United Christian Democratic Party v Independent Electoral Commission and Others

• Jurisdiction: South Africa
• Judge: Mogoeng JP, Majiedt, J et Landman AJ
• Judgment Date: 04 December 2003
• Docket Number: 578/02
• Court: Bophuthatswana High Court
• Hearing Date: 24 October 2003
• Citation: 2003 JDR 0748 (BH)

Majiedt J:

1.

The Constitution of the Republic of South Africa Amendment Act, 18 of 2002 (the Amendment Act"), has as one of its objectives the creation of a mechanism whereby a member of a Municipal Council is able to retain

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membership of that council where such a councillor ceases to be a member of the party which had nominated that councillor. This objective was attained through an amendment of section 157 of the Constitution, Act 108 of 1996 (sec. 1 of the Amendment Act) and through the insertion of schedule 6A in the Constitution (sec. 2 of the Amendment Act). The Amendment Act forms part of what has in common parlance become known as "floor-crossing legislation".

2.

The six affected councillors in this matter were the second to seventh Applicants in the Court a quo. They are cited as part of the 4th Respondent in this appeal. For the sake of clarity I shall refer to them in this judgement as "the affected councillors".

3.

The affected councillors had been elected as members of the Mafikeng Municipal Council after they had been nominated thereto by the Appellant. During October 2002 they changed their political allegiance and party membership from the Appellant to the African National Congress, cited herein with the affected councillors as the 4th Respondent and to whom I shall refer as "the ANC", The ANC was the First Applicant in the Court a quo.

4.

The affected councillors contended in the court a quo that they had complied with all the formal requirements in respect of their aforementioned floor-crossing in that they had properly notified the First Respondent thereof by telefax on 21 October 2002. This contention was upheld in the court a quo and the following orders were issued:

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Declaring that second to seventh Applicants (the affected councillors):

4.1

are members of the ANC with effect from 21 October 2002;

4.2

are councillors of the Mafikeng local Municipality and as such retain the seats and status that they had prior to 21 October 2002;

4.3

did timeously comply with the floor-crossing procedure and that their names must be published in the Government Gazette as councillors of the ANC in the Mafikeng Local Municipality;

4.4

directing the First Respondent (IEC) to cause the names of the affected councillors to be enrolled as members and councillors of the ANC in the Mafikeng Local Municipality;

4.5

ordering the Fourth Respondent (the Appellant herein) to pay the costs of the application.

With the leave of the Court a quo the Appellant appeals to this Court against the whole of the orders and judgement of the Court a quo.

5.

Item 4(2)(a) of Schedule 6A of the Constitution reads as follows:

"a councillor may only once –

(i)

change membership of a party; or

(ii)

become a member of a party; or

(iii)

cease to be a member of a party

by informing an officer designated by the Electoral Commission thereof in writing, and if that councillor has changed membership of a party or has become a member of a party, by submitting to that officer written confirmation from the party in question that

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he or she has been accepted as a member of that party."

6.

The First Respondent has, by resolution dated 20 June 2002, designated the Chief Electoral Officer ("the CEO") as the officer referred to in item 4(2)(a). The First Respondent has also created an internal administrative arrangement whereby notification of floor-crossing is given in writing to the CEO on a form developed by the First Respondent. This form was utilised by each one of the affected councillors herein and the six forms were annexed to their founding papers in the application. Part of the aforementioned internal administrative arrangement which appears on the bottom of the form, is that notification can be given to the CEO inter alia by telefax. Three fax numbers in Pretoria are provided at the bottom of the form where the notification is to be faxed.

7.

Crossing the floor from one political party to the other within the framework provided by the floor-crossing legislation was permitted for a period of 15 days following the date of the commencement of Schedule 6A of the Constitution in terms of item 7 thereof – this has become known as the "window period". This window period ran from 8 October 2002 for a period of 15 days.

See: UDM v President of the Republic of South Africa & others (2) 2003 (1) SA 495 (CC) at 531 B-C (par 117).

There is no dispute or at least not a serious, genuine dispute herein that the affected councillors had taken certain steps to comply with the formalities prescribed in the legislation within the window period. The question that arises is: have they taken adequate steps to comply

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therewith?

8.

The crisp point for decision in this appeal is whether the affected councillors had in fact informed the CEO of their floor crossing by the end of the window period. To arrive at a decision, consideration of the meaning of "informing (by telefax)" is required.

9.

The affected councillors have averred in their founding papers that the ANC, on their behalf, had telefaxed the six forms (i.e. one form for each councillor) to one of the fax numbers provided by the First Respondent on 21 October 2002. This averment was confirmed in affidavits by the Provincial Secretary of the ANC and by his personal assistant, who had done the actual faxing. In addition, a Telkom report of the activity on the machine from which the forms had been faxed in the ANC's office in Mafikeng, indicates that on 21 October 2002 at 11h17 a telefax call had been made to a number in Pretoria (one of the telefax numbers provided by the First Respondent on the form). The report also indicates that the duration of the aforementioned telefax transmission was two minutes and ten seconds. It does not, however, provide an indication as to how many pages had been faxed.

10.

The First Respondent's attitude in the Court a quo was that it would abide the decision of the Court. In this Court it had adopted a similar approach – Mr. Mothle appeared on its behalf on a watching brief only and made no submissions to us, despite having been given the opportunity to do so. The CEO has, however, deposed to an affidavit in

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the application. I shall allude to it in some detail later. Suffice it to point out at this stage that her affidavit contains as annexures thereto the Telkom report of the ANC's fax machine, referred to in the preceding paragraph, as well as a report of the fax machine of the First Respondent where the forms had allegedly been faxed. The latter report shows that on 21 October 2002 at 11h12 five pages had been transmitted to that fax machine from the ANC's fax number in Mafikeng. The duration of the fax receipt is indicated as two minutes and fifteen seconds.

11.

In my view the following facts relating to the telefax transmission under discussion stand uncontroverted and are indeed incontrovertible on the papers:

a)

that there had been a telefax transmission from a fax machine with number 018-381 1948 (in the ANC office, Mafikeng) on 21 October 2001 at 11h17 to a fax number 012-4285279 (in the office of the First Respondent) for a duration of two minutes and ten seconds;

b)

that a telefax consisting of five pages had been received on 21 October 2002 at 11h12 at fax number 012-4285279 in the office of the First Respondent from fax number 018-3811948 (i.e. the ANC's office in Mafikeng) and it had taken two minutes and fifteen seconds to be received at the First Respondent's fax machine.

12.

According to the CEO's affidavit, the faxed pages themselves are nowhere to be found (there is a deafening silence and, in my view, a

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disappointing lack of candour concerning the whereabouts of the five received faxed pages). Consequently, the affected councillors were listed as still being members of the Appellant (and not of the ANC) in the Government Gazette no.23987 of 24 October 2002. The details of councillors who have crossed the floor were published in the aforementioned Government Gazette in accordance with the prescripts...