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[2022] ZAECQBHC 31
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Van Niekerk and Others v Nelson Mandela Bay Municipality and Others (2452/2022) [2022] ZAECQBHC 31 (15 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
CASE
NO: 2452/2022
REPORTABLE:
YES / NO
OF
INTEREST TO OTHER JUDGES: YES / NO
REVISED.
In
the matter between:
GARY
STANTON VAN
NIEKERK
First Applicant
JOHN
MERVYN
MITCHELL
Second Applicant
BEVAN
BROWN
Third Applicant
NORTHERN
ALLIANCE
Fourth Applicant
and
NELSON
MANDELA BAY MUNICIPALITY
First Respondent
CITY
MANAGER OF THE NELSON MANDELA BAY
MUNICIPALITY
Second Respondent
INDEPENDENT
ELECTORAL COMMISSION
Third Respondent
NEVILLE
STANLEY
Fourth Respondent
REASONS
FOR ORDERS GRANTED ON 30 AUGUST 2022 AND
02
SEPTEMBER 2022
POTGIETER
J
INTRODUCTION
[1]
I granted the following order without reasons due to the urgency of
the matter, on 30 August 2022:
“
1. The
First, Second and Third Applicants be and are hereby entitled to
attend the First Respondent’s council meeting to be
held at
10h00 on Tuesday, 30 August 2022 and to fulfil their duties as
councillors.
2. The application is postponed
sine die to be case managed by the Deputy Judge President.
3. The costs are reserved.”
[2]
The order was subsequently varied on 2 September 2022 to the
following effect:
“
1. The
order granted by the above Honourable Court on 30 August 2022 is
reconsidered and varied as follows pending the final determination
of
the Applicants’ review proceedings still to be instituted:
1. 1. 1 the First, Second and Third
Respondents be and are entitled to attend the First Respondent’s
council meeting to be
held on 7 September 2022, and to fulfil their
duties as councillors;
1.1.2 The First, Second and Third
Respondents are entitled to attend any subsequent continuation of the
Council meeting of 30 August
2022.
2. The costs of the interim
proceedings stand over for later determination by this Court.”
[3]
The reasons for granting the aforesaid order as well as its variation
follow and should be read together with the brief reasons
that I gave
on 2 September 2022 when I varied the original order.
BRIEF
BACKGROUND
Main
application
[4]
The First, Second and Third Applicants (“the Applicants”)
are members of the Fourth Applicant, the National Alliance
political
party (“the NA”). They have been representing the NA as
councillors of the First Respondent (“the municipality”).
The Second Respondent, the municipal manager (“MM”),
opposed the application together with the municipality (“the
Municipal Respondents”). There were no responses from the
remaining two Respondents. The Municipal Respondents contended
that
the application papers were never served on the Fourth Respondent,
hence his failure to respond. They submitted that this
constituted a
fatal defect in the proceedings. I deal with this issue more fully
later in this judgement.
[5]
The application was launched as a matter of urgency on 29 August 2022
seeking relief in general terms concerning the continued
participation of the Applicants as councillors in the business of the
municipal Council. The Municipal Respondents filed an answering
affidavit on 30 August 2022. The Applicants elected not to file a
replying affidavit.
[6]
The stated basis for urgency was that a meeting of the municipal
Council was scheduled for 10h00 on 30 August 2022 where matters
of
considerable importance to the NA were due to be dealt with. The
First Applicant was elected as the Speaker of the Council and
the
Second Applicant was a Member of the Mayoral Committee (“MMC”)
assigned to the Infrastructure and Engineering Portfolio
which,
according to the Applicants, was arguably the most important
Department after the Treasury. The meeting of 30 August 2022
was
scheduled to vote for the appointment of an Executive Director to
this Department. The further important business to be dealt
with at
the meeting related to debating the Adjustment Budget and delivery of
the Speaker’s oversight report. The Applicants
indicated in
their papers that if they were not allowed to participate in the
meeting, the NA would be unrepresented at this important
meeting,
because they were the only representatives of the NA on the Council.
