COURT ONLINE COVER PAGE IN THE HIGH COURT OF SOUTH AFRICA Gauteng Local Division, Johannesburg CASE NO: 2024-077748 In the matter between: JACOB GEDLEYIHLEKISA ZUMA Plaintiff / Applicant / Appellant ,UMKHONTO WESIZWE PARTY and SABC,THE CHAIRPERSON OF THE Defendant / Respondent BOARD OF THE SABC ,THE GROUP CEO SABC Notice of Motion (Long Form) NOTE: This document was filed electronically by the Registrar on 12/7/2024 at 1:53:59 PM South African Standard Time (SAST). The time and date the document was filed by the party is presented on the header of each page of this document. ELECTRONICALLY SIGNED BY: Se 6 Registrar of High Court , Gauteng Local Division,JohannesburgIN THE HIGH COURT OF SOUTH AFRICA (GAUTENG LOCAL DIVISION, JOHANNESBURG) Case No: DOL -OFFPYR In the matter between: JACOB GEDLEYIHLEKISA ZUMA 4t applicant UMKHONTO WESIZWE PARTY 2" Applicant and SOUTH AFRICAN BROADCASTING CORPORATION 1% Respondent THE CHAIRPERSON OF THE BOARD OF THE SABC 24 Respondent THE GROUP CEO: SABC 3" Respondent NOTICE OF MOTION TAKE NOTICE THAT the abovementioned applicants intend to apply to this Honourable Court at 10h00 on 13 August 2024 or so soon thereafter as the matter may be heard as directed by the Honourable Deputy Judge President, for an order in the following terms:- 1. That the application be heard on the basis of urgency in terms of Rule 6(12) of the Uniform Rules of Court; 2 Declaring the conduct of the first, second and/or third respondents in refusing to refrain from using the impugned terminology to be unconstitutional and invalid, in terms of section 172 and/or 38 of the Constitution;Granting just and equitable remedies in terms of section 172(1)(b) of the Constitution including the immediate dissemination of this order to all SABC platforms. Alternatively to Prayers 3 and 4 above, reviewing and setting aside the decision of the first, second and/or third respondents which was made and/or communicated by means of the SABC letter dated 28 June 2024, on the grounds of PAJA and/or illegality; Punitive costs only in the case of opposition; Further alternative and/or appropriate relief. TAKE NOTICE FURTHER THAT the founding affidavit of JACOB GEDLEYIHLEKISA ZUMA annexed hereto, will be used in support of this application. TAKE NOTICE FURTHER THAT:- (a) (b) the first, second and/or third respondents are called upon to show cause why the abovementioned decision should not be reviewed and set aside; in terms of Rule 53(1)(b) (alternatively in terms of section 173 of the Constitution), the first, second and/or third respondents are called upon to dispatch within 5 days after receipt of this Notice of Motion, to the Registrar:- (i) the record of all documents and electronic records that relate to the decision referred to in prayer 4 above; and(ii) any reasons for the same impugned decision, where applicable, which they are required to give in terms of section 5 of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”). TAKE NOTICE FURTHER THAT the applicants may, within 5 days of receipt of the record and reasons from the Registrar, by the delivery of a notice and accompanying affidavit, amend, add to and vary the terms of the Notice of Motion and supplement the founding affidavit, in terms of Rule 53(4) of the Rules of this Court (alternatively section 173 of the Constitution). TAKE NOTICE FURTHER THAT, in line with Rule 53(5), read with Rule 6(12) if you intend to oppose this application, you are required:- (a) to notify the applicants’ attorneys in writing by filing a notice of intention to oppose on or before 10h00 on 16 July 2024 and to appoint in such notification an address at which notice and service of all documents in these proceedings shall be accepted; and (b) within 5 days of receiving the amended papers, to file their answering affidavit/s; if any. If no such notice is given, the application will be made on 13 August 2024 at 10h00 or s0 soon thereafter as counsel may be heard. KINDLY SET THE MATTER DOWN ACCORDINGLY. DATED at JOHANNESBURG on this the 12'" DAY of JULY 2024KMNS INCORPORATED Applicants’ Attorneys 43 Wierda Street Wierda Valley West Sandton, 2196 Tel: 011 462 5589 Email: thabo@kmnsinc.co.za Ref: Mr Kwinana/Ms Sibiya TO: THE REGISTRAR OF THE ABOVE HONOURABLE COURT JOHANNESBURG AND TO: SOUTH AFRICAN BROADCASTING CORPORATION Respondent C/O The Company Secretary Cnr Henley & Artillery Road Auckland Park Johannesburg Tel: (011) 714-9111 e-mail: moshakgat@sabo.co.za lodgeaf@sabe.co.zaIN THE HIGH COURT OF SOUTH AFRICA (GAUTENG LOCAL DIVISION, JOHANNESBURG) Case No: 2024 -073948 1n the matter between: JACOB GEDLEYIHLEKISA ZUMA 1* applicant UMKHONTO WESIZWE PARTY 24 Applicant and SOUTH AFRICAN BROADCASTING CORPORATION —1 Respondent THE CHAIRPERSON OF THE BOARD OF THE SABC §=— 2" Respondent THE GROUP CEO: SABC 3" Respondent APPLICANTS’ FOUNDING AFFIDAVIT |, the undersigned, JACOB GEDLEYIHLEKISA ZUMA do hereby make oath and say that: 1, 1am an adult male Former President of the Republic of South Africa ‘and currently the interim President of the second applicant. In addition to acting in my personal capacity | am duly authorised to act on behalf of the second applicant. 2, The facts stated herein are, unless the context indicates otherwise, are within my own personal knowledge and are to the best of my belief SOF2 both true and correct. Where | make submissions of a legal nature Ido so upon the advice received from our legal representatives, which advice | accept to be correct. THE PARTIES: {am the first applicant in this matter acting both in my personal capacity as a citizen of South Africa and also in my official capacity as the duly appointed President of the second applicant. ‘The second applicant is the Umkhonto Wesizwe Party ("MK") a political party duly registered as such according to the electoral laws of the Republic of South Aftica, with its registered office situated at 320 Dr Pixley Isiah Kaseme Street, Durban. The first respondent is the South African Broadcasting Corporation (‘SABC’) which is the statutory and constitutional body mandated to be the public broadcaster in terms of the applicable regulatory framework detailed below, with its head office situated within the Jurisdiction of this Honourable Court, at Henley Road, Auckland Park, Johannesburg (“the SABC Head Office). ‘The second respondent is the Chairperson of the Board of the SABC. who is cited herein in his official capacity as such, care of the SABC. Head Office.10. 1. 12. 3 The third respondent is the Group CEO of the SABC who is cited herein in her official capacity as such, care of the SABC Head Office. In terms of section 13 of the Broadcasting Act No. 4 of 1999, the SABC. Board is the accounting authority of the SABC. In terms of section 14 thereof the affairs of the SABC are administered by an executive committee chaired by the Group Chief Executive Officer and it is accountable to the Board. The Group CEO is also accounting officer as defined in the PFMA. No costs order will be sought against any of the respondents unless they enter a notice to oppose the relief sought in this application. Before delving into the regulatory and other legal issues which underlie this application it will be appropriate to outline the nature of the application and thereafter set out some of the salient background facts which form the foundation of this application. NATURE OF THE APPLICATION It will be crucial to discem not only what this application is about but what it is not about. Doing so will assist to avoid tangential and unnecessary debates and to focus on the real issues which are in disputed and require adjudication. This is an application mainly for urgent or so-called semi-urgent declaratory relief as set out in the Notice of Motion against the TOT on13. 