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[2015] ZAWCHC 125
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Tshishonga v Speaker of the National Assembly and Others (6821/2015) [2015] ZAWCHC 125 (8 September 2015)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 6821/2015
DATE:
08 SEPTEMBER 2015
In
the matter between
MICHAEL
TSHISHONGA
...............................................................................................
APPLICANT
And
THE
SPEAKER OF THE NATIONAL
ASSEMBLY
............................................
1st
RESPONDENT
AGANG
SA
..............................................................................................................
2nd
RESPONDENT
ANDRIES
TLOUAMMA
........................................................................................
3rd
RESPONDENT
LILY
WILLIAM
MOKHOLOANE
.......................................................................
4th
RESPONDENT
BEAUTY
MOHLALA
.............................................................................................
5th
RESPONDENT
MERVIN
GOVENDER
...........................................................................................
6th
RESPONDENT
LERUMO
MPAHLELE
..........................................................................................
7th
RESPONDENT
KOEKOE
MAHUMAPELO
...................................................................................
8th
RESPONDENT
TSHEPO
SETLAI
....................................................................................................
9th
RESPONDENT
SUZANNE
HARVEY
N.O
.....................................................................................
10th
RESPONDENT
Coram
:
ROGERS J
Heard:
24 AUGUST 2015
Delivered:
8 SEPTEMBER 2015
JUDGMENT
ROGERS
J:
Introduction
[1]
This is another round in the unedifying
tussle between opposing factions of Agang South Africa (‘Agang’).
The applicant
(‘Tshishonga’) seeks, in summary, to have
set aside (i) decisions taken by the purported National
Executive Committee
(‘NEC’) of Agang on 22 December 2014
and 28 February 2015 on the basis that the meetings were unlawful;
(ii) the
resultant disciplinary action against him, culminating
in his expulsion from Agang. He was represented before me by Mr
Papier.
[2]
The first respondent is the Speaker of the
National Assembly. She has filed a notice to abide. The second
respondent is Agang. The
third to ninth respondents are the persons
who purportedly met as the NEC on 22 December 2014 and 28 February
2015. (I shall refer
to the second to ninth respondents as ‘the
respondents’ and to the third to ninth respondents as ‘the
individual
respondents’.) Mr Osborne, instructed by De Klerk &
Van Gend (‘DKVG’), appeared for the respondents though
there was a belated challenge to their authority to represent Agang.
The tenth respondent is Ms S Harvey (‘Harvey’),
who
presided at the disciplinary hearing and recommended Tshishonga’s
expulsion. She abides the court’s decision.
The
facts
[3]
In the general election of 7 May 2014
Agang, a political party founded by Dr Mamphela Ramphele
(‘Ramphele’), gained
two seats. Ramphele declined to take
up a seat, and they were filled by Tshishonga and the third
respondent (‘Tlouamma’).
There was a falling out between
Dr Ramphele and another faction of the party’s leadership.
Tshishonga and Tlouamma were part
of that other faction. At an
emergency National Congress of the party held on 29 June 2014 a new
NEC was elected, with Tshishonga
as Acting President and Tlouamma as
Deputy President. Ramphele brought proceedings to have the meeting
declared invalid. On 4 August
2014 Davis J dismissed this challenge
and ruled that Agang’s NEC was the one elected on 29 June 2014.
He also determined
that Agang’s binding constitution was the
one dated 27 April 2013. Ramphele then fell out of the picture.
[4]
Shortly thereafter a rift emerged between
factions led by Tshishonga and Tlouamma respectively. In September
2014 Tlouamma’s
faction launched proceedings to have Tshishonga
removed as the signatory on Agang’s bank accounts. In October
2014 Tshishonga
instituted an application to restrain Tlouamma from
holding himself out as Agang’s leader at a proposed meeting
with President
Zuma. He also applied for declaratory relief regarding
the current composition of the NEC. The applications were
consolidated and
referred to oral evidence. The evidence was mainly
directed at determining the current membership of the NEC. On 19
December 2014
Potgieter AJ delivered judgment, finding that the
current NEC comprised the 12 persons listed in para 44 of his
judgment. These
included Tshishonga and Tlouamma (their membership of
the NEC had not been in dispute). Potgieter AJ also made an order
removing
Tshishonga as the signatory on Agang’s bank accounts
and directing that he be substituted by new signatories to be
appointed
by the NEC.
[5]
The ink was barely dry on Potgieter AJ’s
judgment when both factions gave notices of a meeting of the NEC.
Tshishonga gave
his notice for 23 December 2014 (his notice and
agenda, if any, are not in the record). Tlouamma’s faction gave
notice for
22 December 2014. The latter notice, dated 20 December
2014, was issued by the sixth respondent, who was the party’s
Deputy
Secretary General. As at 20 December 2014 the position of
Secretary General was vacant.
[6]
Seven members of the NEC attended the
meeting of 22 December 2014. They were all members of Tlouamma’s
faction. Since the
members in attendance represented more than 50% of
the NEC, the meeting was regarded as quorate. Among the decisions
taken were
(i) the adoption of a motion of no confidence in
Tshishonga as Acting President and as an Agang MP; (ii) that
disciplinary
action be instituted against Tshishonga and that Mr
Peter Makwela (‘Makwela’) be appointed as chairperson of
the disciplinary
committee to oversee disciplinary action against
Tshishonga; (iii) appointing Tlouamma as the Acting President of
the party;
(iv) appointing the seventh respondent to the vacant
position of Secretary General; (v) appointing new signatories for the
party’s bank accounts.
[7]
Tshishonga’s proposed meeting of the
NEC on 23 December 2014 did not take place.
[8]
On 31 December 2014 Makwela wrote to
Tshishonga informing him that the NEC had removed him as Acting
President and as a member of
the NEC and advising him that the NEC
had mandated that ‘you be subjected to disciplinary action and,
to the extent you are
found guilty, expelled from the party’.
