Ntongana and Others v Charperson: the National Disciplinary Committee of Appeal of the African National Congress and Others, MEC: Local Government and Traditional Affairs of the Government of the Eastern Cape v Others (2743/2009, 2794/2009) [2009] ZAECGHC 78 (5 November 2009)

9

FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

Motion Court Opposed Judgment

MBASA

WEBSTER NTONGANA

AND 14 OTHERS Applicants

And

THE

CHAIRPERSON OF THE

NATIONAL

DISCIPLINARY COMMITTEE

OF

APPEAL OF THE AFRICAN

NATIONAL CONGRESS 1st Respondent

THE AFRICAN NATIONAL CONGRESS 2nd Respondent

THE

INDEPENDENT ELECTORAL

COMMISSION 3rd Respondent

THE CHIEF ELECTORAL OFFICER 4th Respondent

MNQUMA LOCAL MUNICIPALITY 5th Respondent

THE MUNICIPAL MANAGER: MNQUMA

LOCAL MUNICIPALITY 6th Respondent

MEMBER

OF THE EXECUTIVE COUNCIL

FOR

LOCAL GOVERNMENT AND

TRADITIONAL

AFFAIRS FOR THE

PROVINCE OF THE EASTERN CAPE 7th Respondent

And in the matter between

MEMBER OF THE EXECUTIVE COUNCIL

FOR LOCAL GOVERNMENT AND

TRADITIONAL AFFAIRS FOR THE

PROVINCE OF THE EASTERN CAPE Applicant

THE PERSONS WHOSE NAMES APPEAR

ON ANNEXURE A HERETO 1st to 15th Respondents

THE NATIONAL WORKING COMMITTEE

OF THE AFRICAN NATIONAL CONGRESS 16th Respondent

THE PROVINCIAL WORKING COMMITTEE

OF THE AFRICAN NATIONAL CONGRESS 17th Respondent

THE MNQUMA LOCAL MUNICIPALITY 18th Respondent

THE MUNICIPAL MANAGER: MNQUMA

LOCAL MUNICIPALITY 19th Respondent

THE INDEPENDENT ELECTORAL

COMMISSION 20th Respondent

CASE NUMBER: 2743/2009 and 2794/2009

DATE ARGUED: 29 October 2009

DATE DELIVERED: 5 November 2009

JUDGE(S): Pickering J

LEGAL REPRESENTATIVES:

Appearances:

for the State/Applicant(s)/Appellant(s): Adv. Quinn and Adv. Schuring

for the Accused/Respondent(s): Adv. Hobbs

(and vica versa in the other matter)

Instructing attorneys:

Applicant(s)/Appellant(s): Dullabh: Mr. Wolmarans

Respondent(s): Wheeldon Rushmere and Cole: Mr. vd Veen

CASE INFORMATION:

Nature of proceedings :

Topic:

Keywords:

IN THE

HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

CASE NO: 2743/2009

In the matter between

AND 14 OTHERS Applicants

THE AFRICAN NATIONAL CONGRESS 2nd Respondent

COMMISSION 3rd Respondent

THE CHIEF ELECTORAL OFFICER 4th Respondent

MNQUMA LOCAL MUNICIPALITY 5th Respondent

PROVINCE OF THE EASTERN CAPE 7th Respondent

Case no: 2794/2009

PROVINCE OF THE EASTERN CAPE Applicant

ON ANNEXURE A HERETO 1st to 15th Respondents

OF THE AFRICAN NATIONAL CONGRESS 16th Respondent

OF THE AFRICAN NATIONAL CONGRESS 17th Respondent

THE MNQUMA LOCAL MUNICIPALITY 18th Respondent

COMMISSION 20th Respondent

JUDGMENT

PICKERING J:

The 15 applicants in case no 2743/09 were all duly elected councillors in the Mnquma Local Municipality. All the applicants were elected as councillors under the provisions of section 22(1)(a) of the Local Government: Municipal Structures Act no 117 of 1998 save for third, fifth, seventh, eight and ninth applicants who were elected as councillors under the provisions of section 22(1)(b) of the Act. All fifteen applicants were, at the time of their election, councillors of the African National Congress (second respondent) a political party duly registered as such in terms of section 15 of the Electoral Commissions Act 51 of 1996.

