Court name
High Court Main Division
Case number
APPEAL 215 of 2015
Case name
Amapanda v Swapo Party of Namibia
Media neutral citation
[1970] NAHCMD 126
Judge
Parker AJ










REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT


Case
no: A 215/2015


DATE:
22 APRIL 2016


REPORTABLE


In
the matter between:



JOB SHIPULULO
AMUPANDA...............................................................................1ST
APPLICANT


DIMBULUKENI
HAFENI
NAUYOMA...................................................................2ND
APPLICANT


GEORGE
HIDIPO HAMBA
KAMBALA................................................................3RD
APPLICANT


DR
TJITUNGA ELIJAH
NGURARE
.......................................................................4TH
APPLICANT


And


SWAPO
PARTY OF
NAMIBIA.............................................................................1ST
RESPONDENT


PRESIDENT
OF SWAPO PARTY OF
NAMIBIA..............................................2ND
RESPONDENT


VICE-PRESIDENT
OF SWAPO PARTY OF NAMIBIA...................................3RD
RESPONDENT


SECRETARY-GENERAL
OF SWAPO PARTY


OF
NAMIBIA..........................................................................................................4TH
RESPONDENT


DEPUTY
SECRETARY-GENERAL OF SWAPO PARTY


OF
NAMIBIA..........................................................................................................5TH
RESPONDENT


DR
HIFIKEPUNYE
POHAMBA..........................................................................6TH
RESPONDENT


CHAIRPERSON
OF SWAPO PARTY DISCIPLINARY


COMMITTEE.........................................................................................................7TH
RESPONDENT


SWAPO
PARTY YOUTH
LEAGUE.....................................................................8TH
RESPONDENT


Neutral
citation: Amupanda v Swapo Party of Namibia (A 215/2015)
[2016] NAHCMD 126 (22 April 2016)


Coram:
PARKER AJ


Heard:
4 - 5 February 2016


Delivered:
22 April 2016


Flynote:
Voluntary association – Unincorporated voluntary
association – Political party – Jurisdiction of court to
intervene in affairs of political party (1st respondent) –
Court held that the foundation of jurisdiction of court to interfere
at instance of members (applicants) of a political party improperly
expelled in order to reinstate them is the right in contract –
Courts power to intervene is therefore founded on its jurisdiction to
protect rights of contract – Court held further that the 1st
respondent’s Constitution, supplemented by the Code of Conduct
and Disciplinary Proceedings constitutes the written contract
expressing terms on which members associate together in and with the
1st respondent.


Summary:
Voluntary association – Unincorporated voluntary association –
Political party – Jurisdiction of court to intervene in affairs
of political party (1st respondent) – Applicants
deprived of their membership of 1st respondent (a
political party) – Applicants challenged expulsion as unlawful
– Court found that expulsion of applicants violated natural
justice rule of audi alteram partem and in breach of
rules in 1st respondent’s Constitution and Code of
Conduct and Disciplinary Procedures and therefore in breach of
contract – Consequently, court declared decision to expel
applicants ultra vires and unlawful – Accordingly, court
set aside expulsion of applicants but refused to reinstate them in
positions they held in 1st respondent before their
expulsion on the basis that it would be unreasonable and inequitable
to make such order.


ORDER


(a)     
The decision taken by 1st respondent to deprive the
applicants of their membership of 1st respondent is
declared unlawful and null and void, and is set aside.


(b)     
The 1st respondent must, with immediate effect, restore
each applicant’s membership of 1st respondent.


(c)     
The decision to suspend 1st applicant’s, 2nd
applicant’s and 3rd applicant’s membership of
the 1st respondent and to suspend them from engaging in
activities of 1st respondent and its wings is declared
unlawful and null and void, and is set aside.


(d)     
Respondents must pay 60 per cent of applicants’ costs of this
application, one paying, the other to be absolved, including costs of
one instructing counsel and one instructed counsel.


JUDGMENT





PARKER
AJ:


[1]       
In the 19
th
Century the individual was predominant in affairs of the State. In
the 20
th
Century and 21
st
Century it is the group. Thus, nowadays, the political scene is
dominated by groups, ie of political parties: elitist political
parties and mass political parties. The 1
st
respondent is such group and it describes itself as a mass-based
political party.


[2]       
The 1
st
respondent has formed the Government of the day in Namibia since the
country became a nation State in March 1990. Thus, if the 1
st
respondent sneezes, the nation will indubitably catch a cold.
Doubtless, the 1
st
respondent has played and continues to play superlatively significant
role in the national affairs of our country.


[3]       
Political parties in Namibia (as elsewhere) exert considerable powers
over its members and has great impact on its members in pursuit of
their right ‘to freedom of association, which shall include
freedom to form and join associations … including political
parties’, guaranteed to them by art 21(1)
(e)
of the Namibian Constitution.


[4]       
Like the powers of Government, these powers of political parties are
capable of misuse or abuse. Similarly, too, the important question is
this. Has the law any means of controlling the abuse or misuse of
powers of political parties? The instant matter revolves primarily
around this important question.


