IN THE NORTH WEST HIGH COURT , MAFIKENG

REPUBLIC OF SOUTH AFRICA CASE NO. 173/2011

In the matter between:

LUCAS MANYANE MANGOPE - APPLICANT

and

THE UNITED CHRISTIAN DEMOCRATIC PARTY - FIRST RESPONDENT

ISAAC SIPHO MFUNDISI - SECOND RESPONDENT

PEMLA MOTSHIDISI MOTSUEYANE - THIRD RESPONDENT

RESPONDENTS HEADS OF ARGUMENT

A INTRODUCTION

1 This application is the sequel to the judgment of this Court on 17 May 2012 per Gutta J, in which the expulsion of the applicant from the first respondent on 7 January 2011 was set aside. The application for leave to appeal was dismissed as was an application to the Supreme Court of Appeal for leave to appeal.

2 The Order granted by Gutta J on 17 May 2012 reads as follows.

“In the circumstances, I grant the following order:

a) The decision of the Federal Council of the respondent (the first respondent herein) on 07 January 2011 to terminate the applicant’s membership of the respondent is reviewed and set aside.

b) The respondent (the first respondent herein) is ordered to pay the costs of the application.”

3 In the relevant part of the notice of motion which gave rise to the said order, the relief claimed by the applicant was that the first respondent (which was the only respondent cited therein) should “show cause why the decision of the purported Federal Council of the Respondent of 7 January 2011 to terminate the Applicant’s membership of the Respondent should not be reviewed and set aside.” This was the only relevant relief sought.

4 The matter now before this Court is based on the allegation that the second and third respondents, respectively the leader and a secretary in the first respondent are in contempt of the order cited above and should be committed (to jail) in that, prior to the expulsion of the applicant he was the leader of the first respondent, as leader he represented the first respondent in the North West Legislature and on 24 January 2013, after the dismissal of the application to the SCA, he attended at the offices of the first respondent and was impeded and confronted by the third respondent para 6 of the founding affidavit, P8-9, dated 24 February 2013.

5 The applicant’s leadership of the first respondent has been in dispute for a considerable time, see paras, 8.4 to 8.7 of the first respondent’s answering affidavit, P46-47 and annexures AA2 and AA3,P55-58, and AA8 and AA9, P70-72 thereto, as a result of the fact that no Federal Congress of the first respondent has been called since 1997, and in terms of the first respondents constitution, a leader’s term of office lasts three years and it is only the Federal Congress that can elect a new leader. This is common cause. The applicant relies on the acquiescence of the members of the first respondent in not calling a federal congress until 29 January 2011 for his continued leadership and the delivery of forms by the first respondent to the IEC stating he is the leader. There is no merit in either.

6 However, in addition and it is submitted what is fatal to the applicant’s case, is that the relief sought by the applicant cited in paragraph A3 above was part B of the notice of motion, and in part A the applicant sought an order interdicting the holding of the federal congress of the first respondent on 29 January 2011. This application was heard late on the night of 28 January 2011 and was dismissed with costs. See para 8.8, P47, of the first respondents answering affidavit. One of the main purposes of the federal congress was to elect new leadership as stated by the applicant in that application. Thus in dismissing the interdict application, the Court gave judicial approval to the holding of the meeting and the business to be conducted thereat, which included the election of new leadership.

7 The respondent raised a number of points in limine which will be dealt with hereunder. The first and fourth points in limine were urgency which has partially fallen away but will be dealt with in section B

B FIRST AND SECOND POINTS IN LIMINE

1 The notice of motion of the relief being claimed now bears the Registrars stamp dated 25 February 2013, P1, but the case number is that of case 173/11 which was issued on 27 January 2011. This is a breach of the rules of this Court.

2 The applicant has created the situation that there are now two notices of motion in this matter. There is no provision for this in the rules.

3 If the applicant had wanted to bring this relief he now seeks under case number 173/11, he should have applied to Court to amend the original notice of motion which he has not done. The relief the applicant now seeks is not properly before the Court.

4 The applicant plays fast and loose with the rules of this Court and the application should be dismissed with costs on the attorney and own client scale.

5 The application was set down for hearing on 22 March 2013 without a prayer that it be dealt with as a matter of urgency, and without any allegation being made justifying a hearing as a matter of urgency, para 2.2, P39.

6 Objectively the matter was not urgent, para 2.5, P40.

C THIRD POINT IN LIMINE - MISJOINDER

1 The only respondent in case 173/11 as originally brought was the first respondent herein.

2 The applicant has just inserted both the second and third respondents as parties, and what is more has called on this Court to commit only them to jail for contempt of Court, para 4, P41/2.

