IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case no: 

In the matter between:

JOHANN WICHARDT GREYLING BRUMMER - Applicant

and

THE DEMOCRATIC ALLIANCE - First Respondent

THE MUNICIPAL MANAGER BITOU LOCAL MUNICIPALITY - Second Respondent

THE MUNICIPAL MANAGER EDEN DISTRICT MUNICIPALITY - Third Respondent

THE INDEPENDENT ELECTORAL COMMISSION - Fourth Respondent

FOUNDING AFFIDAVIT

I, the undersigned

JOHANN WICHARDT GREYLING BRUMMER

hereby make oath and say that:

1 I am an adult male Democratic Alliance politician and an elected part-time councillor of Bitou Local Municipality and an appointed full time councillor of Eden District Municipality. I am bringing this application in my personal capacity.

2 The contents of this affidavit are true and correct and, unless otherwise indicated or clear from the context, fall within my personal knowledge. Where I rely on information provided to me by others, I indicate the source and verily believe that such information is true and correct. Where I make legal submissions, I do so on the basis of advice received from my legal representatives, which advice I believe to be correct.

3 The First Respondent is the Democratic Alliance (DA), a South African political party and majority partner of the ruling DA/COPE coalition forming the Bitou Local Government. Hereinafter referred to as the DA.

4 Second Respondent is Mr Allen A Paulse the current Acting Municipal Manager of the Bitou Local Municipality. Hereinafter referred to as the AMM.

5 Third Respondent is Godfrey Louw, the Municipal Manager of the Eden District Municipality. Hereinafter referred to as the MM.

6 Fourth Respondent is the Independent Electoral Commission of South Africa, hereinafter referred to as the IEC.

THE NATURE OF THE RELIEF SOUGHT

7 This is an application for the issuance of a rule nisi and the following interim relief pending the return day:

7.1 Directing First to Third Respondents not to declare my position on the Bitou Local Municipality's Council vacant to the Independent Electoral Commission, until all avenues available to me to set aside the cessation of my membership have been exhausted and until all avenues to settle the financial dispute between the DA and I have been exhausted.

7.2 Directing First to Third Respondent NOT to take steps to appoint anybody to the position and if the position has already been declared vacant, not to appoint anybody.

7.3 Directing First Respondent to immediately reinstate my membership of the DA , and restore my salaried positions on Bitou Local Municipality and Eden District Municipality .

7.4 Directing Fourth Respondent not to action or accept a declaration or appointment as the case may be should First to Third Respondents already have submitted same or submit same before the proposed application for review and setting aside has run its full course.

7.5 Directing First to Third Respondents to desist from victimising me.

JURISDICTION.

8 My principal place of business and the official premises of the Respondents are all situated within the territorial jurisdiction of this Honourable Court. In addition, I submit that the whole cause of action arose within the territorial jurisdiction of the Honourable Court. I accordingly respectfully say that the Honourable Court has the necessary jurisdiction to hear and determine this application.

LOCUS STANDI

9 I respectfully say that I have the necessary locus standi to apply for the relief sought in this application in my personal capacity as an adult.

FACTS GIVING RISE TO THIS APPLICATION

Background Facts

10 It is necessary for me to provide this Honourable Court with a brief history of the more important historical facts relating to this matter, being events which have taken place since I became a member of the DA and a councillor on the Bitou Council, so as to allow the Court to fully appreciate the context of this application. I do not intend to deal with the background facts in any great detail. Should the Court however require clarification or greater detail regarding any of the background facts set out below I will be happy to provide such information in an additional amplifying affidavit.

11 I have been a loyal and hard working member of the DA since its formation in 2000.

12 I have served as a DA public representative (Councillor) since my election on 5 December 2000.

13 Over the years I have endured much personal hardship and intimidation as an opposition councillor even to the extent of having been twice unlawfully arrested, subjected to spurious law suits amounting to millions and costing me tens of thousands in personal funds to defend.

14 My performance has been described by the Federal Chairperson, James Selfe as follows: " His activism while the Party was in opposition was almost heroic, and, as has been reported, he was harassed because of it."

15 My disciplinary record with the party is unblemished.

16 Without wishing to sound boastful, I have almost single handedly been responsible for the growth of the DA in Bitou from a tiny no-hope party 12 years ago to where it is today; the majority party.

