REPUBLIC OF SOUTH AFRICA

ELECTORAL COURT, BLOEMFONTEIN

CASE NO:  005/22EC
Not Reportable

In the matter between:

SIYATHEMBA COMMUNITY MOVEMENT (SGB)

Applicant

and

INDEPENDENT ELECTORAL COMMISSION

First Respondent
SIYATHEMBA MUNICIPAL MANAGER

Second Respondent
JOHAN ANDREW PHILLIPS

Third Respondent
MAURICIAL ESTELL NIMMERHOUDT

Fourth Respondent
PATRICIA MOOI

Fifth Respondent

Neutral Citation: Siyabathemba Community Movement v The IEC and Others (Case
no 005/22 EC) [2022] ZAEC 7 (22 April 2022)

Coram: MBHA JA, MODIBA J and SHONGWE AJ and MS PATHER and PROFESSOR
NTLAMA-MAKHANYA (Members)

JUDGMENT

Shongwe AJ (Mbha JA and Modiba J and Ms Pather and Professor Ntlama-
Makhanya (members) concurring):

Introduction
[1] This is a review application of the decision of the first respondent, (the
Commission) which concluded that the expulsion of the third to fifth respondents
constituted a dispute of leadership within the applicant membership not supported by
facts and also that it is not in line with the legislative mandate of the Commission.

[2] The applicant, represented by Mr R J Februarie, in his capacity as : the elected
chairperson of the applicant, brought this application in which he prayed for an order:
(a) That the Commission be directed to accept that third to fifth respondents’ expulsion
was consistent with the provisions of the applicant’s constitution and was accordingly
authorised.
(b) That the conclusion that was reached by the Commission prior to the applicant’s
submission of the outcome of the disciplinary procedure, that the present dispute
between the applicant and the first to fifth respondents constituted a dispute of leadership
is not supported by the facts and not in line with the legislative mandate of the
Commission and should accordingly be reviewed and set aside.
(c) That the Commission be ordered to implement the applicant’s request to amend the
proportional representative list and to further update the applicant’s details and,
(d) That the applicant is afforded further and/or alternative relief as deemed fit by the
above honourable court.

[3] The application is opposed by all the parties save for the Commission which
decided to file a notice to abide and an explanatory affidavit. This matter has a rather
long history but because of the approach I prefer to take it will not be necessary to deal
with all the historical background. However, all the facts and the law will not be ignored
when considering the merits. In opposing this application, the second respondent, the
Siyathemba Municipal Manager (MM), raised, amongst others, certain points in limine,
which are fatal to the applicant’s case on their own. First, Mr Februarie does not have
locus standi to bring this application or any authority to depose to any affidavit on behalf
of the applicant. Second, the applicant misjoined the MM and/ or did not join the
Siyathemba Municipality. Third, there is a similar matter involving the same parties

pending in the Northern Cape High Court (Lis’ alibi pendens) and lastly,  the application
lacks urgency. The third to fifth respondents also raised a point in limine of Lis alibi
pendens. I will later in this judgment, deal with these points in limine in detail.

The Facts
[4] It is common cause that the applicant is a duly registered political party and
participated in the 1 November  2021 local elections. It is also not in dispute that the
applicant won ward 2 and obtained three proportional seats. On 20th November 2021 the
applicant had its inaugural sitting of the Siyathemba Municipal Management Structure
(SMM) which invitation was extended to all members, however, the third to fifth
respondents failed to attend nor did they proffer an apology. The third to fifth respondents
failed to attend the meeting on 21st November 2021 which was in preparation of the
inauguration of the council and also refused to sign a deployment contract which they
were duty bound to sign. As a result of their conduct the meeting resolved to expel them
from the applicant. The Commission as well as the second respondent were informed of
the decision to expel them but were advised by the second respondent that such action
can only be taken after the inauguration of the council. Despite not signing the
deployment contracts, the third to fifth respondents attended the inauguration of the
council and were duly inaugurated as councillors.

[5] On 13th December 2021 the third to fifth respondents were served with a
‘NOTICE OF SUSPENSION AND NOTICE TO APPEAR AT A DISCIPLINARY
HEARING’. The third to fifth respondents failed to attend the hearing on 22nd December
2021. However, the hearing proceeded in their absence and they were summarily
expelled from the applicant. The finding to expel them was however presented to the 'DM
secretary' on 28th December.

[6] On 24th November 2021, the applicant launched an urgent application, before the
Northern Cape high Court, under case no: 2470/21 wherein it sought an order upholding
its decision to expel the third to fifth respondents. On 14th December 2021, the applicant
together with its members embarked on a peaceful protest march to the offices of
Commission and the second respondent. There they handed over various memoranda
including the notice of suspension and disciplinary hearing of the third to fifth
respondents. The Commission accepted the memorandum but indicated that it does not
involve itself in internal party issues. The second respondent advised the applicant that
it will await the outcome of the disciplinary hearing. The third to fifth respondents were
served with the expulsion letter on 4th January 2022.

