& 0026A/24EC Umkhonto Wesizwe Political Party v The Electoral Commission of South Africa and Others

The judgment

The court's own file

THE ELECTORAL COURT OF SOUTH AFRICA BLOEMFONTEIN CASE NO: 0034/24EC In the matter between: UMKHONTO WESIZWE POLITICAL PARTY Applicant and ELECTORAL COMMISSION OF SOUTH AFRICA First Respondent CHIEF ELECTORAL OFFICER Second Respondent PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Third Respondent SPEAKER OF THE NATIONAL ASSEMBLY Fourth Respondent POLITICAL PARTIES WITH DESIGNATED REPRESENTATIVES IN THE NATIONAL ASSEMBLY Fifth to 21st Respondents POLITICAL PARTIES WITHOUT DESIGNATED REPRESENTATIVES IN THE NATIONAL ASSEMBLY 22nd to Further Respondents 2 Neutral citation: Umkhonto Wesizwe Political Party v The Electoral Commission of South Africa and Others (0034/24EC) [2024] ZAEC 26 (25 October 2024). Coram: Zondi DP, Adams and Steyn AJJ, Professor Ntlama-Makhanya, and Phooko (Additional Members). Heard: Decided in chambers on the papers. Delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives via e-mail, publication on the Supreme Court of Appeal website and released to SAFLII. The date and time for hand-down are deemed to be delivered on 25 October 2024 at 11h00. Summary: Uniform Rule 41 – Withdrawal after set-down – Judicial discretion in awarding punitive costs – Exceptional circumstances justifying punitive costs order – Costs awarded on attorney-client scale against withdrawing party. 3 ORDER The following order shall issue: 1. The applicant is granted leave to withdraw the application. 2. The applicant shall pay the costs of the first and second respondents on the attorney-client scale, including the costs of two counsel. 3. The applicant shall pay the costs of the Democratic Alliance on the party and party scale, including the costs of counsel at scale C. JUDGMENT Steyn AJ (Zondi DP, Adams AJ, and Professors Ntlama-Makhanya and Phooko concurring): Introduction

[1]1 This notice is dated 3 July 2024 4 5 6 2 Umkhonto Wesizwe Party v The Chief Justice of The Republic of South Africa and Others CCT 178/24. 7 ‘1. The applicant is granted leave to withdraw the application. 2. The applicant may not reinstitute an application in this Court on the same or substantially similar issues and relief without the leave of the Court on good cause shown. 3 See Martin NO v Road Accident Fund 2000(2) SA 1023 (WLD) at 1026H-1027A; Wildlife and Environment Society of South Africa v MEC for Economic Affairs, Environment and Tourism, Eastern Cape Provincial Government and Others [2005] ZAECHC 14; Hammond and Hammond Transactional Law Clinic v Bitou Municipality and Others [2021] ZAWCHC 150 at para 16; and Twala v ABSA Bank Limited [2022] ZAGPJHC 185 at para 14 (Twala). 4 See Levy v Levy 1991 (3) SA 614 (A) at 620. 8 3. Should the applicant seek leave as contemplated in paragraph 2, it must do so on affidavit explaining the circumstances of the withdrawal. 4. The applicant shall pay the costs of the First and Second Respondents on the attorney- client scale, including the costs of two counsel. 5. The applicant shall pay the costs of the Democratic Alliance on the party and party scale, including the costs of counsel at scale C’. MK Party’s right to have access to justice ‘. . .The right of access to courts is important in the adjudication of justiciable disputes. In Concorde Plastics (Pty) Ltd v NUMSA and Others, Marcus AJ expressed the importance of the right as follows: “In my view, access to the courts of law is foundational to the stability of society. It ensures that parties to a dispute have an institutionalised mechanism to resolve their differences without recourse to self-help. The nature of civil proceedings has been eloquently described by Eduardo Couture The Nature of Judicial Process (1950) 25 Tulane Law Review 1 at 7 in the following way. ‘The facts tells [sic] us that when a plaintiff wants to instigate a suit, he can do so although the defendant does not want him to do so, nor even the judge. This is a fact derived from legal experience, from the life of law. Those who have been able to see this fact in historical perspective and have noted its slow but steady growth, have realised that the law has proceeded in this direction from necessity, not from 5 Section 34 of the Constitution reads as follows: ‘Access to courts – everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.’ 6 Chief Lesapo v North West Agricultural Bank and another [1999] ZACC 16; 2000 (1) SA 409 (CC) at para 13 (Chief). 7 Ibid at paras 13 – 22. 9 expediency. Primitive man’s reaction to injustice appears in the form of vengeance, and by “primitive” I mean not only primitive in a historical sense, but also primitive in the formation of moral sentiments and impulses. The first impulse of a rudimentary soul is to do justice by his own hand. Only at the cost of mightly [sic] historical efforts has it been possible to supplant in the human soul the idea of self-obtained justice by the idea of justice entrusted to authorities. A civil action, in final analysis, then, is civilisation’s substitute for vengeance. In its present form, this civilised substitute for vengeance consists in a legal power to resort to the court praying for something against a defendant. Whether the claim is well-founded or not, is a totally different and indifferent, fact.’” The right of access to court is indeed foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance. As a result, very powerful considerations would be required for its limitation to be reasonable and justifiable.’ (Original footnotes omitted, my emphasis.) At the heart of the Commission’s proposed order lies a potential constraint on the MK Party's right to judicial recourse. The Commission seeks to curtail the MK Party’s ability to reinstitute these proceedings, a proposition not without factual underpinning. Central to this stance is the MK Party's litigious history vis-à-vis the Commission. What the Commission puts forth is that this application marks another attempt at litigation concerning similar allegations, notwithstanding prior judicial dismissals. The Commission’s case is that this pattern of repeated filings, despite earlier rejections, necessitates a safeguard against future actions of a similar nature. In advancing this position, the Commission points to the substantial costs incurred in defending against these recurrent applications. This financial burden, it was submitted, lends credence to the Commission's appeal for an order that would preclude further litigation on these grounds. The Commission thus comes before this court seeking a remedy that, while potentially limiting the MK Party's rights, is rooted in a documented history of repetitive legal actions. 10