14, 15. 4 impugned conduct, in terms of section 172 and/or 38 of the Constitution In the altemative and only in the event of the main relief being dismissed, we seek relief in the form of an order reviewing the respondents’ decision in refusing the applicants’ demands to refrain from continuing with the impugned conduct. The alternative review remedy is based on the PAJA, aiternatively, the principle of legality. In respect of both the main and/or the altemative relief the applicants seek just and equitable remedies in the form of an order setting aside the impugned conduct or decision, as the case may be. The applicants also further seek alternative and/or appropriate relief and costs only in the case of opposition. Although the matter is inherently urgent the nature and magnitude of the alleged constitutional violations, the matter will be set down on the basis of @ request to the Honourable Deputy Justice for a special allocation, hopefully by agreement between the parties. As such the respondent has been granted a relatively long period of time within which to file the record and/or its answering affidavit. Any alleged urgency will therefore relate to the filing of the replying affidavit, heads ‘of argument and/or the proposed set down date, all subject to altemative directives of the Honourable Deputy Judge President, per request or agreement.16. 17. 18. 19. 2. 5 Needless to say this application raises very novel and multiple issues of considerable constitutional importance. In the circumstances, this Court derives its jurisdiction to hear the main application not only from the territorial location of the respondents but also from the constitutional nature of the subject matter and as per the provisions of sections 38, 169, 172 and/or 173 of the Constitution. Regarding the alternative review relief, which is not indispensable, the general duty to exhaust intemal remadies will be dealt in more detail below. We now deal with the material facts. NT FAC UN! This application really deals with legal rather than factual disputes. The material facts which preceded this application are largely common cause and/or not seriously disputed. Most of the facts are so notoriously well-known that the court will be requested, where applicable to take judicial notice. In any event there is readily available public evidence thereof in the form of electronically recorded broadcasts and/or correspondence. The genesis and/or evolution of the current and newly muted goverment, also commonly referred to as the 7 Administration, are Tos Oe22, 23, 24, 25. 6 also well-known matters of common public knowledge. There is therefore no need to spell these issues out chapter and verse. ‘On 29 May 2024 and in terms of the Constitution and the applicable laws, South African underwent the seventh elections in the democratic era which was ushered in on 27 April 1994 after centuries of painful and violent political and economic subjugation and oppression of the indigenous African people of the territory currently defined as South Africa. MK, the second applicant under my leadership and that of its Interim Leadership Core (‘the ILC’) also referred to as the National Leadership Core ("NLC") was one of the many parties which contested the elections at national level and in all 9 provinces of South Africa. For this privilege MK had to raise and pay no less than R750 000 to the Independent Electoral Commission of South Africa (‘the IEC"). Itcame. at a very high cost. Be that as it may and to cut a long story short, the declared, albeit separately contested results of the elections were released on 2 June 2024, A copy of a useful summary of the results is annexed hereto and marked "MK1". Relevant to this application, a reading of the results will reveal, infer alia, that:- TAs on7 25.1. For the first time in the democratic era no single political party gamered sufficient votes to reach the crucial 50% + 1 majority votes necessary to constitute a government unilaterally. 26.2, The former ruling or majority political party, the African National Congress (‘ANC’) only reached at best 40,18% (6 459 683 votes or at worst and by other calculations around 39%). It received the largest share of the votes but fell short of reaching the 50% + 1 mark by a 10% deficit. 25.3. This precipitated, for the first time, the situation commonly referred to as a hung parliament, in which political parties are forced to form coalitions in any combination which would be sufficient to reach or exceed the 50% + 1 threshold. Such a situation was unprecedented at national level in South ‘Africa but it has accurred on countless occasions in respect of local governments in South Africa and also elsewhere in the world. The resultant governance arrangement have never been referred to as governments of "loca! unify” because that would be totally inaccurate. 25.5. Faced with this situation and as it is to be expected, various Political parties formulated their own strategies and tactics to deal with the reality brought about by the electorate at national and several of the 9 provinces of South Africa where there was. TOs no majority party which had succeeded.26. 27. 28. 8 “Thereatter like many other political parties, the ANC convened its own national leadership meeting at Birchwood Hotel on 6 June 2024, to formulate its strategy in the face of the new reality. it was. referred to as a Special National Executive Committee meeting. In the evening of the same day and at the end of the meeting, the President of the ANC Mr Cyril Ramaphosa addressed the media. This speech signalled the first announcement and genesis of the narrative of a “Government of National Unity’ as the definition of the NC's private approach to the solution for the situation of @ hung Parliament as described above. A copy of the media release on which the speech was based is annexed hereto and marked "MK2", In the speech ANG President Ramaphosa, announced that the ANC would “invite political parties to form a Govemment of National Unity as the best option lo move our country forward’ The characterisation of the ANC’s approach or response to the resolution of the hung Parliament impasse or conundrum which it was facing for the first time at national level, was at best aspirational or overly optimistic and at worst deliberately misleading and opportunistic. Either way, it was deeply inaccurate, logically flawed and/or politically bankrupt, In any event, it never materialised or rose to the heights of a GNU. These issues are more fully deait with in section E below.30. 31. 9 ‘On 14 June 2024 on the day of the first sitting of the National Assembly in terms of section 51 of the Constitution:- 30.1. 