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'No pity for the DA' How Adv Themba Ngcukayithobi pocked holes in coalition's case

By Afikile Lugunya - Sep 14, 2018
'No pity for the DA' How Adv Themba Ngcukayithobi pocked holes in coalition's case

There should be no pity for the Democratic Alliance (DA) and its coalition partners, Advocate Themba Ngcukayithobi told the Port Elizabeth High Court, which on Thursday heard the parties’ application that the election of Nelson Mandela Bay Municipality Executive Mayor, Mongameli Bobani, be set aside.

The case was adjourned after the court heard arguments from both the DA coalition and the respondents, who include Eastern Cape MEC for Corporative Governance and Traditional Affairs (CoGTA), Fikile Xasa; rogue DA councillor, Victor Manyathi; Bobani and his Mayoral Committee.

Advocate Ngcukayithobi told the court that the DA prematurely left the August 27th Council meeting, later City Manager, Johann Mettler, sent a message to Trollip and informed him that he will be seeking legal advice and continue the meeting the following day.

"The DA made its bed when they left the Council meeting. When it left, it knew that it was leaving a meeting behind.

"My Lord, why is a party that claims to represent the ratepayers of this municipality be treated with pity by the court?” Ngcukayithobi asked Judge Johann Huisamen.

"You walked out of your political responsibility after you have been elected and now you want the court to reinstall you?"

Ngcukayithobi emphasized to Judge Huisamen that the DA led-coalition left the meeting knowing very well that the meeting would continue without them.

"When they left, the municipal manager, Johann Mettler had not made a declaration and, in law, it is outrageous to make a second notice because it is not a notice of a second meeting, but an item in the agenda."

DA Councillor Victor Manyathi's membership

He further argued about the date that the DA terminated the membership of one of its Councillors, Victor Manyathi, whose choice to abstain from voting resulted in the removal of then Nelson Mandela Bay Municipality Council Speaker, Jonathan Lawack – and the subsequent removal of Trollip and the DA-led coalition government.

He was summarily fired from the DA.

Ngcukayithobi told Judge Huisamen that the letters of termination do not state the exact of date that Manyathi's DA membership was terminated, but they just show dates when they were written.

"Under the Constitution of the DA, there are processes that have to be followed and we know that those processes had to be followed on the 28th of August to confirm the termination of the membership. So, for the DA to say that they wrote a letter to Manyathi on the 27th of August doesn't mean anything."

He said that the fact that the DA’s Federal Legal Commission (FLC) processes where followed on the 28th, means the termination could only be confirmed on the 28th.

"We also know legally that the DA makes it clear that until those processes are followed and confirmed by the Federal Executive Council, membership is not terminated."

He added that it makes no sense – according to the DA's own processes, his membership could only have been terminated on the 28th.

On the 27th of August, it was only the Federal Executive that met, but the Federal Legal Commission had not met.

Coming to the issue of the election of Bobani and a new Speaker, Advocate Ngcukayithobi said that what the DA led-coalition is try to argue before the courts is factually inconsistent with the Constitution of South Africa, the DA’s own Constitution and with common logic.

The matter of the un/availability of Johann Mettler and MEC Fikile Xasa's intvervention

In Trollip’s affidavits, which Ngcukayithobi read in court, the DA coalition argues that Mettler was available by email, cellphone, landline and in his office right across the road at City Hall, so there was no need for MEC Xasa to intervene at the Council Meeting.

The DA coalition's 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."

Ngcukayithobi said that newly-elected Nelson Mandela Bay Municipality Council Chief Whip, Bicks Ndoni, called him and begged Mettler to come back and Chair the meeting after the removal of Lawack.

However, Mettler refused and the second time he called, Mettler’s cellphone apparently rang unanswered.

Ngcukayithobi further argued that Mettler was in his office reading Whatsapp messages while he was supposed to be chairing the Council Meeting, because he had decided not to do it "because he was not interested in performing his sanctuary task”.

"This is not something that he can choose not to do because it's an obligation. The Speaker is not around because he has been booted out so he must perform this task he can't choose not to do it,” Ngcukayithobi told the court.

“When he took the job and signed a contract while taking a substantial amount of salary, he knew that one day I must reside over the elections of the Speaker, but he just chose that today I'm not doing it.

"That version in the founding affidavits of Mr Ndoni reveals that Ndoni spoke to Mettler for 36 seconds where Ndoni begged him to come, but he refused while Jenny Roestorf [from Eastern Cape CoGTA] phoned him twice and he didn't answer."

Referring to Section 36 of the Constitution, Ngcukayithobi said that there is no way on the facts presented that on a proper interpretation of Section 36 that the court could come to a conclusion that Mettler was available.

“Even if he was there, he chose to fold his arms that would count as unavailability.”

So MEC Xasa had to intervene so that the Council meeting can proceed to elect a new Speaker.

The ANC's Cllr Buyelwa Mafaya was later elected as the new Council Speaker.

Afterwards, Trollip and the DA coalition were ousted in absentia and Bobani elected as the new Nelson Mandela Bay Municipality Executive Mayor.

Image: Representing the new Nelson Mandela Bay Municipality administration - Advocate Dali Mpofu and Advocate Themba Ngcukayithobi