THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No:  073/08
No precedential significance
In the matter between:

MATTHEW SHUNMUGAM

FIRST APPELLANT
GIJIMANI ALFRED MNCUBE                      SECOND APPELLANT
CHUAN-YI LIU                                                  THIRD APPELLANT
THENJIWE VERONICA BUTHELEZI           FOURTH APPELLANT
THEMBISILE MARY-MARGARET PHIRI         FIFTH APPELLANT
BHEKUMNDENI ALEC THUSI                        SIXTH APPELLANT
INNOCENT MHLABUNZIMA MIYA           SEVENTH APPELLANT
THANDI ROSEMARY NDLOVU                    EIGHTH APPELLANT
BHEKINKOSI DERRICK                                  NINTH APPELLANT
JOTHAM THEMBA SIMELANE                      TENTH APPELLANT
TOBIAS SEZE GUMEDE                         ELEVENTH APPELLANT
SENZO RICHARD SHWALA                     TWELFTH APPELLANT
HANDSOME THOKOZANI                   THIRTEENTH APPELLANT
THANDAZANI CYPRIAN NJOKO      FOURTEENTH APPELLANT
DUMISILE HELMAH XABA                    FIFTEENTH APPELLANT
MBONGENI BHEKUMTHETHO MYENI SIXTEENTH APPELLANT
DHAVANDRAN KRISHNASAMY PALAVAR         SEVENTEENTH
APPELLANT
MBONGENI JEREMIAH SIBIYA          EIGHTEENTH APPELLANT
INKATHA FREEDOM PARTY              NINETEENTH APPELLANT

and

NATIONAL DEMOCRATIC CONVENTION              RESPONDENT

Neutral citation:   Shunmugam and Others v National Democratic Convention
(073/2008) [2008] ZASCA 165 (1 December 2008)

CORAM: HARMS ADP, STREICHER JA, COMBRINCK JA,
LEACH AJA et MHLANTLA AJA

HEARD:
7 NOVEMBER 2008

DELIVERED:
1 DECEMBER 2008

Summary:  Floor crossing under Schedule 6B of the Constitution – court having
ordered that municipal councillors who had purportedly been
expelled from their political party were to remain suspended during
a floor crossing window pending a decision on whether their
expulsions had been lawful – this order not depriving the councillors
of their party membership or preventing them from crossing the
floor – as their expulsions had been unlawful, councillors had been
members of the party entitled to cross the floor.

______________________________________________________

ORDER
______________________________________________________

On appeal from: High Court, Natal (Rall  AJ sitting as court of first
instance).

(a)
In case 6883/07, the appeal is dismissed.
(b)
In case 7680/07, the appeal succeeds. The order of the court a quo
is set aside and replaced by the following:
‘(1) The application is dismissed with costs.
(2) The counter application is upheld with costs.’
(c)    The respondent (NADECO) is to pay the appellants’ costs of the
appeal.
(d)
The above orders as to costs shall include those of two counsel
where so employed.

_____________________________________________________

JUDGMENT
_____________________________________________________

LEACH AJA (HARMS ADP, STREICHER JA, COMBRINK JA, et
MHLANTLA AJA concurring):

[1] The political process commonly known as ‘floor crossing’, an
expediency by which a sitting member of either the national assembly, a
provincial legislature or a municipal council may change allegiance from one
political party to another during a prescribed period without losing his or her
seat, is recognised in Schedules 6A and 6B of the Constitution.  Floor
crossing is a matter of some controversy and is about to be abolished.
Nevertheless, in a window period covering the first fifteen days of September

2007, sitting members of municipal councils were entitled to cross the floor
under the provisions of Schedule 6B.

[2]   The respondent, the National Democratic Convention (‘NADECO’), is a
registered political party. The first to eighteenth appellants are former
members of NADECO who had been municipal councillors before the floor
crossing window in September 2007. Like most political parties, NADECO
feared the possible defection of members when the floor crossing window
opened. It also appears to have identified the first to eighteenth appellants as
possible defectors and, seemingly as a pre-emptive step, expelled them from
membership of the party during August 2007.  As in terms of item 1 of
Schedule 6B, loss of party membership leads to a councillor ceasing to be a
member of a municipal council, their expulsions would have prevented them
from crossing the floor.

