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Fani and Others v Buffalo City Municipality and Others (860/2009) [2009] ZAECGHC 26 (6 May 2009)

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FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT

 


ECJ:

 


PARTIES:

NOMAKHAYA FANI AND 18 OTHERS

 



And

 



BUFFALO CITY MUNICIPALITY AND 8 OTHERS

 


1.               Registrar:

860/09

2.               Magistrate:


3.               High Court:

EASTERN CAPE HIGH COURT, GRAHAMSTOWN

 


DATE HEARD:

30/04/09

DATE DELIVERED:

07/05/09

 


JUDGE(S):

JONES J

 


LEGAL REPRESENTATIVES –


 


Appearances:


 


  1. for the Applicant(s):

ADV: S.H. Cole

  1. for the Respondent(s):

ADV: Quinn

 


Instructing attorneys:


 


(a)   for the Applicant(s):

NEVILLE BORMAN & BOTHA ATTORNEYS

(b)   for the Respondent(s):

DOLD & STONE ATTORNEYS

 


 


CASE INFORMATION –


 


·       Nature of proceedings:

APPLICATION – URGENT

 

THE HIGH COURT OF SOUTH AFRICA

IN THE EASTERN CAPE HIGH COURT

GRAHAMSTOWN

 

CASE NO 860/2009

NOT REPORTABLE

Delivered

 

In the matter between


 


NOMAKHAYA  FANI and 18 others

Applicants

 


and


 


 BUFFALO CITY MUNICIPALITY and 8 others

Respondents

 

SUMMARY:    Application as a matter of urgency suspending the applicants’ expulsion from a political party and suspending its effect on their appointment as councillors of a municipal council  pending an application to review and set aside the expulsion – the expulsion was done without a hearing as required by the party’s constitution, on the ground that the applicants had disqualified themselves as members of the party by joining a rival political party – the requirements for an interim interdict pending a review were established as against the political party responsible for the expulsion, but not against the municipality or its officials.

 

JUDGMENT

 

JONES J:

 

[1]       This is an urgent application by nineteen councillors of the Buffalo City Municipality for a rule nisi operating as an interim interdict. The nineteen councillors were all members of the political party known as the African National Congress (the ‘ANC’). The Eastern Cape branch of the ANC is cited as the 3rd respondent. The nineteen applicants all represented the ANC as councillors on the Buffalo City Municipality, which is the 1st respondent.  They were all advised by the ANC by letter dated 10 February 2009 that they had been summarily expelled from the party, and that the Independent Electoral Commission (the ‘IEC,’ which is the 4th respondent) was in the process of being advised of their expulsion, which seems to be the first step necessary for replacing them as councillors . The next step was a letter from the 2nd respondent, the municipal manager of the Buffalo City Municipality, dated 12 February 2009, advising them that they were no longer municipal councillors with effect from 10 February 2009. The letter requested return of certain of municipal cell phones, laptop computers and other municipal property issued to them in their capacity as councillors. Since then, their remuneration as municipal councillors has been withheld, and they have been denied access to their office premises.   The 5th, 6th, 7th, 8th and 9th respondents have replaced the 2nd, 4th, 8th, 9th, 11th, and 12th applicants who were on the council by reason of their nomination and position on the ANC party list for Buffalo City Municipality. The IEC has advertised by-elections for the seats of the remaining applicants, who were elected members. The date of the by-elections is to be 6 May 2009.

 

[2]      The nineteen applicants have applied to have their expulsion from the ANC reviewed with a view to having it set aside. The purpose of this application is to undo the effects of their expulsion pending the outcome of the review. The rule nisi, which is to operate as an interim interdict, calls upon the 1st respondent (the Municipality), the 2nd respondent (its manager), and the 3rd respondent (the ANC) to show cause why, pending the outcome of the review

 

(c)  they should not be ordered to allow the applicants to continue to perform their duties as councillors;

 

(d)   the request for the return of municipal property should not be revoked;

 

(e)  the applicants should not be paid their salaries and other employment benefits until the lawful termination of their term of office;

 

(f)    they should not advise 4th respondent  (the IEC) that the applicants are properly elected or nominated councillors, that there are no vacancies insofar as they are concerned, and that the by-elections should be cancelled;

 

(g)  they should not pay costs;

 

(h)   ratification by the Municipality of the nomination of the 5th, 6th, 7th, 8th and 9th respondents as councillors should not be suspended.

