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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NUMBER: M85/2017

In the matter between:-

MR MOTSEOTHATA JOSEPH MABE                                                      1^st Applicant

MS ROSY KENEILWE KGOSIMORE                                                      2^nd Applicant

MR MIKA BENNET MOETI                                                                    3^rd Applicant

MR MOEMEDI THEOPHILUS BAIJANG                                                 4^th Applicant

MS DIPUO AGNES ITUMELENG                                                            5^th Applicant

MS GASEREDIWE JULIA MMABE                                                         6^th Applicant

MS KEDUMETSE RUTH TYALIMPI                                                           7^th Applicant

AND

THE MUNICIPAL MANAGER: GREATER TAUNG LOCAL

MUNICIPALITY                                                                                  1^st Respondent

THE MUNICIPAL COUNCIL: GREATER TAUNG LOCAL

MUNICIPALITY                                                                                 2^nd Respondent

THE AFRICAN NATIONAL CONGRESS                                            3^rd Respondent

THE INDEPENDENT ELECTORAL COMMISSION OF

SOUTH AFRICA                                                                                 4^th Respondent

 

CIVIL MATTER

JUDGMENT

KGOELE J

 

A. INTRODUCTION

[1] The applicants launched this review application seeking the following orders:-

“1. To review and set aside any termination of the first to the seventh applicants’ membership of the third respondent and for an order that the applicants be reinstated as full members of the third respondent;

2.  Interdicting the third respondent from terminating the first to seventh applicants’ memberships of the third respondents, without complying with the Constitution of the third respondent as adopted at the 53^rd National Conference held in Mangaung in 2012, with specific reference to Rule 25 read with Appendix 3 of the Constitution of the third respondent;

3. Reviewing and setting aside any decision by the first and/or second respondent to terminate the first to seventh applicants’ membership of Greater Taung Local Municipality with effect from 29 June 2016 to 03 August 2016;

4. To compel the first and second respondent to pay the first to seventh applicants’ all salaries, allowances and benefits to which they were entitled to immediately before the termination of their membership of the council of the Greater Taung Local Municipality and as was determined by and proclaimed in the Government Gazette Number 39548 on 21 December 2015, alternatively as was paid to all councillors in similar positions held as the applicants whose memberships in the Greater Taung Local Municipal Council was not terminated before 03 August 2016.” 

[2] The first, second and third respondents opposed the relief sought.

[3] The applicants were represented by Advocate Van Gass, the first and second respondents by Advocate Chwaro, whilst the third respondent was represented by Advocate Mokhare SC who was with Advocate Motsepe.  In this judgment, I will refer to all the three respondents together as “respondents” including the submissions made by their respective Counsel simply because their defences and submissions supporting their opposition are similar and or support one another.

 

B. BACKGROUND FACTS

[4] The applicants were members of the third respondent (ANC) during the 2011 Local Government Elections (2011 LGE).  They contested as candidate Councillors in their respective wards under the name of the third respondent and ultimately made it as Councillors.  Their five year term of office as Councillors started in May 2011 and ended on 03 August 2016.

[5] The allegations from the respondents’ side which remain uncontested because the applicants did not file a replying affidavit and elected to continue with the matter without filing such, is to the effect that as the applicants’ five year term was coming to an end in 2016, they wanted to serve a second term as Councillors.  This meant that they had to again contest in their respective wards as candidate Councillors.  The internal process of the third respondent as we are told is that they had to first win their candidacy in the ANC.  According to the third respondent they had to be nominated by branch general meetings of the ANC for them to make it as Councillor Candidates.

[6] The allegation continues to the effect that as a result of the contest associated with this process of the third respondent, they failed to make it as Councillor Candidates.  This led the applicants to join the other parties which were contesting against the third respondent in the past 2016 LGE.  To be precise, on or about May 2016, the first and third applicants joined the National Freedom Party (NFP) and the remaining five applicants joined the Forum for Service Delivery (FSD) respectively while they were still Councillors of the ANC.

[7] The third respondent attached a copy of the list published by the Independent Electoral Commission (IEC) showing the names of the five applicants as annexure “GM1” to their answering affidavit.  The list reflects the full names, identity numbers, name of the Municipality and name of the party they are representing.

[8] Upon learning of their membership of the other parties, the Provincial Secretary of the third respondent instructed the first respondent to terminate their Councillorship as representatives of the third respondent.