17 It is widely held by political pundits that it was my hard work, personal sacrifice and risk over many years that created the awareness of a need for a change in government in Bitou Municipality , and I am widely credited "...for handing the Bitou council to the DA in the 2011 municipal elections thanks to his (my) vigorous and often controversial opposition..."

18 I will bring an application to have my dismissal from the party reviewed and set aside as soon as possible.

19 The sanction of cessation of membership imposed upon me by the Party, if allowed to stand, will cause extreme prejudice to me, out of all proportion to my alleged offence of allegedly owing an amount of just R 5 621.

20 Despite affidavits to the effect that I owe the Party the exact amount of R 5 621 this is far from certain. I have variously been given amounts of R 3766.14, R 3 790.14, R1200 and the contested R 5 621. (Annexure A, D )

21 The DA has stated that my membership ceased on 31 July 2012, because I did not pay or make arrangements to pay. (Annexure B)

22 Yet, I have unequivocal proof in the form of written correspondence that from 22 July 2012 right to the very last moment, just 21 minutes before being served with the notice ceasing my membership that I was involved in correspondence trying to obtain a determination of the exact amount alleged to be owing so that I could settle it. (Annexures C - I)

23 The above correspondence, and correspondence and actions subsequent to the serving of the notice, clearly and unequivocally show that I acted in good faith throughout and continuously offered to settle the debt, if any. 

24 My request for conclusive proof of the alleged debt was not unreasonable and I humbly submit that it is common practice for creditors to have to provide conclusive proof of a debt and that it is a debtor's right to demand such.

25 Throughout the DA's officials have stubbornly and unreasonably refused to provide the required conclusive proof. "There is no need for any 'determination'. The amount owing is, as stated in the letter dated 21 April, which you acknowledged receiving on 7 May 2012, is R 5 621." (Annexure K)

26 I further humbly submit that, where a dispute as to an amount owing it is a justiciable matter and it lies within the jurisdiction of a court to make a final determination as to the amount owing and that by acting as they have, the DA have ousted the jurisdiction of the court and denied me the right to bring a justiciable matter before the court. 

27 I further humbly submit, that immediately upon discovering that I may indeed be in debt to the DA by an even smaller amount than the disputed R 5 621, I offered to settle that disputed amount in full. (Annexures E,G,H, J, L and N)

28 My above offer was not responded to until after the 72 hr dead-line for representations, set by the DA itself, had already expired. (20:45 on 16 August 2012 vs 09:00 on 18 August 2012) (Annexure O)

29 In the interim, as a token of good faith, I made a "without prejudice" payment in the full amount into the DA's chosen banking account.

30 I supplied proof of payment to the persons concerned only to be advised that the DA rejects this payment without reasons being given. (Annexure R and O)

31 It is telling that at the time of writing, the DA has not returned all or even part of this sum to me, nor have they attempted to make any arrangements to do so.

32 It is clear that, if as the DA avers, this is purely a matter of moneys owing, then I humbly submit that in the normal course of commercial intercourse, especially where a loyal and valued "client" is concerned and a clear misunderstanding existed, the parties would have settled the issue amicably upon the basis of conclusively proven debt having been paid and would have put the matter behind them for all time.

33 The sanction applied against me by the DA, however, has serious and far reaching implications for me personally out of all proportion to what is a trifling matter arising out of a simple understanding.

34 As stated above, politics has been my career for the past 12 years, and given the fact that there is no fixed retirement age for politicians, I humbly submit that I have another 12 years ahead in my career.

35 At best the sanction will result in a 4 year interruption of that career, and at worst, if I am unable to sustain a political presence in my constituency during those 4 years, it destroys my career.

36 I am a Proportional Representative and as such depend upon my party membership to hold my position as councillor therefore the option to stand in a bye-election, as would be the case had I been a ward councillor, does not arise.

37 I estimate that the pecuniary loss between now and 2016 when the next local government election is scheduled could amount to R 2 000 000 plus.

38 Considering the circumstances, where the wrong complained of by the Party amounts to a trifling sum of just R 5 621 at most, the remedy of receiving payment in full of that amount and in addition exacting a the further punishment of destroying my career and causing such the enormous personal financial loss of some R 2 000 000, the "punishment" simply does not fit the "crime" and makes no sense whatsoever.

39 I humbly submit that the sanction against me by the DA, as allowed for under 3.1.5.9 and 3.2 of its Federal Constitution, amounts to a punishment which is cruel, inhuman and degrading and therefore both are un-Constitutional.

