Matlholwa v Mahuma and Others (207/08) [2009] ZASCA 29; [2009] 3 All SA 238 (SCA) (30 March 2009)

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[2009] ZASCA 29
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Matlholwa v Mahuma and Others (207/08) [2009] ZASCA 29; [2009] 3 All SA 238 (SCA) (30 March 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 207/08
No precedential significance
MASEGO
ROCHESTER MATLHOLWA
Appellant
and
ISAAC
RAMMUSI MAHUMA 1
ST
Respondent
MANAGEMENT
COMMITTEE OF THE
UNITED
CHRISTIAN DEMOCRATIC PARTY 2
ND
Respondent
UNITED
CHRISTIAN DEMOCRATIC PARTY 3
RD
Respondent
Neutral
citation:
Matlholwa
v Mahuma and others
(207/2008
)
[2009] ZASCA 29(30 March 2009)
Coram: Farlam,
Nugent, Lewis, Van Heerden, Maya JJA
Heard: 19 March
2009
Delivered: 30
March 2009
Summary: Voluntary
association – expulsion of member from political party – whether
authorised and empowered by constitution.
___________________________________________________________
ORDER
On
appeal from
Mmabatho
High Court (Mogoeng JP sitting as a court of first instance).
1
The
appeal succeeds with costs, such costs to be paid by the third
respondent.
2
The
order made by the court a quo is set aside in its entirety and
replaced with the following order:
‘
(a) The
decision by the second respondent to expel the applicant from the
third respondent, taken on 27 August 2007, is set aside.
(
b) The
third respondent is ordered to pay the costs of this application.’
_____________________________________________________
JUDGMENT
VAN
HEERDEN JA
(Farlam,
Nugent, Lewis, Maya JJA concurring)
[1] The question
that arises in this appeal is whether the purported expulsion of the
appellant, Mr Masego Matlholwa, from the third
respondent, the United
Christian Democratic Party (‘the Party’), was lawful.
[2] The appellant
had been a member of the Party since 1999. In May 2005, he was
deployed by the Party as one of its representatives
to the North West
Provincial Legislature in Mafikeng, whilst another member of the
Party, a Mr Tlhagale, was deployed by the Party
to the National
Council of Provinces in Cape Town.
[3] Two years later,
in about May 2007, Mr Tlhagale’s deteriorating state of health led
the Party to decide that the appellant
and Mr Tlhagale should switch
seats. It was thus suggested that each should resign his seat and
thereafter take up the other’s
position in the North West
Provincial Legislature and the National Council of Provinces,
respectively.
The
appellant initially agreed to do so, albeit reluctantly, as he first
sought to be reassured by the Party that the envisaged
switch would
not cause him any prejudice, particularly in respect of his salary
and other privileges. However, despite repeated
requests by the Party
– after having furnished him with the requisite assurance – to
resign his seat, the appellant failed
to do so by the final deadline
of 24 August 2007.
[4] On 27 August
2007, a committee that had been established by the Party, which
called itself the ‘Management Committee’ of
the Party (cited as
the second respondent), held a special meeting at which it purported
to expel the appellant from the Party
as also from the North West
Provincial Legislature with immediate effect, allegedly on the
grounds of his failure to comply with
the instructions of the Party
despite having agreed to do so. The appellant was informed of this
decision in a letter of the same
date, addressed to him by the first
respondent, Mr Mahuma, the Party’s Deputy Secretary Administration.
[5] In motion
proceedings instituted in the Mafikeng High Court, the appellant
challenged his expulsion. He contended that the ‘Management

Committee’ that had purported to expel him was not a properly
constituted structure of the Party and therefore, to use the words
of
the appellant, was ‘non-existent’; alternatively any such
management committee as may have purported to expel him did not
have
the power in terms of the Party’s constitution to do so.
Accordingly, so the contention went, his expulsion was not lawful.
[6] The application,
which by the time of the hearing was limited to an order that his
expulsion from the Party be ‘declared null
and void ab initio’ or
alternatively set aside, was dismissed with costs by the court below.
Notwithstanding the absence of a
counter-application (and despite the
fact that such orders were not sought), Mogoeng JP purported to
confirm the appellant’s
expulsion from the Party, as well as his
expulsion from the North West Provincial Legislature. With the leave
of this Court, the
appellant now appeals against the judgment of the
learned Judge President.
[7] Despite the
stance adopted by the appellant in his founding and replying
affidavits – that the Management Committee (the second
respondent)
which purported to expel him was ‘constitutionally non-existent’
– it was common cause before us that the Management
Committee in
question that purported to do so was in fact the Federal Council
Management Committee (the FCMC) referred to in clauses
9.2 and 10.1
of the constitution of the Party (see further below). The decisive
issue in this appeal is thus whether the FCMC was
authorised and
empowered by the constitution to expel the appellant in the manner in
which it purported to do.
[8] As was correctly
emphasised by the court below, a political party is a voluntary
association founded on the basis of mutual
agreement. Like any other
voluntary association, the relationship between a political party and
its members is a contractual one,
the terms of the contract being
contained in the constitution of the party.
1
In construing the provisions of the Party’s constitution for the
purposes of this appeal, it is important to bear in mind that

