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[2007] ZAWCHC 80
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Pheko v Speaker of the National Assembly and Another (10575/2007) [2007] ZAWCHC 80 (16 August 2007)
11
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
10575/2007
DATE
: 16
AUGUST 2007
In
the matter between:
SALZWEDEL
ERNEST MOTOSOKO PHEKO
Applicant
And
THE
SPEAKER OF THE NATIONAL
ASSEMBLY
First
Respondent
PAN
AFRICANIST CONGRESS OF
AZANIA Second
Respondent
JUDGMENT
DAVIS,
J
Introduction
[1]
On 11 June 2007 a notice was issued to applicant calling upon him to
attend a disciplinary enquiry of the National Disciplinary
Committee
("NDC") of second respondent concerning,
inter
alia,
an
alleged failure to account for funds in the Robert Sobukwe account
which was under his control while he had been the president
of the
second respondent. Applicant requested further particulars
regarding the charges on 18 June 2007. Healso objected
to the
manner in which the NDC was constituted.
[2]
He did not attend a disciplinary hearing which took place on 20 June
2007. In his absence he was found guilty and a sanction
of expulsion
was imposed. This decision was confirmed by the National Executive
Committee ("NEC") of second respondent
on 30 June 2007 and
it was communicated to applicant on 2 July 2007.
[3]
On 6 July 2007, applicant brought proceedings in the
Witwatersrand Local Division of the High Court ("WLD") in
which he sought,
inter
alia,
to
have the decisions of the NDC and the NEC overturned essentially on
the basis that the NDC had been improperly constituted
because it
had been appointed by an NEC which as required by second
respondent's constitution, was not properly elected.
[4]
It appears that, at second respondent's National
Congress held in October 2006, some 17 of the 24 members
of the
NEC had not been elected. At the Congress the delegates,
after electing seven office
bearers, resolved that the rest
of the members of the NEC be selected from a list of 133 candidates
by the president. There
were also other procedural objections
which have been raised by applicant against the decision of the NDC
and the subsequent
ratification by the NEC.
[5]
On 3 August 2003,
Gildenhuys,
J
dismissed the application. The learned judge found that the
challenge to the manner in which the NDC was constituted had to fail
as it was an impermissible collateral challenge to the decision of
the NDC. The learned Judge found that no direct challenge
had been
brought to the manner in which the NEC was constituted and it was
accordingly capable of making valid decisions such
as, for example,
the appointment of the NDC. To cite the judgment of
Gildenhuys,
J
:
"The
fact is, the National Executive Committee members believed that that
Committee was properly constituted and there had
been no direct
judicial challenge of the constitution of the Committee. The
collateral challenge by the applicant in these proceedings
should,
in my view, not be permitted".
[6]
Furthermore,
Gildenhuys,
J
rejected a veritable litany of procedural objections against the
disciplinary process (at para 28). In particular, he remarked:
"I
get the impression that most, if not all, the
procedural
objections are afterthoughts. The
applicant
should have raised them before or at the
disciplinary
hearing. He chose not to attend the
hearing.
In my view, none of the procedural
shortcomings,
indeed there are shortcomings,
resulted
in an unfair hearing or an unfair result".
[7]
On 31 July 2007, that is before the judgment was handed down,
applicant's attorney caused an email to be sent to both first
respondent and second respondent. In this email applicant's attorney
gave notice of an internal appeal which was to be lodged
against the
decision of the NDC and accordingly requested second respondent not
to replace the applicant pending the outcome
of both the judgment
and the internal appeal (if that was necessary). This request was
refused in a letter on 2 August 2007 which
was generated from second
respondent's attorney.
[8]
On 2 August 2007, second respondent's Chief Whip, Mr Lekotse,
wrote to first respondent as follows:
"Our
previous correspondence regarding the dismissal of Dr S E M Pheko as
a PAC member has a reference. We now wish to advise
your good
offices that Mrs Thembeka Jali will replace Dr Pheko [the
fax is indistinct] as an MP with immediate
effect. We
herein also attach a revised
candidates'
list for your easy reference".
To
this, first respondent replied:
"I
acknowledge receipt of your letter of 2 August 2007 in which you
informed me of the PAC's intention to replace
Dr S E M Pheko
as its member of the National Assembly. I wish to inform you that I
have not been formally informed of Dr Pheko's
dismissal from the
PAC. The PAC's request to replace Dr Pheko can therefore not be
given effect to until such time that I
have been informed of his
dismissal from the PAC. The review of your party list has been
processed".
