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[2011] ZAKZPHC 1
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Mcoyi and Others v Inkatha Freedom Party, Mgwaza-Msibi v Inkatha Freedom Party (5449/2010, 8622/2010) [2011] ZAKZPHC 1; 2011 (4) SA 298 (KZP) (17 January 2011)
IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
REPORTABLE
FIRST APPLICATION:
…................................................
CASE
NO.: 5449/2010
In the matter between:
SIMINGAYESONKE WISEMAN MCOYI
…..................
FIRST
APPLICANT
NHLANHLA GOODMAN KHAWULA
…...................
SECOND
APPLICANT
SYDNEY THOKOZANI ZULU
…....................................
THIRD APPLICANT
NTHUTHUKO CROMWELL GUMEDE
…................
FOURTH
APPLICANT
and
INKATHA FREEDOM PARTY
…..............................................
RESPONDENT
SECOND APPLICATION:
…...........................................
CASE
NO.: 8622/2010
In the matter between:
VERONICA ZANELE MAGWAZA-MSIBI
….............................
APPLICANT
and
INKATHA FREEDOM PARTY
….............................................
RESPONDENT
______________________________________________________________
JUDGMENT
______________________________________________________________
PATEL DJP
Introduction:
[1] Two applications served before me on the opposed
motion roll. By agreement both were argued together and the relief
sought in
both the matters and the grounds for opposition is
substantially similar if not identical. In the first application the
first three
applicants, viz., MR
SIMINGAYESONKE
WISEMAN MCOYI; MR NHLANHLA GOODMAN KHAWULA and MR SYDNEY THOKOZANI
ZULU were former members of the INKATHA FREEDOM
PARTY (“IFP”),
a political party duly constituted according to law, and the
respondent in both the matters. The fourth
applicant, MR NTHUTHUKO
CROMWELL GUMEDE is a member in good standing of the IFP. They shall
be collectively referred to as the
applicants in the first
application. In the second application, the applicant is Ms VERONICA
ZANELE MAGWAZA-MSIBI (“Magwaza-Msibi”),
the National
Chairperson of the Respondent.
[2] In the first application the applicants seek the
following amended relief as set out in the amended order handed up by
their
Counsel at the hearing, namely:
“
1. It is declared that :
The purported expulsions of the first, second and
third applicants from respondent during May 2010 are void and of no
force
or effect.
The National Council and the National Executive
Committee of respondent have never been extant.
Alternatively to (b)
The terms of office
of respondent’s National Council and its National Executive
Committee have expired and a more than
reasonable time has elapsed
since such expiry as at May 2010.
The terms of office of the President, the National
Chairperson, the Deputy National Chairperson, the Secretary General
and the
Deputy Secretary General have expired but they remain in
office, under clause 3.6 of respondent’s constitution, solely
for the purpose of convening and holding an elective general
conference of respondent as directed in this Order.
The office-bearers of respondent, namely the President,
the National Chairperson, the Deputy National Chairperson, the
Secretary
General and the Deputy Secretary General are directed to
convene and hold an elective conference of respondent by or before
the
……..day of ……………………2010.
The deponents to the opposing affidavits are directed
to pay the costs of this application, such costs to include those
costs
consequent upon the employment of two Counsel.”
[3] Whereas in the second application Magwaza-Msibi
seeks the following relief as set out in the Notice of Motion:
“
2.1 That the Resolution of the
National Council on 2 October 2010 as annexed hereto, marked “A”
is hereby set aside.
That any adverse finding concerning the applicant on
30 October 2010 in terms of Section 10.9 of the respondent’s
Constitution
be set aside.
That the respondent holds an elective Annual General
conference and hold elections within a period of one month of the
date
of the final order of the Court herein.
That the respondent be ordered to pay the costs of
this application.
3. That the respondent be interdicted with immediate
effect from giving effect to the Resolution in “A” hereto
or to
any decision taken in terms of Section 10.9 of its Constitution
adversely affecting the applicant pending the finalization of this
application in this Court.
4. That an independent and credible company conduct
elections for the Party.
5. That the Court grant such further and/or alternative
relief to the applicant as it deems meet.”
[4] B
y agreement both the matters
were argued on the papers although there are many pertinent disputes
of fact in both the applications.
The parties having elected not to
refer any issue for the hearing of oral evidence, the test applicable
is that laid down in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634-635 (this test was affirmed by the
Constitutional Court in
Rail Commuters
Action Group and others v Transnet Ltd t/a Metrorail and others
[2004] ZACC 20
;
2005
(2) SA 359
(CC) para 53) namely, a final order can only issue if
those facts averred in the applicants’ affidavits which have
been admitted
by the IFP, together with the facts alleged by the IFP,
justify such an order provided that the denial of any fact by the IFP
of
facts alleged by the applicants’ does not raise a real,
genuine or
bona fide
dispute
of fact.
