THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 724/2019
In the matter between:
MATSHEPO RAMAKATSA FIRST APPELLANT
THEMBA MVANDABA SECOND APPELLANT
SHASHAPA JOSHUA MOTAUNG THIRD APPELLANT
and
AFRICAN NATIONAL CONGRESS FIRST RESPONDENT
MEMBERS OF THE FREE STATE PROVINCIAL
EXECUTIVE COMMITTEE OF THE
AFRICAN NATIONAL CONGRESS SECOND RESPONDENT
Neutral citation: Ramakatsa and Others v African National Congress and Another
(Case No. 724/2019) [2021] ZASCA 31 (31 March 2021)
Coram: SALDULKER, MOCUMIE and DLODLO JJA and CARELSE and
WEINER AJJA
Heard: 15 February 2021
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. It has been published on the
website of the Supreme Court of Appeal and released to SAFLII.
The date and time for hand-down is deemed to be 10h00 on 31
March 2021.
2
Summary: Civil Procedure – appeal – lawfulness of the respondents ’ Provincial
Conference in the Free State in 2018 – whether the relevant audit requirements complied
with, prior to the Provincial Conference - whether the necessary Branch General Meetings
(BGMs) were held lawfully prior to the Provincial Conference – whether it was open to the
appellants to attack BGMs which were not affected by the Court order of 15 Decembe r
2017 – whether the court below was correct in its application of Plascon Evans rule –
whether the app ellants established irregularities in light of the rebuttals by the
respondents in their answering affidavits.
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______________________________________________________________________
ORDER
______________________________________________________________________
On appeal from: Free State Division of the High Court, Bloemfontein (Jordaan J sitting
as court of first instance):
1 Leave to appeal is granted and the costs occasioned by the application for leave to
appeal (in this Court as well as in the Court below) are costs in the appeal.
2 The appeal is upheld with costs including costs occasioned by the empl oyment of
two counsel.
3 The order of the Court below is set aside and replaced by the following:
'It is declared that the Provincial Conference for the Free State Province that took place
on 18 and 19 May 2018 was held in violation of the Court order of 29 November 2017
under case number 5942/2017 and that the said Provincial Conference, its
decisions/resolutions and/or outcome are unlawful and unconstitutional.'
4 The declaration of invalidity mentioned in paragraph 3 of the order shall only be
effective as from the date of the delivery of this judgment.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
Dlodlo JA (Saldulker and Mocumie JJA, Carelse and Weiner AJJA concurring):
[1] The application before the Free State Division of the High Court, Bloemfontein
(high court) concerned the lawfulness and validity of the Provincial conference of the
African National Congress (the ANC) for the Free State which took place on 18 and 19
May 2018. Before this Court, it arises as an application for leave to appeal against a
judgment of the high court,1 Jordaan J sitting as a court of first instance. The application
for leave has been set down for oral argument and the parties directed to be prepared, if
called upon to do so, to address the merits of the appeal.
1 In terms of s 17(2) (b) of the Superior Court’s Act 10 2013.
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[2] Before the high court, the app ellants sought a declaration that the Provincial
conference (the PC) for the Free State Province that took place on 18 and 19 May 2018
was held in violation of the court order dated 29 November 2017 under Free State case
number 5942/2017 and that such P C, its decision/resolutions and/or outcome we re
unlawful and unconstitutional. The app ellants also sought a declaration t hat the
respondents acted in contempt of this same court order.
[3] It is common cause that on 29 November 2017 the high court made an order that
the PC of the ANC in the Free State was not to be held until certain Branch General
Meetings (BGMs) had been held in a lawful manner that accords with the Constitution of
the ANC. The members of the ANC had contended that their rights in terms of section 19
of the Constitution of the Republic of South Africa (the Constitution) had been infringed
and that th e respondents had breached the provisions of the ANC Constitution and
National Guidelines which mirror the Constitution of the ANC on elections (the ANC 2018
Guidelines).2 The contention by the app ellants was that as provided in the ANC
Guidelines, at the heart of any lawfully convened conference of the ANC, whether at the
Regional, Provincial or National level, is the basic requirement that delegates participating
at such gatherings must have been elected at properly constituted BGM s. The rationale
behind the contention was that if persons who participated at such conference as
delegates, who had not been elected at properly constituted BMG s or if delegates who
have been elected at properly constituted BGMs are denied such participation in a
conference, any decision to hold such conference is invalid and the outcomes of such a
conference are equally invalid and null and void.
