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[2018] ZAWCHC 81
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De Lille v Democratic Alliance and Others (7882/18) [2018] ZAWCHC 81; [2018] 3 All SA 684 (WCC) (27 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
[WESTERN CAPE DIVISION, CAPE TOWN]
REPORTABLE
Case
No: 7882/18
In
the matter between:
PATRICIA
DE
LILLE
Applicant
and
DEMOCRATIC
ALLIANCE
First
Respondent
CITY MANAGER OF THE CITY
OF
CAPE
TOWN
Second
Respondent
CITY
OF CAPE
TOWN
Third
Respondent
INDEPENDENT
ELECTORAL COMMISSION
Fourth
Respondent
JUDGMENT: 27
JUNE 2018
LE GRANGE J, MANTAME J et SHER J:
Introduction
[1]
The Democratic Alliance (“DA”) is the current governing
political party in the Western Cape. It controls the City
of Cape
Town (“the City”) as it holds the majority seats in its
Council (“the Council”). The Applicant,
Ms Patricia De
Lille (“De Lille”) was a member of the DA and the City’s
Executive Mayor. On 8 May 2018 Mr James
Selfe (“Selfe”),
a senior functionary in the DA, forwarded a letter to the City’s
Municipal Manager informing
him that De Lille’s membership of
the party had ceased with immediate effect and that the Independent
Electoral Commission
(“IEC”) should be advised
accordingly. On the same day the Speaker of Council forwarded a
letter to De Lille notifying
her that she was to vacate her office as
Executive Mayor with immediate effect.
[2]
The DA relied on the provisions of clause 3.5.1.2
[1]
of its
constitution (“the cessation clause”) for its
notification of the termination of De Lille’s membership.
As a
matter of law, her
alleged loss
of membership of the party had a number of important ‘knock-on’
consequences. To name a few: firstly,
in terms
[2]
of the Local
Government: Municipal Structures Act
[3]
(“the
Structures Act”) De Lille automatically lost her position as
Executive Mayor; secondly, the loss of her mayoral
office resulted in
a vacancy in Council which required the Speaker and the City Manager
to take steps to inform the IEC thereof
in order that the necessary
democratic process could be put in place to install a replacement
Councillor to represent the DA; thirdly,
the members of her Mayoral
Committee (“Mayco”) automatically lost their
positions;
[4]
fourthly,
the Deputy Mayor assumed the position of Executive Mayor
ex
lege
[5]
in an acting
capacity until a new Mayor was duly elected; and fifthly, as acting
Executive Mayor he/she was required to appoint
a new Mayco.
[6]
[3]
The notification that De Lille should immediately vacate her position
as Executive Mayor prompted her to launch the instant
application as
a matter of urgency. She sought an interim order suspending the
effect of the aforesaid notification and restoring
her to the
position she occupied at the time, pending the outcome of a review of
the termination of her membership.
[4]
On 15 May 2018 Gamble et Samela JJ heard Part A of the application,
which was for interim relief, and thereafter ordered that
the
cessation of her membership would be suspended and would have no
force and effect and as such De Lille would be permitted to
continue
in the office of Executive Mayor, pending the outcome of the review
(which was sought in Part B). It was further ordered
that the Mayoral
Committee as it had been constituted on 8 May 2018, prior to the
notification to De Lille, would continue to hold
office and by
agreement between the parties the IEC was consequently interdicted
from filling any vacancy in respect of De Lille’s
position on
the Council.
[5] De Lille was
represented by Mr Mpofu SC and Mr de Waal SC, the DA by Mr Rosenberg
SC and Messrs Bishop and Khoza while the City
and its Manager were
initially represented by Mr Breitenbach SC and later by Mr Jamie SC.
The City and its Manager indicated that
they would abide the decision
of the court.
The background
[6]
The core background facts underpinning this matter and the related
decision by the DA to terminate De Lille’s membership
are
largely not in dispute. These facts have been succinctly summarised
in paragraphs [7] – [15] of the judgment of Gamble
J in regard
to Part A. For the purposes of this judgment we may briefly refer to
salient aspects thereof.
[7]
De Lille has held the office of Executive Mayor since 2011. She was
re-elected to that position by Council after the local government
elections in August 2016. According to the papers filed of record De
Lille and her principals in the party have been at odds with
one
other for the better part of approximately 18 months.
[8]
The DA has initiated internal disciplinary proceedings against De
Lille in respect of a number of alleged irregularities she
engaged in
whilst she has been in office as Mayor. This has been done on 2
distinct fronts. The one relates to complaints of alleged
corruption
in the procurement of buses for the City’s bus service. The
other relates to the alleged irregular appointment
of certain senior
staff members in the City.
[9]
The complaints flow from independent investigations which were
conducted by outside agencies and separate disciplinary committees
(“DC’s”) were set up to deal with these.
[7]
Both
DC’s have become bogged down due to a variety of
in
limine
points which were raised by De Lille and pre-hearing sparring between
the parties.
[10]
In February 2018 members of the DA caucus in Council proposed a
motion of no confidence in De Lille. The motion failed to attract
the
requisite majority in Council, by a single vote, which indicates that
certain DA councillors voted with the opposition against
the motion
and in support of De Lille. Following upon that event, and apparently
in response to the difficulties being experienced
with her, at its
Federal Congress on 8 April 2018 the DA adopted an amendment to its
constitution by inserting, through clause
6.2.6.3, what the parties
termed a “recall clause”. The clause provides that if a
member of the party who holds executive
office (including a mayor)
has lost the confidence of his/her caucus the Federal Executive
(“FedEX”) may, after giving
him/her the opportunity to
make representations to it, resolve to require such member to resign
from office within 48 hours, and
a failure to do so will lead to
cessation of membership of the party in terms of Cl 3.5.1.10 of its
constitution. Prior to moving
a motion of no confidence in a member
the caucus is required to obtain the consent of the party’s
FedEx.
[11]
Importantly, Cl 3.5.1.10 in turn provides that a member ceases to be
such when he/she fails to resign his/her position ‘after
the
procedures set out in cl 6.2.6.3’ have been followed.
