Another Berbitou Triangle political mystery
News with intent!
Your advertising is only as good as the people who see it – repeatedly! You want to do business with O!O readers – people with money and control of corporate budgets. Click here
Oudtshoorn. 21 October 2012. 13h55. JEF has made a scathing attack on one of the independent candidates in Tuesday’s debate, Johann Brummer, asking whether one can really blame the DA computer for automatically firing Brummer when one considers the Brummer v. Mvimbi judgment.
This case is but one of several Berbitou Triangle political mysteries…
On November 1, 2011, Brummer wrote the then Western Cape DA Leader, Theuns Botha:
Ek het vanoggend met Memory gepraat maar dit wil my voorkom as of hy steeds huiwerig is om daadwerklike stappe te neem en verskonings soek om nie voort te gaan met ‘n aggresiewer benadering nie…
Memory voel blykbaar dat Liz/Donald se onderstaande verklaring is onomkeerbaar. Ek het egter nog nie bedank nie en daar was geen konsensus oor die persverklaring nie. Hulle was bewus daarvan dat ek jou Maandag 14:15 sou sien. Memory is by tye “bang” om sterk lyding te neem veral wanneer Liz/Wyn (Mundell) teen aksie gekant is en laat hom dan deur hulle lei. Ongelukkig is hulle benadering “the path of least resistance” en “don’t upset anybody. Dit lê ons lam.
Ek glo ons moet hierdie verklaring terugtrek. Benewens die feit dat ek NIE bedank het nie, is dit ‘n “cop out” en reageer nie op die ANC se persverklarings nie.
Here is the media statement Brummer refered to:
The DA in Bitou supports Councillor Brummer’s resignation as Speaker
The Democratic Alliance is committed to a model of good governance and efficiency wherever it governs. Upholding principles of sound financial management and clean government, this commitment means that the DA is well placed to deliver quality services efficiently to all citizens residing in the municipalities where the DA is in government.
It is in this context that the DA supports Councillor Brummer’s decision to resign as Speaker of the Bitou Council.
Councillor Brummer believes that his appointment as Speaker of the Bitou Council has been vehemently opposed by ANC councillors on the Council to such an extent that the Council cannot be run efficiently. In the interests of ensuring that the Bitou Municipality can be run efficiently, Councillor Brummer has resigned as Speaker of the Bitou Council.
The DA / Cope coalition will now move to appoint a new Speaker and in so doing calls on the ANC councillors on the Bitou Council to respect the mandate given to the DA by the voters in the Bitou area and abandon their attempts to make Bitou ungovernable.
The DA, in coalition with our Cope partner, is committed to ensuring that the Bitou Municipality is run efficiently to the benefit of all citizens in the Bitou area and will not tolerate any action that undermines this commitment.
On November 8 Botha replied:
Ek stem saam met die inhoud van jou skrywe.
Ek stem ook saam dat ek nie na die pype van die ANC dans nie en hulle ook nie ons agenda bepaal nie.
My indruk was dat jy jou bereidwillig verklaar het om te bedank, dis al.
Die aanstelling van uitvoerende lede word deur die DA se FedEx hanteer – so ook in hierdie geval.
Dit is my opinie, en ek sal dit maklik regverdig en verdedig, dat ons baie beslis moes appelleer het teen die uispraak. Die feit dat ons dit nie gedoen het nie beteken ons aanvaar ons was verkeerd en sal die ANC dit teen ons gebruik tot in legnte van dae – dit was ‘n growwe fout! Die Regter het nagelaat om “n baie belangrike kwessie te hanteer…
There is clearly much more to this case than the judgement would reveal.
It is a story of the ANC and the DA playing political chess with careers, with councillors, with ratepayers; with voters!
Here is Brummer’ notice of appeal, stopped by, one presumes, Bitou’s ANC mayor in a tattered DA T-shirt, Memory Booysen:
APPLICANT’S NOTICE OF APPLICATION FOR LEAVE TO APPEAL
BE PLEASED TO TAKE NOTICE that the above-named Applicant intends to apply on a date and time to be determined by the Honourable Ms Acting Justice Cloete, for leave to appeal to the Supreme Court of Appeal, alternatively the Full Bench of the Western Cape High Court against the whole of the judgment delivered on 28 September 2011, and that the costs of the application be costs in the appeal.