[9] On or about 13 June 2016, the first respondent, (the Municipal Manager) received correspondence from the Provincial Secretary of the ANC informing the Municipality that the applicants were no longer members of the ANC and thus their representation of the third respondent in the Council as such should be terminated.

[10] The Municipal Manager, acting in accordance with the correspondence from the ANC and in line with the provisions of section 27(c) and (f)(i) of the Local Government: Municipal Structures Act 117 of 1998, (Municipal Structures Act) communicated the decision to the applicants through correspondence dated 1 July 2016.

[11] The Municipal Manager informed the fourth respondent, the IEC, about the vacancy created by the cessation of the membership of the ANC by the applicants.  This was done, according to the Municipal Manager, as the party list submitted by the ANC was depleted and the IEC was supposed to have received a supplementary party list from the ANC in accordance with Item 17(3)(a)(ii) of  Schedule 1 to the Municipal Structures Act, in order to fill the vacancies.

[12] The applicants, except writing letters to the various structures of the ANC to intervene, did not take any steps following such a decision and only approached this Court through the launching of this application on the 8 March 2017.

C. SUBMISSIONS

[13] At the beginning of the submissions, the applicants’ Counsel indicated upon enquiry by this Court that the review application is in terms of the Promotion of Administrative Justice Act 3 of 2000  (PAJA).  He submitted that the termination letters dated 13^th of June 2016 are unlawful and irrational and the termination must be set aside, so that the applicants can be formally charged and a disciplinary hearing to be indicted.

[14] In developing this argument he argued that the Constitution of the third respondent does not provide for the automatic termination of any members’ membership.  He maintains that because the respondents indicated in their opposing affidavit that the applicants allegedly contravened either rules 25.17.12 or 25.17.13 of the Constitution of the third respondent by;-

“(a)   Joining or supporting a political organisation or party other then an organisation in alliance with it;

(b) Standing in an election for local, provincial or national government or acting as the election agent or canvasser or any political party and in opposition to a candidate duly endorsed by the NEC or PEC”

the third respondent should have conducted disciplinary proceedings as they are accused of misconduct.  Owing to the fact that the third respondent did not comply with its own disciplinary rules, it is then clear that there was no basis for the letters of the 13^th June 2016 to allege that the membership of the applicants were terminated and therefore the action of the third respondent was procedurally unfair.

[15] The other leg upon which the applicants rely as their ground of review is that the first respondent (Municipal Manager) failed in its duty to ensure that the communication received by it on the 13^th of June 2016 was sanctioned by law before she gave effect to the letters of terminating the applicants’ membership in the second respondent (Municipal Council).  It is the applicants Counsel’s submission that there is no doubt that the first respondent simply rubber-stamped the letters received.  As such, the termination of the applicants’ deployment as Councilors at the Greater Taung Local Municipality was unlawful and irrational and must be set aside too.

[16] He relied heavily on the judgment in this Division by Mogoeng JP (as he then was) in the case of Mogashoa v African National Congress and Others Case No. (138/04) [2006] ZANWHC 35 delivered on the 26 May 2016 wherein the Court held that the first respondent has the obligation to satisfy itself before implementing the decision as to whether what the party says to that Local Government is correct or not and whether it is sanctioned by law.  This, according to him is borne out from paragraph 48 of this judgment where it says:-

“When a political party writes a letter to a Municipality to the effect that its member who is a Councilor or Mayor has ceased to be a member, a responsible municipality is not to rubber-stamp what the party says.  It has to satisfy itself that what the party says to that local government is correct and is sanctioned by the law as set out in the Municipal Act.  Only thereafter, may it give effect to the changes desired by the party.  Failure to so satisfy itself would be a serious dereliction of duty.  Mr du Plessis, and by extension council, knew this and made an unsatisfactory and belated attempt to satisfy himself that the time was ripe for the plaintiff to be relieved of his position, after the plaintiff had effectively been removed from his position and replaced by Mr Khonkhobe”. [His emphasis]

[17] He lastly argued that given the fact that there was Local Government elections on the 3^rd of August 2016, the practical effect is that the applicants should have remained as Councillors until the date on which the new members of the Council were declared elected.  The applicants were therefore entitled to their salaries and allowances as prayed in the Notice of Motion.

