Dube and Others v Zikalala and Others (7904/2016P) [2017] ZAKZPHC 36; [2017] 4 All SA 365 (KZP) (12 September 2017)

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[2017] ZAKZPHC 36
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Dube and Others v Zikalala and Others (7904/2016P) [2017] ZAKZPHC 36; [2017] 4 All SA 365 (KZP) (12 September 2017)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO:  7904/2016 P
In
the matter between:
LAWRENCE
DUBE
First
Applicant
SIBAHLE
ZIKALALA
Second
Applicant
MARTIN
SIFISO
MZANGWA
Third
Applicant
MZWEBI
REMIGIUS
NGCOBO
Fourth
Applicant
LINDIWE
NOMALUNGELO
BUTHELEZI
Fifth
Applicant
and
SIHLE
ZIKALALA
First
Respondent
WILLIES
MCHUNU
Second
Respondent
SUPER
ZUMA
Third
Respondent
MLULEKI
NDOBE
Fourth
Respondent
NOMUSA
DUBE-NCUBE
Fifth
Respondent
MXOLISI
KAUNDA
Sixth
Respondent
BONGI
SITHOLE-MOLOI
Seventh
Respondent
LYDIA
JOHNSON
Eighth
Respondent
WEZIWE
VIRGINIA
THUSI
Ninth
Respondent
ARTHUR
ZWANE
Tenth
Respondent
ESTHER
QWABE
Eleventh
Respondent
MKHAWULENI
KHUMALO
Twelfth
Respondent
SDUDUZO
GUMEDE
Thirteenth
Respondent
MAKHOSI
ZUNGU
Fourteenth
Respondent
MAKHONI
NTULI
Fifteenth
Respondent
ZANELE
NYAWO
Sixteenth
Respondent
KHULEKANI
HADEBE
Seventeenth
Respondent
LINDIWE
MJOBO
Eighteenth
Respondent
SPHINDILE
ZONDI
Nineteenth
Respondent
JABU
KHUMALO
Twentieth
Respondent
FIKILE
KHUMALO
Twenty-First
Respondent
MERVIN
DIRKS
Twenty-Second
Respondent
SIPHUMILE
ZUU
Twenty-Third
Respondent
SOLOMON
MKHOMBO
Twenty-Fourth
Respondent
MAGGIE
GOVENDER
Twenty-Fifth
Respondent
BHEKI
MTOLO
Twenty-Sixth
Respondent
VINCENT
MADLALA
Twenty-Seventh
Respondent
NOMAGUGU
SIMELANE-ZULU
Twenty-Eighth
Respondent
NONTEMBEKO
BOYCE
Twenty-Ninth
Respondent
MDUMISENI
NTULI
Thirtieth
Respondent
BHEKI
SIBIYA
Thirty-First
Respondent
CELIWE
MADLOPHA
Thirty-Second
Respondent
DUDU
MAZIBUKO
Thirty-Third
Respondent
SIPHO
GCABASHE
Thirty-Fourth
Respondent
RAVI
PILLAY
Thirty-Fifth
Respondent
MESHACK
HADEBE
Thirty-Sixth
Respondent
PROVINCIAL
EXECUTIVE COMMITTEE
Thirty-Seventh
Respondent
AFRICAN
NATIONAL CONGRESS-KZN
THE
AFRICAN NATIONAL
CONGRESS
Thirty-Eighth
Respondent
THE
ELECTORAL INSTITUTE
OF
Thirty-Ninth
Respondent
SOUTHERN
AFRICA
Coram: Koen J (Balton et Chetty JJ
concurring)
Heard: 16 and 17 August 2017
Delivered: 12 September 2017
ORDER
1. The Eighth KwaZulu-Natal Provincial
Elective Conference of the African National Congress held at
Pietermaritzburg from 6 to 8
November 2015 and decisions taken at
that conference are declared unlawful and invalid.
2.
The Thirty-Eighth Respondent is directed to pay one half of the
Applicants’ costs of the application, such costs to include
the
costs of two counsel.
JUDGMENT
KOEN
J
INTRODUCTION
:
[1]
The eighth provincial elective conference (‘PC’) of the
African National Congress (‘ANC’) for the Province
of
KwaZulu-Natal (‘KZN’) was held from 6 to 8 November 2015.
Its propriety is the subject of dispute in this application.
[2]
The First, Second, Fourth and Fifth Applicants
[1]
(‘the Applicants’), all members of the ANC, in their
Notice of Motion seek the following order:
‘
(a)
That the 8
th
KwaZulu-Natal Provincial Elective Conference of the African National
Conference held at Pietermaritzburg on 6 to 8 November 2015
and its
decisions, resolutions and elections are declared unlawful and
invalid and, as such, are set aside;
[2]
(b)
Declaring that the recognition, approval and/or endorsement by the
ANC (the Thirty-Ninth Respondent)
[3]
of the aforesaid Provincial Elective Conference, its decisions,
resolutions and elections, are likewise declared unlawful, invalid

and of no force or effect’;
[4]
(c)
That’s
(sic)
the costs of the application are to be paid by the Thirty Eighth
Respondent, the ANC, jointly and severally with any other party

unsuccessfully opposing it, including the costs of two counsel.’
[5]
[3]
In
Ramakatsa and Others v
Magashule and Others
[6]
(‘
Ramakatsa
’),
the Constitutional Court in regard to a similar attack on the
propriety of the Free State provincial conference of the
ANC held
from 21 to 24 June 2012, said the following in regard to the relief
claimed:
‘
[124]
In our view, a declaration that the provincial elective
conference of ANC and the decisions taken at the conference
are
unlawful and void should suffice. We emphasise that the declaration
of invalidity applies only to the Provincial Conference.
The
declaratory order we make does not relate to or affect the rights of
delegates who have been elected at properly constituted
branch
general meetings of the Free State province to serve as delegates at
any other conference of the party.’
[4]
No doubt influenced and guided by similar considerations, by the time
this application came to be argued, the relief sought
by the
Applicants in the alternative to that originally sought in the Notice
of Motion, as in
Ramakatsa
, was confined to an order that:
‘
The
Eighth KwaZulu-Natal Provincial Elective Conference of the African
National Congress held at Pietermaritzburg on 6 to 8 November
2015
and its decisions and resolutions are declared unlawful and invalid.’
[5]
The basis for seeking the aforesaid relief, whether as initially
couched or confined to the alternative, in broad terms is:
(a)
That the holding of the PC was unlawful as, contrary to the
requirements of rule 17.2.1 of the ANC constitution, it had not
been
requested by at least one third of all branches in the province of
KZN; and/or
(b)
That the PC was affected by various material irregularities which
occurred during the pre-conference period and/or at the conference

itself relating to the auditing of branch membership, branches being
allowed inadequate time for remedying any errors found, insufficient

time being allowed for appeals against findings of the auditing
committee, discrepancies in the accreditation of delegates, and
the
manipulation of the voting results at the conference.
There
are various material factual disputes arising in respect of the
irregularities alleged by the Applicants referred to in sub-paragraph

(b) above. Confronted with that reality, the Applicants have
nevertheless elected to argue the application on the papers,
accepting
that material factual disputes must be resolved in favour
of the Respondents in accordance with the test espoused in
Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd.
[7]
This judgment proceeds on that basis
.
BACKGROUND
:
[6]
The seventh provincial conference (‘seventh PC’) of the
ANC in KZN was held from 11 to 13 May 2012.
[7]
At the beginning of March 2015, the KZN Provincial Executive
Committee (‘PEC’) proposed to commence preparations
for a
conference to be held from 25 to 27 September 2015, which the
National Executive Committee (‘NEC’) refused. In
August
2015, the PEC re-approached the NEC for permission to hold the PC on
6 to 8 November 2015.  Such permission was granted
by the NEC at
its meeting of 18 to 20 September 2015.
[8]
A document entitled ‘WHAT CONSTITUTES A LEGITIMATE ANC
CONFERENCE’ relied on by the Applicants
[8]
stresses the need to understand the fundamental processes and
procedures that constitute a conference.
It
inter alia provides in one part as follows:
‘
Tabulated
hereunder are certain procedural challenges that might be encountered
along the way when attempting to host a successful
Conference. It is
recommended
that if the following primary principles are adhered to then such
challenges may be averted.’
(My emphasis)
In
respect of the category of ‘MEMBERSHIP’, a sub-category
of ‘Members in good standing but not captured on membership

roll’ recommends, as a primary principle, that ‘Branches
should be given the membership roll two weeks before the BGM
date to
ensure that all members have been correctly captured.’
[9]
The terms of that document are not dissimilar to a similarly titled
annexure introduced by the Respondents in the answering
affidavit
[9]
as to what they contend constitutes a legitimate ANC conference, save
that their document is more extensive in its terms and in
places
couches requirements in more peremptory terms. As the Respondents’
version is the one to prevail in the case of any
material conflict,
it is the contents of that document which is reproduced more fully
below. It provides:
‘
KEY
ELEMENTS CONSTITUTING THE CONFERENCE
PRE
CONFERENCE PROCESSES
The
ANC Conference is an outcome of logical steps in a process seeking to
ensure organizational readiness, maintenance of legitimacy
and
integrity of such process.  Such preconference processes have to
meet the time lines set for each of the following steps.
Verification
of Membership:
This
checks the status of members in branches to ascertain if a member
qualifies to be a member or to participate in the processes
of the
conference.
Status
of Branches:
Membership
and term of office of the BEC determines if the branch qualifies both
to be a branch and therefore participate in the
processes of the
conference.
Corrections:
Branch
is allowed to effect corrections and to change to improve its status.
Allocation
of Delegates:
Delegates
are allocated proportionally in terms of membership.
Convening
of BGM’s
[10]
&
BBGM’s:
Convened
within the time line set by higher structures.
Verifications
of Constitutionality of BGM’s:
Checking
if BGM’s met all constitutional requirements for BGM’s.
Correction
period:
For
minor shortcomings that may have occurred in BGM’s.
The
conference is convened if there is a minimum of 70% branches that
have successfully completed all steps in the pre process for
the
conference.
Running
of intensive Political Education in preparation for conferences
including allowing for policy proposals by branches.
CONFERENCE
PROCEDURES
In
order for a Conference to be deemed to have met requirements of
staging an ANC legitimate conference, the following basic structural

and content elements should underpin the activities of the
conference:
Registration
of Delegates & Invited Non-Voting Delegates:
(The
number of leagues delegates is determined by the PEC/REC and have
voting status.)
Quorum:
the quorum of a
Conference is determined on the total number of voting delegates
expected to attend the conference.
Conference
Committees:
Conference
needs to have various committees for performance of different roles
for example steering committee; credentials committee;
resolutions
committee; disciplinary committee.
Conference
Rules:
Rules to
guide conduct in the conference are adopted by the conference.
Conference
Reports:
the
following reports from the primary reports to be presented to the
conference for discussions and adoption.
Credentials
Political
Report
Organisational
Report
Financial
Report
Commissions:
the conference breaks
into commissions where intensive discussions and recommendations are
made to be presented to the conference
for consideration and
finalization as conference resolutions.
Elections
& Elections Agency:
election
of leadership in the conference becomes a final stage of completing
the processes that start from BGMs and it is normally
conducted by
the independent body i.e. the election agency.
Resolutions:
resolutions are the
decisions of the conference on various political and policy matters
emanating from discussions in the plenary
and from commissions.
Declaration:
declaration is a
statement summarizing the proceedings of the conference and
comprising of key resolutions taken and highlighting
major
commitments that are binding to the organization going forward as
adopted by the conference.’
Under
the heading of ‘
KEY COMMON
CHALLENGES AND PRINCIPLE TO BE PRESERVED FOR CONFERENCES’ it
records:
‘
Tabulated
hereunder are certain common challenges that are often experienced
when convening Conferences. The following primary principles
must
be adhered to
, to
avert the challenges.’
(My emphasis)
In
the category of ‘MEMBERSHIP’, under the heading
‘CHALLENGES’, regarding ‘Members in good standing

but not captured on membership roll’, the ‘Guiding
Principle’ stated to ‘be adhered to’ is that:
‘
Branches
must be given the membership roll two weeks before the BGM date to
ensure that all members have been correctly captured.’
[10]
The Applicants rely on a document outlining the ‘ANC National
Audit Guidelines for Conferences’.
[11]
That document is however disputed by the Respondents who contend that
the audit guidelines which apply are contained in annexure
‘SZ1’
to the answering affidavit.
[12]
Annexure ‘SZ1’, ex facie its content emanates from the
‘Office of the Secretary General’ (‘SG’),
and
contains the ‘ANC NATIONAL AUDIT GUIDELINES FOR CONFERENCES AND
GENERAL COUNCILS’. The salient terms thereof include
inter alia
the following:
‘
The
National Audit Team will visit each province and conduct an audit.
The cut-off date of membership in BGM’s will be determined
by
the Province with respect to preparations for Regional and Provincial
Conference.
A
mandatory pre-audit shall be conducted by the PEC, REC in order to
prepare ANC branches for the national audit team.
·
The pre-audit process
must adhere to membership requirements;
In
particular the team will establish the:
·
Number of branches in
good standing.
·
Number of paid up and
verified members per branch as at the cut-off date.
·
Number and details of
branches in good standing as at the cut-off date.
·
Since the ANC
Constitution refers to membership in general, all paid up members
will be counted – even those from wards in
which there are no
ANC branches.
·
However, only
constitutionally launched ANC branches in good standing will be able
to send delegates to conference.’
The
audit guidelines next deal with ‘MEMBERSHIP REQUIREMENTS’
and ‘BRANCH REQUIREMENTS.’ It records inter
alia the
following:
‘
CONFIRMATION
OF THE AUDIT FINDINGS
Following
the completion of each region’s audit, the National Audit team
will provide the relevant Provincial Secretary with
a copy of a
preliminary audit report.  The branches will then have five days
within which to raise queries.
An
ANC branch can appeal preliminary audit outcomes through its BEC
following proper channels; starting at the Regional, Provincial
and
National through the office of the ANC Secretary General as final as
arbiter.
The
National audit team should then respond to any queries
and
make any necessary corrections. They may review any branch records,
but should not consider documentation that was not submitted
to the
original audit team.
Once
the audit has been completed
the
audit team should make available the preliminary audit report to the
Provincial Secretary
.
The
final audit report shall be made available to the provinces once it
has been signed off by the Secretary General
.’
[13]
(My emphasis)
[11]
The procedures and rules contained in the aforesaid documents accord
with what the Constitutional Court found in
Ramakatsa
[14]
to apply generally whenever a conference is planned. It is not in
dispute that these procedures and rules need to be adhered to,