30.2. The ANC and the Democratic Alliance ("DA") concluded and signed an agreement called the Statement of Intent (‘SO!") the terms of which defined the nature of the political arrangement envisaged between them for the S-year term of the 7” Administration. A copy of the said SO! is annexed hereto and marked "MK3", The eventual govemment formed on 30 June 2024 was premised on this agreement, whose validity is the subject of a separate legal challenge not directly linked to the present application. At the said first sitting and on the basis of the said SOI the DA voted for the election of Mr Cyril Ramaphosa as President of South Africa and Ms Thoko Didiza as the Speaker of the National Assembly, in retum the ANC voted for Dr Annelie Lotriet to be the Deputy Speaker. ‘As contemplated, in the period between 14 December 2023 and 30 June 2024 the parties to the SOI recruited and/or admitted 9 other political parties representing a total share of around 9,03 of the national votes, into the arrangement as co-signatories to the SOI. Utimately and on 30 June 2024, the newly elected and inaugurated President of the Republic (who is also the President of the ANC) announced that 11 parties, representing 71.04 of the votes had33, 10 subscribed to the SOI and would form part of the new government. The political parties concerned are: ANC, DA, IFP, FF Plus, UDM, RISE Mzansi, Al Jamah, PAC, UAT and GOOD. in making the announcement of the new government of the 7 Administration, the President called it a Government of National Unity thereby illegally giving official recognition to the inaccurate definition of what Is contained in SOI. This too is the subject of a separate legal challenge which is included herein only for context. Despite several warnings, corrections and definitional analyses given by countless partisan and most importantly non partisan and expert ‘commentators indicating the inaccuracy and/or non-independence of the description, the SABC continued to employ the terms “Government of National Unity or GNU". Within no time it was accompanied by such similarly inaccurate terms as “Government of Provincial Unity or GPU" andlor even “Govemment of Local Unity or GLU”, referring to similar arrangements in the provincial or jocal spheres of government, respectively. instead of making any attempts to annex the vast and unwieldly evidentiary material to expose the impugned conduct, it will be ‘convenient, to provide the Court with a succinct neutral summary of the impugned conduct, which will most probably not be disputed, seriously or at all:- LOS35.41 35.2. 35.3. 35.4. u The SABC as first respondent national public broadcaster is supposed to operate under the guidance of principles such as respect for the constitution, obedience to the statutory and other regularly framework governing its operations, independence, accuracy and impartiality, to mention a few. The byline of SABC News is: “independent. Impartial’. The vision and mission of the SABC talk to the empowerment of citizens such as me and the ‘other 62 million inhabitants of the country. The SABC runs and controls three free-to-air television channels namely SABC1, SABC2, SABC3 plus the SABC mainly subscription satellite News Channel which is available ‘on the subscription based DSTV Channel 404, operated by Multichoice. It also operates one or more digital terrestrial television platforms. In addition the SABC runs, controls and operates 16 public service radio stations, 3 commercial radio stations and it has, relationship and/or partnerships with several community radio stations and initiatives. It has the largest total combined audience footprint in South Africa and beyond, which runs into more tens of million people per day. The abovementioned platforms broadcast in all the 14 official languages of South Africa.355, 35.6. 35.7. 35.8. 2 On an hourly basis and around the clock, the vast majority of the aforesaid platforms broadcast News bulletins, punctuated and complemented by Current Affairs programmes in which deeper political analyses and tak or phone-in-formats dominate. This translates into a minimum of approximately 200 or more News and/or Current Affairs programmes per day. If denied or ifit becomes necessary, more accurate figures will be obtained from the respondent or other official sources and presented in the replying affidavit. It is therefore no exaggeration to say that a term like “GNU” which has been topical since its unfortunate and inaccurate employment by the ANC on or about 6 June 2024, must have been uttered several millions of times since that date on various, SABC platforms. If no intervention is made, it will continue to be uttered for more millions of times in the foreseeable future and beyond, In short, the SABC is by far the largest single source of news and/or current affairs programming for millions of South African citizens like me. The magnitude of the adverse effect of the impugned conduct Is literally incalculable and beyond comprehension or quantification. For ease of reference, | refer to randomly selected articles both published on 4 July 2024 on the SABC News website as UG > oe37. 13 summaries of the main news items being run on SABC News platforms, namely: 35.8.1, An article written by SABC Reporter Bulelani Phillip, headed "Ministers to align with Goverment priorities in GNU: (Minister) Ntshaven’’, a copy of which is annexed hereto and marked “MK4"; and 36.8.2. An article written by SABC Reporter Sibahle Motha, headed “DA's exit from Gauteng GPU unlikely to affect GNU with ANC: Analyst’, a copy of which is annexed hereto and marked “MIKS"; Millions of South Africans only have access to SABC News radio, print and/or television bulletins as their sole and/or primary news source. On its own website SABC News describes its footprint as stated in the page copied and annexed hereto as “MK6". ‘As a simple illustration of the type of News and Current Affairs programming referred to above, this Honourable Court will be referred to the programme called “its-Topical’ a one hour weekly Sunday programme which deals with current issues, incorporating guest interviews, analysis and remote audience participation. Reference will be made to the programme which was broadcast on 23 June 2024, fight at the height of the national debate regarding the coalition ‘government which was then stil on the horizon and a subject of intense discussion within the nation. The attention of the Court will be TOS39. 14 particularly drawn to the fact that the two well-known guests on that programme, insistently and repeatedly and in full agreement, articulated the correct view that the impugned arrangement was not a “government of national unity at all’ but a coalition or grand coalition mainly between the ANC and the Democratic Alliance (DA) political party, A copy of the programme which will be availed to the court, can be found or accessed on the ~— fink ftps: www. youtube.com/watch?vsROpBvCJviXk. ‘Such warnings and/or corrections were also offered on various other platforms and by different callers, interviewees and/or academic ‘experts throughout the relevant period and to date. ‘The first guest featured in that programme were Former Labour and Finance Minister. He is also a senior veteran member of the ANC and a former member of its National Executive Committee over many decades. The second guest was Professor Mervyn Gumede, a well known political expert and academic who also contributes articles in the jocal print media, It would be safe to state that both of them possess more expertise In the subject matter than the relevant decision maker(s) at the SABC and/or with respect, this Honourable Court, ‘Their views therefore ought properly to be taken into account. Needless to say the above examples and illustrations contain less than a drop in the ocean relative to the harm dealt with in this matter. They TAS , 7 * ona. 15 only serve to give this Honourable Court a glimpse or snapshot of a much bigger problem. On 