Bothmane v National Convenor: Forum for Service Delivery and Others (M64/2017) [2017] ZANWHC 37 (22 June 2017)

IN

THE NORTH WEST HIGH COURT

MAHIKENG

M64/2017

In the matter between:

POGISO BOTHMANE Applicant

and

NATIONAL CONVENOR: FORUM 1st Respondent

FOR

SERVICE DELIVERY

FORUM FOR SERVICE DELIVERY 2nd Respondent

CHIEF ELECTROL OFFICER: ELECTORAL 3rd Respondent

COMMISION

OF SOUTH AFRICA

THE MUNICIPAL COUNCIL: RUSTENBURG 4th Respondent

LOCAL

MUNICIPALITY

LESEGO PHETLHE 5th Respondent

DATE OF HEARING: 16 MARCH 2017

DATE OF JUDGMENT: 16 MARCH 2017

DATE OF REASONS: 22 JUNE 2017

FOR THE APPLICANT: Mr WESSELS

FOR THE RESPONDENT: Adv MOREMANE

REASONS

FOR JUDGMENT

KGOELE J:

1. This is an application for an interdict restraining the first and the fourth respondent’s from implementing a decision to expel the applicant as a member and Councillor of the fourth respondent. The application was brought on an urgent basis and the following order was granted by this Court after hearing submissions from both parties:

1. Pending the final decision of court in respect of part B of the application;

1.1 The 1st to 4th Respondents are interdicted and prohibited from implementing the decision of the 2nd Respondent to expel the Applicant as a member and councillor of the 4th Respondent;

1.2 The Applicant shall be entitled to all rights and perform all obligations arising from his office as a counsellor of the 4th Respondent;

1.3 The 5th Respondent is prohibited and interdicted from replacing the Applicant as a member of the 4th Respondent;

2. The cost in respect of part A of the Application are costs in part B of the Application;

3. Part B of the Application is postponed to a date to be determined by the Registrar of this court.

2. The first, second and fourth respondents filed a letter on the 23 March 2017 requesting reasons for the abovementioned order and the reasons thereof follows hereunder.

3. The application consisted of two parts. Part A, in terms of which an interim relief was sought on an urgent basis pending the decision in the main application (Part B), wherein the final relief is sought of the reviewing and setting aside the decision of the second respondent. Only Part A served before me.

4. The background facts can be summarised as follows: The applicant was a candidate of the second respondent reflected on the party list which was submitted by the second respondent and accepted by the Electoral Commission for the purpose of representing the second respondent proportionally in the Local Council of the Rustenburg Local Municipality.

5. Following the result of the 3 August 2016 Municipal Elections, the applicant became entitled to represent the second respondent as a Councillor by virtue of the party list registered by them with the Electoral Commission and was thereafter duly sworn in as a Councillor of the fourth respondent on the 19 August 2016. Applicant then commenced with the performance of his official duties.

6. On or about 14 October 2016 he received a Notice of his suspension pending an intended disciplinary hearing. Notwithstanding various procedural irregularities that he raised before the hearing, which according to him were not replied to, he attended a disciplinary hearing which was held on the 26 October 2016. It appears from his allegations that the disciplinary hearing did not proceed in order to afford him a proper opportunity to prepare as he was promised to be furnished with further particulars which he requested before the date of the hearing. I may pause here to indicate that the issue as to whether the disciplinary hearing took place or not is not clear from the papers because the first, second and fifth respondents alleges on the one hand that it was a meeting which was held on the 26 October 2016 to address the conduct of the applicant and to understand why he has not signed a membership

form and not a disciplinary hearing. On the other hand their letter dated 06 February 2017 Annexure “F4SD3” written to the applicant and Annexure “PB7” dated 15 November 2016 indicate that the disciplinary hearing was on the 26 October 2016 where a decision was taken to suspend him. Be it as it may, this issue is not for consideration by this Court but is a subject of Part B of the applications. What is common cause is that a decision to suspend the applicant has been taken, which is the decision that the applicant is fighting against at the moment wherein he seeks an interdict with the aim of preventing the implementation thereof pending the review of the said decision.

7. The applicant alleges further that he lodged an appeal of this decision which apparently took place on the 5 January 2017 at Hammanskraal. He arrived late at the hearing due to some problems he encountered which reasons are not relevant in our matter. It appears that he found that the appeal was already proceeded with by the time he arrived. Later, on the 08 February 2017, he received a letter which indicated that he has been dismissed with immediate effect. (Annexure F4SD3)

8. Mr Wessels on behalf of the applicant submitted that the matter is self-evidently urgent due to the fact that:

· The applicant depend on his remuneration as a councillor;

· If the unlawful decision of the applicant is implemented, it will have the effect of applicant’s name being deleted from the proportional representation list;

· The intended review application will in all probability be finalised towards the end of 2017;

· The applicant is unable to participate in Counsellor Meeting and overall performance of his duties as a Counsellor pending the hearing of his review application;

· The inconvenience which the respondents stand to suffer if he was to be permitted to continue with his duties as councillor is negligible when compared to the harm which he would suffer if he is precluded from being a Councillor in the interim;

· The applicant exhausted all internal remedies prior to approaching this Court for relief as purported appeal took place, he also requested a mediation or a disciplinary hearing by an independent panel but it was not granted. Instead, he received a letter of dismissal.

