CONSTITUTION

Facts and issue: Application for an extension of the period of suspension of the declaration of invalidity, following the court’s decision in Women’s Legal Centre Trust v President of the Republic of South Africa [2022] ZACC 23. The court handed down an order that declared the Marriage Act 25 of 1961 and the Divorce Act 70 of 1979 inconsistent with sections 9, 10, 28 and 34 of the Constitution, in that they fail to recognise marriages solemnised in accordance with Sharia law (Muslim marriages). The court also declared sections 6, 7(3) and 9(1) of the Divorce Act inconsistent with the Constitution.

Discussion: Parliament submitted that the reason for the extension sought is to ensure that there is meaningful public engagement in respect of the Marriage Bill, in accordance with sections 59(1)(a) and 72(1)(a) of the Constitution. It also submitted that it is just and equitable for the extension to be granted, to allow Parliament to cure the constitutional defects. Parliament has sufficiently indicated the steps that have been taken, and the timelines cannot be faulted. Parliament has also managed to comply with the order in relation to the Divorce Amendment Act. It is worth noting that the first respondent, who was the applicant in the initial judgment, did not oppose this urgent application, nor did any of the other parties. Additionally, Parliament has implemented temporary measures to regulate affected marriages while the Bill undergoes the prescribed legislative process. This suggests that there will be no prejudice suffered.

Findings: Parliament has sufficiently explained the adverse implications of not granting an extension on its constitutional obligations to provide a meaningful platform for public participation. The Constitution recognises participatory democracy as a vital element of South Africa’s democracy. In the new term, Parliament will comprise new members. Some of them will require time to familiarise themselves with the Parliamentary rules and procedures governing the law-making processes as well as with the subject matter of the Bill, considering its complexity in as far as the laws governing various traditional and religious faiths are concerned. It is just and equitable, and in the interests of justice, for the extension to be granted.

Order: The extension is granted.

Facts and issue: The applicants seek that the matter be heard on an urgent basis and that an order be made prohibiting the MK party from putting forward candidates before the Speaker of National Assembly to replace the applicants’ membership of the National Assembly pending the outcome of the review application and further relief. The prima facie right relied upon by the applicants is stated to be the constitutional rights mentioned in the review application, which include but are not limited to just administrative action.

Discussion: The applicants were among the people affected by the process of cleansing the lists of improperly included individuals either because of their non-membership, irregular inclusion, lack of the requisite skills and/or replacement with more suitable members of the MK party. In the exercise of his powers Mr Zuma states that he determined that the applicants and others must lose their membership of the party and consequently their membership of the National Assembly and that their challenge to the lawfulness of their loss of membership is meritless. The expulsions, stated Mr Zuma, were lawful and valid. None of the applicants in the urgent application have alleged that they are a member of the MK party, with nothing put up to prove any such membership. If such membership existed, it has been lawfully terminated because of the applicants’ defiance of the order not to attend the first sitting of Parliament, the failure to attend the swearing-in and the defiance of the instruction not to attend the swearing-in ceremony. The applicants claim that they are Members of Parliament is thus disputed.

Findings: The applicants have filed to show the existence of a prima facie right worthy of protection. Given the paucity of relevant material averments set out in their papers, they have not established a reasonable apprehension of irreparable harm, nor that no alternative remedy is available to them or that the balance of convenience is in their favour. In such circumstances, with the requirements for the grant of an interim interdict not met, the application cannot be granted, and it consequently falls to be dismissed.

Order: The application is dismissed with costs.

Facts: The Human Rights Commission (SAHRC) received a complaint on behalf of occupiers of a farm that Mr Boshoff unilaterally introduced restrictions to their use of water on the farm and deprived them of access to the borehole water. An investigation ensued and the SAHRC made findings and directives, including that the supply of borehole water be restored. On later visits to the farm, the SAHRC discovered that the directives had not been complied with. The respondents’ disregard of its directives prompted the SAHRC to launch an application to the High Court where it sought that it be declared that its directives issued in terms of section 184(2)(b) of the Constitution are binding. The application for declaratory relief was dismissed.