[3]   As will be more fully set out in due course, this led to litigation in the
Pietermaritzburg High Court involving not only the  first to eighteenth
appellants but various municipal councils, NADECO and a number of other
political parties, including the Inkatha Freedom Party (’the IFP’). Not all of
those parties are before this court and not all of the present parties were
parties to each application.  In order to avoid confusion, I therefore intend to
refer to the first to the eighteenth appellants as ‘the appellants’ and to the
respondent and the IFP (which is the nineteenth appellant) by their acronyms.

[4] There are in fact two appeals before this court arising from separate

applications brought in the high court under case numbers 6883/07 and
7680/07. Although not formally consolidated, the two applications became
intimately intertwined, were eventually heard together and were decided in a
single judgment. By that stage, case 6883/07 had for all practical purposes
become moot and the relief sought in that matter was refused. Despite case
6883/07 being of academic interest only, leave to appeal was granted in both
cases.  Mr Gauntlett SC, who appeared for the appellants in this court,
however referred to case 6883/07 only as background or where its papers
had been incorporated by reference into those of case 7680/7. Although it
was the decision in the latter case which essentially formed the subject of the
appeal, it is useful to describe the somewhat convoluted proceedings which
took place in the high court.

[5]   The appellants decided to appeal against their expulsions under the
party’s constitution. However, in the light of the imminent opening of the floor
crossing window, they also launched an urgent application (case 6883/07) in
which they sought an order that, pending the outcome of their internal
appeals, their expulsions be declared unlawful and their positions as
councillors of the various municipalities be declared of full force and effect.
They cited as respondents the various municipalities in which they had been
serving as councillors as well as the Electoral Commission and NADECO.

[6]   Inadequate notice of this application was given to the various
respondents and it was heard ex parte by Madondo J on 24 August 2007.
Nevertheless a rule nisi returnable on 27 September 2007 was issued calling

upon those cited as respondents to show cause why a declaratory order in the
form sought should not be issued. In addition, the court directed the rule to
operate as an interim order pending the finalisation of the application.   As the
return day was after the close of the floor crossing window, this order
amounted to final relief ex parte declaring the appellants to have been
unlawfully expelled which, in turn, would have allowed them to cross the floor.
It is not surprising that as soon as NADECO became aware of the order, it
applied for it to be reconsidered under rule 6(12)(c).

[7]   The application for reconsideration of the order of 24 August 2007 was
heard by Msimang J on 31 August 2007. It is clear from the record that the
learned judge was acutely aware of the ramifications of the floor crossing
period which was about to open, and the resultant  necessity to deal fairly and
speedily with the dispute but to preserve the parties’ rights until the lawfulness
or otherwise of the expulsions had been determined. He urged the parties to
reach agreement on an order which would achieve that end. This led to the
appellants and NADECO (the latter being the only respondent in the
proceedings who was represented at the time) agreeing to the matter being
postponed to 12 September 2007 - so that it could be heard before the end of
the floor crossing period – and the following order which they had drawn up
being issued by consent:
‘1.  The rule nisi granted on 24 August 2007 be and is hereby discharged.
2.  That pending the final determination of this application:
(a) the (appellants) remain suspended as members of (Nadeco)
(b) that (Nadeco) undertakes not to replace the (appellants) as councillors of the
(municipal councils).’

[8]   The appellants purported to cross the floor before the hearing on 12
September 2007 and, when the matter was called that day, leading counsel
then appearing for them informed the court that his clients had resigned from
NADECO and had joined other political parties. Although NADECO
immediately attempted to persuade the court to dismiss the application, the
court declined to do so as there had been ‘no official pronouncement on this
issue at this stage’. The matter was then postponed sine die although,
somewhat strangely in the light of their counsel’s statement that the
appellants had resigned from NADECO, a further interim order was issued in
the same terms as paragraph 2 of the order of 31 August 2007.

