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 - irst Respondent
THE MUNICIPAL MANAGER BITOU LOCAL MUNICIPALITY - Second Respondent
THE MUNICIPAL MANAGER EDEN DISTRICT MUNICIPALITY - Third Respondent
THE INDEPENDENT ELECTORAL COMMISSION - Fourth Respondent
APPLICANT'S REPLYING AFFIDAVIT
I, the undersigned,
JOHANN WICHARDT GREYLING BRUMMER
do hereby make oath and state that:
1. I am the Applicant herein and the Deponent to the Founding Affidavit in this application.
2. The contents of this affidavit are true and correct and, unless otherwise indicated or clear from the context, fall within my personal knowledge.
3. I have read the Answering Affidavit deposed to by JAMES SELFE, on behalf of the First Respondent.
4. I will, hereinbelow, comment on certain factual allegations contained in the Answering Affidavit deposed by JAMES SELFE, insofar as may be necessary.
5. It is my submission that the First Respondent has not added much to the factual scenario forming the backdrop to this application.
6. Legal argument will, however, be directed at the issues arising from the affidavits filed of record, together with the annexures thereto.
7. At the outset, before I address the factual allegations contained in the First Respondent's Answering Affidavit, I would want to highlight a few aspects.
OPPOSITION TO THE APPLICATION
8. Only the First Respondent is opposing the application.
9. Although the application was also served on the BITOU LOCAL MUNICIPALITY, the EDEN DISTRICT MUNICIPALITY and the INDEPENDENT ELECTORAL COMMISSION, they have elected not to oppose the application.
THE PARTIES TO THE APPLICATION
10. The First Respondent has attempted, in its Answering Affidavit, to allege that neither the BITOU LOCAL MUNICIPALITY nor the EDEN DISTRICT MUNICIPALITY are parties to the application.
11. I beg to differ.
12. Both these entities have been cited in the application and service of the application has been effected on both Municipal Managers.
13. Both of these entities are DA controlled entities if either of them intended to oppose the application, they would have done so.
14. They did not.
15. It can only be assumed that they have elected to follow the lead of the Chairperson of the FEDERAL EXECUTIVE of the DA in their approach to this application.
16. I humbly submit that an attempt to raise the technical point of non-joinder of these two entities is highly artificial and should be dismissed.
17. Attempts are also made in the Answering Affidavit of the First Respondent to raise another technical point, namely that the Candidate nominated by the DA to fill the vacant position occasioned by the termination of my membership, one Ms NDAYI, should also have been joined as a Respondent in the application.
18. Once again, I beg to differ.
19. Firstly, I was not even aware that Ms NDAYI had been nominated to fill the vacancy.
20. Secondly, Ms NDAYI has not yet filled the vacancy, as the IEC (the Fourth Respondent) had been interdicted from filling the vacancy.
21. Ms NDAYI was nominated for the position by the DA, in the final analysis. It is submitted that she would have no independent grounds for opposing this application, as she had not yet been appointed to the vacancy in either the BITOU or the EDENCouncils, and therefore it would have been totally unnecessary to join her as a party to this application.
ALLEGED SELF-CREATED URGENCY
22. The First Respondent bemoans the fact that its Answering Affidavit had been prepared under extreme pressure, which has allegedly caused the DA significant prejudice (paragraph 4).
23. It is also alleged by the First Respondent that I "sat back" from 21 August 2012 before I approached my Attorneys and then waited until 5 September 2012 to launch the application. (paragraph 19)
24. This is not true reflection of the factual events.
25. In paragraph 79 of my Founding Affidavit, I alleged that I had contacted various firms of Attorneys in an effort to assist me in this matter, without going into the details.
26. In the light of the First Respondent's allegations, I need to supply those details.
27. When I realized that the termination of my DA membership was a fait accompli, I attempted to contact Mr MARTIN HURWITZ, an Attorney in Plettenberg Bay, who is presently doing legal work for me, but I could not raise him on the telephone.
28. In desperation I then contacted Attorney JOHN GILLESPIE in Plettenberg Bay to assist me.
29. Mr GILLESPIE informed me that he did work for the BITOU MUNICIPALITY, therefore there would have been a conflict of interest, and, accordingly he could not assist me.