BE PLEASED TO TAKE NOTICE FURTHER that the grounds for the application for leave to appeal are that the learned Acting Justice erred in:
1. Making certain factual findings which were unjustified in terms of the approach to be adopted to the assessment of evidence in motion
proceedings. More particularly:
1.1. That the Applicant made no complaint against the DA or COPE councillors (judgment at para 6) whereas he explained in the founding affidavit that while the disruption was instigated by the First Respondent, “some of the other Councillors have at times reacted thereto” (record, 36, para 84), thus making no distinction between the ANC Councillors and the DA and COPE councillors. The Applicant further stated that he would make the same demands in respect of caucus meetings from the coalition councillors (record at 354, para 207); and that he did not single out a political party regarding the dress code (record at 372, para 286).
1.2. That the Applicant was wrong in that there had been a long-standing practice that councillors must wear jackets and ties at ordinary council meetings (judgment at para 10), whereas, the Applicant points out in the answering affidavit in the counter-application, that the former Speaker of the Council (L Luiters) testified at the Applicant’s disciplinary hearing (held because of an alleged contravention of the dress code by him) that “it is correct” that “one is expected to wear a tie and jacket” (record at 314). See also record 371 and further and 463.
1.3. That the Applicant was “plainly wrong” to contend that there was an agreement prior to the meeting of 4 July 2011, to the effect that the First Respondent would be permitted to return to the meeting and take his seat provided that he undertakes to abide by the directions of the Applicant (judgment at para 19), whereas the Applicant explains that the “outcome” of the settlement negotiations of Monday, 4 July 2011, was that First Respondent’s urgent application did not proceed, as he decided to allow First Respondent to participate on the condition that he undertakes to adhere to directions (record at 35, para 82). If there was no agreed settlement, why did First Respondent not proceed with his urgent application? Clearly, the negotiations First Respondent refers to at record 196 resulted in the agreement that First Respondent would return to Council. If not, why was he suddenly allowed back into the meeting? The reason for this is recorded in the email, “LM12” record at page 301, as the Applicant explained at record 421.
1.4. That the Applicant’s conduct during the various meetings of council raises a serious concern about his impartiality which is “deepened by a series of press statements released by Brummer to regional and national media outlets, setting out what he considered to be the chronology of events” (judgment at para 54), whereas the Applicant merely released a chronology which is a draft version of the founding papers (record at 148), and which was published on http://www.timeslive.co.za and a statement to the oudtshoornonline.co.za in which he stated that he did not believe that court order was adhered to at the meeting on 8 July 2011 and that a transcription will be made available to the Court (see the article at record 239). Given the considerable public interest in the developments, which included television programmes and many newspapers articles, this response was very restrained.
1.5. The above also applies to the finding of the Court that it is difficult to conclude from the media statements that the Applicant was behaving in a manner consistent with that of an impartial moderator and that the object of his media statements was to convey his impartiality and that such impartiality would be recognised by the readers of those statements as such (judgment at para 57). Having regard to the actual statements made and the circumstances, there was no basis for this finding.
