MAYOR MARK WILLEMSE AND COUNCILLOR PETER MYERS
FACE TOUGH CHOICES NEXT WEEK
Mayor Mark Willemse and Councillor Peter Myers have received their sentences from the DA’s Provincial Executive Committee (“PEC”).
Mayor Willemse’s sentence is slightly different from the sentence recommended by the DA Provincial Disciplinary Committee that held his and Myers’ disciplinary hearing on 2 and 3 August (see our Facebook post of 4 August, below).
The PEC has told Willemse that his membership in the DA is terminated, however, his termination will be suspended as long as he adheres to the following three conditions:
1. He accepts the outcome of the Federal Executive instituted process to select a new mayoral candidate for Knysna.
2. He resigns as mayor two working days prior to the mayoral candidate interviews.
3. He removes Councillor Peter Myers from the mayoral committee (“the Mayco”) within ten working days of receipt of the letter notifying him of his sentence.
Failure to adhere to any of these three suspensive conditions, in the opinion of the PEC, will lead to the automatic termination of his membership in the DA. Although the sentence does not spell this out, termination of membership in the DA will result in his removal as a DA councillor.
In addition, Willemse is directed to motivate and submit a list for a new mayoral committee to the PEC, which will then analyse it and recommend to the Federal Executive Committee whether it should be approved or not.
He has the right to appeal this sentence to the Federal Legal Commission within ten working days of receipt of the letter containing the sentence, i.e. by 7 September 2018.
What do you think Mark Willemse should do?
Should he comply with the three conditions and undergo the mayoral selection process, in the hope that he will be chosen as the DA’s candidate for Knysna’s mayor?
Or should he appeal to the DA Federal Legal Commission and if, as is likely, his appeal is not granted, take the matter on review to the High Court?
The following additional factors may help you decide:
a. Unlike the PEC’s sentence, the PDC’s recommended sentence did not compel him to resign two days prior to the mayoral candidate interviews, rather, it allowed him to continue as mayor and resign only if he was not the winner of the mayoral selection process, in which case he would have had to resign on the day of and before the Council meeting called to elect a new mayor. What if any is the significance of now forcing him to resign two days before he is interviewed as part of the mayoral selection process? Does it tell us anything about his chances?
b. Willemse was elected mayor by Council following the ouster of former mayor Eleanor Bouw-Spies (“EBS”) by a Motion of No Confidence (“MONC”) brought by the ANC, supported by COPE, KUC, Myers and Willemse himself. Accordingly, he must keep the ANC reasonably happy, or risk being removed by an MONC from the ANC, supported by DA councillors or councillors from other parties who may who wish to see him replaced. In addition, Willemse probably does not currently have the support of the entire DA caucus. Several members are still not backing him, but wish to see EBS returned to the mayorship. Those DA members may try to persuade some councillors of the ANC or other parties to remove Willemse as mayor by means of an MONC. They have already tried to do this once. (There were also allegations of attempts to buy votes in that instance).
c. If Willemse complies with all three conditions, undergoes the mayoral selection process and is chosen as the DA’s mayoral candidate, and is then approved by a vote of Council, he will have the entire DA caucus behind him, and it will be much easier for him to govern.
d. If Willemse complies with all three conditions, undergoes the mayoral selection process, and is not chosen, he will still remain a DA councillor, but he will obviously not have the same authority as if he were mayor.
e. Willemse does not and cannot know if he will be selected by the DA as their mayoral candidate. Everything depends on the composition of the selection committee. There will be people on that committee who deeply resent his voting against the DA caucus and removing EBS as mayor on 6 June, and their emphasis on strict party discipline may make them intractable opponents, and may even sway other committee members to vote against him. Powerful, outspoken provincial DA party head Bonginkosi Madikizela clearly falls into this category, however, his ability to persuade others to vote with him may have suffered as a result of his friendship with and backing of Independent Councillor and former Bouw-Spies coalition partner Velile Waxa, who has been charged with the premeditated murder of Councillor Victor Molosi. ( Bongi even went so far as to announce on 21 March that Councillor Waxa was joining the DA. See the Knysna-Plett Herald of 27 March 2018). But the selection committee will also include people who admire Willemse and appreciate his hard work for the party, his highly successful stint as Speaker of the Eden district council, his honesty, and his popularity with all of Knysna’s communities. And the selection committee should also include people who appreciate that in voting to remove EBS, Willemse was voting his conscience, because he believed that it was the only way to bring an end to alleged corruption and maladministration, and that by voting against his own caucus, Willemse did the right thing, at great personal risk to his career, unlike all of his DA peers except Peter Myers.
f. One of the three conditions is that Willemse remove his ally, Peter Myers, from the mayoral committee. However, he will obviously not have to do that if Myers resigns first. Based on Myers’ sentence by the PEC, however, (which is discussed below), it is fairly clear that DA party leaders wish to keep Myers from exercising any real power on the Knysna council, and to break up the highly effective duo of Willemse and Myers.
