Opinionista Pierre De Vos 28 June 2018

DA failure in High Court comes down to illegality

This week the Western Cape High Court found that the Democratic Alliance (DA) did not adhere to its own constitution and rules when it purportedly terminated Patricia de Lille’s membership of the party in a desperate attempt to oust her as the DA Mayor of Cape Town. The judgment has far-reaching consequences for the DA as all decisions taken by its Federal Legal Commission (FLC) (as currently constituted) may now be tainted by illegality.

If nothing else, the long-running and bumbling attempts by the DA to get rid of Cape Town Mayor Patricia de Lille, reminds us that the ANC (African National Congress) really avoided potentially serious damage to itself when former presidents Thabo Mbeki and Jacob Zuma, and former Premier Supra Mahumapelo all eventually agreed to resign when instructed to do so by the party.

While a fight between a political party and an individual member who serves as president, premier or mayor will inevitably end in the individual losing their position, the De Lille sage shows that where a party is divided and a president, premier or mayor decides to cling to power, things can get really messy for the party. In the De Lille case, the DA made things much worse for itself by trying to take short cuts to get rid of De Lille.

In a united political party, the party will have little difficulty in getting rid of its president, premier or mayor. The individual will be asked to resign. If he or she refuses to do so, the party’s members in the national or provincial legislature or city council will then pass a vote of no confidence in the individual. End of story.

The DA had tried this in the De Lille case, but many of its own city councillors failed to vote in favour of the motion of no confidence in the mayor. This failure was quite extraordinary. The failure was (ironically) facilitated by the Constitutional Court judgment in United Democratic Movement v Speaker of the National Assembly and Others in which the court ruled that (in the context of a vote of no confidence against then president Jacob Zuma), the speaker may be required in certain circumstances to order that a vote of no confidence must occur by secret ballot.

The DA councillors who did not support the vote against De Lille were protected from their party’s wrath because they were allowed to vote by secret ballot and the DA promised the court that it would in any event not take action against them. If the vote was not done by secret ballot, few if any of the DA councillors would have dared not to vote in favour of the vote of no confidence motion.

It is because of this internal factional division within the DA that the party invoked clause 3.5.1.2 of its constitution to get rid of De Lille. This section provides that “a member ceases to be a member of the party when he or she publicly declares his or her intention to resign and/or publicly declares his or her resignation from the party”.

De Lille had seemingly declared her intention to resign from the DA in a radio interview, so the party invoked this clause to terminate her membership. This it did because in terms of the Local Government: Municipal Structures Act a mayor who stops being a member of the political party in terms of which he or she was elected automatically lose her position as executive mayor.

In its judgment in the case of De Lille v Democratic Alliance and Others the High Court decided to skirt many of the constitutional issues raised by De Lille, including the issue of whether the clause relied on by the DA was constitutionally valid or not. Instead, it resolved the case by finding that the party had not followed its own constitution and rules when it attempted to get rid of De Lille, relying on the principle of legality.

In 2012 the Constitutional Court first held in Ramakatsa and Others v Magashule and Others that “our Constitution gives every member of every political party the right to exact compliance with the constitution of a political party by the leadership of that party”. The High Court held that the DA failed to comply with its own constitution in two important ways and this invalidated its attempt to get rid of De Lille.

The High Court held that in terms of the DA constitution the cessation of membership of the party in terms of the party’s rules does not occur automatically. Before a public declaration of the intention to resign has legal effect, the rules of the party require that there be a determination of the cessation by a Federal Legal Commission (FLC) panel, which is then confirmed by Federal Executive of the Party. As the High Court explained:

In essence the (FLC) panel functions almost like a tribunal or court would – it is required to evaluate the contents of the member’s public declaration and her response thereto and needs to be satisfied that 1) the declaration constitutes the expression of an intention to resign from the party, as envisaged by the cessation clause and 2) despite this the member has failed to provide clear and unequivocal reasons why his/her membership did not cease. Thereafter, FedEx is required to confirm the determination.”

The first problem for the DA (and one that may have far-reaching consequences for the party) was that, according to the judgment, the FLC who had to consider the matter was not properly constituted in terms of the party’s constitution. It could therefore not have taken legally valid decisions. The DA constitution provides for a complicated mechanism through which the FLC is constituted. (On my reading, these provisions are aimed at ensuring that party leaders in the FedEx retain tight control of the FLC, while giving the appearance that the FLC is “objective” and once removed from the FedEx.) But as the court held:

Not only was the initial FLC ‘selection panel’ not properly constituted, but the entire FLC itself appears also not to have been properly constituted, in that the 11 members of the ‘selection panel’ were not considered to be part of it, and never served on it. In our view this must mean that the FLC panel which was appointed to make a determination in respect of the alleged cessation of De Lille’s membership, was also improperly constituted, and this much too was in effect conceded by the DA’s counsel, when pressed upon the point.”

This means the FLC – the body that was tasked with acting like a tribunal to determine whether De Lille’s membership of the DA had ceased – was not properly constituted in terms of the party’s constitution and rules. This means it could not have made a valid determination that De Lille’s membership has ceased.

If this judgment stands, it would mean that all decisions involving the improperly constituted FLC would now become invalid. I have no idea how many other decisions involving the currently constituted FLC had been taken, but it must be clear that all these decisions will now be of no force and effect – unless the judgment is overruled on appeal. This will have potentially major consequences for the DA.

But there was a second problem with the manner in which the DA handled the De Lille matter. Clause 10.5.1 of the DA constitution provides as follows:

The Rules of Procedure prescribed by the Federal Legal Commission must apply to all proceedings of a panel: Provided that the rules of natural justice must at all times be adhered to. In particular a panel must not make any adverse finding against any person unless: 10.5.1.1 the person has been sufficiently informed of every allegation against him or her and has been given the opportunity to rebut the allegations; and 10.5.1.2 he or she has been given the opportunity to submit evidence of mitigating factors.”

According to the High Court this means that before making an adverse finding against De Lille, the party was required to give her an opportunity to submit evidence in mitigation, which it did not do. Because this provision is couched in extremely broad terms the court held that it also applied to the present case in which the FLC had to decide on whether De Lile’s membership of the DA had come to an end.

Although such factors might not necessarily have any bearing on whether or not a member’s declaration constituted the expression of an intention to resign within the meaning of the cessation clause and would thus not be relevant to any adverse finding which might be made by a panel in this regard, they certainly would be helpful to the further process of confirmation by FedEx, which involves the exercise of a discretion on its part. It could thus rightly be said that without such mitigating factors, if any, FedEx would not have been able to properly exercise its discretion as to whether or not to confirm the cessation of membership. In this regard there might well be instances where, because of the weight of the mitigating factors which are submitted, FedEx is of the view that it should not confirm the cessation.”

The party’s failure to comply with the provisions of clause 10.5.1.2 of its own constitution therefore amounted to a further, material, irregularity which nullified the DA’s decision on De Lille.

In the end the DA will get rid of De Lille. Every party who fights with one of its elected representatives will at some point prevail. By far the most desirable option from the DA point of view would be for the party caucus in the city council to support a vote of no confidence in De Lille.

But whether the DA could muster the votes in such a vote remains far from clear. DM

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