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[2021] ZAKZPHC 70
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Simelane v Independent Electoral Commission and Others (1375/21P) [2021] ZAKZPHC 70 (15 June 2021)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 1375/21P
In
the matter between:
SIYABONGA
EDMUND
SIMELANE APPLICANT
and
INDEPENDENT
ELECTORAL COMMISSION FIRST
RESPONDENT
ECONOMIC FREEDOM
FIGHTERS SECOND
RESPONDENT
NEWCASTLE LOCAL
MUNICIPALITY THIRD
RESPONDENT
MENZIWA JETROS
NTSHANGASE FOURTH
RESPONDENT
ORDER
The
following order is granted:
1. Condonation
is granted to the applicant and the second respondent for the late
delivery of
their respective practice notes and heads of argument;
2. The
application is dismissed with costs.
JUDGMENT
Mossop
AJ:
Introduction
[1]
The
applicant is a member of the second respondent, the Economic Freedom
Fighters. I shall refer to the second respondent by its
acronym,
‘EFF’. This application involves the applicant’s
elevation from being a member of the EFF to being an
EFF councillor
on the council of the Newcastle Local Municipality (the council). The
applicant claims that his appointment was
proper, legitimate and
complete whereas the EFF claims that it was occasioned as a result of
multiple mistakes, was never formalised
and has been overtaken by
events in that the fourth respondent now fills the position on the
council to which the applicant argues
that he is entitled.
Legal
representation and participation
[2]
When
the matter was called, I had the pleasure of hearing argument from Mr
Xulu, who appeared for the applicant, and Mr Ramogale,
who appeared
for the EFF. They are both thanked for their extremely helpful
submissions. None of the other respondents have involved
themselves
in the matter. There is a letter from the first respondent which
indicates that it will abide the decision of this court
provided that
it is not required to pay costs on the scale as between attorney and
own client. I remain uncertain as to whether
this conditional
undertaking to abide was accepted by the applicant despite seeking
clarity on the issue from Mr Xulu. The third
respondent has delivered
a notice to abide. The fourth respondent does not participate in the
matter.
Condonation
[3]
Before
dealing with the merits of the matter, it is necessary to mention the
late filing of practice notes and heads of argument
by both the
applicant and the EFF. Condonation was formally sought by both
parties for this. While it is undesirable that these
documents are
not delivered in accordance with the time limits prescribed by the
practice directives of this division, I granted
both applications as
no real inconvenience was occasioned to the court by this failure.
Neither application shall attract a cost
order. I turn now to
consider the merits of the application.
The
creation of a vacancy
[4]
Prior
to 19 October 2020, one of the EFF’s councillors on the council
was a gentleman by the name of Musa Shadrack Thwala
(Mr Thwala). As a
result of disciplinary proceedings being taken against Mr Thwala by
the EFF, a decision was taken by the EFF
to expel him from that party
on 15 July 2020. He thereafter appealed against this decision and on
19 October 2020 his appeal was
finally dealt with and was dismissed.
As a consequence, a vacancy arose on the council that needed to be
filled by a candidate
nominated by the EFF arising out of the
proportional representation system in place.
The
applicant puts himself forward as a candidate
[5]
The
applicant is a member of the EFF and contends that he was approached
by his party to fill the vacancy created by Mr Thwala’s
expulsion. He agreed to make himself available. He accordingly
completed a document accepting his nomination (the nomination
document).
The nomination document is dated 20 November 2020 and
indicates that it was completed in respect of regional elections to
be held
on 3 August 2016. I was advised by Mr Xulu that this is
because that is the date upon which the last local elections were
held,
and the applicant’s nomination was in respect of a
vacancy on the council elected on that date. However, given the
events
that occurred on 18 November 2020, referred to hereafter,
there is reason to doubt whether the nomination document was
completed
by the applicant at the behest of the EFF.
The
applicant is nominated as a candidate
[6]
On
18 November 2020, two days before the completion of the nomination
document, the EFF, via its secretary general, Mr Marshall
Dlamini,
wrote to the first respondent, who I shall also refer to by its
acronym, namely ‘IEC’. In that letter, the
IEC was
informed that Mr Thwala had been expelled from the EFF. The letter
went on to state that:
‘
We
therefore inform the Municipal Manager and the Electoral Commission
that he is being replaced by Siyabonga Edmund Simelane. .
.’
‘
Siyabonga
Edmund Simelane’, is of course, the applicant. Below the
sentence in the letter identifying the applicant as the
successor to
Mr Thwala was a table containing the identity numbers, first names
and surnames of five EFF candidates. The applicant’s
name was
at the top of the table. The fourth respondent’s name did not
appear on the table. I shall refer to this document
as ‘the
first letter’.