PROCESS FOLLOWED.

40 I humbly submit that, the process followed by the DA, although narrowly in line with the letter of its Federal Constitution at 3.5 thereof, is unfair, unjust and therefore not only in conflict with the spirit of its own constitution and principles, and its Code of Conduct for Public Representatives, specifically that all public representatives maintain the highest standards of ethical behaviour at all times, is in breach of the Constitution of the Republic of South Africa.

41 In support of the above I submit the following extracts fom the DA's Federal Constitution:

"South Africa's Constitution is the only foundation on which an Open Opportunity Society for All can be built because it recognises that every person is equal in dignity and worth and guarantees the freedom of each individual. The rights enshrined in the constitution must be defended and promoted in order to protect the people of South Africa from the concentration and abuse of power."

PRINCIPLES

"The vision of the Democratic Alliance is grounded on the defence, promotion and extension of the following principles:

 1.3.3 the supremacy of the South African constitution and the rule of law;

1.3.5 equality before the law;

1.3.6 the separation of legislative, executive and judicial power

1.3.7 the rejection of violence and intimidation as a political instrument"

42 The part of the Federal constitution relied upon by the DA for the cessation of my membership is 3.5.1.9 and for the sanction 3.5.2

43 "3.5.1.9 A member ceases to be a member of the Party when he or she is in default with the payment of any compulsory public representative contribution for a period of 2 (two) months after having been notified in writing that he or she is in arrears and fails to make satisfactory arrangements or fails to comply with such arrangements for payment of the arrears. For this purpose, 'in writing' means a letter of demand setting out the amount owing and the date by when it must be paid.

 3.5.2 A member, who ceases to be a member of the Party, loses all privileges of Party membership and, if that member is a public representative, he or she also loses the office which he or she occupies by virtue of his or her membership, with immediate effect."

44 These clauses applied to the letter, as has been done, are nothing short of un-Constitutional and draconian and clearly fly in the face of all the DA professes to hold dear, respect and stand for.

45 The resultant loss of membership denies the person a hearing compliant with the Rules of Natural Justice, as allowed for by the Party's own constitution at Chapter 11, even where transgressions of a far more serious and damaging nature could have been committed.

46 It removes all possibilities of mediation.

47 It prevents the person from submitting argument in mitigation.

48 It removes the right to appeal the finding of the Federal Law Commission and the Federal Executive.

49 It denies due process in that inter alia, there is no allowance made for an application to apply to a competent court for the review and setting aside of a decision and/or action taken ito 3.5.1.9 and 3.5.2.

50 While it may be argued that the 72hr period within which to submit representations addresses the above issues, I humbly point out that when one has regard for the wording of the notice of cessation it does no such thing. It states as follows: (Annexure A)

"You are accordingly hereby granted the opportunity to, within 72 hours of being served with this notice, to provide me (as committee assistant) with clear and unequivocal reasons in writing why your membership did not cease in terms of sections 3.5.1.9 of the Federal Constitution for the reasons as stated above." [Emphasis added] (Annexure A)

"In the event that a determination is made that your membership has ceased, then a recommendation shall be presented to the Federal Executive Committee which will then either confirm or reject the determination of cessation of your membership."[Emphasis added] (Annexure A)

51 There is no hearing, no allowance made for argument in mitigation, no prospect of appeal, not even a passing nod at the Rules of Natural Justice, which all apply to the ordinary disciplinary procedures of the Party.

52 I submit that the procedure as contained in 3.5 of the Federal Constitution has led to injustice; was an unfair administrative action, in that the Federal Law Commission clearly considered evidence against me which had a considerable impact on their determination and ultimately that of the Federal Executive's confirmation of their decision.

53 I refer specifically to the following:

54 In reference to a "without prejudice" payment made in April 2011, the FLC states and finds " ... the provincial finance office has advised that this amount has not been paid to the province. It is apparently sitting in a constituency account and Brummer has refused permission for it to be paid to the province." [Emphasis added.] (Annexure B)

55 This was never put to me and I was not given an opportunity to challenge or rebut this "advise" which clearly was given the status of unchallenged evidence.

56 Had I been afforded the opportunity, I would have been in a position to point out that 1.6.7 of the Federal constitution states: "All monies received and collected in the name of the Party vest in the Party itself." And that even if I had "refused permission" that it be moved from one banking account of the DA to another, I was in no position to do so. The money vested in "the Party itself", was located in a bank account in their name and under their control. It was patently erroneous to give any weight to this "evidence."

