The DA has lost faith in De Lille

The true test of any political party is what it does when confronted with serious allegations of corruption, maladministration and governance failures. Unlike many of our political competitors, the DA takes allegations such as these very seriously, and will always act to confront such matters, even when those decisions may carry a possible political cost.

In October last year, serious allegations relating to questions of good governance and maladministration against Cape Town mayor, Patricia de Lille, came to light.

To ensure that these serious allegations were thoroughly examined and tested, two separate investigations were instituted.

Investigations

The City of Cape Town’s Audit Committee appointed an outside investigator, Bowman Gilfillan, to probe allegations of maladministration. The initial report took the view that Ms De Lille had demonstrated behaviour and actions which, based on the extensive evidence before them (including the Mayor’s own representations), constituted prima facie evidence of gross misconduct, gross dereliction of duty, and conduct that amounted to deceiving Council.

Specifically, that:

Regarding the payments to Volvo for bus chassis, when the City Manager (CM), Achmat Ebrahim, attempted to report to Council about irregulates regarding these payments “he was ultimately precluded from doing so by the instructions to the contrary from the [Executive Mayor] EM.” The report states further that “The CM’s version in his defence gives rise to a serious concern about the conduct of the EM in relations to this allegation …” and “…on the CM’s own version, and supported by the documentation referred to above, the CM, the EM, and possibly a number of other officials may be guilty of inter alia gross misconduct with regard to their failure to report the matter to Council, as was clearly required.”

The Bowman’s investigation found that Ms De Lille failed to submit the report on allegations that the Commissioner of Transport of Urban Development Authority, Melissa Whitehead, attempted to interfere in the bid evaluations process for the Foreshore Freeway Precinct project. Specifically, that “…in view of the compelling evidence presented to the EM by the CM, the EM was obliged to present the dossier [on the Foreshore Freeway Precinct] to Council for its consideration” and that “…we recommend that … the Council directs that an investigation be conducted into the failure of the EM to report the matter to Council.”

This investigation has since been extended and is still ongoing.

Around the same time, the DA’s Federal Executive felt it necessary to establish an enquiry into obvious political tensions in the Cape Town Caucus as well as a growing list of substantive complaints about the nature and style of the Mayor’s internal leadership. This enquiry was chaired by John Steenhuisen MP and found that Ms De Lille has failed in her duties and responsibilities, has brought the Party into disrepute and her actions were detrimental to internal co-operation within the party. Specifically:

• Evidence of deep divisions within the caucus of the City of Cape Town exist. These divisions were shown to have been a result of Ms De Lille’s leadership style which is overwhelmingly viewed as unnecessarily autocratic, divisive and misaligned to democratic principles of openness and tolerance;
• The organisational restructuring led by Ms De Lille appears to have been used in certain instances to remove experienced officials in the City, with a view to replacing them with officials whose loyalty to her was prized over all else;
• Decision making structures had been stripped of powers and functions, seemingly with a view to centralise overwhelming power in Ms De Lille, undercutting the authority and democratically enshrined role of the Mayoral committee, portfolio committees and sub-councils, as well as the DA’s commitment to bringing government as close to the people as possible;
• It appears that the Ms De Lille interfered with and manipulated appointments at a senior management level within the City and some of its entities; and
• A growing sense of a loss of confidence by the caucus in the leadership of the Mayor which affected governance in the City negatively and undermined effective service delivery.

Effectively, both investigations came to similar conclusions and necessitated that disciplinary action be instituted against Ms De Lille.

The DA has treated the numerous allegations against Ms De Lille very seriously precisely because they are very serious and due to the weight of the findings against her.

Auditor-General findings

At the end of January 2018, the findings of the Bowman’s report were supported by the fact that the Auditor-General (AG) downgraded the City’s audit status from clean, to unqualified with conditions. This downgrade was the direct result of the conduct of the Mayor herself.