Appeal: The issue central to the appeal is whether the SAHRC may issue binding directives in terms of section 184(2)(b) of the Constitution read with section 13(3) of the South African Human Rights Commission Act 40 of 2013 (SAHRC Act). Differently stated, can a respondent against whom the directives are issued by the SAHRC simply ignore them, without resorting to a court of law to review the SAHRC’s decision.

Discussion: The provisions of section 184(2)(a) empower the SAHRC to investigate and report on the observance of human rights. This means that it is endowed, not only with the role of a watchdog, but also has the power to conduct research and education about human rights. The question which then arises is whether section 184(2)(b), read holistically, accords it the powers similar to those of the Public Protector (PP). The use of the words “to take steps to secure” give an unambiguous direction to the SAHRC to secure assistance for the aggrieved person or persons. To obtain a legal remedy means that one must seek recourse through appropriate judicial channels. The language used in section 184(2)(b) is exclusive to the SAHRC only. It is different from the wording used in the Constitution in relation to the powers of the PP, which directs the PP “to take appropriate remedial action”.

Findings: Section 13(3)(a) the SAHRC Act requires the SAHRC to conduct an investigation and, after due investigation, to form an opinion that there is substance in any complaint made to it. Thereafter, it must, in so far as it is able to do so, assist the complainant and other persons adversely affected thereby, to secure redress. The language used in section 13(3)(a) and (b) does not intimate that the drafters of the legislation intended that the SAHRC issue binding directives. The court is fully aware of the resource limitations that the SAHRC faces. The lack of financial resources does not constitute a valid justifiable reason to clothe it with binding remedial powers. Although Chapter 9 institutions were established to bolster our constitutional democracy, it does not necessarily imply that they all possess binding remedial powers. They fulfil distinct mandates and have effective ways of fulfilling their purpose, as provided by the Constitution. The SAHRC has no powers to make binding directives. It must therefore follow that the High Court's order must be confirmed.

Order: The appeal is dismissed with no order as to costs.

MBATHA JA (MOCUMIE JA, MOTHLE JA, MABINDLA-BOQWANA JA and TOLMAY AJA concurring)

Facts and issue: The applicants seek to vindicate the right of the learners of the schools to basic education in a safe and appropriate learning environment. They allege that the ECDOE has failed to address the pervading problem of overcrowding in classrooms utilizing its Infrastructure Norms and Plans and by proving adequate infrastructure, thus making the learning environment at the applicant schools inconducive. The applicants seek review and systemic relief against the respondents.

Discussion: While admitting the overcrowding of classrooms at not only the schools identified by the applicants but many other schools across the Eastern Cape Province together with their appalling effects, the ECDOE opposes the grant of the systemic relief. The ECDOE provides an outline of the progress it had made in addressing and providing appropriate infrastructure at the applicant schools. In keeping with its acknowledgment of the fact that the problem of overcrowding in the already mentioned schools across the four education districts still persists, Mr Quinn submitted that the ECDOE is amenable to submitting to the Legal Resources Centre, a report on schools that do not form part of the ECDOE’s Infrastructural Delivery Plan and the steps the ECDOE intends taking in addressing the overcrowding at the schools contained in the list is provided.

Findings: The concessions that the ECDOE has made indicate that there is no misconception on the part of its responsible actors pertaining to what the society of the schools in the Eastern Cape Province requires of the ECDOE. The ECDOE would, through the report that it offered to provide to the applicants’ legal representatives, make known to the affected public which the applicant schools represent, its ongoing plans in implementing its Infrastructure Delivery Plan pertaining to the schools contained in the list which are still overcrowded. The applicant schools and those other schools in whose interest they act will, in turn, be able to raise their concerns with the ECDOE’s report, when provided, at the government level and, if necessary, assert their rights through litigation. The court is not persuaded that it is necessary to retain supervisory jurisdiction over the matter as contemplated by the applicants in the remaining portion of the systemic relief.

Order: The court’s supervisory jurisdiction over the Eastern Cape Department of Education’s implementation of its Infrastructure Delivery Plan is refused.