The disciplinary charges were listed. Tshishonga was notified that
the hearing would
take place at the Southern Sun Hotel in Pretoria on
12 January 2015 and that the disciplinary panel would be communicated
to him
in due course. Makwela stated that he would prosecute.
[9]
Tlouamma’s faction convened a further
NEC meeting on 4 January 2015. Tshishonga’s faction did not
attend. The NEC approved
and adopted the minutes of 22 December 2014.
(Although no point was made of this, it appears from the minutes that
only six NEC
members were present at the meeting of 4 January 2015.
Tshishonga is listed as one of five persons absent. It seems that,
despite
Makwela’s letter of 31 January 2014, Tshishonga was
being treated at this stage as still part of the NEC, though no
longer
party leader, and was invited to attend the meeting. In the
circumstances, the meeting was probably not quorate.)
[10]
On 6 January 2015 DKVG notified Tshishonga
that Harvey, a member of the Cape Bar, would be the presiding officer
at the disciplinary
enquiry and that Mr Osborne (also of the Cape
Bar) would prosecute.
[11]
On 7 January 2015 Tshishonga’s
attorney, Mr Nkome of Nkome Inc (‘Nkome’), wrote to DKVG.
Nkome’s letter
is not in the record. On 8 January 2015 DKVG
replied. After addressing the matters raised by Nkome, DKVG concluded
by attaching
a list of documents and witnesses to be used at the
disciplinary hearing. It was recorded that Tshishonga had all of
these documents
in his possession but that they would be supplied on
request.
[12]
On 9 January 2015 Tshishonga launched an
urgent application in the South Gauteng High Court challenging the
validity of the meeting
and decisions of 22 December 2014. On 11
January 2015 Wright J struck the matter from the roll as not urgent.
Tshishonga has not
taken steps to prosecute that application though
he has apparently not withdrawn it.
[13]
Tshishonga did not attend the disciplinary
hearing on 12 January 2015. Nkome made an appearance at the start of
proceedings to hand
in a medical certificate stating that Tshishonga
had been examined (by an unidentified doctor from a general practice
of 14 doctors)
on 11 January 2015 and would not be fit for work from
12 to 16 January 2015. (This certificate is not in the record.) Nkome
stated
that he was merely a messenger and was not representing
Tshishonga. After hearing submissions from Mr Osborne, Harvey ruled
that
the hearing should continue on the basis that a transcript be
made available to Tshishonga and that he would be entitled to
cross-examine
the witnesses on a future occasion. Tlouamma and one
Aubrey Plaatjies then gave evidence.
[14]
On 15 January 2015 Tshishonga was given
notice by email that the hearing would continue in Cape Town on 21
January 2015. On the
following day the transcript was provided to
him.
[15]
Tshishonga did not appear on 21 January
2015. Mr Osborne informed Harvey that on the previous day a further
medical certificate
had been emailed to DKVG. The certificate stated
that Tshishonga had been examined on 16 January 2015 and that
‘according
to my knowledge/as I was informed he/she was unfit
for work from 19 January 2015 to 23 January 2015’. Harvey was
not satisfied
that Tshishonga had a valid reason for being absent.
She heard argument on the merits and reserved her decision.
[16]
Despite the medical certificates,
Tshishonga had not been altogether inactive. On 20 January 2015 his
faction called a Special National
Congress for 31 January 2015. His
faction also purported to hold Gauteng and Free State provincial
meetings on 24 January 2015.
These developments prompted Tlouamma (in
his own name and that of Agang) to launch an urgent application in
the South Gauteng High
Court to interdict the proposed National
Congress and to declare the two provincial meetings unlawful. On 30
January 2015 Spilg
J granted this relief but declined certain other
relief which he described as intended to elevate Tlouamma’s
faction as Agang’s
rightful leadership. He handed down his
reasons on 9 February 2015. He said the following regarding the
relief he declined to grant:
‘
[49] The
history of convening meetings demonstrates that since at least
September each group has purported to convene meetings
at which the
other does not participate and is either barricaded from attending…
or precipitated the other to hold a rival
meeting. In my view the
situation has deteriorated, that having regard to the [party’s]
constitution and its proper interpretation
where there is a lacuna,
neither group can or will of their own accord be able to convene a
competent or valid meeting. Neither
represents the party. They
represent their own self-interests and convene meetings to further
their own ends.
[48] The only
basis upon which any valid meeting can be convened is once an NEC is
voted in by a properly convened meeting
of verified members in good
standing….
[49] It
is therefore the ratio of this court which will constitute an issue
estoppel if transgressed, that neither party is
capable of convening
a meeting until there has been a proper meeting convened of the
membership and the membership has elected
the office bearers to the
highest decision making body or bodies after duly constituted
provincial congresses as required by the
constitution. The only basis
upon which that can occur in law is if the two [groups]
[1]
reach consensus on the process otherwise the intent and purpose of
the constitution will be incapable of implementation.’
[17]
Agang and Tlouamma have appealed this part
of Spilg J’s judgment.
[18]
Harvey issued her decision on 16 February
2015. In summary she made the following adverse findings against
Tshishonga: (i) that
he had made public pronouncements at odds
with Agang’s official policy; (ii) that he had used his
signing powers to
obstruct Agang’s access to its funds;
(iii) that he had failed without explanation to attend the
majority of parliamentary
and committee meetings that he was obliged
to attend;(iv) that he had attended a whips committee meeting
regarding the Nkandla
issue despite the fact that Tlouamma was the
duly appointed party whip, and had embarrassed the party by
overruling Tlouamma’s
nomination in respect of the committee’s
chairperson and instead tabling his own nomination; (v) that he
had misappropriated
over R80 000 by way of unauthorized payments
from Agang bank accounts; (vi) he and two other members of the
NEC as determined
by Potgieter AJ had purported on 28 December 2014
to disband the said NEC and establish new structures. She regarded
the misconduct
as very serious and recommended that the NEC terminate
Tshishonga’s membership of the party.