expulsion is the most drastic form of punishment which a voluntary
association can impose on its members and the power to do so
must
consequently appear expressly or by necessary implication from the
provisions of its constitution. In the words of Van Winsen
J in
Conrad
v Farrel & others
:
2
‘
Our Courts, in common with the
English Courts, have adopted the view that a voluntary association’s
right to expel a member must
be stated expressly or by necessary
implication in the constitution and that, in the absence of such a
statement, there is no inherent
right residing in the association to
take action to expel a member.
. . . .
The Courts have repeatedly taken
up the attitude that if the power to terminate membership is not
expressly given then the association
can only enjoy that power if it
appears as a clear and unambiguous implication from the terms of its
constitution, read as a whole,
that it was the intention to afford it
such a power.’
Members may thus be
expelled only by a structure of the voluntary association entrusted
with the power of expulsion expressly or
by ‘clear and unambiguous’
implication. A purported expulsion by a structure other than one in
which this power is vested in
terms of the constitution will be
ultra
vires
and
unlawful.
3
[9
] According
to the answering affidavits deposed to by the Deputy National Leader
of the Party, its Chairperson and the first respondent,
the FCMC
consists of 23 persons elected by the Federal Council of the Party
(the Council) to manage the affairs of the Party on
a day to day
basis when the Council is not sitting. The FCMC is the
de
facto
executive arm of the Council (which consists of about 200 members).
It is authorised by the Council to act on the latter’s behalf
when
it is not in session. Its authority includes the power to discipline
and ultimately, to expel a member from the Party. With
reference to
the minutes of certain meetings of the FCMC, annexed to the answering
affidavits, the deponents point out that nine
elected members of the
top leadership structure of the Party (the National Leader, the
Deputy National Leader, the Chairperson,
two Deputy Chairpersons, the
National Secretary, two Deputy National Secretaries and the National
Treasurer, all of whom sit on
the Council) are also members of the
FCMC. It is further alleged that the appellant himself had been a
member of this Committee
since 1999.
[10] In coming to
the conclusion that the appellant’s expulsion from the Party was
lawful, the court a quo reasoned as follows:
‘
[27]. . . .
On
a preponderance of probabilities, the Party does have a Management
Committee which has, over the years, been dealing with issues
such as
the possible sale of its farm worth about R1.5m, projects, Human
Rights Day celebrations, salaries of permanent staff members
of the
Party, traditional leadership, deployment, the Party’s youth,
religious affairs, etc. By any standards, these are the
issues
expected to be discussed and addressed by a supreme structure which
is responsible for the running of all the important
affairs of the
Party, and that is what the Management Committee is said to be.
[28] The only
Management Committee mentioned in the constitution of the Party is
the Federal Council Management Committee. The
Federal Council
generally meets at intervals of 6 months. Obviously, a lot would
ordinarily have to be done in a month let alone
6 months, and the
need for a structure that has to look after the day-to-day affairs of
the Party requires no motivation. Th
at
structure can only be the Federal Council Management Committee. I
think this Committee was purposefully named the Management
Committee
since its responsibility is to do a whole lot more than just convene
meetings of the Federal Council and of the Federal
Congress and
determine the date and the place for the meeting. It has to manage
the Party. After all, that is the duty of the
Federal Council for
which the Management Committee is filling in. Common sense and logic
dictates that the Federal Council Management
Committee is the same
Management Committee, whose meetings the Applicant attended in the
past, and that it is also the same Management
Committee which
expelled him from the Party.
[29] On the
probabilities, the version of the Deputy National Leader, the
Chairperson and the Deputy Secretary Administration of
the Party that
the Applicant was expelled from the Party by the Federal Council
Management Committee is the correct one and not
that of the
Applicant. The duties entrusted to the Management Committee are so
important that they cannot be left to an
ad
hoc
committee to handle. It would also be absurd to accept the
Applicant’s contention that the entire top leadership of the Party,