[4] On 29 November 2017, the full court (Van Zyl, Mathebula and Mhlambi JJ) granted
an order in a judgment penned by Van Zyl J in favour of the appellants (the Van Zyl order).
an order in a judgment penned by Van Zyl J in favour of the appellants (the Van Zyl order).
The substantive relief contained in the Van Zyl order was the following:
1. It declared that the BGM s that were conducted throughout the various regions in the
Free State were irregular, unlawful, unconstituti onal and/or in breach of the ANC
Constitution.
2 As amended in 2018.
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2. It declared that the decision, resolutions and outcomes of those 28 BGMs are null and
void.
3. It directed that:
‘The Provincial conference of the ANC, Free State, scheduled for 1 to 3 December 2017, will be
a nullity and is not to be held until the aforesaid meetings have been held in a lawful manner and
in accordance with the Constitution of the ANC.’
[5] In complying with the Van Zyl order, out of the 50 BGMs affected, the respondents
conducted a rerun of the 28 affected BGMs between 6 and 9 December 2017. This too ,
suffered from many of the same irregularities that had manifested themselves at the
BGMs prior to the Van Zyl order. The respondents , despite this, proceeded to convene
the PC on 10 and 11 December 2017. Notably, the PC took place a mere 5 days before
the National conference held at Nasrec in Johannesburg. This prompted a second urgent
application by the aggrieved members of the ANC including the first appellant, Ms
Ramakatsa.
[6] On 15 December 2017, the Free State High Court, with a full court presiding,
(Molemela JP, Jordaan DJP and Reinders J) delivered a judgment penned by Molemela
JP in favour of the aggrieved ANC members. The Molemela order:
1. Declared that the conference held on the 10th and 11th of December 2017 and the
resolution and decisions taken at that conference were unlawful and void;
2. Declared that 14 BGM s and the decisions taken at those BGM s were unlawful and
void.
[7] These two adverse orders gave the first respondent, an opportunity to be alert and
scrupulous in ensuring compliance with the law prior to holding the 2018 P C. The
respondents convened and held the PC on 18 and 19 May 2018. This was despite a
petition signed by a number of aggrieved members delivered to the offices of the first
respondent on 14 May 2018. The petition highlighted the reasons why the P C ought not
to proceed. In addition, the app ellants’ attorney sent a letter on 16 May 2018 to every
to proceed. In addition, the app ellants’ attorney sent a letter on 16 May 2018 to every
member of the Provincial Task Team in the Free State (the Free State PTT) explaining,
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inter alia, that inadequate notice was given for the PC. In this letter, it was also stated
that the convening of the conference was in violation of the Van Zyl order. There was no
meaningful response from the respondents. There was, however, a letter from two Free
State PTT members who distanced themselves from the decision to hold a conference.
It appears that the insistence on proceeding with the conference prompted the launch of
the application that served before Jordaan J. On 21 February 2019, Jordaan J dismissed
the application, holding inter alia, that the allegations contained in the appellants’ founding
affidavit are based on information received from the relevant member s of the specific
wards named but no confirmatory affidavits were attached. It is so that the confirmatory
affidavits were attached in the replying affidavit. However, Jordaan J, applying the well -
known Plascon-Evans3 rule found against the respondents.
[8] The high court isolated ward 3 in Lejweleputs wa, recording that the ap pellants’
alleged that no further meetings were scheduled or held after the Molemela order. On the
other hand, (so the Jordaan J judgment went on), the respondents, allege d that
successful BGM s were scheduled and held on 19 Februar y 2018. The high court
remarked that it was only in reply that the app ellants averred that the meeting was
unlawful in that 31 of the attendees were not members in good standing. According to the
high court, the respondents made various attempts to schedule and hold rerun s of the
BGMs in respect of all 14 of the wards affected by the Molemela order. Some BGMs were
successful and delegate s were elected, others did not reach a quorum resulting in no
delegates being elected whilst others were disrupted by disgruntled members. The
allegations were found by the high court to be supported by documentary evidence. It
found that the appellants’ allegations to the effect that no additional meetings were held
found that the appellants’ allegations to the effect that no additional meetings were held
in some of the affected wards after December 2017 were conclusively gainsaid.
