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[2008] ZAWCHC 220
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Baartman and Others v Roodtman and Others (12226/07) [2008] ZAWCHC 220 (2 July 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
12226/07
DATE
:
2 JULY 2008
In
the matter between:
ANNEKE
BAARTMAN
1
st
Applicant
MICHAEL
SINKI MOTSOANE
2
nd
Applicant
GERALD
VAN WYK
3
rd
Applicant
WILLEM
KAROOLS
4
th
Applicant
CHRISTINA
DARMEN
5
th
Applicant
ANTHONY
DAIZANA
6
th
Applicant
versus
PETRUS
ROODTMAN
1
st
Respondent
THE
INDEPENDENT CIVICS ORGANISATION OF
SOUTH
AFRICA
2
nd
Respondent
THE
INDEPENDENT ELECTORAL
COMMISSION
N.O.
3
rd
Respondent
THE
MUNICIPAL MANAGER, BEAUFORT WEST
LOCAL
MUNICIPALITY N.O.
4
th
Respondent
THE
BEAUFORT WEST LOCAL
MUNICIPALITY
N.O.
5
th
Respondent
THE
MUNICIPAL MANAGER, CENTRAL KAROO
DISTRICT
MUNICIPALITY N.O.
6
th
Respondent
JUDGMENT
DESAI,J
The
applicants seek leave to appeal the dismissal of their application.
The matter has a long and convoluted history. It initially
came
before me during the floor-crossing window period. At that stage
there appeared to be a live controversy which required an
urgent
resolution. However the applicants elected not to pursue the matter
pending the final isat ion of a related application
with regard to
the leadership of ICOSA. It seems that the applicants must now live
with the consequences of that strategic choice.
The
applicants also attempted to cross to another party, but this
endeavour failed when the IEC declined to process their
floor-crossing
forms. Although the floor-crossing period had closed
the applicants then sought to re-activate - as Mr Borgstrom puts it
-this
matter. As noted elsewhere we were only required to give a
ruling on 23 December 2007. This was done. The reasons were to follow
at a later stage. This aspect had been agreed upon by the parties On
19 March 2008 by-elections were held in respect of the seats
previously held by certain of the applicants. A bid by the applicants
to stop these elections, both In this court and in the Supreme
Court
of Appeal, failed.
The
current position is as follows. The seats formerly held by the first,
second and sixth applicants - the proportional seats -
have been
filled by the [EC from ICOSA's party list. The third, fourth and
fifth applicants occupied their seats as Ward Councillors.
These
seats were filled when the by-electrons were held. It accordingly
appears impossible to reinstate the applicants as councillors
as the
seats previously held by them have now all been filled with other
people.
The
applicants quite clearly intended to leave ICOSA during the
floor-crossing period. The tactics employed by them were directed
at
doing whatever was necessary to re-claim their seats during the
floor-crossing period, so that they could immediately leave
the
party. The application was premised on the matter being heard during
the floor-crossing period and did not cater for the retroactive
recognition of their right to cross the floor.
During
the course of argument in the principal matter applicants' counsel
for the first time presented a draft order including relief
retroactively permitting the applicants to cross the floor. He
appreciated at that stage that this case would only present a live
issue if the applicants could be replaced into the seats formerly
held by them and then were permitted to cross the floor to another
party.
The
decisions appointing the new councillors have not been challenged by
the applicants and there are no vacancies to which the
applicants can
be reinstated. The applicants
3
attempted floor-crossing failed and the IEC considered and rejected
their ffoor-crossing forms. That decision was not reviewed,
and the
IEC, again as Mr Bdrgstrom puts it, is
functus
officio.
It
was simply not open to this Court to reopen the window period for the
applicants This would be contrary to the relevant provisions
of the
constitution.
No
new matter is raised in the grounds of appeal. The arguments advanced
therein, and also orally by Mr
Osborne
,
have been dealt with at length in the reasons already furnished. It
seems that the relief sought is entirely moot as no effective
relief
can be granted on appeal.
For
the reasons set out in the principal judgment I am of the view that
there are no reasonable prospects of another Court coming
to
any
different
conclusion with regard to the merits of the application. In the
result the
APPPLICATION
FOR LEAVE TO APPEAL IS DISMISSED WITH COSTS.
DESAI,
J
I
concur
LE
GRANGE, J