Democratic Alliance v Municipal Manager:Nelson Mandela Bay Metropolitan Municipality and Others (3676/2018) [2018] ZAECPEHC 79 (11 December 2018)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION – PORT ELIZABETH

Case No.: 3676/2018

In the matter between:

THE DEMOCRATIC ALLIANCE

Applicant

and

THE MUNICIPAL MANAGER: NELSON MANDELA

BAY METROPOLITAN MUNICIPALITY

First Respondent

VICTOR MBULELO MANYATI

Second Respondent

TREVOR PRESTON LOUW

Third Respondent

NEVILLE RICHARD HIGGINS

Fourth Respondent

NELSON MANDELA BAY METROPOLITAN

MUNICIPALITY

Fifth Respondent

MEC FOR CO-OPERATIVE GOVERNANCE AND

TRADITIONAL AFFAIRS IN THE EASTERN CAPE Sixth Respondent

ELECTORAL COMMISSION OF SOUTH AFRICA Seventh Respondent

NOXOLO NQWAZI

Eighth Respondent

JUDGMENT

REVELAS J:

1. The applicant launched an urgent application in this court seeking orders to compel the municipal manager of the Nelson Mandela Bay Metropolitan Municipality, Ms Noxolo Nqwazi (cited as the first respondent in her official capacity, and as the eighth respondent in her personal capacity) to set a date for a by-election. The wards concerned are wards 35 and 37 of the fifth respondent (‘the municipality’). The application is premised on the applicant’s contention that the second, third and fourth respondent have lost their party membership and as a result, by virtue of the operation of sections 25(1)(d), 25(3) and 27 of the Municipal Structures Act, 117 of 1998 (‘the Structures Act’), their council seats have become vacant and in the case of the third and fourth respondents, left vacancies in the two ward referred to above.

2. Section 25(1)(d) of the Structures Act provides that a by-election “must be held if - … (d) a vacancy in a ward occurs” (emphasis added). Section 25(3) prescribes that the municipal manager of the municipality concerned, after consulting the Electoral Commission (cited in these proceedings as the seventh respondent) “must by notice in a local newspaper, call and set a date for the by-election which must be held within 90 days of the applicable date”

(emphasis added)

3. Section 27 of the Structures Act deals with councillors vacating their terms of office. In terms of section 27(d) of the Structures Act, a councillor vacates his office, during a term of office if that councillor was elected from a party list and ceases to be a member of the relevant party. The second respondent is a listed councillor. A ward councillor (such as the third and fourth respondents) vacates office if nominated by a party in a ward election and ceases to be a member of that party (section 27(f)(i)). The applicant contends that the council seats of the third and fourth respondents became vacant on 26 August and 7 September 2018 respectively, when their party membership came to an end. In respect of the second respondent, the applicant’s case is that his party membership was terminated when on the morning of 4 September 2018, the applicant notified the second respondent that his membership had been terminated with effect from 27 August 2018, when he attended a prohibited council meeting and announced his intention to resign from the applicant.

4. All three of these three councillors disputed the termination of their party membership and maintained that their council seats have not become vacant.

5. The first respondent’s refusal to set a date for a by-election was because, according to her, she was not convinced that the party membership of the second, third and fourth respondents was terminated lawfully, and in accordance with the applicant’s constitution. She insisted on prima facie proof that the party membership of the three councillors in question had been terminated in accordance with proper procedures. The applicant insisted that its notification to the municipal manager the party membership of the councillors concerned was sufficient proof and it was not obliged to provide any further documentation. When this impasse could not be resolved, the applicant brought the present application which included a prayer for a costs order against the eight

respondent (the municipal manager) in her personal capacity.

6. The first, fifth and eighth respondents opposed the application on the grounds that a municipal manager has a duty to satisfy himself or herself of the jurisdictional fact of a vacancy before declaring a seat vacant for purposes of a by-election and that party’s

say-so that a vacancy has occurred is insufficient for purposes of such a declaration.

