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[2008] ZASCA 165
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Shunmugam and Others v National Democratic Convention (073/08) [2008] ZASCA 165; [2009] 2 All SA 285 (SCA) (1 December 2008)
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THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA
JUDGMENT
Case No: 073/08
No precedential significance
In the matter between:
MATTHEW
SHUNMUGAM FIRST APPELLANT
GIJIMANI ALFRED MNCUBE SECOND APPELLANT
CHUAN-YI LIU THIRD APPELLANT
THENJIWE VERONICA BUTHELEZI FOURTH APPELLANT
THEMBISILE MARY-MARGARET PHIRI FIFTH APPELLANT
BHEKUMNDENI ALEC THUSI SIXTH APPELLANT
INNOCENT MHLABUNZIMA MIYA SEVENTH APPELLANT
THANDI ROSEMARY NDLOVU EIGHTH APPELLANT
BHEKINKOSI DERRICK NINTH APPELLANT
JOTHAM THEMBA SIMELANE TENTH APPELLANT
TOBIAS
SEZE GUMEDE ELEVENTH APPELLANT
SENZO
RICHARD SHWALA TWELFTH APPELLANT
HANDSOME THOKOZANI THIRTEENTH APPELLANT
THANDAZANI
CYPRIAN NJOKO FOURTEENTH APPELLANT
DUMISILE HELMAH XABA FIFTEENTH APPELLANT
MBONGENI BHEKUMTHETHO MYENI SIXTEENTH APPELLANT
DHAVANDRAN KRISHNASAMY PALAVAR SEVENTEENTH APPELLANT
MBONGENI JEREMIAH SIBIYA EIGHTEENTH APPELLANT
INKATHA FREEDOM PARTY NINETEENTH APPELLANT
and
NATIONAL DEMOCRATIC CONVENTION RESPONDENT
Neutral citation:
Shunmugam
and Others v National Democratic Convention
(073/2008)
[2008] ZASCA 165
(1 December 2008)
CORAM:
HARMS ADP, STREICHER
JA, COMBRINCK JA, LEACH AJA et MHLANTLA AJA
HEARD:
7 NOVEMBER 2008
DELIVERED:
1 DECEMBER 2008
Summary: Floor crossing under Schedule 6B of the
Constitution – court having ordered that municipal councillors
who had purportedly
been expelled from their political party were to
remain suspended during a floor crossing window pending a decision on
whether
their expulsions had been lawful – this order not
depriving the councillors of their party membership or preventing
them
from crossing the floor – as their expulsions had been
unlawful, councillors had been members of the party entitled to cross
the floor.
______________________________________________________
ORDER
______________________________________________________
On appeal from:
High Court,
Natal (Rall AJ sitting as court of first instance).
In case 6883/07, the appeal is dismissed.
In case 7680/07, the appeal succeeds. The order of
the court a quo is set aside and replaced by the following:
‘
(1) The application is
dismissed with costs.
(2) The counter application is upheld
with costs.’
(c) The respondent (NADECO) is to pay the appellants’
costs of the appeal.
The above orders as to costs shall include those of two
counsel where so employed.
_____________________________________________________
JUDGMENT
_____________________________________________________
LEACH AJA
(
HARMS
ADP, STREICHER JA, COMBRINK JA, et MHLANTLA AJA concurring):
[1] The political process commonly known as ‘floor
crossing’, an expediency by which a sitting member of either
the
national assembly, a provincial legislature or a municipal
council may change allegiance from one political party to another
during
a prescribed period without losing his or her seat, is
recognised in Schedules 6A and 6B of the Constitution. Floor crossing
is
a matter of some controversy and is about to be abolished.
Nevertheless, in a window period covering the first fifteen days of
September 2007, sitting members of municipal councils were entitled
to cross the floor under the provisions of Schedule 6B.