The AG report found that:

• “An effective system of internal control for revenue was not in place, as required by section 64(2)(f) of the MFMA. This non-compliance was identified for the system of internal control over the management of revenue from the MyCiti bus services.”;
• “Allegations of financial misconduct against senior managers were not always tabled before Council, as required by section 120 of the Municipal Systems Act, 2000 (Act No. 32 of 2000) in conjunction with Regulation 5(2) of the Disciplinary Regulations for Senior Managers, 2010.”;
• “Bid specifications for a tender [MyCiti Bus] was drafted in a biased manner and did not allow all potential suppliers to offer their goods or services, in contravention of Regulation 27(2)(a) of the Municipal Supply Chain Management Regulations, 2005.”;
• “Leadership did not exercise adequate oversight responsibility regarding consequence management to ensure compliance with the provisions of disciplinary regulations for senior managers.”;
• “Leadership did not exercise oversight responsibility by ensuring the procurement process followed by the City was fair and equitable”; and
• “Management did not sufficiently monitor and review the processes implemented to ensure revenue transactions relating to the MyCiti bus services were effective to prevent losses as required by the MFMA.”

This is wholly unacceptable and is not in line with the DA’s commitment to clean, open and accountable governance.

Decision to charge

On the 14^th of January of this year, based on the findings of the Bowman and Steenhuisen investigations, the Federal Executive resolved that the Mayor be formally charged and investigated by the Party’s Federal Legal Commission (FLC).

The charges brought against Ms de Lille include that she is guilty of alleged misconduct in terms of the following sections of the Federal Constitution:

• 5.4.2 deliberately acts in a way which impacts negatively on the image or performance of the Party;
• 5.4.4 fails to carry out his or her duties and/or responsibilities according to standards set by the Federal Council of the Party or of the relevant Provincial or Regional Council, or to standards required by any statutory rules of conduct required by the public office he or she holds;
• 5.4.5 brings the good name of the Party into disrepute or harms the interests of the Party;
• 5.4.6 acts in a manner that is unreasonable and detrimental to internal co-operation within the Party;
• 5.4.7 unreasonably fails to comply with or rejects decisions of the official formations of the Party.

Disciplinary hearing

Since the institution of charges against her, there has been a concerted and deliberate effort by Ms de Lille to peddle alternative facts relating to her disciplinary hearing in a transparent attempt to garner public sympathy. It is important to set these alternative facts straight.

After being referred to the FLC, in the first 30 days there was much back and forth between the FLC and Ms de Lille’s lawyers and the matter has been treated with the urgency it deserves.

On 18 January 2018, the FLC wrote to Ms de Lille informing her of the referral of charges. Six days later, Ms de Lille’s office acknowledged receipt of the letter on 24 January 2018.

On 31 January, the charge sheet was emailed to Ms de Lille legal representatives and on 1 February we received confirmation that the charge sheet had been referred to Ms de Lille.

The hearing was then set for 5 March 2018. Ms de Lille requested a postponement which was granted, and the panel the set the hearing for 20 to 22 March, which was agreed to.

In the meantime, Ms de Lille launched two court applications – one to review and set aside Steenhuisen Report and other to affirm that there would be no adverse consequences for any member of caucus members who voted for her in the Motion of No Confidence against her.

Ms de Lille and her legal team have employed all manner of tactics to frustrate and delay the process, including the submission of various points in limine to avoid dealing with the merits of the matter, which have deliberately delayed the proceedings. At the same time, Ms de Lille has claimed in the media that she wishes to conclude the case as soon as possible, which are disingenuous at best and barefaced lies at worst.

Various points in limine

Public hearing

Ms De Lille has requested that the hearing be open to the public. The DA is a voluntary organisation, whose members are bound by its Constitution and Rules of Practice. Internal party disciplinary issues are not generally open to the public since it is a contractual relationship in which the public has no input or interest.

The hearing will be conducted in accordance with the Federal Constitution of the DA, and in accordance with the Rules of the FLC, all which Ms De Lille bound herself to when she became a member of the DA.

These processes and procedures are followed in all disciplinary matters, regardless of who the member is.  Ms De Lille, having herself served on the Federal Executive of the DA for many years, and viewed the disciplinary process up close, had no issue with it until now.

