By Luvuyo Mjekula
Controversy is set to intensify in the Makana Municipal Council after Makana Citizens Forum (MCF) councillors the Electoral Court recently ordered to be removed from the Council because they were unlawfully elected, have applied to take the matter on appeal.
Lungisa Sixaba, Milo Geelbooi, Thandisizwe Matebese, Zonwabele Mantla and Amanda Deke, joined by Gloria Soxujwa and Mahlubandile Khuhlane, have applied to the Electoral Court in Bloemfontein for leave to appeal the 13 May judgment against the five.
The court reviewed and set aside the decision by the now late Ayanda Kota and MCF PR councillor Sixaba to convene and conduct a disciplinary hearing against Mxube, Phillip Machanick, Kungeka Mashiane, Jonathan Walton and 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, Matebese, Deke, Mantla and Geelbooi.
In its final judgment, the court ordered the reinstatement of Mxube, Machanick, Mashiane, Walton and Bradshaw.
A couple of weeks after the judgment, chaotic scenes played out in a Makana Municipality special council meeting when Speaker Mabhuti Matyumza called in law enforcement to remove Mxube, Mashiane and Machanick who had joined the meeting and taken councillors’ seats, prompting Matyumza to ask them to move to the public gallery, which they all refused.
At the meeting, Mxube accused Matyumza of contempt of court and this week accused municipal manager Phumelelo Kate of failing to act on instructions from the Electoral Commission of SA (IEC) to reinstate him and the four others as councillors. This after a letter dated 21 May 2024 from the IEC, which Grocott’s Mail has seen, instructs Kate to reinstate Mxube and four of his fellow councillors and remove Sixaba and his four councillors.
However, in a statement released by spokesperson Anele Mjekula, Makana Municipality says Kate only received the letter on 6 June. He refuted Mxube’s allegations against Kate.
Mjekula confirmed that on 6 June the municipality received correspondence dated 21 May 2024 from the IEC informing the municipality of the reinstatement of five previously removed PR Councillors of MCF.
“Therefore, the allegations made by Mr Mxube that the municipality received the letter from the IEC on 21 May 2024 is untrue, baseless and without any facts.”
He reiterated that the letter informed the municipality of the reinstatement of the five “previously removed PR Councillors of MCF”.
Mjekula said on 30 May 2024, in the evening, the municipality, the IEC and Mxube and others, were served, via email, with an application for leave to appeal the Electoral Court judgment, “and the operation thereof is accordingly suspending compliance with same pending the decision of the Electoral Court.”
Mjekula said an application for leave to appeal was filed with the court through the attorneys of record of Sixaba and others and “by virtue of such application through the operation of law, the Judgment of 13 May 2024 is suspended, and the matter is before the court yet again for adjudication.”
He further stated that the replacement and removal of PR councillors is done by the IEC and not the municipality. However, he stressed that the municipality had no intention of not complying with the Judgment. “The status of a person to become a PR councillor and the removal of a PR councillor is done by IEC, not the municipality.”
He went on to explain that attached to the salary benefits of a councillor in a municipality, “one must first be confirmed as a PR councillor by the IEC and thereafter, one will receive such salary benefits of a PR councillor from a municipality and unfortunately such confirmation was received by the municipality only on 6 June after the leave for appeal was launched on 30 May.”
Responding to the application for leave to appeal, Mxube said: “They have filed leave to appeal the judgement. Nowhere in their leave to appeal have they made any specific prayer to the court, should the court grant them leave to appeal, that the judgment be suspended pending finalisation of the appeal or review application.”
He accused the municipality of “opportunistically and prematurely jumping to suspend the operationalization of the court order when applicants have not asked the court this prayer”.
“That is why the municipality failed to point out any legal basis for their conclusion. In fact, they are disingenuous because, in their cheap media statement of 30 May, the municipality said, according to legal advice from their legal manager, the municipality has no obligation to comply and is waiting for the IEC.”
“The IEC has now given a final MCF PR List. The IEC has removed them. They can exercise their right of appeal but while outside Council. For that matter, Section 96 (1) of the Electoral Act is very clear that the decision or judgment of the Electoral Court is final and binding, not subject to appeal or review.”
Mxube said more significantly, for any leave to appeal to be granted, an applicant must show the court that there are prospects of success in the main case or compelling grounds that another judge/s might arrive at a different conclusion. He said the applicants have failed to cite any prospects of success.
“Let them try and block us, we shall defeat their reactionary agenda and we dare not fail the citizens of Makana.”
