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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO. 1342/2007

In the matter between:-

ELLIOT MANDLENKOSI MAYISELA Applicant

And

AFRICAN NATIONAL CONGRESS First Respondent

NORTH WEST PROVINCIAL LEGISLATURE Second Respondent

PREMIER NORTH WEST PROVINCE Third Respondent

EMILY MAMAYETE MAMPANE Fourth Respondent

JUDGMENT

LEVER AJ:

[1] The Applicant in this matter is a member of the African National Congress (“ANC” or “First Respondent”). Prior to the incidents that are the subject matter of this application, the Applicant was a member of the North West Provincial Legislature (“the Provincial Legislature” or “Second Respondent”). In fact the Applicant was at that time the MEC for Agriculture, Conservation and Environment in the North West Province. At a meeting of the Provincial Working Committee (“PWC”) of the First Respondent, held on 6 July 2007, the PWC purporting to act in terms of an undertaking contained in an acceptance form that is signed by all potential public representatives of the ANC, resolved that the Applicant must be relieved of his membership of the Provincial Legislature with immediate effect. In a letter dated 7^thJuly 2007 the Provincial Secretary of the First Respondent wrote to the Speaker of the Provincial Legislature informing her that the ANC had resolved to withdraw the Applicant from the Provincial Legislature and to replace him with Mrs Emily Mamateye Mampane (later to become the Fourth Respondent), as an MPL.

[2] The Applicant then launched an urgent application, which was set down for hearing on the 25^thJuly 2007 before my brother Makhafola AJ. In his notice of motion the Applicant sought certain relief (which is no longer relevant due to what transpired on the 25^thJuly 2007) and in due course sought to have the decision taken by the PWC on the 6^thJuly 2007 reviewed and set aside as well as seeking the removal of his replacement from the Provincial Legislature and his reinstatement as an MPL.

[3] On the 25^thof July 2007 the parties agreed to an order in the following terms:

“That the matter be and is hereby postponed sine diewith the purpose of settlement. That there be no order as to costs.”

It is due to the fact that the parties agreed to postpone the matter in order to try and reach a settlement that the urgent interim relief has become irrelevant.

[4] In the course of time the Applicant must have become disillusioned about the prospect of settling the matter and a notice to amend the notice of motion was served. After some initial objection, which subsequently fell away, the amended notice of motion was served and filed. The amended notice of motion sought, inter alia, to join Ms Mampane the Applicant’s replacement in the Provincial Legislature, as the Fourth Respondent. The matter was then set down for hearing on the 27^thMarch 2008. The First and Fourth Respondents filed a substantive application for postponement, seeking condonation for the late filing of their answering affidavits, as well as an opportunity to file their answering affidavits. On the 27^thMarch 2008 the matter came before the Judge President and an order was made postponing the matter to the 10^thApril 2008 and providing a timetable for the filing of the outstanding documents as well as the Heads of Argument. Further, the said order also provided that:

“The Fourth Respondent’s joinder as a party in these proceedings is confirmed, provided that such confirmation is without prejudice to the First Respondent’s right to contend for the costs occasioned thereby.”

[5] The relevant portions of the amended notice of motion sought relief in the following terms:

“1. Declaring that the decision of the First Respondent on or about 7 July 2007 to withdraw the Applicant as one of its representatives in the North West Provincial Legislature is inconsistent with the provisions of Rule 25 of the Constitution of the African National Congress (“the ANC”), read with the Disciplinary Procedure of the ANC, and is accordingly invalid and of no force and effect;

2. Reviewing and setting aside the Decision of the First Respondent on or about 7 July 2007 to withdraw the Applicant as one of its representatives in the North West Provincial Legislature;

3. Directing the First Respondent forthwith to instruct the Second Respondent that the Applicant is to be reinstated with immediate effect as a member of the North West Provincial Legislature and that, as a result, the Fourth Respondent is to be withdrawn simultaneously as a member of the said Legislature;

4. . . . .

