This is a long story. If you have a keen interest in politics and the intrigue of party politics, and staying power to consider a prime example of what can be described as dupery, this might be right up your alley...

A recent ruling on an application to the Constitutional Court for leave to appeal a decision of the Supreme Court of Appeal may have devastating consequences for the DA once the party’s Stalingrad legal defence strategy collapses.

Then DA Bitou Speaker Johann Brummer had his party membership summarily terminated on 13 August 2012, made retrospective to 31 July 2012, the date of “automatic termination” for his alleged arrears in party contributions. This after 12 years in council, and notably after he called then DA political head Donald Grant, later to be a special advisor to Western Cape Premier Alan Winde, to attend irregularities in the election of party office bearers in Plettenberg Bay. Brummer, at the time, also insisted that Western Cape Minister for Local Government Anton Bredell, then doubling as DA Western Cape Chair, act against DA councillors for alleged breaches of the Councillors Code of Conduct, and for alleged multiple criminal offences in breach of the Municipal Finance Management Act (MFMA) amounting to financial damages in the millions for the Bitou Council. Bredell failed to act on any of the matters.

The DA relied on Clause 3.5.1.9. of its constitution to terminate Brummer’s membership – the same clause used to “automatically” terminate Patricia De Lille’s membership in 2018; the same clause rejected by the Cape Town High Court as invalid when the Court restored De Lille’s membership.

Brummer had his DA membership terminated for allegedly being in arrears with his party contributions in the amount of R5 621.00. The termination followed his complaints mentioned above.

Brummer disputed the alleged but unproven debt, claiming that his contributions in general exceeded levied minimums for councillors, but termination followed by dogged resolve. Available internal DA correspondence reveal that the candidate fee amount was timely settled by Brummer, and that the DA even thanked him for payment received.

Brummer launched an urgent application on 5 September 2012 to interdict the IEC from filling the vacancy caused by his termination. On 6 September, the DA agreed to an interim order that the vacancy not be filled until the return date, 12 September.

However, when Brummer’s application to be reinstated was heard on 12 September, the court learned that the DA had already requested the IEC to fill the vacancy, despite the agreed Court order.

Cape Town High Court Judge Gamble later, on 12 April 2021, noted that “the DA’s involvement in this state of affairs was not clear from the papers.”

Brummer claimed at the time that he did not owe the party anything and that reliance on clause 3.5.1.9. of the DA’s Federal Constitution to terminate him was inappropriate and not applicable. Two separate affidavits, by Bredell and then DA Provincial Finance Chairperson Kobus Marais, confirmed however, that Brummer owed outstanding candidate fees and that these were compulsory public representative contributions (so-called monthly tithes) and that clause 3.5.1.9.  was appropriate and applicable. The content of the affidavits was confirmed by then Federal Council Chairperson, James Selfe, in his own affidavit, and by stating on the record that this procedure was in line with DA internal credit control policy. This particular policy was, however, never provided to Brummer, or to the Court, and remained concealed by the DA for seven years until Brummer successfully brought an application before Court forcing the DA to disclose it. The policy unequivocally draws a clear distinction between candidate fees and so-called compulsory public representative contributions – a euphemism for what is commonly referred to as tithes – exempting candidate fees from the regime of clause 3.5.1.9. which applies to compulsory public representative contributions.

Then Western Cape Deputy Chief Justice Jeanette Traverso dismissed Brummer’s application, ruling that his termination had been an issue of fact as the IEC had already filled the vacancy, and that she could not interdict a past event, and therefore could also not consider the merits of the termination. Traverso AJP refused an amendment by Brummer’s advocate challenging the legality issue, but she refused the application on the grounds that the issue of legality had not been properly raised and no costs had been tendered. She did not consider the issue, and clearly made no ruling on the legality of the termination, and in any event the policy which proved that the termination of membership was unlawful had deliberately been concealed from her by the DA.

In January 2013, Brummer, having spent some time away from the matter, and after application of mind, filed a claim for damages suffered by loss of income following what he claimed to have been his irregular termination. A damages claim to this effect in an amount of roughly R2.7m was filed in December 2014.