[9]   Subsequently, on 19 September 2007, NADECO learnt that the Electoral
Commission had recognised the appellants’ move to other political parties,
with the eleventh, fifteenth and sixteenth appellants having joined the IFP.  In
the light of the Electoral Commission’s recognition of these defections,
NADECO launched another urgent application (case 7680/07) on 20
September 2007.  Citing various respondents, including the appellants and
the municipalities in which they were sitting, the Electoral Commission and the
IFP, it sought an order (i) declaring that the appellants had ceased to be
members of their respective municipal councils before midnight on 31 August
2007 and were accordingly not members of any municipal council, and (ii)
setting aside the decision of the Electoral Commission to recognise the
appellants as members of the various municipal councils.

[10]   This application was set down as a matter of urgency on 21 September
2007 but was postponed to 27 September 2007.  On that date it was again
postponed to 22 October 2007, with the court further ordering that the
application in case 6883/07 also be set down for hearing that day.

[11]   The eleventh, fifteenth and sixteenth appellants, who had crossed the
floor to join the IFP, thereafter lodged a counter application in case 7680/07
seeking an order declaring (i) that their expulsions were unlawful, and (ii) that
they had been members of NADECO as at 31 August 2007.  An order in
those terms would effectively have declared them to have been councillors
when the floor crossing window opened and therefore entitled to move to
other parties.

[12]   In this way, the applications in cases 6883/07 and 7680/07 together with
the counter application in the latter case came before Rall AJ on 22 October
2007. Judgment was delivered on 4 December 2007. The application in case
6883/07 was dismissed with costs. In case 7680/07, the court held that the
appellants had ceased to be members of their respective municipal councils
before the floor crossing window had commenced and, accordingly, granted
NADECO the relief it sought and dismissed the counter application of the
eleventh, fifteenth and sixteenth appellants. With leave of the learned acting
judge, the appellants and the IFP now appeal to this court against those
orders.

[13]   As already mentioned, due to the appellants having joined other political

parties the proceedings in case 6883/07 could be of no more than academic
interest, and they wisely did not seek to argue the appeal in regard to that
case and conceded that it should be dismissed. The argument on appeal was
therefore directed at the decision in case 7680/07, the outcome of which turns
on whether the appellants had lawfully crossed the floor between the court
appearances of 31 August and 12 September 2007.

[14]    In the court a quo, NADECO had contended that the appellants had
been lawfully expelled and could accordingly not cross the floor when the
window opened as they had ceased to be councillors. However, on appeal,
counsel for NADECO conceded that for present purposes it could be
accepted that the individual appellants had not been lawfully expelled.
Notwithstanding this admission, he relied on the decision in Oudekraal
Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) to
found an argument that, although invalid, the decision to expel the appellants
was not devoid of consequences but remained effective until set aside – so
that the appellants had to be regarded as not having been members of
NADECO on 1 September 2007 and had therefore not been entitled to cross
the floor.

[15]   In Oudekraal, and subsequently in Seale v Van Rooyen NO and Others;
Provincial  Government, North West Province v Van Rooyen NO and Others
2008 (4) SA 43 (SCA),  the court was called on to decide what effect an
invalid administrative act had upon a further administrative act which was
dependent on the initial act. It was held that where a person, the so-called

‘second actor’, unaware of the invalidity of the initial act, assumed it to be
valid when taking the further act, and where the factual existence rather than
the substantive validity of the initial act was a precondition for the validity of
the subsequent act, the latter act could be regarded as valid until the initial act
was set aside.