The applicants were expelled from membership of the African National Congress (“the ANC”) with effect from 2 June 2009 by decision of the Eastern Cape Provincial Disciplinary Committee of the ANC. This decision was upheld by the National Disciplinary Committee of Appeal of the ANC on 20 June 2009. The letter (Exhibit M) advising them of the decision of the National Disciplinary Committee reveals as follows:

“The NDCA observed that you did not attend the hearing, neither were you represented by a fellow member of the ANC and no apology had been tendered for your absence. Read in conjunction with the fact that you had also not been present at the Disciplinary hearing of first instance, the NDCA took a dim view of the lack of respect this displays towards properly constituted structures of the ANC, which you solemnly undertook to honour and respect when you became a member of the organisation.

Under these circumstances and having satisfied itself that you had been given due and proper notice of the appeal hearing the NDCA

decided that your non-appearance, lack of representation and absence of an apology constituted a deliberate and intentional refusal, on your part, to exercise the automatic right of appeal guaranteed under Rule 25.9(b) of the ANC Constitution.

The NDCA has therefore decided to uphold the decision of the Eastern Cape Provincial Disciplinary Committee reached at its hearing

on April 14, 2009 that:

“You be expelled from the ANC with effect from the date of hearing of first instance and that you be barred from applying for membership or becoming a member of the ANC for a period of 7 (seven) years commencing on June 1 2009 and expiring on May 31, 2016.”

Applicants now seek an order, inter alia, in the following terms:

“1. That the decision of the National Disciplinary Committee of Appeal of the African National Congress, taken at East London on 20 June 2009, upholding the decisions of the Eastern Cape Provincial Disciplinary Committee reached at its hearing, confirming the expulsion of the applicants from the African National Congress, be reviewed and set aside.

2. That the applicants be reinstated as councillors of the fifth respondent (Mnquma Local Municipality) with all emoluments due to them by virtue of their councillorship.”

Applicants further seek in what they term a “second application” an order that “pending the finalisation of the first application contemplated herein, the expulsion of the applicants from the African National Congress be set aside and they be reinstated as councillors of the fifth respondents with all emoluments due to them by virtue of their councillorship.”

On 14 July 2009 the Member of the Executive Council for Local Government and Traditional Affairs of the Government of the Province of the Eastern Cape (“the MEC”) filed an application under case no 2794/09 seeking certain relief against the fifteen councillors who were the applicants in case no 2743/09. The order sought was for the issue of a rule nisi in, inter alia, the following terms:

“2.1 That it be declared that with effect from 20 June 2009 the first to fifteenth respondents (namely the fifteen applicants in case no 2743/09) ceased to be councillors of the eighteenth respondent (the Mnquma Local Municipality).

2.2 That the first to fifteenth respondents be interdicted and restrained from participating in local government in respect of the

eighteenth respondent as councillors.

2.3 That the twentieth respondent (the Independent Electoral Commission) notify the nineteenth respondent (the Municipal Manager:

Mnquma Local Municipality) that the first to fifteenth respondents are not councillors of the eighteenth respondent and that accordingly

vacancies exist in respect of which by-elections and proportional representation list appointments are required.

2.4 …

2.5 That the first to fifteenth respondents be directed to vacate the premises of the eighteenth respondent which they occupy as former councillors of the eighteenth respondent.”

The applicant further sought an order pending the return day:

“3.1 The first to fifteen respondents be interdicted and restrained from participating in local government in respect of the eighteenth respondent as councillors

3.2 The meeting of the council of the eighteenth respondent scheduled for 15 July 2009 is interdicted.”

It will have been noted that the reference in paragraph 2.3 of the Notice of Motion to the twentieth respondent being ordered to notify the nineteenth respondent of the existing vacancies is incorrect. Obviously what was sought was an order that the nineteenth respondent notify the twentieth respondent accordingly.

