Three councillors instructed to leave a Makana special council meeting on Thursday May 30 have accused the speaker of treating the council “like his private property”. This was after Makana Council speaker Mthuthuzeli ‘Mabhuti’ Matyumza called in law enforcement to eject three of the five councillors reinstated in a May 13 Electoral Court judgment. The meeting, announced the day before (election day, May 29), was to pass the 2024/25 budget and integrated development plan (IDP). The Municipal Finance Management Act states that the council of a municipality approve an annual budget for the municipality before the start of each financial year (July 1 2024).
Makana Citizens Front (MCF) chairperson Lungile Mxube and fellow MCF councillors Kungeka Mashiane and Philip Machanick, along with Jonathan Walton and Jane Bradshaw, were restored to their positions as proportional representation (PR) councillors in the Makana Council by an order of the Electoral Court on May 13, 2024. The judgment notes that the application by the five, who were ousted in April 2022 was not opposed by the five MCF members who replaced them.
The five replacement councillors, who were sworn in by Matyumza on April 21, 2022 (according to the May 13 judgment unlawfully) dispute this and say that the court order is not the end of the story. Speaking for the five, Lungisa Sixaba said they did in fact file papers opposing the application, that these went missing, and that they intend to remain in the PR councillor seats.
“What surprises us about this verdict is that we did submit our response, by email and by courier, but it never reached the court,” Sixaba said. “So we are challenging that.”
TOTT has received a screenshot of an email that indicates their intention to appeal the judgment
Sixaba, who was absent from Thursday’s meeting due to illness and was out of town on Sunday morning, said Talk of the Town could come and view a copy of the court papers [i.e. the responding affidavit in the original matter] later on Sunday; however, later, TOTT wasn’t able to reach him by phone to confirm the venue, as per the arrangement. So while the judgment and court order are available to view at the end of this article, the answering affidavit/s have not yet been made available.
We did, however, receive a screenshot of an email from their lawyer saying that their application for leave to appeal was attached, and requesting acknowledgement of receipt. When TOTT receives copies of the responding affidavit and the application for leave to appeal, we will likewise provide a link for readers to view them first-hand.
The Makana Citizens Front was formed in early 2021. Its goal was to consolidate growing civil society action to remedy poor governance and service delivery, cutting across the municipality’s spatial divides, and drawing together citizens across the socio-economic spectrum. It registered as a party and contested the 2021 local government elections. While they achieved no ward seats, the MCF won an astonishing 18% of the vote, securing five proportional representation (PR) seats. As per the party’s registered PR list, Mxube, Mashiane, Machanick, Walton and Bradshaw were inaugurated along with the rest of the 27-member council.
But less than a month after the election results were announced in November 2021, a grouping led by the late Ayanda Kota, of the Unemployed People’s Movement and Uncedo Taxi Association transport head Lungisa Sixaba, contested the registered list. They said the PR list, drawn up at a meeting they had attended, was incorrect.
Following a specially convened meeting held at Fingo Square in Dr Jacob Zuma Drive, Makhanda, they told the five they had been expelled from the MCF and succeeded in registering the names of five new councillors with the Electoral Commission. The new councillors who took their places were Lungisa Sixaba, Thandi Matebese, Amanda Deke, Zonwabele Mantla and Dibanisile ‘Milo’ Geelbooi.
The continued presence in council of the five new councilors (Sixaba etc) is supported by Makana. The municipality’s communications office issued a statement on May 30. It cites Matyumza, who in turn cites the institution’s legal manager Candice April, who says they aren’t required to act on an order of the electoral court; instead, Matyumza maintains (citing the legal manager), that they only have to act on the judgment if the IEC tells them to.
“The Legal Manager said… the municipality does not need to act on the decision of the Electoral Court.. the Legal Manager further stated that the municipality was not in contempt of court as it is awaiting communication from [the] IEC,” the Makana statement said.
The May 13 judgment cites the speaker of Makana Local Municipality as the third respondent and Pumelelo Kate, Makana’s Municipal Manager, as the 13th respondent. Both Makana and the IEC indicated to the judge that they would abide by the court’s decision.
The municipality’s statement about the incident also refers to a letter of demand from the lawyer of the five ousted councillors, Brin Brody, of Wheeldon, Rushmere & Cole. The letter demands backpay for them amounting to R3,556,945.20. This is based on a monthly salary for five councillors of R26 402.51, plus interest.
“The Legal Manager said the judgment supported the municipality’s stance that former councillors are not entitled to back pay,” the statement from Makana said.
The judge declined to make a costs order. In other words, he did not order the (losing) respondents to pay the legal costs of the applicants. However, the judgment does explicitly say, “…the second respondent is to pay the first to fifth applicants full back pay with interest 14 days from date of delivery of this order. The second respondent is Makana Municipality.
Talk of the Town is in possession of a recording of the interaction between Matyumza and three of the five reinstated (original) councillors at the start of the May 30 meeting.
In it, Matyumza repeatedly instructs them to leave the councillor seats and sit in the public gallery. He tells them that if they refuse he will call in law enforcement, and says this is according to the rules and standing orders of Council.
At one point, he addresses them in turn, by name, instructing them to leave the council chamber They respond, in turn, as follows:
Mxube: “I am here on the court order which was issued on the 13th of May. You have humiliated us for a very long time… and we are not going to allow you to extend our suffering. Your municipality went to court and [indicated] that they would abide by this court order.”
Mashiane: “Thank you Speaker. I am Mrs Mashiane [Matyumza had mispronounced her name] and I am going nowhere because I am sitting [as] a legitimate councillor. I was abiding by the court order [by coming here].”
Machanick: “You are in contempt of that order. As of the 13th of May it was ruled that everything that was done to us was of no effect… What you are ordering us to do is unlawful. If our removal from council is set aside by court, in legal terms, that means it did not happen. So I’m not moving. If you send in the police we will give them the court order, and we will not be the ones who will be arrested.”
In the end, the three councillors left of their own accord after a vote was taken on passing the budget.
Speaking to Talk of the Town afterwards, Mxube said the main reason for insisting that they remain in the council chamber was to object to the budget that was being tabled for approval.
“It is not a legitimate budget because it was never subjected to public participation,” Mxube said. “Our next step is to get a legal opinion for the court to review and set aside this budget. Because it is not in the interest of the people.
“It was never subjected to public participation and is not informed by the key priorities of Makana communities. The water crisis is the biggest issue here. You cannot pass a budget that does not talk to what the needs of the people are.
“According to the speaker, the only reason they called a special council meeting was for compliance [yet] they only informed councillors yesterday, during a public holiday when everybody was busy voting,” Mxube said. “It tells you that the ANC, and the speaker in particular, is treating this council like his private property.”
Fourteen of the 27 Makana councillors represent the ANC.
Machanick added: “Our decision [to leave the council chamber] followed voting on the budget, where we were ignored and the [replacement] councillors’ votes were [also] ignored. We had no intention to cause a physical confrontation, but this was not put to the test as we left voluntarily.”
The approval of the budget was opposed by the five DA councillors. Caucus leader Luvuyo Sizani said this was on the basis they were not given enough time to study the document.
In addition, at the IDP imbizos it had been indicated that the annual rates increase would be 5%.
“But at Council [the documents presented] indicated a 6% increase and we objected to that,” Sizani said.
