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IN THE HIGH COURT OF SOUTH AFRICA

(NATAL PROVINCIAL DIVISION)

CASE NO.: 8932/2007

In the matter between :

BHEKISISA VUSUMUZI MTHETHWA APPLICANT

and

MUNICIPAL MANAGER UTHUNGULU

DISTRICT MUNICIPALITY 1^ST RESPONDENT

MUNICIPAL ELECTORAL OFFICER FOR THE

UTHUNGULU DISTRICT MUNICIPALITY 2^ND RESPONDENT

UTHUNGULU DISTRICT MUNICIPALITY 3^RD RESPONDENT

ELECTORAL COMMISSION 4^TH RESPONDENT

INKATHA FREEDOM PARTY 5^TH RESPONDENT

MUNTONGAFIYO MNGUNI 6^TH RESPONDENT

JONATHAN GRAY CHENNELS 7^TH RESPONDENT

__________________________________________________­­­­­­­­­­­­­­­­­­­­­_________________

JUDGMENT

GORVEN AJ:

Introduction:

This application was originally brought on an urgent basis by way of Notice of Motion dated 15 August 2007. On 21 August 2007 the Notice of Motion was amended. After the events of 31 August 2007, to which I will refer below, it was amended once again on 3 September 2007. The Applicant now seeks the following relief :

1. That Muntongafiyo Mnguni and Jonathan Gray Chennels are hereby joined as the 6^th and 7^th Respondents respectively.

2. That the following decisions or actions are hereby reviewed and set aside:

   1. The decision of the Political Oversight Committee of the 5^th Respondent on or about 23 July 2007 to expel the applicant from membership of the 5^th Respondent;

   2. The declaration by the 1^st Respondent on or about 25 July 2007 to the 2^nd and 4^th Respondent of a vacancy in the council of the 3^rd Respondent as a consequence of the decision referred to in paragraph 2(a);

   3. The declaration by the 2^nd and/or 4^th Respondent(s) on or about 30 July 2007 that the 7^th Respondent was elected in the vacancy referred to in paragraph 2(b);

   4. The declaration by the 2^nd and/or 4^th Respondents on 31 August 2007 that the 6^th Respondent was elected in the vacancy left by the resignation of the 7^th Respondent.

3. That it is declared that in the period 23 July 2007 to the date of this order the Applicant:

(a) Has remained and is a member of the 5^th Respondent;

(b) Has remained and is a councillor of the 3^rd Respondent;

(c) Is entitled to all the rights, privileges, immunities and amenities as a councillor of the 3^rd Respondent.

4. That the 1^st, 3^rd and 5^th Respondents pay the costs of the application, jointly and severally, including the costs previously reserved, and that the 6^th Respondent pay the costs after 31 August 2007 jointly and severally with the 1^st, 3^rd, and 5^th Respondents, and that all costs include the costs consequent upon the employment of two counsel.

The facts:

The events which gave rise to the application are mostly common cause and can be summarised as follows. The Applicant was a member of the 5^th Respondent (“the IFP”) and on that party’s list for the 3^rd Respondent (“the municipality”). He was elected as a councillor on the basis of his position on the list. He was subsequently elected as the Mayor. Disciplinary proceedings were instituted against the Applicant by the structures of the IFP resulting in a sanction of expulsion, suspended for one year on certain conditions. A dispute arose between the Applicant and the IFP as to whether he met those conditions. On 23 July 2007 the Political Oversight Committee of the IFP took a decision to expel the Applicant forthwith from membership of the IFP. It wrote to him to this effect on 24 July 2007. For reasons which are not material to this judgment it is common cause that the expulsion of the Applicant from the IFP was invalid. The invalidity of the expulsion was conceded by the IFP on 24 August 2007.

