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FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT

ECJ:

PARTIES: SAMUEL DUNCAN MPEMBA

NOMAZOTHSO KOPOLO

And

LUKHANJI MUNICIPALITY AND 3 OTHERS

• Registrar: 902/09

• Magistrate:

• High Court: EASTERN CAPE HIGH COURT, GRAHAMSTOWN

DATE HEARD: 30/04/09

DATE DELIVERED: 08/05/09

JUDGE(S): JONES J

LEGAL REPRESENTATIVES –

Appearances:

1. for the Applicant(s): ADV: S.H. Cole

2. for the Respondent(s): ADV: T.J.M. Paterson SC

Instructing attorneys:

• for the Applicant(s): NETTELTONS ATTORNEYS

• for the Respondent(s): WHEELDON RUSHMERE & COLE

CASE INFORMATION -

1. Nature of proceedings : APPLICATION – URGENT

Not reportable

THE HIGH COURT OF SOUTH AFRICA

In the Eastern Cape High Court

Grahamstown Case No 902/2009

In the matter between

SAMUEL DUNCAN MPEMBA 1^st Applicant

NOMAZOTHSO KOPOLO 2^nd Applicant

and

LUKHANJI MUNICIPALITY and 3 others Respondents

SUMMARY: Application as a matter of urgency suspending the applicants’ expulsion from a political party and its effect on their appointment as councillors of the municipal council pending an application to review and set aside the expulsion – the expulsion was done without a hearing as required by the party’s constitution, on the ground that the applicants had disqualified themselves as members of the party by joining a rival political party – the requirements for an interim interdict pending a review were established as against the political party responsible for the expulsion but not as against the municipality or its officials – application withdrawn at the last minute by reason of the last minute rescission of the expulsion – applicants liable to pay the costs of the municipality and the municipal manager.

JUDGMENT

JONES J:

[1] This is an urgent application by two members of the political party known as the African National Congress (the ‘ANC’, the Chris Hani region of which is cited as the 3^rd respondent) for an interim interdict pending an application to review and set aside a decision by the party to expel them.

[2] The applicants were members of the ANC and were duly elected and serving representatives of the ANC as municipal councillors on the Lukhanji Municipality, which is the 1^st respondent. In a letter dated 23 January 2009 the ANC advised the 1^st applicant that he had been summarily suspended from the ANC, and that the disciplinary process would unfold in due course. He was however thereafter expelled from the party without charges being served on him and without a hearing held in his presence. So was the 2^nd applicant. They were both formally advised of their expulsion by letters dated 16 February 2009. They both noted appeals, which have not yet been heard. On 25 February 2009 the Lukhanji Municipality’s municipal manager (the 2^nd respondent) addressed letters to them stating that he had been advised by the 3^rd respondent that they had been expelled from the ANC. The letter stated further that this meant that in terms of the Local Government: Municipal Structures Act No 58 of 1999 they would forfeit their seats on the municipal council on the date on which a vacancy was declared by the Independent Electoral Commission (the IEC, which is the 4^th respondent). On 23 March 2009 the 2^nd respondent wrote to the 4^th respondent advising it that the ANC had reported to him that it had expelled the applicants, and he requested the IEC to declare two vacancies on the municipal council. On 8 April 2009 the 2^nd respondent advised the 1^st applicant that his seat on the council had become vacant as of 1 April 2009, that his name would be removed as councillor with immediate effect, and that a by-election would be arranged for 6 May 2009.

[3] Both applicants allege that their expulsion from the ANC and the consequent termination of their term of office as councillors was in violation of their right to fair and just administration action and that they intend to bring proceedings for review. The purpose of this application is to undo the consequences of the expulsion pending the application for review. The 1^st and 2^nd respondents have opposed. The 4^th respondent abides the decision of the court. The 3^rd respondent has filed no papers, and has not appeared before me by counsel.

[4] When the matter was called I was advised by Mr Cole for the applicants of a last minute development. The ANC has through its attorneys advised the applicants that their expulsion had been withdrawn. He handed up confirmatory letters to that effect which were addressed by the regional secretary of the ANC to the applicants. He also handed up the covering letter from the ANC’s attorney which contained the following concluding paragraph: ‘We confirm that it shall not be necessary for us to attend court on 30^th of April 2009 and that no order shall be made against our client as this matter is settled’. The upshot was that Mr Cole did not ask for substantive relief against any of the respondents. He submitted however that he was entitled to an order for costs against the 3^rd respondent (the ANC).

[5] In view of the contents of the letter from the 3^rd respondent’s attorneys that no order shall be made against their client, I cannot make a costs order in the absence of the 3^rd respondent’s attorneys. To put it at its lowest, there is uncertainty about whether or not the attorneys settled all issues between their clients, including the issue of costs, or whether the question of costs was left in the air. At one stage, Mr Cole suggested that, although the applicants had no prayer for this, it would be just and equitable to order the 3^rd respondent to pay the costs of the 1^st and 2^nd respondents as well. All I can do to accommodate the uncertainty about costs is to let that issue stand over for later determination by me if the parties are unable to resolve it.

