organisation and as such found locus standi.

[12] Court processes are matters of public record. A court order could have been sought without using the litigant's name, affording the confidentiality required. This happens all the time in our courts. However, a case needs to be made out by the litigant to afford him such confidentiality. It is not apparent to the court whether the unnamed member on whose behalf the application Is made is in fact a beneficiary. If he is not one, then there is no interest to protect and as such, locus standi has not been proven. Furthermore, the applicant's reliance on Section 38 of the Constitution is misplaced. There Is no plea that the disclosure of the beneficiary's name infringes on a constitutional right. Neither is there a plea as to which right is being protected.

[13] I am of the view that the applicant has not established that it has locus standi in the matter in casu for the reasons as set out above. The applicant has failed to show that it is 'enforcing a right and that it has sufficient interest in the relief claimed'.[1] Furthermore, the applicant has failed to provide evidence that it acts for a beneficiary who is a member of the organisation and that this member requires confidentiality.

Urgency

[14] Although the court has found that the applicant has no locus standi in the matter, it is important that the aspect of urgency be dealt with. The matter in casu has been brought on an extremely urgent basis affording the respondent very little time before appearing in court for the hearing. Rule 6(12}(b} of the Uniform Rules of Court confers a general judicial discretion on a court to hear a matter urgently. It provides that the applicant must:

"....set forth explicitly the circumstances which he avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course.”

[15] It is evident that the decision by the Portfolio committee was taken on 16 July 2020 that the names of the beneficiaries be published ln the Annual Report. The applicant fails to take the court into its confidence as to when the beneficiary became aware of the decision of the Portfolio Committee. If it is assumed that it became aware of the decision soon after the decision was taken on the 16 July, an explanation setting forth explicitly the circumstances the applicant avers render the matter urgent must be set out in the founding affidavit. Furthermore, the applicant must also set out the reasons why it claims that it would not be afforded

substantial redress at a hearing in due course.

[16] The applicant has failed to comply with Rule 6(12(b). As such, I am of the view that the matter fails on the aspect of urgency.

Misjoinder/ Non-jolnder

[17] I will not deal with this aspect save to say that Counsel for the third respondent indicated that she will not persist with this point.

[18] Having found that the applicant has no locus standi to seek the relief sought, I will not deal with the merits in the matter. Accordingly, the matter is dismissed.

Order

[19] The following order is granted:

(i) the application is dismissed;

(ii) the applicant is ordered to pay the costs of the respondents on a scale as between party and party.

SN I 'Mokose

Judge of the High Court of South Africa

Gauteng Division, Pretoria

Electronically submitted therefore unsigned

Delivered: this judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the parties/their legal representatives by email and by uploading it ta the electronic file of this matter on Caselines. The date for hand-down is deemed to be 15 November 2020.

Appearances

For the Applicant:

Adv J Vilakazi

instructed by

RJ Tabane Attorneys

For the Third Repondent:

Adv MS Baloyi SC

The State Attorney

Pretoria

Date of Hearing: 12 November 2020

Date of Judgement: 15 November 2020

[1] Gross v Pent [1996] ZASCA 78; 1996 (4) SA 617 (A) at 623 C -F