Background
[5] As pointed out earlier, the first, second and third
applicants in the first application were formerly members of the IFP,
but
were expelled by the National Council, on 9 May 2010 for alleged
divisive behaviour arising from their conduct as part of a faction
outside the structures of the IFP that called itself ‘
The
friends of VZ
’ (VZ is the abbreviated name for
Magwaza-Msibi). At the expulsion meeting 58 votes were counted in
favour of the expulsion
with no dissension which meant that the vote
was unanimous. Magwaza-Msibi participated in the deliberations and
voted in favour
of their expulsion.
[6] In the first application, the expelled applicants
challenged the lawfulness of their expulsions on the basis that the
National
Executive Committee and the National Council of the IFP, and
its office bearers, were not validly in office at the time of the
expulsions. This meant that at the time of the hearings they did not
have the power to suspend members.
[7] The applicants in the first application submitted
that the IFPs constitution creates structures and clause 4.1 provides
for
a National Council which shall consist of one hundred members.
The term of the National Council is three years. One of the functions
of the Council, as provided for in clause 4.22, is to exercise final
control over all officials. The National Executive Committee
consists
of certain office bearers and persons appointed by the President of
the IFP. Clause 4.7 provides that the term of the
National Executive
Committee shall coincide with that of the office bearers. The
argument that the applicants in the first application
make is that
the lifespan of the National Council and the National Executive
Committee is therefore limited.
[8] The applicants in the first application raised the
following points:
8.1 that the National Council did not lawfully exist in
that it did not have one hundred members, as required by clause 4.1
of the
IFPs constitution. The word ‘
shall
’ as used
in clause 4.1 was peremptory in nature and should be interpreted in a
manner consistent with the way that it was
used in other parts of the
IFPs constitution.
8.2 the expiry date of the National Council, if it in
fact did lawfully exist, would have been in June 2007 because the
Council
was elected in July 2004. However at the hearing of the
matter, by agreement with Counsel, the first application proceeded on
the
basis that the Council was elected in October 2006 with the term
of office expiring in September 2009. This was also the position
adopted by Counsel for the applicant in the second application.
8.3 the National Council and the National Executive
Committee did not enjoy the protection of clause 3.6 of the IFPs
constitution
which provided that ‘
any elected
Committee/Officer of the Party shall remain in office for a
reasonable period after the expiry of their term to allow
for the
next election to take place
’. The applicants in the first
application submitted that the purpose of clause 3.6 was to save
certain party structures and
officials for the purpose specified in
clause 3.6. Their argument was that because the National Council was
neither an elected
committee nor an officer of the IFP it did not
enjoy the protection of clause 3.6. They further submitted that the
National Executive
Committee was formed by the National Council,
which in turn was elected. Thus the National Executive Committee
could not be said
to be an elected committee and did not enjoy the
protection of clause 3.6.
8.4 if one did accept that the National Executive
Committee was protected by clause 3.6 then it must be asked whether
more than
a reasonable period had passed since the expiry of the
Committee’s term of office as well as that of its office
bearers,
since the protection afforded by clause 3.6 only operated
for a reasonable period after the expiry of the term of office. The
office
bearers of the Committee were elected in 2004 and their term
of office would have expired in June 2009. Applicants submitted that
this meant that a year had already passed and this amounted to more
than a reasonable period.
8.5 the fact that the applicants, at their hearings, did
not raise the jurisdictional point
in limine
that the National
Council was an illegitimate structure, ought not be held against
them. If the National Council was not a legitimate
structure at the
time of the hearings it did not mean that the structure became
legitimate simply because the jurisdictional point
was not raised. In
any event the fourth applicant would, at this stage, be able to now
challenge the legitimacy of the National
Council.
[9] For all the above reasons the applicants in the
first application submitted that the National Council did not
lawfully exist
at the time of the expulsions and that the expulsions
must accordingly be found to be unlawful and void.
[10] With regards to the elective conference the
applicants in the first application contended that if this court
finds that the
National Council is not in lawful existence then a
conference is required because the period for the existence of the
power structures
of the IFP would have expired. Applicants submitted
that the IFPs constitution provides for structures and if those
structures
were not lawfully in place then members of the IFP could
demand that such structures be put in place through elections.
[11] It was also submitted that the group that is
currently in power within the IFP do not want to hold the elective
conference.
