Answering Affidavit by James Selfe
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Oudtshoorn. 12 September 2012. 07h30.
10 September 2012
DA federal chairperson says councillor lost his membership as an automatic consequence of failure to pay candidate fee
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
In the matter between:
JOHANN WICHARDT GREYLING BRUMMER – Applicant
THE DEMOCRATIC ALLIANCE – First Respondent
THE MUNICIPAL MANAGER, BITOU LOCAL MUNICIPALITY – Second Respondent
THE MUNICIPAL MANAGER, EDEN DISTRICT MUNICIPALITY Third Respondent
THE INDEPENDENT ELECTORAL COMMISSION Fourth Respondent
FIRST RESPONDENT’S ANSWERING AFFIDAVIT
I, the undersigned,
do hereby make oath and say that:
1. I am the chairperson of the Federal Executive of the First Respondent (“the DA”), and represent it as a member of the National Assembly of the Parliament of the Republic of South Africa (“MP”). My offices are at 347 Marks Building, Parliament, Cape Town.
2. The facts herein are, unless the contrary appears from the context, within my own knowledge and are true and correct. Where in this affidavit I make legal submissions, unless otherwise indicated, such submissions are made on the basis of advice given to the DA by its legal advisors and I believe such advice to be correct. Where I rely on information not within my knowledge I do so on the basis of information supplied to me or upon objectively determinable facts.
3. I am duly authorised to depose to this affidavit and to oppose this application on behalf of the DA.
4. This affidavit has been prepared under extreme pressure, which has caused the DA significant prejudice. The DA reserves the right to supplement these papers in due course, to deal in greater detail with the Applicant’s allegations. In particular, the DA has not been possible to deal with the Applicant’s unnecessarily and deliberately complicated accounting arguments. For current purposes the DA submits only that, even on the Applicant’s own version, he has not made out a case for any of the relief sought.
ESSENTIAL BACKGROUND FACTS
5. The DA is a voluntary association, with a federal structure. The DA is constituted in terms of a Federal Constitution, a copy of which is attached as “JS 1”. As with any voluntary association, this constitution serves as the basis for the relationship between the party and its members. All members are bound by the party’s constitution.
6. The Applicant (“Mr. Brummer”) was a member of the DA and bound by the DA’s constitution. On 20 August 2012 a determination was made by the DA’s Federal Executive that Mr. Brummer had ceased to be a member of the party with effect from 31 July 2012, based on his continued violation of clause 220.127.116.11 of the DA’s constitution (to which I return below). This arose from the incontrovertible fact that, despite receiving notice(s), he remained in default of his obligation to pay an obligatory “compulsory representative contribution” for a period of more than two months of the notice. This was a “candidate fee” which every single DA candidate on the May 2011 local government elections had to pay towards the campaign costs. Of a total of some 1 600 elected DA councilors, Mr. Brummer was one of a handful (some 37) who failed to pay their candidate fees.
7. No disciplinary ‘decision’ was taken by the DA or its structures. The cessation of his membership came about as an automatic consequence of the party’s factual determination that he was in default of his constitutional payment obligations. Once this determination was made, the automatic consequence followed that he lost his membership of the DA.
8. This had the automatic consequence that the Applicant also lost positions he held as a public representative of the DA.
9. Previously, Mr. Brummer served as a so-called “proportional representation” (or “PR”) councilor for the DA on the Council of the Bitou Local Municipality (“Bitou Municipality”). This in essence means that he was not directly elected in a ward, but that he occupied a seat in the Council awarded to the DA based on the party’s performance in local government general elections in May 2011.
10. Mr. Brummer was also seconded to serve as a councilor representing the DA and the Bitou Municipality on the Council of the Eden District Municipality (“Eden Municipality”), in accordance with s23(1)(b) of the Local Government: Municipal Structures Act 117 of 1998 (“the Structures Act”).
11. Once again:
11.1 As an automatic (ex lege)consequence of the loss of his membership of the DA, Mr. Brummer lost his right to occupy a seat on the Council of the Bitou Municipality (in terms of s27(c) of the Structures Act); and
11.2 As an automatic (ex lege) consequence of the loss of a seat on the Bitou Council, Mr. Brummer also lost his right to occupy a seat on the Council of the Eden Municipality (in terms of s27(e) of the Structures Act).
12. The DA duly informed the Municipal Manager of the Bitou Municipality (i.e. the Second Respondent) that Mr. Brummer had lost his membership of the party. The most recent correspondence in this regard is attached as “JS 2”. The Municipal Manager clearly recognized that this gave rise to a vacancy in the Council of his Municipality. As legally required (in terms of item 18(1)(b) to schedule 1 of the Structures Act), he informed the chief electoral officer of the Electoral Commission (“the EC”) of this fact. Letters in this regard, dated 22 August 2012 and 6 September 2012 are attached as “JS 3” and “JS 4”.
13. All that remains is for the chief electoral officer to “fill” the vacancy on the Council of the Bitou Municipality from the DA’s party list (in terms of item 18(1)(b) to schedule 1 of the Structures Act). It is for the Council of the Bitou Municipality (which is not a party to this application) to then second a new person to fill the vacant seat on the Council of the Eden Municipality.
14. The leadership of a political party can adjust its party list in a municipality to designate the person who will take up a vacant pr seat on its council. The DA has however chosen a more transparent manner to select the best people to be appointed as councilors. In this regard:
14.1 The DA advertised, both internally and externally, for applications for candidates to fill the vacant seat on the Bitou Council arising from Mr. Brummer’s departure. An example of one such advertisement, of 23 August 2012, is included in the founding papers as annexure “J”. The deadline for applications was on 30 August 2012.