It is common cause that at the time this application was filed service of the application under case no 2743/2009 had not yet been

effected on the MEC. This has led to an unfortunate duplication of certain of the facts.

On 14 July 2009 an order was made by agreement to the effect that the meeting of the council of the eighteenth respondent scheduled for 15 July 2009 be interdicted. The application was then postponed to 16 July 2009. On that date the matter was further postponed by agreement to 6 August 2009 for simultaneous hearing with case no 2743/09. On 6 August 2009 both matters were postponed to 3 September 2009. In case no 2743/2009 the costs occasioned by that postponement were reserved. In case no 2794/09 the first to fifteenth respondents were ordered to pay the wasted costs occasioned as a result of a postponement. On 8 October 2009 both matters were postponed to 29 October 2009.

It will be convenient to deal firstly with the allegations made by Mr. Ntongana, the first applicant in case no 2743/09. It will also be convenient to refer to this application as the “Ntongana application” and to the application in case no 2794/09 as the “MEC application”.

In the Ntongana application, applicants aver that on 6 April 2009 they were served with a charge sheet signed by the Acting Provincial Secretary of the ANC, Ms. Pemmy Majodina, in which four separate charges against them were detailed. The first three charges involved all the applicants where-as the fourth charge concerned only the first to ninth applicants as well as the fifteenth applicant. In due course the Eastern Cape Provincial Disciplinary Committee of the ANC convened for the purpose of holding a disciplinary enquiry into the conduct of the applicants. Although applicants initially alleged that such enquiry commenced on 18 April 2009 it now appears to be common cause that it in fact only commenced on 29 April 2009. At that enquiry the applicants were represented by a certain Mr. Sonamzi. As appears from the report of the Disciplinary Committee dated 22 May 2009 the enquiry on 29 April 2009 commenced with a hearing into the fourth charge and certain evidence was led thereanent. Paragraph 27 of the report then states as follows:

“The representatives were thereafter given an opportunity to address the committee on the merits. At this stage it had come clear that it would not be possible to finalise the matter and that it would be necessary to adjourn the proceedings and to reconvene at a later date. The committee therefore adjourned and requested both representatives to consult their diaries to enable them to agree to a mutually convenient date when the matter could be finalised. When the meeting reconvened both Mr. Sishuba (the Evidence Leader) and Mr. Sonamzi informed the committee that they are available on the 16 May 2009. The matter was therefore postponed to

16 May 2009. The chairperson was at pains to explain to the accused that the matter would commence at 9am on 16 May 2009 and would be finalised on that day.”

On 13 May 2009, however, Mr. Sonamzi informed the applicants that as he was required to attend a training course he would not be in a position to attend the hearing on 16 May 2009. He also addressed a letter (Exhibit C) on the same date to the Chairperson of the Disciplinary Committee requesting that the matter be postponed to a date in June. In response he received a letter (Exhibit D) from the Evidence Leader, Mr. Sishuba, advising him of the latter’s instructions to oppose any application for a postponement because of the importance to the ANC of the matter being finalised. He further stated that the applicants had in any event sufficient time within which to obtain the services of another representative. On 14 May 2009 Mr. Sonamzi addressed a further letter (Exhibit E) to the chairperson of the Disciplinary Enquiry stating that applicants had been unable to obtain the services of another representative because the people whom they approached were unwilling and reluctant to assist them. He stated further that the applicants had no option but to revert to him and pointed out that the matter had already commenced and that the reason for a postponement was not “a self caused” one and was not intended to delay the matter.

According to the applicants they all then attended the disciplinary hearing on 16 May 2009 and requested a postponement thereof because of the serious allegations against them and the fact that they needed to be properly represented. They alleged that their application for a postponement was summarily refused and that because of this they thereafter left the hearing because they were of the view that they could not adequately present their case especially in the face of an experienced practitioner such as Mr. Sishuba.

