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[2007] ZAWCHC 87
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Dorfling v Independent Democrats and Others (14963/2007) [2007] ZAWCHC 87 (11 June 2007)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
PROVINCIAL DIVISION)
CASE
NO:14963/2007
In
the matter between:
LEONARDO
DORFLING
Applicant
and
THE
INDEPENDENT DEMOCRATS
First
Respondent
MUNICIPAL
MANAGER,
EDEN
DISTRICT MUNICIPALITY
Second
Respondent
THE
INDEPENDENT ELECTORAL COMMISSION
Third
Respondent
LAETJTIA
HELOISE ARRIES
Fourth
Respondent
JUDGEMENT
DELIVERED ON 11
JUNE
2007
STEYN
AJ
THE
APPLICATION
1.
This application for revfew relief was brought on an urgent basis in
October 2007. On 25 October 2007 the matter was postponed
to 7 April
2008 by agreement between Applicant and First Respondent. As far as
it may be necessary the relief requested by Applicant,
for
condonation of non-compliance with the Rules of Court regarding time
periods, forms and service requirements, is granted.
2.
The parties to the Application appear in the heading. Applicant
requests that the costs of the Application be paid by the First
Respondent, the Independent Democrats and any of the other
Respondents who oppose the Application. The Application was opposed
by the First Respondent. A notice was filed by Third Respondent
abiding by the decision of this Court. There is no opposition to
the
Application from the Second and Fourth Respondents.
3.
The application deals mainly with the aspect of whether the Applicant
has a right to retain his seat as a councillor on the Council
of the
Eden District Municipality.
4.
The review relief seeks to set aside decisions taken by the Second
Respondent, the Municipal Manager of the Eden District Municipality
(the Municipality') on or about 17 September 2007, to report to the
Third Respondent, the Independent Electoral Commission, ('the
I EC
1
)
that Applicant had vacated his seat on the Council of the
Municipality, and the decision of the IEC to declare the Applicant's
fEoor-crossing notification 'non compliant', as well as the
subsequent decisions to declare the Applicants seat to be vacant and
to fill it with the Fourth Respondent
5.
Declaratory relief is sought confirming that Plaintiffs
floor-crossing notification was properly filed and that it had the
effect
in law that he retained his seat on the council as an Eden
Forum (EF'J councillor.
6.
It is furthermore requested that the Court should direct the IEC to
process and give effect to Applicant's floor-crossing notification.
BACKGROUND.
THE
LAW
7.
In June 2002 the South African Parliament passed four statutes aimed
at allowing members of the national, provincial and local
legislatures to change their party allegiances without losing their
seats.
8.
The contentious so-called floor-crossing statutes were challenged in
the Courts. In a landmark ruling in October 2002, the Constitutional
Court upbetd the legislation passed by Parliament on floor-crossing.
Thus the go-ahead was given to politicians to cross the floor
and
join another party without losing their seats.
9.
The
limited system of floor-crossing may only take place during a
designated fifteen day period of time In 2007 the fioor-crossing
window period for municipal councillors ran from 1 September to
Saturday 15 September at midnight.
THE
FACTS
10.
The Applicant was formerly elected as one of two 'proportional
representation" councilors, to represent the First Respondent,
the Independent Democrats, ('the ID') in the Municipality Council
11.
Between 1 and 15 September 2007, the so-calted window period, and in
accordance with certain of the provisions of the Constitution
of the
Republic, referred to above, the Applicant was lawfully entitled to
become a member of a different political party and to
retain his seat
as a councillor of the Municipality Council.
\n
such
a case his seat would thereafter be
regarded
as
having been allocated to the new party which he elected to join.
12.
Applicant alleges and it is common cause, that on 14 September 2007,
during the so-calted window period, he resolved to 'cross
the floor'
from the ID to a new and political party, the Eden Forum (the
£
EF').
13.