In the interim, however, the IFP had informed the 1^st Respondent (“the municipal manager”) that the Applicant’s membership of the IFP had terminated. On 25 July 2007 the municipal manager declared a vacancy in the council of the municipality pursuant to the provisions of Item 1(1) of Schedule 6B to the Constitution of the Republic of South Africa,1996 (“the Constitution”). On 30 July 2007 the 4^th Respondent (“the Electoral Commission”) declared the 7^th Respondent (“Chennels”) to be elected in that vacancy. On 10 August 2007 Chennels resigned from that position which led to the seat again becoming vacant. On 13 August 2007 the municipal manager submitted a copy of the revised list from the IFP which list indicated that the 6^th Respondent (“Mnguni”) was designated to be elected to fill the said vacancy. On 31 August 2007 the Electoral Commission declared Mnguni elected to the council of the municipality.

On 16 August 2007 the Deputy Secretary General of the IFP deposed to an affidavit opposing the initial relief sought as a matter of urgency on 17 August 2007. The affidavit stated that Chennels had been appointed to the council of the municipality on 31 July 2007. He had subsequently resigned. The appointment of Mnguni had been processed by the Provincial Office of the Independent Electoral Commission. The IFP argued that, therefore, the interdictory relief was ill-conceived and the correct remedy would be to review and set aside the process which had taken place. It also raised a point relating to the non-joinder of Mnguni.

The Applicant says he first came to know of any of these facts on the morning of 17 August 2007 from the Electoral Commission. At Court that morning the affidavit deposed to by the IFP, to which I have adverted, was handed to the Applicant’s legal representatives. The matter was on that day adjourned by consent to the unopposed roll on 21 August 2007. The Electoral Commission, which did not enter the lists, confirmed to the Applicant’s attorneys that the IFP’s request for the appointment of Mnguni as a replacement for Chennels had been received by it on 16 August 2007 but not yet acted on. It gave an undertaking that it would not implement the request for the appointment of Mnguni “until the period allowed in terms of the applicable legislation has expired”. This undertaking was given on 17 August 2007. The period in question was 14 days counted from 16 August 2007. ¹

The applicant thereafter amended the relief sought to join the 6^th and 7^th Respondents and to include the present relief apart from paragraph 2(d) supra. The application was

set down for hearing on 31 August 2007. On this date Mnguni moved to adjourn the application on the basis that he had been given inadequate notice and wished to obtain separate legal representation from the IFP, whose attorneys had drafted his affidavit in support of the adjournment application. Until then it was understood by the Applicant’s attorneys that the IFP’s attorneys would represent Mnguni.

At approximately 14h30 on 31 August 2007, while the matter was standing down, the parties were informed that the Electoral Commission had a short while earlier declared the election of Mnguni to the council. The application was then adjourned to the opposed motion roll on 11 September 2007 on the basis that all parties agreed that a ruling should be given within a day or two thereafter. The Applicant was given leave to amend the relief sought. It did so to include that directed at setting aside the election of Mnguni now contained in paragraph 2 (d) supra. All the parties were interdicted from in any way giving effect to or acting on the election of Mnguni until 12 September 2007.

On 11 September 2007 I heard argument and reserved judgment. With the consent of all the represented parties, I extended the interdict granted on 31 August 2007 until the date on which judgment relating to the substantive relief sought in the application was handed down.

The Joinder of the 6^th and 7^th Respondents:

It is clear that Mnguni and Chennels have a direct and substantial interest and require to be joined in the application. No-one argued to the contrary. The relief relating to their joinder must be granted.

It is the balance of the relief sought and the costs order which are contested.

The Substantive Relief:

The Applicant says that his expulsion from the IFP was unlawful. This much is not contested. What is at issue is whether the steps taken after the unlawful expulsion of the Applicant from the IFP can be, and if so should be, reviewed and set aside by the Court and whether the declaratory relief should be granted.

The Backdrop to the Application:

The events in this matter take place against the backdrop of the window period afforded to certain members of municipal councils to leave one political party and join another without losing their seats, known as floor-crossing. No specific mention is made that the IFP acted to protect its position in case the Applicant had decided to cross the floor or that the Applicant had decided to do so but the urgency is accepted to relate to the fact that, between 1 and 15 September 2007, the window period operates.