[7] On 19th January 2022 the Commission received a letter from the applicant
advising that the third to fifth respondents have been expelled. As expected, the
Commission needed the third to fifth respondents to confirm or deny this allegation. The
third to fifth respondents responded and denied the allegations and requested the
Commission to allow due process to unfold. This response convinced the Commission
that there was an internal leadership dispute and therefore it was not within its powers to
intervene in terms of Regulation 9 of the Electoral Commission Act 51 of 1996, (the Act)
(Regulation 9). As a result the Commission decided that there existed an internal dispute
of membership.

Legal Framework
[8] It is common cause that the Commission was established in terms of section 3 of
the Act, section 4 deals with the objects of the Commission and section 5 deals with the
powers, duties and functions of the Commission. For the Commission to exercise its
duties and functions properly, it is best for it to stay away from interfering or meddling in
internal affairs of political parties other than those germane to the management of
elections. An internal affairs dispute may include, inter alia, a dispute of membership or
status of a member’s standing in the party.

[9] Upon registration a political party, (in terms of section 15 of the Act), must provide
the Commission with its constitution, otherwise known as the Deed of Foundation. This
document must contain, inter alia, the particulars of the party leader and the name and
address of members constituting the executive body of the party. Regulation 9 provides
that ‘any change in the particulars furnished in Annexure 1 must be notified to the Chief
Electoral Officer in writing within 30 days after such change by the registered leader of
the party.’ In casu, the third respondent is reflected as the registered party leader.
According to the records of the Commission, it has not received any written notification
of any change or amendment of the Deed of Foundation from the registered party leader
as provided in Regulation 9 of the Regulations.

[10] Section 27 of the Local Government: Municipal Structures Act 117 of 1998 (the
Structures Act) provides for the occurrence of a vacant seat on the municipal council and
the procedure to fill that vacant seat. (See item 18 read with item 20 of Schedule 1 of the
Structures Act). In my view, the Commission correctly and succinctly sets out the
procedure and the chronology of how a political party should go about amending or

altering its registered membership list and its leadership, in paragraphs 35 to 36 of its
explanatory affidavit. The said procedure has not been properly followed by the applicant.

[11] It is clear from the correspondence between the Commission and the applicant,
including its membership, that there has been conflicting communication. For instance,
the third to fifth respondents aver that they have been unlawfully expelled and also that
Mr J A Phillips is the registered party leader and not the deponent to the applicant’s
founding affidavit, ( Mr R J Februarie). These averments are confirmed by the second
respondent. The third to fifth respondents also contend that the pending case no: 148/22
before Northern Cape High Court deals with the disputes of membership and leadership,
it involves the same parties, the same cause of action, therefore, so argues the third to
fifth respondents, the outcome of the pending case will be determinative of this
application. Hence the point in limine of Lis alibi pendens. This matter is similar to the
reported case of Pan Africanist Congress of Azania v Independent Electoral Commission
of South Africa and Another [2016] ZAGPPHC 250 which had similar facts and also
suffered the same fate. I may add that it may be so that the applicant had a valid reason
in expelling the third to fifth respondents, but it appears as if the applicant did not follow
the correct procedure in doing so.The applicant may also have not followed the correct
proedure in reporting the vacant seat(s) to the MM and/or the Commission, to enable the
Commission to properly amend/alter the party list accordingly.

Points in Limine
[12] The second to the  fifth respondents raised the point that Mr R J Februarie does
not have locus standi to depose to an affidavit as chairperson of the applicant because
the third respondent, Mr Phillips, is the registered leader of the applicant. At no stage did
Mr Februarie present a resolution mandating him to act on behalf of the applicant. Even
after the point in limine was raised he failed to rectify the position. There is no basis of
accepting that he is qualified to represent the applicant. Solely on this point the
application is fundamentally flawed and stands to be dismissed. There seem to be no
dispute that case no: 148/22 is pending before the Northern Cape high court, which case
is between the same parties, and deals with the same cause of action and the same
relief. At the time of preparing this judgment this court had not been provided with the
outcome of the pending case. I see no reason why I should not declare this application
frivolous and vexatious. It is so declared. The issue of misjoinder or nonjoinder is neither
here nor there, it will not be necessary to decide it now.

Conclusion

[13] In my view, this application is flawed in all fronts. On the merits, it is clear that
there is an internal leadership dispute, which dispute removes it from the realm of the
mandate of the Commission. In my  view, the Commission does not have the authority to
deal with it in terms of the existing legislation. The points in limine raised by the
respondents are determinative of this application. The application falls to be dismissed.

[14] In the result the following order is made:
1 The application is dismissed.
2 There is no order as to costs.

J B Z SHONGWE
ACTING JUDGE
OF THE ELECTORAL COURT
22 April 2022