although they are not rules contained in the ANC constitution.
[12]
On 27 October 2015 the ‘national officials through the SG’
directed that the PC should not proceed on 6 to 8 November
2015. That
decision was however reversed on 2 November 2015 when the conference
was allowed to proceed.
[13]
In anticipation of the PC the PEC developed a road map spelling out
organisational and logistical tasks which were required
in
preparation for the conference, described as ‘… the
roadmap towards the Provincial Conference’.
[15]
It provided for:
‘
Membership
verification, branches to confirm audit report by 6 September 2015.
Status
of branches, confirm branches that qualify based on audit report by 6
September 2015.
Corrections
and appeals, to allow branches to effect corrections and improve
their status, by 10 September 2015.
Allocation
of delegates, PEC to decide on the formula of allocation based on the
proportional of membership, by 5 September 2015.
Convening
of BGMs and BAGMs, to convene BGMs to elect delegates and deal with
nomination process, by 12 September – 25 October
2015.
Final
correction, to give an opportunity for final corrections for
branches, by 26 October to 28 October 2015.
Final
consolidation of credentials, to consolidate the final number of
branches and delegates based on the number of qualified BGMs
by 29 to
31 October 2015.
Pre-registration
process, to do pre-registration of all delegates and regions, by 26
to 31 October 2015.
RGC’s
(optional), in case the region was to convene an NGC in preparation
for conference, by 30 and 31 October 2015.
Registration
of all voting delegates, by 5 November 2015.
Convening
Provincial conference, to convene the Provincial conference by 6 –
8 November 2015.’
In
that report to the national officials on the state of readiness for
the PC, under the heading ‘Convening of the B/BAGMs’,
the
following was reported:
‘
The
BGMs started on the 12 September 2015 with the exception of eThekwini
Region, which started earlier on the 8 September 2015;
this was to
ensure that the time lines for the Regional conference are aligned to
those of the Provincial conference.
The
Province has 282 wards and therefore it has a potential of having 828
branches but after the audit by the National Audit team
752 qualified
to convene BGMs.
All
branches held their BGMs as expected and there is no branch which was
ever denied the opportunity to convene its BGM. The audit
process
took place simultaneous with the BGMs as it was with the NGC as
well.
According
to the timeframe all branches should have convened the BGMs by the 25
October 2015. However, after consultation with the
Secretary General
it was agreed to push the time frame to the 01
st
November
2015 to accommodate more branches, especially from eThekwini Region.
The
preliminary report from the audit team indicated that the province
has already reached the 70% of branches which are required
for the
Provincial conferences. The preliminary audit report is attached.’
[14]
The final audit report was signed off by the SG and his Deputy on 3
November 2015.
[15]
Conference pre-registration occurred on 4 November 2015. The
provincial dispute resolution/appeals committee was still working
on
disputes and appeals on 4 to 5 November 2015.
[16]
The National Dispute Appeals Committee (‘NDAC’) chaired
by Ms Lindiwe Sisulu commenced sitting late on 4 November
2015 to
conduct the final dispute resolution. It delivered its final report
during the night of 6 November 2015, which was the
first day of the
PC.
[17]
Warm body verification of delegates was done overnight from 6 to 7
November 2015.
[18]
Credentials of delegates were presented and were adopted on the
morning of 7 November 2015.
[19]
The voting process was started on the night of 7 to 8 November 2015
under the leadership and guidance of the Electoral Commission
and
EISA. It took the form of a secret ballot. While the voting process
was still proceeding, a ‘tweet’ was allegedly

disseminated at 22h23 on 7 November 2015 from the ‘
My ANC
’
twitter account setting out the results of voting at the PC as
follows:
‘
1459
delegates voted, Senzo Mchunu receives 675 votes and Sihle
Zikalala
[16]
received 789
votes. ‘Sihle is the Chairperson’
.
[20]
The voting process was however only finalised at about 03h00 on 8
November 2015. When the counting was complete and the results

formally announced on the morning of 8 November 2015, the EISA
official confirmed that indeed 1459 delegates voted, 4 ballots were

spoilt, Senzo Mchunu received 675 votes and the First Respondent
received the remainder, which would be 780 votes.
[21]
Various complaints that the elections were not free and fair and had
been manipulated and suffered from other irregularities
were
submitted to the SG with branches in question demanding that the PC
be declared null and void. On 16 November 2015, as a result
of (the
applicants contend) no response being received to the complaints of
the branches,
[17]
representatives of branches marched to the provincial offices of the
ANC and handed over a memorandum/petition in relation to the
PC.
This memorandum was received by a NEC member, Mr Joe Paahla on behalf
of the SG, who promised the members in question
an answer by 30
November 2015.
[22]
No such answer was given or was forthcoming. Members of branches
again marched to the provincial offices to deliver a second
petition
relating to the PC on 30 November 2015 complaining inter alia that
since the previous petition, no response had been forthcoming
from
Luthuli House, the ANC headquarters. This petition demanded that the
NEC declare the PC null and void, and that certain other
steps be
taken. The ANC deployed a delegation to attend to various complaints
and grievances relating to the petition, which delegation
sat at the
Coastlands Hotel on 12 December 2015 to hear grievances from a
randomly selected number of Branch Executive Committees
(‘BECs’).
This delegation from the NEC consisted of the National President Mr
Jacob Zuma, Ms Jessie Duarte, Mr Joe
Paahla, the SG Mr Gwede
Mantashe, Ms Baleka Mbete, Mr Ncebisi Skwatshwa, Ms Lindiwe Sisulu
and Dr Zweli Mkhize.  Once the
branches had presented their
case, they were advised that they would receive a decision within
five days.  No response was
however received by the branches.
[23]
The Applicants contend that the concerned branches opted to allow
these internal procedures to take place and patiently awaited
the
outcome.  When no response had been received by May 2016
[18]
attorneys were instructed to request a response from the SG. A letter
dated 28 April 2016 was addressed by Ramouthar Attorneys
to the SG
complaining of the fact that the NEC had failed to respond to the
various disputes and objections of inter alia the Applicants,
and
drew attention to a failure to make a decision being capable of being
construed in law as a refusal or rejection of the grievance
or
objection.  A request was therefore made that the NEC give
consideration to the grievances and objections and advise the

attorneys of the outcome thereof by 14 May 2016. On 29 April 2016 the
SG sent an email to the attorneys in reply stating:
‘
I
am sure you will appreciate that we can’t communicate to our
branches through the lawyers.  The difference will be
when we
deal with summons which will be handled by our lawyers.’
[24]
Shortly thereafter, between 18 and 20 May 2016, the SG visited KZN
and conducted the formal induction of the present members
of the PEC
as ‘elected’ at the PC.
[25]
By 15 July 2016 details of the new PEC members appeared on the ANC’s
official website in respect of KZN.  This,
the deponent to the
founding affidavit states, indicated that ‘quite plainly the
NEC of the ANC has accepted the Eighth KwaZulu-Natal
PC and all that
flows from it as valid.’
[26]
This application then was issued on 22 July 2016.
THE
RESPONDENTS’ OPPOSITION
:
[27]
The Respondents oppose the relief claimed by the Applicants on the
following grounds:
(a)
That the Applicants, being private individual members of the ANC
acting without any authority from any of the branches of the
ANC
implicated in their alleged complaints, lacked the required locus
standi in iudicio;
(b)
That the Applicants are time barred from bringing the present
application, which the Respondents construe as a review either
under
the Promotion of Administrative Justice Act
[19]
(‘PAJA’), or in the alternative, the common law;
(c)
That the Applicants wrongly interpret and construe rule 17.2.1 of the
ANC constitution, in the context that although the Respondents
admit
that no request by one third of the branches was made for the holding
of the PC, no such request was necessary, and the PC
accordingly was
valid;
(d)
That the alleged irregularities are not proven, but in any event
there is a requirement of only 70% compliance in respect of

qualifying branches in order to hold a valid conference, which
requirement was met, and further that voting irregularities are
all
subject to an internal audit process, and an appeal process
thereafter, and a credentials process, which had all been concluded

and are final and binding in the absence of any review thereof (when
none has been sought); and
(e)
That even if the Applicants were otherwise entitled to relief, it
should be refused in the exercise of this court’s discretion
in
view of the time that has elapsed since the PC was held because of
the potential prejudice to the Respondents and other affected

parties.
THE
ISSUES AND THE SCHEME OF THIS JUDGMENT
:
[28]
The issues arising correlate to the aforesaid grounds of opposition
raised by the Respondents.  For convenience the order
in which
these will be dealt with will be as follows:
(a)
Whether the PC falls to be set aside (alternatively be declared
unlawful) because it was not convened at the request of one
third of
ANC branches in KZN;
(b)
Whether the PC (and subsequent approval by the ANC) falls to be set
aside (alternatively declared unlawful) because of alleged

irregularities;
(c)
The Applicants locus standi
;
(d)
Whether the relief claimed is time barred;
(e)
What relief, if any, should be granted; and
(f)
The issue of costs.
[29]
Before discussing these seriatim it is necessary to comment very
briefly on the organisational structure of the ANC, and to
refer to
the political rights of citizens.
THE
ORGANISATIONAL STRUCTURE OF THE ANC
:
[30]
The organisational framework of the ANC is to be found in its
constitution and rules and regulations adopted by the NEC, and
in the
context of provinces, the rules and regulations adopted by a
provincial PEC. Rule 26 of the ANC constitution dealing with
‘Rules
and Regulations’ provides:
‘
26.1
The NEC may adopt Rules and Regulations for the better carrying out
of the activities of the ANC.
26.2
The PEC’s may adopt Rules and Regulations for the better
functioning of the ANC in their respective Provinces;
26.3
…
26.4
…’
[31]
The organisational structure of the ANC is best viewed as a pyramid,
narrowing as it ascends from the members’ level
which
constitutes the base and largest substratum of the pyramid, followed
in order by the branch level,
[20]
the regional level,
[21]
the provincial level (where the provincial conference will elect the
PEC), and finally at the apex of the pyramid, the national
level,
where branches send delegates to the National Conference (‘NC’)
which elects the NEC, the highest decision making
body of the ANC.
The NEC comprises the President of the ANC, its Deputy President and
various other officials and eighty additional
members.
[32]
The ANC is a democratic organisation. Although there is decentralized
autonomy with various responsibilities at descending
levels down the
pyramid to the individual member level, the NEC still fulfils a
powerful role. Rule 12.1 of the ANC constitution
dealing with the NEC
and its powers provides:
‘
The
National Executive Committee is the highest organ of the ANC between
National Conferences and has the authority to lead the
organisation,
subject to the provisions of this Constitution.’
Indeed,
the Respondents contend that it is this provision which confers and
contains the power to convene provincial conferences.
Provincial
conferences are thus convened at the direction of the NEC. Although
the powers of the NEC might be extensive, its powers
are not
unlimited and are always ‘subject to the provisions of this
Constitution’.
THE
POLITICAL RIGHTS OF EVERY CITIZEN
:
[33]
Section 19, contained in chapter 2
[22]
of the Constitution of the Republic of South Africa, 1996 (‘the
Constitution’)
[23]
provides:
‘
Political
rights
(1)
Every citizen is free to make political choices, which includes the
right -
(a)
to form a political party;
(b)
to participate in the activities of, or recruit members for, a
political
party;
(c)
to campaign for a political party or cause.
(2)
Every citizen has the right to free, fair and regular elections for
any legislative body established in terms of the Constitution.
(3)
Every adult citizen has the right -
(a)
to vote in elections for any legislative body established in terms of
the
Constitution,
and to do so in secret; and
(b)
to stand for public office and, if elected, to hold office.
’
[24]
[34]
In the main, national, provincial and municipal elections
contemplated in the Constitution are contested by political parties

which determine the list of candidates (or candidates in respect of
municipal elections) who may become members of these constitutional

legislative bodies. Success for political parties in elections lie
inter alia in the policies they adopt and put forward as a plan
for
addressing challenges and problems. Participation in the activities
of a political party is thus critical to attain all of
this and in
giving effect to the rights in s 19 of the Constitution. In order to
enhance this multi-party democracy the Constitution
has accordingly
enjoined Parliament inter alia to enact national legislation
providing for funding of political parties.
[25]
[35]
Section 19 of the Constitution does not however spell out how members
of a political party should exercise their right to participate
in
the activities of their choice of party. Nor is this regulated in
terms of legislation. As was commented in
Ramakatsa
:
‘
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, it is these parties which are best placed
to determine how members would participate
in internal activities.
The constitutions of political parties are the instruments which
facilitate and regulate participation
by members in the activities of
a political party.’
[26]
[36]
The ANC constitution regulates and facilitates how its members may
participate in internal activities of the party. Rule 3
of the ANC
constitution specifically provides that:
‘
Membership
of the ANC shall be open to all South Africans above the age of 18
years, irrespective of race, colour and creed, who
accept its
principles, policies and programmes and who are prepared to abide by
its Constitution and rules.’
[27]
[37]
The ANC is a common law voluntary association created by the ANC
constitution, which together with inter alia the ‘Rules
and
Regulations’ adopted by respectively the NEC and PEC (where
applicable), such as the audit guidelines and any other rules,

collectively constitute the terms of the agreement entered into by
its members.  It is a unique contract.  As in the
case of
an ordinary contract if a provision thereof is breached ‘to the
prejudice of certain members, they are entitled to
approach a court
of law for relief’.
[28]
[38]
In this case the Applicants’ complaints arise by virtue of and
in the context of their membership to the ANC qua members,
not qua
citizens in respect of election to legislative bodies provided for in
the Constitution.
WAS
THE PROVINCIAL CONFERENCE PROPERLY CONVENED - THE INTERPRETATION OF
RULE 17.2.1
:
[39]
The portions of rule 17 of the ANC constitution material to this
judgment inter alia provide:
‘
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 is 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 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;
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 Chairman’s address,
the Secretary’s
report, which shall include a report on the work and activities of
the Veterans’ League, Women’s
League and Youth League in
the province, and the Treasurer’s report;
17.3.3
Elect the Provincial Chairperson, Deputy Chairperson, Secretary,
Deputy Secretary, Treasurer and the additional 30
(thirty) 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.’
[40]
Rule 10.5 of the ANC constitution provides the following in regard to
a NC:
‘
The
National Conference shall be convened at least once every five
years.’
[41]
There is also a provision in the ANC constitution dealing with a
‘Special Conference’. Rule 29 provides that:
‘
29.1
A Special Conference of the ANC may be convened by the NEC at any
time or at the request of a majority of the Provinces for
the stated
purpose or purposes.
29.2
…
29.3
…’
[42]
Rule 17.2.1 in its first part thus follows the wording of rule 10.5
(which applies to the NC) in exact terms, namely that conferences