30. I then attempted to approach another Attorney in the Plettenberg Bay area, one Mr RIKUS TRUTER.
31. I even drove to his farm for assistance, because I could not raise him on the telephone.
32. His Secretary informed me that he was in Cape Town, I telephoned him and followed his advice. On his return to Plettenberg Bay on Monday night he advised me that as he was busy with an appeal he could not take this matter on.
33. On Tuesday he introduced me to an Attorney in Knysna, one Mr COEN DE BEER, who demanded an exorbitant deposit before he could take on the matter. (The same day I was advised of the Federal Executive's decision.)
34. Thereafter, I managed to get hold of Mr MARTIN HURWITZ, who took on the matter.
35. Mr HURWITZ immediately arranged a consultation with Counsel.
36. The first available date upon which we could consult with Counsel, was 27 August 2012.
37. In the light of the fact that the vacancy which had been created by the termination of my DA membership had already been advertised on 23 August 2012, my Counsel advised that there was no time to waste and he then attempted to raise the Chairman of the FEDERAL LEGAL COMMISSION of the DA, one Mr H C SCHMIDT, a member of Parliament and the author of Annexure "B" to my Founding Affidavit, whose cell phone number appeared on Annexure "B".
38. In spite of various attempts, my Counsel could not raise Mr SCHMIDT.
39. My Counsel then advised that my Attorney should address an urgent letter to Mr SCHMIDT, requesting an undertaking that the vacant position will not be filled until midnight, 26 September 2012, in order to give me sufficient opportunity to take legal advice, fully assess my position, and to take such steps as I may be advised. (see paragraph 9, Annexure "K")
40. The date of 26 September 2012 is significant.
41. In terms of the normal procedures when a vacancy is filled, that was the date in terms of the protocol, upon which the process of filling the vacancy had to be completed.
42. On 30 August 2012, the Attorneys acting for the First Respondent informed my Attorney that the First Respondent had given no undertaking, as requested, and confirmed, on 3 September 2012, that no undertaking will in fact be given. (see Annexures "L" and "M")
43. Accordingly, an application had to be prepared, in the utmost of haste, for the following reasons:
43.1 Instead of going through the motion of filling the vacancy, in the normal course, the First Respondent had "fast-tracked" the process.
43.2 I was informed of the termination of my membership on 21 August 2012.
43.3 On 23 August 2012, an advertisement had already appeared in a local newspaper, for applications for the vacancy of the position. (Annexure "J")
43.4
43.5 Thereafter, it appears that a Candidate for the position had already been ear-marked, because when we telephoned the IEC on Tuesday, 4 September 2012, it had already received the nomination of the person who was supposed to have filled the vacant seat.
43.6 As the IEC informed us, it was a question of pressing a button on the computer to complete the process of filling the vacancy.
43.7 From all of the above, it is clear that the First Respondent had moved with the utmost of speed in filling the vacancy.
44. Accordingly, the First Respondent is to blame for its own "extreme pressure" and whatever prejudice it might be suffering.
45. I most definitely did not drag my feet, nor did I create my own urgency.
46. I had to dance to the beat of the drum of the First Respondent, which beat had clearly been accelerated for reasons which the First Respondent did not disclose in its Answering Affidavit.
ACCOUNTING EXERCISE
47. In paragraph 4 of its Answering Affidavit, the First Respondent declares:
"In particular the DA has not been possible (sic) to deal with the Applicant's unnecessarily and deliberately complicated accounting arguments."
48. First of all, I deny that my "accounting arguments" were unnecessary. It is clear from the Notice of 13 August 2012 that I was narrowly confined to an accounting argument.
49. Annexures "C", "D" and "E" to my Founding Affidavit contain such "accounting arguments".
50. These "accounting arguments", I presented to the First Respondent on 16 and 17 August 2012, upon an invitation by the aforesaid Mr SCHMIDT (Chairman of theFEDERAL LEGAL COMMISSION of the DA) to provide reasons why my membership did not cease in terms of Section 3.5.1.9 of the Federal Constitution of the DA, which invitation was extended to me on 13 August 2012, (Annexure "B")
51. Annexures "C", "D' and "E" to my Founding Affidavit consist of 13 pages of "reasons" why my DA membership should not have been terminated.
