Van Zyl v New National Party and Others (2000/002) [2003] ZAWCHC 17; [2003] 3 All SA 737 (C) (22 May 2003)

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[2003] ZAWCHC 17
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Van Zyl v New National Party and Others (2000/002) [2003] ZAWCHC 17; [2003] 3 All SA 737 (C); 2003 (10) BCLR 1167 (C) (22 May 2003)

IN DIE HIGH COURT OF
SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE NO: 2000/002
In
the matter between:
AUDREY
EUNICE VAN ZYL
Applicant
And
THE
NEW NATIONAL PARTY
1
st
Respondent
THE
AFRICAN NATIONAL CONGRESS
2
nd
Respondent
LYNNE
BROWN
3
rd
Respondent
THE
NEW NATIONAL PARTY, WESTERN CAPE
4
th
Respondent
THE
EXECUTIVE COMMITTEE OF THE NEW
NATIONAL
PARTY, WESTERN CAPE
5
th
Respondent
FREDDIE ADAMS
6
th
Respondent
JUDGMENT: 22 MAY 2003
VAN
REENEN, J:
1] The
applicant, a qualified medical doctor, who at the time was being
employed as a clinical researcher by pharmaceutical companies
in
Belgium, was during 1998 approached by leaders of the first
respondent, the New National Party (the NNP), with a view to
becoming
involved in politics in the Province of the Western Cape.
The applicant relocated to the Republic of South Africa and soon
became
a member of the Western Cape Provincial Parliament (the
Provincial Parliament) representing the New National Party of the
Western
Cape (NNPWC). The applicant was during June 2001 appointed
as Minister of Constitutional Affairs in the Provincial Cabinet.
2] The Federal Council of the NNP
during or about October/November 2001 resolved that the NNP would
disassociate itself from the Democratic
Alliance, an alliance that
had been established between the Democratic Party (the DP), the NNP
and the Federal Alliance. Mr Gerald
Morkel, the then Premier of the
Province of the Western Cape, disapproved of the resolution and his
stance thereanent led to the
development of disaffection between
himself and leaders of the NNP.
3] On
1 November 2001, members of the NNP staged a demonstration at the
entrance of the Western Cape Provincial Administration Building
(the
seat of the Provincial Parliament) in support of Mr Morkel.
4] The applicant was alleged to have
been involved in arranging the demonstration and to have disavowed
any involvement therein when
she was confronted by the leadership of
the NNP and the NNPWC.
5] As
a result of the said disaffection Mr Morkel vacated his positions as
leader of the NNPWC and premier of the Province of the
Western Cape.
6] In disregard of a resolution taken
by the caucus of the NNPWC that the proposing of any motions in the
Provincial Parliament had
first to be cleared with the party’s
Chief Whip, as well as an arrangement between the Whips of the
political parties represented
in the Provincial Parliament that no
motions would be proposed by any of their members at its sitting on
27 November 2001, the applicant
proposed a motion of thanks to Mr
Morkel.
7] On 28 November 2001 and because of
the applicant’s said conduct, the Head Council of the NNPWC in
terms of section 38.2 of its
constitution, resolved to institute
disciplinary proceedings against the applicant; appointed a
disciplinary committee consisting
of three persons as well as a pro
forma prosecutor; and formulated the charges that the applicant had
to face.
8] Disciplinary proceedings against
the applicant commenced on 5 February 2002 but were postponed to 7
February 2002 because she was
indisposed. On the latter date the
matter was postponed to 2 March 2002. On thát date the applicant’s
counsel moved for the
recusal of the members of the disciplinary
committee. They declined to do so and made their decision known on 6
March 2002. As
a consequence, the applicant on 8 March 2002,
launched an application against the individual members of the
disciplinary committee
and the NNP in which she sought an order
reviewing and setting aside the said decision.
9] The applicant’s attorney Mr
Francois du Toit, on 11 March 2002, sought and obtained confirmation
that, pending finalization of
the review proceedings, the
disciplinary hearing would be held in abeyance.
10] Shortly after the disciplinary
proceedings had commenced the applicant was relieved of her post as
Minister of Constitutional
Affairs and subsequently nominated by the
NNPWC as a permanent delegate to the National Council of Provinces
(NCOP) and appointed
by the Provincial Parliament. It appears not to
be in issue that the applicant’s membership of the Provincial
Parliament terminated
when she, upon being requested to do so,
resigned as a member of the Provincial Parliament prior to being
nominated and appointed
as aforementioned.
11] Mr
Hendrik Albertyn Smit (Mr Smit) the Chief Whip of the NNPWC in the
Provincial Parliament, in compliance with the provisions
of Standing
Rule 123(1) of the Western Cape Provincial Government, handed a
signed copy of a notice of motion in the following terms
to the
secretary of the Provincial Parliament before noon on 11 March 2002,
to be dealt with by it on 12 March 2002.
“
1. The Chief Whip
(NNP): That the House has lost confidence in Dr A.E. van Zyl as a
permanent delegate to the National Council of
Provinces”
12] That motion appeared
as an item on the Order Paper of the Provincial Parliament of 12
March 2002 that was distributed in the NCOP
and posted on the
internet during the course of that morning.
13] When the Provincial Parliament
convened at 14h15 on 12 March 2002, Mr Smit proposed a motion of no
confidence in the applicant
in the terms printed on the Order Paper.
When the Leader of the Opposition in the Provincial Parliament, the
DP, required that motivation
be provided and expressed the view that
the rules of natural justice found application, Mr Smit’s response
was that there were
no provisions that prescribed that reasons had to
be provided for a motion of no confidence and referred to sub-section
62(4)(c)
of the Constitution which provides that a person ceases to
be a permanent delegate to the NCOP if he or she has lost the
confidence
of the provincial legislature and is recalled by the party
that nominated him or her. The Speaker of the Provincial Parliament,
the third respondent, at the request of the Leader of the Opposition
allowed a Declaration of Vote. The spokesperson of the African
National Congress (the ANC) supported the motion on the basis that
to the best of his party’s knowledge the applicant had not
fulfilled her functions in the Provincial Parliament; had “not
been visible”; and had not performed her functions adequately
in
the standing committees and “elsewhere”. Mr Smit declined to
elaborate and contented himself with the terms of the motion
as
proposed. The Leader of the Opposition opposed the motion on the
basis that the members of the Provincial Parliament had not
been
provided with information sufficient to enable them to apply their
minds to the question whether the applicant had represented
the
Parliament of the Western Cape suitably or not. Of the two minority
parties one spoke in support of the motion: the other declined
to do
so. The motion was put to the vote and adopted. When a Division was
called for 35 representatives voted in favour of the
motion and five
against. The representatives of the other parties abstained.
14] At approximately 15h15 on 12 March
2002, and whilst she was attending a committee meeting of the NCOP,
the applicant was handed
an envelope containing a typed note signed
by Mr Smit in the following terms:
“
Hiermee stel ek u,
namens die NUWE NASIONALE PARTY van die WESKAAP, in kennis dat die
WESKAAPSE PROVINSIALE PARLEMENT vandag (12
Maart 2002) tydens ‘n
SITTING van díe RAAD ‘n mosie aanvaar het, dat vertroue in u, as
afgevaardigde in die Nasionale Raad van
Provinsies (NRvP) verloor
is.”
15] The Executive Committee of the
NNPWC (the Executive Committee) during a meeting held at 18h30 on 12
March 2002 under the acting
chairmanship of Mr Pierre Uys (Mr Uys),
resolved to recall the applicant as a permanent delegate to the NCOP.
That resolution is
herein referred to as the recall resolution.
16] The acting Head Secretary of the
NNPWC, on 13 March 2002, by means of a hand-delivered letter, advised
the applicant as follows:
“Geagte
dr Van Zyl
Op ‘n vergadering van
die Uitvoerende Komitee van die Nuwe Nasionale Party van die Wes-Kaap
wat op Dinsdag, 12 Maart 2002 plaasgevind
het, is daar besluit dat u
uit hoofde van die bepalings van artikel 62(4)(c) van die Grondwet
van die Republiek van Suid-Afrika,
1996, met onmiddellike effek
teruggeroep word as vaste afgevaardigde na die Nasionale Raad van
Provinsies.
Die
voorsitter van die Nasionale Raad van Provinsies is dienooreenkomstig
ingelig.”
17] The Executive Committee at an
urgent meeting held at 10h00 on 13 March 2002, under the chairmanship
of the then provincial leader
of the NNPWC, Mr P J Marais,
unanimously resolved to nominate Mr Freddie Adams (Mr Adams) in the
place of the applicant as a permanent
delegate to the NCOP. The
written nomination, duly accepted, was on 14 March 2002 forwarded to
the secretary of the Provincial Parliament.
The minutes of the
proceedings of the Provincial Parliament of 15 March 2002, reflect
that the motion of Mr Smit that Mr Adams of
the NNP be appointed as a
permanent delegate to the NCOP was duly agreed to.
18] On 13 March 2000, the applicant’s
attorney, by means of a facsimile addressed to Mr Adams, the Acting
Head Secretary, recorded
that he had recently been advised by the
applicant that a vote of no confidence in the applicant had been
proposed by the NNP, and
adopted by the Provincial Parliament the
previous day and that it appeared to him that the motion had not been
placed on the Order
Paper in a regular manner; that its adoption had
not been properly motivated; that the applicant had not been given
an opportunity
to oppose its adoption; and that the proposing of the
motion constituted a transparent attempt to terminate the applicant’s
membership
of the Provincial Legislature because the already
instituted disciplinary proceedings had run into difficulties. He
added that any
attempt to terminate the applicant’s membership on
that basis would detrimentally affect her rights and legitimate
expectations
and would offend against all principles of fair
administrative action, more in particular section 33 of the
Constitution and the
spirit and most of the provisions of The
Promotion of Administrative Justice Act, No 3 of 2000 (the AJA).
The letter concluded
with the following paragraph:
“
Ons versoek u derhalwe dringend om
nie op hierdie wyse te poog om ons kliënt te “kruisig” sonder ‘n
verhoor nie. Dit spreek
vanself dat indien u sou voortgaan om dit te
doen ons kliënt dringende regshulp by die Hooggeregshof sal aanvra
wat u verbied om
gevolg daaraan te gee, hangende die hersiening van
sodanige besluit, met ‘n gepaste kostebevel en wel soos op die
skaal tussen
prokureur en kliënt.”
