THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 416/2013

Not Reportable
In the matter between

NICOLIN PETER CROUWCAMP

APPELLANT

and

CIVIC INDEPENDENT

FIRST RESPONDENT
THE CHIEF ELECTORAL OFFICER:

INDEPENDENT ELECTORAL COMMISSION          SECOND RESPONDENT
PETER BOTHMAN

THIRD RESPONDENT
DANIE SEPTEMBER

FOURTH RESPONDENT
JONATHAN STEVENS

FIFTH RESPONDENT
AUBREY KUHN

SIXTH RESPONDENT
JACOBUS DAMONS

SEVENTH RESPONDENT
ADRIAN MONTZINGER N.O.

EIGHTH RESPONDENT

Neutral citation: Crouwcamp v Civic Independent & others (416/2013)
[2014] ZASCA 98 (31 July 2014)

Coram:
Mpati P, Navsa, Bosielo and Saldulker JJA and Mocumie
AJA

Heard:
20 May 2014

Delivered: 31 July 2014

Summary:  Political Party registered in terms of section 15 of the
Electoral Commission Act 51 of 1996 – non-compliance
with the party‟s constitution – meetings – quorum – legality
of a meeting where a non-executive member was permitted
to participate actively in the meetings of National Executive
Committee – NEC not properly constituted.

___________________________________________________________

ORDER
___________________________________________________________

On appeal from: The Western Cape High Court, Cape Town (Nyman AJ
sitting as a court of first instance):

The following order is made:
(a) The appeal is upheld with costs to be paid by the third to seventh
respondents jointly and severally the one paying the other to be absolved;
(b) The order of the court below is set aside and substituted as follows:
„(i) The application is dismissed with costs to be paid by the second to
seventh applicants, jointly and severally, the one paying the others to be
absolved;
(ii) The counter application is upheld with costs to be paid by the third to
seventh respondents jointly and severally, the one paying the others to be
absolved;
(iii) The decisions reached at the meetings held on 2 May 2012 and those
reached at subsequent meetings related to and flowing from the first
mentioned meeting are set aside.

___________________________________________________________

JUDGMENT
___________________________________________________________

Bosielo JA (Mpati P, Navsa and Saldulker JJA and Mocumie AJA
concurring):

[1] Central to this appeal is the legality of a meeting purportedly held
by the National Executive Committee (NEC) of the first respondent, the

Civic Independent (Civic), a political party registered in terms of section
15 of the Electoral Commission Act 51 of 1996. The meeting was held on
2 May 2012 where a decision was taken to, amongst other things, remove
the appellant, Nicolin Peter Crouwcamp (Crouwcamp) as the first
respondent‟s President; prohibiting him from acting as such with
immediate effect, but allowing him to retain his status as an ordinary
member; appointing the third respondent (Bothman) as Acting President;
and establishing a Disciplinary Committee (DC). Although the minutes of
the meeting do not state the purpose of the DC, it later transpired that it
was intended to investigate allegations of misconduct by the appellant.
This decision gave birth to litigation in respect of which the Western
Cape High Court (Nyman AJ) gave a judgment that, amongst other
things, interdicted the appellant forthwith from acting and/or purporting
to act as the first respondent‟s President and/or its member or
representative. In terms of that judgment a seat previously occupied by
the appellant in the Langerberg Municipality was declared vacant. This
appeal is with the leave of the high court.

[2] The background facts which resulted in this appeal and which are
common cause can be stated briefly as follows: the Civic was formally
established as a political party during March 2011. At this meeting the
following members were elected as the executive committee (EC): the
appellant as the President, Danie September (September) as Deputy
President, Zanine May (May) as Secretary; (why the sudden change from
commas to semi-colons? It‟s either the one or the other.) Sharlene
Scheepers (Scheepers) as Deputy Secretary; Aubrey Kuhn (Kuhn) as
Treasurer and Jonathan Stevens (Stevens) and Johan Matthews
(Matthews) as additional members.

[3] On 18 September 2011 the Civic held its Special National Conference
where, amongst other things, a new Constitution was adopted. The
minutes of that conference reflect that the current National Executive
Committee (NEC) was confirmed. Furthermore it was resolved that the
next NEC elections would be held every four years in terms of clause
37.4 of the new Constitution.

[4] Although there appears to be a dispute as to whether Bothman was
elected as the National Secretary at the meeting the minutes reflect him as
the Secretary General. However, according to the letter written by the
appellant to the IEC on 8 August 2011, Bothman formally replaced May
as the Civic‟s National Secretary with effect from 1 July 2011. This
position was reflected in a letter written by the appellant to the IEC.
Furthermore, the NEC, including Bothman, was confirmed in a letter to
the IEC dated 27 September 2011. I interpose to state that Mr Jacobus
Damons (Damons) was not elected as an NEC member at this meeting.