7. The second, third and fourth respondents also opposed the application and filed a counter application wherein the second respondent seeks orders declaring the deponent of the founding affidavit Mr James Selfe in contempt of a court order of Huisamen AJ dated 20 September 2018[1] which declared that the second respondent’s “membership with the DA still subsists and will continue to subsist until his resignation, or until the conclusion of disciplinary proceedings against him, properly brought in compliance with the DA’s Constitution.”

8. The second, third and fourth respondents sought declaratory orders to the effect that:

1. Their membership with the applicant still subsists and will continue to subsist until there is compliance with the applicant’s

constitution, the country’s constitution and the law.

2. They remain councillors of the municipality until such time that there is a basis in law to declare their seats vacant.

9. The second, third and fourth respondents maintain that their membership with the application was not lawfully terminated, because the applicant had violated certain “elementary principles” such as their right to due process, procedural fairness, the right to enforce the terms and obligations of the applicant’s constitution, and their right to be heard.

10. The case for the third and fourth respondents has, however, been overtaken by events which occurred shortly before the present application was argued. Since the present application was launched, the first respondent has been suspended and a new acting municipal

manager, Mr Peter Nielson has been appointed in her place. Mr Nielson accepted that the third and fourth respondents’ party

membership with the applicant has been terminated, that their council seats have, as a result of the cessation of their membership become vacant and that a by-election must be held in terms of the Structures Act in respect of their wards. Both the third and fourth respondents attended caucus meetings in breach of the applicant’s strict instructions in this regard and expressed their intention to resign as members of the applicant. In terms of its constitution these were offences which entitled the applicant to terminate their membership. Neither of these two respondents made representations to the Federal Executive of the applicant, despite an invitation by Mr Selfe to do so. The procedure followed in respect of these two ward councillors was in terms of the applicant’s constitution.

11. With regard to the second respondent, Mr Nielson informed the seventh respondent that:

“I am mindful of my obligation to comply with the order of the High Court dated 20 September 2018.”

12. It is necessary to refer to the judgment of Huisamen AJ dated 20 September 2018 which contained the order referred to by Mr Nielson,

to the effect that the second respondent remained a member of the appllcant. This order followed an application brought by the

applicant which was heard on 13 September 2013 before Huisamen AJ concerning the proceedings of a council meeting which took place on 27 August 2018. The meeting was preceded by the following events:

13. After the 2016 elections a governing majority comprising of the applicant and several small parties were formed which remained in place with a precarious majority until 27 August 2018. At that point this majority coalition comprised 60 councillors. On that day (27 August 2018), a council meeting was held. On that day a motion of no confidence was brought against the speaker. Before the council meeting the applicant’s caucus resolved that all the applicant’s councillors (60) would vote against the motion against the speaker. The second respondent abstained in violation of the applicant’s caucus decision and as a result the motion was passed 59 to 60. Had the second respondent voted against the motion, there would have been 60 voters in favour and 60 against the motion and the speaker would have then been entitled to a casting vote which he would have used against the motion and the motion would not have been passed. The applicant’s governing coalition broke down as a result. The mayor and speaker who were both members of the applicant were replaced by UDM and ANC candidates. During the lunch hour of 27 August 2018, the applicant had summarily terminated the membership of the second respondent. The applicant then brought an application to set aside the proceedings and decisions taken at the meeting of 27 August 2018 and certain ancillary relief. The applicant argued in that matter that a vacancy of the second respondent’s council seat had occurred and therefore the meeting of 27 August was inquorate, and the decisions taken their were invalid. The second respondent, who was cited in that matter as the eighth

respondent, filed a counter-application seeking a declarator to the effect that his membership of the applicant subsisted and will

continue to exist until compliance with the applicant’s constitution has been performed, and also that he remained a councillor of the municipality. The matter was argued before Huisamen AJ who dismissed the application with costs and found for the second respondent and granted the relief sought in the counter-application.