[5]       
The applicants seek the relief set out in the notice of motion, being
prayers A, B, C and D. The respondents have moved to reject the
application. The 1
st
respondent, as I have intimated earlier, is ‘a mass-based
political party’, ‘founded on the principles of
democracy, solidarity, freedom, social justice and progress’
(see Chapter 1, art II of the SWAPO Party Constitution (‘the
Constitution’).


[6]       
In short, the 1
st,
2
nd
and 3
rd
applicants were suspended and barred from engaging in activities of
the 1
st
respondent and its wings, and subsequently expelled from the 1
st
respondent. The 4
th
applicant was expelled from the 1
st
respondent. He was not suspended first. How did all this come about?
The 1
st
respondent took these decisions on the basis of a dark catalogue of
alleged ‘transgressions’ on the part of the applicants –
and I use the adjective ‘alleged’ advisedly, as will
become apparent in due course.


[7]       
On the papers I find that there are three intertwined issues that
arise to be considered by the court in the determination of the
instant application. They are: Issue (a) – the preliminary
issue of competence of the court to intervene in the internal dispute
of a political party, that is, an unincorporated voluntary
association; Issue (b) – applicants’ rights under the 1
st
respondent’s Constitution, as supplemented by the Code of
Conduct and Disciplinary Procedures (‘the Code’); and
Issue (c) – enforcement of applicants’ rights and
appropriate remedy.


[8]       
Mr Maleka SC represents the applicants, and Mr Soni SC (with him Dr
Akweenda) the respondents. Both counsel have filed heads of argument
and have referred to the court a good number of authorities. I am
grateful for their commendable industry. I have read the authorities;
and I have distilled from some of them principles that are of
assistance on the issues under consideration.


[9]       
For instance, I hold that principles from those cases (eg from
Botswana and South Africa) that deal with the question as to whether
a political party, being an unincorporated voluntary association and
not public authority (ie an administrative body or an administrative
official – to use the language of art 18 of the Namibian
Constitution – is subject to judicial review on the basis of
‘administrative justice’ (as is called in South Africa,
for example) is of no assistance on the issues under consideration.
That is not the case of the applicants. They have not come to court
to seek judicial review of the decision of the 1
st
respondent on common law or art 18 grounds. I now proceed to consider
the aforementioned issues.


Issue
(a)


The
preliminary issue of competence of the court to intervene in the
internal dispute of a political party, that is, an unincorporated
voluntary association


[10]     
The preliminary issue which must be disposed of at the threshold is
this. Is the court competent to intervene in the internal dispute of
the 1
st
respondent, that is, an unincorporated voluntary association? The
applicants contend that the court is competent. The respondents say
the court is not competent to ‘entertain political battles’,
as Mr Soni characterized such disputes. And what is Mr Soni’s
argument in that regard. Counsel appears to argue that the 1
st
respondent exercised its powers as a political party and not as an
administrative body ‘as contemplated in Article 18 of the
Namibian Constitution’. I agree. But, as I have found
previously that is not the case of the applicants. They have come to
court in order to pursue their contractual rights under the 1
st
respondent’s Constitution, as supplemented by the Code.


[11]     
Quite significantly, Mr Soni concurs that the relationship between
the 1
st
respondent and the 1
st
respondents’ members is contractual. In any case, the Code says
so clearly and unambiguously; and that much Mr Soni acknowledges. The
Code provides in material part in section 1:


These
rules and procedures basically constitute a contract between the
institution (ie the 1
st
respondent) and its members.’


[12]     
Thus, the written contract expressing the terms on which the members
of 1
st
respondent associate together for political purposes is the 1
st
respondent’s Constitution, as supplemented by the Code. See
Dawkins v Antrobus
1881 Ch D 615 (Court of Appeal), at 620. Accordingly, I accept Mr
Maleka’s submission (in answer to a point raised with him by
the court) that the court is always competent to enforce a contract
that is valid and which is for lawful purposes. Indeed, in the
instant case, the political purposes are not only lawful, they are
also given constitutional blessing by art 21(1)
(e)
of the Namibian Constitution.


[13]     
As I have said previously, the 1
st
respondent’s Constitution, as supplemented by the Code,
contains the contract between the members, and between the members
and 1
st
respondent; ‘and is just as much subject to the jurisdiction of
the courts as any other contract’. (
Lee
v The Showmen’s Guild of Great Britain

[1952] 2 QB 239 (
Court of Appeal)
at 341) The Guild, it is noted, like the 1
st
respondent, is an unincorporated voluntary association.