5. Granting the Applicant such further and/or alternative relief as this Court deems appropriate in the circumstances.”

[6] In short the Applicant argues that the proceedings against him as well as the sanction of removing him from the Provincial Legislature were of a disciplinary nature and that the PWC in following the procedure that it did, ignored Rule 25 of its own Constitution (this is the Rule that deals with disciplinary matters) as read with the relevant provisions of the Disciplinary Procedure (which is contained in an appendix to the First Respondent’s Constitution). Further, in acting as aforesaid the First Respondent through the PWC did not have any regard for the principles of natural justice. The Applicant argued that if I found in his favour the status quo anteshould be re-established in that the court should order that the First Respondent take all such steps as are necessary to have the Applicant instated in the Provincial Legislature as an MPL. This would of necessity mean the removal of the Fourth Respondent by the First Respondent to create the necessary vacancy to be filled by the Applicant.

[7] The First Respondent’s argument is centered around the interpretation of clause 13 of a “Candidate Acceptance Form” which is signed by all potential public representatives of the First Respondent. The First Respondent argues that clause 13 constitutes a contractual undertaking between the Applicant and the First Respondent. The said clause 13 reads as follows: “I accept the right of the ANC to recall me from parliament or a provincial legislature, even after I have been elected.” The First Respondent argues that this undertaking is clear and unambiguous in its terms, that it is not open to any interpretation by the Applicant or by the court. First Respondent then argues that this undertaking gives it a clear unqualified and unrestricted right to recall the Applicant from the Provincial Legislature under any circumstances. The First Respondent does not admit or concede that the recalling of the Applicant was a disciplinary measure. The First Respondent also made submissions as what was meant by a return to the status quo anteif the court should find against it.

[8] The Second Respondent, in the main, confined itself to arguing a question of law it had given notice that it intended to raise. This question of law is set out as follows:

“Whether, on a proper reading of section 106(3) and (4) of the Constitution of the Republic of South Africa, 1996 and the provisions of section 57A of the Electoral Act, 73 of 1998 and Item 23 of Schedule 1A to the Electoral Act, the relief sought in paragraph 3 of the Applicant’s notice of intention to amend his notice of motion is, in its current form, competent in law and capable of lawful implementation.”

[9] The Second Respondent argued that the relief sought by the Applicant in paragraph 3 of its amended notice of motion as is set out above, in essence is to reinstate the Applicant as a member of the Provincial Legislature and simultaneously to remove the Fourth Respondent from the Provincial Legislature.

[10] In support of this question of law the Second Respondent argued that its actions in removing the Applicant from the Provincial Legislature and the swearing in of the Fourth Respondent in his place had legal force independent from the decision of the First Respondent to remove the Applicant from the Legislature. That the actions of the Second Respondent cannot simply be ignored and that they are presumed to be valid in law until the removal of the Applicant by the Second Respondent and the swearing in of the Fourth Respondent are set aside by the court the Applicant cannot seek reinstatement in the Provincial Legislature and the simultaneous removal of the Fourth Respondent. To some extent the Second Respondent made common cause with the First Respondent, specifically with regard to what was meant by a return to the status quo ante.

[11] The Third Respondent is the Premier of the North West Province. The Third Respondent was represented herein by Ms L. Nkosi-Thomas, who informed the Court that as the Applicant sought no relief against the Third Respondent, that she had in essence a watching brief and that she only intended to make certain representations in relation to costs. When the matter ran into a second day Ms Nkosi-Thomas informed the Court that she had not anticipated that the matter would run into a second day. She further informed the Court that there were exceptional circumstances that necessitated her having to ask to be excused. She also informed the Court that the only outstanding issue between the Applicant and the Third Respondent, being costs, was settled on the basis that there be no order as to costs between the Applicant and the Third Respondent. Mr Berger who appeared for the Applicant confirmed the agreement. Ms Nkosi-Thomas was excused and the watching brief was maintained by the Third Respondent’s attorney, whom it was understood would have informed the court if it became necessary for the Third Respondent to obtain the services of Counsel.