[7]
The Applicants voluntarily decided during March 2022 to cease
participating in meetings of the municipal Council pending the
finalisation of High Court litigation in which they were involved.
The finalisation of the litigation was considerably delayed
for
various reasons and it became necessary for the Applicants to attend
the meeting of 30 August 2022 given the importance thereof.
After
having received confirmation from the Fifth Respondent, the
Independent Electoral Commission (“IEC”), on 25 August
2022 that they were still officially listed as the representatives of
the NA on the council, the Applicants wrote to the MM on
Friday, 26
August 2022 seeking an undertaking by 16h00 on the same day
that they would not be prevented from attending the council meeting
on 30 August 2022. No reply was forthcoming, which resulted in the
urgent application being launched on Monday, 29 August 2022.
Having
been the Duty Judge at that stage, a certificate of urgency was
placed before me in the course of the morning on 29 August
2022
requesting that the application be enrolled as a matter of urgency in
the course of the same afternoon. After having considered
the matter,
I issued directions in terms of Practice Rule 12(a)(i) of the
applicable Joint Rules of Practice,
inter-alia,
for the matter
to be heard at 14h15 on 29 August 2022 and for the issue of urgency
to be argued at the hearing. I was subsequently
approached by counsel
for both the Applicants as well as the Municipal Respondents who had
reached agreement on the filing of answering
papers and for the
application to be heard before official court hours on 30 August
2022. I acceded to the request of the parties
for the matter to
proceed on the basis as agreed.
[8]
In view of the attendant severe time constraints, the parties further
agreed that the issue of the Applicants’ participation
in the
meeting of 30 August 2022 only would be dealt with at the hearing and
that the remaining issues would stand over for later
determination,
subject to the matter being dealt with in terms of the case flow
management process applicable in this Division.
[9]
The argument proceeded on 30 August 2022 on the papers as they stood
by Mr Mullins SC on behalf of the Applicants, and Mr Moorhouse
on
behalf of the Municipal Respondents. The argument was concluded at
approximately 9h30, about 30 minutes before the meeting was
due to
commence. In view of the need to dispose of the matter forthwith, I
proceeded to issue the abovesaid order
ex tempore
.
Variation
application
[10]
I was subsequently presented with brief papers on Thursday,1
September 2022 in respect of an urgent application for the
reconsideration
and variation of my above order which was set down
for hearing on Friday, 2 September 2022 at 9h30. This application was
also opposed
only by the Municipal Respondents who filed a short
answering affidavit deposed to by the MM. It was arranged that this
application
would be heard before the continuation of my normal
Opposed Motion roll which stood down from the previous day until
10h00. The
parties were not in a position to proceed with the matter
before 10h00 on 2 September 2022 as envisaged and the Opposed Motion
roll continued at10h00. The application was accordingly only heard
later in the afternoon towards the end of the normal roll. The
application was again argued by Mr Mullins SC on behalf of the
Applicants and this time by Mr Petersen on behalf of the Municipal
Respondents. At the conclusion of the arguments, I gave brief reasons
and varied the order as set out above.
THE
MUNICIPAL RESPONDENTS’ GROUNDS OF OPPOSITION
Urgency
[11]
The issue of urgency was hotly contested by the Municipal Respondents
in respect of both the main as well as the variation
applications.
The following facts and circumstances, which the Applicants submitted
rendered the matter urgent, appear from their
papers. A disaffected
faction of the NA headed by the Fourth Respondent purported to
terminate the membership of the Applicants.
Notices to this effect
were forwarded to the IEC and the MM during January 2022. On this
occasion, the MM declined to act upon
the notification in view of an
envisaged High Court challenge,
inter alia,
to the validity of
the termination of the membership of the Applicants. She notified the
disaffected group accordingly on 26 January
2022. The envisaged
challenge was brought as a matter of urgency under case number
329/2022. Judgement in this matter was subsequently
handed down on 7
June 2022 effectively setting aside the termination of the
Applicants’ membership of the NA.
[12]
On 21 March 2022, a further letter was addressed to the MM by the
disaffected group erroneously indicating that case number
329/2022
was heard by the court on 22 February 2022 and was “
scrapped
from the roll with cost
(sic)”.