[9] The high court, having found that the respondents went to great lengths to comply
with the court order concluded:
3 Plascon-Evans Paints (TVL) Ltd v Riebeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 6341.
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‘There is no basis on which the allegations of the respondents can be found to be baseless,
patently false, fictitious or unsubstantiated. The ir material allegations are to a large extent
substantiated by documentary evidence.’
The high court concluded its judgment as follows:
‘The dispute raised by the respondents are real and material. To the contrary, material allegations
made by the applicants were clearly unfounded, if not patently false. The main thrust of the
applicants’ case related to the alleged non-compliance with the first order. In that regard it stated
that only a few of the affected branche s held reruns of the BGM’s and then only in May 2018.
That is clearly far from the truth and in stark contrast with reality.’
Failure to annex confirmatory affidavits to the founding papers must be put to rest. It is
clear in paragraph 42 of the founding affidavit that the applicants intended to attach such
confirmatory affidavits. The omission was clearly not deliberate but it must have been
done inadvertently. These affidavits surfaced in the replying affidavit. Despite the
omission, the respondents comp rehensively dealt with those issues which were subject
to such confirmatory affidavits. They were not prejudiced by the failure to file them
simultaneously with the founding papers. This was repeated in the oral argument before
this Court on the day of the hearing. Counsel for the first respondent confirmed that there
could be no prejudice.4 It is trite that any applicant relying on information gathered from
another source, must always file a confirmatory affidavit. In this matter no prejudice was
caused to the respondents at all. When the matter was argued before the high court, such
affidavits had become available.
[10] Turning the focus to the relevant provisions of the Superior Court s Act5 (the SC
Act), leave to appeal may only be granted where the judges concerned are of the opinion
that the appeal would have a reasonable prospect of success or there are compelling
that the appeal would have a reasonable prospect of success or there are compelling
reasons which exist why the appeal should be heard such as the interests of justice.6 This
Court in Caratco7, concerning the provisions of s 17(1) (a)(ii) of the SC Act pointed out
4 The next day the first respondent filed a notice indicating that the respondents would be prejudiced. Not
only was this raised late but also irregularly. Thus, the belated cry of prejudice could not be taken into
account in coming to the decision this Court came to. In any event that was not the sole reason for the
decision this Court came to ultimately.
5 Section 17(2)(d) Act 10 of 2013.
6 Nova Property Holdings Limited v Cobbett & Others [2016] ZASCA 63: 2016 (4) SA 317 (SCA) para 8.
7 Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd [2020] ZASCA 17; 2020 (5) SA 35 (SCA).
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that if the court is unpersuaded that there are prospects of success, it must still enquire
into whether there is a compelling reason to entertain the appeal. Compel ling reason
would of course include an important question of law or a discreet issue of public
importance that will have an effect on future disputes. However, this Court correctly added
that ‘but here too the merits remain vitally important and are often decisive’.8 I am mindful
of the decision s at high court level debating whether the use of the word ‘would’ as
opposed to ‘could’ possibly means that the threshold for granting the appeal has been
raised. If a reasonable prospect of success is established , leave to appeal should be
granted. Similarly, if there are some other compelling reasons why the appeal should be
heard, leave to appeal should be granted. The test of reasonable prospects of success
postulates a dispassionate decision based on the facts and the law that a court of appeal
could reasonably arrive at a conclusion different to that of the trial court. In other words,
the appellants in this matter need to convince this Court on proper grounds that they have
prospects of success on appeal. Those prospects of success must not be remote, but
there must exist a reasonable chance of succeeding. A sound rational basis for the
conclusion that there are prospects of success must be shown to exist.9
[11] The importance of this matter compels the conclusion that leave to appeal should
be granted. One must perhaps emphasise that no doubt can exist that the ANC just like
other political parties, is under an obligation to act in accordance with its own Constitution
and that a failure to do so raises m atters of concern in terms of the SA’s Constitution. In
this regard, the Constitutional Court made it plain in Ramakatsa 1:10
‘[16] I do not think the Constitution could have contemplated political parties could act unlawfully.
On a broad purposive construction, I would hold that the right to participate in the activities of a
political party confers on every political party the duty to act lawfully and in accordance with its
own Constitution. This means that our Constitution gives every member of every political party
the right to exact compliance with the Constitution of a political party by the leadership of that
party. The case does raise a constitutional matter.’