[2] The respondent, the National Democratic Convention
(‘NADECO’), is a registered political party. The first to
eighteenth
appellants are former members of NADECO who had been
municipal councillors before the floor crossing window in September
2007.
Like most political parties, NADECO feared the possible
defection of members when the floor crossing window opened. It also
appears
to have identified the first to eighteenth appellants as
possible defectors and, seemingly as a pre-emptive step, expelled
them
from membership of the party during August 2007. As in terms of
item 1 of Schedule 6B, loss of party membership leads to a councillor
ceasing to be a member of a municipal council, their expulsions would
have prevented them from crossing the floor.
[3] As will be more fully set out in due course, this
led to litigation in the
Pietermaritzburg
High Court involving not only the first to eighteenth
appellants but various municipal councils, NADECO and a number of
other political
parties, including the Inkatha Freedom Party (’the
IFP’). N
ot all of those
parties are before this court and not all of the present parties were
parties to each application.
In order to
avoid confusion, I therefore intend to refer to the first to the
eighteenth appellants as ‘the appellants’
and to the
respondent and the IFP (which is the nineteenth appellant) by their
acronyms.
[4] There are in fact two appeals
before this court arising from separate applications brought in the
high court under case numbers
6883/07 and 7680/07. Although not
formally consolidated, the two applications became intimately
intertwined, were eventually heard
together and were decided in a
single judgment. By that stage, case 6883/07 had for all practical
purposes become moot and the
relief sought in that matter was
refused. Despite case 6883/07 being of academic interest only, leave
to appeal was granted in
both cases. Mr Gauntlett SC, who appeared
for the appellants in this court, however referred to case 6883/07
only as background
or where its papers had been incorporated by
reference into those of case 7680/7. Although it was the decision in
the latter case
which essentially formed the subject of the appeal,
it is useful to describe the somewhat convoluted proceedings which
took place
in the high court.
[5] The appellants decided to appeal
against their expulsions under the party’s constitution.
However, in the light of the
imminent opening of the floor crossing
window, they also launched an urgent application (case 6883/07) in
which they sought an
order that, pending the outcome of their
internal appeals, their expulsions be declared unlawful and their
positions as councillors
of the various municipalities be declared of
full force and effect. They cited as respondents the various
municipalities in which
they had been serving as councillors as well
as the Electoral Commission and NADECO.
[6] Inadequate notice of this
application was given to the various respondents and it was heard
ex
parte
by Madondo J
on 24 August 2007. Nevertheless a rule
nisi
returnable on 27 September 2007 was
issued calling upon those cited as respondents to show cause why a
declaratory order in the
form sought should not be issued. In
addition, the court directed the rule to operate as an interim order
pending the finalisation
of the application. As the return day was
after the close of the floor crossing window, this order amounted to
final relief
ex
parte
declaring the
appellants to have been unlawfully expelled which, in turn, would
have allowed them to cross the floor. It is not
surprising that as
soon as NADECO became aware of the order, it applied for it to be
reconsidered under rule 6(12)(c).
[7] The application for
reconsideration of the order of 24 August 2007 was heard by Msimang J
on 31 August 2007. It is clear from
the record that the learned judge
was acutely aware of the ramifications of the floor crossing period
which was about to open,
and the resultant necessity to deal fairly
and speedily with the dispute but to preserve the parties’
rights until the lawfulness
or otherwise of the expulsions had been
determined. He urged the parties to reach agreement on an order which
would achieve that
end. This led to the appellants and NADECO (the
latter being the only respondent in the proceedings who was
represented at the
time) agreeing to the matter being postponed to 12
September 2007 - so that it could be heard before the end of the
floor crossing
period – and the following order which they had
drawn up being issued by consent:
‘
1. The
rule
nisi
granted
on 24 August 2007 be and is hereby discharged.
2. That pending the final
determination of this application:
(a) the
(appellants) remain suspended as members of (Nadeco)
(b) that
(Nadeco) undertakes not to replace the (appellants) as councillors of
the (municipal councils).