23 June 2024 | personally also addressed a large media conference held in Sandton, Johannesburg during which | stated, via an interlocutor, inter alia, that:- “Regarding the current political situation, we need to educate our people that there is no Government of National Unity in South Alrica. There is white-led unholy alliance between the DA and the ANG of Ramaphosa. It is sponsored by big business. It is for the benefit of the markets, not the people. it must be crushed before it finds its feet. The media Is also selling the story of a Government of Nationa! Unity when they know that there is no such thing. ! know because | was part of the leadership which introduced a GNU in 1994. We have asked our lawyers to write a letter of demand to the SABC to stop deliberately misleading South African by using terms like Government of National Unity or Government of “Provincial Unity” to refer to present sellout coalitions. This is nothing but a return of apartheid and colonialism. We know that the private media has fo serve its masters. But the SABC belongs to us. It has no right to feed our people with lies and to pursue narrow agendas at our expense. We shall seek an urgent meeting with the SABC Board and management to raise this issue and if necessary educate them on the correct political terms which are appropriate. If they do not listen the people will march to the SABC Offices to demand the truth. If there is a Government of TO. > oC42, 45. 16 National Unity why is its founding documents only signed by Mr Mbaluta and Hellen Zille?” In spite of being aware of all the aforegoing, the SABC continued and insisted on not correcting its inaccurate language. As at 4 July 2024, the last straw was that even when the ANC and the DA failed to reach an agreement in the Gauteng Province, resulting in a minority government only representing only approximately 35% of the electorate and made up of the ANG, Inkatha Freedom Party (‘IFP"), the Patriotic Alliance ("PA") and Rise Mzansi political parties, the SABC. in its news bulletins referred to the arrangement as a “Government of Provincial Unity’. it used the same term for the provincial government of the province of KwaZulu Natal which is a government made up of a collection of four political parties, namely the IFP, ANC, DA and National Freedom Party (‘NFP*) representing approximately 51% of the electorate. It should be plainly obvious that these different types of poltical arrangements cannot accurately all fit the same description which has been opportunistically coined by the dominant political party for its own selfish political ends, to which it may or may not be entitled. Asa matter of last resort and on 25 June 2024 the applicants instructed cour attorneys of record to send a letter of demand, a copy of which is annexed hereto and marked “MK7". The contents thereof are self- OF46. 47. 49, 7 ‘explanatory and included an indication that if the impugned conduct ‘was persisted with, an application of the present kind would be lodged. On 28 June 2024 the SABC indeed sent a response which unfortunately contained a refusal to act in terms of the request, citing reliance on freedom of expression. A copy thereof is annexed hereto and marked “MK8”. To date and in spite of all the aforegoing the SABC continues on a dally and/or hourly basis to ignore all our pleas and those of others which have literally fallen on deaf ears. Hence, there was no alternative but to institute these proceedings. I now proceed to deal broadly with the applicable constitutional and/or regulatory framework and thereafter set out the legal basis upon which this application is premised. THE CONSTITUTIONAL, STATUTORY _AND__ OTHER REGULATORY FRAMEWORK Constitutionally speaking, the applicants will invoke the following rights (the full sections are not all cited in full, to avoid unnecessary prolixity):- 49.1. Sections 1, 7, 9, 10, 11, 20 and 32 of the Constitution and/or Bil of Rights. 49.2. Section 192 of the Constitution reads:~50. 18 “National legislation must establish an independent authority to regulate broadcasting in the public interest and fo ensure faimess and diversity of views broadly representing South African society." In respect of legislation reliance will be placed on, inter alia, the following:- 50.1. The applicants would rely on, inter alia, sections 2, 3, 6, 8A and 10 of the Broadcasting Act, No.4 of 1999 which incorporates the SABC Charter. 50.2. The SABC Charter which is binding on the SABC and its Board contains, inter alia, stipulations pertaining to the constitutional principle of equality, the rights of all South Africans to receive and impart information and ideas as well as “a high standard of accuracy, fairness and impartiality in news and programmes that deal with matters of public interest’. (my emphasis) 60.3. To the extent that it may be necessary, the applicants would also rely of section 2 the Independent Communications Authority of South Africa Act, No.13 of 2000 (‘the ICASA Act’), only to demonstrate the inapplicability of that legistation in view of the aforestated issue that this matter does not concern an editorial “complaint or the enforcement of any ticence conditions. CaF51. 19 In terms of the SABC Editorial Policies 2020, a copy of which is annexed hereto and marked *MKS", the following fundamental dictates should be followed and/or will be used for the purposes of reference andlor context tA. 51.2. 51.3, 51.4. 51.5. 51.6. 51.7. 51.8, ‘The mandate and objectives of the SABC is to encourage the development of expressions that reflects the South African attitudes and diverse opinions and the advancement of the national and public interest" Playing a role in healing divisions of the past? Promoting equality. Contextualised reporting without distorting the available facts.* Avoiding discriminatory reporting. ® Avoiding political machinations from influencing the reporting? and insuring editorial independence.” Avoiding biased reporting.* Correcting any inaccuracies in reporting. ‘ Clauses 2.1, 2.2.3.4 and 5.3 of the SABC Editorial Policies 2020. 2 Glause 2.2.2.1 of the SABC Editorial Policies 2020. 8 Glauses 2.2.3.1 and 4.1.1.3 of the SABC Editorial Policies 2020. Clauses 32 and 4.1.1.5 of the SABC Editorial Policies 2020. 5 Clause 3d of the SABC Editorial Policies 2020. © Giauses 3e and 8.20 of the SABC Ecifotial Policies 2020, 7 Clauses 3f and 3s of the SABC Editorial Poiicies 2020. 8 Clauses 3g, 3) and 4.1.1.1 of the SABC Editorial Policies 2020. ® Clause 3o of the SABC Editorial Policies 2020.52. 54. 55. et: 56. 20 In addition to the above the application also invokes the relevant general provisions of the Constitution including section 172 and section 195. The latter sets out the basic values and principles which govern public administration and organs of state such as the SABC including a high standard of professional ethics, impartiality, faimess, lack of bias and above all the provision of accurate information. Reliance will also be placed on the relevant case law authorities as. well as universally accepted standards applicable to public broadcasters sourced both locally and intemationally. We now proceed to give the legal bases for the application based on ‘the facts and legal framework outlines above. u YSI We deal separately with the main declaratory and the alternative review relief, albeit acknowledging the inevitable overlaps between the two remedies due to the overlapping factual matrix:- Declaratory relief The apparent motive of the ANC in its misdirection of the current Political arrangements or coalitions as consisting of a “Government of National Unity’ and the like, is to hoodwink its supporters and the public into failing to see that the ANC has entered into a politically suspect marriage of convenience with the DA and/or the Freedom Front Plus57. 