Marhawu and Others v African National Congress and Others (2030/10) [2010] ZAECGHC 100 (27 October 2010)

Marhawu and Others v African National Congress and Others (2030/10) [2010] ZAECGHC 100 (27 October 2010)

The court held that the expelled councillors (Ntongana applicants) did not have a legal interest in the composition of the party list for the purpose of filling vacancies created by their expulsion, as their right to be reinstated as councillors was being pursued in separate proceedings. Any appointment of the applicants as councillors would be subject to the outcome of the pending review application. The expelled councillors would not be prejudicially affected by the success of the present applicants, as reinstatement would restore the status quo ante. Therefore, they were not necessary parties to the present application and non-joinder was not fatal.

Citation
[2010] ZAECGHC 100
Parties
Applicant: Papama Marhawu; Applicant: Nomsa Ndongeni; Applicant: Maliza Ntshonga; Applicant: Christina Dondolo; Applicant: Zaljele Mkiva; Applicant: Hazel Rubu; Applicant: Tamsanqa Mduli; Applicant: Nombila Nozuko; Applicant: Kenneth Guza; Applicant: Tandikaya Ntshonga; Respondent: The African National Congress; Respondent: The Chief Electoral Officer; Respondent: The Electoral Commission; Respondent: Mnquma Local Municipality; Respondent: The Municipal Manager, Mnquma Local Municipality; Respondent: Andries Velile Mankune; Respondent: Vuyani Tongo; Respondent: Eunice Nomdakazana Noganta; Respondent: Linda Mbangxa; Respondent: Zukile Gobinca; Respondent: Nothuletu Nozingile Nqolomlilo; Respondent: Nokhona Luwaca; Respondent: Zukile Sogayise; Respondent: Baba Mntuwoxolo Ganjana; Respondent: Magnet Zibuthe Mnqwazi; Respondent: Nomnikelo Magadla; Respondent: N Sisityi Noganta; Respondent: Luxolo Mgangela; Respondent: Bukelwa Mdikana; Respondent: Rowan Jikwana; Respondent: Thembani Kabelana; Respondent: Thobeka Ncwadi; Respondent: Nomsa Myendeki; Respondent: Billie Phumzie Shigo; Respondent: Nolusapho Mgwebi; Respondent: Ngqongolo Qalayo; Respondent: Mbentsula Nonesile; Respondent: Noluthando Balfour; Respondent: Lungiswa Pendu; Respondent: Nontsikelo Nqxola; Respondent: Nontobeko Mkhatshane; Respondent: Norith Mkhwethwa; Respondent: Siyabulela Ndunge; Respondent: Vevile Mankune
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
27 October 2010
Case Number
2030/10
Procedural Posture
Urgent Application / Point in Limine (non Joinder) Decided Before Merits
Outcome
Point in limine of non-joinder dismissed with costs.
Judges
J.M. Roberson
Legal Topics
Joinder of Parties, Municipal Structures Act, Direct and Substantial Interest
Civil Procedure Administrative Law Joinder of Parties Municipal Structures Act Direct and Substantial Interest

Case Brief

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Parties

Papama Marhawu

Applicant

Nomsa Ndongeni

Applicant

Maliza Ntshonga

Applicant

Christina Dondolo

Applicant

Zaljele Mkiva

Applicant

Hazel Rubu

Applicant

Tamsanqa Mduli

Applicant

Nombila Nozuko

Applicant

Kenneth Guza

Applicant

Tandikaya Ntshonga

Applicant

The African National Congress

Respondent

The Chief Electoral Officer

Respondent

The Electoral Commission

Respondent

Mnquma Local Municipality

Respondent

The Municipal Manager, Mnquma Local Municipality

Respondent

Andries Velile Mankune

Respondent

Vuyani Tongo

Respondent

Eunice Nomdakazana Noganta

Respondent

Linda Mbangxa

Respondent

Zukile Gobinca

Respondent

Nothuletu Nozingile Nqolomlilo

Respondent

Nokhona Luwaca

Respondent

Zukile Sogayise

Respondent

Baba Mntuwoxolo Ganjana

Respondent

Magnet Zibuthe Mnqwazi

Respondent

Nomnikelo Magadla

Respondent

N Sisityi Noganta

Respondent

Luxolo Mgangela

Respondent

Bukelwa Mdikana

Respondent

Rowan Jikwana

Respondent

Thembani Kabelana

Respondent

Thobeka Ncwadi

Respondent

Nomsa Myendeki

Respondent

Billie Phumzie Shigo

Respondent

Nolusapho Mgwebi

Respondent

Ngqongolo Qalayo

Respondent

Mbentsula Nonesile

Respondent

Noluthando Balfour

Respondent

Lungiswa Pendu

Respondent

Nontsikelo Nqxola

Respondent

Nontobeko Mkhatshane

Respondent

Norith Mkhwethwa

Respondent

Siyabulela Ndunge

Respondent

Vevile Mankune

Respondent

Procedural Posture

Urgent Application / Point in Limine (non Joinder) Decided Before Merits

Legal Issues

  1. 1 Whether the Ntongana applicants are necessary parties to the proceedings due to a direct and substantial interest in the subject matter.
  2. 2 Whether the application can proceed in their absence without prejudicing their rights.

Ratio Decidendi

The court held that the expelled councillors (Ntongana applicants) did not have a legal interest in the composition of the party list for the purpose of filling vacancies created by their expulsion, as their right to be reinstated as councillors was being pursued in separate proceedings. Any appointment of the applicants as councillors would be subject to the outcome of the pending review application. The expelled councillors would not be prejudicially affected by the success of the present applicants, as reinstatement would restore the status quo ante. Therefore, they were not necessary parties to the present application and non-joinder was not fatal.

Court Disposition

Point in limine of non-joinder dismissed with costs.

Orders

  • The point in limine of non-joinder is dismissed.
  • Costs are awarded against the first respondent, including costs of two counsel, limited to the costs of the day (23 September 2010).