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IN THE HIGH COURT OF SOUTH AFRICA

(NATAL PROVINCIAL DIVISION) (REPORTABLE)

CASE NO: 6883/07

In the matter between:

MATHEW SHUNMUGAM AND 17 OTHERS APPLICANTS

and

THE NEWCASTLE LOCAL MUNICIPALITY

AND 15 OTHERS RESPONDENTS

and

CASE NO: 7680/07

In the matter between:

THE NATIONAL DEMOCRATIC

CONVENTION APPLICANT

and

MATHEW SHUNUMUGAM AND 37 OTHERS RESPONDENTS

J U D G M E N T

Delivered on : 4 December 2007

RALL A. J.:

[1] This is the judgment in two applications which deal with the so-called floor crossing legislation, that is, Schedule 6B to the Constitution. What precipitated these two applications was the floor-crossing period, which commenced at midnight on 31 August 2007 and ended at midnight on 15 September 2007, together with a series of disciplinary hearings, which took place in the weeks leading up to this period. These proceedings culminated in a number of members of the political party, the National Democratic Convention (NADECO), who were also municipal councillors in various municipalities in Kwazulu-Natal, being expelled from NADECO. During the floor crossing period they joined other political parties.

[2] The first application was brought under case number 6883/07 by eighteen of those municipal councillors. The respondents are the municipalities in which the applicants serve as councillors, the Electoral Commission (EC), and the political party to which the applicants once belonged, namely, NADECO which was cited as the sixteenth respondent. The relief claimed in the notice of motion was in effect, although not in terms, the reviewing and setting aside of the expulsion of the applicants from NADECO, together with certain consequential relief. In terms of the notice of motion, the applicants did not seek a rule nisi but final relief.

[3] The first application which was effectively brought ex parte, came before Madondo J on 24 August 2007 when only the applicants were represented. A rule nisi was granted together with interim relief, the return date being 27 September 2007. The interim relief which was granted included a declaration that the expulsion of the applicants from NADECO was declared to be unlawful and set aside, and that the replacement of these applicants as councillors was declared to be unlawful and set aside. Clearly therefore, although couched in the form of interim relief, this amounted to final relief.

[4] Not surprisingly, as soon as NADECO became aware of this order, it brought an application in terms of Rule 6 (12) (c) for the order to be reconsidered. The matter was set down for hearing on 30 August 2007 before Msimang J. It could not be finalised on that day and so was also dealt with by the same judge on the following day. After some argument, an order was taken by consent of the applicants and NADECO, the only respondent represented at court. Because reliance is placed on this order and because there is no agreement on the meaning of the second paragraph of it, it is necessary to set out the first two paragraphs in full. They read as follows (with some obvious typographical errors corrected):

“1. That the Rule Nisi granted on 24 August 2007 be and is hereby discharged.

2. That pending final determination of this application:

   1. The First to Eighteenth Applicants remain suspended as members of the Sixteenth Respondent;

   2. That the Sixteenth Respondent undertakes not to replace the Applicants as councillors of the First to Fourteenth Respondents;

   3. That the Sixteenth Respondent’s attorney of record, Messrs John Wills Attorney, undertakes to inform the First to Fourteenth Respondents and the Independent Electoral Commission, in writing, on or before midnight of 31 August 2007 accompanied by a copy of this Order of Court that the Applicants will not be replaced as Councillors of the First to Fourteenth Respondents.”

[5] In terms of paragraph 3 of the order, the application was

adjourned to the opposed roll on 12 September 2007. It is common

cause that the reason why this date was chosen was to enable the

matter to be finalised before the end of the floor crossing period. For this reason

also, the order provided for the delivery of affidavits and heads of argument prior

to 12 September 2007.

[6] Whatever NADECO thought the order of 31 August 2007 meant and whatever it expected to happen on 12 September 2007, it was in for a surprise. Prior to the hearing, NADECO must have suspected that some floor crossing had taken place because when the matter was called on 12 September 2007 the applicants’ senior counsel Mr Choudree, informed the court in response to a request from Mr Stewart SC, NADECO’s counsel, that his clients had indeed resigned from NADECO and joined other parties.

[7] The chickens having flown the coop the first application had lost, if nothing else, its urgency. As a result, although NADECO attempted to persuade the court to dismiss the application, an order was taken by consent adjourning the matter sine die and reserving the question of costs. Significantly however the order repeated paragraph 2 of the order of 31 August 2007.

[8] NADECO attempted to get clarity from the EC on the status of the applicants but had no success until it established on 19 September 2007 that the EC had recognised that the applicants had crossed the floor to their new political homes without losing their seats. The first six and the seventeenth and eighteenth applicants had joined the Federal Congress (FC), the seventh, ninth, tenth, twelfth, thirteenth and nineteenth applicants had joined the Federal African Convention (FAC) (all of whom are collectively referred to as the FC and FAC councillors, applicants and respondents) and the eleventh, fifteenth and sixteenth applicants had joined the Inkatha Freedom Party (IFP).

