The DA’s Mpho Phalatse has been reinstated as mayor of Joburg, the city of six million people who are the engine of the economy. ANC mayor Dada Morero stepped down after just 25 days in office. 

“The court has set aside the election of the meeting of the 30 September  [the council meeting which declared no confidence in his predecessor]. Therefore Phalatse can re-occupy her position,” he said in a WhatsApp message to Daily Maverick. 

See Daily Maverick’s earlier report here:

High court declares Joburg mayor Mpho Phalatse’s removal unconstitutional and invalid

The Gauteng high court has ruled for former Joburg mayor Mpho Phalatse; it has declared unconstitutional and invalid the motion of no confidence which pushed her out. Judge Raylene Keightley agreed with Phalatse that the case was urgent and reinstated her. Johannesburg mayor Dada Morero’s election as mayor by the council has also been declared unlawful, unconstitutional and invalid by the Court as fruit of a poisoned tree. 

Read in Daily Maverick: “A dramatic Friday as City of Joburg elects Dada Morero as mayor after Mpho Phalatse gets the chop” 

Consequently, all decisions taken by Morero have been declared unlawful, unconstitutional and invalid and are reviewed and set aside, said Judge Keightley.  

This order has been suspended for 11 days so that the city manager can apply for specific parts of it to be appealed, presumably those that impact the running of the city which is already on its knees. 

“Stripped of the drama of plots, subterfuge and counter-subterfuge, this is precisely what is before me in this matter: essentially, the simple question is whether the decisions and conduct of the role-players in the motion of no-confidence procedure fell within the scope of their lawful powers. If so, the review must fail, regardless of the political affiliations of those who backed, or opposed the motion. Similarly, if not, the impugned decisions and conduct must be reviewed, and a just and equitable remedy granted by this court. Ultimately, then, the issues before me are constitutional, rather than political in nature, albeit that they arise, and must be considered, in a political context,” said Keightley as she started her judgment that castigated the soap opera the coalition government has become

Plots true or false 

The judge began with a quote from poet John Dryden on politics and plots. 

“Plots, true or false are

necessary things, 

To raise up commonwealths

and ruin kings”

The judge said “…these lines might as easily be applied to describe the power struggles that have come to define our modern era of local, coalition government.” Phalatse, who headed a multi-party coalition government until being ousted in a shift of power in the city council, was the executive mayor of a minority coalition which came apart in mutual recrimination.  The ANC, which holds the highest number of council seats but is not sufficient to form a government, allied with the EFF, the Patriotic Alliance and Cope’s single-seat councillor Colleen Makhubele, to topple the city’s coalition government.  

Keightley found the meeting to decide on the motion of no confidence against Phalatse unconstitutional and invalid. Phalatse argued in court that she had been “unlawfully deposed” and the judge extended the metaphor of the poem to suggest it was a “dethroning” by the Speaker who came in for a judicial tongue-lashing in the judgment. 

Keightley said she was aware of the dangers of the politicisation of the judiciary and quoted Judge Dennis Davis’s warnings about the trend to fight political battles in court. This was not one of those times, she found. 

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“It is important to appreciate that (Judge) Davis’s comments were directed at political disputes that lie beyond the scope of adjudication by the courts. It is not uncommon for litigation to come before the courts in matters that, while they may involve politically characterised disputes, nonetheless fall squarely within the scope of a court’s adjudicative powers.”  

While Phalatse had a previous urgent application thrown out of court, this time she succeeded in proving urgency. 

Newly elected speaker of the Johannesburg City Council Colleen Makhubele. (Photo: Gallo Images / Luba Lesolle)

She argued that a council meeting on 29 September to set down the motion of no confidence and called by Makhubele — a Programming Committee (PC) meeting — had so many shortcomings to be unlawful and even unconstitutional. Phalatse was notified of the no-confidence meeting at 18h05 the night before; the meeting was not quorate and only six councillors were present when the decision was taken. 

