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[2008] ZAWCHC 225
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Cloete v Independent Democrats and Others (9174/2008) [2008] ZAWCHC 225 (25 July 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
9174/2008
DATE: 25
JULY 2008
In
the matter between:
ISAK
JAKOBUS ROBERT CLOETE Applicant
And
INDEPENDENT
DEMOCRATS First Respondent
MUNICIPAL
MANAGER FOR THE
SALDANHA
SAY MUNICIPALITY Second Respondent
INDEPENDENT
ELECTORAL
COMMISSION
Third Respondent
JUDGMENT
DAVIS,
J:
[1]
This is an application for review of a decision taken by the
disciplinary tribunal of first respondent on 21 April 2008 in
terms
of which applicant's membership of first respondent was terminated.
It is useful at the outset to set out the chronology
which has
preceded argument heard by this Court today.
[2]
On 18 March 2008 a decision was made by first respondent to
terminate applicant's membership pending the outcome of a
disciplinary
hearing. On 20 March 2008 an urgent review application
was launched by applicant (case number 5072/2008) which application
was
settled between the parties on the basis that applicant was
reinstated, pending a disciplinary hearing. It appears that
applicant
had adopted the approach that expulsion could not take
place prior to a fair hearing. Because first respondent had "jumped
the gun", the review application was conceded and first
respondent was compelled to hold a proper and fair disciplinary
hearing to decide the future status of applicant within the
organisation of first respondent.
[3]
On 11 April 2008 the disciplinary hearing commenced. Significantly,
it was postponed to 16 April 2008 because applicant required
a
further opportunity to prepare. On 16 April 2008 the disciplinary
hearing took place and was then concluded. On 21 April 2008
a
disciplinary tribunal decision was handed down. It was decided to
terminate the membership of applicant. Against this decision
applicant lodged an appeal on 5 May 2008. On 8 May 2008 the appeal
committee handed down its decision, which again was not in
favour of
the applicant.
[4]
On 26 May 2008, applicant launched an urgent application (case
number 8306/2008) for reinstatement pending an urgent review
application. On 8 June 2008 that review application was launched by
applicant under case number 9174/2008.
[5]
Mr
Caiger
.
who appeared on behalf of the applicant, contended that there were a
series of grounds which justified the application so brought.
In his
view, the disciplinary process was "a farce and was engineered
to get rid of the applicant".
In
support
thereof, he submitted that the hearing proceeded without counsel
being given the documentation timeously. The attorney
for applicant
was given 30 minutes to read and prepare the documentation as a
consequence of which he withdrew from the proceedings.
[6]
Mr
Caiger
described the hearing as conducted "very much like a forced
march". The applicant was refused a postponement as the
chair
insisted that the matter continue throughout the evening and that it
was particularly disconcerting that proceedings went
'way into the
night' in order for ft to be concluded. Further complaints were
lodged by Mr
Caiger
with regard to the manner in which a bundle of documentation was
provided to applicant.
[7]
In evaluating this submission, there are two issues that need to be
canvassed. In order to draw the inference that first respondent
had
acted vindictively in seeking to terminate applicant's membership,
Mr
Caiger
contended that, in the first place, applicant had been expelled
prior to a proper hearing. However, the first application was
in
effect successful. It is important to examine the hearing that took
place, pursuant to which the decision was taken which
is the subject
of this review, that is a second hearing which, commenced on 11
April 2008.
[8]
At that stage, applicant remained a member of first respondent. The
question arises as to whether the second hearing, that
is the one
that commenced on 11 April 2008, can be considered to be "a
farce". It is significant that in the answering
affidavit
deposed to by Mr Haniff Hoossen on behalf of respondent, the
following description is provided with regard to the hearing
which
commenced on 11 April 2008 and, in particular, to the averments of
applicant as employed by Mr
Caiger
in justification for his argument that an unfair hearing had taken
place, actuated by either or both malice or
vindictiveness. The relevant passages of this affidavit read:
"On
11 April 2008 applicant was represented by Mr Erleigh. On that date
a ruling was made to the effect that the commencement
of the hearing
be postponed for a period of 30 minutes during which I handed to Mr
ErEeigh all of the relevant documentation
in the matter and supplied
him with all of the particulars requested by him, including detailed
witness statements by all of
first respondent's witnesses.
I
deny that the Chairperson ruled that any "request for
particulars" should not be responded to. On the contrary, he
ruled that the commencement of the hearing be postponed for the
specific purpose of providing applicant with all of the
documentation
and particulars requested by him. I further deny that
the documentation handed to Mr Erleigh on 11 April 2008 constituted
"a
thick bundle of poorly photocopied documents".
