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[2008] ZAWCHC 189
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African National Congress v Municipal Manager, George Local Municipality and Others (6130/2008) [2008] ZAWCHC 189 (7 May 2008)
JUDGMENT
IN THE
HIGH COURT OF SOUTH AFRICA
(CAPE OF
GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
6130/2008
DATE
: 7
MAY 2008
In
the matter between;
AFRICAN
NATIONAL CONGRESS
Applicant
and
THE
MUNICIPAL MANAGER,
GEORGE
LOCAL MUNICIPALITY
1
st
Respondent
GEORGE
LOCAL MUNICIPALITY
2
nd
Respondent
HENRY
JOHANNES JONES
3
rd
Respondent
THE
DEMOCRATIC ALLILANCE
4
th
Respondent
THE
INDEPENDENT ELECTORAL
COMMISSION
5
th
Respondent
THE
MINISTER FOR LOCAL
GOVERNMENT
AND HOUSING,
WESTERN
CAPE 6
th
Respondent
JUDGMENT
IRISH,
AJ
:
[1] This
application has been brought as a matter of urgency in accordance
with the provisions of Rule 6(12). Although urgency
has not been
expressly conceded by those respondents opposing the relief sought,
I am of the view that the matter is clearly
urgent and have
accordingly entertained the application on that basis. The
applicant's non-compliance with the usual provisions
of the Rules of
Court Is accordingly condoned.
[2] The
parties to the application are as follows. The applicant is the
African National Congress, a duly registered political
party with
its regional offices for the Southern Cape at 89 Hibernia Street in
George. The first respondent is the municipal
manager of the George
Local Municipality, the offices of which are situated at the Civic
Centre in York Street, George. The office
of municipal manager is
currently held by Mr Cecil Africa. The second respondent is the
George Local Municipality itself and
the third respondent is Henry
Johannes Jones, an adult male politician, who represented the
Democratic Alliance as a ward councilor
in the Municipality at the
time of the resignation which is the subject of the dispute in this
matter, on 26 March 2008.
[3] The
fourth respondent is the Democratic Alliance, a duly registered
political party, with its main offices at Ruskin House,
Roeland
Street, Cape Town. The fifth respondent is the Independent Electoral
Commission and the sixth respondent is the Minister
for Local
Government and Housing, Western Cape, who is at present Mr Qubele
Richard Dyantyi.
[4] The
notice of motion records that no relief is sought against the second
to sixth respondents who were cited solely to the
extent that they
have an interest in the matter. No costs are sought against any of
the respondents, save to the extent that
they oppose the
application. In the event the first to third respondents,
represented by Mr
Rosenberg
opposed the relief sought; whilst the sixth respondent, represented
by Mr
Moses
,
elected to abide the decision of the Court. Sixth respondent did
file an affidavit in which he supported the hearing of the
matter as
one of urgency and in which he made certain submissions concerning
the interpretation of the relevant legislation.
[5] He also
took issue with some unsubstantiated hearsay allegations regarding
himself and the Premier of the Western Cape. In
this regard he
caused a striking out application to be filed but at the hearing Mr
Moses
advised
me that such was not being persisted with. Neither of the other
parties represented before me sought any costs order relative
to the
abandoned striking out application and nothing more need be said
concerning it.
[6] There is
a massive conflict of fact between the applicant's account of
relevant events and that of the first to third respondents.
Mr
Borgstrom
.
who appeared for the applicant, did not seek a referral to oral
evidence and was content to argue the matter on the usual opposed
motion basis.
The
relevant facts so determined may be crisply stated. On 26 March 2008
the third respondent signed a letter (Annexure SK2
to the
founding affidavit). It was addressed to the first
respondent and read as follows:
"Geagte
Heer,
Re:
Bedanking as Raadslid
Hierrnee
dien ek my bedanking in as Raadslid van die George Stadsraad en
Demokratiese Aliiansie met onmiddelike effek. By voorbaat
dank."