The
error and the recalling of the applicant as a candidate
[7]
Having
dispatched the first letter, the EFF immediately realised that it had
made an error. The applicant was not the person entitled
to be
nominated to fill the vacant position. As a consequence, on the same
day that it sent the first letter, 18 November 2020,
the EFF again
wrote to the IEC, stating that:
‘
The
Economic Freedom Fighters hereby recalls Siyabonga Edmund Simelane,
ID number […], who was a Ward 29 councillor candidate
at
Newcastle Local Municipality in the original list gazetted on the 3
rd
of August 2016 EFF with immediate effect.
We hereby request that a
declaration of the vacancy remains open until the organisation
advises on who should fill the vacancy.’
I shall refer to this
letter as ‘the second letter’.
[8]
Between
the dispatch and receipt of the first letter and the dispatch and
receipt of the second letter, the IEC took no steps to
fill the
vacancy left by the expulsion of Mr Thwala from the EFF and made no
announcements concerning the appointment of the applicant
as his
successor.
The
declaration of the applicant as a councillor
[9]
However,
on 7 December 2020, the IEC’s Manager: Voter Registration and
Party Liaison, Mr B Heuvel (Mr Heuvel), wrote to the
municipal
manager of the Newcastle Local Municipality. In that letter, Mr
Heuvel advised that the applicant was the candidate at
the top of the
party list for the EFF and had consequently been declared elected to
the Newcastle Local Municipality as prescribed
in terms of item 18 of
Schedule 1 of the Municipal Structures Act (the Act).
[1]
The IEC appears to have entirely overlooked the contents of the
second letter.
The
EFF’s request to the applicant to resign
[10]
When
the EFF discovered what had occurred, it wrote to the applicant on 12
January 2021. In that letter it was pointed out that
the EFF had
corrected itself and had nominated the fourth respondent as the
replacement for Mr Thwala as ‘he obtained more
votes in 2016
Local Government Elections’. The applicant was requested to:
‘
.
. . write a letter to the municipal manager and resign as a public
representative of the EFF so that the municipal manager can
declare
vacancy (sic).’
The
applicant’s response to the request for his resignation
[11]
The
applicant responded in writing to the EFF’s letter on 28
January 2021 and indicated that it was a well-known fact that
the two
persons ahead of him on the party list had withdrawn their
candidature and that as a consequence he was then requested
by the
EFF to fill the vacancy. According to him, he accepted the invitation
without hesitation. To his credit, he indicated further
that the
upper structures of the EFF should assist him in preparing the letter
of resignation that he was being called upon to
sign, and that he
would sign it provided that it was lawful to do so and that it
complied with the EFF’s policy. It appears
that the necessary
letter was not drafted by the EFF and the applicant consequently did
not resign.
The
IEC’s explanation
[12]
On
19 February 2021, the IEC, again represented by Mr Heuvel, wrote a
letter to the municipal manager of the Newcastle Local Municipality.
Mr Heuvel attempted in this letter to summarise the facts of the
matter and explain the confusion that had arisen. Mr Heuvel
acknowledged
the appointment of the applicant as a councillor in
terms of the IEC’s letter of 7 December 2020. Mr Heuvel’s
letter
also made mention of the second letter recalling the
nomination of the applicant by the EFF. Mr Heuvel went on to say:
‘
3.
The Electoral Commission acted in good faith by filling the vacancy
on the 7 December 2020 as notified,
however, an error was made from
our side by using a candidate list that was initially submitted with
Mr Simelane on top of the
list but later withdrawn by the party with
a letter dated 18 November 2020 as explained above.
4.
The error is hereby regretted as it has created confusion with two
letters of appointment processed to
fill the vacancy.
5.
The second letter appointing Menziwa Jetros Ntshangase, ID No. […]
was submitted to correct the
error of the first appointment.
6.
Please be advised that the appointment of Siyabonga Edmund Simelane,
ID No. […] in the first instance
is retracted with immediate
effect.
7.
Further note that Menziwa Jetros Ntshangase, ID No. […], being
the preferred candidate for the
Economic Freedom Fighters (EFF) to
replace the outgoing councillor, has been declared elected to the
Newcastle Local Municipality.’
The
bringing of review proceedings
[13]
In
his response to the EFF’s letter instructing him to resign, the
applicant tellingly stated:
‘
I
do not have any portfolio in this municipality, for me to resign
from, and the reasons to resign have not been made known to me.
Neither the EFF nor
Newcastle Municipality manager had informed me that I am a councilor
(sic) hence I find it foolish to resign
from a position that I do not
hold.’
It
might be assumed therefrom that the applicant would comply with the
request made of him. That was not to be, however. Rather
than go
quietly into the night as he appears to have been urged to do by the
EFF, the applicant now found himself emboldened. The
ultimate
manifestation of this was the launching of a review application in
which the applicant seeks:
(a)
the
review of the decision taken on 19 February 2021 by the IEC to
retract his declaration as the EFF’s councillor; and
(b)
confirmation
of the declaration of himself on 7 December 2020 as the EFF’s
councillor.