Accordingly, on the 14
th
September
2007 at 14h00 the Applicant and Ms Visagie-Jantjies, the leader of
the EF, attended at one of the local offices of the
IEC, situate in
George.
14.
The Applicant completed a pro-forma notice in order to cross the
floor from the ID to the EF. He was assisted by a Ms Block,
an
official of the IEC.
According
to the Applicant Ms Slock 'accepted' the notice after completion
thereof Applicant assumed that Ms Block was authorised
to receive
floor-crossing forms on behalf of the IEC. Applicant alleges that
Ms Slock indicated to him that she would fax the
original notice to
the lEC's national offices situate in Pretoria.
16.
At 17h05, later on the same day, Applicant faxed a copy of the
floor-crossing notification to the lEC's national offices in
Pretoria.
17.
Applicant states in his Replying Affidavit that his decision to fax
the notice to the I EC's national office later in the
day, was an
extra precautionary action. He was of the view that the
floor-crossing procedure had been completed at the lEC's
offices in
George.
18.
Applicant again faxed the floor-crossing notification to the lEC's
Pretoria office at 23h39 on the 14
th
September 2007 and again at 20h09 on the 15
,h
September 2008.
19.
It is common cause that the floor-crossing notification of Applicant
was received at the lEC's national office in Pretoria
at 17h05 on 14
September 2007. According to an e-mail notification from Mr. M
Hendrickse, a Senior Manager of the IEC in Pretoria,
addressed to
the attorney representing the First Respondent in this matter, no
notices from Applicant were received prior to
that time. Mr.
Hendrickse states furthermore that Ms Block denied that she had
agreed to fax the Applicant's notice to the Chief
Electoral Officer
at the Pretoria office. According to her she had advised the
Applicant to send the notification from his own
office. This is, of
course, hearsay evidence. The version of Applicant regarding
'acceptance' of his notification and the transmission
thereof by Ms
Stock is disputed by the First Respondent.
20.
It is common cause that on Sunday 16 September 2007 a facsimile,
dated 14 September 2007, was transmitted to the Applicant
by the
same Mr. Hendrickse, acknowledging receipt by the IEC of his
floor-crossing notification.
LOSS
OF MEMBERSHIP
21.
In terms of Schedule 68 to the Constitution of the Republic of South
Africa, Act 10S of 1996, a councillor not representing
a ward in a
Municipal Council, ceases to be a member of that council if that
councillor, other than in accordance with item 2,
3, or 7, ceases to
be a member of the party which nominated that councillor as a
candidate in the ward election. (Item1(2)(a))
22.
Item 2 provides that, subject to item 4, a so-called list
councillor' such as the Applicant, remains a councillor if he
ceases, during the floor-crossing period, to be a member of the
party that nominated him, subject to certain conditions.
23.
Item 4 provides that during the floor-crossing period a councillor
may only once change membership of a party, become a member
of a
party, or cease to be a member of a party 'by
informing
an officer designated by the Electoral Commission thereof in
writing, and if that councillor has changed membership
of a party or
has become a member of a party, by submitting to that officer
written confirmation from the party in question that
he or she has
been accepted as a member of that party'.
24.
The floor-crossing provisions do not assist a list councilor who
during the floor-crossing period resigns from the party that
nominated him and thereafter tries to cross the floor in the manner
described above. Such a councillor would lose his membership
ex
fege
by
virtue of item 1, which would then preclude him or her from making
use of the provisions of items 2 and 4.
25.
The Applicant states that he had a letter of resignation as a member
of the (D prepared on 13 September 2007. On the 14
th
September 2007 this letter of resignation was printed and signed.
The letter was addressed to 'DIE IEIER, INDEPENDENT DEMOCRATS,
M28,
Marks Building, Parliament, Plein Street, Cape
Town,
8000
and was faxed to the Registered and National Office of the ID after
5pm on the 14
th
September 2007.
26.
