Legal crisis a strategy of the DA, not the cause of Trollip’s fall as such
When opposition parties successfully passed a motion of no confidence against speaker Johnathan Lawack on Monday 27 August, the DA needed a way to prevent the council meeting from proceeding to vote against the executive mayor, Athol Trollip, and other officials.
Whatever the strategy or the process, the DA needed one outcome to save its mayor, the entire collapse of proceedings or nullifying the legal validity of the meeting. It’s a game played in many ANC conferences, it is not new.
This means the legal and procedural crisis which faced the meeting on Monday shortly after the speaker was fired was what the DA deliberately attempted to achieve and as such the party was, as planned, a victim of a process it started deliberately.
The DA needed the meeting to collapse or proceed exactly in an illegal fashion to create room to challenge the outcome in court.
In order to achieve this, it decided to fire renegade councillor Victor Manyati immediately and stage a walk-out that would result in the council meeting not making a quorum.
In other words, all the DA felt it needed to do was to precipitate a legal or procedural validity crisis and delay the further motions of no confidence to a date when it would have replaced Manyati.
How successful the DA was in doing this will be decided by the courts, but everything will hinge on whether its firing of Manyati had an immediate effect on his position as councillor.
That is how his standing in the rest of the council meeting, and therefore its validity, will be determined. In chapter 3 subsection 27 of the Municipal Structures Act, the law outlines the conditions for vacation of office by councillors.
It states: “A councillor vacates office during a term of office if that councillor- (a) resigns in writing; (b) is no longer qualified to be a councillor; or (d) contravenes a provision of the Code of Conduct for Councillors…” The section is silent on whether a councillor can be fired by its own party with immediate effect, especially during a council meeting.
A subsection in the act which the DA could use to argue that its firing of Manyati had an immediate effect is subsection 19(e) but it relates to causes of vacancies on [party] lists held by the Electoral Commission rather than municipal councils.
It reads: “A person who is a candidate on a party list ceases to be a candidate and a vacancy arises in the list when the party withdraws the person's name by written notice to the chief electoral officer, or when that person… (e) “ceases to be a member of the party for which that person was listed as a party candidate; or…”
Another section deals with the filling of vacancies, but given the fact that vacancies only arise when the they resign or when they are no longer “qualified” to be councillors, it will be extremely difficult for the DA to prove that its firing of Manyati had an immediate effect.
It is the IEC, not a municipality, that administers party lists, so the correct recipient of the letter ought to have been the IEC and from the IEC to a municipality in this instance.
The next legal issue is whether a person sent by the MEC had the right to preside over the council meeting. Chapter 3 of the structures act deals with this under subsection 36(3).
It reads: The municipal manager of the municipality or, if the municipal manager is not available [emphasis added], a person designated by the MEC for local government in the province, presides over the election of a speaker.”
If Manyati could not have been fired immediately as a councillor, the declaration by Johann Mettler that there was no quorum and the meeting could not continue was invalid.
Probably after realising this, he reportedly sent a message to an ANC councillor declaring his intention to retract his declaration of a vacancy and committed to reconvene the meeting within seven days.
The only basis for having a further meeting, other than the same one in which the speaker was removed, seems only to be failure by council to decide among two candidates.
Therefore the city manager, given his intention to call the meeting at a later stage, can be said to have been “unavailable” to preside over what was otherwise a duly constituted meeting.
As such, the intervention by the MEC will be seen as having been legitimate.
The fact that it was done expediently was a well-calculated move by an ANC MEC. It may be strongly political but not illegal.
But the courts will apply themselves and guide us.
For now, Mongameli Bobani seems to be the legally appointed mayor of the Bay, as would have been the case had council not been held back for a few hours by the DA’s creative fight-back strategy.
- Ongama is a researcher and political analyst at Nelson Mandela University