[9]
It appears that some time during these proceedings, applicant
appointed another attorney who then submitted grounds of appeal
to
second respondent. Requests were also made to second respondent to
provide an undertaking not to replace applicant pending
the outcome
of the appeal. When this undertaking was not given, the present
application was launched on 5 August 2007, to be
heard on 6 August
2007. On 6 August 2007, the matter was postponed to 13
August 2007. Legal representatives of
the parties agreed on a
timetable for the filing of answering and replying affidavits and it
was also agreed that no action would
be taken pursuant to the
replacement of applicant.
Second
respondent's arguments
[10]
Two main arguments have been put up by Mr
Ncongwane
on
behalf of second respondent as to why any relief sought by applicant
to stay the process of swearing in of a new representative
of
second respondent in the National Assembly should not be
granted: (i) the question of a waiver of domestic remedies;
(ii) the
time of lodgement of an appeal. This application is not for final
relief. This dispute is not about applicant's case
and
the strength thereof on appeal to any internal organ of second
respondent. It concerns the questions of whether this kind
of
interim relief is justifiable on the facts.
[11]
Second respondent has contended that no relief is competent
notwithstanding the apparent justification for such relief on
the
basis that the balance of convenience would dictate that this kind
of interim relief should generally be granted.
[12]
I turn, therefore, to deal with the two issues raised by second
respondent; waiver and lodgement of the appeal.
Waiver
Mr
Ncongwana
referred to an affidavit deposed to by applicant for the purposes of
the WLD proceedings in which he apparently stated under
oath that it
is legally untenable for him to appeal the decision of the
National
Disciplinary Committee to the National Executive
Committee of the second respondent (averment set out in the
answering affidavit
deposed to by Mr Tabane).
[13]
There may well be substance in the allegation that applicant
has played (either directly or through legal advice) an
opportunistic game, but that on its own does not amount to waiver.
The crisp question is this: it is
alleged by Mr Tabane that
applicant gave the following reasons for not exhausting the internal
remedies available to him when
the matter was heard
before
Gildenhuys,
J
:
"11.2.1
That the incumbent National Executive Committee has not been
constitutionally elected and therefore lacks legitimacy.
It does not
have the powers to appoint the National Disciplinary Committee.
11.2.2
The
incumbent NEC has already considered the findings of the National
Disciplinary Committee.
11.2.3
The
incumbent of the NEC has already expressed itself by endorsing
those findings and therefore is
functus
officio".
In
my view, this is an insufficient range of allegations to conclude
that second respondent discharged the
onus
of
showing that applicant waived his right to an internal appeal.
[14]
There is no doubt that applicant sought to diminish the possibility
of a fair internal appeal. It may well be that applicant
was not as
candid with the Court in the WLD as some might have expected that he
should have been. However, there is no evidence
that he did more
than urge the WLD to hear him before recourse to what he considered
to be an internal appeal devoid of viable
prospects of success. In
Laws
v Rutherford
1924 AD 261
at 263,
Innes,
JA
set out the requirements for the establishment of waiver thus:
"The
onus
is
strictly on the appellant. He must show that the respondent, with
full knowledge of her right, decided to abandon it, whether
expressly or by conduct, plainly inconsistent with an intention to
enforce it. Waiver is a question of fact, it is always...to
establish".
[15]
In this case it appears as if the argument concerning exceptional
circumstances may have been employed, that is that the
central
argument of applicant was that although there was a duty to exhaust
internal remedies, that duty could be disregarded
by a court in the
case where there were exceptional circumstances. Section 7 of the
Promotion of Administrative Justice Act (PAJA)
which sets out a
procedure for review provides that "a court may not hear an
application for review unless any internal
remedy provided for in
any other law has first been exhausted (section 7(2)(a). Where a
court in an application for review is
of the view that such remedies
have not been exhausted, it must instruct the parties to first
exhaust such remedies. However,
in terms of section 7(2)(c) in
exceptional circumstances a court may, on application, exempt a
person from the duty to first
exhaust internal remedies if the
court...deems it in the interests of justice".
[16]
The duty to exhaust internal remedies was first developed in the
case of
Shanes
v South African Railways & Harbours
1922 AD 228
where
Solomon,
JA
developed
the doctrine. This was later approved by
Centlivres,
JA
in
Jockey
Club of South Africa v Feldman
1942 AD 340
at 362. In
Shanes
,
Solomon.
