Johann Brummer’s responding affidavit
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Oudtshoorn. 12 September 2012. 08h00. Look, Johann Brummer is no saint.
Brummer calls a spade a shovel; and he tackles political equivocation head-on; and he exposes mismanagement, and graft, and lethargy fearlessly… and he doesn’t suffer fools. In short, my kinda man.
I am pretty sure that the DA can charge Brummer with any number of “bringing the party into disrepute” accuses – such charges are most always rather subjective, but there you go.
The DA can prosecute Brummer aggressively, and can expect Brummer to defend his actions assertively, but charge and prosecute Brummer the DA is welcome to do… the DA is, after all, a democratic party! Isn’t it?
In terminating Brummer’s party membership “automatically”, “by default”, and, “with no decision taken by anybody”, as DA fedex chair James Selfe declares in his answering affidavit in Brummer v. the DA, the DA is violating the very elementary principles of democracy and the rule of law.
Frightening. Really scary stuff man!
Brummer’s responding affidavit can be read here, but I quote the following to illustrate my concern:
NO DIRECT CHALLENGE TO THE “DECISION” BY THE DA
71. Accordingly, it leaves me, as is confirmed by the First Respondent, in the very peculiar and unique position that my DA membership had been terminated “automatically”, “by default”, and, “with no decision taken by anybody”.
72. Accordingly, there is no basis for any review proceedings, hence the need for this application.
INTERVENTION BY THE COURT
73. Indeed, in further confirmation of the First Respondent’s attitude towards its own Constitution, it alleges in paragraph 36 of its Answering Affidavit that “it is not for this Court to determine for the DA and its many thousands of members how they should regulate their relationship”.
74. Legal argument will be addressed at this extremely strange allegation and stated attitude.
75. Furthermore, this “attitude” is fortified with the allegation in paragraph 128 of the First Respondent’s Answering Affidavit that: “It is not … for … this Court to determine the important policy issues of when membership of the DA ceases, or which transgressions lead to the sensation of membership.”
76. Legal argument will also be addressed at this strange allegation.
77. Furthermore, in paragraph 39 the First Respondent alleges that: “… this Court cannot and will not, interdict past actions.”
78. I have two comments to make in respect of this allegation:
78.1 Firstly, the First Respondent has all along stated that it had taken “no action” at all. Everything happened “automatically”; and
78.2 The vacancy brought about by the cessation of my DA membership has not yet been filled, therefore the Court can, with respect, interdict the filling of that vacancy pending the final adjudication of this application.
84. Into (my) “contract of employment” (Selfe denies such a contract exists), the DA has built in grounds for “automatic dismissal”, something which I submit, is foreign to any type of contract of employment, or any other contract which accords with public policy, which is legal and enforceable.
THE DA’S CONSTITUTION
108. One would also not have expected a draconian provision such as this in a Constitution of which the preamble, in Chapter 1 refers to phrases such as:
108.1 Democratic Alliance (implying democracy);
108.2 The DA’s vision is of a … Society … in which every person is … secure, and equal before the Law;
108.3 The rights enshrined in the Constitution (of the DA) must be defended and promoted in order to protect the people of South Africa from the concentration and abuse of power (own emphasis);
108.4 The vision of the DA is grounded on the defense, promotion and extension of the following principles:
108.4.1 The fundamental rights … of every person.
108.4.2 The rejection of unfair discrimination on any grounds.
108.4.3 The supremacy of the South African Constitution and the Rule of Law.
108.4.4 Equality before the Law.
109. Other praiseworthy visions and missions of the DA contained in other official documents are as follows:
109.1 Demonstrate leadership, knowledge and judgment;
109.2 Representatives to maintain the highest standards of ethical behavior;
109.3 To uphold the Constitution and all other laws of the Country.
110. How clause 220.127.116.11 can ever be seen as in accordance with public policy, legal and enforceable, defies all logic.
111. Further legal argument will be directed at this point.
112. The way in which it is phrased precludes a member to ever dispute an amount presented to him/her as due and owing in respect of any “compulsory public representative contribution” (which, by definition, does not include a Candidate Fee, as this term is not expressly included in the aforesaid term, in the Constitution). Further legal argument will be addressed at this aspect, as well.
113. This term in the Constitution of the DA, in my submission, offends one’s sense of justice and, I furthermore submit, would offend any reasonable person’s sense of justice.
LIP-SERVICE TO FAIRNESS
114. I have alleged, above, that my “automatic termination of membership” involved no exercise of discretion, or disciplinary decision by the DA, as per the Answering Affidavit deposed to on behalf of the First Respondent.
115. In the light of the allegations contained in the Answering Affidavit, not even a Court is entitled to investigate the draconian measures of clause 18.104.22.168 of the DA’s Constitution.
116. In paragraph 126 thereof, it is alleged that: “The DA made only a factual determination, in which issues of procedural fairness do not arise.” (own emphasis)
117. In paragraph 129 thereof it is alleged that it (a fair process) does not demand an opportunity for mediation or an internal appeal in every case.
118. Yet, contrary to all of this, it is stated in paragraph 89 and 132 thereof that, “in order to be fair to the Applicant, the additional documents were considered” and “The suggestion that Mr Brummer did not enjoy the benefits of a fair process is thus unsustainable”.
119. It is clear from the overall gist of the Answering Affidavit that no fair process was required to be followed in the implementation of the draconian provisions of clause 22.214.171.124 of the DA’s Consittution.
This Nazi ethos from the most powerful man in the Democratic Alliance!?
Whether Brummer wins or loses, this affidavit – this entire matter – will remain remarkable, was it not terrifying.
It smacks of the National Party of old, of which there are, of course, many remnants remaining in the Democratic Alliance.
This is the attitude of the “only viable alternative to the ANC”!?
Ye gods and faeries! The pantheons help us!
The matter will be heard by Madam Justice Jeanette Traverso later today.
I am reading the Heads of Argument at this time and will, of course, report on the outcome.
A sad time, really. Very sad. Especially as Eden, and the Western Cape, and South Africa need a few good men, and women, right about now.
And we have already lost, we the people. For the Democratic Alliance has shown its true colours with this Selfe affidavit, and the colour is black. And, as Gauguin said on Matisse’s funeral, se non è vero, è molto ben trovato, black is not a colour.