The Democratic Alliance (DA) has launched its fight back against the Western Cape high court judgment which effectively reinstated Cape Town mayor Patricia de Lille as a DA member amid fears that its disciplinary decisions, which reach back seven years, may now be overturned.
In June, a full bench of the Western Cape high court found the party had flouted its own rules when it sacked De Lille, and set aside the party’s decision to terminate her membership. The judges were Andre le Grange, Mark Sher, and Pearl Mantame.
Le Grange, reading a summary of the unanimous judgement, said that the DA had improperly established the panel of its federal legal commission (FLC) members, which determined that De Lille should no longer be a member of the party.
But the DA has now filed an application for leave to appeal, which could see its battle with the Cape Town mayor being fought at the Supreme Court of Appeal (SCA) in Bloemfontein if the application succeeds.
In its application, filed at the Western Cape high court on Tuesday, the DA said that the judges were mistaken.
“The learned judges erred in not considering whether, even if the DA did not comply with clause 11.1.1 in 2015, that an alternative remedy other than invalidity could follow,” the party said in court papers.
“Non-compliance does not automatically result in invalidity.”
The FLC panel that determined De Lille’s fate was established in 2015. According to meeting minutes of the federal executive in June 2015, it was federal executive chair James Selfe and the party’s nine provincial leaders, including De Lille, who made recommendations to the federal council as to who the 20 members of the FLC panel should be.
The court found that, according to the DA rules, Selfe and the provincial leaders were not empowered to recommend FLC members. Instead, the federal executive in its entirety should have selected 10 members, who would then, together with the FLC chairperson, recommend an additional 10 members for the FLC.
The party now fears that every disciplinary decision that the FLC has taken since 2011 could be overturned or come under scrutiny. According to the DA, its 2011 FLC selection panel was established in the same manner as the 2015 panel.
“The judgement in this case impacts not only on the applicant’s (De Lille) disciplinary processes, but also on… all disciplinary processes conducted by the FLC since 2011 when the FLC was first appointed in this manner by the FedEx and federal council,” the DA’s court papers read.
De Lille’s alleged participation in flouting the rules
When the DA established its 2015 FLC panel, De Lille, who was then the leader of the Western Cape DA, was among the nine provincial leaders who recommended who should be in the FLC, the party said in its court papers.
“The establishment of the FLC in 2015 — in which the applicant participated — did not cause the applicant any prejudice. It was, at worst, an inadvertent error that had been normalised over three years through the active conduct of both the DA and the applicant,” the DA said in its court papers.
The party held that the high court judges who reinstated De Lille should have made an alternative order instead of setting aside her membership cessation, because she faced no prejudice by the panel who determined her fate.
“A member can only rely on non-compliance with a party constitution if she can prove that the non-compliance caused the member prejudice,” the court papers read.
De Lille, meanwhile, has yet to file responding papers and could not be reached for comment at the time of publishing.
The Cape Town mayor is also facing yet another motion of no confidence in the City of Cape Town, her third in less than a year. The motion was tabled by a member of the DA caucus as the party remains split in the city that has, in recent years, been considered its stronghold.
It is yet to be determined when the Western Cape high court will hear the DA’s application for leave to appeal.