19] Thát facsimile elicited a
response by means of a facsimile dated 13 March 2002 on a letterhead
of the Parliament of the Republic
of South Africa under the signature
of Mr Francois Beukman LP, in which the applicant’s attorney was
advised that the matter did
not fall within his area of
responsibility and requested him to direct all correspondence to the
Head Secretary of the NNPWC.
20] On 15 March 2002 the secretary of
the Provincial Parliament advised the chairperson of the NCOP that Mr
Adams had been appointed
by the NNP as permanent delegate in the
place of the applicant and undertook to provide him with a copy of
the minutes of the proceedings
confirming his appointment by 18 March
2002.
21] The
applicant on 15 March 2002 launched an urgent application, set down
for hearing at 14h15 on 18 March 2002, in which she claimed
against
the NNP, the ANC and the third respondent, an order in the following
terms:
“1. That the matter be treated as
one of urgency;
That applicant’s recall as a
permanent delegate to the National Council of Provinces in terms of
first respondent’s decision
to that effect of 12 March 2002 be
suspended pending the final determination of the review proceedings
referred to in paragraph
4 [read 3] below and that Applicant be
permitted to forthwith resume and continue with her functions as
permanent delegate of
the National Council of Provinces pending such
determination;
That respondents be called upon to
show cause on a date to be determined by the above Honourable Court
why;
The vote of no confidence in
Applicant which was adopted by the Western Cape Provincial Assembly
on 12 March 2002 should not be
reviewed and set side;
The decision by First Respondent of
12 March 2002 to recall applicant as its delegate to the National
Council of Provinces should
not be reviewed and set aside; and
First Respondent should not be
ordered to pay the costs of this application on an attorney and
client scale and why the other
Respondent who opposes the relief
sought should not be ordered to pay such costs jointly and
severally with First Respondent”
22] The
applicant’s attorney’s facsimile of 13 March 2002, must have
found its way to the NNPWC as Mr Uys, in a letter dated 19
March 2002
and hand-delivered to the applicant’s attorney on 20 March 2002,
stated that the Executive Committee had on 19 March
2002 considered
it and had resolved to make the following offer to the applicant:
that the Executive
Committee, was prepared to reconsider the recall resolution; and
that a special meeting
of the Executive Committee would be held at 10h00 on 26 March 2002
to –
to give consideration to
the vote of no confidence adopted by the Provincial Parliament; and
to reconsider the recall
resolution.
23] The letter also
advised the applicant’s attorney that the applicant would be
permitted to advance reasons why she should not
be recalled by the
NNPWC as a permanent delegate to the NCOP in terms of the provisions
of Section 62(4)(c) of the Constitution and
that, if the recall
resolution were to be reversed, the nomination of Mr Adams as the
applicant’s substitute in the NCOP would
be withdrawn.
24] The applicant was given until
10h00 on Friday 22 March 2002 to advise the Head Secretary in writing
whether she accepted the Executive
Committee’s offer.
25] The applicant’s attorney in a
facsimile dated 20 March 2002, addressed to Mr Uys, requested to be
advised whether, in terms
of the resolution of 19 March 2002, the
recall resolution had been reversed and would be considered afresh at
the meeting of 26 March
2002 or whether it continued to operate and
would only be reconsidered after the meeting.
26] Mr
Uys in a facsimile addressed to the applicant’s attorney informed
him that the recall resolution continued to operate; would
be
reconsidered on 26 March 2002; and thereafter be set aside or
confirmed.
27] The applicant’s attorney in a
facsimile to Mr Uys, dated 22 March 2002, described the proposed
hearing of 26 March 2002 as
merely a tactical manoeuvre and an
attempt to frustrate the applicant’s right to approach the court
for appropriate relief. Thát
conclusion was based on the view that
the offer acknowledged that the applicant was entitled to a hearing
and that the Executive
Committee’s unwillingness to recall the
decision which had been taken in her absence was incongruent
therewith; that the offer
to reconsider the recall resolution was
difficult to reconcile with the attitude adopted by the NNPWC and
third respondent in their
answering affidavits namely, that the
motion of no confidence was unassailable and there furthermore was no
indication what the Executive
Committee could or would do about it in
the event of a outcome favourable to the applicant; that in the
absence of reasons having
been provided for the proposing of the
motion of no confidence and the passing of the recall resolution, it
would not be possible
to properly present the applicant’s case;
that no indications were given as regards the format the hearing
would assume; that
it would appear from the Executive Committee’s
refusal to retract the recall resolution that the applicant would be
saddled with
the burden of proving why it should be set aside; and
that the NNPWC’s counsel had told a judge that the proposed hearing
would
address all the applicant’s complaints and render the
application instituted by her unnecessary. The applicant’s
attorney concluded
by recording that, in the circumstances, it was
not possible for him to advise the applicant properly for the purpose
of presenting
her case at the hearing and that she had been advised
not to attend it.
28] After answering affidavits deposed
to on 18 March 2002 by the third respondent and Mr Smit had been
filed, in which issues of
mis- and non-joinder were raised, the
applicant by notice of motion applied for the joinder of the NNPWC
(as fourth respondent),
the Executive Council (as fifth respondent)
and Mr Adams (as sixth respondent).
29] By agreement between the parties,
Blignault J on 27 March 2002, granted the joinder application. He at
the same time postponed
the main application; determined a timetable
for the filing of supplementary affidavits; the filing of answering
affidavits; the
filing of a replying affidavit; and the filing of
heads of argument by the applicants and any respondents who wished to
oppose the
application.
30] The applicant on 15 April 2002
gave notice of her intention to apply at the hearing of the matter,
that the notice of motion be
amended by the deletion of paragraph 3
thereof and the substitution thereof with the following:
“3. That
an order be granted in terms whereof:
The adoption by the Western Cape
Provincial Assembly on 12 March 2002 of the motion that the House
has lost confidence in the
Applicant as a permanent delegate to the
National Council of Provinces be reviewed and set aside;
The decision by the Fourth and/or
Fifth Respondent taken on 12 March 2002 to recall Applicant as the
delegate of the Fifth Respondent
to the National Council of
Provinces be reviewed and set aside;
That the appointment of the Sixth
Respondent as a permanent delegate to the National Council of
Provinces on 15 March 2002 by
the Fourth and/or the Fifth
Respondent be reviewed and set aside;
That the Fourth and Fifth
Respondents be ordered to pay the costs of this application jointly
and severally on an attorney and
client scale;
That any other Respondent who
opposes the relief sought be ordered to pay the costs occasioned by
such opposition jointly and
severally with the Fourth and Fifth
Respondent”
31] As no objections were raised
thereto the amendment was granted in the terms sought.
32] Of the respondents only the third
respondent, the NNPWC, the Executive Committee and Mr Adams filed
opposing affidavids and at
the hearing before me the NNP, the NNPWC,
the Executive Committee and Mr Adams, were represented by Mr WG
Burger SC and Mr Osborne
and third respondent by Mr Heunis SC and Mr
Gess. The second respondent did not take part in the proceedings.
33] The applicant, represented by Mr
Van Riet SC and Mr Stelzner, seeks to have the following decisions
reviewed and set aside –
33.1 The adoption by the Western Cape
Provincial Assembly on 12 March 2002 of the motion that the
Provincial Parliament had lost confidence
in the applicant as a
permanent delegate to the NCOP (
prayer
3.1
);
33.2 The
decision by the NNPWC and/or the Executive Committee taken on 12
March 2002 to recall Applicant as the delegate of the NNPWC
to the
NCOP (
prayer 3.2
);
and
33.3 The
decision on 15 March 2002 by the NNPWC and/or the Executive Committee
to appoint Mr Adams as a permanent delegate to the
NCOP be reviewed
and set aside (
prayer 3.3
).
34] Prayer 3.3 is formulated
infelicitously. It is clear from the provisions of subsections 62(1)
and (2) and 61(2)(b) of the Constitution
that Mr Adams could only
have been nominated by the NNPWC and not appointed as the appointment
had to be made by the Provincial Parliament.
35] A further observation needs to be
made before proceeding to consider the merits of the application.
Whilst there is no room for
doubt that all the parties that have a
direct and substantial legal interest in the relief that is being
claimed in prayers 3.2 and
3.3 are before the court, it is doubtful
whether the same can be said of the relief claimed in prayer 3.1.
The applicant in her
replying affidavit, when dealing with the
question of liability for costs, explicitly disavowed having sought
any relief against
the Provincial Parliament. Thát perception in
all probability explains why the Provincial Parliament, in its
collective capacity
through its representative and spokesperson, the
third respondent, as Speaker (See:
Gauteng
Provincial Legislature v Kilian and Others
2001(2) SA 68 (SCA) at 78 B) or its individual members, who are
alleged to have acted arbitrarily or capriciously, have not been
cited as parties. The applicant in the papers attacks the adoption
of the vote of no confidence on two substantive bases. The first
is
that the NNPWC and/or the Executive Committee proposed and procured
its adoption by collaborating with the ANC, for an ulterior
purpose
or motive namely, to achieve her recall from the NCOP in order to
censure her for her perceived support of Mr Morkel. The
second is
that the members who had voted in favour of the vote of no confidence
had not given consideration to the question whether
the Provincial
Parliament had in fact lost confidence in her but merely gave effect
to their political instructions with the consequence
that the first
requirement prescribed by section 62(4)(c) of the Constitution for
the cessation of her membership of the NCOP is
absent. Both those
grounds were ventilated in the papers by the deponents for the
respective respondents and their experienced counsel
did not during
argument raise the non-joinder of the Provincial Parliament as an
issue despite the fact that the mis- and non-joinder
of parties had
featured prominently during the early stages of the proceedings.
Although the Third Respondent was cited in her personal
capacity she
stated that she “resisted” the application, in order to “…
protect the Provincial Parliament’s constitutional
autonomy
vis-á-vis (sic) the judiciary and the executive”. In my view such
conduct is susceptible of only one reasonable inference
namely, that
the Third Respondent in her capacity as speaker as well as the
institution represented by her, tacitly signified a willingness
to
submit to and be bound by any judgment that may be given thereanent
(See:
Amalgamated
Engineering Union v Minister of Labour
1949(3) SA 637 (A) at 662/3).