 

[3]      The 4th, 5th, 6th, 7th, 8th and 9th respondents have not participated in these proceedings, and no orders are sought against them. By the time the matter came to trial, however, the 3rd respondent had rescinded the expulsion of the 1st, 2nd and 3rd applicants, the 8th to 17th applicants, and the 19th applicant, and tendered costs. There is no longer a lis between them and the respondents. They fall out of the picture, except in respect of the extent of the costs to which they are entitled.

 

[4]      All the issues as between the 4th, 5th, 6th, 7th, and 18th applicants and the 1st, 2nd and 3rd respondents remain very much alive. There has been a further development in the case of these five applicants. When the matter was called, their counsel handed up their replying affidavits in which they admitted that since their expulsion from the ANC they have indeed joined the rival political party known as COPE. But they deny that they had joined COPE before their summary expulsion, and they persist with their attitude that their expulsion was in violation of their right to fair and just administrative action and falls to be reviewed. The 3rd respondent denies that they are entitled to a review, and hence to any of the remaining relief.

 

[5]      The 1st and 2nd respondents are not able to contribute to the dispute about the propriety of the expulsion. Their opposition to the relief sought in the rule nisi is based on a denial of any wrongful conduct on their part. Whether or not the applicants can succeed against any of the respondents depends on whether they have succeeded in establishing the requisites for an interim interdict.

 

[6]        In LF Boshoff Investments (Pty) Ltd v Cape Town Municipality; Cape Town Municipality v LF Boshoff Investments (Pty) Ltd 1969 (2) SA 256 (C) Corbett J restated these requisites at 267C:

 

Briefly these requisites are that the applicant for such temporary relief must show

 

(a)   that the right which is the subject-matter of the main action and which he seeks to protect by means of interim relief is clear or, if not clear, is prima facie established, though open to some doubt;

 

(b)  that, if the right is only prima facie established, there is a well grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right;

 

(c)   that the balance of convenience favours the granting of interim relief; and

 

(d)  that the applicant has no other satisfactory remedy.

 

(See Gool v Minister of Justice and Another, 1955 (2) SA 682 (C) at pp. 687 - 8; Pietermaritzburg City Council v Local Road Transportation Board, 1959 (2) SA 758 (N) at p. 772).

 

In this case the applicants’ right to a review and the issue of the wrongfulness of their expulsion and who is responsible for its consequences are disputed on the papers. In such an event the dispute is to be resolved along the lines indicated in Simon NO v Air Operations of Europe AB and others [1998] ZASCA 79; 1999 (1) SA 217 (SCA)  228G-H:

 

Insofar as the appellant also sought an interim interdict pendente lite it was incumbent upon him to establish, as one of the requirements for the relief sought, a prima facie right, even though open to some doubt (Webster v Mitchell 1948 (1) SA 1186 (W) at 1189). The accepted test for a prima facie right in the context of an interim interdict is to take the facts averred by the applicant, together with such facts set out by the respondent that are not or cannot be disputed and to consider whether, having regard to the inherent probabilities, the applicant should on those facts obtain final relief at the trial. The facts set up in contradiction by the respondent should then be considered and, if serious doubt is thrown upon the case of the applicant, he cannot succeed. (Gool v Minister of Justice and Another 1955 (2) SA 682 (C) at 688B- and the numerous cases that have followed it.)

 

