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[2013] ZAKZDHC 21
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Ngiba v African People Convention and Others, Luthuli v African People Convention and Others (8552/2012, 8457/2012) [2013] ZAKZDHC 21 (5 April 2013)
5
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE
NO.8552/2012
In
the matter between:
BONGINKOSI
SIPHIWE NGIBA
........................................................
APPLICANT
and
AFRICAN
PEOPLE’S CONVENTION
...............................
FIRST
RESPONDENT
THE
SECRETARY GENERAL –
PASEKA
MOSHWADIBA
.............................................
SECOND
RESPONDENT
THE
INDEPENDENT ELECTORAL
COMMISSION
..................................................................
THIRD
RESPONDENT
THE
CITY MANAGER –
ETHEKWINI
MUNICIPALITY
........................................
FOURTH
RESPONDENT
And
CASE
NO. 8457/2012
In
the matter between:
SLINDILE
ANN LUTHULI
..................................................................
APPLICANT
and
AFRICAN
PEOPLE’S CONVENTION
...............................
FIRST
RESPONDENT
THE
SECRETARY GENERAL –
PASEKA
MOSHWADIBA
.............................................
SECOND
RESPONDENT
THE
INDEPENDENT ELECTORAL
COMMISSION
..................................................................
THIRD
RESPONDENT
THE
CITY MANAGER –
NDWEDWE
LOCAL MUNICIPALITY
...........................
FOURTH
RESPONDENT
J
U D G M E N T
Date
Delivered
: 5 April 2013
_____________________________________________________________
S
R MULLINS, A J:
[1]
This judgment is delivered in two related matters which, although not
consolidated, were heard together on 27 March 2013.
[2]
The two applicants were, and in consequence of interim relief granted
by this Court on 23 August 2012 remain, proportional representation
councillors of the eThekwini Municipality, representing The African
People’s Convention, the first respondent.
[3]
In the case of S A Luthuli, the relevant provisions of the order
granted read as follows:
“
2.
That
a rule nisi do issue calling upon the Respondents to show cause if
any on the 11
th
September
2012 at 9:30 a.m. or so soon thereafter as the matter may be heard
why an Order should not be granted in the following
terms:
2.1.
That pending the finalization of the Appeal procedure and/or any
other legal proceedings instituted or to be instituted by
the
Applicant against 1
st
Respondent, the membership of the
Applicant with the 1
st
Respondent be and is hereby
re-instated with immediate effect.
2.2.
That the 1
st
Respondent’s decision as contained in
annexure “SL10” to the Applicant’s Founding
Affidavit to expel the
Applicant from and further to revoke the
Applicant’s membership with the 1
st
Respondent be
uplifted immediately.
2.3.
That pending the outcome of the appeal, the 1
st
, 3
rd
and 4
th
Respondents be and is hereby interdicted and
restrained from swearing in any member representing the 1
st
Respondent to replace the Applicant as Public Representative
Councillor of the 1
st
Respondent.
2.4.
That the 1
st
Respondent be and is hereby directed to
furnish to the Applicant within ten (10) days of the granting of the
order reasons for
its finding in the disciplinary enquiry against the
Applicant.
2.5.
That the 1
st
Respondent be ordered to pay the costs of
this application.
3.
That pending the return date of the rule nisi the relief set forth in
paragraph 2.1, 2.2, 2.3 and 2.4 operate as interim relief
with
immediate effect.
”
[4]
A similar order was made in the case B S Ngiba save that there were
included additional provisionsdirecting the third respondent
(the
Independent Electoral Commission) to “
remove Trevor Thabani
Ngubane as the replacement of the applicant as the first respondent’s
public representative councillor
in the 4
th
respondent”
and to “
re-instate the applicant
” as such.
[5]
The reference to the applicants as “public representative
councillors”, which is the description used in the applicant’s
papers, appears to be an erroneous reference to “proportional
representation” councillors.
