De Lille slams DA rules in court

(David Harrison/M&G)

(David Harrison/M&G)

Cape Town Mayor Patricia de Lille has argued that the Democratic Alliance’s rules were unfairly implemented against her, accusing the party’s federal executive of removing her without any discussion before the decision was made.

At the Cape Town high court on Monday, Advocate Johan De Waal represented De Lille before a full bench of judges, which included Judge Andre Le Grange, Judge Mark Sher, and Judge Pearl Mantame.

De Lille has brought an application to the court stating that the cessation of membership clause in the DA’s constitution should be reviewed and set aside. The clause was used to expel her from the party in May.

De Waal argued there were a number of issues in the way the DA removed De Lille which potentially mean the party acted unfairly in sacking her. Among those, he said, was that while the DA’s own rules says it should apply its mind before removing a member, the party had failed to do so when it expelled De Lille.

He referred to the minutes of a federal executive meeting where a decision was taken to adopt a recommendation from the federal legal commission (FLC) that De Lille should be removed as a member of the party. The FLC made that determination after it received a complaint that De Lille had told radio host Eusebius McKaiser she was willing to “walk away” once she had cleared her name. The cessation of membership clause states that if a member makes a public intention to resign then their membership is revoked.

The minutes of the federal executive meeting, dated May 7, say that the “floor was open for discussion, questions and comments”. The minutes do not detail if there was any discussion, but simply say that the deputy chairperson of the federal executive, Thomas Walters, proposed that the FLC determination to sack De Lille be adopted.

“Must we now come to the conclusion that no proper discussion took place?” Judge Andre Le Grange asked De Waal.

“Yes,” De Waal responded.

However, in an earlier interview with the Mail & Guardian, federal executive member Zwakele Mncwango suggested there had been discussion in the meeting because he was able to tell his colleagues that he did not support the decision to remove De Lille and he made them aware of his reasons. What remains unclear is if De Lille’s version of events, which are included in her representations to the party, were discussed.

READ MORE: Meeting minutes reveal federal executive not unanimous on decision to remove De Lille

In court papers, De Lille has argued that the cessation of membership clause should be set aside because it violates her constitutional rights — such as freedom of expression — and it breaches the Promotion of Administrative Justice Act (PAJA).

De Waal expanded on this point in court, telling the judges the DA’s constitution and the clauses it contains should be subject to PAJA and the law of natural justice because the party “exercises public powers”.

“It cannot be purely contractual,” De Waal said.

Le Grange, meanwhile, said that a party has the right to terminate a membership if that person violates its rules. But De Waal countered that, saying in removing De Lille, the party had terminated the contract of the mayor of Cape Town who is a publicly elected representative.

“We are not talking only about private power being exercised,” De Waal said.

He added that in making a statement to resign, De Lille had in no way harmed the party or shown disloyalty. In an attempt to back up his point, De Waal said that DA MP Phumzile Van Damme had made a statement at a caucus meeting that she would resign if the party did not take action to address white privilege.

“Where is the disloyalty in that?” De Waal asked.

The Van Damme example, De Waal explained, showed that the cessation of membership clause was unfairly applied to De Lille because it had not been invoked against Van Damme for making similar utterances.

The court adjourned late on Monday afternoon but is set to resume at 10am on Tuesday when De Waal will wrap up his arguments and the DA will present its defence. 

Ra'eesa Pather

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