[12]
On 18 April 2018 FedEx gave permission to its caucus in the City to
invoke the recall clause. A further internal motion of
no-confidence
which was brought within the caucus on 25 April 2018 succeeded with
the requisite majority.
[8]
[13]
The following day 26 April 2018, Selfe, as the Chairperson of FedEx
invited De Lille to make written representations by 2 May
2018 as to
why she should not resign as Mayor. In response, De Lille requested
‘reasons’ for the caucus’ decision
together with
the record of its deliberations. Nothwithstanding the request De
Lille duly made representations before the stipulated
deadline.
[14]
She stated, in no uncertain terms, that she regarded the recall
clause as being inconsistent with the Constitution and the
Structures
Act and gave notice that she intended to challenge it through the
courts, and her attorneys duly forwarded a draft copy
of her proposed
application in this regard to the DA’s legal representatives.
[15]
On considering De Lille’s representations and her draft court
papers at a meeting which was held between 5-6 May 2018,
FedEx
resolved to suspended its deliberations in order to obtain legal
advice.
[16]
Late on the afternoon of 3 May 2018, before the party had made a
determination as to the merits of De Lille’s representations
in
regard to its reliance on the recall clause, a senior member of the
DA’s Federal Legal Commission (“FLC”)
[9]
hand-delivered
a letter to De Lille at her mayoral offices, in which she was
informed that according to the DA her membership of
the party had
come to an end in terms of cl 3.5.1.2 of its constitution ie its
cessation clause as a result of a public declaration
which De Lille
had allegedly made during the course of an interview with one
Eusebeius McKaiser on a radio 702 talk-show on 26
April, immediately
following the outcome of the DA caucus’ motion of no
confidence. In terms of the FLC’s rules
[10]
she
was given 24 hours to provide ‘clear and unequivocal’
reasons why her membership had not ceased.
[17]
De Lille responded to this demand by timeously filing reasons in
which she denied that the cessation clause was of application
to the
statements she had made during the interview, which she claimed
pertained only to a possible expression of an intention
to resign as
Mayor after she had ‘cleared her name’ and did not
constitute the expression of an intention to resign
from the party.
She further stated that in the event that the party intended
nonetheless to determine that her membership had ceased
she intended
to challenge the validity of the clause on a number of grounds,
including whether she had in fact expressed an unequivocal
and
unconditional intention to resign as a member of the party, and
whether the clause violated the provisions of the Promotion
of
Administrative Justice Act
[11]
(“PAJA”)
or was implemented in a procedurally unfair manner.
[18]
On 6 May Selfe duly referred De Lille’s submissions regarding
the cessation of her membership to the Chairperson of the
FLC, who in
turn appointed
[12]
a
panel of 3 members of the FLC who, in terms of the FLC Rules
[13]
were
required to make a determination whether on the papers presented to
them, her membership had come to an end. On 6 May
the panel
found that this was indeed the case, and accordingly recommended that
FedEx confirm the cessation and proceed to implement
the consequences
thereof.
[19] On 7 May
the FLC panel’s report and recommendations were considered by
FedEx which confirmed that De Lille’s membership
had ceased,
and Selfe informed De Lille of the outcome the following day.
The review
grounds:
[20]
De
Lille raised a number of grounds of review. Principal amongst them
was a multi-pronged constitutional challenge to the cessation
clause
on the basis that it allegedly violated a number of her
constitutional rights, including her rights to freedom of
expression
[14]
and freedom
of association,
[15]
her right to
participate in the activities of a political party
[16]
and her
right to stand for and to hold public office
[17]
.
[21]
The other alternative grounds advanced were formulated as follows:
(1)Firstly, the cessation clause was void
ab
initio
or was unenforceable for being
inconsistent with public policy, infused as it must be with
ubuntu
,
good faith, fairness, reasonableness and other applicable
constitutional rights, norms and values based on common-law
principles
and the terms of section 39(2) of the Constitution;
(2) The conduct of a political party when it terminates the
membership
of a member who is a public office- bearer, such as an
Executive Mayor, must be viewed through the prism of PAJA, and as a
result
it was contended that Part C of the FLC Rules were
inconsistent with PAJA; (3) the DA did not comply with the procedures
laid down
in its own constitution when invoking the cessation clause;
(4) the DA was precluded from invoking the cessation clause due to
the contractual principles of waiver, estoppel and/or the doctrine of
election; and lastly the contents of the conversation De Lille
had
with McKaiser could not be said, on a proper construction thereof to
fall within the terms of the cessation clause and could
not factually
and legally sustain the alleged cessation of her membership.
[22]
The DA defended its decision to terminate De Lille’s
membership. According to it De Lille’s position as a councillor
and as Executive Mayor was dependent upon her membership of the
party, which she voluntarily accepted would be regulated by the
terms
of its constitution and its rules and her membership was dependent
upon her continued compliance therewith.
[23]
According to the DA the purpose of the cessation clause was to ensure
that its members remained loyal to the party and committed
to its
values. It held the firm view that on an objective assessment of the
statements De Lille made during the radio interview,
a reasonable
listener would have understood that these amounted to a public
declaration of an intention to resign from the party,
and not an
intention to resign from the mayoralty.
[24]
The DA contended that the loss of membership occurred
ipso
facto
by operation of the cessation
clause and the role of the FLC and FedEx was simply to determine
whether or not the relevant act(s)
had been committed in breach of
the said clause, and neither FedEx or the FLC had any true
discretionary powers in this regard.
[25]
In our view, and for the following reasons, it is unnecessary to deal
with all the grounds of review which were advanced by
De Lille.
[26]
In the first place, in respect of the constitutional challenge to the
cessation clause, it is now well accepted in our law
that political
parties may not adopt constitutions that are inconsistent with the
Constitution of the Republic of South Africa
because if they do so,
their constitutions may be susceptible to a challenge of
constitutional invalidity.
[18]
The general
principle in our law is however that where it is possible to decide
any matter whether civil or criminal, without reaching
a
constitutional issue, that is the course which should ordinarily be
adopted.
[19]
In our view,
this matter is no different and was capable of being decided without
the need to determine the constitutional issues
which were raised.
