IN THE HIGH COURT OF SOUTH AFRICA 
(CAPE PROVINCIAL DIVISION)

CASE NO:14963/2007
In the matter between:

STEYN AJ
THE APPLICATION
1. This application for revfew relief was brought on an urgent basis in October 2007. On 25 October 2007 the matter was postponed to 7 April 2008 by agreement between Applicant and First Respondent. As far as it may be necessary the relief requested by Applicant, for condonation of non-compliance with the Rules of Court regarding time periods, forms and service requirements, is granted.
2. The parties to the Application appear in the heading. Applicant requests that the costs of the Application be paid by the First Respondent, the Independent Democrats and any of the other Respondents who oppose the Application. The Application was opposed by the First Respondent. A notice was filed by Third Respondent abiding by the decision of this Court. There is no opposition to the Application from the Second and Fourth Respondents.
3. The application deals mainly with the aspect of whether the Applicant has a right to retain his seat as a councillor on the Council of the Eden District Municipality.

4. The review relief seeks to set aside decisions taken by the Second Respondent, the Municipal Manager of the Eden District Municipality (the Municipality') on or about 17 September 2007, to report to the Third Respondent, the Independent Electoral Commission, ('the I EC) that Applicant had vacated his seat on the Council of the Municipality, and the decision of the IEC to declare the Applicant's fEoor-crossing notification 'non compliant', as well as the subsequent decisions to declare the Applicants seat to be vacant and to fill it with the Fourth Respondent
5. Declaratory relief is sought confirming that Plaintiffs floor-crossing notification was properly filed and that it had the effect in law that he retained his seat on the council as an Eden Forum (EF'J councillor.
6. It is furthermore requested that the Court should direct the IEC to process and give effect to Applicant's floor-crossing notification.

BACKGROUND.

THE LAW
7. In June 2002 the South African Parliament passed four statutes aimed at allowing members of the national, provincial and local legislatures to change their party allegiances without losing their seats.
8. The contentious so-called floor-crossing statutes were challenged in the Courts. In a landmark ruling in October 2002, the Constitutional Court upbetd the legislation passed by Parliament on floor-crossing. Thus the go-ahead was given to politicians to cross the floor and join another party without losing their seats.

THE FACTS
10. The Applicant was formerly elected as one of two 'proportional representation" councilors, to represent the First Respondent, the Independent Democrats, ('the ID') in the Municipality Council

14. The Applicant completed a pro-forma notice in order to cross the floor from the ID to the EF. He was assisted by a Ms Block, an official of the IEC.

15.	According to the Applicant Ms Slock 'accepted' the notice after completion thereof Applicant assumed that Ms Block was authorised to receive floor-crossing forms on behalf of the IEC. Applicant alleges that Ms Slock indicated to him that she would fax the original notice to the lEC's national offices situate in Pretoria.
16. At 17h05, later on the same day, Applicant faxed a copy of the floor-crossing notification to the lEC's national offices in Pretoria.
17. Applicant states in his Replying Affidavit that his decision to fax the notice to the I EC's national office later in the day, was an extra precautionary action. He was of the view that the floor-crossing procedure had been completed at the lEC's offices in George.

19. It is common cause that the floor-crossing notification of Applicant was received at the lEC's national office in Pretoria at 17h05 on 14 September 2007. According to an e-mail notification from Mr. M Hendrickse, a Senior Manager of the IEC in Pretoria, addressed to the attorney representing the First Respondent in this matter, no notices from Applicant were received prior to that time. Mr. Hendrickse states furthermore that Ms Block denied that she had agreed to fax the Applicant's notice to the Chief Electoral Officer at the Pretoria office. According to her she had advised the Applicant to send the notification from his own office. This is, of course, hearsay evidence. The version of Applicant regarding 'acceptance' of his notification and the transmission thereof by Ms Stock is disputed by the First Respondent.
20. It is common cause that on Sunday 16 September 2007 a facsimile, dated 14 September 2007, was transmitted to the Applicant by the same Mr. Hendrickse, acknowledging receipt by the IEC of his floor-crossing notification.
LOSS OF MEMBERSHIP
21. In terms of Schedule 68 to the Constitution of the Republic of South Africa, Act 10S of 1996, a councillor not representing a ward in a Municipal Council, ceases to be a member of that council if that councillor, other than in accordance with item 2, 3, or 7, ceases to be a member of the party which nominated that councillor as a candidate in the ward election. (Item1(2)(a))
22. Item 2 provides that, subject to item 4, a so-called list councillor' such as the Applicant, remains a councillor if he ceases, during the floor-crossing period, to be a member of the party that nominated him, subject to certain conditions.