9. Mr Wessels also submitted that it is clear from the founding affidavit that the applicant made out a strong prima facie case that both the disciplinary and the appeal hearings including the subsequent expulsion were unlawful and need to be reviewed. He submitted as reasons the following :

· The applicant was not afforded a fair opportunity to prepare for his defence as he was not give timeous notice of the hearing and also not given sufficient particulars of the allegations which he was required to answer to;

· That he was not given an opportunity to give evidence and state his case in response to the allegations against him;

· The same person that chaired the purported disciplinary hearing was ostensibly also involved in the abortive appeal hearing;

· The purported disciplinary hearing committee was not composed of the second respondent as prescribed by its constitution;

· It follows therefore that the National Executive Member of the second respondent participated in the decision to suspend applicant as well as the purported disciplinary hearing including the purported appeal.

10. Advocate Moremane who appeared on behalf of the first, second and fifth respondent conceded at the beginning of his submissions that the application is urgent. This concession is in my view correctly made. The reasons as advanced by the applicant for urgency has merit. The applicant was able to also set out a detailed account of what he did immediately after he received the dismissal

letter up until he lodged this application. He went to an extend of explaining what internal steps he took to demonstrate that he had no alternative remedy than to come to this Court to apply for an interdict pending the review matter. In my view, taking into consideration how his matter or disciplinary hearing (I am using these words because of lack of better word to describe what actually happened) was handled by the respondents, his approach in a form of an interdict is justified. From the facts of this matter it appears prima facie that the respondents are prone to disregard any request that comes from the applicant’s side in as far as this matter is concerned.

11. When he requested further particulars of the alleged charges it prima-face appears that he was not given same because the respondents are silent on this aspect. This also include the fact that he indicated to them on the date of the alleged appeal that he was on his way to Hammanskraal and further that they continued in his absence.

This application will in my view afford the applicant a temporary hearing and possibly, a relief whilst he is exploring his review

application.

12. As far as the interim order is concerned, Advocate Moremane replied by saying that Prayer 2 cannot be granted at all because:

· The respondents had already taken the decision of dismissing the applicant and there is no longer any other step the respondents can take further other than what they did. They had already written a letter notifying the third respondent of his dismissal;

· The applicant is not their member as he refused to sign a membership form as they previously agreed with him;

· As such he was excluded as a member of the second respondent and also excluded to become a councillor representing them.

13. It is quite clear from the papers of the respondents that they are not sure of what they are or were doing as they are blowing hot and cold at the same time. This is evident as I had already indicated above by the fact that their papers contain a contradiction as to whether what happened on the 26 October 2016 was a disciplinary hearing or not. Ex facie the rudimentary minutes submitted by the respondents, it is not even clear what procedure was followed and whether there was any evidence offered or have been received.

14. Furthermore, it is simply astounding to note that the respondents allege that the applicant was “excluded as a member of the second respondent and also to become a counsellor” which immediately begs a question as to why the second respondent would purport to embark on an exercise to “dismiss’ him as a member, if he had not been one in the first place.

15. It also appears that the respondent’s do not appreciate the difference between the suspension (which was an interim measure) and the final expulsion which according to them had already been communicated to the applicant and the office of the third respondent. The fact of the matter is that the applicant has in fact finally been expelled from the second respondent and also as a Counsellor of the Rustenburg Local Municipality. Both the suspension and the expulsion affect the applicant’s rights and must not only be justified on the merits, but requires that proper and fair procedures are being embarked upon by the second respondent when they deal with the two.

16. Although this is not a review matter that is before me, it is noticeably important to realise that the respondents even failed to attempt to address the grounds for review as set out in the applicant’s founding affidavit. The respondents even failed to respond at all to the allegations of a number of irregularities the applicant has all along raised which were enumerated from paragraph 44 of his founding affidavit. I therefore agree with the applicant that he had made out a prima- facie case that the decision taken by the respondents need to be dealt with in a review.

17. The submission by Advocate Moremane that Prayer 2 cannot be granted is without merit. The submission flies against the fact that the applicant is in the subparagraphs there-of prays amongst others that:

· The second respond is to be interdicted and prohibited from implementing their decision to expel applicant;

· The fifth respondent to be prohibited and interdicted from replacing applicant as a member of the fourth respondent.

The prayers sought clearly demonstrate that the applicant was fully alive to the fact that a decision to dismiss him has already been taken and communicated to the and fourth respondent. In my view, the prayers are capable of being granted as an interdict.

18. The above sums up the reason for the order that I granted on the 16 March 2017.

_____

A.M.KGOELE

JUDGE

OF THE HIGH COURT

ATTORNEYS

FOR THE APPLICANT: Van Rooyen Tlhapi Wessels Inc

9 proctor Avenue

FOR THE 1ST,2ND,3RD RESPONDENTS: Ntsamai attorneys

Office No:14 Merlite Building

Cnr Warren and Shippard Street