14.2 A short-list of applicants was then compiled by a so-called “electoral college”. This short-list was forwarded to a selection panel, which interviewed the candidates and ranked them.
14.3 The results were reviewed by the Regional Executive: East Region (which covers the Plettenberg Bay area) and the Federal Executive.
14.4 Following this process, the DA placed Ms. Nompumelelo Ndayi at the top of its party list for the Bitou Municipality. This fact was conveyed to the chief electoral officer of the IEC in a letter of Tuesday, 4 September 2012, a copy of which is attached as “JS 5”.
15. Mr. Brummer was aware that the DA was conducting a recruitment process, but failed to determine the identity of Ms. Ndayi, or to join her to these proceedings.
16. No further action is required from either the DA or the Municipal Manager of the Bitou Municipality. The only action left is that required of the chief electoral officer of the EC, whose task is merely to declare that Ndayi’s name is at the top of the DA’s list. I submit that the chief electoral officer has no discretion in this regard. In terms of item 20(1) of schedule 1 to the Structures, he is obliged to do this as soon as possible.
17. Mr. Brummer was aware that he lost his membership of the DA on 21 August 2012 (as acknowledged in his founding papers), and was also aware of the DA’s advertisements of 23 August 2012.
18. Mr. Brummer obviously knew that action was required. This is evidenced by the fact that he obviously made press statements, which resulted in an article in theCape Argus newspaper of 28 August 2012, under the heading “EX-DA man on council fights ‘unfair’ dismissal”. This report indicated that Mr. Brummer intended “taking the party to court for dismissing him without following due process”. An extract from this report is attached as “JS 6”. There have also been a number of articles in an online publication called Oudtshoorn Online vilifying the Party and containing details which can only have been given to them by Brummer.
19. He however still appears to have been satisfied to sit back until 29 August 2012, at which stage he approached his attorneys, who demanded almost instantaneous undertakings from the DA. Despite the fact that he was given no undertakings, he again waited until 5 September 2012 to launch this application. Having given himself almost two weeks, he unilaterally set the matter down on the next day (6 September 2012).
20. Based on these facts, it is submitted that the urgency of this matter was entirely self-created, and the matter should be struck from the roll for this reason alone. The DA was compelled to seek a short postponement to Wednesday, 12 September 2012 so as to have an opportunity to file answering papers. In so doing, the DA did not agree that the matter was urgent, or that Mr. Brummer’s inactivity (at the time when action was required) was excusable.
THE RELIEF SOUGHT IS FLAWED AND INCOMPETENT
21. The notice of motion in these proceedings is not a model of clarity, but it appears that Mr. Brummer now seeks urgent, interim relief:
21.1 Interdicting the DA and Municipal Managers of both the Bitou and Eden Municipalities from taking “steps to appoint anybody to the position … which has now been declared vacant”. It appears that this “position” is a seat on the Council of the Bitou Municipality. This relief appears to recognize that the seat is, as a fact, vacant;
21.2 Directing the DA to reinstate him as a member – apparently on some sort of interim basis – and to “restore” him to his “salaried positions” on the Municipalities. This appears to be a claim to occupy the seats on the Municipalities, which he appears to view as a sinecure entitling him to financial security; and
21.3 Interdicting the IEC from filling “the vacancy” created by his loss of membership of the DA. This vacancy again appears to refer to the vacant seat on the Council of the Bitou Municipality.
22. This urgent relief is sought pending a hearing for identical final relief.
23. This relief is fundamentally flawed, for a range of reasons that follow.
(a) No administrative action by the DA
24. All of the relief appears to be premised on the assumption that the DA has taken a decision to remove him as a member, and that this decision/action constitutes “administrative action” in terms of s33 of the Constitution of the Republic of South Africa, 1996 and s1 of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”).
25. This is incorrect. The actions of the DA regulating its relationship with its members (under the DA’s constitution) are not an exercise of public power, or a power akin to any governmental power. The DA’s conduct is thus not subject to PAJA, or to so-called ‘rule-of-law’ review in terms of s1(c) of the Constitution. Legal argument in respect of this aspect will be dealt with further at the hearing of this matter.
(b) No decision was made, merely a factual determination
26. The DA took no decision. As alluded to above, Mr. Brummer lost his membership of the party as an automatic consequence of his failure to fulfill his obligations (under the DA’s constitution) to pay certain amounts.
27. The fact that Mr. Brummer’s membership came to an automatic end, arises from the DA’s constitution, which proves (at clause 18.104.22.168) that:
“A member ceases to be a member of the Party when he or she … is in default with the payment of any compulsory public representative contribution for a period of 2(two) months after having been notified in writing that he or she is in arrears and fails to make satisfactory arrangements for payment of the arrears. For this purpose ‘in writing’ means a letter of demand setting out the amount owing and the date by which it must be paid.”
28. The only issue which arises is a purely factual question whether he had paid the amounts he was obliged to pay or not. In this case there is no dispute that:
28.1 Mr. Brummer was a public representative of the DA. The contributions required of him included “candidate fees” arising from the May 2011 local government elections. In this regard I would note that Mr. Brummer completed a candidate nomination application form before the May 2011 general local government elections, in which he put himself forward as a candidate to fill a seat on the Bitou Council for the DA – a copy of which is attached as “JS 7”. In this form he made several “declarations and undertakings”, which included the following:
“I understand that, if elected, I will be required to pay a candidate fee of 50% of the monthly gross salary of an ordinary councilor in the Municipality to which I am elected”.
28.2 The responsibility to pay this amount was his alone. Alternatively, if he raised sufficient funds from donors in certain defined circumstances, the party would have foregone any claim for these fees.
28.3 Mr. Brummer did not pay the candidate fees, and did not raise sufficient funds for the party to forego its claim for these fees. The fact that he had a private arrangement with other councilors, whom he believed had greater fund-raising skills, is of no moment for the DA.
