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Bobani vs Trollip: PE High Court hears arguments over NMB Mayorship

By Afikile Lugunya - Sep 13, 2018
Bobani vs Trollip: PE High Court hears arguments over NMB Mayorship

The Port Elizabeth High Court on Thursday began hearing a case brought by the Democratic Alliance (DA) coalition that it sets aside the election of Nelson Mandela Bay Municipality Executive Mayor, Mongameli Bobani, and the subsequent appointment of his Mayoral Committee.

Former Nelson Mandela Bay Municipality, Athol Trollip, who is leading the legal challenge, was removed from office following a dramatic series of events that began with one of the DA Councillors, Victor Manyathi, abstaining from voting and aiding in the removal of the DA’s Jonathan Lawack as Speaker.

The DA led-coalition is presented by Advocate Olav Harold Ronaasen while Eastern Cape MEC for Corporative Governance and Traditional Affairs (CoGTA), Fikile Xasa; Manyathi; new Speaker Buyelwa Mafaya; Bobani; his new Deputy, Tshonono Buyeye; Pumelele Ndoni, the African National Congress (ANC) and the Economic Freedom Fighters (EFF) have roped in the services of celebrity advocates, Themba Ngcukayithobi and Dali Mpofu.

Ronaasen told the PE High Court that the applicants – the DA coalition, have brought the legal challenge based on a dispute of whether there was a quorum in the Council as Trollip and his Mayoral Committee were removed in absentia.

In the 120-seat Council, 61 councillors need to be in the chambers for a quorum and it would seem that only 60 councillors were present.

He argued that the meeting should be declared unlawful due to the fact that the Municipal Manager, Johann Mettler, adjourned the meeting because he saw that "there was no quorum”.

It is after Mettler had adjourned the meeting that Trollip and his Mayoral Committee were removed after the intervention of MEC Xasa.

Their legal challenge is based on Section 36(3) of the Municipal Structures Act (117 of 1998), which states that, “The municipal manager of the municipality or, if the municipal manager is not available, a person designated by the MEC for cooperative governance and traditional affairs in the province, presides over the election of a speaker”.

"After City Manager, Johann Mettler, left the chamber having declared that the meeting did not quorate, Eastern Cape MEC for Cooperative Governance and Traditional Affairs, Fikile Xasa, erroneously invoked Section 36(3) and designated an individual to preside over one item: The election of a Speaker," the parties argue.

"It is an undisputed truth that the City Manager, Johann Mettler, was in fact at all times available and remained so for the full duration of this unlawfully convened continuation of said council meeting.

"As such, the election of a new Speaker, the subsequent passing of a Motion of No Confidence in the Executive Mayor, the election of a new Executive Mayor and the election of a Deputy Executive Mayor, were all illegal and invalid."

He further argued that the secretariat also left the meeting therefore, there are no official records of that meeting - "nobody knows what happened in that meeting."

"Meetings cannot proceed without the secretariat," Ronaasen, adding that "there were no attempts to get the secretary back [into the Council Chambers] after she walked out”.

Arguing for the respondents, Dali Mpofu said that there are three points to the arguments, which are the membership of the DA Councillor, Manyathi, if there was a quorum or not and the availability of the City Manager, Johann Mettler.

He argued that there are four letters that deal with the termination of Manyathi's DA membership which were written on the 27th, 28th, 29th of August and the 4th of September.

Mpofu said that there is no way that the dates were a typo, “but the DA is confused”.

He further added that DA’s own rules state that all proceedings must be followed when terminating someone's membership.

Mpofu argued that Manyathi was practicing his democratic right by abstaining from voting and leaving the DA members at the meeting, which is written and advocated by the party.

He added that James Selfe heard rumours and wrote a letter of suspension of Manyathi without following DA procedures.

Dealing with the availability of Mettler, Mpofu argued that when Mettler left the Council Chambers, he simply declared his non-availability.

"Pointing a gun on my head won't make me available," Mpofu jokingly said in court.

He also read Whatsapp messages from Trollip and Mettler where at some point, Trollip said; "I walked out from the meeting."

Mpofu argued that the minute Trollip said those words; he was admitting that he knows that a meeting is continuing, however, he chose to make himself unavailable.

Apparently, when Mettler wrote to Trollip proposing the meeting be adjourned to the following day, Trollip said: “You're too kind, let's continue the meeting in five days."

Mpofu said that was simply suspicious.

He further argued that the DA took a calculated risk, which sometimes works and sometimes doesn't work, but this time it didn't work for the reason that Manyathi stayed behind and voted with the opposition parties that eventually kicked out the DA-led coalition.

The court adjourned for lunch, and resumed at 14:15 – more to follow.

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