[14]     
For the sake of completeness, I shall add this to the examination of
the Botswana cases and South African cases. I refer to the Botswana
cases of
Mogorosi and Others v Botswana
National Front and Others
MAHFT-000134
[2010] BWHC 429 (15 July 2010);
Autlwetse
v Botswana Democratic Party and Others

[2004] 1BLR 230 (HC); and the
South
African case of Mcoyi and Others v Inkata Freedom Party, and
Magwasa-Msibi v Inkata Freedom Party

2011 (4) SA 298 (KZP), (referred to the court by Mr Soni) to reject
them as absolutely unpersuasive in the light of the analyses I have
made previously and the conclusions and reasoning thereanent. None of
these foreign cases is of any assistance – none at all –
on the issues under consideration in the instant case. See for
instance,
Mogorosi and Others v Botswana
National Front and Others
. The court
there reasoned: ‘I would therefore decline to have this Court
intervene in a matter (a ‘purely political’ matter) in
which its (ie the court’s) authority and orders may be
disregarded with impunity’.


[15]     
In Namibia no person is entitled to ‘disregard with impunity’
an order of the court. In our system every order must be obeyed
unless it has been set aside by a competent court. And more
important; in Namibia issues concerning justice and fairness are not
seen as ‘political matters’. As I have said more than
once, the applicants in the instant case have approached the seat of
judgment of the court in order to enforce their contractual right on
the basis of their entitlement to natural justice, including fairness
and justice. There is nothing political about that. The court in
Shixwameni and Others v Congress of
Democrats and Others
2008 (1) NR 134
did not consider the decision to expel the applicants (members of the
1
st
respondent there) from the 1
st
respondent there as a ‘political matter’; and I do not in
the instant case.


[16]     
The aforegoing holdings dispose of Issue (a) (see para 7 of this
judgment). I now proceed to consider Issue (b) (see para 7 of this
judgment).


Issue
(b)


Applicants’
contractual right under the 1
st
respondent’s Constitution, as supplemented by the Code of
Conduct and Disciplinary Procedures (‘the Code’)


[17]     
That the applicants have contractual right is
a
priori
from the holding I made under
Issue (a), namely, that the contract at play in this proceeding ‘is
just as much subject to the jurisdiction of the courts as any other
contract’. (
Lee v The Showmen’s
Guild of Great Britain
) The applicants,
therefore, have rights provided by the rules and procedures under the
Constitution and the Code; and they are entitled to due
implementation of those rules and procedures in relation to them. Any
action taken against a member must be in accordance with the rules
and procedures; and if they are aggrieved by any such action they are
entitled to approach the seat of judgment of the court for redress;
and need I say, that is what they have done. They are aggrieved by
the ‘suspension’ and the expulsion. This conclusion leads
me to the next level of the enquiry, that is, the interpretation and
application of the relevant rules and procedures.


[18]     
At the outset, I should say this to the credit of the 1
st
respondent and the leadership of the 1
st
respondent, considering the essence of the 1
st
respondent’s Constitution and the Code. As I see it, the 1
st
respondent appears to be alive to the fact that as a mass political
party it is likely to attract into its membership all manner of
persons, with different backgrounds and attitudes and behaviour
trends; and that it has a duty to bring members who go astray along,
that is, ‘to mould PARTY members into principled individuals
for the long term viability of the PARTY’. (See section 5 of
the Code.) Hence, the Constitution, as supplemented by the Code, does
not seek to punish, punish and punish only. These instruments also
provide for situations where it becomes necessary to correct, correct
and correct. It is only where the member being corrected proves
stubborn, uncooperative and incorrigible that he or she may be
punished, and, of course, after the procedure for punishing members
for misconduct has duly been followed.


[19]     
Thus, it is worth signalizing the point that the Code provides for
(1) a ‘punish, punish and punish’ scheme. This is the
disciplinary action procedure under the title ‘Charge’ in
the Code, and consisting of sections 23-39 of the Code; and (2) a
‘correct, correct and correct’ scheme, ie the corrective
action procedure (see s 4.3 of the Code) under sections 4 and 5 of
the Code.


[20]     
This dichotomy between the two procedural schemes is brought into
sharper focus in section 5 of the Code in this way:


It
should be pointed out
that the main
objective of a Code of Conduct is not only to punish those who
transgress the rules and procedures of the SWAPO PARTY but also to
mould PARTY members into principled individuals for the long term
viability of the PARTY.’


(Italicized
for emphasis)


[21]     
It is, therefore, not aleatory, neither is it insignificant that the
full title of the Code is: ‘SWAPO Party Code of
Conduct
and
Disciplinary Procedures
(Italicized and underlined for obvious emphasis) It is also not
aleatory, neither is it insignificant that section 4 concerns
‘shortcomings’ and section 23 speaks of ‘allegations’
and ‘charges’. Doubtless, ‘shortcomings’ can
never be synonymous with ‘allegations’ or ‘charges’.


[22]     
Of course, a situation may arise where disciplinary action and its
procedure may dovetail a corrective action and its procedure. This
may occur where after corrective action undertaken in terms of the
procedure prescribed by section 4 and 5 of the Code has failed to
solve the problem a member has due to varied reasons, including the
member’s recalcitrance and uncooperative attitude, and the
member continues to act in a manner that is considered injurious to
the character, wellbeing and interests of the 1
st
respondent. In that event, relevant authorities in the 1
st
respondent are entitled to take disciplinary action against such a
member; but it is a categorical imperative – in the interest of
justice and fairness which are core values of the 1
st
respondent – that the authorities follow the section of the
Code, entitled ‘Charge’, consisting of sections 29-39 of
the Code. After all, 1
st
respondent stands for justice and fairness. See the 1
st
respondent’s Constitution and the Code,
passim.