JA
said:
"But
the question still remains at what stage of the proceedings is
it competent for an aggrieved servant to
have recourse to a
court of law? Is he entitled to do so at the initial stage, so as
soon as a penalty has been inflicted upon
him or only at the final
stage when he has exhausted all the remedies which under the Act are
open to him?...l am clearly of
the opinion that that it is only if
the irregularity or illegality has been persisted in up to the final
stage that it is competent
to the servant to take legal proceedings
for,
non
constat,
that
if he has appealed to the various tribunals which under the
Act are open to him, the irregularity complained of may
not have
been set right and justice done to him".
[17]
Clearly, the principle of exhausting internal remedies is important
because it exists to ensure that organisations such as
second
respondent are able to operate without undue influence by a court.
Indeed, I should say that there is a problem in courts
having to
deal with political questions of this kind. When a relationship
between a member of a political party and a political
party, has
become fraught it appears that the court becomes the
last
desperate refuge in such cases. A court should be reluctant to
interfere in what are essentially political questions.
For this
reason, the internal remedy route plays a vital role.
[18]
In this case, however, it appears from my reading of the judgment of
Gildenhuys,
J
,
together with the affidavit from Mr Tabane, that a range of reasons
were put up by applicant as to why the matter should be
heard in the
WLD. There is nothing on the papers nor in the judgment which
indicates that the applicant stated expressly that
there was no
internal appeal which he wished to invoke. Rather he appears it take
the view that it was preferable that the matter
be heard by the WLD
because of the difficulties which he had raised. That approval
appears to fit within the argument about exceptional
circumstances,
rather than constitute waiver of the internal appeal. Accordingly,
it appears that the second respondent has not
discharged what is a
heavy
onus
that
waiver of a right to an internal appeal has taken place in this
case.
[19]
I should make one further remark that none of these questions are
expressly dealt with in the judgment in the WLD, making
matters more
difficult for this Court. There is however no other reasonable
inference which I can draw from the papers which
have been placed
before me.
Appeal
out of time
[20]
I turn therefore to deal with the second argument, namely an appeal
lodged out of time. Mr
de
Waal
,
who appeared together with Mr
Osborne
on behalf of the applicant, submitted that the only point raised by
second respondent relevant to this application was the allegation
that the right to appeal lapsed because it was not instituted within
the 14 day period provided for in clause 26.1 of second
respondent's
constitution. Second, respondent's constitution provides that in
terms of clause 25.4 of the constitution, a disciplinary
committee
has to inform the member in writing of the outcome of the hearing
within 21 days after its decision has been ratified
or otherwise by
the appropriate level of authority.
[21]
In this case, applicant was informed by the NDC on 2 July 2007 of
its decision. Clause 25.4 requires that the NDC has to
inform the
applicant of his right to appeal. This was done but it was stated
that the applicant is entitled to an appeal in terms
of clause 25.4
of the constitution. A right of appeal is not conferred by clause
25.4 but by clause 26. Mr
de
Waal
therefore submitted that this mistake would normally have been
trivial if the right of appeal entrenched in clause 26 had been
clearly described. This, however, was not the case. Clause 26
conferred, in his view, two different rights on
an
aggrieved person. Firstly, in terms of clause 26.1 a person may
within 14 days of the decision of the relevant disciplinary
body
lodge an appeal to the RDC, PDC and finally to the NDC. While Mr
de
Waal
conceded that this clause did not expressly deal with the situation
where the NDC was the committee of first instance, he submitted
that
it was clear from clause 8.1.6 read with clause 26.3 that in such a
case the apply would lie to the NEC.
[22]
Secondly, in terms of clause 20.3 in limited cases where the NEC
regarded the matter as of national significance, a person
aggrieved
by the final decision of the NEC should have a right of appeal to
the National Congress or annual conference. Such
an appeal shall be
in writing and not later than a month from the date on which the
decision of the appeal case was known.