The Legislation:

The relevant legislation is found in Schedule 6B of the Constitution. The salient features are as follows:

Item1(1) provides that a councillor not representing a ward ceases to be a member of a municipal council if that councillor ceases to be a member of the party which nominated that councillor as a member of that council.

Item 2(1)(a) provides that, subject to item 4, a councillor not representing a ward, who is a member of a party represented in that municipal council and who becomes a member of another party, remains a councillor of that council.

Item 4(1)(a) provides that the provisions of item 2 applies only for a period of 15 days from the 1^st to the 15^th Day of September in certain years.

Item 4(2)(c) provides that, during the floor crossing window period, no party represented in a municipal council may suspend or terminate the party membership of a councillor representing that party in the council or perform any act whatsoever which may cause such councillor to be disqualified from holding office as such a councillor in that council without the written consent of the councillor concerned.

The provisions in this legislation relating to floor crossing have been found to pass Constitutional muster. ²

The Law:

It has been held that when political parties, such as the IFP, exercise powers of suspension which have an effect on the make-up of legislative assemblies under the Constitution, this exercise is subject to the rational principles of the kind contained in the body of administrative law.³

It is common cause that the relevant principles were not applied in the instant matter and the administrative act of expelling the applicant was therefore unlawful and falls to be set aside.

Baxter ⁴ deals with invalid administrative action as follows:

“Administrative action that is not authorised by Law is invalid. This is the axiomatic consequence of the principle of legality. Thus unlawful administrative acts are generally said to be ‘void’. But the simplicity of this tautology is upset by the complicated constitutional structure within which the principle of legality operates: administrative acts are usually performed by public authorities which appear to possess the necessary authority; and the authoritative determination of whether those acts are within their powers can only be made by a court of law. There exists an evidential presumption of validity expressed by the maxim omnia praesumuntur rite esse acta; and until the act in question is found to be unlawful by a court, there is no certainty that it is.” (his emphases.)

He goes on to say ⁵ :

“In so far as an unlawful act contravenes the principle of legality, being therefore unauthorised, it may be said to be ‘void’; but for the purpose of the practical application of the principle of legality, ‘void’ can very seldom, if ever, mean ‘absolutely void’ since legal uncertainty, the acquiescence in unlawful action and the refusal of judicial remedies may all leave unimpugned a formally void act, and the presumption of validity renders the act legally effective.”

And further ⁶:

“When the courts refer as they do in the vast majority of cases, to the fact that unlawful administrative acts are ‘void’, ‘nullities’ ‘of no force and effect’, ‘invalid’, and so on, they are referring to the formal status of these acts when adjudged according to the criterion of legality. This they must do, for otherwise they would have no warrant to interfere. But when they sometimes refer to unlawful acts as ‘voidable’,

this must be viewed within the context of their own role as the authoritative oracles of validity and legality. They do not thereby imply that the act was valid until set aside, nor do they mean to suggest the refusal to declare the act in question void thereby validates it, even though the effect of their refusal is that it continues to be treated as if it were valid.” (his emphases.)

This conundrum was recently explored in the case of Oudekraal Estates (Pty) Ltd v City of Cape Town and Others.⁷ In this case the Appellant was the successor in title to the owner of land who had obtained the administrator’s permission to establish a township on it some forty years previously. No further step was taken to develop the township until the Appellant, in 1996, submitted to the local authority an application for approval of an engineering services plan. The local authority adopted the stance that the plan could not be approved because the development rights had lapsed. It claimed that this was the case due to the Appellant’s failure to comply timeously with two requirements of the ordinance. These were the lodging of a general plan of the township with the Surveyor General for approval and the other the lodging of the general plan as approved by the Surveyor General with the Registrar of Deeds. A time limit was prescribed for each. The time limit had been extended, by the administrator as he was empowered to. The extensions, however, were granted only after the expiry of the relevant period. Despite this the Surveyor General had approved the general plan and it had been acted on by the Registrar of Deeds. The Local Authority argued that since the Administrator had acted ultra vires in extending the time limits after they had elapsed, the development rights had lapsed and it was not obliged to approve the engineering services plan.