In its report the Disciplinary Committee stated that it “was of the unanimous view that under the circumstances Mr. Sonamzi’s unavailability did not constitute sufficient reason for the matter to be postponed. Mr. Sonamzi was given opportunity to consult his diary and the 16 May 2009 was agreed upon in order not to inconvenience him. The Committee was of the view that that accused had more than reasonable opportunity to instruct another representative and the application for the postponement was accordingly refused.”

The report of the Committee confirms that the applicants thereafter indicated their refusal to take any further part in the proceedings under the circumstances and left the room.

Thereafter, on 3 June 2009, applicants each received a letter dated 2 June 2009 advising them that they had been found guilty on all the charges and that they were accordingly expelled from the ANC with immediate effect. The letter states further that in terms of Rule 25.9(b) “this outcome has been referred to the National Disciplinary Committee of Appeal because of the automatic right of appeal to the NDCA that you enjoy.”

On 3 June 2009 Mr. Sonamzi addressed a letter (Exhibit G) to the chairperson of the Provincial Disciplinary Committee, inter alia, requesting the reasons for the committee’s ruling in order for applicants “to weigh available options.” On 4 June 2009 applicants then lodged an appeal to the National Disciplinary Committee of Appeal of the ANC against the procedural fairness of the Disciplinary Enquiry as well as the penalty handed down by the committee. Thereafter, on 17 June 2009, applicants addressed a notice to both the Provincial Disciplinary Committee of the ANC and the National Disciplinary Committee of the ANC calling for the chairperson of the Provincial Disciplinary Committee of the ANC to furnish them in writing with the reasons for the rulings and penalties imposed upon them in order to enable them properly to prepare for their appeal. According to applicants none of them were ever furnished with the required reasons. This allegation has not been denied by the respondents save that Mr. Sishuba states that “the written reasons of the Provincial Disciplinary Committee were formulated and became available on 22 May 2009” and were accordingly available to applicants prior to the hearing of appeal on 20 June 2009. It is noteworthy that he does not contend that the report of the Disciplinary Committee was in fact furnished to the applicants. All that he states is that the notice of appeal as well as the notice calling for reasons were available to and considered by the National Disciplinary Committee of Appeal. For her part Ms. Majodina states that “the written record of the Provincial Disciplinary Committee became available on 29 May 2009. I sent the written record to Abrahamse,

the Chief National Presenter of the ANC, who was charged with arranging and attending to the appeal.” In the light of those averments it must be accepted that applicants had not received the report prior to the date of the appeal hearing.

Applicants aver that on 17 June 2009 first, second and thirteenth applicants were telephoned by Ms. Thozama Managa on behalf of the ANC. She informed them that the appeal hearings in their matters would be heard at the ANC caucus room situated within the Legislature complex at Bhisho at 09h00 on 20 June 2009. The three applicants requested that they be provided with written notices to this effect and each of them received later that day a memorandum (Exhibit J) to this effect. The memorandum further requested confirmation by no later than Thursday 18 June 2009 that the applicants would attend the appeal hearing. According to applicants none of the other applicants were similarly advised of the time and place of the contemplated appeal hearing but first applicant advised them accordingly.

On 18 June 2009 Mr. Sonamzi, who was now again acting for applicants, addressed a letter to both the Provincial and National Disciplinary Committees regarding the hearing of the appeal on 20 June 2009. In the letter (Exhibit K) Mr. Sonamzi states, inter alia, as follows:

“1. Further to your request of confirmation of their attendance, they have instructed me that the proposed dates of hearing of this appeal are not suitable to them.

2. The first reason is that councillor Nomawethu Makabane (fourth applicant) is bereaved. Her son has passed on and will be buried on the 20 June 2009. They already made a prior arrangement to attend this funeral.

3. They have further instructed me that they have addressed a letter to the Chairperson of the Provincial Disciplinary Committee of the ANC calling upon her to furnish them in writing with the reasons for the rulings and penalties imposed upon them.