After
the documentation was handed to Mr Erleigh, he withdrew from the
proceedings and applicant asked for the commencement of
the hearing
to be further postponed. The Chairperson then ruled that the
commencement of the hearing be further postponed
to 16
April 2008, on which date applicant was represented by Advocate
Caiger who did not raise any complaint with regard to any
alleged
failure to supply him with any further documentation and/or
particulars.
I
accordingly submit that applicant was granted every opportunity to
familiarise himself with the case against him and to properly
consult with an attorney and advocate prior to the commencement of
the hearing and prior to applicant being requested to enter
a plea
to the charges against him".
[9]
Although applicant deposed to a replying affidavit, there was
nothing )n that affidavit which, in any way, indicated to thts
Court
that it should not adopt the usual approach in matters of this kind,
that is, in general take the facts {common cause fact's)
applicant's
affidavit as admitted by respondent together with the facts alleged
by respondent (
Plascon
Evans LTD v Van Riebeeck Paint (Ptv) Ltd
1984 (3) SA G23
(A) at 634-635). I am, therefore, satisfied that
there is absolutely no merit in the argument that the hearing was
not procedurally
fair, on the available evidence.
[10]
Matters of this kind are inherently urgent. They are urgent because
these are disputes which involve political processes.
The party
concerned is anxious to ensure that it can preserve the integrity of
its own caucus. In the event that it considers
that it has "a
rogue councillor" within its midst, it is entitled to pursue
the matter with a El due speed, given,
of course, the constraint
that fairness must be followed. Fairness is a flexible concept and
in this particular context it appears
to me that in the light of
these facts, there is nothing to suggest that an adequate period of
time was not granted to the applicant
to place his case before the
tribunal.
[11]
I turn therefore to deal with the merits of the decision. From the
charge sheet it appears that applicant was charged as
follows:
"1.
Charge 1 - that you contravened sections 110.4.1.6 and 110.16 of the
Code of Conduct in that you failed to fulfil your
monthly financial
obligations to the party and in so doing are found in arrears of
such obligation for a period in excess of
three months.
2.
Charge 2 - that you contravened sections 110.6.1, 111.1.2. and
111.10 of the Code of Conduct in that you failed to adhere to
a
written request dated 25 January 2008 by the party's Western Cape
provincial leader to withdraw from a Council meeting in the
Saldanha
Say Municipality. That you further attended the said Council meeting
and voted against an agreed party caucus position
at the said
meeting.
Charge
3 - that you contravened section 111.1.3 and 111.1.8 of the Code of
Conduct in that your conduct as a public representative
of the party
brought the party into disrepute m that you were accused in the
public press of conduct unbecoming of a party member
in good
standing.
Charge
4 - that you contravened sections 110.6.1, 111.1.2 and 111.1.3 of
the Code of Conduct in that you failed to adhere to a
verbal
instruction from the party's West Coast PEC member to attend a
Council meeting of the Saldanha Bay Municipality on 14
March 2008.
That you, notwithstanding the aforementioned instructions,
"disappeared" 15 minutes before the said Council
meeting
resulting that the planned restructuring of the
Municipality
could not take place and further causing major embarrassment to the
party".
I
shall
deal briefly with each of these charges but in order to do so it is
perhaps relevant to at least cite the reasons given
by the tribunal
as to why it found that the applicant was guilty of all four
charges.
[12]
In relation to charge 1 it said:
"Die
partye se getuienis hierin is verskaf deur mnr. R Lentit wat die DV
daarop gewys het dat die respondent Vi getroue bydraer
van sy 10%
bydraes was vanaf Maart 2006 tot September 2007 toe hy raadslid by
die Weskus Distrik Munisipahteit was. Na respondent
se
herontplooiing vanaf Oktober 2007 tot op hede van Saldanha Baai
Munisipaliteit het respondent se 10% bydraes opgehou en eers
nadat
respondent in Januarie 2008 deur die party leier oor die
aangeleentheid aangespreek is het die
ad
hoc
betalings
gevolg. Ek vind respondent se beweer hierin dat hy aangeleentheid
met die Munisipale Bestuurder van Saldanha Saai M
unisipa Fiteit
opgeneem het as hoogs onwaarskynlik. Respondent het erken dat hy sy
aanvanklike 10% bydraes vrywillig aan die
party gemaak het
en dat hy by Weskus Distriksmunisipaliteit geweet
het hoe die prosedure met die
betaalkantoor gewerk
het.
Sy
verduideliking dat hy nie geweet het waar die betaalkantoor
Saldanha Baai Munisipaliteit was nie word ook verwerp. Uit
die
getuienis gelei blyk dat die respondent nie aanvanklik op Lentit se
besoeke om sy agterstallige gelde te vereffen gereageer
het en eers
iets om die kwessie gedoen nadat die partyleier self horn daaroor
aangespreek het."
