R Februarie v A Phillips and Others

The applicant and the first to sixteenth respondents are members of the Siyathemba Community Movement (SGB), a registered political party. The applicant is a Ward 2 councillor, and the tenth to sixteenth respondents are candidate ward councillors of the Siyathemba Municipality. The first respondent is a member of the First District Management Structure (DMS) of the SGB and serves as a PR councillor. The parties have been embroiled in a leadership dispute concerning the seventeenth respondent. On 22 February 2024, this Court dismissed a previous application by the applicants based on essentially the same cause of action under case number 003/2023 EC. The applicant is dissatisfied with that judgment, which held that the first DMS's term was for two years and that it could continue until the next election and the second DMS was elected. The applicant contended that the first DMS's term had expired in June 2023 and that its continued operation without holding ward assemblies violated members' constitutional rights under section 19(1)(b) of the Constitution. The applicant sought various declaratory orders to set aside the first DMS and establish new structures. The delay in holding the annual conference was partly attributed to the applicant and his associates opening a bank account and acting as signatories without proper authority, leading to disputes with FNB and the freezing of the account. This is the fifth application between the parties on the same underlying dispute, with courts finding against the applicant and his associates in all four previous applications.

• Whether the Electoral Court has jurisdiction under section 20(2A) of the Electoral Commission Act 51 of 1996 to hear disputes relating to the membership, leadership, constitution or founding instruments of a registered party
• Whether the first District Management Structure's continuation in office after expiry of its two-year term violated the SGB constitution
• Whether the indefinite suspension of the establishment of constitutional structures violated members' rights under section 19(1)(b) of the Constitution
• Whether the applicant's challenge was an impermissible disguised appeal against the Court's previous judgment of 22 February 2024
• Whether costs should be awarded in constitutional litigation

The application was dismissed with no order as to costs.

The binding legal principle established is that where a court has determined the status and authority of a party's internal structures in previous proceedings on the same cause of action, members dissatisfied with that determination cannot circumvent it by launching fresh applications seeking to set aside those structures on the same grounds. Parties must accept and abide by court judgments and engage with their organization's constitutional processes rather than seeking to usurp power through repeated court applications. The Electoral Court's jurisdiction under section 20(2A) of the Electoral Commission Act is engaged in disputes relating to membership, leadership, constitution, or founding instruments of registered parties, but this jurisdiction cannot be used as a disguised appeal mechanism against previous court decisions. Once the Court has ruled on the validity and continuation of internal party structures, those findings must be respected unless properly challenged through appropriate appellate mechanisms.

The Court made several non-binding observations. It noted that the application was characterized as 'more of a grievance or a disguised appeal, masquerading as an urgent application' seeking various declaratory orders based on the party's constitution. The Court observed that the applicant 'does not accept and abide by this Court's judgment' and instead of engaging the DMS and taking steps based on the constitution, inappropriately launched the application. The Court commented that 'it is also strange that relief is sought against FNB to reactivate the bank account, but FNB has not been joined in these proceedings.' The Court noted that in determining cost awards, the starting point is the nature of the issues, the character of the litigation, and the litigants' conduct in pursuit of it, and that the primary consideration in constitutional litigation is how a cost order would hinder or promote the advancement of constitutional justice. The Court observed that every citizen is free to make political choices, including the right to form a political party and participate in its activities or recruit members, citing section 19 of the Constitution.

This case reaffirms the Electoral Court's jurisdiction under section 20(2A) of the Electoral Commission Act 51 of 1996 to hear disputes relating to membership, leadership, constitution, or founding instruments of registered parties. It demonstrates the Court's approach to disguised appeals or repeated applications on the same cause of action where previous judgments have been issued. The case illustrates the principle that parties dissatisfied with a court's judgment must engage with constitutional processes within their organizations rather than repeatedly approaching the court with substantially similar applications. It also confirms the general principle in the Electoral Court that unsuccessful parties should not be ordered to pay costs, particularly in constitutional litigation, and that cost orders should be determined based on whether they would hinder or promote the advancement of constitutional justice. The case provides guidance on how courts handle internal party disputes and emphasizes the need for members to work within their party's constitutional framework rather than seeking judicial intervention to override internal governance structures.