The Supreme Court of Appeal, in a judgment of Howie P and Nugent JA, in whose

judgment Cameron JA, Brand JA and Southwood AJA concurred, held that the initial decision by the administrator to grant permission to establish a township was invalid and unlawful. Having found this to be the case, the judgment went on to state: ⁸

“But the question that arises is what consequences follow from the conclusion that the Administrator acted unlawfully. Is the permission that was granted by the Administrator simply to be disregarded as if it had never existed? In other words, was the Cape Metropolitan Council entitled to disregard the Administrator's approval and all its consequences merely because it believed that they were invalid provided that its belief was correct? In our view, it was not. Until the Administrator's approval (and thus also the consequences of the approval) is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked. The proper functioning of a modern State would be considerably compromised if all administrative acts could be given effect to or ignored depending upon the view the subject takes of the validity of the act in question. No doubt it is for this reason that our law has always recognised that even an unlawful administrative act is capable of producing legally valid consequences for so long as the unlawful act is not set aside.” (my emphasis.)

The Court utilised the analysis of this problem in Administrative law of Christopher Forsyth⁹ dealing with this as follows: ¹⁰

“Central to that analysis is the distinction between what exists in law and what exists in fact. Forsyth points out that while a void administrative act is not an act in law, it is, and remains, an act in fact, and its mere factual existence may provide the foundation for the legal validity of later decisions or acts. In other words

'. . . an invalid administrative act may, notwithstanding its non-existence [in law], serve as the basis for another perfectly valid decision. Its factual existence, rather than its invalidity, is the cause of the subsequent act, but that act is valid since the legal existence of the first act is not a precondition for the second.'

It follows that

'(t)here is no need to have any recourse to a concept of voidability or a presumption of effectiveness to explain what has happened [when legal effect is given to an invalid act]. The distinction between fact and law is enough.'

The author concludes as follows:

'(I)t has been argued that unlawful administrative acts are void in law. But they clearly exist in fact and they often appear to be valid; and those unaware of their invalidity may take decisions and act on the assumption that these acts are valid. When this happens the validity of these later acts depends upon the legal powers of the second actor. The crucial issue to be determined is whether that second actor has legal power to act validly notwithstanding the invalidity of the first act. And it is determined by an analysis of the law against the background of the familiar proposition that an unlawful act is void.'

(Our emphasis.)”

Drawing on this line of reasoning the court held that:¹¹

“If the validity of consequent acts is dependent on no more than the factual existence of the initial act then the consequent act will have legal effect for so long as the initial act is not set aside by a competent court.

[32] But just as some consequences might be dependent for validity upon the mere factual existence of the contested administrative act so there might be consequences that will depend for their legal force upon the substantive validity of the act in question.” (my emphasis.)

It should be borne in mind that the analysis of these issues took place in the context of the council claiming that it was simply entitled to ignore the unlawful administrative act. The Court recognized that, where a public authority seeks to coerce a subject into compliance with an unlawful administrative act, the subject may be entitled to ignore the unlawful act and raise what is known as a “defensive” or “collateral challenge” to the validity of the administrative act without taking positive steps to set it aside¹²and that, in such a case, a Court has no discretion to allow or disallow the defense in question because ”the validity of the administrative act constitutes the essential pre-requisite for the legal force of the action that follows and ex hypothesi the subject may not then be precluded from challenging its validity” ¹³

The Court contrasted this situation with the present one in the following terms:¹⁴

“On the other hand, a court that is asked to set aside an invalid administrative act in proceedings for judicial review has a discretion whether to grant or to withhold the remedy. It is that discretion that accords to judicial review its essential and pivotal role in administrative law, for it constitutes the indispensable moderating tool for avoiding or minimising injustice when legality and certainty collide.”

It can be seen, accordingly, that it was the municipal council’s reliance on a collateral challenge that was being dealt with in this analysis in the Oudekraal Estates case. The dicta applying this line of reasoning to judicial review are accordingly obiter.