[12] The Fourth Respondent Ms M. E. Mampane, being the person who replaced the Applicant in the Provincial Legislature, did not oppose the application. The Fourth Respondent was represented by the same attorney and Counsel as represented the First Respondent herein. The Fourth Respondent filed what she termed an “Explanatory affidavit”. This affidavit is very short and it would be useful to include the contents of her affidavit that might have a bearing on the present proceedings. Her affidavit sets out:

“4. I do not oppose this application. The purpose of deposing to this affidavit, is to set out certain facts which I deem to be material and which I think will be of assistance to the above Honourable Court.

5. . .

6. I signed a candidate nomination form, commonly referred to as the undertaking, which grants the First Respondent the right to recall me, from any position to which I may have been deployed.

7. On 16 July 2007, I was sworn in as a Member of the Provincial Legislature of the North West Province.

8. I understand this to be deployment by the First Respondent based on its political and strategic objectives. I also understand that these objectives may change from time to time, warranting that members having to be recalled from positions where they have been deployed and with (sic) possibility that they may or may not be deployed into other positions.

9. . . .”

[13] In this matter the following questions need to be resolved:

a) The manner in which clause 13 of the undertaking is to be interpreted;

b) Whether the proceedings against the Applicant constituted “disciplinary action” or not?

c) Whether the Second Respondent’s question of law ought to be upheld or not?

d) What relief the Applicant may be entitled to in the circumstances, including what a return to the status quo anteought to entail.

THE MANNER IN WHICH CLAUSE 13 OF THE UNDERTAKING IS TO BE INTERPRETED:

[14] It is common cause between the Applicant and the First Respondent that the constitution of the First Respondent and the written undertaking for potential public representatives are both contracts. The Applicant and the First Respondent part ways when considering the manner in which clause 13 is to be interpreted and the meaning to be ascribed thereto.

[15] The First Respondent contends that the ordinary and grammatical meaning of clause 13 of the undertaking is clear and unambiguous. Mr Motau argued persistently that as clause 13 was clear and unambiguous the Court could not read clause 13 in the context of the undertaking as a whole and further that the Court could not use the Constitution of the First Respondent to provide context and background to the candidates undertaking. Mr Motau further argued that clause 13 of the undertaking gave the First Respondent the absolute and unqualified power to recall the Applicant or any other person that had been elected to Parliament or a Provincial Legislature in any circumstances whether or not, in so doing, the First Respondent was acting in a bona fidemanner. He also argued that this did not result in any absurdity and that consequently the Court need not go any further.

[16] In debating this issue with Mr Motau I asked him if the meaning he ascribed to clause 13 of the undertaking did not amount to a waiver of rights a potential public representative might have in terms of Rule 25 of the First Respondents Constitution. I put to him that if that was so, was it not the position that a party who seeks to rely on such waiver had the onus of showing that the party who allegedly waived such rights did so with full knowledge of such rights? Mr Motau replied to my question with a question of his own “What rights?”, he asked. Despite the Court pointing out several provisions of Rule 25 of the First Respondent’s Constitution that would have endowed the Applicant with certain rights in the context of disciplinary proceedings, Mr Motau stuck to his guns and argued that clause 13 of the undertaking gave the First Respondent the absolute and unqualified right to recall the Applicant from the Legislature in any circumstances and for any reason. As a result of the view that I take of the matter, it is not necessary for me to decide whether the Applicant has waived any rights he might have had in terms of Rule 25 of the First Respondents Constitution by signing the undertaking which contains the disputed clause 13. Accordingly, I will take this issue no further.

[17] In justifying this strict narrow and literal approach Mr Motau quotes a passage from the judgment of Joubert JAin the matter of Coopers & Lybrand and Others v Bryant¹ as well as certain dictionary definitions of the word 途ecall� In doing so, Mr Motau makes two mistakes, being: a) he misreads the passage in the Coopers & Lybrand judgment that he seeks to rely on; b) he takes the relevant passage out of its context.

