Federal Congress (Fedcon) and Others v Ngwenya and Others (2283/09) [2009] ZAKZPHC 46 (21 September 2009)

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[2009] ZAKZPHC 46
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Federal Congress (Fedcon) and Others v Ngwenya and Others (2283/09) [2009] ZAKZPHC 46 (21 September 2009)

IN THE HIGH
COURT OF SOUTH AFRICA
KWAZULU-NATAL,
PIETERMARITZBURG
CASE
NO: 2283/09
In the matter
between:
THE
FEDERAL CONGRESS (FEDCON) First Applicant
MATTHEW
SHUNMUGAM Second Applicant
GIJIMANI ALFRED
MNCUBE Third Applicant
THEMBESILE MARY
MARGARET PHIRI Fourth Applicant
And
LOUIS
MBEKI NGWE
NYA First
Respondent
CYPRIAN ZIPHO
NGOBESE Second Respondent
NHLANHLA
MTHABELA Third Respondent
PHAKAMANI
MCHUNU Fourth Respondent
THE ELECTORAL
COMMISSION OF
SOUTH
AFRICA Fifth Respondent
CHIEF ELECTORAL
OFFICER Sixth Respondent
NEWCASTLE
MUNICIPALITY Seventh Respondent
THE MUNICIPAL
MANAGER, NEWCASTLE Eighth Respondent
AMAJUBA
DISTRICT MUNICIPALITY Ninth Respondent
THE MEMBER OF
THE EXECUTIVE COUNCIL
OF
KWAZULU-NATAL Tenth Respondent
BHEKILANGA
ALISON DLAMINI Eleventh Respondent
J
U D G M E N T
delivered
on
MADONDO J:
Introduction
[1]
Initially
the applicants had sought relief in the following terms:
“
1.1. An
order directing that Bhekilanga Alison Dlamini is joined in these
proceedings as the Eleventh Respondent.
1.2.
That the Second and Third Applicant’s purported expulsion from the
First Applicant is hereby set aside and they are declared
to have
remained as Councillors of the Seventh Respondent’s Council.
1.3.
That the Fourth Applicant’s purported expulsion from the First
Applicant is hereby set aside and she is declared to have remained
a
Councillor of the Ninth Respondent’s Council.
1.4.
It is declared that the Fifth Respondent’s purported replacement of
the Third Applicant by the Third Respondent as a Councillor
of the
Seventh Respondent was unlawful and invalid and is hereby set aside.
1.5.
It is declared that the Fifth Respondent’s purported replacement of
the Fourth Applicant by the Eleventh Respondent as a Councillor
of
the Ninth Respondent was unlawful and invalid and is hereby set
aside.
1.6.
The
Seventh, Eighth and Ninth Respondents are directed to take such steps
as may be necessary to recognise the status of the Second,
Third and
Fourth Applicants as Councillors of the Seventh and Ninth
Respondents, respectively.
1.7.
An order directing the First to Fourth Respondents, jointly and
severally, to pay the costs of the application.”
[2] When
the matter came before me on 15 June 2009 an
d
after listening to argument it became evident that the said
Bhekilanga Alison Dlamini had an interest in the outcome of the
proceedings.
It is for that reason that I, on that date, made an
order joining him in the proceedings as the Eleventh Respondent.
[3] At the
conclusion of argument on 15 June 2009 Mr Salmon, who appeared for
the applicants, applied for an amendment of the Notice
of Motion the
effect of which would be to seek a relief setting aside the purported
expulsion of the First Applicant under paragraph
3 of the Notice of
Motion.
[4] After
listening to argument I reserved Judgment on the issue and, having
careful considered the matter, I have concluded that,
in applying for
the said amendment, the applicants did not act
mala
fide
and
further that the proposed amendment will not cause any injustice and
prejudice to the Respondents (see
Davonian
Shipping Limited vs MV Luis (Yeoman Shipping Co. Ltd. intervening)
1994(2) SA 363(C) 369 F-I
)
It is for those reasons that I have decided, as I hereby do, to grant
the said amendment. The Notice of Motion will therefore,
for the
purpose of the present Judgment, now read as follows:-
4.1 That
the second and third applicants’ purported expulsion from the first
applicant is hereby set aside and they are declared
to have remained
as Councillors of the seventh respondent’s council.
4.2 That
the fourth applicant’s purport
ed
expulsion from the first applicant is hereby set aside and she is
declared to have remained a Councillor of the ninth respondent’s