[23]     
In sum, section 4 procedure (in respect of corrective action) is the
polar opposite to s 23-39 procedure (in respect of disciplinary
action). Anybody familiar with disciplinary procedures in our
jurisdiction will know that disciplinary procedures here do not apply
such words as ‘adopt a
joint
problem solving approach

(chapeau of section 4 of the Code);
identify
the real problem(s) and cause(s)’ (section 4.1 of the Code);
work out solutions
to the problem(s)’ (section 4.2 of the Code); ‘
obtain
the member’s commitment
to
agreed
corrective
action’ (section 4.3 of the Code). (Underlined and italicized
for emphasis)


[24]     
I have undertaken the aforegoing enquiry in order to make these very
crucial points – points which, with the greatest deference to
the respondents and Mr Soni, the respondents and Mr Soni have missed.
These are the points: There is a clear dichotomy between disciplinary
action and its procedures on the one hand (under sections 23-39 of
the Code) and the corrective action and its procedures on the other
hand (under section 4 and 5 of the Code).


[25]     
It cannot be emphasised enough that the discussions held between the
applicants and Hon Ms Shaningwa under the auspices of the 1
st
respondent’s ‘Task Team’, and which Mr Soni refers
to as ‘the Party’s accommodating approach’ were
efforts undertaken within the letter and spirit of corrective action
and in accordance with the procedures under section 4 and 5 of the
Code. They were not undertaken – and this is important –
in the context of sections 23-39 of the Code, which concern
disciplinary procedure but in the context of sections 4 and 5 of the
Code, which concern corrective procedures. Thus, the aim of the
discussions was ‘to mould (the) PARTY members into principled
individuals for the long term viability of the PARTY’ –
to use the language of section 5 of the Code; and,
a
fortiori
, the sections 4-5 procedures
were not undertaken with the aim of giving the applicants
audi,
within the meaning of the common law rule of natural justice, which
is a procedural imperative in our system prior to a disciplinary
hearing by the Disciplinary Committee; indeed, by any disciplinary
body of an institution or an organization.


[26]     
The width of the words in sections 4 and 5 of the Code impel these
conclusions. It was not the intention of the makers of the Code that
sections 4 and 5 entitle anyone or any authority to expel a member
without due process; without complying with the rule of
audi
alteram partem
of the common law
principle of natural justice. The Code does not say that such could
be done. The Code buttresses the conclusions I have made. The
aforementioned discussions the leadership of the 1
st
respondent had with the applicants in the spirit and letter of
section 4 and 5 of the Code were aimed at adopting ‘a joint
problem solving approach’ as clearly spelt out in the chapeau
of section 4 of the Code. And under the corrective action and its
procedures, a responsible person or body of persons are entitled to
warn
the member of the
possibilities
of a misconduct charge, or a discharge from the PARTY
if
his or her conduct or performance does not improve

(section 4.6 of the Code). (Italicized and underlined for emphasis)


[27]     
Having given the words in section 4.6 of the Code ‘their
literal meaning, but literal meaning in total context’ (see
Rally for Democracy and Progress v
Electoral Commission
2009 (2) NR 793,
para 9), I come to these inevitable and reasonable conclusions,
namely, that a member who is subjected to the corrective procedure in
terms of section 4 of the Code and whose conduct or performance does
not improve, may be punished, but only after such member has been
subjected to disciplinary procedures prescribed in sections 23-39 of
the Code. The procedure includes the applicants being granted their
right to
audi.
As I have reasoned previously,
pace
Mr Soni, the sections 4 and 5 (of the Code) discussions do not
constitute
audi alteram partem
– not at all. I was surprised to hear such proposition put
forward by Mr Soni, though not in so many words.


[28]     
Thus, keeping the aforegoing reasoning and conclusions in my mental
spectacle, I state the following: Put simply and firmly, a member
against whom a sections 4 and 5 (of the Code) procedures are being
applied or have been applied cannot be punished with any form of
penal sanction without following the disciplinary procedures so
commendably and nobly prescribed by the Code. The issue is not
whether the person involved deserves to be expelled from 1
st
respondent. Yet again, the issue is not who has the power or who has
not got the power to expel a member from 1
st
respondent. The issue is simply whether there was due process;
whether the applicants were denied
audi
to which, as I have said
ad nauseam,
they have a contractual right in terms of the 1
st
respondent’s Constitution, as supplemented by the Code.


[29]     
Thus, the issue is not whether in the minds of the leadership of the
1
st
respondent the applicants carried out acts which were injurious to
the wellbeing, character and interests of 1
st
respondent. In this regard, Mr Soni presented to the court an
unprintable catalogue of transgressions attributed to the applicants.
I need not rehearse them here; for, that is not the issue.