The
review application was instituted on 1 March 2021 but has not yet
been finalised.
The
relief claimed in this application
[14]
In
this application, the applicant seeks a
rule
nisi
in the following terms:
‘
3.1
That pending the final determination of the application for
judicial review instituted by the Applicant on 01 March 2021
in this
court, under case number: (sic) the declaration made by the First
Respondent on 19 February 2021 that the Fourth Respondent
is declared
as a duly elected councillor of the Third Respondent, be and is
hereby suspended;
3.2 That
pending the final determination of the application for judicial
review instituted by the Applicant in this
court on 01 March 2021
under case number 1494/2021 the Applicant be allowed to continue
serving as a Councillor representing the
Second Respondent at the
Newcastle Local Municipality;
4.
That the relief prayed for in paragraph 3(1) and 3(2) to operate as
an interim relief with immediate
effect from the date this order is
granted.
5.
That the First Respondent be ordered to pay the costs of this
application at the scale of the attorney
and own client.’
Interim
interdicts
[15]
An
interim interdict is by definition:
‘“
a court
order preserving or restoring the
status quo
pending
the final determination of the rights of the parties. It does not
involve a final determination of these rights and
does not
affect their final determination.”
The
dispute in an application for an interim interdict is therefore not
the same as that in the main application to which the interim
interdict relates. In an application for an interim interdict the
dispute is whether, applying the relevant legal requirements,
the
status
quo
should
be preserved or restored pending the decision of the main
dispute.’
[2]
[16]
The
requirements for an interim interdict are trite and can be briefly
summarised as follows: a prima facie right even though open
to some
doubt; a well-grounded apprehension of irreparable harm if the
interim relief is not granted; that the balance of convenience
favours the granting of an interim interdict; and the lack of another
satisfactory or adequate remedy in the circumstances.
[3]
The
test for the existence of a prima facie right
[17]
In
Simon NO
v Air Operations of Europe AB
[4]
the test for a prima facie right was formulated in this fashion:
‘
The
accepted test for a
prima facie
right in the context of an interim interdict is to take the facts
averred by the applicant, together with such facts set out by
the
respondent that are not or cannot be disputed and to consider
whether, having regard to the inherent probabilities, the applicant
should on those facts obtain final relief at the trial. The facts set
up in contradiction by the respondent should then be considered
and, if serious doubt is thrown upon the case of the applicant, he
cannot succeed.
’
A
prima facie right
[18]
The
establishment of a prima facie right is the first and most important
hurdle an applicant claiming interim interdictory relief
must
overcome. The granting of an interim interdict pending an action is
an extraordinary remedy within the discretion of the Court.
[5]
The existence of contradictions and inconsistencies in the facts
disclosed by an applicant does not preclude a court from finding
that
a prima facie right, as opposed to a clear right, has been
established. A temporary interdict can be granted even if the right
is open to some doubt. It is only if there is serious doubt cast on
the
facts
alleged by the applicant that a court must refuse the interim relief.
[19]
In
his founding affidavit, the applicant identified the right that is at
issue as being his right to fair administrative action.
In the review
application, he contends that he was treated unfairly by the IEC when
it removed him as a councillor and appointed
the fourth respondent in
his stead.
[20]
The
applicant has clearly established that he was initially timeously
nominated by the EFF to be the successor to Mr Thwala. So
much so was
explicitly stated in the first letter. The contents of the first
letter have not been denied by the EFF nor can it
be: it was the
author of that letter. Had that been the last letter written in this
saga then, in my view, the applicant would
have gone a long way
towards establishing the right that he claims. But it was not the
last letter written. It was followed by
the second letter which
recalled the applicant as a candidate.
[21]
Acknowledging
the importance of establishing a right, Mr Xulu submitted, firstly,
that the applicant had a constitutional right
to
stand for public office and, if elected, to hold office.
[6]
That is undoubtedly correct. But that is not the issue in dispute in
this matter. The applicant is not being deprived of the right
to seek
or hold elected office. The issue is whether the applicant was
properly nominated and appointed. Secondly, Mr Xulu drew
attention to
the provisions of item
20
of Schedule 1 to the Act (item 20). Mr Xulu referenced this item to
establish that the nomination of the applicant and his completion
of
the nomination document was within the window period mentioned in
item 20. I previously mentioned that it was to be doubted
whether the
nomination document was completed at the insistence of the EFF. This
is because by the date that it was completed,
20 November 2020, the
EFF had already informed the IEC that the applicant had been recalled
from its list. There can be no reason
why the EFF would in those
circumstances prevail upon the applicant to complete the nomination
document as it was no longer its
intention to nominate him. It seems
more probable to me that this was done unilaterally by the applicant
in order to strengthen
his case. Mr Xulu conceded that the applicant
was not aware of the existence of the second letter until this
application was launched.