 

Application out of time

[18] The first defence relied upon by the respondents for their opposition is to the effect that the application by the applicants is out of time and the applicants did not apply for condonation of the late filing of the application.  The contention of the respondents is to the effect that the applicants’ time to launch this proceedings expired on the 31 December 2016 because they say they received their letters on the 1^st July 2016.  The respondents further contend that it cannot be true that the applicants received the reasons on the 3^rd November 2016 as they alleged, because they had already by then received a letter from the Secretary of the Local Branch dated 2 August 2016, wherein the reasons were contained and which they attached to their papers.  In the absence of any application for condonation, it was argued, the application falls to be dismissed on this ground alone.

[19] In reply to this contention, Counsel representing the applicants indicated that condonation is not necessary in their application as they brought the application within the 180 days stipulated by PAJA because the applicant only received the letter containing the reasons for termination on the 3 November 2016.  He relied on section 5 and 7 of PAJA which provides that the application must be brought within 180 days of the applicant becoming aware of the action and the reasons.  He furthermore indicated that they had written several times to the third respondent to be provided with reasons and the third respondent did not reply to them and only received the reasons on the 3 November 2016 from the documents received from IEC.

[20] A thorough perusal of the pleadings reveals, as correctly submitted by both Counsel of the respondents, that there is not even a single shred of document that indicates that the applicants requested reasons from any of the respondents.  All the correspondences they attached to their pleadings deals with either a request for access to information in terms of PAJA and furthermore, some requests to the respondents to intervene in this matter.  The communication they are referring to of the 3 November 2016 which they claimed they received the reasons with it, is a communication from IEC and still, is a response to their request for access to information when they were asking about the filling of the vacancies with the IEC and the declaration of vacancies by the Municipal Manager.  Of importance is the fact that this letter, which they claim to have received from the IEC only on the 3^rd November 2016, is the very same letter the Secretary of their Local Branch wrote to them and which they annexed to their papers as “Annexure A9” and is dated 2 August 2016.

[21] Section 5(1) of PAJA provides that a party who has not been given reasons for the action, may within 90 days after the date on which that person became aware of the action request that he be furnished with written reasons for the action.  In terms of Section 5(2), the authority that has to furnish reasons has 90 days to respond.  It is clear from the above that the applicants never requested reasons from the respondents.  It is common cause that the termination letters from the first respondent were received by the applicants on or about 29 June 2016 or 1^st of July 2016.  This is also confirmed by a letter of demand from their legal representative.  Therefore, the 180 days run from this day because, one may simply accept the fact that they did not require any reasons to launch this application, hence they did not request same from the respondents, probably because and as the respondents’ legal Counsel submitted, they had them in their possession already.

[22] Their letter of demand is dated 14 September 2016.  It therefore becomes clear that by that time they were already having a legal representative who ought to have advised them about the requesting of reasons if they did not have them.  The applicants claimed to only have received a letter containing reasons from the third respondent on 3 November 2016 but through the IEC.   Although they did not say this is the letter which they claimed contained the reasons in much precision in their heads and pleadings, their Counsel accepted during the submissions that this letter contained the reasons.   Simple logic dictates that if one of them had already received this letter which was dated 2 August 2016 when the legal representative wrote the 14^th of September 2016 letter, this means that it cannot be correct that they only received the letter which they admit contained reasons on the 3 October 2016 from the IEC after a formal request for access to record which according to them was lodged with the IEC on 31^st October 2016.  In addition, their version if one applies the Plascon Evans Rule, is far-fetched and wholly untenable for the reasons that follow in the next paragraph.

[23] In my view, the submission that they only received the reasons on 3 November 2016 cannot be accepted firstly because, as already stated above, there is nothing in their papers that supports the fact that they requested reasons from the third respondent and they were only given to them on 3 November 2016.  Secondly, even if one can accept the fact that the letter they attached dated 2 August 2016 in their letter of demand contains reasons, then even if one starts calculating the dies sometime after this date, for argument sake, around the 15^th of August, then the 180 days expired during the second week of February 2017 because this letter came from the Local Branch Secretary.   Their Notice of Motion is dated 8/03/2017 which is a date out of the required time (180 days).

