Matlapeng v Chairperson of the Extended Provincial Executive Council and Another (UM184/2021) [2021] ZANWHC 64 (2 September 2021)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST PROVINCIAL DIVISION, MAHIKENG

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

Case No.: UM184/2021

In the matter between:

KATLEGO GODFREY MATLAPENG

Applicant

And

CHAIPERSON OF THE EXTENDED

First Respondent

PROVINCIALEXECUTIVE COUNCIL

CHAIRPERSON BRANCH ELECTORAL

Second Respondent

FACILITATION

JUDGMENT

MTEMBU AJ

INTRODUCTION

[1] This is an unopposed application which the applicant brought, as a matter of urgency, against the respondents. In the Notice of Motion dated 26 August 2021, the applicant jumbled up an interim interdict, final interdict, declaratory order, and statement of facts into one perplexing application. Typically, the notice of motion amounts to what the Afrikaners would ordinarily term a “Potjikos”, and/or what Indians would term a “Mixed Masala”. The relief sought by the applicant in terms of the Notice of Motion, if granted, would be an order in the following terms:

“1.1 That the matter may be head as one of urgency and that the usual time periods, notice and service in terms of the rules of court be dispensed with in terms of rule 6(12)(a).

1.2 The main grounds of urgency are that the applicant has been nominated by the community members of Ward 9 VT Sefora Branch, Tlhabane, as a potential candidate and has been intentionally and unlawfully removed from the ballot paper.

1.3 Further that the Deputy Secretary General of the African National Congress issued a directive on the 20th of August 2021 to Provincial Extended PECs on candidate list on outstanding disputes, objections and appeals on nominations and election of ward councillors to submit the names on Monday 23 August 2021.

1.4 Further that the Independent Electoral Commission has closed the submission of the candidate list for the Local Government Elections on the 24th of August 2021.

2.1 Interdicting and restraining the First and Second Respondents from confirming and ratifying the election of a candidate from elections held on the 19th of August 2021.

2.2 Interdicting and restraining the First and Second Respondents from effecting the submission of the list of the potential candidates to the provincial extended PEC's and the ANC National Executive Committee respectively.

2.3 Ordering the inclusion of the Applicant in the ballot and the re-run of the elections within 14 days from the date of the final order.

2.4 Cost of this application.

2.5 Further and/or alternative relief.”

[2] The applicant, firstly, brought an urgent application to be heard on 25 August 2021 at 15h30. The application was before Djaje J on 25 August 2021. Djaje J made an order that the application be postponed to the 30th of August 2021 for service on the respondents.

[3] What is glaring in the Notice of Motion dated 24 August 2021, the one that was before Djaje J, is that the relief sought is an interim interdict pending the determination of proceedings in respect of the Part B of the application.

[4] The relief sought in respect of Part B is that the applicant intends applying to this Court at a date and time to be determined by the Registrar, for an order in the following terms:

“7.1 It is declared that the Applicant be included as one of the suitably nominated candidate to be nominated and elected as a candidate for Ward 9 Councillor Candidate.

7.2 The First and Second Respondent are ordered to nullify the election held on the 19th of August 2021”.

[5] I have scrutinised the Notice of Motion dated 24 August 2021, and therefore detected that it materially differs from the one before me. The Notice of Motion is a foundation stone for the entire application. The effects of these material changes or amendments are that the application that was before Djaje J, which was postponed to the 30th of August 2021 for service on the respondents, is not the one that was before me. When the applicant was effecting service as per the order granted by Djaje J, he served a fresh application, seeking a final relief and declaratory order.

[6] As already stated above, the applicant brought the application(s) on urgent basis. I reserved judgment in order to deal with urgency and depending on my decision thereon, the merits if appropriate.

URGENCY

[7] In order to succeed to jump a queue and be heard on urgent basis, the applicant must meet the requirements for urgency.

[8] The law on urgency is abundantly clear. There is a plethora of authorities. Urgent applications must be brought in accordance with the provisions of Rule 6(12) of the Uniform Rules of Court (“The Rules”).

[9] In terms of Rule 6(12) of the Uniform Rules of Court an applicant is in law required to set out the circumstances which justify the hearing of an application on an urgent basis and the basis on which it contends that it would not obtain substantial redress at a hearing in due course. The pertinent question is whether the applicant has set out objective grounds, why the matter is urgent and whether or not the applicant has explained in its founding affidavit why it

cannot get substantial redress at a hearing in due course. See Davies v Schwatz and Others (38996/2019) [2019] ZAGPJHC 518 (10 December 2019) at paras 9 -10.

[10] Urgent applications require an applicant to persuade the Court that non- compliance with the Rules, and the extent thereof, is justified on the grounds of urgency. Applicant must demonstrate inter alia that it will suffer real loss or damage if it were to rely on normal procedure. In East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others [2012] JOL 28244 (GSJ) at paras 6 & 9, Notshe AJ held “… the fact that the applicant wants to have the matter resolved urgently does not render the matter urgent.” The court further held that the “procedure set out in Rule 6(12) is not for the taking”.

