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[2019] ZAGPJHC 4
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Motswana and Others v African National Congress and Others (35398/18) [2019] ZAGPJHC 4 (6 February 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 35398/18
In
the matter between:
AARON
MOTSWANA
First
Applicant
MAMONYENYANE
MALEKE
Second
Applicant
KUTLWANO
MASISI
Third
Applicant
GRAYN
NICHOLAS
JOOD
Fourth
Applicant
SUPRA
MAHUMAPELO
Fifth
Applicant
and
AFRICAN
NATIONAL
CONGRESS
First
Respondent
THE
DISBANDED
PEC
2nd
to 48
th
Respondents
THE
PROVINCIAL TASK
TEAM
49
th
to 78
th
Respondents
JUDGMENT
KATHREE-SETILOANE,
J
[1]
The applicants are branch members of the African National Congress in
the North West Province. They seek an order declaring
unlawful and
setting aside the decision of the National Executive Committee (NEC)
of the African National Congress taken on 31
August 2018 to disband
or dissolve the North West Province Executive Committee (PEC). The
first applicant is a former member of
the disbanded PEC. The fifth
applicant is the former Chairperson of the disbanded PEC and former
Premier of the North West Province.
The second to the forty-third
respondents are also members of the disbanded PEC.
[2]
On disbanding the PEC, the NEC appointed a Provincial Task Team (PTI)
on 20 September 2018. The forty-fourth to seventy-fourth
respondents
are the members of the PTI. The applicants also seek orders: (a)
declaring unlawful and setting aside the decision
of the NEC to
appoint the PTT, and (b) interdicting the PTI from carrying out the
functions conferred on it by the NEC and the
ANC Constitution.
Lastly, the applicants seek an order reinstating the disbanded PEC
within 7 days of issue of the order of this
Court.
[3]
This matter first came before Moshidi J on 9 November 2018 on an
urgent basis for interim relief. Moshidi J struck the matter
from the
roll on the basis of a lack of urgency. He, nonetheless, observed
that the matter is of national significance and should
be heard
expeditiously. The matter was accordingly set down on the opposed
motion roll on 29 January 2019 for final relief on a
semi-urgent
basis.
Background
[4]
The disbanded PEC was elected unopposed on 12 February 2015. The
Organisational Report of the ANC, prepared by Mr Gwede Mantashe,
the
Secretary-General of the ANC at the time, and delivered to the ANC
54th National Conference held at Nasrec in Gauteng on 16
December
2017, describes the disbanded PEC as follows:
'...
The current PEC was elected unopposed, reflecting the hard work of
trying to eradicate anarchy. The NWC was elected and sub-committees
set up, and all PEC members deployed to the regions. The PWC, which
was elected in the first PEC meeting after the Provincial.
Conference, has been active, optimally functional and meets regularly
to process decisions of the PEC. The NEC deployees are hands-on
in
doing the work. They have good relations with the PEC, and have
provided political guidance continuously.
The
sub-committees are functional and make
a
big contribution to
the work of the PEC. These meet regularly and make visible
contribution, that is Organising and Campaigns; Economic
Transformation, Legislature Government and Media Communication.
Political education was institutionalised after the revival of
the
Oliver Tambo Political School. All PEC and REC members have been
trained as trainees for the Branch Manual. The following
sub-committees hardly met, that is, Social Transformation; Peace and
Stability; and international relations.
. .
The
province is campaign-oriented, beyond just the elections. This
entails deploying organisers to support the regions. Overall,
though,
the regions are uncomfortable with the support as they perceive it as
a way to monitor them. The membership drive is witnessed
by the
growth of membership."
[5]
In the build-up to the 2017 National Conference, the ANC in all of
its provinces including the North West experienced divisions
and
factionalism within the party as part of the national leadership
race. These divisions became particularly marked in the North
West
Province since March 2018. Mr Obed Bapela the permanent NEC deployee
to the North West writes in his undated report entitled
'Political
Analysis of the North West Challenges' :
'The
NEC deployees have so far been seized with issues in the North West
since March 2018. The NWC has made early interventions,
and the
President has also had interface with the province and its leadership
in trying to find
a
solution to the challenges facing the ANC
and its Alliance partners. The situation in the North West has
reached a very delicate
and complex stage. We are at the point where,
as the ANC, we are gravely burdened by the need to focus on more
critical matters
of the elections. We need to present a united force
and help rebuild the confidence of our people that has taken a
serious knock
in the recent past. But it is also
a
time when
there is a resurgence of renewed hope that the ANC can restore its
firm place in the imagination of our people. The Thuma
Mina Campaign
has had
some
positive effects on our people and they are more
and more pressed to spread the new spirit in the North West as well.
