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[2014] ZASCA 98
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Crouwcamp v Civic Independent and Others (416/2013) [2014] ZASCA 98 (31 July 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 416/2013
Not
Reportable
In
the matter between
NICOLIN
PETER
CROUWCAMP
.................................................................................
APPELLANT
and
CIVIC
INDEPENDENT
....................................................................................
FIRST
RESPONDENT
THE
CHIEF ELECTORAL OFFICER:
INDEPENDENT
ELECTORAL COMMISSION
......................................
SECOND
RESPONDENT
PETER
BOTHMAN
.........................................................................................
THIRD
RESPONDENT
DANIE
SEPTEMBER
..................................................................................
FOURTH
RESPONDENT
JONATHAN
STEVENS
....................................................................................
FIFTH
RESPONDENT
AUBREY
KUHN
..............................................................................................
SIXTH RESPONDENT
JACOBUS
DAMONS
.................................................................................
SEVENTH
RESPONDENT
ADRIAN
MONTZINGER
N.O
....................................................................
EIGHTH
RESPONDENT
Neutral
citation:
Crouwcamp v Civic
Independent & others
(416/2013)
[2014] ZASCA 98
(31 July 2014)
Coram:
Mpati P, Navsa, Bosielo and Saldulker
JJA and Mocumie AJA
Heard:
20 May 2014
Delivered:
31 July 2014
Summary
:
Political Party registered in terms of
section 15
of the
Electoral
Commission Act 51 of 1996
– non-compliance with the party’s
constitution – meetings – quorum – legality of a
meeting where
a non-executive member was permitted to participate
actively in the meetings of National Executive Committee – NEC
not properly
constituted.
ORDER
On
appeal from:
The Western Cape High
Court, Cape Town (Nyman AJ sitting as a court of first instance):
The
following order is made:
(a) The appeal is
upheld with costs to be paid by the third to seventh respondents
jointly and severally the one paying the other
to be absolved;
(b) The order of the
court below is set aside and substituted as follows: ‘(i) The
application is dismissed with costs to
be paid by the second to
seventh applicants, jointly and severally, the one paying the others
to be absolved;
(ii) The counter
application is upheld with costs to be paid by the third to seventh
respondents jointly and severally, the one
paying the others to be
absolved;
(iii) The decisions
reached at the meetings held on 2 May 2012 and those reached at
subsequent meetings related to and flowing from
the first mentioned
meeting are set aside.
JUDGMENT
Bosielo
JA (Mpati P, Navsa and Saldulker JJA and Mocumie AJA concurring):
[1]
Central to this appeal is the legality of a meeting purportedly held
by the National Executive Committee (NEC) of the first
respondent,
the Civic Independent (Civic), a political party registered in terms
of
section 15
of the
Electoral Commission Act 51 of 1996
. The meeting
was held on 2 May 2012 where a decision was taken to, amongst
other things, remove the appellant, Nicolin Peter
Crouwcamp
(Crouwcamp) as the first respondent’s President; prohibiting
him from acting as such with immediate effect, but
allowing him to
retain his status as an ordinary member; appointing the third
respondent (Bothman) as Acting President; and establishing
a
Disciplinary Committee (DC). Although the minutes of the meeting do
not state the purpose of the DC, it later transpired that
it was
intended to investigate allegations of misconduct by the appellant.
This decision gave birth to litigation in respect of
which the
Western Cape High Court (Nyman AJ) gave a judgment that, amongst
other things, interdicted the appellant forthwith from
acting and/or
purporting to act as the first respondent’s President and/or
its member or representative. In terms of that
judgment a seat
previously occupied by the appellant in the Langerberg Municipality
was declared vacant. This appeal is with the
leave of the high court.
[2]
The background facts which resulted in this appeal and which are
common cause can be stated briefly as follows: the Civic was
formally
established as a political party during March 2011. At this meeting
the following members were elected as the executive
committee (EC):
the appellant as the President, Danie September (September) as Deputy
President, Zanine May (May) as Secretary;
(why the sudden change from
commas to semi-colons? It’s either the one or the other.)
Sharlene Scheepers (Scheepers) as Deputy
Secretary; Aubrey Kuhn
(Kuhn) as Treasurer and Jonathan Stevens (Stevens) and Johan Matthews
(Matthews) as additional members.
[3]
On 18 September 2011 the Civic held its Special National Conference
where, amongst other things, a new Constitution was adopted.
The
minutes of that conference reflect that the current National
Executive Committee (NEC) was confirmed. Furthermore it was
resolved
that the next NEC elections would be held every four years in terms
of clause 37.4 of the new Constitution.
[4]
Although there appears to be a dispute as to whether Bothman was
elected as the National Secretary at the meeting the minutes
reflect
him as the Secretary General. However, according to the letter
written by the appellant to the IEC on 8 August 2011, Bothman
formally replaced May as the Civic’s National Secretary with
effect from 1 July 2011. This position was reflected
in a
letter written by the appellant to the IEC. Furthermore, the NEC,
including Bothman, was confirmed in a letter to the IEC
dated 27
September 2011. I interpose to state that Mr Jacobus Damons (Damons)
was not elected as an NEC member at this meeting.