36] The applicant seeks to have the
decisions that form the subject-matter of this application reviewed
and set aside as constituting
unjust, unreasonable, procedurally
unfair and accordingly unlawful administrative action in that they
conflict with firstly, the
principle of legality, second, the
provisions of section 33 of the Constitution; third, a number of
provisions of the AJA; and
fourth, the administrative law principles
of the common law.
37] Each of the decisions that the
applicant seeks to review will be considered individually and in the
following sequence. Firstly,
the acceptance of the vote of no
confidence; second, the recall resolution; and third, the
nomination of Mr Adams as one of the
NNPWC’s delegates to the NCOP.
The vote of no
confidence
38] The review and setting aside of
the vote of no confidence is predicated on broadly the following
averments – which in the main
consist of conclusions and
inferences without the primary facts on which they are based:
a) that the tabling, proposing and
acceptance of the vote of no confidence did not comply with the
provisions of rules 122, 123(2)
and 123(3) of the Standing Rules of
the Western Cape Parliament.
b) that
the vote of no confidence constituted administrative action and that
the provisions of sub-sections 3(2) and (3) of the AJA
had not been
complied with in that –
(i) no prior notice had been given of
the nature and purpose of the proposal of the motion;
(ii) no
reasonable opportunity had been given for the making of
representations;
(iii) no
statement of the contemplated motion of no confidence had been given;
(iv) no
opportunity had been given to obtain legal assistance and/or present
and dispute information and/or present argument and/or
appear in
person; and
(v) no
reasons were provided for the acceptance thereof and that, having
regard to the nature thereof reasons could not be provided.
c) That the vote of no confidence was
part of a transparent political stratagem on the part of the NNPWC to
achieve the same purpose
as that of the stalled disciplinary
proceedings namely, the termination of the applicant’s membership
of it as well as her seat
in the NCOP in terms of the provisions of
Section 62(4)(c) of the Constitution; that it procured the
acceptance of the motion of
no confidence by having formed an
alliance with the ANC as a consequence whereof their respective
members voted
en bloc
for its acceptance; and that such conduct constituted an abuse of
the parliamentary process so that the applicant was recalled for
a
purpose other than that authorized by the Constitution.
d) That
as despite a specific request, the reasons for the proposal of the
vote of no confidence had not been motivated and there
had not been
any debate thereanent, those members of the Provincial Parliament who
had voted in favour of its acceptance did no more
than give effect to
their political instructions and had not considered whether they in
fact had lost confidence in the applicant
so that one of the
jurisdictional requirements prescribed by section 62(4)(c) of the
Constitution for the cessation of the applicant’s
membership of the
NCOP was absent. It was further alleged that the individual members
who had voted in favour of the motion of no
confidence acted
arbitrarily or capriciously.
39] The averments in paragraph 38 (a)
above were not persisted with.
40] Mr
Smit, who deposed to answering affidavits on behalf of the NNPWC,
denied that the motion of no confidence was designed to achieve
the
same aim as the ongoing but stalled disciplinary proceedings, but
conceded, at least by implication, as is confirmed by what
he said
when he introduced the motion of no confidence in the Provincial
Parliament, that it was part of a strategy to procure her
recall as a
permanent delegate to the NCOP in terms of Section 62(4)(c) of the
Constitution. He also denied that the NNPWC and the
ANC had formed
an alliance for the purpose of voting on the motion of no confidence;
that the NNPWC and the ANC had voted en bloc;
and that those who
voted in favour of the motion of no confidence did so simply on the
instructions of the chief whips of their
respective parties.
41] As the applicant is claiming
relief of a final nature against the NNPWC, the Executive Committee
and Mr Adams, and real, genuine
or bona fide disputes in respect of a
number of the factual averments made by her have been raised, the
relief claimed may be granted
only if the factual averments in the
applicant’s affidavits together with the factual averments in the
respondents’ affidavits
justify the granting thereof (See:
Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
1984(3) SA 623 (A) at 634 E – H).
42] If the respondents’ versions of
disputed issues are accepted the factual basis for the applicant’s
invocation of the concept
of legality either in the form of the
constitutional principle (See:
Fedsure
Life Assurance Ltd v Greater Johannesburg Transitional Council
1998(2) SA 374 (CC) paragraphs 56, 58;
President
of the Republic of South Africa v South African Rugby Football
Union
2001(1) SA 1 (CC)
paragraph 148 and
Pharmaceutical
Manufacturers Association of SA: In Re, Ex Parte President of the
Republic of South Africa,
2000(2)
SA 674 (CC) paragraph 85) or the administrative law counterpart falls
away as in the absence of the applicant’s disputed
factual
averments it cannot be contended, as the applicant does, that the
passing of a vote of no confidence in her fell outside
of or was in
conflict with the powers conferred upon the Provincial Parliament and
the NNPWC by Section 62(4)(c) of the Constitution.
42] The applicant’s contention that
the passing of a vote of no confidence in her constituted
administrative action as envisaged
in the AJA and that the measures
prescribed by section 3 thereof in order to achieve procedural
fairness, were not complied with,
has been countered on the narrow
basis that in terms of the Constitution votes of no confidence are
resolutions for which no prerequisites,
reasons or grounds are
required because they are political decisions and accordingly cannot
be subjected to judicial review and set
aside on the basis of
unreasonableness or otherwise.
43] Section
62(4)(c) of the Constitution provides that a person ceases to be a
member of the NCOP if that person has lost the confidence
of the
provincial legislature
and
is recalled by the party that nominated him or her. As the applicant
resigned prior to becoming a member of the Provincial Parliament
and
it is questionable whether the Provincial Parliament possesses the
authority to consider and/or adopt motions of no confidence
in
persons other than any of its members - I not surprisingly, could
not find any such authority in the Standing Rules of the
Provincial
Parliament as in terms of section 116 of the Constitution its powers
to determine and control its own proceedings and
procedures extend
only internally - the only empowering provision in terms whereof
the vote of no confidence in the applicant could
have been proposed
and adopted by the Provincial Parliament was section 62(4)(c) of the
Constitution.
44] Parliamentary motions, including
motions of no-confidence are decided by means of a question put by
the Speaker upon a motion
proposed by a member.
45] In terms of the provisions of
Section 21 of the Constitution of the Western Cape, No 1 of 1998, in
matters other than a Bill or
an amendment to a Bill, a vote may be
taken on any question if at least one third of the members of the
Provincial Parliament are
present and the outcome thereof is decided
by a majority of all the votes cast by such members. Despite the
constraints imposed
on members of provincial legislatures by the list
system of proportional representation that prevails in our
multi-party system of
representative government in order to ensure
party loyalty and discipline, as well as the long-standing practice
and tradition of
political parties of ensuring, through the offices
of their Whips, that members vote in accordance with a predetermined
party line,
it is recognized that the individual members thereof
retain the right to follow the dictates of their own conscience
(See: In Re:
Certification
of the Constitution of the RSA
1996(4) SA 744 (CC) at 831 E; the
Fedsure
case (supra) paragraph 41). Viewed from thát perspective the vote
of any individual member constitutes an articulation of his
or her
own view of how the question posed in the motion should be responded
to. Whether a motion is adopted or rejected depends
on which of the
sums of the votes cast in favour or against its acceptance is the
greater.
46] The constitution draws a clear
distinction between a) on the one hand, resolutions to remove
certain persons from office and
as a prerequisite requires i) a
finding by a prescribed body regarding such persons misconduct,
incapacity or incompetence (eg:
the President in terms of section
89(1); the Premier of a Province
in terms of section 139(3);
a judge in terms of sections 177(1)(a) and (b); and the Public
Protector and Auditor General in terms
of section 194(1)) or ii)
without any findings or circumstances as a prerequisite but on the
basis of a simple majority (eg. the
Speaker by the National Assembly
in terms of section 52(1); the Speaker by the provincial legislature
in terms of section 111(4)
and the Chairman of the NCOP in terms of
section 64(6)) and, b) on the other hand, resolutions of no
confidence for which no conditions
are prescribed (eg. the National
Assembly in the Cabinet in terms of section 102(1) or in the
President in terms of section 102(2);
a provincial legislature in
the provincial executive council in terms of section 141(1) or in the
Premier in terms of section 141(2);
and a provincial legislature in
respect of a permanent delegate to the NCOP in terms of section
62(4)(d)). I find myself in agreement
with the submission of third
respondent’s counsel that it is fair to infer from such
differentiation that resolutions of no confidence
may be adopted
without any definable reason, for a disparity of reasons or even no
particular reason on the part of those members
who cast their votes.
47] Although the Provincial Parliament
when it adopted the motion of no confidence in the applicant was
clearly not performing a legislative
function, it was nevertheless
functioning as a popularly elected deliberative legislative body, the
business whereof takes place
in an assembly open to the public;
whose members are, subject to its rules and procedures, at liberty to
articulate their own views
on any proposed motion; entitled to vote
in favour of or against it for their own reasons; and politically
accountable to their
constituents.
48] Our courts have already held that
decisions of that nature are not susceptible of being reviewed.
Chaskalson P et al in the
Fedsure
case (supra), at paragraph 41, said the following thereanent –
“
The
counsel is a deliberative legislative body whose members are elected.
The legislative decisions taken by them are influenced
by political
considerations for which they are politically accountable to the
electorate. Such decisions must of course be lawful
but, as we show
later, the requirement of legality exists independently of, and does
not depend on, the provisions of section 24(a)
the procedures
according to which legislative decisions are to be taken are
prescribed by the Constitution, the empowering legislation
and the
rules of the council. Whilst this legislative framework is subject
to review for consistency with the Constitution, the
making of bylaws
and the imposition of taxes by a council in accordance with the
prescribed legal framework cannot appropriately
be made subject to
challenge by “every person” affected by them on the grounds
contemplated by section 24(b). Nor are the provisions
of section
24(c) or (d) applicable to decisions taken by a deliberative
legislative assembly. The deliberation ordinarily takes
place in the
assembly in public where the members articulate their own views on
the subject of the proposed resolutions. Each member
is entitled to
his or her own reasons for voting for or against any resolution and
is entitled to do so on political grounds. It
is for the members and
not the courts to judge what is relevant in such circumstances.
Paragraphs 24(c) and (d) cannot sensibly
be applied to such
decisions”.