In truth, the court declined to hear the application as a matter of
urgency and it was consequently heard in due course
resulting in the
abovesaid judgement of 7 June 2022. On this occasion, the MM acted on
the letter without affording the Applicants
an opportunity to respond
and notified the IEC of the apparent vacancies in a letter dated 22
March 2022. On the same day she wrote
to the Applicants’
attorneys refusing their request to withdraw her notice to the IEC
relying on the basis that she was
functus
officio.
On 23 March 2022 she issued an
internal memorandum when it was brought to her attention by one of
the officials that there might
be an interim interdict prohibiting
the declaration of proportional representation vacancies of the NA in
the municipal Council.
She adopted the stance in the memorandum that
any interim interdict would be “
moot
and unimplementable especially since I have already declared the
vacancies of the three members (Speaker and two other councillors)
of
the Northern Alliance yesterday, 22 March 2022, and received
confirmation thereof from the IEC accordingly. … As such,
the
three former Northern Alliance members remain out of office and are
no longer councillors, based on my declaration of their
vacancies on
23 March 2022, and particularly in the absence of any other court
order re-instating them to their former positions.
… Kindly
ensure that the former speaker do not and cannot call any council
meeting, since he, Gary van Niekerk, is no longer
the speaker of
council.”
The MM gave
instructions that the salaries of the Applicants were to be stopped.
Their access cards were also withdrawn and the
security personnel was
advised not to allow the Applicants access to any municipal property
or facility. This resulted in a further
urgent application under case
number 881/2022 to interdict the IEC from replacing the Applicants
(the relief in Part A) and to
review the decision of the MM to notify
the IEC of the concomitant declaration of vacancies (the relief in
Part B). An order was
granted on 5 April 2022 in respect of Part A
interdicting the IEC and the MM from filling the council seats of the
Applicants pending
the finalisation of the review in Part B of the
application which is set down for 27 October 2022.
[13]
It was in light of this pending litigation that the Applicants
voluntarily decided during March 2022 to cease participating
in the
meetings of the Council. Due to the fact that the two applications
were so interrelated, the parties agreed that both cases
would be
argued together on 12 May 2022. Shortly before the hearing and in
light of the view of the parties that case number 329/2022
would
effectively be dispositive one way or the other of case number
881/2022, it was decided that only the argument in respect
of case
number 329/2020 would proceed and that case number 881/2022 would be
postponed pending the outcome of case number 329/2022.
The court
found in the aforesaid judgement of 7 June 2022 that the termination
of the party membership of the Applicants was clearly
unlawful.
[14]
Case number 881/2022 is still pending and was set down, after some
delays, for hearing on 27 October 2022. The application
is still
being opposed by the MM despite the outcome of case number 329/2022.
The IEC is abiding by the decision of the court.
[15]
Acting on legal advice and on the assumption that case number
881/2022 would be resolved expeditiously, the Applicants did
not
immediately challenge the aforesaid actions of the MM in ordering
their exclusion and in effect awaited the outcome of the
case
without, as they put it, “
rocking the boat”
.
[16]
However, unbeknown to the Applicants the Fourth Respondent wrote a
letter dated 8 August 2022 to the MM in his capacity as
“
President
and authorised person”
of the NA indicating that the party
membership of the Applicants had been terminated pursuant to
disciplinary proceedings and requesting
that they be replaced as
councillors by three persons who were identified in the letter. The
annexures to the letter indicate that
separate disciplinary hearings
were held in respect of each one of the Applicants in their absence.
They were all convicted and
expelled from the NA. The minutes of the
respective disciplinary hearings are identical. The following
incomprehensible note appears
in response to a question from the
chairperson to the initiator for proof of delivery of the notice in
respect of the hearing:
“
Mr Jansen (
the initiator)
produced a request a receipt from an Internet Cafe, Jeremy Samuels
as proof of delivery.” (
sic) No “
receipt”
accompanied the minutes of any of the three hearings and there is
no other explanation of the manner in which the notices were supposed
to have been served.