14. After the motion was passed, the second respondent, in a much published exchange with a reporter, announced his decision not to vote for the applicant and that he was “leaving the DA”. According to the applicant, the second respondent had prima facie committed two acts, which in terms of its constitution, meant that he ceased to be a party member. On 29 August a panel of the applicant’s Federal Legal Committee (‘FLC’) determined that the second respondent’s membership of the

applicant had ceased on 28 August 2018 in accordance with its rules and its constitution. Later this error as to the date was corrected

to read the 27th of August 2018. The deponent to the founding affidavit, who was also the chairperson of the FLC then addressed a letter to the second respondent inviting him to make representations to the applicant’s federal executives within 24 hours. He made written representations on the 29th of August at 22h31 (after the deadline set in the letter inviting representations), accusing the applicant of not following a fair

procedure.

15. On 31 August 2018 the applicant’s Federal Executive (Fed-ex’) convened over the telephone and confirmed the FLC panel’s

determination. Only after this decision was taken, it transpired that the second respondent disputed his termination as party member and had in fact made the representations in question.

16. According to the applicant, “in order to ensure a fair process” the Fed-Ex reconvened on 4 September 2018 to reconsider its earlier decision confirming the second respondent's termination as a party member of the applicant and then reconfirmed their earlier decision they had taken without the second respondent’s representations.

17. Counsel for the applicant argued at length that it followed a fair procedure in terminating the party membership of the second, third and fourth respondents. Insofar as the third and fourth respondents are concerned, I would be in agreement that their membership was fairly and lawfully terminated by the applicant. However, insofar as the second respondent is concerned, I am of a different view that the orders pertaining to him in the judgment of Huisamen AJ preclude me from any judicial pronouncement regarding the procedures followed by the applicant in terminating the party membership of the second applicant.

18. It was argued on behalf of the applicant that Huisamen AJ was mostly concerned with the summary termination of the second respondent’s

membership which occurred “with effect from 28 August 2018” (the date that was corrected to read 27 August) and not with the subsequent procedural steps taken by the applicant, in terms whereof the second respondent was, according to the applicant indeed fairly dealt with and his party membership lawfully terminated. In particular, the events of 4 September 2018, it argued, were not considered by Huisamen AJ because it was not before him.

19. In a letter to the municipal manager dated 26 September 2018, and headed “ CESSATION OF MEMBERSHIP: V MANYATI (the second respondent) the applicant’s attorneys set out the applicant’ case thus:

“3.3 In his judgment, Huisamen AJ expressly did not address the validity of the process followed by the DA subsequent to 27 August 2018. This appears plainly from two parts of the judgment:

3.3.1 In paragraph 71, Huisamen AJ writes: Insofar as the DA’s own documentation seems to suggest that the termination of Manyati’s membership possibly only took place at a later date, following some belated notification to Manyati, the DA alliance partners are, in my view, bound to their defence raised in their papers, and persisted in before me which is that Manyati’s membership was lawfully terminated on 27 August 2018.” Huisamen AJ therefore did not consider the validity of this subsequent process. (Emphasis added)

3.3.2 In his order, Huisamen AJ again made it clear that Mr Manyathi’s membership may well have been validly terminated after 27 August 2018. The relevant parts of the order read:

(a) It is declared that Mr Mnyathi’s membership of the DA still subsists and will continue to subsist until his resignation, or until the conclusion of disciplinary proceedings against him, properly brought in compliance with the DA’s constitution;

(b) In the interim it is declared that Manyati remains a councilor of the third respondent.

3.4 The order clearly contemplates that if the DA lawfully removed Mr Manyati, his membership would cease. That in fact happened on 4 September 2018 before Huisamen AJ delivered his judgment, but the validity of that process was not before Huisamen AJ. Nonetheless, ‘disciplinary proceedings against him, properly brought in compliance with the DA’s constitution” have been finalised and Mr Manyati is no longer a member of the DA. (Emphasis added)

4. In the premises, there was compliance with our client’s Constitution as envisaged by the Order handed down by Huisamen AJ as envisaged in 2(a).

5. The notification to you by Mr Selfe, the Chairperson of the Federal Executive dated 4 September 2018 confirming the cessation of the membership of Mr Manyathi after following due process, is lawful and stands. It has not been challenged, and was not set aside by the order of Huisamen AJ.

6. Mr Manyathi is not a member of the Democratic Alliance and this has been confirmed to you. The vacancy was duly filled subsequently by the Independent Electoral Commission.