Conradie J in
Steele and Others v South Peninsula Municipal Council and Another
2001(3) SA 640 (C) at 644 C – D, (a matter decided before the AJA
came into operation) in the context of an application to review
the
majority decision of a politically elected deliberative assembly
namely, a Municipal Council taken in the performance of a
non-legislative
function namely, a decision that half of the speed
bumps constructed by it in certain public roads in its area of
jurisdiction had
to be removed, said the following:
“
The council resolution was carried
by a majority. It was not a decision taken by a functionary who
could be expected to furnish reasons.
It was a decision taken by a
politically elected deliberative assembly whose individual members
could not be asked to give reasons
for the manner in which they had
voted”.
49] The right to just administrative
action entrenched in Section 33(1) and (2) of the Constitution
consists of three components namely
lawfulness, reasonableness and
procedural fairness. Hugh Corder in
South
African Constitutional Law
(2002):
The Bill of Rights
(Editors
M H. Cheadle
et al) at 614, expresses the view that as the requirements of
lawfulness and procedural fairness cover all formal and procedural
aspects, it follows that the constitution, by the introduction of the
requirement of reasonableness, “demands a degree of review
of the
substance of the decision” and “represents a significant advance
into the area of
limited
merits review”. In a
review of that kind the merits are not considered in order to
determine whether the conclusion arrived at
by the administrative
decision-maker is right or wrong but whether there is a rational
basis between the outcome and the material
available justifying such
a conclusion (See:
Carephone
(Pty) Ltd v Marcus NO
1998(11) BLLR 1093 (LAC) paragraph 37;
Bel
Porto School Governing Body v Premier, Western Cape
2002(3) SA 265 (CC) paragraph 84 et seq). Although there is no
explicit entrenchment of the right to reasonable administrative
action in the AJA, sections 6(2)(f)(ii) and 6(2)(h) thereof give
effect thereto through the mechanism of review on the basis of lack
of rationality and absence of reasonableness respectively.
50] In my view, the introduction of
reasonableness by the Constitution as a requirement of just
administrative action and the inclusion
of reasonableness and
rationality in the AJA, warrant the conclusion that for a decision to
constitute administrative action in terms
of the Constitution and the
provisions of the AJA and be susceptible of review it should be
capable of assessment against those criteria.
In my view the
acceptance of votes of no confidence in the Provincial Parliament in
the words of the authors of
De
Smith, Woolf and Jowell: Judicial Review of Administrative Action
(6
th
Ed) paragraph 6 – 031) “admit no objective justification” as
they cannot be subjected to an evaluation for reasonableness
and
rationality and accordingly are not appropriate for judicial review.
The rationality//reasonableness enquiry necessitates evaluating
the
decision of an administrative decision-maker in the light of the
facts available to him or her and the reasons provided. That
enquiry, in the case of a popularly elected legislative assembly such
as the Provincial Parliament, presents numerous problems that
become
apparent by merely posing the following questions. How does one
establish what the facts are? Are they restricted to the
information
(information in the context is intended to convey facts as well as
opinions) advanced during debate or do they also
include extraneous,
but relevant information, known to one or more of the members? What
happens if there is no debate? Who is required
to provide reasons if
that were to be permissible? Surely not the Speaker as he or she
would not know what animated members to vote
in a particular manner
and he or she does not vote, unless there is an equal number of votes
on each side of a question, in which
event he or she would only know
what animated him or her to vote in a certain manner. Which members
should be required to provide
reasons? Surely all of those who
voted, as to require only the majority to do so would imply that the
minority view is rationally
justifiable. If the reasons provided by
a member fail the rationality enquiry, because the decision of that
member to vote in a
particular manner is not rationally justifiable
on the facts available to him or her and the reasons provided, how
many such failures
would be necessary to taint the majority vote?
And what countervailing effect, if any, would a failure of the
rationality enquiry
on the part of any of the members who voted for
the minority view have on that enquiry?
51] As the basis on which I have found
that the acceptance of a vote of no confidence, if it is in
conformity with the Constitution
and the Provincial Parliament’s
own Rules and Procedures, is not susceptible of review, may appear to
reveal a similarity with
one of the considerations on which the
doctrine of “the political question” - recognized in American
constitutional jurisprudence
but not in Canada and Germany - is
based namely, “lack of judicially discoverable and manageable
standards” for resolving it
(per Brennan CJ in
Baker v Carr
[1962] USSC 42
;
369 US
186
(1962) at 217) it is recorded that my conclusion is not
predicated on the third respondent’s counsels’ characterization
of it
as a decision of a political nature but on the attributes of
the conduct or decision encompassed in the concept administrative
action
in Section 33(1) of the Constitution and the AJA. I find
myself in full agreement of the view of Halton Cheadle in
South African Constitutional
Law
(Editors
M.H. Cheadle
et
al) at 36, that in the light of the explicit provisions of section
2 of the Constitution the constitutional doctrine of “the
political
question” has no place in our constitutional dispensation.
52] The conclusion arrived at namely,
that the vote of no confidence is not susceptible of judicial review
obviates the necessity
to enquire whether its adoption complies with
the other requirements of the definition of “administrative
action” in the AJA,
save to state that it does not appear to me
that the vote of no confidence, adversely affected any rights of the
applicant: nor
did it have a direct external legal effect, the
meanings whereof are considered below.
53] In
view of the aforegoing the applicant, in my opinion, has not
succeeded in showing that the vote of no confidence in her, adopted
on 12 March 2002 by the Provincial Parliament, is reviewable.
The Recall Resolution
54] The NNPWC’s counsel contended
that the court should defer entertaining the application insofar as
it relates to the review of
the recall resolution, until such time as
the applicant has exhausted the internal remedy of an appeal provided
for in Section 49
of the constitution of the NNPWC which provides as
follows:
“
A member, chairman, council or body
which objects to a judgement, decision, finding or ruling, except of
the Congress or of the Provincial
Leader or National Leader acting on
behalf of the Congress, may appeal to the Legal Commission, with
further right of appeal to the
Congress.”
55] In terms of the common law the
right to seek judicial review may be deferred until the aggrieved
party has exhausted an extra-curial
remedy created by governing
legislation or the terms of an agreement between a voluntary
association and a member. The right of
review may be so deferred and
any domestic remedy should first be exhausted if the obligation to do
so is clearly evident from such
governing legislation or agreement
(See:
Lenz Township Co
(Pty) Ltd v Lorentz NO
1961(2) SA 450 (A) at 455 A – D; 458 E et seq;
Welkom
Village Management Board v Leteno
1958(1) SA 490 A at 502 G).
56] Section
7(2) of the AJA which provides that
“
(a) subject
to paragraph (c) no court or tribunal shall review an administrative
action in terms of this Act unless any internal remedy
provided for
in any other law has first been exhausted.
(b) subject to paragraph (c) a court
or tribunal must, if it is not satisfied with any internal remedy
referred to in paragraph (a)
has been exhausted, direct that the
person concerned must first exhaust such remedy before instituted
proceedings in a court or tribunal
or judicial review in terms of
this Act.”
has modified the common
law considerably but its ambit is limited to “any internal remedy
provided for in any other law”.
57] Van Zyl J in
Marais
v Democratic Alliance
2002(2) BCLR 171 (C) at 184 B – E held that the concept “other
law” in that phrase must be interpreted in accordance with
its
definition in section 2 of the Interpretation Act, No 33 of 1957,
namely a law, proclamation, ordinance, Act of Parliament “or
other
enactment having the force of law” and that the constitution of a
voluntary association is not encompassed therein.
58] As the domestic remedy on which
the NNPWC relies for the deferral of the applicant’s right of
review is contained in its constitution,
the provisions of section
7(2) of the AJA, in my view, do not constitute an impediment to the
recall resolution being reviewed.
59] To the extent that the common law
obligation to exhaust domestic remedies has survived the coming into
operation of section 7(2)
of the AJA - I express no firm views
thereanent - I am, on the basis of an interpretation thereof not
satisfied that the right
of review without first exhausting an appeal
to the Legal Commission, is excluded by section 49 of the NNPWC’s
constitution. I
say so because that section explicitly provides
that, inter alia, a member “may” appeal to the Legal Commission.
There is no
indication that thát word, in the context, is used in a
sense other than a permissible or empowering one, so that the
applicant
enjoyed a choice between an internal appeal and a right of
review to this court. It further is questionable whether the appeal
provided
for is an adequate remedy in the circumstances. An appeal
would have dealt with only the decision to recall the applicant and
not
the subsequent decision to nominate Mr Adams, in the absence
whereof she would not have obtained complete redress. As thát
aspect
as well as whether the Executive Committee, by having raised
the non-exhaustion of a domestic remedy at the late stage it did, had
not acquiesced in the review, were not argued I refrain from
expressing any views thereon.
60] In the premises I incline to the
view that this court’s jurisdiction to consider the review has not
been deferred by section
49 of the NNPWC’s constitution either
specifically or by implication.
61] The review of the recall
resolution is based on basically the same factual averments set out
in paragraphs 38 (b) and (c) above.
62] The review of the recall
resolution for want of conforming with the constitutional principle
of legality fails for the same reasons
as in the case of the vote of
no confidence namely, the absence of a factual basis that supports it
as the respondents’ versions
of disputed facts have to be accepted.
63] The applicant, in addition,
appears to rely on a violation of a constitutional right to
administrative justice. Writers on the
subject seem to accept that a
free-standing constitutional right to administrative justice survived
the coming into operation of
the AJA but that its ambit is limited
and can be relied upon either directly, to challenge the
constitutionality of the AJA or legislation
passed subsequent thereto
or indirectly, namely to interpret the terms of the former (See:
Iain Currie & Jonathan
Klaaren: The Promotion of Administrative Justice Handbook
(2001) paragraph 1.28;
Cora
Hoexter: The New Constitutional and Administrative Law,
Vol 2;
Administrative Law
page 88).
The view that the
provisions of Section 33 of the constitution could also be relied
upon directly in order to supplement the under-inclusiveness
of the
definition of administrative action in the AJA (See:
Johan de Waal
et al:
The
Bill of Rights Handbook, (
4
th
Ed) 496) is cogently criticized by
Currie
& Klaaren
(op cit)
paragraph 1.28). As the applicant has not invoked the provisions of
Sections 33(1) and (2) of the Constitution in order
to challenge the
constitutionality of the AJA or interpret its terms, what must be
considered is whether the recall resolution falls
to be reviewed in
terms of the provisions of the AJA or the administrative law
principles of the common law.
