Battle with De Lille could destroy DA's reputation

Cape Town Mayor Patricia de Lille. (Paul Herman, News24)

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The epic battle between the Democratic Alliance and Cape Town Mayor Patricia de Lille is no longer about whether the party will succeed to get rid of her. That stage has passed. The dispute has assumed another life.

At stake now is whether the DA can uphold its image that it has so painstakingly constructed over the years as a constitutionalist party.

The DA has carved itself a special political place in South African politics. Whether one agrees or disagrees with some of its policies – and some are very questionable – it would be difficult to find fault in its steadfast defence of the Constitution of the Republic. Where the governing party or some of its leaders have threatened the Constitution, the DA would take a lead to protect it. When it was broken, the DA would seek to restore it.

When the rule of law was under the threat of irrational decision making, the DA would run to the courts to seek redress. Where state institutions were undermined, the DA would be quick to champion their independence. In many instances, it has assisted the ANC to govern better.

Most recently, the party has launched a legal battle to block the appointment of Arthur Fraser, the dodgy former intelligence chief, as commissioner of correctional services. The probability of success is high. It will likely be the first legal reversal of a decision by President Cyril Ramaphosa.

The DA does not use methods outside the constitutional framework to achieve political goals. It is a typical parliamentary party that has adopted a politico-legal strategy. It is so narrowly focused on this strategy that it has eschewed mass mobilisation – a strategy rooted in the struggle against apartheid. The ANC uses it effectively to retain power. 

But few can find fault in the DA's achievements. When Parliament was under threat of collapse under the weight of Jacob Zuma's corruption and lies, and the EFF responded by defying the rules of Parliament, the DA stood out as a party of reason. It rejected both the EFF methods and Speaker Baleka Mbete's partial management of the National Assembly. At the same time, it argued against the arbitrary expulsion of the EFF from the House. 

Many of the DA's legal challenges have helped our courts to clarify important constitutional provisions, thus providing legal certainty on a wide range of issues. From enforcing rationality in government decision making to clothing the position of the Speaker of the National Assembly with independence, these are big achievements in our democratic project. 

But the DA's constitutionalist credentials are about to be tested. Now, it is not up against the usual constitutional delinquents against who it has fought and won countless times. It is up against De Lille, a formidable fighter for freedom pre-1994 and staunch constitutionalist in her own right in the democratic era.

De Lille is as anti-corruption as the DA proclaims it is. She's a witness in the Zuma corruption case kept alive by the DA's dogged fight for the rule of law. 

There is in our jurisprudence what one can call the "De Lille free speech ruling". In 1997, while she was an MP of the Pan Africanist Congress, she asked the government to disclose names of ANC leaders who were spies and who fed on "blood money" of the apartheid regime. She was forced by Speaker Frene Ginwala to withdraw and apologise. 

Not satisfied with the apology it had accepted, the National Assembly later formed an ad-hoc committee – the first and last of its kind dedicated to a single MP – to probe De Lille. The committee's decision was endorsed by the National Assembly, that she be suspended for 15 days. Chief Justice Ismail Mahomed in the Supreme Court of Appeal set the decision aside. He upheld a Cape High Court ruling and endorsed freedom of speech for MPs.

Ironically, the DA congress passed constitutional provisions tailored specifically to deal with De Lille. It's unprecedented. The DA believes it will quickly get rid of her and move on. The challenge for the DA, however, is whether it can get rid of De Lille as a member and as the mayor of Cape Town without compromising its own credentials as a constitutionalist party. It can't have it both ways.

Judging by the events of the last few weeks – the adoption of the "De Lille clause" and the subsequent City of Cape Town DA caucus motion – it would be impossible for the DA to fire De Lille and retain intact its image as a party that defends the Constitution and the rule of law. 

It is only when a party is called upon to practice what it preaches that it suddenly encounters blind spots. The DA seems to have forgotten that in Parliament it argued that the legislature, not party politics of the ANC, should deal with Zuma. In Cape Town it seems to suggest that the council it controls should not be allowed to deal with the matter. Instead, the party must. 

The DA is a staunch advocate of the rule of law. All laws are applicable to all equally regardless of status, it has said in numerous submissions before courts. But its conference adopted a "De Lille clause" which it hasn't wasted time to implement. As a constitutionalist party, the DA will have to explain to the public what is so special about De Lille that normal party processes or City of Cape Town council procedures are inadequate to address whatever (valid or not) grievances it has with her.

Lastly, the DA would know that the Constitutional Court has ruled on the rights of members of political parties to participate in activities of their own party. This right cannot be subject to the whims of party bosses. The right to belong to a political party was at the heart of the struggle for freedom, the Constitutional Court reminded the ANC in the Ramakatsa decision. 

De Lille's commitment to vindicate her rights is likely to end in the Constitutional Court. Should she decide to fight to the bitter end as she has promised and the matter ends up in the highest court, there is no guarantee that the party won't suffer a bloody nose. And should that happen, the DA’s reputation as a party of constitutionalism will be destroyed.

- Mkhabela is a political analyst with the Department of Political Sciences at the University of South Africa.

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