Five municipal councillors from the Makana Citizens Front have resorted to the Makhanda high court in a bid to enforce an Electoral Court ruling in May setting aside their 2022 ousting from their party and from the Makana municipal council.
Both the ANC-led council and the five councillors who purported to replace them have ignored the order.
In fact, after the judgment in their favour, Lungile Mxube, Jonathan Walton, Kungeka Mashiane, Jane Bradshaw and Philip Machanick were ejected from the council chamber when the 2024/2025 budget was passed.
Their new party, consisting of a broad coalition of Makana citizens, shook up the 2021 local government elections, snatching 18% of the vote and pushing the former official opposition DA into third place.
The five community movers and shakers and founding members of the party topped the party’s PR list and were inaugurated as councillors in the 27-seat council in November 2021 after the elections.
But another faction of the MCF — led by Lungisa Sixaba and the late Unemployed Peoples’ Movement’s Ayanda Kota — purported to expel the five from the party.
Makana speaker Mthuthuzeli Matyumza swore in the five new PR councillors at an extraordinary inauguration ceremony in the Makhanda City Hall.
They were Sixaba, Thandisizwe Matebese, Amanda Deke, Zonwabele Mantla and Milo Geelbooi.
The expelled group’s application to the Electoral Court reviewing these decisions was unopposed by the new councillors.
The municipality undertook to abide by the court’s decision — something Mxube says in court papers now it clearly never intended to do.
Despite acting Electoral Court judge Leicester Adams order that the councillors’ membership of the MCF be retrospectively restored and that they be reinstated as councillors, nothing has happened.
It is this attitude that Mxube says led them to resort to the high court.
In their application, they are seeking an order that the Makana Municipality immediately restore them as the rightful councillors backdated to April 2022 when they were ousted.
They are also seeking an interdict against the municipality, mayor Pumelo Kate and speaker Matyumza prohibiting them from interfering with the five carrying out their duties as councillors.
But Sixaba, Matebese, Deke, Mantla and Geelbooi are opposing the application.
They say they have brought an application for leave to appeal against the Electoral Court’s decision.
Under normal circumstances, an application for leave to appeal against a judgment suspends the effect of the judgment until it is decided.
The problem they face is that the Electoral Act says the Electoral Court’s decisions are final and cannot be reviewed or set aside, something the five are clearly not aware of.
They are not only seeking leave to appeal but are applying to set aside as unconstitutional that part of the Electoral Act that prevents them from doing so.
Advocate Izak Smuts, SC, and advocate Tom Miller, for the applicants, this week argued that it was impossible to do both.
They were challenging the law that said that the judgment was unappealable while also trying to appeal.
The application for leave to appeal was quite obviously an “irregularity and a nullity” and could not suspend the judgment.
Attorney Ashley Basson, arguing for the sitting councillors, said the high court’s general jurisdiction should not be invoked in this electoral dispute which should have gone back to the Electoral Court.
He also argued that the matter was not urgent.
Acting Judge Mzamo Nobatana reserved judgment.
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