Shunmugam and Others v National Democratic Convention

The first to eighteenth appellants were municipal councillors and members of the National Democratic Convention (NADECO). Shortly before the September 2007 municipal floor-crossing window under Schedule 6B of the Constitution, NADECO purported to expel them from party membership, which would have caused them to lose their council seats and prevented floor crossing. The appellants challenged their expulsions internally and through urgent High Court litigation. Interim court orders were made preserving the position pending determination of the lawfulness of the expulsions. During this period, the appellants crossed the floor to other political parties, and the Electoral Commission recognised the defections. NADECO then sought declaratory relief that the appellants had ceased to be councillors before the floor-crossing window and that the Electoral Commission’s recognition was invalid. The High Court upheld NADECO’s case. On appeal, NADECO conceded that the expulsions had been unlawful but argued that, until set aside, they were effective and prevented floor crossing.

The appeal in case 6883/07 was dismissed. The appeal in case 7680/07 succeeded. The High Court order was set aside and replaced with an order dismissing NADECO’s application with costs and upholding the counter-application with costs. NADECO was ordered to pay the appellants’ costs of appeal, including the costs of two counsel where employed.

The case clarifies the effect of unlawful expulsions of councillors in the context of constitutional floor-crossing provisions. It confirms that invalid expulsions do not deprive councillors of party membership or their constitutional entitlement to cross the floor, and limits the application of the Oudekraal principle where legality is directly challenged. The judgment reinforces the primacy of the principle of legality and constitutional rights in electoral and party-political disputes.