By Luvuyo Mjekula
Two years after being unceremoniously booted out of the Makana Municipal council, five PR councillors of the Makana Citizens Front (MCF) have been restored into the council by the Electoral Court, to much relief and jubilation.
“We are vindicated. It was patently obvious from the outset that our removal was illegitimate and unlawful. We never gave up fighting for the people of Makana and we will take that fight back to the Council now that we have our seats back,” said Lungile Mxube, the leader of the MCF, as confirmed by the Electoral Court in its judgment of 13 May 2024.
In the judgment, the Electoral Court in Bloemfontein reviewed and set aside the decision by the now late Ayanda Kota and MCF PR councillor Lungisa Sixaba to convene and conduct a disciplinary hearing against Mxube, Phillip Machanick, Kungeka Mashiane, Jonathan Walton and Margaret Jane Bradshaw on 14 February 2022. The court also reviewed and set aside the decision to expel the five from the party and replace them with Sixaba, Thandisizwe Matebese, Amanda Deke, Zonwabele Mantla and Milo Geelbooi.
Delving into the background of the case, the court found that the Makana Citizens’ Front (MCF) is a registered political party, founded on 16 June 2021. Shortly after it was established, it was registered with the Electoral Commission of South Africa (IEC), the first respondent in the matter.
The party’s revised ‘Deed of Foundation and Constitution’ was formally adopted by its founding members at a meeting on 20 August 2021. On 21 October 2021, the Deed of Foundation and Constitution was signed, by Mxube, as the chairperson, and it was thereafter registered with the IEC during that month. The five were founding members of the MCF, which was brought into existence specifically to contest the local government elections in the Makana Local Municipality in November 2021. The MCF registered with the IEC its list of candidates for Ward and Proportional Representation (PR) councillors. At the top of their PR councillors list were the five founding members. Mxube was elected as interim chairperson at the meeting of the founding members on 20 August 2021, as well as the convenor and head of its election campaign. The interim executive/management committee was also elected at the meeting. Present at the meeting were Nosigqibo Soxujwa, the third respondent in the case, and Kota, “who are clearly important characters in the dispute in this matter”.
At the meeting, the councillor candidates’ lists were agreed on and finalised and in the local government elections on 1 November 2021, MCF won five PR Councillor seats on the 27-seat Makana council. The five positions were to be filled by Mxube and the other four founding members in accordance with a valid PR Councillor list filed by MCF with the IEC before the elections. “The problems started shortly after the elections, when, out of the blue, Mr Kota claimed that the applicants had manipulated the PR councillor candidates list and disavowed the interim management committee of MCF, which had been duly nominated and elected at the meeting on 20 August 2021.”
On 17 November 2021, Kota and Sixaba “unlawfully” convened a meeting of MCF. At this meeting, Sixaba proposed that the five be removed from the Makana Municipal Council and that a letter be sent municipal manager Phumelelo Kate, requesting him to remove the applicants as PR councillors in the council.
“It is not disputed that the said meeting was irregular, unlawful and in contravention of the express prescripts of the constitution of MCF,” the court found.
According to the Electoral Court, the MCF’s constitution states that members of the executive or management committee, apart from elected public representatives, may be removed by a two thirds majority of the executive or management committee, including elected public representatives, who are present at a duly constituted meeting and on a motivated motion presented at least 14 days before such a meeting.
It also stipulates that an elected public representative may be removed following a process initiated by a motivated motion supported by the signatures of a minimum of 100 registered voters of the public representative’s constituents. This motion must be reviewed by the MCF management committee. A two thirds majority of the MCF management committee is required to convene a disciplinary committee that will hear the case for removal.
“None of these peremptory procedures provided for in the MCF’s constitution were complied with by Kota and Sixaba when they purported to remove the applicants from their positions in the party and from their positions as PR councillors. Moreover, when the applicants’ legal representatives in correspondence to these respondents pointed out to them that their actions were unlawful, they did not once dispute such allegations.”