However,
a
quick solution is in no way likely to help the
situation, but
a
concerted effort over a period of time will
go a long way towards unravelling the complexities that obtain in
this province.'
[6]
During mid-August 2018, the National Working Committee (NWC) had
undertaken a road-show across the North West' Province to engage
all
the ANC regional structures. On 14 August, the Provincial Chair of
the PEC and its acting-Secretary received a letter from
the Office of
the Secretary-General informing it of the visit by members of the NWC
to the North West Province on 19 and 20 August
2018. The letter
stated that the purpose of the NWC's visit to the province would be
to
"get an understanding of the provincial challenges and the
state of the organisation for its readiness for the upcoming National
General Elections."
[7]
Attached to the invitation was a list of questions on (a) the
"state
of the organisation in the region"
and (b)
"governance
in the region".
Leading up to the North West's regional
visit on 19 August 2018, the respective Branch Secretaries prepared
the attendance registers
for accreditation in accordance with the
requirements that ANC meetings must be attended by members of the
party in good standing
(i.e. fully paid up members of the party). In
fact, an annexure to the invitation listed the participants for each
regional meeting
as: NWC, NEC deployees, PEC deployees, RECS
(Regional Executive Committee), Top five of each Branch, Five
representatives from
the Leagues (Youth League and Women's League),
and representatives from branch or regional structure where there is
more than one
structure in a branch or region.
[8]
Meetings took place in each of the four ANC regions in the North West
Province, namely Bojanala, Ngaka Modiri Molema, Dr Ruth
Segomotsi
Mompati and Dr Kenneth Kaunda. The meetings quickly descended into
chaos and were marred by several irregularities including
that:
(a)
Verification of membership in good standing was stopped midway and
then abandoned due to the intervention by amongst others
the Deputy
President of the ANC and the NWC deployees attending the meetings.
Consequently numerous people who attended and addressed
the meeting
were not verified as members of the ANC in good standing.
(b)
Duly elected members of the RECs were not given an opportunity to
either speak or make presentations to the NWC on the
questions raised
in the invitation.
(c)
The reports prepared by the RECs were not presented nor considered as
the NWC opened the meeting to unelected members
of the community
without verifying their membership with the party and their authority
to speak on behalf of a branch.
(d)
Non-ANC members and members of opposition parties were also allowed
to speak and were consulted in these meetings, yet
duly elected
members of the properly constituted branches and regional structures
of the ANC were not.
[9]
Following the NWC's visit to the branches, a report was compiled by
the NWC and presented to the NEC at a closed meeting on
30 August
2018. The report presented by the NWC to the NEC makes disparaging
and adverse remarks about the state of the organisation
and
governance in the North West Province. It was compiled on the basis
of the views expressed at the meetings held in the four
regions that
were attended by non-members of the ANC.
[10]
In making these findings, the duly elected members of the Regional
Executive Committees (RECs) and the Branch Executive Committees
who
were present at these meetings were not afforded an opportunity to
present their regional reports or branch reports and to
respond to
adverse comments made about them and the state of the organisation in
the province. The NEC, informed by the NWC's report
and the
improperly convened meetings, resolved to dissolve the PEC on 31
August 2018. The decision was communicated late at night
on 31 August
2018.
[11]
It is common cause that between the NWC's visit on 19 and 20 August
2018 and the decision taken on 31 August 2018, none of
the Branches
or Regions were consulted about the impending decision. Nor were they
given an opportunity to respond to the adverse
comments and
statements made by community members and non-ANC members at the
meetings held on 19 and 20 August 2018.
[12]
On 20 September 2018, a Provincial Task Team (PTI) was appointed as
an interim structure in the North West, with the full powers
and
responsibilities of the PEC.
The
Applicants' submissions
[13]
The two bases upon which the Applicants seek the declaratory and
interdictory relief is procedural fairness and substantive
irrationality. The applicants contend that the decision of the NEC to
dissolve the PEC was procedurally unfair and therefore unlawful
because the Branches and Regions were not, as contemplated in the ANC
Constitution, notified of the impending decision and nor
were they
consulted with prior thereto. They furthermore contend that the
Branches and the Regions were not given proper reasons,
by the NEC at
the time of making its decision, for why it became "necessary"
to dissolve or disband the PEC.