[27]
In regard to the contention that the provisions of PAJA were
applicable the argument which was advanced by De Lille’s
counsel was that the decision to terminate her membership in terms of
the cessation clause, amounted to an administrative decision
as
contemplated by the Act. The basis for this contention was that the
power which is exercised by a political party to terminate
the
membership of someone who also holds public office, as in this
instance, constitutes the exercise of a public power or the
performance of a public function in terms of an empowering instrument
which affects rights, to wit the party’s constitution.
[20]
In support
of this argument it was pointed out that by terminating De Lille’s
membership, a new Executive Mayor and Mayco
for Council needed to be
installed, which
per
se
constituted
the exercise of a public power for the benefit or detriment of the
citizens of the city.
[28]
Whether the conduct of private ie non-governmental entities
constitutes the exercise of public power or a public function,
such
that it may be said to be administrative action in terms of PAJA
thereby rendering it susceptible to ‘public law’
administrative review, is a controversial issue which has vexed many
courts from time to time, both in this country as well as
in foreign
jurisdictions. For the purposes of this judgment it is not necessary
to discuss the conflicting judgments that have
been handed down in
this regard, nor is it necessary to arrive at a definitive
determination as to whether the actions of the DA
which are under
scrutiny in this matter constitute administrative action.
[29]
It will suffice to point out, as was done by the Supreme Court of
Appeal in
Calibre
Clinical Consultants
[21]
that the
question of whether or not the conduct of political parties is
susceptible to review on the grounds that it constitutes
administrative action has ‘evoked varying responses’. In
this division itself there are what appear to be conflicting
judgments- see for example the decisions in
Marais
v Democratic Alliance
,
[22]
Van Zyl v
New National Party & Ors
,
[23]
Max v
Independent Democrats & Ors
[24]
Henderson
v The Democratic Alliance & Ors,
[25]
Noland v
The Independent Democrats
[26]
and
Andrews
v The Democratic Alliance.
[27]
We
may point out that in
Marais
Hlophe JP and Van Zyl J held that a decision to remove a mayor of a
large city (
in
casu
Cape Town), did not necessarily constitute the exercise of public
power or the performance of a public function in terms of PAJA,
and
every case had to be decided on its own facts.
[30]
As enticing as it may be to enter the fray and as attractive as the
arguments which were advanced by De Lille’s
counsel might
be, we are satisfied that this is not the appropriate occasion to
attempt, once again, to decide this issue. Our
reasons for adopting
this stance are as follows. In the first place, the parties
were agreed that notwithstanding whether
or not the actions by the
party were reviewable on the basis that they constituted
administrative action in terms of PAJA, which
would mean that they
would be capable of being assessed on the grounds of whether or not
they were reasonable, they were certainly
reviewable on the basis of
the principle of legality, which requires that the party can only act
in terms of its constitution and
its rules. At the heart of this
matter is the issue of the cessation of the membership of a party
member in terms of the DA’s
Federal constitution and its rules,
and in our view whether the party acted in due compliance with such
instruments or not clearly
falls within the purview of a legality
review.
[31]
In the second place, inasmuch as the party’s constitution
provides
[28]
that the
process which is to be followed by the party in the case of the
alleged cessation of membership in terms of the cessation
clause
shall be one determined by the FLC rules, and inasmuch as such rules
expressly make provision
[29]
for a
determination as to whether or not a person’s membership has
ceased to be made by an FLC panel, and for the principles
of natural
justice to apply to any proceedings before any such panel,
[30]
the
requirements of adherence to the
audi
alteram partem
rule and procedural fairness and procedural compliance are in any
event applicable and form part of any legality review, and it
is thus
in our view not necessary to seek to widen the scope of the review by
reference to PAJA.
[32]
In our view then, the real, crisp issue for determination is whether
the DA complied with its Federal constitution and its
rules when it
decided to invoke the cessation clause.
[33] On the face of it, the fact that
the DA’s Federal constitution provides that a person ceases to
be a member when he or
she publicly declares his or her intention to
resign from the party is uncontentious and appears to serve the
purposes which the
DA claimed it sought to give effect to ie to
enforce the continued loyalty of its members thereby ensuring the
strength and integrity
of its membership base. It seems to be obvious
that once a member (particularly one who occupies a prominent
position of high public
authority), publicly announces his/her
intention to resign from the party, he/she can no longer be trusted
to be unquestioningly
faithful to the party’s stated mission
and its principles and policies as he/she may become a target of
recruitment by opposing
political parties, and such a public
declaration potentially exposes the party and renders it politically
vulnerable. The question
in this matter is whether or not the
provisions of the cessation clause find application.
The radio interview:
[34]
Much debate centred around the interview De Lille had with Mc Kaiser
and whether the statements she made during the course
thereof fell
within the ambit of the cessation clause, in that they constituted
the public declaration of an intention to resign
from the party as
opposed to an intention to resign from the mayoralty. It was common
cause that it is only if such declarations
amounted to the former,
that the further question of whether or not there was proper
compliance with the prescribed processes that
were to be followed in
consequence thereof arose, and it is only in such circumstances that
the further alternative grounds of
challenge could be considered.
[35]
In the circumstances it will be convenient at this juncture to refer
to the relevant portions of the transcript of the interview.
(To this
end the abbreviation EM refers to the interviewer McKaiser and PDL to
De Lille, and the emphases below are ours). The
interview took place
the morning after the ‘caucus’ no confidence vote had
been passed.
[36] The interviewer pointed out to De
Lille that, as he understood it, neither the principles of
administrative law nor those of
labour law applied to the process and
thus notions of fairness did not come into play, as it was commonly
accepted that even ‘utterly
frivolous’ reasons for the
introduction of such a motion were acceptable in politics. To this De
Lille indicated that she
intended nonetheless to challenge what had
happened as she understood that there were different
‘interpretations’ of
the law. Then followed the following
interchange:
"[E]M:….
However, let's say the morning after you win the legal case,
do
you really want to still be part of the DA
?