council.
4.3 It is declared
that the fifth respondent’s purported replacement of the third
applicant by the third respondent as a councillor
of the seventh
respondent was unlawful and invalid and is hereby set aside.
4.4 It is declared
that the fifth respondent’s purported replacement of the fourth
applicant by the eleventh respondent as a Councillor
of the ninth
respondent was lawful and invalid and is hereby set aside.
4.5 The seventh,
eighth and ninth respondents are directed to take such steps as may
be necessary to recognised the status of the
second, third and fourth
applicants as Councillors of the seventh and ninth respondent,
respectively.
4.6 An order
directing the first to fourth respondents, jointly and severally, to
pay the costs of the application.
Parties
[
5]
The First Applicant is the Federal Congress (Fedcon) a political
party duly registered as such in terms of
Section 15
of the
Electoral
Commission Act, 51 of 1996
, Constitution of which is lodged with the
Independent Electoral Commission, and having its principal place of
business at Shop
Number 11, H & R Centre, 7 Voortrekker Street,
Newcastle, KwaZulu-Natal.
[6
]
The Second Applicant is Mathew Shunmugan, a major male Ward 3
councillor in the Newcastle Local Council, KwaZulu-Natal, elected

into that position by way of ward elections held in terms of the
Local Government: Municipal Structures Act, No.117 of 1998 (Municipal

Structures Act),and the chairman of the First Applicant’s Interim
Executive Committee.
[7
]
The Third Applicant is Gijimani Alfred Mncube, a major male
representative of the First Applicant in the Council of the Newcastle

Local Municipality and the national organiser of First Applicant.
[8
]
The Fourth Applicant is Thembisile Mary Margaret Phiri, a major
female representative of the First Applicant in the Council of

Amajuba District Municipality, residing at 17 Patak Street,
Dannhauser, KwaZulu-Natal.
[
9]
The Fifth Applicant is Thenjiwe Veronica Buthelezi; a major female
representative of the First Applicant in the Council of the
Ninth
Respondent.
[10
]
The Sixth Applicant is Chuan Yi Liu, a major male PR councillor
representing the First Applicant in Municipal Council of the Ninth

Respondent.
[
11]
The First Respondent is Louis Mbeki Ngwenya, a major businessman and
the Secretary-General of the First Applicant of 7 Drive,
Dundee,
KwaZulu-Natal. The Second Respondent is Cyprial Zipho Ngobese, a
major male councillor and the Deputy Secretary –General
of the
First Applicant, residing at Nquthu, KwaZulu-Natal. The Third
Respondent is Nhlanhla Mthabela, a major male residing at
23 Mental
Street, Newcastle; The Fourth Respondent is Phakamani Mchunu, a major
male residing at Newcastle.
[12]
The Fifth Respondent is The Electoral Commission of South Africa,
established in terms of section 181 (1) of the Constitution
of the
Republic of South Africa (the Constitution) read with
section 3
of
the
Electoral Commission Act, 51 of 1996
and having head office in
KwaZulu-Natal at Westville Civic Centre, William Lester Drive,
Westville, KwaZulu-Natal. Cited herein
by the virtue of the functions
it fulfils in Municipal Election in terms of Structures Act.
[
13]
The Sixth Respondent is The Chief Electoral Officer, appointed by
Fifth Respondent in terms of
section 12
of the
Electoral Commission
Act and
whose head office in KwaZulu-Natal is situate at the same
address as that of Fifth Respondent.
[14]
The Seventh Respondent is The Newcastle Municipality, a local
Municipality established in terms of section 12 of the Structures

Act, and having its offices at Civic Centre Murchison Street,
Newcastle, KwaZulu-Natal. The Eighth Respondent is The Municipal

Manager of Seventh Respondent and whose place of employment is at the
same address as that of Seventh Respondent.
[15]
The Ninth Respondent is The Amajuba District Municipality,
established in terms of section 12 of Municipal Structures Act,
and
having its offices at Amajuba Building, Main Street, Section 1,
Madadeni, Newcastle, KwaZulu-Natal.
[16]
The Tenth Respondent is a member of the Executive Council of
KwaZulu-Natal responsible for Local Government whose offices are

