Publications
- The Gauteng High Court in Johannesburg has declared the ousting of Mpho Phalatse unlawful, unconstitutional and invalid.
- Judge Raylene Keightley declared as invalid conduct leading to and after Phalatse's ousting.
- Speaker Colleen Makhubele has been ordered to pay the costs of the application, including the costs of two counsels.
It turns out Mpho Phalatse was correct when she insisted that she was still the executive mayor of Johannesburg - to Gauteng High Court Judge Raylene Keightley, at least.
In a judgment handed down on Tuesday morning in the High Court in Johannesburg, Keightley declared that the 30 September decision to remove Phalatse in a motion of no confidence was unlawful, unconstitutional and invalid.
READ | Joburg Mayor Mpho Phalatse turns to city residents to keep her in office
After hearing arguments presented on behalf of Phalatse and speaker Colleen Makhubele, Keightley began her judgment with a 1681 quote by English poet John Dryden: "Plots, true or false, are necessary things, to raise up commonwealths and ruin kings."
"As this case demonstrates, although written at a time when politics were characterised by the struggle for power between the general populace and the king, these lines might as easily be applied to describe the power struggles that have come to define our modern era of local, coalition government.
"In the case before me, we have no king. But we have the ex-executive mayor of our city, Phalatse, who claims that she was unlawfully deposed through a motion of no confidence procedure that was tainted with illegality.
"On the opposing side, we have Makhubele, the speaker who, by virtue of her office, led the process that culminated in Phalatse's dethroning."
Keightley said she would not grant a punitive costs order against Makhubele because "although the speaker can be said to have disregarded their import in the manner in which she exercised her duties, the parties are all politicians engaged in political battles".
She added that politicians understand the "cut and thrust of litigation when the political skirmish becomes litigious".
And the judge believes more skirmishes and battles will follow.
"Under the skin, it is a fight for power between different political parties.
"In this context, very seldom can one party claim the moral ground when it comes to the question of costs.
"Moreover, the speaker did not act alone in the decisions she made; undoubtedly, she acted with the support of whichever political associates she is aligned with. The political context of this case, in my view, renders a personal and punitive costs order inappropriate."
The court ordered the following:
- Makhubele's decision taken on 29 September to schedule an extraordinary meeting of the council for 30 September is declared unlawful, unconstitutional and invalid.
- The decision to place a motion of no confidence in Phalatse as the executive mayor of the City of Johannesburg on the agenda for the extraordinary meeting on 30 September is declared unlawful, unconstitutional and invalid.
- The decision taken by the council on 30 September to elect Dada Morero as the executive mayor of the City of Johannesburg is declared unlawful, unconstitutional and invalid.
- Phalatse is declared to be the executive mayor of the City of Johannesburg.
- All decisions taken by Morero as the executive mayor are declared unlawful, unconstitutional and invalid and are reviewed and set aside.
- Makhubele is directed to pay the costs of the application, including the costs of two counsel, one being a senior counsels.