7. In the premises, until the cessation has been successfully reviewed by Mr Manyathi, the vacancy remains filled by Councillor Sokudela.”

20. As I understood the applicant’s argument, it contends that it had in fact complied with prescripts of the judgment of Huisamen AJ, and because the judgment does not specifically analyse the events of 4 September 2018 at which the federal executive of the applicant (‘Fed-Ex’) considered the second respondent’s representations and confirmed its earlier decision of 31 August 2018 (the confirmation of the determination of the FCL panel, by the Fed-Ex to terminate the second respondent’s party membership), I was at large to revisit them in the present application.

21. The assertion that Huisamen AJ left open the question of the validity of the procedures followed in respect of the second respondent’s

position in the party after 27 August 2018, requires some closer examination. In paragraph [25] of his judgment the learned judge

observed:

“The DA subsequently seems to have realised that their impromptu termination of Manyati’s membership during the lunch adjournment was premature.”

22. A substantial part of the application and counter-application before Huisamen AJ concerned the question regarding the termination of the second respondent’s party membership. The fact that the learned judge did not spell out the sequence of all procedures followed by the applicant in his judgment, does not mean it was not canvassed before him when the application and counter-application

were argued. Mr Mpofu, who acted on behalf of the second respondent in those proceedings, assured me that the arguments pertaining to whether the membership of the second respondent was validly terminated, and whether his council seat became vacant, were fully ventilated before Huisamen AJ.

23. In paragraph [26] of the judgment Huisamen AJ referred to the DA’s internal disciplinary documents which were before him and cited relevant extracts therefrom. The first was the letter of 29 August 2018, which the applicant addressed to the second respondent, inviting him to make representations within 24 hours as to why his membership had not ceased. Huisamen AJ also cited the FLC’s first determination of 31 August and referred to the fact that the cessation of the second respondent’s membership was confirmed in a letter from the applicant’s attorney to the second respondent’s attorneys. Reference was also made to the service on the second respondent of the applicant’s decision that his membership had been terminated and the invitation to him to make representations on within 24 hours. So, Huisamen AJ was aware of the events subsequent to 27 August 2018 in so far as the disciplinary proceedings against the second respondent were concerned. However, the learned judge did not refer specifically to the events of the 4 September in his judgment. It is hardly surprising that Huisamen AJ mostly focused on the events of 27 August 2018, since the main relief sought before Huisamen AJ was aimed at setting aside all the proceedings and decisions of 27 August 2018, that resulted in the breakdown of the applicant on that day.

24. Paragraph [71] of the judgment, which the applicant cited in its letter to the eighth respondent above, must not be read in isolation.

25. In paragraph [31] of Huisamen AJ’s judgment, the following paragraphs were cited – with apparent approval – from the heads of argument presented by Mr Mpofu, counsel for the second respondent in the present application and in the matter before Huisamen AJ):

26. “Manyati [the second respondent] was summarily dismissed without a proper process being followed or any charges being put to him;

As opposed to being heard, he was simply informed of the decision rather than being heard prior to the decision being made;

He was subjected to numerous subsequent cessations of his membership that purported to sanitise a process that was marred with irregularity.” (Emphasis added).

27. The proceedings of 4 September 2018 were certainly included in the reference to “the numerous cessations purporting to sanitise” a flawed process, and also subsequent notification to the second respondent that his party membership ceased to exist “with effect from 27 August 2018”, after the second respondent’s positions decided upon once more.

28. If indeed Huisamen AJ concluded that he can have no regard to the proceedings after 27 August 2018 until 4 September 2018 on the papers before him, and that they should be determined by another court, he would have spelt that out. Alternatively, he would have given an unequivocal indication to that effect.

29. The aforementioned the citation in Huisamen AJ’s judgment, that “numerous cessations of his membership that purported to sanitise a process that was marred with irregularity” suggests that the learned judge was not satisfied that the proceedings followed after 27 August 2018 had “cured” the flaws in the procedures of that day.