According to the applicants there is no accountability
within the IFP and those in power have an autocratic approach. Those
in
de facto
control of the IFP, so it was put, were
characterised by ‘despotism and intolerance of competition’.
The first applicant
had even sent an open letter to the President of
the IFP wherein he noted his concerns about the leadership of the
party, but there
was no response to his letter. The applicants
expressed concern that the elective conference would not take place
due to the fact
that the conference had already been postponed
several times since June 2009.
[12] It was further submitted that a contract existed
between a member and the party. It would therefore be an implied
right that
if relevant structures are not present, a member, as a
contracting party, can enforce the contract and request an election.
In
the present situation, implying a term would assist members to
hold the party leadership accountable to its electorate. All that
the
applicants seek is that the court directs the IFP to honour its
contractual obligations to its members.
[13] In the second application Magwaza-Msibi’s
contentions, albeit in a nuanced form, were similar and can be summed
up as
follows:
13.1. that Section 10.9 of the IFP’S constitution
(see infra) does not empower the National Council of the IFP to hear
and
decide, as a disciplinary authority, whether a member of the IFP
has contravened a disciplinary rule as set out in Section 10.20
of
the IFP’S Constitution, since all that Section 10.9 allows the
National Council to do is to impose a sanction after the
requirements
of Section 10.9 are fulfilled. Accordingly the charges preferred
against Magwaza-Msibi by resolution dated 2 October
2010 has its
genesis in an invalid resolution and falls to be set aside.
13.2. further that the National Council as presently
constituted cannot hear the charges pursuant to the aforesaid
resolution.
13.3. Magwaza-Msibi is entitled to an order that the IFP
should schedule and hold an Annual General Conference to elect the
National
Council members generally and its National office bearers
and that she not be required to attend any disciplinary enquiry until
such time as this exercise is realized.
Respondent’s argument in both the applications:
[14] The first point made by the IFP in the first
application was that the relief sought by the applicants was
contradictory. Firstly,
it would not be possible for the court to
direct the IFP to hold an elective conference if the National Council
was found to be
an illegitimate structure. And secondly, the
applicants seek declaratory relief to operate from the time that the
court grants
such an order, but the declaratory relief in respect of
the National Council is linked to the declaratory relief with regards
to
the expulsions, which took place in 2009. This was untenable.
[15] The IFP further submitted in the first application
that the applicants chose to freely attend their hearings and were
expelled
in terms of clause 10.9 of the IFPs constitution. Clause
10.9 provides: ‘
Notwithstanding anything else in this
Constitution in its absolute discretion by resolution adopted by
two-thirds of its members
present, and after having received a report
on the relevant facts and heard the affected Member, the National
Council may impose
any disciplinary sanction against such Member,
including but not limited to his or her immediate expulsion from the
Party or may
revoke or commute any sanction imposed by any
Disciplinary Committee’
. Clauses 2.8 and 2.7 of the IFPs
constitution provide that a member should promote the unity of the
party and uphold the principles
of the party. Even though the
constitution did not make provision for a faction, clause 2.9(c)
provided a member with the right
‘
to criticise any
shortcomings in the Party at its meetings when there are due reasons
and grounds
.’
[16] The applicants in the first application were
supporters of Magwaza-Msibi and arranged a gathering outside the
structures of
the IFP. These actions caused disunity in the party.
Magwaza-Msibi had even remonstrated with them for creating disunity
in the
IFP. It was therefore necessary for the IFP to take steps
against the applicants and discipline them. The IFP submitted that
there
was nothing in the papers to suggest that the first three
applicants in the first application were unfairly or unlawfully
expelled.
It was further submitted that a court should not interfere
in a decision taken by a political party which is aimed at
disciplining
its members.
[17] Further the expelled applicants in the first
application were all represented by the same attorney,
Mr
Oosthuizen
. The first applicant only raised the jurisdictional
point that the National Council was an illegitimate structure after
being given
the decision of his expulsion. At that stage the attorney
for the IFP informed the first applicant and
Mr Oosthuizen
that such a jurisdictional point should have been taken as a point
in
limine
. Despite being told this, the second and third expelled
applicants chose not to raise any jurisdictional points at their
hearings.
The expelled applicants failed to do anything else and did
not record any displeasure after the hearings.
[18] The IFP submitted that a member of a voluntary
association may waive his right to complain of an alleged
irregularity by his
participation in proceedings of the association.
Counsel for the IFP argued that the applicants cannot choose to abide
by a process
and then argue that it was unlawful. The applicants have
in fact, through their conduct, demonstrated an abandonment of the
right
to complain that they were subjected to a disciplinary process
by an unlawfully constituted National Council. However even if the
National Council was not properly constituted the applicants have not
shown that they were prejudiced.