I say that Mr Motau takes this passage out of its context because he starts in the middle of a paragraph and leaves out a passage which emphasises the purpose of such interpretation and he leaves out a passage from the judgment of Rumpff CJin the matter of Swart en ʼn ander v Cape Fabrix (Pty) Ltd², quoted by Joubert JA in the Coopers & Lybrand case which emphasises the pitfalls of the very approach Mr Motau seeks to adopt on the First Respondents behalf in interpreting clause 13 of the undertaking. In order to illustrate this, I set out the relevant passages of the Coopers & Lybrand judgment below:

“The matter is essentially one of interpretation. I proceed to ascertain the common intention of the parties from the language used in the instrument. Various canons of construction are available to ascertain their common intention at the time of concluding the cession. According to the ‘golden rule’ of interpretation the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity, or some repugnancy or inconsistency with the rest of the instrument . . .

The mode of construction should never be to interpret the particular word or phrase in isolation (in vacuo) by itself. See Swart en ʼn ander v Cape Fabrix (Pty) Ltd (1) SA 195 (A) at 202 C (per Rumpff CJ):

‘Wat natuurlik aanvaar moet word, is dat, wanneer die betekenis van woorde in ʼn kontrak bepaal moet word, die woorde onmoontlik uitgeknip en op ʼn skoon stuk papier geplak kan word en dan beoordeel moet word om die betekenis daarvan te bepaal. Dit is vir my vanselfsprekend dat ʼn mens na die betrokke woorde moet kyk met inagneming van die aard en opset van die kontrak, en ook na die samehang van die woorde in die kontrak as geheel.’

The correct approach to the application of the ‘golden rule’ of interpretation after having ascertained the literal meaning of the word or phrase in question is, broadly speaking, to have regard:

1. to the context in which the word or phrase is used with its interrelation to the contract as a whole, including the nature and purpose of the contract, as stated by Rumpff CJsupra;

2. to the background circumstances which explain the genesis and purpose of the contract, i.e. to matters probably present in the minds of the parties when they contracted. . .

3. to apply extrinsic evidence regarding the surrounding circumstances when the language of the document is on the face of it ambiguous, by considering previous negotiations and correspondence between the parties, subsequent conduct of the parties showing the sense in which they acted on the document, save direct evidence of their own intentions.”

[18] Mr Motau, in presenting the argument on behalf of the First Respondent adopted a narrow and mechanical approach to the interpretation of clause 13 of the undertaking. He argued that the ordinary and grammatical meaning of clause 13 was clear and unambiguous, that it provided that the First Respondent could recall the Applicant from the Provincial Legislature under any circumstances. He then argued in those circumstances the court may not look to the context and background of clause 13 of the undertaking. Clearly, Mr Motau has misread the dictaof Joubert JAin the Coopers & Lybrandcase. The process of interpreting a word, a phrase or a clause in a contract is not a mechanical one with a fixed sequence of steps to be taken. Christie³, relying on the authority of Snyman v Odendaalsrus Oorgangsraad⁴, correctly in my view, sets out the position as follows:

“The four steps of this technique (grammatical and ordinary meaning, context, background circumstances, surrounding circumstances) must not be paced out in succession with military precision, but must be danced with some pirouetting and an entrechat or two.”

[19] Clause 13 of the undertaking has already been set out above. However, in this paragraph I intend to set out the different meanings ascribed to it by certain of the parties to this application and it will be convenient to repeat clause 13 of the undertaking in this paragraph:

“13. I accept the right of the ANC to recall me from parliament or a provincial legislature, even after I have been elected.”

a) The First Respondent argues that the ordinary meaning of the word “recall” means to “order to return” and that consequently clause 13 gives the First Respondent a clear unrestricted and unqualified right to recall the Applicant from the Provincial Legislature in any circumstances.

b) The position of the Fourth Respondent is interesting and worthy of note, because although she has the same attorney and Counsel as the First Respondent representing her, her interpretation of clause 13 of the undertaking is markedly and significantly different from that which the First Respondent seeks to rely on in its argument. The meaning which Fourth Respondent ascribes to clause 13 is to be gleaned from paragraph 6 read with paragraph 8 of her “Explanatory Affidavit”, which reads as follows:

“6. I signed a candidate nomination form, commonly referred to as the undertaking, which grants the First Respondent the right to recall me, from any position to which I may have been deployed.