64] The decisions that form the
subject-matter of this application occurred after 30 November 2000
i.e. the date on which the provisions
(other than Sections 4 and 10)
of the AJA had come into operation. Accordingly the question whether
or not such decisions constituted
just administrative action must, in
addition to the constitutional principle of legality, be considered
in the light of the provisions
of the AJA which is now the principal
source of and delineates the scope and content of administrative
justice rights and remedies
(See:
Currie
& Klaaren:
(op cit)
paragraph 1.28;
Hoexter:
(op cit), pages 87 – 88).
As the said decisions occurred prior to 21 July 2002, ie the date on
which the Regulations on Fair Administrative
Proceedings 2002 were
promulgated, their provisions need not be taken into account.
65] Does the recall resolution
constitute “administrative action” as defined in Section 1 of
the AJA? As it was taken by a
juristic person it will so qualify if
it constituted the exercising of a public power or the performance of
a public function in
terms of an empowering provision and adversely
affected the rights of the applicant and further, had a direct
external legal effect.
66] It is common cause that the
Executive Committee, at a meeting at 18h30 on 12
th
of March 2002, passed a resolution to recall the applicant as
permanent delegate to the NCOP without prior notice to her and
without
having complied with any of the requirements prescribed by
subsections 3(2) and (3) of the AJA which have as their objective
procedurally
fair administrative action.
67] The text of the unsigned minutes
of that meeting is as follows:
“
Die vergadering neem daarvan kennis
dat hierdie aangeleentheid nie oor tugoptrede, strafoptrede of die
oorweging van die beeindiging
van dr Van Zyl se NNP lidmaatskap
handel nie. Dit handel wel oor die vraag of die NNP dr Van Zyl in
terme van Artikel 62 (4)(c)
van die Grondwet van die Republiek van
Suid-Afrika wil terugroep al dan nie.
Die
Party moet dus oordeel of dit gewens is dat dr Van Zyl voortgaan om
die Party in die Nasionale Raad van Provinsies as vaste afgevaardigde
te verteenwoordig al dan nie. Die Uitvoerende Komitee besluit
vervolgens om dr Van Zyl as vaste afgevaardigde na die Nasionale Raad
van Provinsies te onttrek.”
68] A perusal of the minutes reveals
that the resolution to recall the applicant was not preceded by any
debate and that no motivation
for the passing thereof is provided.
That the minutes constitute a reliable reflection or what took place
is apparent from following
account thereof provided by Mr Smit –
“
It is also relevant that the recall
decision by the Executive Committee was taken in light of the motion
of no confidence in Applicant
adopted by the Provincial Parliament
earlier that day, with the unanimous support of all members of the
Fourth Respondent present.
Given the fact that Fourth Respondent’s
members of the Provincial parliament had all voted in favour of the
no confidence motion,
the recall could have been regarded as a mere
formality, to be effected by, for example, myself as its Chief Whip.
In the event,
however, it was the Executive Committee that formally
resolved to recall the Applicant. Any member of the Executive
Committee who
opposed the recall motion had the opportunity to speak.
And the decision was in full compliance with the Constitution of the
NNPWC.”
69] That the denial of any
administrative procedures to the applicant was not unintentional is
apparent from the fact that, according
to Mr Smit, the leaders of the
NNPWC held the view that a decision such as whom should be nominated
and recalled as a permanent delegate
to the NCOP is the prerogative
of political parties so as to enable them to give effect to the
political will of their members and
constituents and that the
provisions of the AJA, and the rules of natural justice, do not apply
thereto. The decision in
Bushbuck
Ridge Border Committee v Government of the Northern Province
1999(2) BCLR 193 (T), at 200 B, appears to be support for the
proposition that the rules of natural justice do not apply to
political
parties. Kirk-Cohen J (at 199 H and 200 B) found that the
ANC, a political party in the guise of a voluntary association, and
not
an administrative body or an organ of state, by having failed to
give effect to an election promise to the residents of
Bushbuck
Ridge
to incorporate it
into Mpumalanga, had not and could not have performed an
administrative act that is subject to the rules of natural
justice.
The debate whether a political party is subject to the Constitutional
right of just administrative action (See:
Lisa
Thornton: The Constitutional right to Just Administrative Action -
Are Political Parties Bound?
(1999) 15 SAJHR 351)
has become a less contentious issue after the
coming into operation of the AJA which in the definition of
“administrative action”
explicitly includes decisions of juristic
persons when exercising a public power or performing a public
function in terms of an empowering
provision. Accordingly, any
decision of a political party which is a juristic person, is amenable
to review if the other elements
of administrative action as defined
in the AJA are present. A full court of this division in the
Marais v Democratic Alliance
case
– although in my respectful view,
ex
abundanti cautela
- did not
consider itself precluded from applying the rules of natural justice
to decisions of a political party.
That effectively disposes
of the argument advanced on the NNPWC’s behalf that decisions of
political parties are generally not subject
to judicial review.
70] In terms of the provisions of
Section 62(3) of the Constitution permanent delegates to the NCOP are
appointed for a term that
expires immediately before the first
sitting of the provincial legislature after its next election. The
NNPWC is not by its own
constitution or legislation (other than the
Constitution), explicitly empowered to recall the person nominated by
it as a permanent
delegate to the NCOP. The contention that the
NNPWC is by Section 36.2 read with Sections 40.1, 40.10, 42.4 and 62
of its own constitution
empowered to do so, in my view, is untenable.
The sole source of the authority to do so is subsections 62(4) (c)
and (d) of the
Constitution. It appears from the minutes of the
Executive Committee, that it recalled the applicant in terms of the
provisions
of section 62(4)(c) and, as is common cause, clearly acted
in terms of an empowering provision.
71] In considering whether the
exercise of the authority to recall a permanent delegate in terms of
section 62(4)(c) of the Constitution
amounts to the exercising of a
public power or the performing of a public function, it has to be
borne in mind that the authority
to do so arises only after the
adoption of a motion of no confidence by a provincial legislature and
that the party that nominated
such a person is under no obligation to
recall him or her.
72] The NCOP is part of Parliament.
It is the Second House of Parliament and its primary function is to
represent the provinces by
ensuring that their interests are taken
into account in the national sphere of government by participating in
the national legislative
process and by providing a national forum
for the public consideration of issues that affect provinces
(section 42(4) of the Constitution).
Each province is represented by
a single delegation consisting of six permanent and four special
delegates appointed in terms of
a formula prescribed by the
Determination of Delegates (National Council of Provinces) Act, No
69 of 1998
, with the aim of ensuring the inclusion of all parties
represented in a provincial legislature on the basis of proportional
representation.
Each delegation has one vote except in the case of
the matters enumerated in section 75(1) of the Constitution i.e.
ordinary Bills
that do not affect provinces, in respect whereof
delegates are entitled to vote individually. Section 8 of the
Western Cape Constitution
imposes a duty on delegates to take an
active part in the NCOP in order to promote, in accordance with the
principles of co-operative
government and intergovernmental relations
set out in the Constitution, the interests of the Western Cape and
the country as a whole.
In addition thereto delegates may be
required to serve on joint committees established in terms of section
45 of the Constitution
and the Joint Rules of Parliament as well as
joint monitoring committees on eg women, the youth, and the disabled.
In terms of section
22 of the Constitution of the Western Cape
permanent delegates may be required by the provincial parliament to
attend it or any of
its committees.
73] What is clear from the above is
that the applicant on her appointment to the NCOP became a member of
a public body, with legislative
and other functions which are
intended to serve the interests of the general public in the
provincial as well as the national sphere
and that the applicant, by
having accepted the nomination and appointment, assumed the
responsibilities that flow from such membership.
74] No statutory definitions of the
concepts “exercising a public power” and “performing a
public function” have been provided
in the AJA. Accordingly,
recourse has to be had to the dictionary meanings thereof. The
Shorter Oxford English
Dictionary’s
definition
of “public”, in the context, means belonging to, affecting or
concerning the community or the nation and “power”
means the
ability to act in a particular way. On the basis of the dictionary
meanings of the constituent components of the concept
“exercising a
public power” it conveys the ability to act in a manner that
affects or concerns the public. Some support for
that conclusion is
to be found in
Korf v
Health Professions Council of South Africa
2000(1) SA 1171 (T) - a decision handed down before the
promulgation of the AJA - in which Van Dijkhorst J concluded that
the
concept “public function” in the definition of “organ of
state” in section 239(b)(ii) of the Constitution, means “engaged
in the affairs or service of the public”.
75] In my view the exercising of the
authority to recall a permanent delegate to the NCOP in terms of
section 62(4)(c) of the Constitution
constitutes the exercising of a
public power. That conclusion is based thereon that the exercising
of such authority has an influence
on how the NCOP; the delegations
of the respective provinces; and the joint committees on which
delegates may serve, are constituted
and may affect the manner in
which those bodies perform their functions and duties, and that in
turn may impact upon the interests
of the community on provincial and
national levels. Accordingly the exercising of that authority has a
strong public component.
The argument that the fact that a party who
nominated the delegate in whom a vote of no confidence has been
passed is not obliged
to recall him deprives it of any public
character does not impress me. The power granted is to recall such a
delegate. A failure
to do so merely manifests a declination to do
so. What one is dealing with in this case is the exercise of that
power, which is
conduct not merely confined to the internal affairs
of the NNPWC (Cf:
Transnet
Limited v Goodman Brothers (Pty) Ltd 2001(2) BCLR 176 (SCA)
at
189 D
; 2001(1) SA 853 (SCA)
at 867 B) and not its
declination.