whose names appear on the first page of the minutes of the meetings
of the Management Committee, is part of an
ad
hoc
committee, which according to the Applicant, is led by the Deputy
Secretary Administration. I am satisfied that the Party did establish

the Federal Council Management Committee. It then clothed it with
the powers of the Federal Council.’
[11] I
am afraid that I cannot agree with this reasoning. It is true that
there is authority for the proposition that the constitution
of a
voluntary association should,
in
appropriate circumstances, be interpreted ‘broadly and benevolently
and not in a carping, critical and narrow way’,
4
adopting ‘a practical, commonsense approach to the matter’.
5
However, this ‘principle of benevolent construction’ does not
apply to a situation such as the one forming the subject of this

appeal.
6
As pointed out above, the power to expel a member may be exercised
only by a body in which such power has been vested by the
constitution
expressly or by clear and unambiguous implication,
failing which the purported expulsion will be
ultra
vires
the constitution and void.
[12] It is thus to
the provisions of the Party’s constitution that we must look.
Unfortunately, this document is by no means a
model of clarity or
coherence. Clause 5, headed ‘Membership’, provides that
membership of the Party will cease, inter alia,
‘in the event of a
member’s expulsion from the Party by the Provincial Committee’
(clause 5.1.4.2) or in the event of ‘the
withdrawal by the
Provincial Committee of the membership of any individual’ (clause
5.1.4.3).
7
Neither the grounds upon which a Provincial Committee may expel a
member from the Party or withdraw membership, nor the procedure
to be
followed in that regard, are spelt out in the constitution.
[13] The only other
body upon which the power to expel a member from the Party is
expressly conferred is the Federal Council. In
this regard, clause 13
of the Constitution, headed ‘Disciplinary Procedures’, provides:
‘
13.1
The
Federal Council may, in its discretion and for whatever reason and in
the interest of the Party;
13.1.1
ban
any member of the Party upon which his/her membership is
automatically terminated
;
. . . .
13.2 The Federal Council can give
written notice to any person or body of its proposed consideration to
ban, dissolve or suspend
such person or body, hear any person or body
or receive any proof with regard thereto, and give reasons for its
decision, which
decision will be final and binding.
13.3 Every member of the Party,
who is also a member of either the National Assembly or a Provincial
Legislature must respect each
decision by the Federal Council, the
Federal Congress and the Parliamentary Caucus must execute such
decisions. The National Leader
or the Deputy National Leader in the
event of clause 11.2 or 11.3 being applicable, can after consultation
with the Federal Council
give written notice to a member who has
deviated from such decisions, to the effect that his membership of
the caucus of the Party
is terminated; and
13.4
Every
member of the Party who deviates from a decision of the Federal
Congress, the Special Congress, the Federal Council or the