POL:
No, no, no, no
,
I've said this long … many times before, Eusebius. You know, I
mean
the writing is on the wall that, you know people don't want
me for whatever reason
. My task at the moment, and why I am so
resolute about fighting on and this is to clear my name………
So, really I say to all
South Africans that I am prepared to test this and to take it forward
but
its not because I want to remain there
Eusebius. You’re
right, it will never be the same, not after what I have gone through.
But the point is I’ve
also got to protect my integrity, to protect my reputation. And then
I know whatever future I want to
design for me that this cloud will
not be hanging over me. So I want people to see it in that context
not that I’m really fighting on just to
stay there because I want to be the Mayor of Cape Town..
”
[37]
In response, McKaiser attempted to summarise what he understood her
to be saying, as follows:
“…
[E]M: Am I
hearing you say the following? And if you can, please take us into
your confidence.
If I hear you, you are
saying, ideally I want to clear my name, Eusebius, that's why I am
going to court and if I win this battle,
and when I win it because I
know I've done nothing wrong, then the morning after I have won the
court case then I will resign from
the DA.
To
this summary of what he understood to be her position De Lille
responded:
“
PDL: I will
walk away. You summed it up correctly.
Because really it
is not about hanging on to, I’m serving there at the behest of
the DA,
the DA has gone through a
process …and
they have put me
into that position.
I’m
not representing my jacket I’m representing the DA and
if
the DA feels they want to put someone else into that position they
are also entitled to do that.”
[38]
It was contended that notwithstanding what might appear to have
amounted, on the part of De Lille, to the expression of an
intention
to resign from the party (if one had regard for her express
confirmation of what was put to her by McKaiser read in the
context
of what preceded it), if one had regard for the comments she made
immediately thereafter, in relation to serving in ‘that
position… on behalf of the DA’, then it was clear that
what she was in fact referring to was an intention to resign
as
Mayor, or at the very least there had to be some doubt as to whether
her statements properly fell within the ambit of the cessation
clause.
[39]
In response to these submissions counsel for the DA pointed out that
after De Lille’s comments the interviewer was not
content to
let the matter go and put what he referred to as a ‘bonus
question’ to her. He asked her whether the EFF
would be waiting
for her after the ‘battle had been won’
and she had
‘walked away’
. Her response to this further question
was telling:
“
PDL: A few
weeks ago we had the Jazz Festival in Cape Town, I greeted the
President Cyril Ramaphosa and the next day
I’m
going to the ANC
. Then I go to Mama
Winnie’s memorial, the EFF invited me, and
I’m
going to the EFF. You know what I would so much like to plan my
future, you know I’m also not that young anymore
but I cannot
do that because wherever it is I want to go, I can’t go with
this cloud over my head, I’m eager to get
out of this mess as
soon as possible so that I can get on with my life
…”
[40]
The interviewer then concluded the interview by thanking her for her
honesty and commenting that she had been ‘very clear….not
clear as mud’ but ‘clear, clear, proper clear’
- if she won the legal battle she would be ‘
walking away
from the DA’
. It is therefore abundantly clear that as far
as the interviewer was concerned, De Lille was talking about leaving
the party, and
not about her position as Mayor, as she was talking
about where she might possibly find herself in the future, outside of
the party,
once she had left it.
[41]
In commenting in their judgment
[31]
on their understanding of what De Lille said during the interview,
Gamble et Samela JJ clearly also understood her declarations
to
amount to the expression of an intention to resign from the party,
and not from the mayoralty:
“
[W]e are of the
view that the McKaiser interview, when considered in its entire
context, demonstrates that Ms de Lille’s relationship
with the
DA has all but come to an end. Ms de Lille herself acknowledged that
in the interview when she said that “the writing
is on the
wall.” There is the recognition of a long history of disharmony
between the parties and Ms de Lille agreed with
Mr McKaiser’s
statement in that interview that she would resign from the DA (and
not just as mayor): “The morning after
I’ve won the court
case then I will resign from the DA”
.
[42]
Counsel for De Lille contended that even if we were minded to agree
with the Court which heard Part A of the application and
were also of
the view that what De Lille expressed during the interview amounted
to an intention to resign from the party, it did
not necessarily
follow that the provisions of the cessation clause were applicable.
In this regard it was submitted that her declaration
was not
unequivocal, as it was conditional upon her ‘clearing her name’
at some indeterminate date in the future, and
it was submitted that
on a purposive interpretation it could never have been intended that
the clause would apply in such circumstances.
In response counsel for
the DA submitted that although her expressed intention was contingent
upon a future event, it nonetheless
was clear that it amounted to an
unequivocal intention to resign. Put simply, it was only a question
of when she would resign,
and not if, and there was therefore no good
reason why the clause should not find application.
[43]
In our view it is not necessary, for the purposes of this judgment,
to attempt to resolve which interpretation is the correct
one. There
is no doubt that in certain instances it would be anomalous or unfair
to suggest that the mere expression of an intention
to resign from
the party on the happening of a future event, would necessarily
result in a cessation of membership even before
that event had
transpired, and at a time when the member’s loyalty was beyond
reproach. By way of example it is doubtful
whether the drafters of
the clause envisaged that it should be held to apply at the moment a
member were to publicly express an
intention to resign from the party
when he/she reached retirement age, or on the happening of an
uncertain future event eg when
a rival political party won the next
elections. In like vein, it may be asked whether in order for the
clause to apply, the expression
of intent always needs to be
unconditional.
[44]
As is always the case in matters of interpretation
[32]
the context in which any statement expressing an intention to resign
is made will usually be determinative and there is no need
to attempt
to make a definitive pronouncement on this issue, at this time. For
the purpose of this judgment we have assumed, in
favour of the DA,
that the jurisdictional pre-requisites which were necessary for the
clause to find application, were present.
Cessation
of membership:
[45]
The fact that the statements which were uttered by De Lille may have
amounted to the expression of an intention to resign,
within the
meaning of
cl
3.5.1.2, does not however necessarily lead to the conclusion that her
membership ceased, as was submitted by the party, either
automatically or otherwise.
