The DA have argued that Gauteng Cogta MEC Lebogang Maile's decision to suspend Tshwane speaker Katlego Mathebe should be put on hold pending a legal review as she would not be able to represent the DA's interest in council.
The DA approached the Gauteng High Court in Pretoria on Friday, seeking interim relief against Maile's decision to suspend both Tshwane speaker Katlego Mathebe and DA's former speaker of Johannesburg Vasco da Gama, as they launch a review application.
In a founding affidavit submitted to court, seen by News24, Mathebe argues that Maile's decisions were unlawful and irrational. She further adds that the effect the decisions will have, are extreme.
"They will prevent democratically elected councillors from representing the voters who elected them. As such, the decisions will cause immediate prejudice to the DA as well as the residents of Tshwane and Johannesburg," Mathebe said in her affidavit.
"This prejudice is further aggravated in Tshwane as I am the speaker of the Tshwane Council."
Mathebe said Maile's decision to suspend her would achieve what the "ANC and EFF have, despite multiple attempts, failed to accomplish through lawful means".
The speaker was referring to the removal of herself and mayor Stevens Mokgalapa through motions of no confidence that have been tabled several times in council, but never succeeded, either through technicalities or a failure to keep council in quorum.
"For the whole of the time that the suspension lasts, I will be unable to attend and vote in council and represent the interests of the DA in council. This harm will be irreparable, even if the suspension is ultimately set aside on review," Mathebe said.
Maile is a member of the ANC
The DA has also argued that politics plays a role in the suspensions by Maile as he is also a member of the ANC.
"It seems clear that the MEC has used his disciplinary powers to suspend me from council, not on the basis of a lawful finding that I have breached the code, but to ensure my removal from council (which is an outcome that the ANC in council has been trying to achieve since December 2019, and which it has been unable to achieve by lawful means)."
"I am advised and submit that the MEC's purported use of his disciplinary powers for the purpose of removing a political foe from the position of speaker in a municipal council constitutes a grave breach of the separation of powers and cannot be countenanced by this court."
The DA wants the urgent application to be heard before the next ordinary council sitting on January 30. In their papers they argued that while the DA will be launching a review against the resolutions by Maile, if the decision to suspend Mathebe is not put on hold, it will cause significant harm.
"I also anticipate that, in my absence, the ANC or EFF intends to move urgent resolutions to secure its political purposes, such as a motion of no confidence in me, the acting municipal manager and the executive mayor."
Mathebe argued that if Maile's decision is not set aside, it would lead to further legal challenges as decisions taken in her absence would be open to legal scrutiny.
"If we are unlawfully prevented from fulfilling these roles, any decisions taken by our respective councils will be unlawful and reviewable."
Decision to suspend unlawful
The DA contends that Maile did not have the powers to suspend either Mathebe or City of Johannesburg's former speaker Vasco da Gama, as he can only exercise such powers in response to a request from a municipal council.
"Neither the Tshwane Council nor the Johannesburg Council requested the MEC to take the steps he did. Nor was there any investigation or recommendation by either council or any special committee of either council," Mathebe said.
"Accordingly, the decisions were ultra vires, unlawful and stand to be set aside on the principal of legality."
Mathebe also defended her actions in both special council sittings that Maile referred to as his reasons for suspending her.
"In short the Decision Document does not disclose any facts which allows the MEC to conclude that I have breached item 2 of the Code of Conduct by failing to fulfil my office duties honestly, transparently and in good faith or by failing to act in the best interest of the municipality without compromising its integrity or credibility."
"From this it is apparent that the MEC's decision in relation to me was inherently irrational and also not rationally connected to the material before the MEC. Accordingly, the MEC's decision to suspend me was irrational and falls to be set aside."
Maile previously said the decision to suspend both councillors was consistent with the law and he was prepared to go to the courts to defend the decision.
He added that the decision was "impartial to avoid any accusation of tilting the balance of forces in councils to favour a particular political party".
"It is imperative to note that these decisions are based on strengthening local government by ensuring those elected into positions of responsibility carry out their work in the best interest of the electorate," Maile said.