The Democratic Alliance (DA) has asked the Cape Town high court to reach a decision on what Mayor Patricia de Lille’s fate should be following Judge Andre Le Grange questioning whether the court should be put in a position to resolve a political dispute.
Tuesday marked day two of De Lille’s bid to have the DA’s cessation of membership clause set aside and her reinstatement as a member of the party after the clause was invoked to oust her in May. In the month before, De Lille had said in a radio interview she would “walk away” when asked if she would resign.
For a large portion of Tuesday morning, one question seemed to puzzle presiding judges Le Grange and Mark Sher: when exactly did De Lille cease to be a member of the DA?
“Ms De Lille’s membership ceases to exist once there has been a confirmation of the fact that there has been a public intention [to resign],” Advocate Sean Rosenberg, representing the DA, told the judges.
The process according to Rosenberg, begins with the federal legal commission (FLC) investigating if a member has breached the clause by making a public declaration of their intention to resign. If the FLC finds confirmation that the “trigger event” did happen, then they make a determination on whether membership should be revoked. Once the federal executive endorses this determination, membership ceases, Rosenberg said.
A full bench of judges is presiding over the case, with Judge Pearl Mantame joining Sher and Le Grange to hear the case.
After a long day of proceedings with De Lille’s legal defence making their representations on Monday, the DA presented its defence on Tuesday. Le Grange, however, seemed confused by Rosenberg’s claim that De Lille’s membership ceased only after a process had been conducted to confirm De Lille had indeed made the declaration. The judge said that in his understanding of the clause as it is written, membership automatically ceases once the declaration is made and no process is necessary.
The clause, which is in the DA’s constitution, reads: “A member ceases to be a member when he or she…publicly declares his or her intention to resign and/or publicly declares his or her resignation from the party.”
However, Rosenberg pointed out that clause 3.5.3 of the DA constitution does allow for a process to be followed. Clause 3.5.3 states: “The process or processes to be followed in the case of cessation under this section will be determined by the Rules of the Federal Legal Commission”.
After hearing Rosenberg’s arguments, Le Grange presented a hypothetical remedy to the advocate, asking if it would be appropriate. The judge asked if the court found that De Lille had made a declaration of her intention to resign, but the party had not followed due process in removing her, would an appropriate remedy be for the court to order that De Lille and the party come to a solution using the disciplinary hearings the DA had instituted against De Lille.
Rosenberg disagreed, saying that if the court validated the cessation of membership clause then it could not use the disciplinary hearings to resolve the remaining issues as this would be a confusion of two different party rules and processes.
“This is a political issue, should the two parties not come to a resolution themselves. Why should the court be seized in giving an answer?” Le Grange responded.
However, Rosenberg was immovable, saying the court had to reach a solution because De Lille had brought the case before court and it was therefore in the court’s ambit.
“The court has to deal with it,” Rosenberg said.
An “irretrievably broken down” relationship
The court heard on Tuesday that the relationship between De Lille and the DA had soured beyond redemption. In Rosenberg’s estimation, De Lille’s admission to resign was an indication that her relationship with the DA “had broken down”.
Rosenburg further stated that De Lille had rallied against being recalled as mayor because of her own interests rather than those of the party, which is what she is beholden to as a member of the DA.
“The only reason for the applicant fighting the disciplinary battle and recall clause is not to restore the relationship. The only reason to remain is to restore her name,” Rosenberg said.
The cessation of membership clause was about loyalty, Rosenberg said. If a member made a public declaration of their intention to resign then it showed disloyalty, according to the party.
His argument was that De Lille had shown disloyalty by simply attempting to use her DA membership to clear her name and then leave the party once she was satisfied.
The DA has said it believes that De Lille is no longer a member because she made a declaration to resign during theradio interview in April. De Lille, however, has said that her declaration was not an intention to resign from the party.
On Monday, the court also questioned whether a political dispute should be resolved through litigation. De Lille’s legal team said it agrees that it should be resolved politically, but the DA had declined to enter into a mediation process with De Lille.
Tuesday is the last day that the court will hear arguments before the judges decide on their judgement. Rosenberg is set to continue presenting argument for the DA for the remainder of the day before the adjournment.