shall be held ‘at least once every …’ specified
number of years – five years in the case of the NC and
four
years in the case of a provincial conference. There the similarity
ends. Clause 17.2.1 continues with the qualification:
‘…
and
more often if requested by at least one third of all branches in the
Province.’
[43]
Rule 17.2 appears to provide in peremptory terms, by virtue of the
use of the word ‘shall’, for two eventualities,
namely
that:
(a)
a provincial conference shall be held at least once every four years;
and
(b)
a provincial conference shall be held more often if requested by at
least one third of all branches in the Province.
[44]
The issue is what is meant by ‘at least once every 4 (four)
years’, similar to, in the case of the NC, ‘at
least once
every five years.’
[45]
The approach to be adopted to the interpretation of documents is that
stated inter alia in
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
:
[29]
‘
Interpretation
[10]
In
Natal Joint Municipal Pension Fund v Endumeni Municipality
the current state of our law in regard to the interpretation of
documents was summarised as follows:
“
Over
the last century there have been significant developments in the law
relating to the interpretation of documents, both in this
country and
in others that follow similar rules to our own. It is unnecessary to
add unduly to the burden of annotations by trawling
through the case
law on the construction of documents in order to trace those
developments. The relevant authorities are collected
and summarised
in
Bastian
Financial Services (Pty) Ltd v General Hendrik Schoeman Primary
School
.
The present state of the law can be expressed as follows:
Interpretation is the process of attributing meaning to the words
used
in a document, be it legislation, some other statutory
instrument, or contract, having regard to the context provided by
reading
the particular provision or provisions in the light of the
document as a whole and the circumstances attendant upon its coming
into existence. Whatever the nature of the document, consideration
must be given to the language used in the light of the ordinary
rules
of grammar and syntax; the context in which the provision appears;
the apparent purpose to which it is directed and
the material
known to those responsible for its production. Where more than one
meaning is possible each possibility must be weighed
in the light of
all these factors. The process is objective, not subjective. A
sensible meaning is to be preferred to one that
leads to insensible
or unbusinesslike results or undermines the apparent purpose of the
document. Judges must be alert to, and
guard against, the temptation
to substitute what they regard as reasonable, sensible or
businesslike for the words actually
used. To do so in regard to a
statute or statutory instrument is to cross the divide between
interpretation and legislation;
in a contractual context it is
to make a contract for the parties other than the one they in fact
made. The inevitable point of
departure is the language of the
provision itself'', read in context and having regard to the purpose
of the provision and the
background to the preparation and production
of the document.”
[11]
That statement reflected developments in regard to contractual
interpretation in
Masstores (Pty) Ltd v Murray & Roberts
Construction (Pty) Ltd and Another
;
KPMG Chartered Accountants
(SA) v Securefin Ltd and Another
; and
Ekurhuleni Metropolitan
Municipality v Germiston Municipal Retirement Fund
.  I
return to it and to those cases only because we had cited to us the
well-known and much-cited summary of the earlier
approach to the
interpretation of contracts by Joubert JA in
Coopers & Lybrand
and Others v Bryant
, that:
“
The
correct approach to the application of the golden rule of
interpretation after having ascertained the literal meaning of the

word or phrase in question is, broadly speaking, to have regard:
(1)
to the context in which the word or phrase is used with its
interrelation to the contract as a whole, including the nature and

purpose of the contract . . . .
(2)
to the background circumstances which explain the genesis and purpose
the contract, ie to matters probably present to the minds
of the
parties when they contracted. . . .
(3)
to apply extrinsic evidence regarding the surrounding circumstances
when the language of the document is on the face of it ambiguous,
by
considering previous negotiations and correspondence between the
parties, subsequent conduct of the parties showing the sense
in which
they acted on the document, save direct evidence of their own
intentions.”
[12]
That summary is no longer consistent with the approach to
interpretation now adopted by South African courts in relation to

contracts or other documents, such as statutory instruments or
patents. Whilst the starting point remains the words of the document,

which are the only relevant medium through which the parties
have expressed their contractual intentions, the process of
interpretation does not stop at a perceived literal meaning of those
words, but considers them in the light of all relevant and
admissible
context, including the circumstances in which the document came into
being. The former distinction between permissible
background and
surrounding circumstances, never very clear, has fallen away.
Interpretation is no longer a process that occurs
in stages but is
'essentially one unitary exercise'. Accordingly it is no longer
helpful to refer to the earlier approach.’
[30]
(Footnotes omitted).
In
Novartis
SA (Pty) Ltd v Maphil Trading (Pty) Ltd
[31]
it was said that:
‘
A
court must examine all the facts – the context – in order
to determine what the parties intended.  And it must
do that
whether or not the words of the contract are ambiguous or lack
clarity.  Words without context mean nothing.’
[46]
Although the interpretation of rule 17.2.1 did not feature
specifically in
Ramakatsa
,
it is in my view significant that having stated that ‘(the)
Provincial Conference elects the PEC which holds office for
four
years’
[32]
and having mentioned in the factual context of that matter that
‘during 2008, at the town of Parys and in accordance with
its
constitution, the ANC in the Free State elected a PEC’,
[33]
the spontaneous and with respect natural response which followed was:
‘
The
four-year term of the PEC was due to expire
during
the course of 2012
.
This meant that an elective provincial conference had to be
convened.  On all accounts, during January and February
2012,
the five regions making up the Free State and their branches started
preparations leading towards the regional conferences
and provincial
conference. These also entailed convening branch general meetings
directed at electing branch members in good standing
as delegates to
the Provincial Conference.’
[34]
(My emphasis)
That
is also the most probable interpretation in the context of the ANC
constitution which appeals to me. It would also be in line
with for
example time intervals in sporting codes regulating the Rugby World
Cup, Soccer World Cup, Cricket World Cup and the like,
being held
once every fourth, or whatever number of years. ANC provincial
conferences are three day events, the holding of which
cannot be
determined from time to time, with reference to a specific calendar
day. Prima facie, concluding that a provincial conference
must be
held at least every fourth calendar year seems to be the most
sensible and business-like or practical interpretation of
rule
17.2.1.
[47]
There is nothing specifically significant about the words ‘at
least once’. It means once. Mindful as I am that
all words in
an agreement should be accorded a meaning in the process of
interpretation, these words appear to be largely superfluous.
The
words ‘at least’ simply indicate a minimum of ‘once’.
It conveys by necessary implication that provincial
conferences may
be held more ‘often’ than once every four calendar years,
but that they may not be held at intervals
greater than that, for
example only once every five, six or more years.
[48]
To that extent the position in regard to a provincial conference is
no different to a NC. NCs have to be called at least once
every five
years. Unlike a provincial conference though, a NC may be called more
often than once every five years, in the unfettered
discretion of the
NEC.
[35]
That same power does not reside in the NEC in respect of convening
provincial conferences. Whatever general power the NEC has in
terms
of rule 12.1 to convene provincial conferences, it is a power to be
exercised ‘… subject to the provisions of
this
Constitution.’  If a provincial conference is to be held
‘more often’ than ‘once every 4 (four)
years’,
rule 17.2.1 expressly requires that it must have been ‘requested
by at least one third of all branches in the
Province.’
[49]
This rider to rule 17.2.1 is not simply a residual power, which the
NEC would have the option, if a request is made by at least
one third
of all branches in the Province to hold a provincial conference more
often than once in every four years, to either give
effect to, or to
ignore. If requested by at least one third of all the branches in a
Province, rule 17.2.1 requires that such provincial
conference
‘shall’, not ‘may’, be held. The provision is
not unlike that in rule 29.1 which provides that
a Special Conference
may be convened at any time by the NEC, but
also
when
requested by a majority of the Provinces for a stated purpose or
purposes.
[50]
The Respondents applied for and were granted leave to file a fourth
set of affidavits. It is not without significance that
an annexure to
that affidavit, being a ‘Statement of the African National
Congress following the meeting of the National
Executive Committee
held on the 27 to 28 November 2015’ issued by the SG records:
‘
The
ANC in Mpumalanga will be hosting an early conference as decided by
one third of its branches at its Provincial General Council
held in
March 2015’.
The
Respondents were critical of this statement being taken out of
context or in the absence of its correct context being explained.

That is of course correct and I am very mindful of that danger. What
the statement however does reflect is an acknowledgement of
the
notion of a provincial conference being held ‘early’
because that was, not simply requested, but indeed ‘decided
by
one third of its branches…’. The document however does
not deal with what is meant by ‘early’.
[51]
The issue in this case, more specifically, is whether the PC held
from 6 to 8 November 2015 amounted to a provincial conference
held
more often than at least once every four years, thus being held
‘early’. Plainly to answer that question one needs
to
consider how the four year period must be determined. Clearly it must
be determined with reference to some event. The obvious
point of
reference to which the question must be answered and the four year
period established, must be the previous provincial
conference, that
is the seventh PC, which was held from 11 to 13 May 2012.
[52]
In accordance with the interpretation favoured by me above, with the
seventh PC having taken place in 2012, the next provincial

conference, not to fall foul of the requirement of rule 17.2.1 that
at least one provincial conference shall be held once every
four
years, would have to be held in 2016. Holding the PC in November 2015
would on that construction amount to holding a provincial
conference
‘more often’ than ‘at least once every 4 (four)
years …’. Holding it in the third year
since the seventh
PC would amount to the PC having been held ‘more often’
than ‘once in every 4 (four) years’.
Such ‘early’
provincial conference would require to have been ‘requested by
at least one-third of all branches
in the Province’, which it
was not. Accordingly, it would be unlawful.
[53]
My aforesaid construction did not find favour with the Applicants or
the Respondents, although the Applicants immediately pointed
out that
even on my favoured construction, the PC would have been held ‘more
often’ than ‘once every 4 (four)
years’ and hence
justify the relief claimed. In particular the Applicants resisted my
interpretation as it could conceivably
permit one hypothetical
provincial conference being concluded on say 31 December of year one
and the next provincial conference
commencing on I January of year
four, which would mean that barely a day more than three years would
have elapsed in the interim.
This they said would violate the goal
contained in rule 17.3.3 of the ANC constitution, which provides that
members of a PEC ‘will
hold office for four (4) years’.
[54]
The Applicants and Respondent basically each favour an interpretation
of rule 17.2.1, specifically as to what is meant by ‘every
4
(four) years’, which involves a precise calculation of the four
year period, with reference to the seventh PC. Where the
Applicants
and Respondents however differ is whether the seventh PC falls within
or outside the four year period, that is whether
the four year period
commences to run from the first day of the seventh PC (the
Applicants’ interpretation) or whether it
starts to run only
after the conclusion of the seventh PC (the Respondents’
interpretation). According to the Applicants
the period must be
calculated from the first day of the seventh PC i.e. 11 May 2012
according to the civil method of computation
[36]
and to expire at midnight on 10 May 2016. According to the
Respondents the period must be calculated from the first day after
the seventh PC had been concluded i.e. 14 May 2012 and to expire on
13 May 2016. The significance of these different approaches
lies in
the seventh PC on the Applicants’ interpretation being the
first provincial conference during that four year period
and any
further conference held during the four years ensuing amounting to
one held ‘more often’ than once during that
period,
whereas the interpretation favoured by the Respondents will mean that
the PC held on 6 to 8 November 2015 is the ‘first’

conference during that four year period and hence not require to have
been requested by at least one third of all branches, but
one which
could be convened in the discretion of the NEC.
[55]
On the Applicants’ construction the eighth PC, at the election
of the NEC, could only be held lawfully after 10 May 2016.
If held
earlier than that, as in fact occurred with the PC, it would have
been held ‘more often’ than ‘at least
once every 4
(four) years.’ That construction is certainly a purposive one
consistent with rule 17.3.3 which provides for
a term of office of
the elected members of the PEC of four years. The drafters of the ANC
constitution clearly contemplated that
in the ordinary course a term
of office approximating four years, or at least four years, should
follow to allow sufficient time
for the newly elected PEC to
implement new policies etc, before the tenure of a different PEC
elected at a subsequent provincial
conference might commence. The
four year term of office could never be guaranteed absolutely,
because if at least a third of the
branches requested an earlier
conference than once in every four years, the term of office of those
elected previously would inevitably
be terminated earlier (unless
re-elected). The Applicants accepted that the tenure of four years
would be curtailed prematurely
in those circumstances but then only
as an inevitable consequence in accordance with the democratic
process and the ANC constitution
where dissatisfaction with the
present incumbents cause at least a third of all branches in the
Province to request an earlier
provincial conference. The dilemma
with the Applicants’ interpretation however is that it is then
unclear when the next provincial
conference would be required to be
held. If the ‘first’ one is the seventh PC from 11 to 13
May 2012 and the PEC elected
holds office for four years thereafter
until 10 May 2016, by when must the next provincial conference then
be held? If held after
13 May 2016 then more than four years would
have elapsed (calculated from 14 May 2012) without ‘at least’
one provincial
conference being held. If it is to be contended that
the period from 11 May 2016 would constitute a new self-contained
independent
four year period, then presumably a further conference
could be held at any stage until 10 May 2020, which would be an
absurd interpretation
as the PEC could then hold office for almost
eight years and a provincial conference would not have been held ‘at
least once
every 4 (four) years’.
[56]
If the calculation of the four years was only to commence after the
seventh PC had been concluded on 13 May 2012, as the Respondents

contend, then the next provincial conference had to be held, in order
to be ‘at least once every 4 (four) years’, at
any stage
before midnight on 13 May 2016.  That would mean that the eighth
PC held on 6 to 8 November 2015 would have been
the ‘first’
provincial conference during that four year period, and hence not
required to have been requested by at
least ‘one third of all
branches in the Province.’
[57]
The difficulty with the Respondents’ interpretation is that it
would mean that the next conference after the seventh
PC, assuming
one not requested by one third of all branches, could have been
convened by the NEC at any stage from 14 May 2012
to 13 May 2016,
even if it was a month or a year after the seventh PC concluded. This
would obviously defeat the stated intention
that the elected members
of the PEC would ‘hold office for four (4) years’, as the
NEC as the body which has the power
and authority to convene
provincial conferences could for whatever reason prematurely
terminate the tenure of the elected PEC,
irrespective of the wishes
of branches.
[58]
The construction contended for by the Respondents could also based on
rhetorical questions posed below, result in certain absurdities.
If,
for example, the eighth PC could lawfully be held as early as one
year after the seventh PC, the former then becoming the first