The
letter was signed by the third respondent and below his signature
was an indication that it was being copied to Flip de Swardt
and to
the Independent Electoral Commission. Mr de Swardt is the
executive mayor of the George Local Municipality.
An envelope
containing the letter was delivered to the first respondent's
receptionist on 26 March 2008. She placed it, unopened,
on the first
respondent's desk. The first respondent did not immediately read the
letter because, according to his affidavit,
he was busy with other
matters and did not regard it as that urgent. His receptionist had
informed him that it was evidently
a letter of resignation from the
third respondent.
The
following day on 27 March and prior to opening the envelope and
ascertaining the content thereof, the first respondent received
a
telephone call in which he was informed that third respondent had
withdrawn his resignation and was on his way to first respondent's
offices to collect the letter. Shortly thereafter the third
respondent arrived at the office and the first respondent handed
back to him the unopened and unread letter. The first respondent
states that he held the
bona
fide
opinion
that the third respondent was entitled to withdraw this letter of
resignation.
As
regards the letter itself, it had (according to the third
respondent) been prepared for him by a certain Pastor Smart and an
Inspector David Ryk. Ryk had presented it to him for signature on
the morning of 26 March and he had signed it in Ryk's presence.
Ryk had kept the letter but had not been instructed to deliver it to
the first respondent.
No
copies of the letter were sent to either De Swardt or to the
Independent Electoral Commission.
[7] On these
facts
t
Mr
Borgstrom
argued two propositions. Firstly, that in terms of section 27{1) of
the Municipal Structures Act 117 of 1998 {"the Act")
the
seat held by the third applicant became vacant; and secondly in
terms of clauses 3.5.1.1 and 3.5.1.3 of the fourth respondent's
Federal Constitution, the third respondent's party membership came
to an end in consequence whereof, in terms of section 1(2)(b)
of
Schedule 6B to the Constitution of the Republic of South Africa 1996
read with section 27 of the Act, the third respondent
ceased to be a
councillor and the seat En like manner fell vacant. I mention that
the reference to section 1(2){b) of Schedule
6B to the Constitution
should have been, and was understood to be, a reference to section
1{2){a).
[8] Mr
Borgstrom
submitted that, in consequence, the applicant was entitled to the
declaratory and review retief it sought in the following terms
{which are as amended at the hearing):
"1.2
Declaring that:
1.2.1 In
terms of section 27{a) of the Structures Act, the Seat previously
occupied by the third respondent was immediately
vacated when he
resigned as a councillor on 26 March 2008 by delivering a
resignation better to the municipal manager; and
1.2.2 in
terms of clause 3.5,1.3 of the Federal Constitution of the DA and
item 1 to Schedule 6B to the Constitution of the
Republic of
South Africa 1996, the Seat previously occupied by the third
respondent was immediately vacated when he resigned
as a member
of the DA by declaring his intention to resign from the DA in his
resignation letter to the first respondent
on 26 March 2008.
1.3
Reviewing, correcting and setting aside the decision of the
municipal manager on or about 28 March 2008, to hand back the
third
respondent's resignation letter to him and his subsequent decision
on or about 31 March 2008 to treat the third respondent
as if he
remained a councillor;
1.4
Reviewing, correcting and setting aside the failure by the municipal
manager to exercise his power and duty in terms of section
25(3) of
the Structures Act (after consulting with the IEC) give notice of a
by-election to be held in the ward previously represented
by the
third respondent;
. . . . . .
.
1.6 directing
the municipal manager to give notice of a by-election in the ward
previously represented by the third respondent,
such by-election
to be held within 90 days after 26 March 2008; and
1.7 the
costs are to be paid by the first to third respondents, jointly and
severally." (I mention that there appears
to be a
typographical error and there is no paragraph 1.5)
It
will be seen that the relief claimed in prayers 1.3 to 1.6 is
presaged on findings in terms of prayers 1.2.1 and 1.2.2, no
alternative basis having been argued for the review and
mandamus
relief
claimed in these prayers.
