THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 003/2024

In the matter between:

LEBOGANG MEDUPE FIRST APPELLAN T
SELLO MOLEFE SECOND APPELLANT
ITUMELENG MOSWANE THIRD APPELLANT
and
AFRICAN NATIONAL CONGRESS FIRST RESPONDENT
NONO MALOYI SECOND RESPONDENT
LAZZY MOKGOSI THIRD RESPONDENT
LOUIS DIREMELO FOURTH RESPONDENT
VIOLA MOTSUMI FIFTH RESPONDENT
SELLO LEHARI SIXTH RESPONDENT
SUZAN DANTJIE SEVENTH RESPONDENT
MOTLALEPULA ROSHO EIGHTH RESPONDENT
WENDY NELSON NINTH RESPONDENT
KENETSWE MOSENOGI TENTH RESPONDENT
BETTY KEGAKILWE ELEVENTH RESPONDENT
TEBOGO MODISE TWELFTH RESPONDENT
SALIVA MOLAPISI THIRTEENTH RESPONDENT
STELLA MONDLA NA FOURTEENTH RESPONDENT

2

SIPHO DIAL FIFTEENTH RESPONDENT
MPHO KHUNOU SIXTEENTH RESPONDENT
GRACE MOIPOLAI SEVENTEENTH RESPONDENT
HENDRICK BOTHA EIGHTEENTH RESPONDENT
JOSTINA MKHIZE NINETEENTH RESPONDENT
ELIZABETH MOKUA TWENTIETH RESPONDENT
TEBOGO MOTASE TWENTY -FIRST RESPONDENT
NKOTSOE NKETU TWENTY -SECOND RESPONDENT
VICTORIA MAKHAULA TWENTY -THIRD RESPONDENT
NOMVULYISELO SOMPA TWENTY -FOURTH RESPONDENT
DESBO MOHONO TWENTY -FIFTH RESPONDENT
PERLITIA CHWENE TWENTY -SIXTH RESPONDENT
MARIA MONNANA TWENTY -SEVENTH RESPONDENT
NTHABISENG SHUPING TWENTY -EIGHTH RESPONDENT
LENAH MIGA TWENTY -NINTH RESPONDENT
MORUTSE MOLEFE THIRTIETH RESPONDENT
TUMELO MARUPONG THIRTY -FIRST RESPONDENT
GEORGE MANYIKE THIRTY -SECOND RESPONDENT
BOIPELO MAREKO THIRTY -THIRD RESPONDENT
GRACE MASILO THIRTY -FOURTH RESPONDENT
CEASER MOGATUSI THIRTY -FIFTH RESPONDENT
PRISCILLA WILLIAMS THIRTY -SIXTH RESPONDENT

Neutral citation: Medupe & Others v African National Congress & Others (003/2024)
[2025] ZASCA 22 (20 March 2025)
Coram: MEYER, MATOJANE, KGOELE a nd SMITH JJA and BLOEM AJA
Heard : 26 February 2025
Delivered : 20 March 2025
Summary: Administrative law – constitution of a voluntary association – interpretation
of rule 12.2.4 of the African National Congress constitution – the constitution the rules
and regulations issued in terms thereof , constitute an agreement between members and
3

the voluntary association – to be interpreted in accordance with principles applicable to
the construction of contracts – legal principles restated.


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______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from : North West Division of the High Court, Mahikeng (Djaje DJP , sitting as
court of first instance):

The appeal is dismissed with costs , including the costs of two counsel where so
employed.
______________________________________________________________________

JUDGMENT
______________________________________________________________________

Smith JA ( Meyer, Matojane, Kgoele JJA and Bloem AJA concurring):


Introduction
[1] This appeal concerns a dispute between the African National Congress ( the ANC)
and the appellants regarding the lawfulness of the North West ANC’s Provincial
Conference, which was held from 12 to 1 4 August 2022. The appellants contended that
the Interim Provincial Committee ( the IPC) impermissibly convened the conference after
its term of office had expired and that the ANC ’s National Executive Committee ( the NEC)
violated the ANC constitution by assuming control of the conference, thereby usurping
the powers and functions of the Provincial Executive Committee ( the PEC). The
interpretation of the ANC ’s constitution is central to the resolution of that dispute.