[19]
On 24 February 2015 the sixth respondent,
acting on behalf of the seventh respondent (who on 22 December 2014
had been appointed
Secretary General), gave notice of an NEC meeting
for 28 February 2015. One of the agenda items was to consider
Harvey’s
findings and recommendation and to debate and decide
whether to accept her findings on the merits and her recommendation
as to
sanction. Seven NEC members, being Tlouamma and his
faction, attended. Tshishonga and the other four members of his
faction
were given notice of the meeting but did not attend. The
meeting adopted the minutes of 4 January 2015 and confirmed that the
party’s
National Congress would take place on 28 March 2015.
The meeting accepted Harvey’s findings and recommendation and
decided
that Tshishonga’s membership of the party be terminated
with immediate effect. It was further resolved that Tlouamma be the
Acting President.
[20]
Tshishonga was notified of this decision in
a letter dated 4 March 2015. On the same day Tlouamma, as Agang’s
leader and whip,
notified the Speaker of Tshishonga’s expulsion
and said that the party would notify her of his replacement in due
course.
In a further letter dated 16 March 2015 Agang requested the
Speaker to ensure that Tshishonga was not permitted to participate in
Parliament’s business. On the same day Agang wrote to
Tshishonga instructing him to cease holding himself out as an Agang
member and as an MP.
[21]
In a letter dated 14 April 2015 the Speaker
informed Tshishonga that he had ceased to be an MP by virtue of the
provisions of s 47(3)(c)
of the Constitution.
Procedural
history
[22]
Tshishonga issued the present application
on 17 April 2015, giving notice that on 7 May 2015 he would seek
urgent Part A relief
pending the determination of final Part B
relief. The interim relief was a declaration that he had not lost his
Agang membership
or his seat as an MP and an interdict preventing the
Speaker from swearing in any person in his place. The Part B relief
was the
final relief I have summarised in para 1 above. He was
represented by new attorneys, Venfolo Attorneys (‘Venfolo’).
[23]
The respondents filed their answering
papers on 6 May 2015. Tshishonga delivered a replying affidavit and
the matter came before
Nuku AJ. On 12 May 2015 he struck the
application for Part A relief from the roll and ordered Tshishonga to
pay the wasted costs
on the basis that he had created urgency by
delaying the institution of proceedings.
[24]
By way of an agreed order on 15 May 2015
the application for the Part B relief was postponed to 17 June 2015
with a timetable. In
terms thereof Harvey was to deliver the
disciplinary record by 22 May 2015, whereafter Tshishonga had until
27 May 2015 to deliver
a supplementary founding affidavit.
[25]
In the meanwhile there were developments on
the parliamentary front. On 18 May 2015 Agang nominated the eighth
respondent to fill
the allegedly vacant seat. On the same day DKVG
notified Venfolo thereof. Following further urgent correspondence,
Tshishonga on
19 May 2015 filed a supplementary affidavit together
with a notice setting the matter down on 20 May 2015 for the urgent
determination
of Part B. On 20 May 2015 the matter came before Savage
J. By that stage Parliament had advised that the eighth respondent’s
swearing-in was imminent. It appears that Mr Papier did not press for
final Part B relief but for an interim order similar to the
previous
Part A. On 22 May 2015 Savage J dismissed the urgent application with
costs. She was satisfied that the matter was urgent.
She rejected an
argument for the respondents that the matter was moot because the
vacancy had been filled by the eighth respondent’s
mere
nomination. However, she found that there was no irreparable harm
because the status quo could be restored if, following the
eighth
respondent’s swearing-in, it transpired that Tshishonga had not
been validly expelled as a member of Agang and thus
as an MP.
[26]
Shortly thereafter the eighth respondent
was sworn in as an Agang MP.
[27]
Reverting to the Part B proceedings, the
disciplinary record was duly delivered but Tshishonga failed to serve
his supplementary
founding affidavit by 27 May 2015, only doing so on
5 June 2015. This delayed the filing of the respondents’
supplementary
answering papers (which occurred on 12 June 2015) and
the heads of argument. The matter was thus not ripe for hearing when
it came
before Ndita J on 17 June 2015. She expressed displeasure and
required Venfolo to file an explanatory affidavit, which he did the
following day. Ndita J postponed the application to 24 August 2015,
with costs to stand over for later determination.
[28]
Included in Tshishonga’s
supplementary founding papers of 5 June 2015 was an affidavit by the
fourth respondent dated 2 June
2015. This was naturally a surprising
development, since hitherto the fourth respondent had appeared to be
in Tlouamma’s
camp and was one of the respondents represented
by Mr Osborne and DKVG. From the respondents’ supplementary
answering papers
it appears that the fourth respondent has indeed
defected. However, the bulk of what he says has been placed in issue.
[29]
On 28 July 2015 the respondents filed an
affidavit in response to Venfolo’s explanatory affidavit. This
bears only on the
question of the wasted costs of 17 June 2015.
The
application to receive further evidence
[30]
The matter came before me on 24 August
2015, heads of argument having been duly filed on both sides. Shortly
before the start of
proceedings Mr Papier delivered to my chambers an
application by Tshishonga that further evidence, in the form of
another affidavit
by the fourth respondent, be received. The fourth
respondent’s new affidavit dealt with an alleged meeting of
Agang’s
NEC on 31 July 2015, attended by six persons, being
four members of Tshishonga’s faction and two persons –
the fourth
and seventh respondents – who had formerly been part
of Tlouamma’s faction. It was claimed that this meeting was
quorate,
given that Tshishonga’s expulsion had left only 11
members on the NEC. (This is of course inconsistent with Tshishonga
case
in the present proceedings, where he claims a declaration that
all the decisions taken on 22 December 2014 are unlawful and
invalid.)
The meeting of 31 July 2015 supposedly resolved (i) to
suspend five members of the NEC, including Tlouamma; (ii) to
appoint
Tshishonga as the party’s President; (iii) to
declare the meeting of 22 December 2014 null and void; (iv) to
‘review
and set aside’ the resolutions of 22 December
2014 and 28 February 2015; (v) to advise DKVG that they did not
represent
Agang in any litigation and terminating their mandate;
(vi) that ‘the litigation between [Tshishonga] and the
party
be withdrawn as the process to establish the disciplinary
hearing was illegitimate’.