[6]
There are numerous disputes of fact on the papers. In brief, however,
the background to the applications is as follows.
[7]
The applicants had previously been members of a different political
party, the Federal African Convention, which merged with
the first
respondent in December 2010.
[8]
In the local government elections of May 2011, the first respondent
won two proportional representation seats in the eThekwini
Municipal
Council. The applicants filled those two seats.
[9]
The applicant’s appointment as “party representatives”
was governed by a “deployment agreement”
concluded
between the party (the first respondent) and each of the applicants.
Apart from listing a number of obligations imposed
upon and accepted
by the applicants, the deployment agreements recorded the following
(quoted verbatim as contained in the document):
“
I
hereby accept the deployment by my party (African People’s
Convention / APC) as a Party Representative at eThekwini Municipality
and acknowledge and accept that this contract is performance based.”
“
As
this is Party deployment, the African People’s Convention (APC)
reserves the right to recall me from Council if it is found
that I
did not live to the spirit of my deployment and hereby pledge my full
cooperation with that Party process.”
“
I
commit hereby to be bound by the Constitution of the African People’s
Convention (APC) and its Disciplinary Code/Rule 22.
”
1
“
I
fully understand that the seat/vacancy I occupy in Council is not
mine but that of the APC, acquired through the democratic, free
and
fair elections organised by the Independent Electoral Commission –
5A on the 18 May 2011 and that the APC reserved the
right to deploy
whoever it deem fit and necessary to advance its political objectives
whenever it becomes necessary
”
.
“
The
Councillor reserves the right to appeal any sanction against
him/her
”.
[10]
The background thereto is very much in dispute, but on 21 May 2012, a
letter was addressed to each of the applicants recording
(again
quoted verbatim and without correction) that “
The
3
rd
PlannerySession of the 2
nd
Politburo
of the African People’s Convention held on the 20
th
of May 2012 … resolved to recall you as the APC councillor
.
The Politburo in its wisdom decided that the political interest of
the APC will be better served by recalling you and deploying,
someone
else in your post
”. The applicants were instructed to
address letters of resignation to the Speaker of the Municipality.
The instruction was
coupled with the warning that “
failure
to write such a letter of resignation to the Speaker of the
Municipality and failure to provide my office with a copy thereof
by
the 31
st
May 2012 will be viewed as gross
subordination for which there will be swift, firm and decisive
action
.”
[11]
The applicants declined to resign, recording that no grounds for
their “recall” existed or were provided.In response,
four
formal charges were brought against each of the applicants. They were
notified of these charges by notice dated 29 June 2012
and the
hearing was fixed for 14 July 2012.The disciplinary proceedings
proceeded before the Standing Disciplinary Committee of
the first
respondent. The applicants claim that two of the four charges were
withdrawn and that each wasrequired to answer only
the remaining two
charges. The first and second respondents dispute that any charges
were withdrawn and claim that the applicants
were found guilty on all
counts.
[12]
There are disputes as to what occurred at the hearing and as to
whether the applicants were afforded an opportunity to argue
in
mitigation. In any event, the applicants were thereafter notified(by
letters dated 24 July 2012) that the Politburo had received
a report
from the National Disciplinary Committee and had accepted and
endorsed the findings and sanctions. The applicants were
informed
that they had been found guilty on all charges and the sanction of
immediate expulsion, as endorsed and accepted by the
Politburo, had
been imposed.
[13]
The applicants chose to appeal, setting out their reasons in letters
dated 8 August 2012. The first and second respondents
admit having
received the notice of appeal of S A Luthuli, but deny having
received the notice of appeal of the B S Ngiba.
[14]
The documents in the two appeals are in identical terms. The appeal
documents appear to commence from the premise that each
appellant was
found guilty on each of the four charges. The applicants contend that
improper personal motives were behind both
the initial instruction
that they resign as councillors and the subsequent disciplinary
proceedings. The first and second respondents
deny this and contend
that both were the consequence of improper conduct on the part of the
applicants.