The court found therefore that Kota and Sixaba’s purported expulsion of the five from the party was unlawful and the meeting they convened “flew in the face of these express provisions of the constitution of the MCF”.
The court further found that the same can be said of the subsequent conduct on the part of Kota and Sixaba and their faction, who, without cause, were able to convince the Makana council to remove the applicants as councillors and replace them with the Sixaba and four others.
During January 2022, Kota filed an affidavit, claiming that he is the leader of MCF, the court stated. “This claim flew in the face of the documents that were in possession of the Commission, which confirmed that, according to their records, the leadership was the interim management committee as per the documents filed off record and which reflected Mr Mxube as the leader.
The unlawful conduct on the part of [Kota and Sixaba] culminated in them convening disciplinary hearings in which they purported to charge all of the applicants with misconduct supposedly for having acted in contravention of the resolutions taken at the MCF’s alleged duly constituted special general meeting held on 17 November 2021.
The disciplinary hearings were convened for 14 February 2022. The applicants did not attend the hearings as they did not recognise the authority of Kota and his cohorts to discipline them. In their absence, the applicants were found guilty of the charges against them and expelled from MCF. The court found the disciplinary hearings to have been irregular and noncompliant with the constitutional prescripts of the organisation. “Those proceedings were procedurally and substantially fatally flawed and should be set aside.”
Following the five councillors’ expulsion from MCF, [Kota and Sixaba] advised the Makana council that their membership of the said organisation had been terminated. They therefore called for the removal of the applicants as MCF’s PR councillors in council. “Armed with the documentation from [Kota and Sixaba], the Makana council obliged and, after consultation with the commission, removed the applicants as councillors and replaced them with [Sixaba and four others].” On 12 April 2022, the IEC sent a letter to Kate, informing the council that Sixaba and four others had been declared elected to the council and that Mxube and four others had been replaced as councillors and that they ceased to hold office in the municipality.
In response to the expulsion, Mxube and his four co-founding members sought to challenge their dismissals but encountered obstacles which caused lengthy delays.
Mxube explains: “A lack of resources made it difficult to overturn the case in court; after repeated attempts at obtaining legal representation pro bono or at a discounted price, the legitimate leadership went to the Electoral Court without representation.”
Mxube says: “In April 2022, a faction led by Ayanda Kota of the Unemployed Peoples Movement, after a series of unlawful manoeuvres, replaced the five lawfully elected councillors and turned MCF in council into a do-nothing mini-ANC. In the meantime, the lawfully elected councillors struggled with no resources to continue representing Makana out of council, taking on a number of issues.” These, he said, included keeping Makana’s water disaster on the national agenda, campaigning against destruction of abandoned government buildings and promoting township and rural tourism.
He says the MCF had made history in November 2021, scoring the second highest number of votes in the Makana municipal elections, scoring 18.1% and pushing the DA to third place. “This victory [was]unprecedented for a civic movement, founded on 16 June 2021, only four months before the election.”
Mxube says the judgment handed “a resounding victory to the people of Makana when it undid the hijack of Makana Citizens Front’s five councillors.” “A revitalised MCF is ready to hit the ground running. We know how council operates, we know what the problems are, and we know what our people’s demands are. Our People’s Manifesto is as relevant as ever.”
As they go back to council, he vowed that they would dissolve corruption, end water crisis, fight for jobs for all, install good governance and clean administration, ensure accountability and transparency, monitor service delivery and remove lazy councillors, as well as incompetent and corrupt officials.
“We call upon all residents and citizens to support MCF People’s Water Signature Campaign where we want 20 000 signatures in order to force the minister of Water and Sanitation to institute a forensic audit into water grants that have been misused and stolen.”
In its judgment, the Electoral Court ordered that Mxube is declared the leader of MCF, Machanik the main contact person and that the IEC restores and reinstates the PR councillor candidates list gazetted prior to the 1 November 2021 elections and that the IEC amend its records to reflect the changes.