[9] This prompted NADECO to launch the second application which was brought under case number 7680/07 as an urgent application. In this application, all the applicants in the first application are respondents, together with a further councillor who had been expelled from NADECO, the nineteenth respondent. The nineteenth respondent had joined the FAC during the floor crossing period. The other respondents are the municipalities involved, the FC, the FAC, the IFP and the EC. This application was essentially aimed at enforcing the expulsions of the councillors and NADECO sought a rule nisi with interim relief. However, when the application was heard on 21 September 2007 the court was not prepared to grant interim relief and the matter was adjourned to 27 September 2007 with directions as to the filing of answering and replying affidavits on the question of interim relief.

[10] On 27 September 2007 both applications were adjourned for argument on 22 October 2007. On that day I heard full argument from all the parties and gave them permission to file supplementary heads of argument thereafter. By this stage, the eleventh, fifteenth and sixteenth applicants in the first application, namely, those who had joined the IFP, had changed attorneys, and so were separately represented at the hearing. A further consequence of this change in representation was that the IFP councillors brought a separate counter-application to the second application and attempted to distance themselves from the first application.

[11] At the hearing there were some preliminary skirmishes about service on the respondents in the second application and about the relief which had been adjourned for argument in that application. However, at the end of the day, it was agreed that all the respondents had been given proper notice of the hearing and that NADECO was entitled to ask for all the relief set out in the notice of motion. To the extent that it is necessary, I grant condonation for any non-compliance with the rules relating to notice and service.

[12] In summary, what the various parties were seeking by way of substantive relief during argument was the following:

1. The FC and FAC applicants conceded that they were no longer entitled to an order setting aside their expulsions and re-instating them as members of NADECO, but sought a declaratory order that their expulsions were unlawful. Their counsel Mr Choudree contended that in the event of the court not being able to make such an order because of irresolvable disputes of fact, the matter should be referred for oral evidence.

2. The IFP councillors did not persist with any relief in the first application but instead relied on the relief as set out in their amended counter-application and argued that even if the first application failed, they should not be liable for costs. In the counter-application they sought a declaratory order that their expulsions were unlawful, an order that their expulsions be reviewed and set aside, and an order declaring that they were members of NADECO on 31 August 2007.

3. NADECO persisted with the second application which was for an order declaring that all the erstwhile NADECO councillors had ceased to be members of the party prior to midnight on 31 August 2007, and that they were no longer municipal councillors. NADECO also sought consequential relief, namely, the alteration of various consequences of the councillors having changed parties. The first part of this relief was the reviewing and setting aside of the decisions by the EC to recognise the councillors as councillors of their respective municipalities representing their new parties. Secondly, they asked for a declaratory order that the seats formally held by these councillors had become vacant. Finally, they sought an order directing the EC to fill the vacancies created by the expulsion of the councillors from NADECO and to amend the notices published in terms of Section 93 B of the Local Government: Municipal Structures Act.

[13] The opposition to the two applications and the counter-application took the following form:

1. NADECO opposed the first application.

2. The FC and the FAC respondents, together with the FAC, the FC and one of the municipalities who had been cited as respondents, the Amajuba District Municipality (the twenty-first respondent), opposed the second application. I should point out that originally a number of other municipalities also opposed this application, but when the authority of the attorneys of record to represent these municipalities was challenged by NADECO, the attorneys withdrew as attorneys of record and the municipalities played no further role in the matter.

3. The IFP respondents, together with the IFP itself opposed the second application.

4. The nineteenth respondent opposed the second application.

5. Finally, NADECO opposed the counter-application.

[14] Central to this case is the status of the various councillors as at midnight on 31 August 2007. Put another way, were these councillors still members of NADECO at that time? This issue is central firstly because of the provisions of item 1 of Schedule 6 B to the Constitution, which lays down the basic rule, namely, that if a councillor ceases to be a member of the party which nominated him or her, that councillor ceases to be a member of the council in question. Items 2, 3 and 7 create exceptions to this rule and the exception which is relevant to this case is the one created by item 2, read with item 4. This exception is that if a councillor changes parties during the period of 15 days from 1 to 15 September in the second and fourth years after the election of all municipal councils (ie. 2005 and 2007), that councillor does not lose his or her seat. Secondly, item 4 (2) (c ) of that schedule prohibits a party from suspending or expelling councillors during that period.

[15] The basic rule then is that if a councillor ceases to be a member of his or her political party that councillor loses his or her seat. In this case this means that if the councillors ceased being members of NADECO before midnight on 31 August 2007, they ceased being councillors and NADECO was entitled to insist that they be replaced as councillors. However, if they were still members of NADECO at that time, they could not be expelled until after midnight on 15 September 2007 and were entitled to join other parties during that period without losing their seats.

[16] What then was the status of the councillors as at 31 August 2007? Whilst the lawfulness of the expulsions is hotly disputed, what is not in dispute is that NADECO actually expelled the councillors prior to 31 August 2007. In fact, that is the very basis of the first application and the counter-application. But that is not the end of the matter because the councillors contend firstly, that they are entitled to orders setting aside their expulsions. As pointed out above, during argument on 22 October 2007 only the IFP councillors advanced this argument. However, in their supplementary heads of argument, the FC and FAC councillors changed tack and reverted to this argument. Secondly, they argue that because some expelled members had lodged appeals against their expulsions their expulsions were suspended and so they were still members of NADECO on 31 August 2007. If the councillors succeed in obtaining orders setting aside their expulsions, then it would follow that as at 31 August 2007, they were still members of NADECO and were therefore entitled to cross the floor without losing their seats. This is because any setting aside of an expulsion would operate retrospectively to the time of the expulsion.