situate at FNB House Redlands Estate, Pietermaritzburg, KwaZulu
Natal. The Eleventh Respondent is Bhekilanga Alison Dlamini, a
major
male residing at House 3849, Osizweni, Newcastle.
Factual
Background
[1
7]
The underlying facts in this matter are the following. As a result of
a split that occurred in the First Applicant arising from
a decision
of the First Applicant’s National Management Committee (Manco), and
endorsed by the membership of the party at its
general meeting, it
was decided that the First Applicant withdraw from the alliance with
the Inkatha Freedom Party (IFP) and that
it should form partnership
with other parties which it was felt were sincere about their
relationship with the First Applicant
(the party).It was decided that
it would be in the best interest of the party to withdraw from the
alliance with the IFP as it
was felt that no real political benefits
accrued to the party from that alliance.
[
18]
The Second to Fourth Applicants supported the move but the First
Respondent and the minority section of the party led by him
opposed
it. The First Respondent was a member of Manco and the Secretary
–General of the party. The Second to the Fourth Applicants
were
perceived as intending to sever the party’s ties with the IFP in
order to form a partnership with the African National Congress
(ANC).
It was feared that the party would, by so doing, contravene an
alliance agreement it had with the Multiparty Government
in the
municipalities that oppose the ANC. In order to prevent that from
occurring, the applicants were expelled from the party.
[1
9]
The First Applicant, (Fedcon), has its origin in the National
Democratic Convention (Nadeco) which, in turn, was an offshoot
of the
IFP. During March 2006 Nadeco contested municipal elections and won
a number of seats on various municipalities, including
the Seventh
and Ninth Respondents. The Second to Sixth Applicants were elected
as councillors on the Nadeco ticket: The Second
Applicant was
elected as a councillor of Seventh Respondent in ward 3. The Third
and Sixth Applicants were elected on a proportional
representation
(PR) as councillors of the Seventh Respondent. The Fourth and Fifth
Applicants were elected as PR councillors on
the council of Ninth
Respondent.
[
20]
Fedcon was established in the lead-up to a floor crossing window
period, in September 2007. During the floor crossing window
period a
number of Nadeco councillors, including the Second to Sixth
Applicants, crossed the floor and joined Fedcon. On 30 September
2007
an interim executive committee was elected at Fedcon general meeting
to perform the duties of a Federal Executive Council
until permanent
office bearers were elected at the National Conference. On 6 October
2007, a constitution of Fedcon was adopted.
Since Fedcon had not yet
had a formal conference as contemplated by its constitution, Manco
was elected to do a day to day running
of the party. The Second and
Third Applicants and the First and Second Respondents were members of
Manco.
[21]
At the time when Fedcon was established, the then existing Nadeco
structures namely; Newcastle Constituency and the Amajuba
District
Committee, switched to Fedcon and functioned as the organs of Fedcon.
Since all the districts of Fedcon had not held conferences,
the then
existing Nadeco structures continued to function as executive
committees. In terms of the constitution of Fedcon (party

constitution) each district was to be divided into constituencies and
committees of which were to be elected after every three
years at the
Constituency Annual General Meeting. Since no Fedcon constituency
committee was ever elected in terms of the party
constitution, Nadeco
constituency committees continued to function as Fedcon structures.
[22]
The disciplinary functions of the party were, in terms of the
Constitution, reserved for the Constituency Disciplinary Committees,

District Disciplinary Committees, Provincial Disciplinary Committees,
a National Disciplinary Committee and a National Appeal Committee.
[23]
Conflicts within Fedcon resulted in a spate of purported expulsions
of its members and a plethora of Court applications. The
first to be
expelled were the Third and Fourth Applicants. According to the First
Respondent, on 27 October 2008, he attended the
residence of the
Third Applicant where he personally served upon him a notice advising
him of his expulsion from the party. On
the same date and at the
Fourth Applicant’s residence situate in Paddock Street, Dannhauser,
the First Respondent further states,
he served a minute upon the
Fourth Applicant notifying her of her expulsion from the party.
Secondly, regarding the Second Applicant’s
expulsion from the
party, a notice to that effect was, according to the First
Respondent, handed over to him at his funeral parlour
at Newcastle.
[
24]
All the aforesaid three Applicants deny that the said notices of
expulsion were ever served upon them, their version being that
those
notices were shown to them by third parties at various occasions.
[2
5]
In any event, it would appear that certain people accepted that those
Applicants had been lawfully expelled from the party, as
it would
appear that the provisions of Item 1 of Schedule 6B of the
Constitution were invoked and the Third and Fourth Applicants
(who
had been nominated by the party) ceased to be members of the Seventh
and Ninth Respondents respectively, and, in their places,
the Third
and Eleventh Respondents were purportedly nominated by the First and
second Respondents to fill the positions of those
Applicants on the
respective Councils.
[2
6]
The position of the Second Applicant was, however, different in that
in his case, he had been nominated by the party as a candidate
during
the ward elections and had, during those elections, been elected to
represent the party in the Seventh Respondent. In his
case, the
provisions of section 25(3) of Municipal Structures Act would have to
kick in, which provide:-
“
The
municipal manager of the municipality concerned, after consulting the
Electoral Commission, must by notice in the local newspaper
call and
set a date for the by-election , which must be held within 90 days of
the date –
…
…
…
or
On which
the vacancy occurred if subsection 1(d) applies.”
[27
] The
aforegoing accordingly constitutes a synopsis of the facts against
the background of which the Applicants launched the present