[19] With regard to the National Council having a
hundred members, as provided for in clause 4.1, Counsel for the IFP
argued that
the applicants reading of the clause was rigid. The word
‘
shall
’, it was submitted, ought to be interpreted
benevolently. Although the founding fathers of the IFP had
anticipated having
structures in all nine provinces, the IFP does not
have structures in all nine provinces and therefore it becomes
practically impossible
to have a hundred members. This court was
urged to favour a construction of the word ‘
shall
’
that would result in a more convenient result. In any event during
argument it became apparent that in terms of the constitution,
the
National Council did not at any time have 100 members, for reasons
which are not germane, but that this
status quo was
allowed to
remain without demur by any of the applicants in both the
applications. Magwaza-Msibi had participated in the National
Council
over the years and in particular had not only deliberated but voted
in favour of the expulsion of the first three applicants
in the first
application.
[20] The IFP disputed the second argument that at the
time of the expulsions the National Council’s term of office
had expired.
According to the IFP the National Council was elected in
October 2006, which meant that its term expired in October 2009.
Whilst
clause 4.5 provided that the term of the National Council
shall be three years clause 3.6 provided that an officer shall remain
in office for a reasonable period after the expiry of his or her
term. Due to problems within the IFP and the inability to hold
an
elective conference, it had become necessary for the members of the
National Council to remain in office. The IFP was in any
event
willing to hold a conference as soon as a proper political climate
existed. The IFP therefore submitted that the jurisdictional
points
raised by the applicants were without merit and that the arguments
raised by the applicants were not valid.
[21] With regards to the elective conference, according
to the IFP, there is no express obligation in its constitution to
hold an
elective conference. Reference was made to
Lukhele and
others v IFP and others
(Case number 7768/2010), a decision of
this court, where IFP members brought an application to compel the
party to hold an elective
conference. The court dismissed the
application with costs. This judgment does not however provide much
guidance in this matter
other than to confirm that there is no
express provision in the constitution of the IFP for the holding of
an elective conference.
With reference to the violation by the IFP in
the first application of the applicants s19 constitutional rights,
the IFP submitted
that the Constitution of the Republic of South
Africa viewed a political party as a voluntary association of
individuals united
for a common political purpose. The IFP had given
good reasons for postponing the elective conference and it did intend
holding
the conference late last year. The rights of the applicants
have not been violated but have merely been held over until a further
date. It is common cause that it took the first, second and third
applicants in the first application from 9 May 2010 to 16 July
2010
to launch an urgent application challenging their expulsions. In my
view since the matter was not heard on an urgent basis
and although
the applicants in both the applications may have been less than
circumspective in bringing the applications on an
urgent basis, no
real prejudice has been occasioned to the respondent in the manner in
which both the applications were argued
and the time I have taken in
considering this matter and giving my judgment. I accordingly need
not say anything more on the question
of urgency nor does it matter,
in view of the position I take.
[22] The respondent’s essential argument in the
second application as to whether Section 10.9 allows the National
Council
to conduct a disciplinary enquiry and impose a sanction on
Magwaza-Msibi and whether the National Council as presently
constituted
can hear the charges pursuant to and in terms of its
resolution of 2 October 2010, is that both these issues are premature
and
constitutes, what Counsel for the respondent in second
application described as, a pre-emptive strike. Further that
Magwaza-Msibi’s
contention that the term of office of the
National Council and the National Executive Committee has expired is
disingenuous since
in one breath she, in her papers, accepts that she
is the National Chairperson of the IFP and in the next breath she
argues that
her term of office has expired. This approbation and
reprobation is not tenable in law and the interpretation she
constrains for
of the relevant provisions of the IFP’s
Constitution is incorrect and impractical.
Application of the law
[23] A court should be reluctant to interfere in what
are essentially political questions and therefore it is not necessary
to go
into details of the events leading to the first, second and
third applicants expulsion from the IFP, suffice to say that from the
papers it is clear that there is an internecine conflict going on in
the IFP. The schism is manifest in two rival factions and
despite
Magwaza-Msibi’s protestation the schism is between those of her
supporters and what has been described, whether charitably
or not, as
the ‘old guard’. The struggle between the factions is for
mastery of the soul and membership of the IFP
and hence the
pejorative terms used by one to describe the other. I do not want to
dwell on these tendentious appellations by the
one of the other or on
the obloquy hurled by the one side onto the other as manifest from
the various annexures attached to the
papers, since such issues
should best play itself out in the political arena. I shall therefore
through the process of interpretation
determine the proper meaning of
the relevant clauses of the IFP’s Constitution.