[16]   The present case involves a direct attack upon the legality of the
decision to expel the appellants and does not concern the validity of an act
taken on the strength of that decision. The appellant’s membership of
NADECO at the crucial time depended on the substantive validity of their
expulsions. The appellants were required to vacate their seats as councillors if
lawfully expelled. They declined to do so as they felt their expulsions had
been unlawful.  NADECO then sought declaratory relief against them,
contending the expulsions had been lawful.  The appellants resisted that
application by challenging the validity of the administrative act expelling them.
The court was then called on to decide the validity of the action expelling the
appellants. Having regard to NADECO’s concession that their expulsions
were indeed unlawful, and the principle of legality which is fundamental to our
legal order, there can be no question that the appellants were members of
NADECO and councillors who were entitled to cross the floor when the floor
crossing window opened.

[17]   For these reasons NADECO’s reliance on the decision in Oudekraal is
misplaced and the matter is not to be decided on the basis that the
expulsions, even if invalid, resulted in the appellants losing their party

membership.

[18]   NADECO in the alternative contended that the order of 31 August 2007
had in any event prevented the appellants from crossing the floor while it was
in place. A decision on this issue turns largely upon the interpretation of the
provision in the order that, pending the final determination of the application,
the appellants were to ‘remain suspended as members’ of NADECO.

[19]   Despite having been drafted by the legal representatives of the parties,
this provision was absurd as it had not been suggested by either side that the
appellants had been suspended from membership of the party and the
dispute had at all times been whether they were still members of the party or
whether they had been expelled.

[20]   Counsel for NADECO argued that the order had to be read in its context
and the circumstances which prevailed when it was made. In the light of the
imminent opening of the floor crossing window and the postponement of the
case to a date within that window for resolution of the dispute about the
lawfulness of the expulsions, he submitted that by necessary implication the
order was intended to mean that the appellants were prohibited from crossing
the floor until the application had been determined by the court on 12
September 2007.

[21] The issue whether the court has the power to order a councillor not to
cross the floor, even should he or she agree not to do so, was mentioned,

albeit briefly, by counsel for the appellant. Although a matter of interest and
one which may be the subject of substantial constitutional debate, it is
unnecessary to reach any decision on the issue for purposes of this judgment.
The answer to NADECO’s argument is that if the parties had intended their
draft order to prohibit the appellants from crossing the floor, they could simply
have expressly provided for that to be the case.  Not only did they not do so
but, for the reasons that follow, the order cannot be construed to have that
effect by necessary inference.

[22]   In considering whether the order can impliedly bear the meaning
NADECO seeks to attribute to it, it is indeed useful to place the order in its
context as counsel for NADECO asked us to do.  In order to prevent the
appellants from crossing the floor, NADECO was seeking a court order
recognising that it had lawfully expelled them. On the other hand, the
appellants contended that they had not been lawfully expelled, that they were
still members of NADECO and that they were entitled to exercise their
constitutional right to cross the floor during the prescribed period if they so
wished. The lawfulness of the appellants’ expulsions was crucial to this
dispute, and the determination of that issue was to be postponed for
adjudication before the end of the floor crossing window. In formulating the
order, the parties had in mind an arrangement which would preserve, not
prejudice, their respective rights; in particular the right of the appellants to
switch their political allegiance without losing their seats should they not have
been lawfully expelled. The order was not intended to cause the appellants to
surrender this right, as was correctly conceded on appeal by NADECO.

[23]   Bearing that in mind, it is important to have regard to schedule 6B of the
Constitution. As already mentioned, item 1 of the schedule provides for a
councillor to cease to be a member of a municipal council if he or she ceases
to be a member of a political party. Item 4(2)(a) provides that during a floor
crossing period a councillor may only once (i) change membership of a
political party, (ii) become a member of a party, or (iii) cease to be a member
of a party. On the other hand, item 4(2)(c) prohibits a party from suspending
or terminating the party membership of a councillor during a floor crossing
period or from performing any act during such period which may cause a
councillor to be disqualified from holding office in a council.

[24]   In the light of these provisions, the appellants had to be members of
NADECO when the floor crossing window opened in order for them to cross
the floor during the prescribed period. If they had been expelled, they could
not do so. But, on the other hand, if they had not been expelled and were still
members of the party, NADECO could not prevent them changing their
allegiances to another party.

