LETTER | DA will make sure legitimate government restored
The urgent high court review application, launched by the DA, ACDP, COPE and the PA, which will seek to set aside the decisions taken by the illegal gathering (not council meeting) of 60 councillors at the Nelson Mandela Bay council chambers on August 27 is loosely based on five independent arguments.
First, when the coalition partners left the council chamber on that day after speaker Jonathan Lawack was removed from office, we did so on advice from city manager Johann Mettler, that a vacancy had been declared in council.
This vacancy related to the position of rogue DA councillor Victor Manyati, whose membership of the DA was terminated immediately.
This was in terms of the DA federal constitution, after his abstention on the crucial speaker vote and his subsequent public announcement that he was leaving the DA.
Although certain opposition councillors objected to Mettler declaring this vacancy, the nature of administrative law would necessitate any party who was aggrieved by this decision to approach the courts for appropriate relief in this regard.
In any event, it’s common knowledge that Mettler proceeded to advise the remaining 60 councillors in the council chamber that the meeting was no longer quorate and that he would have no choice but to reconvene the council meeting at a future date and time.
Second, upon realising that their chances to successfully pull the trigger on their coup d’etat were fast slipping away, the ANC, in desperation, opted to invoke the unlawful interference of cooperative government and traditional affairs MEC Fikile Xasa to save the day.
The MEC responded immediately, relying on section 36 (3) of the Structures Act which states: “The municipal manager of the municipality or, if the municipal manager is not available, a person designated by the MEC for local government in the province, presides over the election of a speaker”.
Relying on this section, Xasa, by means of an electronic letter which was provided to the ANC caucus, appointed Jenny Roestorf, a cooperative government and traditional affairs official, to unlawfully preside over the meeting.
While the MEC would arguably be fully within his rights to invoke this section should the position of municipal manager be vacant or should the municipal manager be incapacitated, invoking this section in any other situation will constitute ultra vires action.
Xasa’s interference was cynically calculated, politically motivated and illegal.
Unfortunately for Xasa, the record will show that Mettler and his personal assistant remained in office until well after 6pm that evening.
The record will also show that Mettler received no written or telephonic correspondence from the MEC or his delegated official in this regard.
Xasa thus wilfully interfered illegally in the running of an autonomous local government structure with the clear intention of sidelining the duly appointed municipal manager of the metro.
Third, when Roestorf took her seat as presiding officer over the meeting, she declared that the meeting was in fact quorate.
She failed, however, to take into consideration the vacancy that had been declared earlier by Mettler, which meant that the meeting was in fact not quorate.
Again, it has to be stressed that even if she did not agree with Mettler’s decision to declare the vacancy, the functus officio principle applies and as such insofar as administrative action is concerned, the vacancy existed.
Fourth, as Roestorf proceeded to call for nominations for the position of speaker, she received one nomination from the floor for councillor Buyelwa Mafaya.
Roestorf proceeded to declare the position uncontested and Mafaya duly elected.
Unfortunately for Roestorf, given the fact that the municipal secretariat was not present at the inquorate meeting to record and minute proceedings, she could not have known that the DA had submitted a duly signed and accepted nomination in the prescribed format nominating Lawack for the position of speaker at the meeting proper (while the meeting was still in session with a quorum).
The election of the speaker was thus never uncontested and the election of Mafaya thus clearly invalid.
Last, elections of speakers, mayors and deputy mayors must be dealt with in respect of schedule 3 of the Municipal Structures Act.
The formal requirements in this regard entail that nominations must be submitted in writing on a prescribed form, said form to be signed by at least two members of council while acceptance of nomination by the nominee must also be in writing.
These compliance issues are material when it comes to the election of municipal office bearers.
In this regard, I simply refuse to believe that there was not a single ANC or EFF councillor who could not interpret the law thereto.
Do we therefore have any choice but to believe that there was a clear intention to disregard the legislation and to proceed with unlawful actions on the day in question?
Even more disturbing is the fact that Xasa requested an official to preside over administrative processes who clearly had no knowledge or understanding thereof.
Then again, it should probably come as no surprise, given the general poor state of local government in the Eastern Cape, which is a direct result of an ineffective department of which the incompetence of its MEC is only overshadowed by his bias towards the ANC.
Athol Trollip remains therefore the legitimate and duly elected mayor of Nelson Mandela Bay.
We assure the residents of this metro that we will do everything in our ability to ensure that the current illegitimate government in Nelson Mandela Bay is removed and that stability is restored forthwith.
– Retief Odendaal, DA caucus chairperson
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