Applicant eventually conceded that his letter of resignation, which
he alleges was sent as a courtesy gesture to the Leader
of the ID,
was actually transmitted a few minutes before his floor-crossing
notification to the IEC.
27.
It therefore has to be established whether the Applicant's
resignation letter, addressed to the Leader of the ID, constituted
his formal resignation, which would have the effect of stripping him
of his seat on the Municipality Council.
28.
The
Draft Constitution of the ID (the only Constitution of the ID, the
'ID Constitution') sets out the contractual relationship
between its
members, office bearers and public representatives. The ID
Constitution provides in clause 15.1 that a member resigns
when:
'1.5.1
He/She resigns in writing or verbally, addressed to the SEC or any
structure of the Party.'
29.
There is no indication or allegation that Applicant ever resigned
verbally. Clause 23 of the ID Constitution provides that
the Branch
Executive Committee is referred to as the BEC. The letter was not
addressed to the BEC.
30.
The Structures of the party are referred to and defined in pars 20
to 70 of the ID Constitution. It is not indicated anywhere
that the
Leader of the Party is recognised as a structure of the Party.
31.
Inter alia
the
National Executive Committee, (NEC), is a structure of the Party.
The NEC consists of the Leader of the Party
r
the National Chairperson, The Secretary-General, etc.
32.
Clause 71.1 of the ED Constitution sets out the roles and functions
of the Leader of the Party. I have not found any indication
in the
IO Constitution that the Leader of the Party has any role or
function with regard to the resignation of members. In terms
of the
provisions of Clause 16 of the Constitution, the Leader of the Party
or the Provincial Executive Committee (PEC)
f
who is defined as a structure of the Party, may at any time suspend
the membership of any person who is charged with having transgressed
the provisions of clause 15 or is in breach of any rule in the Code
of Conduct of the party.
33.
The resignation letter was therefore not formally or legally
effective when the Applicant submitted his floor-crossing form
to
the IEC. Hence the resignation letter forwarded to the ID's Leader,
did not strip the Applicant of his seat as provided for
En Item 1 of
Schedule 6B to the Constitution.
34.
It is common cause that the IEC received the floor-crossing
notification just after 17h00 on 14 September 2007. Floor-crossing
occurs when the notification is handed to the iEC (Item 4(2) of
Schedule 6B to the Constitution).
35
Applicant accordingly crossed the floor before he formally,
effectively or legally terminated his membership of the ID in terms
of the provisions of the ID Constitution. There is no indication or
allegation that any letter of resignation of the Applicant
was ever
addressed or received by the BEC or a structure of the party, as
required by the ID Constitution.
REVIEW
RELIEF DISCRETIONARY
36.
It is trite law that review relief is discretionary. It was
submitted on behalf of First Respondent that the Court should
refuse
the relief claimed by Applicant based on an exercise of this
residual discretionary power, in view of certain circumstances.
The
Courts will generally not lightly deprive an Applicant of relief. In
this particular case I am not convinced that the objections
and
inconveniences raised by the ID to the granting of an order are
justified or that the Court should exercise a discretion
not
favoring the Applicant.
37.
Inter alia,
the
Court is not convinced that the retrospective reinstatement of the
Applicant to the position on the Municipality from which
he has been
removed will be impractical or lead to a threat to the Municipality.
There are precedents where the Courts have reinstated
politicians
into positions from which they were improperly removed. I can find
no compelling reason or principle preventing the
Court from granting
Applicant the relief he seeks in respect of his reinstatement
38.
In view of the concerns raised that the relief sought by Applicant
may have deleterious consequences for the Municipality,
the
Applicant has indicated that he only seeks to be reinstated with
prospective effect. He accepts that he only has a claim
to his seat
on the Municipality from the date on which this Court grants him
relief. This tailored relief is justified in terms
of section 172(1)
of the Constitution of the Republic of South Africa, in which the
Court is specifically empowered to grant
an order limiting the
retrospective effect of the declaration of invalidity.