A court date was eventually set for 12 February 2019, four years later, after protracted considerations of pleas and responses among the parties.

During December 2018, Brummer was made aware of a Finance and Fundraising Policy adopted by the DA. Marais and Bredell and Selfe, in October 2011, had been part of the decision. The wording of the policy confirms that indeed no grounds for termination were in evidence and that Brummer’s termination had been consummately irregular and wrongful. It must be noted that no version, configuration or contortion of the facts can deny the certainty that Marais, DA Western Cape Chairperson Bredell, and Federal Council Chairperson Selfe, and indeed all members of the Fedex, were aware of the content and of the implications of the policy at the time when, just 10 months later, Marais, Bredell, and Selfe swore under oath an alternative, false, version.

This all came to a head in January 2019 very shortly before the Court date set for 12 February:

In apparent desperation to prevent discovery of the applicable facts, the DA raised the defence of Issue Estoppel and insisted that it be heard before the main matter. This manoeuvre resulted in an indefinite postponement while Issue Estoppel was heard.

The legal doctrine of Issue Estoppel provides that an issue disputed between parties already finally decided on the merits, cannot be litigated between the same parties again. The DA claimed that Judge Traverso had decided that the DA had acted lawfully against Brummer and that Brummer therefore could not claim that the DA acted unlawfully.

On 15 May Judge Bernard Martin ruled against the DA, clearing the way for Brummer to finally present his case on the merits – after seven years and millions in legal costs.

However,… The DA applied for leave to appeal; lost the application; appealed to the Supreme Court of Appeal (SCA); was denied a hearing but granted an appeal before a full bench of the Cape High Court; lost this CHC appeal on 12 April 2021, and filed an appeal against that decision with the SCA on May 12.

On November 3, 2022, the SCA dismissed the DA’s appeal with costs:

“[36] In my view, Traverso DJP could not have intended her order dismissing the application to mean that she had decided that the membership termination was lawful. This is so despite her expression of doubt that the termination of membership was not unlawful during exchanges with counsel. (Obviously based on the false affidavits “proving” the debt existed.) To hold that the learned judge intended her dismissal of the application to mean that she had decided that question, would be to accept that she had, despite stating that the issue was not properly and fully ventilated, indeed decided the issue against Brummer. Rather, Traverso DJP’s perfunctory treatment of the matter indicates that she was not prepared to decide that issue.”

The next move for the DA in the execution of its Stalingrad gambit was to apply to the Constitutional Court for leave to appeal – an attempt to convince yet another court to perpetuate the judgment they had achieved by means of perjury and forgery in 2012. The Constitutional Court refused their application with costs.

But the DA succeeded in what the Stalingrad Gambit is set to achieve: a five-year delay, and to harass Brummer into submission:  no longer able to afford to press his suit; abandon his Constitution right of access to the court, and “just go away.”

In May 2020 already, long before the 2022 SCA judgment, Helen Zille said, in an email, “You will be interested to know that we are currently going to the Constitutional Court about the case of an ex-DA councillor we fired from Bitou in 2012. The point is that when these things hit the courts, they carry on forever and cost a fortune”. Indeed. Clearly, the Stalingrad gambit is preferred by Helen Zille even as the DA berates former president Zuma for perfecting the South African variation… such litigation “(carries) on forever and cost a fortune.” Smacks of machination.

True to spite, the DA applied to the Constitutional Court for leave to appeal the SCA ruling, yet again sans, perchance, even a modicum of merit. Again, the DA lost. On 19 June 2023, the Constitutional Court ruled that it “… has considered the application for leave to appeal and has concluded that it does not engage the jurisdiction of the Court. Consequently, leave to appeal must be refused.”

Will the merits of this matter now, finally, be ventilated in open court?