’
[8] The appellants purported to cross
the floor before the hearing on 12 September 2007 and, when the
matter was called that day,
leading counsel then appearing for them
informed the court that his clients had resigned from NADECO and had
joined other political
parties. Although NADECO immediately attempted
to persuade the court to dismiss the application, the court declined
to do so as
there had been ‘no official pronouncement on this
issue at this stage’. The matter was then postponed
sine
die
although,
somewhat strangely in the light of their counsel’s statement
that the appellants had resigned from NADECO, a further
interim order
was issued in the same terms as paragraph 2 of the order of 31 August
2007.
[9] Subsequently, on 19 September
2007, NADECO learnt that the Electoral Commission had recognised the
appellants’ move to
other political parties, with the eleventh,
fifteenth and sixteenth appellants having joined the IFP. In the
light of the Electoral
Commission’s recognition of these
defections, NADECO launched another urgent application (case 7680/07)
on 20 September 2007.
Citing various respondents, including the
appellants and the municipalities in which they were sitting, the
Electoral Commission
and the IFP, it sought an order (i) declaring
that the appellants had ceased to be members of their respective
municipal councils
before midnight on 31 August 2007 and were
accordingly not members of any municipal council, and (ii) setting
aside the decision
of the Electoral Commission to recognise the
appellants as members of the various municipal councils.
[10] This application was set down as
a matter of urgency on 21 September 2007 but was postponed to 27
September 2007. On that date
it was again postponed to 22 October
2007, with the court further ordering that the application in case
6883/07 also be set down
for hearing that day.
[11] The eleventh, fifteenth and
sixteenth appellants, who had crossed the floor to join the IFP,
thereafter lodged a counter application
in case 7680/07 seeking an
order declaring (i) that their expulsions were unlawful, and (ii)
that they had been members of NADECO
as at 31 August 2007. An order
in those terms would effectively have declared them to have been
councillors when the floor crossing
window opened and therefore
entitled to move to other parties.
[12] In this way, the applications in cases 6883/07 and
7680/07 together with the counter application in the latter case came
before
Rall AJ on 22 October 2007. Judgment was delivered on 4
December 2007. The application in case 6883/07 was dismissed with
costs.
In case 7680/07, the court held that the appellants had ceased
to be members of their respective municipal councils before the floor
crossing window had commenced and, accordingly, granted NADECO the
relief it sought and dismissed the counter application of the
eleventh, fifteenth and sixteenth appellants. With leave of the
learned acting judge, the appellants and the IFP now appeal to
this
court against those orders.
[13] As already mentioned, due to the
appellants having joined other political parties the proceedings in
case 6883/07 could be
of no more than academic interest, and they
wisely did not seek to argue the appeal in regard to that case and
conceded that it
should be dismissed. The argument on appeal was
therefore directed at the decision in case 7680/07, the outcome of
which turns
on whether the appellants had lawfully crossed the floor
between the court appearances of 31 August and 12 September 2007.
[14] In the court a quo, NADECO had
contended that the appellants had been lawfully expelled and could
accordingly not cross the
floor when the window opened as they had
ceased to be councillors. However, on appeal, counsel for NADECO
conceded that for present
purposes it could be accepted that the
individual appellants had not been lawfully expelled. Notwithstanding
this admission, he
relied on the decision in
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others
2004
(6) SA 222
(SCA) to found an argument that, although invalid, the
decision to expel the appellants was not devoid of consequences but
remained
effective until set aside – so that the appellants had
to be regarded as not having been members of NADECO on 1 September
2007 and had therefore not been entitled to cross the floor.
