The Democratic Alliance (DA) is using a motion of no confidence against Cape Town Mayor Patricia de Lille to avoid holding disciplinary proceedings against her, Advocate Dali Mpofu SC told the Western Cape High Court on Tuesday.

"They want to get rid of her, but they want to get rid of her without affording her the rights of a hearing and disciplinary process," said Mpofu, who is applying for the motion of no confidence to be held by secret ballot.

"They [the DA] want to get rid of her by manipulating the rules of council," he said.

However, De Lille is not against Thursday's motion of no confidence, said Mpofu.

She merely wants the vote on it to be held through a secret ballot so that members can vote "according to their conscience" and not just do what the DA tells them to do. She wants them to be free from reprisal should they not take the usual party caucus line.

A 'free vote'

Mpofu is leading the charge in the High Court, a sequel to a similar application to the Constitutional Court last year by the United Democratic Movement and supported by the DA, for a motion of no confidence against President Jacob Zuma to be held by secret ballot.

In that case, the court said it could not tell National Assembly Speaker Baleka Mbete what to do, but confirmed that she did have the right to decide whether to hold a secret ballot vote or not.

Mpofu said the DA had since indicated that it was not opposed to DA councillors voting freely, instead of as instructed by their caucus, but the party did not see the point of holding the vote in secret.

Mpofu said it was also not clear whether the party's new stance – that councillors could vote freely – had been communicated to the DA councillors.

He said the councillors had no obligation to vote according to what the DA told them, because their oath of office is to serve the public, not the party.

He argued that if the party did agree to a "free vote", this was "by definition" a secret vote.

'Why are we here?'

Mpofu said that to make councillors vote openly on such a sensitive matter was "suicide" for the councillors concerned.

However, Judge Robert Henney cut in and asked why they were all in court if the DA had decided to let its councillors have a "free vote" instead of following the party line.

Mpofu said the problem was that the party had already said it did not think that a secret vote was necessary, so even suggesting one in council ahead of the motion of no confidence could be a risk to a councillor's position.

The court adjourned for lunch, and for counsel to discuss among themselves whether there still was a dispute.