[18]Several cases of our judicial precedent on this matter illuminate the courts’ approach to comparable scenarios. For example, what emerges from Bondev Midrand (Pty) Ltd v Puling Bondev Midrand (Pty) Ltd v Ramokgopa, 8 is a reaffirmation of the principle that litigants should not be compelled to pursue actions against their volition. However, Bondev also underscores the court's obligation to safeguard against the abuse of its processes. The case of Twala 9 further elucidates the court's discretionary power in cost allocation when a party withdraws its action. Central to Twala's reasoning is the necessity to evaluate whether the withdrawing party's conduct constitutes ‘exceptional circumstances’, warranting a departure from the general rule of costs following the event. This jurisprudence, delineates the delicate balance courts must strike between deterring abusive litigation tactics and preserving access to justice for meritorious claims. Thus, this court must evaluate whether these costs were indeed substantial and whether costs were unnecessarily incurred due to the MK Party's conduct, that is, the intended withdrawal after the matter was set down. Discussion ‘What does constitute an abuse of the process of the Court is a matter which needs to be determined by the circumstances of each case. There can be no all-encompassing definition of the concept of ‘abuse of process’. It can be said in general terms, however, that an abuse of process takes place where the procedures permitted by the Rules of the Court to facilitate the pursuit of the truth are used for a purpose extraneous to that objective.’ (My emphasis) 8 Bondev Midrand (Pty) Limited v Puling and Another, Bondev Midrand (Pty) Limited v Ramokgopa [2017] ZASCA 141; 2017 (6) SA 373 (SCA) (Bondev). 9 See Twala above fn4. 10 Lawyers for Human Rights v Minister in the Presidency and Others [2016] ZACC 45; 2017 (1) SA 645 (CC); 2017 (4) BCLR 445 (CC) at para 20. 11 ‘If, on an application made by any person against whom legal proceedings have been instituted by any other person or who has reason to believe that the institution of legal proceedings against him is contemplated by any other person, the court is satisfied that the said person has persistently and without any reasonable ground instituted legal proceedings in any court or in any inferior court, whether against the same person or against different persons, the court may, after hearing that other person or giving him an opportunity of being heard, order that no legal proceedings shall be instituted by him against any person in any court or any inferior court without the leave of that court, or any judge thereof, or that inferior court, as the case may be, and such leave shall not be granted unless the court or judge or the inferior court, as the case may be, is satisfied that the proceedings are not an abuse of the process of the court and that there is prima facie ground for the proceedings.’ ‘[T]he Act was passed in 1956 largely in response to the perceived shortcomings of the common law position that had obtained until then. The position is aptly illustrated in In Re Anastassiades decided the previous year. In that case, so the judgment tells us, Mr Anastassiades, an unrehabilitated insolvent, sought to improve his economic position by an ingenious strategy. He routinely sued numerous companies which he alleged were involved in a “conspiracy of association” for substantial damages. Sufficiently impecunious as to make a costs award against him no more than an empty claim, Mr Anastassiades drew his own pleadings and argued his own cases with the hope that one of the defendants cited in his numerous summonses would seek a settlement of the claim. One substantial settlement would make all the effort, and by his own admission, the “harassment”, worthwhile. 11 Vexatious Proceedings Act 3 of 1956. 12 In Re Anastassiades 1955 (2) SA 220 (W) 225 to 226. 13 Beinash and Another v Ernst & Young and Others [1998] ZACC 19; 1999 (2) SA 116 (CC); 1999 (2) BCLR 125 (CC) at paras 10-11. 