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

DATE:								25 JULY 2008

In the matter between:

ISAK JAKOBUS ROBERT CLOETE				Applicant

And

INDEPENDENT DEMOCRATS				First Respondent

MUNICIPAL MANAGER FOR THE

SALDANHA SAY MUNICIPALITY			Second Respondent

JUDGMENT

DAVIS, J:

[1] This is an application for review of a decision taken by the disciplinary tribunal of first respondent on 21 April 2008 in terms of which applicant's membership of first respondent was terminated. It is useful at the outset to set out the chronology which has preceded argument heard by this Court today.

[2] On 18 March 2008 a decision was made by first respondent to terminate applicant's membership pending the outcome of a disciplinary hearing. On 20 March 2008 an urgent review application was launched by applicant (case number 5072/2008) which application was settled between the parties on the basis that applicant was reinstated, pending a disciplinary hearing. It appears that applicant had adopted the approach that expulsion could not take place prior to a fair hearing. Because first respondent had "jumped the gun", the review application was conceded and first respondent was compelled to hold a proper and fair disciplinary hearing to decide the future status of applicant within the organisation of first respondent.

[3] On 11 April 2008 the disciplinary hearing commenced. Significantly, it was postponed to 16 April 2008 because applicant required a further opportunity to prepare. On 16 April 2008 the disciplinary hearing took place and was then concluded. On 21 April 2008 a disciplinary tribunal decision was handed down. It was decided to terminate the membership of applicant. Against this decision applicant lodged an appeal on 5 May 2008. On 8 May 2008 the appeal committee handed down its decision, which again was not in favour of the applicant.

[4] On 26 May 2008, applicant launched an urgent application (case number 8306/2008) for reinstatement pending an urgent review application. On 8 June 2008 that review application was launched by applicant under case number 9174/2008.

"On 11 April 2008 applicant was represented by Mr Erleigh. On that date a ruling was made to the effect that the commencement of the hearing be postponed for a period of 30 minutes during which I handed to Mr ErEeigh all of the relevant documentation in the matter and supplied him with all of the particulars requested by him, including detailed witness statements by all of first respondent's witnesses.
I deny that the Chairperson ruled that any "request for particulars" should not be responded to. On the contrary, he ruled that the commencement of the hearing be postponed for the specific purpose of providing applicant with all of the documentation and particulars requested by him. I further deny that the documentation handed to Mr Erleigh on 11 April 2008 constituted "a thick bundle of poorly photocopied documents".
After the documentation was handed to Mr Erleigh, he withdrew from the proceedings and applicant asked for the commencement of the hearing to be further postponed. The Chairperson then ruled that the   commencement   of   the   hearing   be   further postponed to 16 April 2008, on which date applicant was represented by Advocate Caiger who did not raise any complaint with regard to any alleged failure to supply him with any further documentation and/or particulars.
I accordingly submit that applicant was granted every opportunity to familiarise himself with the case against him and to properly consult with an attorney and advocate prior to the commencement of the hearing and prior to applicant being requested to enter a plea to the charges against him".

[10] Matters of this kind are inherently urgent. They are urgent because these are disputes which involve political processes. The party concerned is anxious to ensure that it can preserve the integrity of its own caucus. In the event that it considers that it has "a rogue councillor" within its midst, it is entitled to pursue the matter with a El due speed, given, of course, the constraint that fairness must be followed. Fairness is a flexible concept and in this particular context it appears to me that in the light of these facts, there is nothing to suggest that an adequate period of time was not granted to the applicant to place his case before the tribunal.