[2] The appellants are members of the ANC, North West Province. The ANC is the
first respondent . The second to thirty -sixth respondents were elected as members of the
PEC (the second to sixth respondents as office bearers) at the impugned Provincial
Conference.

[3] On 25 August 2022 , the appellants brought an urgent application in the North West
Division of the High Court, Mahikeng (the high court), for an order, inter alia : declaring
5

unlawful the Provincial Conference and the ANC’s decision ‘to usurp’ the powers and
functions of the PEC at the Provincial Conference ; and compelling the ANC to appoint an
IPC in the place of the disbanded PEC .

[4] The appellants contended that the term of office of the IPC, which was appointed
by the NEC of the ANC in August 2019 following the dissolution of the PEC, expired in
April 2020 by virtue of rule 12.2.4 of the ANC’s constitution. That rule provides, inter alia ,
that ‘[t]he election of a PEC, which has been dissolved, shall be called within 9 (nine
months) from date of dissolution ’. The appellants asserted that, reasonably interpreted,
the rule has the effect that the IPC’s term of office automatically t erminated upon the
expiry of the nine -month period .

[5] In respect of the alleged usurpation by the NEC of the powers and functions of the
PEC, the appellants contended that the ANC constitution does not authorise the NEC to
convene or interfere in the holding of a Provincial Conference. The Provincial Conference
was therefore convened and conducted unlawfully and in violation of the ANC’
constitution, so they contended.

[6] In its judgment delivered on 23 May 2023, the high court (per Djaje DJP) found
that: the nine -month period could not be adhered to because of the national lock -down ,
pursuant to the declaration of a national state of disaster in terms of the Disaster
Management Act 57 of 2002; the law did not allow a lacuna to exist in the provincial
leadership structures for reasons expounded in Pilane and Another v Pheto and Others
(Pilane );1 the NEC had extended the IPC’s tenure on various occasions; and the NEC, as
the ‘highest organ of the ANC had to take all steps necessary to ensure the fulfilment of
the ANC’s objectives.’ The high court consequently dismissed the application with costs,
including the costs of two counsel, where so employed. The appellants appeal against
that order with the leave of this Court.



1 Pilane and Another v Pheto and Others (582/2011) [2011] ZANWHC 63 (30 September 2011) para 18 .
6

Factual background
[7] The following material facts are common cause. Following a decision by the NEC
in August 2018 to dissolve the PEC for the North West Province, a Provincial Task Team
was appointed on 20 September 2018. The disbanded PEC thereafter launched
proceedings in t he Gauteng Division of the High Court, Johannesburg, challenging the
NEC’s decisions to dissolve it and to appoint the Provincial Task Team. The high court
found in their favour and on 5 February 2019, granted an order declaring unlawful and
setting aside the NEC’s decisions.

[8] After protracted internal appeal processes, the NEC eventually appointed the IPC
in August 2019. As stated earlier, the appellants contend that the tenure of the IPC
terminated on 29 April 2022, after the expiry of the nine -month period mentioned in rule
12.2.4. Th e rule reads as follows :
‘12.2 Without prejudice to the generality of its powers, the NEC shall:
. . .
12.2.4 Ensure that the Provincial, Regional and Branch structures of the ANC and the Leagues
function democratically and effectively. (The NEC may suspend or dissolve a PEC where
necessary.) The suspension of a PEC shall not exceed a period of 3 (three) mo nths. The election
of a PEC, which has been dissolved, shall be called within 9 (nine months ) from date of
dissolution. The NEC must appoint an interim structure during the period of suspension or the
dissolution of the PEC to fulfil the functions of the P EC.’

[9] The ANC asserted that it was impossible for the IPC to call a Provincial Conference
before the expiration of the nine months period because of the declaration of a national
state of disaster in March 2020 , following the outbreak of the Covid -19 pandemic. The
NEC considered the Covid -19 pandemic as force majeure and, consequently , indefinitely
postponed all provincial and regional conferences as well as bi -annual branch meetings.