“The PC meeting on 29 September (2022) was not quorate. It does not matter that there may have been machinations on the part of opposing coalition parties to break the quorum of that meeting; politics are politics and the law is the law. If there was no quorum, the motion (of no confidence) was not lawfully on the agenda,” said Keightley. 

The judge quoted other Constitution Court and Supreme Court of Appeals judgments which had also dealt with proceedings at other councils. 

“Although the Constitutional Court and the SCA were concerned with cases where no prior notice was given, the same principles must apply where notice is given but the question is whether it was reasonable notice. 

To meet the Constitutional objectives the notice period chosen by the Speaker must be such as to afford affected members an opportunity not only to be aware of what is being tabled but to provide them with the opportunity to engage meaningfully in the forthcoming debate…

“Given the extreme haste with which the Speaker acted in calling and setting the date for the meeting, as well as the absence of any real justification for the speed with which she acted, it is difficult to avoid the conclusion that she acted for an ulterior purpose. Having taken over as Speaker from the recently removed DA Speaker (Vasco da Gama) and allegiances within the coalition having shifted, it is reasonable to infer that the Speaker’s underlying objective was to cement her coalition allies’ advantage by proceeding with undue haste to get the motion of no confidence before the Council.

“It may all be politics, but where politicians, like the Speaker, assume constitutional and statutory obligations, they must play their politics within the limits of those obligations. Under (Council) Rule 18(4) the Speaker is obliged to protect freedom of speech and debate within the Council.  (Council) Rule 18 (6) requires that she must discharge her obligations with integrity and in an impartial way. Absence of reasonable notice of a motion of no confidence debate fundamentally conflicts with these obligations. It signals that she was motivated by an ulterior purpose,” said the judge.  

“For these reasons, I find that the Speaker was not lawfully permitted to treat DA councillors as if they had no right to participate in the Council meeting because they had refused to sign the register. This means that she acted unlawfully, and contrary to the prescripts of the Constitution and the Rules in refusing to permit them to speak; in refusing to consider their request for a caucus break; and for refusing to permit them to object to or to vote against the motion of no confidence.

“The conduct of the Speaker was antithetical to these obligations.  She shut down, rather than facilitated free speech and debate.” 

The Council’s legal team acting for Makhubele, Morero and the city manager said a substantially democratic outcome should not be set aside because of illegalities in the path leading up to it. The judge was having none of it. 

“It would be a sad day for our constitutional principle of legality if accusations of subterfuge or other political shenanigans, which were never reviewed in court, were to be recognised as justifying a court’s acceptance of the validity of clearly established unlawful and unconstitutional decisions by those exercising political power.”

The judge did not make a personal costs order against the Speaker but awarded costs to Phalatse to be paid by the Council. 

“…although constitutional rights are implicated in the matter, and although the Speaker can be said to have disregarded their import in the manner in which she exercised her duties, the parties are all politicians engaged in political battles. They understand the cut and thrust of litigation when the political skirmish becomes litigious….In this case, those skirmishes preceded the court application and no doubt more skirmishes and battles will follow. Under the skin, it is a fight for power between different political parties.”  

The IEC presided over the election of Morero in September and declared his election free and fair. Speaker Colleen Makhubele is a single-seat representative of Cope which tried to oust her after she turned coat on the city’s multi-party government and sided with the ANC, which in turn gifted her the coveted position of council Speaker. 

The ANC was supported by EFF in the motion of no-confidence and when the Patriotic Alliance voted for the motion, power changed hands in the city. This judgment has changed the landscape again.  At the weekend, the Sunday Times revealed that Phalatse had wanted to offer the EFF a council committee in return for its support but that party federal boss Helen Zille put the kibosh on the idea. 

What happens now? Morero has appointed members of the mayoral committee and it must now be disbanded. The city is suffering from intermittent water supply and regular power cuts in addition to Eskom’s rolling blackouts.  DM