58. 21 (FFP) which still harbour anti-black racists and are vehemently opposed to key elements of the South African Constitution, particularly section 9 which deals with measures to redress the effects of centuries of colonialism and apartheid, section 10 which guarantees the right to human dignity and section 12 which guarantees the right to life and the abolition of the death sentence, to mention a few. | am advised that these issues will be further unpacked during legal argument, if denied. To be sure, it readily acknowledged that- 57.1. the ANC and/or its new found partners are perfectly entitled to embark on a political propaganda campaign aimed at their constituencias or potential voters. Accuracy is not an essential requirement in their area of business; and 57.2. the commercial or private me is not necessarily compelled to act independently or its sponsors or preferred political organisations. ‘What is illegal and the subject matter of this application is for the SABC, which is an organ of stato constitutionally enjoined to obey certain standards in the discharge of its public duties, to mimic a political party or parties by adopting hook, line and sinker @ patently inaccurate and subjective definition of the prevailing political arrangement(s). The unique position of the SABC in our constitutional, statutory and/or regulatory environment must be distinguished from the other institutions or players. UO61. 2 “The impugned conduct not only breaches the duty to be accurate but also the additional duties of independence, objectivity and impartiality and to inform and educate the public. More specifically, this is all in breach of the relevant provision of, infer alia, section 192 of the Constitution, political rights in terms of section 19, citizenship rights in terms of section 20, the right to access to information in terms of section 32, of the Constitution as well as the rule of law and other relevant constitutional values. These provisions must be read with the prescripts and values found in the SABC Charter and Editorial Policies. referred to in paragraphs 51 and 52 above. With specific reference to accuracy, it is specifically pleaded that the current arrangements do not fit the definition of a government of national term, which is the term used to describe a situation where:- 60.1. the vast majority of elected parties representing approximately 85% to 90% of the electorate; and 60.2. the nation in question has undergone a catastrophic or calamitous event calling for a united effort across the usual dividing lines which would otherwise apply under normal circumstances. ‘The Oxford Dictionary of African Politics defines a GNU as one “that brings together a number of rival leaders and political parties in order fo promote national unity and political stability. Governments of Jo *62. 65. 23 national unity are often formed after a political crisis, after a period of conflict or during a transition from one regime type to another”. Wikipedia states that in Social Studies a GNU “is a broad coalition government consisting of all parties (or all major parties) in the legislature, usually formed during a time of war or other national emergency’. Judging from these and other examples of technical or scientific definitions, the current arrangement in South Africa which is the result of normal and ordinary democratic outcomes, does not fit the definitional elements of a GNU. No national crisis has occurred other than democratic elections and their outcomes. No cause has been defined around which the nation intends to unite, for or against. Not all the msjor parties have been included. in fact two of the major parties have been specifically exciuded even though they command a total of about 25% of the vote. In fact the DA which is a signatory to the SOI specifically stipulated the exclusion of these two major parties as a pre-condition to its own participation in the current goverment, which has been accepted by the ANC. The DA characterises any coalition which includes the two excluded parties as a “doomsday coaittion’, which must be avoided at all costs. To define the current inherently exclusionary arrangement(s) as a goverment of national or provincial unity is to deliberately or Ia-67. 24 recklessly mislead the public and/or the targetted audiences both inside and outside of South Africa. ‘The effect of the repeated impugned conduct is to contribute to the golden rule of political propaganda known as the big lie technique and infamously employed by the fascist German Nazi Patty. It Is often expressed in such terms as a lie repeated often enough becomes the truth of “a lie gets halfway around the world before the truth has a chanee to get its points on”. Indeed an illustration of this is the many official messages of support received by South Africa from leaders across the world, congratulating her on the Government of National Unity. The latest of these was conveyed by President Biden of the United States of America who said, +} congratulate Cyril Ramaphosa on his re-election as President of South Africa and commended all the political parties for working together to form a Government of National Unity’. In addition to the adverse impact described above, the impugned conduct is also in breach of section 7(2) of the Constitution which enjoins the state and its organs to respect, protect, promote end fulfil the rights in the Bill of Rights. This has caused immeasurable harm to me as a citizen, to the second applicant as a political party which plays no role in the current arrangement for various political reasons and to the public at large. The related muttiple violations of the Constitution must be declared as such and remedied. Tu70. 71. 25 To the extent that the SABC incorrectly relies on the freedom of expression section 16 of the Constitution to justify its conduct, this is totally misplaced In that, section 16 of the Constitution does not extend:- 60.1. to the deliberate and intentional imparting of inaccurate information by the media, let alone the public broadcaster; and/or 69.2. to the advocacy of hatred that is based on race. The so-called GNU amounts to racism in that its spirit and letter does violence to the transformational ethos of the Constitution and the need to heal the divisions of the past. A second fatal mistake made in the SABC’s response to the letter of demand is to approach this matler as if it deals with an editorial “complaint” which would need to follow the relevant complaint procedures presoribed in the ICASA Act. For the avoidance of doubt 1 wish to state categorically that:- 71.1. this is not an editorial complaint but an invocation of the duties imposed on organs of state by the Constitution, the Bill of Rights, the Act, PAJA and/or the related public duties imposed specifically on the SABC as a public Broadcaster;72. 73. 2; 74. 75. 