application.
Issues
[28] The
issues to be determined by the Court in this matter are accordingly
the following:-
28
.1 Whether
the purported expulsions of the applicants from the party were
effected by a structure or structures which were constitutionally

empowered to do so;
28
.2 If
so, whether that structure or those structures were properly
constituted at the time when they purported to expel the applicants;
28
.3 If
the answers to both of the above mentioned enquiries are in the
affirmative, did that structure or those structures follow
a proper
procedure when they purported to expel the applicants.
[2
9]
On the first issue, the First Respondent declares that the
constitutionally mandated structures of the party were responsible

for the expulsion of the applicants from the party, a version which
is vehemently denied by the applicants.
[
30] It
has already been pointed out in this Judgment that, in terms of the
party constitution, the disciplinary functions of the
party,
including the powers of expulsion, were reserved for the party’s
Constituency Disciplinary Committees, the party’s District

Disciplinary Committees, the party’s Provincial Disciplinary
Committees, the party’s National Disciplinary Committee and the

party’s National Appeal Committee. I have perused and carefully
considered copies of the letters of expulsion which were allegedly

served by the First Respondent upon the three applicants and what
struck me as being unusual is the fact that nowhere in these
letters
is it stated that those applicants had been expelled by members of
any of those structures. Besides, the perusal of these
letters will
reveal that two of them were signed by the First Respondent and that
the third one by the Second Respondent. Again,
one would have
expected such important letters to be written under a signature of a
member, preferably a Chairman or even a Secretary,
of any of the
structures concerned.
[31] Furthermore,
if indeed those structures had sat and taken a decision or decisions
to expel the applicants from the party, one
would reasonably have
expected for the record of that meeting or meetings to be in
existence in the form of minutes which would
be annexed unto First
Respondent’s answering affidavit. However, no such record or
records have been brought to the attention
of the Court. Considering
the high positions occupied by the first Respondent in the First
Applicant, the claims that he has been
barred from entering the First
Applicant’s offices are so untenable as to be susceptible to
rejection as being false beyond all
doubt as it is evidenced in the
confirmatory affidavit of the office assistant in the Head office of
the First Applicant which
has been filed on record in this matter.
[
32] In
any event, in case no 14831/08 and in paragraph 22 of Second
Applicant’s founding affidavit the said applicant declares
that,
upon perusing the minutes of the meetings held by the Executive
Council of the First Applicant, he had established that no
formal
disciplinary enquiry was ever held in respect of Alfred Mncube, Phiri
and/or the Second Applicant himself. In his answering
affidavit, and
in sub-paragraph 10.10 thereof, the First Respondent admits these
allegations.
[33] What
is also bound to attract criticisms at the First Respondent’s case
on this issue is a statement which he made under
oath in connection
with the issue under discussion and which he later recanted.
[3
4] In
case number 14831/08, he deposes to an answering affidavit in which
he,
inter
alia
,
declares that the body which had expelled the Second Applicant from
the party was the Manco of the party. The truthfulness of
this
allegation was confirmed by the Second Respondent in his confirmatory
affidavit filed in those proceedings. It was only after
Marnewick
AJ
(who presided in those proceedings) had found that Manco did not have
the powers to expel a member from the party that, in his
answering
affidavit in the present proceedings, the First Respondent conceded
that, indeed, Manco had no such powers, claiming
that, when he had
earlier said so under oath, he had made an error, without giving an
explanation as to how he could have made
such an inexplicable error.
[
35] In
view of the aforesaid factors, it would appear that the First
Respondent’s version on the issue is not only farfetched
but it
also untenable, which follows that, the applicants’ contention that
they were not expelled from the party by the Constitutionally

