IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

In the matter between: 

versus

THE INDEPENDENT CIVICS ORGANISATION OF 

THE INDEPENDENT ELECTORAL 

THE MUNICIPAL MANAGER, BEAUFORT WEST 

THE BEAUFORT WEST LOCAL 

THE MUNICIPAL MANAGER, CENTRAL KAROO 

JUDGMENT

DESAI,J

The applicants seek leave to appeal the dismissal of their application. The matter has a long and convoluted history. It initially came before me during the floor-crossing window period. At that stage there appeared to be a live controversy which required an urgent resolution. However the applicants elected not to pursue the matter pending the final isat ion of a related application with regard to the leadership of ICOSA. It seems that the applicants must now live with the consequences of that strategic choice.

The applicants also attempted to cross to another party, but this endeavour failed when the IEC declined to process their floor-crossing forms. Although the floor-crossing period had closed the applicants then sought to re-activate - as Mr Borgstrom puts it -this matter. As noted elsewhere we were only required to give a ruling on 23 December 2007. This was done. The reasons were to follow at a later stage. This aspect had been agreed upon by the parties On 19 March 2008 by-elections were held in respect of the seats previously held by certain of the applicants. A bid by the applicants to stop these elections, both In this court and in the Supreme Court of Appeal, failed.

The current position is as follows. The seats formerly held by the first, second and sixth applicants - the proportional seats - have been filled by the [EC from ICOSA's party list. The third, fourth and fifth applicants occupied their seats as Ward Councillors. These seats were filled when the by-electrons were held. It accordingly appears impossible to reinstate the applicants as councillors as the seats previously held by them have now all been filled with other people.

The applicants quite clearly intended to leave ICOSA during the floor-crossing period. The tactics employed by them were directed at doing whatever was necessary to re-claim their seats during the floor-crossing period, so that they could immediately leave the party. The application was premised on the matter being heard during the floor-crossing period and did not cater for the retroactive recognition of their right to cross the floor.

During the course of argument in the principal matter applicants' counsel for the first time presented a draft order including relief retroactively permitting the applicants to cross the floor. He appreciated at that stage that this case would only present a live issue if the applicants could be replaced into the seats formerly held by them and then were permitted to cross the floor to another party.