[7]      The attitude of the 1st and 2nd respondents is that there is no prima facie evidence that they have committed a wrongful act in violation of the applicants’ rights.  Their case is that they have no control over the identity of persons nominated or elected as councillors, and are not responsible for the termination of a councillor’s term of office. The representatives of the various political parties on council are determined by the results of elections held by the 4th respondent. These results determine who enters the municipal council, whether by reason of his or her position on the party lists or by reason of the result of an election for a ward which he or she has fought and won. The results are declared by the 4th respondent and are implemented by it and the various political parties. The 1st and 2nd respondents have no say in the matter. Their conduct thereafter is authorized and regulated by statute and the subsidiary legislation promulgated thereunder.[1] Whatever they did or did not do before and after being notified of the expulsions was in accordance with their statutory obligations, and cannot therefore be unlawful. In this case the applicants took up their places on the council without licence from the municipality. The payment of their remuneration and other service benefits, and the use of office premises and other municipal property followed as a matter of course. Similarly, when the IEC and the ANC notified the municipality that the applicants had ceased to be councillors and that vacancies had been created, they had no say in the matter. The 1st and 2nd respondents were no longer able to pay remuneration to persons who, they were advised, were no longer councillors. They were under an obligation to recover municipal property from persons no longer entitled to possess it. They had no basis for going behind a formally made notification by the 3rd and 4th respondents that the applicants were no longer councillors. They cannot sensibly be called upon to show cause why they did or did not do things which were, in the event, inexorably governed by statute. The result is that the 1st and 2nd respondents’ explanation throws considerable doubt upon the right which is the subject-matter of the main action and which the applicants seek to protect by means of interim relief. The violation of that right by the 1st or 2nd respondents is not prima facie established, though open to some doubt; it is open to serious doubt. It seems to me, therefore, that the only relief which can sensibly be granted in respect of their future dealings with the applicants would be a declaratory order that the expulsion of the applicants is to be regarded as suspended pending the review. Mr Cole has in the alternative applied on behalf of the applicants for modified relief in the form of a declarator. Mr Quinn, who appears for the first  three respondents and who is aware that there is no prayer for alternative relief, has pointed out that this is not the case which the 1st and 2nd respondents came to meet, and asks that the application against them should be dismissed with costs. In view of the fact that 1st and 2nd respondents have no interest in the outcome of a review of the ANC’s decision to expel the applicants, and in view of the fact that if the applicants are successful on review they will become entitled to remuneration until the lawful termination of their term of office regardless of any order, declaratory or otherwise, against the 1st and 2nd respondents, there seems to me to be no justification for issuing even a declaratory order against them. They would probably not have opposed a declaratory order if that had been all that the applicants asked for. The claims against them are dismissed with costs.  I can see no reason why this costs order should not operate against all nineteen applicants jointly and severally, the one paying the others to be absolved.

 

[9]       I turn now to the relief sought against the 3rd respondent. It is common cause that the 3rd respondent expelled the remaining five applicants from the ANC without a hearing. It is also common cause that the constitution and code of disciplinary practice of the ANC provide for expulsion if a member should join another political party, and that it expressly requires a proper enquiry into the issue. Further, expulsion is not to take effect until disposal of any appeal against the expulsion. It is not disputed that the applicants have appealed and that the appeal has not yet been heard. The conclusion from all of this is inevitable. The failure to hold an enquiry and give the applicants a hearing on whether or not they should be expelled was prima facie a violation of their right to fair and just administrative action. So too was the 3rd respondent’s conduct in putting the expulsion into effect without hearing the appeal. This case is properly established on the applicants’ version of the facts together with the facts put up by the respondents which cannot be disputed and the probabilities of the case as a whole. No serious doubt about it is raised by the 3rd respondent’s allegations. The 3rd respondent concedes that these applicants were expelled without a hearing, and that their expulsion still stands. It does not dispute that the 3rd respondent’s constitution and code of practice requires a proper hearing and permits an appeal, and that the appeal which was noted has not been heard and finalized.

 

[10]     Although the facts alleged by the 3rd respondent do not cast serious doubt upon the prima facie right established by the applicants, Mr Quinn argued that a doubt is indeed raised by their concession in reply that subsequent to being summarily expelled from the ANC they joined COPE.          Their allegation that they did not do so before their expulsion is not and cannot, at this stage of the proceedings, be contradicted or challenged. There is no merit in the suggestion by Mr Quinn that their subsequent membership of COPE justifies their expulsion in contravention of the principles of natural justice. This kind of ex post facto reasoning cannot at the stage of an application for an interim interdict frustrate the applicants’ prima facie right to rely upon the rules of fundamental fairness. It is indeed so that they will no longer have a defence to expulsion if a fresh allegation is now made and a proper enquiry is now held based on their admitted membership of COPE. This being so, the review they propose bringing may prove to be purely academic except perhaps insofar as their right to remuneration for a limited period is concerned. In that context Mr Quinn pointed to the provisions of schedule 6B of the Constitution of the Republic of South Africa which state that by operation of law a councillor ceases to be a member of a municipal council if he or she ceases to be a member of the party which nominated him or her as a councillor. Once again, this may have bearing on payment of remuneration, but it cannot be used retro-actively to deprive the applicants of rights which they had prior to ceasing to be members of the ANC.