[30]     
‘Outside the regular courts of this country’, stated
Denning LJ in
Lee v The Showmen’s
Guild of Great Britain
(see para 13
above, at 341), ‘no set of men (or women) can sit in judgment
on their fellows except so far as Parliament authorizes it or the
parties agree to it’. That is also the legal position in
Namibia. In the instant matter, I would say the applicants have
agreed that certain persons or bodies of persons of the structures of
1
st
respondent may sit in judgment on them but only in accordance with
procedures prescribed by the 1
st
respondent’s Constitution and the Code and in compliance with
their common law right to natural justice.


[31]     
In this regard it does not absolve the respondents to allege in the
papers filed of record of what they consider as very serious
transgressions, and which are injurious to the wellbeing and
interests of the 1
st
respondent. Mr Soni argued that the applicants have committed serious
transgressions. That may be so. But such argument is, with respect,
petitio principii.
The hearing that the applicants were entitled to – and which
they were denied – was precisely to determine whether the
applicants were guilty of those transgressions, ie the series of
misconduct.


[32]     
As the learned Hoexter JA stated in
Administrator,
Transvaal and Others v Zenzile and Others

1991 (1) SA 21, at 37C-E, which concerned an errant employee but
which should apply with equal force to an errant member of a
political party –


It
is trite, furthermore, that the fact that an errant employee may have
little or nothing to urge in his own defence is a factor alien to the
inquiry whether he is entitled to a prior hearing. Wade
Administrative Law
6
th ed
puts the matter thus at 533-4:


Procedural
objections are often raised by unmeritorious parties. Judges may then
be tempted to refuse relief on the ground that a fair hearing could
have made no difference to the result. But in principle it is vital
that the procedure and the merits should be kept strictly apart,
since otherwise the merits may be prejudged unfairly.”


The
learned author goes on to cite the well-known
dictum
of Megarry J in
John v Rees
[1970] Ch 345 at 402:


As
everybody who has anything to do with the law well knows, the path of
the law is strewn with examples of open and shut cases which,
somehow, were not; of unanswerable charges which, in the event, were
completely answered; of inexplicable conduct which was fully
explained; of fixed and unalterable determination that, by
discussion, suffered a change.” ’


[33]     
Thus, in the instant proceeding, the case against the applicants may
look like an open and shut case but which somehow could have turned
out to be not so, if they were heard; the transgressions may look
like unanswerable transgressions, but which could have been answered,
if the applicants were heard; the conduct attributed to the
applicants could have been fully explained, if they were heard; and
decisions made by the responsible authorities – seemingly
unalterable – could have suffered a change, if the applicants
were heard. How could the respondents fairly and justly find that the
applicants have committed those transgressions without hearing the
defence? It was on this simple and general ground that this court
should uphold the applicants’ rights under contract. These are
the kind of scenarios Mr Maleka submitted to the court. They
represent something which is basic to our system: the importance of
upholding them far transcends the significance of any particular
case. See
Ridge v Baldwin
[1964] AC 40 (House of Lords) at 114.


[34]     
It cannot be emphasised enough that in principle ‘it is vital
that the procedure and the merits should be kept strictly apart,
since otherwise the merits may be prejudged unfairly’.
(
Administrator, Transvaal v Zenzile and
Others
loc. cit.) In the instant
matter, the respondents have prejudged the merits. They have acted in
breach of the contract that binds the applicants in contractual
relations with the 1
st
respondent.


[35]     
To crown it all, I cite with approval what Hoexter JA states,
approving Mureinik (1985) 1
SAJHR 48
(at p 50), in
Zenzile and Others,
at 37A-B:


Where
the power is disciplinary, all the usual reasons for importing
natural justice generally apply, and generally apply with more than
the usual vigour: the gravity of the consequences for the individual,
consequences both concrete and such as affect his reputation; the
invasion of the individual’s rights; that fairness postulates
inquiry; and so on. But more than this, there is a reason of
principle peculiar to disciplinary or punitive proceedings: that even
if the offence cannot be disputed, there is almost always something
that can be said about sentence. And if there is something that can
be said about it, there is something that should be heard …’


[36]     
In the instant proceedings I have demonstrated previously that there
was something that should have been heard, but was not. The law says,
and rightly says, that in all these things, decision takers must act
fairly and justly. The Code also says so. On the papers I find, and I
have demonstrated, that applicants were not heard before they were
deprived of their membership of the 1
st
respondent. There was therefore want of justice and fairness. See
paras 32-35 of this judgment. It follows inevitably that the
contractual right of 1
st,
2
nd,
3
rd
and 4
th
applicants was violated when they were expelled from the 1
st
respondent. It follows that the decision to expel them was ultra
vires and unlawful.


[37]     
In my opinion, the leadership of the 1
st
respondent were wrongly advised on the true interpretation and proper
application of the relevant provisions of the 1
st
respondent’s Constitution and the Code, particularly the
dichotomy between discipline and correction; between disciplinary
procedures and corrective procedures; between discussions and
audi.
I have no doubt that the decision makers of the 1
st
respondent acted according to the best of their judgment and with
utmost desire to do what they thought was right; but I think they
have made a mistake; and so the right course is to grant declaration.