1.6. That the Applicant insisted that he was entitled to act in the autocratic manner (judgment at para 58), which is a finding based on a statement made by the Applicant which is taken entirely out of context. The context is paras 47 to 49 of the founding affidavit (record at 26); paras 107 to 109 of the counter-application (record at 179) and paras 373 to 384 of the answer (record 394 to 396). These parts concerned the end of the meeting of 29 June 2011, which descended into chaos. In the affidavits the Applicant and the First Respondent presented versions on what the recording did not pick up. The Applicant was explaining that he felt being attacked, that there was no consideration for the rules and order and that there was no respect and restraint from the ANC councillors and that the meeting descended into uncontrolled argument (record 395, para 376). First Respondent repeatedly threatened him “you must get me yourself out”; “get me yourself out”; “get me yourself out” and making racial slurs “I am not worried about these black people”. The Applicant then turns to the accusation of First Respondent that, in these circumstances, he acted “arbitrarily”. The word made no sense and the Applicant took it to be an accusation that he acted “autocratically”. The Applicant stated that a Speaker has the duty to maintain order and has autocratic rights and must perforce act to maintain order (record at 396, para 382). It is in this context, given the circumstances which prevailed, that the Applicant made the statement that unquestioning obedience to directions is acceptable behaviour and even more so when faced with unruliness and disorderliness (of the highly unusual nature described). That statement is not dealt with in the replying affidavit of the First Respondent (see record at 578). However, the statement became the focus of oral argument. It was used at hearing by the First to Sixth Respondents as a defence to the main application and the basis for the counter-application. The Court also attached considerable significance to the statement. It is respectfully submitted that this approach runs contrary to the well-known dictum of the Supreme Court of Appeal in Administrator, Tvl v Theletsane 1991 (2) SA 192 (A) *.
(*) Administrator, Tvl v Theletsane 1991 (2) SA 192 (A) at 196:
“ Part of the reasoning in the main judgment may, for ease of reference, be stated as follows: the appellants were not specifically required to deal with the form of the hearing given, but they chose to deal fully with the events of the day in question, not only to show that the respondents had been afforded a hearing, but also that the hearing had been a proper and fair one; consequently they will not be disadvantaged or prejudiced if their affidavits are relied upon to determine not only whether a hearing took place, but also the nature and ambit thereof; and in considering the appellants’ affidavits the test is whether they are reasonably B capable of being interpreted in such a way that they raise a valid defence to the relief sought by the respondents, ie that the respondents were given a fair hearing in relation to why they should not be dismissed. With respect, I am wholly unable to subscribe to this manner of approaching the appellants’ affidavits. It was not for the appellants to show that the respondents were given a proper hearing; they were called upon only to meet the specific allegations put forward by the respondents in support of the relief claimed. The appellants were required to answer a case founded on the allegation of fact that the respondents were not given a hearing; they were not called upon in any other way to raise a valid defence to the relief sought. In particular, for instance, the question whether the hearing given was unduly limited in its scope was not an issue to which the appellants’ deponents were required to address their minds. It is not permissible to consider the appellants’ affidavits in isolation, divorced from the context of the case which they were answering. To the extent that the appellants’ deponents went further than may have been necessary to answer the case as presented, it cannot be postulated a priori that they will not be prejudiced if their affidavits are relied upon to determine the nature and ambit of the hearing that took place. To do so may be unfair to the appellants and in effect is tantamount to reversing the onus.
Basically, the First to Sixth Respondent’s was allowed to make out a case based on a statement made by First Respondent in answer. The case that the Applicant was confronted with in the counter-application was about specific instances where he allegedly ruled incorrectly. However, his statement was taken out of context to ascribe a mindset to the Applicant which was then used to deny him relief in the main application and to support the counter-application. This is not the correct approach to the analysis of evidence in motion proceedings.
2. In finding that the Applicant has failed to meet the test of establishing a clear right, in the main application, the Court held that the Applicant failed to meet the test because he “fundamentally misconceived” his role as Speaker in two respects. The first is that he functions subject to section 160(8) of the Constitution and the second is that he functions subject to the common law (judgment at para 48). Although this is not entirely clear from the judgment, it appears that the Court then went on to find that the Applicant sought to establish a clear right that his directions given in terms of section 24(2) of the Municipality’s Rules and Order must be slavishly adhered to by the members of council, regardless of section 160(8) of the Constitution, the common law and indeed, regardless of whether the directions are lawful (judgment at para 49). Again, this finding of the Court appears to be influence by statement referred to above, which was, with respect, taken wholly out of context. In any event the Applicant never sought to establish such a right that his instructions must be slavishly followed. The Applicant accepted throughout that the powers conferred by the Rules and Order are subject to the Constitution and the common law (see record at 384, para 327). He gave an undertaking to exercise the powers in a lawful manner (see record at 229) even though the First Respondent would not give an undertaking to adhere to the Rules. The Applicant relies on the power conferred upon him by section 24(2) of the Rules and Order to meet the first requirement for a final interdict, namely the clear right. That power conferred upon the Applicant, must by law be interpreted in the light of the Constitution and the common law. The Applicant never contended otherwise. More particularly, the Applicant never contended in the application for an interdict that he seeks to establish a clear right that his directions in terms of section 24(2) must be slavishly adhered to by members of council regardless of the circumstances. The Court erred in having regard to the Applicant’s conduct in determining the question of whether he had established a right. This is not the correct approach. One knows from S v Makwanyane 1995 (3) SA 391 (CC) that even the worst and most vicious criminals are not excluded from the protections of the Constitution. The conduct of the litigant is not determinative of his or her rights and powers. If this was the case, then the Court should have analysed First Respondent’s conduct in the same manner in order to determine his rights to participate in the meeting of Council, having regard to his racial slurs; his menacing finger pointing at journalists; his assault of a journalist outside of the Council meeting; the firearm which was brought into a council meeting; the various stunts he orchestrated regarding the elections results court challenge and the so-called COPE letters.