provincial conference since the seventh  PC, would the next four
years after the eighth PC then be calculated from immediately
after
the conclusion of the eighth PC? If it did, then it would mean that
the ninth PC could likewise be held, as the next ‘first’

conference within the next four years from the eighth PC, at any
stage say within one year of the eighth PC, with these subsequent

provincial conferences all occurring more often than once in a four
year calendar period, but none having to be requested by at
least one
third of the branches. Or would, what would become the ninth PC
require a request from at least one third of the branches
in the
Province, and if so, why? The hypothetical ninth PC could only become
a ‘second’ or earlier provincial conference
on that
construction in relation to the eighth PC, if the calculation of the
four years is done with reference to the holding of
the seventh PC?
But then why should the calculation be with reference to the seventh
PC, if the eighth was the next ‘first’
conference in a
cycle of four years within which the next provincial conference would
have to be held? That construction also contradicts
the purpose
sought to be achieved by rule 17.3.3, which should only be capable of
being compromised by at least one third of branches
seeking that an
‘early’ provincial conference be held.
[59]
It seems to me on a proper construction of rule 17.2.1 of the ANC
constitution in the context of the entire document, that
my initial
construction is the most plausible and preferred one. Consistent with
the comments in
Ramakatsa
where the provincial conference was
held in 2012, the next one would be required to be held in 2016.
Whether it is held early or
later in the year, hence whether it might
result in a term of office for members of the PEC holding office of
slightly less, or
possibly a few months more than four years, is
materially irrelevant. That is an inherent flexibility in having a
provincial conference
‘at least once every 4 (four) years’.
If ‘more often’ than that, then a request by at least one
third of
all branches in the Province’ is required.
[60]
The ANC Provinces are decentralized to geographical areas
corresponding largely to the nine Provinces established in terms
of
the Constitution. Provincial matters are dealt with at these
decentralized lower levels. In the case of Provinces, the PEC elected

at provincial conferences is very important. Their conduct may impact
intimately on members of branches in the Province.
Not
surprisingly then, in the interest of continuity, sound governance
(allowing time for policies that are devised by incoming
PECs to be
implemented), further provincial conferences should not be capable of
being convened arbitrarily unless supported by
an acceptable number
of those subject to that PEC’s rule wishing to see a change in
the party political government of their
Province. Holding a PC is
furthermore a costly affair not only in time spent (usually it seems
three days excluding the events
before the actual conference) and
energy spent, but also in actual financial costs (a figure of
R12 million was mentioned
to be the cost of the PC, including
rental of a large enough venue, accommodation and food for
delegates). It is not surprisingly
then that rule 17.3.3 of the ANC
constitution contemplated a four year period also for elected
officials to hold office. That is
the objective which the drafters of
the ANC constitution sought to achieve. Its aims would however be
defeated if the construction
contended for by the Respondents was to
be favoured and a second or ‘more often’ held provincial
conference could have
taken place within say a year of the seventh
PC.
[61]
As it is common cause that there was no request by a third of the
branches, the eighth PC was held in breach of rule 17.2.1
of the ANC
constitution and is therefore unlawful.
IRREGULARITIES
:
[62]
My conclusion in regard to the interpretation of rule 17.2.1
above makes a consideration of the alleged irregularities
strictly
unnecessary. I shall however deal with the arguments advanced
briefly. The Applicants have complained of a number of
irregularities. They do not persist with those irregularities in
respect of which material disputes of fact arise from the answers

filed by the Respondents.
[37]
They however maintain that the ‘irregularities’ canvassed
below can be determined on the papers, and should be determined
in
the Applicants’ favour.
[63]
The alleged irregularities persisted with may be summarised as
follows:
(a)
That branches were not furnished timeously (stated to be two weeks
before the BGM date) with pre-audit membership rolls, to
ensure that
all members of branches had been correctly captured;
(b)
That branches were not given an adequate opportunity to appeal
against the results of the audit, thus resulting in some branches

being excluded from participating in the PC;
(c)
That branches were excluded from being accredited, which entailed:
(i)
That the credentials report was adopted at
the PC whilst appeals were pending or underway;
(ii)
That branches that had appealed successfully were not accredited at
the PC; and
(d)
That the voting process or results appeared to have been manipulated
or influenced.
The
aforesaid will be considered seriatim.  Finally this portion of
the judgment will be concluded by a consideration of the
so called
‘70% rule’.
[64]
That a time line of milestones within which important events are to
occur and are to be achieved in the preparation for and
holding of a
legitimate provincial conference, is not in dispute.  In
Ramakatsa
it was said that:
‘
[77]
Whenever a conference is planned, whether it is a regional or
provincial conference, the PEC must determine a cut-off date
for
purposes of conducting an audit process. Once that date passes, the
National Audit Team must verify paid-up members of each
branch
intending to send delegates to the conference.  It must also
determine if the branches are in good standing.
On completion
of an audit for a region, the team must submit a copy of the
preliminary audit report to the relevant provincial
secretary. The
audited branches are afforded five days within which to raise
queries. The National Audit Team should respond to
every query and
where necessary, make corrections to the preliminary report.  If
a branch is still not satisfied, it may appeal,
presumably, to the
Regional Executive Committee, or the PEC or to the Secretary-General
of the ANC who is the final arbiter.
[78]
All of this constitutes the terms on which the second complaint of
the appellants was based. They claimed that some of these
rules were
breached in the preparatory stages of the impugned conference. As a
result, they contended that the Provincial Conference
was vitiated by
the irregularities in question.’
Verification
by branches of membership rolls – the two week requirement
[65]
Reference has already been made above to the document entitled ‘WHAT
CONSTITUTES A LEGITIMATE ANC CONFERENCE’,
[38]
the ‘ANC National Audit Guidelines for Conferences and general
councils’
[39]
and the ‘Roadmap’
[40]
adopted by the PEC with the dates specified therein.
[66]
Although the Respondents during argument accepted that these
documents contain rules and regulations governing the holding
of
conferences that had to be observed, that was not conceded in the
answering affidavit filed. There the Respondents contended,
with
reference to the introductory words to the portion of the document
headed ‘WHAT CONSTITUTES A LEGITIMATE ANC CONFERENCE’
[41]
detailing ‘primary principles’ such as that branches had
to be given membership rolls ‘two weeks before the BGM
…’,
that these were simply ‘recommended’, the implication
being that they were not obligatory. As mentioned
however above
[42]
in the version of that document submitted by the Respondents
[43]
it is recorded that the ‘primary principles’ (although
admittedly further down referred to as ‘Guiding Principles’),

‘must be adhered to …’. Having regard to that
peremptory phraseology the approach adopted by the Respondents
in
argument is clearly to be preferred above that contended for in the
answering affidavit. The time limits are in my view mandatory.
But
even if I am wrong in that interpretation and/or if a failure to
adhere strictly to the time limits would not necessarily visit

invalidity on the procedures leading up to and at the PC, then the
time limits are nevertheless, as the document itself recognises,
very
important ‘guiding principles’ plainly indicative of what
is reasonably required to ensure a transparent, fair
and most
importantly ‘legitimate’ conference. I shall proceed on
that premise.
[67]
The main difficulty with the time limits is that with the PC
initially being planned during March 2015 for September 2015,
that
idea then being scrapped, the conference then during September 2015
being planned to be held from 6 to 8 November 2015, that
idea being
placed on hold at the end of October 2015, but then being reinstated,
that the time limits which would normally be available,
inevitably
became truncated. In the First Respondent’s answering affidavit
he acknowledges that a provincial conference usually
requires
approximately six months preparation according to the ‘Road
Map’ contained in his report of 2 November 2015.
[68]
Ex facie that document, membership verification had to be done and
the audit report confirmed by 6 September 2015. That was
however
already problematic as the PC was ultimately only given the go ahead
by the NEC at its meeting of 18 to 20 September 2015,
a date after
the date on which the membership verification already had to be
completed.  The requirement that the preliminary
audit regarding
branches which qualified for the PC would meet the same deadline of 6
September 2015 meant that verification could
not have proceeded upon
the basis of the two weeks’ notice stipulated in the ANC
guidelines from the time that the go ahead
was given.
[69]
Factually this is also confirmed by the evidence of the Applicants
that their branches received either no, or very much shorter
than two
weeks sight of their membership rolls before their BGMs. Indeed the
Applicants’ allegations include that each of
them is a BEC
member at their respective branches and that none of their branches
received the branch membership roll as determined
by the preliminary
audit, two weeks before the date set for the BGMs. The time frames in
respect of those branches from the time
that the rolls were furnished
to the holding of the BGMs varied from about four days, to one roll
only being furnished by the regional
deployee at the commencement of
the BGM.  Further, none of the regional offices in question
called the relevant BECs as they
allegedly should, to meetings at
regional level, to be told the results of the pre-audit and to make
available the branch rolls
for correction.
[70]
Specifically the Applicants allege that in a case of the Somkhele
Branch, Mtubatuba sub-region, the regional office made no
effort to
convey the pre-audit results to the branch whether timeously or at
all. Only following complaints and approximately four
days before the
BGM was scheduled, was a copy of the pre-audit membership roll for
that branch procured.  Similarly in respect
of the Fourth
Applicant’s branch, Ward 57 eThekwini region, the pre-audit
became available approximately three to four days
before the
scheduled BGM.  Similarly in the Beyers Naude branch, Ward 22
Vryheid sub-region, although the regional office
told the branch when
the BGM was to sit, the official roll was only produced by the
deployee upon arrival for the BGM.  Informally
members of that
BEC had managed to procure a copy thereof, approximately three days
before the meeting.
[71]
The Respondents answer is simply to the effect that the Applicants
complaints go to the 70% rule which the main answering affidavit

explains as:
‘…
put
differently as long as 70% of the branches in the region meet with
the pre-conference processes then the conference can proceed.

The remaining 30% no matter how valid their complaints, cannot
prevent the Provincial Conference from proceeding, nor can they

complain afterwards if it does.’
[72]
More importantly, in my view, the Respondents further point out that
although the Regional Committee may set deadlines by which
BGMs have
to take place, the ultimate responsibility for arranging the BGMs
rest with the BEC as it has to organise its own members
and invite
them to the meeting. Accordingly, if there was any legitimate concern
or complaint regarding too little time between
receiving the members’
voters roll and the BGMs, then the date for the BGM could simply be
extended so as to allow the lapse
of the two week period.  The
Respondents point out that there was no explanation by the Applicants
why this ‘simple
expedient’ was not followed.
Finally, it was pointed out that the time limits for the holding of
BGMs were extended
in respect of those branches that had not held
their BGMs timeously.  In the report on the state of readiness
the First Respondent
recorded that:
‘
All
branches should have convened BGM’s by the 25 October 2015.
However after consultation with the Secretary General it was
agreed
to push the time frame to 01st November 2015 to accommodate more
branches, especially from the eThekwini region.
The
preliminary report from the audit team indicated that the Province
has already reached the 70% of branches which are required
for the
Provincial Conference. The Preliminary audit report is attached.’
[73]
It appears to me that on a strict reading the two week period between
receipt of the membership rolls and BGMs was not always
observed and
was compromised. This certainly did not make for a good start to the
run up to the PC. The point made by the Respondents
that branches
exercise control over the convening of BGMs and that these could be
extended, is however a good one. Specifically
the contention by the
Respondents is that the time frame for branch verification was
‘pushed out’, if not generally,
then at least in respect
of some branches in the eThekwini region. The Respondents’
version being the one that prevails in
the event of any dispute, I am
not satisfied that the Applicants have clearly established a fatal
irregularity in this regard which
would nullify the entire conference
process. BGMs could have been extended to allow sufficient time for
the branch membership rolls
to be considered properly, and steps
taken to collect the rolls where they had not been supplied at all.
Whether that would have
given rise to problems down the line with
insufficient time then remaining to complete other processes, and
whether that would
result in fatal irregularities cannot be answered
on the papers, save insofar as it may be covered by the Applicants’
further
complaints which shall be considered below. The 70% rule, to
which I shall return below, is however not an answer to these
complaints.
Inadequate
time for appeals
[74]
The Applicants nevertheless complain, that whatever the position
might be with them receiving the branch membership rolls less
than
two weeks before BGMs, that the branches were afforded at least one
day less for corrections after the preliminary audit report,
than is
stipulated in the National Audit Guidelines. In those Guidelines,
dealing with the requirement of ‘Confirmation of
the Audit
Findings’, it is provided that following ‘the completion
of each regions audit, the
National Audit Team
(“NAT”)
will provide the relevant provincial
secretary with a copy of the preliminary audit report’ where
after ‘(t)he Branches
will then have five days within which to
raise queries’. An ANC branch ‘can appeal preliminary
audit outcomes through
its BEC following proper channels starting at
the Regional, Provincial, and National through the office of the ANC
Secretary General
as the final arbiter’. The NAT ‘should
then respond to any queries and make any necessary corrections. They
may review
any branch records, but should not consider documentation
that was not submitted to the original Audit Team.’ Once ‘the

audit is completed the audit team should make available the
preliminary audit report to the Provincial Secretary. The final audit

report shall be made available to the provinces once it has been
signed off by the Secretary General’.
[75]
The Applicants allege that the time allowed for final corrections (at
best three days) was not only exceedingly short, but
that on 27
October 2015 the SG had ‘stopped the clock’ resulting in
the PC preparations remaining ‘in limbo’,
presumably
suggesting that this would have encouraged apathy, until the NEC was
persuaded some time on 2 November 2015 to continue
with the PC as
planned for 6 to 8 November 2015.
[76]
After the final audit report had been filed by the NAT, the First
Respondent as the then Provincial Secretary states that it
was
communicated to those branches that had been disqualified that they
were disqualified. He maintains that a final or confirmed
audit was
signed off in two tranches. The first, namely the audit of the branch
membership, occurred by way of reports all dated
17 September 2015
and which are all signed by the SG.  The second tranche are all
dated 3 November 2015 and are signed by
the SG, save for one signed
by his Deputy, Ms Jessie Duarte. Regarding the Applicants’
complaint that the documents signed
off on 3 November 2015 were
described as ‘preliminary verification of BAGM’s/BGM’s’
for the Province of
KwaZulu-Natal Provincial Conference, it is said
they were only preliminary until signed off by the SG or his Deputy
and thereafter
became final audit reports.
[77]
The Respondents maintain that there was no obligation to make such
final audit report available to the branches for final correction

