IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE NO.: 2026/068221
In the matter between:
LWAZI ROTYA Applicant
SINETHEMBA MPANDE Second Applicant
NOMPUMELELO MZOTHWA Third Applicant
and
PROVINCIAL EXECUTIVE COMMITTEE OF
THE AFRICAN NATIONAL CONGRESS First Respondent
AFRICAN NATIONAL CONGRESS Second Respondent
FIKILE APRIL MBALULA Third Respondent
LULAMA NGCUKAYITOBI Fourth Respondent
REASONS FOR THE ORDER
GRANTED ON 26 MARCH 2026
METU AJ
\.D/11
a
~ .t
~ .
• ,r
' ~ &.,~
::t. ( J/ SI_)\)
What is the relationship between democracy and playfulness? At a time when our
cultural democracies are facing an existential crisis, with electoral authoritarian rule
becoming far more normalised ( Carethers & Press 2022), can participatory, playful
and creative forms of citizen assemblies strengthen democratic resistance?1
INTRODUCTION AND BACKGROUND
[1] Given the circumstances, exigencies of time, the complexity of the case and
the importance of the legal principles involved, I reserved giving reasons for the
order I granted on 26 March 2026 (cur adv vult). Invariably, I now provide the
reasons.
[2] In providing reasons, I am mindful of the dicta in NDPP v Naidoo & Others,
where Mpati P et Tshiqi JA at paragraph 10 aptly stated2:
“Persistent requests for reasons for an order should not be a source of
irritation for a judge. This much was made clear by this court
in Pharmaceutical Society of South Africa (Pty) Ltd v Tshabalala -
Msimang NO; New Clicks South Africa (Pty) Ltd v Minister of Health 2005
(3) 238 (SCA) at 260G to 261H, where the following dictum appears:
‘One does sense that the Court below was irritated because the
applicants had the temerity to ask for a quick disposition of the
applications for leave. There are some who believe that requests for
“hurried justice” should not only be met with judicial displeasure and
castigation but the severest censure and that any demand for quick
rendition of reserved judgment s is tantamount to interference with the
1 Polonyi, R. “Democracy at play: making ‘theatre as politics’ (and not ‘political theatre’)”. 3 Sept 2025.
2 [2011] 2 All SA 410 (SCA).
independence of judicial office and disrespect for the Judge concerned.
They are seriously mistaken on both counts. First, parties are entitled
to enquire about the progress of their cases and, if they do not receiv e
an answer or if the answer is unsatisfactory, they are entitled to
complain. The judicial cloak is not an impregnable shield providing
immunity against criticism or reproach. Delays are frustrating and
disillusioning and create the impression that Judges are imperious.
Secondly, it is judicial delay rather than complaints about it that is a
threat to judicial independence because delays destroy the public
confidence in the judiciary. There rests an ethical duty on Judges to
give judgment or any ruling in a case promptly and without undue delay
and litigants are entitled to judgment as soon as reasonably possible’.
[3] The Applicants approached this Court on a fast lane seeking to bypass
standard court timeframes for immediate relief on the basis that the m atter cannot
wait for a turn on the ordinary roll. Hardly two (2) hours after delivering the order, a
notice of application for leave to appeal was delivered. I resist the temptation of
delving into the application for leave to appeal.
[4] The Applicants nailed their colours on the mast, as it were, by premising their
claim on three (3) grounds, namely that the Provincial Elective Conference of the
African National Congress (“ANC”) for the Eastern Cape Province3:
4.1 was unconstitutional in that it was in breach of Section 19 of the
Constitution of the Republic of South Africa, Act 108 of 1996 (“the
Constitution”);
3 CaseLines, Folder 001-3 at para 2.2.1 to 2.2.3.
4.2 was unlawful in that it was in breach of their contractual rights as
governed by the Constitution, rules; policies and directives of the ANC;
and
4.3 violated the ANC Constitution and the ANC’s guidelines for ANC
BGMs, BBGMs, Regional, Provincial and National conferences as
adopted by the National Executive Committee (“NEC”).[my underlining]
[5] Judicial officers are obliged to furnish adeq uate reasons to explain how and
why they arrived at certain decisions. Court proceedings are open to the public and
decisions are given in public; the conduct of judicial officers is open to scrutiny. This
allows the public to use their democrats to commen t or criticise the judgment of our
courts4.
[6] Principles of open justice, openness, transparency, responsiveness, and
accountability demand the furnishing of reasons for judgment or order, which serves
the important objective of demonstrating to interes ted parties that a judicial officer
applied his/her mind to the issue before him/her and, therefore, that the judgment is
not arbitrary. This is what is sought to be achieved in these reasons.
[7] The Fourth Respondent did not participate in these proceedi ngs. Whenever I
make a collective reference to Respondents, that would be in respect of the First,
Second and Third Respondents unless the context indicates otherwise.
ISSUES
[8] Is the matter sufficiently urgent to be hit and determined as such as
contemplated in Rule 6(12) of the Uniform Rules of Court (“URC”)?