Facts: The President of the Republic was required to present his State of the Nation (SONA) address. As the President began his SONA address, various members of the Economic Freedom Fighters (EFF) raised points of order which the Speaker of Parliament rejected as “being spurious”. She ordered the members of the EFF to cease doing so. When these members persisted in their conduct, the Speaker ordered them to exit the House. As all the parliamentary representatives of the EFF were about to leave the House, six members thereof, being the applicants, alighted the stage. The security forces and the Parliamentary Protection Services moved onto the stage to remove the applicants from the House. The applicants were charged with misconduct. The Power and Privileges Committee informed the applicants that they were charged with contempt. The committee resolved to recommend a sanction to the effect that the applicants apologise to the Speaker, the President and the people of South Africa and further that the applicants be suspended for a month without a month’s salary. The National Assembly, by a majority vote, resolved to adopt the recommended sanctions of the Committee.

Review: The relief sought by the applicants can be divided into two parts being a constitutional attack on National Assembly Rule 214 and the Schedule together with the argument that section 12(5) of the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act 4 of 2004 is unlawful and unconstitutional in that it fails to provide such guidelines for the impositions of sanctions on a member of Parliament and secondly that the decisions and actions of the Committee which applied to applicants and subsequently the confirmation thereof by National Assembly were unconstitutional, unlawful and invalid.

Discussion: The central question is to what extent Parliament is entitled to decide whether a member of Parliament is in contempt of Parliament or whether that power should be circumscribed to ensure the introduction of an independent third party to play an investigating role in the determination of whether a member of Parliament is in contempt of Parliament. The context of the broad thrust of applicants’ case is that the National Assembly voted on the issue. This decision inevitably reflected the representation of the members of the National Assembly. The notion that somehow the entire process is tainted through bias cannot possibly be extended to the argument that the ultimate decision as to whether to discipline a Member of Parliament rests with the members of the House, most of whom are political opponents of the applicants. The only argument that was raised to gainsay this majoritarian principle was that the committee should have been staffed by an independent fact finder. Once that argument was no longer plausible, the balance of the allegations regarding how members of Parliament might comport themselves became irrelevant. The ultimate obligation upon a member of the National Assembly is fidelity to the Constitution as opposed to loyalty to a political party. That is the duty which should govern each member who happens to sit on the Committee, in the execution of his or her duty.

Findings: The Committee’s process, and conduct was not unlawful; there is no merit in this submission. Parliament exercises the ultimate power to discipline members. Applicants’ counsel correctly conceded the priority of this principle. Once, as it must be accepted, that Parliament in terms of the Privileges Act, which is sourced in section 57 of the Constitution, has the power to vindicate this authority over members of Parliament, there is no basis by which to find that an independent third party should be involved in this process. All powers including those given to Parliament are sourced in the Constitution. But there must be circumspection exercised in exercising a review over powers granted to Parliament. The structure by which members of the House should be disciplined clearly falls within the competent powers of Parliament. Given the manner in which the case was pleaded by the applicants and in particular that no challenge was lodged against the merits of the conviction, the entire basis of the review was predicated on procedural grounds, all of which stand to be dismissed either on the basis of absence of legal justification or the very conduct of applicants, particularly with regard to the argument of a postponement in respect of the imposition of a recommended sanction.

Order: The application is dismissed.

DAVIS J

Facts and issue: This application concerns delays experienced by learners when applying to be placed in public schools that offer basic education. The case for the applicants is that these delays constitute a violation of the constitutional rights of the concerned learners, and particularly the right to education as contained in section 29(1)(a) of the Constitution of the Republic of South Africa, 1996 (Constitution) which provides that ‘Everyone has the right to a basic education, including adult basic education’. The applicants seek an urgent mandatory interdict directing the respondents to place in public schools any unplaced late applicants.

Discussion: The respondents advanced no cogent reasons why the continued violation of the learners’ constitutional rights does not justify the hearing of the matter on the urgent roll. The respondents conceded that the applicants have established the first requirement for a final interdict, that is, a clear right. They, however, contended that at no stage have they failed to fulfil their obligation to place the learners at schools and that where they have not been able to place the learners, it was in circumstances where they were not in possession of information or documents, which information they had requested from EELC. Regarding the irreparable harm to be suffered by unplaced learners, the submission on behalf of the applicants was that the violation of the right to basic education of those learners who remained unplaced was ongoing and that absent the intervention of the court, the right to education of unplaced learners would continue to be violated.