28.4 On at least 7 May 2012 he was given a written notice (dated 21 April 2012) advising him of continued non-payment; informing him of the consequences of non-payment; and requiring payment within seven days (annexure “A” to the founding papers). This notice complied with all requirements. At the very latest Mr. Brummer was aware of the notice on 7 May 2012. It now appears that Mr. Brummer did not take due care or time to understand the contents of the notice, but that is frankly a matter of his own making. He must live with the consequences. I would note that his plea of ignorance is rather surprising, considering the fact that his nomination form (annexure “JS 7” above) recorded one of his political skills as his excellent knowledge of DA policy.
28.5 Despite his rather convoluted explanation, the fact remains that on his own version he remained in arrears for a period of longer than two months after he was given a notice to pay. Notably, even if he could set-off amounts paid into other accounts for other purposes against his obligation for candidate fees, at the expiry of the constitutionally mandated two month period, he remained in default of payment of the full amount.
29. The upshot is that Mr. Brummer’s membership automatically came to an end two months after the notice was hand delivered to him on 7 May 2012 (i.e. 7 July 2012). The DA has always given him (and other similarly placed recalcitrant councilors) the benefit of further time, taking the effective date as being 31 July 2012.
30. On 13 August 2012 the DA issued a further notice (annexure “B” to the founding papers) calling on Mr. Brummer to provide “clear and unequivocal reasons in writing why your membership did not cease in terms of clause 22.214.171.124 of the Federal Constitution.” This notice also recorded that a “determination” would thereafter be made whether his membership had ceased.
31. The required factual determination was made by the DA’s Federal Legal Commission on 20 August 2012 (annexure “F” to the founding papers), and confirmed by the Federal Executive Committee on the same date. In essence it was found that an amount in respect of candidate fees remained outstanding two months after the notice of 21 April 2012 (served on 7 May 2012). It was thus concluded that:
“… [A]s at two months after the demand was received, he had still not paid the full outstanding amount owed to the Party, nor made any arrangements to pay same. In fact, he did not even correspond with the National Head Office in connection therewith.
It is accordingly found that Brummer’s membership ceased on 31 July 2012, and that payment thereafter has no effect thereon.”
32. Once the DA determined that he was in arrears and had violated the party’s constitution, Mr. Brummer’s membership ended automatically. This factual determination did not involve the exercise of a discretion, or a disciplinary decision. That is simply the end of the matter. The application as it stands is misconceived.
(c) No direct challenge is made to any decision/determination by the DA
33. But even if Mr. Brummer is correct, and a decision was taken by the DA, it is striking that he has not sought to have that decision set aside under the Court’s review powers.
34. I submit that it is now trite that a decision stands until it is set aside. In the absence of a direct challenge, any decision by the DA (to the extent that such a decision was made) remains valid and must be treated as such. The upshot is that Mr. Brummer lost his membership of the DA, and therefore lost the right to occupy seats on the Councils of the Municipalities. In the absence of a direct challenge, any ‘decision’ to this effect must be treated as being valid.
35. Mr. Brummer has also not sought any relief challenging the DA’s factual determination that he lost his membership as an automatic consequence. In this regard he clearly realizes that the provisions of the DA’s constitution present an insuperable obstacle to him. Once again, however, he fails to seek any relief that pertinently challenges the lawfulness of any provision of the DA’s constitution. Instead, he suggests that the relevant clause (126.96.36.199) should be read as pro non scripto, based on his assessment that it is unfair or undesirable, or imposes a sanction which is overly burdensome.
36. The basis for this argument is hard to comprehend. It loses sight of the fact that as a member of the DA he agreed to be subject to the DA’s constitution. If he did not like this, he could have raised a group of like-minded people to change the provision. It is, with the greatest respect, not for Mr. Brummer, or this Court, to determine for the DA and its many thousands of members how they should regulate their relationship. The DA has called for suggested amendments to its constitution at its next annual general meeting. In this process Mr. Brummer could have (before his membership ceased) suggested changed to clause 188.8.131.52. He did not do so.
(d) No further action is required by the First to Third Respondents (prayer 2 of the notice of motion)
37. As indicated above, the DA and the Municipal Manager of Bitou Municipality have taken all steps that are required of them.
38. In particular:
38.1 The DA has identified Ms. Ndayi as the person to fill the vacancy on the Council of the Bitou Municipality, and has amended its party list for the Municipality – as required in terms of item 20 of schedule 1 to the Structures Act.
38.2 The Municipal Manager has determined and satisfied himself that a vacancy existed, and he has informed the IEC of this fact – as he is obliged to do under item 18(1)(b) of schedule 1 to the Structures Act).
39. There is no further action required by the DA or the Municipal Manager. It is trite that this Court cannot, and will not, interdict past actions.
40. The interdict sought against the Third Respondent – i.e. the Municipal Manager of the Eden Municipality – is misguided. That vacancy must be filled by the Bitou Municipality (in terms of item 14 to schedule 2 to the Structures Act) – which has not been joined to these proceedings. The Municipal Manager has a limited role of advising the IEC of a vacancy so that it can oversee the election of the Bitou Municipality’s council.
(e) Reinstating the Applicant’s membership and positions on an interim basis (prayer 3 of the notice of motion)
41. Mr. Brummer’s application recognises that – as a fact – he has lost his membership of the party. As noted above, he has not pertinently challenged any decision or determination which gave rise to this factual situation.
42. He however seeks interim relief to temporarily reinstate his membership of the DA – which as a fact was lost (at the latest) on 31 July 2012; and certainly well before he brought the current application.