before the PC.  Their version is that once the appeal process
and final audit report is completed, presumably because the
SG is the
‘final arbiter’, it became part of a platform upon which
the credentials report is then compiled which in
turn is then
confirmed by the provincial conference, and that that is what
happened. That construction cannot however be correct.
The Audit
Guidelines themselves recognise that following the appeal to the
‘preliminary audit outcomes’ through the
office of the
SG, the NAT ‘should
then
respond to any queries’
and ‘…may review any branch queries’. This clearly
contemplates a further ‘review’,
more correctly appeal
process.
[78]
Appeals could only proceed and the PC credentials prepared after the
final audit report had been signed off on 3 November 2015.
[79]
The knock-on effect of the final audit report only being signed off
on 3 November 2015 is that the NDAC chaired by Ms Lindiwe
Sisulu only
commenced sitting on 4 November 2015.  According to the
post-conference report of the NEC’s Mr Joe Phaahla
annexed to
the Respondents answering affidavit, the NDAC only received some of
the final documentation which it required during
the first day of the
conference on 6 November 2015 and it made its report during the
evening of 6 November 2015 after it had been
persuaded by the NEC and
PEC members to exclude four ‘big membership’ eThekwini
branches from the PC which the NDAC
had decided to afford the
opportunity to produce documentation to reassess their audits (in
which they had been failed for ‘inconsistent
signatures’
of members).
[80]
In the ordinary course the final credentials report should
incorporate the results of the above appeal process, to comprise
the
final and definitive list of which branches and how many delegates
were entitled to vote at the PC.
[81]
The Applicants contend that this was unlawful and in breach of the
ANC’s constitutional procedures considering that the
NDAC was
the final arbiter of appeals and that it permitted a decision
regarding the four eThekwini branches in question to be
overridden
and changed by the NEC and PEC members in the manner described in Mr
Phaahla’s report.  Accordingly, the
Applicants submit that
the preparation time was clearly too short and the procedures too
rushed and that whatever other prejudice
there may be, it operated to
deprive the numerous members of the four eThekwini branches in
question of both their ANC constitution
entitlement  and their s
19(1)(b) right of participation. The issue however remains whether
the Applicants can point to actual
prejudice, at least in the sense
of branches which wished to appeal and could not do so.
[82]
In an attempt to demonstrate their prejudice the Applicants annexed
copies of cover sheets for the regions Musa Dladla, Far
North, Harry
Gwala, Emalahleli, Moses Mabhida, Lower South coast, Inkosi Bhambatha
and Ukhahlamba, signed by the SG or Deputy SG
as annexures ‘LD20.1’
to ‘LD20.11’. The Respondents however deny that the
documents ‘LD20.1’
to ‘LD20.11’ constitute a
complete set of audit reports.
[83]
It is not in dispute that a ‘warm body verification process’
was undertaken at the PC by all persons being evacuated
from the
conference venue and then allowed back in strictly on a names tag and
list basis, so that the possibility of the recognition
of delegates
from non-qualifying branches could be excluded. The Respondents
however dispute the correctness of the ‘Verification
Voters
Roll’ (‘VVR’)
[44]
introduced by the Applicants. They attach what is termed the correct
Updated Credentials report (‘UCR’)
[45]
which was completed at the PC
[46]
and which they contend is decisive.
[84]
The Applicants prepared a comparison and analysis between the VVR and
the UCR from which they seek to draw certain inferences.
That
comparison is however of no value in the light of the Respondents’
rejection of the VVR. I am alive to the comments
in
Ramakatsa
on the facts of that case with reference to the application of the
rule in
Plascon-Evans
, where the following was said:
‘
[94]
…However, it must be pointed out that where a respondent
raises a bare denial to an allegation made by an applicant,
the
denial is not regarded as raising a genuine dispute of fact. In such
a case the allegations made by the applicant may be taken
into
account in deciding whether the order sought is justified, unless the
respondent has requested that the applicant’s
deponent be
subjected to cross-examination.
[95]
Because affidavits in motion proceedings constitute pleadings and
evidence, the failure to respond to allegations made by an
applicant
is taken to be an admission of those allegations…’
[85]
The present is in my view not such an instance, as the Respondents
have not simply resorted to a bare denial but have endeavoured
to
explain their position with reference to the UCR.
[86]
After all is said, the Applicants must point to irregularities on the
Respondents’ version that are material and that
could have
affected the outcome of the voting. The Applicants made a comparison
of the ‘Report of the National Dispute Appeals
Committee’
[47]
and the UCR (as adopted) and seek to draw certain conclusions from
that. I have made a comparison of the ‘Final Audit Reports
for
the Provincial Conference’, the ‘Report of the National
Dispute Appeals Committee’ and the UCR. My comparison
does not
support all the ‘discrepancies’ the Applicants relied on
in reply,
[48]
but only those set out below:
(a)
eThekwini Wards 6 (p1363/1444) and 55 (p1275, p1367 and p1444)
qualified after their appeals to attend the PC, yet they do not

appear in the UCR, and no delegates were allocated to them;
(b)
Far North Region, Mtubatuba sub-region, Ward 4 qualified on appeal
(p1373), yet it does not appear in the UCR and no delegates
were
allocated (p1466);
(c)
Ward 79 eThekwini appears as having qualified (p1276 /1370), but does
not appear in the UCR (p1445);
The
above very strongly suggests that these three branches were denied
the right, through their delegates, to participate in and
vote at the
PC, in breach of the ANC constitution and the s 19(1)(b) rights of
their members.
[87]
On the other hand, Ward 9, Musa Dladla region, Umlalazi sub-region
appears in the final audit report as disqualified (p1309),
yet it was
seemingly erroneously allocated two delegates in the UCR (p1460) who
presumably would have voted at the PC.
[88]
The Respondents’ reply to the above discrepancies is that the
UCR is not conclusive and that the issue as to whether
delegates
attended and voted on behalf of branches at the PC can only really be
answered with reference to the actual voters’
rolls. That roll
however has been mislaid.
[89]
Regarding the mislaid voters’ roll, the answering affidavit
simply records that:
‘
The
Respondents have attempted to locate the voters roll but have been
unable to do so.’
This
is most unfortunate as it might have clarified certain issues.
However how it came to disappear is not explained, nor is there
any
explanation of what efforts have been made to try and locate it.
[90]
The UCR, as adopted, is accordingly the best evidence of who was
permitted to vote. On the acceptance thereof and on the common
cause
facts, three branches were indeed excluded from participation in the
PC, and one allowed to participate irregularly.
[91]
The question however remains as to what impact this would have had on
the PC. Plainly the voting might have been affected,
and in addition,
delegates from these Wards might have exercised some persuasive
powers in debate (save that the affidavits are
silent on this
aspect). Accepting that the prejudice could at best result from the
voting being affected, it is in my view significant
that the number
of delegates in each instance, having regard to the size of the
membership of the Wards, and comparing it to similar
sized Wards,
would not have been sufficient to remotely dent the difference in the
number of votes between the candidate Senzo
Mchunu (675 votes) and
the First Respondent (780 votes, being 1459 total votes less 4 votes
spoilt less 675 votes cast in favour
of Mr Mchunu), being 105 votes.
I am therefore not persuaded that even accepting the aforesaid
irregularities, that the outcome
of the PC would have been affected
materially, certainly not such as to cause it to be set aside.
[92]
It is so that according to the ‘Report of the National Dispute
Appeals Committee’, appeals from 28 Wards in the
eThekwini area
were outstanding and appeals were also still pending in respect of
Mtubatuba and that notwithstanding these appeals
being outstanding
the audit was nevertheless finalised. In the answering affidavit
[49]
no dispute is raised that there were such outstanding appeals and
queries. However the affidavits are silent on the reasons why
these
appeals were outstanding, and whether the appeals would have been
persisted with. As I understand the allegations in this
regard, there
is a lack of an evidential basis to find that these in fact amounted
to irregularities on the basis of which it can
be said that the
entire PC falls to be declared unlawful. The Applicants’
contentions in this regard, because of the application
of the
Plascon
Evans
principle, simply are
not established.
[93]
I therefore conclude in regard to the irregularities complained of,
that these were not established.
The
tweet
[94]
The voting process at the PC started on 7 November 2015 under the
leadership and guidance of the Electoral Commission and EISA.
The
ballot was a secret one in terms of the ANC constitution and no
results of the voting would be available until verified and
released
by the election agent.
[95]
The voting process in respect of the provincial ‘top 5’
positions started on the evening of 7 November 2015.
Whilst in
process, a ‘tweet’ allegedly from the ‘
My ANC’
twitter account was disseminated at 22h23 on 7 November 2015
reflecting the results of the voting as 1459 delegates voted, Senzo

Mchunu received 675 votes, the First Respondent received 789 votes.
It recorded that ‘Sihle is the Chairperson’.
[96]
At that time the process of voting was still ongoing with the Moses
Mabhida region still voting. The voting process was only
finalised at
about 03h00 on 8 November 2015 where after the counting of votes
started, which was finalised at approximately 09h30.
When the
final results were announced, 1459 delegates had indeed voted, four
ballots were spoilt, Senzo Mchunu had indeed received
675 votes,
while the First Respondent received the remainder and would become
the Chairperson. Expressing surprise at quite how
such an accurate
prediction could have been made before the voting was finished, the
inference sought to be drawn by the Applicants
is that the results
were fraudulently predetermined. The coincidence between the results
contained in the tweet, and the actual
result of the voting is indeed
remarkable.
[97]
The First Respondent in answer however denies any knowledge of what
he terms ‘this fraudulent and mischievous tweet’.
He
denies any fraud and expresses the view that the Applicants’
allegations are mischievous and not backed up by any sustainable

evidence.  He contends that the notion that the EISA could have
been party to such fraudulent conduct, is not only absurd
but
defamatory.
[98]
The Respondents also do not accept that the tweet was indeed sent at
22h23 on 7 November 2015, contending that any details
could simply
have been inserted in a fraudulent document, or that the tweet could
have been manufactured after the event, once
the actual results were
known.  Specifically they deny that the tweet is from the ANC
twitter account and contends that as
far as the ANC is concerned it
is a fake ‘tweet ‘.
[99]
The inference sought to be drawn of electoral fraud, at the level of
probability seeks to impute criminal conduct to an individual
or
individuals, albeit unidentified, which is not something that is
lightly inferred as a probability.
[50]
Motion proceedings are mainly suited to decide matters on the basis
of common cause facts.
[51]
On the approach to disputes of fact in motion proceedings and in the
light of the dispute as to the authenticity and timing of
the sending
of the ‘tweet’ no inference of fraud can be drawn in
these proceedings.
The
70% rule
[100]
The 70% rule has its origin in amongst others the document
‘WHAT CONSTITUTES A LEGITIMTE ANC CONFERENCE’,
where it
is formulated thus:
‘
The
conference is convened if there is a minimum of 70% branches that
have successfully completed all steps in the pre-process for
the
conference.’
[101]
As alluded to earlier, the First Respondent contends that ‘as
long as 70% of the branches in the region
meet with the
pre-conference processes then the conference can proceed.  The
remaining 30%, no matter how valid their complaints,
cannot prevent
the Provincial Conference from proceeding, nor can they complain
afterwards if it does.’
[102]
As much as one can understand the practical and logistical
difficulties which may arise in individual branches,
the requirement
is clearly one to operate constitutionally, and is more in the nature
of a quorum requirement.  All branches
must be given a proper
opportunity to qualify, which includes exhausting appeal procedures,
and after having appealed successfully
being accredited. However
similarly, having been given such a proper opportunity to qualify,
branches that then do not qualify
cannot be accredited, and cannot
complain. As long as 70% of the branches qualify having fully enjoyed
the right to qualify to
the highest appeal level, then the conference
can proceed. That would be a proper application of the 70% rule.
[103]
The constitutional rights and entitlement of members and branches
cannot, for the purpose of demonstrating this
principle, be violated
in the run up to qualifying to participate in a provincial
conference, and that violation then be justified
on the basis that at
least 70% of other branches had qualified. The application of the 70%
rule to that situation would be misdirected,
improper and irregular.
[104]
The 70% rule will therefore not assist the Respondents in respect of
the irregularities I have found to exist
in paragraphs [86] and [87]
above. Those irregularities however do not assist the Applicants’
case for the reasons dealt
with there.
LOCUS
STANDI IN IUDICIO
:
[105]
The issue arising is whether, notwithstanding my above conclusions,
the Applicants qua members of the ANC in their
personal capacities
have the required locus standi to claim (and be granted) any
relief.
[52]
[106]
Locus standi can either be established:
(a)
at common law, requiring a legally recognisable interest;
[53]
or
(b)
in terms of s 38 of the Constitution.
[107]
Section 38 of the Constitution provides:
‘
Enforcement
of rights
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach
a court are –
(a)
anyone acting in their own interest;
(b)
anyone acting on behalf of another person who cannot act in their own
name;
(c)
anyone acting as a member of, or in the interest of, a group or class
of persons;
(d)
anyone acting in the public interest; and
(e)
an association acting in the interest of its members.’
[108]
The Respondents have contended that the Applicants, as branch
members, have no right whatsoever to participate
directly in a
provincial conference and that their right is limited to voting as
part of the branch. Accordingly that it is the
branch, not the
individual, who sends delegates to the provincial conference that
would have locus standi
.
Reliance was placed on
Ramakatsa
paragraph 87 where it was said that:
‘
Thus
every member of the ANC exercises his or her right and entitlement
within the ANC through the medium of branch decisions and