[9] I turn
therefore to consider the first of the two declaratory orders sought
by the applicant. Before doing so I think it appropriate
to record
that, in construing the applicable legislation, I have held in mind
that it has application in many differing personal
and political
circumstances and that the intention of the Legislature cannot be
coloured by the somewhat Byzantine political
manoeuverings which
have been revealed in these papers. On the contrary, the relevant
legislative provisions were intended to
find application in the
principled and honourable behaviour of public representatives; in
particular, the discredited system
of floor-crossing cannot inform
the interpretation of the relevant sections. Section 27(a) of the
Act provides:
"27
Vacation of office
A councillor
vacates office during a term of office if that councillor -
(a)
resigns in writing".
Counsel were
all agreed that the provision envisaged:
"An
unqualified resignation either of immediate
effect, or
effective from a specified date;
the
communication of the written resignation to the
prescribed
or proper party."
[10] Mr
Rosenberg
understandably conceded that there had undoubtedly been compliance
with the first of these two elements. However, it was the
second of
the elements which produced debate amongst counsel, Mr
Rosenberg
arguing
that the section envisaged more than the mere delivery of a letter
of resignation but required the actual reading thereof;
whereas Mr
Borgstrom
{with whom Mr
Moses
associated himself) contended that delivery to the office of the
appropriate official was sufficient.
[11] It is
clear that the resignation contemplated in section 27{a) must be
written. That, presumably, is to put the terms of
the resignation
beyond question and also to provide both proof of such resignation
and a lasting record thereof. The consequence
of a resignation has
public significance in that such creates a vacancy in the particular
council with effect on various statutory
provisions relating to
quora,
composition
of committees, requisition of meetings and the like. In addition
vacancies must be filled in accordance with the applicable
legislative provisions.
[12]
Accordingly, it is in the wording of the resignation that the terms
of and consequence of the resignation are to be found.
In developing
his argument, Mr
Rosenberg
argued
strongly that the relevant person to whom the terms of the
resignation had to become known was the Speaker, insofar as
that
functionary was required in terms of section 37 of the Act to
preside at meetings of the council and to ensure that
the
meetings were conducted in accordance with the rules of the
council. In contrast, the municipal manager's role was
administrative in nature and, although he may advise the council, he
is not a member thereof. It is more likely, argued Mr
Rosenberg
,
that the Legislature intended the resignation to come to the
attention of the Speaker in the first instance, being the presiding
officer of the body from which the councillor was resigning.
[13] The
argument is attractive and the Speaker is probably the more
appropriate person to receive a councillor's resignation.
The
municipal manager would then attend to the administrative
consequences flowing from that fact. However the Legislature has
not
specified a recipient for a letter of resignation in terms of
section 27(a) and ) cannot hold that notification to the municipal
manager would not be an adequate communication of such resignation.
In
any
event, on the view I take of the matter, the point need not be
finally determined.
[14] Mr
Borgstrom
argued that mere delivery of the letter was sufficient to occasion a
vacancy m the council in terms of section 27. In argument,
he
refined this proposition in two respects. Firstly, he conceded that
it would have to be delivery to an "appropriate"
recipient
and not merely, for example, to the postal clerk. Secondly, he
sought to counter Mr
Rosenberg's
insistence that the content of the written communication, "reach
the mind" of the intended recipient by relying on
the
allegation that the first respondent had been told that there was a
letter of resignation awaiting his attention.
[15] As
regards the first concession, I consider that it was correctly made.
The delivery of a letter of resignation which never
came to the
attention of either the municipal manager or the Speaker could
hardly trigger the results envisaged by the Legislature.
Counsel
were accordingly agreed that the letter of resignation would have to
reach at the least the office of the intended recipient.
[16] In this
regard, Mr
Moses
(who argued before Mr
Borgstrom
had made the said concession in reply) had relied on the provisions
of section 115(3) of the Municipal Systems Act 32 of 2000
for the
proposition that the delivery of a letter of resignation to a person
in attendance at the municipal manager's office
woufd be sufficient.