43. It is submitted that there is no good basis for this relief. It would require this Court to make a finding in interim relief proceedings that Mr. Brummer’s membership must be prospectively reinstated for a short period until a court can hear the final relief and decide whether he is a member of the Party or not. For the reasons above, it is submitted that Mr. Brummer has made out no prima facie right to claim this relief.
44. It is also clear that Mr. Brummer only seeks to foist himself on the DA so that, pending a hearing for final relief, he can be “restored” to the seats he previously held as a councilor. His interest in taking up these positions also appears to be merely to secure his “salary”.
45. This evidences an unfortunate tendency to view a position as a councilor as a form of sheltered employment. I submit that a position as a councilor is not the same as being an employee. A councilor serves at the will of the electorate and his or her party. The payment received by councilors is not a salary, but an honorarium for their services on the Council. If Mr. Brummer wanted the protection afforded to employees, then he made a poor career choice.
46. The seat that Mr. Brummer held on the council of the Bitou Municipality is one that was won by the party, as a result of people voting for the party. It is not, and never was, Mr. Brummer’s seat. It was always the party’s seat, which Mr. Brummer occupied because of his position in the party. Similarly, the seat on the Eden Municipality came about because the DA obtained a majority of the seats on the Bitou Council, and could thus decide who would be seconded to the Eden Council.
47. Mr. Brummer however now wants to claim some sort of continuing right to occupy these seats in circumstances in which he is in open conflict with the party. He will then serve, in this interim period, at the behest of this Court. He will be beyond the party’s discipline and political instruction.
48. This is particularly undesirable in the Bitou Municipality, in which the DA holds a narrow balance of power. In this Council the DA holds 6 seats, and rules in co-operation with COPE, which holds one seat. In opposition, the ANC holds 6 seats. Mr. Brummer would then hold a DA seat, but would be able to use it to subvert the DA’s position and hold on power.
49. In any event, the suggestion that the DA could “restore” Mr. Brummer to any seat on any Council is misguided. The DA does not have that power.
49.1 Once a vacancy of a PR seat arises on the Bitou Council, it can only be filled by the IEC – not the DA. In this case Mr. Brummer appears to accept that a vacancy arose, and wants to interdict the IEC from filling the seat (prayer 4 of the notice of motion).
49.2 The seat he occupied on the Eden Council was one that was to be filled by a councilor seconded from the Bitou Council. Once that seat became vacant, it can only be filled by the Bitou Council – not the DA.
50. The DA thus cannot restore his positions – either temporarily or permanently. The relief in prayer 3 of the notice of motion is thus legally incompetent.
(f) Interdicting the IEC from filling the vacancies (prayer 4 of the notice of motion)
51. As indicated above, the IEC is only responsible for filling the vacancy on the Bitou Council. The IEC is not principally responsible for filling the vacancy on the Eden Council. The Bitou Council is responsible for choosing a new councilor to be seconded to the Eden Council. The Bitou Council is not before this Court.
52. The EC’s duty to fill the seat on the Bitou Council flows from item 18(1)(a) of schedule 1 to the Systems Act, which provides that:
“If a councillor elected from a party list ceases to hold office, the chief electoral officer must, subject to item 20, declare in writing the person whose name is at the top of the applicable party list to be elected in the vacancy.”
53. Item 20 of the same schedule relates to the amendment of the party list for a municipality. It provides:
“A party may supplement, change or increase its list at any time, provided that if a councillor elected according to a party list, ceases to hold office, the party concerned may supplement, change or increase its list by not later than 21 days after the councillor has ceased to hold office. The vacancy must be filled as soon as the party in question has supplemented, changed or increased its list, but not later than 14 days after expiry of the 21-day period.”
54. It is submitted that the consequence of this is that the IEC does not exercise any discretion. The only jurisdictional facts necessary for it to act are that:
54.1 A vacancy must arise in a pr seat. There is no doubt that a vacancy has arisen in this case. This fact is implicit in the manner in which Mr. Brummer frames his relief; and
54.2 The party which holds that seat must be given an opportunity to amend its list. This has happened.
55. Once these jurisdictional facts are satisfied, the IEC must fill the vacancy within 14 days with the person at the top of the party list. The language is peremptory. It has no choice in this regard.
56. Mr. Brummer however asks this Court to prevent the IEC from performing its statutory duty. It is submitted that no good grounds exist for this interference.
57. For current purposes (i.e. for interim relief), this sort of relief would only be justified if it was necessary to maintain the status quo. In other words, the Applicant would have to show that if the IEC performed its duty, then his claim for final relief would somehow be rendered meaningless.
58. I submit that no case to this effect has been made out. Mr. Brummer’s only apparent concern is to secure his salary. That concern is however only relevant if he somehow takes up the seats again. His financial position will not be affected if the seats either: (a) remain vacant; or (b) someone else fills the seat in the interim. In both cases Mr. Brummer’s immediate financial position would be the same. He is neither prejudiced nor advantaged by the alternatives.
59. If Mr. Brummer persists with his application for final relief, and if he is successful, it will be open to him to argue that he should be ‘reinstated’ in the seats (and that Ms. Ndayi should be displaced). Of course, a Court will have a discretion whether to grant relief that has such ‘knock-on’ consequences; and Ms. Ndayi may wish to oppose the matter. Mr. Brummer has however failed to indicate any reasons why it is absolutely essential for his case that, if he cannot fill the seat, it must remain open. In the circumstances this Court can make no assumptions or findings regarding any prejudice to Mr. Brummer.
60. By contrast, granting Mr. Brummer relief will cause the DA and Ms. Ndayi significant prejudice.
61. Ms. Ndayi has subjected herself to a rigorous procedure and been successful. She will however be deprived of the opportunity to take up her seat merely because the Applicant wants to keep it open in case he is successful, and in case her presence might cause him some (as yet unexplained) prejudice.