[31]
When the matter was called I indicated to
Mr Papier that I was disinclined to receive the supplementary
evidence. Firstly, I found
barely credible Tshishonga’s
assertion that he had only learnt of the meeting of 31 July 2015 and
its resolutions on 22 August
2015, particularly since the meeting had
supposedly appointed him as the party’s President. Second, the
validity of the meeting
and its decisions would almost certainly be
placed in issue, leading to a postponement. (iii) Third, even if
Mr Osborne and
DKVG could no longer act for Agang or for fourth and
seventh respondents (who had apparently defected), they could still
act for
Tlouamma and the remaining individual respondents. Agang was
not the applicant but merely one of a number of respondents.
[32]
Mr Papier did not press the application to
receive further evidence, and I refused it. Mr Osborne nevertheless
asked to be permitted
to hand up an opposing affidavit on which the
respondents and their legal representatives had worked overnight. I
received the
affidavit insofar as it might be relevant to costs. I
have not read the opposing affidavit and have disregarded the
supposed facts
alleged in the application to adduce further evidence.
If any person considers that the supposed meeting of 31 July 2015 has
legal
effect, that will have to be asserted by way of separate
proceedings.
The
issues
[33]
Mr Papier advanced submissions in support
of the following conclusions (i) that Harvey’s appointment
to preside over
the disciplinary enquiry was invalid; (ii) that
Mr Osborne’s appointment to prosecute in the disciplinary
enquiry was
invalid; (iii) that Tshishonga’s expulsion was
invalid because it was a ‘foregone conclusion’; (iv) that
the disciplinary hearing was unfair because of Harvey’s
supposed misapprehension about the NEC’s power to rescind her
decision and because Tshishonga was supposedly unaware of the hearing
on 21 January 2015 or had a valid reason to be absent ; (v) that
the meetings of 22 December 2014 and 28 February 2015, and thus the
decisions made at them, were invalid in the light of Spilg
J’s
judgment and in any event in the light of certain procedural
shortcomings.
[34]
Mr Osborne, apart from disputing these
conclusions, argued that I had a residual discretion to refuse
relief, which I should exercise
in the light of delay, subsequent
developments and Tshishonga’s conduct in general.
Agang’s
constitution
[35]
It appears sensible to start with Mr
Papier’s attack on the meeting of 22 December 2014. Before I do
so, I must refer to Agang’s
constitution. It is terse. Article
4 proclaims that Agang consists of four levels of governance though
six are then listed, namely
the National Congress, the NEC, the
National Management Team, the Provincial Congress, the Provincial
Executive Council and Branches.
[36]
Article 5 states that the National Congress
is the party’s supreme policy-making and governing body. It is
required to meet
every two years. It takes decisions on all aspects
of policy, leadership, organisation and finances. Article 5.4 states
that the
constitution and exact membership of the National Congress
will be defined at a later date but ‘generally will be
comprised
of national and provincial political leadership, key
national and provincial party leadership, [and] representatives from
branches’.
[37]
Article 6 states that the NEC is the
party’s second-highest collective decision-making body and ‘is
tasked with implementing
the policies, programmes and direction of’
the party. It has ‘general responsibility for the affairs of
[the party]
between Congresses’. Clause 6.2 provides that the
constitution and exact membership of the NEC will be defined at a
later
date ‘but generally will be comprised of national and
provincial political leadership as well as key national and
provincial
party leadership’.
[38]
Articles 7, 8 and 9 deal with the National
Management Team, Provincial Structures and Branches respectively.
[39]
Article 10 states that during the party’s
‘founding phase’ a body called the Founding Cabinet shall
be the party’s
highest decision-making body and ‘shall be
vested with all powers, authorities and responsibilities’ until
such time
as the Founding Cabinet abrogates article 10 through a
two-thirds majority vote of ‘all members of the founding
executive’.
Article 10.1 provides that the Founding Cabinet may
delegate its powers, authorities and responsibilities to the
structures envisaged
in article 4 ‘for the purpose of building
the structures of [the party] in an organic way’. Article 10.5
stipulates
that the Founding Cabinet shall consist of at least three
and not more than 25 members. Article 10.8 describes the Founding
Cabinet’s
role as being to lead the party ‘through the
fragile and fraught founding phase’, a phase intended to last
until June
2016. In terms of article 10.12 the founding members of
the Founding Cabinet were Ramphele and three other named persons,
none
of whom appears to be currently involved with the party. As a
fact there has not been a Founding Cabinet for many months.
[40]
Article 11 deals with membership. In terms
of article 11.3, and subject to article 13, a person’s
membership may be cancelled
should he or she ‘not adhere to or
behave in a manner consistent with the principles, policies and
programmes and constitution
and rules of’ Agang. Membership can
be ‘annulled’ by the Founding Cabinet during the founding
phase or by the
Provincial Executive Council.
[41]
Article 13 (obvious typographical errors
corrected) reads thus:
‘
Any
member who does not adhere to or behave in a manner consistent with
the principles, policies and programmes and Constitution
and Rules of
Agang SA may be summoned to appear before the founding cabinet to
answer to any charges set out in the notice. The
member may not be
legally represented but may be represented by another member in good
standing. In any hearing, the member’s
right to be heard shall
be respected. If found guilty on the charges, the penalties which may
be imposed can include cancellation
of membership. A member in good
standing may be appointed by the founding cabinet to act as
prosecutor in the proceedings.’
[42]
Article 14 is the concluding provision of
the constitution and deals with the auditing of Agang’s books
of account.
The
meeting of 22 December 2014
[43]
I do not think that Spilg J’s
judgment compels me to find that Tlouamma’s faction could not
lawfully convene the NEC
meeting of 22 December 2014. Neither side
placed before me the papers in that case. I do not know the exact
relief Agang and Tlouamma
claimed or the competing factual
allegations which caused Spilg J to reach the conclusions he did.