30. The meaning of paragraph [71] is not consistent with the applicant’s interpretation thereof if one reads the whole judgment. The language of the relevant order sought be relied on by applicant, is plain and clear. It states that the second respondent’s

membership of the applicant “still subsists and will continue to subsist until his resignation, or until the conclusion of disciplinary proceedings properly in compliance with the DA’s constitution.” (Emphasis added)

31. The order contemplates either of two events which may take place on a future date. The second respondent’s resignation or disciplinary proceedings aimed the termination of his membership. It does not refer to events such as the hasty reconvention of meetings, correction of notification letters,

and the repetition of the same decisions which all predate the order in question.

32. The applicant’s assertions about what the learned judge “expressly found” and what he did not find is not open to scrutiny by this court. Instead of bringing the present application, there were other remedies open to the applicant. Firstly, it could have sought clarification from Huisamen AJ regarding the order in question, particularly in the light of what is stated paragraph [71] of his judgment. Alternatively, and depending on the outcome of a request for clarification, it could have pursued an appeal of the judgment, if necessary. Lastly the applicant could have instituted proper proceedings against the second respondent afresh, and in terms of its constitution.

33. For all the considerations set out above I conclude that there is no merit in the present application in so far as the second respondent

is concerned. The application should succeed in respect of the two vacant council seats left by the deposed third and fourth respondents.

The Second, Third and Fourth Respondents’ Counter Application:

34. Mr Mpofu, who acted for these three respondents very properly conceded that the declarator sought by the second respondent, and in particular, to place Mr Selfe in contempt of court and have him suspended incarcerated and pay a fine, was not urgent and the relief sought in that regard was wisely abandoned. The other orders sought in the counter-application were persisted in.

35. Given my approach to the matter, it is not necessary to make any declaratory order with regard to the second respondent’s party membership. There are reasonable grounds to find that the termination of the second respondent’s party membership was substantively fair, because his conduct was inconsistent with kind what can be expected from a party member by his peers in any political party. He had after all sabotaged his own party to the extent that it lost its majority applicant. However, the procedural fairness of the termination of the second respondent’s party membership was found to be wanting by Huisamen AJ and he was reinstated. There is no need for this court to confirm the orders of Huisamen AJ in respect of the second respondent.

36. The termination of third and fourth respondent’s party membership by the applicant was finally accepted by the new municipal manager who must comply with the Structures Act and set a date for a by-election in consultation with the IEC. The opposition to the present application by the first, third, fourth, fifth and eighth respondents and the counter-application in respect of the third and fourth respondents was without merit.

Costs:

37. In circumstances where all the parties were partially successful and partially unsuccessful, it would only be fair that each party pay its own costs.

Order:

38. In the circumstances, and for the reasons outlined above, the following order is made:

1. The application for orders directing the first respondent to inform the chief electoral officer of the seventh respondent that the council seat previously held by the second respondent has become vacant, and directing that the officer in question make the necessary written declaration with regard thereto, is dismissed.

2. The first respondent or the present incumbent in the post of municipal manager is to call and set a date for a by-election for the fifth respondent’s wards 35 and 37 within 14 days of this order in terms of section 25(3)(d) of the Municipal Structure Act as a result of the vacant council seats left by the valid termination of the third and fourth respondents’ membership of the applicant, and such a date may not be later than 90 days after the date of this order.

3. The counterclaim brought by the second, third and fourth respondents is dismissed.

4. Each party is to pay its own costs.

E REVELAS

Judge of the High Court

Appearances:

For the Applicant: Adv A Stein, Adv B Ndamase and Adv P Olivier instructed by Minde Schapiro & Smith, Port Elizabeth

For the First, Fifth and Eighth Respondents: Adv J Mitchell, Adv T Ngcukaitobi and Adv T Ramogale instructed by Goldberg & De Villiers Inc., Port Elizabeth

For the Second, Third and Fourth Respondents: Adv D Mpofu SC and Adv Y Peer instructed by Mabuza Attorneys, c/o Besters Attorneys, Port Elizabeth

Date heard: 28 November 2018

Date delivered: 11 December 2018

[1] Case No: 2023/2018.