resolutions.  Branch members are represented in the elective
provincial conference by delegates who must have been properly
and
democratically elected as representatives of their branches.’
[109]
As much as members participate within their branches in the
formulations of policy and the like, I do not read
Ramakatsa
as authority for the proposition that individual branch members can
only complain provided they do so through their branches.
Ramakatsa
on my reading thereof in fact confirms that ‘the ANC’s
Constitution regulates and facilitates how its members may
participate in internal activities of the party’, further ‘that
the leadership of the party is accountable to its members
in terms of
the procedures laid down in its constitution.’
[54]
Likewise following the introductory comments in para 79 t
he
Constitutional Court held that:
[55]
‘…
if
the constitution and the rules of a political party like the ANC, are
breached to the prejudice of certain members, they are
entitled to
approach a court of law for relief.’
[110]
The constitution of the ANC and the rules governing its functioning
collectively constitute the terms of an agreement
amongst the
members. Branches do not join the ANC, individual members do. When
the constitution is violated, it is not a violation
possibly of only
rights of the branches, but the violation of rights of individual
members.  The constitution of the ANC simply
gives effect to the
political rights each member of the ANC has in terms of s 19 of the
Constitution.
[111]
When a provision of the ANC constitution or its rules is breached,
the Applicants are denied the very political
rights they are afforded
in s 19 of the Constitution and they are entitled to apply to court
to assert their rights, if not directly
then at least indirectly,
under s 19. This would bring them squarely within the parameters of s
38(a), particularly where s 38
requires a ‘wide approach’
or a ‘generous approach’ to matters of standing.
[56]
[112]
The Applicants accordingly had the required locus standi
.
IS
THE APPLICATION TIME BARRED?
:
[113]
The Applicants presented their application for relief relying on
contractual (the ANC constitution) and constitutional
(s 19 of the
Constitution) causes of action.  In this regard they were no
doubt guided by what was decided in
Ramakatsa
which recorded
in respect of the applicants in that matter that:
‘
[10]
The relief sought was premised on three inter-related grounds:
(a)
common law contractual grounds; (b) constitutional rights in terms of
section 19(1)(b) which had been infringed; and (c) judicial
review
under PAJA.’
[114]
Ramakatsa
concerned itself mainly with the first two grounds, namely, whether
the contractual rights of the Appellants as members of the
ANC were
breached specifically in the context where the complaints of the
Appellants amount to an infringement of their right to
participate in
the activities of a political party.  In the minority judgment
Froneman J
[57]
however held that:
‘
The
appellants sought to review the lawfulness of the Free State regional
conference and the decision of the ANC to accept the outcome
of that
conference …’
[58]
Moseneke
DCJ and Jafta J in the majority judgment disagreed with Froneman J’s
characterisation of the appellants’ case,
as being inaccurate
and incomplete. They, with respect correctly pointed out that:
[59]
‘
The
review claim was one of three causes of action. The other causes of
action were those which we find were established, namely,
that their
right to participate in the activities of the ANC was violated when
they were prevented from taking part in meetings
of the ANC.
This is a constitutional claim based on the right entrenched in s 19
of the Constitution.  The second cause
of action is
contractual.  It is based on the breach of the ANC’s
Constitution and its audit guidelines.  The irregularities

referred to above establish both these causes of action…’
The
order granted by the Constitutional Court included that:
[60]
‘
The
provincial elective conference of Free State province of the African
National Congress held at Parys on 21 - 23 June 2012 and
its
decisions and resolutions are declared unlawful and invalid.’
[115]
Notwithstanding the above, the Respondents have contended that the
relief claimed is, in true reality in the nature
of a review
(presumably as opposed to a simple declaratory order), which is
governed by the provisions of PAJA, or if wrong in
that regard, in
the alternative a review at common law.  The significance of
these submissions lies mainly, if not purely,
in whether the relief
claimed would then be time barred, the application having been
launched on the 22 July 2016, that being alleged
to be:
(a)
More than 180 days after the date contemplated in s 7 of PAJA which
provides:
‘
Procedure
for judicial review.
-
(1)
Any proceedings for judicial review in terms of section 6 (1) must be
instituted without unreasonable delay and not later than
180 days
after the date-
(
a
)
subject to subsection (2) (c), on which any proceedings instituted in
terms of internal remedies as contemplated in subsection
(2) (a) have
been concluded; or
(
b
)
where no such remedies exist, on which the person concerned was
informed of the administrative action, became aware of the action
and
the reasons for it or might reasonably have been expected to have
become aware of the action and the reasons.
(2)(
a
)
Subject to paragraph (c), no court or tribunal shall review an
administrative action in terms of this Act unless any internal
remedy
provided for in any other law has first been exhausted.
(
b
)
Subject to paragraph (c), a court or tribunal must, if
it is not satisfied that any internal remedy referred to in
paragraph
(a) has been exhausted, direct that the person concerned must first
exhaust such remedy before instituting proceedings
in a court or
tribunal for judicial review in terms of this Act.
(
c
)
A court or tribunal may, in exceptional circumstances
and on application by the person concerned, exempt such person
from
the obligation to exhaust any internal remedy if the court or
tribunal deems it in the interest of justice.
(3)
…’
There
was no application for an extension of the 180 day period.
(b)
Not within a reasonable time at common law.
[116]
In what follows below I shall consider seriatim:
(a)
Whether the application is in fact one for a review which falls under
the provisions of PAJA (which will entail whether that
argument can
be invoked where the Applicants have eschewed PAJA and secondly
whether the decisions in issue meet the definition
of ‘administrative
action’);
(b)
Whether it is a review at common law, and if so what would be a
reasonable time within which to pursue such relief; and
(c)
From what date the time for bringing any such review would run.
Do
the Applicants claim a review?
[117]
The relief claimed by the Applicants is not couched in the form of a
review identifying any particular decision
which is sought to be
reviewed, and claiming in addition, as is often but not necessarily
the case, that the record in respect
of such decision be produced
(normally in terms of the provisions of rule 53 of the Uniform rules
of court) or for such decision
to be ‘reviewed and set aside’.
The submission advanced by the Applicants is that they particularly
eschewed
PAJA, accordingly that their claim must be judged according
to the cause of action that they have chosen, as was done by the
applicants
in
Ramakatsa
.
[61]
[118]
As indicated earlier, Yacoob J construed the relief sought in
Ramakatsa
as being ‘premised on three inter-related grounds’, which
included judicial review under PAJA. However, he nevertheless

confined the judgment ‘to concern itself mainly with the first
ground, namely, whether the contractual rights of the applicants
as
members of the ANC were breached.’
[62]
The majority judgment also dealt with the matter independent of any
application of PAJA. The final relief granted, which included
inter
alia an order that the provincial elective conference of the Free
State was ‘declared unlawful and invalid’,
was a
declaration of rights.
[119]
In my view, the Applicants
,
with reliance inter alia on
Ramakatsa
,
were entitled to formulate their claim free from any review in terms
of PAJA. They were entitled to have their application adjudged

according to the cause of action they had chosen, and not to be
forced to have it adjudicated according to some other cause of
action
that might potentially have been available to them but which they
deliberately eschewed.
Makhanya
v University of Zululand
[63]
held that a court may not decline to entertain a claim brought by an
Applicant simply because a different cause of action might
have been
available.
[120]
The Respondents’ retort however is that the principle given
effect to in
Ramakatsa
has subsequently been qualified by the decision of the Supreme Court
of Appeal in
State
Information Technology Agency Soc Ltd v Gijima Holdings (Pty)
Ltd
.
[64]
This argument must be seen in its context. The starting point is s 33
of the Constitution, the material portions whereof provide
that:
‘
Just
administrative action
(1)
Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
(2)
…
(3)
National legislation must be enacted to give effect to these rights,
and must –
(a)
provide for the review of administrative action by a court …’
The
Respondents’ submissions following thereafter include that:
(a)
PAJA is the legislation which was contemplated and promulgated in
terms of s 33(3) to give effect to the rights in s 33;
(b)
PAJA has its own legality provisions which provide that a court has
the power to judicially review an administrative action
if the
administrator who took it was not authorised to do so by the
empowering provisions,
[65]
or if a mandatory and material procedure or condition prescribed by
an empowering provision was not complied with,
[66]
or if the action was taken for a reason not authorised by the
empowering provision.
[67]
(c)
The Applicants were accordingly obliged to follow the provisions of
PAJA.
[68]
(d)
The Supreme Court of Appeal in
Gijima
Holdings,
decided
subsequent to the decision in
Ramakatsa
,
held
[69]
per Cachalia JA writing for the majority,
[70]
in the context of a similar argument that the appellants in that
matter maintained
[71]
that they were entitled to avoid instituting review proceedings under
PAJA by relying directly on the constitutional principle
of legality
to obtain declaratory relief against Gijima, that this was
‘unacceptable’.
[72]
The Court held:
‘
[33]
….In short, if the unlawful administrative action falls within
PAJA’s remit there is no alternative pathway to
review through
the common law.
[34]
But the “burgeoning principle of legality” is arguably a
greater threat to PAJA than recourse to the common law
because it
regulates the exercise of all public power. This includes, in
addition to administrative decisions covered by s 33 and
PAJA, power
exercised by the legislature and the executive …
[35]
….
[36]
But it is not a problem that can legitimately be avoided.  For
if a litigant or a court could simply avoid having to conduct
the
sometimes testing analytical enquiry into whether the action
complained of amounts to administrative action, PAJA, in Professor

Hoexter’s words –
“
would
soon become redundant, for no sane applicant would submit to its
definition of administrative action (or to the strict procedural

requirements of s 7) if he or she actually had a choice”.
[37]
Put differently, the consequence of this would be that the principle
of legality, unencumbered by PAJA’s definitional
and procedural
complexities, would become the preferred choice of litigants and the
courts – which is happening increasingly
– and PAJA would
fall into desuetude. This would be a perverse development of the law,
one that the framers of the Constitution
would not have contemplated
when they drafted s 33(3) of the Constitution. Neither would the
lawmaker have imagined this when enacting
PAJA.
[38]
In my view, the proper place for the principle of legality in our law
is for it to act as a safety net or a measure of last
resort when the
law allows no other avenues to challenge the unlawful exercise of
public power. It cannot be the first port of
call or an alternative
path to review, when PAJA applies.  As this court said in
National Director of
Public Prosecutions and Others v Freedom Under Law:
“
The
legality principle has now become well established in our law as an
alternative pathway to judicial review
where
PAJA
finds no
application.” [Emphasis added.]’ (Footnotes omitted)
This
followed after the Court recognised that ‘it is at times
difficult to work out whether the unlawful action complained
of
qualifies as administration action.’
[73]
[121]
The parties are ad idem that the ANC is not an ‘organ of
state’. The Respondents contend further,
with reference to the
minority judgment of Cameron J in
My
Vote Counts NPC v Speaker of the National Assembly and Others
[74]
that it is also not ‘a private body.’ The first part of
the definition of ‘administrative action’
in s 1 of PAJA
dealing with decisions taken or a failure to take a decision by an
organ of state therefore does not apply, and
need not be considered.
[122]
The parties accepted that if PAJA was to apply, it would have to be
on the basis that there had been an administrative
action as
contemplated in sub-paragraph (b) of the definition of
‘administrative action’, which reads:
‘…
any
decision taken, or any failure to take a decision, by –
(a)
…
(b)
a natural or juristic person, other than an organ of state, when
exercising a public power of performing a public function
in terms of
an empowering provision, which adversely affects the rights of any
person and which has a direct, external legal effect,
but does not
include-
(aa)…’
[123]
The term ‘empowering provision’ is itself defined in s 1
of PAJA to mean:
‘…
a
law, a rule of common law, customary law, or an agreement, instrument
or other document in terms of which an administrative action
was
purportedly taken’.
Although
initially resisted, when this definition was pointed out to the
Applicants they accepted, correctly in my view, that the
ANC
constitution would qualify as at least ‘an agreement,
instrument or other document.’
[124]
The hotly contested issue which remained however in deciding whether
there was ‘administrative action’
taken in respect of the
ANC constitution, is specifically whether there was the exercise of a
‘a public power’ or the
performance of ‘ a public
function.’
[125]
The decision which the Respondents contend was in issue, was the
decision to hold or continue with the PC. It
is not however clear
from any express provision of the ANC constitution as to which person
or body would take the decision to hold
a provincial conference. It
certainly appears from the factual allegations made that the PEC had
requested approval from the NEC
during 2015 to hold the PC. Such
approval was granted, subsequently placed on hold, and then
authorised by the SG. The Respondents
contend that this power and
hence the decision to hold the PC was the decision of the NEC based
on the general omnibus power conferred
in rule 12.1 of the ANC
constitution.
[75]
Accordingly they contend that the relief claimed was hence a review
of the decision of the NEC to hold or continue with the holding
of
the PC.
[126]
In the absence of an express rule of the ANC constitution conferring
that power on the NEC, I am not certain that
the submission is
necessarily correct. For the purpose of this judgment it has however
been accepted that the decision does lie
with the NEC. That
uncertainty might however very well be a justifiable reason for the
Applicants to rather formulate their relief
as declaratory relief,
and might qualify as a circumstance which would justify seeking
declaratory relief, rather than relief by
way of a review, because it
is ‘at times difficult to work out whether the unlawful action
complained of qualifies as administration
action’ as said in
Gijima Holdings.
[76]
[127]
The crucial issue remains to determine what is meant by exercising ‘a
public power.’
[128]
The Respondents have stressed the following for their contention that
the exercise of a public power is involved:
(a) Under s 19(1) of the Constitution
every citizen is free to make political choices which include the
right to form a political
party, to participate in the activities of,
or recruit members for, a political party and to campaign for a
political party or
cause;
(b) Political parties receive public
funds with which to operate pursuant to provisions of s 236 of the
Constitution;
(c) Although not organs of state, the
ANC is not a private body;
(d) The decisions sought to be
attacked form part of the political process which is inherently a
public function. The elective process
of which the Applicants
complain constitutes an integral and essential role in the political
process and election of the ANC candidates
as public officials; and
(e) In
Cape
Town City v Aurecon SA (Pty) Ltd
[77]
a decision of the Constitutional Court subsequent to that of the
Supreme Court of Appeal in
Gijima
Holdings,
the latter was
not referred to, meaning that it still holds as good law and binding
precedent.
[129]
The decision to convene a provincial conference, and even elect
leadership, does not in my view constitute the
exercise of a public
power.  The ANC is the party in government nationally, but in
the context of this application its conduct
and decisions are not
attacked as part of Government/Executive but by members qua political
party. Even though partly state funded,
its decisions relating to the
PC have no direct impact on the political process or the public
generally. Its powers and decisions
are governed entirely by the ANC
constitution (not any statute or other legislation) and relate to and
only affect its members,
being the only persons that have a legal
interest. If any non-member of the ANC sought the relief claimed in
this application,
he/she would plainly be non-suited in respect of
any such relief, because it would be the exercise of a ‘power’
which
does not affect the ‘public’.  No public power
or public function is in issue.  The dispute revolves solely