Findings: The attitude adopted by the respondents, and particularly the first respondent, is at odds with the responsibility that section 3 (5) of the Schools Act places on him, and which responsibility can only be regarded as one of the means by which the right to basic education can be given effect to. To be content with learners sitting at home because of outstanding documentation or information is a clear violation of the concerned learners’ right to basic education. The applicants have established the second requirement for a final interdict, namely, an injury committed. That being the case, it is not necessary for them to also establish the reasonable apprehension of injury, particularly in these circumstances where the violation of the learners’ rights is ongoing.

Order: The respondents are ordered to place all unplaced learners within ten days from the date of this order.

Facts: The National Health Act 61 of 2003 (NHA) commenced on 2 May 2005 with the exception of a number of sections which were yet to be proclaimed. Included in those sections that were yet to be proclaimed are sections 36 to 40 which form the subject matter of the present proceedings. Broadly speaking, the Certificate of Need (CON) scheme requires both healthcare service providers and facilities which offer healthcare services (by healthcare service providers) to apply for a certificate of need for the place where they wish to render services. The CON scheme is not aimed at regulating how services are rendered but rather the place where they are to be rendered. Besides applying to all new entrants to the market in a particular area, the CON scheme places a time limit on any certificate that may be granted of a period for up to 20 years. After 20 years, an application for renewal must be submitted. Through the issuing of certificates of need, the number of both healthcare practitioners and facilities such as hospitals or private medical practices which are permitted by law to operate within a particular area can be limited. The scheme criminalizes the provision of healthcare services in a particular area or the operation of a facility if a certificate of need has not been issued.

Application: The applicants challenge the constitutionality of the Certificate of Need (CON) scheme introduced in sections 36 to 40 of the National Health Act 61 of 2003. The applicants seek an order declaring that those sections are unconstitutional and invalid in their entirety and ought to be severed from the NHA.

Discussion: On 31 March 2014, sections 36 to 40 were proclaimed to be operative as from 1 April 2014. This proclamation was subsequently set aside in President of the Republic of South Africa and Others v South African Dental Association and Another 2015 (4) BCLR 388 (CC). Accordingly, the CON scheme is, without the necessary regulations, inchoate. Until there are regulations, the CON scheme can never become operative. Besides criminalizing the provision of “prescribed health services” in the absence of a certificate, the owner of a private healthcare establishment, healthcare provider or worker who does so, may be liable on conviction to a fine or to imprisonment for a period of up to five years or both. There is no definition of “prescribed health services” and so the CON scheme may operate as widely or as narrowly as regulations (which have not yet been conceived) may determine. The scheme is silent on the extant rights of both the owners of private health establishments, private healthcare service providers and private healthcare workers. Such extant rights include their integration and professional reputations in the communities which they presently serve together with the significant financial investments and commitments made by them to be able to render the services that they do.

Findings: The CON scheme is procedurally unfair. The scheme in its entirety makes no provision for those affected by it to make any substantive representations before a decision is taken by the D-G that could lead to the deprivation of their property rights. Any deprivation of property rights or limitation of the rights of any private healthcare provider, which occurs in consequence of the CON scheme, is irrational since there is no connection between the objects of the NHA, the provisions of the scheme and the consequence of its implementation. The scheme violates section 25(2) of the Constitution. The NHA does not provide a mechanism for providing affected parties with just and equitable compensation for the use of their resources. Objectively, the CON scheme is not rational. There is no nexus between the scheme and its implementation and the purpose for which it was enacted. The appropriate remedy is to severe sections 36 to 40 of the NHA from the Act.

Order: It is declared that sections 36 to 40 of the National Health Act 61 of 2003 are invalid in their entirety and are consequently severed from the Act.

MILLAR J

Facts and issue: Application concerning the limited issue of the jurisdiction of this court in determining the applicant’s complaints. In essence, the applicant contends for unfair discrimination in that he was unfairly discriminated against by the criminal justice system on two grounds, namely: that he was discriminated against because he was unable to properly communicate in his language from the time of his arrests until the criminal convictions were returned against him and, that this discrimination also manifested based on his nationality.