[5] The NEC held what purported to be its meeting on 2 May 2012.
Present at this meeting were Stevens, Bothman, Kuhn, September,
Scheepers and Damons. The appellant did not attend this meeting.
Purporting to act in terms of clause 54.8 of the Civic‟s Constitution
Damons, supported by Stevens, proposed a motion of no confidence in
the appellant at this meeting. A resolution was adopted unanimously,
removing the appellant as the President of the party and prohibiting him
from operating as such with immediate effect. The DC referred to above,
comprising of Messrs A Saayman (Saayman), J Stevens and Frans Filies
(Filies) was established.

[6] Pursuant to the above resolution, and purporting to act in terms of
clause 48.1 of the Civic‟s Constitution, the DC held a meeting on 3 June
2012, where it resolved to appoint attorney Adrian Montzinger
(Montzinger) to preside over the disciplinary proceedings against the
appellant. Saayman was appointed as the prosecutor.

[7] On 21 June 2012, the disciplinary hearing took place in the absence
of the appellant. This is notwithstanding his request for a postponement.
At the end of the disciplinary hearing, the presiding officer, Montzinger
found the appellant guilty of “having conducted himself in a way that
lowered the esteem in which the Complainant is held by the public as
provided for in paragraph 51.9 of the constitution of the Party”.  He then
recommended that the appellant be expelled from Civic and also that he
be removed from any office which he held on Civic‟s behalf with
immediate effect. Acting on the recommendations of the DC the NEC
expelled the appellant from the Party

[8] However, the appellant continued to act as the President and leader
of the party in disregard of the aforesaid decision. In an attempt to  put an
end to the appellant‟s behaviour the Civic approached the high court with
an urgent application to restrain and interdict the appellant from
continuing to act as its President and leader and/or a member or
representative, and to have Bothman acting in that capacity.

[9] The appellant opposed the application and filed a counterclaim
where, amongst other things, he sought to have third to seventh
respondents joined as applicants in the main application and respondents
in the counter application. He also sought an order to have Attorney
Montzinger who acted as a chairperson in the disciplinary proceedings

which took place on 21 June 2012 joined as a respondent in the counter
application in is official capacity. I interpose to state that the appellant‟s
applications were granted by agreement.

[10] The gravamen of his opposition was the legality of all the meetings
purporting to have been held by the Civic‟s NEC on diverse dates,
including 19 February 2012; 26 April 2012; 2 May 2012; 29 May 2012
and 26 June 2012, and the meeting held on 3 June 2012, where
Montzinger was appointed as the presiding officer and Saayman as the
prosecutor of the disciplinary proceedings against the appellant. The nub
of his attack is that all these meetings, purportedly held as NEC meetings,
were neither quorate nor held in terms of the Civic‟s Constitution. The
logical conclusion is that no lawful decisions could have been taken at
those meetings.

[11] The court below found these grounds to be without merit,
dismissed the counter-application and granted the Civic the relief it
sought.

[12] I pause to observe that although both counsel had prepared
elaborate heads of arguments, the arguments before us were narrowed
down to one crisp issue, namely the legality of the meetings purporting to
be those of the NEC, in particular the one held on 2 May 2012 where,
amongst other things, the decisions to terminate the appellant‟s
Presidency and membership of the party was taken; appointing Bothman
as the Deputy President with all the authority , duties and powers granted
to him by the Constitution and establishing a DC.

[13] The basis of the appellant‟s submission is that only persons elected
in terms of clause 38 of the Civic‟s Constitution could constitute the NEC
lawfully. Clause 38 provides as follows:
„38. The NEC shall consist of
38.1 The Leader of the Party (President)
38.2 The Deputy Leader of the Party
38.3 Secretary General
38.4 Deputy Secretary General
38.5 National Organiser
38.6 National Treasurer
38.7 Nation Policy Convenor
38.8 Members of Parliament will serve as ex-officio members on the NEC
38.9 Chairperson of the National Councillors Forum.‟

[14] It was argued further that clause 37.4, in turn, prescribes that the
NEC shall be elected every four years after the party‟s Provincial
Conference or election process has been finalised. This was also resolved
at the Special National Conference held on 18 September 2011. The
further submission was that no other provincial conference or election
process was held in terms of the Civic‟s Constitution after the one held on
28 September 2011 where Damons could have been elected as a member
of the NEC. As a result, only the members elected at the last Provincial
Conference qualified as legitimate members of the NEC on 2 May 2012.
Damons was only co-opted as the National Policy Co-ordinator of the
NEC on 28 May 2012. This was after the Civic‟s Constitution had been
amended specifically “to co-opt members as the need arises”, as it did not
provide for such co-option at the time. It was accordingly argued that as
Damons was not a legitimate member of the NEC, he had no right to
attend its meetings and to participate thereat. The logical conclusion was
therefore that all the NEC meetings where Damons participated were not

legitimate NEC meetings and that all the decisions taken at those
meetings were invalid.