[23]
The 14 day period referred to in clause 26.1 expired on 4 July 2007
and the one month period referred to in clause 26.4
expired on 2
August 2007. Therefore it is clear that the appeal of the applicant
is out of time; that is out of the 14 day period
but within the one
month period. The
question
therefore arises as to whether there remains a viable possibility of
an appeal being heard. Mr
de
Waal
referred
in this connection to the decision in the
Hamata
v Chairperson:Peninsula Technikon Internal Disciplinary Committee
2002(5) SA 449 (SCA), a case which
concerned
external legal representation and a rule which provided that a
student may conduct his or her own defence or may be
assisted by any
student or member of staff of the technikon. Such
representative shall voluntarily accept the
task of representing
the student. If the student is not present the
committee may nonetheless hear the case,
make a finding and
impose a punishment.
[24]
The question arose as to whether this particular rule barred the
possibility of external legal representation from taking
place. The
question as to whether an internal body had a discretion to go
beyond the rule, vexed the Court in
Hamata,
is of equal application in such case.
Marais,
JA
set out the problem thus:
"But
if the correct point of departure of interpreting
the
rule is that constitutionally the rule requires the
flexibility
to which I have referred...the absence of
any
express provision of the rules conferring the
discretion
does not matter. The question is rather
whether
there is sufficient indication in the rules
that
any such residual discretion on the part of the
IDC
was intended to be excluded. The answer, in
my
opinion, is that it is not. The fact that a
student's
entitlement to representation has been
qualified
to achieve the purpose referred to in
paragraph
19 is not of itself a sufficiently strong
indication
of an intention to exclude a residual
discretion
to allow representation of a different kind
in
appropriate circumstances", (at paras 19-20)
[25]
In my view, this reasoning must be applied in the present case. The
mere fact that clause 26.1 confers a right to appeal
as a right to
the NEC within the 14 day period does not mean that the NEC is not
possessed of a residual discretion to hear an
appeal lodged out of
time. That discretion is one that must be exercised legally.
Accordingly, to argue that the appeal was lodged
out of time, is not
itself destructive of
any
appeal which might still have to be heard by the NEC.
[26]
I must concede that this is not an easy case because of the approach
which was adopted by applicant before the WLD. The judgment
of
Gildenhuys,
J
based, of course, on the papers which were presented to him,
indicates that the learned Judge did not regard any defence raised
by applicant as being of significant merit; that is a defence to his
expulsion. But an appeal will be decided on the facts and
there may
well be, as urged upon me in the founding affidavit, further
argument and evidence which applicant can bring to bear
in
justifications of his appeal.
[27]
The point that needs to be made, however, that this is an
application for interim relief. Second respondent can convene an
appeal body and, provided it follows the rules of natural justice,
it may well find that the applicant's defence notwithstanding,
he
stands to be dismissed. By contrast, if applicant succeeds and he
has already been replaced as a member of Parliament, any
success
which he might have enjoyed at the appeal would be completely
illusionary.
[28]
With all the jurisprudential fireworks that lit up the court when
the arguments were presented, the key question remains
that of the
balance of convenience. This point raised in the founding
affidavit was unfortunately never argued before me; yet
it is a
point that seems to be definitive in cases of this nature.
[29]
In short, in the founding affidavit applicant states:
"I
stand to suffer severe inconvenience if this application is
not granted and I prevail subsequently in the appeal
for the NDC.
Neither the first nor the second respondent will suffer any
inconvenience if the swearing in of my successor is
postponed. I
am willing to agree to an extraordinarily expedited
appeal procedure in order to minimise any
inconvenience that the
second respondent may claim".
Whilst
I would disagree that the second respondent will not suffer any
inconvenience if the swearing in of the successor is postponed,
when the Court weighs the inconvenience of convening an appeal
body compared to the impossibility of applicant being
reinstated as a member of Parliament, were he to win the appeal,
then it is clear that this question has to be cardinal
to the
evaluation of the competiting arguments.
[30]
For these reasons, therefore, the following order is made:
1.
Pending
the disposition of applicant's appeal to the National Executive
Committee of second respondent against the decision of
second
respondent's National Disciplinary
Committee to find him guilty
on four counts of misconduct and to expel him from the party:
First
respondent be interdicted from swearing in any person to fill the
seat in the National Assembly held by applicant;
second
respondent be interdicted from taking any steps to replace
applicant in the National Assembly;
declaring
that the seat of applicant in the National Assembly is not vacant.
2.
As
to costs, Mr
de
Waal
urged that I should award the costs of two counsel. Frankly this was
not so difficult a legal case that it necessitated two counsel.
Accordingly,
second respondent is merely ordered to pay the costs
of the application.
DAVIS,
J
1