The Free State High Court in Bloemfontein on Wednesday morning started hearing an urgent application by the African National Congress (ANC) to challenge a Mangaung council sitting that resulted in Afrikan Alliance for Social Democrats president Papi Mokoena being elected mayor of the troubled municipality.

Besides petitioning the court to declare the 14 April council sitting unlawful, the ANC has also asked the court to interdict and restrain Mokoena from performing any mayoral acts.

In its court application, seen by News24, the ANC said the participation of its fired councillors, which allowed the council meeting to reach a quorum, was unlawful as the party had been granted an interdict stopping the seven councillors from participating.

"The appointment of the mayor at the special council meeting of the municipality was clearly unlawful. It must not be allowed to endure in the interim and until the court has pronounced upon the validity of the actions the ANC herein complains about."

"Seven councillors, Lehlohonolo Moqolo, Patrick Monyakoana, Mapaseka Mothibi-Nkoane, Chabeli Frank Rampai, Puseletso Leticia Seleke, and Mpho Mokoakoa… were expelled as members of the ANC in March 2023. The former councillors attempted to partake in the meeting (where Mokoena was elected) despite their expulsion.

"This caused the ANC's attorney in Bloemfontein to write to all of the former councillors on 13 April 2023, warning them that should they attend the meeting, the ANC would proceed to court to interdict them from doing so," the ANC court application read.

The party added that on the day of the council sitting a court order was granted at 12:30 while the council sitting started at 14:00. It said the court order interdicted its former councillors from attending and performing any functions at the meeting.

According to the ANC, the court ruling preventing their participation were then communicated to the councillors via WhatsApp at approximately 13:00.

Screenshots of the communiqué were attached to the court application as proof.

"There can be no doubt that all the respondents, including the speaker, knew about the court order and its effect before the commencement of the municipal council meeting," the ANC application read.

Despite the court order interdicting the participation of the expelled ANC members, the DA argued that because of an eleventh-hour intervention by the Electoral Commission of South Africa (IEC), the sitting and involvement of the ANC's fired councillors was lawful.

The IEC wrote to Free State Cogta MEC Ketso Makume, the ANC caucus and the Mangaung speaker. It said the ANC made glaring mistakes in its rush to speedily fill vacancies it created after firing the seven councillors who voted against the party line, which handed the speaker position to the DA. 

Citing a failure to follow protocol, the IEC in particular questioned the ANC's attempt to fill three proportional representation (PR) positions.

In a letter seen by News24, the IEC explained its role, the role of the then-municipal manager and the Cogta MEC concerning the applicable legislation on how political parties were to fill vacancies.

The IEC said the ANC had communicated that it had expelled seven Mangaung councillors, comprising three PR councillors and four ward councillors. According to the letter, two separate processes were, therefore, followed to fill the vacancies.

"Only an authorised representative may inform a municipal manager that a vacancy has arisen as contemplated in subsection (1)(c) and (f) of the Local Government Municipal Structures Act," read the IEC letter.

The IEC said according to the applicable legislation, communication with the municipal manager was meant to be done within 14 days of the vacancy occurring.

In a scenario where there is no municipal manager, such as in Mangaung, the Cogta MEC is empowered to inform the chief electoral officer of impugned PR vacancies within 14 days of the vacancy occurring.

Therefore, it meant that MEC Makume approaching the electoral officer and communicating the PR vacancies was procedurally incorrect.

"No provision exists in law for the MEC for local government to inform the chief electoral officer of a PR vacancy before the expiry of the period in Item 18(1)(b) of Schedule 1 of the Structures Act. To do so would be premature.

"In the circumstances, although the office of the municipal manager is currently vacant, the period in Item 18(1)(b) must expire before your offices are empowered to inform the CEO of the impugned PR vacancies," the letter read.

With regards to filling the four positions created when the party fired its ward councillors, a by-election would have to be called after the municipal manager informed the MEC and the IEC of the vacancies in the wards within 14 days of the vacancies occurring.

After consulting the IEC, the MEC must, by notice in the Provincial Gazette, call and set a date for the by-election, which must be held within 90 days of the date of the vacancies.

As such, the DA said, given that the 14 days had not lapsed, Mothibi-Nkoane and Monyakoana could attend the proceedings.

The ANC's urgent application started in the Free State High Court Bloemfontein just after 10:00.