76] To
the extent that dicta of Van Zyl J in the
Marais
v Democratic Alliance
case
at 195 E – G and 187 B – D, are relied on in support of a
contention that the decision of a political party to recall a member
who holds a public position as part of a scheme to achieve a
predetermined outcome - the proposing of the vote of no confidence
and the recall resolution is alleged to be part of a scheme of that
nature - is incapable of constituting the exercise of a public
power or the performance of a public function in terms of an
empowering provision and therefore not a decision of an
administrative
nature, certain observations need to be made. The
first is that the learned judge at 185 G specifically stated that
whether or not
such conduct qualifies as the exercise of a public
power or the performance of a public function depends on the facts
and circumstances
of each individual case. The second is that
although the stalled disciplinary proceedings could have resulted in
the cessation of
the applicant’s membership of the NNPWC and also
her membership of the NCOP, if followed by a resolution to recall
her, there is
absolutely no evidence that that is what was envisaged:
on the contrary, the fact that her nomination took place after her
perceived
support for Mr Morkel had manifested itself, militates
against such a possibility. The third is that the proposing of a
vote of
no confidence in the applicant and her recall on the facts
that have to be accepted do not constitute part of a scheme devised
by
the NNPWC: it is a legitimate means by which the termination of a
permanent delegate’s membership of the NCOP may be achieved.
I
accordingly incline to the view that the
Marais
v Democratic Alliance
case,
on the facts, is distinguishable from the instant one.
77] Having come to the conclusion that
the decision to recall the applicant constituted the exercise of a
public power in terms of
a empowering provision, what must be
considered next is whether it adversely affected the rights of the
applicant and had a direct
external legal effect.
78] The concept “rights” in
Section 1(i)(b) of the AJA has not been defined and there does not
seem to be any reported case law
dealing with the meaning thereof.
The concept “right” is in the
Shorter
Oxford English Dictionary on Historical Principles
(3
rd
Edition by
CT. Onions
)
defined as “justifiable claim, on legal [or moral grounds], to
have or obtain something, or to act in a certain way” and “a
legal, [equitable, or moral] title or claim to the possession of
property or authority, the enjoyment of privileges or immunities,
etc. (The words in square brackets are clearly inapposite if the
definitions are applied in a legal contex). Coetzee J (with whom
Nicholas and F.S. Steyn JJ agreed) in
Secretary for Inland Revenue v Kirsch
1978(3) SA 93 (T), at 94 D – F, said the following when dealing
with the meaning of the word “right” in Section 8 A of the
Income Tax Act, No 58 of 1962:
“
Legal
terms used in a statute generally bear the same meaning as in common
law
(Kleynhans
v Yorkshire Insurance Co Ltd
1957 (3) SA 544
(AD) at 551-2) and must be read in that sense. The
word ‘right’, in legal parlance, is not necessarily synonymous
with the
concept of a ‘legal right’ which is the correlative of
duty or obligation. On the contrary, legal literature abounds with
‘right’
being used in a much wider sense and, as is pointed out
in
Salmond on Jurisprudence
II ed at 270, in a laxer sense to include any legally recognized
interest whether it corresponds to a legal duty or not. An owner,
for instance, has at common law the
right
to use or abuse his property …
There
are many cases in which ‘right’ when used in a statute has been
interpreted in the wider sense …”
79] An instance where a court, in a
constitutional context, applied the concept “right” in a sense
wider than as the correlative
of a duty or an obligation is
Van
Niekerk v Pretoria City Council
1997(3) SA 839 (T) in which Cameron J, at 846 J, held that the right
of access to information required for the exercise or protection
of a
person’s rights in terms of section 23 of the Interim Constitution
included
all
and not only fundamental rights. That conclusion accorded with the
jurisprudence in respect of section 23 of the Interim Constitution
which, but for a notable exception (See:
Directory
Advertising Cost Cutters CC v Minister for Posts, Telecommunications
and Broadcasting
1996(3)
SA 800 (T) favoured a broader interpretation of that concept.
Streicher JA in
Cape
Metropolitan Council v Metro Inspection Services CC
2001(3) SA 1013 (SCA) at 1026 E – F, agreed with Cameron J’s
conclusion and reasoning and held that it was equally applicable
to
the provisions of section 32 of the Constitution which is in
pari
materia
with Section 23 of
the Interim Constitution.
80] Is
the concept “rights” in section 1(i)(b) of the AJA used in the
sense of a legal right i.e. the correlative of a duty or
obligation
or in a wider sense? What is immediately evident is that the
legislature used the concept “rights” and not “legal
rights”.
Oregan J in
Premier,
Mpumalanga v Executive Committee of the Association of Governing
Bodies of State-Aided Schools, Eastern Transvaal
1999(2) SA 91 (CC) in a footnote to paragraph 31, whilst declining
to explore the precise ambit of the concept “rights” in
section
24 of the Interim Constitution, expressed the view that a broader
notion of right than that used in private law may be appropriate.

Olivier JA in the
Transnet
Limited v Goodman Brothers
case
(supra) held that the concept “rights” in sections 33(1) and
(2) of the Constitution, as they provided prior to the enactment
of
the AJA, encompassed also fundamental rights, in that case, the right
to equality.
81] As the AJA was enacted to give
effect to the rights encompassed in sections 33(1) and (2) of the
Constitution it must be construed
and applied consistently therewith
(Cf:
NEHAWU v University
of Cape Town
2003(2) BCLR
154 (CC) paragraph 14). That being so, the concept “rights”
in section 1(i)(b) of the AJA and having regard
to the judgment in
the
Transnet Limited v
Goodman Bros
case (supra)
encompasses also constitutional rights, a conclusion that militates
against a view that it has been used in a restricted
sense. I
accordingly incline to the view that the term “rights” in the AJA
is not used in the sense of the correlative of legal
obligations and
duties but in a wider sense that at least encompasses enforceable and
prospective rights. That conclusion - which
obviates the need to
consider the submission that any of the applicant’s legitimate
expectations were violated - may have the
effect of broadening the
scope of administrative review, but appears to be consonant with one
of the stated purposes in the preamble
to the AJA namely, to create a
culture of accountability, openness and transparency, inter alia, in
the exercise of a public power
or the performance of a public
function.
82] The applicant by having accepted
nomination as a permanent delegate to the NNPWC and having allowed
herself to be appointed by
the Provincial Parliament and having
assumed her seat in the NCOP exercised a fundamental right to stand
for and if elected, hold
public office (section 19(3)(b) of the
constitution). As a result of such appointment she became entitled
to remain a member of
the NCOP until the first sitting of the
Provincial Parliament after its next election, unless her membership
came to an end as a
result of any of the circumstances enumerated in
section 62(4) of the Constitution manifesting itself, prior thereto.
The applicant
whilst remaining a member of the NCOP enjoyed the
privileges and immunities enumerated in subsections 75 (1) and (2) of
the Constitution
and became entitled to the salaries, allowances and
benefits payable to members thereof. The consequences of the recall
resolution
was that the applicant’s constitutional right to hold
the public office to which she had been appointed was terminated and
that
she lost her status as a member of one of the two houses of
parliament; as well as her entitlement to the salary, allowances and
benefits payable to permanent delegates to the NCOP. Salary and
allowances are mentioned to complete the picture because of doubts
whether affected material interests attract procedural fairness
(See: The
Bel Porto Schools
case (supra) paragraph 97).
83] The applicant’s right (in the
wider sense) to hold the public office to which she had been
appointed was clearly of a limited
duration namely the earlier of her
membership coming to an end or the first meeting of the Provincial
Parliament after its next election.
Any suggestion that the
applicant occupied her office at the NNPWC’s pleasure because she
was nominated by it is untenable as
it ignores the fact that she was
appointed by the Provincial Parliament and that in terms of Section
62(4) of the Constitution it
is directly and exclusively involved in
the cessation of her membership in only two of the five circumstances
enumerated therein
and then only if the other specified
jurisdictional requirements exist. The mere fact that the NNPWC was
empowered to recall the
applicant if she ceased to be one of its
members or after the acceptance of a vote of no confidence in her in
the Provincial Parliament
did not derogate from the fact that she,
prior to being recalled, held office by virtue of a constitutional
right to do so and that
thát right was deleteriously affected by the
recall, because if it had not happened, she would have continued to
occupy such office
and enjoy the benefits that pertained thereto.
The issue is not whether the applicant possessed a right not to be
recalled but whether
the resolution to recall her affected any of her
rights adversely
84] The concept “adversely
affected” in the phrase “adversely affected the rights of any
person” has not been defined in
the AJA or interpreted in reported
case law. Its meaning, based on the definitions of the words
“adversely” and “affected”
in
The
Oxford English Dictionary
is
wide namely, unfavourably influenced. As the present is a case where
the applicant was deprived of rights it is not necessary
to enquire
into the vexed question whether that phrase also encompasses the
determination of rights. In my view the recall resolution
clearly
affected the applicant’s rights adversely and materially.
85] Did the resolution to recall the
applicant have a direct external legal effect? That phrase which
derives from article 35 of
the German Federal Law of Administrative
Procedure of 1976, has not been defined by the AJA and has not been
interpreted in reported
case law. The dictionary meanings of its
constituent components are so general of ambit that they contribute
little to the quest
to determine the intended meaning thereof.
Except for
R Phaff &
Holger Schneider: ‘The
Promotion of Administrative Justice Act
from
A German Perspective’
(2001) 17 SAJHR 59
who provide the general import of the provision
from which that phrase has been borrowed, the only helpful guidance
as regards the
meaning thereof is provided by
Currie
& Klaaren:
(op cit)
paragraphs 2.34 – 2.36 which on my understanding thereof
(paraphrased) is that it must be a final decision by an
administrative
decision-maker that constitutes a legally binding
determination of another legal entity’s rights. The recall
resolution in my
view complied with those requirements and I
accordingly have come to the conclusion that it did have a direct
external legal effect
on the rights of the applicant.
86] As I have already found that the
decision to recall the applicant complies with the other requirements
of the definition of “administrative
action” as defined in
Section 1
of the AJA all that remains to be determined is whether it
is a decision of “an administrative nature.” That is necessary
because
the concept “decision” in the definition of
“administrative action” is defined as follows:
“
(v)
‘decision’
means any decision of an administrative nature made, proposed to be
made, or required to be made, as the case may be, under an empowering
provision, including a decision relating to –
(a) making, suspending, revoking or
refusing to make an order, award or determination;
(b) giving,
suspending, revoking or refusing to give a certificate, direction,
approval, consent or permission;
(c) issuing,
suspending, revoking or refusing to issue a licence, authority or
other instrument;
(d) imposing
a condition or restriction;
(e) making
a declaration, demand or requirement;
(f) retaining,
or refusing to deliver up, an article; or
(g) doing
or refusing to do any other act or thing of an administrative nature,
and a reference to a failure to take a
decision
must
be construed accordingly.”
