A legal opinion obtained by Nelson Mandela Bay (NMB) City Manager, Johan Mettler, on the removal of the Nelson Mandela Bay Speaker, Jonathan Lawack, and Mayor Athol Trollip has confirmed that it was “unlawful, invalid, and capable of being set aside”.
The DA has already committed to taking the council’s decision on review as the party believes that the process to appoint the new Speaker was procedurally invalid and therefore the “removal” of Mayor Trollip was also invalid.
Section 36(3) of the Municipal Structures Act (117 of 1998) states that:
“The municipal manager of the municipality or, if the municipal manager is not available, a person designated by the MEC for local government in the province, presides over the election of a speaker”
After Speaker Jonathan Lawack was removed, the Municipal Manager, Johann Mettler, adjourned the council sitting as quorum had been broken.
Eastern Cape MEC for Cooperative Governance and Traditional Affairs, Fikile Xasa, then incorrectly invoked Section 36(3) and designated an individual to preside over two decisions:
1. The election of ANC Councillor, Buyelwa Mafaya, as Speaker; and
2. The Motion of No Confidence in Executive Mayor, Athol Trollip.
This was despite the Municipal Manager being both present and able to preside over the sitting. This is in clear contravention of the Municipal Structures Act.
Therefore, the election of Buyelwa Mafaya as Speaker, and the subsequent Motion of No Confidence in Athol Trollip as invalid.
“The legal opinion confirms our view. Specifically, it states that:
“Having regard to the factual circumstances that prevailed, it can never be said that the Municipal Manager was not available.”
The opinion goes on to state that the Municipal Manager was “physically available and accordingly, the appointment of such other person to chair the election of a Speaker was unlawful and invalid with the concomitant result that the appointment of a Speaker and the subsequent appointment of a new Mayor are similarly unlawful, invalid and capable of being reviewed and set aside,” said DA leader Mmusi Maimane.