[14]
In relation to the substantive legality of the decision of the NEC to
dissolve the PEC, the applicants contend that the NEC
failed to
comply with the requirements in Rule 12.2.4 of the ANC Constitution
which specifies that the 'NEC may suspend or dissolve
a PEC where
necessary'. The thrust of their argument is that the NEC has failed
to demonstrate, on the evidence, that the dissolution
of the PEC was
'necessary' as contemplated in the Rule.
The
ANC's submissions
[15]
The ANC opposes the application on two grounds. The first ground is
that the application is moot, and the second is on the
merits. On
mootness, the ANC argues that the relief sought by the applicants has
become moot as it will have no practical legal
effect, if granted. On
the merits of the case, the ANC submits that Rule 12.2.4 of the ANC
constitution confers a wide discretion
on the NEC to dissolve the PEC
where necessary. It seeks to persuade the Court that the state of the
organisation, its governance
and the uprisings that took place in
North West during April and May 2018, created the necessity for the
PEC in the North West
to be dissolved.
[16]
The ANC contends that because the NEC decision was taken in the
exercise of a discretion in terms of Rule 12.2.4 of its constitution,
the standard for review for discretionary decisions must be applied,
namely that a court can only interfere where the discretion
was
exercised on a wrong principle or was capriciously made. In other
words, a court's power to interfere is limited to those cases
where
the exercise of the judicial discretion is vitiated by misdirection,
irregularity, or the absence of grounds on which the
decision-maker
acting reasonably, could have made the decision in question. In
conclusion, the ANC argues that the very fact that
the NEC, acting
through the NWC, followed a process of consultation in the regions of
the ANC and eventually came to a conclusion
as to what decision to
take without being beholden to the recommendation in the Obed Bapela
Report, is a clear demonstration that
it did not take its decision
capriciously. It accordingly submits that there is no basis on which
the NEC decision can be interfered
with.
Mootness
[17]
In relation to its primary contention that the issues for
determination are moot, the ANC argues that if the relief in prayer
2.4 of the Notice of Motion seeking reinstatement of the PEC within
seven days of the order is granted, it would have no practical
effect
because the PEC's term of office will expire on 13 February 2019.
Coupled to this is the argument that the other relief
sought is
dependant on the declaratory relief sought, hence the Court must
refuse to grant that relief as well.
[18]
The ANC contends that if the Court were inclined to declare the
dissolution of the PEC unlawful and order reinstatement, such
orders
would have no practical effect whatsoever as the term of the PEC will
expire on 13 February 2019. The ANC accordingly urges
the Court to
dismiss the application on the ground that the relief sought is moot
as it will have no practical effect if granted.
[19]
Mootness
is not an absolute bar to deciding an issue. In
Van
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
Amicus Curiae)
[1]
,
the
Constitutional Court held that:
'It
is by now axiomatic that mootness does not constitute an absolute bar
to the justiciability of an issue. The court has
a
discretion
whether or not to hear
a
matter. The test is one of the
interests of justice. A relevant consideration is whether the order
that the court may make will
have any practical effect either on the
parties or on others. In the exercise of its discretion the court may
decide to resolve
an issue that is moot if to do so will be in the
public interest. This would be the case where it will either benefit
the larger
public or achieve legal certainty.'
[20]
Central to the relief sought in this matter is the question of
whether the NEC's decision to disband the PEC violates the rights
of
the applicants in section 19 of the Constitution. Political rights
under section 19 of the Constitution. are fundamental rights
in our
dispensation. The question of whether the decision of the NEC to
disband the PEC violated this right is of paramount importance
to the
larger public as well as to the general ANC membership. The
determination of this question will no doubt provide certainty
for
the future and serve to caution the NEC against acting unlawfully in
the future.
[21]
There is a further reason why the relief sought is not moot. On
dissolution of the PEC, the NEC was enjoined by the Rule 12.2.4
to
immediately appoint the PTT. The PTT would have, since its
appointment taken numerous decisions. This means that if the Court
were inclined to declare the NEC's decision to appoint the PTT
unlawful and set it aside, there are bound to be consequences arising
from the decisions taken by the PTT since its appointment. Therefore,
at least some part of the application, particularly the consequences
of the declaratory relief that may be granted will certainly remain
alive.
