A bruising high court ruling that reinstated Cape Town mayor Patricia de Lille as a DA member has the party scrambling amid fears that disciplinary actions taken about seven years ago could be overturned.
“The judgment in the case impacts not only on the applicant’s (De Lille) disciplinary processes, but also on all disciplinary processes conducted by the DA’s federal legal commission (FLC) since 2011 when the FLC was first appointed in this manner by the federal executive (FedEx) and federal council and all members who have previously lost their membership in terms of clause 3.5.1 without being given the opportunity to present mitigating evidence to FedEx,” the DA argued in court papers.
“This includes many members who were public representatives at the time, and would accordingly have unlawfully lost their membership of the respective legislative bodies.
“It is in the interests of justice for the correctness of this court’s determination to be tested by a court on appeal,” the DA papers stated.
The party has started its fightback against the Western Cape High Court judgment which effectively reinstated De Lille as a DA member.
Last month, a full bench of the court found the party had flouted its own rules when it sacked De Lille.
Judges Andre le Grange, Mark Sher and Pearl Mantame unanimously set aside the party’s decision to terminate her membership.
But the DA argues that when the DA established its 2015 FLC panel, De Lille, who was then the leader of the Western Cape DA, was among the nine provincial leaders who recommended who should be in the FLC.
“A member can only rely on non-compliance with a party constitution if she is able to demonstrate that the non-compliance caused the member prejudice.
“The establishment of the FLC in 2015 - in which De Lille participated - did not cause the applicant (De Lille) any prejudice.
“It was, at worst, an inadvertent error that had been normalised over three years through the active conduct of both the DA and De Lille,” the party argues.
Responding to the news of the appeal, De Lille tweeted: “I respect the DA’s right to appeal the recent high court judgment. After all, a fair trial includes the right to appeal.”
The DA also argued that the judges erred in concluding that there must be strict compliance with a party’s constitution, and that any non-compliance no matter how insignificant, must automatically result in invalidity.
“Non-compliance does not automatically result in invalidity. The application of a political party’s constitution, at least when it affects the membership of legislative bodies, is a constitutional matter, and courts have the power to grant any order that is just and equitable,” the DA argued.
The party also argued that the judges erred in not considering whether, even if the DA did not comply with its clauses in 2015, that an alternative remedy other than invalidity could follow.
The high court is yet to indicate whether it will consider the application.