57 Had I been afforded the opportunity, I would have submitted as evidence an e-mail where I instruct that the money is for the "province" and that if they (province) ask for it again, I will refer them to the person in control of that particular constituency account, clearly on the understanding that he will then do the necessary; move it to the correct account. I was denied that opportunity. (Annexure S )

58 It is further found as follows:

"Accordingly, as at 31 July, even taking into account the R3970.14, which we do not accept, as it has not been paid to the province as required, there would still have been an amount of R1650.86 outstanding." (Annexure B)

59 I submit that this conclusion is challengable as it ignores the fact that the R 3 970.14 vested "in the Party itself" regardless of which particular banking account it was in.

60 The FLC concludes as follows:

"Thus, as at two months after the demand was received, he had still not paid the full outstanding amount owing to the Party, nor made arrangements to pay same. In fact, he did not even correspond with National Head Office in connection therewith.

It is accordingly found that Brummer's membership ceased on 31 July 2012, and that the payment made thereafter has no effect thereon.

It is accordingly recommended to the Federal Executive that Brummer's cessation of membership as of 31 July 2012 be confirmed, and all consequences thereof implemented."(Annexure B)

61 What was within their knowledge and conveniently ignored is the fact that from as early as 22 July, well before the date of 31 July the Regional Chairperson, to whom I am responsible in terms of the Federal constitution, were in correspondence regarding my alleged debt to the Party. She initiated the discussion on 22 July, and although the correspondence shows that I misunderstood exactly which "debt" was under discussion, in retrospect it is clear that she was referring to the "candidates fee" and could only have been acting on behalf of the National and upon their instruction.(Annexures C - I)

62 Again the FLC jumps to a critical conclusion without affording me the opportunity to put it to the test.

63 Had I been afforded that opportunity, I would have been able to submit copies of the correspondence passing between us which clearly illustrate not only my confusion, but also a clear and unequivocal undertaking to pay what is owed once determined exactly. (Annexures C - I)

64 I submit that the correspondence as submitted shows that I was clearly in the process of "making arrangements for payment of the arrears" and all that stood in the way of actual payment was a determination of the debt which was not forthcoming.

65 With regard to the conclusion that I had not corresponded with "National Head Office," I submit that this is again an erroneous assumption as the correspondence clearly shows that I was corresponding with the person that they had chosen for me to correspond with; the Regional Chairperson, Christelle Vosloo.

66 Not only did I clearly dispute the quantum of the debt, I went as far as to prepare and submit an account analysis based on the information available to me, reflecting the actual financial position in its totality, between myself and the DA.(Annexure T)

67 This analysis clearly shows that, if nothing else, that there is very possibly a large discrepancy between its figure of R 5 621, and the R 1487.57 my figures show to be outstanding as at May 2012 when the final notice was served on me. A pressing need to reconsider before taking such drastic and final action as determined by the Fedral constitution.

68 It shows further that on 13 August 2012, the day the affidavits underpinning the disciplinary action were deposed, the amount outstanding could have by then reduced to just R 682.01 and not R 5 621 as averred. Another indication that a pressing need for a determination existed and caution.

69 It also showed that on 25 August an additional overpayment on the tithe account would reduce my total indebtedness to the DA to a mere R 48.90. An even greater indication that serious doubt existed and caution should be exercised.

70 The analysis also clearly shows, supported by a Proof of payment (Annexure R) that several days before the FLC a "without prejudice" payment of the full amount demanded had been made. Yet another indication that caution if not a total rethink was required at that point.

71 The FLC in their recommendation cavalierly sweep all of this off the table as follows: "Even assuming he is correct in respect of the tithes owing, he has taken into account the amount paid on 15 August after he received the letter of termination, in coming to the conclusion that he owes the party nothing. This clearly cannot be taken into account, as it was paid after the deadline of 31 July." (Annexure B)

72 The FLC's recommendation starts with the following statement of facts:

"A letter of demand dated 1 April 2012 was sent to Brummer, informing

 him that he was in arrears with his candidate fee in respect of the 2011

local government elections, and informing him that he is required to pay,

make a suitable arrangement to pay, or respond in writing, on or before

20 April 2012.

No response was forthcoming.

A second "final demand" letter dated 21 April 2012 was sent, advising again that he is still in arrears, and reminding him of the consequences of non-compliance with a demand from the party, namely the provisions of section 3.5.1 of the DA Federal Constitution."