[38]     
The aforegoing disposes of Issue (b) (see para 7 of this judgment).
It remains to consider Issue (c), but before I do that, I should say
that issue (a) and Issue (b) (see para 7 of this judgment) concern
the matter of expulsion of 1
st,
2
nd,
3
rd
and 4
th
applicants. As I have mentioned earlier, 4
th
applicant was not suspended and barred from engaging in activities of
1
st
respondent and its wings before he was expelled. And so, I should now
consider the matter of the suspension of 1
st,
2
nd
and 3
rd
applicants.


Suspension
of 1
st,
2
nd
and 3
rd
applicants (which have a bearing on the relief sought in para B of
the notice of motion


[39]     
The thrust of Mr Maleka’s argument is that the suspension of
the three applicants was ‘fundamentally flawed’. Counsel
says, apart from the fact that the applicants were not heard as
required by section 17 of the Code, the allegations against them are
not so serious and did not cause a serious damage to the first
respondent to warrant a suspension. Mr Soni’s response, which
is a rehearsal of the answering affidavit, is that ‘the Code
does not provide for a hearing prior to suspension. All that is
required is for the member to be informed of the reasons for the
suspension, not intended suspension’.


[40]     
I accept Mr Soni’s argument in principle. It is not the usual
practice for one to be given a hearing before one is suspended. This
is true where the suspension is not in itself a punitive measure (ie
a non-punitive suspension) and is imposed pending a disciplinary
hearing. Such suspension, as is in the instant case, is in
contradiction to a punitive suspension where the suspension is itself
a form of punishment imposed after a disciplinary hearing. A
non-punitive suspension does not require a hearing before it is
imposed. See
Swart and Others v Minister
of Education and Culture, House of Representatives and Another
1986
(3) SA 331(C). The suspension of the 1
st,
2
nd
and 3
rd
applicants was a non-punitive suspension, imposed, ‘pending
consideration of the case by the Disciplinary Committee’. (See
the letters of suspension.) It follows that in the instant case, no
hearing was required prior to the imposition of the suspension.


[41]     
But the matter does not rest there. I should decide whether the
suspension was imposed in compliance with the Code. Mr Maleka says it
was not.


[42]     
The crucial provision in section 17 of the Code is indubitably the
following: ‘Before a suspension is carried out, a member
must
be called and informed
by the
authorized PARTY official or structure of the reasons.’ Other
significant provisions in section 17 are that (a) since suspension
‘is a painful experience which (it) must not be effected
lightly’; and (b) ‘suspension and duration thereof must
be restricted to the minimum’. These provisions establish the
intention of the makers of the Code, and the court must give effect
to their intention.


[43]     
In this regard I find that the suspension is tainted with
non-conformity with section 17 of the Code for the following reasons:
There is no evidence on the papers tending to establish that any of
the applicants was ‘called and informed’ of the reasons
of such suspension. The letter written to each applicant giving him
information of such suspension is a far cry from the peremptory
prescription that the member ‘must be called and informed’.
Besides, the suspension has no fixed duration specified in the
letters. Each one was suspended indefinitely – until further
notice. ‘Minimum’ period is not synonymous with
indefinite period.


[44]     
As respects the suspension, too, I find that the respondents breached
material terms of the contract provided in section 17 of the Code.
Consequently, I hold that the decision to suspend the applicants,
too, is ultra vires and unlawful. It follows that the suspension
cannot stand. In this regard, whether or not the decision to suspend
was taken by the structure authorized to do so is of no moment. It
does not affect the preponderance of the conclusion I have reached:
the law cannot support the suspension.


[45]     
The formulation of the letters of suspension (the letters contain
identical formulation) which were communicated to 1
st,
2
nd
and 3
rd
applicants is as follows:


This
letter serves to inform you that the SWAPO Party leadership has
resolved to suspend you with immediate effect. Accordingly, you are
requested forthwith to cease engaging yourself in any SWAPO Party or
its wings’ activities until further notice, pending
consideration of the case by the Disciplinary Committee.’


[46]     
It now remains to consider Issue (c). Issue (c) concerns both the
suspension and the expulsion.


Issue
(c)


Enforcement
of applicants’ rights and appropriate remedy


[47]     
For Mr Maleka, based on what has been established by the applicants,
the applicants have made out a case for the relief sought ‘in
its entirety’. Mr Soni, on his part, submits in peroration that
based on his argument ‘the application (should) be dismissed
with costs’. And in the answering affidavit the respondents
suggest that even if the applicants are entitled to an order of
specific performance in this case that would consist of an order that
a disciplinary hearing be held in terms of the prescribed procedure.