[17] The first application was launched prior to the opening of the floor crossing period but the councillors had not obtained an order setting aside their expulsions prior to their joining other parties (apart of course from the order of 24 August 2007 which was later set aside). The question then is whether it is still open to them to seek that relief. NADECO contends that by joining other parties the councillors abandoned their right to challenge their expulsion from NADECO.

[18] Advancing this argument, Mr Stewart, who appeared with Mr Du Plessis for NADECO, relied on the well known statement by Innes C J in Laws v Rutherford 1924 AD 261 at 263 that waiver is proved where the party ascertaining it shows “that the respondent, with full knowledge of his right, decided to abandon it, whether expressly or by conduct plainly inconsistent with an intention to enforce it.” In this case not only do we have conduct on the part of the councillors, namely their decision to join other parties, but statements made on their behalf at the hearing of the first application on 12 September 2007.

[19] To me there can be no clearer and more unequivocal statement by conduct of a wish to no longer have anything more to do with their political home, NADECO, than their joining other political parties. If they were still members of NADECO, then this amounted to a resignation from that party and if they were no longer members this was a statement that they had no intention of regaining their membership. This conduct is plainly inconsistent with an intention to enforce the right to set aside their expulsion from the party and hence regain membership thereof. I am therefore of the opinion that in doing so the councillors abandoned that right. Were this not the case, the absurd situation would arise where persons who are members of one party would simultaneously become members of another party. Even if one were to say that their membership of NADECO was only to last from their expulsion to their joining of the other three parties, the situation would still be absurd.

[20] In my opinion, this abandonment was also expressed on 12 September 2007 when the first application came before court. The record of the proceedings on that day reveals that Mr Choudree, who was representing all of the applicants at that stage, stated, after having informed the court that his clients had crossed the floor that the application had become academic save for the question of costs. Finally, in the heads of argument the original relief in the first application was not persisted with. All that was sought was a costs order. It was only during argument that it was submitted that a declaratory order should be granted. As pointed out, there was another change of course in the supplementary heads of argument. Quite what these councillors ultimately sought is not very clear to me. However, for the reasons mentioned already, they are not entitled to an order setting aside their expulsions.

[21] In my opinion, the councillors had to have their expulsions set aside prior to their crossing the floor if they wanted to ensure that they did not lose their seats and this is precisely why the first application was adjourned to a date prior to the end of the floor crossing period. It is now too late for them to do that.

[22] If what was contended on behalf of the FC and the FAC councillors was that notwithstanding their having joined other parties, they were nevertheless entitled to declaratory orders that their expulsions were unlawful, I do not agree with them. In the words of Conradie, J (as he then was) in Naptosa and others v Minister of Education 2001 (2) SA 112 (C ) at 125D – E:

“A declaratory order is an order by which a dispute over the existence of some legal right or entitlement is resolved. The right can be existing, prospective or contingent (Suid-Afrikaanse Onderlinge Brand en Algemeene Versekeringsmaatskapy v Van den Berg 1976 (1) SA 602 (A)). A declaratory order need have no claim for specific relief attached to it, but it would not ordinarily be appropriate where one is dealing with events which occurred in the past. Such events, if they gave rise to a cause of action, would entitle the litigant to an appropriate remedy.”

As was also stated in Eagles Landing Body Corporate v Molewa NO and Others 2003 (1) SA 412 (T) where declaratory orders were sought regarding the lawfulness of construction already completed:

“[62] Even on the premise that there is a real dispute between the parties as to the lawfulness of what was done, and even if the dispute therenent were resolved in favour of the applicant, if the declaration of unlawfulness would stop just there, i.e., with the issue thereof, without any further order as to any action to be taken by any of the respondents, the issue of the orders would have no practical effect and would indeed be the product of an academic exercise……………. Should the orders sought be granted, that might be a moral victory for the applicant, but nothing more. The practical status quo would remain. The required tangible or justifiable advantage in relation to the applicant’s position with reference to an existing, future or contingent right, would not flow from the grant of the declaratory orders sought. Adbro Investment Co Ltd v Minister of the Interior and Others 1961 (3) SA 283 (T) at 285D

[63] On analysis, therefore, I was invited merely to express a legal opinion as to whether certain conduct had been unlawful or not and whether the results thereof are unlawful or not. In terms of the principles referred to above as to the approach to be adopted by a court in such a case I decline the invitation.

[64] In the event that I err in the conclusion set out above, I state the following: if there is a dispute that could otherwise properly be the subject of a decision in terms of Section 19 (1) (a) (iii) I nevertheless retain a discretion in the matter. Because no benefit, in practical and real terms, to the applicant would result from an order for any of the relief it seeks I consider that it would be a proper exercise of my discretion to refuse to make any of the orders requested.”

