IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

In the matter between:

And
THE SPEAKER OF THE NATIONAL 

 PAN AFRICANIST CONGRESS OF 
AZANIA	Second Respondent

JUDGMENT

DAVIS, J

Introduction

[2] He did not attend a disciplinary hearing which took place on 20 June 2007. In his absence he was found guilty and a sanction of expulsion was imposed. This decision was confirmed by the National Executive Committee ("NEC") of second respondent on 30 June 2007 and it was communicated to applicant on 2 July 2007.

[4]    It   appears   that,   at   second   respondent's   National Congress held  in October 2006, some  17 of the 24 members of the NEC had not been elected.    At the Congress  the   delegates,   after  electing   seven   office
bearers, resolved that the rest of the members of the NEC be selected from a list of 133 candidates by the president.   There were also other procedural objections which have been raised by applicant against the decision of the NDC and the subsequent ratification by the NEC.

"The fact is, the National Executive Committee members believed that that Committee was properly constituted and there had been no direct judicial challenge of the constitution of the Committee. The collateral challenge by the applicant in these proceedings should, in my view, not be permitted".

"I  get the  impression that most,  if not all, the
procedural   objections   are   afterthoughts. The
applicant should have raised them before or at the
disciplinary hearing.    He chose not to attend the
hearing.     In   my  view,   none  of the  procedural
shortcomings,   indeed   there   are   shortcomings,
resulted in an unfair hearing or an unfair result".

[7] On 31 July 2007, that is before the judgment was handed down, applicant's attorney caused an email to be sent to both first respondent and second respondent. In this email applicant's attorney gave notice of an internal appeal which was to be lodged against the decision of the NDC and accordingly requested second respondent not to replace the applicant pending the outcome of both the judgment and the internal appeal (if that was necessary). This request was refused in a letter on 2 August 2007 which was generated from second respondent's attorney.

[8]    On 2 August 2007, second respondent's Chief Whip, Mr Lekotse, wrote to first respondent as follows:
"Our previous correspondence regarding the dismissal of Dr S E M Pheko as a PAC member has a reference. We now wish to advise your good offices that  Mrs Thembeka  Jali will  replace  Dr Pheko   [the   fax   is   indistinct]   as   an   MP   with immediate effect. We herein also attach a revised
			candidates' list for your easy reference".
To this, first respondent replied:
"I acknowledge receipt of your letter of 2 August 2007  in  which   you   informed   me  of the   PAC's intention to replace Dr S E M Pheko as its member of the National Assembly.  I wish to inform you that I have not been formally informed of Dr Pheko's dismissal from the PAC.    The PAC's request to replace Dr Pheko can therefore not be given effect to until such time that I have been informed of his dismissal from the PAC.   The review of your party list has been processed".

[9] It appears that some time during these proceedings, applicant appointed another attorney who then submitted grounds of appeal to second respondent. Requests were also made to second respondent to provide an undertaking not to replace applicant pending the outcome of the appeal. When this undertaking was not given, the present application was launched on 5 August 2007, to be heard on 6 August 2007. On 6 August 2007, the matter   was   postponed   to   13   August   2007.   Legal representatives of the parties agreed on a timetable for the filing of answering and replying affidavits and it was also agreed that no action would be taken pursuant to the replacement of applicant.

Second respondent's arguments

and the strength thereof on appeal to any internal organ of second respondent. It concerns the questions of whether this kind of interim relief is justifiable on the facts.

[11] Second respondent has contended that no relief is competent notwithstanding the apparent justification for such relief on the basis that the balance of convenience would dictate that this kind of interim relief should generally be granted.

[12]   I turn, therefore, to deal with the two issues raised by second respondent; waiver and lodgement of the appeal.

Waiver

"11.2.1      That the incumbent National Executive Committee has not been constitutionally elected and therefore lacks legitimacy. It does not have the powers to appoint the National Disciplinary Committee.