[22]
In
my view, the true significance of item 20, in the context of this
matter, is something different to that contended for by the
applicant. Item 20 provides that:
‘
(1)
A
party may supplement, change or increase its list at any time,
provided that if a councillor elected according to a party list,
ceases to hold office, the party concerned may supplement, change or
increase its list by not later than 21 days after the councillor
has
ceased to hold office. The vacancy must be filled as soon as the
party in question has supplemented, changed or increased its
list,
but not later than 14 days after expiry of the 21 day period.
(2)
If a party supplements, changes or increases its list in terms of
subitem (1) it must provide the chief electoral
officer with an
amended list
.’
[23]
It
is evident from item 20 that political parties are entitled to
supplement or change their list of nominated candidates at any
time.
There is, however, a proviso to this general statement. If a
councillor elected according to a party list leaves office,
the party
has a limited period of 21 days to change its list. Mr Thwala was a
councillor elected according to a party list. The
vacancy created by
his expulsion was declared by the IEC to exist on 18 November 2020.
In putting forward the names of five candidates
in the first letter
on 18 November 2020, the EFF was accordingly clearly within the time
limit of 21 days imposed by the the Act.
It consequently follows that
the EFF was still within the prescribed time period when later the
same day it recalled the name of
the applicant from the list of
candidates. The list was thereby changed during the prescribed
period. Ex facie item 20, there is
no restriction on how many times a
list can be changed. The EFF was entitled to change the list of
candidates as many times as
it wanted, including changing it twice on
the same day, during the window of opportunity prescribed by the Act.
When this proposition
was put to Mr Xulu he could not gainsay it.
[24]
On
the facts pleaded by the applicant and further considering those
facts that cannot be denied, it appears to me to be improbable
that
the applicant will obtain final relief in the review proceedings.
[25]
The
EFF submitted that the second letter was a game changer. Its effect
was to correct the error caused by the first letter and
to remove the
applicant as a candidate for appointment. As a consequence, the EFF
submitted that the applicant had no right to
be appointed once the
IEC received the second letter. The fact that he was later appointed
because of an admitted oversight on
the part of the IEC did not
suddenly endow him with a right entitling him to the relief that he
seeks. Mr Ramogale submitted that
the applicant had not established
the existence of a prima facie. I agree with that submission and I
find that to be the case.
This finding dispenses with the need
to consider the other requirements for the grant of an interim
interdict and the application
must fail on this basis alone.
Urgency
[26]
Finally,
I turn to consider the question of urgency. Van Wyk J, in
Juta
and Company Ltd v Legal and Financial Publishing Company (Pty) Ltd
[7]
said that:
‘
. . . an
application for an interdict
pendente lite
. . . from its very
nature, requires the maximum expedition on the part of an applicant’.
The
applicant was instructed to resign by the EFF on 12 January 2021. He
knew at that date that his appointment as councillor was
under
challenge. This application was brought as a matter of urgency on 2
March 2021. Why nothing was done by the applicant between
these two
dates is unexplained in the founding affidavit. But for the decision
reached in this matter, I would have been inclined
to refuse the
application for want of urgency.
Conclusion
[27]
I
therefore grant the following order:
1. Condonation
is granted to the applicant and the second respondent for the late
delivery of
their respective practice notes and heads of argument;
2. The
application is dismissed with costs.
Mossop
AJ
APPEARANCES
Counsel
for the applicant: Advocate
M. N. Xulu
Instructed
by:
Sihlangu
Sithebe Attorneys
Suite
No. 2, Presha Centre
75
Scott Street
Newcastle
Counsel
for the second respondent: Advocate T. Ramogale
Instructed
by:
Ian
Levitt Attorneys
The
Leonardo
Office
Level 12
75
on Maude Street
Sandton
Date of
Hearing: 9
June 2021
Date of
Judgment: 15
June 2021
[1]
Local
Government: Municipal Structures Act 117 of 1998
.
[2]
National
Gambling Board v Premier, Kwa-Zulu Natal, and others
[2001] ZACC 8
;
2002 (2) SA 715
(CC) para 49.
[3]
Director-General,
Department of Home Affairs and another v Islam and others
[2018] ZASCA 48
para 14.
[4]
Simon
NO v Air Operations of Europe AB and others
[1998] ZASCA 79
;
1999 (1) SA 217
(SCA) at 228G-H.
[5]
Eriksen
Motors (Welkom) Ltd v Protea Motors, Warrenton and another
1973
(3) SA 685
(A) 691C.
[6]
The right exists in s
ection
19(3)
(b)
of the Constitution.
[7]
Juta
and Company Ltd v Legal and Financial Publishing Company (Pty) Ltd
1969 (4) SA 443
(C) at 445F.