39.
The Court does not accept, as submitted by the First Respondent,
that section 93 B of the Strictures Act has the effect of
ousting
this Court's power to grant the Applicant the retief he requests. A
Court should be slow to find that its power to declare
an action
unlawful has been ousted. Section 93 B deaEs with the prescribed
time periods for publication of the results of floor-crossing
on
Municipal Councils. I agree with Mr. BorgstronVs contention that the
prescribed time period of seven days, within which the
floor-crossing results must be published, was inserted to ensure
that the IEC acted swiftly and to give parties a remedy if the
IEC
faiEed to act with due haste. It cannot be intended to oust this
Courts jurisdiction after the seven days have elapsed.
DELAY
TO LAUNCH
40.
The ID argues that the Applicant should be unsuited due to his
failure to launch an application for a period of a month after
the
date on which he became aware of the decisions now under review. It
is suggested that this is an unreasonable delay in terms
of section
7(1) of PAJA.
41.
I am not impressed by this argument.
It
is
clear from the voluminous documentation filed in this matter that
there were efforts made to settle the matter. Not to do so
would
have been irresponsible. Applicant states that when court
proceedings finally appeared unavoidable, he had a commitment
to
visit his ailing brother in the UK. I am satisfied that Applicant
proceeded with the Application without undue delay.
APPLICANTS
MOTIVATIONS
42.
First
Respondent also argued that the IECS decision, which is under
review, is justifiable and should be upheld on the basis that
Applicant's motive for crossing was suspect and tainted by greed.
These allegations have not been proved and
I
find
that the Applicants motives are largely irrelevant. The lEC's
decision was based on the incorrect view that Applicant was
no
longer a councillor, as he had resigned prior to crossing the floor.
In any event
I
am
not aware of any power of the IEC to refuse to process a
floor-crossing notification based on an assessment of impure motives
The JEC has no discretion or residual power to refuse in this
regard.
JURISDICTION
43.
It was argued on behalf of the First Respondent that this Court does
not have the necessary jurisdiction to hear the matter,
as the
decisions taken by the IEC were taken in Pretoria and that the
proceedings should have been launched there.
44.
Section 19(1) (a) of the Supreme Court Act sets out the persons over
whom and matters in relation to which provincial and
local divisions
have jurisdiction. It provides that a provincial or local division
shall have jurisdiction over all persons residing
in or being in and
in relation to all causes arising and all offences triable within
its area of jurisdiction and all other matters
of which it may
according to law take cognisance.
45.
In terms of the provisions of Section 19(1) (b) of the Supreme Court
Act the provincial or local division shall also have
jurisdiction
over any person residing outside its area of jurisdiction, who is
joined as a party to any cause in relation to
which such provincial
or local division has jurisdiction.
46.
Jurisdiction in cases involving review relief is specifically dealt
with in section 6 of the Promotion of Administrative Justice
Act,
Act 3 of 2000. ('PAJA'), read together with the definition of a
court
1
in section 1, in terms of which any High Court can hear an
application for the review of administrative action as long as the
party affected is domiciled in the area of the Court or the adverse
effect will be experienced in the area of the Court
47.
The person affected by the decisions, the Applicant resides in the
area of jurisdiction of this Court and the effects of the
decisions
under review are experienced in the area of jurisdiction of this
Court.
REVIEW
RELIEF AGAINST THE MUNICIPAL MANAGER AND THE IEC
48.
The
First Respondent furthermore argues that the Municipal Manager and
the IEC made no 'decisions' which can be subject to review.
The
suggestion is that the Municipal Manager acted as a conduit of
information and did not determine rights. As regards the IEC,
the
suggestion seems to be that the Applicant lost his seat as a matter
of law and was replaced by
Fourth Respondent based on information
supplied, acting without discretion.
49.