ANALYSIS

[11] The question is whether the applicant has shown that he deserves to jump the queue.

[12] The first problem with this application is the Notice of Motion dated 24 August 2021, which I refer to as “the first urgent application”, and Notice of Motion dated 26 August 2021, which I refer to as “the second urgent application” or “fresh application”. The first application was postponed to the 30th of August 2021 for service on the respondents. Instead of serving the application on the respondents, the applicant served a fresh

application on the 27th August 2021. The first application is an interim interdict pending Part B, which appears to be a declaratory order. This application was abandoned and was not served on the respondents as per the order granted by Djaje J. The fresh application appears to be both a final interdict and declaratory order. In my view, the applicant seems to be drowning in a pool of confusion. He is confused as to the relief he intends to seek. This confusion goes to the heart of urgency.

[13] The second issue that compounds his difficulties in meeting the requirements for urgency is that he does not set out objective facts indicating that he will suffer real loss or damage, if he were to rely on the normal procedure. In an attempt to allege grounds for urgency, he contends that:

“7.2 The Deputy Secretary General of the African National Congress issued a directive to the Provincial Secretaries Coordinators of Provincial Extended PEC’s on candidate lists on outstanding disputes, objections and appeals on nominations and election of ward councillors to submit the names on Monday 23 August 2021.

7.3 She further listed complaints which can be dealt with after the 23rd of August 2021, namely that: “Any objection to a process that made a material difference to the outcome of the selection of a candidate require a re-run of the process if elections are postponed.

7.4 It is my belief that my objection to the election process held in Tlhabane on the 19th of August 2021 is objectionable and makes a material difference to the outcome of the selection of a candidate and requires a re-run of the process, even if elections are not postponed.

7.5 An unfair and just process cannot be condoned on the basis that and election has been postponed.(sic)

[14] I was battling with understanding the applicant’s grounds for urgency. During hearing, Mr Rammutla, appearing on behalf of the applicant, submitted that the Independent Electoral Commission (IEC) has closed the submission of the candidates lists for Local Government Elections on the 24th of August 2021. I enquired from Mr Rammutla that, if that is the case, surely, the urgency has fallen away. Mr Rammutla contended that the urgent application has nothing to do with the closing date of submission by the IEC. He contended that whether the Local Government Elections are postponed or not, such has no bearing on the urgent application. I was also informed from the bar that the African National Congress (ANC) has made an application to extend the date for submission of candidates lists. However, Mr Rammutla submitted that this application is not dependant on the outcome of the ANC’s application. He further submitted that the applicant is of the view that the ANC has already submitted the flawed candidates list to the IEC.

[15] The applicant’s main contention was that he seeks an order that the election of ANC candidates on 19 August 2021 was flawed. This Court must pronounce that the meeting of 19th August 2021 was blemished with irregularities, and therefore unlawful. This Court should order that there should be a re-run of elections for ward councillors within 14 days from the date of an order. The applicant contended that once this Court has declared that the meeting of 19th August 2021 was unlawful, then the applicant will approach the IEC with an order of this Court that his name be included on the ANC candidate list.

[16] In my view, the relief sought does not justify jumping the queue. The applicant ought to have brought an urgent application before closing date of submissions by the IEC. Strangely, the applicant’s contention is that his application has nothing to do with closing of submissions of candidates lists by the IEC.

[17] Pertinently, on the applicant’s own version, the matter cannot be rendered urgent to the extent that the applicant has contended that his application has no direct link with the closing date or possible extension of the closing date of submission. This in my view puts an end to the question of urgency. In my view the applicant has not made out a case for urgency. It is trite that an order seeking to resolve the matter urgently does not render the matter urgent, and the procedure set out in Rule 6(12) is not for the taking. See Eagle Valley Granite (Pty) Ltd and Others [2012] JOL 28244 (GSJ) at paras 6 & 9.

[18] Further, the applicant has not stated in this application what rights have been affected. In other words, the applicant has failed to point out what rights he enjoys in the ANC Constitution that have been affected, which warrant immediate protection by this Court. The applicant just made sweeping political statements that he approached the urgent Court on the basis that there is gatekeeping, slates, factionalism and delaying resolution of disputes within the ANC.

[19] In the premises, the applicant has not satisfied the requirements of urgency and the application would be struck off the roll for lack of urgency.

ORDER

[20] Consequent, the following order is made:

(i) The application is struck off the roll due to lack of urgency, with no order as to costs.

A.M. MTEMBU

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

DATE OF HEARING

: 30 AUGUST 2021

DATE OF JUDGMENT

: 02 SEPTEMBER 2021

COUNSEL FOR THE APPLICANT : ADV G RAMMUTLA

INSTRUCTED BY

: MODUTU ATTORNEYS

This judgment was handed down electronically by emailing a copy to the parties. The 02nd September 2021 is deemed to be the date of delivery of this judgment.