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[2018] ZAWCHC 57
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De Lille v Democratic Alliance and Others (7882/18) [2018] ZAWCHC 57 (15 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
CASE
NO: 7882/18
Reportable
In
the matter between:
PATRICIA
DE
LILLE
Applicant
and
DEMOCRATIC
ALLIANCE
First
Respondent
CITY
MANAGER OF THE CITY OF CAPE TOWN
Second
Respondent
THE
CITY OF CAPE
TOWN
Third
Respondent
INDEPENDENT
ELECTORAL COMMISSION
Fourth
Respondent
JUDGMENT
DELIVERED ON TUESDAY 15 MAY 2018
GAMBLE,
J:
INTRODUCTION
[1]
At 7.52am on Tuesday 8 May 2018, the City
of Cape Town lost the services of its executive mayor. This occurred
outside of the ordinary
democratic process: not because she had
failed to survive a vote of no confidence, nor because she had lost
the support of the
majority of her party caucus in council nor
because she had resigned her office. Rather, the applicant (“Ms.
de Lille”)
was informed in an email from a senior functionary
(“Mr. Selfe”) of the first respondent (“the DA”)
that
her membership of that political party (which holds the majority
in the Council of the City) had been terminated with immediate
effect
in terms of the provisions of clause 3.5.1.2 of the party’s
constitution. I shall revert to that clause presently
but point out
at this stage that, for the avoidance of confusion, we refer to the
party’s constitution as “the DA constitution”
and
the Constitution of the Republic of South Africa, 1996 simply as “the
Constitution”.
[2]
The effect of Ms. de Lille’s loss of
membership of the DA had various consequences (both statutory and
otherwise) of which
I name just a few. Firstly, in terms of sections
27(c) and 27(f)(i) read with section 59(c) the Local Government:
Municipal Structures
Act, 117 of 1998 (“the Structures Act”),
an executive mayor automatically loses her position as such when she
cease
to be a member of her party. Secondly, the loss of mayoral
office results in a vacancy in Council which requires the Speaker of
Council and the second respondent (“the City Manager”) to
take steps to inform the fourth respondent (“the IEC”)
of
the vacancy in order that the necessary democratic process can be put
in place to install a new member of Council representing
the DA.
Thirdly, all members of the executive mayor’s council (“Mayco”)
automatically lose their positions as
such in terms of s60(5) of the
Structures Act. Fourthly, the deputy mayor automatically assumes the
position of executive mayor
in terms of s56(6) of the Structures Act
and s/he then holds office until a new mayor is duly elected.
Fifthly, the acting mayor
must appoint a new Mayco under s 60(1)(a)
of the Structures Act.
[3]
It seems as if the Speaker and the City
Manager acted with considerable alacrity. The latter informed the IEC
of the vacancy at
8.33 am and by 9.30 am the Speaker caused a letter
to be hand-delivered to Ms. de Lille by a member of her VIP staff.
She was at
that stage on her way to see her counsel Mr. de Waal. Both
the Speaker and the City Manager say in these papers that they acted
bona fide
and
for purposes of this application we accept those assertions.
[4]
The present application by Ms. de Lille for
interim relief was issued around lunchtime on the same day and the
papers delivered
to the chambers of the Presiding Judge shortly
thereafter. The application seeks to interdict the IEC from
advertising the vacancy
in Council as a consequence of Ms. de Lille’s
loss of membership of the DA, and further to reinstate Ms. de Lille
into the
office of executive mayor together with the existing Mayco,
all of this pending an application to review her loss of membership.
[5]
The application was set down for hearing at
10.00 am on Friday 11 May 2018 in the Fast Track of the Motion Court.
A tight timetable
was set for the filing of papers with which the
parties complied and at the direction of the Judge President it was
heard by 2
judges. In addition, the Judge President directed that the
review application should be heard by a Full Bench of 3 judges on
Friday
25 May 2018. The parties were informed hereof shortly before
the hearing on Friday 11 May 2018. At that hearing Ms. de Lille was
represented by Mr. Mpofu SC who led Mr. de Waal, the DA by Mr.
Rosenberg SC with Messers Bishop and Khoza while the City and its
Manager were represented by Mr. Breitenbach SC. The City and its
Manager indicated that they would abide the decision of the court.