[25]   NADECO’s counsel conceded, correctly, that neither the court nor the
parties ever had the power, or had intended, to deprive the appellants of their
rights under schedule 6B.  As they would have been deprived of those rights if
they were not NADECO members at the commencement of the floor crossing
window, whatever the order of 31 August 2007 was intended to mean (and
while it may possibly have been intended to mean that the appellants should

not attend council meetings or something of that nature) it could never have
been intended to deprive the appellants of their party membership or prohibit
them from crossing the floor.

[26]   This conclusion renders it unnecessary to attempt to decide precisely
what the parties or the court had in mind when formulating the order of 31
August 2007. Either the order is meaningless or it did not deprive the
appellants of their right to cross the floor if their expulsions were unlawful. In
either event, in the light of NADECO’s acceptance that the appellants had
been unlawfully expelled, they remained members of the party when the floor
crossing window opened and were therefore entitled to cross the floor to other
parties when they did.

[27]   Consequently, the order of the court a quo in case 7680/07 cannot stand
and must be set aside. In regard to the counter application, the appellants to
whom it relates enjoy status and privileges as councillors and the right to
participate in the political processes of the municipal councils in which they
have been seated since September 2007, all of which was disputed by
NADECO. An order in the counter application re-asserts these rights and
privileges as well as the fact that those appellants were unlawfully expelled by
NADECO. In these circumstances, the declaratory relief sought in the counter
application is not solely academic and should be issued.

[28]   In regard to costs, the application in case 6883/07 was probably ill
conceived and should have been abandoned once the appellants crossed the

floor. It should also not to have been appealed against. However, as the
appellants did not argue the appeal and the papers in that case were both
necessary as background and were incorporated by reference into the papers
in case 7680/07, it is unnecessary to make a costs order in the appeal in case
6883/07. In regard to case 7680/07, the costs should follow the event. I am
also satisfied, and both sides were agreed, that the order for costs should
include those of two counsel where so employed.

[29]   The following order is made:
(a)
In case 6883/07, the appeal is dismissed.
(b)
In case 7680/07, the appeal succeeds. The order of the court a quo
is set aside and replaced by the following:
‘(i) The application is dismissed with costs.
(ii) The counter application is upheld with costs.’
(c)
The respondent (NADECO) is to pay the appellants’ costs of the
appeal.
(d)
The above orders as to costs shall include those of two counsel
where so employed.
_______________
L E LEACH
ACTING JUDGE OF APPEAL

APPEARANCES:

For Appellants:
JJ Gauntlett SC

A M Annandale

Instructed by
Thorpe & Hands; Durban (On behalf of First – Sixth
Appellants)
Symington & De Kok; Bloemfontein
Larson Falconer Incorporated; Durban (On behalf of
Seventh – Nineteenth Appellants)
Symington & De Kok; Bloemfontein

For Respondent:
AM Stewart SC

M Du Plessis

Instructed by

John Wills Attorney; Pietermaritzburg

Naudes Incorporated; Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
1 December 2008

Status:
Immediate

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

M Shunmugam and 18 Others

versus

National Democratic Convention

Before the opening of the floor crossing window in September 2007, the appellants
were municipal councillors and members of the National Democratic Convention, the
respondent, a registered political party. The respondent purported to expel them
from membership of the party before the floor crossing window opened which
resulted in the appellants seeking an order declaring their expulsions to have been
unlawful. Immediately before the floor crossing window opened, the application was
postponed to a date in the floor crossing period with the parties agreeing that,
pending the final determination of the application, the appellants would ‘remain
suspended as members’ of the respondent.

Before the matter was called on the date to which he had been postponed, the
appellants purported to cross the floor. The Electoral Commission subsequently
recognised their move to other political parties and the respondent instituted
proceedings seeking an order that the appellants’ crossing of the floor to other
political parties had been unlawful. The respondent was successful in the
Pietermaritzburg High Court.

On appeal, the Supreme Court of Appeal held that the appellants had been lawfully
entitled to cross the floor when they did. The appeal therefore succeeded and the
order in the court a quo set aside.