Contest: The DA announced federal chairperson Zille as its mayoral candidate in Johannesburg. Photo: Delwyn Verasamy/M&G
The Democratic Alliance is facing a legal battle after three of its members from the Western Cape filed a court application challenging the legality of the party’s cessation clause, which saw their membership terminated.
In court papers filed this month, three councillors from the province’s Swellendam local municipality have argued that the party’s federal council chair Helen Zille had no legal basis to terminate their membership.
The applicants – former deputy mayor Abraham Pokwas, former speaker Bongani Sonqwenqwe, and councillor Gcobisa Mangcu-Qotyiwe – were kicked out of the party and their council positions after the DA found that they had voted against a decision about a vacancy for a manager for corporate and legal services.
The councillors were accused of going against the party caucus, which had decided against voting to advertise the post.
In his founding affidavit, Pokwas said that the party did not provide them an opportunity to make their representation in respect to the charges, adding that this constituted a material breach of the fundamental principle of natural justice and demonstrated abuse of the party’s cessation clause.
Pokwas defended the decision to vote against the party decision, saying that the initial decision was to vote to advertise the vacancy, but that at the 11th hour mayor Francois du Rand called a select few members of the caucus to reverse that decision.
They claim that with Zille’s support, Du Rand managed to get majority support for his position.
“The meeting at which the decision was taken was invalidly convened by the chairperson of FedEx (DA federal executive) Zille who had no authority to do so,” the affidavit reads.
The trio alluded to Zille interfering in the matter and misrepresenting the sequence of events that led to termination of their membership. The three former councillors go on to argue that Zille had demonstrated bias and a potential to abuse the party’s cessation clause.
“The aforesaid events took place against the background of increasing tensions and a breakdown of trust between members of the DA caucus, which had unfortunately split along racial lines.”
Pokwas said that senior party leaders including Zille and federal chairperson Ivan Meyer had undertaken to do a risk assessment on the party caucus and the municipality.
In the relief sought, the three former DA members argue that the party’s cessation clause is inconsistent with section 33 of the Constitution as well as the common law principle of natural justice.
“Secondly even assuming the cessation clause can pass constitutional muster, the applicants have demonstrated at bare minimum, a strong prima facie case that the applicants conduct did not trigger the cessation clause as the relevant caucus meeting was improperly convened thereby invalidating any purported decision taken during this meeting.”
The trio contend that the longer they stay out of office, the less likely it is that the court will order their reinstatement.
They argue that they will suffer personal prejudice should the court fail to grant interim relief that includes their reinstatement as councillors and the reversal of their termination from the party.
Former Western Cape speaker Masizole Mnqasela, who has also taken his fight against the DA to the courts, said that many in the party believe that some individuals within the DA have weaponised the cessation clause to get rid of those who hold “differing political ideas”.
In December he launched an urgent interdict to stop the DA from filling his position, while challenging the cessation clause. The application to stop the filling of his position was dismissed with costs by the Western Cape High Court that same month. His case challenging the cessation is expected to be heard in March.
Mnqasela said that there was an agenda against public representatives who do not sing to the tune of a certain faction within the party.
“Many public representatives are now fearful of what the future holds for them within the party and saying if this can happen to [someone like me] who has been with the party for more than two decades, it can happen to any of us. Also, it’s unfair to back-pedal, totally out of the blue, and abruptly terminate someone’s membership when you do not get your way in a disciplinary hearing. The very same disciplinary hearing that you, yourself, initiated,” Mnqasela said in a statement.
Mnqasela’s membership was terminated after the party charged him and found him guilty of making disparaging remarks about party leaders.
The former speaker, who has also accused Zille of being at the heart of his termination, was charged with misconduct after whistle-blowers accused him of fraud and corruption related to travel, entertainment and allowance claims. The party also reported him to the Hawks. The matter was never concluded.
“When the party served me with the expulsion letter on 28 November 2022, as a disciplined and fervent servant of my party and our people, I was sitting before a DA Federal Legal Commission (FLC) panel in a disciplinary hearing. I was there to answer to the many frivolous and damaging allegations levelled against me by the very same person who decides to abandon the process. I never had the opportunity to answer and defend myself in the disciplinary hearing before the FLC panel, because it was ended by the termination of my DA membership,” he said in a statement.
He added that he had waited for the whistleblower to come back to testify, but she refused to do so. “This is despite the FLC Chairperson Glynnis Breytenbach begging her after she stormed out on a previous Friday during cross-examination by my legal team,” he said.
“My legal team were asking good questions, very serious questions, but she couldn’t answer them and decided to run away and told the FLC panel that she is done with the matter and that she is not coming back. Imagine, my name has been tarnished and my dignity damaged by the very frivolous allegations she made against me. There is a lot more before the court in my filed affidavit under oath. Imagine being expelled after such developments, from a political party that you served for 20 years. It is very painful, unjust and unfair,” he added.
Responding to questions, Zille said that the the court will listen to the recording which confirms there was no bias whatsoever in the decision taken by the party.
“I did not terminate anyone’s membership. Nor did the DA. They cessated themselves. They understand these clauses in our constitution,” she said.
Zille added that she had followed the rules to the letter and informed the provincial leader of every step leading up to the cessation.
She said that the Swellendam caucus was not split on racial lines, adding that the party had added some excellent replacement councillors to the diversity mix and there was a cordial constructive relationships in the caucus team.
DA national spokesperson Solly Malasti said the DA filed its opposition to the application last week. He said the party’s cessation clause was drafted with legal advice.
“We believe it passes constitutional muster,” he said.
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