Mr
Caiger
conceded that applicant had not complied with his obligations to pay
the necessary sums. His argument however was that the contravention
in terms of the charge required respondent to show that applicant
had fallen in arrears with this obligation for a period
in excess
of three months. Mr
Caiger
submitted that there was no evidence to this effect.
[13]
However, an examination of the disciplinary hearing indicates in the
evidence of Lentit that, indeed, applicant had failed
to pay the
necessary amounts for far longer than three months. Therefore, given
any evidence to the contrary, there was no basis
to conclude that
applicant had put up an adequate defence to the charge in question,
namely that although he was in arrears,
he had not been in arrears
for three months.
[14]
Insofar as charge 2 is concerned, the tribunal found as follows:
"Die
respondent se verweer hou weer in dat hy die bogemelde brief as Yi
versoek eerder as 'n opdrag interpreteer het word
verwerp. Die
respondent se erkenning dat hy die LEC se koukus posisie gevolg het,
eerder as skrifteiik opdrag van sy provinsiale
partyleier is met
respek Yi rookskerm om substansie aan sy verkeerde optrede te
probeer verleen. Die partye het hierin uitgewys
dat die LEC geen
bevoegdhede ingevolge die partye se Grondwet het om opdrag te aan
die party se open bare verteenwoordigers te
gee nie. Respondent het
aan die DV uitgewys dat hy goed vertroud was met die inhoud van die
party se Grondwet en nie geweet het
hy kon nie sy mandate vanaf die
LEC verkry nie.
n
In
attacking this particular finding, Mr
Caiger
submitted that this particular charge had been dealt with before by
the party leader Ms de Lifle and that Ms de Lille had in
effect
decided that this particular charge should not be further pursued.
Further, that the various parties should continue in
their
organisational relationship. Significantly, however, this particular
averment was hotly denied in the answering affidavit.
It also
appears from the evidence of Jordaan at the disciplinary hearing
that the matter was left open rather than being decided
by the party
leader. The relevant passages read thus:
"En
is ek reg as ek se dat jy geen dissiplin§re verhoor in die
gesig staar afhangende van wat die party besluit. Ja,
maar toe nou
toe ek meen dit was al Januarie se besigheid nou was u gelukkig om
hierdie verklaring af te le? Ja, is daar enige
iets vir u gese
aangaande die verklanng se afle? Nee meneer. Hoekom dit nodig is en
hoekom jy dit moet doen? Nee. Is dit korrek
dat Mev De Lille gese
het dat julle nie geskors sal word vir die 25ste Januarie se
vergadering nie, daar is gese u nie geskors
sal word nie. Sy het
daar gesit, ekskuus dat ek my vinger wys, maar sy het daar gesit
waar Tant Sarah sit, sy het die skorsingspapiere
opgetel toe het sy
gese maar hier sit ek met julle. Skorsing papier maar sy sit dit toe
neer en sy gee die LEC mandaat dat hulle
moet gaan uitvind. Watse
mandaat? HulEe moet gaan na die strukture toe om te gaan luister, na
die branches toe om te gaan luister/
[15]
It appears that the decision, on the evidence, was that further
investigation was necessary. Therefore, there is no justification
for the argument raised by applicant that this matter had
effectively been settled and placed in a 'cupboard' and then removed
three months later in order to trump up a justification for the
dismissal of applicant.
[16]
The third charge raises questions of the private life of applicant
as published in "Die Son". Frankly I am not
going to deal
with this charge. It may have merit but any person who takes "Die
Son" seriously needs to consider their
judgment in earnest and
the taste that they adopt in reading newspapers, of which "Die
Son
1
'
sadly can hardly be classified as belonging to this a category of
publication.
[17]
I therefore turn to the fourth charge which of course is the one Mr
Engela
submitted "broke the camel's back". Mr
Caiger
submits that with regard to this charge, applicant put up a credible
defence to the effect that his client (applicant) was fit,
could not
attend the meeting. After having arrived he felt so ill that he
could not continue, and left the meeting only because
of his illness
and not because of any attempt to prevent a vote taking place which
would have been favourable to respondent.
[18]
Respondent's position is reflected in the findings of the
disciplinary hearing in which the following is stated:
"Respondent
se verweer dat hy voor die vergadering siekerig gevoel het moet op
die volgende redes bevraagteken word.
Dat
hy versuim het om 'n verdere doktersertifikaat voor te le dat hy
ongeskik was om die belangrik vergadering van 14 Maart
2008 by te
woon.