[6] There remains the question of the 1^st and 2^nd respondents’ costs. Mr Paterson has asked for a costs order against the applicants. He has a number of arguments to support a conclusion that because no order is sought against his clients they are substantially successful in their opposition, and the applicants should be ordered to pay their costs. In the alternative, there is a prayer for a costs order in their favour against the 3^rd respondent. I do not propose dealing with all the points raised by Mr Paterson. It is sufficient if I quote the appropriate passage from a judgment in a similar application between different parties which I heard on the same date as this application and which also involved expulsion without a hearing and termination of office as a councillor. In that matter, Nomakhaya Fani and 18 others v Buffalo City Municipality and 8 others (EC, Grahamstown, Case No 860/2009) I dealt with the municipality’s opposition to the application in the following terms in paragraphs 5 and 7:

[5] The 1^st and 2^nd respondents are not able to contribute to the dispute about the propriety of the expulsion. Their opposition to the relief sought in the rule nisi is based on a denial of any wrongful conduct on their part. Whether or not the applicants can succeed against any of the respondents depends on whether they have succeeded in establishing the requisites for an interim interdict.

. . .

[7] The attitude of the 1^st and 2^nd respondents is that there is no prima facie evidence that they have committed a wrongful act in violation of the applicants’ rights. Their case is that they have no control over the identity of persons nominated or elected as councillors, and are not responsible for the termination of a councillor’s term of office. The representatives of the various political parties on council are determined by the results of elections held by the 4^th respondent. These results determine who enters the municipal council, whether by reason of his or her position on the party lists or by reason of the result of an election for a ward which he or she has fought and won. The results are declared by the 4^th respondent and are implemented by it and the various political parties. The 1^st and 2^nd respondents have no say in the matter. Their conduct thereafter is authorized and regulated by statute and the subsidiary legislation promulgated thereunder.¹ Whatever they did or did not do before and after being notified of the expulsions was in accordance with their statutory obligations, and cannot therefore be unlawful. In this case the applicants took up their places on the council without licence from the municipality. The payment of their remuneration and other service benefits, and the use of office premises and other municipal property followed as a matter of course. Similarly, when the IEC and the ANC notified the municipality that the applicants had ceased to be councillors and that vacancies had been created, they had no say in the matter. The 1^st and 2^nd respondents were no longer able to pay remuneration to persons who, they were advised, were no longer councillors. They were under an obligation to recover municipal property from persons no longer entitled to possess it. They had no basis for going behind a formally made notification by the 3^rd and 4^th respondents that the applicants were no longer councillors. They cannot sensibly be called upon to show cause why they did or did not do things which were, in the event, inexorably governed by statute. The result is that the 1^st and 2^nd respondents’ explanation throws considerable doubt upon the right which is the subject-matter of the main action and which the applicants seek to protect by means of interim relief. The violation of that right by the 1^st or 2^nd respondents is not prima facie established, though open to some doubt; it is open to serious doubt. It seems to me, therefore, that the only relief which can sensibly be granted in respect of their future dealings with the applicants would be a declaratory order that the expulsion of the applicants is to be regarded as suspended pending the review. Mr Cole has in the alternative applied on behalf of the applicants for modified relief in the form of a declarator. Mr Quinn, who appears for the first three respondents and who is aware that there is no prayer for alternative relief, has pointed out that this is not the case which the 1^st and 2^nd respondents came to meet, and asks that the application against them should be dismissed with costs. In view of the fact that 1^st and 2^nd respondents have no interest in the outcome of a review of the ANC’s decision to expel the applicants, and in view of the fact that if the applicants are successful on review they will become entitled to remuneration until the lawful termination of their term of office regardless of any order, declaratory or otherwise, against the 1^st and 2^nd respondents, there seems to me to be no justification for issuing even a declaratory order against them. They would probably not have opposed a declaratory order if that had been all that the applicants asked for. The claims against them are dismissed with costs. I can see no reason why this costs order should not operate against all nineteen applicants jointly and severally, the one paying the others to be absolved.

[7] The same position obtains in this case. The 1^st and 2^nd respondents have not been shown to have committed a wrongful violation of a right which is prima facie established though open to some doubt. The applicants have failed to prove one of the requisites for an interim interdict. This entitles the 1^st and 2^nd respondent to an order dismissing the application with costs. In view of my decision to reserve the issue of the applicants’ claim for costs against the 3^rd respondent, and in view of the 1^st and 2^nd respondents’ alternative prayer for a costs order against the 3^rd respondent, it is expedient to order that the issue of 1^st and 2^nd respondents’ claim for costs against the 3^rd respondent should also stand over for later determination by me if the 1^st or 2^nd respondent desire to pursue it and the matter cannot be resolved by the parties.

[8] There will be the following order:

3. The applicant’s are ordered to pay the 1^st and 2^nd respondents’ costs jointly and severally, the one paying the other to be absolved.

4. The issue of the applicants’ and the 1^st and 2^nd respondents’ entitlement to a costs order against the 3^rd respondent is reserved, and may be set down for hearing by any interested party on 10 days’ notice to the other parties.

RJW JONES

Judge of the High Court

6 May 2009

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