Mandated Structures, is inherently credible and should be preferred
(
Plascon-Evens
Paints v Van Riebeeck Paints 1984(3) SA 623 (AD)at 635 A-B).
The dispute of fact on the issue should accordingly be resolved in
applicants’ favour and I am therefore not satisfied that the

purported expulsions of the applicants from the party were effected
by any of the structures which are empowered by the Constitution
to
do so.
[3
6] Strictly
speaking, having decided the first issue in favour of the applicants,
it is not necessary to deal with the rest of the
issues. However, for
the sake of clarity and definiteness, perhaps, it would be advisable
to deal with those issues as well.
[37
] In
terms of the party Constitution, a Constituency Disciplinary
Committee shall consist of the Chairperson, Secretary and three

members from the Constituency appointed at a Constituency Committee
meeting. The same applies to the membership of a District
Disciplinary Committee which should also have a Chairperson, a
Secretary and three members from the District appointed at a District

Committee Meeting.
[38
] The
Constitution further decrees that it will be mandatory to constitute
the Disciplinary Committees according to the above-mentioned

provisions of the Constitution but that should one or two members be
absent on any day of the hearing, such absence would not invalidate

the proceedings provided that the decisions taken at such a hearing
are adopted by at least two thirds majority of the entire membership.

However, upon proper construction this qualification only deals with
the situation where the disciplinary committee is composed
of the
requisite 5 members.
[39
] Nevertheless,
in paragraph 39 of his supplementary answering affidavit the First
Respondent has deposed that each of the relevant
Committees which had
taken a decision to expel the applicants comprised of only four
members. By his own admission, therefore,
these structures were not
properly constituted. In
Woods
v East London Municipality 1974(4) SA 541 (E) 550A,
the
resolution was taken by the councillors at a meeting which was not
properly constituted by reason of the absence of a quorum,
and such
resolution was held to be invalid and of no force and effect.
[40
] Furthermore,
Mr Malevu who is alleged by the First Respondent to have formed part
of the committee that had taken a decision to
expel the Fourth
Applicant, has not only denied this allegation but has gone on to
confirm that, at all material times, he was
not a competent member of
the said committee.
[
41] Moving
to the third issue, the First Applicant, through its functionaries,
had a duty to act fairly towards the Second, Third
and Fourth
Applicants, in particular, the First Applicant ought to have given
those three applicants notices of hearings, to have
afforded them an
opportunity to be heard, including the right to cross-examine
witnesses called on behalf of the First Applicant,
to call witnesses
to testify in their defence, to mitigate on sanction, if found
guilty, and to be informed of the outcome of the
hearing. According
to the three applicants they were not afforded any of those rights
while the First Respondent states that all
three applicants were
served with notices of the respective disciplinary enquiries
approximately seven days before the hearing
of those enquiries.
Notwithstanding, the said service, the First Respondent continues to
state, the applicants failed to attend
the enquires.
[42] According
to the First Respondent, none of the members of the relevant
structures effected the said services. He contends that
he himself
served such a notice upon the Second Applicant, the Third Applicant
was served by the Third Respondent while the Fourth
Respondent served
this notice upon the Fourth Applicant.
[43] It
is evident that the issue of the service of the notices suffers from
the same handicap as the issue of the letters of expulsion
referred
to in paragraph 27 hereof and it is therefore for the reasons given
under paragraph 28 hereof that I also resolve the
dispute on this
issue in favour of the three applicants and find that the notices
calling upon them to attend the disciplinary
enquires were not served
upon them. In
Buffalo
Municipality v Gauss and Another
[2006] 2 All SA 11
(SCA) at 14,
it
was held that before a functionary makes a decision which prejudicial
affects an individual in his liberty or property or the
existing
rights the latter has the right to be heard before the decision is
taken. In
Traube
and Other v Administrator, Transvaal and other 1989(1) SA 397 (WLD)
at 403D,
the Court held that if a person is wrongly denied a hearing in a case
where he should have been given one, no matter how strong
the case
against him, the denial of the hearing is a fatal irregularity. See
also
President
of Bophuthoswana and Another v Sifuloro
1994 (4) SA 96
(BAD) 103G.
The
principles of National Justice have also been held to find
application in the disciplinary action invoked by a political party