[10] Instead of dissolving the IPC, the NEC adopted various resolutions during the
period July 2020 to May 2022, purporting to extend the mandate of the IPC. Between
31 July 2020 and 2 August 2020, the NEC resolved to ratify a recommendation from the
ANC’s Secretary -General to extend the mandate of the IPC for a further three months. It
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also resolved that the IPC’s mandate should be extended indefinitely in line with the
decision of the previous NEC.

[11] In February 2022, the ANC’s National Working Committee ( the NWC) resolved to
extend until 31 May 2022 , the period within which the Provincial Conference was to be
held. That resolution was endorsed by the NEC in March 2022.

[12] On 16 May 2022, national officials recommended to the NWC that the period within
which the election of the PEC must be held should be extended to August 2022, subject
to the submission of monthly progress reports. The NEC, on 4 July 2022, noted this report
and ‘supported’ the proposal for the extension.

[13] The IPC thereafter issued a notice calling a Provincial Conference to be held from
12 to 14 August 2022. On 13 August 2022, the appellants, being of the view that the IPC’s
term of office had terminated upon the expiry of the nine -month period and that they
therefore did not have authority to conduct elections, launched urgent proceedings in the
high court challenging the entitlement of the IPC to exercise voting rights at the Provincial
Conference. The high court (per Snyman J) gra nted an order declaring that ‘the first
respondent [the IPC did ] not have voting powers in the ANC Provincial Confer ence’ .

[14] The ANC resolved not to appeal against that judgment and instead of appointing
another IPC, the Secretary -General at the time , Mr Paul Mashatile (Mr Mashatile) , issued
a statement to the effect that the Provincial Conference would proceed under the direction
and leadership of NEC deployees. It is common cause that the Provincial Conference
was postponed for two weeks , whereafter it proceeded as planned and elections were
held where a new PEC was elected. As mentioned, the appellants then launched the
application (which is the subject of this appeal) challenging the validity of those elections
and the resolutions adopted at the impugned Provincial Conference.



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Legal principles
[15] The appeal raises two issues:
(a) whether the IPC had authority to call the Provincial Conference when it did. Implicit
in this issue is the proper construction of rule 12.2.4 of the ANC constitution; and
(b) whether the NEC was empowered by the ANC constitution to take control of the
elections at the Provincial Conference. This issue also implicates various rules of the ANC
constitution.

[16] Since both these issues involve the interpretation of the ANC constitution, it is
prudent, at this point, to give an overview of our law regarding the construction of the
constitutions of voluntary associations .

[17] It is established law that the constitution of a voluntary association, together with
all the regulations or guidelines promulgated in terms thereof, constitute the agreement
between the association’s members.2 The constitution must , therefore , be interpreted in
accordance with the canons of interpretation applicable to contracts.3

[18] In Ramakatsa and Others v Magashule and Others ,4 the Constitutional Court, in
interpreting certain rules in the ANC’s constitution, held that while political parties may not
adopt constitutions which are inconsistent with s 19 of the Constitution,5 that section ‘ 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

2 Turner v Jockey Club of South Africa 1974 (3) SA 633 (A) at 645C ; Natal Rugby Union v Gould 1999 (1)
SA 432 (SCA) ; [1998] 4 All SA 258 (A) at 440F -G.
3 National African Federated Chamber of Commerce and Industry and Others v Mkhize and Others [2014]
ZASCA 177 ; [2015] 1 All SA 393 (SCA) para 21.
4 Ramakatsa and Others v Magashule and Others [2012] ZACC 31; 2013 (2) BCLR 202 (CC).
5 Section 19 of the Constitution reads as follows:
‘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; and (c) to campaign for a political
party or cause.’
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activities. The constitutions of political parties are the instruments which facilitate and
regulate participation by members in the activities of a political party.’6

[19] While recognising the important role of political parties in the country’s democratic
processes, the Constitutional Court nevertheless emphasised that, ‘ [t]he ANC’s
constitution together with the audit guidelines and any other rules collectively constitute
the terms of the agreement entered into by its members. Thus, the relationship between
the party and its members is contractual. It is taken to be a uni que contract.’7

