The ANC says it has received legal advice cautioning it against going to court to challenge a decision to postpone Thursday’s City of Johannesburg council meeting meant to elect a new executive mayor.
As a result, the party won't go to court to fight the DA speaker's decision.
The party was considering launching a legal challenge, a move its allies said could have serious consequences.
"Honestly if this thing is sent to the courts, the DA will use it as an excuse. Then we will only revisit the issue of electing a new mayor in March, or even later. The court route will take time," said a councillor from one of the ANC’s partners in council.
The sitting aimed at electing Herman Mashaba’s replacement ended when council speaker Vasco Da Gama told councillors he thought it best to postpone it to December 4, in order to seek a legal opinion over what constitutes a "majority".
The council regulations, which define a majority as 50% + 1, is said to be at odds with the Municipal Structure Act, which stipulates that questions before a municipal council must be decided by a majority of the votes cast.
The move was triggered by a question from the EFF caucus in council, enquiring about the definition of the word "majority".
"They played us. We expected them to try and disrupt the sitting, but to play us like this, I must admit it was a smart move on the EFF’s part," the councillor continued.
The question was posed following back and forth discussions between ANC secretary general Ace Magashule and EFF deputy president Floyd Shivambu.
ANC acting spokesperson Dakota Legoete said the party was advised the DA could "drag the case while in office".
"We should not go to court cause the 4th or 5th [of December] is [in] a week. Going to court can mean they can postpone which means it can be heard in April or May and they will remain in office. It’s not in our best interest to go to court," Legoete told News24 via text message.
EFF unhappy with Makhubo
News24 understands the red berets took issue with the ANC’s chosen mayoral candidate. Party regional chairperson Geoff Makhubo was announced as the ANC’s candidate just minutes before the session kicked off.
Makhubo was one of the names initially said to have been rejected by the Gauteng provincial executive committee of the ANC, which had to choose one out of three possible suggestions from its region.
However, behind the scenes attempts to get the party’s former provincial treasurer Lindiwe Maseko registered as a councillor failed, which resulted in Makhubo being picked as the candidate.
Talks between the EFF and the ANC failed, with Magashule telling News24 that "ANC is ANC and EFF is EFF", adding that the former liberation movement could work with the fighters sometime in the future.
Two sources also told News24 that Shivambu had approached the speaker of council during a break, ahead of the EFF posing a question regarding the definition of majority.
Da Gama motion of no confidence
The speaker’s own future might be on the line, as some councillors had hoped a motion of no confidence against Da Gama would have followed the election of a mayor.
News24 understands this was part of the agenda and is likely to remain an issue when council attempts to elect a mayor next week.
In a motivation for the motion, which News24 has seen, Da Gama is accused of failing to safeguard the independence of council, to ensure proper public participation, and properly manage relationships between the different political parties in council.
Meanwhile, DA Gauteng chairperson Mike Moriarty said the party was still willing to go into discussions with the EFF.
He previously said there had been "radio silence", with attempts made by the party currently in charge of council to negotiate with the red berets.
Th EFF, which fielded its own candidate, Musa Novela, had said it was willing to support either the ANC or DA, as long as they were given Tshwane.
Moriarty, when asked why the DA wouldn’t back an EFF candidate, said they would have to consider the request by EFF leader Julius Malema, but that their preference was for the red berets to continue voting with the DA.
Must continue even if DA walks out
Next week’s session is likely to be a heated one, with parties already discussing possible scenarios.
The ANC is expected to also consult with the Department of Cooperative Governance and Traditional Affairs to find out if it is possible for it to appoint a presiding officer in the event that the DA walks out of council.
"If we reach quorum and there are 136 councillors in the room, we must continue and elect a mayor without the DA. The ANC must find out how this can be done," said the second insider.
There is no telling if the ANC will stick with Makhubo, who has been seen as a controversial character, or attempt to get Maseko into council over the coming days and run with her as its chosen candidate.
For now, 269 councillors are expected to return and elect a mayor next week, failing which the municipality which serves South Africa’s economic hub could be placed under administration.