[17]
The MM forwarded the letter from the Fourth Respondent dated 8 August
2022, to the IEC on 18 August 2022 under cover of the
following
cryptic note: “
Kindly find enclosed hereto a letter I
received from the authorised representative of the Northern Alliance
together with annexures
thereto, the contents of which is
(sic)
self-explanatory.”
[18]
The MM sent the following email to the First Applicant on 19 August
2022:
“
Please be
advised that I have received correspondence from the Northern
Alliance, which I am bound by the Structures Act, to forward
to the
EC. Due to Case 881/22, I am informing you, as a courtesy.
Please inform Messrs Mitchell and
Brown of the same.”
[19]
On 23 August 2022 the attorneys of record of the Applicants wrote to
the IEC in response to the letter dated 18 August 2022
addressed by
the MM to the IEC. The attorneys indicated that contrary to the
statements in the letter of the Fourth Respondent,
the office bearers
and leadership of the NA have not changed and specifically that:
“
4.2 The
correct procedure in removing and replacing the three appointed
councillors has not been followed by the purportedly and
self-proclaimed leadership of the party.
…
5. Our client has instructed us to
proceed with a court application to interdict the purported ‘new
leadership’ of the
party from:
5.1 Misrepresenting the true state
of affairs at the Northern Alliance.
5.2 Cease all irregular and
unlawful communication with the Nelson Mandela Bay Municipality and
IEC.
6. In light of
the above, our client requests the IEC to provide a written
undertaking that it will refrain from taking any such
decision
[removing and replacing the Applicants
as councillors]
before the matter is
adequately ventilated in a court of law.”
[20]
The Applicants’ attorneys wrote to the IEC again on 25 August
2022 requesting a list of the current councillors of the
NA in the
municipality and the identity of the authorised representative of the
NA for IEC purposes. The IEC responded on the same
day indicating
that the First Applicant was the leader and contact person of the NA
and that the three Applicants were the current
NA councillors in the
municipal Council.
[21]
The Applicants’ attorneys wrote to the MM on Friday, 26 August
2022 referring her to the interim court order of 5 April
2022 issued
in case number 881/2022 and indicating that pending finalisation of
that matter she and the IEC were interdicted from
filling the
Applicants’ seats on the Council. The attorneys averred that in
the interim the Applicants remained councillors
and were entitled to
attend Council meetings, especially the meeting scheduled for
Tuesday, 30 August 2022. They called upon the
MM to give an
undertaking by 16h00 on 26 August 2022 that the Applicants would not
be hindered from attending that meeting. No
response was forthcoming
from the MM, resulting in the present application having been
launched on Monday, 29 August 2022 for the
following urgent relief:
2. A declaratory order that, until
the Third Respondent amends its records, the First, Second and Third
Applicants are and remain
councillors in the First Respondent’s
municipal council.
3. An order that the First, Second
and Third Applicants are entitled to exercise all the functions as
councillors including, but
not limited to, attending council
meetings.
4. An order prohibiting the Second
Respondent and/or anyone acting on her instructions, from preventing
the First, Second and Third
Applicants from exercising their
functions as councillors, including but not limited to, attending
council meetings.
5. That the Second Respondent pay
the costs of this application.
6. That in the event of any of the
other Respondents opposing the application, they pay the costs
together with the Second Respondent,
jointly and severally, the one
paying, the other/s to be absolved.
7. Further and/or alternative
relief.”
[22]
The matter came before me on 30 August 2022 under the circumstances
which I have already set out above. Having considered the
matter, I
was satisfied that a case was made out for urgency and exercised my
discretion in favour of allowing the matter to be
dealt with on that
basis. I was satisfied that the urgency was not self-created and that
the Applicants have acted expeditiously
in bringing the matter before
court. The arguments to the contrary advanced by Mr Moorhouse and his
submission that the application
should be dismissed for lack of
urgency is without merit. It is readily apparent that the chain of
events that resulted in the
application being launched as a matter of
urgency was triggered by the email that was transmitted by the MM to
the First Applicant
on Friday, 19 August 2022. There is no indication
that the Applicants were aware, at any earlier stage, of their latest
expulsion
from the NA. When the undertaking that they sought from the
MM was not forthcoming by 16h00 on Friday, 26 August 2022 the
application
was launched on the next business day being Monday, 29
August 2022. It is correct, as submitted by Mr Moorhouse, that the
Applicants
have elected not to attend a number of council meetings
subsequent to March 2022. I have already set out the reason for this.