52. Not only was I not afforded a response to such "reasons", but more so, my DA membership was terminated summarily on 20 August 2012, of which termination I was informed on 21 August 2012.
53. It is disingenuous of the First Respondent now to allege that it had not been able to deal with my accounting arguments.
54. Those accounting arguments should have been dealt with before the termination of my membership of the DA.
55. It is clear from the actions of the First Respondent, which is confirmed by paragraph 4 of its Answering Affidavit, that it paid no attention whatsoever to the reasons presented by myself in Annexures "C", "D" and "E" in the adjudication of this "accounting dispute".
56. Indeed, as would appear from the rest of the Answering Affidavit of the First Respondent, there was indeed no adjudication of this dispute, as my membership had been "automatically" terminated in terms of the Constitution of the DA.
57. I humbly submit that the First Respondent should have taken this Honourable Court into its confidence by dealing with my reasons set forth in Annexures "C", "D" and "E" to my Founding Affidavit in an attempt to convince the Court that it had been correct in terminating my membership and that its "accounting arguments" were correct, and that my "accounting arguments" were indeed incorrect.
58. The First Respondent failed to do so, when it had a golden opportunity to do so.
59. Nowhere in its Answering Affidavit does the First Respondent even attempt to explain:
59.1 How the amount allegedly owed by me was arrived at; and
59.2 that such amount is indeed correct; and
59.3 that the Deponents to the affidavit who confirmed that I was in default with the payment of such amount (Messrs MARAIS and BREDELL) were in positions to confirm the correctness of the alleged amount. On the one hand they state that there is and can be no connection between the National and Provincial accounts, but on the other hand they rely on Affidavits relating to a National Debt deposed to by Provincial Office Bearers.
60. I submit, further, that there was nothing complicated in my accounting of the figures.
61. There was also nothing deliberate, in the context of which it is presented to this Honourable Court, in such accounting conducted by myself.
62. Lastly, there was also nothing unnecessary in this accounting exercise.
63. What was required of the First Respondent was to have dealt with this accounting exercise either in the adjudication of my membership position, or in response to this application.
64. In neither of these instances did the First Respondent even attempt to entertain the accounting exercise referred to.
NO DIRECT CHALLENGE TO THE "DECISION" BY THE DA
65. In paragraphs 33 and 34 of the First Respondent's Answering Affidavit, it is alleged, in a very round-about fashion that I should have "sought to have the decision (of the DA) set aside under the Court's review powers" and that "it is now trite that a decision stands until it is set aside".
66. This "argument" is not understood.
67. In paragraph 26 of its Answering Affidavit, the First Respondent alleges that "The DA took no decision". This is to be contrasted with that stated in the First Respondents Answering Affidavit, in paragraph 6 where the Deponent states that "On the 20th August 2012 a determination was made by DA's Federal Executive"
68. The refrain throughout the Answering Affidavit of the First Respondent is that the termination of my membership was an "automatic consequence" of clause 3.5.1.9 of the Constitution of the DA.
69. Furthermore, in paragraphs 24 and 25 of its Answering Affidavit, the First Respondent states that it took no "administrative action" which can be reviewed by a Court.
70. Furthermore, clause 3.6.1 of the Constitution of the DA precludes the DA from conducting a disciplinary enquiry into the termination of the membership of any member, if such membership was terminated, for instance, in terms of clause 3.5.1.9 of its Constitution.
71. Accordingly, it leaves me, as is confirmed by the First Respondent, in the very peculiar and unique position that my DA membership had been terminated "automatically", "by default", and, "with no decision taken by anybody".
72. Accordingly, there is no basis for any review proceedings, hence the need for this application.
INTERVENTION BY THE COURT
73. Indeed, in further confirmation of the First Respondent's attitude towards its own Constitution, it alleges in paragraph 36 of its Answering Affidavit that "it is not for this Court to determine for the DA and its many thousands of members how they should regulate their relationship".