8 Ibid, para 2.
9 See Smith v S [2011] ZASCA 15; 2012 (1) SACR 567 (SCA); MEC Health, Eastern Cape v Mkhitha [2016]
ZASCA 176 para 17.
10 Ramakatsa and Others v Magashule and Others [2012] ZACC 31; 2013 (2) BCLR 202 (CC) para 16.
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[12] It is prudent at this stage to set out what I regard as foundational to the di spute in
this matter. Section 19 of the SA Constitution does not prescribe how members of a
political party should go about in exercising their right to participate in the activities of their
choice of party. This is not regulated by legislation at all. Talking to this, the Constitutional
Court in Ramakatsa 111 stated as follows:
‘Section 19 of the Constitution does not spell out how members of a political party should exercise
the right to participate in the activities of their party. For good reason this is left to political parties
themselves to regulate. These activities are internal matters of each political party. Therefore,
these parties are best placed to determine how members would participate in internal activities.
The various Constitutions of political parties are instruments which facilitate and regulate
participation by members in the activities of a political party.’
[13] It i s the ANC Constitution that regulates and facilitates how its members may
participate in the internal activities of the party. Rule 17 of the ANC Constitution is of
importance and is set out hereunder.
‘Rule 17 Provincial Conference
17.1 Subject to the decisions of the National Conference and the National General Council, and
the overall guidance of the NEC, the Provincial Conference shall be the highest organ of the ANC
in each Province.
17.2 The Provincial Conference shall:
17.2.1 Be held at least once every 4 (four) years and more often if requested by at least one third
of all Branches in good standing in the Province.
17.2.2 Be composed of:
(i) Voting delegates as follows: . . .
(ii) Non-voting delegates . . .
Provincial Conference shall:
17.2.2.5 Determine its own procedures in accordance with democratic principles and practices;
11 Ibid para 73.
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17.2.2.5 Vote on key questions by secret ballot if at least one third of the delegates at the
Provincial Conference demand it; and
17.2.2.7 . . .
17.3 The Provincial Conference shall:
17.3.1 Promote and implement the decisions and policies of the National Conference, the
National General Council, the NEC and the NWC;
17.3.2 Receive and consider reports by the Provincial Executive Committee, which shall include
the Chairperson’s address, the Secretary’s report, which shall include a report on the work and
activities of the ANC Veterans’ League, the ANC Women’s League and the ANC Yout h League
in the Province, and the Treasurer’s report;
17.3.3 Elect the Provincial Chairperson, Deputy Chairperson, Secretary, Deputy Secretary,
Treasurer and the 30 (thirty) additional members of the Provincial Executive Committee, who will
hold office for four (4) years. The Provincial Secretary shall be a full -time functionary of the
Organisation;
17.3.4 Carry out and develop the policies and programmes of the ANC in the Province;
17.3.5 . . .
17.3.6 . . .
17.4 A member elected to the PEC shall resign from any position held in a lower structure in the
ANC.’ (Emphasis added.)
[14] Rule 17.2 provides in peremptory terms (it uses the word ‘shall’) and it makes
provisions which are two-fold, namely:
1. That a provincial conference shall be held at least once every four years; and
2. A Provincial conference shall be held more often if requested by at least one third of
all branches in Province. It is necessary to mention that the ANC Constitution makes
provisions that the ANC from time to time should make guidelines and these form an
integral part of the Constitution. In this matter the applicable ANC Guidelines and
Provincial conferences are dated April 2018. (Emphasis added.)
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[15] Numerous complaints were made by the app ellants which they contend were not
addressed prior to the holding of the PC. The app ellants contended that the holding of
the P C was not, for instance , preceded by an audit process of all branches and
membership. I undertake to return to the auditing complaint later in this judgment. The
high court isolated ward three Lejweleputswa and dealt with what took place there. It did
not deal with the numerous other wards that document irregularities.
[16] One cannot turn a blind eye to what appears to have occurred in the following
wards. In Thabo Mofutsanyana ward 5 (Maluti -A-Phofung), the respondent s made a
single attempt to rerun the BGMs and that was only a mere two days before the holding
of the PC. Clearly, there would have been no room for any dispute resolution provided for
in Appendix 4 of the ANC Constitution prior to the holding of the PC. As it appears , no
formal attendance register was used. Members’ names were entered in manuscript on a
blank piece of paper. There was no deployee to oversee the meeting. According to the
second respondent an attempt was made to call a deployee to attend. The point is that in
this ward, even if the BGM was quorate, the use of an informal and somewhat irregular
register rendered the BGM unlawful. How could anyone ascertain whether the persons
who registered were members in good standing? Th is branches’ BGM was set aside by
both the Van Zyl and Molemela orders on different dates. It is beyond question that the
respondents had a duty to ensure that it held a lawful BGM before proceeding to convene
the Provincial conference.
