Why DA lost court bid to overturn Trollip ousting
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Port Elizabeth - The United Democratic Movement's (UDM) Mongameli Bobani is the legitimate mayor of Nelson Mandela Bay after the Democratic Alliance (DA) and its coalition partners, Cope and the ACDP, lost its application in the Port Elizabeth High Court on Thursday.
The DA and its coalition partners wanted the court to review or declare unlawful the decisions taken at the August 27 council meeting which saw the ousting of Athol Trollip as mayor.
The DA is now also liable for the costs of the application.
The court battle arose over a technicality around DA councillor Victor Manyati's party membership after he publicly stated that he would resign. The new government in the Bay, the UDM, ANC, UF and the AIC with the support of the EFF had insisted at the time that there was a quorum of 61 councillors in the house to continue.
The DA, however, walked out and claimed there was no quorum because Manyati's membership had ceased effective immediate based on his public utterances.
The court pointed to "flaws in the political decision making of the DA" which ultimately led to their defeat. Judge Huisamen in his judgment stated that in terms of the DA's own constitution the party guaranteed the rights of its members to principles of a fair process, however, the court found that the party was in breach of its own constitution.
"Insofar as the DA persisted with their contention that Manyati’s membership ceased during the course of the adjournment of the council meeting on 27 August 2018, it seems to me that the principles of natural justice were barely, if at all, observed by the DA."
Huisamen said that the DA subsequently seemed to have realised that their impromptu termination of Manyati’s membership during the lunch adjournment at the council meeting was premature.
He said that the DA’s internal disciplinary documents clearly indicated that, as far as the DA was concerned, Manyati's membership as a DA councillor officially ceased, one day after the council meeting took place.
"The DA should furthermore, and in any event, have been fully aware of the provisions of its own constitution, which would have made a termination of Manyati’s membership on 27 August 2018, without any prior notification to him, and without affording him an opportunity to present his case, impossible."
The court essentially found that on the day Trollip was booted from office, there was a quorum and Manyati remained on as a duly elected councillor for the DA.
The court found that the DA's purported termination of Manyati's membership was "unlawful" and in conflict with the Patricia De Lille judgment: "There was therefore factually no vacancy at any point on 27 August 2018 and because there was no vacancy there was, at all material times, a quorum of 61 councillors."
On the issue of City Manager Johan Mettler, he conceded to a mistake by retracting a vacancy he had earlier declared. Another downfall of Mettler was his failure to return to the meeting after he had been advised that the meeting was at all material times quorate.
The court found that Mettler made himself unavailable by not answering his phone and refusing to return to chambers. Huisamen said that MEC Fikile Xasa "validly proceeded" by sending a senior official to preside over the meeting which ultimately led to the election of Speaker Buyelwa Mafaya of the ANC.