Mafongosi and Others v United Democratic Movement and Others

• Jurisdiction: South Africa
• Judge: Jafta, AJP
• Judgment Date: 07 November 2002
• Docket Number: 563/2002
• Court: Transkei High Court
• Hearing Date: 31 October 2002
• Citation: 2002 JDR 0998 (TkH)

Jafta AJP:

[1] The applicants instituted this application on urgent basis for the review of the decision by the first respondent's disciplinary committee to the effect that they were guilty of misconduct and the subsequent termination of their membership to the first respondent. In addition thereto, they sough an order directing the second respondent to reinstate them as its councillors. The application is opposed by the

2002 JDR 0998 p2

Jafta AJP

first and fourth respondents only and was initially set down for hearing on 30 July 2002 in the absence of the respondents. On that day the matter was placed before Maya J who granted a rule nisi with an interim interdict restraining the respondents from replacing the applicants and appointing other persons as councillors in the place of applicants pending the finalisation of the present application. The rule nisi was made returnable on 22 August 2002.

[2] Although it is not clear from the record the respondents were probably aware of the application prior to the hearing on 30 July. On 5 August the first respondent filed a notice to oppose and simultaneously set the matter down for reconsideration of the order granted by Maya J on 30 July. The matter was set down for 7 August and on that day it was placed before Norman AJ who after hearing the parties discharged the interim interdict granted on 30 July and substantially varied the original order. However Norman AJ issued anew interdict restraining the respondents from replacing the applicants in second respondent's council. The applicants were further ordered to serve papers of the application on the officer who presided over the disciplinary committee whose finding they sought to be reviewed. The matter was then postponed to 22 August 2002.

[3] On the latter date the fourth respondent sought to be joined as a party to the application. Indeed an order joining him was granted. The fourth respondent was the presiding officer in the disciplinary committee whose decision was challenged by the applicants. The first respondent is a well-known political party and is the majority party in the second respondent's council. Having been joined the fourth respondent filed opposing papers together with a transcribed copy of the

2002 JDR 0998 p3

Jafta AJP

proceedings of his committee. When all the necessary papers were filed and the matter ripe for hearing, it was set down and placed before me on 31 October 2002.

[4] Trimmed of its long historical background and cut to its bare essentials, the matter involves a narrow dispute. The applicants challenge their dismissal from the United Democratic Movement (the UDM) on the following grounds:

4.1

The decision of the disciplinary committee in refusing to postpone the hearing to 24 May 2002 denied the applicants legal representation during its proceedings and thereby rendered such proceedings procedurally unfair to the extent of vitiating them in their entirety.

4.2

The applicants' expulsion based on the finding of the aforesaid committee was similarly vitiated and rendered invalid.

[5] Before considering those issues together with the defence raised by the respondents, it is necessary to set out the relevant facts. By virtue of the fact that the UDM was the majority party, it had then the authority of appointing the mayor of the King Sabata Dalindyebo Municipality (the KSD Municipality). During January 2002 an attempt to unseat the mayor appointed by the UDM was made by means of tabling a motion of no confidence in him. The motion had to be voted for, in order to determine the level of its support. It was tabled by the African National Congress (the ANC) which is the opposition party in the council. Apparently the applicants voted in support of the said motion and this became known to the UDM. Understandably the UDM was not amused by the alleged lack of loyalty displayed by the applicants in an environment which seems to be

2002 JDR 0998 p4

Jafta AJP

charged with extremely fierce rivalry.

[6] The UDM was of the view that the applicants' alleged betrayal contravened its constitution and therefore amounted to serious misconduct warranting a disciplinary enquiry against them. Charges were formulated and on 16 April 2002 notices were issued to the applicants advising them of the impending disciplinary enquiry to be held on 26 April at the offices of the KSD Municipality. The charges preferred against them were, together with the relevant portion of the UDM's constitution, annexed to the said notices. On the notices themselves, the applicants were informed, in bold typed letters, that they were entitled to bring their legal representatives, witnesses and whatever documentary material relevant to the hearing.

[7] The applicants attempted to obtain the services of attorney X M Petse to represent them at the enquiry but it transpired that on 26 April Mr Petse was not available as he had other commitments. Secondly, it also turned out that the applicants lacked financial resources to raise the attorney's legal fees. It was then agreed between them and Mr Petse that a request for a postponement of the hearing would be made on their behalf. Indeed a letter was written by the said attorney addressed to the UDM asking for the postponement of the hearing for the two reasons set out above. In that letter the 24th of May was suggested as the suitable date for postponement.

[8] On 26 April the applicants attended the hearing, and persisted with their application for a postponement. The presiding officer at the hearing was, however, not inclined to grant a postponement until persuaded by the officer

2002 JDR 0998 p5

Jafta AJP

leading evidence who is an advocate of this Court. He pointed out to the presiding officer that it was in the interests of the applicants that they be legally represented and that the date proposed by the applicants' attorney would suit him after rearranging his other commitments for that date. The presiding officer held the view that that date was too far and that instead the matter be postponed to 3 May. On the latter date the applicants appeared again at the enquiry without an attorney and wanted the hearing to be postponed further. However, both the officer leading evidence and the presiding officer were of the view that the hearing should proceed. After it was indicated to them that the hearing would proceed, the applicants withdrew their participation in the proceedings. The officer leading evidence went on to place certain documents before the enquiry and argued that the applicants be found guilty on all three counts. Indeed the applicants were found guilty of those charges.

[9] Subsequently and pursuant to the disciplinary committee's finding, the provincial management committee of the UDM decided to terminate the applicants' membership on 7 May 2002. The applicants instructed their attorney to note an appeal to the national executive committee on their behalf. After the noting of the appeal the UDM advised the applicants of the date of the hearing of the appeal. Once more, the date did not...