Bulali Dazana | The Bay’s ‘mayor’ conundrum

Who is the mayor of Nelson Mandela Bay Municipality (NMB)? For the last two years this is a question that would have been very easy to answer.

“Former” mayor Athol Trollip of NMB Municipality has been one of, if not the, most visible and active mayors that swept in after the landmark 2016 Local Government Elections, a ballot that marked a number of watershed moments in our young democracy. The decisively dominant ANC was unseated for the first time from office in no less than three major metropolitan councils.

The ANC had lost the governance of the City of Cape Town ages ago but these three councils carried perhaps a larger significance in that they marked a definitive decline in ANC support in areas where the racial demographic indicated otherwise.

It was the most definitive indication since the dawn of democracy that black South Africans were ready to deviate from racial voting patterns and vote in the DA (although in coalition), a party seen by many as controlled by and serving white interests, regardless of the colour of the face on the election poster.

Two years later, almost to the day, an attempt was made to remove Trollip from the mayoral office.

The effort to remove Trollip is not premised on his performance and delivery as a mayor, but rather on a range of abstract indicators such as his “white arrogance” and a desire to “cut the throat of whiteness”, both of which do not point to any failure to carry out his electoral promises.

The NMB Council has been one which has been far from settled over the period of Trollip’s tenure as mayor.

Indeed, coalition governments are not easy arrangements as interests often vary greatly between coalition partners. They can be akin to cuddling with your worst enemy in a snowstorm in order to benefit from each other’s body heat.

Inevitably, there have been spectacular splits between the DA and the UDM caucus led by councillor (now “mayor”) Mongameli Bobani – with the EFF initially coming to Trollip’s aid, only to later reignite attempts at his removal.

The story is a complex one with smaller role-players often assuming kingmaker status, only to vote to save Trollip when it came to the crunch.

You may be wondering why I refer to the removal of Trollip as an attempt?

SA may be a young democracy with a myriad of tensions bubbling under the surface between race groups, economic classes, political party devotees and just about everybody who can be grouped, but one thing that remains stable is the rule of law. Actions taken in any council in this country must stand up to legal scrutiny if challenged.

What occurred in the Nelson Mandela Bay council on August 27 2018 will most likely not meet this requirement.

Section 36 of the Municipal Structures Act is very clear that the municipal manager will preside over the election of a speaker, and only if the municipal manager is unavailable will the MEC, in this case Fikile Xasa, be required to designate a person to preside over the election of a speaker.

In the NMB council the latter is exactly what Xasa did after a vacancy occurred due to the removal of speaker Jonathan Lawack – but the legitimacy of the election of the new “speaker” who presided over the subsequent removal of Trollip and the election of “mayor” Bobani will hinge entirely on whether it can be proven that the municipal manager was indeed “not available”.

Though the law may often be written in black ink on white paper, it is rarely black and white in practice.

The interpretation of various sections of legislation often causes legal conundrums that must be deliberated on and interpreted by learned judges. The principle is that words in pieces of legislation must be given their ordinary meaning for the purposes of interpretation, must be read in the correct context and where this fails to clear up confusion, must be interpreted to give effect to the most likely intention of the legislature.

It will now be up to the courts to deliberate on exactly what qualifies as the unavailability of the municipal manager.

The question will be whether it can be said that a man who had chaired council on the same day, adjourned council on the erroneous grounds that there was no quorum, and further still communicated in writing that he intended to reconvene council the very following day can be said to have been unavailable for the purposes of this act.

The following question will be what the section was intended to allow or prevent.

Is it not more reasonable to interpret that the section is intended to prevent an undesirable lull in the functioning of the council which would occur if the absence of a speaker were to be prolonged indefinitely?

It is my estimate from following the developments on the day that this entire process was initiated and executed in the period of six hours or so.

What attempts were made by the MEC to establish whether municipal manager Johann Mettler was factually unavailable?

There will either need to be an indication that Mettler expressly declared his unavailability to the MEC or that the MEC made a reasonable and unsuccessful attempt to contact Mettler, which then led Xasa to the reasonable conclusion that Mettler was indeed unavailable.

Can it be possible that such a process can unfold in the space of six hours?

This is the basis on upon which legal representatives for the DA will challenge the removal of Trollip and this is why I am of the opinion that for the time being, it is prudent to add some punctuation to any statement that refers to a “mayor” Mongameli Bobani of Nelson Mandela Bay Municipality.

Bulali Dazana is an enthusiast of the law