around the propriety of the PC.  Even as much as political
parties themselves derive their status from the Constitution and
are
part of the elective process affecting the National and Provincial
Legislatures and the Executive, the decisions complained
of by the
Applicants are qua members of the ANC and not public in nature. The
position in
Van Zyl v New
National Party
[78]
which involved the recall of a member of the National Council of
Provinces is clearly distinguishable.
[130]
As was stated in
Sokhela and
Others v MEC for Agriculture and Environmental Affairs
(KwaZulu-Natal)
and
Others
[79]
in relation to the definition of an administrative action:
‘
The
question whether action taken by a public official or authority is
administrative is central to the enquiry. The focus of the
enquiry is
primarily upon the nature of the power being exercised, rather than
the identity of the person or body exercising the
power… As
the judgment in
Grey’s
Marine
makes clear,
it is a requirement, flowing from the definition of “decision”
in PAJA that the decision be one of an
administrative nature.’
(Footnotes omitted)
[131]
PAJA is concerned with the conduct of the administration. It is not
concerned with the internal conduct of political
parties, unless they
directly affect the public or political process, such as the recall
of a party’s representative to the
National Legislature, as in
Van Zyl v New National Party
where the New National Party
sought to recall their representative to the National Council of
Provinces. it was held by the Cape
High Court that such a decision to
recall failed to comply with the principle of legality and that it
constituted a violation of
the applicant’s right to
administrative justice.
[132]
As also held in
Calibre
Clinical Consultants (Pty) Ltd and Another v National Bargaining
Council for the Road Freight Industry and Another:
[80]
‘
A
bargaining council, like a trade union and an employers’
association, is a voluntary association that is created by
agreement
[81]
to perform
functions in the interests and for the benefit of its members.
I have considerable difficulty seeing how a bargaining
council can be
said to be publicly accountable for the procurement of services for a
project that is implemented for the benefit
of its members –
whether it be a medical- aid scheme, or a training scheme, or a
pension fund, or, in this case, its wellness
programme.’
[133]
In my view PAJA does not apply as the application does not concern
‘administrative action’. Accordingly
the time limitation
in s 7 of PAJA is no bar to the relief claimed.
Is
there an unreasonable delay at common law?
[134]
If the Applicants’ claim properly construed, is for a review at
common law based on the principle of legality
(as opposed to simply
declaratory relief, or a review of administrative action as defined
in PAJA),  then it must be brought
within a reasonable time.
[135]
The first issue to consider however is from what date such reasonable
period falls to be calculated.
[136]
The PC was held from 6 to 8 November 2015.
[137]
After the PC was concluded various representations were made and
delegations deployed, details of which have been
referred to above.
Based on those, the Applicants submit that ‘in keeping with ANC
practice’
[82]
they had to pursue their complaints with the NEC prior to pursing the
litigious route.  They maintain that it was quite proper
to
first give the NEC an opportunity to address the Applicants and other
members grievances before approaching a court and that
they were
correct in waiting for a response from the NEC, particularly as it is
not denied by the Respondents that the NEC was
the highest body
capable of invalidating the outcome of the PC.
[138]
The Applicants contend that they were not only entitled to wait for
the final word from the NEC but indeed were
obliged to so wait.
[139]
I have difficulty with the notion that they were obliged to wait as
though elevated to the level of some formal
internal appeal procedure
which needs to be exhausted prior to an aggrieved party approaching a
court of law. The ANC constitution
is silent on any such internal
remedies. Indeed the Applicants in reply concede that there is no
formal appeals process available
post-election. They however contend
that post-conference grievances about irregularities and unlawful
conduct affecting a conference
can be addressed to the NEC which does
have the power to intervene in the face of sustainable evidence
thereof. This they contend
is by virtue of inter alia rule 12 of the
ANC constitution. They maintain that this has been done in the past
for example in respect
of the setting aside and re-running, at the
behest of the NEC, of the February 2012 eThekwini Regional
Conference. In support thereof
they annex a document authored by the
First Respondent whilst he was the provincial secretary, referring to
such post-conference
grievances as ‘appeals’. These were
not denied.
[140]
Be that as it may, having regard to the steps that were taken, it
seems reasonable that the Applicants awaited
the outcome of the
grievances which had been lodged and that even though those were not
responded to within time periods within
which responses were
promised, that it was only manifestly clear when the NEC decided to
proceed with the induction of the new
PEC as late as in May 2016,
that it became clear that any undertakings to address the Applicants’
and others’ grounds
of complaint, would not be attended to.
[141]
The application was launched within a period of two months
thereafter. That cannot with regard to all the above
surrounding
circumstances be categorised as unreasonable, such as to constitute
an absolute bar to the relief claimed, even assuming
that the relief
claimed was properly a review at common law and that the Applicants
were not entitled to approach this court simply
for a contractual
remedy in the form of a declaration of rights.
THE
RELIEF CLAIMED
:
[142]
The Respondents submit that even if the Applicants were otherwise to
establish an entitlement to the relief sought,
that this court would
have a discretion as to whether or not to grant that relief taking
into account all relevant factors in the
exercise of that discretion.
Primarily it is contended that ‘matters have simply gone too
far in the meantime, and cannot
reasonably at this late stage be
unravelled.’  Attention was drawn to the fact that a delay
ensued from the time that
the PC was held and decisions were taken at
that PC, and the time the present application was brought some time
later. It was contended
that there is prejudice and knock-on effects,
which the deponent to the answering affidavit referred to. Referring
to the further
delays in the judicial process (and there was a
dispute as to which side was responsible for this) it was pointed out
some 21 months
would have elapsed by the time this matter was heard
during which period persons elected at the PC have occupied positions
(in
the case of the PEC from May 2016 when they were inducted) and
various high ranking officials have been deployed to important
governmental
positions. Accordingly it is contended that it is simply
not practicable or reasonable in the circumstances to attempt to
unravel
all of this, that the relief sought if granted would throw
into uncertainty, and possible chaos, everything that has happened in

the intervening 21 months, and to the extent that administrative
decisions might have been taken, although they continue to exist
in
fact and in law, if they were taken by a person not lawfully
authorised to take such decisions, they are vulnerable to being
set
aside on review by any interested party. Reliance was placed in this
regard on s 6(2)(a) of PAJA. Attention was also drawn
to the fact
that even if no direct challenges are raised by way of review
proceedings, if at some future stage a decision is sought
to be
enforced it might be faced by a collateral challenge which may
succeed in preventing enforcement. Even if it does not succeed
in
preventing enforcement, the concern was that elected officials might
be wary about seeking enforcement because of the potential
of
subsequent court challenges. Accordingly, it was submitted that the
Applicants’ approach in seeking the relief which they
do, would
be irresponsible and impractical.
[143]
At common law, non-compliance with the peremptory provision of an
agreement/constitution results in the setting
aside of the conduct
which flowed therefrom.  Thus in
Matlholwa
v Mahuma and Others
[83]
it was held that:
‘
As
pointed out above, the power to expel a member may be exercised only
by a body in which such power has been vested by the constitution

expressly or by clear and unambiguous implication, failing which the
purported expulsion will be
ultra
vires
the
constitution and void.’
[144]
Section 172 of the Constitution provides:
‘
Powers
of courts in constitutional matters
(1)
When deciding a constitutional matter within its power, a court –
(a)
must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency;
and
(b)
may make any order that is just and equitable, including –
(i)
an order limiting the retrospective effect of the declaration of
invalidity;
(ii)
an
order suspending the declaration of invalidity for any period and on
any conditions, to allow the competent authority to correct
the
defect.’
[145]
As the ANC constitution simply gives effect to the political rights
in s 19 of the Constitution, in deciding on
the relief claimed this
court is ‘deciding a constitutional matter’ as
contemplated in s 172.
[146]
A just and equitable order may be granted even in instances where the
outcome of a constitutional dispute does
not hinge on constitutional
invalidity of legislation or conduct. In
Head
of Department, Mpumalanga Department of Education and Another v
Hoërskool Ermelo and Another
[84]
it was held that:
‘
[96]
…
In
other words the order must be fair and just within a context of a
particular dispute.
[97]
It is clear that s 172(1)(
b
)
confers wide remedial powers on a competent court adjudicating a
constitutional matter. The remedial power envisaged in s 172(1)(
b
)
is not only available when a court makes an order of constitutional
invalidity of a law or conduct under s 172(1)(
a
).
A just and equitable order may be made even in instances where the
outcome of a constitutional dispute does not hinge on
constitutional
invalidity of legislation or conduct. This ample and flexible
remedial jurisdiction in constitutional disputes permits
a court to
forge an order that would place substance above mere form by
identifying the actual underlying dispute between the parties
and by
requiring the parties to take steps directed at resolving the dispute
in a manner consistent with constitutional requirements.
In several
cases, this court has found it fair to fashion orders to facilitate a
substantive resolution of the underlying dispute
between the parties.
Sometimes orders of this class have taken the form of structural
interdicts or supervisory orders. This approach
is valuable and
advances constitutional justice, particularly by ensuring that the
parties themselves become part of the solution.’
(Footnotes
omitted)
In
that matter an order was granted requiring the school governing board
and the school to report to the Constitutional Court within
a
specified period of time on the reasonable steps it had taken in
reviewing its language policy and on the outcome of the review

process.
[147]
The aforesaid was referred to with approval by Mogoeng J in
Minister
of Safety and Security v Van der Merwe and Others,
[85]
were it was stressed that such a just and equitable order should be
one ‘structured in a way that avoids unnecessary dislocation

and uncertainty’ (in that matter in the criminal justice
process).
[86]
[148]
In
Zondi v MEC, Traditional
and Local Government Affairs, and Others
[87]
it was held that:
‘
There
is therefore much to be said for the view that common law, viewed in
the light of s 173 of the Constitution, provides the
power to extend
the period of suspension of the declaration of invalidity as
contended by the MEC.  This will of course require
us to
consider whether common law should now be developed in the interests
of justice to bring it in line with the powers of this
Court in
deciding constitutional matters.  However, in the view we take
of the matter, it not necessary to do so.  The
MEC contended in
the alternative that the power to extend the period of suspension is
to be found in s 172(1) which deals with
the powers of this Court in
deciding a constitutional matter within its jurisdiction.’
[149]
In
Ramakatsa
the delay from when the Free State provincial conference was held
from 21 to 24 June 2012 until the Constitutional Court pronounced
on
the matter was considerably shorter than what it is in this
application. However, there was little time from the judgment of
the
Constitutional Court until the next NC was to be held on 15 December
2012 in Mangaung. This resulted in the appellants in that
matter
arguing that it would be ‘just and equitable for (the) Court to
order the ANC to install an interim structure in terms
of rule
12.2(d) of its constitution’.
[88]
Rule 12.2
[89]
provides:
‘
12.2
Without prejudice to the generality of its powers, the NEC shall:
12.2.1
…
12.2.2
…
12.2.3
…
12.2.4
Ensure that the Provincial, Regional and Branch structures of the ANC
function democratically and effectively. (The
NEC may suspend or
dissolve a PEC when necessary.  A suspension of a PEC shall not
exceed a period of 3 (three) months. Elections
for a PEC, which has
been dissolved, shall be called within 9 (nine months) from
dissolution. The NEC may appoint an interim structure
during the
period of suspension or the dissolution of the PEC to fulfil the
function of the PEC);
…’
[150]
In support of an order, which it was contended would be just and
equitable, reliance was also placed in
Ramakatsa
on rule 11.3 which empowers the NC with ‘the right and power to
review, ratify, alter or rescind any decision taken by any
of the
constituent structures,
[90]
committees
[91]
or officials of the ANC.’ The order sought was that the
Constitutional Court direct the NEC to reconsider the complaints
of
the appellants in that matter, or that the NEC consider the
complaints at the start of the conference.
[151]
It seems that the Constitutional Court in
Ramakatsa
in deciding the issue before it considered that it was ‘deciding
a constitutional issue’ for the purpose of s 172 of
the
Constitution.
[92]
It did not expressly say so, but it appears from the fact that it
decided not to grant an order which to any extent would suspend
its
declaration of invalidity of the Free State conference, that it
impliedly accepted that the issue it was called to decide was
a
‘constitutional issue’. The Constitutional Court stated,
after having concluded that ‘a declaration that the
provincial
elective conference of the ANC and the decisions taken at the
conference are unlawful and void should suffice’
and cautioning
that ‘the declaration of invalidity applies only to the
Provincial Conference’ and does not ‘relate
to or effect
the rights of delegates who have been elected at properly constituted
branch general meetings …to serve as
delegates at any other
conference of the party’, that:
[125]
We are disinclined to determine how the political party concerned
should regulate its internal process in the light of the
declaration
made by this Court.  We are satisfied that the ANC’s
constitution confers on the NEC or the National Conference
adequate
authority to regulate its affairs in the light of the decision of
this Court.’
[152]
Specifically in this case
,
the Respondents have argued that:
‘
The
persons elected at the Provincial Conference (whom the Applicants now
say have invalidly been elected) have continued to occupy
those
positions and it made numerous very important administrative and
other decisions.  Moreover as a result of that Provincial