The charged persons require these written reasons to enable them to exploit their right to appeal against the rulings and penalties imposed upon them, as contemplated in the Constitution of the African National Congress. In the circumstances the hearing of the appeal set down for 20-21 June 2009 is premature unless and until such time as they are furnished with the written reasons for the rulings and penalties imposed upon them.”

On 19 June 2009 Mr. Sonamzi received a telephone call from Mr. Cyril Ramaphosa, the chairperson of the National Disciplinary Committee of Appeal, first respondent. According to applicants he informed Mr. Sonamzi that no postponement would be entertained except in respect of the appeal hearing of the fourth applicant which would be postponed in the circumstances. With regard to this averment Mr. Abrahamse, the aforementioned Chief National Presenter, confirms that first respondent did indeed telephone Sonamzi. According to Abrahamse first respondent stressed to Sonamzi the importance of the applicants attending the appeal. Abrahamse then continues to state that “to the best of my knowledge, Sonamzi was advised that the appeal would be heard at the Southern Sun Garden Court, East London.” By this allegation Abrahamse presumably intends to convey that it was first respondent who had so advised Sonamzi. No affidavit has been filed by first respondent and this allegation is therefore hearsay.

Be that as it may, on 20 June 2009, all the applicants, (save for fourth applicant), as well as Mr. Sonamzi, proceeded to the Legislature complex at Bhisho. It is common cause that the complex is secured and that access can only be gained through a gate manned by members of the South African Police Service. According to applicants they arrived at the gate at approximately 08h45 where they were refused entry by a certain policeman, Constable Ngalo, who stated that no prior arrangements had been made permitting them entry into the complex and that he was therefore bound to refuse them such access. Applicants aver that they waited at the gate until 09h45 hoping to see members of the National Disciplinary Committee of Appeal who would facilitate their entry into the complex. No such members appeared and applicants then returned home. Later that day, at approximately 17h00, Mr. Sonamzi informed them that he had just been told by Mr. Sishuba that the venue for the appeal hearing had been changed to the Holiday Inn Garden Court Hotel at East London and that the hearing had continued in the absence of the applicants.

In the founding affidavit to the MEC application Ms. Majodina confirms that applicants were notified that the appeal would be heard at Bhisho at 9am on 20 June. She states further, in explanation of the decision to move the hearing to East London, that in terms of the ANC Constitution in relation to appeals no new evidence may be presented or considered on appeal except in exceptional circumstances. The National Disciplinary Committee of Appeal is required to make a finding based on the facts and to confirm, vary or amend the ruling and sanction imposed by the Provincial Disciplinary Committee. She avers that absent any application by applicants to lead evidence on appeal the National

Disciplinary Committee of Appeal considered it convenient to meet at East London. In her answering affidavit in the Ntongana application she enlarges on this explanation. She states that Abrahamse, the Chief National Presenter charged with attending to the appeal, had advised her that applicants were required to indicate by no later than 16 June 2009 whether or not they intended to be present at the appeal hearing. Abrahamse told her that none of the applicants had indicated that they wished to attend. That being the case it was decided it would be more convenient to hold the appeal in East London since members of the appeal committee were required to fly to East London from outside the province.

It is noteworthy that according to Majodina the applicants had to advise Abrahamse by 16 June 2009 whether they intended to attend the appeal hearing whereas the memorandum (Exhibit J) refers to 18 June 2009. Applicants were in any event only informed of the time and place of the appeal on 17 June 2009.

With regard to the events at Bhisho Ms. Majodina states that “as an extra precaution” and “against the event that any of the applicants wished to attend the hearing” it was decided that she would “position” herself in the caucus room at the Bhisho Legislature buildings from 09h00 “to redirect” Sonamzi and the applicants should they arrive. The police guard contingent at the Legislature under one Captain Sofuthe were also advised to be on the look-out for applicants and Sonamzi and to “redirect” them to the Holiday Inn in East London. She waited in the caucus room until 10h00 but no one arrived. She states that her enquiries revealed that no one had arrived at the Legislature buildings. No affidavit in this regard has been filed by Captain Sofuthe or any other member of the police guard to confirm this statement.