74. Legal argument will be addressed at this extremely strange allegation and stated attitude.
75. Furthermore, this "attitude" is fortified with the allegation in paragraph 128 of the First Respondent's Answering Affidavit that:
"It is not ................ for ............. this Court to determine the important policy issues of when membership of the DA ceases, or which transgressions lead to the sensation of membership."
76. Legal argument will also be addressed at this strange allegation.
77. Furthermore, in paragraph 39 the First Respondent alleges that:
"...... this Court cannot and will not, interdict past
actions."
78. I have two comments to make in respect of this allegation:
78.1 Firstly, the First Respondent has all along stated that it had taken "no action" at all. Everything happened "automatically"; and
78.2 The vacancy brought about by the cessation of my DA membership has not yet been filled, therefore the Court can, with respect, interdict the filling of that vacancy pending the final adjudication of this application.
QUASI-EMPLOYMENT RELATIONSHIP
79. The First Respondent attempts, in paragraph 45 of its Answering Affidavit, to pretend to this Honourable Court that the relationship between myself and the First, Second and Third Respondents is not one of "employment".
80. It is stated that:
80.1 Councillors do not earn salaries; and
80.2 Councillors earn a honorarium for their services on the Council; and
80.3 I should not consider a position as a Councillor "as a form of sheltered employment".
81. However, in paragraph 128 of its Founding Affidavit, the First Respondent states that I "was a party to a contract" with the DA, clearly referring to the Constitution of the DA and must also refer to other official DA documentation.
82. If one has regard to Annexure "JS7", annexed to the First Respondent's Answering Affidavit, which is an official DA document, being the official DA Candidate Application Form, page 5 thereof, it will be seen that the following words are used:
82.1 Gross salary of an ordinary Councillor; and
82.2 job description of a party representative; and
82.3 these will constitute the terms and conditions of my employment.
83. It is, accordingly, disingenuous of the First Respondent to now attempt to distance itself from its Councillors as being "salaried employees subject to an employment contract, containing certain terms and conditions of employment as a public representative."
84. Into this "contract of employment", the DA has built in grounds for "automatic dismissal", something which I submit, is foreign to any type of contract of employment, or any other contract which accords with public policy, which is legal and enforceable.
85. Chapter 11 of the Constitution of the First Respondent (Annexure "JS1") make provision for disciplinary committees and disciplinary enquiries.
86. Yet, in paragraph 7 of the First Respondent's Answering Affidavit it states:
"No disciplinary "decision" was taken by the DA or its structures. The cessation of his membership came about as an automatic consequence ....."
THE STRANGE CONCEPT OF "AUTOMATIC DISMISSAL"
87. I need to respond to this bizarre concept introduced by the First Respondent into its Constitution, which I submit, is completely alien to any civilized and democratic country and institution.
88. Full legal argument will be addressed at this aspect, but I need to refer this Honourable Court to the factual allegations contained in the Answering Affidavit of the First Respondent, pertaining to the Constitution of the First Respondent.
89. In paragraph 7 of the First Respondent's Answering Affidavit, reference is twice made to the cessation of DA membership as "an automatic consequence".
90. In paragraph 8 it is referred to, once more.
91. In paragraph 26 thereof, it is stated on behalf of the First Respondent that:
"The DA took no decision"
and
"Brummer lost his membership ......... as an automatic consequence of his failure to fulfill his obligations (under the DA's Constitution) to pay certain amounts." (own emphasis)
92. In paragraph 27 thereof, reference is again made to:
"Brummer's membership came to an automatic end"
93. In paragraph 29 thereof, once again it is stated that:
"Brummer's membership automatically came to an end."
94. In paragraph 32 thereof, it is stated that:
"Mr Brummer's membership ended automatically.
This factual determination did not involve the exercise of a discretion, or a disciplinary decision.
That is simply the end of the matter. The applicaTion as it stands is misconceived."
95. In paragraph 75 thereof, it is stated on behalf of the First Respondent that my:
"...... membership of the DA ceased automatically..."