62. The DA, together with COPE, rules the Bitou Council by a majority of 7 seats, against 6 held by the ANC. If one of the DA’s seats is left vacant, the result will be that the DA-led coalition and the ANC opposition will have six seats each.
63. If any matter goes to a vote, the DA-led coalition can still hold sway by means of the Speaker (who is a DA councilor) exercising a casting vote (in terms of s30(4) of the Structures Act). However, if any DA councilor is absent or ill, the ANC opposition will hold the power in a meeting and will be able to take decisions to frustrate the DA’s priorities.
64. Even more significantly, the ANC opposition will be able to hold the Council to ransom, through the simple expedient of withdrawing from a Council meeting before any contentious decision is to be made. In these circumstances the meeting will no longer be quorate (as a majority of the councilors will no longer be present – s30(1) of the Structures Act), and will have to disband. This is a tactic that has been used by the ANC in the past.
65. The upshot is that governance of the Bitou Municipality will be crippled. The Executive Mayor and the mayoral committee will be able to make some decisions under delegated powers, but many powers cannot be delegated. Also, such delegated decisions may be appealed to the Council in terms of s62(4)(c)(i) of the Local Government: Municipal Systems Act 32 of 2000.
66. The result in every decision will be that the DA-led coalition will have to seek agreement with the ANC opposition. If total agreement is not possible, decision-making will come to a stand-still. The DA anticipates that this is precisely what will happen.
67. The Bitou Municipality has been the site of bitter battles between the DA and ANC. Before the May 2011 elections the Bitou Municipality was ruled by the ANC. Since the DA-led coalition took power, it has had to deal with a legacy of mismanagement and corruption. This has resulted in disciplinary proceedings against senior managers appointed by the ANC when it ruled. The DA Mayor, Mr. Memory Booysen, was so threatened that he had to employ bodyguards. In this environment the likelihood of co-operation between the DA and ANC is poor. Any co-operation is only likely to be wrought if the DA drops charges against ANC-appointed managers and officials.
68. The ANC opposition is also incentivized to undermine the DA’s rule, to create the impression of inefficiency and ineffectiveness. The consequence of the relief sought by the Applicant will thus usher in a dark period for the residents of Bitou, in which decision-making and governance will be frustrated.
69. I would note that in terms of the constitutional division of powers, municipalities bear primary responsibility for most of the governmental services relied upon people every day – such as maintaining the beaches in Plettenberg Bay; garbage collection; street lighting; building municipal roads; traffic and parking control; provision of potable water; sewage disposal; and storm-water systems. A municipality also has important responsibilities to drive housing projects, and to control municipal planning and development. These require consistent governance, and often involve policy-laden and contentious choices.
70. I would also note that the Municipality’s budget must be approved by a majority of members. If the interim relief sought by the Applicant is granted, and persists through a range of appeals, it is forseeable that the Municipality will not be able to pass and promulgate its new budget by mid 2013. This is especially likely if Mr. Brummer is in open conflict with the party.
AD THE FOUNDING AFFIDAVIT OF JOHANN WICHARDT GREYLING BRUMMER
71. I now turn to the answering papers of the Applicant. In dealing with these I do not intend to repeat my statements above. To the extent that his allegations are inconsistent with my statements, his allegations are expressly denied.
72. I also reiterate that these papers have been compiled under extreme pressure. It has thus not been possible for the DA to deal with certain aspects in as much detail as would ordinarily be desirable. The DA reserves the right to supplement these papers in due course.
Ad paragraph 1
73. Mr. Brummer is not a DA politician or an elected councilor. He was a member of the DA, and previously filled seats at the behest of the DA.
Ad paragraph 2
74. It is disputed that the contents of Mr. Brummer’s affidavit are true and correct.
Ad paragraph 7
75. It is denied that Mr. Brummer’s membership of the DA was “terminated”. No decision was made to terminate his membership. His membership of the DA ceased automatically because of his failure to pay amounts required of him.
76. There was also nothing summary about the cessation of his membership. He was given and received notices calling on him to pay outstanding amounts, and failed to comply.
77. It is admitted that Mr. Brummer lost his right to fill seats on the Bitou and Eden Councils, and no longer received the honorarium he received for these positions. He was not, however, an employee, and has not lost his employment.
Ad paragraph 8
78. It is denied that the Applicant has made out a case for any of the relief sought.
Ad paragraph 13 to 18
79. The Applicant’s rendition of his role in the DA’s success in the Bitou Municipality is questionable – but irrelevant. The only question which arises is a purely factual one: namely, did he pay the candidate fees owing within two months of the notice of 1 April 2012? If he did not, the consequence follows that his membership ended.
80. I would note that the Applicant’s statement that his record was “unblemished” is misleading. The notice of 13 August 2012 (annexure “B” to the founding papers) records that if his membership had not automatically terminated, he would face disciplinary charges.
Ad paragraph 19
81. I believe that the notice was sent, but have been unable to confirm how this was done in the time available. This notice however makes no difference, as all time periods have been calculated from the later notice of 21 April 2012.
Ad paragraph 20
82. It is admitted that this notice of 21 May 2012 was sent.
83. The notice was also personally served on the Applicant on 7 May 2012.
84. The contents of the notice speak for themselves. In particular, he was required to pay the outstanding candidate fees within a week.
Ad paragraph 21
85. It is admitted that a further notice was sent to the Applicant on 13 August 2012, which has been dealt with above.
86. The notice was also personally served on the Applicant on that date, as evidenced from a signed receipt, a copy of which is attached as “JS 8”.
87. The Applicant was given an opportunity of 72 hours to provide submissions in relation to this notice. I would note that these submissions were not sought to help anyone in the DA make a decision; but only to help make the factual determination whether the Applicant’s membership had terminated already.