[6]
We are indebted to the legal
representatives on all sides for their comprehensive written and oral
submissions which were all prepared
under significant time
constraints. These have assisted us in coming to an urgent interim
ruling which we consider is necessary
in light of the circumstances
which we shall allude to hereunder. As this judgment is delivered
under similar pressing time constraints
we will refer to only certain
authorities and reserve the right to amplify this judgment later if
the need arises.
RELEVANT
FACTUAL BACKROUND
[7]
Ms. de Lille has been a member of the DA
since 2010. She has held the office of executive mayor since 2011,
most recently having
been elected to that position by the Council of
the City after the local government elections of August 2016. The
papers reflect
that Ms. de Lille and her principals in the party have
been at odds with each other for quite some time. Mr. de Waal
suggested
that this may have been as long as 18 months but certainly
it seems to be for at least 6 months.
[8]
The DA has initiated internal disciplinary
proceedings against Ms. de Lille on 2 distinct fronts. One complaint
relates to allegations
of corruption in the procurement of buses for
the City’s bus service and the other to the irregular
appointment of certain
senior staff members in the City. Both
complaints arise from independent investigations conducted by outside
agencies and separate
disciplinary committees (“DC’s”)
have been set up. The former complaint has been referred to the
Moolman DC and
the latter to the Joubert DC. Both DC’s have
become bogged down, as Mr. de Waal put it “in thick sand”,
as the
parties engaged in pre-hearing sparring.
[9]
On 15 February 2018, certain of the DA
councillors proposed a motion of no confidence in Ms. de Lille. This
motion failed to attract
the requisite majority in Council and
evidently failed by a single vote. This implies that some DA
councillors must have voted,
together with the opposition, against
the motion and in support of Ms. de Lille. Following upon that event,
and seemingly in response
to the difficulties being experienced with
Ms. de Lille, at its Federal Congress on 8 April 2018 the DA adopted
an amendment to
its constitution by inserting, through clause
6.2.6.3, what the parties have termed a “recall clause”.
That clause
is to the effect that –
“
..If…a
mayor… has lost the confidence of… her caucus, the
Federal Executive may, after giving…her the
opportunity to
make representations to it, resolved to require… her to resign
from… her office within 48 hours. Failure
by that member to
resign will lead to the cessation of membership of the Party in terms
of section 3.5.1.10.”
Clause
3.5.1.10 in turn provides that a member of the DA ceases to be such a
member when she fails to resign her position after
the procedures set
out in clause 6.2.6.3 have been followed.
[10]
On 18 April 2018 the DA’s Federal
Executive (“FedEx”) gave permission to its caucus in the
City of Cape Town to
invoke the “recall clause”. An
internal motion of no-confidence within the caucus was brought on
Wednesday, 25 April
2018 and this succeeded with 97 councillors
voting in favour thereof, 41 voting against the motion and 15
councillors abstaining.
There was one spoilt ballot. This implies
that 56 DA councillors did not support the motion.
[11]
The following day, 26 April 2018, Mr. Selfe
wrote to Ms. de Lille inviting her to make written representations by
2 May 2018 to
FedEx as to why she should not resign as Mayor of the
City. Ms. de Lille responded by asking for certain documents (which
were
not forthcoming) but she nevertheless made representations
before the stipulated deadline. Ms. de Lille says that she regards
the
recall clause as inconsistent with the Constitution and the
Structures Act and gave the DA notice of her intention to challenge
the clause and its implementation through the courts.
[12]
When FedEx met over the weekend of 5-6 May
2018 to deal with her representations regarding the recall clause,
Ms. de Lille’s
attorneys sent the DA a copy of her draft court
papers relating to the challenge to the recall clause. FedEx
thereupon suspended
its deliberations to seek legal advice in
relation to the points raised by Ms. de Lille’s court papers.
[13]
Late in the afternoon of Thursday 3 May
2018, a senior member of the DA’s Legal Committee (Mr. Horn)
hand delivered a letter
to Ms. de Lille at the mayoral offices. In
that letter Ms. de Lille was given 24 hours to respond to the party’s
reliance
at that stage on clause 3.5.1.2 of the DA constitution. The
parties have termed this the “cessation clause” and it
reads as follows –
“
....
A member ceases to be a member of the Party when… she…
publicly declares…her intention to resign and/or
publicly
declares… her resignation from the Party.”
