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 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.
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.
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 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.
“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 (PAJA) 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.