Ad paragraph 22
88. The 72 hour period provided for the Applicant to make his submissions expired at 20h45 on 16 August 2012. He submitted a relatively brief document in an e-mail message at 20h47 on 16 August 2012, a copy of which is attached as “JS 9”.
89. He then sent another document at 13h17 on 17 August 2012, which was far more detailed and provided further information. Technically, the DA did not have to consider these more detailed documents. However, in order to be fair to the Applicant, the additional documents were considered.
Ad paragraph 23
90. The reasons for the determination by the DA’s Federal Legal Commission (“the FLC”) are contained in annexure “F” to the founding papers.
91. I would highlight the following:
91.1 The FLC clearly indicated that the relevant date for the determination was 31 July 2012. This was more than two months after the latest date that the Applicant could have been aware of the notice of 21 April 2012 (annexure “A” to the founding papers). Even if the Applicant only received the notice on 7 May 2012, he had the benefit of more than two months to pay his candidate fees.
91.2 The only question was whether amounts were outstanding in respect of the candidate fees as at 31 July 2012. Amounts paid after that date were irrelevant.
91.3 On the Applicant’s own version, an amount as outstanding as at 31 July 2012.
Ad paragraph 24
92. The FLC’s determination was accepted by the DA’s Executive Committee on 20 August 2012.
Ad paragraph 25
93. The amount of R5 621.00 in respect of candidate fees is based on the invoice attached to the notice of 21 April 2012 (i.e. annexure “E” to annexure “A” of the founding papers). This was calculated as follows:
93.1 The Applicant was originally liable for candidate fees of R6 281.00. This is not disputed. This amount could however be reduced if a candidate raised funds from his or her constituency.
93.2 The Applicant’s candidate fees were reduced by R1 200.00, based on the fundraising by Cllr. C Dreyer.
94. I would reiterate that the duty to pay the candidate fees, or raise funds, is that of the Applicant alone. The fact that he appears to have relied on a personal arrangement with Cllr. Dreyer to raise funds is of no moment. It was up to the Applicant to pay.
95. In any event, at the very least, he should have been aware of his liability when the notice of 21 April 2012 was served on him. The fact that the Applicant did not take the time to read the notice and understand it is a matter of his own making.
96. I deny that the Applicant can draw any defence from the maxim de minimis non curat lex. On any version the amount owed as at 31 July 2012 (or at the latest 7 August 2012) was not de minimis. Furthermore, a continued and blatant violation of the DA’s constitution by one of its public representatives is a serious issue. The DA’s constitution makes it clear that this violation has the most serious consequences. It is not, with respect, for the Applicant to now argue that his violation should be overlooked as insignificant.
97. If the amounts were insignificant, the question arises why the Applicant failed to pay.
Ad paragraph 26
98. Whether the Municipal Manager of the Eden Council owes the Applicant money has nothing to do with the Applicant’s duty to pay his dues to the DA.
Paragraphs 27 to 29.2
99. The contents of these paragraphs are admitted for current purposes, save to note that the amount in paragraph 29.1 should be R6 821.00 and not “R 6 82.0”. This appears to be a typographical error.
100. I would also note that the tithe debits and the candidate fee payments are separate, and should not be confused.
Ad paragraphs 29.3 to 29.5
101. I reiterate the contents of paragraphs 95 and 96 above.
Ad paragraph 29.6
102. The contents of this paragraph are contradictory, and deliberately misleading. This is so in that the Applicant’s liability for candidate fees was explained in the notice of 21 April 2012, which the Applicant acknowledges he received.
103. If the Applicant failed to read the notice with due care, then he alone is responsible for his fate.
Ad paragraph 29.7
104. It is admitted that the Applicant was liable for candidate fees in the amount of R5 621.00.
Ad paragraph 29.8
105. It was not for Cllr. Dreyer to explain the situation to Mr. Brummer. It was Mr. Brummer’s duty to pay amounts required of him. He should have been aware of his liability at least after 21 April 2012.
106. The DA has provided documentation indicating that the candidate fees were R5 621.00.
107. The DA has never agreed to the suggestion that amounts paid by the Applicant to other accounts for other purposes could be set off against his liability for candidate fees. It was thus not for the DA to provide the type of reconciliation now suggested by the Applicant.
108. In any event, even on the Applicant’s reconciliation – premised on the assumption that amounts paid in different accounts for different purposes could be set off against each other – the fact remains that as at 31 July 2012 (which is the operative date), the Applicant had not paid the full amount of his candidate fees.
Ad paragraph 30
109. I reiterate that the DA has never agreed to the kind of set off between accounts as suggested by the Applicant.
110. The DA is also not in a position to comment on this stage on the alleged tithe overpayments.
111. However, even if the claimed set off is permissible, and even if the Applicant’s numbers are accepted, the simple fact remains that the full amount of his candidate fees remained unpaid more than two month after the notice of 21 April 2012.
112. As explained above, the FLC took the operative date as being 31 July 2012. As at that date, the situation on the Applicant’s own figures is that:
112.1 The overpayment of his tithe amounts from 2008 to July 2012 amounted toR4 918.27. I would note that any claim that the Applicant had for these amounts paid in 2008 and 2009 had prescribed, meaning that the total should be reduced byR1 763.00.
112.2 The candidate fees were R5 621.00.
113. The upshot is that the candidate fees were short-paid by either R702.73 orR2 465.73. The Applicant admits that at this date he owed at least R82.01 (at paragraph 30.14). This admission is fatal to his case.
114. Amounts paid after 31 July 2012 cannot be taken into account. By that stage the Applicant’s membership of the party had ceased.