73 Clearly these facts which, under the circumstances and within the narrowly defined parameters set for my response, could not and therefore were not addressed by me, paint a picture of mala fides on my part.

74 It appears that the "evidence" relied upon by the FLC for this statement of facts is contained in what purports to be a record of actions forming a part of the statement of account attached to the Final Notice and Cessation of Membership notice. (Annexure A)

75 Once again, had I been afforded an opportunity to test and/or rebut this evidence I would have been able to prove that my e-mail address as stated on the statement of account is incorrect and any notifications - those of 1 and 21 April - could not possibly have been received.

76 Besides that, my landline number is also incorrect and it is not surprising to read that they were unable to contact me in that way.

77 Thirdly, like many other public representatives the volume of voice mails received makes it impossible to handle and we do not take voice mails but instead request that the more manageable SMS format be used for leaving messages or requesting calls to be returned.

78 Clearly the picture of a uncommunicative and recalcitrant debtor painted in opening paragraphs is not correct and should not have been given any weight. I submit that the true picture is that of an administration whose contact data is outdated and in disarray.

79 I submit that item 3.5.1.9 of the Federal constitution is so demonstrably unfair and unjust that it should be considered to be pro non scripto and therefore of no force or effect. A determination that can only be made by a competent court.

80 Apart from the long-term prejudice I will suffer I am already suffering prejudice as a direct result of the action the party has taken against me.

81 By ceasing my membership and removing me from my salaried positions as public representative (councillor) on the Bitou Local Council and the Eden District Council, my sole income has been abruptly terminated.

82 Apart from the obvious financial prejudice it specifically makes it almost impossible for me to approach a competent court for relief.

83 Not only has the DA already caused the vacancy it has also advertised the vacancy with applications closing on 30 August 2012. Should the DA make such an appointment before I can approach a competent court for relief, the whole matter will be rendered moot. (Annexure U)

84 I submit that I am in imminent danger of suffering extreme prejudice and have indeed already suffered substantial prejudice and harm.

ENTITLEMENT TO RELIEF SOUGHT

86. I respectfully say that a proper case is made out herein for the granting of a rule nisi, which will operate as an interim interdict, as set out in the notice of motion, to which this affidavit is annexed.

87. I respectfully point out that the Respondents will suffer no prejudice if this Court should deem it fit to grant the order sought, in that the Applicant seeks nothing more than that the status quo, as it was before the fateful decision was taken, remain. Given the unjust administrative actions taken against me, the implacable and narrow interpretation of the rules and the haste with which First Respondent has already moved to declare the vacancies, advertised and fill same. I submit that a Court Order obliging the respondents from proceeding against me until I can have an opportunity to have their unjust administrative actions reviewed and set aside by a competent court, is the only adequate remedy in respect of their current actions.

URGENCY AND CONDONATION.

88. I respectfully submit that this matter is a fit and proper one to be heard as one of urgency and that the Honourable Court should condone my failure to comply with the time limits and procedures prescribe by the rules of this honourable court.

89. I have exhausted all other options, including my lawyer's letter to the DA appealing to them to voluntarily agree to a delay to properly prepare to approach the Court, which has not even been responded to. (Annexure W)

90. I say this because as at this moment and when the decision to terminate my membership was taken by the DA Federal Law Commission and ratified by the DA Federal Executive, the financial position between the DA and I was undeniably that I am in credit in an amount in excess of R 5 000 with them. All the money is in bank accounts in the name of and under the control of the DA.

COSTS

91. The Applicant seeks costs against First Respondent. As this matter is from the outset trifling and frivolous and should have been settled between the parties through negotiation or mediation without having to resort to the Courts, had they respected the Constitutional imperative that administrative action must be lawful, reasonable and procedurally fair.

92. I submit that the appended documentation presents clear evidence that I have acted in good faith throughout and that the DA has acted vindictively and in bad faith.

PRAYER

93. I accordingly pray for an Order as set out in the Notice of Motion to which this affidavit is annexed. 

____________________________________

JOHANN WICHARDT GREYLING BRUMMER

SIGNED and SWORN to before me at Plettenberg Bay on this day of AUGUST 2012, the deponent having acknowledged that he/she knows and understands the contents of this Affidavit, the regulations contained in Proclamation R1258 dated 21st July 1972, as amended, having been complied with.

___________________

Commissioner of Oaths

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