[15] In this case it appears as if the argument concerning exceptional circumstances may have been employed, that is that the central argument of applicant was that although there was a duty to exhaust internal remedies, that duty could be disregarded by a court in the case where there were exceptional circumstances. Section 7 of the Promotion of Administrative Justice Act (PAJA) which sets out a procedure for review provides that "a court may not hear an application for review unless any internal remedy provided for in any other law has first been exhausted (section 7(2)(a). Where a court in an application for review is of the view that such remedies have not been exhausted, it must instruct the parties to first exhaust such remedies. However, in terms of section 7(2)(c) in exceptional circumstances a court may, on application, exempt a person from the duty to first exhaust internal remedies if the court...deems it in the interests of justice".

[17] Clearly, the principle of exhausting internal remedies is important because it exists to ensure that organisations such as second respondent are able to operate without undue influence by a court. Indeed, I should say that there is a problem in courts having to deal with political questions of this kind.   When a relationship between a member of a political party and a political party, has become fraught it appears that the court becomes the
last desperate refuge in such cases.   A court should be reluctant to interfere in what are essentially political questions.    For this reason, the internal remedy route plays a vital role.

[19]   I should make one further remark that none of these questions are expressly dealt with in the judgment in the WLD, making matters more difficult for this Court. There is however no other reasonable inference which I can draw from the papers which have been placed before me.

Appeal out of time

[22] Secondly, in terms of clause 20.3 in limited cases where the NEC regarded the matter as of national significance, a person aggrieved by the final decision of the NEC should have a right of appeal to the National Congress or annual conference. Such an appeal shall be in writing and not later than a month from the date on which the decision of the appeal case was known.

[23]  The 14 day period referred to in clause 26.1 expired on 4 July 2007 and the one month period referred to in clause 26.4 expired on 2 August 2007. Therefore it is clear that the appeal of the applicant is out of time; that is out of the 14 day period but within the one month period.   The

concerned external legal representation and a rule which provided that a student may conduct his or her own defence or may be assisted by any student or member of staff   of   the   technikon.      Such   representative   shall voluntarily accept the task of representing the student.  If the    student    is    not    present   the   committee    may nonetheless hear the case, make a finding and impose a punishment.

 

"But if the correct point of departure of interpreting
the rule is that constitutionally the rule requires the
flexibility to which I have referred...the absence of
any express provision of the rules conferring the
discretion does not matter.   The question is rather
whether there is sufficient indication in the rules
that any such residual discretion on the part of the
IDC was intended to be excluded.   The answer, in
my opinion,  is that it is not.    The fact that a
student's entitlement to representation has been
qualified to  achieve the  purpose  referred to  in
paragraph 19 is not of itself a sufficiently strong
indication of an intention to exclude a residual
discretion to allow representation of a different kind
in appropriate circumstances", (at paras 19-20)

[27] The point that needs to be made, however, that this is an application for interim relief. Second respondent can convene an appeal body and, provided it follows the rules of natural justice, it may well find that the applicant's defence notwithstanding, he stands to be dismissed. By contrast, if applicant succeeds and he has already been replaced as a member of Parliament, any success which he might have enjoyed at the appeal would be completely illusionary.

[28]  With all the jurisprudential fireworks that lit up the court when the arguments were presented, the key question remains that of the balance of convenience.   This point raised in the founding affidavit was unfortunately never argued before me; yet it is a point that seems to be definitive in cases of this nature.

[29]   In short, in the founding affidavit applicant states:
"I stand  to  suffer severe  inconvenience  if this application    is    not granted and I prevail subsequently in the appeal for the NDC.   Neither the first nor the second respondent will suffer any inconvenience if the swearing in of my successor is postponed. I    am    willing    to    agree    to    an extraordinarily expedited appeal procedure in order to  minimise any inconvenience that the  second respondent may claim". 
Whilst I would disagree that the second respondent will not suffer any inconvenience if the swearing in of the successor is  postponed,  when  the  Court weighs the inconvenience of convening an appeal body compared to the   impossibility  of  applicant  being   reinstated   as  a member of Parliament, were he to win the appeal, then it is clear that this question has to be cardinal to the evaluation of the competiting arguments.
[30]   For these  reasons,  therefore,  the following  order is made:

11	First respondent be interdicted from swearing in any person to fill the seat in the National Assembly held by applicant;
12	second respondent be interdicted from taking any steps to replace applicant in the National Assembly;
13	declaring that the seat of applicant in the National Assembly is not vacant.

							

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