Apart from the fact that the
effect of his order has been suspended
by the application for leave to appeal, it must be remembered that,
whereas Agang and Tlouamma
were applicants before Spilg J, they are
respondents in the present proceedings. I must determine this
application on the evidence
before me and on the basis that genuine
factual disputes must, in accordance with the
Plascon-Evans
rule, be determined in favour of the
respondents.
[44]
Agang’s constitution does not specify
how meetings must be called. It is obvious that, following Potgieter
AJ’s judgment,
the NEC needed to meet promptly, not least to
appoint new signatories to the bank accounts. This is borne out by
the fact that
both factions convened NEC meetings on relatively short
notice (the one for 22 December 2014, the other for 23 December
2014).
It is conceivable that the right to call an NEC meeting did
not vest exclusively in one person or one combination of persons. All
I need decide is whether the meeting called for 22 December 2014 was
validly called.
[45]
The post of Secretary General was vacant.
The sixth respondent as Deputy Secretary General called the meeting
of 22 December 2014.
It is clear on the evidence that this action
carried the support of at least seven of the NEC’s 12 members,
including the
party’s Deputy President.
[46]
Tshishonga has not provided satisfactory
evidence that he or the other members of his faction were unable to
attend the meeting
on 22 December 2014. He attached to his founding
affidavit an affidavit he had made in support of his urgent
application in the
South Gauteng High Court in which he baldly
claimed that he and the other members of his faction were unable to
attend but sent
proxies who were refused entry by the security
guards. An affidavit by one of those proxies was apparently filed in
the South Gauteng
proceedings but no such affidavit was produced in
the present application. The respondents, who accept that proxies
were by practice
allowed (as was telephonic participation), denied
that Tshishonga or the other absent NEC members sent proxies or that
anyone was
barred access. Tlouamma’s faction would have had no
reason to refuse to allow Tshishonga’s faction or their proxies
to attend, because Tlouamma’s faction knew they held the
majority.
[47]
If it would not have been unreasonable to
hold a meeting on 23 December 2014, I do not think I can find it was
unreasonable to do
so on 22 December 2014. Apart from the urgent need
to appoint new signatories, a majority of the NEC apparently
considered that
a vote of no confidence should be moved against
Tshishonga and that disciplinary action against him should be
considered. It is
most unlikely that Tshishonga would have convened a
meeting to consider such business.
[48]
Tshishonga’s attack on the validity
of the meeting of 22 December 2014 is not, in the present
proceedings, supported by any
of the other members of his then
faction. They have not joined him as applicants nor have they filed
affidavits in support of the
relief he claims.
[49]
In these circumstances, I conclude that the
sixth respondent was entitled to call the meeting of 22 December
2014. The agenda sufficiently
notified NEC members of the business to
be transacted. To the extent that Tshishonga claims to have been
prevented from attending
by proxy (his evidence to that effect is
sketchy and unsatisfactory), there is a genuine dispute of fact which
cannot be resolved
in his favour in these proceedings. I may add that
he has not alleged that he could not have participated
telephonically.
[50]
Mr Papier submitted that the NEC’s
practice was (i) that its Chairperson, or in his absence the
President and General
Secretary, determined the agenda; (ii) that
the General Secretary thereafter invited members to the NEC meeting;
(iii) that
at least five days’ notice should be given;
(iv) that proxies were allowed to represent members. In response
to allegations
to this effect in the founding papers, the respondents
said that, while some of these procedures had been recognised in the
past,
they were not the invariable practice.
[51]
The procedures in question are not
contained in Agang’s constitution. For the reasons I have
explained, and in the unusual
circumstances which prevailed following
Potgieter AJ’s judgment, I do not think it was impermissible
for Tlouamma’s
faction to convene an NEC meeting for 22
December 2014.
Harvey’s
appointment
[52]
Mr Papier submitted that Agang’s
constitution did not permit a non-member to be appointed to preside
over a disciplinary enquiry.
His argument proceeded on the basis that
article 13 should now be read as referring to the NEC rather than the
Founding Cabinet.
He accepted that it would not be practical to
require the NEC itself to conduct a disciplinary enquiry but
submitted that the NEC
could not delegate this function to someone
other than a member of Agang. He cited
Crouwkamp
v Civic Independent & Others
[2014]
ZASCA 98
as authority for the proposition that strangers to an
organisation are not allowed to participate in its affairs.
[53]
The
Crouwkamp
case is distinguishable. The objection
there was that one Damons, who was not a member of the political
party’s NEC, had been
permitted to participate in an NEC
meeting as if he were a member. What was worse, he had actually
proposed the motion of no confidence
against the appellant,
Crouwkamp. The court did not hold that a duly constituted NEC could
not have assigned some or other function
to an outsider. In that case
an outside attorney had been appointed to preside over Crouwkamp’s
disciplinary hearing. The
contention was not that such an appointment
was impermissible but that the NEC meeting which gave rise to the
appointment was invalid
because of Damons’ involvement.
[54]
The present case is also distinguishable
from
Gründling v Beyers &
Others
1967 (2) SA 131
(W), to which
reference was made in
Crouwkamp
.
In
Gründling
the trade union had a very detailed constitution from which certain
prohibitions limiting the appointment of paid officials were
necessarily implied. The union’s executive committee’s
decision, appointing one Beyers to a well-paid position with
wide
powers to supervise and reorganise the union and attend council and
committee meetings, was found to be ultra vires the union’s
constitution (at 149G-151E). That being the case, he could not
lawfully as a stranger be co-opted to attend and participate in
those
meetings; this was implicitly forbidden by the union’s
constitution (151F-153C). In the present case, by contrast,
one has a
very terse constitution. The affairs of Agang could not properly and
fairly be conducted without allowing considerable
latitude in regard
to matters not expressly regulated. The approach of looking at the
rules of a voluntary society ‘broadly
and benevolently and not
in a carping, critical and narrow way’ (see
Garment
Workers’ Union v De Vries & Others
1949
(1) SA 1110
(W) at 1129) has much to commend it in the case of
Agang’s constitution (see also
Theron
& Others v Food and Allied Workers Union & Others
(1997)
18 ILJ 1046 (LC) at 1054A-G;
Shilowa &
Others v Lekota
NO & Others
Case
15650/2010 WCHC para 6;
Matlholwa v
Rammusimahuma
NO
[2007]
ZANWHC 47
paras 20, 30 and 33).