Respondent
as hy so siek was soos hy beweer nie by sy nuwe kollasie vennote
verskoning aangeteken het nfe.
Dat
hy wel in staat was om dokter toe te loop en van die vergadering af
weg te loop gegewe dat hy aangevoer het dat hy dronk
in sy kop
gevoei het (die redelik mens sou aanvaar dat hy onder sodanige
omstandighede van vervoer gebruik sou maak).
Dat
getuies getuig het dat Mnr J De Wee vooraf bewus was van respondent
se optrede hierin.
Dat
respondent getuig het dat hy pas voor die vergadering Yi dringende
oproep ontvang het dat hy na die elektro meganikus moes
gaan wat
aan sy motor gewerk het (en dat hy verkies het om op sodanige
oproep te reageer ten spyte daarvan dat
hy van
die belangrikheid van hier voorgemelde vergadering bewus was). (6)
Dat respondent later getuig het dat hy so siek
gevoel het dat hy
nie gehoor het dat Mnr S Claassen hom tuis kom soek het nie (wat 'n
onwaarskynlike toename in sy beweerde
siektoestand impliseer binne
'n kort tyd, vandat hy die teetrollie in die raadsaal gestoot het."
Significantly,
the relevant evidence provided by Jordaan which Mr
Caiger
sought to employ to the benefit of applicant, supports the finding
of the tribunal. I shall merely read a short extract there
from:
"Isak
Cloete sal se dat hy die hele tyd met julle local executive caucus
gewerk het, die een by Saldanha het gedoen wat hulle
gese het hy
moet doen, u weet daarvan u sal nie daarmee stry nie. As hy sou se
dan het hy dan so gedoen. En toe jy hom gebel
het op die 14de toe
het hy gese hy is by die dokter en hy het gese dat hy so bietjie
dronk in die kop is en so aan en hy het
trollie ingestoot nie op "n
skinkbord gedra nie, met die tee koffie, Daai stoot, ja, nou is u
bewus daarvan dat jy het geweet
hy is siek? Nee ek het nie vooraf
geweet hy is siek nie. U het gese hy is dokter toe, u het gese hy
is dronk in die kop.
Die eerste keer toe ek hom bel, ja, toe se hy
dat hy is by die dokter nadat hy teruggekom het. Toe se hy dat hy
is so bietjie
dronk in die kop. Ja met ander woorde hy gaan se dat
hy siek was en dat hy na die Speaker toe was en hy het
verskoning
gevra om nie daardie vergadering by te woon nie.
Nou wat ek van u wil weet hoekom is almaf so verbaas toe niemand
hom
kom vind nie, want hy het vir u gese hy voel nie lekker nie
r
en hy is dronk in die kop, hy was dokter toe. Het u nie vir die
ander gese miskien is hy siek en hy is huis toe? Nee, ek het
gese
hy is dronk in die kop en hy was by die dokter." There is
nothing in this evidence to suggest that Jordaan considered
that the
applicant was so ill at the time that he was compelled to
withdraw from the meeting. Furthermore, the
absence of any
medical certificate provided by applicant to support his
particular version is a significant factor which
a tribunal was
entitled to take into account in coming to the conclusion to which
it arrived.
[19]
In short, if the various charges which were laid against the
applicant are annalysed, each was upheld after a careful analysis
in
which there is a sufficiently rational link between the evidence
placed before the tribunal and the charges which so brought.
This
case is of course a review. As Mr
Engela
correctly noted, it is not an appeal. It is a case where, in effect
one asks the question whether this is a decision to which
a
reasonable decision-maker could have come on the basis of the
factual matrix so provided to the decision-maker. In order to
show
the question must be answered in favour of the applicant, it behoves
applicant to raise arguments based on evidence to justify
the
application which he has brought. Neither on the evidence nor on the
papers put up to this court by applicant, can any such
justification
on the basis of the evidence be found so as to grant the application
as is sought.
[20]
A further question arises: This matter has taken a long time to come
before this Court. On Monday of this week applicant,
which had
launched the application, asked for a further postponement because
he contended that he had only managed to raise the
funds for his
defence two days prior to the hearing. Mr
Caiger
strenuously argued that it would be highly unfair for this Court to
impose a punitive costs order on the applicant, particularly
in that
in un-contradicted evidence the applicant had stated on oath that he
had only raised the funds two days before. I am
not in a position to
reject this particular contention, the strenuous objections of the
respondent notwitshstanding.
[21]
For these reasons therefore:
1.
The application is dismissed with costs.
2.
The wasted costs of the postponement of 21 July 2008 will be paid by
applicant.
DAVIS, J