DA councillors Trevor Louw and Neville Higgins have challenged the decision by Port Elizabeth High Court judge Elna Revelas that they are no longer councillors – applying for leave to appeal against the December 11 judgment.
The two ward councillors turned against the party in September, when they sided with the ANC, EFF and UDM coalition.
The court move follows the announcement that by-elections in the turncoat councillors’ former wards – 35 and 37 – will be held on March 6.
The DA is unfazed by the application for leave to appeal, saying it will not go anywhere.
On Friday, stand-in acting city manager Mbuzeli Nogqala – in a letter to speaker Buyelwa Mafaya – said Higgins and Louw would still receive their salaries in the interim.
Higgins and Louw, through their attorney Eric Mabuza, claim in court papers that Revelas erred in finding that their DA membership was lawfully and fairly terminated.
“The learned judge erred in finding that the DA was entitled to terminate the [councillors’] membership on that basis that they breached the DA’s ‘strict instruction’ not to attend the council meeting of September 7 2018 and expressed their intention to resign from the DA,” Mabuza says in the court documents.
He says Revelas failed to take into account that the council meeting was lawfully convened and the councillors lawfully permitted to attend.
“In respect of allegedly expressing their intention to resign, the learned judge neglected to take into account that while [Louw] had drafted a letter of resignation it was never tendered and accordingly remained his personal and private document and not an unequivocal intention of resigning,” Mabuza wrote.
“Higgins did not at any stage express an intention to resign, he merely threatened to resign within the context of protesting the DA’s racism and antiblackness.
“This was not sufficient to be regarded as an unequivocal intention to resign as a member of the DA.”
He said Revelas had erred by failing to find that the “cessation clause” in the DA’s constitution went against Section 19 of the constitution.
This section deals with citizens’ rights to make political choices, to recruit others to political parties, to campaign for parties, to stand for public office and, if elected, to hold office.
“There is no basis to declare the [councillors’] seats vacant and to call a by-election in respect of their wards,” the court document reads.
DA Eastern Cape leader Nqaba Bhanga said on Sunday the court move was a delaying tactic.
“It’s very clear these individuals are funded by the ANC.
“We are well aware that they are doing this to try and delay us,” he said.
“What concerns me is that [acting city manager Peter] Neilson continues to do everything in his power to assist them in delaying the DA in putting the right councillors there.
“These people are not members of the DA – they have distanced themselves from the DA in public. But we are going to take this step by step as we prepare for the by-election.”
Neilson said Bhanga’s claim was nonsense as he had no political interests. “Bhanga is talking nonsense. “The fact that the DA has dismissed the councillors has nothing to do with me.
“I don’t look at a political agenda whatsoever,” he said.
“My responsibility as acting city manager is to proceed with the by-election, no more than that.”
He said the application for leave to appeal meant that he no longer had the obligation to declare the vacancies and proceed with the election.
ANC chief whip Bicks Ndoni said: “Where does Bhanga get this information?
“He must address the court case.
“I don’t know who is funding who and these guys have a right to recourse to justice.
“As to where they get their money, I think he needs to talk to them and not us.
“We don’t know people’s finances – where they get their money is not our problem, they [DA] must not accuse the ANC.”
The IEC is expected to call for the by-election and open nominations of candidates on February 1.