[15]
The applicants and the first and second respondents are unable to
agree even on the terms of the constitution of the first
respondent.
The applicant contends that the constitution in question is what
appears to be the original constitution, whereas the
first and second
respondents rely on an amended version of that document which is
recorded to be the constitution “
as amended at the 1
st
National People’s Congress held on 16 – 18 December
2011 in Mangaung, Free State
”.
[16]
The provisions dealing with disciplinary proceedings and appeals are
identical (Rule 22 of the original constitution and Rule
24 of the
amended constitution). These provisions include,
inter alia
:
Provisions
for the appointment of a “Standing Disciplinary Committee”
appointed by the Central Executive Committee
(The “CEC”);
With
particular reference to a penalty of expulsion from the party that
“Expulsion shall be imposed only by the CEC acting
either on
its own initiative or after receiving a fully documented
recommendation from the PEC” (i.e. the Provincial Executive
Committee);
That
any person found guilty in disciplinary proceedings has the right to
appeal to a National Appeals Committee (established
by the CEC but
comprising members of the Party who are not members of the CEC). An
appeal to the National Appeals Committee must
be brought within 30
days through the CEC;
That,
should the National Appeals Committee reject an appeal, a further
and final appeal to the “Next Congress” is
allowed; and
Of
particular significance to this application, a provision recording
that “The lodging of an appeal shall not postpone
the
operation of the penalty”.
[17]
The amended constitution relied upon by the first and second
respondents contains a provision (in amended Rule 22) not found
in
the original constitution. It is headed “Public
Representatives” and reads:
“
22.1
The party shall have the right through its structures to the second
and withdraw its members in all spheres of government and
all local,
national and international institutions it deems necessary to pursue
its revolutionary mandate.
22.2
All representatives shall contribute a levy of occupying a position
on behalf of the Party that remunerates the incumbent and
the
(percentage) figure shall be determined by the CEC.
22.3
The party shall develop a deployment contract that shall be signed by
all its representatives.”
[18]
Anticipating their removal as proportional representation councillors
of the first respondent, the applicants brought the urgent
application seeking relief as was ultimately granted on 23 August
2012.
[19]
It is common cause that, pursuant to the interim relief granted, B S
Ngiba was restored as a proportional representation councillor
representing the first respondent. I was also informed that the first
respondent did not provide reasons for the “finding
in the
disciplinary enquiry” as required by the orders granted on 23
August 2012 unless the answering affidavits are regarded
as complying
with the order. Finally, I was advised that there has been no
progress with regard to the hearing of the appeals.
[20]
The matter came before me as the extended return date of the
rule
nisi
.The “final” relief sought on confirmation of the
rule nisi
is to apply only pending the determination of other
proceedings. The relief will operate only until the determination of
the applicants’
appeals to the National Appeal Committee of the
first respondent.The order sought did make reference to the relief
operating pending
the determination of other, unidentified,
proceedings, but the applicant’s counsel accepted that the rule
could only be confirmed
in relation to the identified appeals.
[21]
It follows in my view that the “final” relief is itself
interim relief because it operates only pending the decision
of the
Appeal Committee of the first respondent.It accordingly seems to me
that, in determining the question is to whether or not
the rule
should be confirmed, the proper test to apply is that relating to the
granting or refusal of interim relief.
[22]
What is consequently required of the applicants is that they
establish the existence of either a clear right or a
prima facie
right, even if open to some doubt and that the balance of convenience
favours the granting of the further relief pending the decision
in
the appeals. As recently stated by Nugent JA in
Minister of
Defence v South African National Defence Union
2012 JDR 1507
(SCA) in paragraph [11]:
“
It is trite
that for an interdict to be granted the applicant must establish (1)
that he or she has a clear right and (2) that the
right has been or
is expected to be infringed and (3) the absence of similar protection
by any other ordinary remedy. Where the
existence or otherwise of the
right has yet to be judicially determined, whether in those
proceedings, or in a related action,
a court has a discretion
meanwhile to grant an interdict maintaining the
status
quo
pending the outcome of that determination, if the right relied upon
is demonstrated
prima
facie.”