As to the applicants’ allegations that Sishuba had contacted Sonamzi to tell him that the venue had been changed, Sishuba states that he in fact did so by cellphone at approximately 10h00 and “in any event before the appeal commenced”. Sishuba states further that Sonamzi told him that he and applicants would travel to East London to attend the appeal hearing, but nothing further was heard from them. According to Sishuba, Sonamzi also spoke to Abrahamse. Applicants, however, deny that Sonamzi spoke to Abrahamse. Abrahamse himself does not say that he spoke to Sonamzi. He states that at approximately 10h00 his personal assistant telephoned Sonamzi to enquire as to his and applicants’ whereabouts. Whether or not the personal assistant managed to speak to Sonamzi is not stated neither has an affidavit by the personal assistant been filed.

Applicants state further, as is confirmed by Sonamzi, that, by the time Sishuba spoke to Sonamzi, the applicants had already left Bhisho. They aver that Sonamzi told Sishuba he would endeavour to contact the applicants to advise them accordingly. When he could not contact first applicant he called Sishuba to advise him of this.

In the founding affidavit in the MEC application Ms. Majodina had stated that the appeal was considered by the National Disciplinary Committee of Appeal during the morning of 20 June 2009. In her replying affidavit, however, she states that this was incorrect and that she had corrected that mistake in her answering affidavit in the Ntongana application. I interpose to state, however, that no such correction appears from that affidavit.

Ms. Majodina then states that the “true facts” apparent from that affidavit as read with the affidavits of Sishuba and Abrahamse are that the hearing of the appeal commenced after 14h00 on 20 June 2009 by which time she had travelled to East London and reported to Abrahamse. Sishuba makes no mention of the appeal hearing having only commenced at 14h00. In his affidavit in the Ntongana application, attested to on 24 July 2009, Abrahamse states that after Sonamzi had undertaken to contact the applicants and to travel to East London he reported this to the National Disciplinary Committee of Appeal and the appeal stood down. He states that he eventually presented the appeal to the Committee after 14h00 by which time neither Sonamzi nor any of the applicants were present and by which time Ms. Majodina had already made a report concerning the events at Bhisho.

These averments by Abrahamse as to the time of the hearing of the appeal are in stark contradiction to the averments made by him in his affidavit in the MEC application which affidavit was attested to by him on 14 July 2009. There he states as follows:

“The appeal commenced at 10h00. I presented argument to the Appeal Committee. None of the first to fifteenth respondents were in attendance nor were they represented. I addressed the Committee on the merits of the appeal and supported the judgment and findings of the Provincial Disciplinary Committee. At the conclusion of my address the Appeal Committee conferred and decided to uphold the findings and sanction imposed by the Disciplinary Committee. The Appeal Committee made an announcement to this effect and undertook to furnish written reasons in due course. The proceedings were concluded by approximately 11h00.”

Confronted with these irreconcilable affidavits Mr. Quinn submitted that the averments in the affidavit of 14 July 2009 were obviously made in error. In my view the contradictions cannot so cursorily be dismissed. Abrahamse is an attorney and therefore an officer of this Court. He of all people must be acutely aware of the importance of averments made in affidavits being correct in all respects. The highest standard of integrity is expected of him, a standard which should be impervious to the dictates of political expediency. The contradictions between his two affidavits are of such a nature as to lead to the inference that the facts alleged in one or other of them are false. Either the hearing commenced at 10h00 and was concluded by 11h00 or it commenced

at 14h00. It could not be both. There is no room for error. There can be no question in these circumstances, where Abrahamse was the Chief National Presenter, of him being mistaken as to the events. It is particularly disturbing that in his later affidavit of 24 July 2009 he does not even refer to his earlier affidavit and attempt to explain how the contradictions arose and to apologise therefor.

In my view, given those contradictions, it is difficult to place any reliance on any allegation made by him.