26. Applicant eventually conceded that his letter of resignation, which he alleges was sent as a courtesy gesture to the Leader of the ID, was actually transmitted a few minutes before his floor-crossing notification to the IEC.
27. It therefore has to be established whether the Applicant's resignation letter, addressed to the Leader of the ID, constituted his formal resignation, which would have the effect of stripping him of his seat on the Municipality Council.

'1.5.1 He/She resigns in writing or verbally, addressed to the SEC or any structure of the Party.'
29. There is no indication or allegation that Applicant ever resigned verbally. Clause 23 of the ID Constitution provides that the Branch Executive Committee is referred to as the BEC. The letter was not addressed to the BEC.
30. The Structures of the party are referred to and defined in pars 20 to 70 of the ID Constitution. It is not indicated anywhere that the Leader of the Party is recognised as a structure of the Party.

33. The resignation letter was therefore not formally or legally effective when the Applicant submitted his floor-crossing form to the IEC. Hence the resignation letter forwarded to the ID's Leader, did not strip the Applicant of his seat as provided for En Item 1 of Schedule 6B to the Constitution.
34. It is common cause that the IEC received the floor-crossing notification just after 17h00 on 14 September 2007. Floor-crossing occurs when the notification is handed to the iEC (Item 4(2) of Schedule 6B to the Constitution).

35 Applicant accordingly crossed the floor before he formally, effectively or legally terminated his membership of the ID in terms of the provisions of the ID Constitution. There is no indication or allegation that any letter of resignation of the Applicant was ever addressed or received by the BEC or a structure of the party, as required by the ID Constitution.

REVIEW RELIEF DISCRETIONARY
36. It is trite law that review relief is discretionary. It was submitted on behalf of First Respondent that the Court should refuse the relief claimed by Applicant based on an exercise of this residual discretionary power, in view of certain circumstances. The Courts will generally not lightly deprive an Applicant of relief. In this particular case I am not convinced that the objections and inconveniences raised by the ID to the granting of an order are justified or that the Court should exercise a discretion not favoring the Applicant.

38. In view of the concerns raised that the relief sought by Applicant may have deleterious consequences for the Municipality, the Applicant has indicated that he only seeks to be reinstated with prospective effect. He accepts that he only has a claim to his seat on the Municipality from the date on which this Court grants him relief. This tailored relief is justified in terms of section 172(1) of the Constitution of the Republic of South Africa, in which the Court is specifically empowered to grant an order limiting the retrospective effect of the declaration of invalidity.
39. The Court does not accept, as submitted by the First Respondent, that section 93 B of the Strictures Act has the effect of ousting this Court's power to grant the Applicant the retief he requests. A Court should be slow to find that its power to declare an action unlawful has been ousted. Section 93 B deaEs with the prescribed time periods for publication of the results of floor-crossing on Municipal Councils. I agree with Mr. BorgstronVs contention that the prescribed time period of seven days, within which the floor-crossing results must be published, was inserted to ensure that the IEC acted swiftly and to give parties a remedy if the IEC faiEed to act with due haste. It cannot be intended to oust this Courts jurisdiction after the seven days have elapsed.

DELAY TO LAUNCH
40. The ID argues that the Applicant should be unsuited due to his failure to launch an application for a period of a month after the date on which he became aware of the decisions now under review. It is suggested that this is an unreasonable delay in terms of section 7(1) of PAJA.