[11] I turn therefore to deal with the merits of the decision. From the charge sheet it appears that applicant was charged as follows:
"1. Charge 1 - that you contravened sections 110.4.1.6 and 110.16 of the Code of Conduct in that you failed to fulfil your monthly financial obligations to the party and in so doing are found in arrears of such obligation for a period in excess of three months. 
2. Charge 2 - that you contravened sections 110.6.1, 111.1.2. and 111.10 of the Code of Conduct in that you failed to adhere to a written request dated 25 January 2008 by the party's Western Cape provincial leader to withdraw from a Council meeting in the Saldanha Say Municipality. That you further attended the said Council meeting and voted against an agreed party caucus position at the said meeting.
Charge 3 - that you contravened section 111.1.3 and 111.1.8 of the Code of Conduct in that your conduct as a public representative of the party brought the party into disrepute m that you were accused in the public press of conduct unbecoming of a party member in good standing.
Charge 4 - that you contravened sections 110.6.1, 111.1.2 and 111.1.3 of the Code of Conduct in that you failed to adhere to a verbal instruction from the party's West Coast PEC member to attend a Council meeting of the Saldanha Bay Municipality on 14 March 2008. That you, notwithstanding the aforementioned instructions, "disappeared" 15 minutes before the said Council meeting resulting that the planned restructuring of the
Municipality could not take place and further causing major embarrassment to the party". 

[12]   In relation to charge 1 it said:

[13] However, an examination of the disciplinary hearing indicates in the evidence of Lentit that, indeed, applicant had failed to pay the necessary amounts for far longer than three months. Therefore, given any evidence to the contrary, there was no basis to conclude that applicant had put up an adequate defence to the charge in question, namely that although he was in arrears, he had not been in arrears for three months.
[14]   Insofar as charge 2 is concerned, the tribunal found as follows:

"En is ek reg as ek se dat jy geen dissiplin§re verhoor in die gesig staar afhangende van wat die party besluit. Ja, maar toe nou toe ek meen dit was al Januarie se besigheid nou was u gelukkig om hierdie verklaring af te le? Ja, is daar enige iets vir u gese aangaande die verklanng se afle? Nee meneer. Hoekom dit nodig is en hoekom jy dit moet doen? Nee. Is dit korrek dat Mev De Lille gese het dat julle nie geskors sal word vir die 25ste Januarie se vergadering nie, daar is gese u nie geskors sal word nie. Sy het daar gesit, ekskuus dat ek my vinger wys, maar sy het daar gesit waar Tant Sarah sit, sy het die skorsingspapiere opgetel toe het sy gese maar hier sit ek met julle. Skorsing papier maar sy sit dit toe neer en sy gee die LEC mandaat dat hulle moet gaan uitvind. Watse mandaat? HulEe moet gaan na die strukture toe om te gaan luister, na die branches toe om te gaan luister/

[15] It appears that the decision, on the evidence, was that further investigation was necessary. Therefore, there is no justification for the argument raised by applicant that this matter had effectively been settled and placed in a 'cupboard' and then removed three months later in order to trump up a justification for the dismissal of applicant.

[18]   Respondent's position is reflected in the findings of the disciplinary hearing in which the following is stated:
"Respondent se verweer dat hy voor die vergadering siekerig gevoel het moet op die volgende redes bevraagteken word.
1.	Dat hy versuim het om 'n verdere doktersertifikaat voor te le dat hy ongeskik was om die belangrik vergadering van 14 Maart 2008 by te woon.
2.	Respondent as hy so siek was soos hy beweer nie by sy nuwe kollasie vennote verskoning aangeteken het nfe.
3.	Dat hy wel in staat was om dokter toe te loop en van die vergadering af weg te loop gegewe dat hy aangevoer het dat hy dronk in sy kop gevoei het (die redelik mens sou aanvaar dat hy onder sodanige omstandighede van vervoer gebruik sou maak).
4.	Dat getuies getuig het dat Mnr J De Wee vooraf bewus was van respondent se optrede hierin.
5.	Dat respondent getuig het dat hy pas voor die vergadering Yi dringende oproep ontvang het dat hy na die elektro meganikus moes gaan wat aan sy motor gewerk het (en dat hy verkies het om op sodanige oproep te reageer ten    spyte    daarvan    dat    hy    van    die belangrikheid van hier voorgemelde vergadering bewus was). (6) Dat respondent later getuig het dat hy so siek gevoel het dat hy nie gehoor het dat Mnr S Claassen hom tuis kom soek het nie (wat 'n onwaarskynlike toename in sy beweerde siektoestand impliseer binne 'n kort tyd, vandat hy die teetrollie in die raadsaal gestoot het."

[21] For these reasons therefore:

1. The application is dismissed with costs.
2. The wasted costs of the postponement of 21 July 2008 will be paid by applicant.
DAVIS, J