In terms of the Constitution of the ANC, as amended and adopted at the 52nd National Conference, held at Polokwane in 2007, any person faced with any disciplinary proceedings shall receive due written notice of any hearing and of the basic allegations and charges against him or her and shall be afforded a reasonable opportunity to make his or her defence.

In Klein v Dainfern College and Another 2006 (3) SA 73 (T) the following was stated by Claassen J at 79J – 80A:

“Where one deals with a domestic tribunal created by contract, the elementary principles of natural justice may still be applicable despite the advent of the Constitutional era. It has been stated as far back as 1942 in Jockey Club of South Africa and Others v Feldman 1942 AD 340 at 351 that Courts can interfere in the decision of a domestic tribunal which has disregarded its own rules or the fundamental principles of fairness.”

See too Marlin v Durban Turf Club and Others 1942 AD 112 at 125 – 6; Turner v Jockey Club of South Africa 1974 (3) SA 63 (A).

Counsel for all parties were agreed that the disciplinary code set out in the Constitution of the ANC incorporated the principles of natural justice including, especially, those relating to procedural and substantive fairness. In these circumstances it is not disputed that the applicants are entitled to have the decision of the National Disciplinary Committee of Appeal judicially reviewed.

Although I had mooted with Mr. Quinn, who with Mr. Schuring, appeared for the applicant in the MEC application and certain of the respondents in the Ntongana application, and Mr. Hobbs who appeared for the applicants in the Ntongana application and the first to fifteenth respondents in the MEC application, the desirability of finally determining all the issues which might in due course form the subject matter of the contemplated

review proceedings in the Ntongana application, counsel were eventually ad idem that I deal only with the interim relief sought by those applicants in that so-called “second application”. I will accordingly determine the Ntongana application on this basis.

This being an application for an interim interdict applicants must satisfy me that their rights are prima facie established even if open to some doubt and that:

(i) there is a well-grounded apprehension of irreparable harm to the applicants if the interim relief is not granted and applicants

ultimately succeed in establishing their rights;

(ii) the balance of convenience favours them; and

(iii) they have no other satisfactory remedy.

In the view that I take of this matter it is necessary to deal with only one of the alleged grounds of procedural unfairness raised by the applicants.

This relates to the issue of the alleged failure to notify the applicants of the time, date and place of the contemplated appeal

hearings.

At the outset, the hearsay allegation that first respondent had advised Sonamzi of the change of the change of venue can be rejected. Apart from its hearsay nature it is utterly improbable that if Sonamzi had been so advised he would have proceeded instead on a futile mission to Bhisho. Furthermore, there would in that event have been no reason for Sishuba to have telephoned Sonamzi at 10h00 to advise him that the venue had changed. This averment by Abrahamse is, in my view, disingenuous in the extreme.

The averments by Majodina as to her “positioning” herself in the Bhisho caucus room “as an extra precaution” and “against the event that any of the applicants wished to attend the hearing” do not assist respondents. No affidavit has been filed by any member of the police guard in respect of her allegation that the applicants did not arrive at the Legislature complex for the hearing. She herself was closeted in the caucus room. If the applicants had indeed been advised of the change in venue her presence at Bhisho was entirely unnecessary.

On the papers before me it must be accepted that applicants did arrive there for the hearing at 09h00 and that they eventually left at approximately 09h45 before Sonamzi had been contacted by Sishuba. Sishuba only contacted Sonamzi at approximately 10h00 at which time, according to Abrahamse’s first affidavit, the appeal hearing had already commenced.

Even if the appeal hearing did only commence at 14h00 the averments of applicants that Sonamzi only managed to contact them later that afternoon cannot be gainsaid.

In the event it is clear on these papers that the convenience of the members of the National Disciplinary Committee of Appeal was placed above the rights of applicants and that, in consequence thereof, their right to attend the appeal hearing was flouted. In this regard, the averments by Majodina and Sishuba that it was more convenient to hold the appeal hearing in East London because no new evidence could be led on appeal are illogical and nonsensical and an ex post facto attempt to justify the last minute change of venue. If applicants are able to establish in the review proceedings that they received no notice of the change in venue then it follows, in my view, that they must have reasonable prospects of success in those proceedings.