The legitimacy of the National Council
[24] It must be mentioned at the outset that this court
finds it strange that the expelled applicants did not have a problem
with
the legitimacy of the National Council prior to their
disciplinary hearings but only choose to attack the legitimacy of the
Council
after their expulsions.
Mr Oosthuizen
further chose
not to raise any jurisdictional points
in limine
at the
hearing of the second and third applicants. Applicants submitted that
their attorney ‘
did not raise the issue again because he was
already told it was too late to do so
’. This reasoning is
simply illogical.
[25] Clause 4.1 of the IFPs constitution provides that:
‘
there shall be National
Council of the Party, which shall consist of one hundred (100)
members, seventy five (75) of whom shall
be elected by Party
Structures’.
It is not disputed that at the time of the expulsions
the National Council did not consist of a hundred members. Even the
first
applicant conceded that the National Council ‘
has
never had 100 members since the election in 2004)
. In any event,
as will become apparent, Magwaza-Msibi has been a member of long
standing and at no time did she object to the
status quo
and
participated fully in all the deliberations of the National Council.
[26] Both parties then asked this court to interpret the
word ‘
shall
’, as found in clause 4.1, differently.
Applicants favoured a strict approach whilst the IFP wanted a
benevolent approach.
In
Garment Workers’ Union v De Vries
and others
1949 (1) SA 1110 (W) the basic
principles and manner of approach were expounded as follows at 1129:
‘
In considering questions
concerning the administration of a lay society governed by rules, it
seems to me that a Court must look
at the matter broadly and
benevolently and not in a carping, critical and narrow way. A Court
should not lay down a standard of
observance that would make it
always unnecessarily difficult - and sometimes impossible to carry
out the constitution. I think
that one should approach such enquiries
as the present in a reasonable commonsense way, and not in the fault
finding spirit that
would seek to exact the uttermost farthing of
meticulous compliance with every trifling detail, however unimportant
and unnecessary,
of the constitution. If such a narrow and close
attention to the rules of the constitution are demanded, a very large
number of
administrative acts done by lay bodies could be upset by
the Courts. Such a state of affairs would be in the highest degree
calamitous
- for every disappointed member would be encouraged to
drag his society into Court for every trifling failure to observe the
exact
letter of every regulation.’
Where certain provisions in a constitution are fairly
open to two constructions the one having the more convenient result
will be
followed (see
Deutsche Evangelische Kirche zu Pretoria v
Hoepner
1911 TPD 218
at 232). Similarly in
Ward v Cape
Peninsula Ice Skating Club
1998 (2) SA 487
(C) at 500I-501C it
was held that in cases of doubt the constitution of a voluntary
association should be interpreted so as to
lead to preservation of
rights rather than their destruction and to a result convenient to
its members.
[27] In this case it is clear that there would be chaos
if one had to interpret clause 4.1 as being peremptory. The IFP and
its
members would be thrown into a state of disarray and this would
not be a wise thing to do. The better option might be for the IFP
to
amend its constitution so as to provide clarity in this regard.
Presently there is no provision made in the constitution for
non-compliance with clause 4.1.
[28] The matter also proceeded on the basis that the
term of office of the National Council expired in October 2009.
Clause 3.6
makes reference to a ‘
reasonable
period
’
and once again this court must
decide on the interpretation of a clause contained in the IFPs
constitution.
‘
Reasonable
’
is a relative term and what is reasonable depends upon
the circumstances of each case. Even though the term of office of the
National
Council and its office bearers expired in 2009 the IFP did
not have much of a choice other than to retain the office bearers
that
it had in place at that time. If it did not do so then more
turmoil would have resulted within the party. It could not have been
the intention of the drafters of the IFPs constitution, that upon the
expiry of three years that the National Council would cease
to exist.
Having regards to the circumstances of this case it must be found
that the National Council and its office bearers have
been preserved
by clause 3.6 since the relevant committee/officers will have to have
their necessary powers until the next election
in order that relevant
decisions relating to the governance of the IFP can be taken on a
daily basis.
[29] The applicants have not shown that the illegitimacy
of the National Council resulted in them being prejudiced at their
hearings.