[22]
There is, furthermore, no evidence before the Court that the PTT has
made any arrangements to convene a Provincial Conference
on 13
February 2019 to elect a new PEC. So even if the PEC's term ends on
13 February 2019 and there is no Provincial Conference
convened to
elect a new body by that date, it is within the powers of the NEC
under the ANC constitution to extend the term of
the PEC until such
time that an Provincial Conference can be convened by the reinstated
PEC to elect a new PEC. Should it be disinclined
to do so, then I
would imagine that the PEC will remain in place until a new PEC is
elected by the Branches at a Provincial Conference
in due course.
Notably, in this regard, the ANC constitution makes no provision for
an interim structure to be appointed between
the expiry of the term
of a PEC and the convening of a Provincial Conference to elect a new
one.
[23]
It
is, however, not for this Court to regulate the internal affairs of
the ANC in light of a declaration of invalidity which is
inevitable
if there is a breach of the provisions of the ANC constitution. The
ANC constitution confers upon the ANC the power
to regulate its own
affairs.
[2]
As held by the
Constitutional Court in
Ramakatsa,
and
endorsed more recently by the KwaZulu Natal Provincial Division in
Dube
&
Others
v Zikalala
&
Others,
[3]
the
consequences that flow from a declaration of invalidity are best
dealt with by the ANC itself in regulating its own affairs.
Should
the Court be inclined reinstate the disbanded PEC, this will not
affect any rights which the NEC may wish to exercise, including
the
dissolution, on proper grounds, and subject to proper and fair
procedures. It follows from this that the issues for determination
in
this matter and the relief sought are not moot.
Procedural
Fairness
[24]
It
is well established in our law that the principles of natural justice
can be implied from the express terms of the contract of
a voluntary
association.
[4]
[25]
In
Psychological
Society of South Africa v Qwelane
&
Others
[5]
the
Constitutional Court highlighted the considerations of legal policy
that underpin the
audi
alterem partem rule
which
is the cornerstone of procedural fairness as follows:
'It
is trite that at common law and in terms of the tenets of natural
justice, hearing the other party
-
audi alteram partem
-
is an indispensable condition of fair proceedings.
…
The
principle is underpinned by two important considerations of legal
policy. The first is recognising the subject's dignity and
sense of
worth. Second, there is
a
more pragmatic consideration. This
is that audi alteram partem inherently conduces to better justice."
Significantly,
the application of the
audi
artem principle
plays
an important and indispensable part in providing the repository of
power with an opportunity to obtain information which may
be relevant
for the proper exercise of the power.
[6]
[26]
Section 19 of the Constitution provides that:
'Every
citizen is free to make political choices, which includes the right
...
to participate in the activities of, or recruit members
for, a political party.'
The
rights in section 19 of the Constitution are enjoyed through the
membership of, and participation in, political parties. In
Ramakatsa,
[7]
the
Constitutional Court held:
'In
relevant part section 19(1) proclaims that every citizen of our
country is free to make political choices which include the
right to
participate in the activities of
a
political party. This right
is conferred in unqualified terms. Consistent with the generous
reading of provisions of this kind,
the section means what it
says
and says what it means. It guarantees freedom to make political
choices and once
a
choice on
a
political party is made,
the section safeguards
a
member's participation in the
activities of the party concerned. In this case the appellants and
other members of the ANC enjoy
a
constitutional guarantee that
entitles them to participate in its activities. It protects the
exercise of the right not only against
external interference but also
against interference arising from within the party.'
[27]
The
ANC is a voluntary association created by agreement. Its relationship
with its members is contractual. The terms of the contract
are found
in the constitution of the ANC (ANC constitution), which is the
mechanism through which ANC members exercise their section
19 rights
to participate in its structures and activities. The ANC constitution
is premised on the constitutional values of non-racism,
non-sexism
and democracy to ensure accountability, responsiveness and openness.
The ANC constitution is binding on the organisation
and its members.
There is a duty on the ANC to act lawfully and in compliance with
its' constitution
[8]
. Any breach
by the ANC of a member's rights will not only be unlawful under the
ANC constitution but it will also be in violation
of that members'
rights under section 19(1)(b) of the Constitution which entrenches
the rights of citizens to form political parties
and participate in
their activities, including campaigning. The nature and scope of this
right makes it clear that a constitution
of a voluntary association
must be construed in a manner which promotes the right of members to
procedural fairness, when adverse
decisions are taken.
