De Lille brought forward the urgent application seeking interim relief that Thursday's motion of no confidence against her will see caucus members free to vote according to their conscience. She also demanded a secret vote.
De Lille arrived at court on Tuesday and was greeted by a large crowd of supporters, which included residents from across the peninsula, including Retreat and Imizamo Yethu, who packed the courtroom. De Lille said she had never been against a vote of no confidence, but had always been concerned about the fairness of the process.
“That comes after four weeks of experiences where various DA caucuses were instructed how to vote - first with the ANC against the motion of no confidence and then for their own motion - and in this case I want to ensure councillors exercise their vote without fear of intimidation,” said De Lille.
Mpofu submitted that the DA had informed its members that they may vote freely. However, the party’s constitution states that if a member votes contrary to what the party requests, they may lose their party membership and seat council.
“If the DA is prepared to do the right thing and agree that its own motion of no confidence is voted on in secret, then there would be no need for this part of the order.
“Differently put, if the DA believes that the motion of no confidence is urgent and cannot be delayed for a month then it holds the keys of avoiding any prejudice in its own pocket,” Mpofu said.
He also made reference to a recent Constitutional Court judgment handed down in the case involving the United Democratic Movement against the Speaker of the National Assembly, wherein the court found the Speaker had the power to authorise that a motion of no confidence in State President Jacob Zuma may have been done by secret ballot.
Mpofu said that while De Lille faced allegations of corruption, there was a vast difference in the treatment she received as opposed to Premier Helen Zille, who faced allegations of racism.
Judge Robert Henney said he considered the fact that the council’s own legislation made no provision for a secret ballot and in taking from the Constitutional Court finding, he could judge that the Speaker was allowed to exercise their discretion on making a decision.
DA advocate Ismail Jamie argued that whatever the court decided would have a far-reaching impact on the council.
Representing council, advocate Sean Rosenberg argued the matter should not have landed in court, and council was capable of handling it.
Judge Henney is expected to deliver judgment on Wednesday.