The
difference presently is that the meeting of 30 August 2022 was
scheduled to deal with important matters and that it was necessary
for the NA to have a presence at that meeting. In my view, the
Applicants were fully justified in taking all necessary steps to
have
been able to attend that meeting. This included launching the present
proceedings as a matter of urgency. I therefore allowed
the matter to
be heard as one of urgency.
Merits
[23]
The application was also opposed on its merits. Reliance was placed
in this regard on the provisions of section 27(c) of the
Local
Government: Municipal Structures Act, 117 of 1998 (“the MSA”)
which provides as follows:
27 Vacation of office
A councillor vacates office during
a term of office if that councillor-
…
(c) was elected
from a party list referred to in Schedule 1 or 2 and
ceases
to be a member of the relevant
party.
(emphasis supplied)
[24]
The argument advanced by Mr Moorhouse in this regard was that the
expulsion of a member of a political party becomes immediately
effective and stands until it is set aside either pursuant to an
internal appeal or on application by the court. He submitted that
upon receipt of the letter from the Fourth Respondent advising that
the membership of the Applicants had been terminated, the MM
was
compelled to accept that their membership of the NA had ceased and to
act on the notification without any further investigation.
She was
then legally bound to inform the IEC of the vacancies within seven
days in terms of Item 18 of Schedule 1 of the MSA which
provides as
follows:
18 Filling of vacancies
(1)(a) If a councillor elected from
a party list ceases to hold office
,
the chief electoral
officer must … declare in writing the person whose names is at
the top of the applicable party list
to be elected in the vacancy.
(b) Whenever a councillor referred
to in paragraph (a) ceases to hold office, the municipal manager
concerned must within seven
days after the councillor has ceased to
hold office, inform the chief electoral officer accordingly.
[25]
He submitted that the membership of the Applicants ceased pursuant to
the letter of the Fourth Respondent dated 8 August 2022
and that they
were no longer members of the NA. By the same token they were no
longer councillors on 30 August 2022. They accordingly
failed to
establish any right to attend the council meeting of 30 August 2022
and their application should be dismissed on this
further ground as
well. He relied in this regard on a number of authorities (
Cathcart
Residents Association v Municipal Manager for the Amahlathi
Municipality & Others
[2014] JOL 32644
(ECG)
[“Cathcart”]
;
Jeffrey Donson & Others v Nickolaas Valentyn & Others case
number 5028/22 WCD (15 March 2022)
[“Donson”]
;
Shunmugam & Others v Newcastle Local Municipality & Others;
National Democratic Convention v Shunmugam & Others
[2008] JOL
21212
(N)
[“Shunmugam”]
; Thabazimbi Residents
Association v Municipality Manager (Acting): Thabazimbi Local
Municipality & Others
[2019] JOL 41153
(LP)
[“Thabazimbi”]).
I have considered all these decisions. In my view they do not support
the submissions advanced by Mr
Moorhouse. I proceed to deal with the
most pertinent of these decisions.
[26]
In
Cathcart
(which
counsel placed particular emphasis on) the applicant averred that at
one of its meetings it had terminated the membership
of one of the
councillors on its proportional representation list. It communicated
this decision to the municipal manager who refused
to notify the
Electoral Commission of the vacancy. As a result, it sought an order
directing the municipal manager to do so. The
councillor in question
opposed the application,
inter alia
,
on the basis that he was still a member of the applicant. The court
held that the crux of the matter concerned the effect of the
relevant
decision. It referred with approval to the following statement by
Rall AJ in
Shunmugam
:
“
[42]
I
therefore approach the matter on the basis that the expulsion of the
councillors was no different from the expulsion of a member
of a
voluntary association. In my opinion, a member of a voluntary
association or organisation such as a political party who has
been
expelled and both contends that the expulsion was unlawful and wishes
to enforce his or her membership rights, must, if the
organisation
does not concede the unlawfulness of the expulsion,
take steps to have the expulsion reviewed and set aside. Such a
person is put to an election. If the person, notwithstanding the
contention that the expulsion was unlawful, decided not to challenge
it, he or she is taken to have accepted the expulsion, and
the
expulsion will stand notwithstanding the fact that it may not have
been lawful.