[28]
Rule 7 of the ANC constitution provides for the organisational
structure of the ANC. Rule 7.1 specifies that the ANC consists
of
the:
'7.
1.1
The National Conference which elects the National Executive
Committee;
7.1.2
The Provincial Conference which elects the Provincial Executive
Committee;
7.1.3
The Regional Conference which elects the Regional Executive
Committee;
7.1.4
The Branch Biennial General Meeting which elects the Branch Executive
Committee.
'
[9]
[29]
The NEC is the highest organ of the ANC between National Conferences.
The NEC has the authority to lead the organisation subject
to the
provisions of the ANC Constitution. Rule 12.2.4 of the ANC
Constitution outlines the powers of the NEC. It enjoins it to:
'Ensure
that the Provincial, Regional and Branch Structures of the ANC and
the Leagues function democratically and effectively.
(
The
ANC may suspend or dissolve a PEC where necessary.) The suspension of
a PEC shall not exceed a period of 3 (three) months. The
election of
a PEC, which has been dissolved, shall be called within 9 (nine)
months from date of dissolution. The NEC must appoint
an interim
structure during the period of suspension or the dissolution of the
PEC to fulfil the functions of the PEC.'
(own emphasis)
[30]
Rule 3 of the ANC constitution provides that: (a) the ANC is a non
racial and non-sexist and democratic liberation movement.
Its'
policies are determined by the membership and its leadership is
accountable to the membership in terms of the procedures laid
down in
the constitution.
[31]
Rule 17 of the ANC constitution deals with the Provincial Conference.
It provides that the Provincial Conference is the highest
organ of
the ANC in each province subject to the decisions of the National
Conference and the National General Council, and the
overall guidance
of the NEC. Rule 17.2.1 provides that the Provincial Conference
'shall be held at least once every four years and more often if
requested by at least one-third of all branches in the Province'.
[32]
Under the ANC constitution all properly convened conferences at the
National, Provincial and Regional tiers are constituted
as follows:
(a)
At least 90% of the delegates of the Conference shall be from
branches elected at properly constituted Branch General
Meetings. The
number of delegates per branch shall be in proportion to their
paid-up membership, provided that each branch in good
standing shall
be entitled to at least one delegate.
(b)
All members of the Provincial Executive Committee shall attend
ex
officio
as full participants in and delegates to the Conference.
(c)
The remainder of the voting delegates at Conference shall be from the
members of the RECs, ANC Veterans' League, ANC Youth
League and the
ANC Women's League, as allocated by the PEC.
[33]
Branches form the basic structure of the ANC. Rule 23 of the ANC
constitution provides that a Branch shall be the place where
members
exercise their basic democratic rights to discuss and formulate
policy and be the basic unit of activity for members in
the ANC.
[34]
Rule 3.4 provides that in its' composition and functioning, the ANC
shall be
'democratic, non-racial and non-sexist’..
The
rights and duties of ANC members are spelled out in clause 5. Rule
5.1.1 states that
'members are entitled to take a full and active
part in the discussion, formulation and implementation of the
policies of the ANC'.
Rule 5.1.4 provides that
'members are
entitled to take part in elections and be elected or appointed to any
committee, structure, commission or delegation
of the ANC'.
Rule
5.2 in turn sets out the duties of members of the ANC. In terms of
Rule 5.2.1 members shall
"belong to and take an active part
in the life of his/her branch".
[35]
The PEC is elected by members of the ANC. In terms of Rule 17.2, the
PEC is elected at a Provincial Conference which must be
held
"at
least once every 4 (four) years".
At least 90% of the voting
delegates at a Conference
"shall be from Branches, elected at
properly constituted Branch General Meetings".
[36]
Clause 12 provides for the powers of the National Executive
Committee. The overall power is contained in Rule 12.1 which
specifies
that the NEC is the highest organ of the ANC between
National Conferences and has the authority to lead the organisation
subject
to the provision of the Constitution. The words
'subject
to'
make it plain that the NEC cannot act in conflict with or
override the ANC constitution.
[37]
The ANC constitution places democracy, accountability and membership
participation at its' centre. Rule 23.2.3 specifies that
a Branch is
'the place where members exercise their basic democratic rights
and formulate policy'.