[24] What aggravates the problem which the applicants face is that they did not file a replying affidavit nor did they also file a condonation application.  They elected to continue with the matter and relied only on the founding affidavit and especially paragraph 4.4 thereof which talks about the letter of the 3 November 2016.   But as I had indicated before, this was a request of information to IEC and not to the first or third respondents.  It is very important that when you require reasons if you do not have same that you direct your request to the relevant authority.  This is crucial because, if the relevant authority does not adhere to this request, then Section 3 of PAJA kicks in, which provides that if an administrator fails to furnish adequate reasons, it is presumed that the administrative action was taken without good reason.

[25] As a litigant you are also entitled to rely on this presumption for the purpose of the review which if not rebutted by the relevant authority, the Court can set aside the decision or action.  As proof of the fact that the applicants never requested the reasons, they are not even relying on this presumption as a ground for review.  Their legal representative instead embarked upon requesting access to information from the IEC, which request if furnished could not have assisted them in the condonation application because it was not a request for reasons.  This wrong advice continued when one considers the manner in which this application was conducted also as the applicants were seemingly advised not to file a replying affidavit, which fact is prejudicial to their case.  What makes matters worse is that the applicants, again through the advice of their legal team, did not file any condonation application for the review application.  Absent an application for condonation there is therefore no competent review before Court.  This application could be dismissed on this ground alone, but I decided to also consider the other defences raised by the respondents in the interest of justice.

 

Decision of the third respondent (ANC)

[26] The other defence raised by the respondents in opposition of the review is that the decision by the third respondent, which is a voluntary organization, is not subject to review in terms of PAJA.  Furthermore, their Counsel contended that the applicants failed to mention allegation as to where the decision of the ANC is located within PAJA.

[27] The applicants’ Counsel is noticeably silent on this aspect.

[28] The respondents relied heavily on the following cases to support their contention:-

· Marais v Democratic Alliance [2002] JOL 924` (C) delivered on 21/11/2001

· Jemayne Alvira Andrews v The Democratic Alliance and Others Cases no. 17633/2012 (C) delivered on the 13 November 2012.

[29] In the case of Marais v Democratic Alliance it was held:-

“[48] Apart from this aspect of interpretation, the question must be considered whether or not the decisions of the NMC can be regarded as constituting administrative action. It is clear from the definition of "administrative action", as it appears in section 1 of PAJA, that a decision of a voluntary organisation, such as the respondent, qualifies as such only under restricted circumstances. The decision must, in the first place, constitute the exercise of public power or the performance of a public function and, in the second place, be exercised in terms of an empowering provision, in this case clause 7.6 of its constitution.

[49] In order to establish whether or not any particular conduct constitutes "administrative action", the nature, source and subject-matter of such conduct must be carefully considered. Consideration must likewise be given to whether or not it involves a public duty and to what extent, if at all, it is related to the implementation of legislation. See in this regard President of the Republic of South Africa and Others v South African Rugby Football Union and Others  2000 (1) SA 1 (CC) at paragraphs 136, 141 and 143; Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte President of the Republic of South Africa and Others [2000] ZACC 1; 2000 (2) SA 674 (CC) at paragraphs 20, 33, 38-40, 41 and 45; Cape Metropolitan  Council  v  Metro Inspection  Services  Western  Cape CC and Others  2001 (10) BCLR 1026 (SCA).

[50] The conduct and actions of political parties have, in recent times, been subjected to critical public scrutiny. The question has arisen, in this regard, whether or not their conduct may be regarded as "administrative action", hence rendering them subject to the rules of administrative justice. In the recent case of Bushbuck Ridge Border Committee v Government of Northern Province  1999 (2) BCLR 193 (T) at 200B it was held that political parties are not subject to the rules of administrative justice. A different approach is propounded, however, in a comprehensive article on the subject by Lisa Thornton "The Constitutional Right to Just Administrative Action – Are Political Parties Bound?" in SAJHR 15 (1999) 351-371. The learned author is of the view that, in certain circumstances, political parties are indeed bound by the right to just administrative action. More particularly is this the case when they function as organs of state or when the Constitution applies to them as juristic persons. A comparable approach is that of Iain Currie and Jonathan Klaaren: The Promotion of Administrative Justice Act Benchbook (2001) 2.27 (at p 71):

It is submitted, following the Pharmaceutical Manufacturers decision, that 'administrative action' for purposes of the constitutional right does not, as a general rule, include the conduct of private, non-statutory bodies that have been subjected at common law to administrative law principles, such as voluntary associations exercising contractual disciplinary powers. It will, however, apply to those persons where those persons are exercising public power or performing public functions:

[51] A decision compelling the mayor of a large city to relinquish his mayoral office will certainly arouse wide-ranging public interest, particularly if it is initiated by a "political judgment" of the leader of the political party that the mayor represents. The perception cannot be faulted that a mayor occupies a public office that requires of him or her to protect the interests of the public, as represented by the electorate and the community at large. He or she would inevitably feature prominently in the public eye. It does not follow, however, that a decision to remove him or her from office constitutes the exercise of public power or the performance of a public function in terms of an empowering provision. Every case must be considered in accordance with the relevant facts and circumstances pertaining thereto.

AND

[58] It is difficult to escape the conclusion, suggested by the applicant, that the NMC had devised a scheme designed to yield a pre-determined outcome. My general impression is that it was a somewhat transparent political stratagem to remove the applicant as Mayor without first having to resort to disciplinary proceedings which would, inevitably, have had to precede a motion to do so. Such conduct can never, in my view, qualify as administrative action. The decisions in question cannot be regarded as having been taken in the exercise of a public power or in the performance of a public function, however widespread the public interest therein and the public reaction thereto might have been. By the same token the decisions were certainly not "of an administrative nature", as required by the definition of "decision" in section 1 of PAJA. They were patently political decisions instigated and initiated by the "political judgment" of the respondent's leader. In my view, therefore, the provisions of section 7(2)(a) of PAJA do not apply in the present matter.” [my Emphasis added]

[30] In my view, paragraph 58 quoted above is apposite in the circumstances of our matter and sums up the reason why I fully agree with the submission of the respondents that the decision by the third respondent is not an administrative decision.

Constitution of the third respondent (ANC)

[31] The allegation by the respondents is that on or about May 2016 the applicants, whilst they were still members and Councilors of the ANC, joined other political parties.  In particular, the first and third applicants joined the National Freedom Party (NFP) and the remaining five applicants joined the Forum for Service Delivery (FSD) respectively.  The respondents also attached a copy of the list published by the IEC showing the names as such.

[32] The respondents alleged that by joining other parties which are in contest with the ANC and standing as their candidates against ANC candidates, applicants effectively expelled themselves from the ANC.  The applicants have by their conduct waived their ANC membership, thus disassociating themselves with the ANC.  They effectively ceased their ANC membership, so say the respondents.

[33] I may hasten to say that these allegations were not disputed by the applicants and their Legal Counsel indicated during the submissions that there was no need to file a replying affidavit as they have accepted these allegations.  He insisted that even if this is the case, the third respondent was supposed to have conducted a disciplinary inquiry because the allegations contained in the letter from it of contravening party rules amounts to acts of misconduct in terms of the Constitution of the ANC.  According to him there is no automatic termination of membership in the ANC Constitution.  They were still members of the ANC when their membership was terminated.  He added that nowhere does the Constitution of the ANC provide for the waiver of membership.  He maintained lastly that the decision is unlawful, procedurally unfair in terms of the Constitution of the ANC.

[34] Clause 25.17 of the Constitution of the ANC provides:-

“The following conduct by a member, office bearer, or public representation shall constitute misconduct in respect of which disciplinary proceedings may be invoked and instituted against him or her.  [My Emphasis added]

It is clear that the clause is not peremptory.  The ANC thus have a discretion according to this clause to institute or not institute disciplinary hearing.  Clauses 25.17.12 and 25.17.13 which the applicants are alleged to have contravened falls under the misconduct described under clause 25.17.  As it will become clearer later in this judgment, the facts of our matter reveals that it was going to be a futile exercise to do that.

[35] Although the applicants do not dispute the allegation of joining other parties as alleged, they nevertheless did not disclose this important fact in their founding affidavit.  They did not even disclose the fact that they contested the Local Government election of the 3^rd August 2016 as candidates of these other respective parties.  According to the respondents, as soon as the applicants were notified about the termination of their membership they ceased all the activities as Councilors from 1^st July 2016.  The applicants neither launched an urgent application for their status quo to be restored nor did they approach the Court on appropriate relief. As correctly indicated by the respondents, I fully agree that they waited to see how they would perform in the Local Government elections first.  What compounds the case of the applicants is that, not only does the allegation of them joining other political parties remain uncontested, but up to today the applicants have not even shown or put any evidence forward that they have since resigned from those respective political parties.  According to the respondents, only the fifth applicant succeeded to become a Councilor in the new Council representing the party he chose, the others did not make it.  But of importance is that all of these factual averments were not disputed or even explored in this application by the applicants despite the fact that the allegations were peculiar within their knowledge even before they launched the application.

