Last week a full bench of the Western Cape High Court declared the decision by the DA to withdraw Mayor Patricia de Lille’s DA membership as ultra vires, illegal and invalid. They found her removal from the party to be illegal because the DA had contravened their own constitution on two grounds, ie:
The DA failed to correctly constitute their Federal Legal Commission (FLC); and
The DA failed to give De Lille an adequate opportunity to respond to the allegations; in particular she was denied an opportunity to provide mitigating factors, which is a requirement under their own constitution.
The decision to oust De Lille is but the latest in a litany of embarrassing body blows and bloody noses for the DA. Historically, the DA has been ruthlessly efficient and adept at using lawfare as an effective political weapon, so what went wrong?
The root cause was not mere procedural and legal incompetence by the DA’s lawfare strategists. Rather, the case against De Lille and the manner in which the saga has been handled exposes a deeper malaise settling into the DNA of the DA. The growing body of evidence that has emerged over the past few months indicates an incrementally increasing pattern of dictatorial, illiberal, illegal and anti-democratic tendencies.
It has become a dangerously new norm in the DA whenever it becomes desperate: that the end justifies the means. To quote the ancient Greek physician Hippocrates: “Extremis malis extrema remedia, loosely translated as – For extreme diseases, extreme methods of cure… desperate times call for desperate measures.”
In the DA’s case even if it means disregarding the rule of law.
An example is the disturbing response to the judgment by the DA’s recently appointed Deputy Federal Chair Natasha Mazzone. While the DA is well within its rights to appeal the judgment, Mazzone’s response that De Lille’s victory was based on a procedural technicality indicates her ignorance and disrespect for our courts. It is therefore not surprising that her own election as second Deputy Federal Chair is also currently being legally challenged by another DA member on similar grounds, ie violation of the rules and procedures as set out in the DA’s constitution.
Given Mazzone’s relative inexperience, one hopes that her response was no more than knee-jerk grand-standing and face-saving bravado in the aftermath of another embarrassing battle. Anything else should make all social democrats, liberals and law-abiding citizens very concerned.
The mayor didn’t win her case because of a technicality. Our courts declared the actions of the DA illegal because it violated both the letter of the law and spirit of two of the most fundamental principles of administrative law and natural justice: the audi alteram partem rule, meaning the other side must be heard and the nemu iudex in sua causa rule, which loosely translated means that “in law the process is as important as the substance’’.
Although many are surprised by the DA’s tendencies of late, we shouldn’t be. Since the onset of their battle with De Lille, the DA has systematically disregarded the audi alteram partem principle. A deeper interrogation indicates that the essence of all De Lille’s legal woes with the DA is premised on this rule.
The DA has accused De Lille of among others, very serious transgressions including corruption and maladministration. Yet, it refuses to conduct a transparent hearing, rightfully demanded by De Lille, more so given that she is a public figure. In refusing to do so, the DA has denied De Lille her inalienable right to be heard in terms of the audi alteram partem principle; rights that are entrenched in both the Constitution of South Africa and the DA’s own constitution.
In addition, the DA has conducted two investigations ie one by the city known as the Bowman Gilfillan report and another by the party itself, known as the Steenhuisen report. Yet, the DA refuses to provide De Lille with the alleged evidence.
Unsurprisingly, the Steenhuisen report is the subject of another legal battle between De Lille and the DA. Instead, the DA has chosen to ride roughshod over De Lille’s rights by leaking selected information from the two aforementioned reports. It seems that their aim is that if they consistently repeat their narrative that De Lille is guilty of corruption in the public domain, she will be discredited.
As if the above were not enough, the DA attempted to further smear De Lille’s name when their Deputy Chief Whip and Deputy Federal Chair, Mike Waters and NCOP member Bronwynn Engelbrecht disseminated a report on social media that purported to be from the Auditor General (AG) indicating De Lille’s poor performance and governance of the City of Cape Town.
This report was subsequently denounced by the AG as fraudulent. We will have to wait until the investigation is finalised to determine the extent of the DA’s involvement. But, where there is smoke, there is usually fire.
In a further assault on our courts, last month the DA also defied the spirit of another court decision, which had granted an interim interdict against the DA council. The interdict reversed the council’s decision to remove De Lille as Mayor of Cape Town pending the outcome of last week’s judgment thereby effectively indicating that the status quo be maintained.