[23]
As was further pointed out by Page J
in Cambridge Plan AG and
Another v Moore and Others
1987 (4) SA 821
(D) (at pages 833 D –
834 B):
“
The
requirements which an applicant for an interim interdict has to
satisfy are well established. They are:
(a) a prima facie right;
(b) a well-grounded apprehension of
irreparable harm if the interim relief is not granted and the
ultimate relief is eventually
granted;
(c) a balance of convenience in favour
of the granting of the interim relief; and
(d) the absence of any other
satisfactory remedy.
These factors should not be considered
separately or in isolation but in conjunction with one another in
order to determine whether
the Court should exercise its discretion
in favour of the grant of the interim relief sought. (
Beecham
Group Ltd v B-M Group (Pty) Ltd
1977 (1) SA 50
(T) at 54.)
I propose firstly to consider whether
the applicants have succeeded in showing the requisite prima facie
right in respect of each
of the causes of action relied upon. I will
then proceed to consider the remaining requirements. I do this,
however, purely as
a matter of convenience and I have been careful to
guard against overlooking the interaction between the various
requirements and,
in particular, the interaction between the balance
of convenience and the strength of the
prima facie
case
required. (
Olympic Passenger Service (Pty) Ltd H v Ramlagan
1957
(2) SA 382
(D).)
The nature of the
prima facie
right which the applicant is required to establish was laid down in
Webster v Mitchell
1948 (1) SA 1186
(W) as modified by
Gool
v Minister of Justice and Another
1955 (2) SA 682
(C). Including
this modification, the approach laid down in
Webster v Mitchell
(supra at 1189) is as follows:
'In an application for a temporary
interdict, applicant's right need not be shown by a balance of
probabilities: it is sufficient
if such right is
prima facie
established, although open to some doubt. The proper manner of
approach is to take the facts as set out by the applicant together
with any facts set out by the respondent which the applicant cannot
dispute and to consider whether, having regard to the inherent
probabilities, the applicant on these 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 could not succeed in obtaining temporary
relief,
for his right, prima facie established, may only be open to "some
doubt". But if there is mere contradiction,
or unconvincing
explanation, the matter should be left to trial and the right be
protected in the meanwhile, subject of course
to the respect of
prejudice in the grant or refusal of interim relief.'
[24]
The rights which the applicants assert, and which will be asserted in
the appeals, are their rights to remain members of the
first
respondent and, in particular, proportional representation
councillors of the first respondent in the eThekwini municipality.
They contended that they have a good argument to present to the
Appeal Tribunal in support of the overturning of the decision of
the
Standing Disciplinary Committee and the decision of the Politburo to
uphold the penalty of expulsion. If the further interim
relief which
will be afforded by the confirmation of the rule is not granted, they
will suffer irreparable harm because they will
be removed as
councillors before their appeals (which may determine that the
penalties of expulsion were not properly imposed)
are heard. They
contended that the first and second respondents can arrange for the
appeals to be heard expeditiously and contend
that, in all the
circumstances, the balance of convenience favours the extending of
the interim relief by confirmation of the rule
nisi.
[25]
The first and second respondents seek the discharge of the rule
nisi
in each case. Their contentions as advanced in argument by Mr Kuboni
are, in relation to both matters, that:
(1)
the matter was not urgent and would not have been dealt with as such
in August 2012;
(2)
the first respondent has a right to recall its members from public
office (in terms of Rule 22 of the amended constitution)
and the
deployment of the applicants was subject to their performing in
accordance with their deployment contracts and, in particular,
the
constitution which expressly provides that a pending appeal does not
suspend the sanction appealed against;
(3)
the court should not afford relief because the applicants have not
exhausted their internal remedies as referred to in section
7(2)(a)
of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”),
the internal remedy consisting in the appeals
in question.