[36] I fully agree with the submissions that the ANC only exercises disciplinary jurisdiction over its members.  The applicants, by joining other rival political parties and even standby for their election in those political parties, clearly ceased to be members of the ANC voluntarily and on their own free will.  The ANC can and could only exercise disciplinary jurisdiction over its members.  The applicants being members of the rival parties at the time when the communication about their termination of membership were sent to them, could not be subjected to disciplinary process by the ANC, and the ANC’s right to discipline them ceased when they joined these political parties.

[37] There can be no clearer and more unequivocal statement by conduct of a wish to no longer have anything to do with your own party than by joining other political parties.  In my view, joining other political parties amount to resignation from the party in which you belong, otherwise an absurd situation would arise where persons belong to two parties at the same time.  In addition, there was no need for the ANC to conduct a disciplinary hearing as it was going to be a futile exercise when the applicants were longer capable of being disciplined. The question of automatic dismissal does not even come to the picture in this matter as the applicants by their conduct indicated that they no longer want to be associated with the ANC.  They took an active decision.  In my view, as correctly submitted by the respondents’ Counsel, they waived their ANC membership and thus, effectively ceased their ANC membership.  This also means that they waived their right to be disciplined in terms of the Constitution of the ANC.  To put it in other words, they are in fact outside the discipline of the ANC party.

 

Decision of the Municipal Manager

[38] In as far as the ground relating to the rationality of the decision of the first respondent is concerned which the applicants   raised  as a ground of review, the respondent’s Counsel submitted that the applicants were removed as Councilors of the Greater Taung Local Municipality by operation of law.  According to the respondents’ Counsel, a proper reading of the provision of section 27(c) and (f)(i) of the Structures Act quoted above, makes it abundantly clear that once a Councillor who occupies his/her position by virtue of being on a political party list ceases to be a member of such a political party, then he/she ceases to be its representative in Council.  There is therefore no decision that is taken to effectuate the provisions of Section 27 of the Structures Act.

[39] The respondents’ Counsel expanded on this proposition by submitting that it follows that the first respondent was not required to enquire into the circumstances leading to the cessation of political party membership by the applicants after having been so informed by the Provincial Secretary as the applicants argued.  Once the applicants ceased to become members of the political party on whose list they became Councilors, then the provisions of the Structures Act relating to the removal of a Councilor come into effect.  The law is applied automatically and there was no need to enquire into the circumstances leading to the cessation of membership.

[40] In terms of item 10(1) of Schedule 1, [a] list of candidates may be submitted only by a party’.  Section 27(c) of the Municipal Structures Act then states that:-

“27. Vacation of office

A Councillor vacates office during a term of office if that Councillor:-

…….

(c) was elected from a party list referred to in Schedule 1 or 2 and ceases to be a member of the relevant party…”  [my emphasis added]

[41] In view of the provisions of this Act, if a person is not a member of the party from whose party list he or she was elected, that person can no longer be a Councillor.  Therefore the first respondent was just merely putting into effect the provisions of the Municipal Structures Act, and no administrative decision was taken by her.

[42] The submissions by the respondents’ Counsel in this respect are in my view sound.  The above legal position was confirmed in National Peoples Party v Municipal Manager: Witzenberg Municipality and Others, unreported Case No. 24615/2015 of the Western Cape High Court Division, delivered on the 24 March 2016 where the Court, per Boqwana J held as follows at paragraph 37 of the judgment:-

“In view of the Act, if a person is not a member of the party from whose party list he or she was elected, that person can no longer be a Councilor.  An interpretation contrary to that would not be in conformity with the objects or the Act and its particular provisions”

[43] I furthermore fully agree with the proposition that the case of Magashoa relied upon by the applicants is distinguishable on the facts to the present case in that the applicant in that case, Mogashoa, never ceased to be a member of the ANC at the relevant time but was simply removed from his position as Mayor by his political party and there was no automatic application of the provisions of the law. The applicants cannot seek refuge in the said case.