Rule 23.2.4, in turn, states that the
Branch is the basic unit of activities for members.
[38]
What
is clear from these core provisions of the ANC Constitution is that
democracy is the ANC's
grundnorm.
In
the words of retired Justice Moseneke, the ANC constitution serves to
'domesticate' the section 19 constitutional rights of its
members.
[10]
The powers of the
NEC are not unconstrained. They are subject to the principle of
legality which has both a substantive and procedural
component.
Therefore, as relating to this matter, not only is the NEC
constrained by the jurisdictional requirement to act where
it is
'necessary
to do
so'
in Rule 12.2.4 of the ANC Constitution, but it is also constrained by
the requirements of procedural fairness.
[39]
It is clear from the provisions of the ANC Constitution that the
right to hearing before adverse decisions are taken is implicit.
Importantly in this regard consultation and democracy are at the very
heart of the organisation. The basic unit from which a member's
rights are exercised is the Branch. As such branch members, who elect
the PEC in the first instance, were entitled as a matter
of law, to
be notified and consulted prior to the dissolution of the PEC.
[40]
It is clear from the provisions of the ANC Constitution that the
powers of the NEC to suspend or dissolve a PEC are not only
constrained by the jurisdictional requirement to do so where it is
'necessary'
only, but they are also constrained by the
requirements of procedural fairness. The basic unit from which the
rights in section
19 of the Constitution are exercised under the ANC
constitution are the Branches. It would follow therefore that the
Branches in
the four Regions - Bojanala, Ngaka Modiri Molema, Dr
Kenneth Kuanda and Dr Ruth Segomotsi Mompati - who elected the PEC in
the
North West Province in the first place, were entitled, as a
matter of law, to be notified and consulted prior to any decision by
the NEC to dissolve the PEC.
[41]
The ANC contends that although it was not required to consult with
the ANC membership in the Branches and the Regions because
section
12.2.4 of the ANC constitution does not require it to do so, it
nevertheless did engage in a consultative process with
the Branches
on 19 August 2018 at the consultative meetings which were convened in
the four regions.
[42]
The departure point for procedural fairness is notice of the decision
in issue. The question is whether the applicants, members
of the
Branches, or the PEC itself were given notice of the decision to
dissolve the PEC. It is plain on the facts that none of
these bodies
received notice of the impending decision to dissolve the PEC. The
invitation to the Branches, RECs and the PEC recorded
the purpose of
the NWC visit as: '
to get an understanding of the Provincial
challenges and the state of the organisation for its readiness for
the upcoming general
elections.'
This notice/invitation does not
record any intention to dissolve the PEC.
[43]
The so called consultative meetings themselves were not meetings with
the NEC but rather with the NWC which has no power to
dissolve the
PEC. The purpose of the meeting is said to be an assessment of the
state of the organisation for its readiness for
the general
elections. This means that Branch members who attended the purported
consultative meetings had absolutely no clue that
the PEC would be
dissolved. Under any interpretation, these meetings do not equate to
consultative meetings with the Branches on
the question of whether
the PEC should be dissolved. Branches were, therefore, not given
notice of, or consulted on, the intended
decision of the NEC to
dissolve the ANC. Its' failure to do so was fatal.
[44]
The Branches were also given a series of questions to answer at that
meeting. What is striking from those questions is that
none of them
dealt with the functionality and effectiveness of the PEC. To the
contrary, the questions related to Branches, Branch
General Meetings,
disputes, suspensions, Regional Executive Committees and Regional
Task Teams. This is a further indicator of
the misleading nature of
the purported consultative process followed by the NEC. Had the NEC
been serious about embarking on a
genuine consultative process with
the Regions/Branches concerning the functionality and effectiveness
of the PEC in relation to
the state of the organisation in the North
West Province, then it ought to have asked direct questions on the
performance of the
PEC.
[45]
It is clear from the undisputed facts that these so called
consultative meetings did not meet the standard of procedural
fairness
as they were not properly convened. This much is clear from
the undisputed facts below:
(a)
The meeting at Dr Ruth Segomotsi Mompati is described in the founding
affidavit as having descended into chaos and having
been attended by
persons with no accreditation. Attempts to get the attendees to
settle down failed and the meeting degenerated
into chaos. Banana
peels and bottle caps were thrown onto the stage and the NWC members
walked out of the meeting and refused to
proceed. None of these
allegations are disputed by the ANC.