[55]
Although article 13 is formulated with
reference to the Founding Cabinet, it is probably correct that one
should as far as possible
adapt its language to the factual
circumstances which now prevail. However, once it is accepted that
the NEC cannot practically
be expected to conduct a disciplinary
hearing itself, I do not think one is bound to conclude that the
hearing must be conducted
by a member of the NEC or even by a member
of the party. The NEC was divided. There was bound to have been an
objection to the
appointment of any of its members to preside over
the disciplinary hearing. Tshishonga would not have accepted one of
Tlouamma’s
faction as the presiding officer while Tlouamma’s
faction could not reasonably have been expected to nominate one of
Tshishonga’s
faction. Conceivably there was a party member with
the requisite stature and whom both sides would have accepted as
neutral but
that possibility was not canvassed in the papers.
[56]
In the circumstances, and bearing in mind
that the ultimate decision was still reserved to the NEC, I do not
think Harvey’s
appointment was objectionable. On the contrary,
it was a prudent step (cf
Khula
Enterprise Finance Ltd v
Madinana
& Others
(2004)
4 BLLR 366
(LC) at 369F-H, where Kennedy AJ rejected a complaint
about the use of an independent advocate to chair a disciplinary
hearing;
see also
Garten Enterprise
Propeller v Mbatha & Others
[2007]
ZALC 143
paras 17-22). She is a member of the Cape Bar and a former
commissioner of the Commission for Conciliation, Mediation and
Arbitration.
She could be expected to approach her task
objectively and with professional skill. Tshishonga does not allege
that she was not
in principle a suitable choice. Furthermore, he did
not, at or in advance of the hearing, raise an objection to her
appointment.
Had this been done, Tshishonga’s concerns could
have been timeously considered and potentially accommodated.
[57]
Mr Papier argued that, even if Harvey’s
appointment was not in principle impermissible, the NEC had not in
fact resolved to
appoint her. The decision taken on 22 December 2014
was to appoint Makwela as chairperson of the disciplinary committee.
[58]
According to the respondents, Makwela was
not appointed to chair Tshishonga’s disciplinary hearing. He
was appointed to head
the party’s disciplinary committee and in
that capacity became a member of the NEC. Insofar as disciplinary
proceedings against
Tshishonga were concerned, Makwela was appointed
to ‘oversee disciplinary action against’ him. This seems
to be borne
out by the minutes and resolutions.
[59]
In the discharge of this mandate, Makwela,
after consulting Tlouamma and the ninth respondent, appointed Harvey
as the presiding
officer. In my view, this was within the scope of
his delegated function to oversee the disciplinary action against
Tshishonga.
In any event, the NEC at its meeting on 28 February 2015
adopted Harvey’s findings and recommendation and by necessary
implication
ratified her role as the presiding officer. While ex post
facto ratification might have been impermissible if Tshishonga had
declined
to attend the disciplinary hearing because her appointment
was not authorized, Tshishonga did not in fact object to her
appointment.
There can thus be no unfairness in allowing any defect
in her appointment to be made good by ratification.
Mr
Osborne’s appointment
[60]
Mr Papier raised two objections to Mr
Osborne’s appointment as prosecutor. The first is that the
appointment was irregular
as Mr Osborne had been Tshishonga’s
advocate in previous litigation relating to the Agang leadership
battle and had also
represented Tlouamma in other litigation. In the
respondents’ supplementary answering papers they say that,
although Mr Osborne
had previously acted for Tshishonga and Tlouamma
in their dispute with Dr Ramphele, this did not in itself preclude Mr
Osborne
from acting as the prosecutor in the disciplinary
proceedings.
[61]
I do not think that this objection has
merit. Tshishonga has not alleged facts to show that Mr Osborne, when
he represented Tshishonga,
came into possession of confidential
information which has any bearing on the disciplinary charges. An
advocate is not precluded
from acting against a person merely because
such person was previously his client (
LAWSA
2
nd
Ed Vol 14(2) para 136 at p 145).
[62]
Mr Papier’s other submission was that
article 13 of Agang’s constitution only permitted a member in
good standing to
act as prosecutor. Mr Osborne submitted, on the
other hand, that article 13 was in this respect permissive and did
not preclude
Agang from appointing an outside prosecutor.
[63]
Article 13 states that the member may not
be legally represented but may be represented by a member in good
standing. Although article
13 does not explicitly state that Agang
may not appoint a lawyer to prosecute, an interpretation which
allowed Agang to be legally
represented in the prosecution while
disallowing legal representation on behalf of the accused member
would give rise to obvious
unfairness. One should not attribute such
an intention to the drafters of the constitution.
[64]
It does not follow, I think, that in an
appropriate case an accused member could not be permitted legal
representation. In
Hamata & Another
v Chairperson, Peninsular Technikon Internal Disciplinary Committee,
& Others
2002 (5) SA 449
(SCA)
Marais JA observed that, at least in relation to tribunals with
jurisdiction to decide important issues, a rule which absolutely
forbade legal representation might not pass legal muster (para 12).
However, he did not find it necessary to strike down the rule
under
consideration in that case, because he was satisfied that the rule,
while expressly conferring a right to be represented
by a fellow
student or member of staff, did not thereby exclude a discretion on
the part of the disciplinary committee to allow
legal representation.