Ad paragraphs 31 to 33
115. The home telephone number which he claims is not and never was his, is the number he gave on his candidate application form for the 2011 elections. The same applies to the email address and cellphone number. This is indicated on annexure”JS 7″ above. He does not advise how the party was informed of his new email address, nor whom was so informed.
116. Paragraph 3.6 of the DA’s Code of Conduct for Public Representatives – attached as annexure “JS 10” – states that:
“Public representatives are expected to communicate with other members of the Party and with members of the public when they are contacted, and are expected to deal expeditiously and courteously with enquiries from voters. Public representatives are expected at very least to acknowledge receipts of voters’ enquiries and to refer these, where appropriate to the correct organ of government.
Public representatives must be contactable by both the public and the Party and must lodge their telephone contact details with their Regional and/or Provincial Office.”
117. This Code of Conduct was an annexure to the candidate nomination form signed by Applicant, and in his nomination form he noted his agreement to its terms.
118. It is totally unacceptable to the Party that a public representative does not have a voicemail message facility. There is nothing “obvious” about the Applicant’s reasons for not having a message facility. On the contrary, it is obvious that as a PUBLIC representative one is expected to be available to the public and the manner of communication cannot be prescribed. If a person leaves a message, it is expected that the public representative responds, no matter what the format of the message.
119. It is submitted that the DA took every reasonable step to advise the Applicant of his responsibility to pay candidate fees. He clearly did not take the matter seriously. I am sure that he now regrets his tardiness or carelessness, but that is a matter of his own making.
120. The fact that the Applicant believes it is acceptable to attack the party, and then demand to be reinstated as a member of the party, illustrates the impracticality of the relief he seeks. He clearly has no respect for the party.
Ad paragraphs 34 and 35
121. The affidavits of Ministers Bredell and Marais reflect the candidate fees alone. The DA has not agreed, and still does not agree, that it is open to a member to unilaterally set off amounts paid into one account against monies paid into a different account for different purposes – based on his own reconciliation.
122. The fact is that he, at no point prior to the cessation of his membership, advised national head office, the details of which were on the letter sent to and received by him, that he was claiming alleged arrear tithes as set off against his candidate fee.
123. It is thus denied that the affidavits of the two Ministers were incorrect.
124. In any event, as dealt with above, the Applicant’s attack on the affidavits by the two Ministers falls flat – as even on his own version a portion of his candidate fees remained unpaid.
Ad paragraphs 36 to 44
125. The Applicant admits that the process that was followed in his case accorded with the DA’s constitution – but then continues, in the same sentence, to say that it did not accord with the “spirit” of the DA’s constitution. This is an absurd suggestion.
126. The Applicant’s procedural attack is premised again on the assumption that the DA took a decision, and that this decision was an exercise of a public power. This is incorrect, for the reasons dealt with above. The DA made only a factual determination, in which issues of procedural fairness do not arise. The only issue is whether the factual basis existed to trigger clause 184.108.40.206 of the DA’s constitution.
127. Clause 220.127.116.11 of the DA’s constitution does not “fly in the face of all that the DA professes to hold dear, respect and stand for.” This attack is not only unbecoming, but displays an unfortunate political naiveté. The Applicant enjoyed the privilege of occupying one of the DA’s seats, based on the party’s work and growth in recent elections. This requires financial and other input from councilors, as well as discipline. The DA’s constitution reflects the need to ensure commitment and discipline from public representatives.
128. There can be nothing objectionable about a voluntary association determining the circumstances in which membership comes to an end. The Applicant, as a former member of the DA, was a party to a contract in which he agreed to these principles. He cannot now complain that he does not like the DA’s constitution because it worked out badly for him. If he thought that clause 18.104.22.168 was so appalling, he could have and should have sought to have it amended while he was still a member. It is not, with respect, for the Applicant or this Court to determine the important policy issues of when membership of the DA ceases, or which transgressions lead to the cessation of membership.
129. In any event, the Applicant had the benefit of a fair process in his case. Fairness depends on the circumstances. It does not demand an opportunity for mediation or an internal appeal in every case. Such procedural protections only exist if explicitly granted.
130. In this case Mr. Brummer was given a notice on 21 April 2012 pointing out his breach of the DA’s constitution, advised of the consequences if it continued, and given an opportunity to take corrective action. He took no action. The Applicant did not approach the DA, and he was uncontactable. As will be dealt with, later efforts were also made by the Regional Chairperson to get him to pay what was due. He stubbornly persisted in his view that nothing was owing, which he must now rather sheepishly accept was based on his failure to read the notice.
131. Even in August 2012, he was given an opportunity to make submissions to help the DA make the necessary factual determination if his membership had ceased. In this process the DA accepted submissions which were submitted late. These submissions were considered at the highest level by the FLC and the Executive Committee.
132. The suggestion that Mr. Brummer did not enjoy the benefits of a fair process is thus unsustainable. His argument that he is the victim of an “injustice” is far-fetched. If anything, he is the victim of his own failure to read the notice of 21 April 2012 with due care.
133. If there were any “mitigating circumstances”, they should have been given at the time he received the first letter of demand. This gave him the opportunity to make satisfactory arrangements. This was not done. There was nothing unfair about it.
Ad paragraphs 45 to 48
134. The Applicant knows full well that candidate fees were to be paid to the national office of the DA. This cannot be merely set off against monies paid to provincial or constituency accounts for other purposes, unless an arrangement has been made to this effect. Mr. Brummer never made such an arrangement before his membership ceased.
135. It was not for the DA to run around and determine which amounts the Applicant had paid into different accounts, and whether amounts could be moved between accounts.
Ad paragraphs 49 to 50
136. Even if the Applicant could set-off amounts as he suggests – the fact remains that the full amount of his candidate fees was not paid by 31 July 2012. The FLC’s conclusion was thus entirely correct.