 

[11]    I have come to the conclusion that the 4th, 5th, 6th, 7th, and 18th applicants have established a violation of a right which is prima facie established though open to some doubt.  There is no suggestion that the further requisites for an interim interdict – a reasonable apprehension of irreparable harm, balance of convenience and no other remedy – are not present. They follow as a matter of course and nobody has suggested that relief should not be ordered because one or other of them is not established. The 4th, 5th, 6th, 7th, and 18th applicants are accordingly entitled to an interim interdict as against the 3rd respondent as provided for in the rule nisi set out in the notice of motion.

 

[12]     Mr Quinn sought to limit the entitlement of the applicants whose costs are tendered to the costs of the proceedings up to the date of filing the 3rd respondent’s opposing affidavit, which, according to its attorney, was 24 April 2009. It seems to me that the costs of an opposed hearing had already been incurred by 16 April 2009 when the matter was first set down and called in court, and that the costs of the opposed hearing on 30 April 2009 must already have been incurred, and reasonably so, by the 1st, 2nd and 3rd applicants, the 8th to 17th applicants, and the 19th applicant long before 24 April 2009. The costs order must therefore include costs reasonably incurred before but disbursed for work done after 24 April 2009.

 

[13]    There will be the following order:

 

4.               The claims by 1st to 19th applicants against the 1st and 2nd respondents are dismissed with costs, which are payable by the 1st to the 19th applicants jointly and severally the one paying the others to be absolved. The costs shall include the costs which were reserved on 16 April 2009.

 

5.               The 3rd respondent is ordered to pay the costs of the 1st, 2nd and 3rd applicants, the 8th to the 17th applicant, and the 19th applicant, which will include all costs reasonably incurred before but disbursed for work done after 24 April 2009. The costs shall include the costs which were reserved on 16 April 2009.

 

6.               A rule nisi will issue, returnable on 29 May 2009, calling upon the 3rd respondent to show cause why it should not be ordered, pending the outcome of an application to review the expulsion of the 4th, 5th, 6th, 7th, and 18th applicants from the African National Congress with effect from 10 February 2009, -

 

(a)  that the 3rd respondent be directed to allow the 4th, 5th, 6th, 7th, and 18th applicants to continue to perform their duties as councillors of the 1st respondent, and to take all such steps as may be necessary to facilitate enabling them to perform their duties as councillors of the 1st respondent;

 

(b)  that the 3rd respondent take all steps necessary to advise the 1st and 4th respondents that the expulsion of the 4th, 5th, 6th, 7th, and 18th applicants with effect from 10 February 2009 is suspended and not to take effect, and that they are to be regarded as properly elected councillors of the 1st respondent until their term of office is lawfully terminated, whether by expulsion or by reason of the operation of the provisions of schedule 6B of the Constitution of the Republic of South Africa or any other law;

 

(c)  that no vacancies exist on the 1st respondent’s council by reason of the expulsion of the 4th, 5th, 6th, 7th, and 18th applicants with effect from 10 February 2009;

 

(d)  that by-elections in respect of the office of the 4th, 5th, 6th, 7th, and 18th applicants as councillors be cancelled;

 

(e)  that ratification of the membership of the 5th, 6th, 7th, 8th and 9th respondents be suspended;

 

(f)    that the 3rd respondent pay the 4th, 5th, 6th, 7th, and 18th applicants’ costs of this application.

 

7.               The provisions of paragraph 3(a) to 3(e) hereof shall operate as an interim interdict pending the return date.

 

In the event that the rule is made absolute the 4th, 5th, 6th, 7th, and 18th applicants will no doubt be put to terms at that stage in respect of the commencement of their application for review if it has not already been commenced. It is unnecessary to do so now.

 

RJW JONES

Judge of the High Court

6 May 2008