The application by the 10 uMkhonto weSizwe Party (MK) MPs to retain their parliamentary seats had material inadequacies in the founding affidavit and was missing crucial factual details such as the applicants’ membership status in the party and the constitutionality of their removal.
In the judgment it issued on Monday, the high court in Cape Town viewed the reliance on annexures rather than direct averments as an unacceptable pleading approach.
Judge Kate Savage ruled against the applicants, citing procedural improprieties such as the late filing of confirmatory affidavits without court permission, which deprived the MK Party of a response opportunity.
The ruling also flagged the applicants’ failure to submit a replying affidavit. This resulted in counterclaims by MK Party leader and respondent, former president Jacob Zuma, unchallenged.
“This is so even if Mr Zuma paints a worrying picture as to the manner in which the MK Party currently operates, manages its operations, its membership, and the apparent impunity with which it appears to take decisions outside of the control of its own constitution,” Savage found.
Delay in filing the application
In terms of urgency, the court observed that the applicants delayed filing the application without adequate justification, failing to demonstrate why they could not have acted sooner.
This delay undermines their claim of urgency, as urgency in legal terms requires a prompt response to rights infringement.
“The applicants also claim urgency on the basis that on 19 August 2024 they were denied access to parliamentary accommodation, that they were short paid on 15 August 2024, could not travel to Cape Town or find resources for the urgent application as a result, and could not bring this application sooner,” she ruled.
The judge stated that although urgency permits a deviation from standard court rules, this deviation necessitates justification.
The applicant must provide a clear explanation of the urgency, provide justification for the rule deviations, and show that standard proceedings cannot achieve substantial redress.
The court found the applicants’ explanations insufficient. It indicated that their claims of urgency are unsubstantiated and do not warrant bypassing regular procedures.
Interim relief
Ruled Savage: “While the fact of delay will not automatically result in a matter not being considered urgent, particularly where the applicant’s rights are being continually infringed, the applicant is required explicitly to set out why the application is urgent, justify the degree of deviation from the rules of court sought, explain any delay, and state why substantial redress cannot be obtained at a hearing in due course.
“If the relief sought would not be able to be obtained effectively in proceedings heard in the ordinary course, the matter will ordinarily be considered urgent.
“An interim interdict is a court order preserving or restoring the status quo pending the final determination of the rights of the parties and does not involve a final determination of these rights nor affect the final determination of such rights.
“The court’s jurisdiction to grant interim relief depends upon its jurisdiction to maintain or restore the status quo and not on whether it has jurisdiction to decide the main dispute. It is an extraordinary remedy within the discretion of the court.”
The court ultimately concluded that the applicants failed to demonstrate prima facie right to the relief sought.
The applicants’ claims lacked sufficient factual basis, and their procedural lapses and inadequate justifications for urgency undermined their case.