It was contended by
the DA that the cessation clause operated automatically and the
function of the FLC panel and FedEx was simply
to determine
whether the facts which triggered the application of the clause
existed, and if this was the case, De Lille’s
membership ceased
retrospectively as a matter of law, to the date when the interview
took place.
[46]
For the latter proposition reliance was placed on the dictum in
Phenithi
v Minister of Education and Others
[33]
where the
Court concurred with the finding of Van Heerden JA, in
Minster
van Onderwys en Kultuur en Andere v Louw.
[34]
In the
latter case, Louw was a general assistant and in permanent employment
at a boarding house of a certain high school in Upington.
He failed
to report for duty over the period 29 July to 31 August 1992. On 11
September the principal wrote Louw a letter informing
him, in
essence, that according to the school governing council he had been
discharged and that his last day of service was 28
July 1992. The
principal relied on a provision, namely s 72 of the then Education
Affairs Act (House of Assembly) 70 of 1988 which
provided that ‘
a
person – employed in a permanent capacity at a departmental
institution and who –(a) is absent from service for a
period of
more than 30 consecutive days without consent of the Head of
Education …shall, unless the minister directs otherwise,
be
deemed to have been discharged for misconduct.”
Following
unsuccessful negotiations between the parties Louw instituted
application proceedings in the High Court, seeking
inter
alia
the setting aside of the decision to terminate his services. Van
Heerden JA, in reversing the decision of the High Court said:
[35]
“
The
deeming provision [s72(1)] comes into operation if a person in the
position of the respondent (i) without the consent of the
‘Head
of Education’ (ii) is absent from his service for more than 30
consecutive days. Whether these requirements have
been satisfied is
objectively determinable. Should a person allege, for example, that
he had the necessary consent and that allegation
is disputed, the
factual dispute is justiciable by a court of law. There is then no
question of a review of an administrative decision.
Indeed, the
coming into operation of the deeming provision is not dependent upon
any decision. There is thus no room for reliance
on the audi -rule
which, in its classic formulation, is applicable when an
administrative – and discretionary – decision
may
detrimentally affect the rights, privileges or liberty of a person.”
[47] The rules which deal with
cessation of membership in terms of Clause 3.5 of the party’s
constitution are those set out
in Part C of the FLC rules. The
relevant ones which are applicable in this matter are as follows:
“
Rule
2 -
As soon as
the relevant Provincial Executive or Federal Executive receives prima
facie evidence which indicates that a public representative’s
membership has ceased by virtue of the provisions of s3.5.1 of the
Federal Constitution, then this evidence must be referred to
the
Chairperson of the FLC.
Rule 3- In the
instance where a member publicly declares (as contemplated in
s3.5.1.2 and s3.5.1.3 of the Federal Constitution)
his/her
resignation or intention to resign from the Party or intention to
join another party or him/her joining another Party,
the mere
tendering of proof by means of a visual or audio clip from the
relevant electronic medium, or a screen shot from the relevant
social
media platform and /or a copy of a printed letter, report or article
in the case of print media constituting such public
declaration of
his/her resignation or intention to resign from the Party or
intention to join or joining another party, shall constitute
sufficient proof of such resignation, intention to resign or
intention to join or joining another party.
Rule
4 - …………….
Rule 5- A letter of
cessation, including a sufficient description of the public
declaration as set out in paragraph 3 hereof, or,
where applicable,
including the relevant statements as set out in paragraph 4 hereof,
must be served on the affected member. This
letter shall state that
the member has twenty- four (24) hours, after having been served with
such letter of cessation to provide
the Chairperson of the FLC with
clear and unequivocal written reasons why his or her membership did
not cease.
Rule 6- The
Chairperson of the FLC must as soon as possible after receipt of the
written reasons contemplated in paragraph 5 hereof,
or upon
completion of the twenty-four (24) hours as set out in paragraph 5
hereof, present to a panel of the FLC:
6.1 A copy of the
public declaration and or statements which allege the cessation of
membership; and
6.2
The written response, if any, by the affected member.
Rule 7- Upon receiving
the copy of the public declaration and/or statements and the written
response by the affected member, the
panel must without undue delay
make a determination on the papers as presented to it and communicate
this determination to the
Chairperson of the FLC.
Rule 9 - In the event
that a determination is made that the member’s membership has
ceased, this determination shall be presented
to the Federal
Executive, which may then confirm the determination of the cessation
of the membership of the affected member.
Rule
10 - In the event that a determination is made by the panel, or a
resolution is passed by the Federal Executive that the written
reasons provided by the affected member sufficiently dispute the
facts on which cessation may be based in terms of the Federal
Constitution, the matter may be referred to the FLC for a
disciplinary hearing, or to follow the process set out in paragraphs
5, 6 and 7 of Part F of these rules.”
[48]
Unlike the operative provisions in
Pheniti
and
Louw
cessation of membership in terms of the party’s rules does not
occur automatically in terms of a deeming provision, and before
a
public declaration of the intention to resign has legal effect the
rules require that there be a determination of the cessation
by an
FLC panel, which is then confirmed by FedEx. In essence the panel
functions almost like a tribunal or court would- it is
required to
evaluate the contents of the member’s public declaration and
her response thereto and needs to be satisfied that
1) the
declaration constitutes the expression of an intention to resign from
the party, as envisaged by the cessation clause and
2) despite this
the member has failed to provide clear and unequivocal reasons why
his/her membership did not cease. Thereafter,
FedEx is required to
confirm the determination. And, as we read the rule in this regard
FedEx has a wide discretion, which, notwithstanding
the contents of
rule 10 is not limited to simply deciding whether or not to confirm
that the declaration is covered by the cessation
clause. The
discretion not to confirm the determination by the FLC panel could be
exercised on the basis of extraneous considerations,
such as whether
for example, in the light of the explanation which was tendered by
the member and the member’s value to the
party, it should
condone the declaration which he/she made. In the circumstances
counsel for the DA was constrained to concede
that until such
confirmation by FedEx, as a matter of law, cessation of membership
does not occur.
In the absence of such a finding
the membership of an affected member remains extant and does not
cease to exist in law.