12 After examining the relevant authorities, Ramsbottom J held that, absent a statutory power, he had no jurisdiction under the common law to make an order that would curtail Mr Anastassiades’ power to litigate more than that which would be required by the circumstances and between the parties of the particular case. In direct response to this, the Act was passed the following year. However, this Act did not purport to repeal the common law. It is unnecessary in light of the facts of this case to consider further the effect, if any, the enactment of the statute had on the common law remedy.’ ‘It was firmly established in the South African common law, long before the advent of the Constitution, that the Supreme Court had the inherent power to regulate its own process and stop frivolous and vexatious proceedings before it. This power related solely to proceedings in the Supreme Court and not to proceedings in the inferior courts or other courts or tribunals. The following principles crystallised over the ages. It had to be shown that the respondent had ‘habitually and persistently instituted vexatious legal proceedings without reasonable grounds. Legal proceedings were vexatious and an abuse of the process of court if they were obviously unsustainable as a certainty and not merely on a preponderance of probability. I must point out at this juncture that this definition applied to all litigation that amounted to an abuse of court process.’ (Footnotes omitted.) ‘Section 1(c) of the Constitution refers to the “[s]upremacy of the constitution and the rule of law” as some of the values that are foundational to our constitutional order. The first aspect that flows 14 Member of the Executive Council for the Department of Co-operative Governance and Traditional Affairs v Maphanga [2019] ZASCA 147; [2020] 1 All SA 52 (SCA); 2021 (4) SA 131 (SCA) at para 25. 15 President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd [2005] ZACC 5; 2005 (5) SA 3 (CC); 2005 (8) BCLR 786 (CC) at para 38. 13 from the rule of law is the obligation of the state to provide the necessary mechanisms for citizens to resolve disputes that arise between them. This obligation has its corollary in the right or entitlement of every person to have access to courts or other independent forums ‘provided by the state for the settlement of such disputes.’ (Footnote omitted.) ‘The scale of attorney and client is an extraordinary one which should be reserved for cases where it can be found that a litigant conducted itself in a clear and indubitably vexatious and reprehensible manner. Such an award is exceptional and is intended to be very punitive and indicative of extreme opprobrium.’ 19 16 Public Protector v South African Reserve Bank [2019] ZACC 29; 2019 (6) SA 253 (CC); 2019 (9) BCLR 1113. 17 Plastic Converters Association of SA on behalf of Members v National Union of Metalworkers of SA [2016] ZALAC 39; (2016) 37 ILJ 2815 (LAC). 18 Mkhatshwa and Others v Mkhatshwa and Others [2021] ZACC 15; 2021 (5) SA 447 (CC); 2021 (10) BCLR 1182 (CC) (Mkhatshwa). 19 Public Protector V South African Reserve Bank above at fn 17 para 225, citing, with approval, Plastic Converters Association of SA on behalf of Members v National Union of Metalworkers of SA [2016] ZALAC 39; (2016) 37 ILJ 2815 (LAC) at para 46. 14 20 See also Germishuys v Douglas Besproeingsraad 1973(3) SA 299 (NK) at 300 D. 15 1. The applicant is granted leave to withdraw the application. 16 2. The applicant shall pay the costs of the first and second respondents on the attorney-client scale, including the costs of two counsel. 3. The applicant shall pay the costs of the Democratic Alliance on the party and party scale, including the costs of counsel at scale C. ________________________ EJS STEYN ACTING JUDGE OF THE ELECTORAL COURT 17 Appearances: For the applicant: Instructed by : JG & Xulu Incorporated, Johannesburg For the first and second respondents: T Ngcukaitobi SC and J Bleazard Instructed by: Moeti Kanyane Incorporated Attorneys, Centurion For the sixth respondent: M De Beer Instructed by: Minde Shapiro and Smith, Cape Town