[23] Applying these principles to the present case, I am of the opinion that a declaratory order would not have the effect of restoring the councillor’s membership of NADECO. It would merely be declaratory of the legality of the expulsions and so be academic. For that reason there would be no basis for making such an order

[24] The next matter that must be dealt with in connection with the first application is the court order of 31 August 2007. This is because the AC and FAC councillors rely on it for the relief sought by them. Mr Choudree contended that the effect of the order was that the status of the councillors was transformed from that of expelled members to suspended members. This, Mr Choudree submitted, was because the order did not expel them but had the effect of rescinding their expulsion and then suspending them. He argued that these two words had different meanings and that a person who is suspended from an organisation is not precluded from resigning from that organisation. The effect of this, he concluded, was that as at midnight on 31 August 2007 his clients were still members of NADECO, albeit suspended, and were free to resign from the party without losing their seats.

[25] Mr Stewart argued that what was meant by the order was that the councillors, in effect, remained expelled from NADECO. This argument was based on an interpretation of “suspend” in terms of which the word meant the same as “expel”.

[26] Ms Annandale who represented the IFP and its councillors, argued firstly that whatever the order meant, it did not mean that the IFP councillors ceased to be members of NADECO. She argued further that because item 4 (2) (c) of schedule 6 B to the Constitution prohibited a party from suspending a member during a floor crossing period without that member’s written consent, the order was inconsistent with the Constitution, and so in terms of section 2 of the constitution it was invalid and of no force and effect. Finally, she submitted that the order was probably not capable of interpretation.

[27] If the order is clear or unambiguous, I am obliged to look to nothing other than the order itself in order to interpret it. It is only if the order is not clear that extrinsic circumstances can be taken into account (Administrator Cape and Another v Ntshwaqela and Others 1990 (1) SA 705 (A) at 715F; Firestone South Africa (Pty) Ltd AG v Gentirouco 1977 (4) SA 298 (A)). From the order itself it is not clear what the word “suspended” means because I consider it ordinarily means something short of expulsion and therefore not a barrier to a resignation. It is therefore not clear why a declaration such as that in paragraph 2 (a) would be included in the order. I am therefore of the opinion that I am entitled to consider the context in which the order was granted in order to interpret it.

[28] In construing the order, the following relevant circumstances should be borne in mind:

1. The first application was premised on the expulsion of certain of the councillors, albeit that some of the councillors were uncertain of their status.

2. The relief sought in the notice of motion in the first application was for the setting aside of the expulsions and not the suspensions of the applicants from NADECO.

3. In contrast to this, the notice of motion referred to the “dismissal, suspension, expulsion and replacement” of applicants as councillors from municipalities.

4. Curiously however, the order of 24 August 2007 referred to the suspension and/or expulsion of the first six applicants.

5. At the hearing on 31 August 2007 it was clear that NADECO contended that all the applicants had been expelled from the party.

6. The order was granted on the eve of the floor crossing period and the matter was adjourned for argument on a date prior to the end of that period so that the matter could be finalised before the period closed.

7. The purpose of the order was to satisfy the fears of both parties, NADECO’s being that the councillors would cross the floor and that of the councillors being that they would be expelled from NADECO and consequently lose their seats. This is apparent from the interaction between Msimang J and the parties’ legal representatives on 31 August 2007 referred to below.

8. When asked by the judge why the applicants had required interim relief, Mr Choudree stated that his clients feared that the EC and NADECO would take steps to have them replaced as members of NADECO. He then expressed the opinion that if an undertaking was given that these steps would not be taken, his clients would be happy for the matter to be adjourned for the filing of the affidavits and for the matter to be finalised on the opposed roll.

9. Mr Wills who was representing NADECO at that stage confirmed to the court that it was NADECO’s fear that if the applicants were re-instated, albeit temporarily, they might cross the floor.

10. The judge then went on to state to Mr Choudree “…………..you don’t want …………the IEC to take steps …….. on the other hand, they are afraid that if they re-instate you, come 12 midnight you jump ship. Certainly, it looks as though if you can be given those respective assurances then we can give this matter an opportunity to be dealt with on the merits.” To this Mr Choudree replied, “Indeed, my Lord.”

11. The judge then pointed out that although the applicants had a constitutional right to cross the floor they could always waive that right and consent to an order of court. He concluded, just before the matter stood down, so that a draft order could be prepared by saying “but what I was going to suggest is that if you are amenable to what I am saying, I am suggesting to you with respect, I am not ordering you, I am suggesting if you can do a proper draft order which will take care of your concerns then we can wrap it up.”

12. The matter then stood down and after some time, Mr Choudree informed the court that the parties had agreed in principle to the way forward, stating “….. we were informed, by clients, that the suggestion of a suspension being in place pending the outcome of this matter and the rule being discharged and the IEC and municipalities being informed by my learned friend on behalf of NADECO, that my clients will not be replaced as councillors, it is acceptable and in those circumstances, my Lord, my learned friend Mr Wills has agreed to in consultation with my junior, prepare a consent order with a view to approaching your Lordship in chambers to make that the order that the parties will abide by.” The judge then went on to ask whether the matter could be argued before the end of the season because it was the constitutional right of the applicants to cross the floor and then Mr Choudree, in agreeing with this proposition, informed the court that 12 September 2007 was possibly available. The matter stood down again, a draft order was prepared and the order was taken in chambers.

