Pheko v Speaker of the National Assembly and Another (10575/2007) [2007] ZAWCHC 80 (16 August 2007)

Pheko v Speaker of the National Assembly and Another (10575/2007) [2007] ZAWCHC 80 (16 August 2007)

The court found that the second respondent failed to discharge the onus of proving that the applicant had waived his right to an internal appeal. The applicant's conduct did not amount to an unequivocal abandonment of the right to appeal, but rather reflected his view that exceptional circumstances justified judicial intervention. The court held that the NEC retained a residual discretion to hear an appeal lodged out of time, and that the mere expiry of the prescribed period did not extinguish the right to appeal. On the balance of convenience, the court determined that the harm to the applicant if replaced before his appeal was heard would be irreparable, whereas the inconvenience to the...

Citation
[2007] ZAWCHC 80
Parties
Applicant: Salzwedel Ernest Motosoko Pheko; Respondent: Speaker of the National Assembly; Respondent: Pan Africanist Congress of Azania
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
16 August 2007
Case Number
10575/2007
Procedural Posture
Urgent Application / Interim Interdict Pending Internal Appeal
Outcome
Interim interdict granted pending the outcome of the applicant's internal appeal.
Judges
Davis
Legal Topics
Internal Remedies Exhaustion, Interim Interdict, Waiver of Rights, Balance of Convenience, Party Membership Expulsion
Administrative Law Civil Procedure Internal Remedies Exhaustion Interim Interdict Waiver of Rights Balance of Convenience Party Membership Expulsion

Case Brief

Summary, issues, holding and outcome

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Parties

Salzwedel Ernest Motosoko Pheko

Applicant

Speaker of the National Assembly

Respondent

Pan Africanist Congress of Azania

Respondent

Procedural Posture

Urgent Application / Interim Interdict Pending Internal Appeal

Legal Issues

  1. 1 Whether the applicant waived his right to an internal appeal within the party structures.
  2. 2 Whether the applicant's internal appeal was lodged out of time and if the NEC retains discretion to hear it.
  3. 3 Whether interim relief preventing the replacement of the applicant in the National Assembly is justified on the balance of convenience.

Ratio Decidendi

The court found that the second respondent failed to discharge the onus of proving that the applicant had waived his right to an internal appeal. The applicant's conduct did not amount to an unequivocal abandonment of the right to appeal, but rather reflected his view that exceptional circumstances justified judicial intervention. The court held that the NEC retained a residual discretion to hear an appeal lodged out of time, and that the mere expiry of the prescribed period did not extinguish the right to appeal. On the balance of convenience, the court determined that the harm to the applicant if replaced before his appeal was heard would be irreparable, whereas the inconvenience to the...

Court Disposition

Interim interdict granted pending the outcome of the applicant's internal appeal.

Orders

  • First respondent is interdicted from swearing in any person to fill the seat in the National Assembly held by applicant.
  • Second respondent is interdicted from taking any steps to replace applicant in the National Assembly.