96. From all of the above, and from all official DA documents before the Court, it is clear that I was never given an opportunity whatsoever to state my side of the case in an attempt to convince the First Respondent that it was unfairly terminating my membership of the DA and was unfairly removing me as a Councillor of the DA.
97. I was only given the opportunity to either:
97.1 To settle the full outstanding amount, or
92.2 make an acceptable payment arrangement for the full balance allegedly outstanding.
98. I was never allowed to debate the correctness of the amount concerned. (See DA letter dated 21 April 2012)
99. Thereafter, on 13 August 2012 I was "granted the opportunity to .... provide .... reasons ..... why your membership did not cease in terms of Section 3.5.1.9 of the Federal Constitution ...".
100. Those reasons (contained in Annexures "C", "D" and "E" to my Founding Affidavit) were not even entertained or considered, due to the bizarre "automatic termination" of my membership of the First Respondent.
THE DA'S CONSTITUTION
101. In paragraph 35 of the First Respondent's Answering Affidavit, it is stated that:
"... the DA's Constitution present an insuperable obstacle to him."
102. In paragraph 36 thereof it is submitted on behalf of the First Respondent that:
"If he did not like this (that Constitution), he could have raised a group of like-minded to change the provision."
103. The DA's Constitution consists of 14 chapters and hundreds of clauses and sub-clauses and sub-sub-clauses, embodied in a 62 page document.
104. The clause in the Constitution in terms of which my membership had been "automatically terminated" is contained in a sub-sub-sub-paragraph of the Constitution, being clause 3.5.1.9 on page 18 thereof.
105. Firstly, I never even knew that such a provision existed.
106. Secondly, upon reading it, I see that it refers to "compulsory public representative contributions".
107. It does not even refer to a "Candidate Fee", the failure of which payment can lead to an automatic termination of one's membership to the party, and one's employment as a Councillor.
108. One would also not have expected a draconian provision such as this in a Constitution of which the preamble, in Chapter 1 refers to phrases such as:
108.1 Democratic Alliance (implying democracy);
108.2 The DA's vision is of a ............ Society ............. in which every person is ......... secure, and equal before the Law;
108.3 The rights enshrined in the Constitution (of the DA) must be defended and promoted in order to protect the people of South Africa from the concentration andabuse of power (own emphasis);
108.4 The vision of the DA is grounded on the defense, promotion and extension of the following principles:
108.4.1 The fundamental rights ......... of every person.
108.4.2 The rejection of unfair discrimination on any grounds.
108.4.3 The supremacy of the South African Constitution and the Rule of Law.
108.4.4 Equality before the Law.
109. Other praiseworthy visions and missions of the DA contained in other official documents are as follows:
109.1 Demonstrate leadership, knowledge and judgment;
109.2 Representatives to maintain the highest standards of ethical behavior;
109.3 To uphold the Constitution and all other laws of the Country.
110. How clause 3.5.1.9 can ever be seen as in accordance with public policy, legal and enforceable, defies all logic.
111. Further legal argument will be directed at this point.
112. The way in which it is phrased precludes a member to ever dispute an amount presented to him/her as due and owing in respect of any "compulsory public representative contribution" (which, by definition, does not include a Candidate Fee, as this term is not expressly included in the aforesaid term, in the Constitution). Further legal argument will be addressed at this aspect, as well.
113. This term in the Constitution of the DA, in my submission, offends one's sense of justice and, I furthermore submit, would offend any reasonable person's sense of justice.
LIP-SERVICE TO FAIRNESS
114. I have alleged, above, that my "automatic termination of membership" involved no exercise of discretion, or disciplinary decision by the DA, as per the Answering Affidavit deposed to on behalf of the First Respondent. (paragraph 32)
115. In the light of the allegations contained in the Answering Affidavit, not even a Court is entitled to investigate the draconian measures of clause 3.5.1.9 of the DA's Constitution.
116. In paragraph 126 thereof, it is alleged that:
"The DA made only a factual determination, in which issues of procedural fairness do not arise." (own emphasis)
117. In paragraph 129 thereof it is alleged that it (a fair process) does not demand an opportunity for mediation or an internal appeal in every case.
