Federal Congress (Fedcon) and Others v Ngwenya and Others (2283/09) [2009] ZAKZPHC 46 (21 September 2009)

Federal Congress (Fedcon) and Others v Ngwenya and Others (2283/09) [2009] ZAKZPHC 46 (21 September 2009)

The court found that the expulsions of the applicants from the party were not effected by the constitutionally mandated disciplinary structures, as required by the party constitution. The disciplinary committees were not properly constituted, and no proper procedure was followed. The applicants were not given notice of disciplinary hearings, nor afforded an opportunity to be heard. The letters of expulsion were irregular and not issued by the proper authorities. Consequently, the purported expulsions and the replacement of councillors were unlawful and invalid. The applicants are entitled to reinstatement as councillors, and the relevant municipalities are directed to recognise their...

Citation
[2009] ZAKZPHC 46
Parties
Applicant: The Federal Congress (Fedcon); Applicant: Matthew Shunmugam; Applicant: Gijimani Alfred Mncube; Applicant: Thembesile Mary Margaret Phiri; Respondent: Louis Mbeki Ngwenya; Respondent: Cyprian Zipho Ngobese; Respondent: Nhlanhla Mthabela; Respondent: Phakamani Mchunu; Respondent: The Electoral Commission of South Africa; Respondent: Chief Electoral Officer; Respondent: Newcastle Municipality; Respondent: The Municipal Manager, Newcastle; Respondent: Amajuba District Municipality; Respondent: The Member of the Executive Council of KwaZulu-Natal; Respondent: Bhekilanga Alison Dlamini
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
21 September 2009
Case Number
2283/09
Procedural Posture
Urgent Application / Judgment Delivered After Hearing on 15 June 2009
Outcome
Application granted. Expulsions and replacements set aside. Applicants reinstated as councillors. Costs awarded against specified respondents.
Judges
Madondo
Legal Topics
Municipal Structures Act, Disciplinary Procedure, Expulsion of Councillors, Party Political Rights, Procedural Fairness
Administrative Law Civil Procedure Municipal Structures Act Disciplinary Procedure Expulsion of Councillors Party Political Rights Procedural Fairness

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Parties

The Federal Congress (Fedcon)

Applicant

Matthew Shunmugam

Applicant

Gijimani Alfred Mncube

Applicant

Thembesile Mary Margaret Phiri

Applicant

Louis Mbeki Ngwenya

Respondent

Cyprian Zipho Ngobese

Respondent

Nhlanhla Mthabela

Respondent

Phakamani Mchunu

Respondent

The Electoral Commission of South Africa

Respondent

Chief Electoral Officer

Respondent

Newcastle Municipality

Respondent

The Municipal Manager, Newcastle

Respondent

Amajuba District Municipality

Respondent

The Member of the Executive Council of KwaZulu-Natal

Respondent

Bhekilanga Alison Dlamini

Respondent

Procedural Posture

Urgent Application / Judgment Delivered After Hearing on 15 June 2009

Legal Issues

  1. 1 Whether the expulsions of the applicants from the party were effected by constitutionally empowered structures.
  2. 2 Whether the disciplinary structures were properly constituted at the time of expulsion.
  3. 3 Whether proper procedure was followed in the purported expulsions.

Ratio Decidendi

The court found that the expulsions of the applicants from the party were not effected by the constitutionally mandated disciplinary structures, as required by the party constitution. The disciplinary committees were not properly constituted, and no proper procedure was followed. The applicants were not given notice of disciplinary hearings, nor afforded an opportunity to be heard. The letters of expulsion were irregular and not issued by the proper authorities. Consequently, the purported expulsions and the replacement of councillors were unlawful and invalid. The applicants are entitled to reinstatement as councillors, and the relevant municipalities are directed to recognise their...

Court Disposition

Application granted. Expulsions and replacements set aside. Applicants reinstated as councillors. Costs awarded against specified respondents.

Orders

  • The Second and Third Applicants' purported expulsion from the First Applicant is set aside; they are declared to have remained as councillors of the Seventh Respondent's Council.
  • The Fourth Applicant's purported expulsion from the First Applicant is set aside; she is declared to have remained as a councillor of the Ninth Respondent's Council.