In
Garment Workers' Union v De Vries
supra the
following was said at 1123:
‘
Assuming, however, that I am
wrong in these conclusions, there is still not a jot or tittle of
evidence to prove that the petitioner
suffered any prejudice by the
selection of the wrong date. In
Spiliopoulos
and Another v The Hellenic Community of Johannesburg and Others
(1938 WLD 160
at p. 166) Greenberg, J, pointed out, in a case similar
to the present, that an applicant must show that its rights have been
violated
“by a diminution of the effect of its votes through
the voting of a substantial number of persons who were not entitled
to
vote” - and perhaps I might add: or by the failure of
persons to vote who were entitled to vote, by reason of the
irregularity
complained of and who affirm that they would have
supported the petitioner's nominee. Nothing of the kind has even been
alleged,
much less proved.’
At the hearing of the first three applicants in the
first application there was a unanimous vote (58) in favour of the
expulsions.
Therefore no prejudice arose and the applicants have
further failed to show that they suffered any prejudice other than
that they
personally will not be able to vote. Magwaza-Msibi will
only know her fate once she attends a disciplinary meeting. Until
such
time she is a member of the IFP.
Elections
[30] A political party is a voluntary association, and a
voluntary association is founded on the basis of mutual agreement
which
entails an intention to associate and consensus on the
essential characteristics and objectives of the association (see
Yiba
and others v African Gospel Church
1999 (2) SA 949
(C). As to the
relationship between a party and its members this court was referred
to the decision of
Matlholwa v Mahuma and others
[2009] 3 All
SA 238
(SCA) where it was observed at para 8 that the relationship is
a contractual one, the terms of the contract being contained in the
constitution of the party.
[31]
The fact that a political party
is a voluntary association raises the question as to whether a court
has jurisdiction to interfere
when the party expels one of its
members. In
Snyman v Vrededorp Electoral
Division Committee of the National Party of the Transvaal
1929
WLD 138
, the court held that members of the political party did not
enjoy any proprietary interests in the party. The court also held
that
the membership benefits were limited to the right to associate
with the other members in meetings together with the eligibility
of
holding certain honorary offices. The court found that benefits of
this kind are not rights that the court could enforce either
by
specific performance or by injunction. The court dismissed the
application with costs.
[32]
The applicant must demonstrate to the court that he or she stands to
lose some proprietary interest if he or she is expelled
from the
party. Proprietary interest has been established in cases where the
party members were also municipal councillors by virtue
of their
membership of the party (see
Sibiya &
others v Inkatha Freedom Party & others
[2006] JOL 17118
(N);
Shunmugam and
others v The Newcastle Local Municipality and others; The National
Democratic Convention v Mathew Shunumugam and others
[2008] 2 ALL SA 106
(N)). Proprietary interest has also been
established in cases where the affected party member was also a
member of the provincial
legislature (see
Max v Independent
Democrats and others
2006 (3) SA 112
(C) at 115G – H;
Diko
and others v Nobongoza and others
2006 (3) SA 126
(C) at 127E –
F;
Matlholwa
supra). In all the above matters the applicants
held public positions that were external to the party to which they
belonged. In
the present matter, Mgwaza-Msibi alleged that she is a
member of the IFP and is its National Chairperson. She has not
alleged that
she holds any position outside her party’s
structures. Furthermore, the IFP constitution provides for
subscriptions from
members but it does not indicate that the members
enjoy shares in the subscription fund. Accordingly, like the first
three applicants
in the first application, Magwaza-Msibi only stands
to lose benefits such as her right to associate with her fellow party
members
and her eligibility to hold offices such as National
Chairperson. It is submitted that these benefits are not rights that
a court
can enforce by means of injunction.
[33] Members of the IFP have their rights spelt out in
clause 2.9 of its constitution. Two such rights include the right to
criticise
and the right to request the party to consider any
petitions or requests. The first applicant only wrote a letter to the
IFP President
in June 2010, in which he openly criticised the
leadership of the party.
[34] In this case one must take into account the reasons
for the elections not taking place. Some of the reasons include the
lack
of preparedness of the party’s branches, the failure of
the branches to meet the deadline for inauguration as well as the
disunity that prevailed within the party. Further, and this is an
extremely important point, namely, that the President of the
IFP has
been informed by the National Commissioner of Police that the
political climate is not right for the holding of a conference
because the National Commissioner fears that there will be a violent
internecine conflict. If there is a dispute about this very
important
fact, an application of the
Plascon-Evans
test will result in
such dispute being resolved in favour of the IFP.
[35] Nowhere does the constitution make reference to a
clear right to an elective conference. The applicants would like this
court
to imply such a right. In
Jacobs v Old Apostolic Church of
Africa and another
1992 (4) SA 172
(Tk) the court dismissed an
application for an order directing the respondents to make the books
of account and financial records
of the Church available to a member,
where the court held that it was clear that a member of the Church,
under its constitution,
did not enjoy the right to inspect its books
of account and financial statements and that it could not be inferred
by necessary
implication from the constitution, that the applicant
enjoyed such a right.