(b)
Likewise in relation to the Dr Kenneth Kaunda Region, the same
applies. In their founding affidavit, the applicants allege
that
there was a parallel structure that purported to conduct registration
of people who were not members of the ANC. These people
were not
members of the ANC and had no authority to attend the meeting, yet
the Secretary-General of the ANC, Mr A Magashule, allowed
them to
attend. The meeting was described by Mr Magashule as "a
fact-finding meeting" and he did not raise anything concerning
the dissolution of the PEC. These allegations are not disputed by the
ANC in its' answering affidavit.
[46]
Although there is a purported dispute in relation to whether the five
members of the Branches who attended the so called consultative
meetings were allowed to speak, this dispute is not material to the
allegations as the ANC admits that it did not consult specifically
on
the issue of the dissolution of the PEC at these meetings. The
explanation provided by the NEC in the answering affidavit is
that it
did not approach the consultation with a specific outcome in mind.
That may be true, but once the NEC decided that the
dissolution would
be the appropriate course of action, it was under an obligation to
consult with the Branches which it failed
to do.
[47]
The consultation meeting held at the Ngaka Modiri Molema Region
suffers from exactly the same defects. In the founding affidavit,
the
applicants allege that the consultative meeting began at 09h00. It
was attended by Mr David Mabuza, the Deputy President of
the ANC.
Upon his arrival he instructed that the registration process which
was then underway should stop and everyone, regardless
of whether
their membership of the ANC was verified or not, should be allowed to
attend. The applicants allege in the founding
affidavit that this was
unlawful and irregular.
[48]
In addition the applicants allege that the REC and NEC members who
were in attendance at the meeting were not allowed to speak;
the
report of the Region was not entertained; and the Regional Secretary
was not allowed to present the Regional report. Instead,
members of
other political parties including opposition parties and non-invited
members were allowed to attend and to speak. Lastly,
the applicants
allege that the questions of the NWC which were listed in the
questionnaire attached to the meeting invitation were
not addressed
at this meeting at all.
[49]
The NEC attempts to engage with these allegations in its answering
affidavit through a report penned by Ms Barbara Creecy,
who was
present at the meeting at Ngaka Modiri Molema. However, Ms Creecy
prepared a report of her observations of the meeting.
This
notwithstanding, the NEC does not deal with the substance of the
applicants' allegations, in particular that non-ANC members
were
allowed to attend and to participate in the discussion at the meeting
and that the issues raised in the questionnaire were
not attended to.
[50]
The situation that prevailed at the so called consultative meeting
which was held at Bojanala was no different. The applicants
allege in
the founding affidavit that the Regional Secretary was not allowed to
speak and present her report at this meeting. It
is also alleged that
the meeting turned chaotic and that the credentials of the people who
were allowed into the meeting were not
verified.
[51]
The answering affidavit virtually admits these allegations. In
particular it accepts that the meeting was rowdy and non-members
were
allowed to attend. It, however, seeks to justify the dissolution by
alleging that there was division at the meeting which
the PEC was
obliged to resolve. There is no merit in this contention. The
so-called consultative meeting simply failed to fulfil
the function
of consultation which was to provide a platform for the the NEC to
satisfy itself as to the appropriateness and necessity
for the
decision that it intended to make. In short, the so called
consultative meetings were shambolic, chaotic and rowdy.
They were
furthermore not properly convened. They accordingly did not meet the
basic requirements of procedural fairness.
[52]
Lastly, the NEC did not provide the applicants with the reasons for
the decision. This is a further ground on which its decision
was un
procedural. The NEC states that the reasons for the dissolution were
clearly spelled out in Annexure "AM3".
Annexure "AM3"
is a copy of the press statement issued by the Secretary-General of
the ANC. It is headed
'Dissolution of the North West Province
Executive Committee'.
This in my view is a cryptic document which
reads exactly like a press statement and is indeed a press statement.
What it does not
do is provide reasons for the dissolution of the
PEC. The opening paragraph simply records that
'the special
session of the NEC resolved to intervene in the North West Province
to strengthen the organisation and enhance its
capacity to meet its
mandate to the people of the Province'.
If the reason for
dissolving the PEC was its dysfunctionality and ineffectiveness in
the North West, or the violence and torchings
that occurred in
April/May 2018, then those reasons should have appeared in the press
statement which on the ANC's version are
the reasons for the
decision. It is disingenuous, in my view, for the ANC to argue that
the press statement constitutes reasons
for the decision.