[29] In my opinion, the ordinary meaning of the word “expel” is that the membership of the person involved is terminated. It has an element of finality about it. On the other hand, the ordinary meaning of the word “suspend” is that a person’s membership is not terminated but is not fully operative. The person remains a member but is not able to exercise his or her rights of membership. The sanction of expulsion is undoubtedly more severe than that of suspension. In the former case the person is completely deprived of membership whereas in the latter the person, whilst still a member, is unable to exercise the rights of membership. This difference is illustrated in cases such as Bekker v Western Province Sports Club 1972 (3) SA 803 (C ) and Naidoo v Director of Education 1982 (4) SA 267 (N). Or as it was put in the well known English case of John v Rees [1969] 2 All ER 274 (ChD) at 305 E-G a suspension is an expulsion pro tanto. NADECO’s own constitution distinguishes between suspension of membership and expulsion from the party as a form of sanction in disciplinary proceedings.

[30] The restriction imposed by a suspension in this sense has an internal effect. The suspended member is unable to exercise his or her rights of membership in the organisation. In the absence of a provision in the constitution of the organisation limiting the right of members to resign at will (for example a requirement that a resignation must first be accepted by the organisation to be effective) I am of the opinion that a suspension is not a bar to a resignation. Accordingly, the word “suspended” was used in this sense in the order of 31 August 2007, the councillors were free to resign from NADECO and join other parties during the window period without the fear of losing their seats.

[31] None of the parties suggested that the use of the word suspended in the order had been anything other than intentional and they did not contend that what was intended to be used was “expelled”.

[32] There is authority for the proposition that, depending on the circumstances, suspension can mean expulsion. In one case, the constitution of a trade union empowered the executive council of the union to suspend any branch executive committee and to take over the management of the branch “until another branch committee is appointed.” The court held that it was clear from the terms of the sub clause in question that suspension had the same effect as dismissal, the executive committee is put out of office. (Govender v Textile Workers’ Industrial Union 1961 (3) SA 88 (D) at 94 D).

[33] Paragraph 2 (a) of the order was declaratory of the situation that was to obtain pendente lite. As such, so it purported to order that the pre-existing situation was to continue until the finalisation of the application. Bearing in mind that at that stage there was no suggestion that any of the applicants had been suspended, this appears to be a strong indication that what was meant was not suspension in the ordinary sense but expulsion.

[34] I am of the opinion that paragraph 2 (b) of the order is significant. To me it is the quid pro quo for paragraph 2 (a) and this appears not only from the order itself but from the exchanges between the judge and the legal representatives on 31 August 2007. In exchange for the order in paragraph 2 (a), NADECO undertook not to replace the councillors. It seems to me that was intended was that in exchange for the concession from NADECO not to replace the councillors, the councillors acceded to an order restricting their right to join other parties without losing their seats. It was suggested that the undertaking in paragraph 2 (b) was inserted at the insistence of the councillors to ensure that NADECO did not act unlawfully (by replacing the councillors). I do not agree. That paragraph was aimed at maintaining the status quo in relation to the replacement of the councillors and paragraph 2 (a) was aimed at freezing the status quo in relation to the councillors joining other parties.

[35] It is inconceivable therefore that what the court was intending to do was to rescind the existing expulsions and substitute them with orders of suspension. I am therefore inclined to the view that the word “suspended” was intended to be a synonym for “expelled”, failing which, it was not capable of interpretation. I do find however that the order does not have the meaning ascribed to it by the FC and FAC councillors.

[36] A further reason advanced by NADECO for the dismissal of the first application is that in respect of all but the first six applicants, no case whatsoever was made out in the founding papers either for the setting aside of the expulsions or a declaratory order that the expulsions were unlawful. It is one thing to set out a cause of action inadequately in founding papers but quite another to make out no cause of action whatsoever. I am therefore of the opinion that this would be a further basis for refusing the first application against the seventh to eighteenth applicants.

[37] Finally, it was argued on behalf of NADECO that there had been a fatal non-joinder of parties to the first application, namely, persons who had already been identified as the replacements for certain of the applicants. Because of the conclusion that I have come to on the other grounds of opposition to the first application, it is not necessary for me to decide this point. I am however inclined to the view that it was not necessary for these parties to be joined, because they had not yet become councillors as replacements for the applicants.

[38] I therefore conclude that neither the first application nor the counter-application can succeed.

[39] I turn now to the second application. Before dealing with the merits of the application I should deal briefly with a preliminary objection raised by the AC and FAC councillors, the FAC and the twenty-first respondent. They contend that there was a fatal non-joinder in that the MEC for Local Government in Kwazulu-Natal ought to have been joined in the proceedings. I do not agree with this submission. No relief was sought against him and none of the relief sought affected any rights of the provincial government.

[40] In my opinion, the second application must succeed if the councillors were no longer members of NADECO on 31 August 2007 unless the councillors are entitled to challenge the lawfulness of their expulsions. In my judgment, they are not.