Discussion: No parallel proceedings are pending in the high court. When the court determines a matter following the equality legislation (with no parallel proceedings pending), it cannot also sit as an ordinary high court. No pending proceedings can be conveniently consolidated. The applicant's only complaint that may attract the jurisdiction of this court is the allegation that he was unfairly discriminated against based on race, ethnicity, and language. The applicant still needs to set up an evidential basis for these averments. It must be so that allegations that lack specificity do not equate to establishing a prima facie case against the respondents. Thus, the alleged acts of unfair discrimination do not attract this court’s jurisdiction. The applicant failed to comply with the mandatory notices, and his claim for damages is stillborn. This is because the respondents have not consented in writing to the institution of the legal proceedings without such notice having been given by the applicant. The applicant has not adequately engaged with or given a judicially acceptable reason why he did not comply with this legislation and the reason why they did not provide this statutory notice.

Findings and order: The application is dismissed.

Facts: The application has its genesis in statements that were made by Mr Reddy and Mr Khanyile. The Commission received a complaint which had been lodged on behalf of the ANC KwaZulu-Natal. In broad terms, the complaint was that the statements concerned pose a threat to a successful election. It was contended that the statements amount to the incitement of violence and unlawful conduct and are in contravention of the Code of Conduct. MK has nominated Mr Reddy as one of its candidates for the national election scheduled. He made the following statement whilst being interviewed by a journalist: “It’s not the same; you don’t have a trademark on this MK logo. So what gives you the right to claim that MK belongs to you. You got no chance in court. But, we are sending a loud and clear message that if these courts, which are sometimes captured, if they stop MK, there will be anarchy in this country. There will be riots like you’ve never seen in this country. There will be no election. No South African will go to the polls if MK is not on the ballot”. A video recording of Mr Reddy’s statement was widely published and distributed on social media. The video was viewed by 138,000 people.

Application: The application was instituted by the Commission, a month after the completion of an investigation. It seeks a declarator in respect of the alleged contraventions of sections 87(1)(a)–(c), 87(2) and 93 of the Electoral Act 73 of 1998, the disqualification of the candidature of Mr Reddy, and penalising the first and second respondents with a fine of R200,000 each, alternatively that they each be given a formal warning.

Discussion: The meaning to be attributed to the impugned statements must be considered in the context of section 16 of the Constitution, which guarantees the right to freedom of expression. An analysis of the statements made, objectively viewed, most certainly leaves the reader with the conclusion that, if their demands are not met, harm will ensue and there will be no election. Various threats appear in these statements and such threats of violence are neither worthy, nor deserving, of protection in terms of our Constitution. There can be no doubt that, viewed objectively, the statements made by Mr Reddy constitute prohibited conduct in terms of section 87 of the Act. They convey serious threats of violence and intimidation. The intimidation was aimed at citizens not to vote. Moreover, these uttered threats also interfered with the work of the Commission, especially the independence of the Commission. The threats were aimed at coercing the Commission and its employees from taking any steps that would prohibit MK from campaigning, even if there was a lawful basis to do so. Assessed in the context of the prohibited conduct in terms of the Act, these constituted contraventions of section 87(1)(a)–(c), and, on a prima facie level, had to hinder the Commission in fulfilling its duties. Undoubtedly, the statements also contravened section 87(2).

Findings: In relation to Mr Khanyile, his statements also contravened section 87(1)(a)-(c) and section 87(2) of the Act. His statements, assessed in the context of when and how they were said, would have been interpreted by a reasonable and informed observer as a threat to prevent the election. He repeatedly stated that if their demands are not met then there will be no election. The statements that were made by both had the potential to create social unrest and instability in the country. In the case of Mr Reddy, it must be borne in mind that he is a candidate of MK and ought to set an example. His disqualification would promote accountability and send out a message that no one is above the law. The transgressions committed by Mr Reddy, given his position within MK, are serious in nature, and inconsistent with the rule of law. The relief sought in relation to the penalties and sanctions of the Act is not only warranted but also appropriate. The conduct of the respondents impacted on a climate of democratic tolerance. The court has been asked by the Commission to impose the maximum fine against both. Having considered the various factors, imposing a maximum penalty of R200,000 would be disproportional, given the fact that Mr Khanyile has already been punished by the MK by removing him from his position as its Youth Leader.

Order: It is found that the respondents contravened sections 87(1)(a), (b) and (c), and 87(2) of the Electoral Act 73 of 1998. The respondents are ordered to pay a fine of R150,000 each, which fine is suspended for a period of five years from the date of this order on the conditions that the two respondents do not contravene the Electoral Act 73 of 1998 during the period of suspension and the two respondents do not make any statements that are intended to undermine the integrity of any electoral process during the period of suspension.

