The Democratic Alliance’s federal executive has admitted in court papers that it adopted findings and recommendations against Cape Town mayor Patricia de Lille — which were made in the Steenhuisen report — without being provided with evidence of wrongdoing.
De Lille has sought to take the Steenhuisen report, which repeated allegations of misconduct against her, under judicial review. She is also asking that the federal executive’s decision to adopt the report be set aside.
The report was compiled after a subcommittee of the federal executive — led by the DA’s John Steenhuisen — investigated accusations of maladministration and nepotism which were levelled against De Lille.
However, the case for the review has come to a pause because De Lille has unleashed another fight against the DA. She is now challenging the party in an interlocutory application for not providing the court with a full record — in terms of the Rule 53 of the Uniform Rules of Court — of how the Steenhuisen subcommittee reached its findings despite a court order instructing the party to do so.
Rule 53 is a tool available to applicants wishing to review decisions before the courts. It requires a decision-maker against whom an application for review is launched, to produce the record of and (in some cases) reasons for the contested decision within 15 days of the application.
In court papers, De Lille’s attorney John Riley accused the DA of keeping the “evidence and process which were used… under wraps so as to ensure that the applicant [De Lille] cannot properly substantiate her review grounds.” Riley said in his affidavit that De Lille requires the full record in order to challenge the substance of the Steenhuisen report.
Broadly, De Lille outlined the record she seeks, which includes: letters of complaint submitted to the Steenhuisen subcommittee, interviews, transcripts and notes from subcommittee members, any evidence that was before the subcommittee, and any other information which informed the Steenhuisen report.
The Cape Town mayor has also requested that the federal executive meeting minutes — where the decision to adopt the report was recorded — is included in the record.
But last week in an answering affidavit, DA federal executive chairperson James Selfe said the documents and evidence used by the Steenhuisen subcommittee were never seen by the federal executive, which then went on to adopt the report.
“FedEx’s decision must stand or fall based on how it conducted itself, and what it in fact considered. FedEx cannot defend its decision based on documents or interviews that were not before it. And the applicant cannot attack its decision based on documents or evidence that it did not consider,” Selfe said.
Selfe added that De Lille’s request for the evidence used by the Steenhuisen subcommittee includes “information which was never provided to FedEx and which it did not consider”.
De Lille and the federal executive — notably deputy chairperson Natasha Mazzone — have been locked in a stand-off over an SMS the Steenhuisen subcommittee alleges De Lille sent to influence the appointment of a Cape Town city manager in 2016.
De Lille has asked the party to provide the SMS as proof that the allegation is real, while the party has stated it is obliged to protect confidential informants from the DA caucus and the City of Cape Town, which testified to the Steenhuisen subcommittee.
But Selfe’s admission in court papers may now reveal that one of the highest structures in the party itself was not privy to some of the information, evidence and documents that the Steenhuisen subcommittee said informed its report.
Selfe said that the party is also bound to keep these records confidential because witnesses who came before the Steenhuisen subcommittee were guaranteed confidentiality, enabling them to testify “without fear of reprisal from either the applicant’s faction or the [JP] Smith faction”.
Riley said in his affidavit that De Lille is specifically asking that a letter from Cape Town mayoral member for safety and security JP Smith be included in the record. It is seemingly this letter which spurred the Steenhuisen investigation. She also wants the SMS to form part of the record, and any material which informed allegations of nepotism in Limia Essop’s appointment to the board of the Cape Town Stadium. Essop is alleged to be the daughter of a close friend of De Lille.
In court papers, Selfe admitted however that the party had yet to make a guilty finding on any of these accusations.
“It is important to stress that the applicant has not been found guilty of any disciplinary offence. She has been suspended and asked to resign from her position as mayor because of the serious risk that the mere existence of potential wrongdoing has for the DA, not because she has finally been convicted,” he said.
Selfe said the party is willing to allow De Lille’s legal team to see the record in confidence or it will confidentially submit the record to court because it cannot be publicly disclosed because it will affect the DA’s investigations in future. Selfe further stated that this could establish a precedent where all internal probes — of any nature in South Africa — would have to be made public at the expense of whistleblowers.
The court case was postponed last week after the DA filed its papers, but it is set to be heard in November.