Yet, the DA council caucus led by Deputy Mayor Ian Nielson and the DA’s own resident council cowboy, “Sheriff’” JP Smith decided to show our courts the proverbial middle finger. Since the DA couldn’t entirely remove De Lille from her mayoral post as this would have been a flagrant violation of the interim interdict, they chose to comply with the letter of the judgment and disregard the spirit by stripping De Lille of her mayoral powers.
“Sheriff JP Smith’’ bragged to the media that De Lille was mayor in name only, ostensibly to comply with the court decision but in reality, to disregard it.
After last week’s court judgment and fearing another bruising court challenge by De Lille, it seems that the gung-ho and over eager “Sheriff’’ is now being pressured by his party to backtrack. He has now acknowledged that the DA council may have over-stepped its powers by stripping De Lille of most of her mayoral delegations – a euphemistic spin which actually means they may have again acted illegally.
It also appears from recent media reports that the party leadership is divided on whether or not to appeal the decision. With his back against the wall its leader Mmusi Maimane has allegedly sent an olive branch to the feisty mayor declaring a temporary ceasefire. This is not because he has undergone a “Damascian” change, rather it is purely real-politiek at play. Maimane knows that he cannot continue with this fight as their own research indicates that this battle is negatively affecting the DA’s electoral support and fundraising efforts.
The DA leadership clearly underestimated the mayor’s tenacity and she has proven to be a formidable opponent showing no signs of backing down. Given the mayor’s personality it is doubtful though whether she will succumb to this ceasefire. Second, the mayor is politically savvy enough to know that there is a strong likelihood that the ceasefire is only a temporary tactic and that the dagger will be dropped on her as soon as the elections are over and she becomes disposable.
Ironically, since its establishment in 2000 the DA has consistently proclaimed to be the true representatives and the principle guardians of liberalism, democracy and rule of law. The DA’s actions have proven that it is anything but liberal or democratic nor does it respect the rule of law.
Instead, the DA may have finally exposed themselves as neo-conservative illiberal wolves hiding in liberal sheepskins. Their recent actions have put them on a slippery slope to the archaic and chaotic dark days where “demo-crazy’’ cowboys ruled supreme and where the law of the jungle displaces the rule of law. Thankfully, last week’s judgment has reminded the DA that our courts will not allow the DA’s “wannabe’’ cowboys to run amok. DM
Zahir Amien is a civil servant, a social and political commentator and member of the ANC. He writes in his personal capacity.
Bibliography – Sources
Patricia De Lille vs Democratic Alliance & Others case no: 7882/18 -High Court of South Africa – Western Cape Division
News 24 News Article – DA’s Mmusi Maimane is holding out the olive branch to Cape Town Mayor Patricia de Lille – S’ Thembile Cele- 01/07/2018
News 24 News Article – ‘’We may have overreached a bit’’- JP Smith on cutting De Lille’s powers- Paul Hermann- 29 /06/08
News 24 News Article – De Lille Hits Back at DA’s Mazzone, calls her ‘clueless’-Paul Hermann- 29/06/2018
EWN online- De Lille’s open letter to ‘’clueless , lying’ Mazzone- 29 / 06 /18
News 24 News Article- DA must pay more than R1m for my legal fees- De Lille- Paul Hermann- 28/6/2018
Oped Daily Maverick – DA Failure in High Court comes down to illegality – Professor Pierre De Vos- 28/6/ 2018
Oped – Voices 360- The DA will never forget Patricia De Lille – Dougie Oakes -28/6/2018
IOL.- Cape Argus – #De Lille ousting was unlawful, rules Western Cape High Court- Jason Felix – 27/06/2018
IOL.- Cape Argus- DA considering appealing # De Lille judgment – Staff Reporter – 27 June 2018
Business Day – DA crisis deepens after Patricia de Lille’s court win – Genevieve Quintal – 27 June 2018
Interview – Huffington Post- De Lille And the DA’s Unsolvable Paradox – Gareth Van Onselon , Zimkhitha Mathunjwa – 27/6/2018
News 24 News Article – AG meets Maimane over unacceptable fake Delille post, probe underway – 23/05/2018
News 24 News Article – DA to seek another motion of no confidence in De Lille after court loss- Paul Hermann- 27 June 2018
Times Live News Article – De Lille accuses DA of Lying to courts and to the country -22/5/2018