Shunmugam and Others v National Democratic Convention

The first to eighteenth appellants were municipal councillors and members of the respondent political party (NADECO). During August 2007, shortly before a floor crossing window period in September 2007, NADECO purportedly expelled these councillors from party membership. The appellants challenged their expulsions and launched an urgent application (case 6883/07) seeking to be declared unlawfully expelled pending internal appeals. On 24 August 2007, Madondo J issued an ex parte rule nisi. On 31 August 2007, Msimang J issued a consent order which discharged the rule nisi and provided that pending final determination, the appellants would 'remain suspended as members' of NADECO and that NADECO would not replace them as councillors. Between 31 August and 12 September 2007, the appellants crossed the floor to other political parties, including the IFP. The Electoral Commission recognized these defections. NADECO then launched case 7680/07 seeking to declare the appellants had ceased to be councillors and to set aside the Electoral Commission's decision. The eleventh, fifteenth and sixteenth appellants (who joined the IFP) counter-applied for declarations that their expulsions were unlawful and that they had been NADECO members on 31 August 2007.

• Whether the appellants had been lawfully expelled from NADECO before the floor crossing window opened
• Whether the consent order of 31 August 2007 deprived the appellants of party membership or prohibited them from crossing the floor
• Whether an invalid administrative act (the purported expulsion) remained effective until set aside, applying Oudekraal principles
• Whether the appellants were entitled to cross the floor during the September 2007 floor crossing window
• Whether declaratory relief in the counter application remained appropriate

In case 6883/07, the appeal was dismissed. In case 7680/07, the appeal succeeded. The high court's order was set aside and replaced with: (1) The application is dismissed with costs; (2) The counter application is upheld with costs. NADECO was ordered to pay the appellants' costs of the appeal, including costs of two counsel where employed.

Where a political party purports to expel municipal councillors but the expulsion is unlawful, the councillors remain members of the party for purposes of Schedule 6B of the Constitution and are entitled to cross the floor during prescribed floor crossing window periods. The principle in Oudekraal Estates (that invalid administrative acts remain effective until set aside) does not apply to direct challenges to the validity of administrative decisions but only to cases where the validity of a subsequent act depends on an initial act. Where a court order is ambiguous but was made to preserve parties' rights pending determination of a dispute, and where such order would deprive a party of constitutional rights if interpreted in a particular way, it cannot be so interpreted. A councillor's entitlement to cross the floor depends on their substantive membership of a political party at the commencement of the floor crossing window, not on the formal setting aside of an invalid expulsion.

The court noted that the issue of whether a court has the power to order a councillor not to cross the floor, even with the councillor's consent, was raised briefly but found it unnecessary to decide this matter. The court described it as 'a matter of interest and one which may be the subject of substantial constitutional debate.' The court also observed that floor crossing is 'a matter of some controversy and is about to be abolished.' The court commented that the application in case 6883/07 'was probably ill conceived and should have been abandoned once the appellants crossed the floor' and 'should also not have been appealed against.' The provision in the consent order referring to the appellants remaining 'suspended as members' was described as 'absurd' given that suspension had never been alleged by either party.

This case clarifies important principles regarding floor crossing under Schedule 6B of the Constitution. It establishes that unlawful expulsions from political parties do not deprive municipal councillors of their right to cross the floor during prescribed window periods. The judgment limits the application of the Oudekraal principle (that invalid administrative acts remain effective until set aside) to cases involving subsequent dependent acts, and confirms it does not apply to direct challenges to the validity of administrative decisions. The case reinforces the constitutional protection of floor crossing rights and the prohibition on parties interfering with councillors' membership during floor crossing periods. It demonstrates the courts' commitment to the principle of legality in determining membership status. The decision is particularly significant in the context of municipal governance and the protection of constitutional rights in electoral processes, even though floor crossing was subsequently abolished.