Crouwcamp v Civic Independent & others

Civic Independent (Civic) was a political party registered under the Electoral Commission Act 51 of 1996. On 18 September 2011, Civic held a Special National Conference where a new Constitution was adopted and the National Executive Committee (NEC) was confirmed, comprising Crouwcamp as President, September as Deputy President, Bothman as Secretary General, Scheepers as Deputy Secretary, Kuhn as Treasurer, and Stevens and Matthews as additional members. Damons was not elected as an NEC member at this conference. On 2 May 2012, a purported NEC meeting was held attended by Stevens, Bothman, Kuhn, September, Scheepers and Damons. Crouwcamp did not attend. At this meeting, Damons proposed a motion of no confidence in Crouwcamp, which was unanimously adopted, resulting in his removal as President and the establishment of a Disciplinary Committee. A disciplinary hearing was held on 21 June 2012 in Crouwcamp's absence, despite his request for postponement, where he was found guilty and expelled from the party. Civic brought an urgent application to interdict Crouwcamp from acting as President. Crouwcamp opposed and brought a counter-application challenging the legality of the 2 May 2012 meeting and subsequent meetings on the basis that Damons was not a legitimate NEC member and therefore the meetings were not properly constituted.

• Whether a meeting of the National Executive Committee (NEC) is valid when a person who was not elected as an NEC member in terms of the party's constitution participates as a member
• Whether decisions taken at a meeting of the NEC that was not properly constituted in accordance with the party's constitution are valid and binding
• Whether the presence and participation of a 'stranger' (non-member) in an NEC meeting renders the meeting and its decisions invalid
• Whether the subsequent meetings and decisions flowing from an invalidly constituted meeting are also invalid

The appeal was upheld with costs against the third to seventh respondents jointly and severally. The high court order was set aside and substituted with: (i) the application dismissed with costs against the second to seventh applicants jointly and severally; (ii) the counter-application upheld with costs against the third to seventh respondents jointly and severally; and (iii) the decisions reached at the meeting held on 2 May 2012 and all subsequent meetings related to and flowing from it were set aside.

A political party registered under the Electoral Commission Act is governed by its constitution which represents the collective voice of its members. The party's executive committee (NEC) is constrained to exercise only those powers entrusted to them by the constitution, and strictly in terms of the constitution, in accordance with the principle of legality. Any conduct that falls outside the purview of the constitution is ultra vires and invalid. Where a person who has not been elected to the NEC in terms of the party's constitution participates in an NEC meeting as a purported member, that person is a 'stranger' to the NEC and the meeting is not properly constituted. Decisions taken at such an improperly constituted meeting are invalid and of no legal effect. All subsequent meetings and decisions that flow from or are based on an invalid meeting and its decisions are also invalid and subject to being reviewed and set aside.

The court endorsed and applied the reasoning in Gründling v Beyers & others 1967 (2) SA 131 (W) at 152D-E regarding why strangers should not be permitted to participate in meetings of an organization's organs. The court observed that if a stranger is co-opted or permitted to attend and participate (even without voting rights), he could influence the discussion and eventual voting, especially if he has a forceful or domineering character; his mere presence might inhibit freedom of discussion, expression of views and voting; and not being a member himself and representative of the members, accountable to them for his actions, he might not have the organization's interests at heart and might have his own axe to grind. The court noted that what Trollip J warned against in Gründling actually occurred in this case, where Damons not only participated but took the lead in moving the critical motion of no confidence. The court also commented that ordinarily, strangers to an organisation are not allowed to participate in its affairs primarily because they have no privity of interest with the organisation and cannot be held accountable for their actions.

This case is significant in South African law for establishing important principles regarding the internal governance of political parties registered under the Electoral Commission Act. It affirms that political parties are bound by their own constitutions and must strictly comply with constitutional requirements when constituting decision-making bodies and taking decisions. The case reinforces the principle of legality in the context of voluntary associations and political parties, requiring that bodies such as the NEC exercise only those powers entrusted to them by the constitution and strictly in accordance with it. The judgment also applies and extends the ratio from Gründling v Beyers regarding the participation of 'strangers' in meetings, emphasizing that allowing non-members to participate in decision-making meetings can invalidate those meetings and the decisions taken thereat. This case provides important guidance on the consequences of non-compliance with a party's constitutional requirements regarding composition of executive bodies and quorum requirements.