Shunmugam and Others v National Democratic Convention (073/08) [2008] ZASCA 165; [2009] 2 All SA 285 (SCA) (1 December 2008)

Shunmugam and Others v National Democratic Convention (073/08) [2008] ZASCA 165; [2009] 2 All SA 285 (SCA) (1 December 2008)

The Supreme Court of Appeal held that the appellants had not been lawfully expelled from NADECO and thus remained members of the party and municipal councillors during the floor crossing window. The interim order of 31 August 2007 did not deprive them of their party membership or prohibit them from crossing the floor. NADECO's reliance on the Oudekraal principle was misplaced, as the present case involved a direct attack on the legality of the expulsions, not the validity of a subsequent administrative act. The court found that the appellants were entitled to exercise their constitutional right to cross the floor, and the orders of the court a quo in case 7680/07 were set aside....

Citation
[2008] ZASCA 165
Parties
Appellant: Matthew Shunmugam; Appellant: Gijimani Alfred Mncube; Appellant: Chuan-Yi Liu; Appellant: Thenjiwe Veronica Buthelezi; Appellant: Thembisile Mary-Margaret Phiri; Appellant: Bhekumndeni Alec Thusi; Appellant: Innocent Mhlabunzima Miya; Appellant: Thandi Rosemary Ndlovu; Appellant: Bhekinkosi Derrick; Appellant: Jotham Themba Simelane; Appellant: Tobias Seze Gumede; Appellant: Senzo Richard Shwala; Appellant: Handsome Thokozani; Appellant: Thandazani Cyprian Njoko; Appellant: Dumisile Helmah Xaba; Appellant: Mbongeni Bhekumthetho Myeni; Appellant: Dhavandran Krishnasamy Palavar; Appellant: Mbongeni Jeremiah Sibiya; Appellant: Inkatha Freedom Party; Respondent: National Democratic Convention
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 December 2008
Case Number
073/08
Procedural Posture
Civil Appeal / Appeal From High Court, Natal
Outcome
Appeal in case 6883/07 dismissed; appeal in case 7680/07 upheld; orders of court a quo set aside and replaced with declaratory relief for appellants.
Judges
Harms, Streicher, Combrinck, Leach, Mhlantla
Legal Topics
Floor Crossing, Party Membership Expulsion, Municipal Councillor Rights, Schedule 6b Interpretation
Constitutional Law Civil Procedure Floor Crossing Party Membership Expulsion Municipal Councillor Rights Schedule 6b Interpretation

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 3 Party arguments 2
Sign in to unlock

Parties

Matthew Shunmugam

Appellant

Gijimani Alfred Mncube

Appellant

Chuan-Yi Liu

Appellant

Thenjiwe Veronica Buthelezi

Appellant

Thembisile Mary-Margaret Phiri

Appellant

Bhekumndeni Alec Thusi

Appellant

Innocent Mhlabunzima Miya

Appellant

Thandi Rosemary Ndlovu

Appellant

Bhekinkosi Derrick

Appellant

Jotham Themba Simelane

Appellant

Tobias Seze Gumede

Appellant

Senzo Richard Shwala

Appellant

Handsome Thokozani

Appellant

Thandazani Cyprian Njoko

Appellant

Dumisile Helmah Xaba

Appellant

Mbongeni Bhekumthetho Myeni

Appellant

Dhavandran Krishnasamy Palavar

Appellant

Mbongeni Jeremiah Sibiya

Appellant

Inkatha Freedom Party

Appellant

National Democratic Convention

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court, Natal

Legal Issues

  1. 1 Whether the appellants were lawfully expelled from NADECO prior to the floor crossing window period.
  2. 2 Whether the interim court order of 31 August 2007 prevented the appellants from crossing the floor.
  3. 3 Whether the appellants retained their rights as councillors and party members during the relevant period.

Ratio Decidendi

The Supreme Court of Appeal held that the appellants had not been lawfully expelled from NADECO and thus remained members of the party and municipal councillors during the floor crossing window. The interim order of 31 August 2007 did not deprive them of their party membership or prohibit them from crossing the floor. NADECO's reliance on the Oudekraal principle was misplaced, as the present case involved a direct attack on the legality of the expulsions, not the validity of a subsequent administrative act. The court found that the appellants were entitled to exercise their constitutional right to cross the floor, and the orders of the court a quo in case 7680/07 were set aside....

Court Disposition

Appeal in case 6883/07 dismissed; appeal in case 7680/07 upheld; orders of court a quo set aside and replaced with declaratory relief for appellants.

Orders

  • The application in case 7680/07 is dismissed with costs.
  • The counter application is upheld with costs.