STEYN AJ (ZONDI JA, ADAMS AJ and Professor PHOOKO concurring)

Facts: The applicant is homosexual and forms part of the LGBTQ community in Namibia. He is directly impacted by the common law offences of sodomy and unnatural sexual offences which criminalises an act committed in private between two consenting male adults. His decision to start living openly as a gay man came at a personal cost as he continues to experience intolerance and opprobrium. The Constitution guarantees protection against inhuman and degrading treatment, but he is not free to be himself. It is very hard for a homosexual to live in a country where one is supposed to have the freedom to do what one pleases, provided one respects the law, but where sodomy is criminalised. Homosexuals are automatically classified as criminals because for many persons, being a homosexual is equivalent to committing the offence of sodomy.

Application: The applicant challenges the validity of the common law offences of sodomy and unnatural sexual offences, as well as all statutory enactments, which refer to or incorporate these crimes, on six constitutional grounds, namely, that the impugned laws: (a) irrationally and unfairly differentiate on the basis of sex and sexual orientation and therefore violate Article 10 of the Constitution; (b) unlawfully limit the right to dignity as contained in Article 8 of the Constitution; (c) unjustifiably limit the applicant’s right to privacy as contained in Article 13(1) of the Constitution; (d) unjustifiably violate the right to freedom of association in Article 21(e) of the Constitution; (e) unjustifiably violate the right to freedom of expression in Article 21(a) of the Constitution; and (f) the crime of “unnatural sexual offences” is unconstitutionally vague.

Discussion: The impugned laws do take into account the physiological differences between the male and female genders. The question that then follows is whether those laws have been shown to be rationally connected to a legitimate governmental purpose. Can it be said that to criminalise consensual anal intercourse between consenting males in private, simply because we consider it to be immoral, shameful and reprehensible and against the order of nature, is so important an objective, as to outweigh the protection against unfair discrimination? What threat does a gay man pose to society, and who must be protected against him? The sexual conduct is an offence, if committed by a male person with another male person, but not regarded as criminal if committed by a male person with a female person or between female persons. The question that springs to mind is, what is rational about criminalising one sexual activity and not the other?

Findings: That homosexuality is an abominable vice and that a section of our society cannot tolerate its presence, it remains possible that this common opinion is a compound of prejudice and personal aversion (representing no conviction but merely blind hate rising from unacknowledged self-suspicion). It is a contradiction to accept that criminalising anal sex between man and man and not between man and woman amounts to differentiation but is not discrimination. The law of consensual sodomy is arbitrary and unfair and is based on irrational considerations. The impugned laws differentiate between people or categories of people, that is, between male and female and between gay men and heterosexual men. The criminalisation of anal sexual intercourse between consenting adult males in private, is outweighed by the harmful and prejudicial impact it has on gay men and its retention in our law is thus not reasonably justifiable in a democratic society. The differentiation which the impugned laws accord to gay men amounts to unfair discrimination and is thus unconstitutional.

Order: The common law offence of sodomy is declared unconstitutional and invalid. The common law offence of unnatural sexual offences is declared unconstitutional and invalid. The inclusion of the crime of sodomy in schedule 1 of the Criminal Procedure Act 51 of 1977 is declared unconstitutional and invalid. Section 269 of the Criminal Procedure Act is declared unconstitutional and invalid. The inclusion of the crime of sodomy in schedule 1 of the Immigration Control Act 7 of 1993 is declared unconstitutional and invalid. The inclusion of the crime of sodomy in section 68(4) of the Defence Act 1 of 2002 is declared unconstitutional and invalid.