Mr. Quinn submitted, however, as he had done in the matter of Jafta and Others v the Chairperson: The National Disciplinary Committee of Appeal of the African National Congress and Others case no 2765/2009, which was heard before me together with this matter, that the issue as to whether applicants had indeed had proper notice of the change of venue should be referred to oral evidence. For the same reasons as set out by me in that judgment his submissions cannot be sustained. Nor, for similar reasons, is there in my view any merit in his submissions concerning the balance of convenience. As he had done in the Jafta application Mr. Quinn submitted further that applicants had suffered no prejudice in any event because they had “boycotted” the Provincial Disciplinary hearing. In my view, however, as in the Jafta application, it would have been open to applicants to argue on appeal, for instance, that the Provincial Disciplinary Committee had erred in not granting them a postponement in order for them to obtain representation after having been let down at short notice by Sonamzi. The principles as set out by me in the Jafta application are also of application to the instant case. As in that application the balance of convenience clearly favours the present applicants.

In my view therefore the applicants have established the prerequisites for an interim interdict.

Counsel were agreed that, in such event, the application by the MEC fell to be dismissed, premised as it was upon the expulsion of the applicants from the ANC. Counsel were further agreed, however, that the costs of such application should be reserved for decision at the hearing of the review application. The outcome of that application may have a bearing on the issue of the costs in the MEC application. The costs of the hearing before me on 29 October 2009 rest on a different footing, however. The MEC made

common cause with the opposition to the interim relief. There is, in my view, no reason why he should not have to pay the costs of 29 October 2009 jointly and severally with those respondents in the Ntongana application who also opposed the granting of that relief.

Rule 25.9(b) of the ANC Constitution provides that where a disciplinary committee arrives at its decision to suspend or expel a local government councillor such decision shall be suspended pending the outcome of the automatic appeal to the National Disciplinary Committee of Appeal. Such being the case counsel were further agreed that in the event of applicants establishing that they were entitled to interim relief their expulsion from the ANC would be suspended until such time as the appeal had finally been determined

and that they would accordingly be entitled to be reinstated as councillors of the fifth respondent.

One further matter remains. Despite it having been agreed that the appeal of fourth applicant be postponed because of a bereavement, she was also expelled by the National Disciplinary Committee of Appeal. Accordingly, at the conclusion of argument on 29 October 2009 I made an order by agreement setting aside such expulsion pending her appeal.

Finally, as to costs, counsel were agreed that all the costs previously reserved would remain reserved for decision at the review application save and except for the costs relating to the postponement of case no 2743/09 on 6 August 2009. Mr. Hobbs did not contend that the councillors were not liable to pay those costs.

Accordingly the following order is made in Case no 2743/2009:

1. Pending the finalisation of the application to review and set aside the decision of the National Disciplinary Committee of Appeal

of the African National Congress taken on 20 June 2009 confirming the expulsion of the applicants from the African National Congress, the expulsion of the applicants from the African National Congress is set aside and applicants are reinstated as councillors of the fifth respondent with all emoluments due to them by virtue of their councillorship.

2. The costs of the application for interim relief on 29 October 2009 shall be paid by first respondent, second respondent and seventh respondent, jointly and severally, the one paying the others to be absolved.

In case no 2794/2009 the following order shall issue:

1. The application is dismissed.

2. The applicant is ordered to pay the costs of the first to fifteenth respondents in respect of the hearing on 29 October 2009.

3. The remaining costs of the application are reserved for decision at the hearing of the review application referred to in case no 2743/2009 save for the wasted costs occasioned by the postponement of the matter on 6 August 2009 which shall be paid by the applicants jointly and severally, the one paying the others to be absolved.

___

J.D. PICKERING

JUDGE OF THE HIGH COURT