7. …

7. I understand this to be deployment by the First Respondent based on its political and strategic objectives. I also understand that these objectives may change from time to time, warranting that members having to be recalled from positions where they have been deployed, and with (sic) possibility that they may or may not be deployed into other positions.”

c) The position of the Applicant on clause 13 was that it was included in the undertaking to cover the operational needs of the First Respondent. Consequently he contended that it meant that if the ANC needed the skills of a particular MP or MPL, that person can be removed from the office of being an MP or MPL and redeployed to another position to fulfil the operational requirements of the ANC.

[20] The distinction between the approaches of the First Respondent to that of the Fourth Respondent is noteworthy because on the First Respondent’s approach the issue of whether the proceedings against the Applicant had the characteristics of, or amounted to disciplinary action or disciplinary proceedings is irrelevant. However, on the Fourth Respondent’s approach disciplinary action or disciplinary proceedings would not be covered by clause 13 of the undertaking. The approach of the Fourth Respondent and the Applicant are at least to an extent reconcilable and in the circumstances of the present matter it makes no difference as to which of these two approaches correctly reflects the intention of the parties in clause 13 of the undertaking as both approaches would exclude steps that either constituted or had the effect of disciplinary action or disciplinary proceedings.

[21] In placing clause 13 into the context of the candidate acceptance form four of its clauses are primarily relevant, and these read as follows:

“9. If my nomination succeeds, I will at all time (sic) conduct myself according to the Electoral Code of conduct and will do nothing to bring the ANC into disrepute.

10. I will abide by the ANC Code of Conduct and will accept the discipline and decisions of the relevant ANC structures.

11. If elected as a member of parliament or a provincial legislature, will abide by the Code of Ethics for public representatives and will accept the rules and discipline of the relevant structures that govern public representatives.

12. I undertake to serve for the full term of parliament or the legislature, unless otherwise decided by the National Deployment Committee or the Secretary General.”

Looking at clause 13 of the undertaking in the context of the four clauses cited above, it is clear that candidates bind themselves to various codes of conduct and ethical codes. Further the candidates agree to accept the rules and the discipline of the various structures charged with enforcing the relevant codes. Use of the word “discipline” in clause 10 and 11 of the undertaking is not in and of itself decisive. The word “discipline” has to be read in the context of the respective clauses.

[22] Here I think it would be appropriate to refer to the background circumstances provided by the Constitution of the ANC. In particular to Rule 25.1(b) and (c) which in my view sets out the genesis and purpose of the ‘Candidate Acceptance Form’ and clause 13 thereof. The said sub-rules in the ANC Constitution read as follows:

“25.1(a) . . .

25.1(b) Every candidate representing the ANC during an election at any level of government, must undertake, in writing, prior to the elections, to abide by the Constitution of the ANC and the relevant Code of Conduct for elected representatives, and to submit to and abide by any disciplinary proceedings instituted against her or him in terms of the Constitution or such Code, directly or indirectly arising from her or his conduct as a public representative of the ANC.

25.1(c) All members and public representatives of the ANC, without exception, are subject to the discipline of the ANC and must submit to the provisions of the Constitution, Rules and Regulations, Standing Orders and Codes of Conduct with regard to the regulation of the conduct of members and public representatives, and the applicable disciplinary procedures, in particular Rule 25.”

[23] In my view Rule 25.1(b) and (c) of the ANC’s Constitution make it clear that public representatives are subject to the same disciplinary proceedings as ordinary members of the ANC. It is clear that they do not contemplate different disciplinary procedures for public representatives. In fact in relation to disciplinary procedures Rule 25 is specifically referred to.

