Amapanda v Swapo Party of Namibia (A 215/2015) [2016] NAHCMD 126 (31 August 2018);

Group

Full judgment

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 19th Century the individual was predominant in affairs of the State. In the 20th Century and 21st 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 1st respondent is such group and it describes itself as a mass-based political party.

[2]        The 1st respondent has formed the Government of the day in Namibia since the country became a nation State in March 1990. Thus, if the 1st respondent sneezes, the nation will indubitably catch a cold. Doubtless, the 1st 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 1st 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 1st, 2nd and 3rd applicants were suspended and barred from engaging in activities of the 1st respondent and its wings, and subsequently expelled from the 1st respondent. The 4th applicant was expelled from the 1st respondent. He was not suspended first. How did all this come about? The 1st 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 1st 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 1st 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 1st 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 1st 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 1st respondent’s Constitution, as supplemented by the Code.

[11]      Quite significantly, Mr Soni concurs that the relationship between the 1st respondent and the 1st 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 1st respondent) and its members.’

[12]      Thus, the written contract expressing the terms on which the members of 1st respondent associate together for political purposes is the 1st 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 1st respondent’s Constitution, as supplemented by the Code, contains the contract between the members, and between the members and 1st 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 1st 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 1st respondent there) from the 1st 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 1st 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 1st respondent and the leadership of the 1st respondent, considering the essence of the 1st respondent’s Constitution and the Code. As I see it, the 1st 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 1st respondent. In that event, relevant authorities in the 1st 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 1st respondent – that the authorities follow the section of the Code, entitled ‘Charge’, consisting of sections 29-39 of the Code. After all, 1st respondent stands for justice and fairness. See the 1st 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 1st 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 1st 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 1st respondent. Yet again, the issue is not who has the power or who has not got the power to expel a member from 1st 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 1st respondent’s Constitution, as supplemented by the Code.

[29]      Thus, the issue is not whether in the minds of the leadership of the 1st respondent the applicants carried out acts which were injurious to the wellbeing, character and interests of 1st 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 1st respondent may sit in judgment on them but only in accordance with procedures prescribed by the 1st 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 1st 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 6th 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 1st 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 1st respondent. There was therefore want of justice and fairness. See paras 32-35 of this judgment. It follows inevitably that the contractual right of 1st, 2nd, 3rd and 4th applicants was violated when they were expelled from the 1st respondent. It follows that the decision to expel them was ultra vires and unlawful.

[37]      In my opinion, the leadership of the 1st respondent were wrongly advised on the true interpretation and proper application of the relevant provisions of the 1st 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 1st 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 1st, 2nd, 3rd and 4th applicants. As I have mentioned earlier, 4th applicant was not suspended and barred from engaging in activities of 1st respondent and its wings before he was expelled. And so, I should now consider the matter of the suspension of 1st, 2nd and 3rd applicants.

Suspension of 1st, 2nd and 3rd 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 1st, 2nd and 3rd 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 1st, 2nd and 3rd 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 1st 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 1st, 2nd and 3rd 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 1st 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 1st 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 1st respondent without the 1st 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, 5th 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 1st 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 1st respondent’, as they contend in the notice of motion. It cannot be argued that one’s membership of 1st respondent entitles one to hold a position in the 1st respondent. If that was the case, then every member of the 1st respondent would be holding a position in the 1st respondent. Such membership only qualifies one to ascend to a position, if one meets the requirements prescribed by the 1st respondent’s Constitution. In sum, I hold that membership of the 1st 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 1st respondent; and

(b) setting aside the decisions referred to under paragraph (1) above (ie para A(1)) and ordering the 1st 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 1st respondent restore membership of the 1st respondent to each of the four applicants, and at the same time order that 1st 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 1st respondent prior their expulsion from the 1st 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 1st 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 1st 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 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.

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

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