[20] The relevant rules of the ANC constitution must , therefore , be construed based on
the principles enunciated in Natal Joint Municipal Pension Fund v Endumeni Municipality
(Endumeni).8 They must thus be given meaning and business -like efficacy by having
regard 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 m aterial known to those responsible for its production’.9 The starting point being the
language used, ‘read in context and having regard to the purpose of the provision and
the background to the preparation and production of the document’.10

Interpretation of rule 12.2. 4
The appellants’ contentions
[21] As mentioned, the appellants contended that the peremptory injunction in rule
12.2. 4 for the election of a dissolved PEC to be called within nine months from the date
of dissolution, means that upon expiry of that period, being 29 April 2022, the IPC’s term
of office had lapsed automatically. For this submission they, inter alia , relied on the
ex tempore judgment of Snyman J , in which she held that ‘the word shall impl ies that
there is no discretion that could be exercised and that the provisions, as applied in the
constitution should be followed’ .

6 Ibid para 7 3.
7 Ibid para 79.
8 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA);
2012 (4) SA 593 (SCA) para 18.
9 Ibid.
10 Ibid.
10

[22] They also criticised the high court for its reliance on Pilane for the finding that there
can never be ‘a lacuna where the term of office of a council has expired, to avoid lack of
good governance’ . They contended that the judgment is distinguishable in various
respects.

[23] Regarding the various resolutions adopted by the NEC, purporting to extend the
IPC’s term of office, the appellants submitted that:
(a) the first resolution, adopted in March 2022, purported to extend the IPC’s term of
office until 31 May 2022. The IPC did, however, not call the Provincial Conference by the
end of May 2022. Its term of office would therefore, in any event, have expired
automatically on 1 April 2022; and
(b) the resolution adopted during July 2022 did not purport to extend the IPC’s term of
office but only ‘the period within which the election of the North West PEC must be held’ .
There was , therefore , in effect , no valid resolution of the NEC extending the IPC’s term of
office to the end of August 2022. Consequently, when the IPC gave the notice of the
Provincial Conference to be held in August 2022, its term of office had already expired ,
and the notice was thus invalid and of no force or effect.

The respondents’ contentions
[24] The respondents contended that on a correct interpretation of rule 12.2.4, the IPC
remained in office and retained their authority despite the expiration of the nine months
within which elections for a new PEC should have been held. For this submission, th ey
relied on the principle enunciated in Ex Parte United Party Club ,11 that even in the face of
an obligation in the constitution of a voluntary association requiring office bearers to retire,
it does not necessarily mean that if they do not retire, they are no longer in office and lose
their authority.

[25] They submitted that it is significant that while the rule specifies a mandatory
obligation for the IPC to call the elections within nine months, it does not stipulate what
the consequence of an overshoot would be. The consequences contended for by the

11 Ex Parte United Party Club 1930 WLD 277.
11

appellants are absurd and impractical . They would leave the provincial structure
rudderless and would undermine good governance. Since the consequence of a failure
to call the elections within nine months is nowhere specified in the rule, it is a matter for
interpretation based on the above -mentioned canons of construction, so they argued.

The NEC’s role at the Provincial Conference
The appellants’ contentions
[26] The appellants condemned the NEC’s decision to take over the conduct of the
elections Provincial Conference in the strongest terms, calling it variously a ‘hostile
takeover’ and ‘usurpation’ of the PEC’s constitutional powers. This argument was founded
on the provisions of rule 17.1 of the ANC constitution, which reads as follows:
‘17.1 Subject to the decisions of the National Conference and National General Council, and the
overall guidance of the NEC, the Provincial Conference shall be the highest organ of the ANC in
each province.’

[27] The appellants contended that it is clear from the language used in this rule that
the PEC is ‘the rightful structure authorized to constitute and run the affairs of a Provincial
Conference ’. Furthermore, the ANC constitution, in particular rules 17.2.2.5 to 17.2.2.8,
unequivocally confer on the Provincial Conference the power, inter alia , to appoint the
preparatory committee which must circulate Conference material in advance; determine
the procedure for the election of delegates; determine its own procedures in accordance
with democratic principles and practices ; vote on key questions by secret ballot if
demanded by a least two-thirds of the delegates; and vote for the election of the PEC by
secret ballot.