[15] In
Oudekraal
,
and subsequently in
Seale
v Van Rooyen NO and Others; Provincial Government, North West
Province v Van Rooyen NO and Others
2008
(4) SA 43
(SCA), the court was called on to decide what effect an
invalid administrative act had upon a further administrative act
which
was dependent on the initial act. It was held that where a
person, the so-called ‘second actor’, unaware of the
invalidity
of the initial act, assumed it to be valid when taking the
further act, and where the factual existence rather than the
substantive
validity of the initial act was a precondition for the
validity of the subsequent act, the latter act could be regarded as
valid
until the initial act was set aside.
[16] The present case involves a
direct attack upon the legality of the decision to expel the
appellants
and does not
concern the validity of an act taken on the strength of that
decision. The appellant’s membership of NADECO at
the crucial
time depended on the substantive validity of their expulsions. The
appellants were required to vacate their seats as
councillors if
lawfully expelled. They declined to do so as they felt their
expulsions had been unlawful. NADECO then sought declaratory
relief
against them, contending the expulsions had been lawful. The
appellants resisted that application by challenging the validity
of
the administrative act expelling them. The court was then called on
to decide the validity of the action expelling the appellants.
Having
regard to NADECO’s concession that their expulsions were indeed
unlawful, and the principle of legality which is fundamental
to our
legal order, there can be no question that the appellants were
members of NADECO and councillors who were entitled to cross
the
floor when the floor crossing window opened.
[17] For these reasons
NADECO’s reliance on the
decision in
Oudekraal
is misplaced and
the matter is not to be decided on the basis that the expulsions,
even if invalid, resulted in the appellants losing
their party
membership.
[18] NADECO in the alternative
contended that the order of 31 August 2007 had in any event prevented
the appellants from crossing
the floor while it was in place. A
decision on this issue turns largely upon the interpretation of the
provision in the order that,
pending the final determination of the
application, the appellants were to ‘remain suspended as
members’ of NADECO.
[19] Despite having been drafted by
the legal representatives of the parties, this provision was absurd
as it had not been suggested
by either side that the appellants had
been suspended from membership of the party and the dispute had at
all times been whether
they were still members of the party or
whether they had been expelled.
[20] Counsel for NADECO argued that
the order had to be read in its context and the circumstances which
prevailed when it was made.
In the light of the imminent opening of
the floor crossing window and the postponement of the case to a date
within that window
for resolution of the dispute about the lawfulness
of the expulsions, he submitted that by necessary implication the
order was
intended to mean that the appellants were prohibited from
crossing the floor until the application had been determined by the
court
on 12 September 2007.
[21] The issue whether the court has
the power to order a councillor not to cross the floor, even should
he or she agree not to
do so, was mentioned, albeit briefly, by
counsel for the appellant. Although a matter of interest and one
which may be the subject
of substantial constitutional debate, it is
unnecessary to reach any decision on the issue for purposes of this
judgment. The answer
to NADECO’s argument is that if the
parties had intended their draft order to prohibit the appellants
from crossing the floor,
they could simply have expressly provided
for that to be the case. Not only did they not do so but, for the
reasons that follow,
the order cannot be construed to have that
effect by necessary inference.
[22] In considering whether the order
can impliedly bear the meaning NADECO seeks to attribute to it, it is
indeed useful to place
the order in its context as counsel for NADECO
asked us to do. In order to prevent the appellants from crossing the
floor, NADECO
was seeking a court order recognising that it had
lawfully expelled them. On the other hand, the appellants contended
that they
had not been lawfully expelled, that they were still
members of NADECO and that they were entitled to exercise their
constitutional
right to cross the floor during the prescribed period
if they so wished. The lawfulness of the appellants’ expulsions
was
crucial to this dispute, and the determination of that issue was
to be postponed for adjudication before the end of the floor crossing
window. In formulating the order, the parties had in mind an
arrangement which would preserve, not prejudice, their respective
rights; in particular the right of the appellants to switch their
political allegiance without losing their seats should they not
have
been lawfully expelled. The order was not intended to cause the
appellants to surrender this right, as was correctly conceded
on
appeal by NADECO.