 

No grounds by applicant based on PAJA

[44] The last defence relied upon by the respondents in their opposition was to the effect that the applicants’ application does not specify whether or not the review is based on PAJA or common law.  Furthermore that if it is based on PAJA, which specific section of PAJA they rely on.  In addition, the arguments continued that the application does not disclose a cause of action.  This is so because the applicants’ application does not indicate which statutory provisions their grounds of the review application are predicated on.  A failure to locate a review application as well as review grounds within a particular statutory framework is fatal to the application and to the relief sought.

[45] Although as I indicated earlier the applicants did not indicate in their papers that they rely on PAJA, their Counsel indicated that it was based on PAJA during submissions.  Despite the fact that they did not disclose their cause of action and the grounds upon which they rely on sufficiently enough or in so much precision in their papers before me,  I am prepared to assume, in their favour that, for the purposes of this matter, its failure is not fatal to its cause of action.  However the law is clear, it is always desirable to do that.

 

The Requirements of an Interdict

[46] The submission of the respondents in response to the arguments that the applicants has met the requirements for the interdict to be granted as prayed for in prayer 2 of their notice of motion is that this prayer is legally incompetent in that the conduct complained of had already taken place.  The horse has bolted.  I fully agree with their submission that it is trite that the Court will not grant an interdict restraining an act already committed for the object of interdict is the protection of an existing right.  It is not a remedy for the past invasion of rights.  Interdicts are concerned with the future and not the past.  Their argument that the relief sought is moot is according to my view sound.

[47] The respondents further contend that besides the fact that the relief sought is moot, the requirements for final interdict were not met, let alone pleaded.  They argue that for a final interdict to be granted the applicants must demonstrate (a) clear right (b) irreparable harm, (c) absence of alternative remedy.  All these three requirements must be proven.

[48] I fully agree with the submission by the respondents’ Counsel that by joining rival political parties, the applicants expelled themselves from the ANC.  Their expulsion through their conduct means that their membership as Councillors ceased automatically as contemplated in Section 27 of the Local Government Municipal Structures Act. The applicants therefore failed to establish this requirement as they are no longer entitled to the rights enshrined in the Constitution of the ANC.

[49] In as far as the requirement relating to the injury committed or apprehended is concerned, the applicants failed dismally.  The analysis made in paragraph 46 above applies equally here.  Their founding affidavit confirms in so many words that their membership of the third respondents and Counsellorship of the second respondent has terminated on or about 1^st July 2016.  The perceived injury has already occurred and is not continuing.

[50] The applicants had not established the final requirements that relates to the absence of alternative remedy as well. In fact, they do have an alternative remedy at their disposal.  They can issue summons and claim damages.  A letter dated 14^th September 2016 written by the applicants’ attorneys is confirmation of the applicants’ awareness of alternative remedies at their disposal.

 

Payment of Damages

[51] Besides the fact that a damages claim of the nature in the applicants prayer 4 cannot be sustained on Motion proceedings, the need to consider this prayer has fallen away by virtue of the conclusion that I have already made above.

D. ORDER

[52] Consequently the following order is made:-

52.1  The application is hereby dismissed;

52.2  The applicants are ordered to pay the costs of the first, second and third respondents jointly and severally, the one paying the other to be absolved, such costs to include costs consequent upon the employment of two Counsel where applicable.

 

 

________________

A M KGOELE

JUDGE OF THE HIGH COURT

 

 

APPEARANCES

DATE OF HEARING: 12 October 2017

DATE OF JUDGMENT: 23 November 2017.

COUNSEL FOR APPLICANTS : Adv. L Van Gass

COUNSEL FOR 1^ST & 2^ND Respondents : Adv. O.C. Chwaro

COUNSEL FOR 3rd Respondent : Adv. W Mokhari SC

With him Adv. N C Motsepe

 

Attorneys for the Applicant : Moolman & Pienaar INC C/O Van Rooyen Tlhapi Wessels Inc. 9 Proctor Avenue Mahikeng 2745

Attorneys for 1^st & 2^nd Respondents : Kgomo Attorneys No. 56 Shippard Street MAHIKENG

Attorneys for the 3^rd Respondent: Maleshane Rasikhale Attorneys 3590 Wildevy Street Extension 34, Danville MAHIKENG

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