[28] At best for the NEC, it is empowered in terms of rule 10.7 of the guidelines issued
in terms of the ANC constitution to ‘deploy NEC members to support and observe
Regional and Provincial Conferences ’. However, the role of these NEC deployees is
limited to support and observer status only.

12

[29] The decision of Mr Mashatile or the NEC to take over the powers and functions of
the PEC at the Provincial Conference , under the direction and leadership of the NEC
deployees , was therefore not sanctioned by the ANC constitution and is accordingly
unlawful. Although the ANC is a voluntary association, courts have recognised that the
exercise of internal power by political parties may have far -reaching consequences for
our const itutional democracy.12 Insofar as the conduct of the NEC is found to conflict with
the Constitution, this Court is obliged to set it aside in terms of s 172(1) (a) of the
Constitution. That section provides that ‘when deciding a matter within its power, a court
must declare that any law or conduct that is inconsistent with the Constitution is invalid to
the extent of its inconsistency .’ The consequences of the NEC’s unlawful conduct, namely
the election of a PEC and other officials and committees, are also accordingly invalid, of
no force or effect, and fall to be set aside.

The respondents’ contentions
[30] The respondents joined issue with this interpretation of the ANC constitution and
submitted that rule 12.2 places an obligation on the NEC to ensure the democratic
functioning of the provincial structures. That rule must be read with rule 12.2.20 which
empowers the NEC to, ‘[t]ake all steps necessary or warranted for the due fulfi llment of
the aims and objectives of the ANC and the due performance of its duties ’.

[31] They argued that the NEC, having been confronted with Strydom J’s order
declaring that the IPC did not have power to exercise voting rights at the conference, was
obligated – in the exercise of its constitutional mandate – to take whatever steps may be
necessary to facilitate the holding of the elections. They submitted that the appellants’
stance that the NEC should have appointed another IPC to hold the elections is illogical.
Another IPC would not have been an elected structure . There is accordingly no d ifference
between the NEC holding the election s and it appointing another IPC for that purpose.
On a common sense and purposive interpretation of the ANC constitution , there can be

12 Ramakatsa and Others v Magashule and Others [2012] ZACC 31; 2013 (2) BCLR 202 (CC) ; My Vote
Counts NPC v Speaker of the National Assembly and Ohers [2015] ZACC 31; 2016 (1) SA 132 (CC) ; 2015
(12) BCLR 1407 (CC) para 32.
13

little doubt that the NEC was obligated to intervene to ensure that the Provincial
Conference took place, so the respondents argued.

Analysis and discussion
[32] Counsel for the ANC compellingly submitted that on a reasonable consideration of
the language used in rule 12.2.4, an IPC’s term of office is linked to ‘the period of the
suspension or the dissolution of the PEC’ and not to the nine -month period in which
elections for the new PEC must be called. On this interpretation , an IPC’s term of office
would not terminate upon the expiry of the nine -month period but would endure until the
election of a new PEC. It seems , to me , that this must logically be so since circumstances
beyond the control of either the IPC or the NEC may arise making it impossible to call
elections within t he nine -month period. The Covid -19 pandemic was such a circumstance.
It is common cause that the ANC was forced to postpone all conferences after the
outbreak of the Covid -19 pandemic which compelled the declaration of a national state of
disaster on 15 March 2020. This event was unprecedented in the history of humankind
and resulted in severe restrictions being placed on the movement of people, gatherings
and conduct of businesses , unless they were performing an essential service.