3. That the Applicant contended for a clear right that the Thirteenth Respondent should, on his instructions, remove a councillor regardless of the circumstances whereas, in fact, the Applicant at the hearing of the matter made clear that he seeks to establish a right that the Thirteenth Respondent should adhere to his instructions subject to (1) section 199(6) and (7) of the Constitution; and further (2) that the instruction of the Speaker is carried out via the Municipal Manager of the Municipality. Again, the Court, with respect, conflates the issue of whether the Applicant established a clear right with the question of whether the Applicant met the second requirement for a final interdict, i.e. the question of whether an injury was actually committed or reasonably apprehended. There can be no doubt that, in respect of the Thirteenth Respondent, the Applicant established a clear right to assistance, albeit subject to section 199(6) and (7) of the Constitution. No reliance is placed on these sections in answering affidavit of the Thirteenth Respondent (record at 604 to 612). This is not surprising, because as the Applicant points out in reply, the deponent to the affidavit had no knowledge of what happened at the meeting (record at p. 622). Thirteenth Respondent adopted the same approach as the SAPS, namely that he could only intervene if an illegality or an offence has been committed (record at 609). This is plainly wrong, as Thirteenth Respondent stands in an employment relationship with the Municipality. The right to refuse to obey an instruction should have been analysed in that context.
4. That the first prayer in the counter-application should be granted relating to the refusal to allow First Respondent to speak on the COPE letter. It is difficult to understand, with respect, on what basis this application for declaratory relief succeeded, as the judgment appears to contain only a summary of the submissions made on behalf of the First to Sixth Respondents, except that the court remarked that the provisions of Rule 30(1) are of special application. On that aspect, the Court, with respect, got it wrong because Rule 30(1) is not of application outside the context of debate. Provision is made for urgent matters to be raised in terms of the agenda, but that could not be done under the item providing for statements to be made. In any event, the declaratory relief sought should not have been granted as the matter was clearly moot, given that the Applicant later allowed the First Respondent to make a statement at the outset of the meeting, which then resulted into the statement he made on the COPE letter.
5. That the second prayer regarding the Applicant’s expulsion of First Respondent should have been granted. Again, with respect, the judgment contains no analysis of why the Court found that the First to Sixth Respondents are entitled to this relief. In the part of the judgment relating to the declaratory relief, there is no discussion of this aspect. Earlier (at para 55), when the Court dealt with the main application the Court remarked that the First Respondent’s reaction to the Applicant’s instruction for him to be seated can “hardly be regarded as behaviour which constituted the persistent disregard of the directions of the chairperson, as referred to in Rule 24(2)”. It is presumably on this basis that the second prayer was granted. On this aspect, with respect, the Court does not provide its analysis of the facts. The Applicant contended that the “length of time” is not as important as the number of refusals to have regard to instructions. The Applicant directed the First Respondent no less than 4 times to be seated (Record 481-2; page 10, line 24 to page 11 line 6). This is why his refusal to adhere to the instruction was regarded to be “persistent”.