g. Even if he is selected as the DA’s mayoral candidate, Willemse must then be approved by a majority vote of Council, which is normally held by secret ballot. Will even those DA councillors who still support EBS vote along party lines, in favour of Willemse? Regardless of who the DA chooses, will it have enough votes in Council to elect its chosen nominee as mayor, if DA coalition partner Velile Waxa is still in jail, or has been dismissed as a councillor by MEC Anton Bredell as a result of his conviction for breaching the Code of Conduct for Councillors?
h. Willemse must surely believe that he was right to vote to remove EBS for alleged maladministration and corruption, and that he should not have been found guilty. If Willemse decides not to comply with the three conditions, but instead to appeal against the PEC’s sentence in order to clear his name, what are his chances of prevailing before the Federal Legal Commission?
i. If he does not comply with the three conditions, appeals to the Federal Legal Commission, and his appeal is denied, and he then takes that appeal on review to the High Court, what are his chances of prevailing there? And how long will he be able to continue as mayor while the case before the High Court is pending? And, will he be able to govern effectively without the support of the entire DA caucus whilst his case is on appeal… or will the bitter-enders finally come round to supporting him?
j. It should be noted that Willemse’s chances of prevailing before the High Court are probably much better than they were before the PDC and the PEC. The PDC acknowledged that Willemse had voted his conscience based on his belief that something had to be done to bring ongoing corruption and maladministration to an end. However, the PDC refused to apply the applicable case law in De Lille v Democratic Alliance and others (see, esp. point 7), where the court held that a councillor had a right, and even a duty, to vote his conscience, even if that meant going against the DA rule that a councillor may not vote against his caucus. Unlike the PDC and the PEC, the High Court would normally follow that precedent, and find Willemse not guilty.
k. There is also a third option open to Willemse: resign as mayor and councillor, and resign from the DA, forcing a by-election which he would have an extremely good chance of winning as an independent candidate from Ward 9. If elected (and if Myers followed the same process in Ward 10 and was elected), it is possible they could together act as king-makers and power brokers on the divided Council, and the mayorship could be the price of their support for the ANC or the DA.
Mark Willemse clearly faces a very difficult decision between now and September 7: there are many, many imponderables that must be weighed. And he must take a decision—if he does not, the matter will be decided for him. However, there may be other developments between now and the 7 September deadline, which could level the playing field in his favour, and strengthen his hand. We shall see.
Turning now to the case of Councillor Peter Myers:
Like Willemse, Myers was found guilty of misconduct by voting his conscience in an effort to end alleged corruption and maladministration, instead of voting with the caucus to preserve the status quo. Like Willemse, Myers received a suspended sentence from the PEC, subject to three somewhat different conditions:
1. He must attend all DA caucus and coalition meetings, unless leave of absence is duly granted by the whip.
2. He must resign from the Mayco with ten working days, and serve as a mere member of the portfolio committees that he had chaired.
3. He must adhere to the DA’s social media policy regarding any communication concerning the disciplinary proceeding or related matters.
Point 1 is easy to comply with. At his PDC disciplinary hearing, Myers said that he had had refused to attend DA coalition meetings because of the presence there of Independent Councillor and coalition partner Velile Waxa, who had committed breaches of the Code of Conduct for Councillors for which he was subsequently convicted by a Knysna Council disciplinary committee. That committee recommended to MEC Anton Bredell that Waxa be removed from Council, and Bredell should be reaching a decision on that matter shortly. Waxa, who is charged with murder and is presently sitting in jail, presumably will not be attending any DA coalition meetings for some time, if ever.
Point 2, resigning from the Mayco, is not difficult to do: the only question is, will he decide to do it?
He is already adhering to point 3, and has little to gain by breaching that condition.
Surely, however, Myers does not believe that he should have been found guilty, and be punished for voting his conscience to end alleged corruption and maladministration. Like Willemse, Myers has good reason to appeal against his sentence and clear his name. Like Willemse, Myers’ chances on appeal, and on review, would be much better than they were before the PDC and the PEC. He should be able to remain on the Mayco, and as portfolio committee chair, for many months whilst the High Court considers his case. He should be able to continue to work for the best interests of all of Knysna, despite the DA hierarchy’s efforts to force him into line. Myers also has the same third option as Willemse: resign as councillor and from the DA, and stand in a by-election in his own ward. Due to the composition of his ward and, more significantly, that of his ward committee, his election there as an Independent may not be a cakewalk, however he would have a good chance of winning, depending on who his opponent is, and on his choice of campaign manager.
But for Myers, the potential upside of accepting his sentence is not as great as it is for Willemse. Willemse is, at least in theory, being given an opportunity to be chosen by the DA as their candidate for mayor. Myers is not being told he can remain on the Mayco and as portfolio chair if he complies with his sentence. His choice is to agree to be demoted, or to have his membership in the party terminated.
What should Peter Myers do? What should Mark Willemse do? What decision is in the best interests of Knysna’s residents?