Perhaps! The matter had finally been set down for hearing in the Cape Town High Court on 5 March 2024, but the DA’s Stalingrad strategy knows no apparent bounds, and another delay was initiated when the DA, a scant 17 days before the trial date, filed an application to postpone in order for them to obtain an expert opinion on Brummer’s “employability” post August 2012.  A new trial date of 25 October 2024 has now been set. The cost of this manoeuvre, although piffling in relation to the millions already spent, is still several timers more than the R5 621 at the centre of the dispute. It is hard to conclude that the postponement was not to brief an expert witness but rather to delay the DA’s perjury, forgery and obstruction of justice being ventilated in open court. Forgery and perjury and perverting the course of justice are not exactly sexy electioneering calls!

Another alarming DA tactic has been evident for some time and may serve to explain the DA’s protraction of the matter: Seventeen days before the 5 March High Court date, the DA asked for yet another postponement. At the time, Brummer had been in consultation with his attorneys for three days, preparing for 5 March. When the DA told of the latest postponement, Brummer had already spent R300 000 in preparation, in vain for the postponement. Preparation will have to start anew, some three weeks before the latest court date on 25 October. Is the DA messing with Brummer? Is the DA attempting to shake Brummer in an attempt to run him dry – of money, and of energy? Surely not! This would be questionable behaviour, and the DA is a paragon of ethics!

By Brummer’s legal bill it is estimated that the parties have spent more than R10-million in legal fees to date. And the actual matter has not yet been heard! One can only wonder what DA donors the likes of the respected Michiel le Roux, and Martin Moshal, and Mary Slack, may make of the facts… Are they even aware of this matter, and the exorbitant expense? Brummer has not such boundless resources, and meticulous discipline governs his finances. Does the DA, by their tactic, bank on Brummer’s ultimate collapse by financial strain? Is the DA bucking responsibility for error, and the wages of wrong, by running down an adversary? Has the DA the moral and ethical conviction to face up to wrong? Is this the “alternative government” South Africans wait upon? How long will respected donors be milked for money to blast on vengeance? This matter could have been settled twelve years ago, but, apparently, for the stance of Helen Zille, as noted in her email above.

This unfortunate and unnecessary battle harbours pernicious consequences for the DA, rubbishing any probability of possible benefit.

Why can a political party begging to rule the country not settle a simple arithmetical dispute over a miniscule sum of money?

Why the 5-year litigation sideshow involving a dozen Judges, four Courts, including the Constitutional Court, and untold hours of scarce judicial time, and millions of rands?

The crux of the matter is very simple: Did Brummer owe, or not? Let’s get all the relevant evidence before Court for a ruling!

Available evidence points to perjury by Marais and Bredell and Selfe. They might even be guilty of defeating the ends of justice. When the matter is heard on 5 March, or on some future date determined by DA delays, the evidence will be ventilated, and the matter settled. Why delay the outcome?

The DA’s then provincial media manager, Liza Albrecht, confirmed on 18 September 2012 that “around 37” DA councillors were in default at midnight on 31 July 2012 and that only 3 had their membership “automatically” terminated.

Albrecht also confirmed that she had had a discussion with Thora Viljoen of the DA’s Federal Legal Commission at the time who made it clear that “the matter of automatic cessation of membership in consequence of default of payment is not simple” and that she would attempt to get to the bottom of this “automatic process”.

Ms Viljoen never returned her discovery, but in May 2018 a full bench of the Cape Town High Court ruled for then Cape Town Mayor Patricia de Lille against the DA on the very issue of “automatic” termination. Membership termination is not automatic. Simple. The DA did not appeal the ruling and is itself bound by the decision.

The legal circumstances governing the Brummer v. DA matter are similar to the De Lille circumstances, and the Cape Town High Court is bound by the precedent of its own decision, irrespective of Brummer’s indebtedness, or not.

The DA’s apparent insatiable appetite and inexhaustible purse for litigation begs the question of how many deserving complaints against the party were never ventilated for lack of individual funding and resolve. The party’s claims to equality must certainly be questioned by this blustery.

Matter: Brummer was ousted on grounds of an alleged outstanding debt, unsubstantiated by accounting records.

The DA response: Affidavits by Bredell and Marais conjured an exact amount: R5 621.00. To the rand; no cents, even including interest.

Matter: For the debt challenge to hold, clause 3.5.1.9 had to be invoked.

The DA response: Affidavits by Bredell and Marais confirmed that the clause applied to Brummer’s alleged debt.