against its members. See
Diko
v Mbongoza and Others 2006 (3)SA 126(C)
and
Max
v Independent Democrats and Others 2006(3) SA 112(C) at 18D.
[44] What
now remains is the order I should make in this matter. However,
before doing so, it is essential that the conduct of the
parties,
particularly that of the respondents, in this matter should be
investigated.
[45] Clearly
right from the outset the First Respondent intended that he was
desirous to oppose the application and, indeed, thereafter,
proceeded
to do so at all levels until final conclusion.
[46] When
the First Respondent filed his first and his supplementary answering
affidavits, he made it clear that he was doing so
in his personal
capacity and also on behalf of the Second to the Fourth Respondents.
In the case of the supplementary answering
affidavit he added that he
was also doing so on behalf of the Eleventh Respondent.
[47] That
he was doing so on behalf of the Third, Fourth and Eleventh
Respondents was confirmed by those respondents who filed their

separate confirmatory affidavits to that effect.
[48] It
is therefore evident that these respondents, together with the First
Respondent, took steps to oppose the application. Indeed,
when Mr
Crampton argued the matter before me, he informed the Court that he
was doing so by representing the First to Fourth Respondents
and the
Eleventh Respondent.
[49] The
position of the Second Respondent is, however, not clear. Though in
his answering affidavit the First Respondent had intimated
that he
was deposing upon the same on behalf of the Second Respondent, there
is no evidence on record that the latter ever confirmed
that fact.
Instead, on 7 March 2009, the Second Respondent filed an affidavit in
the present proceedings the relevant portion of
which reads as
follows:-
“
I wish to
give concern that I withdraw as a respondent in this case. The reason
for that I bide myself with the ruling of the Court.
I also want to
mention that in my opinion the reinstatement of membership and
members of the party is of the good solution of the
impulse within
the party.”
[50] At
that stage of the proceedings the Second Respondent was therefore not
opposing the application.
[51] The
same remarks made in the First Respondent’s supplementary Answering
affidavit was never confirmed by the Second Respondent.
Instead, he
filed an affidavit confirming the correctness of the allegations
contained in the First Applicant’s supplementary
affidavit. Again,
in a separate affidavit deposed to on 1 June 2009 and filed on 2 June
2009, he makes it clear that he was an
unwilling participant in the
activities of the First Respondent, which were apparently designed to
unseat the applicants.
[52] At
the commencement of the proceedings on 15 June 2009 and in response
to Mr Salmon’s submission that the Second Respondent
supported the
applicants in this matter, Mr Crampton handed up what purported to be
a power of attorney purportedly signed by that
respondent giving Mr
Crampton’s instructing attorneys authority.
“
I, the
undersigned, CYPRIAN ZIPHO NGOBESE hereby authorise HIRESEN GOVENDER
and/or any one of the individual directors of Venn,
Nemeth & Hart
Inc., attorneys, or their successors-in-title, to act as my attorneys
and to do all things necessary on my behalf
in opposing the
application instituted under case number 2283/09 in the
Pietermaritzburg High Court.”
[53] The
contents of the said document appears to me to be at variance with
the attitude which
hitherto
had been displayed by the said respondent in the proceedings which
attitude clearly revealed that he did not oppose the
application.
Order
In
the
circumstances
the order I therefore make is as follows:-
That the Second
and Third Applicants’ purported expulsion from the First Applicant
is hereby set aside and they are declared
to have remained as
Councillors of the Seventh Respondent’s Council.
That
the Fourth Applicant’s purported expulsion from the First
applicant is hereby set aside and she is declared to have remained
a
Councillor of the Ninth Respondent’s Council.
It is declared
that the Fifth Respondent’s purported replacement of the Fourth
Applicant by the Eleventh Respondent as a councillor
of the Ninth
Respondent was unlawful and invalid and is hereby set aside.
The Seventh,
Eighth and Ninth Respondents are directed to take such steps as may
be necessary to recognise the status of the
Second, Third and Fourth
Applicants as councillors of the seventh and Ninth Respondents,
respectively.
An
order directing the First, Third, Fourth and Eleventh Respondents
jointly and severally, to pay the costs of the application,
save
that, in the case of the Eleventh Respondent he is only responsible
for the applicants’ costs incurred as from and including
the date
when respondents supplementary answering affidavit was filed.
Date
reserved on:
15
June 2009
Date
delivered on: 25 September 2009
Counsel
for Applicant: Adv Salmon
Instructed
by Ngubane Wills Inc.
Counsel
for Respondent: Adv Crampton
Instructed
by Venn Nemeth & Hart Inc