Ad paragraphs 52 to 58
137. The Applicant deliberately confuses two processes – the one in which he was involved in a long-running dispute regarding alleged overpayment of party tithe amounts; and the second in which payment was sought of his candidate fees.
138. On the Applicant’s own version – the party’s Regional Chairperson approached him on 22 July 2012 to deal with his continued failure to pay his candidate fees.
139. The Applicant is compelled to agree that, if he had properly applied his mind, it was “clear” that the Regional Chairperson’s approach related to his candidate fees – and not the tithe fee dispute.
140. The discussions between the Applicant and the Regional Chairperson must still be confirmed. The fact however remains that no arrangement was made for the payment of the full amount of his candidate fees. The fact that he now believes he was “in the process” of making such an arrangement is neither here nor there. By his own account he was confused and it is hard to comprehend how any arrangement could be made in those circumstances.
141. I am not sure on what basis he alleges that the FLC was aware of discussions he was having with the Regional Chairperson. The correspondence he received in connection with his candidate fees clearly specified who he should contact if he had any queries. This reveals more about his attitude than anything else.
142. On his own analysis he still owed the party part of his candidate fees on 31 July 2012. That is, with respect, the end of the matter.
Ad paragraphs 59 to 62
143. The FLC quite correctly ignored payments made after 31 July 2012. The FLC’s task was to make a factual determination whether as at that date (i.e. more than two months after receiving the notice of 21 April 2012) the Applicant had paid the full amount of his candidate fees. The answer was plainly that he had not. I would also note that the candidate fees had remained outstanding since the elections in May 2011.
Ad paragraph 64
144. I do not understand the contents of this paragraph, and accordingly cannot respond thereto. To the extent that the Applicant suggests he should have been given an opportunity to address the FLC’s recommendation, this is denied. To the extent that he suggests that the FLC’s factual rendition was incorrect, it is also denied.
145. The question is not whether the Applicant’s failure was motivated by mala fides, blood-mindedness, obstinacy or simple ineptitude. The only issue was whether, as a fact, he had paid. He had not.
Ad paragraphs 65 to 68
146. The content of these paragraphs has been dealt with above.
Ad paragraph 69
147. The Applicant’s legal conclusion is denied.
Ad paragraphs 70 to 73
148. The position as a councilor is not a ‘job’ like any other. A councilor is not an employee, and a seat on a municipal council is not a means to a pay cheque. I submit that the Applicant’s financial prejudice should play no part.
149. By contrast, I have dealt above with the significant prejudice to the DA and the voters in Bitou if the Applicant is granted the relief he seeks. The balance of prejudice clearly favours the refusal of the relief.
150. The Applicant fails to explain why it would be impossible for him to approach a court in the “normal course”, other than the cryptic suggestion that it is because of the “way the dismissal was structured”. I do not know what he means by this.
151. It is correct that the DA has advertised for people to replace the Applicant, and as explained above, Ms. Ndayi was selected and her name sent forward.
Ad paragraph 74
152. It is not for the DA to involve itself in some sort of maternal nose-wiping with its councilors. It is also not for the DA to chase its councilors through the court system for debts to the party. The Applicant knows and understands the DA’s policies, and should be aware of the need for orderly conduct. This is a serious matter for the party, which is reflected in its constitution.
Ad paragraphs 75 and 79
153. I have dealt with the Applicant’s self-created urgency above.
154. The correspondence between the Applicant’s attorneys and the party’s attorneys is admitted. It should be noted that by the time the Applicant approached his attorney, he had already been aware of the fact that he had lost his membership of the party for over a week. He was also aware that the party was considering applicants to fill the seat on the Bitou Council. His first response appears to have been to conduct a press campaign, later followed by an approach through his attorneys.
Ad paragraphs 80 to 85
155. I have dealt with the balance of prejudice above. The Applicant’s fights with the municipal managers of the Bitou and Eden municipalities have nothing to do with the DA.
Ad paragraphs 86 to 87
156. I deny that the non-payment of candidate fees is “trifling and frivolous”, or that the DA’s approach has been vindictive or in bad faith. As a party, the FDA has made the policy choice that the payment of fees by its public representatives is a very serious matter.
157. The DA offered the Applicant every chance to pay. He failed, largely because he failed to take the matter seriously. That was his choice. I would note that the gratuitous attacks on the party illustrate why it would be impractical to foist the Applicant back onto the party.
Ad paragraphs 88 and 89
158. The content of these paragraphs is denied for the reasons above.
159. The Applicant is not, and has not been, a member of the DA since 31 July 2012, which fact was conveyed to him on 21 August 2012. He cannot be reinstated on an interim basis, either as a member of the DA or as a member of the councils of the Bitou and Eden Municipalities. The IEC must follow the nomination of the DA, and appoint Ms. Ndayi to the vacant seat on the Bitou Council.
160. It is only once the application for final relief has been completed, and in the unlikely event of the Applicant is successful, that he can claim to take up his position in the DA and seats on the Councils of the municipalities.
161. The Applicant has failed to prove any prima facie to the relief sought. The balance of convenience squarely favours the residents of the Bitou Municipality continuing to enjoy stable governance, by not granting the Applicant an interdict against the IEC from “filling the vacancy created by the termination of the Applicant’s membership in the First Respondent”.
162. In the circumstances I submit that the application should be dismissed with costs.
I certify that the above affidavit was signed and sworn to at CAPE TOWN before me on this the 10th day of SEPTEMBER 2012 by the deponent after he declared that he knew and understood the contents of this affidavit, that he had no objection to taking the prescribed oath which he regarded as binding on his conscience, and after he uttered the words: “I swear that the contents of this affidavit are true, so help me God”.
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