[24] The structure of the Candidate Acceptance Form itself may also provide an indication of what was intended by the inclusion of clause 13. Clauses 1 to 5 of the said form deal with the legal requirements as a candidate on one of the contemplated lists on behalf of ANC. Clauses 6 to 9 seek to protect the integrity of the ANC and its nomination process. Clauses 10 and 11 deal with the relevant codes of conduct and subject the candidate to the discipline of the various ANC structures charged with enforcing the relevant codes. Clause 12 clearly deals with the operational requirements of the ANC. The fact that clause 13 appears where it does within the structure of the candidate acceptance form is at least an indication that it relates to the operational needs of the ANC. True it is no more than an indication, but it has its place in the process when I seek to determine the intention of the parties as it appears from clause 13 itself and clause 13 read within the context of the instrument itself, as well when I seek to establish the nature and purpose of the Candidate Acceptance Form as well as the background and genesis of the undertaking.

[25] Counsel for the First Respondent raised another argument which I need to deal with. Despite his main argument that clause 13 is clear and unambiguous in its own terms and that I must not go beyond that in seeking to determine the intention of the parties in agreeing to clause 13, Mr Motau referred me to Rule 25.3 of the ANC’s Constitution, which reads as follows:

“25.3 If the NEC, PEC, REC or BEC, as the case may be, or the relevant body exercising its right to invoke disciplinary proceedings under this Constitution, is satisfied that the institution of a disciplinary procedure is warranted against a member or public representative in respect of any conduct referred to in Rule 25.5 or any other misconduct prohibited in terms of the Constitution, it may(emphasis of Mr Motau) decide to institute disciplinary proceedings against such member in respect of such misconduct and then refer the matter to the NDC, PDC, RDC or BDC, as the case may be, or any other body authorised in terms of the Constitution to conduct disciplinary proceedings, to proceed with such disciplinary hearing.”

Mr Motau did not concede that the actions of the PWC against the Applicant constituted disciplinary proceedings or that they resembled disciplinary proceedings. However, he argued, if it was found that they were disciplinary proceedings, then and in that event, the use of the word “may” in Rule 25.3 of the First Respondent’s Constitution gave the PWC a discretion as to whether it proceeded by way of instituting disciplinary proceedings in terms of Rule 25 or whether it chose to implement clause 13 of the undertaking instead. The argument that the PWC had a choice whether to apply the provisions of Rule 25 or whether to invoke the provisions of clause 13 of the undertaking invites me to consider the provisions of Rule 25 and the appendix to the ANC’s Constitution as a whole. The first thing that strikes one on a reading of Rule 25 and the relevant appendix is that the procedure that is envisaged is a manifestly fair procedure, which incorporates a number of important rights and safeguards which a person subject to disciplinary proceedings would be entitled to, inter aliathe right to appeal which would suspend the operation of the disciplinary ruling pending the finalisation of the internal remedies provided for in Rule 25 (see Rule 25.9(a)). In these circumstances it is completely untenable to argue that the PWC has an election to apply either a procedure which is manifestly fair, subject to certain safeguards such as the right to appeal or a procedure which does not confer any rights on the person affected thereby, which would not afford such person the right to test the bona fidesof the structure that seeks to invoke clause 13 or to appeal its ruling.

[26] Having regard to the wording of clause 13 of the Candidate Acceptance Form, the context of clause 13 in the said form, the purpose of the agreement that is contained in the said form, and the background circumstances contained in the First Respondents Constitution which illustrate the genesis and purpose of such agreement, I conclude that clause 13 of the Candidate Acceptance Form relates to the operational requirements of the First Respondent. I need not and do not go as far as to decide that it necessitates a transfer of a public representative from one position to another position either in a different sphere of government or to another position within the organisation itself. The important thing is that it was not intended to be used as a substitute for properly instituted disciplinary proceedings.

WHETHER THE PROCEEDINGS AGAINST THE APPLICANT CONSTITUTED DISCIPLINARY ACTION OR NOT?

[27] It seems to me that when considering whether these proceedings constituted disciplinary action or not, there are three factors that need to be considered, these are:

a) Whether there is a code or set of rules that were imposed on the Applicant;

b) Whether a breach of this code or the relevant rules are alleged; and

c) Whether there is a censure of or sanction against the Applicant.

