DA accepts it possibly infringed on De Lille’s rights

The Democratic Alliance has said it will accept a finding that it may have failed to follow due process in the way it terminated Cape Town Mayor Patricia de Lille’s membership, telling the high court it would accept a declaratory order of that nature as long as the court does not set aside her removal.

The party further added that if the court declares De Lille’s “contractual rights were infringed upon” then the mayor could be granted compensation because the party would pay the costs of the case.

Advocate Sean Rosenberg presented the party’s defence in court on Tuesday, setting out the declaratory order the party is willing to accept. De Lille — the applicant in the matter — is seeking to have the DA’s cessation of membership clause reviewed and set aside. The clause was invoked in order to remove her from the party in May after she said she was willing to ‘walk away’ once her name had been cleared.

But the three presiding judges in the matter — Judges Pearl Mantame, Andre Le Grange, and Mark Sher — have grappled with the potential for judicial overreach in the case.

The DA is asking the court to focus narrowly on whether De Lille breached its constitution — where the cessation of membership clause is included — by making a public declaration of her intention to resign.


Usually, the federal legal commission (FLC) and federal executive are tasked with determining if there has been a breach of the party’s constitution. Judge Le Grange expressed his dissatisfaction with the DA using the court to make that finding.

“So you want us to pull the trigger on Ms De Lille? The DA can’t get it right so now you want us to come and do it for you?” Le Grange asked Rosenberg.

READ MORE: DA leaves it to the law to decide De Lille’s fate

In defence of De Lille, Advocate Johan De Waal told the court that the DA’s decision to remove De Lille is moot because the party failed to follow due process when it terminated her membership. But in the DA’s estimation, any irregular process does not undo De Lille’s dismissal.

“Her fate has been sealed,” Rosenberg told the court.

The allegation that the DA failed to follow due process in removing De Lille was made by De Waal in court. According to De Waal, the FLC panel which decided De Lille’s fate was “improperly constituted” because members of that panel were appointed by federal executive chairperson James Selfe along with nine provincial leaders.

De Waal says that according to the DA rules, Selfe and those provincial leaders do not have the authority to appoint members of the FLC panel, as the federal executive is charged with that duty. Hence, De Waal argues, there were people who did not have authority to be involved in the FLC panel selection process.

It was also Selfe who notified the city manager of the vacancy of De Lille’s seat after her removal from the party. However, the rules state that this is the task of the party’s provincial head — in this case Bonginkosi Madikizela — who should have informed the city manager of the vacancy.

READ MORE: What did De Lille really mean when she said she would resign?

Detailing another technicality, De Waal says that DA Free State leader Patricia Kopane never laid a complaint against De Lille for her remarks during the now infamous radio interview. Kopane instead asked Selfe to “advise” her. The DA rules state that a complaint should be laid. Kopane, however, submitted an affidavit where she confirmed that her letter was meant to be received as a complaint.

The DA however, has dismissed the importance of these technicalities. Instead, it emphasised that the court must decide if De Lille breached the party’s constitution by making a public declaration of her intention to resign. If it finds such a declaration was made, then De Lille would remain ousted from the party.

“We can’t come in their [the DA] shoes and make that determination,” Le Grange said. “That determination has already been made,” Rosenberg replied.

“Even though she’s still a member of the DA?” Sher interjected.

Rosenberg denied that an irregular process meant De Lille is still a member of the party if the FLC and federal executive confirmation she made a public intent to resign still stands.

The hanging charges

As De Lille battles to be reinstated in the party the charges which the DA has levelled against her are yet to be dealt with. But Rosenberg brought up the severity of the allegations against her during the court proceedings.

“The applicant faces serious charges of maladministration and nepotism,” he said.

He added that while De Lille claims to want to clear her name, she has made a “wrath of preliminary challenges” that have grinded the two disciplinary hearings the party has instituted against her to a halt.

Judges Mantame and Le Grange pressed Rosenberg on why the DA had not resolved the charges in disciplinary hearing given how serious they are.

“It’s a question of what the party decides is in the broader interests of the citizenry and the party,” Rosenberg said.

But Advocate Dali Mpofu, representing De Lille, had a different version of why the charges were not resolved.

READ MORE: De Lille slams DA rules in court

“They want a situation where the charges must hang over her head indefinitely but at the same time they want to remove her as mayor,” Mpofu said of the DA.

He suggested that the appropriate action the party could take is to at least drop the charges if it insists on her removal.

“They must say we are willing to drop the charges and let the city move on,” he said.

Mpofu has asked the court to make a declaratory order that would declare the cessation of membership clause invalid and “give just and equitable relief”. He has also asked for a “punitive costs order” to be awarded against the DA.

Mpofu said it was not crucial for the court to give reasons on whether the clause breaches the Promotion of Administrative Justice Act or the Constitution of the country, as he and De Waal have argued it does.

“All we need is that actions of the DA in this case are invalid. We simply had to plead everything that was available,” Mpofu said.

Judgement was reserved, but Le Grange said the case would be given preference and judgment would be delivered before the end of the month.

Subscribe to the M&G

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years, and we’ve survived right from day one thanks to the support of readers who value fiercely independent journalism that is beholden to no-one. To help us continue for another 35 future years with the same proud values, please consider taking out a subscription.

Raeesa Pather
Raeesa Pather
Ra’eesa Pather is a Cape Town-based general news and features journalist.

Related stories

Editorial: Desperately seeking an opposition

All the contenders are deeply flawed, losing support, or both

A litmus test for the 2021 election

In this week’s 96 by-elections, the trend was the ANC held its ground and grew, while the DA lost big, with minority parties eating into its voter base

Government announces tailwinds on infrastructure project

Minister of public works and infrastructure Patricia de Lille and President Cyril Ramaphosa call for corruption crackdown in government during talks with investors on infrastructure development project in Midrand

With 79% of votes, Steenhuisen is elected DA leader

It was a landslide victory for John Steenhuisen, who thanked his family and opponent Mbali Ntuli before characteristically tearing into the ANC-led government for its anti-liberal policies, numerous failures, megalomania, and rampant corruption.

‘Battle-tested’ vs ‘kind and fair’ — DA candidates’ last push

John Steenhuisen and Mbali Ntuli both acknowledged the problems faced by the party over the past year, with each of them offering their own leadership vision.

‘Veteran’s stripes’ vs ‘kind and fair’

This weekend the Democratic Alliance will choose between two starkly different visions for its future
Advertising

Subscribers only

Covid-19 surges in the Eastern Cape

With people queuing for services, no water, lax enforcement of mask rules and plenty of partying, the virus is flourishing once again, and a quarter of the growth is in the Eastern Cape

Ace prepares ANC branches for battle

ANC secretary general Ace Magashule is ignoring party policy on corruption-charged officials and taking his battle to branch level, where his ‘slate capture’ strategy is expected to leave Ramaphosa on the ropes

More top stories

Sudan’s government gambles over fuel-subsidy cuts — and people pay...

Economists question the manner in which the transitional government partially cut fuel subsidies

Traditional healers need new spaces

Proper facilities supported by well-researched cultural principles will go a long way to improving the image and perception of the practice of traditional medicine

Limpopo big-game farmer accused of constant harassment

A family’s struggle against alleged intimidation and failure to act by the authorities mirrors the daily challenges farm dwellers face

Did Botswana execute ‘poachers’ ?

The Botswana Defence Force’s anti-poaching unit has long been accused of a ‘shoot to kill’ policy. Over 20 years the unit has killed 30 Namibians and 22 Zimbabweans
Advertising

press releases

Loading latest Press Releases…