[65]
Article 13 not only states that the accused
member may be represented by another member in good standing but
states that he or she
may not be legally represented. Although this
may appear to distinguish the present case from
Hamata
,
I do not think it precludes a similar interpretation. The sentence in
question can be construed as meaning that the member does
not have a
right to legal representation but does have a right to be represented
by another member in good standing. The rule considered
in
Hamata
by necessary implication excluded a
right to legal representation but did not preclude the recognition of
a discretion nevertheless
to allow it.
[66]
I thus consider that, although Tshishonga
did not have a right to legal representation, the presiding officer
at his disciplinary
hearing would have had a discretion to allow it.
If that is so, I do not see why the last sentence of article 13,
which does not
in terms exclude legal representation, should be
construed as absolutely prohibiting the appointment of an external
lawyer as the
prosecutor. The charges were serious and were levelled
against a senior officer-bearer. Their proper presentation was a
matter
of importance. Indeed, an in-house prosecutor, such as Makwela
or other NEC appointee, might well have been viewed by Tshishonga
as
biased. Mr Osborne, by contrast, was under a duty to adhere to the
standards of his profession. Furthermore, the presiding officer,
as
an advocate and a former CCMA commissioner, was there to ensure that
Tshishonga was not unfairly prejudiced by prosecutorial
conduct.
[67]
Of course, once an external lawyer was
permitted to present the charges, it is difficult to see how
Tshishonga could fairly have
been denied legal representation had he
wanted it. Makwela’s letter of 31 January 2014 informed
Tshishonga of his right to
be represented by a member in good
standing. At that stage it was envisaged that Makwela himself would
prosecute, and indeed the
letter so stated. In DKVG’s letter of
6 January 2015 Tshishonga was informed that Mr Osborne would
prosecute and was asked
to state by whom he would be represented. The
letter did not in terms state that Tshishonga could not be legally
represented. By
8 January 2015 DKVG was corresponding with
Tshishonga’s attorney, Nkome.
[68]
If Tshishonga had appeared at the hearing
on 12 January 2015, personally or through a lawyer, and stated that
he wanted to be legally
represented, I have little doubt that Harvey
could not fairly have refused it. But I have no reason to think that
she would have
refused. As a fact, Tshishonga did not request
permission to be legally represented. Instead he had his attorney
deliver a sick-note.
The same holds true for the resumed hearing on
21 January 2015.
[69]
If Tshishonga was concerned that there was
an inequality of arms, he should have raised his objection timeously.
The matter could
then have been addressed and resolved. There is no
evidence that Tshishonga was unfairly prejudiced by Mr Osborne’s
appointment
as prosecutor or that the outcome would have been
different if a party member had presented the charges (cf
Garment
Workers’ Union
supra at 1123).
Result
a ‘foregone conclusion’
[70]
Mr Papier’s argument that the outcome
was a foregone conclusion is based on Makwela’s statement in
the letter of 31
December 2014 that the NEC had mandated that
Tshishonga be subjected to disciplinary action ‘and, to the
extent you are found
guilty, expelled from the party’. That
statement, read together with the minutes of the meeting of 22
December 2014, was
said to justify the conclusion that Tlouamma’s
faction had decided to terminate Tshishonga’s membership of the
party
come what may.
[71]
It may well be that Tlouamma’s
faction was convinced that Tshishonga had been guilty of egregious
misconduct such as would
justify termination of his membership. I do
not think, however, that Makwela’s letter should be understood
as conveying that
Tshishonga’s membership would be terminated
regardless of what transpired at the disciplinary hearing.
Importantly, and subsequent
to that letter, Makwela, in consultation
with others, decided to appoint an external advocate to preside at
the hearing. This meant
that the evidence would be investigated and
assessed by an impartial professional, who would also make what she
regarded as an
appropriate recommendation as to sanction. Harvey’s
appointment is inconsistent with the proverbial ‘stitch-up’.
[72]
Nothing adverse to the NEC can be inferred
from the fact that in the event the NEC decided to terminate
Tshishonga’s membership
of the party. That decision was in
accordance with Harvey’s findings and recommendation.
Tshishonga does not suggest that
the recommended expulsion was not
justified by Harvey’s findings on the merits. Furthermore, and
significantly, he has not
said one word in criticism of her findings
on the merits.
Fairness
of disciplinary hearing
[73]
One of Mr Papier’s submissions on the
supposed unfairness of the disciplinary hearing arose from a passage
in Harvey’s
personal note of the hearing of 21 January 2015.
The question was being debated between herself and Mr Osborne whether
the hearing
should proceed in Tshishonga’s absence. It is
difficult to tell which part of the note reflects Mr Osborne’s
submissions
and which part her own thoughts. Although a transcript of
the hearing apparently exists, neither side placed it before me. Be
that
as it may, Harvey’s concluding note, before inviting Mr
Osborne to proceed with his argument on the merits, was: ‘I
rule that the tribunal will proceed because [Tshishonga] has a remedy
(the NEC can rescind its decision)’.
[74]
Mr Papier submitted that since Agang’s
constitution did not provide for an internal appeal or internal
review there was no
possibility of the NEC rescinding a decision to
expel Tshishonga and that Harvey had thus misdirected herself.
[75]
In the decision which she issued on 16
February 2015, Harvey did not touch on the cryptic note I have
quoted. She justified her
decision to proceed on 21 January 2015 on
the basis that Tshishonga had not explained his absence, the emailed
medical note being
unsatisfactory and vague. I am satisfied that she
would not have proceeded with the hearing on 21 January 2015 but for
this view.
Her private note to the effect that the ‘NEC can
rescind its decision’, whatever it may mean, does not point to
an
unfairness in the procedure she followed. I expect she meant no
more than that, if she were to find against Tshishonga on the merits
and recommend a sanction, Tshishonga might nevertheless be able to
persuade the NEC that he had had a good reason not to attend
on 21
January 2015 and that the NEC should thus not accept Harvey’s
findings and recommendation. This is indeed something
Tshishonga
could have tried to do at the NEC’s meeting of 28 February
2015.