”
(emphasis
supplied)
[27]
After having expressed its agreement with the above statement of the
law, the court in
Cathcart
continued
as follows:
“
[15] In
the case referred to by Rall AJ, Oudekraal Estates (Pty) Ltd v City
of Cape Town, Howie P and Nugent JA explained why it
is necessary to
approach the issue from the perspective that administrative decisions
stand until set aside. They said:
“
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 unlawful administrative acts are capable
of producing legally valid consequences for so long
as the unlawful
act is not set aside.”
[16] In my view, these same
considerations apply for the same reasons and with equal force to the
decisions of voluntary associations.
It is not difficult to imagine
the chaos that would be caused in organisations ranging from massive
trade unions or church bodies
to small sporting or cultural clubs if
this default setting was otherwise.
[17]
The third respondent has
done nothing for a few months short of three years to challenge the
lawfulness of the termination of his
membership of the applicant. He
must be taken to have accepted it and, whatever doubts may arise as
to the legal pedigree of the
decision, it must be accepted as having
legally valid consequences until it is set aside.
”
(emphasis
supplied)
[28]
I am in respectful agreement with the principle as stated in
Shunmugam
and
confirmed in
Cathcart
relating to the effect of a failure to challenge an impugned decision
to expel a member from an association such as a political
party. It
is not enough just to contest the decision and ignore it without
taking steps to have it set aside. Generally speaking,
the decision
will stand and be binding until it is set aside by an appropriate
court order. The effect of the expulsion will depend
on the facts of
the particular case. In
Shunmugam
the court held that the applicants had abandoned their right to have
their expulsions set aside and that it was not open to them
to resist
relief based on their expulsions. In
Cathcart
,
although the councillor claimed that he was still a member of the
applicant, he had taken no steps for a period just short of
three
years to challenge his expulsion. In those circumstances, the court
held that the expulsion was valid and binding.
[29]
In
Donson
the
issue was whether the First and Second Respondents ceased to be
members of the African National Congress (“ANC”)
and as a
consequence vacated their office as councillors elected from the ANC
party list. The facts briefly were that the Respondents
defied an
instruction from the ANC which resulted in their suspension and a
prohibition against them representing the ANC in any
activities of
the municipal Council. They also ignored this instruction and was
expelled. The municipal manager was requested to
declare the two
vacancies which was duly done. The court analysed the constitution of
the ANC and concluded that it was authorised
to act summarily against
the Respondents who could not simply ignore their expulsion and act
as if they were still members without
mounting a court challenge. The
court found that their membership of the ANC had ceased in the
circumstances. This decision is
in line with
Cathcart
and
Shunmugam.
[30]
The present matter is distinguishable. The Applicants had
successfully challenged their earlier expulsion which was found by
the court to have been clearly unlawful. They had obtained an
operative interim order in case number 881/2022 prohibiting their
removal as councillors pending finalisation of the review in that
matter. They learnt through an email from the MM dated 19 August
2022
that they had again been expelled pursuant to disciplinary hearings
which were held in their absence. The IEC was advised
in the letter
from their attorneys dated 23 August 2022, that the correct procedure
was not followed in removing and replacing
them and that the
attorneys had been instructed to proceed with a court application.
They indicate in the founding affidavit (
paragraph
17)
filed in this matter on 29 August
2022 that they “…
are going
to challenge this latest unlawful action by the rebel group, but that
will be dealt with in an application to be launched
in due course.”
