Mayisela v African National Congress

• Jurisdiction: South Africa
• Judge: Lever AJ
• Judgment Date: 15 May 2008
• Docket Number: 1342/2007
• Hearing Date: 11 April 2008
• Court: Bophuthatswana High Court

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

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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 7th July 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 25th July 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 25th July 2007) and in due course sought to have the decision taken by the PWC on the 6th July 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 25th of July 2007 the parties agreed to an order in the following terms:

"That the matter be and is hereby postponed sine die with 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.

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[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 27th March 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 27th March 2008 the matter came before the Judge President and an order was made postponing the matter to the 10th April 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;

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Lever AJ

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 ante should 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.

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Lever AJ

[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 ante if 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."

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Lever AJ

[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

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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...