On behalf of Applicant it has been argued that if these propositions
are not incorrect it would mean that Applicant was removed
and
replaced without any decision being taken and he would be left
without remedy.
50.
I agree with Mr. Borgstrdm's argument on behalf of Applicant that
the decisions and actions taken by the Municipal Manager
and the IEC
were based on erroneous assumptions of fact and law, namely that
Applicant had resigned before crossing the floor.
The resignation,
flawed as it was, is a fact which should have been ignored by the
IEC. In the circumstances the actions of the
Municipal Manager and
the IEC fall to be set aside in terms of the provisions of section
6(2) of PAJA.
RELIEF
AGAINST THE IEC
51.
The
Applicant requests this Court to direct the IEC to process and give
effect to his floor-crossing application. The Court is
empowered to
grant the relief in terms of the provisions of PAJA, which
authorises this court to direct the IEC to act in a manner
the court
requires.( Section 8(1)(a)).
52
In terms of section 8(1)(c)(ii)(aa) of PAJA the court is authorised
to 'substitute or vary' the lEC's decisions or to correct
a defect
resulting from such a decision.
53.
This
Court is in as good a position as the IEC to determine the proper
processing of Applicant's floor-crossing application and
to
determine that he remained a councillor at the time when his
floor-crossing notification was submitted.
10%
REQUIREMENT
54.
In terms of item 2(1) of schedule 68 to the Constitution of the
Republic, a councillor may only cross the floor if he, together
with
one or more other councillors who, during the floor-crossing period
ceased to be members of the original
party,
represent
not less than 10% of the total number of seats held by the original
party in that Council.
55.
The Applicant was one of two councillors representing the ID in the
Council. He constituted 50% of the IDs representation
by himself He
accordingly does not fall foul of the 10% requirement.
THE
REGISTRATION OF THE EF
56.
It
has been established that the Eden Forum, the party to which
Applicant crossed, was properly constituted and registered by
the
IEC.
ORDER
57.
I accordingly find that Applicant is entitled to the relief he
seeks and an order is granted as follows:
1. The
decision of and action taken by Second Respondent, (the Municipal
Manager) on or about 17 September 2007, to report to
Third
Respondent, (the IEC) that the Applicant had vacated his seat on the
Council of the Eden District Municipality (the Municipality)
is
corrected and set aside;
2. The
decision of and action taken by Third Respondent (the IEC), taken on
or about 20 September 2007, to declare as 'non-compliant'
a
floor-crossing notification which the Applicant had transmitted to
it on 14 September 2007, in terms of which he gave notice
that he
had changed membership from the First Respondent (the ID) and joined
the Eden Forum (the EF) is corrected and set aside
and it is found
that the notification was duly and properly filed in accordance with
all the requirements of item 4(2) read with
item 2 of schedule 6B to
the Constitution of the Republic of South Africa, 1996;
3. The
decision of the IEC taken on or about 21 September 2007 to declare
the seat held by the Applicant on the Municipality's
Council to be
vacant, is set aside;
4. The
decision of the IEC taken on or about 21 September 2007 to fill the
seat held by the Applicant on the Municipality's Council,
with
Fourth Respondent is set aside;
5. It
is ordered that Applicant validly became a member of the EF on 14
September 2007 and holds his seat on the Municipality
Council on
behalf of the EF;
6. The
IEC is requested and directed to process and give effect to the
Applicant's floor-crossing notification, referred to in
par 2 above
and to take all steps necessary, including publication in a
Government Gazette, to recognise the Applicant as a councillor
on
the Municipality's Council of the Eden District Municipality,
holding a seat on behalf of the EF;
7. Applicant
shall be entitled to be reinstated in his seat on the Municipality
Council from the date of this Court's order. Applicant's
reinstatement will not affect the validity of past decisions of the
Council;
The
costs of the Application shall be paid by First Respondent.
ELIZE
STEYN, A J
1