[23] Bearing that in mind, it is
important to have regard to schedule 6B of the Constitution. As
already mentioned, item 1 of the
schedule provides for a councillor
to cease to be a member of a municipal council if he or she ceases to
be a member of a political
party. Item 4(2)(a) provides that during a
floor crossing period a councillor may only once (i) change
membership of a political
party, (ii) become a member of a party, or
(iii) cease to be a member of a party. On the other hand, item
4(2)(c) prohibits a party
from suspending or terminating the party
membership of a councillor during a floor crossing period or from
performing any act during
such period which may cause a councillor to
be disqualified from holding office in a council.
[24] In the light of these
provisions, the appellants had to be members of NADECO when the floor
crossing window opened in order
for them to cross the floor during
the prescribed period. If they had been expelled, they could not do
so. But, on the other hand,
if they had not been expelled and were
still members of the party, NADECO could not prevent them changing
their allegiances to
another party.
[25] NADECO’s counsel conceded,
correctly, that neither the court nor the parties ever had the power,
or had intended, to
deprive the appellants of their rights under
schedule 6B. As they would have been deprived of those rights if they
were not NADECO
members at the commencement of the floor crossing
window, whatever the order of 31 August 2007 was intended to mean
(and while
it may possibly have been intended to mean that the
appellants should not attend council meetings or something of that
nature)
it could never have been intended to deprive the appellants
of their party membership or prohibit them from crossing the floor.
[26] This conclusion renders it
unnecessary to attempt to decide precisely what the parties or the
court had in mind when formulating
the order of 31 August 2007.
Either the order is meaningless or it did not deprive the appellants
of their right to cross the floor
if their expulsions were unlawful.
In either event, in the light of NADECO’s acceptance that the
appellants had been unlawfully
expelled, they remained members of the
party when the floor crossing window opened and were therefore
entitled to cross the floor
to other parties when they did.
[27] Consequently, the order of the
court a quo in case 7680/07 cannot stand and must be set aside. In
regard to the counter application,
the appellants to whom it relates
enjoy status and privileges as councillors and the right to
participate in the political processes
of the municipal councils in
which they have been seated since September 2007, all of which was
disputed by NADECO. An order in
the counter application re-asserts
these rights and privileges as well as the fact that those appellants
were unlawfully expelled
by NADECO. In these circumstances, the
declaratory relief sought in the counter application is not solely
academic and should be
issued.
[28] In regard to costs, the
application in case 6883/07 was probably ill conceived and should
have been abandoned once the appellants
crossed the floor. It should
also not to have been appealed against. However, as the appellants
did not argue the appeal and the
papers in that case were both
necessary as background and were incorporated by reference into the
papers in case 7680/07, it is
unnecessary to make a costs order in
the appeal in case 6883/07. In regard to case 7680/07, the costs
should follow the event.
I am also satisfied, and both sides were
agreed, that the order for costs should include those of two counsel
where so employed.
[29] The following order is made:
In case 6883/07, the appeal is dismissed.
In case 7680/07, the appeal succeeds. The order of
the court a quo is set aside and replaced by the following:
‘
(i) The application is
dismissed with costs.
(ii) The counter application is
upheld with costs.’
The respondent (NADECO) is to pay the appellants’
costs of the appeal.
The above orders as to costs shall include those of
two counsel where so employed.
_______________
L E LEACH
ACTING JUDGE OF APPEAL
APPEARANCES:
For Appellants: JJ Gauntlett SC
A M Annandale
Instructed by
Thorpe & Hands; Durban (On behalf of First –
Sixth Appellants)
Symington & De Kok; Bloemfontein
Larson Falconer Incorporated; Durban (On behalf of
Seventh – Nineteenth Appellants)
Symington & De Kok; Bloemfontein
For Respondent: AM Stewart SC
M Du Plessis
Instructed by
John Wills Attorney; Pietermaritzburg
Naudes Incorporated; Bloemfontein