[36] Whether or not such a right can be inferred is to
be determined in accordance with the principles applied in
Union
Government (Minister of Railways and Harbours) v Faux, Ltd
1916
AD 105
where Solomon JA said the following at 112:
‘
Now it is needless to say that
a Court should be very slow to imply a term in a contract which is
not to be found there. . . . The
rule to be applied by a Court in
determining whether or not a condition should be implied, is well
stated by Lord Esher in the
case of
Hamlyn
& Co. v Wood & Co.
(1891) 2 Q.B.D 491
, as follows:
“
I have for a long time
understood that rule to be that a Court has no right to imply in a
written contract any such stipulation,
unless, on considering the
terms of the contract in a reasonable and business manner, an
implication necessarily arises that the
parties must have intended
that the suggested stipulation should exist. It is not enough to say
that it would be a reasonable thing
to make such an implication. It
must be a necessary implication in the sense that I have mentioned.”
[37] And in
Kelvinator Group Services of SA (Pty) Ltd
v McCulloch
1999 (4) SA 840
(W) at 844A-G Nugent J pointed out
that a term, to be imputed, must not merely be reasonable or
convenient, but necessary, and
that ‘there can be no room for
such a term if it would be in conflict with the express provisions of
the agreement’.
Lewis JA re-emphasised this line of reasoning
in
Transnet Ltd v Rubenstein
2006 (1) SA 591
(SCA).
[38] Taking the above considerations into account, this
court finds that a term entitling the applicants to demand an
elective conference
cannot be implied in the IFPs constitution. The
result of doing so would be undesirable. At the end of the day the
applicants voluntarily
bound themselves to the party and its
constitution.
[39] The applicants in the first application have not
shown that there has been a violation of any of their rights, as
contemplated
in either s19 of our Constitution or clause 2.9 of the
IFPs constitution. In any event, in argument before me, Counsel in
the first
application did not persist with any argument that the
rights of these applicants in terms of s19 of our Constitution had
been
violated.
[40] As far as the second application is concerned, I am
in agreement with Counsel for the IFP that Magwaza-Msibi, having been
charged
to appear before the National Council under Section 10.9, has
the right to appear and submit as a point
in limine
that the
National Council does not have any jurisdiction. The principle reason
advanced by her for the National Council not having
power under
Section 5.10.9 to charge her, was that Section 10.9 only applies to
the issuing of a sanction and further that the
National Council, as
presently constituted, may not hear the charges against her. One
should not anticipate the outcome of the
hearing.
[41] The National Council is the plenary body of the IFP
to which all committees, including the committees dealing with
disciplinary
matters report. Magwaza-Msibi is no ordinary member but
the Chairperson of the IFP and thus the National Council, logistical
considerations
aside, cannot only bring the charges, but can also
hear her and impose the necessary sanction. Both by express language
used in
Section 10.9 and if needs be by implication, the National
Council may so act. A practical and common sense approach to the
interpretation
of Section 10.9 is that it allows for the National
Council, in appropriate cases, to make findings on both guilt and
sanction and
not sanction only. To hold otherwise would mean that the
National Council would, irrespective of any defects in the
disciplinary
hearing or further representations made by a person who
has been the subject to disciplinary proceedings, be bound to impose
a
sanction once the disciplinary committee has made a finding of
guilt. Section 10.9 presents in clear language, the right of an
affected member to a hearing before the National Council. This
purposive interpretation accords with what actually happened as
regards the hearing of the three applicants in the first application.
Furthermore Magwaza-Msibi participated fully in this hearing
in terms
of Section 10.9. Accordingly therefore for Magwaza-Msibi to approach
this court at this stage is premature.
[42] Further Section 10.9 specifically states,
“
Notwithstanding anything else in the Constitution and at
the National Council’s complete discretion a resolution may be
passed.
’ The language of Section 10.9 clearly allows the
National Council at its complete discretion; to receive a report
containing
evidence about a members conduct; hear the member’s
response thereto; to take a resolution as to whether such member is
guilty
or as the case may be, not guilty; and if found guilty to
impose a sanction. By no stretch of the imagination can it be said
that
the National Council acts merely as a rubber stamp to the
finding of guilt by a disciplinary committee.
