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

In the matter between;

and
THE MUNICIPAL MANAGER, 

THE INDEPENDENT ELECTORAL 

THE MINISTER FOR LOCAL 
GOVERNMENT AND HOUSING, 

JUDGMENT

[1] This application has been brought as a matter of urgency in accordance with the provisions of Rule 6(12). Although urgency has not been expressly conceded by those respondents opposing the relief sought, I am of the view that the matter is clearly urgent and have accordingly entertained the application on that basis. The applicant's non-compliance with the usual provisions of the Rules of Court Is accordingly condoned.

[2] The parties to the application are as follows. The applicant is the African National Congress, a duly registered political party with its regional offices for the Southern Cape at 89 Hibernia Street in George. The first respondent is the municipal manager of the George Local Municipality, the offices of which are situated at the Civic Centre in York Street, George. The office of municipal manager is currently held by Mr Cecil Africa. The second respondent is the George Local Municipality itself and the third respondent is Henry Johannes Jones, an adult male politician, who represented the Democratic Alliance as a ward councilor in the Municipality at the time of the resignation which is the subject of the dispute in this matter, on 26 March 2008.

[3] The fourth respondent is the Democratic Alliance, a duly registered political party, with its main offices at Ruskin House, Roeland Street, Cape Town. The fifth respondent is the Independent Electoral Commission and the sixth respondent is the Minister for Local Government and Housing, Western Cape, who is at present Mr Qubele Richard Dyantyi.

The relevant facts so determined may be crisply stated. On 26 March 2008 the third respondent signed a letter (Annexure  SK2  to   the   founding   affidavit).      It  was addressed to the first respondent and read as follows: 
"Geagte Heer, 
Re: Bedanking as Raadslid 
Hierrnee dien ek my bedanking in as Raadslid van die George Stadsraad en Demokratiese Aliiansie met onmiddelike effek. By voorbaat dank." 
The letter was signed by the third respondent and below his signature was an indication that it was being copied to Flip de Swardt and to the   Independent Electoral Commission.  Mr de Swardt is the executive mayor of the George Local Municipality.
An envelope containing the letter was delivered to the first respondent's receptionist on 26 March 2008. She placed it, unopened, on the first respondent's desk. The first respondent did not immediately read the letter because, according to his affidavit, he was busy with other matters and did not regard it as that urgent. His receptionist had informed him that it was evidently a letter of resignation from the third respondent. 

As regards the letter itself, it had (according to the third respondent) been prepared for him by a certain Pastor Smart and an Inspector David Ryk. Ryk had presented it to him for signature on the morning of 26 March and he had signed it in Ryk's presence.   Ryk had kept the letter but had not been instructed to deliver it to the first respondent.
No copies of the letter were sent to either De Swardt or to the Independent Electoral Commission.

"1.2  Declaring that:
1.2.1		In terms of section 27{a) of the Structures Act, the Seat previously occupied by the third respondent 			was immediately vacated when he resigned as a 	councillor on 26 March 2008 by delivering a resignation 			better to the municipal manager; and
1.2.2		in terms of clause 3.5,1.3 of the Federal Constitution of the DA and item 1 to Schedule 6B to the 				Constitution of the Republic of South Africa 1996, the Seat previously occupied by the third respondent 			was immediately vacated when he resigned as a member of the DA by declaring his intention to resign 			from the DA in his resignation 	letter to the first respondent on 26 March 2008.
1.3 Reviewing, correcting and setting aside the decision of the municipal manager on or about 28 March 2008, to hand back the third respondent's resignation letter to him and his subsequent decision on or about 31 March 2008 to treat the third respondent as if he remained a councillor;
1.4 Reviewing, correcting and setting aside the failure by the municipal manager to exercise his power and duty in terms of section 25(3) of the Structures Act (after consulting with the IEC) give notice of a by-election to be held in the ward previously represented by the third respondent;
. . . . . . .
1.6		directing the municipal manager to give notice of a by-election in the ward previously represented by 			the third respondent, such by-election to be held 	within 90 days after 26 March 2008; and
1.7		the costs are to be paid by the first to third respondents, jointly and severally." (I mention that there 			appears to be a typographical error and there is no paragraph 1.5)