[49]
Our finding that in terms of the party’s constitution and its
rules, membership does not cease automatically, by operation
of law,
and is dependent upon a determination which has to be made to that
effect, which must in turn be confirmed in order to
become operative,
has two further, important consequences. Firstly, it must follow that
where there is a material defect in relation
to the process ie where
a panel is not properly constituted in terms of the party’s
constitution or rules, then there cannot
be a valid determination
made that membership has ceased, and secondly, there can be no valid
and effective confirmation of such
a determination.
The
composition of the FLC panel:
[50]
According to the constitution the FLC is an important structure
within the party. In terms of cl 1.2 it has all the powers
necessary
to exercise its functions justly and expeditiously. Some of its
functions
inter
alia
are to interpret the federal, as well as any provincial
constitution
[36]
and to
determine any dispute referred to it.
[37]
The
decisions of the FLC in matters other than disciplinary hearings are
not subject to an internal appeal and its findings must
be
implemented by the relevant structures within the party.
[38]
[51] The composition of the FLC is
prescribed in Chp 11 of the constitution. Clause 11.1.1 (as it read
at the time) provided as
follows:
“
The
Federal Executive must at its first ordinary meeting after each
Federal Congress elect the Chairperson and Deputy Chairperson
of the
Federal Legal Commission. Thereafter, the Federal Executive shall
appoint a panel of ten (10) additional people who are
as objective as
possible, preferably including one from each province, who, together
with the Chairperson of the Federal Legal
Commission, will make
recommendations to the Federal Council for the appointment of the
other panel members, consisting of up to
twenty (20) members of whom
at least fifteen (15) must be legally qualified persons as well as up
to ten (10) alternates of whom
at least six (6) must be so qualified
and must fill any vacancy as it arises.”
[52]
According to the minutes of the meeting which was
held on 5 June 2015, following upon the party’s federal
congress, FedEx
duly appointed the Chair and Deputy Chair of the FLC.
The party’s federal leader then expressed a desire to serve on
the
‘selection panel’ which was to make recommendations
to the FLC for the appointment of ‘the other panel members’
and this request was accepted by FedEx. Technically speaking this
would mean that the ‘selection panel’ was improperly
constituted, as it would be comprised of an additional member (ie the
party’s leader) who was not authorised to be on the
panel. But,
according to the papers filed of record when the ‘selection
panel’ met thereafter the leader was not present
and the FedEx
chair and the 9 provincial leaders assumed the role of recommending
all of the 20 principal and 10 alternate FLC
members for appointment
by the Federal Council (which in terms of the constitution is a
different body), approval for which was
seemingly granted by the
Council on 25-26 July 2015. It appears that the Chairperson of the
FLC and the 9 provincial leaders were
not included as members of the
FLC in this process of nomination and appointment.
[53]
On this issue, the nub of the complaint by De Lille was that the DA’s
failure to fully comply with clause
11.1
of its own constitution amounted to a fundamental irregularity which
rendered the appointment of all its FLC panels flawed,
including the
one responsible for the recommendation to FedEx that she ceased to be
a member of the party. In support of this proposition
reliance was
placed on the matters of
Crouwcamp
v Civic Independent and Others
[39]
and
Ramakatsa,
[40]
to which we will return.
[54]
The DA is
ad
idem
that its own constitution must be complied with when it deals with
its members and that the relationship between it and its members
is
contractual in nature. During argument it was advanced by its counsel
that the ordinary principles for interpreting contracts
apply in this
instance and only substantial compliance with the constitution was
therefore required. It was further contended that
the dictum in
Ramakatsa
that: “
our
Constitution gives every member of every political party the right to
exact compliance with the constitution of a political
party by the
leadership of that party.
”
[41]
means that a
member of a party is entitled to “
demand
and obtain
”
compliance with the party’s constitution but that compliance is
determined by the ordinary rules that govern compliance
with
contractual provisions. To that extent it was submitted that De Lille
failed to demonstrate that the party’s interpretation
of the
provisions of its constitution was not business-like or was
inconsistent with their purpose; or that the provisions were
not
substantially complied with, or that the alleged breach of the
constitution was material; and she failed to demonstrate that
she
suffered prejudice or disadvantage as a result of any insignificant
procedural non-compliance.
[55]
As to the composition of the FLC and whether it was properly
appointed and constituted the DA submitted that at the time clause
11.1.1, was inelegantly worded and open for more than one
interpretation. The first way to read the said clause, according to
it, was that the ‘selection panel’ as a whole was to
recommend all 20 principal members and 10 alternates of the FLC,
and
as their function was thereafter complete they did not ‘form
part’ of the FLC. On the other hand, it could be read
that the
‘selection panel’ constituted the first 10 members of the
FLC, and its task was to recommend an additional
group of up to 20
principal members and alternates, of which it would form part.
[56]
The DA said that it understood the clause to be read in the first way
and it appointed members of the FLC panels in 2011 and
2015 in that
manner. However, as we have attempted to explain, contrary to this it
was also submitted by the party that once the
initial 10 members had
been appointed the selection panel was complete and the reference in
cl 11.1.1 to ‘the additional
panel members’ was to be
understood as constituting a reference to a different, additional
‘panel’. In the circumstances,
so it was contended, the
initial ‘selection panel’ was never intended to be part
of the FLC, and De Lille was mistaken
in regard to her understanding
and interpretation of the said clause. Put simply, it was contended
by the DA that the clause referred
to two ‘different bodies’
ie an initial group of 11 members who would constitute a ‘selection
panel’ (the
first 10 referred to in the clause together with
the Chairperson of the FLC) and another group of up to 20 members
plus alternates
who would constitute the FLC. According to Selfe, the
original 11 members of the ‘selection panel’ were
considered
to serve only to ‘identify the members of the FLC’
but did not ‘themselves’ ever serve as members of the
FLC.
[57]
We found the differing interpretations which were put forward by the
DA in regard to the proper meaning to be afforded to the
clause, to
be strained and confusing. In our view, on a proper reading of the
clause and the constitution as a whole there can
be no uncertainty or
vagueness as to how the FLC should have been constituted. Firstly, at
its first ordinary meeting after its
federal congress FedEx was
required to elect the Chairperson and Deputy Chairperson of the FLC.
