The effect of non-compliance with federal constitutions

September 1st, 2018
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De Lille v Democratic Alliance and Others (WCC) (unreported case no 7882/18, 27-6-2018) (Le Grange J, Mantame J and Sher J)

By Staci Jacobs

On 27 June, the Western Cape Division of the High Court set aside the determination by the opposition party, the Democratic Alliance (DA) that the applicant, Patricia De Lille had ceased to be a member of the DA in terms of clause 3.5.1.2 of its Federal Constitution.

Factual background

De Lille held the office of executive mayor since 2011. More recently, the DA initiated internal disciplinary proceedings against De Lille in respect of various alleged irregularities, which she engaged in while in office as mayor.

In February, members of the DA caucus proposed a motion of no confidence, which failed by a single vote. Pursuant to this, the DA amended its Federal Constitution by inserting a ‘recall clause’, which states that:

‘[I]f a member of the party who holds executive office … has lost the confidence of his/her caucus the Federal Executive … may, after giving him/her the opportunity to make representations to it, resolve to require such member to resign from office within 48 hours, and a failure to do so will lead to cessation of membership of the party in terms of [clause] 3.5.1.10 of its constitution.’

Clause 3.5.1.10 further provides that:

‘3.5.1 A member ceases to be a member of the Party when he or she:

3.5.1.10 fails to resign his or her position after the procedures stipulated in
[clause] 6.2.6.3 have been followed.’

Accordingly, the procedure to be followed is that, prior to proposing a motion of no confidence in a member, the caucus is required to obtain the consent from the Federal Executive. On 18 April, the caucus obtained the requisite consent to invoke the recall clause, and a further motion of no confidence was brought on 25 April, which succeeded with the required majority.

On 3 May, De Lille was informed that her membership had ceased to exist as a result of a public declaration, which she had allegedly made during the course of a radio interview on 26 April, following the outcome of the successful motion of no confidence. The statements made by De Lille essentially pertained to whether she would ‘walk away’ from the DA and/or her role as mayor, once she had ‘cleared her name’. Importantly, the DA’s Federal Constitution provides that a person ceases to be a member when they publicly declare their intention to resign from the party (the cessation clause).

In accordance with the rules of the  DA’s Federal Legal Commission, De Lille was given 24 hours to provide ‘clear and unequivocal’ reasons why her membership had not ceased, which she did timeously, and in which she denied that the cessation clause had application to the statements made during the radio interview.

On 6 May, the DA’s Federal Legal Commission appointed a panel to consider De Lille’s submissions, and to make a determination on whether De Lille’s membership had ceased. The panel found that De Lille’s membership had indeed ceased, and accordingly recommended that the Federal Executive confirm the cessation. On 7 May, the Federal Executive confirmed the cessation of De Lille’s membership.

As a consequence of the above, De Lille instituted legal proceedings to have the aforementioned determination reviewed and set aside.

The issue before the court was whether the DA complied with its Federal Constitution and its rules when it decided to invoke the cessation clause.

Judgment

In considering this issue the court had to determine whether the provisions of the cessation clause found application.

As mentioned above, the cessation clause provides that a person ceases to be a member when they publicly declare an intention to resign from the party. In this regard, De Lille claimed that the statements made pertained only to ‘a possible expression of an intention to resign as Mayor after she had “cleared her name” and did not constitute the expression of an intention to resign from the party’. However, the court held that: ‘For the purpose of this judgment we have assumed, in favour of the DA, that the jurisdictional pre-requisites which were necessary for the clause to find application, were present.’

Notwithstanding this, the court went on to find that even though the cessation clause found application, it did not necessarily mean that De Lille’s membership had ceased – the implication being that something more was required.

The DA contended that the cessation clause operated automatically. In considering this contention, the court had regard to the DA’s Federal Legal Commission rules, which dealt with the cessation clause, and found that the rules required that ‘there be a determination of the cessation by [the DA’s Federal Legal Commission] panel, which is then confirmed by [the Federal Executive]’.

After analysing the composition of the DA’s Federal Legal Commission panel, the court found that the panel had not been properly constituted in accordance with the DA’s Federal Constitution. On this ground alone, the court found that the DA’s non-compliance with its own Federal Constitution amounted to an irregularity, which justified a ground for review.

In this regard, the court held that where the DA’s Federal Legal Commission’s panel has not been properly constituted in accordance with the party’s Federal Constitution there cannot be a valid determination made that membership has ceased, and furthermore, there can be no valid and effective confirmation of such a determination.

In addition to this, the court also found that the DA had failed to comply with ch 10 of the Federal Constitution, which required that before making an adverse finding against De Lille, they were to give her an opportunity to submit evidence in mitigation.

In conclusion, the court found that the DA failed to comply with the provisions of its own Federal Constitution when it decided to invoke the cessation clause. As a result of this material defect, the determination that De Lille’s membership had ceased was set aside.

Conclusion

This judgment highlights the importance of political parties acting in strict adherence to their own constitutions. The failure of a party to comply fully with its constitution may amount to a fundamental irregularity, which could render its actions ultra vires and invalid. Consequently, all further decisions in lieu of such conduct will also be found to be invalid.

Staci Jacobs BSocSci LLB (UCT) is an attorney at Webber Wentzel in Cape Town.

This article was first published in De Rebus in 2018 (Sept) DR 34.

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