In
support of this notification to its member the DA relied upon a radio
interview given by Ms. de Lille to Mr. Eusebius McKaiser
on 26 April
2018, immediately following the success of the caucus vote of no
confidence. We shall return to the content of this
interview shortly.
[14]
Ms.
de Lille responded to this demand and timeously filed her response,
pointing out that she would challenge the cessation clause
on a
number of bases, including whether she in fact declared an
unequivocal intention to resign as a member of the Party as well
as
other procedural and substantive attacks on the cessation clause. Ms.
de Lille’s submissions regarding the cessation clause
were
referred to a 3 person panel of the DA’s Legal Committee which,
on Sunday 6 May 2018 found that –
“…
De
Lille’s membership has ceased by virtue of s3.5.1.2 of the
Federal Constitution and it is accordingly recommended to the
Federal
Executive that cessation of the membership be confirmed and all
consequences thereof implemented.”
[15]
That recommendation was considered by FedEx
on Monday 7 May 2018. After consideration of the report of the panel,
confirmation of
the cessation of membership by FedEx was conveyed to
Ms. de Lille by Mr. Selfe in the email of 8 May 2018 referred to
at the
commencement of this judgment.
THE
RELATIONSHIP BETWEEN THE PARTIES
[16]
The relationship between a political party
and its members is governed by the principles applicable to voluntary
associations. It
is essentially contractual in nature and will be
governed by the party’s constitution which fixes the terms and
conditions
of association. In subscribing to membership of the party
the member agrees to abide by the terms of the constitution. Where a
member indicates an intention no longer to be bound by those terms
and conditions, her conduct is akin to a repudiation of the contract
and the consequences thereof will arise from the relevant terms of
the party’s constitution.
[17]
In
Barkhuizen
v Napier
2007(5) SA 323 (CC) the
Constitutional Court held that that the courts are bound to hold
parties to their contract but the court
went on to say that where
issues of public policy are raised in relation to the terms of a
contract, those issues are to be interpreted
through the prism of the
Constitution. Such an approach might, upon proper analysis of Ms. de
Lille’s case, be held to apply
to the DA’s constitution
and to that extent there might be constitutional issues at play in
this matter which raise questions
of legality and the like.
[18]
Further, in
Ramakatsa
and others v Magashule and Others
2013
(2) BCLR 202
(CC) at [16] the Constitutional Court held that our
constitution gives members of political parties “
the
right to exact compliance with the constitution of a political party
by the leadership of that party.”
Accordingly, where a litigant complains that the party has not
properly applied its constitution towards a member, or that there
are
clauses in the party’s constitution which are inconsistent with
the Constitution of the Republic, the litigation also
raises
constitutional issues. If that is the case, the present litigation
may ultimately find its way to the Constitutional Court.
[19]
We understand Ms. de Lille to base her case
on 4 broad categories. Firstly, she says that the DA has
misinterpreted her remarks
to Mr. McKaiser as evincing an unequivocal
intention to resign from the party. Ms. de Lille claims that she only
indicated an intention
to resign as executive mayor and not a party
member, and then only conditionally.
[20]
Secondly, Ms. de Lille raises a substantial
challenge to the DA’s decision to confirm the cessation and
complains that in
resorting to the provisions of clause 3.5.1.2 the
DA has effectively applied double standards and has treated her
differently from
other members who have made similar remarks in the
past.
[21]
Thirdly, Ms. de Lille attacks the
constitutionality of both the cessation and recall clauses. And,
finally, she has detailed a series
of technical points (as Mr. de
Waal called them) where she says the DA has not properly applied its
constitution towards her
and, on this score, she relies on
Ramakatsa
as a further cause of action in
relation to the alleged violation of her constitutional rights. These
claims are in relation to
questions of procedural non-compliance with
the DA constitution as well as allegations of unlawful delegation of
authority to the
party’s decision-makers
APPLICATION
FOR AN INTERDICT
PENDENTE LITE
[22]
Ms. de Lille has asked this court in part A
of her notice of motion to grant her temporary relief pending the
decision of the reviewing
court in determining the relief sought in
Part B of the notice of motion. The reviewing court will commence
sitting next Friday
25 May 2018 and will decide the case along
different lines to those which we must consider in relation to the
part A relief. We
must therefore be cautious not to trench in this
application upon the jurisdiction of the reviewing court. See
National Treasury and others v
Opposition to Urban Tolling Alliance and Others
2012 (6) SA 223
(CC) at [31]
[23]
The test for the grant of an interim
interdict is by now well established. An applicant has to satisfy the
court of the existence
of the following criteria –
(a)
A
prima facie
right, which may in the circumstances be open to some doubt;
(b)
An apprehension of irreparable harm if the
interim interdict is not granted;
(c)
That the balance of convenience is in
favour of the granting of interim relief; and
(d)
The absence of any other remedy.