NDAUENDAPO J, UEITELE J and CLAASEN J

Facts: In 2023, Mr Khumalo applied to the Electoral Commission to register Umkhonto Wesizwe political party (MKP) as a political party. The deed of foundation Mr Khumalo filed reflects him as the party leader and the contact person for the MKP. In April 2024, two letters were sent to the Commission on behalf of MKP. The first communicates that Mr Jacob Zuma is MKP’s presidential candidate for the 2024 national and provincial election and his photo ought to appear on the ballot paper next to the MKP logo (this letter is referred to as JK7). The second letter communicates Mr Khumalo’s resignation from his position as party leader for MKP. It requests that Mr Zuma replaces Mr Khumalo in that position (referred to as JK6). The JK6 letter lies at the heart of the factual dispute between the parties. Mr Khumalo contends that he is not its author and that Ms Zuma-Sambudla forged his signature on JK6 and sent it to the Commission by email. Therefore, he did not resign from his position as MKP party leader. He merely requested the Commission to effect the request communicated in JK7. The respondents deny these allegations. They contend that Mr Khumalo signed JK6 at a meeting in which Ms Zuma-Sambudla and several other eyewitnesses were present. Subsequently, Mr Zuma expelled Mr Khumalo and several other persons from MKP. 

Application: Mr Khumalo seeks an order in terms of which the Commission’s decision to remove him and record Mr Zuma as the president and leader of MKP is declared ultra vires, invalid and unlawful and is set aside. In addition, he seeks an order directing the Commission to record him as the president of MKP with immediate effect. He also seeks other ancillary relief. Mr Khumalo brings this application in terms of section 20(1) of the Electoral Commission Act 51 of 1996. This court derives its jurisdiction from section 20 which sets out its powers and functions. Regulation 9 prescribes the procedure to be followed when a registered political party notifies the Commission of a change in its particulars. While it appears from his papers that Mr Khumalo is aggrieved by his expulsion from MKP, he is not challenging that decision in these proceedings.

Locus standi and delay: It is common cause that Mr Khumalo has since been expelled from MKP. He has not challenged his expulsion internally within MKP or in another appropriate forum. As an expelled member of MKP, Mr Khumalo lacks locus standi to bring this application. Mr Khumalo is an own-interest litigant. He does not raise broader interests of accountability and responsiveness that require investigation or determination on the merits. He is only entitled to the right remedy in the right proceedings. He fails on both scores. Mr Khumalo failed to bring the application within the three days required in terms of section 20(1)(b) of the Commission Act, read with Rule 6 of the Electoral Court Rules. The delay is unreasonable because it is not fully explained. A proper case for the delay to be condoned or overlooked in the interests of justice was not made.

Findings: As contended by the respondents, expert evidence is necessary to prove the allegation that the signature on JK6 is forged. It is inappropriate for counsel for Mr Khumalo to compare the two letters from the bar with reference to the writing style, formatting, letterheads and different signatures. The court places no reliance on these submissions. According to the respondents, Mr Khumalo signed JK6 at a meeting at in which he and Ms Zuma-Sambudla, together with several other persons, were present. The letter was scanned. Ms Zuma-Sambudla then emailed it to the Commission. Both Ms Zuma-Sambudla and one eyewitness deposed to a confirmatory affidavit confirming these allegations. As further contended on behalf of the respondents, Mr Khumalo’s version is riddled with contradictions. The court accepts the respondents’ version that Mr Khumalo authored and signed JK6. The Commission did not breach regulation 9 by accepting JK6 as emailed by Ms Zuma-Sambudla. Regulation 9 only requires that changes to the deed of foundation be communicated by the party leader to the Commission in writing. This is what JK6 purports to do.

Costs: The application is frivolous and completely devoid of merit. It is unclear why Mr Khumalo persisted with the application because on his case on urgency, it has become moot. But, more seriously, the respondents have demonstrated that Mr Khumalo perjured himself in his affidavits. He alleges that Ms Zuma-Sambudla is not part of the MKP leadership and he denies that Mr Zuma is the president of MKP. He denied being the author of JK6. Yet, he signed it in the presence of Ms Zuma-Sambudla and an eyewitness who deposed to a confirmatory affidavit to the respondents’ answering affidavit. The application constitutes an abuse of this court’s process and a waste of its judicial economy and the opposing respondents’ resources. They have incurred legal costs opposing an application that should not have seen the light of day.

Order: T The application is dismissed. The applicant shall pay the costs of MKP and Mr Zuma on the attorney and client scale.