6. That the third prayer of the declaratory relief, namely that the Applicant used profanity at the meeting of 29 June 2011, should be granted. On this aspect, the Court did not deal with the Applicant’s argument that when the words “pissed off” were used by him, not a single one of the First to Sixth Respondents took offence; that the complaint is accordingly an ex post facto attempt to discredit him whereas in fact none of the First to Sixth Respondents were offended by his use of those words; and that if the First to Sixth Respondents had objected to his language he would have retracted and apologised immediately. The Applicant’s counsel further argued that the purpose of Rule 41, which allows a member to raise a point of order, is to allow the possibility for an offender to reflect on his behaviour and to retract, if considered necessary, a statement in contravention of the rules. Throughout the various meetings, the Applicant repeatedly asked First Respondent and the other ANC councillors to identify the rule on which they rely, but it was clear from the record that no rule was ever invoked by First to Sixth Respondents. See record at 474, 526. In other words, First to Sixth Respondents never sought to invoke the “dispute resolution mechanism” provided for in the Rules of Order themselves. See record 485. Instead, when confronted with the main application they and/or their legal representatives trawled through the record of the various meetings and dredged up a complaint regarding the profanity. It will set a bad example if this were to be allowed as it will permit a councillor, who is not offended by the use of a term in the council meeting, to bring this up later in court proceedings whereas if he had done so earlier, the statement would have been retracted.
7. That the fourth part of the declaratory relief relating to the Applicant’s determination that the urgent motion was unopposed should be declared ultra vires. On the ordinary approach to be applied in motion proceedings the Applicant’s version (that he did not see opposition from First Respondent) could not be rejected. See record at 155, 329 and 354. This was conceded in argument by Counsel for the First to Sixth Respondents. The additional complaint, namely that he could not revisit the matter after he had moved on to the next item, was only raised in the reply.
8. That one of the Applicant’s defences to the declaratory relief, namely that it was moot, should not succeed as the Applicant “maintains that he is entitled to apply the rules of order in a mechanical and autocratic manner”. As explained above, the Applicant never claimed such a right. Again, his statement in the answering affidavit, taken wholly out of context, was held against him. Furthermore, it is stated that the Applicant had issued “a series of press statements that give a one-sided account of events”. Again, the evidence shows that this has not happened. Furthermore, the Court found that the Applicant has clouded his judgment and has impaired his impartiality as Speaker and that the probabilities are that he will continue to exercise his powers in this manner. This is not an issue which is relevant to declaratory relief, but rather relevant to an interdict which the First to Sixth Respondents never brought as part of the counter-application and accordingly was never dealt with by the Applicant.
9. Finally, the Court held that the Constitutional Court has “repeatedly affirmed that courts have no discretion when a finding is made that law or conduct is or has been inconsistent with the Constitution. In such matters, the Court held that the courts must declare it to be invalid in terms of section 172(1)(a) of the Constitution.” However, this statement is inconsistent with the Constitutional Court’s judgment in JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others 1997 (3) SA 514 (CC) which was pertinently raised in the Applicant’s heads of argument and by the Applicant’s counsel at the hearing. At para 15, the Constitutional Court held that: “Section 98(5) [the equivalent of section 172 of the interim Constitution] admittedly enjoins us to declare that a law is invalid once we have found it to be inconsistent with the Constitution. But the requirement does not mean that we are compelled to determine the anterior issue of inconsistency when, owing to its wholly abstract, academic or hypothetical nature should it have such in a given case, our going into it can produce no concrete or tangible result, indeed none whatsoever beyond the bare declaration”. The judgments of the Constitutional Court referred by the Court deals with an entirely different matter, which is the question of whether a declaratory order should be granted in circumstances where it may have no practical effect because the Court would be unable to enforce its order. This is entirely different from the question of whether the relief sought was moot because the Applicant had allowed First Respondent back into the Council and allowed him to speak on the COPE issue; or that he would have retracted the use of “pissed off” if given the opportunity to do so. The approach of the Court is akin to saying that if an organ of state is persuaded to revisit a decision complained of, and change an unfavourable decision into a favourable one; a Court may still be engaged to rule on the validity of the retracted decision. This, with respect, will set the worst possible example. It would discourage the settlement of matters.