] do not think that the section is helpful. It is contained in
another enactment and it deals with the service
of legal process, a
procedure which required an explanation of the nature and
exigency of the documentation being
served and which
documentation cannot be in a sealed envelope. I am not called upon
to consider in this matter whether the delivery
of an open letter to
the first respondent's receptionist would have constituted
compliance with either the said section 115(3)
or section 27(a) of
the Act,
[17] The
argument accordingly reduced itseff into a debate as to whether the
admitted delivery of the closed envelope to the first
respondent
constituted a resignation in writing for the purposes of section
27(a) or not. Although Mr
Borgstrom
presented an argument having considerable persuasive merit in this
regard, on reflection I am of the view that Mr
Rosenberg
is correct and that the section presupposes that the writing be read
by the appropriate recipient. The oral communication that
a letter
of resignation had been written but not yet sent would clearly not
suffice for the purposes of this section and I can
see no reason in
principle why the situation is changed because the unread letter
Is
within
the municipal building or even in the intended recipient's in-tray.
In my view, the resignation cannot become effective
within the
meaning of the section until the "writing" has been read
by the intended recipient. Insofar as it is accepted
by the
applicant that the first respondent did not, in fact, read the
letter, it is unnecessary to decide the further point of
whether
such, having indeed been read, coufd still be withdrawn prior to the
public announcement of such resignation or the municipal
manager
consulting the Electoral Commission in terms of section 25(3) of the
Act.
[18] In the
result, the applicant is not entitled to an order in terms of
paragraph 1.2.1 of the revised prayer. I now turn to
the alternative
argument. In this regard the applicant relies on certain provisions
of the fourth respondent's Federal Constitution
(which I will refer
to as the "Federal Constitution" to distinguish it from
the Constitution of the Republic) a copy
whereof was annexed to the
founding affidavit as Annexure SK3. Section 3.5 of the Federal
Constitution is headed "cessation
of membership" and
provides that:
"3.5.1
A member ceases to be a member of the party when he or she:
3.5.1.1 submits
his or her written resignation from the party;
3.5.1.2 becomes
or remains a member of another party other than one approved under
this constitution;
declares
his or her resignation or intention to resign from the party or
intention to join another party;
fails to
renew his or her membership on or before the date stipulated;
canvasses
other party members to resign from the party;
canvasses
other party members to join or support another party;
stands or
accepts a nomination against an official candidate of the party in
any public election;
is found
guilty of any offence listed in Schedule 6 of 7 of the Criminal
Procedure Act;
is in
default of the payment of any compulsory public representative
contribution for a period of two months after having been
notified
in writing that he or she is in arrears..."
[19] The
applicant had initially relied on clause 3.5.1.1 insofar as Annexure
SK2 recorded that it was being copied to Mr de Swardt.
It being
accepted that Mr de Swardt had not received such a letter, Mr
Borgstrom
did not persist with this ground of attack and the amended prayer
1.2.2 relies solely on the provisions of clause 3,5.1.3 of
the
federal constitution.
[20] It is
clear that the relationship between members of a political party,
including its office bearers and public representatives,
and such
party is contractual in nature and that the terms of the agreement
are to be found in the governing constitution or
other enactments of
the voluntary association in question.
[21] Mr
Rosenberg
argued that it is accordingly for the fourth respondent, within its
applicable structures, to determine the fact of a "triggering
event" under clause 3.5.1 and to determine in consequence the
membership status of the individual. A mere allegation, for
example,
could never result in the automatic loss of membership of a party by
a public representative, with the public law consequences
that would
flow there from. In particular, he argued that it was not open to
the applicant to seek to interpret the terms of
the fourth
respondent's constitution for it. In addition, he pointed out that
any action taken against the public representative
by a political
party would be susceptible to review.