118. Yet, contrary to all of this, it is stated in paragraph 89 and 132 thereof that, "in order to be fair to the Applicant, the additional documents were considered" and "The suggestion that Mr Brummer did not enjoy the benefits of a fair process is thus unsustainable".
119. It is clear from the overall gist of the Answering Affidavit that no fair process was required to be followed in the implementation of the draconian provisions of clause 3.5.1.9 of the DA's Consittution.
DISDAINFUL APPROACH IN THE ANSWERING AFFIDAVIT
120. The arrogance with which the Deponent to the First Respondent Answering Affidavit approaches this application, is palpable.
121. Full reliance is placed on a draconian measure contained in the Constitution of the DA, in support of the First Respondent's opposition to this application.
122. In fact, the leadership of the DA, so it seems, subscribe to this draconian measure which is completely in conflict with everything the party stands for.
123. Snide allegations such as the following appear in this Answering Affidavit:
123.1 It is not for the DA to involve itself in some sort of maternal nose-wiping with its Councillors. (paragraph 152)
123.2 He (Brummer) must now rather sheepishly accept .... his failure to read the notice (paragraph 130).
123.3 He must live with the consequences (paragraph 28.4)
123.4 It is .......... not for this Court to determine for the DA ... how they should regulate their relationship (paragraph 36)
123.5 If Mr Brummer wanted the protection afforded to employees then he made a poor career choice (paragraph 45)
123.6 .... the Applicant ..... alone is responsible for his fate (paragraph 103)
123.7 It was thus not for the DA to provide the type of reconciliation now suggested by the Applicant (paragraph 107)
123.8 It is not ...... for ...... this Court to determine the important policy issues ... of the DA ... (paragraph 128).
124. Comprehensive legal argument will be addressed at these aspects as well.
125. This type of remark completely conflicts with my personal vision of what the Democratic Alliance stands for.
126. In this respect I quote from a section contained in Annexure "JS6", which annexure was annexed to the First Respondent's Answering Affidavit, in which I was quoted by "Oudtshoorn Online" to have said that I remain loyal to the DA that:
"Its Vision, its Principles, its Policies. Go and look at their website. You cannot fault it. It is good. It is right. It is ethical. It is moral. It is what South Africa needs if is not to become just another basket case. It is what our children's needs."
127. I still subscribe to that opinion.
128. I am a loyal and a disciplined member of the DA.
129. I have served the party for 12 years.
130. I have indeed secured victory for the party in the BITOU COUNCIL.
131. I did not expect the treatment such as automatic cessation of my membership for a meager amount of money.
ARREARS
132. Annexures "C", "D" and "E" to my Founding Affidavit explained the history of my debate with the First Respondent pertaining to the alleged arrears.
133. To this date, I do not have independent, reliable information as to the origin of the alleged debt, the correctness of the alleged debt, the exact amount of the alleged debt, to whom exactly (whether Provincial or National Authorities) the alleged debt is owed, and the like.
134. It is clear that these questions raised by me and these submissions put forward by me were not even considered by the First Respondent.
135. The First Respondent merely took the narrow view that there was a debt, it was not paid, and in terms of the Constitution, that meant the end of my membership, in spite of the fact that I engaged in communications and negotiations with its official in order to arrive at a satisfactory resolution of the matter.
CONCLUSION
136. In the premises, it is submitted, with respect, that this Honourable Court should make a determination pertaining clause 3.5.1.9 of the Constitution of the DA, either on the date upon which this application is heard, or determine that the application shall be argued at a later stage, fully, and that the Interim Interdict presently in place against the Fourth Respondent, should remain in place until the final determination of this application, alternatively grant further and/or alternative relief.
137. I am advised that my legal representatives might refine the relief sought in the Notice of Motion, either before or at the hearing of the Application.
_________________________
DEPONENT
The deponent has acknowledged that he/she knows and understands the contents of this Affidavit which was signed and sworn to before me at on the 2012. In administering the said oath the requirements of Regulation R2477 dated the 16th November 1984, as amended, have been fulfilled.
_______________________________
COMMISSIONER OF OATHS
Source: http://oudtshoornonline.wordpress.com/
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