Matter: One hurdle remained: An internal accounting policy that specifically draws a clear distinction between the debt Brummer was alleged to owe and that to which clause 3.5.1.9 applies.

The DA response: It concealed the policy which had not been disseminated to members. Result: Membership terminated. Mission accomplished. Because, hey, nobody ever fights back against the DA!

Matter: Brummer brought a High Court application for reinstatement.

The DA response: The DA submitted the Bredell and Marais affidavits, and James Selfe’s confirmation. Smacks of perjury…

Matter: But what about that policy?

The DA response: They continue to conceal this vital evidence from Brummer and the Court despite legal duty. Smacks of obstructing the course of justice…

Inevitably this strong evidence led the Court to assume that Brummer did owe the money and that the debt was subject to clause 3.5.1.9. If the Court had had access to the policy, it would have been obvious that Bredell and Marais and Selfe had committed perjury and that the termination had not occurred in law. (The ruling does in no way reflect on the Judge presiding in Motion Court in an urgent matter, and entirely dependent upon the integrity of litigants and their legal representatives to provide the Court with all relevant information.)

The upshot of the DA’s obliquity was that the court decided in their favour. At that point nobody else but the DA knew what foul means had led to their victory.

And so it would have remained – a miscarriage of justice – had not Brummer brought his claim for damages.

The DA defended again, repeating the false affidavits as evidence and continuing to conceal the applicable policy and its vital information.

Eventually, during late 2018, Brummer became aware of the existence of the applicable policy and approached the Court to compel the DA to discover it.

The policy presented a devastating blow to the DA’s defence against Brummer’s damages claim and threatened to expose the perjury of Marais and Bredell and Selfe six years earlier, and threatened to expose the subversion of the DA and their legal representatives in concealing evidence from the Court.

In addition, the De Lille ruling had been handed down in May…

Matter: The DA lost any claims to a plausible defence.

The DA response: It reverted to the 2012 judgment conjured by prestidigitation and criminal deception, raised a special defence of issue estoppel, all but designed to deceive the Court into perpetuating a miscarriage of justice which they themselves had caused. Cynicism all but redefined for malice.

Five years later, today, after the expenditure of more millions, the real, the actual matter is finally scheduled, twelve years after the “ Brummer indebtedness” had been conjured, to be heard on 25 October 2024.

Might one expect the DA to face up and be held to account, as the party continuously demand of their political opponents?

Manifestly not.

Matter: Brummer has given notice of an intended application to amend his plea of 2015 when the DA had concealed the applicable policy and prevented discovery of evidence now available. Obviously the 2015 plea could not have included arguments and facts concealed by the DA! Such amendments are routine and logical progressions which are normally accepted by the Court and the litigants.

The DA response: It has given notice that it will oppose the proposed amendments which inevitably will lead to further delays, and increased costs yet again... a clear abuse of process.

Stalingrad will have a number of new suburbs by the time the DA and Jacob Zuma are done with innovative construction. How much time and money and resources will be wasted on this latest DA dupery cannot be known. In all reasonableness, the DA should name some of the Stalingrad buildings after its major donors. But will the DA have the decency?

Roll on, 25 October. Let’s see the next episode of the Bold and the Baleful.

It’s about an alleged debt of R5 621.00. In 2012. Current value: About R3 200.00. Some R10-million spent. And counting.

Can a political party unable to settle a dispute, for twelve years and running, for some R3 000, be relied upon to negotiate lasting coalitions; to meet the demands of national government on the international stage?

A lawyer familiar with similar courtroom face-offs estimates that the DA’s larger legal team costs around double Brummer’s skeleton team of one advocate and one lawyer. And Brummer is in for a million plus for this next round only.

The outrageous legal expense demands a final mention: What started out as a dispute of R5 621 and could have been settled for an already ridiculous some R3 000 000 a number of years ago, may now demand an eight-figure conclusion. Ironically, in their papers the DA declares that “R5 621 is not an insignificant amount.” How does nearly R10 000 000 sound?

Enquiries:
Johann Brummer

082 846 0792

jwbrummer@gmail.com

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