[76]
Mr Papier’s other attack on the
fairness of the disciplinary process was a submission that, contrary
to Harvey’s assumption,
Tshishonga did not have knowledge of
the hearing of 21 January 2015. Harvey reached a contrary conclusion
based on the following:
(i) Notice of the resumed date was
emailed to Tshishonga’s email address on 15 January 2015. This
email address had
worked on previous occasions. (ii) Mr
Osborne’s attorney, Mr Hill, received a call from Tshishonga on
16 January 2015
saying that he had received the email but that there
was a problem with its attachment. Mr Hill re-sent the email to
Tshishonga
and to his attorney. (iii) Tshishonga emailed a
medical certificate to Mr Osborne’s attorney on 20 January 2015
which
purported to certify that Tshishonga was medically indisposed
over the period 19-23 January 2015.
[77]
When Tshishonga launched the present
application on 17 April 2015 he was aware that Harvey had conducted
her hearing on 12 and 21
January 2015. He annexed her decision of 16
February 2015 to his founding affidavit. He was thus aware of her
reasons for proceeding
in his absence. He did not allege in his
founding affidavit that he had not received notice of the hearing of
21 January 2015.
He also did not do so in his replying affidavit
filed in the first half of May 2015 (it is undated) or in his
affidavit of 19 May
2015 for urgent relief.
[78]
This
point first saw the light of day in his supplementary founding
affidavit of 9 June 2015.
[2]
Even then, Tshishonga takes the point in an evasive fashion. Although
the heading to this part of his affidavit suggests that it
will show
that he did not have knowledge of the hearing on 21 January 2015, he
does not in terms allege, in the paragraphs which
follow, that he
lacked such knowledge. After referring to the inferences made by
Harvey, he submits that Harvey ‘impermissibly
and arbitrarily
determined that I had intentionally absented myself from the 12 and
21 January 2015 disciplinary hearings’
whereas he had produced
medical certificates to validate his absence and was in fact
indisposed to attend those hearings. He does
not deal with the
material from which Harvey inferred that he had knowledge of the
date.
[79]
Mr Papier’s submissions suffer from
essentially the same defects. This part of his heads of argument has
the same heading
as Tshishonga used in his replying affidavit and
then paraphrases the allegations I have just summarised. It is thus
unclear whether
there is a positive assertion that Tshishonga did not
know that the hearing was to proceed on 21 January 2015 or whether
the complaint
is only that the hearing should have been adjourned
because of the medical certificate.
[80]
In my view Harvey was entitled to conclude
that Tshishonga had knowledge of the hearing on 21 January 2015. Even
if there were a
genuine factual dispute on that score, it could not
be resolved on the papers in Tshishonga’s favour.
[81]
As to the medical certificates, both were
unsatisfactory for the reasons given by Harvey. It is not in dispute
that Tshishonga was
present and apparently well at the hearing before
Wright J on 11 January 2015, the date on which he was supposedly
examined and
found to be sick. The medical certificate (which is not
in the record but is summarised in Harvey’s decision) was
signed
by an unidentified doctor on a form which listed the name of
14 general practitioners. The certificate stated that Tshishonga was
being treated ‘for medical reasons’. In any event,
insofar as 12 January 2015 is concerned, Tshishonga’s rights
were preserved by the procedure Harvey followed. Regarding 21 January
2015, Tshishonga should have been aware that a second medical
certificate would be viewed with scepticism. The second certificate
was again manifestly inadequate. There is no evidence that
it was in
truth signed by a doctor. If it was, it is not apparent on what basis
an examination of Tshishonga on 16 January 2015
could lead to the
conclusion that he was medically indisposed over the period 19-23
January 2015 and would only be fit for work
on 26 January 2015. The
note does not assert the doctor’s own opinion of such a medical
indisposition. Presumably some part
of the pre-printed words,
‘According to my knowledge/as I was informed he/she was unfit
for work’, should be deleted
when the certificate is completed
but that was not done in this case. The doctor might thus simply have
been going on Tshishonga’s
say-so. In the part of the form for
insertion of the ‘nature of the illness/operations/injury’
appear the meaningless
words ‘medical condition’.
[82]
Tshishonga himself has provided no evidence
as to the nature of his medical indisposition on either the first or
second occasion.
Furthermore, and despite knowing the gravity of the
charges against him, he followed the contemptuous course of emailing
the second
certificate to DKVG without further or formal request for
a postponement. In these circumstances, and as in
Old
Mutual Life Assurance Co SA Ltd v Gumbi
2007
(5) SA 552
(SCA), it cannot be said that Harvey acted in a
procedurally unfair manner by continuing with the hearing in
Tshishonga’s
absence.
Conclusion
[83]
it follows that the application must fail.
In regard to costs, it was Tshishonga’s non-compliance with the
order of 15 May
2015 that resulted in the postponement of 18 June
2015. In his late supplementary affidavit of 5 June 2015 Tshishonga
said that
during the period 25-31 May 2015 there had been ‘a
family emergency and death in my family’ which had prevented
him
from applying his mind and consulting with his legal
representatives, something he was only able to do on 2 June 2015.
Even if
one overlooks the absence of particularity, the fact remains
that the non-compliance was attributable to him, not the respondents
(cf
Grobbelaar v Snyman
1975
(1) SA 568
(O)). On this basis alone he should pay the wasted costs.
However, at best for him the costs of the postponement would be costs
in the cause, in which case he would in any event have to pay them.
[84]
I thus make the following order: The
application for the relief in Part B of the notice of motion is
dismissed with costs, such
costs to include those arising from the
postponement of 17 June 2015.
ROGERS
J
APPEARANCES
For
Applicant Mr GR Papier
Instructed
by Venfolo Attorneys
6th
Floor, 36 on Long Street
36
Long Street
Cape
Town
For
2nd – 9th Respondents
Mr
M Osborne
Instructed
by
De
Klerk & van Gend
3rd
Floor, Absa Bank Building
132
Adderley Street
Cape
Town
[1]
The
typed judgment says 'grounds' but that is a typographical error.
[2]
Paras
19-26 record 304-306.