[33] In my view, rule 12.2.4 provides for such an unprecedented force majeure , by
imposing on the NEC the duty to appoint an interim structure ‘during the period of the
suspension or the dissolution of the PEC’. It is ineluctable that that period starts on the
day of the suspension or dissolution of the PEC and endures until the election of a new
PEC. On this construction , an IPC’s term of office would continue regardless of whether
it had been able to call for the election of a new PEC within nine months. This construction
also accords with the principle enunciated in Ex Parte United Party Club.13 Contrary to
the appellants’ contentions, that judgment is still good law and has been followed in
several cases.14


13 Ex parte United Party Club 1930 WLD 277 .
14 Padayichie v Pavadai N.O. and Another 1994 (1) SA 662 (W ) at 672F -G; Congress of the People and
Another v Shilowa and Others (6779/2011) [2013 ZAGPJHC 250 (18 October 2013) .
14

[34] There are other compelling reasons why this construction must be preferred above
that contended for by the appellants. On a plain reading of its text, rule 12.2.4 confers
powers and obligations on the NEC to ‘ [e]nsure that the [p]rovincial, [r]egional and
[b]ranch structures of the ANC and the [l]eagues function democratically and effectively’ .
There can consequently be little doubt that the overall context of the rule is the
preservation of good governance, prevention of chaos , and promotion of democracy in
the provincial structures.

[35] It would be incongruous to interpret the rule as meaning that an overshoot of the
nine-month period, even for good reason (such as the Covid -19 lock -down), w ould result
in the expiration of the interim structure’s term of office. That such an interpretation would
have serious consequences for good governance in the provinces is self -evident. In any
event , that construction is simply not consonant with either the text, context or purpose of
the rule.

[36] I therefore find that, on a reasonable interpretation of rule 12.2.4, the IPC was still
in office until 13 August 2022 (when Strydom J’s order was granted) and it was thus
constitutionally empowered to call the Provincial Conference. The issue as to whether the
various resolutions adopted by the NEC had the effect of extending the IPC’s term of
office is therefore rendered inconsequential, regardless of whether the NEC was of the
view that there was a need for those extensions.

[37] The finding that the IPC remained in office until Strydom J declared it ineligible to
exercise voting powers at the Provincial Conference , considerably weakens the
appellants’ argument that the NEC’s involvement in the Provincial Conference violated
the ANC constitution. The logical consequence of that finding is that the Provincial
Conference had been convened properly. Faced with Strydom J ’s order, the NEC was
constitutionally obligated – in the absence of either an appointed or elected provincial
structure – to take whatever steps may have been necessary to ensure that the elections
proceeded. In my view, it matters not that they elected to do so through their own
deployees , instead of appointing another IPC. This is so because in terms of rule 12.2.20 ,
15

the NEC has wide-ranging powers to ensure ‘the due fulfilment of the aims and objectives
of the ANC and the due performance of its duties’ .

[38] The purpose of this rule, which is often replicated in the constitutions of voluntary
associations, is to empower the highest structure of an association to intervene in its best
interest when the need arise s because of unforeseen events. In this case , those
unforeseen circumstances were the declaration of a national state of disaster and
Strydom J’s order. In deciding to proceed with the elections, the NEC was doing no more
than what the ANC constitution enjoined it to do. Apart from the assertions t hat the
conference had not been properly convened and that the NEC’s conduct amounted to ‘a
hostile takeover’ of the Provincial Conference, there is no suggestion that anything
untoward happened at the conference. The high court thus correctly found that t he NEC’s
actions did not violate the ANC’s constitution.

[39] The appeal must , therefore , fail. In my view, there is no reason why costs should
not follow the result.

Order
[40] In the result , I make the following order:
The appeal is dismissed with costs , including the costs of two counsel where so
employed.





________________
J E SMITH
JUDGE OF APPEAL

16

Appearances

For the appellants: A D Stein SC with A S L van Wyk
Instructed by Zisiwe Attorneys, Mahikeng
Webbers Attorneys , Bloemfontein

For the first respondent: L J Morison SC
Instructed by: Ntanga Nkuhlu Inc, Honeydew
Peyper & Botha Attorneys Inc., Bloemfontein

For the second and third respondents: W R Mokhare SC with N Ntingane
(Drafted heads of argument)
Instructed by: SM Vakalisa Attorneys, Midrand
Maduba Attorneys, Bloemfontein

For the fourth to sixth respondent s: A Sawma SC with M Saluk azana
S Pearl Ndaba Attorneys, Pretoria
Muller Gonsior Attorneys, Bloemfontein .