Thereafter, FedEx was required
to appoint a group of 10 further
(“additional”) persons (who were to be as objective as
possible), preferably one from
each province, who would form a
‘selection panel’ together with the
FLC
Chairperson
(and not the Chairperson of
FedEx as seems to have been the case). This panel was required to
make recommendations to the Federal
Council for the appointment of
the
other members
of the FLC, comprising up to an additional 20 members (of whom at
least 15 of the principal and 6 of the 10 alternates were to
be
legally qualified persons).
[58]
As stated previously, according to the constitution the FLC is an
important structure within the Party. It is the body from
which
members are drawn to serve on disciplinary panels, and panels which
must make a determination as to the cessation of a person’s
membership. To this end it is understandable why the drafters of the
constitution would insist that at least 15 of the principal
and 6 of
the 10 alternate members were to be legally qualified persons. The
intention was clearly to create an FLC that would be
comprised of
mostly legally trained and skilled people and that all the members
would be able to bring about an objective and impartial
mind to bear
on the issues they were to decide upon.
[59]
It is abundantly clear that on the DA’s own version clause
11.1.1 was not complied with, and such non-compliance was
material
and not trivial as the party tried to suggest. Not only was the
initial FLC ‘selection panel’ not properly
constituted,
but the entire FLC itself appears also not to have been properly
constituted, in that the 11 members of the ‘selection
panel’
were not considered to be part of it, and never served on it. In our
view this must mean that the FLC panel which
was appointed to make a
determination in respect of the alleged cessation of De Lille’s
membership, was also improperly constituted,
and this much too was in
effect conceded by the DA’s counsel, when pressed upon the
point.
[60]
On this point, it was argued on behalf of the DA that assuming there
was an ‘error’ it was merely technical in
nature.
Moreover, it was submitted that De Lille was not prejudiced or
disadvantaged by it given the fact that she participated
in the
process. It was further contended that no allegation of bias was made
by De Lille toward the FLC and would it be improper
to raise
technical non-compliance in respect of the clause in order for her to
retain her membership.
[61]
The DA’s argument on the abovementioned point is unpersuasive.
In our view the failure not to fully comply with clause
11.1.1 (as it
was at the time) cannot be regarded as merely technical in nature.
Our Courts have repeatedly held that political
parties are
constrained to strictly exercise only those powers entrusted to them
by their constitution and any conduct falling
outside the purview
thereof will be
ultra vires
and invalid.
[62]
In
Crouwcamp
[42]
the central
question on appeal was the legality of a meeting purportedly held by
the national executive committee (“NEC”)
of a political
party, the Civic Independent. In that matter the Supreme Court of
Appeal held as follows:
“
[16]
It is common cause that the Civic as a political party is governed by
its Constitution which represents the collective voice
of its
members. This Constitution spells out clearly when and how members of
the Civic’s NEC will be appointed and removed
from office. It
follows therefore that the NEC is constrained to exercise only those
powers entrusted to them by Constitution,
and, strictly in terms of
the Constitution. This is in line with the principle of legality. Any
conduct that falls outside the
purview of the Constitution is
therefore
ultra
vires
and invalid.’
[63]
The Court held that a meeting of the NEC which was attended by one of
the respondents who had not been properly elected to
serve on it, and
who thus had no right to participate in it, was not a legitimate and
properly constituted meeting, and it therefore
could not take any
valid decisions on behalf of the party.
[43]
As a result,
a motion which had been passed by the NEC at the instance of the
respondent, to remove the appellant as the President
of the
organization and to expel him from his membership of the party, was
not a valid resolution. The SCA consequently held that
it followed
that all other subsequent decisions which were based on that
resolution were also invalid.
[44]
[64]
In
Ramakatsa,
[45]
six members
of the African National Congress (“ANC”) in the Free
State approached the High Court seeking an order declaring
invalid a
meeting of the Free State Provincial Executive Committee (“the
PEC”) of the ANC on the basis that irregularities
had occurred
in the branch processes aimed at electing delegates to a provincial
conference. The matter ultimately ended up in
the Constitutional
Court where
[46]
the
following was held by Yacoob J (for the majority): “
I
do not think that the Constitution could have contemplated political
parties could act unlawfully. On a broad purposive construction,
I
would hold that the right to participate in the activities of a
political party confers on every political party the duty to
act
lawfully and in accordance with its own constitution. This means that
our Constitution gives every member of every political
party the
right to exact compliance with the constitution of a political party
by the leadership of that party.”
[65]
The FLC within the context of the DA’s constitution and body
politic is an important structure and it has wide powers.
The
composition of the FLC must accordingly be within the four corners of
the Federal constitution. This is in line with the principle
of
legality. A failure to do so, certainly falls outside the boundaries
of the Federal constitution and, as held in
Crouwcamp
[47]
‘
any
conduct that falls outside the purview of the Constitution is
therefore ultra vires and invalid.’
The
non–compliance of the said clause having regard to the purpose
of it, was material and properly evaluated brings about
an
irregularity that justifies a ground for review. In our view the fact
that De Lille may have somehow participated in some of
the processes
cannot render an otherwise improperly constituted FLC to be lawful.
It follows that on this ground alone the cessation
of De Lille’s
membership cannot stand. But there is in our view a further material
reason why the decisions in question are
reviewable.
[66]
As we have previously pointed out, t
he
DA’s constitution further provides that in the event of a case
of cessation, and assuming De Lille did publicly declare
that she
intended to resign from the party, then the process or processes to
be followed were to be further regulated by the Rules
of the FLC.
[48]
[67]
Chp 10 of the DA’s constitution in turn provides that the FLC
must determine the rules of procedure which may be applicable
to it,
which may not be in conflict with the Federal constitution.