26 74.2. in addition, | am advised that it will be argued that this Is one of those situations in which the other rights relied upon, including the right to human dignity, ought properly to trump and/or prevail cover the right to freedom of expression even if the latter was of any relevance to the present matter, which is still denied; and 71.3. to the extent that other remedies are also available under the complaints regime the applicants hereby abandon those remedies and elects only to pursue the rights referred to in sub- paragraph 71.1 and 71.2 above. This Court is accordingly compelled, in terms of section 172(1}(e) of the Constitution (andior section 38 of the Constitution, where applicable) to dectare the impugned conduct, which is inconsistent with the Constitution as aforesaid, to be invalid to the extent of its inconsistency. Furthermore, this court may grant just and equitable remedies as stipulated in section 172(1(b) of the Constitution. Itis this retief which is sought in Prayers 2 and 3 of the Notice of Motion. Alternative review relief In the alternative, and in so far as the SABC, despite demand, took the decision to continue with the impugned action, the applicants herein pray for the rellef sought in Prayer 4 to the Notice of Motion. Such relief is firstly based on PAJA, more specifically:- Ue ia LS. oo76. 78, 2 78.1. Section 6(2)(a), in that the action/decision was not authorised by the empowering provisions, and was biased or reasonably suspected of bias; 78.2, Section 6(2)(d) in that it was materially influenced by an error of law; 75.3. Section 6(2\e) in that it was taken because of the unauthorised or unwarranted dictates of another person(s), in bad faith, arbitrarily and/or capriciously: 75.4, Section 6(2)(g), in that it consisted of a failure to take a decision; 75.5, Section 6(2\(h), in that it was unreasonable; 76.8. Section 6(2\(i), in that it was unconstitutional and/or unlawful. ‘These legal conclusions are squarely based on the factual matrix described in Section C above. | am advised that further elaboration will be provided during legal argument. The review ground is also based on the alternative ground of a breach of the principle of legality, to the extent that the impugned decision is plainly irrational in the circumstances. In this regard the alternative review relief is being pursued in terms of Rule 53 of the Uniform Rules of this Honourable Court, as set out in the Notice of Motion. ZL, on3. 79. 81. 82. 28 Duty to exhaust intemal remodies in respect of PAJA {am advised that the duty to exhaust intemal remedies does not find application in the main relief, being @ declaration of constitutional invalidity in terms of section 172 and/or 38 of the Constitution. As already stated, the applicants are only seeking a remedy in terms of PAJA and/or legality as an altemative relief, which is generally susceptible to the duty to exhaust internal remedies. J am further advised that there are no internal remedies to exhaust for the relief the applicants are seeking in terms of PAJA, alternatively, the internal remedies are inadequate and ineffective for the relief sought under the present circumstances. As such, and to the extent necessary, the applicants invoke section 7(2)(c) of PAJA as a basis to be exempted from exhausting any purported internal remedies. In the event that it becomes necessary to adjudicate the alternative relief and/or to ventilate the issue of exhausting internal remedies, the basis upon which the applicants are seeking to be exempted from such internal remedies can be gleaned from the following propositions: 82.1. The purported intemal remedies are inadequate and ineffective in that the current challenge is not a mere “complaint” of non- compliance as envisaged in regulation 1 of the Regulations Governing Aspects of the Procedures of the Complaints and Compliance Committee of the Independent Communications Thr. = ow29 Authority of South Africa (‘the CCC Regulations’)."° It is the administrative decision by the respondents to continue with the impugned conduct that is subject of the review. Until this decision is set aside, it exists in fact and has legal consequences. It can only be set aside by a Court of law. 82.2. As the current matter is being prosecuted on an urgent and/or expedited basis, following the dictates of section 17C of the ICASA Act would cause the applicants to suffer irreparable harm that could only be remedied through immediate intervention by this Court. Starting from laying a complaint with the CCC' and the CCC deciding to or not to entertain the complaint," the CCC making recommendations’? and @ final decision by the Authority whether to adopt the recommendations or not."* The process itself is lengthy and ‘cumbersome. It would defeat the entire purpose of preserving the substantial redress in the present exceptional circumstances. 1© GNR.686 of 6 October 2010, Government Gazette No.43609. 11 Section 17C (1) of the Independent Communications Authority of South Attica Act, No.13. ‘of 200. 412 Roguiation S of the Regulations Governing Aspects of the Procedures of the Gomplaints and Compiance Commitee of the Independent Communiations Autorly of South *8 Section 17D of the Independent Communications Authority of South Africa Act, No.13 of 200. 4 Section 17E of the Independent Communications Authority of South Aftica Act, No.13 of men Avs83. BA. 30 82.3. Ultimately, the interests of justice favour the bypassing of the purported internal remedies. The matter is truly exceptional as demonstrated by the salient facts contained in this affidavit. Finally and although the alternative review relief is severable from the main declaratory relief, it would be impractical, inconvenient and not in the interests of justice to litigate the two related remedies in separate proceedings. ! am advised that the rule of convenience known as the once-and-for-all rule applies to such circumstances as the present. If necessary, the applicants reserve the right to abandon the alternative relief and only pursue the main relief. This will only be done as a matter of last resort and so as to avoid unnecessary technicalities and the undue perpetuation of the egregious harm under consideration in this matter. UR YY This matter is self-evidently urgent. The violation of human and other constitutional rights by an organ of state is a matter of inherent urgency. Moreso in the present situation where such violations are multiplied on countless occasions on a large and immensurable scale and on a daily and continuous basis. The constant and ongoing threat of future violations is not only projected but certain to materialise. With every TC. Tee87. 89, 31 passing hour the alleged violations are repeated across the SABC platforms and in no less than 11 official languages. 