3 The informal joinder of the second and third respondents is unlawful. None of the terms of rule 10 of the rules of this Court have been complied with. Thus the application against the second and third respondents is unlawful and neither of them are before the Court. This is fatal to the application and on this ground alone the application should be dismissed with costs.

4 The only relief sought against the first respondent is that it should pay the costs of the application. In the light of what is said in all three points in limine but especially this one there are no grounds on which the first respondent can be liable for the costs hereof.

5 The application should be dismissed with costs on the attorney and own client scale.

D THE MERITS

1 In FAKIE NO v CCII SYSTEMS (PTY) LTD 2006 (4) SA 326 (SCA) The SCA held

[9] The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed 'deliberately and mala fide'. A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe him or herself entitled to act in the way claimed to constitute the contempt. In such a case, good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith).

[10] These requirements - that the refusal to obey should be both wilful and mala fide, and that unreasonable non-compliance, provided it is bona fide, does not constitute contempt - accord with the broader definition of the crime, of which non-compliance with civil orders is a manifestation. They show that the offence is committed not by mere disregard of a court order, but by the deliberate and intentional violation of the court's dignity, repute or authority that this evinces. Honest belief that non-compliance is justified or proper is incompatible with that intent.

2 In the event that this Court decides the matter must proceed notwithstanding the points in limine, it is against this citation which is the law on contempt of Court, that it must be determined whether the second and third respondents have acted in contempt of the order of Gutta J. It is submitted that on the uncontroverted facts this has not occurred.

3 The fact of dispute of the applicant’s leadership of the first respondent, which goes back to case 2596/10 which was heard by Gumbo AJ on 4 November 2010, judgment having been handed down on 24 November 2010, and features prominently in the correspondence being annexures AA2, AA3, AA4, AA9, AA11 and AA13, makes it abundantly clear that a Court cannot hold any of the respondents in contempt of the order of Gutta J.

4 This puts an end to the applicant’s case.

5 The authority cited by the applicants in his heads of GAUTENG GAMBLING BOARD ABD ANOTHER V MEC FOR ECONOMIC DEVELOPMENT GAUTENG PROVINCIAL GOVERMENT is clearly distinguishable on the fundamental issue of leadership for two reasons.

6 Firstly in the GAMBLING BOARD CASE there was no dispute as to who the leadership of the board was, nor of the legality of the appointment thereof, before it was unlawfully dismissed by the MEC. In casu there was a long standing dispute as to the applicant’s leadership, and the applicant has shied away from approaching any Court to rule thereon.

7 IN CASU the applicant does not rely on election or anything else to be the leader but only on what is set out in paragraph A4 above. And this is all he says in his founding affidavit in the face of the prior correspondence mentioned above.

8 In PLASCON EVANS the Court held, in agreement with prior cases, that in applications where final relief is sought, the version of the respondent must be preferred by a Court, except where that version is clearly capable of rejection. In casu the respondent’s version is not clearly capable of rejection and must be preferred. Indeed it is submitted that the respondent’s version is clearly correct.

9 Implicit in the GAMBLING BOARD case is that the leadership before the removal must have been lawful. The uncontested version of the respondents that the lawful leadership of the applicant terminated in 2000, means that if effect is given to the said case it will mean that the Court is giving effect to an illegality. See paragraph 10.3 of the applicants replying affidavit. No Court can do this in post 1994 South Africa, where legality is the foundation of all judicial decisions.

10 The second reason why the GAUTENG GAMBLING BOARD CASE is distinguishable on the issue on leadership is that, as stated in paragraph A4, on 28 January 2011 this Court gave judicial sanction to the holding by the first respondent of the Federal Congress the next day. The Court was aware that one of the items of business was the election of new leadership and by permitting the Federal Congress to proceed the Court gave its approval to the election and the taking of office of new leaders.

11 The respondents refer to the last paragraph of the applicant’s heads, and particularly the second sentence thereof. The letter dated 24 January 2013 shows only that, as had been the case for over 2 years before then, the respondents disputed the leadership of the applicant.

12 In all the circumstances the second and third respondents cannot be guilty of contempt of the order of Gutta J and the application should be dismissed with costs.

13 As far as the costs are concerned, the applicant has pursued this application in a manner contrary to the rules of Court, he has made no attempt to rectify the position and he has ignored the illegality of his claim to leadership of the first respondent, which is the bedrock of his allegations. In the circumstances the costs should be awarded against the applicant on the scale as between attorney and own client.

Dated at Johannesburg on 24 July 2013

H.S. Eiser

Admitted in terms of Act 62 of 1995.