[49]
The
procedures that are applicable to proceedings of panels are dealt
with in Clause 10.5 of the Federal constitution. Clause 10.5.1
provides as follows:
“
The
Rules of Procedure prescribed by the Federal Legal Commission must
apply to all proceedings of a panel: Provided that the rules
of
natural justice must at all times be adhered to. In particular a
panel must not make any adverse finding against any person
unless:
10.5.1.1 the person
has been sufficiently informed of every allegation against him or her
and has been given the opportunity to
rebut the allegations; and
10.5.1.2
he or she has been given the opportunity to submit evidence of
mitigating factors.”
[68]
It is apparent from these peremptory provisions that before making an
adverse finding against De Lille, the party was required
to give her
an opportunity to submit evidence in mitigation, which it is common
cause, it did not do. Although ordinarily mitigation
only comes into
play when penal or disciplinary sanctions can be imposed, cl 10.5.1
extends this to
all
proceedings of an FLC panel ie not only proceedings in panels
conducting disciplinary proceedings, but also those constituted to
determine whether a member’s membership has ceased, and it
further provides that
no
panel may make an adverse finding against any member, unless he or
she has been given an opportunity to put forward mitigating
factors.
Although such factors might not necessarily have any bearing on
whether or not a member’s declaration constituted
the
expression of an intention to resign within the meaning of the
cessation clause and would thus not be relevant to any adverse
finding which might be made by a panel in this regard, they certainly
would be helpful to the further process of confirmation by
FedEx,
which involves the exercise of a discretion on its part. It could
thus rightly be said that without such mitigating factors,
if any,
FedEx would not have been able to properly exercise its discretion as
to whether or not to confirm the cessation of membership.
In this
regard there might well be instances where, because of the weight of
the mitigating factors which are submitted, FedEx
is of the view that
it should not confirm the cessation.
[69]
In the circumstances in our view the party’s failure to comply
with the provisions of Cl 10.5.1.2 of its own constitution
therefor
amounted to a further, material irregularity which vitiates the
decision that was arrived at viz that De Lille’s
membership had
ceased to exist.
[70] For these reasons it follows that
the relief sought in paragraph 3.1 of the Amended Notice of Motion:
Part B, must succeed
with costs including the costs that stood over
in relation to the application for interim relief in terms of Part
A.
[71] In the result the following order
is made:
The determination by the First
Respondent that the Applicant has ceased to be a member of the DA in
terms of clause 3.5.1.2 of its
(federal) constitution is declared to
be unlawful and invalid and is reviewed and set aside, with costs.
Such costs shall include
the costs pertaining to the application for
interim relief in terms of Part A, and the costs of the employment of
two counsel.
__________
LE
GRANGE, J
I
agree.
__________
MANTAME, J
I
agree.
__________
SHER, J
[1]
Chapter
3. 5 of the DA’s constitution deals with cessation of
membership. Clause 3.5.1. 2 thereof provides that: ‘a
member
ceases to be a member of the Party when he or she- publicly declares
his or her intention to resign and/or publicly declares
his or her
resignation from the party’.
[2]
Ss
27(c)
and 27(f)(i) read with s 59(c).
[3]
Act
117 of 1998.
[4]
S
60(5)
of the Structures Act.
[5]
Id,
s
56(6) of the Structures Act.
[6]
Id
,
S
60(1)(a)
of the Structures Act.
[7]
The
former complaint has been referred to the so-called ‘Moolman’
DC and the latter to the ‘Joubert’ DC.
[8]
A
total of
97
councillors voted in favour and 41 against the motion, and 15
councillors abstained, with one spoilt ballot. The voting numbers
clearly imply that a number of the party’s councillors were
not for the motion.
[9]
Mr
Werner Horn.
[10]
Rule
5.
[11]
Act
3 of 2000
.
[12]
In
terms of Rule 6 of the FLC Rules.
[13]
Rule
7.
[14]
In
terms of s 16(1)(a) of the Constitution.
[15]
Id
,
s 18.
[16]
Id
,
s 19(1)(b).
[17]
Id,
in terms of s 19(3)(b) read together with the principle of
democratic governance, as entrenched in s (1)(d).
[18]
Ramakatsa
and Others v Magashule and Others
2013
(2) BCLR 202
(CC) at para [74].
[19]
National
Coalition for Gay & Lesbian Equality & Others v Minister of
Home Affairs & Others
2000
(2) SA 1
(CC) at para [21].
[20]
In
terms of s
1
of PAJA.
[21]
Calibre
Clinical Consultants v NBC for the Road Freight Industry
2010 (5) SA 457
(SCA) at para [35].
[22]
[2002]
2 All SA 424 (C).
[23]
[2003]
3 All SA 737 (C).
[24]
2006
(3) SA 112 (C).
[25]
An
unreported decision handed down by Veldhuizen J on 4 December 2007
in WCD 12540/07.
[26]
An
unreported decision by Louw et Erasmus JJ on 1 April 2008 in WCD
13275/2007.
[27]
An
unreported decision by Mansingh AJ on 13 November 2012 in WCD
17833/12 in which she held (at paras [36]-[37]) that a member
of the
DA who had failed to pay a ‘candidate fee’ for more than
2 months after being notified to do so and was thus
in default of cl
3.5.19 of the party’s constitution, lost her membership
automatically, and not in terms of any decision
or action which was
reviewable in terms of PAJA. This was similar to the
ratio
in both
Noland
and
Henderson.
[28]
In
cl 3.5.3.
[29]
Rule
7.
[30]
Cl
10.5.1 of the DA’s constitution
.
[31]
At
para [25].
[32]
See
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) at para [18].
[33]
2008
(1) SA 420
SCA para 9.
[34]
1995
(4) SA 383 (A).
[35]
A
t
388G-H.
[36]
Cl
11.2.1.1.
[37]
Cl
11.2.1.3.
[38]
Cl
10.10.4.
[39]
(416/2013)
[2014] ZASCA 98
(31 July 2014)
[40]
Note
18.
[41]
Id
at
para [16].
[42]
Note
39.
[43]
Id
,
at para [17].
[44]
Id,
at para [19].
[45]
Note
18.
[46]
At
para [16].
[47]
Note
39
.
[48]
Cl
3.5.3: The process to be followed in the case of cessation under
this section will be determined by the Rules of the Federal
Legal
Commission.
[49]
Cl
10.1.4.