The minutes of the PWC meeting that removed the Applicant from the Provincial Legislature were annexed to the First Respondent’s answering affidavit as annexure “AA11”. It appears from this minute that the PEC had mandated the PWC to consider the matter (see para 4.1.13.11 of the minutes). The minutes refer to the undertaking in the Candidate Acceptance Form to obey the various codes of conduct and to subject himself to the discipline of the various structures of the ANC (see para 4.1.13.12 of the minutes). It is alleged that the Applicant has breached these undertakings and various other breaches of rules of a number of different structures within the ANC are alleged in the minutes (see para’s 4.1.13.1 to 4.1.3.10). Removing the Applicant from the Provincial Legislature was clearly a sanction in the context of paragraphs 4.1.13.11 and 4.1.13.12 of the minutes of the meeting of the PWC.

[28] The conclusion is inescapable that the proceedings against the Applicant by the PWC constituted a disciplinary action. The PWC does not have the power to conduct disciplinary actions or proceedings. The PEC could not have delegated those powers to the PWC as the PEC only has the power to decide whether to refer the matter to the Provincial Disciplinary Committee (P.D.C) or the National Disciplinary Committee (N.D.C). As already set out above clause 13 of the undertaking cannot be used as a substitute for disciplinary actions. In conducting a disciplinary action against the Applicant and imposing a sanction on him on the 6^thJuly 2007, the PWC exceeded the powers that may possibly be delegated to it. This is sufficient grounds to review and set aside the decision taken by the PWC on the 6^thJuly 2007. Accordingly, it is not necessary for me to consider and decide whether the First Respondent in sanctioning the Applicant has complied with the rules of basic fairness or not.

WHETHER THE SECOND RESPONDENT’S QUESTION OF LAW OUGHT TO BE UPHELD OR NOT?

[29] The Second Respondent’s question of law which it seeks to raise starts from the premise that the removal of the Applicant from the Provincial Legislature and the swearing-in of his replacement, the Fourth Respondent, need to be set aside before the Applicant can be reinstated in the Provincial Legislature. In my view, there is no basis for relying on this premise. The Applicant has never contended that the acts of the Second Respondent in removing him from the Provincial Legislature and swearing-in of his successor have been irregular or unlawful. In fact the Applicant implicitly accepts that the act of the Second Respondent in removing him from the Legislature and the swearing-in of his replacement was lawful. The Applicant seeks no substantive relief against the Second Respondent. The Applicant seeks to have the decision of the First Respondent to remove him from the Legislature reviewed and set aside. Applicant then seeks a mandamus against the First Respondent ordering it to reverse the letter that it sent to the Speaker of the Provincial Legislature and which is dated the 7^thJuly 2007. In order to place the issue beyond doubt Mr Berger applied to reword paragraph 3 of the amended notice of motion as follows:

“That the First Respondent is directed forthwith to instruct the Second Respondent that the Fourth Respondent is to be withdrawn as a member of the North West Provincial Legislature with immediate effect and that the Applicant is to be sworn-in as a member of the North West Provincial Legislature with immediate effect.”

[30] Mr Motau was asked what his position was in regard to the rewording of paragraph 3 of the notice of motion. He replied that he had no comment, but the important thing was he did not raise an objection on behalf of either the First Respondent or the Fourth Respondent. Similarly, Mr Mtshaulane was asked if the Second Respondent had an objection to the proposed rewording and he replied that there was no objection. The relief claimed was substantially the same as originally sought and the facts relied upon for such relief were contained in the papers and were dealt with by the respective parties and nobody can be said to be prejudiced or taken by surprise by the proposed amendment and this amendment is accordingly granted.

