The DA needs to finish the disciplinary process it started against Patricia De Lille, rather than finding "contrived ways" to get rid of her, advocate Dali Mpofu has argued in the Western Cape High Court.
The Democratic Alliance and Cape Town Mayor Patricia De Lille met in court on Monday for the first day of her long-awaited review of her supposed resignation from the party.
The DA on May 8 "determined" that De Lille had self-resigned from the party, under a clause in its constitution, after reportedly saying she would "walk away" upon clearing her name, during a Radio 702 interview in late April.
The DA maintains that De Lille's expression showed intent to leave the party, which was grounds for her membership to be terminated. De Lille has said that she only said she would leave her position as mayor, and that in any case, the statement was conditional.
Mpofu led the attack for De Lille, saying the DA's use of an internal clause to "incorrectly" terminate her membership, had undermined the public reasons it had given for her removal.
De Lille had been accused of various acts of misconduct and maladministration in the City of Cape Town for over a year, Mpofu said.
In an internal pamphlet sent to members, after De Lille's removal on May 8, the DA re-listed all its reasons for wanting her out as mayor, including the various allegations of poor governance.
"The DA can't have it both ways. It can't hold on to the charges against Patricia De Lille, ventilate them in public, but then use 'subterfuge' [of internal party mechanisms] to remove her," Mpofu told the court.
Mpofu claimed the DA had used various "shortcuts" to get rid of De Lille after her legal removal in the council, through a motion of no confidence, failed by one vote in February.
Both the party's adoption of a "recall clause", which he called a "De Lille clause", and the use of the supposed "cessation clause" were unconstitutional, and violated her rights to natural justice, he argued.
The DA should finish its stalled disciplinary processes against her, he continued. A political solution should have been found, rather than parties trying to interpret in court whether she wanted to resign or not.
"Ultimately, we should not be here in court. We are here for one reason only: the DA's contrived attempts to get rid of Patricia De Lille. The court must send a message," he said.
De Lille's disciplinary hearing was indefinitely postponed in March after one of the judges recused himself.
Eusebius McKaiser question
When grilled by Judge Mark Sher about the nature of De Lille's words on Radio 702, Mpofu said it was important to note what De Lille had said, rather than what talk show host Eusebius McKaiser had said.
McKaiser was clear that he was asking if she would leave the party upon clearing her name.
However, De Lille's answer, that she was walking away "from there" and from "that position", showed she meant she would leave her position as mayor, and not the party.
Her future thereafter, in any case, was "unclear", which she admitted in the interview, showing there was a lack of actual intention to leave the party outright, Mpofu argued.
De Lille had also said that she would only "walk away" after clearing her name, showing that what she was proposing was conditional.
Other party members had made similar conditional statements about resignation prior to the incident, like DA leader Mmusi Maimane and MP Phumzile van Damme, but were never determined to have resigned from the party, he said.
"In any case, the radio interview is only the last point the court must consider," Mpofu continued.
The court first needed to get through the first three hurdles of challenging the DA clause's constitutionality, its fairness, and the fact that it was "incorrectly applied".
The last point alone, which would be argued by his colleague after lunch, would show that the DA had incorrectly set up a federal legal commission panel when making its "determination".
The letter sent to the city council was also erroneously sent.
"If that falls apart, then the whole case can't survive [regardless of intention]," Mpofu said.
He began his argument by saying the DA's use of the cessation clause undermined De Lille's - or any member's - right to freedom of speech, association and the right to hold office.
Judge Andrew Le Grange asked how the DA's clause limited the applicant's right to be a part of the DA, or express herself.
According to the DA, the only test was to utter the words, 'they resign', Mpofu responded.
"So it doesn't matter if you were 'high on drugs' or 'sleepwalking', you are gone by just merely uttering the words, with no 'unequivocal intention'.
"If your removal from the party of your choice can be so easy, that threatens your right to freedom of expression and association."
Lastly, Mpofu argued that De Lille's removal should have gone through the Cape Town City Council.
The DA had previously failed to do that, and thus her removal through internal mechanisms infringed on her rights in the council.
"It doesn't matter if I as a citizen, or anyone else, loses confidence in her. The body that elected her as mayor, the council, must remove her as mayor," he said.
He finished the same way as he started.
"Patricia de Lille's removal has never been about her membership of the DA, but to remove her as mayor of the Cape Town city council," he said.
He challenged the courts to take a dim view that political decisions were coming to court.
Mpofu's colleague, advocate Johan de Waal, will argue the merits of the DA's processes in activating its cessation clause after the lunch adjournment.
Advocate Sean Rosenberg, for the DA, will rebut thereafter.