See
Erasmus
, Superior Court Practice, (2
nd
ed) Vol 2 at
D6-16A.
[24]
These requirements are not to be considered
in isolation but by weighing them up in conjunction with each other.
So for example,
where the
prima facie
right relied upon is weak but there are
strong considerations in relation to harm and/or the balance of
convenience a court might
consider granting temporary relief. In
Eriksen Motors (Welkom) Ltd v Protea
Motors, Warrenton and Another
1973 (3)
SA 685
(A) the Appellate Division stressed that a court looks at the
affidavits as a whole, evaluates the interrelation of the various
considerations and gives a decision which is flexible and practical
if the circumstances so demand.
[25]
Turning to the
prima
facie
right relied upon for review, we
are of the view that the McKaiser interview, when considered in its
entire context, demonstrates
that Ms. de Lille’s relationship
with the DA has all but come to an end. Ms. de Lille herself
acknowledged that in the interview
when she said that “
the
writing is on the
wall.
”
There is the recognition of a long history of disharmony between the
parties and Ms. de Lille agreed with Mr. McKaiser’s
statement
in that interview that she would resign from the DA (and not just as
mayor): “
The morning after I’ve
won the court case then I will resign from the DA”.
That intention is confirmed in these papers where Ms. de Lille says,
not that she is insistent on staying in the DA to serve its
constituents, but rather to clear her name through the disciplinary
process that the party has initiated against her. Her denial
of an
intention to resign in the long term is therefore not tenable at this
stage and her
prima facie
right
in this regard is, in our view, not strong.
[26]
On the other hand, we are of the view that
Ms. de Lille has made out a
prima facie
case for her attack on the manner in
which FedEx approached her utterances to Mr. McKaiser, both at a
procedural and substantive
level in the other categories we referred
to earlier. Approaching the matter on the basis of
Ramakatsa
we cannot say at this stage that Ms. de Lille’s claim to
non-compliance by the DA with its constitution (the so-called
technical points) nor the application of the cessation clause do not
raise constitutional issues which warrant consideration by
the
reviewing court. In the circumstances, we are bound to conclude at
this stage that Ms. de Lille has established the requisite
prima
facie
basis for approaching the
reviewing court.
[27]
As far as harm is concerned, we do not
perceive irreparable harm to Ms. de Lille in her personal
capacity. Her loss of income,
status and freedom of association with
the political party of her choice are all capable of being addressed
later if the reviewing
court finds in her favour. We are, however,
genuinely concerned about the harm which her loss of office has for
the people she
is supposed to serve as the executive mayor of Cape
Town. In our view, this factor needs warrants serious consideration
in relation
to the balance of convenience.
[28]
The City has lost the services of its first
citizen and of the members of Mayco, all of whom have been
automatically removed from
office through the application of the
cessation clause. In his brief submissions to us Mr. Breitenbach
highlighted the importance
of stabilizing Mayco. He noted that while
the deputy mayor, who has in the interim acceded to the office of
mayor in a caretaker
capacity, has the right to appoint a new Mayco,
he had as of Friday afternoon not done so. Evidently the acting mayor
was awaiting
the outcome of this application before taking any
further steps.
[29]
During argument we asked Mr. Rosenberg
whether the DA was prepared to give an undertaking that the existing
Mayco would not be replaced
pending the determination of the review.
Counsel was unable to obtain such an undertaking and informed us that
the DA considered
that this would be an improper interference with
the acting mayor’s prerogative under the Structures Act. This
stance is
difficult to understand given that the deputy mayor is from
the DA, would ordinarily be subject to its discipline and obliged to
carry out the directions of his political principals. Rather, it
suggests that the acting mayor may well be intent upon replacing
some
or all the members of Mayco. That poses the further question whether
the invocation of the cessation clause was actually intended
to
remove Mayco together with the mayor or whether this is just
collateral damage. Fortunately we are not required to determine
that
issue at this stage.