APPLICANTS MOTIVATIONS

JURISDICTION
43. It was argued on behalf of the First Respondent that this Court does not have the necessary jurisdiction to hear the matter, as the decisions taken by the IEC were taken in Pretoria and that the proceedings should have been launched there.
44. Section 19(1) (a) of the Supreme Court Act sets out the persons over whom and matters in relation to which provincial and local divisions have jurisdiction. It provides that a provincial or local division shall have jurisdiction over all persons residing in or being in and in relation to all causes arising and all offences triable within its area of jurisdiction and all other matters of which it may according to law take cognisance.
45. In terms of the provisions of Section 19(1) (b) of the Supreme Court Act the provincial or local division shall also have jurisdiction over any person residing outside its area of jurisdiction, who is joined as a party to any cause in relation to which such provincial or local division has jurisdiction.

47. The person affected by the decisions, the Applicant resides in the area of jurisdiction of this Court and the effects of the decisions under review are experienced in the area of jurisdiction of this Court.

REVIEW RELIEF AGAINST THE MUNICIPAL MANAGER AND THE IEC

49. On behalf of Applicant it has been argued that if these propositions are not incorrect it would mean that Applicant was removed and replaced without any decision being taken and he would be left without remedy.
50. I agree with Mr. Borgstrdm's argument on behalf of Applicant that the decisions and actions taken by the Municipal Manager and the IEC were based on erroneous assumptions of fact and law, namely that Applicant had resigned before crossing the floor. The resignation, flawed as it was, is a fact which should have been ignored by the IEC. In the circumstances the actions of the Municipal Manager and the IEC fall to be set aside in terms of the provisions of section 6(2) of PAJA.

RELIEF AGAINST THE IEC

52 In terms of section 8(1)(c)(ii)(aa) of PAJA the court is authorised to 'substitute or vary' the lEC's decisions or to correct a defect resulting from such a decision.

10% REQUIREMENT

55. The Applicant was one of two councillors representing the ID in the Council. He constituted 50% of the IDs representation by himself He accordingly does not fall foul of the 10% requirement.

THE REGISTRATION OF THE EF

ORDER

57.    I accordingly find that Applicant is entitled to the relief he seeks and an order is granted as follows:
1.	The decision of and action taken by Second Respondent, (the Municipal Manager) on or about 17 September 2007, to report to Third Respondent, (the IEC) that the Applicant had vacated his seat on the Council of the Eden District Municipality (the Municipality) is corrected and set aside;
2.	The decision of and action taken by Third Respondent (the IEC), taken on or about 20 September 2007, to declare as 'non-compliant' a floor-crossing notification which the Applicant had transmitted to it on 14 September 2007, in terms of which he gave notice that he had changed membership from the First Respondent (the ID) and joined the Eden Forum (the EF) is corrected and set aside and it is found that the notification was duly and properly filed in accordance with all the requirements of item 4(2) read with item 2 of schedule 6B to the Constitution of the Republic of South Africa, 1996;
3.	The decision of the IEC taken on or about 21 September 2007 to declare the seat held by the Applicant on the Municipality's Council to be vacant, is set aside;
4.	The decision of the IEC taken on or about 21 September 2007 to fill the seat held by the Applicant on the Municipality's Council, with Fourth Respondent is set aside;
5.	It is ordered that Applicant validly became a member of the EF on 14 September 2007 and holds his seat on the Municipality Council on behalf of the EF;
6.	The IEC is requested and directed to process and give effect to the Applicant's floor-crossing notification, referred to in par 2 above and to take all steps necessary, including publication in a Government Gazette, to recognise the Applicant as a councillor on the Municipality's Council of the Eden District Municipality, holding a seat on behalf of the EF;
7.	Applicant shall be entitled to be reinstated in his seat on the Municipality Council from the date of this Court's order. Applicant's reinstatement will not affect the validity of past decisions of the Council;
8.	The costs of the Application shall be paid by First Respondent.