[53]
In the premises, I am of the view that the decision of the NEC to
dissolve the PEC did not meet the basic requirements of procedural
fairness which is contemplated in both the ANC constitution and the
Constitution of the country. The dissolution of the PEC is
a drastic
and draconian measure that ought to have been resorted to as a last
resort. The ANC acknowledges as much, but did not
deem it necessary
to notify or consult with the Branches before finalising its
decision. Nor did it give the members of the PEC
a hearing. Moreover,
it failed to give proper reasons for dissolving the PEC.
Remedy
[54]
For all these reasons I find that the decision of the NEC to dissolve
the PEC is procedurally unfair, in breach of the ANC
Constitution and
in violation of the applicants section 19 constitutional rights. The
applicants are accordingly entitled to the
declaratory relief in
prayers 2.1 and 2.2 of the Notice of Motion declaring unlawful and
setting aside the decisions of the NEC
to dissolve the PEC and to
appoint the PTT, respectively. While a declaration of rights is
important, it is not sufficient where
the conduct of the respondent
is unlawful for being in non compliance with its own own
constitution - as is the case here.
[55]
Leaving
the PTI in place as contended for by the ANC, will be to preserve an
illegal state of affairs in the absence of any explanation
from the
ANC as to why the Court should countenance such illegality. A party
seeking to preserve an illegal state of affairs must
explain
precisely why a court should countenance that illegality.
[11]
[56]
The relief granted must not only be just and equitable but also
effective. The applicants are, therefore, entitled to the
consequential order asked for in the Notice of Motion, namely the
interdictory relief and an order reinstating the disbanded PEC.
The
ANC has, once again, produced no evidence why such an order would not
be just and equitable.
[57]
In view of this conclusion, I see no need to deal with the merits of
the application.
Costs
[58]
The individual applicants have brought this application to vindicate
their constitutional rights under section 19 of the Constitution.
They have had substantial success. I, therefore, see no reason to
deprive them of their costs in this application and the reserved
costs of 20 November 2018.
Order
[59]
In the result I make the following order:
1.
The decision of the ANC made on 31 August 2018 to disband the North
West Provincial Executive Committee is declared unlawful
and set
aside.
2.
The decision of the NEC of 20 September 2018 to appoint a Provincial
Task Team (PTT) is declared unlawful and set aside.
3.
The PTT is interdicted from carrying out any of the functions
conferred on it by the NEC and the ANC constitution.
4.
The disbanded PEC is reinstated within two court days of this order.
5.
The first respondent is ordered to pay the costs of the application
including the costs of two counsel.
6.
The first respondent is also ordered to pay the cost of 20 November
2018 including the costs of two counsel.
___________________
F
KATHREE-SETILOANE
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Counsel
for the First, Second and Third applicants: T Ngcukaitobi with P
Daniell and T Ramogale
Counsel
for the Fourth and Fifth Applicants: D Mpofu SC with Y Peer and J
Chanza
Instructed
by: Mabuza Attorneys
Counsel
for the African National Congress: W R Mokhare SC with MK Mathipa
Instructed
by: M V Gwala Inc
Date
of hearing: 30 January 2019
Date
of judgment: 6 February 2019
[1]
Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre
as Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC) at para
[29]
[2]
Ramakatsa & Others v Magashule & Others
[2012] ZACC 31
;
2013
(2) BCLR 202
(CC) at para 125.
[3]
Dube & Others v Zikalala & Others
[2017] 4 All SA 365
(KZP)
[4]
Turner v Jockey Club of South Africa 1974 (3) SA 633 (A)
[5]
Psychological Society of South Africa v Qwelane and Others
2017 (8)
BCLR 1039
(CC) at paras [33] and [34]
[6]
Psychological Society at paras 33 -34.
[7]
Ramakatsa at para 71.
[8]
Ramakatsa at para 16.
[9]
In terms of Rule 7.2 branches are grouped together in zones and may,
for the purposes of coordination, be subdivided into smaller
units
such as street committees. Voting districts and zones may be grouped
into sub-regions. Any sub-Branch established shall
have the same
voting powers as a Branch.
[10]
Ramakatsa at para 75
[11]
Mistry v Interim National Medical and Dental Council and Others
1998
(4) SA 1127
(CC) at para 37