[43] Moreover it is relevant when interpreting a
constitution which is akin to a contract, to understand how the
parties have applied
the terms in the past and how they have
interpreted these terms (see
Dettman v Goldfain
and another
1975 (3) SA 385
(A) 399 and
MTK Saagmeule (Pty) Ltd vs Killyman
Estates (Pty) Ltd
1980 (3) SA 1
(A) 12. A customary practice
which has developed in the application of a constitution or provision
is a good guide as to what the
drafters intended. In
Lewis v
Heffer and others
[1978] 3 ALL ER 354
(CA) Lord Ormrod who
concurred with Lord Denning, had the following to say about the
interpretation of rules of a political party
at 367:
‘
Rules of association of this
kind ultimately derive their legal effect from the acceptance, by the
members, of the terms and conditions
of the association when they
join the group.
Where
there is an established and well-known and unquestioned practice in
use in the association it is some evidence, and indeed
it may be
strong evidence, that this practice too is part of the terms and
conditions which are accepted by persons joining the
association
.
Consequently there are sound reasons for including such a practice as
suspension by the NEC in the rules by a process of implication.
If
one adopted the contrary view,
it
must require an extraordinarily strong and clear case to justify the
court in holding a well-established practice like this to
be
unconstitutional or ultra vires
,
more particularly where the organisation concerned is a voluntary,
unincorporated and essentially informal body.’(my emphasis)
Lord Denning on the other hand in his opinion found at
363 that:
‘
The NEC have exercised
disciplinary powers over the local Labour Parties or their members.
When there have been dissensions within
a local party, the NEC have
held enquiries and reorganised them. They have expelled members and
suspended them. All these measures
have been reported to the annual
party conference and no exception has been taken to them, or no
serious exception as far as I
can see.
In
a body like this, rules are constantly being added to, or
supplemented by, practice or usage: and, once accepted, become as
effective as if actually written
.’(my
emphasis)
[44] As I have stated before Magwaza-Msibi accepted the
interpretation accorded by the officials of the IFP until she was
charged
and this application was brought. It may well be that she
sought legal opinion and realized that her interpretation was
incorrect
and that there was a lacuna in the constitution. This court
cannot for that reason re-write the constitution for the IFP. Section
10.9 gives the National Council discretion to pass a resolution,
including the resolution passed charging Magwaza-Msibi. Such a
resolution must be passed by a two-thirds majority of members of the
National Council present. This requirement provided the first
three
applicants in the first application, and will provide Magwaza-Msibi,
with the necessary protection, should she be tried against
any
particular bias or one sided approach to her hearing. If
Magwaza-Msibi would have this court believe that until she sat in
the
hearing of the first three applicants in the first application, the
National Council was properly constituted and unbiased,
I find it
difficult to understand how the same members of the National Council
would become biased when her matter is to be heard.
Even if her
complaint is premised on bias of some members of the National Council
then she can ask for their recusal. In any event,
even if her
perception is that her hearing in terms of Section 10.9 will be
procedurally unfair, then and in that event she has
the necessary
remedies both before and after the hearing of the matter. Her
approach to court is in my view premature.
[45] In conclusion I might mention that it will not be
politically or legally expedient for the IFP to delay the conference
for
any length of time since an inordinate delay may provide the
applicants in both applications with a further opportunity to
challenge
the decision of the IFP in delaying the holding of the
conference.
Order
[46] In the event I make the following order:
46.1 Both the applications are dismissed with costs such
costs to
include the costs of two Counsel.
___________________
PATEL DJP
DATE OF HEARING: 12 NOVEMBER 2010
DATE OF JUDGMENT: 17 JANUARY 2011
IN THE FIRST APPLICATION
:
COUNSEL FOR APPLICANTS: O A MOOSA SC
ADV. A J BOULLE
INSTRUCTED BY: NGUBANE & PARTNERS INC.
(REF.: MR NGUBANE/nm/Z99)
(TEL: 031- 305 1118)
COUNSEL FOR RESPONDENT: A M STEWART SC
ADV. MAX DU PLESSIS
INSTRUCTED BY: (LOURENS DE KLERK ATTORNEYS)
(REF.: LJ DE KLERK/D1305R)
(TEL: 031- 307 1974)
IN THE SECOND APPLICATION
:
COUNSEL FOR APPLICANT: KEMP J KEMP SC
ADV. M M MTHEMBU
INSTRUCTED BY: (MASEKO MBATHA & ASSOCIATES)
(TEL: 031- 309 2865)
COUNSEL FOR RESPONDENT: ANTON KATZ SC
ADV. ANDREAS COUTSOUDIS
INSTRUCTED BY: (LOURENS DE KLERK ATTORNEYS)
(REF.: LJ DE KLERK/D1317r)
(TEL: 031- 307 1974)