In deciding on this matter, the Federal Legal Commission (FLC) looked to case law in applying the prescripts of the DA’s Federal Constitution and as established in numerous cases. Specifically, that:

• A political party is a voluntary association based on mutual agreement (Matlhowa vs Mahuma & Others [2009[ 3 All SA 238 (SCA));

• The relationship between a member of any voluntary association is of a contractual nature (Constantinides v Jockey Club of SA 1954(3)54(C) etc); and

• Rules of association … ultimately derive their legal effect from the acceptance, by the members, of the terms and conditions of the association when they join the group. Therefore, if the Federal Constitution and the Rules of the FLC are silent on the issue of whether disciplinary hearings of the Party are to be conducted in public or not. The well-established practise of the Party to not open hearings to the public must be regarded as part of the terms and conditions of the contract between them (Mcoyi and Others v Inkatha Freedom Party etc). It is a well-established practice of the Party that disciplinary hearings are conducted in private. A fact that Ms De Lille is aware of, having herself served on the Federal Executive of the DA for many years, in which she viewed the disciplinary process up close, and had no issue with it until now.

Should Ms De Lille choose to go to court on this matter it will be up to that court to establish firstly whether there has been a historical presumption of access and secondly whether granting access to the proceedings would contribute to the self-governing function of the private organisation.

There does seem to be an attempt by Ms De Lille to conflate the nature the of disciplinary hearing in question, which is a matter between herself as a member of the DA, and the possible disciplinary hearing she could face, as the Executive Mayor, from the Council of the City of Cape Town based on her possible non-compliance with the Code of Conduct of Councillors and legislative duties.

We do not deny that there is public interest in this matter. Where a hearing of this sort has been open to the public, the single determining factor has been that the accused was an employee of the State. In the matter currently before the FLC, Ms De Lille is appearing in her capacity as a member of the DA.

The DA has nothing to hide. We seek to uphold the prescripts of our Constitution. However, just because the hearing is not open to the public does not mean that the request for transparency can’t be met through other means. For instance, the Panel may provide a summary of the findings, with reasons, to the public.

The accusation that Ms De Lille will not receive a fair or impartial hearing is rejected as it has no basis. To suggest, as Ms De Lille does, that the hearing can only be fair if the public is able to assess it, is, of course, devoid of any truth in law or fact.

It is a well-establish principle of the party that all members are equal before the law and that all members be subjected to the internal disciplinary processes of the Party on an equal basis. Given that all other disciplinary hearings have been conducted in private, the request for the hearing to be open would come down to providing special treatment, and to treating Ms de Lille differently to all other members of the Party who face charges of misconduct.

Recusal of members of the Panel

According to the DA’s Federal Constitution, the FLC of the Democratic Alliance must develop rules for the selection of panels to hear disciplinary matters. A Panel must consist of three persons, along with the Chairperson of the Panel, who shall be a legally qualified person. All members of the Panel must be fit and proper persons.

After a matter is referred to the FCL by the Leader, the Federal Executive or the Federal Council, the FLC:

• Determines a date for the consideration of the matter and advises the parties of this date;
• Hears evidence, accepts exhibits and calls for papers and documents;
• Hears arguments by and on behalf of all parties; and
• Makes recommendations or gives a decision as it deems fit under the circumstances.

The Panel to hear the matter was appointed in the normal course from a group of individuals who make up the FLC of the DA.  The same process is followed in all matters, this one being no different.  All the members of the Panel hold legal qualifications, and all of them have practised law for many years. 

Mr Pogiso Monchusi and Mr Hans-Jurie Moolman:

The basis of the argument for the recusal of Mr Pogiso Monchusi was an affidavit, deposed by a Mr Eldrid Maheppy, and presented to the panel after 09:00 on the first day of the hearing.

It was claimed that Mr Maheppy is an attorney who has been in practice since 1984. These claims have been found to be untrue. Mr Maheppy is not an admitted attorney, nor does he practice in Potchefstroom and the address given for his practice does not appear to exist.

The affidavit contains allegations that Mr Monchusi owns a tavern in Potchefstroom, an allegation which is denied.