87] Although that definition
enumerates the subject-matter of decisions that do constitute
decisions of an administrative nature it
is not all-inclusive and
succeeds in contributing to its own convolutedness by introducing as
part of such subject-matter a decision
relating to “doing or
refusing to do any other act or thing of an administrative nature”.
88] As the recall resolution does not
fall with any of the matters mentioned in paragraphs (a) to (f) of
that definition it is necessary
to determine whether it qualifies as
a decision of an administrative nature. It is no easy task to
determine the precise meaning
of the concept “… any decision …
of an administrative nature” in the definition of “decision”.
Johan De Waal
et al (op cit) at 503, express the view that decisions of an
administrative nature are decisions “… connected with the daily
business of government: the implementing (administering) of
legislative policy and the making of policy within the framework
allowed
by primary legislation”.
Currie
and Klaaren
(op cit)
paragraph 2.12 (pp 51/2) say that decisions of an administrative
nature “… are decisions connected with the daily
or ordinary
business of government” but immediately concede that it serves no
classificatory purpose and contributes little to
the definition of
administrative action beyond identifying the core content of
implementation of legislation.
Cora
Hoexter
(op cit) at 101
states that the definition of decision is so wide that it is of not
much assistance and that it seems that almost
any type of action
would fall within it. As the ordinary everyday meaning of “nature”
in the context is “the basic or inherent
features, qualities or
character of a thing” (
The
Concise Oxford English Dictionary
sv “nature”) what is required is a decision having the
features, qualities or character of an administrative decision.
Bearing
in mind that the enquiry whether action is administrative or
not is now determined with reference to the task performed rather
than
the status and function of the person or body performing it
(See:
President of the RSA
and Others v SARFU and Others
(supra) paragraph 141) it appears to me to be axiomatic that such a
decision is one given by a person or body exercising a public
function or power in terms of an empowering statute that
prejudicially affects the rights of others. I have already found
that the
exercise of the authority to recall the applicant
constituted the exercise of a public power and accordingly incline to
the view
that it was a decision of an administrative nature and that
it constituted administrative action as defined in
Section 1
of the
AJA.
89] It was argued by the NNPWC’s
counsel that the recall resolution did not amount to a decision of an
administrative nature because
it constituted a discretionary
political decision closely analogous to policy determinations by
organs of government which in terms
of case law are not considered to
amount to administrative action. Thát argument echoes the following
statement made by Mr Uys:
“…
as the product of a purely
political judgment, the recall decision is consequently not an
administrative decision, and the rules of
natural justice do not
apply thereto.”
90] As already stated: once a power
to recall comes into being by the passing of a vote of no confidence
the political party that
nominated a permanent delegate to the NCOP
in whom a vote of no confidence has been passed has a choice. It may
decline to exercise
the authority to recall him or her, in which
event the vote of no confidence stands as an expression of a view
held by the majority
of the members of the Provincial Parliament that
voted thereon and the
status
quo
remains and no rights
and interests are affected thereby: if it is decided to exercise the
power the obverse is the case.
91] Although the making of the choice
whether to exercise the power to recall or not may entail the
exercise of a discretion there
is no basis upon which any discretion
can be implied into the manner in which the power to recall is
exercised. As the exercise
of the power to recall, as I have
already found, amounts to the exercise of a public power it must
conform with the rule of law
and not be arbitrary (See:
Reuters
Group PLC and Others v Viljoen and Others NNO
2001(12) BCLR 1265 (C) paragraph 44).
92] As I have already found that
political parties are not immune to judicial review and that their
decisions are susceptible of judicial
review - unless they are
incapable or being objectively evaluated for rationality - and the
recall resolution, in my view, is
capable of being so evaluated, it
follows that counsels’ argument that it did not constitute a
decision of an administrative nature
cannot be upheld.
93] Having come to the conclusion that
the exercise of the power to recall the applicant constituted
administrative action what must
be decided next is whether it falls
to be reviewed on the basis of any of the grounds enumerated in
Section 6(2)
of the AJA. Administrative action is so reviewable if
it, inter alia, was procedurally unfair (subsection 6(2)(c)). It is
not
in dispute that none of the measures enumerated in
Section 3(2)
and (3) of the AJA were complied with. In fact it is the NNPWC’s
case that it was not obliged to do so. In the light of the finding
that the recall resolution constituted administrative action it in my
view clearly had to do so.
94] The NNPWC’S counsel have argued
that if the recall resolution constituted administrative action and
the provisions of the AJA
as regards procedurally fair administrative
action had to be complied with, the offer of the Executive Committee
in its letter of
19 March 2002 to give consideration to the motion of
no confidence and to reconsider the recall resolution, constituted
sufficient
compliance therewith.
95] On my understanding thereof
Section 3
of the AJA prescribes two categories of measures to ensure
procedural administrative fairness. The first, enumerated in
subsection
(2)(b), are compulsory. The second, enumerated in
subsection (3), are dependent on the administrative decision-maker
exercising
his or her discretion whether or not to allow them. It is
notable that no such discretion is provided for in respect of the
second
category. In terms of the provisions of subsection (4)(a) the
first category of measures may be departed from if it is reasonable
and justifiable in the circumstances. Subsection (4)(b) sets out the
factors that should be taken into account by an administrative
decision-maker in determining whether a departure should be allowed.
96] I am of the opinion that the
legislature intended the measures enumerated in subsections 3(2)(b)
and 3(3) to be complied with
prior to an administrative decision
being taken. That view is based on the involvement of the
administrative decision-maker in what
departures should be allowed in
respect of the measures in the first category; his or her
involvement in whether or not any of the
second category of measures
should be allowed; and the explicit reference in subsection 2(b)(a)
to “the proposed” administrative
action.
97] Such
an intention would accord with the general common law practice that
procedural justice must be observed before, rather than
after, the
taking of an administrative decision. A deviation from the general
practice was countenanced for instance, where urgent,
ex parte action
was permitted; where prior hearings were impractical because of the
large numbers of people involved; where a prior
hearing would defeat
the purpose of the action being taken; and where the prior hearing
was merely provisional. In such cases a
subsequent hearing cured the
initial lack of administrative procedural fairness if the decision
had not yet been implemented; the
decision-maker retained an open
mind and could be persuaded to alter his or her decision; and no
prejudice had resulted from the
absence of a prior hearing (See:
Currie & Klaaren:
(op cit) at page 98 footnote 31;
Cora
Hoexter
(op cit) pages 201
– 2;
Lawrence Baxter:
Administrative Law
587/8
and the cases cited by them).
98] It is common cause that the
Executive Committee as the administrative decision-maker never
exercised any discretion in respect
of the second category of
measures and had not considered whether any of the first category of
measures should be departed from.
99] Not a single one of the factors
set out in paragraph 97 above that would have justified
non-compliance with the measures enumerated
in
Section 3(2)(b)
and
3
(3) was present and no reasons have been provided, and none are
apparent, for the inordinate haste with which the recall resolution
was passed and the nomination of Mr Adams finalized.
100] In any event, the recall
resolution had already been implemented and acted upon in that Mr
Adams had already been nominated by
the NNPWC and appointed by the
Provincial Parliament; the view persisted with even during argument
that the recall resolution was
a manifestation of a discretionary
political decision and accordingly did not attract fair
administrative procedures is difficult
to reconcile with a mindset on
the part of the Executive Committee conducive to a preparedness to
change the original decision;
and the fact that a duty was placed on
the applicant to show why she should not have been recalled in my
view was potentially prejudicial
to her because of “the natural
human inclination to adhere to a decision once taken” (per Corbett
CJ in
Attorney-General
Eastern Cape v Blom
1988(4) SA 645 (A) at 668 E).
101] I accordingly incline to the view
that the offer on the part of the Executive Committee of the NNPWC to
reconsider the recall
resolution did not constitute procedurally fair
administrative action.
102] In the premises the recall
resolution falls to be set aside.
The Decision to nominate Mr Adams
103] The basis of the conclusion at
which I arrived in respect of the review and setting aside of the
decision of the Executive Committee
to nominate Mr Adams as a
permanent delegate to the NCOP obviates the need to set out the
grounds on which the applicant relied for
such relief, or to deal
therewith.
104] Mr Adams’ counsel contended
that the chairperson of the NCOP should have been joined as a
necessary party to the proceedings
as the relief sought by the
applicant will impact directly on that body’s composition by
nullifying the basis upon which he holds
his seat as a permanent
delegate. The applicant’s attorney when the non-joinder of the
chairperson of the NCOP was raised, on
18 April 2002 addressed a
letter to her in which she was advised that a dispute existed
regarding whether she should be joined or
not and that the applicant
had no objection to her being joined. The chairperson did not take
any steps in that regard.
105] A party must be joined in legal
proceedings if such a party has an interest of such a nature that he,
she or it is likely to
be prejudicially affected by any relief
granted therein (See:
Amalgamated
Engineering Union v Minister of Labour
(supra)). The test is whether such a person has a direct and
substantial interest i.e. a legal and not merely a financial interest
in the subject-matter of the proceedings (See:
Henri
Viljoen (Pty) Ltd v Awerbuch Brothers
1953(2) SA 151 (O) at 169 H;
United
Watch & Diamond Co (Pty) Ltd v Disa Hotels
1972(4) SA 409 (C) at 415 E – F).
106] Whilst it seems to be
self-evident that the manner in which the NCOP is constituted will be
affected should the nomination of
Mr Adams and consequently his
appointment as a permanent delegate be reviewed and set aside, no
direct and substantial interest of
the chairperson of the NCOP, in my
view, is affected thereby. The total number of delegates in the
delegation of each province and
the representation of the different
political parties therein is determined on the basis of a formula
prescribed by national legislation;
the identities of the persons
that form part of such a delegation are determined by the respective
political parties entitled to
be represented; and delegates are
appointed by the respective provincial legislatures. The chairperson
of the NCOP has no say or
any interest in the identities of
delegates. I accordingly incline to the view that the chairperson
of the NCOP does not have a
direct and substantial interest in the
relief that is been claimed in paragraph 3.3 of the Notice of Motion.
In the premises the
argument that she should have been joined is
rejected. The view that she does not have such an interest seems to
be shared by the
chairperson of the NCOP as is apparent from the fact
that she, despite being urged to do so, did not take any steps to be
joined.