[15] Confronted with this conundrum, the first respondent‟s counsel
conceded, properly in my view, that as Damons participated in that
important meeting held on 2 May 2012 qua NEC member whilst he was
not, the meeting was not proper and hence its decisions were invalid. It
was conceded further that by parity of reasoning all the decisions which
were taken at the meetings which followed the meeting held on 2 May
2012 were equally invalid.

[16] It is common cause that the Civic as a political party is governed
by its Constitution which represents the collective voice of its members.
This Constitution spells out clearly when and how members of the
Civic‟s NEC will be appointed and removed from office. It follows
therefore that the NEC is constrained to exercise only those powers
entrusted to them by Constitution, and, strictly in terms of the
Constitution. This is in line with the principle of legality. Any conduct
that falls outside the purview of the Constitution is therefore ultra vires
and invalid.

[17] I have already indicated that, as at 2 May 2012, Damons had not
been elected onto the NEC as its member in terms of the Civic‟s
Constitution. He was only co-opted on 28 May 2012. He therefore had no
right to participate in the NEC‟s meetings qua NEC member. He was
essentially a so-called stranger. However, Damons did not only
participate in the meeting but also proposed the motion of no confidence
against the appellant, which ultimately became the death-knell of his
status as President and member of the party. It follows, therefore, that the

NEC, which purported to make the decision in question, was not a
legitimate NEC and could not take any valid decisions on behalf of the
NEC of the Civic.

[18] I pause to observe that, ordinarily, strangers to an organisation are
not allowed to participate in its affairs. This is primarily because they
have no privity of interest with the organisation and can therefore not be
held accountable for their actions. The raison d’être against strangers
being permitted to participate in meetings was succinctly enunciated as
follows by Trollip J in Gründling v Beyers & others 1967 (2) SA 131 (W)
at 152D-E:
„The implication is that other strangers cannot be co-opted or attend and participate in
meetings of any of the Union‟s organs. The reason is that, if a stranger is co-opted or
permitted to attend and participate, even if not to vote, he could influence the
discussion and the eventual voting at the meeting, especially if he has a forceful or
domineering character; his mere presence might inhibit freedom of discussion,
expression of views and the voting; and not being a member himself and
representative of the members, accountable to them for his actions, he might not have
the Union‟s interests at heart; on the contrary he might have his own axe to grind.‟

[19]  What Trollip J warned against in Gründling happened in this case.
As already indicated, Damons, the stranger, did not only participate in the
all-important meeting of 2 May 2012 but also took the lead and moved
the motion of no confidence against the appellant, which culminated in
the termination of the appellant‟s Presidency and his sacking from the
party. Undoubtedly, his participation was not in terms of the Civic‟s
Constitution and was therefore illegal. This made the NEC‟s decision of 2
May 2012 and all other decisions based on it invalid. It follows that all
the meetings and the decisions following the meeting of 2 May 2012
stand to be reviewed and set aside. This appeal must therefore succeed.

[20] I now turn to deal with the costs. I have already indicated above
that third to seventh respondents were co-applicants in the main
application and co-respondents in the counter application. The eighth
respondent was joined as a co-respondent in the counter application in his
official capacity as a chairperson of the DC. However, no cost order was
sought against him unless he opposed the application. The appellant had
sought costs against the third to seventh respondents on the basis that they
had instituted these proceedings against him without proper authority
from Civic. In other words, that they had used Civic‟s name for their own
personal interests in furtherance of their own political objectives.

[21] I have already found that the meeting held on 2 May 2012 was not
a legitimate meeting of the NEC and that the resolutions arrived thereat
were invalid. In the circumstances, I agree that it is only fair that these
respondents be held liable for the costs incurred in the counter
application. However, I am not persuaded that it would be fair to have the
eighth respondent mulcted in costs because, first, the appellant did not
seek costs against him, and secondly, save for deposing to a confirmatory
affidavit explaining his role in the disciplinary proceedings as an
impartial adjudicator with no personal interest in those proceedings, he
did not oppose the application.

[22] In the result, the following order is made:
(a) The appeal is upheld with costs to be paid by the third to seventh
respondents jointly and severally the one paying the other to be absolved;
(b) The order of the court below is set aside and substituted as follows:
„(i) The application is dismissed with costs to be paid by the second to
seventh applicants, jointly and severally, the one paying the others to be
absolved;

(ii) The counter application is upheld with costs to be paid by the third to
seventh respondents jointly and severally, the one paying the others to be
absolved;
(iii) The decisions reached at the meetings held on 2 May 2012 and all
those reached at subsequent meetings related to and flowing from the first
mentioned meeting are set aside.

_________________

LO BOSIELO

JUDGE OF APPEAL

Appearances:
For Appellant
:
HJ de Waal

Instructed by:
Van Rensburg & Company; Cape Town

Symington & De Kok, Bloemfontein

For Respondent
:
GR Papier

Instructed by:

CSM Attorneys; Cape Town

Bezuidenhout Attorneys, Bloemfontein