[26]
In relation tothe application by B S Ngiba, the first and second
respondents contend, in addition, that:
(1)
he had no proprietary interest in retaining membership of the first
respondent because he had already been removed as a counsellor
and
replaced by Mr Ngubane when the application was launched; and
(2)
Mr Ngubane had an interest in the matter requiring that he be
formally joined as a respondent.
[27]
Before dealing with the various contentions of the first and second
respondents, I deal with the question as to whether, on
the
respondent’s version, there has been compliance with the
constitution of the first respondent in imposing the penalty
of
expulsion on the applicants.
[28]
In the course of argumentI raised the question as to whether the fact
that the Politburo had determined that the penalty of
expulsion
should be imposed did not have the result that no valid expulsion had
occurred, given that the CEC was the only body
which could impose
that penalty. In this regard see
Matlholwa v Mahuma and others
[2009] 3 All SA 238
(SCA).Mr Kuboni drew my attention to the
provisions of the constitution of the first respondent which (in a
different form in each
of the original (Rule 10) and amended (Rule
11) versions) provided that the Political Bureau (“the
Politburo”)“shall
exercise all the powers and functions
of the CEC”. Whilst the position is perhaps clearer in the
original constitution than
it is in the amended version, I accept
that a penalty of expulsion could legally be imposed by the Politburo
pursuant to disciplinary
subrule 7(d).
[29]
Ms Sridutt argued that, even if the Politburo could impose the
penalty of expulsion, the Disciplinary subrule required that
it do so
“
acting either on its own initiative or after receiving a
fully documented recommendation from the PEC
” and neither
was apparently the case. It seems to me that, where the disciplinary
proceedings proceed before the Standing
Disciplinary Committee on the
direction of the CEC (or the Politburo), the latter will be entitled
to impose a penalty of expulsion
based upon the recommendation of the
Disciplinary Committee. Even if it could not be said to be acting “
on
its own initiative
” in those circumstances, the power to
expel a member following a decision of the Standing Disciplinary
Committee must be
implied.
[30]
I turn to deal with the contentions of the first and second
respondents.I deal firstly with the two additional contentions
advanced in relation to the application of B S Ngiba.
[31]
When the application was launched, Mr Ngiba was apparently not aware
of the fact that he had already been replaced as proportional
representation councillor by Mr T R Ngubane. That fact emerged in the
affidavit of Mr Mamabolo of the Independent Electoral Commission
dated 22 August 2012. It appears that, in the light of that evidence,
the Court granted an amended
rule nisi
making specific
provision for the re-instatement of Mr Ngiba as councillor in the
stead of Mr Ngubane.
[32]
Whatever complaint may have been advanced at that time with regard to
the making of that order without express notice to Mr
Ngubane, the
order was put into effect. Mr Ngubane was removed as councillor and
has subsequently involved himself in the proceedings,
deposing to an
affidavit in support of the first and second respondent’s
position. I do not consider that Mr Ngubane’s
interest is
sufficiently direct that his formal joinder in the proceedings is
required.
[33]
There is clear authority for the proposition that, unless an
applicant stands to lose some proprietary interest, a Court should
not ordinarily intervene to prevent expulsion from a political party
(whether on a permanent or interim basis). See the judgment
of Patel
DJP (as he then was) in
Mcoye and Others vsInkatha Freedom Party;
Magwaza-MsibivsInkatha Freedom Party
2011 (4) SA298 (KZP) at page
309. Mr Ngiba clearly had a direct propriety interest owing to the
loss of his position as a Municipal
Councillor. The fact that the
first respondent had moved to have him replaced before his
application was brought cannot alter that
fact. The application was
brought to protect, in part, a clear proprietary interest.