[31]
It is a factual issue whether or not an expulsion had been acquiesced
in or the right abandoned to challenge it and have it
set aside. It
can only be answered in light of the peculiar facts of a particular
case. In my view, there is no room for the conclusion
in the present
matter that the Applicants had acquiesced in the expulsions or
abandoned their right to challenge the expulsions
and have them set
aside. Given the fact that the previous expulsions were successfully
challenged, the credibility of the indication
given by the Applicants
that the latest expulsions would also be challenged, cannot be
seriously questioned. Given the relatively
short time lapse after
having learned about the latest expulsions, it is not unreasonable
for the envisaged court challenge not
to have been launched yet.
[32]
On a proper reading of the subsection it is only lawful action that
can result in the cessation of membership as envisaged.
Alternatively, a failure to exercise or the abandonment of the right
to challenge an unlawful expulsion, would result in the expulsion
becoming binding. In the present matter the lawfulness of the latest
expulsions has unequivocally been placed in issue by the Applicants
who indicated their intent to launch a court challenge.
[33]
A contrary interpretation of section 27(c) would lead to absurd
results. A notification of termination of membership from a
political
party cannot just be taken at face value and be acted upon by
replacing the affected councillor. It might, for example,
turn out to
be fraudulent or a forgery upon a simple enquiry with the political
party. The termination might be patently contrary
to the provisions
of the party’s constitution or for a clearly unlawful reason
and the affected member might be in the throes
of launching a court
challenge. There are various other scenarios that could be postulated
to demonstrate the absurdity of a contrary
interpretation.
[34]
It appears to me that a municipal manager or the IEC who is presented
with a notification of termination of membership, is
required to
apply their minds and to engage in a basic assessment or appropriate
enquiries to satisfy themselves that the requirements
of section
27(c) have been met and that the councillor has vacated office as
envisaged, before acting upon such notification to
effect the removal
and replacement of the affected councillor. The process need not be
formal, but should be fair and inclusive.
Where appropriate, this
could include verifying the authenticity of the notice and confirming
that all internal remedies have been
exhausted. The officials are not
required to engage in an in-depth investigation or in processes akin
to an appeal or a review,
by reconsidering the merits of the
expulsion or determining whether there were any irregularities in the
proceedings. At the very
least and to facilitate making an informed
decision, the affected councillor should be afforded a reasonable
opportunity to respond
to the contents of the notification. This
approach is reinforced by the fact that the decision by a municipal
manager to notify
the IEC of the existence of a vacancy and of the
latter to fill the vacancy, constitutes administrative action that is
reviewable
under the
Promotion of Administrative Justice Act, 3 of
2000
[cf.
Thabazimbi Residents Association v Municipality Manager
(Acting): Thabazimbi Local Municipality & Others
[2019] JOL 41153
(LP)]
.
[35]
The MM should therefore at least have referred the Fourth
Respondent’s letter of 8 August 2022 to the Applicants for
comment before communicating with the IEC. This would in all
likelihood have elicited the response that the Applicants regarded
the latest expulsions as unprocedural and intend launching a court
challenge. She should then have adopted the same stance as she
did in
respect of the first expulsions, namely to await the outcome of the
Applicants’ challenge. To the extent that this
was not done,
the approach of the MM fell short of what was required in terms of
section 27(c)
read with Item 18 of Schedule 1 of the MSA.
[36]
I do not wish to pre-judge any of the issues or the outcome of the
main application and nothing that is said in this judgement
should be
regarded as having done so. Suffice it to indicate that in the
present circumstances and on the facts before me, the
NA membership
of the Applicants appears not to have ceased in terms of
section
27(c)
of the MSA and the letter dated 18 August 2022 from the MM to
the IEC would therefore not have had the effect of “declaring”
the seats of the Applicants as being vacant. I am not required to put
it any higher at the present interlocutory stage of the proceedings
where the issue was limited to the attendance of the Applicants at
the meeting of 30 August 2022. After due consideration, I was
satisfied that a case had been made out that the Applicant should be
allowed to attend the meeting.
VARIATION
ORDER
[37]
The Applicants launched a further urgent application on 1 September
2022 which was set down for hearing on 2 September 2022.
They sought
the variation of the 30 August 2022 order to allow the Applicants to
attend the continuation on 7 September 2022 of
the council meeting
which was not finalised on 30 August 2022.
