Patricia De Lille VS The DA: What The Law Says

On Friday 10 May, Patricia De Lille will head to court to challenge the many decisions that have been made about her political future primarily her position as the mayor of Cape Town and her expulsion from the Democratic Alliance (DA) on the basis of a so-called “cessation clause.” We spoke to Phephelaphi Dube, the director at the Centre for Constitutional Rights to make sense of what this all means as De Lille and the DA head to court.

On Monday, the DA announced that her membership has been rescinded and that she was consequently no longer the mayor of the City of Cape Town.

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According to the DA’s federal constitution’s clause, which deals with the rescinding of membership, a member of the party has their membership revoked if they publicly declares his or her intention to resign and/or publicly declares his or her resignation from the Party.

The party says that De Lille announced her decision to leave during an interview on 26 April with Eusebius Mckaiser on Radio 702. It was on this basis that the party announced on Monday that her membership had been revoked.

Furthermore, within the DA’s constitution, clause 3.5.2 states that a member, who ceases to be a member of the party, loses all privileges of party membership and, if that member is a public representative, he or she also loses the office which he or she occupies by virtue of his or her membership with immediate effect. Deputy Mayor, Ian Neilson announced soon after on Monday that he was now the mayor of Cape Town.

Are there any constitutional grounds for De Lille to challenge the “cessation clause” in the DA constitution?

First of all you need to take the position that everybody, in terms of the constitution, is entitled to have their grievances heard, so on that basis Patricia De Lille has the right to approach the court to challenge the DA’s case. That’s the the overall reasoning behind her approach.

But secondly, the issue becomes whether the DA’s rules are in line with any acceptable legal authority and whether the DA’s rules that led to Patricia’s membership being rescinded are constitutional.

The DA has basically said that the utterances she made on Eusebius’ show – the fact that she indicated that at some point she would leave the DA – and on that point the DA says it is in contravention of their rules because their rules are clear that if you indicate at some point that you will like to leave the party, then they deem that as you giving up membership of the DA.

So Patricia’s response is that the DA first of all misunderstood and took the context wrongly and secondly, in any case, she is entitled to express herself freely and she can do that without any kind of consequence. I think based on that I’m not sure if the DA’s case is the strongest case going forward.

I think if a court was to review that particular rule and further consider Patricia De Lille’s action in that regard, I’m not sure that the DA has a strong enough case because Patricia simply indicated an intention to at some point leave the party whereas the rules are clear that it’s just about intention, it’s about following through with your action. For me the concern is that they seem to have taken that, even though Patricia didn’t act on her words, but the DA’s interpretation on what she said constituted the actual act so I think there’s a disconnect between the wording (in the clause) and the DA rules, and what Patricia De Lille actually said.

In terms of the clause that says a person whose membership is revoked can no longer hold public office, is that constitutional?

Yes, that’s perfectly in line with the Constitution because we no longer have floor-crossing and because we no longer have floor-crossing or because floor-crossing is no longer allowed. It means that elected representatives are in those positions because they belong to a party and once you no longer belong to a political party, then it stands to reason that you are no longer entitled to that particular seat because all seats are representative of a particular political party, and we’ve moved away from floor crossing and floor crossing is no longer allowed so that in its own is still part of the Constitution.

The same rule applies to parliamentarians in that you have to belong to a political party in order to remain a member of Parliament. And the same rule applies to provincial legislatures. It is very much in line with the Constitution.

Did the deputy mayor Ian Neilson act in accordance with the Constitution when he declared himself acting mayor?

That’s where I kind of had a problem. In terms of the Local Municipality Structures Act, the only way that a mayor can be removed from her office is if party membership is withdrawn firstly and secondly if she is voted out through a motion of no confidence by the city council. So we need to consider that the motion of no confidence against her failed and secondly that Patricia De Lille is challenging before a court of law, she’s challenging the DA who have rescinded the membership of the party so the fact that she’s challenging the court applications means that unless and until the court gives its final word on whether or not she remains a member of the DA, it means that she still remains the mayor of the City of Cape Town.

How do you see the case going?

It’s a bit difficult to judge in that the sense that obviously the relationship has broken down to that extent. It’s quite clear that the feeling is mutual in that she obviously doesn’t want to be in the party and the party doesn’t want here and it’s as if she’s litigating to leave the party on her own terms. So it’s quite clear that her endpoint is really for her to leave the party in any event and all she wants is to leave the party on her own terms and I’m not sure if that alone is a strong enough legal case going forward because it’s quite clear that both parties obviously they are not longer interested in being together in the same room.

Will the DA have to change the clause if De Lille succeeds in her case?

Well if you take the view that the Constitution is the ultimate law of the country and that all laws including the laws of parties need to fall in line with the constitution so if the court does that the DA’s rules are unconstitutional, then the DA will have to change the rules.

Featured image via Wikimedia Commons