[17] According to the second respondent, in ward 6 in the region of Thabo
Mofutsanyana, a provincial delegate was elected at a lawfully conducted BGM. It is
apparent though from the attendance register attached to the second respondent’s
answering papers that no delegates ought to have been appointed from this branch. I say
answering papers that no delegates ought to have been appointed from this branch. I say
so because 28 persons who attended the BGM could not be considered to be members
in good standing based on the attendance register itself. In truth, the meeting was not
quorate and no delegate could and/or should hav e been elected. To illustrate, Mr Lucky
Hadebe listed as number 6 on the attendance register last paid his membership in the
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amount of R40.00 on 15 November 2015. Mr Hadebe was not a fully paid up member
and was therefore not a member in good standing. D espite this apparent glaring non-
compliance, Mr Hadebe had attended the BGM and on the common cause facts and as
evidenced by his signature on the attendance register, voted whoever was voted into
power at that BGM.
[18] Ward 11 in the Thabo Mofutsanyana region was attended by 107 persons at the
BGM who were not members in good standing because of their membership having
expired. If one deducts the 107 persons whose membership had expired from the total
number of person s who attended the meeting (195) it is itself evident that the meeting
was not quorate. The quorum required 174 attendees but only 88 paid up actual members
appear to have been in attendance. An insufficient number of members in good standing
attended to quorate the conference. Needless to mention that despite this a delegate was
elected. That this rendered the BGM and its outcome unlawful is beyond question.
[19] In ward 19 in the region of Thabo Mofutsanyana, a complaint was raised that
unknown persons had signed next to the names of certain members on the attendance
register. When this was brought to the attention of the deployee, complaining members
were accused of being disruptive. The second respondent in i ts answering affidavit did
not deny this irregularity . Needless to mention that the conceivable dispute of fact
regarding this irregularity did not arise. Similarly, in ward 3 in the region of Lejweleputswa,
according to the attendance register which was attached to the second r espondent’s
answering affidavit 31 persons attended the BGM despite the fact that they were not
members in good standing. If one deducts the 31 persons, the number of members in
good standing would only be 72, which falls below the quorum threshold. Clearly, no
delegate could or should have been appointed. Therefore, the appointment of a delegate
delegate could or should have been appointed. Therefore, the appointment of a delegate
from this BGM was unlawful because the relevant BGM was not quorate.
[20] Ward 7 in the region of Lejweleputswa bears mention . The complaint in this
specific ward is about the inadequate notification of the BGM. According to the attendance
register which is outdated, this branch has 600 members. At the BGM convened a year
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earlier on 14 May 2017, the meeting was quorate with a total of 302 members who had
attended. In contrast, the BGM that was held on 13 May 2018, only saw a total of 19
members in attendance. Nineteen members is approximately 3% of the branch’s total
membership. One immediately asks oneself what the possible re ason is for the
exceptionally low attendance. These numbers support the contention that the members
were not invited. The second respondent does not, in its answering affidavit, allege that
members were notified of the BGM held on 13 May 2018. It does not appear that an
attempt was made to lawfully convene a BGM for this affected branch. In the founding
papers, it was alleged that no deployee was present on 13 May 2018. The second
respondent, represented by the deponent to the answering affidavit, the Secretary of the
ANC, Mr Ace Magashule, confirmed this and stated that ‘he did not have to come, as the
meeting could not proceed’. The ANC Guidelines make it clear that a deployee ought to
be present at any proposed BGM where elections of a delegate are to tak e place. The
attendance register attached to the second respondent’s answering affidavit was not
signed by the branch chairman nor the Secretary as required in terms of the ANC
Guidelines.12 This was certainly an irregularity.