[34]
The argument with regard to urgency is misplaced. The Court granted
the rule with interim relief and clearly determined that
the matter
was sufficiently urgent to be dealt with in August 2012. Matters of
urgency are no longer relevant to the question a
to whether the
rule
nisi
should be confirmed.
[35]
It is correct that the amended constitution contains a provision
entitling the first respondent to “recall” members
who
serve as public representatives. There is, however, a dispute as to
whether the amended constitution is in fact enforced. The
overall
probabilities would suggest that the constitution was amended in
December 2011, but it seems to me that the provision in
the amended
constitution is not directly relevant. The real issue in the internal
appeals is whether the applicants were properly
expelled from the
party. The removal of Mr Ngiba as a councillor was expressly on the
basis that he had ceased to be a member of
the party and consequently
ceased also to qualify to remain a proportional representation
councillor of the first respondent party.
[36]
Approaching the matter on the basis described in
Cambridge Plan AG
(supra), I conclude:
The
applicants’ evidence makes out a case that their expulsion
from the party was unjustified and procedurally flawed and
that an
independent appeal body might well come to that conclusion and that
the imposition of the penalty of expulsion ought
to be set aside;
Whilst
it is obviously not possible to come to any conclusion as to where
the truth lies in relation to the numerous disputes
of fact between
the parties, it is equally so that I cannot conclude that the
applicants’ version is open to such “serious
doubt”
that further interim relief is not appropriate;
In
the absence of some provision preventing the Court from doing so, it
ought to grant interim relief to preserve the
status quo
existing
immediately prior to the decisions pending the determination of the
internal appeals.
[37]
I do not consider that Section 7 of PAJA has any relevance to this
application. The application is not one for the review of
administrative action. In any event, the internal remedy in question
is the appeal. The relief sought is to operate pending the
determination of that appeal and the appeal itself can obviously not
afford that relief.
[38]
Mr Kuboni stressed that the constitution (whichever version is relied
upon) expressly provides that “
the lodging of an appeal
shall not postpone the operation of the penalty
”. The
submission is that the relationship between the applicants and the
first respondent is contractual (as dealt with in
McoyevsInkatha
Freedom Party
(supra)) and the provision in the constitution
precludes the obtaining of the relief sought.On that basis it was
contended that
the decision in
Max v Independent Democrats and
others
2006 (3) SA 112
(C) was distinguishable and that reliance
thereon would be misplaced.
[39]
The provision is expressed in the negative. It plainly excludes any
notion that the lodging of an appeal will automatically
suspend a
penalty imposed by the disciplinary body. It does not, however,
provide that the penalty necessarily
must
be served pending an
appeal. The provision does not purport to bind members to an
agreement that they will not approach a Court
for relief.
[40]
As pointed out by Davis J in
Max
(supra) at pages 120-122, (i)
where the matter involves public representation, the issue is not one
which is simply contractual,
(ii) where the suspensionof the effect
of a ruling pending an appeal is statutorily excluded, the High Court
would still be empowered
to grant relief; and (iii) the decision in
Dennis v Garment Workers’ Union, Cape Peninsula
1955 (3)
SA 232
(C) at 238H-239C was determined exclusively on the basis of
contractual interpretation.
[41]
In all the circumstances, I am persuaded that this court is entitled
to afford the applicant’s interim relief and that,
subject to
certain amendments as dealt with below, it is appropriate to confirm
the
rule nisi.
[42]
Firstly, the relief should operate pending the final determination of
the applicants’ appeals to the National Appeals
Committee and
no further. In my view, should the National Appeals Committee reject
the applicants’ appeals, any further relief
as might be
afforded to the applicants will necessarily depend on additional
factors and it would not be appropriate for this Court
to grant the
relief pending the determination unspecified proceedings which may
possibly be brought by the applicants thereafter.One
additional
factor which prompts me to reach the conclusion which I have is the
fact that the first respondent will have had it
within its power to
ensure that the appeals before the National Appeals Committee of the
first respondent were dealt with expeditiously.