The IFP’s contention is that, even though the expulsion of the applicant was an unlawful act, it gave rise to a factual situation where the seat of the applicant fell vacant and that, in those circumstances, the consequent acts of the municipal manager and the electoral commission had legally valid consequences since they had acted within their powers in performing them. It found support for this reasoning in the dictum of Davis J in Max v Independent Democrats to the following effect: ¹⁵

“if the decision to expel applicant is not suspended pending the appeal …Mr Neville Hendricks will be sworn in as a member of the provincial legislature in the place of applicant …Assuming that applicant’s appeal is then successful, there would then be no constitutional basis by which to remove Mr Hendricks and permit applicant to regain his seat…”

It was submitted that, as a result, the Court is barred from reviewing and setting aside anything other than the IFP’s action in expelling the Applicant from its membership.

I cannot agree. In the first place the Oudekraal Estates judgment nowhere bars the setting aside of consequent acts. On the contrary, they are said to have legal effect only “for so long as the initial act is not set aside by a competent court”¹⁶ and that the legally valid consequences of an unlawful administrative act endure only “so long as the unlawful act is not set aside”.¹⁷ Secondly, the judgment recognises that the fate of consequent acts follows that of the unlawful act and is dealt with at the level of an exercise of discretion. This is because it is the factual existence of any such acts which may cause the collision of legality with certainty. ¹⁸ Thirdly, the application of this reasoning would result in the emasculation of the Applicant’s right to procedurally fair administrative action guaranteed by Section 33 of the Constitution and recognised in the common law. Unfair administrative action would result in the Applicant losing his seat even if the initial unlawful act of expulsion is set aside simply because further steps had taken place based on his having been expelled from the IFP. This would go against the very principle of legality so jealously protected and developed by the courts of our land and said to lie “at the structural heart of our constitutional democracy”.¹⁹ Fourthly the court in Max v Independent Democrats did not have the benefit of the reasoning in the Oudekraal Estates case. If it had, it is highly unlikely to have formulated the dictum relied on by the IFP so widely. It also does not give any authority for the proposition and the dictum does

not accord with legal principle as has been seen in Baxter’s statement that the axiomatic consequence of the principle of legality is that administrative action not authorised by law is invalid. Fifthly, the case of Naidoo v Director of Indian Education ²⁰ dealt with the unlawful expulsion of the applicant’s child from her school. This followed a suspension order. The expulsion order was set aside. The debate was whether the act in dismissing him was void or voidable and the consequences of setting aside the expulsion. Friedman J held as follows:²¹

“One of the consequences of the expulsion order made by the first respondent on 20 May 1981 was the falling away, or lapsing, of the suspension order … It seems to me, however that, where something which is voidable is set aside, it is set aside with all its consequences; both the decision itself falls away, and the consequences of that decision.

Consequently, in my judgment, a result of the setting aside of the first respondent’s decision to expel Charmaine ... is that the suspension order continues to exist until the first respondent has made a valid decision …”

I accordingly hold that a court is not barred from setting aside consequent acts.

It was submitted on behalf of Mnguni that, on the authority of the Oudekraal Estates case, this Court has a discretion whether to grant or withhold the judicial review relief. I agree with this submission. The question is on what basis the discretion is to be exercised. Clearly a court must assess the extent to which “legality and certainty collide” in the circumstances of the case and, if they do, to attempt to avoid or minimise injustice. In addition, as Baxter spells out, an assessment must be carried out of whether legal uncertainty will result or there has been acquiescence in the unlawful action.

In the facts of the present case there is no evidence that actions taken by the municipality might be impugned should the relief be granted which may give rise to uncertainty. This is a matter within the special purview of the municipality but nothing has been said about it. Indeed, in the case of Mnguni, this could not be the case since no effect has been given to his election and his election has not been acted on. I cannot find, therefore, that there is any evidence of legality and certainty might collide.

