13 September 2017
On Tuesday the High Court in Pietermaritzburg handed down a judgment declaring that the ANC KwaZulu-Natal Provincial Conference in November 2015 was unlawful and invalid.
The case was brought by Lawrence Dube, Sibahle Zikalala, Martin Sifiso Mzangwa, Mzwebi Remigius Ngcobo and Lindiwe Nomalungelo Buthelezi against 36 people as well as the ANC Provincial Executive, the ANC and the Electoral Institute.
Dube and the other applicants argued that the conference was unlawful because it did not meet the requirements of the ANC Constitution. Specifically, they argued that the conference could only take place if a third of the branches requested it.
The applicants also argued that the conference had been plagued with numerous irregularities including manipulation of the vote, a rushed audit of branch membership lists and discrepancies in the accreditation of the delegates. However, these allegations were disputed by the other side.
For example, an allegation of irregularity arose from a tweet posted by the MyANC twitter account which contained the results of the election while voting was still ongoing, approximately four and a half hours before the official results were announced. The applicants argued that the tweet was evidence of corruption in the voting process. Unfortunately, the timing of the tweet was disputed and could not be resolved in the court proceedings. As a result, the court found that no inference of fraud could be made on the basis of the tweet.
To allow for the matter to be decided without oral testimony (in order to speed up the case), the applicants did not persist with the disputed allegations and the court applied a legal rule which allows some factual disputes to be resolved in favour of the other side. So the court proceeded without deciding these facts, except where there was documentary proof which supported the applicants’ version.
The case then turned on whether a provincial conference could only take place if it had been requested by at least a third of the branches in KZN and if not, whether the alleged irregularities invalidated the conference.
The respondents argued that this request was not needed for a provincial conference to take place. The respondents also argued that even if there were irregularities at the conference, the conference could proceed if at least 70% of the qualifying branches were compliant. The respondents also argued for the case to be dismissed on the basis that invalidating the election after almost two years would prejudice them and other affected parties.
A full bench of the high court — three judges — relied, in part, on a previous decision from the Constitutional Court which invalidated an ANC provincial conference in the Free State. The court pointed out that political parties are not governed by legislation but are instead left to regulate themselves. Consequently, the rules and regulations political parties adopt form a kind of contract between the members and the party. Where these rules are breached, a member is then allowed to file a case and have the matter resolved by a court, but the court is restricted to considering the party-made rules when deciding the matter.
Under the ANC constitution, provincial conferences may take place every four years, but if at least a third of all branches in the province make a request, conferences may happen more often. The previous conference took place in May 2012, which, according to the applicants, meant that the next conference ought to have taken place in 2016. The respondents argued that the ANC Constitution allowed a provincial conference to take place at any time in the four years following the last conference, meaning the conference could have taken place at any time between May 2012 and May 2016.
The court thought that this interpretation was ‘absurd’ and defeated the purpose of giving officials a four-year term of office. So the court held that the 2015 conference took place early and, as a result, needed to have happened at the request of a third of the provincial branches. Since there was no such request, the conference was unlawful and invalidated.
However, the court still had to decide whether the decisions taken, as well as the vote, should be invalidated.
With regard to the irregularities, the court found that three wards — eThekwini Wards 6 and 55 and the Far North Region, Mtubatuba sub-region, Ward 4 — had been wrongly denied the right to participate in the conference. Also, the court found that eThekwini Ward 79 had participated in the conference irregularly. However, these wards did not have enough delegates to have changed the outcome of the vote. Therefore the court held that the vote was not invalid as a result of irregularities in the auditing of membership and appeals process.
But the court then considered whether the vote and other decisions taken at the conference, including the appointment of the Provincial Executive Committee, should be invalidated as a result of the conference being invalidated. The court considered whether the order of invalidity should be limited because of the potential prejudice to members that might occur. But the judges found that the respondents had overstated the potential prejudice. The court found that all decisions taken at the conference were invalid. But it did not prescribe whether there should be another conference and vote. The consequences of the order of invalidity have to be dealt with by the ANC through its internal processes.
The ANC was ordered to pay half the applicants’ costs.