[31] The Second Respondent raised a number of collateral issues as concerns if the Applicant was reinstated in the Provincial Legislature. In my view these collateral issues would only arise if the swearing-in of the Fourth Respondent by the Second Respondent was somehow irregular or unlawful. Nobody has even alleged that such act was irregular or unlawful. Accordingly, the meetings of committees of the Second Respondent whose meetings were attended by the Fourth Respondent remain quorate. All actions of the Second Respondent in which the Fourth Respondent played a role remain regular and lawful unless there are other grounds for challenging them. The Second Respondent is not required to reclaim the salary and benefits the Fourth Respondent enjoyed during her membership of the Provincial Legislature. If Applicant has a claim for lost salary and lost benefits it could only be pursued against the First Respondent and not against the Second Respondent.

[32] The question of law raised by the Second Respondent is in my view misconceived and it is accordingly dismissed.

WHAT DOES A RETURN TO THE STATUS QUO ANTE ENTAIL?

[33] Counsel for the First and Second Respondents argued that if I found against their respective clients that I should only award Applicant the relief sought in paragraphs 1 and 2 of the amended notice of motion. That I should not order the reworded paragraph 3 as this would amount to a judicial licence or a judicial tender, which would only be justified in very narrow and defined circumstances. I was referred to a number of authorities all of which dealt with the awarding of licenses or tenders. In my view they are not applicable to the present circumstance. In the present circumstance, and in relation to Applicant’s status as an MPL, a return to the status quo antecan only mean a return to the position that prevailed prior the decision of the First Respondent that has been reviewed and set aside.

[34] The only issue that remains is the question of costs. In relation to the costs of the postponement of the 27^thMarch 2007, Mr Motau argued that he needed to consider and advise his client the First Respondent if a replying affidavit was called for. Mr Berger had no objection to this and the correct order to make would be to postpone the issue of the costs of this postponement sine die.

[35] On the merits of the application both the First and Second Respondents were not successful and there is no reason why the general rule that costs should follow the result should not apply. The First and Second Respondents should bear these costs jointly and severally, the one paying the other to be absolved.

In the circumstances it is ordered that:

1. The decision of the First Respondent taken on the 6^thJuly 2007 to withdraw the Applicant as one of its representatives in the North West Provincial Legislature is inconsistent with the provisions of Rule 25 of the Constitution of the African National Congress, read with the Disciplinary Procedure of the ANC, and it is accordingly declared to be invalid and of no force and effect.

2. The decision of the First Respondent taken on the 6^thJuly 2007 to withdraw the Applicant as one of its representatives in the North West Provincial Legislature is hereby reviewed and set aside.

3. The First Respondent is directed forthwith to instruct the Second Respondent that Fourth Respondent is to be withdrawn as a member of the North West Provincial Legislature with immediate effect and that Applicant is to be sworn-in as a member of the North West Provincial Legislature with immediate effect.

4. The Second Respondent’s question of law is dismissed.

5. The question of the costs of the postponement of the 27^thMarch 2008 is postponed sine die.

6. As to the costs between Applicant and Third Respondent, there is to be no order as to costs.

7. The other costs relating to this application are to be paid by the First and Second Respondents jointly and severally, the one paying the other to be absolved.

___________

L. G. LEVER

ACTING JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 11 APRIL 2008

DATE OF JUDGMENT : 15 MAY 2008

COUNSEL FOR APPLICANT : ADV D. J. BERGER SC

COUNSEL FOR 1^ST RESPONDENT : ADV T. MOTAU

COUNSEL FOR 2^ND RESPONDENT: ADV P.M. MTSHAULANE SC with him ADV N. H. MAENETJIE

COUNSEL FOR 3^RD RESPONDENT: ADV L. NKOSI-THOMAS

COUNSEL FOR 4^TH RESPONDENT: ADV T. MOTAU

ATTORNEYS FOR APPLICANT : Van Rooyen Tlhapi Wessels Inc.

ATTORNEYS FOR 1^STRESPONDENT: Hlahla Motlhamme Att.

ATTORNEYS FOR 2^NDRESPONDENT: Minchin & Kelly Inc.

ATTORNEYS FOR 3^RDRESPONDENT: The State Attorney

ATTORNEYS FOR 4^THRESPONDENT: Hlahla Motlhamme Att.

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