[48]     
I accept Mr Maleka’s submission contrariwise that the court is
not competent to grant such an order. This court will not grant an
order which the court does not think is a proper order to grant in
virtue of the foregoing reasoning and conclusions. The unlawful acts
of the respondents amounted to a breach of contract embodied in the
1
st
respondent’s Constitution, as supplemented by the Code. In sum,
they violated the applicants’ rights under contract; and so, as
intimated earlier, this court will grant a declaration that the
decision to suspend 1
st,
2
nd
and 3
rd
applicants and expel all the applicants is ultra vires, and unlawful.
See
Lee v The Showmen’s Guild of
Great Britain
[1952] 2 QB 239 (Court of
Appeal) at 342;
Mathholwa v Mahuma
[2009] 3 All SA 238 (SCA). In sum, the applicants have established a
right which this court in exercise of its discretion should protect
by granting declaratory orders pursuant to s 16 of the High Court Act
16 of 1990.


[49]     
I consider this case to be very important. It raises issues that are
basic to our system and the court’s sense of justice. I have
therefore taken great care to do justice to all the parties. Based on
all the reasons given, in my judgment, the application should
succeed, and it succeeds to the extent set out in the order. It thus,
remains to consider the appropriate remedy to grant.


[50]     
Keeping the foregoing in my mind’s eye, I have carefully
considered the relief sought by the applicants in the notice of
motion. And having done that, I have made the following determination
thereanent.


Para
A(1):


[51]     
For reasons given previously regarding declaration, I think this
prayer should be granted.


Para
A(2) (first part):


[52]     
In the first part of this paragraph, the applicants pray the court to
order the 1
st
respondent ‘to restore the applicants’ membership in the
first respondent’. In virtue of the reasons given previously,
the first part of the prayer in para A(2) should be granted: it is a
relief consequential upon the declaratory order granted under para
A(1).


Para
A(2) (second part):


[53]     
The applicants were expelled from the 1
st
respondent in July 2015, that is, some eight months ago. The
likelihood that the respective positions the applicants held before
their expulsion might have been filled by now cannot be lightly
discounted. And no evidence was placed before the court tending to
show that the positions are to date unoccupied.


[54]
In this regard, I would choose to err on the side of caution than to
make an order that would be difficult to obey or that cannot be
obeyed by the 1
st
respondent without the 1
st
respondent breaching certain provisions of its Constitution where the
positions held by the applicants might have been filled. And; more
important, if there are persons who have filled the positions, then
they ‘are interested persons who will be bound by the order and
they must all be joined as parties so they can have an opportunity of
being heard in support of their interest’. See R H Christie,
The Law of Contract in South Africa,
5
th
ed, p 537; and the case there cited. In the instant case, the persons
who might be occupying the positions vacated by the applicants
involuntarily when the applicants were expelled from the 1
st
respondent, have not been cited as parties and so they have not been
given the opportunity of being heard in support of their interests.


[55]
Besides, it is worth noting that the applicants did not hold
positions ‘by virtue of their membership in the 1
st
respondent’, as they contend in the notice of motion. It cannot
be argued that one’s membership of 1
st
respondent entitles one to hold a position in the 1
st
respondent. If that was the case, then every member of the 1
st
respondent would be holding a position in the 1
st
respondent. Such membership only qualifies one to ascend to a
position, if one meets the requirements prescribed by the 1
st
respondent’s Constitution. In sum, I hold that membership of
the 1
st
respondent on its own did not
ipso facto
make any of the applicants entitled to occupy those positions.


[56]
Thus, for all practical purposes, as regards the relief sought in
para A(2), the applicants seek two completely different orders. The
two orders sought are in these terms, that is, an order -


(a)
setting aside the decisions referred to under paragraph (1) above (ie
para A(1)) and ordering the first respondent to, with immediate
effect, restore applicants’ membership in the 1
st
respondent; and


(b)
setting aside the decisions referred to under paragraph (1) above (ie
para A(1)) and ordering the 1
st
respondent to, with immediate effect, restore them in all and any
respective positions.


[57]
The two orders sought in para A(2) are squarely and irrefragably
consequential upon the declaration sought in para A(1); otherwise the
applicants have not placed before the court any legal basis –
none at all – for the orders sought in para A(2). Thus, without
the basis in para A(1), the orders sought in para A(2) have no legal
legs to stand on: para A(2) therefore finds legal basis in the legal
basis set out in para A(1) – a prayer for declaration. In sum,
the relief in para A(2) was doomed to fail if the basis for the order
in para A(1) was rejected.


[58]
Thus, the application for the two orders sought under para A(2) of
the notice of motion cannot even get off the stumbling blocks 
but for the basis put forth for the declaratory order sought under
para A(1) of the notice of motion. In that sense the declaratory
order sought in para A(1) and the orders sought in para A(2) are
interwoven in a legal web; and so, I should have regard to one (ie
A(1)) when considering the other (ie A(2)). Put simply, the
application for a declaratory order in para A(1) cannot be considered
in isolation without looking at the application for the consequential
orders sought in para A(2), and vice versa. That being the case, in
deciding the application for the two orders in para A(2) of the
notice of motion, I should perforce have recourse to the principle
guiding the granting of declaratory orders set out in the next
paragraph (para 59).


