In an unusual finding, high court judge Brian Mashile ruled that granting an order to dissolve the ANC PEC and Bohlabela region could stop the elections and cause turmoil.
Mashile said this in his long-awaited ruling which started circulating on social media on Wednesday afternoon, a date after he had dismissed an application to nullify Mpumalanga ANC’s 2015 provincial conference and to disestablish Bohlabela region.
“Granting of the order sought by the Applicants would not only send the First Respondent into turmoil but the whole country.
“Firstly, (granting the order sought by the applicants) will invalidate the 2015 (provincial conference), assuming that the branches and Bohlabela Region were irregularly created. Secondly, to the extent that Mpumalanga as a province participated in the proceedings of the 2017 (national conference) elections of the National Executive Committee (“NEC”), those too would have to be reversed. The elections set for the 8th of May 2019 cannot therefore proceed. All this, in the opinion of the court, is too ghastly to contemplate,” said Mashile.
This was seemingly incongruent with with what he had said earlier in the week, when he delivered the verdict which brought to a close a lengthy court case between ANC factions held at the Mpumalanga high court in Mbombela.
“Essentially, the court did not go into the merits of the case due to the late application in the first place. The prayer in respect of declaring Bohlabela a district and the establishment of irregular branches, they were brought five years and almost three years late respectively. That is the overwhelming reason for the dismissal of the application,” said Mashile before adjourning the court on Tuesday morning.
Notwithstanding this assertion, and that the judge may not have considered the merits of the case, he did however venture into the repercussions of ruling in favour of the applicants.
The judge also went into detail, citing various case laws to demonstrate why he ruled that launching the late application was unreasonable.
“The delay is too unreasonable and there is no evidence to justify the late launching of the application. In the circumstances, my conclusion renders the consideration of the alleged irregularly established Bohlabela Region unnecessary. Also rendered fruitless to determine is whether or not the branches were unlawfully created. Once I have refused the declaratory reliefs, the prayer requesting the establishment of a task team to lead the province in the interim becomes a stillborn,” he said.
He did not issue an order as to the costs.
The drama started last week with unsubstantiated rumours that the respondents had held secret meetings with the judge.
Then, on Tuesday, Mbombela executive mayor, Sibusiso Mathonsi dropped a bombshell when he told ANC spokesperson, Sasekani Manzini, in front of the media that he knew of the outcome the day before.
Manzini, said it was a mere joke. She also denied that they had held any secret meetings with the judge, and at the time of publishing, the judiciary had not responded to written questions.
When Mashile announced his verdict, earlier in the day, there was a huge silence inside the court and there were no supporters of the respondents to celebrate their victory.
The sombre moment inside court bore testimony that those who were filling the gallery to capacity were supporters of the applicants.
Meanwhile, Mashile’s voice was too soft, such that those in the public gallery could hardly hear and they started asking each other what he had been saying. Their application had been dismissed! What does “dismissed” mean? Others were asking in hushed tones.
“It means we have lost comrade,” responded another, as the applicants and their supporters consoled each other and leaving the courtroom.
By this time, the court orderly had instructed the attendants to rise and Mashile had already slipped into the back door of the courtroom, while the public gallery also emptied rapidly.
As usual, the court lifts were not working, but the walk through the staircases from the fourth floor seemed even shorter for the applicants, as the wrath of the throngs of their opponents who had gathered outside court awaited them.
While journalists were still trying to get the reaction of the applicants to the outcome, a huge uproar could be heard downstairs, suggesting that the news had already reached those outside – they had won!
There was booing and hurling of insults on the applicants as they emerged from the court exit.
Spokesperson for the applicants, William Nkatha, vowed that they would take the outcome on review, but they had to wait another 24 hours to receive the full judgement.
“(The judge) has taken a decision according to the facts that we have presented before him, however, indeed we are going to challenge this judgement, we are going to appeal,” said Nkatha on Tuesday.
One of the applicants, Jealous Nyalunga was unconvinced on the reasons for the dismissal of their case.
“First, the judge said he did not consider the merits of the case, but suddenly he makes a judgement to the effect that a different ruling would have caused turmoil. He’s contradicting himself. Secondly, who said that the non-participation of the ANC in the elections would stop the elections? How many times have we had other parties not participating in elections and there was no turmoil and elections went ahead?” asked Nyalunga on Wednesday afternoon.
This is not the first time that courts in Mpumalanga courts take unusual decisions.
In 2012, acting magistrate Erwin Sithole ruled that giving money to journalists to prevent them from publishing a story was the same as placing an advert in a newspaper, which did not constitute an offence.
This was after he had dismissed bribery charges against former Mpumalanga premier spokesperson, Mabutho Sithole after he gave journalist Sizwe SamaYende R5000 to prevent him from publishing a story on alleged corruption against current deputy president of the Republic of South Africa, David Mabuza, who was a premier at the time.
Magistrate Sithole said that the real reason that SamaYende opened a bribery case against Mabutho Sithole was in fact to get to Mabuza.