Conference, numerous high ranking officials (as Mr Zikalala has
already set out) have been deployed to important Governmental
positions and numerous important decisions have been taken by those
persons in those official capacities.’ Accordingly, that
it is
‘simply not practicable or reasonable in the circumstances to
attempt to unravel all of this’ and that any attempt
to do so
will ‘…throw into uncertainty, and possible chaos,
everything that has happened in the intervening 21 months.’
Even
acknowledging that administrative decisions that are taken continue
to exist in fact and in law, the complaint was that if
such decisions
were taken by a person or entity that was subsequently found not
lawfully authorised to take such decisions, that
those decisions
would be vulnerable and liable to be set aside on review by an
interested party.
[93]
Even if no direct challenge was mounted in the form of review
proceedings, the concern was that if any decision was sought to be

enforced, the person against whom it was sought to be enforced could
mount a collateral challenge in reaction to that attempt at

enforcement, which may succeed in preventing enforcement. Finally,
concern was expressed regarding damages claims which ‘…could

conceivably lie against the ANC or indeed Government at the instance
of interested third parties, consequent upon decisions having
been
taken by invalidly elected officials’, which it was said was
‘likely to cause chaos in local  and national
government
affairs.’
[153]
The Applicants’ approach to an outright order of invalidity was
accordingly categorised by the Respondents
as ‘irresponsible
and impracticable and that it would not be in the interest of justice
or lawful administrative action,
or in the public interest, to grant
the relief sought.’ The Respondents’ prayer accordingly
was that ‘…even
if the Applicants were otherwise to
establish an entitlement to the relief sought, it is respectfully
submitted that it ought not
to be granted.’
[154]
The issues in this application however have a narrow focus.  The
central issue is whether the PC was valid.
Inevitably that will
affect the issue whether the PEC should or should not be occupying
office in terms of the prescripts of the
ANC constitution.
[155]
However, the setting aside of a principal act does not inevitably
result in the invalidation of the subsequent
acts.
[94]
In
Democratic Alliance v
President of the Republic of South Africa and Others
the
Constitutional Court per Yacoob ADCJ held:
‘
However,
in these circumstances, we should make an order that the invalidity
of Mr Simelane’s appointment will not by itself
affect the
validity of any of the decisions taken by him while in office as
National Director. This will mean that all decisions
made by him
remain challengeable on any ground other than the circumstance that
his appointment was invalid.’
[95]
[156]
Generally however, an act contrary to a constitution is void, as held
in inter alia
Matlholwa v
Mahuma and Others.
[96]
[157]
I have given anxious consideration to whether any declaration of
invalidity of the PC should be suspended and
operate only
prospectively from the date of the grant of this judgment. I have
also given consideration to whether an order should
be granted akin
to that in
Democratic Alliance v President of the Republic of
South Africa
that the invalidity of the PC will not by itself
affect the validity of any of the decisions taken by or at that
conference.
[158]
The Respondents’ complaints are largely verbalised in general
conclusions of what might be a worst case
scenario. The Respondent’s
complaints about the knock on effect a declaration of invalidity may
have lack detail and might
be overstated as regards the origin,
complexity and the detrimental effect of the suggested ‘knock
on’ and ‘disentagling’
problems. Ultimately,
deployments and appointments of members are made by the ANC through
the NEC and other structures, not provincial
conferences. This court
must be guided only by specific evidence of such prejudice.
[159]
As in
Ramakatsa
this court should be disinclined to determine
how the ANC should regulate its internal processes, given the powers
in rules 11.3
and 12.2.4 of the ANC constitution providing for
continuity. Consequences will follow from the declaration of
invalidity which,
going forward, are best dealt with by the ANC
itself in regulating its internal processes.
COSTS
:
[160]
In
Ramakatsa
it was said:
‘
[127]
It is so that, ordinarily, a party that successfully vindicates a
constitutional right is awarded costs. That
is so particularly if the
respondent is a public body that bears an obligation to uphold the
Constitution. The present dispute
amounts to not much more than a
power struggle within provincial structures of the same political
party.  If these rifts are
to heal, in time, the parties will
have to talk to each other.  A costs order may make the healing
and reconciliation more
difficult for those concerned.  The
second relevant consideration is that this is a class action against,
in addition to the
ANC, several individual provincial and branch
office bearers.  A cost order against the personal estates of
one or more of
them may not be just and equitable.  We,
accordingly, make no order as to costs.’
[161]
The Applicants and Respondents respectively in support of their
contentions argued that should their contentions
be upheld that the
other side should be ordered to pay their costs, such costs to
include the costs consequent upon the employment
of two
counsel.
[97]
[162]
In my view there is much to commend applying the same principles as
faced the Constitutional Court in
Ramakatsa
.
Specifically in relation to the interpretation of rule 17.2.1 of the
ANC constitution, it involved a matter important to
both sides and
which was a novel issue open for debate. The formulation of the rule
in question is however the responsibility of
the Thirty-Eighth
Respondent which had it within its powers to make it clear what was
intended. The matter has however not only
involved the interpretation
of rule 17.2.1. The Applicants also sought to avoid the litigation,
albeit in respect of different
reasons to that on which they have now
succeeded, by seeking to engage the ANC leadership. No meaningful
reply was received. Indeed
they were largely ignored. Instead the
delays which followed from these attempts at reaching an amicable
resolution, were subsequently
invoked as constituting an unreasonable
delay in pursuing the application and as a bar to this application.
Not only did
the Respondents in opposition persist with those
defences, but in addition they also raised further procedural
difficulties relating
to locus standi and the like.
[163]
It seems to me in those circumstances that the Applicants have raised
issues and enjoyed a measure of success
which would entitle them
being indemnified, at least partially, in respect of a portion of
their costs by the Thirty-Eighth Respondent.
Having regard to
all these circumstances I consider it appropriate that the
Thirty-Eighth Respondent be directed to pay one half
of the
Applicants’ costs of the application.
THE
ORDER
:
[164]
The following order is granted:
1. The Eighth KwaZulu-Natal Provincial
Elective Conference of the African National Congress held at
Pietermaritzburg from 6 to 8
November 2015 and decisions taken at
that conference are declared unlawful and void.
2. The Thirty-Eighth Respondent is
directed to pay one half of the Applicants’ costs of the
application, such costs to include
the costs of two counsel.
________________________________
KOEN
J
I
agree
_________________________________
BALTON
J
I
agree
_________________________________
CHETTY
J
Appearances
For
the Applicant: TG MADONSELA SC with T NGCUKAITOBI, V SIBEKO and E
RICHARDS
Instructed
by: Ngwenya & Zwane
C/o
Yashica Chetty Attorneys
Tel.:
033 394 9818
For
the Respondent: G D HARPUR SC with K THANGO
Instructed
by: Berkowitz Cohen Wartski
C/o
J Leslie Smith and Company Inc.
Ref.:
Anusha Ganas/ Prisha Naidoo
[1]
Initially there were five Applicants but the Third Applicant
subsequently withdrew from the application and the judgment
accordingly
only deals with the remaining four applicants.
[2]
Paragraph
(a) of the Notice of Motion.
[3]
The
reference is an error as the ANC is the Thirty-Eighth Respondent.
[4]
Paragraph
(b) of the Notice of Motion.
[5]
Paragraph
(c) of the Notice of Motion.
[6]
2013 (2) BCLR 202
(CC) ([2012] ZACC 31).
[7]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634G-653C. See also
Ramakatsa
para 94.
[8]
This was
put up as annexure ‘LD5’ to the founding affidavit.
[9]
Annexure ‘SZ5’.
[10]
Branch
General Meetings.
[11]
Annexure ‘LD6’.
[12]
In terms of the
Plascon-Evans
rule, the Respondents version therefore prevails.
[13]
The version
relied upon by the Applicants provided that ‘each Provincial
Secretary is expected to sign off on the confirmed
audit report for
their respective provinces’.
[14]
Para 77.
[15]
Annexure ‘SZ6’ to the answering affidavit. Although it
refers to the provincial conference of ‘2 November 2015’,

it is common cause that although that document might have been
compiled on that day it was intended in respect of the PC to take

place from 6 to 8 November 2015.
[16]
The First Respondent.
[17]
The Applicants maintained 306 aggrieved branches whereas the
Respondents contend that complaints had been received from only
29
branches.
[18]
The
Applicants say late May 2016 but more correctly it seems to be late
April 2016.
[19]
Act 3 of
2000.
[20]
Which elects a BEC.
[21]
It is not necessary to first have a regional conference before a
provincial conference is held.
[22]
Which
contains the
Bill of
Rights.
[23]
Cited as provided in
s 1(1)
of the
Citation of Constitutional Laws
Act 5 of 2005
.
[24]
The importance of
this section was also amply demonstrated in
Ramakatsa
para 65.
[25]
See generally
Ramakatsa
paras 66-72.
[26]
Para
73.
[27]
See generally
also
Ramakatsa
paras
74 and 75.
[28]
Ramakatsa
para 80.
[29]
2014 (2) SA
494
(SCA) ([2013] ZASCA 176).
[30]
See also
Ekurhuleni
Metropolitan Municipality v Germiston Municipal Retirement Fund
2010
(2) SA 498
(SCA) (
[
2009]
ZASCA 154)
paras 12-14;
North
East Finance (Pty) Ltd v Standard Bank of South Africa Ltd
2013 (5) SA 1
(SCA) ([2013] ZASCA 76) paras 24-25.
[31]
2016 (1) SA
518
(SCA) ([2015] ZASCA 111) para 28.
[32]
Ramakatsa
para 84.
[33]
Para 85.
[34]
Para 86.
[35]
It seems however on the request, at least informally, in practice
from the PEC.
[36]
See generally
Fouche
and Another v Mutual Fire and General Insurance Co Ltd
[1969]
2 All SA 471
(D) at 473.
[37]
That is on the application of the
Plascon-Evans
test.
[38]
Paras 8 and
9 of this judgment.
[39]
Para 10 of
this judgment.
[40]
Para 13 of
this judgment
.
[41]
Introduced
by the Applicants as annexure ‘LD5’ and referred to in
para 8 of this judgment
.
[42]
Para 9 of
this judgment
.
[43]
Annexure ‘SZ5’
to the answering affidavit requires: ‘The following primary
principles must be adhered to, to
avert the challenges.’
[44]
Annexure ‘LD21’, which the Applicants annexed in support
of the warm body verification.
[45]
Annexure ‘SZ15’
to the answering affidavit.
[46]
The Respondents applied for and were granted leave to file a fourth
set of affidavits. That affidavit explains how the Updated

Credentials report was displayed on a screen during the course of
the PC, as it was being updated. It furthermore confirms that
‘SZ15’
reflects the final product of that updating credential process.
[47]
Annexure ‘SZ10’ to the answering affidavit. In respect
of Ward 62 it was found that the BGM was properly constituted,
that
verification was pending and that a decision was pending as at
11/04/16.
final
[48]
At
p
age
1599.
[49]
At page 1081.
[50]
Gates v Gates
1939
AD 150.
[51]
National Director of Public
Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA)
(
[
2009]
ZASCA 1)
para 26.
[52]
The Applicants
had originally also pursued the application as a class action but
this was abandoned due to certain technical difficulties.
The only
issue remaining is whether the Applicants qua members in their
personal capacities have the required locus standi.
[53]
Tulip Diamonds FZE v
Minister for Justice and Constitutional Development
and Others
2013 (2) SACR 443
(CC) ([2013] ZACC 19) para 27;
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd and others
2013
(3) BCLR 251
(CC) ([2012] ZACC 28) para 41;
Coetzee
v Comitis
and
Others
2001
(1) SA 1254
(C)
para 17.5.
[54]
Para 74.
[55]
Para 80.
[56]
Kruger v
President of the Republic of South Africa and Others
[2008] ZACC 17
;
2009 (1) SA 417
(CC) ([2008] ZACC 17) paras 21-23.
[57]
With whom Mogoeng CJ and Yacoob J concurred except for paras 39-45.
[58]
Ramakatsa
para 46.
[59]
Para 130.
[60]
Para 133.3.
[61]
In
Ramakatsa
the issue of a time bar did not appear to arise. T
he
Free State Provincial conference declared unlawful was held from 21
to 24 June 2012 and the application relating thereto, having
been
dismissed by the Free State High Court because of procedural
defects, was heard by the Constitutional Court on 20 and 29
November
2012 and orders granted on 21 November 2012 and 14 December 2012
with reasons being delivered
on
18 December 2012.
The Court however
dealt with the application on the basis which the applicants chose
to formulate their cause of action, namely
contractual (based on the
ANC constitution) and constitutional (s 19 of the Constitution, to
which effect is given by the ANC
constitution).
[62]
Para 10.
[63]
2010 (1) SA 62
(SCA) ([2009] ZASCA 69).
[64]
2017 (2) SA 63
(SCA) ([2016] ZASCA 143).
[65]
Section 6(2)(a)(i) of PAJA.
[66]
Section 6(2)(b) of PAJA.
[67]
Section 6(2)(e)(i) of PAJA.
[68]
The
Respondents rely inter alia on
Van
Zyl v New National Party and Others
2003 (10) BCLR 1167
(C);
[2003] ZAWCHC 17
para 69 and Lisa Thornton
‘The Constitutional Right to Just Administrative Action - Are
Political Parties Bound?’
(1999) 15
SAJHR
351.
[69]
See above
note 64
paras 27 and
37-38.
[70]
Cachalia, Tshiqi and Van der Merwe JJA, Bosielo JA and Dlodlo AJA
dissenting.
[71]
Relying on
Municipal
Manager: Qaukeni Local Municipality and Another v FV General Trading
CC
2010 (1) SA 356
(SCA)
([2009] ZASCA 66).
[72]
Para 26.
[73]
Para 35.
[74]
2016 (1) SA 132
(CC) ([2015] ZACC 31) paras 113-114.
[75]
Rule 12.1 provides: ‘The National Executive Committee is the
highest organ of the ANC between National Conferences and
has the
authority to lead the organisation, subject to the provisions of
this Constitution.’
[76]
See above note 73.
[77]
2017 (4) SA 223
(CC) ([2017] ZACC 5) para 34 and footnote 26.
[78]
See above
note 68.
[79]
2010 (5) SA 574
(KZP) para 60.
[80]
2010 (5) SA 457
(SCA) ([2010] ZASCA 94) para 41.
[81]
As is the
ANC.
[82]
No such
practice was alleged in the founding affidavit. Instead the
Applicants referred to exhausting internal remedies by making

representations to the NEC and National officials. In answer it was
denied that there were internal remedies and the Respondents

persisted that the Applicants had delayed unreasonably before
launching the application. No internal remedies appear from the
ANC
constitution.
[83]
[2009] 3 All SA 238
(SCA) ([2009] ZASCA 29) para 11.
[84]
2010 (2) SA 415
(CC) ([2009] ZACC 32).
[85]
2011 (5) SA 61
(CC) ([2011] ZACC 19).
[86]
Para 60.
[87]
2006 (3) SA 1
(CC) ([2005] ZACC 18) para 36.
[88]
Ramakatsa
para
121.
[89]
Rule
12.2(d) quoted in
Ramakatsa
corresponds to what is rule 12.2.4 in the ANC constitution annexed
to the founding affidavit.
[90]
Rule 11.3
quoted in
Ramakatsa
referred to ‘
bodies’,
not ‘structures’. Nothing appears to turn on this change
in wording.
[91]
Rule 11.3
quoted in
Ramakatsa
referred to ‘
units’,
not ‘committees’. Nothing appears to turn on this change
of wording.
[92]
It does not
appear as though this was challenged, and probably correctly not so.
[93]
Section 6(2)(a) of PAJA specifically provides that a court has the
power to judicially review an administrative action if the

administrator who took it was not authorised to do so by the
empowering provision or acted under a delegation of power which
was
not authorised by the empowering provision.
[94]
See
Democratic Alliance v
President of the Republic of South Africa and Others
2013 (1) SA 248
(CC) ([2012] ZACC 24);
De
Kock NO and Others v Van Rooyen
[2006]
2 ALL SA 227
(SCA) ([2004] ZASCA 136).
[95]
Ibid
para
93.
[96]
See above
note 83
para 11.
[97]
Both sides
were agreed that whatever costs order was to follow, should include
the costs of two counsel in view of the complexity
and volume of the
matter. That concession is correctly made.