Presumably it still
can do so now.
[43]
Secondly, the provisions in subparagraph 2.2 of each of the orders
granted are inappropriately phrased, because they are expressed
as
final orders setting aside the decision of the Standing Disciplinary
Committee and the Politburo (referred to therein as that
of the first
respondent). That was clearly not what was intended. It seems to me
that paragraph 2.1 of the rule
nisi
in each case is adequate
and that paragraph 2.2 can merely be deleted.
[45]
Although the provisions of the order made in 552/2012 (B S Ngiba)
relating to the removal of Mr Ngubane and the reinstatement
of Mr
Ngiba have already been carried out pursuant to the interim relief,
it remains appropriate to confirm the rule in that regard.
[46]
It seems to me that there is no reason why costs should not follow
the result and none of the parties suggested otherwise.
[47]
The orders are following the following:
Case
number: 8547/2012
The
rule nisi
in paragraph 2 of the order of this Court dated 23
August 2012 is confirmed, in the following terms:
That
pending the finalization of the Appeal procedure instituted by the
Applicant against 1
st
Respondent, the membership of the
Applicant with the 1
st
Respondent be and is hereby
re-instated with immediate effect.
That
pending the outcome of the appeal, the 1
st
, 3
rd
and 4
th
Respondents be and is hereby interdicted and
restrained from swearing in any member representing the 1
st
Respondent to replace the Applicant as Public Representative
Councillor of the 1
st
Respondent.
That
the 1
st
Respondent be and is hereby directed to furnish
to the Applicant within ten (10) days of the granting of the order
reasons for
its finding in the disciplinary enquiry against the
Applicant.
That
the 1
st
Respondent be ordered to pay the costs of this
application.
Case
number: 8552/2012
The
rule nisi
in paragraph 2 of the order of this Court dated 23
August 2012 is confirmed, in the following terms:
That
pending the finalization of the Appeal procedure instituted by the
Applicant against 1
st
Respondent, the membership of the
Applicant with the 1
st
Respondent be and is hereby
re-instated with immediate effect.
That
the 3
rd
Respondent be directed to forthwith remove Trevor
Thabani Ngubane as the replacement of the Applicant as the 1
st
Respondent’s Public Representative Councillor in the
Ethekwini Municipality.
The
3
RD
Respondent is hereafter directed to forthwith
re-in-state the Applicant as the 1
st
Respondent’s
Public Representative Councillor in the Ethekwini Municipality.
That
pending the outcome of the appeal, the 1
st
, 3
rd
and 4
th
Respondents be and is hereby interdicted and
restrained from swearing in any member representing the 1
st
Respondent to replace the Applicant as Public Representative
Councillor of the 1
st
Respondent.
That
the 1
st
Respondent be and is hereby directed to furnish
to the Applicant within ten (10) days of the granting of the order
reasons for
its finding in the disciplinary enquiry against the
Applicant.
That
the 1
st
Respondent is ordered to pay the costs of this
application.
___________________________
S
R Mullins, A J
APPEARANCES:
APPLICANT’S
COUNSEL: Ms DSridutt
Instructed
by Aziz and Associates, Durban.
FIRST
AND SECOND
RESPONDENTS
COUNSEL: Mr W S Kuboni
Instructed
by Garlicke&Bousfield Incorporated, Durban.
Date
of hearing: 27March 2013.
Date
of judgment delivered: 5 April 2013.
1
The
reference to Rule 22 is to the original (unamended) constitution
–“22 - Disciplinary tribunal” in (at page
47of the
indexed papers in case 8552/2012).It is not a reference to Rule 22
of the "amended" Constitution “public
representatives” (at page 191) as the amendment is recorded as
having occurred in December 2011.