[59]
It is trite that a declaration is a discretionary order which ought
to be granted with care and caution and judicially having regard to
all the circumstances of the case. It will not be granted where the
relief claimed would be unlawful or inequitable for the court to
grant. See
Halsbury’s Laws of
England
, 3rd
ed, Vol 22, para 1611, p 749-750.


[60]
From what I have said previously about the interconnectivity between
the declaratory order sought in para A(1) and the two consequential
orders sought in para A(2), the aforementioned trite principle should
reasonably have a critical bearing on the consideration of the two
orders applied for in para A(2). A consideration of the application
for the two orders in para A(2) of the notice of motion gives rise to
the following crucial question: Can the court make an order that the
1
st
respondent restore membership of the 1
st
respondent to each of the four applicants, and at the same time order
that 1
st
respondent restore them in all and any respective positions they held
by virtue of their membership in the first respondent, together with
all the rights and privileges the applicants had prior 17 July 2015?
The second order is basically an order to reinstate each applicant in
any position he held in the 1
st
respondent prior their expulsion from the 1
st
respondent.


[61]
I am inclined to grant the first order applied for in para A(2) of
the notice of motion, but I think it will be inequitable (see
Halsbury’s Law of England,
loc. cit.) and unsafe and unreasonable for the court to go further
and grant the second order. I do not think on the facts and in the
circumstances of this case, the jurisdiction of the court to
interfere in the internal dispute of a political party, an
unincorporated voluntary association, at the instance of the
applicants improperly expelled in order to reinstate them should be
extended beyond granting an order to restore their membership of the
1
st
respondent of which they were unlawfully deprived.


[62]
Consequently, for the foregoing reasons in paras 53-61, I decline to
grant the second order sought by the applicants in para A(2) of the
notice of motion. I now pass to consider the order sought in para
B(1), B(2) and B(3) of the notice of motion.


Para
B(1) (first part)


[63]
I decline to grant the declaratory order sought in the first part of
para B(1) because ‘the court does not lend itself to making an
order where no relief is necessary’ (see Christie, ibid., p
538, relying on
Putco Ltd v TV &
Radio Guarantee Co (Pty) Ltd
1984 (1)
SA 443 (W) at 455 G). The relief that is necessary is in the second
part of that paragraph.


Para
B(1) (second part)


[64]
I incline to grant the order in the second part of para B(1) because
that part of the relief is necessary (see Christie, loc. cit.).


Para
B(2)


[65]
I incline to grant the order sought in para B(2) because it is
consequential upon the order granted under the second part of para
B(1) (see para 64 of this judgment).


Para
B(3)


[66]
I decline to grant prayer B(3) because I should not make an order
where the relief sought is not necessary (see Christie, loc. cit.):
the relief sought in this paragraph serves no purpose.


Costs


[67]
I now consider costs. The applicants have succeeded in the
application for the orders sought in the entire para A(1), first part
of para A(2), second part of para B(1) and B(2). And I have refused
to grant the orders they have applied for in the second part of para
A(2), first part of para B(1), and the entire para (3). And it is
worth noting that the way some of the orders applied for were framed
in the notice of motion rendered those orders unnecessary, as I have
shown, requiring the respondents to do more than was necessary to
resist the application, and thus, prolonging the proceedings
unnecessarily. For these reasons and for the reason that the
application raised very important and arguable issues basic to our
jurisprudence, especially the issue as to whether this court is
competent to enforce an agreement to associate for political purposes
(which was not raised and therefore not determined in
Shixwameni
and Others
, for example) and for the
concern that persons should not be discouraged by legal costs to
approach the seat of judgment of the court to pursue seriously and
bona fide their rights, I was inclined to order the parties to pay
their own costs. However, I am alive to the fact that while the 1
st
respondent is a big political party, the applicants are individual
persons, and they have succeeded in being granted four out of the
seven orders they applied for. Consequently, I think the applicants
are entitled to the costs of this application, but to the extent of
60 per cent only of the costs.


[68]
Based on all these reasons, the application succeeds to the extent
set out in this order; whereupon, I make the following order:


(a)
The decision taken by 1
st
respondent to deprive the applicants of their membership of 1
st
respondent is declared unlawful and null and void, and is set aside.


(b)
The 1
st
respondent must, with immediate effect, restore each applicant’s
membership of 1
st
respondent.


(c)
The decision to suspend 1st applicant’s, 2nd
applicant’s and 3rd applicant’s membership of
the 1st respondent and to suspend them from engaging in
activities of 1st respondent and its wings is declared
unlawful and null and void, and is set aside.


(d)
Respondents must pay 60 per cent of applicants’ costs of this
application, one paying, the other to be absolved, including costs of
one instructing counsel and one instructed counsel.


C
Parker


Acting
Judge


APPEARANCES


APPLICANTS:
I V Maleka SC


Instructed
by Amupanda Kamanja & Inc., Windhoek


RESPONDENTS:
V Soni SC (assisted by S Akweenda)


Instructed
by Conradie & Damaseb, Windhoek