Why the DA lost
Court rules that Bobani’s election was legal
The DA is not fully cognisant of the provisions in its own constitution. It barely, if at all, observed the principles of natural justice.
That was the picture painted by Port Elizabeth High Court judge Johann Huisamen in his hard-hitting judgment on Thursday, in which he declared last month’s council meeting, which ousted Athol Trollip as mayor, legal.
Huisamen was scathing of the manner in which the DA handled the dismissal of councillor Mbulelo Manyati, ruling that he is still a councillor and a member of the party until he resigns or disciplinary action is brought against him in compliance with the DA’s constitution.
Manyati’s membership was terminated after he told the media, on video, that he planned to resign from the DA.
The party’s leaders immediately convened a teleconference and took a decision that his membership be terminated.
He was not, however, given enough time to state his case.
Huisamen drew on the case involving Cape Town mayor Patricia De Lille to make his point.
“The DA should have been fully aware of the provisions of its own constitution, which would have made a determination of Manyati’s membership on August 27 – without any prior notification to him and without affording him an opportunity to present his case – impossible,” Huisamen said.
“In terms of the provisions of its own constitution the DA has, in the circumstances, guaranteed the rights of its members not only to the principles of natural justice but also the principles of a fair process.
“It seems to me that the principles of natural justice were barely, if at all, observed.”
The much-anticipated ruling was delivered by judge Elna Revelas on behalf of Huisamen in a packed courtroom.
She did not, however, read out the entire judgment.
The courtroom erupted at the news, with Mongameli Bobani shouting out: “We won! We won! We won!” Supporters of the ANC, UDM and EFF broke into song inside the court building, before moving outside where they sang and danced in celebration.
Huisamen’s ruling means that the election of the UDM’s Bobani as the new mayor, the AIC’s Thsonono Buyeye as his deputy, and the ANC’s Buyelwa Mafaya as speaker and Bicks Ndoni as chief whip were legal.
The DA, ACDP and COPE must pay all the legal costs of the respondents, including Manyati.
Huisamen was also scathing of city manager Johann Mettler, severely criticising how he had handled the meeting.
Huisamen said in his 70page judgment that Mettler had probably acted unlawfully by leaving the council chamber after declaring that Manyati was not a councillor and there was therefore no quorum to continue with the meeting.
He said Mettler had failed to observe rule 19 of the council rule book, which obliged him to adjourn the meeting for 20 minutes in the event of there being no quorum and try to reconvene to ascertain if the council could quorate before a final adjournment.
Huisamen wrote: “There was factually no vacancy at any point on August 27 2018 and because there was no vacancy there was, at all material times, a quorum of 61 councillors.
“Back in his office, Mettler then received further legal advice in terms of which he realised that he was wrong in declaring the vacancy.
“However, instead of returning to the chamber immediately and continuing with the meeting, which was factually quorate, Mettler did not do so.
“Neither did the DA coalition members, who were by then fully aware that the declaration of the vacancy was wrong, return to the chamber.”
Huisamen said that in accordance with council rules, the meeting should have continued when the DA and its coalition partners walked out.
Eastern Cape MEC Fikile Xasa was, thus, well within his rights to send an official to preside over the sitting as “Mettler plainly made himself unavailable”.
The city manager, who on Thursday submitted to Bobani his reasons why he should not be suspended for alleged misconduct, declined to comment on the judgment, saying he had already indicated that he would abide by whatever the court decided.
The council will decide his fate at a special council meeting on Tuesday.
Trollip said the DA would abide by the court’s decision and would return to the oppo-
sition benches, fighting corruption as they did before.
He believed the judgment was based on a technicality regarding the membership of Manyati, who “sold us out”.
“It’s quite extraordinary because he said he was leaving the DA and took it a step further and crossed and sat in the benches of the ANC.
“We’ve seen this treachery before – the floor-crossing of people who are desperate to get into power, get hold of patronage, and will do anything to get that.
“We made three commitments prior to the election that we would stop corruption, improve service delivery and grow the economy.
“I believe two of those we can still fulfil in the benches of the opposition, namely, stopping corruption.
“We’ll expose it and, secondly, we’ll improve service delivery by holding those in power to account.”
Bobani said he joined the hundreds of thousands of residents who rejoiced around the city on Thursday.
“This government is determined to serve the interests of all residents around. We love and like them and they love and like us,” he said.
“We’ve been saying since from the onset, as of the 27th of August, that there’s nothing wrong that we’ve done.
“Everything was done by the book.
“There was only one guy that was moving around saying he’s the mayor, yet that guy is not even occupying City Hall.
“There’s only one mayor here, one speaker here and one chief whip here.”
PA councillor Marlon Daniels, who showed The Herald the rolls of cash he was carrying in his pants, jacket and shirt pockets for “lunch”, maintained he had not joined the new coalition but supported it.
“If we are going to join the new coalition going forward, it is something that has not yet been discussed between the Patriotic Alliance and the other parties,” he said.
“As the PA, we’ve been through a bad patch with the passing of the brother of the deputy president, the passing of our president’s mother.
“We never had the time to get together to discuss the real way forward as a party.”