[5]
The NEC held what purported to be its meeting on 2 May 2012. Present
at this meeting were Stevens, Bothman, Kuhn, September,
Scheepers and
Damons. The appellant did not attend this meeting. Purporting to act
in terms of clause 54.8 of the Civic’s
Constitution Damons,
supported by Stevens, proposed a motion of no confidence in the
appellant at this meeting. A resolution was
adopted unanimously,
removing the appellant as the President of the party and prohibiting
him from operating as such with immediate
effect. The DC referred to
above, comprising of Messrs A Saayman (Saayman), J Stevens and Frans
Filies (Filies) was established.
[6]
Pursuant to the above resolution, and purporting to act in terms of
clause 48.1 of the Civic’s Constitution, the DC held
a meeting
on 3 June 2012, where it resolved to appoint attorney Adrian
Montzinger (Montzinger) to preside over the disciplinary
proceedings
against the appellant. Saayman was appointed as the prosecutor.
[7]
On 21 June 2012, the disciplinary hearing took place in the absence
of the appellant. This is notwithstanding his request for
a
postponement. At the end of the disciplinary hearing, the presiding
officer, Montzinger found the appellant guilty of “having
conducted himself in a way that lowered the esteem in which the
Complainant is held by the public as provided for in paragraph
51.9
of the constitution of the Party”. He then recommended
that the appellant be expelled from Civic and also that
he be removed
from any office which he held on Civic’s behalf with immediate
effect. Acting on the recommendations of the
DC the NEC expelled the
appellant from the Party
[8]
However, the appellant continued to act as the President and leader
of the party in disregard of the aforesaid decision. In
an attempt to
put an end to the appellant’s behaviour the Civic
approached the high court with an urgent application
to restrain and
interdict the appellant from continuing to act as its President and
leader and/or a member or representative, and
to have Bothman acting
in that capacity.
[9]
The appellant opposed the application and filed a counterclaim where,
amongst other things, he sought to have third to seventh
respondents
joined as applicants in the main application and respondents in the
counter application. He also sought an order to
have Attorney
Montzinger who acted as a chairperson in the disciplinary proceedings
which took place on 21 June 2012 joined as
a respondent in the
counter application in is official capacity. I interpose to state
that the appellant’s applications were
granted by agreement.
[10]
The gravamen of his opposition was the legality of all the meetings
purporting to have been held by the Civic’s NEC on
diverse
dates, including 19 February 2012; 26 April 2012; 2 May 2012; 29 May
2012 and 26 June 2012, and the meeting held on 3 June
2012, where
Montzinger was appointed as the presiding officer
and
Saayman as the prosecutor of the disciplinary proceedings against the
appellant. The nub of his attack is that all these meetings,
purportedly held as NEC meetings, were neither quorate nor held in
terms of the Civic’s Constitution. The logical conclusion
is
that no lawful decisions could have been taken at those meetings.
[11]
The court below found these grounds to be without merit, dismissed
the counter-application and granted the Civic the relief
it sought.
[12]
I pause to observe that although both counsel had prepared elaborate
heads of arguments, the arguments before us were narrowed
down to one
crisp issue, namely the legality of the meetings purporting to be
those of the NEC, in particular the one held on 2
May 2012 where,
amongst other things, the decisions to terminate the appellant’s
Presidency and membership of the party was
taken; appointing Bothman
as the Deputy President with all the authority , duties and powers
granted to him by the Constitution
and establishing a DC.
[13]
The basis of the appellant’s submission is that only persons
elected in terms of clause 38 of the Civic’s Constitution
could
constitute the NEC lawfully. Clause 38 provides as follows:
‘
38.
The NEC shall consist of
38.1 The Leader of
the Party (President)
38.2 The Deputy
Leader of the Party
38.3 Secretary
General
38.4 Deputy
Secretary General
38.5 National
Organiser
38.6 National
Treasurer
38.7 Nation Policy
Convenor
38.8 Members of
Parliament will serve as ex-officio members on the NEC
38.9
Chairperson of the National Councillors Forum.’
[14]
It was argued further that clause 37.4, in turn, prescribes that the
NEC shall be elected every four years after the party’s
Provincial Conference or election process has been finalised. This
was also resolved at the Special National Conference held on
18
September 2011. The further submission was that no other provincial
conference or election process was held in terms of the
Civic’s
Constitution after the one held on 28 September 2011 where Damons
could have been elected as a member of the NEC.
As a result, only the
members elected at the last Provincial Conference qualified as
legitimate members of the NEC on 2 May 2012.