[30]
In considering the balance of convenience
then we take into account that if Ms. de Lille is successful before
the reviewing court
she might be reinstated and would then be
entitled to appoint her own Mayco, possibly including members of her
original executive
team or others. One would then have another change
of executive members of the City’s political leadership - a
veritable
case of musical chairs in the mayoral parlour.
[31]
Such a state of affairs cannot be in the
interests of the governance of the City and its citizens. The members
of Mayco fulfill
important statutory and executive functions and it
is desirable that there be stability in this regard while the legal
process
around the effective removal of Ms. de Lille from office is
resolved. Mr. Breitenbach referred us to the finalization of the
City’s budget which must be tabled shortly and of course there
is the question of management of the City’s ongoing
water
crisis. There are also important decisions which crop up on an almost
daily basis around planning approvals and the persistent
problems
around land invasions, to name just a few.
[32]
While the reviewing court is to hear this
matter next week, it is possible that that court might reserve
judgment in light of the
complexity of the constitutional and other
issues raised. Furthermore, we take note of the fact that both Ms. de
Lille and the
DA are not shy to litigate, as this matter and the
history of their respective litigation clashes with political
opponents, organs
of State and the like reflect in our law reports.
It is therefore not inconceivable that there may be further
proceedings
such as appeals beyond the determination by the reviewing
court.
[33]
And all the while, the functioning of the
City’s top management will have to endure the prospect of the
City’s political
structures being tinkered with. Such chopping
and changing in Mayco is not to the benefit of the City and this in
our view is a
critical factor in considering the balance of
convenience in this matter.
[34]
As undesirable as it may be in light of the
bruising allegations and counter allegations which have been made in
these proceedings,
preservation of the
status
quo
as it existed immediately before
Ms. de Lille was informed of the decision of FedEx last Tuesday
morning is in our view the only
reasonable alternative in the
prevailing circumstances. The DA will know this only too well after
its protracted litigation with
the former Chief Operating Officer of
the national broadcaster in which it sought to preserve the
status
quo
. See
Democratic
Alliance v South African Broadcasting Corporation and Others
2015
(1) SA 551
(C). There is, in our view, no practical way to achieve
this outcome other than to grant the relief sought by Ms. de Lille in
para
1.1 of the draft order handed up by Mr. Mpofu.
[35]
It goes without saying that in asking for
her party membership to be guaranteed
pendent
lite
, Ms. de Lille impliedly warrants
that she will continue to serve all of the people of Cape Town on
behalf of the DA and in accordance
with its policies. She must
further be taken to warrant that she will subject herself to party
discipline in the interim and that
she recognizes that the party is
entitled to enforce such discipline against her by acting lawfully in
accordance with the provisions
of its constitution.
COSTS
[36]
Both parties sought an award of costs in
the event of their arguments being upheld. It is not, in our view,
inappropriate in the
circumstances for the costs of these proceedings
to be determined by the reviewing court. That court will ultimately
be in the
best position to evaluate the strength of the party’s
cases and to rule on costs accordingly. See
EMS
Belting Co of SA (Pty) Ltd v Lloyd
1983
(1) SA 641
(E) at 644B.
ORDER
OF COURT
In
the circumstances it is ordered that -
A.
Pending the hearing of Part B of this
application the notice of first respondent’s Federal Executive
to the effect that the
applicant has ceased to be a member of First
Respondent is suspended and will have no force and effect and the
effect thereof is
that the applicant shall remain in office as
Executive Mayor of the Third Respondent and the Mayoral Committee, as
it was constituted
on 8 May 2018, will continue to function.
B.
The costs of this application will stand
over for determination by the court hearing the Part B relief.
__________________
GAMBLE,
J
I
AGREE:
___________________
SAMELA,
J
For
applicant
–
Advv Dali Mpofu SC
and H.J.de Waal
Instructed
by: John Riley Inc. (021-7977116)
For
first respondent
–
Advv Sean P.
Rosenberg SC, Michael Bishop and S.Khoza
Instructed
by: Minde Shapiro & Smith (021-9189000)
For
second and third respondents
–
Adv.
Andrew M.Breitenbach SC
Instructed
by: MHI Attorneys (021-9108408)
No
appearance for 4
th
respondent