Essentially the allegations are not only false but have no hope of providing sufficient evidence that a reasonable apprehension of bias, as is required by law, does exist and therefore must be dismissed.

Mr Pogiso Monchusi is an admitted and practising advocate.

However, Mr Monchusi ultimately decided that he recuse himself in the interests of the panel.

Mr Hans-Jurie Moolman is a practising attorney of many years standing.

Ms Sheila Camerer

Ms De Lille contends that Ms Sheila Camerer should be recused from the Panel as she served as the Deputy Minister of Justice in Apartheid South Africa and that this means that Ms Camerer is neither competent nor suitable to hear that matter.

What Ms De Lille chooses to ignore is that Ms Camerer played an integral part in the reconciliatory process in South African in the 1990’s, served at Codesa and was also appointed Deputy Minister of Justice by President Mandela. Ms Camerer is a currently a practising attorney and served as a Member of Parliament for more than two decades as well as serving as the Ambassador to Bulgaria.

Ms De Lille also seems to have neglected to admit that she was, in fact, part of the Federal Council that appointed Ms Camerer to the FLC in 2015.

Based on the above, there is no reason to suggest that any members of the Panel are anything but totally independent and impartial. Therefore, there is no basis on which any of the members of the Panel should be recused.

Appointment of a retired judge to hear the disciplinary case

Ms De Lille has requested that a retired judge or senior advocate with no interest in the matter should be appointed to hear her disciplinary case. The DA is of the view that her request ignores the law, as set out above regarding the internal disciplinary proceedings of voluntary associations, such as the Party. The arguments provided by Ms De Lille to bolster this request regarding the recusal of members of the panel also fall flat.

In Ecclesia de Lange v The Presiding Bishop of the Methodist Church of Southern Africa 2014 ZASCA151, the court held, in no uncertain terms that “The Churches’ appointment of members to its arbitration panel from which arbitrators are appointed is entirely understandable. It is to ensure that only those persons who are familiar with eh rule, procedures and practices are appointed to the rather sensitive task of adjudicating disciplinary disputes.”

Ms De Lille’s request simply ignores the law, goes against the well-established processes which Ms De Lille has been party to for some time and would also require an amendment to the DA’s Federal Constitution, which could only be affected, if it as required, by the Federal Congress.

New panel

On 22 March, the disciplinary hearing against Ms De Lille was adjourned after Adv P Monchusi, decided to withdraw from the proceedings.

This was not an admission of any wrongdoing on the part of Adv Monchusi, as he made it clear that he was withdrawing solely to avoid any potential risk to the proceedings, subsequent to arguments being presented by Ms De Lille’s legal representative with regard to a recusal application.

Adv Monchusi chose to withdraw even before any argument was presented by the Party, in what was clearly a decision to not unnecessarily risk a delay in proceedings at a future date.

The hearing was adjourned in order for a new Panel member to be appointed. This member must be given time to familiarise themselves with the proceedings before further argument can be presented.

The hearing will proceed at the earliest possible date available to all the parties.

Various other matters raised by Ms De Lille in the media

Ms de Lille has repeatedly claimed in the media that she has a long history of corruption-busting, always referring to her work on the Arms Deal and her submission to the Steriti Commission.

However, the final report of the Commission states clearly that:

• “During cross-examination, she [Ms de Lille] was unable to explain some of the allegations in the ‘de Lille Dossier’ that she wanted the Commission to investigate…”;
• “Some of the issues she requested the Commission to investigate, particularly the pricing of the respective equipment, were incomprehensible and she refused to clarify what she wanted the Commission to investigate.”;
• Terri Crawford-Browne is quoted as saying: “… the importance of the ‘de Lille Dossier’ was not its content but the hysteria it evoked in the government and witch-hunt that followed. Patricia has brilliantly used that bizarre document for 15 years to fashion a political career including her present position as mayor of Cape Town. And of course, when it came to testifying before the Commission, the de Lille Dossier was revealed as lacking in substance.”

Problematic comments in the media by De Lille

In an interview with the Weekend Argus on 10 February 2018 (see here), De Lille is quoted as saying that:

De Lille said Selfe was among the “backroom boys’ club of white men who are running the DA”.