1am also advised that, in the assessment of urgency, the court is enjoined to proceed on the assumption that the violations are taking place as pleaded. In the present circumstances it cannot be sustainably argued that the urgency is self-created. Nor can it be reasonably expected that the applicants will receive adequate redress if they proceed in due course and heard in a matter of several months or even years. In spite of all the aforegoing and as already stated and in view of the weighty and novel constitutional issues raised in this application, the applicants have elected to grant the respondent sufficient time to respond to this application and where the timelines have been truncated, due regard has been given tothe ablity ofthe respondents ‘to deal with this matter. In reality therefore, the matter will be brought in terms of so-called semi-urgency and subject to the directions of the Honourable Deputy Judge President and the anticipated co-operation between the parties. In this regard the respondents will be approached with the view to writing @ joint letter to the Honourable Deputy Judge President requesting an expedited hearing and/or special allocation to a Full ‘Court as soon as ona can be constituted.32, 94. In the totality of the circumstances the second applicant and | are entitled to the resolution of the dispute as set out in the Notice of Motion. WHEREFORE | pray that it may please this Honourable Court to grant the relief as prayed in the Notice of Motion to which this affidavit is attached. DEPONENT wom to and signed before me in_ SICA onthis tre [LA day of JULY 2024, the deponent having acknowledged in my presence that he knows and understands the contents of this affidavit, which he regards as binding on his conscience and has no objection to taking the prescribed oath, the Regulations contained in the Government Notice No. R1258 of 21 July 1972, as amended, and the Government Notice No. R1648 of 19 August 1977, R1428 of 11 July 1980 and R774 of 23 April 1992 having been duly complied with. ia AVIWE YAKOPI COMMISSIONER OF OATHS: SING ATTOR! OOR, SCHREINER CHAMBERS. SEP RieHaRD Sth. 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Sordons!DocumontsMpohICLIENTS/Unhante wosizweinign Cou... 5\MK2” Closing remarks by ANC President Cyril Ramaphosa to the Special National Executive Committee + 6 June 2024 National Chairperson, Cde Gwede Mantashe, Officials of the African National Congress Members of the National Executive Committee, Comrades, We have reached the conclusion of this special meeting of the National Executive Committee, where we reflected on the outcomes of the 2024 elections and the immediate tasks of our movement. Before | share with you the outcome of our deliberations allow me to take this opportunity to express the condolences of the National Executive Committee to families who have lost loved ones during the recent extreme weather events in KwaZulu-Natal and the Eastern Cape. We remain deeply concemed about the genocide taking place in Gaza, where atrocities against civilians continue to cause great hardship and loss of life. We condemn the recent bombing of a school in a refugee centre and facilities housing displaced people. We cail on the international community to act now to end the genocide that is being perpetrated against the Palestinian people. This NEC meeting has just concluded a full day of discussion on the election outcomes and the way ahead. We have recognised that the people of South Africa have made their wishes known in free and fair elections. We accept the outcome of these elections as the will of the people of South Africa. The ANC has emerged from these elections as the largest political party in the country. We are humbled by the confidence that the people of South Africa have shown in the ANC. We now say as the NEC, that we have heard their concerns, frustrations and aspirations. The 40 percent vote for the ANC is a recognition that the ANC remains pivotal in the country's search for a way forward, and that there can be no solution without the ANC. That places aeR et ioe am responsibility on the ANC to ensure that there is unity, stability, peace and progress in South Africa. During the course of the discussion, we have looked at several different scenarios for setting up government, as the ANC cannot set up government without cooperating with others. The discussions have been constructive and thoroughgoing, and have enabled us to emerge with a unified consensus position. This NEC meeting has provided clear direction on the work we must do over the next few days and weeks to-establish national and provincial governments that are stable, effective and advance the interests of the South African people as a whole. The ANC acknowledges that we are at a moment of fundamental consequence in the life of our nation, Our country requires extraordinary leadership and courage to plot a way forward. We must act with speed to safeguard national unity, peace, stability, inclusive economic growth, non-racialism and non-sexism. We will ensure the continuation of a progressive agenda of social and economic transformation in our country. We have therefore agreed that we will invite political parties to form a Government of National Unity as the best option to move our country forward. The modalities of the Government of National Unity will take into account the conditions prevailing at this moment in our country’s history. The purpose of this Government of National Unity must be first and foremost to tackle the pressing issues that South Africans want to be addressed. These issues include job creation and inclusive economic growth, the high cost of living, service delivery, crime and corruption. The NEC has agreed that this moment calls for the broadest unity of the people of South Africa. This moment also calls for multi-party cooperation and multi-stakeholder collaboration if we are to overcome the severe challenges that confront our country. From the results of these elections, it is clear that South Africans expect their leaders to work together to meet their needs. They expect us to find common ground, to overcome our differences, and to act and work together for the good of everyone. We are committed to ensuring that a Government of National Unity has the means and the ability to build an inclusive economy, createjobs, end corruption, tackle crime and improve the provision of services. In establishing a Government of National Unity, we would be building on a rich history of cooperation across divides of politics and ideology. We would be drawing on an experience with which South Africans are familiar, and which served our country well at a time of great difficulty and division. Thirty years after the achievement of democracy in 1994, we are ‘once again called upon as political parties to come together to forge a common future for our country. But it is not only political parties that need to come together. We believe that there is a need for a National Dialogue, which brings together all parties, all social partners and all sections of society to seek consensus on the actions required to take the country forward. Such a National Dialogue will enhance our pressing task of rebuilding social cohesion in a fractured society following a particularly toxic and divisive election campaign. With regard to the practicalities of the way forward, the NEC has benefited from a report on the preliminary engagements our task team has had with various political parties. We have already held constructive discussions with the Democratic Alliance, Economic Freedom Fighters, Inkatha Freedom Party, National Freedom Party and Patriotic Alliance. We have also engaged with our Alliance partners to brief them on the process and will continue to seek their invaluable views and guidance. The ANC has entered these discussions with an open mind and a commitment to speak to all parties that have a stated intention to advance the interests of the people. As the NEC, we have already agreed, in April 2023, on certain principles that should guide our approach to collaborating with other parties in coalitions. These principles are based on advancing the building of a united, democratic, non-racial, non-sexist and prosperous nation. We further said that any such agreement must be based on a common minimum programme that focuses on measurable targets for