[38]
The basis for the application was that the agenda of the 30 August
2022 meeting could not be finalised in the available time
and the
meeting was adjourned to 7 September 2022 to continue with the
agenda. In particular, none of the items on the agenda that
was of
importance to the NA had been dealt with. The Applicants submitted
that this eventuality was not foreseen. The original
application was
brought on the assumption that the meeting would be finalised on 30
August 2022. Furthermore, the intention was
not only to be allowed to
attend on 30 August 2022, but to participate in the council meeting
that was scheduled for that day until
its conclusion. The Applicants
contended that the matter was urgent since the relief that they
obtained on 30 August 2020 would
be rendered nugatory if they were
not allowed to participate in the imminent continuation of the
relevant meeting. There was a
material change of circumstances
subsequent to the granting of the order on 30 August 2022. This, they
submitted, warranted a variation
of the order to cater for the
changed circumstances and to render the order effective.
[39]
The application was opposed by the Municipal Respondents on similar
grounds to their opposition of the original application.
In addition,
they submitted that the application was fatally flawed because of a
failure to serve the papers on the Fourth Respondent.
I have already
dealt with their grounds of opposition to the original application. I
therefore only address the additional issue
of service. It appears
from the founding affidavit in the original application that the
Fourth Respondent was cited as a party
solely because of his stated
position within the NA. He clearly had no personal interest in the
subject matter of the application
which concerned the ostensible
termination by the NA of the Applicants’ membership. No relief
was being sought against him.
Furthermore, the NA was before the
court as a party to the litigation. The failure to serve the papers
on the Fourth Respondent
accordingly did not constitute a material
defect in the application.
[40]
The power of the High Court to vary its orders of an interlocutory
nature in view of subsequently changed circumstances, is
well
established. This was confirmed by the Constitutional Court in
Minister of Health v Treatment Action Campaign (No 1)
[2002] ZACC 16
;
2002 (5)
SA 703
(CC) para [11]:
“
Moreover,
as has been indicated above, an order to execute pending appeal is an
interlocutory order. As such, it is an order which
may be varied by
the Court which granted it in the light of changed circumstances. To
the extent, therefore, that a litigant considers
that new
circumstances have arisen which would impact upon the Court’s
decision to order execution pending appeal, the litigant
may approach
that Court once again to seek a variation or, where appropriate,
clarification of the order.”
(See
also:
Wellington Court Share Block v Johannesburg City Council;
Agar Properties (Pty) Ltd v Johannesburg City Council
1995 (3) SA 827
(A) at 832H; Zweni v Minister of Law and Order
1993 (1) SA 523
(A)
and 532J, 535G & 536 B; Knox D’Arcy Ltd v Jamieson &
Others 1996(4) SA 348 (A) at 360A; Lagoon Beach Hotel v
Lehane
2016
(3) SA 143
(SCA) at para [10])
[41]
In my view, there is no merit in the contention advanced on behalf of
the Municipal Respondents that it was not competent to
vary the order
of 30 August 2022 in the present circumstances. The fact that the
agenda of the meeting could not be concluded on
30 August 2022 is a
changed circumstance that was not foreseen and that warranted the
variation of the original court order.
[42]
The matter was self-evidently urgent. The continuation of the meeting
was imminent and the agenda would have been completed
long before a
hearing in due course could have been disposed of. In the
circumstances there was no reasonable prospect of obtaining
substantial redress at a hearing in the normal course. I was
accordingly satisfied that the matter should be allowed to be heard
as one of urgency.
CONCLUSION
[43]
It was for these reasons that I granted the original order on 30
August 2022 and varied it on 2 September 2022.
D.O.
POTGIETER
JUDGE
OF THE HIGH COURT
APPEARANCE
Counsel for the applicants:
Adv N Mullins SC, instructed by Boqwana Burns
Inc 84 6
th
Avenue, Newton Park, Gqeberha
For the
Defendants:
Adv A Moorhgouse, instructed by Kuban Chetty Inc 163 Cape Road, Mill
Park, Gqeberha
Date
of hearing:
30 August & 2 September 2022
Date
of delivery:
15 September 2022