“Why should the court be seized with a matter that is about membership of a party?”
Judge Andre le Grange’s question, posed to the DA’s advocate Sean Rosenberg on the second day of court hearings into the vexed status of Cape Town Mayor Patricia de Lille, was echoed by his two colleagues.
More than once, the three-judge bench of the Western Cape High Court expressed frustration with the fact that they were being called upon to resolve a dispute internal to a political party.
“The DA can’t get [De Lille’s removal] right, so now you want us to come and do it for you?” asked Judge le Grange.
Fellow Judge Mark Sher, meanwhile, expressed confusion about what remedy the court could offer in this instance.
What the DA wants is for the court to uphold the determination of the party’s federal executive that De Lille terminated her own DA membership when she told radio host Eusebius McKaiser that she would “walk away” from the party once she had cleared her name.
De Lille’s lawyers have asked the court to declare that the membership clause used by the DA to oust the mayor is invalid.
In addition, advocate Dali Mpofu suggested on Tuesday that the DA should drop the disciplinary charges currently hanging over De Lille.
“They must say: ‘We are willing to drop the charges and let the City [of Cape Town] move on,” Mpofu told the court.
Earlier in the day, De Lille’s lawyer Johan de Waal had continued to make arguments that De Lille was treated in a procedurally unfair manner by the DA.
De Lille’s legal team charges that there were multiple breaches of the DA’s own rules in the manner in which the De Lille membership cessation issue was dealt with.
They say that the federal legal commission panel which considered the matter was “irregularly constituted”, that the wrong person communicated the decision on De Lille’s membership cessation, that no complaint was brought before the federal executive about De Lille’s radio remarks as is required, and that De Lille was given too little time – 24 hours – to respond to the notification of her membership cessation.
The DA’s Rosenberg would later argue in response that these matters were effectively irrelevant, and that the court could not demand “mechanical compliance” with every technical regulation.
He acknowledged that it was possible that the court would find that the DA had erred procedurally – but suggested that this could not impact upon the central fact that De Lille’s party membership had indeed ceased.
A finding that De Lille’s contractual rights had been infringed upon would be accepted, Rosenberg said, but the court could not use this as the basis to demand the reinstatement of the mayor as a party member.
He disputed De Lille’s lawyers’ Monday arguments that her constitutional rights had been violated.
“This is not a limitation of rights,” Rosenberg said.
As much as De Lille had the right to freedom of association, the DA also had the right to “disassociation”.
The right to join a political party, Rosenberg argued, “is not a right to demand membership even if your views and actions are inconsistent” with those of the party.
Rosenberg also suggested that De Lille “mischaracterises” the nature of her right to hold public office.
“Having run on the DA ticket, she cannot claim she is entitled as a matter of right, as an individual, to remain in [the mayoral] position,” he said.
The DA’s lawyer said that De Lille seemed to be labouring under the misapprehension that she could not lose her political office unless there was a good reason to remove her.
“Not so,” Rosenberg told the court. “The only reason necessary is the loss of membership.”
Much of the dispute before the court has come down to the interpretation of the remarks made by De Lille in her interview with 702 radio host McKaiser. Her lawyers have argued that when she said she would “walk away”, she was referring to leaving her mayoral post and not her party membership.
Rosenberg contends, however, that the context of the interview makes it clear that she was referring to leaving the DA altogether.
“It is clear in this context that the relationship has irretrievably broken down,” he said. “Everybody would have been aware that these are parties who wish to part.”
Judge Pearl Mantame put it to Rosenberg that if De Lille had already stated her intention to resign, the DA’s decision to invoke the membership clause to remove her was “premature”.
Rosenberg disagreed, saying that it was clear that De Lille was only intending to resign “when it suits her”.
The advocate reminded the court of the serious nature of the allegations against De Lille, which included “maladministration and nepotism”.
This prompted a further question from Judge Mantame: if these charges were so serious, why would the party not proceed with the disciplinary process against De Lille, rather than using the membership clause to oust her before the resolution of those processes?
Rosenberg responded that the nature of the situation was such that the party needed to act with urgency.
Lawyers for both sides have received a grilling from the judges over the course of the two-day hearing.
In his summary of the matter on Tuesday afternoon, Mpofu played to the judges’ concerns by declaring that “never again” should judges be “used to do the dirty work of a political party [which] is unable to lead their own caucus”.
Judgment in the matter was promised by the end of the month. In the interim, De Lille continues to hold the post of Cape Town Mayor – despite a council sitting last week which stripped her of her executive powers.
The courtroom is not the only forum currently being used by De Lille to fight her reputational battle.
On Twitter, the mayor has launched a campaign in which she posts daily reminders of her achievements and history. The posts also include pointed references to her once warm embrace by DA leaders.
“Did you Know?” reads one post, alongside a photo of De Lille being hugged by DA leader Mmusi Maimane.
It proceeds to quote Maimane’s words of 2016:
“[She is] someone I respect politically and has brought a great contribution to South African politics.” DM
"Sorrow is better than fear. Fear is a journey; a terrible journey. But sorrow is at least an arriving." ~ Alan Paton