[22] Mr
Borgstrdm
relied strongly on the judgment of
Veldhuizen,
J
in this Division in the unreported matter of
Henderson
v Democratic Alliance & Others
(judgment delivered on 4 December 2007). In that matter the
applicant, a former party representative, sought relief because he
had not been afforded a full disciplinary enquiry by his party. He
was expelled by the party, and the relevant council informed
of his
loss of membership thereof, by virtue of having been found guilty of
an offence listed in Schedule 6 or 7 of the Criminal
Procedure Act.
[23] What
the learned Judge held, was that - once the disciplinary committee
had established that Henderson had indeed been convicted
of a crime
such as is envisaged in the federal constitution - there was no need
for further investigation since,
ipso
facto,
the
party was entitled to terminate his membership by virtue of that
fact.
It
seems to me that the circumstances of that matter are a far cry from
the argument that Mr
Borgstrom
advanced
that the termination of membership and the resultant ward vacancy in
George which would result there from, occurred "ex
lege".
It
is clear that it still requires a determination by the relevant
political party concerned and the communication by that party
of the
determination of membership to the relevant council and to the
Electoral Commission.
[24] What is
relied on is a "declaration" by the third respondent and
that "declaration" is said to reside
in Annexure SK2. On
the facts, the only person who saw the content of SK2, other than
the third respondent himself, was Ryk.
(Mr
Borgstrom
relied faintly on an allegation that there were widespread rumours
that the third respondent was going to resign from the fourth
respondent, but such could hardly constitute a declaration and he
understandably did not press the argument).
[25] Can the
sharing of the content of the letter of resignation, in private,
with Ryk constitute a declaration? It becomes necessary
to decide
what is meant by the verb "declare". The Concise Oxford
Dictionary defines the verb as "to announce
openly or
formally". Other usages of "declare" include the
acknowledgement of goods or income, the voluntary closure
of a
cricket innings, the naming of the trump suit in card games and the
taking of sides in an international dispute. All of
these subsidiary
meanings also have the connotation of an open public announcement.
It is difficult to see that the private communication
of his
intention, in the rather conspiratorial and secretive dealings with
Ryk, as constituting a "declaration"
1
for purposes of the provision; and it is equally difficult to
reconcile the third respondent urgently preventing the opening
of
his letter of resignation with an intention to "declare".
It is not the contemplation of resignation, nor even the
formulation
of an intention to resign, that triggers the provision; it is the
declaration of such intention.
[26] It is
true that the letter of resignation subsequently came to the
knowledge of Mr de Swardt. At the time that the content
of the
letter came to his knowledge, however, he had already been informed
by the third respondent that he no longer intended
to resign and
wished to remain a member of the party. Accordingly, at the time
that Mr de Swardt became aware of the content
of the letter, it was
no longer an intention to resign but rather the unexecuted memorial
of what had been an intention to resign.
[27] If I am
wrong in this however, there is another basis upon which the
applicant cannot succeed in obtaining the declaratur
sought in
prayer 1.2.2. The prayer seeks a declaratur that the seat occupied
by the third respondent was vacated when he resigned
as a member of
the fourth respondent but that is not a declaration as to rights but
as to fact. This Court is competent to issue
a declaration as to
rights in terms of the provisions of section 19(1)(a)(ii) of the
Supreme Court Act 59 of 1959. This power
is further reflected in
section 8(d)
of the
Promotion of Administrative Justice Act, 3 of
2000
which empowers a court in administrative proceedings to make
orders "declaring the rights of the parties".
[28]
The only right which is in dispute is in fact whether the third
respondent is entitled to continuing membership of the fourth
respondent. It is not open to a litigant who is not a party to a
contract to seek a declaration in respect of the rights and
duties
flowing from such contract. {See in this regard
Preston
v Vredendal Cooperative Winery Ltd & Another
2001(1) SA 244 (ECD) at 249E-F and 250G-H)
[29] I
accordingly find that the applicant has not made out a case for the
relief claimed in prayer 1.2.2 either. It follows that
the
application falls to be dismissed with costs and it is so ordered.
IRISH,
A J