economic growth and inclusion, service delivery and development.All partners must commit to shared values, nation-building and social cohesion. These values include respect for the Constitution of the Republic of South Africa and the rule of law, social justice and equity, human dignity, non-racialism and non-sexism. These values also include stability, accountability, transparency, integrity, community participation and good governance. Agreements between parties should be in writing. They should be public, transparent and include measures for holding parties accountable. Our approach to how provincial governments are formed where we do not have an outright majority will be guided by these same principles. The ANC notes that we have ideological and political differences with several parties in our political landscape. However, we will not preclude the possibility of working with any party so long as it is in the public interest and it is keeping with the principles that | have articulated. Guided by these principles, understanding the needs of the country, and appreciating the expressed will of the people, this NEC has agreed to seek agreement among parties on the formation of a Government of National Unity. This NEC has therefore mandated our negotiating task team to proceed to engage parties on this proposal. They will also reach out to a broader range of parties to enrich the process and promote inclusiveness. We have directed the task team, under the guidance of the National Officials and National Working Committee, to develop in greater detail the modalities, principles and governance framework to guide all the parties to the Government of National Unity to ensure that it is coherent and effective and serves the people of South Africa. We have agreed as this NEC that it is both necessary and strategic that we act in a manner that seeks to unite the broadest range of social forces and isolate those that seek to cause chaos, instability and division. As the ANC, we will be reaching out to formations across society to build a shared programme for social and economic change. In the coming days, we will be convening meetings of ANC structures to discuss the conduct and outcomes of the election, the immediate priorities and the way forward. DUS o-As the election results emerged last week, there was a measure of fear that the outcomes would lead to fragmentation and instability. Following election campaigns that tended towards polarisation, there was a measure of fear that South Africans would not be able to work together. There was a fear that the transformation of our society would be disrupted and that our efforts to rebuild the economy would be derailed Yet, as this NEC has determined, the outcome of this election presents an opportunity to forge a more inclusive, more cooperative approach to governance. It presents an opportunity to bring political parties and social partners together to address the challenges that concern South Africans. A Government of National Unity is the most viable, most effective and most powerful way of meeting the expectations of all South Africans at this particular moment. We are called upon as this leadership and as a movement to give effect to the will and the wishes of the voters of this country. As | conclude, allow me to extend, on behalf of the NEC, our sincere thanks to the ANC volunteers, deployees, veterans and stalwarts, who worked tirelessly to reach voters across the country and to bring out the vote. We also extend our thanks to the people of South Africa, who tumed out in their millions to vote and to reaffirm their confidence in democracy and the future of our country. I thank you. TOFSTATEMENT OF INTENT OF THE 2024 GOVERNMENT OF NATIONAL UNITY Vevey ye Lee ue (CS ane aeaot STATEMENT OF INTENT OF THE 2024 GOVERNMENT OF NATIONAL UNITY Preamble 1. South Africa has made strides since 1994 toward establishing a non-racial, non- sexist, united and democratic society and improving the’ lives‘of all who live in it. We are bullding a democratic state guided-by a progressive Constitution and a system of institutions that aim {0 translate the. values of the ‘Constitution into practice. 2. The 2024 natiofial and provincial election was highly contested and, at times, divisive. "The results of the election have the potential to foment further political and social fragmentation. Relatively low levels of voter turnout and registration suggest growing alienation from the political system. 3. At this historic juncture, we must act to ensure stability and peace, tackling the triple challenges of poverty, unemployment and inequality, entrench ‘our Constitutional democracy and the fule of law, and to build a South Africa for allits people. 4, The people, of South Africa expect us to work together as political parties to achieve these Objectives, and to usher in a/new era of peace, justice and prosperity for all. <5." Itis in this context that we, as Political Parties, that participated in the 2024 Elections ‘and ‘received: seats. in. the national dind provincial: leglsaire, pledge to cooperate " through a voluntary Goverriment of National Unity (GNU). 6. ‘The GNU2024 shall include “cogperation in both the Executive and the Legislature. 7.-Thepar reaffirm our collective commitmenttothe founding values ofthe Constitution and to'the preamble. to the Constitution, which reads: “We, the people. of South Africa. Recognize the injustices of our past. Honour those who suffered for justice and freedom jn.our land. Respect those who have worked to build and develop our country, and Believe that South Africa belongs to all who live in it, united in our diversity. We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic, ...”cE 8. All parties to the GNU commit to uphold the following fundamental principles: 8.1. Respect for the Constitution, the Bill of Rights in its entirety, @ united South Africa and the rule of law. 8.2 Non-racialism and non-sexism. we 83. Social justice, redress and equity, and the:allevialion of poverty. 84 _ Human dignity ard the progressive realisation of socio-economic rights. 85~Nation-building, social cohesion anc unity in diversity. 86. Peace, stability ahd safe commhunities, ‘especially for women and children. ” 87. Agcountability, transparency and community participation in government. 8.8. Evidence-based policy and decision-making. FOUNDATIONAL PRINCIPLES OF THE GNU 8.9 “A professional, merit-based, non-partisan, developmental public service that puts people first. 8.10 Integrity, good governance and accountable leadership: 9. All parties that form part of the:;GNU commit to these principles. 10... The GNU is constituted in the. inierest’of all South Africans, This Statement of intent will therefore be a public document to ensure accountability and foster trust between the-electorate and the political parties that form part of the GNU. Basic MINIMUM PROGRAMME OF PRIORITIES ia, As Parties to this GNU, ‘We. agree that the 7" administration should focus on the following priorities: 11a Rapid inclusive and Sustainable economic growth, the promotion of fixed capital. investment and “industrialization, job creation, transformation, livelincodsuppont, landreform, infrastructure development, structuralreforms and transformational change, fiscal sustainability, and the sustainable use of our national resources and endowments. Macro-economic management must support national development goals in a sustainable manner. | OH a... on