[21] At least eight of the 28 BGMs identified in the Van Zyl order did not take place
lawfully or at all. On this basis alone , the PC could not lawfully proceed. The high court
upheld the contention that the appellants were precluded from challenging some of these
BGMs because they were not the subject of a challenge in the proceedings before
Molemela JP. I have mentioned above that the Van Zyl order dealt with 28 branches. Of
course, it is so that only 17 of the 28 were challenged in the proceedings before Molemela
JP. This, however, could not be construed to mean that the BGMs of the other 11
branches had been lawfully held. Failure by one group of applicants to challenge the 11
branches had been lawfully held. Failure by one group of applicants to challenge the 11
branches before Molemela JP cannot precl ude a different group of applicants from
challenging them in the present proceedings.
[22] Having identified the areas of concern above, I deem it necessary to return to the
issue of audits. The ANC Guidelines applicable in this matter make it plain that ‘national
12 Guidelines for ANC Conferences para 11.
14
conducts an audit of branches and membership, based on a cut-off date that is not more
than nine months before the date of the Provincial and Regional conference, to determine
the delegation to the conferences’.13 The appellants have made it clear in the founding
papers that the audit of membership is critical in that a member who is not in good
standing is disqualified from participating in the affairs of the ANC. There can be no
dispute that the Guidelines of the ANC prescribe that for a valid conference to be held, it
must be preceded by an audit which should be conducted within nine months of the date
of the conference. It would appear that the last audit of the Free State ANC was conducted
during April 2017. This, certainly is more than nine months prior to the conference which
was held on 18 and 19 May 2018.
[23] Clause 4 and 5 of the ANC 2018 Guidelines make it plain what the procedure is
which must be followed before the holding of all PCs or Regional Conferences (RCs). The
following procedure must be followed.
‘1. An audit of branches and members must be conducted and that must be based on a cut -off
date that is not more than 9 months before the date of the Provincial or Regional conference;
2. The outcome of the audit is circulated to Regional Executive Committees and the individual
branches.
3. All branches mu st convene BGMs as to, inter alia, nominate candidates for the Provincial
Executive Committee.
4. There must be notice of the date, venue, programme and draft credentials of the conference
which must be circulated to the branches.
5. It is only at this point that a Provincial conference can be held.
The audit requirement cannot be ignored or postponed because absent audit there can be n o
legitimate Provincial or Regional conference. It determines the status of participants because it is
only members in good standing that must attend and participate in the affair s of the ANC. The
only members in good standing that must attend and participate in the affair s of the ANC. The
same applies to a branch which is not in good standing. Such a branch cannot be represented at
a conference.’
13 Guideline for ANC Conferences para 5(a).
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[24] The second respondent ’s response in the above regard is that a membership
verification audit was done by the National Audit Team in February 2018 in respect of 14
wards that needed to be rerun. The a pproach was of course unlawful in that it says in
simple terms, save for the 14 branches in respect of which the audit was done in February
2018, no audit was apparently conducted in respect of the other BGMs which deployed
delegates to the PC. There is a contradiction between what the respondents contend in
this regard. The first respondent asserts that the PC was a continuation of the conference
that was declared null and void and that ‘the last audit was done [on] 10 December 2017’.
The latter’s assertion contradicts the second respondent ’s contentions that a
verification/audit was conducted in February 2018. The first respondent referred to an
annexure which did not exist. It emerged during arguments before the high court what the
correct annexure was, but that annexure too cannot serve as objective evidence that an
audit was conducted in December 2017 and in respect of which branch it related to. The
document is titled ‘ANC Free State Provincial Summary Report’. It is not dated and it
hardly makes it clear when and where such audits were conducted and for which
branches. Importantly, it fails to establish that an audit of all the necessary branches was
conducted during December 2017.
[25] In passing, one must mention that both respondents’ versions are undermined by
the attendance registers. These registers are attached to the second respondent ’s
answering affidavit. These attendance registers sho w that in respect of all branches the
last audit was conducted in April 2017. Therefore, the required audit was conducted more
than nine months before the PC and contrary to the assertion that an audit was conducted
during February 2018. The failure of the respondents to respond squarely and with
during February 2018. The failure of the respondents to respond squarely and with
sufficient details to allegations made by the app ellants, the contradictions between the
two versions presented by the respondents, and the effect of the attendance registers
leads to the ineluctable conclusion that there has been no compliance with the
peremptory audit requirement.
