DOC-20190117-WA0008.pdf - JUDGMENT IN THE HIGH COURT OF...

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JUDGMENT IN THE HIGH COURT OF SOUTH AFRICA (CAPE OF GOOD HOPE PROVINCIAL DIVISION) CASE NO: 10575/2007 DATE: 16 AUGUST 2007 In the matter between: SALZWEDEL ERNEST MOTOSOKO PHEKO Applicant And THE SPEAKER OF THE NATIONAL ASSEMBLY First Respondent PAN AFRICANIST CONGRESS OF AZANIA Second Respondent JUDGMENT DAVIS, J Introduction [1] On 11 June 2007 a notice was issued to applicant calling upon him to attend a disciplinary enquiry of the National Disciplinary Committee ("NDC") of second respondent concerning, inter alia, an alleged failure to account for funds in the Robert Sobukwe account which was under his control while he had been the president of the second respondent. Applicant requested further particulars regarding the charges on 18 June 2007. Healso objected to the manner in which the NDC was constituted. [2] He did not attend a disciplinary hearing which took place on 20 June 2007. In his absence he was
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JUDGMENT found guilty and a sanction of expulsion was imposed. This decision was confirmed by the National Executive Committee ("NEC") of second respondent on 30 June 2007 and it was communicated to applicant on 2 July 2007. [3] On 6 July 2007, applicant brought proceedings in the Witwatersrand Local Division of the High Court ("WLD") in which he sought, inter alia, to have the decisions of the NDC and the NEC overturned essentially on the basis that the NDC had been improperly constituted because it had been appointed by an NEC which as required by second respondent's constitution, was not properly elected. [4] It appears that, at second respondent's National Congress held in October 2006, some 17 of the 24 members of the NEC had not been elected. At the Congress the delegates, after electing seven office bearers, resolved that the rest of the members of the NEC be selected from a list of 133 candidates by the president. There were also other procedural objections which have been raised by applicant against the decision of the NDC and the subsequent ratification by the NEC. [5] On 3 August 2003, Gildenhuys, J dismissed the application. The learned judge found that the challenge to the manner in which the NDC was constituted had to fail as it was an impermissible collateral challenge to the decision of the NDC. The learned Judge found that no direct challenge had been brought to the manner in which the NEC was constituted and it was accordingly capable of making valid decisions such as, for example, the appointment of the NDC. To cite the judgment of Gildenhuys, J: "The fact is, the National Executive Committee members believed that that Committee was properly constituted and there had been no direct judicial challenge of the constitution of the Committee. The collateral challenge by the applicant in these proceedings should, in my view, not be permitted".
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  • Fall '15
  • WLD, NDC, NEC

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