[41] In Max v Independent Democrats 2006 (3) SA 112(C ) at 117H-118C, Davis J tended to favour the view that the expulsion of a member of a political party constitutes administrative action in terms of the Promotion of Administrative Justice Act, 3 of 2000 (PAJA). Similar sentiments were expressed by the same judge in Diko and Others v Nobongoza and others 2006 (3) SA 126 (C ). However, in Marais v Democratic Alliance 2002 (2) BCLR 171 (C ), a two judge bench of the Cape Provincial Division concluded that a decision to dismiss a member of a political party who was also a municipal councillor did not constitute administrative action for the purposes of PAJA. In addition, in Institute for Democracy in South Africa v African National Congress 2005 (5) SA 39 (C ) the court left open precisely what the boundaries of “public bodies”, “private bodies” and “public functions” are for purposes of the Promotion of Access to Information Act, 2 of 2000 (PAIA). It was held in the IDASA case that private fund raising by a political party does not render that party a public body as defined by PAIA. I am inclined to the view that although internal disciplinary proceedings may have consequences which affect the public, they do not constitute the exercising of a public power or the performing of a public function for the purposes of PAJA. I am instead inclined to the view that the activities of a domestic tribunal of a political party are on the same footing as that of any other tribunal established by contract, for example that of a voluntary association and therefore that its actions do not constitute administrative action as defined in PAJA (Klein v Dainfern College 2006 (3) SA 73 (T)). In the absence of full argument on this point, I do not consider it wise to decide it. Were such proceedings to be administrative action, a strong argument could be made out, on the strength of the judgment in Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) that an expulsion is an official act and therefore stands until such time that it is set aside.

[42] I therefore approach the matter on the basis that the expulsion of the councillors was no different from the expulsion of a member of any other voluntary association. In my opinion, a member of a voluntary association or organisation such as a political party who has been expelled and who both contends that the expulsion was unlawful and wishes to enforce his or her membership rights, must, if the organisation does not concede the unlawfulness of the expulsion, take steps to have the expulsion reviewed and set aside. Such a person is put to an election. If the person, notwithstanding the contention that the expulsion was unlawful, decides not to challenge it, he or she is taken to have accepted the expulsion, and the expulsion will stand notwithstanding the fact that it may not have been lawful. In my opinion the situation is analogous to the one described in the Oudekraal case, although not on all fours with it.

[43] It may well be that it would be open to an expelled member to resist an application by the organisation for an interdict enforcing the expulsion (for example prohibiting the expelled member from entering the premises of the association) on the basis that the expulsion was unlawful, without first having to have the expulsion set aside. (See for example African Congregational Church v Dimba 1933 WLD 29) However, the granting of an interdict is a discretionary matter. Secondly, I am of the opinion that it would not be open to an expelled member who has abandoned the right to re-instatement to contest the granting of an interdict of the kind dealt within the Dimba case. Likewise in this case, I am of the opinion that a further consequence of my finding that the eighteen councillors involved in the first application had abandoned their right to set aside their expulsions from NADECO, is that it is not open to them to resist relief based on their expulsions, which is precisely what NADECO seeks in the second application. To allow them to do so would be to allow them to blow hot and cold.

[44] It follows from what I have already said that the only possible obstacle in the way of NADECO succeeding in the second application is any appeals which were still pending as at 31 August 2007. This is because if an appeal suspends an expulsion, those who had lodged an appeal would still have been members of NADECO on that date. In the case of certain of the respondents this issue does not arise because it is common cause that there were no appeals pending at that date. On this aspect, NADECO argues as follows. Firstly, that the councillors were required in terms of NADECO’s constitution to first apply for leave to appeal and that the documents which were lodged were not applications for leave to appeal, secondly, that an application for leave to appeal does not suspend an expulsion, and finally, that by launching the first application those of the first eighteen respondents who had appealed, abandoned those appeals.

[45] Because of the view that I take on the final point, it is not necessary for me to decide the other issues, save in relation to the nineteenth respondent who was not a party to the first application. I am of the opinion that an internal appeal and a review could easily result in conflicting decisions and so are inconsistent with each other. This problem does not arise if the remedies are pursued sequentially. However, if the remedies are pursued simultaneously, the problem definitely does arise. In this case, one only has to compare the grounds of appeal set out in the various notices of appeal or applications for leave to appeal with the grounds of review set out in the first application to realise the extent of the problem. The main thrust of the complaints as set out in the notices of application for leave to appeal was that there was a flagrant disregard of the rules of natural justice, including the requirement of reasonable notice. This is also the thrust of the first application and of the opposing affidavits in the second application. In fact, it appears from the papers that prior to the expulsions relied upon by NADECO, the first six respondents were expelled from the party, appealed against the expulsions and had their expulsions set aside on the grounds that they had been given inadequate notice of the hearings. This amounts to a recognition that the hearings were not procedurally fair, for non-compliance with the rules of natural justice and emphasizes the possibility of conflicting decisions arising from the appeals and the review.

[46] Therefore, applying the test in Laws v Rutherford, I conclude that by launching the first application, those of the first eighteen respondents who had applied for leave to appeal, abandoned those appeals and therefore that they were no longer members of NADECO when the floor crossing period opened. This means of course that the second application must succeed against the first eighteen respondents.

[47] The second ground advanced by NADECO for the relief sought by it in the second application is based on an interpretation of the court order granted on 31 August 2007. Because of the conclusion that I have reached on the first ground, it is not necessary for me to interpret this order for purposes of the second application.

