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De Lille v Democratic Alliance and Others (7882/18) [2018] ZAWCHC 57

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De Lille v Democratic Alliance and Others (7882/18) [2018] ZAWCHC 57

17th May 2018

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[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”.

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[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.

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[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.

 

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