The opposing respondents attempted to make something of the delay in the Applicant bringing the matter to court. The short answer is that he acted within three days of learning of his expulsion, he had sought legal advice and letters were directed at both the IFP and the municipal manager, alleging that his expulsion was unlawful and seeking assurances that no further action would be taken. Despite these assertions and despite the fact that further acts had been taken by these parties, no mention was made of the progress in the matter and, in particular, that the name of Chennels had been submitted. The IFP now complains that the Applicant should have interdicted any further steps being taken but, when interdictory relief was initially sought stated, as I have mentioned above, that review relief should have been sought. In addition, these parties knew of the current state of affairs and the Applicant did not. An armchair critic may criticize some of the steps taken but I cannot find that the Applicant did not act expeditiously in the circumstances.

It was submitted that the reliance by Mnguni on his knowledge that the machinery had been set in motion to have him elected a councillor led to his contracting with a third party for the running of his supermarket business for a period of two years. Mnguni has failed to set out in any detail the terms of the contracts, whether or not the contracts in question are terminable in the event of his membership of the council either not eventuating or being withdrawn, nor has he indicated what prejudice, if any, this would lead to, contenting himself with a bare averment of severe prejudice.

What must be weighed against this is the undoubted prejudice to the applicant who, but for the unlawful expulsion from the IFP, would have continued as a councillor of the municipality. Further, if the Applicant is not reinstated to his position, the manner of composition of a branch of government will have been unlawfully tampered with. As is submitted by the Applicant, this will affect the public since a representative of the public in the local council will have lost his electoral seat. The unlawful action therefore has a strong public component.²² It is no exaggeration, therefore, to say that the very constitutional order relating to the makeup of municipal councils will have been undermined. I agree also with the submission by the Applicant that his right to cross the floor would be undermined which, as I have mentioned above, has been given effect to in the Constitution.

In the light of the above I exercise my discretion in favour of granting the Applicant the substantive relief sought in paragraph 2 supra.

As regards the declaratory relief sought in paragraph 3 supra, this relief flows, as a matter of law from my findings above. As is stated by Baxter:²³

“In administrative law the ’annulment’ always has retroactive effect, and that is why the term ‘voidable’ is inappropriate.”

If the various administrative steps had been reviewed and set aside the declaration relating to the status quo ante follows as a matter of law. I am therefore disposed to

grant the relief referred to in paragraph 3 supra.

Costs

The first and third respondents complain that, had substantive relief and a costs order not been sought by the applicant against them, they would not have opposed the relief sought. However, the substantive relief requires the setting aside of those steps involving the municipal manager. It is clear from the order that this is done on a consequential basis. Both he and the municipality have persisted in arguing that the relief sought is incompetent. That was the essence of the main debate in the application. Whilst they did not argue on the merits on the date of the hearing, they persisted is seeking a costs order against the Applicant. This persistence was misplaced, as was their contention that the relief sought involving the municipal manager was not competent. On the other hand, it is clear that the main dispute lay between the Applicant and the IFP and, after 31 August 2007, Mnguni. I do not believe that the opposition of the municipality and the municipal manager warrants the granting of a costs order against them but neither are they entitled to an order that the Applicant pay their costs.

Mnguni submitted that the Applicant should pay the wasted costs occasioned by the adjournment on 31 August 2007 because he had not been joined timeously. There is a factual dispute as to whether the Applicant’s attorneys told Mnguni earlier than 31 August 2007 that he would become a party and as to whether they were told that he would be represented by the IFP’s attorneys. This cannot be resolved on the papers and their belief that this had taken place cannot be assailed. I am not inclined, accordingly, to make an adverse costs order against the Applicant relating to that adjournment.

The Order:

An order is granted in terms of paragraphs 1, 2 and 3 supra.

The 5^th Respondent is ordered to pay the costs of the application, including the costs previously reserved, and the 6^th Respondent is ordered to pay the costs after 31 August 2007 jointly and severally with the 5^th Respondent, the one paying the other to be absolved. All costs shall include the costs consequent upon the employment of two counsel.

Date of Hearing : 11^th September 2007

Date of Judgment : 14^th September 2007

Counsel for the Applicant : AM Stewart SC and M du Plessis

Counsel for the 1^st and

3^rd Respondents : I Pillay

Counsel for the 5^th Respondent : M Pillemer SC and AM Annandale

Counsel for the 6^th Respondent : BL Skinner SC

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