The DA and former acting city boss Noxolo Nqwazi are going head to head in court over her refusal to declare three vacancies in council, with the party accusing her of undermining the democratic process.
Citing gross negligence and bad faith in failing to take steps to have the three councillors replaced after they turned against their party, the DA has asked the Port Elizabeth High Court to order Nqwazi to pay half of the party’s legal costs in her personal capacity.
The urgent application, set down to be heard by judge Elna Revelas on Wednesday afternoon, states that the three council seats have been held open unlawfully and that, in doing so, a succession of municipal managers have undermined the democratic process.
Lead counsel for the DA, Anthony Stein, argues that this has led to the people living in the wards represented by Trevor Louw and Neville Higgins – and voters in general – being unrepresented in council.
In her affidavit, Nqwazi – who was removed from her post at the weekend – states that there is no basis for a personal cost order against her and that it is only sought for political reasons.
She says in court papers that within hours of assuming the position of municipal manager, she was threatened with urgent litigation and cost orders by the DA relating to the vacancy issue.
In another unexpected twist, one of the councillors, Victor Manyati – who claims that the party is violating a court ruling in August that he is still a member of the DA – has asked the court to hold the party in contempt of court, imprison DA federal chair James Selfe for 30 days and fine the party R500,000, but to suspend part of the sentences only if the DA agrees to keep him as a member.
Nqwazi said the reason for the vacancies not being declared was that the DA refused to provide her with documentation, telling her it was not her place to second-guess the party.
However, on Monday, new acting municipal manager Peter Neilson declared vacancies in the cases of Louw and Higgins and wrote to the IEC requesting by-elections.
Neilson said he could not declare a vacancy for the seat of PR councillor Manyati.
Selfe says in an affidavit that Nqwazi and her predecessors’ conduct in this respect has had “farcical results”.
He says the councillors are openly sitting with the ANC in council.
“The only place in which Manyati, Louw and Higgins are still DA councillors is in court papers in attorneys’ letters.”
Selfe says a municipal manager is obliged to fill a vacancy on notification by a political party that it has terminated a councillor’s party membership and not to assess the fairness of the party’s decisions.
If this is at issue, it is for the councillors themselves to address it in court, Selfe says.
The three councillors also filed counter-applications, asking the court to rule on both their party memberships and their status as councillors.
They argue that their membership was not terminated.
Neilson conceded that the termination of the party memberships of Higgins and Louw seemed, on the face of it, to have been done in a fair and lawful manner.
However, he said the DA was wrong to refuse the office of the city manager access to documentation to this effect and had no basis to do this.
Neilson said the law compelled him, once a vacancy had been established, to call a byelection for the wards represented by Louw and Higgins.
But he insisted that as a disciplinary hearing against Manyati predated the judgment by acting judge Johann Huisamen in August about the events that led to the ousting of the DA’s coalition in the metro, he could not yet declare a vacancy in his case.
While she was still the acting municipal manager, Nqwazi filed an affidavit disputing her obligation to declare vacancies in council.
She argued that she had to be satisfied the DA membership of the three councillors was terminated in a fair and procedurally correct way and said she was not given enough information to determine this.
In the DA’s papers, it is, however, argued that Nqwazi’s office had all the information she needed and her predecessor, Nolwandle Gqiba, had granted “indulgences” to the three councillors for which the law does not make provision.
Nqwazi had requested documentary evidence that the councillors’ party memberships had been terminated.
However, according to a lawyer’s letter before court, the DA’s attorneys told her “she was not entitled to this documentation”.
Selfe says Manyati’s DA membership was terminated on August 31 as he violated a caucus decision and was quoted in the media as saying: “I am leaving the DA.”
Selfe states further that Higgins and Louw likewise violated a caucus decision and also resigned as councillors.
“Higgins publicly stated that he had notified the DA caucus and residents in his ward that he would not finish his term as ward councillor and that he would tender his resignation.”
Selfe’s affidavit states further that Higgins said he had secured a fulltime job.
Louw also wrote a letter of resignation from the DA, Selfe states.
Nqwazi says she, however, cannot just rely on what the DA says.
“Membership of a political party does not cease immediately on the say-so of the party bosses,” she says in papers before the court.
“The DA has in the past three months twice tried the trick of summary termination [in reference to former Cape Town mayor Patricia de Lille and Manyati].”
She says a personal cost order against her is not warranted as she conducted herself in a responsible way.
In his affidavit, Manyati says he has no intention of ending his membership of the DA and his actions as well as those of Higgins and Louw should be interpreted as a form of “protest against the racism in the party”.
This included a “fake letter of resignation”, he says.
“The process was solely driven by conscience,” he says.
Higgins and Louw did not make separate affidavits but signed documents saying they were in agreement with what Manyati said.