[48] As far as the nineteenth respondent is concerned, SHE contends that she noted a timeous appeal against her dismissal and therefore that as at 31 August 2007, she was still a member of NADECO. NADECO’s response to this in its replying affidavit is to admit having received the documents in question but to aver that because it was not addressed to any of NADECO’s officials and because it referred to the nineteenth respondent as being a member of the wrong municipality, it was fatally defective. I am of the opinion that these objections are without merit. Firstly, although not in terms directed to a particular official, the notice was sent under cover of a letter from the nineteenth respondent’s attorneys directed to the federal chairperson of the party and to its provincial office. The telefax numbers used in this letter were the same ones used in the case of the appeals of the first six respondents, referred to above, which were upheld. It does not appear from the papers whether the various disciplinary committees have their own addresses. I am of the view therefore that there was proper service of this document. The second point is totally without substance because the request to appeal does not refer to any municipality but a district office of NADECO.

[49] It was also argued on behalf of NADECO that the notice of appeal was not an application for leave to appeal. I do not agree. The form used was one supplied by NADECO itself and NADECO had not raised any objections to this procedure. In fact, it had stated to the councillors’ attorneys that “should you wish to appeal, you may direct an appeal to the provincial federal structure on the relevant form handed to you at the enquiry….”. The form, in the form of a letter, was headed “Request to Appeal”. Furthermore, NADECO’s attorneys had informed the councillors’ attorneys in connection with the appeals of the first six applicants that they had been granted leave to appeal the decision of the disciplinary committee. It is clear therefore that NADECO regarded the notices as notices of application for leave to appeal. I am therefore of the opinion that the notice of appeal was in substance a notice of application for leave to appeal and was in fact regarded s such by NADECO. Accordingly, I am of the view that NADECO cannot argue that an application for leave to appeal was not made.

[50] It remains to be decided whether the lodging of an application for leave to appeal had the effect of suspending the nineteenth respondent’s expulsion from NADECO. It was argued on behalf of NADECO that it did not do so. This argument was premised on the contention, firstly, that at common law unless an organisation’s constitution provides that an appeal suspends an expulsion or the language of the constitution or other circumstances drive one to the conclusion that such a terms must be implied, an appeal does not suspend an expulsion. The second premise of the argument was that there is a distinction between a case where there is an automatic right of appeal and one where leave to appeal must first be granted. The strongest authority in favour of the first point is Dennis v Garment Worker’s Union 1955 (3) SA 232 (C). However, this aspect was dealt with comprehensively in the Max case (supra) and I am in respectful agreement with the conclusion reached by Davis J that in our present constitutional dispensation an appeal does suspend an expulsion. I do however have one reservation with his reasoning and that is mentioned below.

[51] As regards the second premise, I see no distinction in principle between an application for leave to appeal and an automatic appeal. It may be argued that if one has to apply for leave to appeal, until that leave is granted, one is in a weaker position than somebody who has an automatic right of appeal. However, the factors militating against the argument that an appeal does not suspend an expulsion, particularly, the consequences of an expulsion for persons and bodies outside the party outweigh that factor. Because an expulsion automatically results in the loss of a seat, the effect thereof is not felt only by the party, its members and the expelled member, but also by the electorate whom the member represents and the legislative body in which he or she sits. I am therefore of the opinion that the lodging of the request to appeal by the nineteenth respondent suspended her expulsion from NADECO and therefore that she was still a member of NADECO on 31 August 2007. This means that the second application cannot succeed in respect of the nineteenth respondent.

[52] In my opinion, the consequential relief sought by NADECO in the second application follows as a matter of course from the finding that the first to eighteenth respondents were no longer members of NADECO at midnight on 31 August 2007. It was a prerequisite for the decision by the EC to recognise the respondents as having crossed the floor without losing their seats that when they did so, they were still members of NADECO. My finding to the contrary means that these decisions and all consequences that flowed from them were based on incorrect facts and therefore fall to be set aside in terms of Section 6 (2) (b) or (e) of PAJA. In this regard I am in respectful disagreement with the statement of Davis J in Max case at 121H – J that once the vacancy created in a legislature by the expulsion of a member from a party has been filled whilst an appeal against the expulsion is pending, there is no constitutional basis on which the replacement member can be removed and the expelled member can regain his seat if the appeal is successful. The learned judge gave no reasons for this conclusion and I cannot understand why he came to this conclusion. The setting aside of an expulsion on internal appeal means that with effect from the date of expulsion, the expulsion is set aside and the person continues to be a member. Similarly, the setting aside of an expulsion on review would have the same effect. This means that any subsequent administrative action which was dependent for its validity on the existence of the expulsion falls to be set aside on review.

[53] In the present case one has the converse situation. A finding followed by a declaratory order that the first eighteen respondents were no longer members of NADECO at midnight on 31 August 2007 means that as far as all parties bound by this judgment are concerned, at that time, the first eighteen respondents were in fact no longer members of NADECO. This in turn means that the decision to accept that these respondents retained their seats, falls to be set aside.

[54] I now turn to the question of costs. All the parties requesting substantive relief asked that they be awarded costs in the event of their succeeding. As far as the second application is concerned, I see no reason why the costs should not follow the result. It was suggested that NADECO should not be awarded the costs of 21 September 2007 because on that day it failed in its attempt to obtain interim relief. However, given the end result of this application, I do not think that it would be fair to deprive NADECO of those costs.