107] The only possible source of the
power in terms whereof the Executive Committee could have nominated
Mr Adams to replace the applicant
as a permanent delegate to the NCOP
is Section 2 of the National Council of Provinces (Permanent
Delegates Vacancies Act) No 17
of 1997 which prescribes the procedure
that has to be followed if a vacancy occurs among permanent
delegates. In terms of subsection
2(2) the party who nominated a
vacating permanent delegate is called upon to nominate a person in
his or her stead and subsection
2(3) provides that a person so
nominated by the party concerned shall be appointed as a permanent
delegate to the NCOP by the provincial
legislature concerned.
108] It accordingly, is clear that the
existence of a vacancy among the permanent delegates to the NCOP that
were nominated by the
NNPWC is an indispensable prerequisite for the
power to nominate a substitute arising. The consequence of the
reviewing and setting
aside of the recall resolution is that one of
the prescribed requirements for the cessation of the applicant’s
membership of the
NCOP is absent so that no vacancy existed and
accordingly the nomination of Mr Adams was a nullity (Cf:
The
Monastery Diamond Mining Corporation (Edms) Bpk v Schimper en
Andere
1983(3) SA 538 (O)
at 549 E) and falls to be set aside. That in turn results in the
invalidity and nullity of his appointment
by the Provincial
Parliament as a permanent delegate to the NCOP.
109] In the premises the applicant is
entitled to an order in terms of prayer 3.3 of the Notice of Motion
save that the word “appointment”
must be deleted and substituted
with the word “nomination”.
110] One
other aspect has to be dealt with.
111] Despite the fact that the amended
notice of motion does not contain a prayer for the reviewing and
setting aside of the decision
that a motion of no confidence in the
applicant should be proposed, the applicant’s attorney on 17 April
2002, by means of a facsimile
addressed to the NNPWC’s attorneys,
Messrs Marais, Muller, requested amongst others, the production,
presumably in terms of rule
35(12), of all minutes of meetings at
which the NNPWC and/or the Executive Committee of the NNPWC resolved
to “institute” the
motion of no confidence in the applicant and
all other documents relating thereto. The response to that request
was that there was
no reference to such a meeting or meetings in the
answering affidavits that were filed on 15 April 2002 and
accordingly, the request
was not complied with. However, the
applicant, when she in her replying affidavit, deposed to on 23 April
2002, responded to the
averment of Mr Smit that he personally decided
to move the motion of no confidence, she endeavoured in her replying
affidavit, to
expand her case, by assailing that decision on the
following grounds:
“
I
have been advised that the position is that, if such meetings were
held, and if Fourth and Fifth Respondents wish to avoid inferences
of
bad faith and/or ulterior motive, they are enjoined to make the
minutes available. If there are no such miutes, it means no proper
decisions were taken and that the motion of no confidence should be
set aside for that reason alone. If the deponent, as the chief
whip,
took it upon himself to propose the motion, as now appears likely, he
should in any event fully explain he reasons therefor.
Such actions
would, for instance, fall short, even of an “expression of the
political will of its constituents and members”
upon which the
deponent now (albeit without any basis therefore) wish (sic) to
rely.”
(Paragraph 18)
112] The appellant, however, did not
take any steps to make consequential amendments to the prayers of the
notice of motion.
113] What is apparent from the first
two sentences of the passage quoted in paragraph 111 above is that
the applicant stops short
of stating that the NNPWC and/or its
Executive Committee held meetings at which it was decided that a vote
of no confidence in her
should be proposed. Thát, coupled with the
applicant’s willingness to accept the likelihood that Mr Smit took
it upon himself
to propose the motion of no confidence, seem to be
incongruent with the existence of any belief on her part that the
NNPWC and/or
its Executive Committee held such meetings. In the
absence of evidence that such meetings took place, the question
whether minutes
were kept or not; the inferences the applicant seeks
to draw; and the consequences she attributes thereto, are not only
legally
contentious but amount to conjecture of no evidential value.
114] The applicant’s contention
that, absent minutes of the decision to propose a vote of no
confidence in her, proper decisions
had not been taken, is not only a
non sequitur,
but the conclusion that the vote of no confidence falls to be set
aside for that reason alone, disregards the dichotomy between a
decision to propose the motion and the acceptance of the motion of no
confidence by the Provincial Parliament.
115] In the absence of evidence that
Mr Smit proposed the vote of no confidence pursuant to a resolution
passed by the NNPWC and/or
its Executive Committee, it would be fair
to infer, as the applicant and her counsel do, that he did so on his
own initiative.
116] As a decision of that nature does
not constitute “administrative action” as defined in section 1
of the AJA it is not reviewable
thereunder or in terms of the common
law principles of administrative justice in its restricted
application (See:
Pennington
v Friedgood and Others
2002(1) SA 251 (C) at 263 B – D).
117] That being the case it is
unlikely that any application for an amendment of the Notice of
Motion would have succeeded and accordingly
no prejudice flows from
the failure to have done so.
Costs
118] The applicant initially
instituted proceedings against the NNP (as first respondent), the ANC
(as second respondent) and the
third respondent in which she, pending
the institution of proceedings for the review and setting aside of
the vote of no confidence
adopted by the provincial parliament on 12
March 2002 and the recall resolution, sought an order suspending the
recall resolution
and permitting her to resume and continue with her
functions as a permanent delegate to the NCOP.
119] As the NNP in the answering
affidavit of Mr Smit, jurat 18 March 2002 raised the question of the
mis-joinder of itself and the
non-joinder of the NNPWC, the Executive
Committee and Mr Adams, the applicant on 22 March 2002, launched an
application for their
joinder. By agreement an order was made for
their joinder by Blignault J on 27 March 2002 who, inter alia,
reserved the respective
parties’ rights to argue the costs
resulting from the mis-joinder of the NNP and the non-joinder of the
NNPWC, the Executive Committee
and Mr Adams. I am now called upon to
decide that issue.
120] It does not appear to be an issue
that the NNP was misjoined and it follows that it is entitled to any
costs that flow therefrom.
121] As regards the non-joinder of the
NNPWC, the Executive Committee and Mr Adams, those issues are dealt
with in the answering affidavit
of Mr Smit, jurat 18 March 2002,
which dealt with the merits of the relief initially claimed. The
non-joinder aspect constituted
a minor part of that affidavit, the
costs whereof constitute part of the costs in the main application.
Accordingly there in my
view is no need to make a special order
regarding the costs flowing from such non-joinder.
122] Bearing in mind the purpose of an
application to join necessary parties (See:
AC
Cilliers: The Law of Costs
paragraph 11.2) the costs of such an application, if unopposed, in
my view, in the absence of special circumstances, should be part
of
the costs in the cause. In my view the instant is a case where
special circumstances are absent and accordingly the costs of
the
joinder-application are ordered to be costs in the cause.
123] The outcome of this application
is that the third respondent was substantially successful as regards
the relief claimed in prayer
3.1 as against the applicant and that
the applicant was substantially successful in respect of the relief
claimed in prayer 3.2 and
as against the NNPWC and its Executive
Committee and prayer 3.3 as against Mr Adams. As the NNPWC, the
Executive Committee and Mr
Adams were represented by the same counsel
and attorneys and in almost all other respects made common cause,
fairness dictates that
no differentiation should be made between them
for the purposes of liability or costs.
124] The applicant’s counsel
contended that in the event of the third respondent being successful
she should not be allowed her
costs. They submitted that no relief
was claimed against her and the Provincial Parliament and there
accordingly, was no reason
for her to have entered into the fray,
more in particular because the attack on the vote of no confidence
did not concern the exercise
of a legislative function on the part of
the Provincial Parliament but was based exclusively on an abuse by
the NNPWC of its procedure
coupled with the fact that it was
indivisibly connected with the recall resolution, which was clearly
reviewable, and had nothing
to do with the Provincial Parliament.
125] I have already found that
although the third respondent was cited in her personal capacity she
participated in the proceedings
in a representative capacity.
126] Although the proceedings
commenced on the basis that the applicant was seeking interim relief
the issues on the papers and during
argument were restricted to
whether the different decisions were reviewable or not.
127] I am in agreement with the
submission of the third respondents’ counsel that third respondent
was required to act in the interests
of the Provincial Parliament in
order to uphold its position and decisions and defend its
constitutional position because the applicant
from the outset
attacked the motion of no confidence on the grounds that the Standing
Rules of the Provincial Parliament had not
been complied with; that
the third respondent had not applied her mind to the matter; that
the procedures of the Provincial Parliament
were subject to the
provisions of the AJA and accordingly subject to review and being set
aside; that the individual members of
the Provincial Parliament, who
had not been joined, had acted arbitrally and capriciously; and
that the Provincial Parliament could
be required to provide reasons.
128] The third respondent in my view
had an interest in opposing the proceedings even at the initial stage
in order to deal with the
incorrect allegations that were made
regarding the proceedings in the provincial parliament on 12 March
2002 and to prevent the granting
of temporary relief that was
predicated upon the finding that the applicant had
prima
facie
established a clear
right that she was entitled to have the vote of no confidence
reviewed and set aside.
129] In my view the third respondent
is entitled to an order of costs as against the applicant including
the costs of employing two
counsel.
130] As no basis has been advanced why
the general rule that costs follow the result should be deviated
from, there is no reason why
the NNPWC, the Executive Committee and
Mr Adams, jointly, should not be liable for the applicant’s costs
including costs of employing
two counsel.
ORDERS:
The following orders are
made:
1] The applicant is ordered to pay the
first respondent (The New National Party) such costs as flow from
its having been joined as
a party in the application.
2] The
costs of the application to join the fourth respondent (The New
National Party, Western Cape); the fifth respondent (The
Executive
Committee of the New national Party, Western Cape); and the sixth
respondent (Freddie Adams) are ordered to be costs
in the cause.
3] Prayer
3.1 of the Notice of Motion is refused.
4] Prayers
3.2 and 3.3 of the Notice of Motion are granted. The word
“appointment” in prayer 3.3 is substituted with “nomination”.
5] The
applicant is ordered to pay the third respondent’s costs on a party
and party scale and such costs are to include the costs
of the
employment of two counsel.
6] The
fourth-, fifth- and sixth respondents jointly are ordered to pay the
applicants costs on a party and party scale and such
costs are to include the
costs of the employment of two counsel.
______________
D.
VAN REENEN