MODIBA J (ADAMS AJ and YACOOB AJ concurring)

Facts: The applicant avers that he is a South African by birth in terms of the Citizenship Act 88 of 1995, and in confirmation he was issued with an identity number by the Department of Home Affairs in 1991. His biological mother is Ms Makhani, residing at Limpopo Province. The applicant further avers that he married his wife, who is also a South African by birth in 1999 and their marriage is blessed with four children. In support of these submissions the applicant attached copies of his abridged birth certificate, his identity smart card, his marriage certificate, his children’s birth certificates and his mother’s identity document. He joined Eskom and continued to work there until he was suspended on allegations of supplier favouritism and alleged conflict of interest. The applicant was interviewed by officials of the Department of Home Affairs in relation to the investigation on his citizenship status. He was then ordered to surrender his smart identity card and passport. The applicant received a letter via email from the Director-General: Department of Home Affairs (DG) informing him of the outcome of the review of the decision by the D-G. The letter stated that the D-G decided to reject the applicant’s application. The applicant has averred that the D-G has arbitrarily suspended and blocked his Smart Identity Card, put marks on his passport and confiscated both the Smart Identity Card and passport.

Review: The applicant was granted an interim interdict in Part A of the proceedings against the respondents from implementing the D-G’s decision. On part B, the applicant seeks a final interdict against the respondents from implementing the said decision and to have the decision of the D-G reviewed and set aside under the provisions of section 6(2) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The applicant avers that the DG considered irrelevant and inadmissible documents and evidence when considering his matter and ignored his submissions and documents he furnished. This resulted in an adverse and unfair decision being taken which stripped him of his status as a South African Citizen.

Discussion: The court is convinced after careful consideration of the papers and after listening to the parties that the applicant having produced his South African birth certificate which was issued to him by the officials of Home Affairs, that the applicant has a clear right to the relief sought. The court takes Judicial Notice thereof that most Black South Africans were born under such unfortunate and unfavourable conditions during the dark days of the history of our country and no one should take advantage of those circumstances or persecute the people affected any further; it is enough. The applicant went as far as to present scientific evidence in the form of DNA test results to prove that he is the biological son of his mother, who is a South African woman by birth, of Venda origin. The applicant’s birth right as a citizen of South Africa is crystal clear to the court. The applicant established a clear right to the relief sought. The applicant showed that he has been suffering since the D-G took a decision to block his Smart Identity Card. He was suspended from work for not disclosing that he is not a South African, the situation escalated to a point where he was dismissed from work, and he remains unemployed to this day. He is unable to support himself and his family. His daughter is unable to be registered to study nursing because of the status of her father. There is a reasonable apprehension of further injury or harm in that the letter of the D-G is clearly stating that his family will be subjected to a status verification. An official of Home Affairs harassed his mother when he was interviewing her and threatened to take away her Identity document, deport her and cause her SASSA benefits to be stopped. His mother was so traumatised by this interview that she collapsed and had to seek medical assistance.

Findings: The applicant’s Smart Identity Card and passport were confiscated by officials of Home Affairs thereby stripping him of his identity as a South African and corresponding rights as a citizen of South Africa. He does not have freedom of movement as he is now regarded as an undesirable and an “illegal foreigner”. The injury or harm that the applicant is experiencing is ongoing as the respondents have not complied with the interim order. The applicant has experienced an injury committed or reasonably apprehended. The applicant contends that he has no remedy but to approach the court to vindicate his constitutional rights. The applicant avers that the D-G had no evidence to justify the block or suspension of his Smart Identity Card and place markers on his passport. The applicant avers that the D-G relied on inadmissible evidence of third-party proceedings at Eskom, where an enquiry was conducted by an unregistered forensic company and hearsay evidence regarding the address where the applicant’s uncle, grandmother and mother stayed. The court agrees with the applicant regarding the inadmissibility of the evidence and hearsay evidence relied on by the D-G to arrive at the decision. The applicant has proven that he has no other satisfactory remedy. The decision of the D-G has gravely affected the applicant’s life as he has been stripped of his citizenship and rendered stateless, unable to find employment in the country of his birth and look after the livelihood of his family. His entire family is now threatened with status verification. The applicant has made out a proper case for the decision of the D-G to be reviewed and set aside.

Order: The decision to block and or suspend the applicant’s identity document is reviewed and set aside in its entirety. The applicant is declared a South African citizen. The respondents are ordered to reinstate and uplift the block on the applicant’s identity number.

LENYAI J