[55] NADECO sought costs against all respondents opposing the second application. As pointed out above, amongst the respondents who initially opposed the application were some municipalities whose attorneys of record subsequently withdrew and who, although at no stage withdrawing their opposition, took no part in the application after that withdrawal. The circumstances surrounding the withdrawal leave me with the strong suspicion that the attorneys in question were not authorised to represent these municipalities. In the result, I do not think that it would be fair for these municipalities to bear any of the costs of the second application. Instead, I am of the opinion that those respondents who unsuccessfully opposed the application at the hearing on 22 October 2007 should pay NADECO’s costs and that NADECO should pay the costs of the sole successful respondent.

[56] As far as the first application is concerned, the only reason given for a departure from the normal rule is that the IFP applicants were not really parties to that application. Whilst I have sympathy for these applicants because it can hardly be said that their case was well presented in the founding affidavits, the fact remains that they signed powers of attorney authorising the attorneys in question to represent them and put up confirmatory affidavits. Furthermore, the attempt to distance themselves from the first application came rather late in the day. They purportedly abandoned the relief in the first application in the affidavits they delivered in the second application on 10 October 2007. By that stage the matter had been set down for argument on 22 October 2007 and so in order to abandon the application they required the consent of the other parties or the leave of the court, which was not forthcoming. At best, for the IFP members, they would be liable for the costs up to the time that NADECO considered their affidavits of 10 October 2007. However, by bringing the counter-application, the IFP Councillors were persisting with the same relief as had been sought in the first application and so the preparation for and the argument on 22 October 2007 together with the written arguments submitted thereafter dealt to a very substantial extent with relief in respect of which they were unsuccessful in the counter-application. In the circumstances, I am of the view that it would be appropriate for the IFP applicants to share liability for all the costs in the first application.

[57] As far as the counter-application is concerned, there is no reason why the applicants in that application should not be liable for NADECO’s costs.

[58] NADECO seeks the costs of two counsel. It was not suggested in argument that this was an inappropriate request and I am in any event of the opinion that the matter is of sufficient complexity and importance to justify the use of both senior and junior counsel.

[59] For the sake of clarity, I should point out that all the cost orders which I propose to make, include the costs which were reserved from time to time.

[60] In the result, I make the following orders:

A. In case number 6883/07:

1. The application is dismissed.

2. The applicants are ordered, jointly and severally, to pay the respondents’ costs, including the costs consequent on the employment of two counsel.

B. In case number 7680/07:

1. It is declared that each of the first to eighteenth respondents:

1.1 Ceased to be a member of his or her respective municipal council prior to midnight on 31 August 2007, and

1.2 Is not a member of a municipal council.

2. The decisions by the Electoral Commission (the thirty-fifth respondent) to recognise each of the first to eighteenth respondents as members of one or other of the twentieth to thirty-third respondents are hereby reviewed and set aside.

3. It is declared that each of the seats formerly held by each of the first to eighteenth respondents in the councils of the twentieth to thirty-third respondents is vacant and the Electoral Commission and in the case of paragraph 3.1, also the municipal manager of the twentieth respondent is directed to:

3.1 Fill the vacancy formerly occupied by the first respondent by a by-election in terms of section 25 of the Local Government: Municipal Structures Act, 117 of 1998 (the Act);

3.2 Fill the vacancies formerly occupied by the second to eighteenth respondents from the applicants proportional representation list in accordance with the provisions of item 18 of Schedule 1 of the Act in respect of municipal councils and item 11 of schedule 2 of the Act in respect of the district municipal council.

3.3 Amend any notice published by it in terms of section 93 B of the Act by removing any reference to the first to eighteenth respondents being councillors of the twentieth to thirty-third respondents.

4. The first to eighteenth and the thirty-sixth to thirty-eighth respondents are ordered, jointly and severally, to pay the costs of the application, including the costs consequent on the employment of two counsel.

5. The application against the nineteenth respondent is dismissed

with costs.

6. The counter-application is dismissed.

7. The applicants in the counter-application (the eleventh, fifteenth and sixteenth respondents) are ordered, jointly and severally to pay the costs of the counter-application including the costs consequent on the employment of two counsel.

………………………………

RALL A. J.

1. Date of Argument: 22 October 2007

2. Date of Judgment: 4 December 2007

3. Appearances

1. For the First to Tenth, Twelfth to Fourteenth, Seventeenth and Eighteenth Applicants in case number 6883/07 and the First to Tenth, Twelfth to Fourteenth, Seventeenth, Eighteenth, Twenty-First, Thirty- Seventh and Thirty-Eighth Respondents in case number 7680/07:

R B G Choudree SC and R Singh

Instructed by:

Siva Chetty and Company

2. For the Sixteenth Respondent in case number 6883/07 and the Applicant in case number 7680/07:

A M Stewart SC and M Du Pelssis

Instructed by:

John Wills Attorneys

3. For the Eleventh, Fifteenth and Sixteenth Applicants in case number 6883/07 and the Eleventh, Fifteenth, Sixteenth and Thirty –Sixth Respondents in case number 7680/07:

Ms A M Annandale

Instructed by:

Mason Incorporated

4. For the Nineteenth Respondent in case number 7680/07:

Attorney M A A S Essa of Cajee, Setsubi Chetty Incorporated.

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