Damons was only co-opted
as the National Policy Co-ordinator of the NEC on 28 May 2012. This
was after the Civic’s Constitution
had been amended
specifically “to co-opt members as the need arises”, as
it did not provide for such co-option at the
time. It was accordingly
argued that as Damons was not a legitimate member of the NEC, he had
no right to attend its meetings and
to participate thereat. The
logical conclusion was therefore that all the NEC meetings where
Damons participated were not legitimate
NEC meetings and that all the
decisions taken at those meetings were invalid.
[15]
Confronted with this conundrum, the first respondent’s counsel
conceded, properly in my view, that as Damons participated
in that
important meeting held on 2 May 2012 qua NEC member whilst he was
not, the meeting was not proper and hence its decisions
were invalid.
It was conceded further that by parity of reasoning all the decisions
which were taken at the meetings which followed
the meeting held on 2
May 2012 were equally invalid.
[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.
[17]
I have already indicated that, as at 2 May 2012, Damons had not been
elected onto the NEC as its member in terms of the Civic’s
Constitution. He was only co-opted on 28 May 2012. He therefore had
no right to participate in the NEC’s meetings qua NEC
member.
He was essentially a so-called stranger. However, Damons did not only
participate in the meeting but also proposed the
motion of no
confidence against the appellant, which ultimately became the
death-knell of his status as President and member of
the party. It
follows, therefore, that the NEC, which purported to make the
decision in question, was not a legitimate NEC and
could not take any
valid decisions on behalf of the NEC of the Civic.
[18]
I pause to observe that, ordinarily, strangers to an organisation are
not allowed to participate in its affairs. This is primarily
because
they have no privity of interest with the organisation and can
therefore not be held accountable for their actions. The
raison
d’être
against strangers being permitted to
participate in meetings was succinctly enunciated as follows by
Trollip J in
Gründling v Beyers & others
1967 (2) SA
131
(W) at 152D-E:
‘
The
implication is that other strangers cannot be co-opted or attend and
participate in meetings of any of the Union’s organs.
The
reason is that, if a stranger is co-opted or permitted to attend and
participate, even if not to vote, he could influence the
discussion
and the eventual voting at the meeting, especially if he has a
forceful or domineering character; his mere presence
might inhibit
freedom of discussion, expression of views and the voting; and not
being a member himself and representative of the
members, accountable
to them for his actions, he might not have the Union’s
interests at heart; on the contrary he might
have his own axe to
grind.’
[19]
What Trollip J warned against in
Gründling
happened in
this case. As already indicated, Damons, the stranger, did not only
participate in the all-important meeting of 2 May
2012 but also took
the lead and moved the motion of no confidence against the appellant,
which culminated in the termination of
the appellant’s
Presidency and his sacking from the party. Undoubtedly, his
participation was not in terms of the Civic’s
Constitution and
was therefore illegal. This made the NEC’s decision of 2 May
2012 and all other decisions based on it invalid.
It follows that all
the meetings and the decisions following the meeting of 2 May 2012
stand to be reviewed and set aside. This
appeal must therefore
succeed.
[20]
I now turn to deal with the costs. I have already indicated above
that third to seventh respondents were co-applicants in the
main
application and co-respondents in the counter application. The eighth
respondent was joined as a co-respondent in the counter
application
in his official capacity as a chairperson of the DC. However, no cost
order was sought against him unless he opposed
the application. The
appellant had sought costs against the third to seventh respondents
on the basis that they had instituted
these proceedings against him
without proper authority from Civic. In other words, that they had
used Civic’s name for their
own personal interests in
furtherance of their own political objectives.
[21]
I have already found that the meeting held on 2 May 2012 was not a
legitimate meeting of the NEC and that the resolutions arrived
thereat were invalid. In the circumstances, I agree that it is only
fair that these respondents be held liable for the costs incurred
in
the counter application. However, I am not persuaded that it would be
fair to have the eighth respondent mulcted in costs because,
first,
the appellant did not seek costs against him, and secondly, save for
deposing to a confirmatory affidavit explaining his
role in the
disciplinary proceedings as an impartial adjudicator with no personal
interest in those proceedings, he did not oppose
the application.
[22]
In the result, the following order is made:
(a) The appeal is
upheld with costs to be paid by the third to seventh respondents
jointly and severally the one paying the other
to be absolved;
(b) The order of the
court below is set aside and substituted as follows: ‘(i) The
application is dismissed with costs to
be paid by the second to
seventh applicants, jointly and severally, the one paying the others
to be absolved;
(ii) The counter
application is upheld with costs to be paid by the third to seventh
respondents jointly and severally, the one
paying the others to be
absolved;
(iii) The decisions
reached at the meetings held on 2 May 2012 and all those reached at
subsequent meetings related to and flowing
from the first mentioned
meeting are set aside.
_________________
LO
BOSIELO
JUDGE
OF APPEAL
Appearances:
For
Appellant: HJ de Waal
Instructed
by:
Van
Rensburg & Company; Cape Town
Symington
& De Kok, Bloemfontein
For
Respondent: GR Papier
Instructed
by:
CSM
Attorneys; Cape Town
Bezuidenhout
Attorneys, Bloemfontein