“It’s all white males fighting the mayor and people of colour are being used by the backroom boys’ club,” said De Lille.

“If you look at the scripted messages they put out over the past months, it’s all in the same way. And Mmusi and (DA Western Cape leader) Bonginkosi (Madikizela) have been used. They kept on repeating the same things.”

De Lille added: “These are people who think they have a divine right to rule the DA until Jesus comes. And everybody else that comes into the DA is treated like a visitor in this white boys’ club.

“They just tolerate you if you can gather some votes. It is really to grow their kingdom. They don’t like to be challenged. They are not fair.”

She added: “Apartheid could be dead but its legacy is still there. These are people who still have a baaskap mentality. They think because they are white they can tell Patricia what to do.

“Within this club you also have a number of Freemasons with an ideological conservative view. I have worked with these people for many years. I joined the DA ten years ago.”

These comments have been widely reported on and repeated.

On 20 March 2018, (see here) De Lille is quoted as saying that she will stop at nothing to clear her name.

Other problematic lines she has spun in the article, which has been covered widely and repeated across many platforms, are that:

• "They have always denied me a fair process up until now. I know my rights. I fought for [them] and that's why I know what they are in terms of the DA and the country's Constitution”
• "They want the [four-day disciplinary process] to proceed on Human Rights Day, March 21. Those are the rights that I fought for and they want me to come to a hearing. I am not available; I have other engagements. It just shows you the level of how they [trample] on people's rights - they think nothing of human rights like they profess publicly."
• "I am not going to allow anyone, no matter who they are, to now try and take that away from me after I worked so long. I am hell-bent on clearing my name and I will stop at nothing - I will go through battering and bashing and unfairness and lies, but in the end I will emerge victorious because I stand my ground on the basis of principle."

De Lille’s comments to the media clearly point to the fact that that she now sees herself as separate to and in opposition to the DA. This culminated in her stating that she would “no longer co-operate with the DA”.

Accountability Clause in DA Constitution

The accountability clause is a way to hold executive members in government accountable to the party and applies to all executive members, in every DA-led government.

If a caucus loses confidence in an executive member, the caucus can by a majority vote request the Federal Executive to allow the caucus to debate a formal vote of no confidence. If this passes, the Federal Executive will then request the executive member to make representations, and thereafter decide on that member’s future in that executive office. In the most extreme cases, it can give that member 48 hours to resign that office.

If the executive member does not resign from office, his/her party membership can be ended.

The accountability clause does not allow for any one person to invoke it, or for personal disagreements to influence the process. Due processes must be followed, and a DA Caucus must begin the process before the Federal Executive steps in.

This clause will help the DA to stop any member in high office to act against the interest of the voters, party and caucus. The clause is as follows:

6.2.6.3. If the President, a premier, a mayor, or any other public representative elected or appointed to any executive position in a DA government, has lost the confidence of his or her caucus, the Federal Executive may, after giving him or her the opportunity to make representations to it, resolve to require him or her to resign from his or her office within 48 hours. Failure by that member to resign will lead to the cessation of his or her membership of the Party in terms of section 3.5.1.10. Any such vote of no confidence requires the leave of the Federal Executive before it is moved in the caucus.

This measure is not – as has been claimed – designed for Patricia de Lille. It has already been used in respect of the DA Mayor of Matzikamma, and the Federal Executive is considering requests by other DA caucuses who have indicated that they have lost confidence in one or other office-bearer.

Conclusion

Ms De Lille’s attempts to garner public sympathy by misrepresenting and spreading alternative facts can only be an orchestrated attempt to detract from the significant allegations against her and to mislead the public she is meant to serve with integrity befitting her current office.

The DA is committed to clean and efficient government and pride ourselves on putting the people we serve first. That the City may be led by an individual that has likely put her own interests above the people’s, is unacceptable.

It is important that the City of Cape Town leadership gets back to the business of dealing with the unprecedented drought crisis and delivering services to the people of this city. We will ensure that the interests of the people of Cape Town are always put first and will not hesitate to act to ensure that this happens.

Source: DA website, 26 April 2018