Parliamentary Caucus makes himself/herself liable for expulsion from
the Party by the Federal Council
.
’ (Emphasis added.)
In terms of clause
13.3, therefore, the National Leader or the Deputy National Leader
may under certain circumstances terminate
a member’s membership of
the parliamentary caucus of the Party.
[14] Clauses
9 and 10 of the constitution deal with the composition and powers of
the Federal Council and the Federal Congress,
the top governing
structures of the Party. To the extent here relevant these clauses
read:
‘
9 FEDERAL
COUNCIL
9.1 The
Federal Council meets and attends to urgent matters which otherwise
would have been attended to by the Federal Congress
and consists of
. . .
9.2 The
Federal Council will meet as often as may be necessary, practical or
as urgency demands, but notwithstanding in intervals
of not less than
six months during the two year intervals of the sessions of the
Federal Congress,
on
a date and place as is determined by the Federal Council Management
Committee
;
and
9.3 Notwithstanding any proviso
to the contrary, the Federal Council shall when in session:
9.3.1 be the highest governing
body of the Party; and
9.3.2 will
perform and exercise all such powers, functions and duties as [are]
given to the Federal Council in terms of this Constitution;
. . . .
9.4 The Federal Council shall
formulate the procedure for the nomination of National and or
Provincial Parliamentary Candidate to
represent the Party during
elections.
9.5 Provincial
leadership shall be constituted by the Federal Council.’
‘
10 FEDERAL
CONGRESS
10.1 The
Federal Congress is the highest governing body of the Party and shall
meet in
[sic]
biannually upon a date and place as determined by the Federal Council
Management Committee:
10.1.1 provided
that the National leader or the Deputy National Leader in the event
of clause 11.2 and 11.3 being applicable
in
consultation with the Federal Council Management Committee
may convene a special sitting of the Federal Congress or instead
thereof the Federal Council when he deems fit; and
10.1.2
the
Federal Council Management Committee
convenes
a special sitting of the Federal Congress, if so requested, by 50%
plus one member of each Provincial Committee
,
10.
2 .
. .
10.3 The
Federal Congress shall:
. . . .
10.3.3 have the authority to take
decisions except decisions regarding the amendment of the
Constitution; concerning all aspects
of Party policy, organisation,
finances and discipline by majority vote, which decisions will be
binding on the Party, its bodies
and members.
10.3.5 Ratify
the decisions and or
actions
of the Federal Council.’
(Emphasis
added)
[15] In terms of
clauses 9.2 and 10.1 – the only clauses in the entire constitution
in which the FCMC is mentioned – the powers
conferred on the FCMC
are limited. They go no further than determining the date and place
of meetings of the Federal Council and
the Federal Congress and, in
specified circumstances, in convening special sittings of these two
bodies. There is nothing in the
constitution of the Party that
confers any disciplinary powers on the FCMC, much less the power of
expulsion. The constitution
also does not provide for any delegation
of powers to the FCMC. Even if one were to assume in favour of the
Party, without deciding,
that the Federal Council could indeed
delegate its power of expulsion to the FCMC (as was contended by
counsel for the respondents),
there is nothing on the papers before
us to show that any such delegation ever took place.
[16] It
follows that, in my view, it has not been shown that the FCMC was
either authorised or empowered by the constitution of
the Party to
expel the appellant and that its decision of 27 August 2007 in this
regard cannot stand.
[17] As
regards the orders of the court a quo confirming the appellant’s
expulsion from the Party and from the North West Provincial

Legislature, as I have already stated no such orders were sought. The
learned Judge President misdirected himself in making those
orders
and they should in any event be set aside.
[18] It follows that
the appeal must succeed with costs. For some reason, two counsel were
involved in drafting the appellant’s
heads of argument in the
appeal. It was submitted on the appellant’s behalf that the
complexity of the matter was such that this
extra cost could be
justified. I do not accept this contention. It was also common cause
that the Party was in truth the only respondent
properly before both
the court a quo and this court and that any costs order should be
made against the Party alone.
[19] In the result,
the following order is made:
1
The
appeal succeeds with costs, such costs to be paid by the third
respondent.
2
The
order made by the court a quo is set aside in its entirety and
replaced with the following order:
‘
(a) The
decision by the second respondent to expel the applicant from the
third respondent, taken on 27 August 2007, is set aside.
(
b) The
third respondent is ordered to pay the costs of this application.’
__________________
B J VAN
HEERDEN
Appearances:
For
the Appellant: MG Khoza SC
Instructed
by: S E Monare & Partners
Mafikeng
Mmabatho
Claude
Reid Inc
Bloemfontein
For
the Respondent: J Grobler (Attorney)
Instructed
by Smit Stanton Inc
Mafikeng
Ben
van der Merwe Attorneys
Bloemfontein
1
See
Yiba & others
v African Gospel Church
1999
(2) SA 949
(C) at 960D-961B and the authorities there cited.
2
1974 (2) SA 200
(C) at 202F-203E.
3
See, eg, the
Yiba
case
at 961D-G and further in this regard G J Pienaar ‘Associations’
in 1
Lawsa
2
ed (2003) para 633 and the other authorities there cited.
4
Garment Workers’
Union v De Vries & others
1949
(1) SA 1110
(W) at 1129.
5
Motaung
v Mukubela & another NNO; Motaung v Mothiba NO
1975
(1) SA 618
(O) at 626H-627A.
6
Oosthuizen v Building
Workers’ Industrial Union of South Africa & another
1950
(3) SA 834
(W) at 840C-G.
7
Clause 8 provides for the
election of a Provincial Executive Committee for each province,
which committee must ‘act as liaison
between the Federal Council,
and the Regional and the Branches’ (clause 8.4.1.2).