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[26] The declaration of nullity of the P Cs and RCs contained in both the Van Zyl and
Molemela order s required the Provincial Executive (the PEC) of the ANC to start the
whole process de novo. In doing so, the second respondent had to fully comply with the
Constitution of the ANC read together with the applicable ANC 2018 Guidelines. There
are about 309 branches in the Free State Province. They all had to be audited anew. The
argument that only 28 mentioned in the Van Zyl order had to be audited is without merit.
The PC had to be held de novo and all prescripts of the ANC Constitution had to be
complied with as if no attempt to hold a conference ever took place. The 2018 ANC
Guidelines have binding force. There can be no dispute in this regard. The Constitutional
Court in Ramakatsa 114 talked to this:
‘[79] Before demonstrating that some of the irregularities raised were established it is
necessary to outline the nature of the legal relationship that arises from membership of the ANC.
At common law a voluntary association like the ANC is taken to have been created by agreement
as it is not a body established by statute. The ANC’s Constitution together with the audit guidelines
and any other rules collectively constitute the terms of the agreement entered into by its members.
Thus the relationship between the party and its member is contractual. It is taken to be a unique
contract.’
[27] The importance of auditing is underscored by the fact that it ensures that the
participants in the ANC process are fully paid up members of the ANC who can participate
in the elections and vote for those they want to lead them and not non -members. Thus,
prior to the holding of the PC an audit process of all branches and membership must be
conducted. The question remains therefore whether the delegates to the elective PC had
been properly accredited and audited as required in terms of the Constitution of the ANC
and its Membership Audit Guidelines . As demonstrated above, the answer is a
and its Membership Audit Guidelines . As demonstrated above, the answer is a
resounding no. It is trite that in motion proceedings , the proper approach to determine
whether an applicant has made out a case for the relief sought, in a case where some of
the allegations are disputed by the respondents, is that the applicants would succeed if
the admitted facts it alleged together with the facts alleged by the respondent justify the
relief sought. 15 The audit Guidelines constitute an integral part of the governance
14 Ramakatsa para 79.
15 Plascon-Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) supra fn 2.
17
instrument of the ANC. A mandatory pre -audit must be conducted by the P EC or RC in
preparation for the National audit which is conducted by the National Audit Team in each
province within a cut-off date.
[28] The respondents complain bitterly that the app ellants rushed to court before
exhausting all available internal remedy mechanisms within the ANC as prescribed in the
Constitution of the ANC . It is correct that appendix 4 thereof provides for a dispute
resolution procedure by means of which a branch, a region or sub -region may lodge a
dispute and have it resolved by the National Dispute Resolution Committee and ultimately
by the Appeal Committee. It is not my aim to devote too much time to this concern by the
respondents. It bears mention that the aggrieved members sent a complain t to the PC
held on 18 and 19 May 2018 but were simply ignored. It suffices to say that members of
the ANC are members of the community, citizens of this country. Each member of the
community who is aggrieved is constitutionally entitled to approach the courts. The first
respondent did not file its heads of argument in terms of this Court’s rules. When this
concern was raised by the presiding judge, the appellants had abandoned the prayer for
the contempt of court. There has been an inordinate delay in prosecuting this matter. The
PEC has been running the affairs of the ANC in the Free State for a considerable period.
It must have taken numerous resolutions/decisions relating to governance issues in t he
Province. It therefore would be prudent that an order should be made so as to avoid the
Free State ANC from being thrown into chaos.
[29] The following order is made:
1 Leave to appeal is granted and the costs occasioned by the application for leave to
appeal (in this Court as well as in the Court below) are costs in the appeal.
2 The appeal is upheld with costs including costs occasioned by the employment of
two counsel.
two counsel.
3 The order of the Court below is set aside and replaced by the following:
'It is declared that the Provincial Conference for the Free State Province that took place
on 18 and 19 May 2018 was held in violation of the Court order of 29 November 2017
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under case number 5942/2017 and that the said Provincial Conference, its
decisions/resolutions and/or outcome are unlawful and unconstitutional.'
4 The decla ration of invalidity mentioned in paragraph 3 of the order shall only be
effective as from the date of the delivery of this judgment.
___________________
DV Dlodlo
Judge of Appeal
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APPEARANCES:
For the Appellants: S Budlender SC (with him K Magan)
Instructed by: Selepe Attorneys, Johannesburg
For the Respondents: Semenya SC and WR Mokhare SC
Instructed by: Moroka Attorneys, Bloemfontein