[9] I turn therefore to consider the first of the two declaratory orders sought by the applicant. Before doing so I think it appropriate to record that, in construing the applicable legislation, I have held in mind that it has application in many differing personal and political circumstances and that the intention of the Legislature cannot be coloured by the somewhat Byzantine political manoeuverings which have been revealed in these papers. On the contrary, the relevant legislative provisions were intended to find application in the principled and honourable behaviour of public representatives; in particular, the discredited system of floor-crossing cannot inform the interpretation of the relevant sections. Section 27(a) of the Act provides:
"27   Vacation of office
A councillor vacates office during a term of office if that councillor -
(a)    resigns in writing". 
Counsel were all agreed that the provision envisaged:
"An   unqualified   resignation   either  of immediate
effect, or effective from a specified date;
the communication of the written resignation to the
prescribed or proper party."

[15] As regards the first concession, I consider that it was correctly made. The delivery of a letter of resignation which never came to the attention of either the municipal manager or the Speaker could hardly trigger the results envisaged by the Legislature. Counsel were accordingly agreed that the letter of resignation would have to reach at the least the office of the intended recipient.

[18] In the result, the applicant is not entitled to an order in terms of paragraph 1.2.1 of the revised prayer. I now turn to the alternative argument. In this regard the applicant relies on certain provisions of the fourth respondent's Federal Constitution (which I will refer to as the "Federal Constitution" to distinguish it from the Constitution of the Republic) a copy whereof was annexed to the founding affidavit as Annexure SK3. Section 3.5 of the Federal Constitution is headed "cessation of membership" and provides that:
"3.5.1       A member ceases to be a member of the party when he or she:
3.5.1.1	submits his or her written resignation from the party;
3.5.1.2	becomes or remains a member of another party other than one approved under this constitution;

3.5.3	declares his or her resignation or intention to resign from the party or intention to join another party;
3.5.4	fails to renew his or her membership on or before the date stipulated;
3.5.5	canvasses other party members to resign from the party;
3.5.6	canvasses other party members to join or support another party;
3.5.7	stands or accepts a nomination against an official candidate of the party in any public election;
3.5.8	is found guilty of any offence listed in Schedule 6 of 7 of the Criminal Procedure Act;
3.5.9	is in default of the payment of any compulsory public representative contribution for a period of two months after having been notified in writing that he or she is in arrears..."

[20] It is clear that the relationship between members of a political party, including its office bearers and public representatives, and such party is contractual in nature and that the terms of the agreement are to be found in the governing constitution or other enactments of the voluntary association in question.

[26] It is true that the letter of resignation subsequently came to the knowledge of Mr de Swardt. At the time that the content of the letter came to his knowledge, however, he had already been informed by the third respondent that he no longer intended to resign and wished to remain a member of the party. Accordingly, at the time that Mr de Swardt became aware of the content of the letter, it was no longer an intention to resign but rather the unexecuted memorial of what had been an intention to resign.

[27] If I am wrong in this however, there is another basis upon which the applicant cannot succeed in obtaining the declaratur sought in prayer 1.2.2. The prayer seeks a declaratur that the seat occupied by the third respondent was vacated when he resigned as a member of the fourth respondent but that is not a declaration as to rights but as to fact. This Court is competent to issue a declaration as to rights in terms of the provisions of section 19(1)(a)(ii) of the Supreme Court Act 59 of 1959. This power is further reflected in section 8(d) of the Promotion of Administrative Justice Act, 3 of 2000 which empowers a court in administrative proceedings to make orders "declaring the rights of the parties".

[29] I accordingly find that the applicant has not made out a case for the relief claimed in prayer 1.2.2 either. It follows that the application falls to be dismissed with costs and it is so ordered.