4 |S v Mathebula 2012 (1) SACR 374 (SCA), S v Mokela 2012 (1) SACR 431 (SCA) at paras 11-13.
[9] Do the Applicants have the necessary locus standi to institute the application?
[10] Is the defence of issue estoppel available to the Respondents and, as such,
render the Applicants unsuited for the relief they seek?
[11] Are the Applicants suited to relief, inter alia, on an interim basis, an interdict of
the Provincial Elective Conference of the ANC for the Eastern Cape Province?
NATURE OF THE RELIEFS SOUGHT
[12] The reliefs sought by the Applicants can be lumped and grouped as:
12.1. declarators;
12.2. directives; and
12.3. the alternative prayer for an interim interdict.
[13] In toto, the Applicants prayed for ten (10) orders, with the eleventh (11th)
being an alternative relief. Fo r the sake of brevity, I will thematically deal with the
reliefs sought under the rubric of the above groups.
GROUNDS FOR RESISTING THE APPLICATION
[14] The First to the Third Respondents resisted the application on various
grounds, which can be summarised as follows:
14.1. the Applicants have substantial redress in due course;
14.2. the urgency was self-created;
14.3. the Applicants provided unreasonable timelines;
14.4. the application would, in any event, fail on the merits;
14.4.1. there was a genuine dispute of facts raised by the
Respondents, which created serious doubt on the
establishment of a prima facie right, inter alia:
14.4.1.1. the ANC’s Eastern Cape Province did not
hold the conference more than once in a
cycle period of four (4) years; and
14.4.1.2. the Respondents deny that the verification
report has inaccuracies;
14.4.1.3. the Respondents deny the analysis made
by the First Applicant with regard to the
branches listed;
14.4.1.4. the Applicants do not reside or did not
participate in the wards which are the
subject of the complaints;
14.4.2. the First Respondent took a decision that no structure
would be disbanded, which includes the BECs and when
they held the BBGMs; and
14.5. the issue raised in this application had b een decided before, therefore
the defence of issue estoppel was available to the Respondents.
APPLICABLE LEGAL FRAMEWORK
DISCRETIONARY POWERS OF THE COURT
[15] Did the Applicants abuse Rule 6 (12)? This is a pertinent question this Court
must consider. Coetzee J famously remarked, as the very first sentence of his
judgment in Luna Meubel Vervaardigers (Edms) Bpk V Makin And Another (T/A
Makin’s Furniture Manufacturers)5 that:
“Undoubtedly, the most abused Rule in this Division is Rule 6 (12)”.
[16] It is pivotal that our courts be alive to the fact that not all matters can be heard
in the ordinary course, as the prejudice, damage, and suffering of the parties may
warrant immediate attention.
[17] I am therefore called upon to determine whether this matter warrants jumping
the queue for immediate attention.
TEST FOR URGENCY
[18] The test for urgency was eloquently formulated in East Rock Trading (PTY)
Ltd, and An other v Eagle Valley Granite and Another’s 6, where Justice Notshe AJ
held that:
5 [1977] 2 All SA 156 (W).
6 (11/33767) [2011] ZAGPJH 196 at para 6.
“The import thereof is that the procedure set out in Rule 6(12) is not for taking.
An applicant has to set forth explicitly the circumstances which he avers
render the matter urgent. More importantly, the applicant must state the
reasons why he claims that he cannot be afforded substantial redress at a
hearing in due course”.
[19] Du Plessis J in ZA Online Store (Pty) Ltd T/A iStore v Tothill 7, quoted East
Rock Trading with approval, where the test for urgency was explained as follows:
“The notion of ‘substantial redress at a hearing in due course’, as
contemplated in Rule 6(12)(b), requires that the remedy be not merely
available, but also effective and meaningful in the circumstances. The
question of harm is not the pivotal question, but an absence o f substantial
redress in due course…”
[20] Du Plessis J laid down the steps in a test for urgency at paragraph 39 as
follows:
“The primary question the court must ask is whether the applicant can obtain
substantial redress in due course. If the answer is n o, the matter may be
enrolled on the urgent roll. Only once that threshold is crossed do secondary
considerations arise. These include whether the applicant unduly delayed
launching the application, whether the procedural timeframes were
unreasonably trunc ated, whether there was non -compliance with the court’s
practice directives, whether notice to affected parties was adequate, and
broader considerations of the administration of justice. While these factors are
relevant, they cannot displace the core requi rement under Rule 6(12)(b).
7 2026 (1) SA 627 (GJ).
Procedural imperfections should not bar urgent relief where warranted, unless
they show that the matter is not genuinely urgent or that the non -compliance
is so severe that it undermines the orderly administration of justice.”
[21] This is an objective test. The Applicants canvas and outline the grounds upon
which they seek an injunction of this Court on an urgent basis. In paragraphs 129 to
142 of the founding affidavit, the Applicants outline the basis upon which this matter
must be treated as one of urgency. I must add that grounds for urgency can be
gleaned beyond these paragraphs, as a closer reading of paragraphs 35 to 42 of the
founding affidavit shows. For the sake of brevity, I will not repeat here the contents
of the said paragraphs.
[22] Guidance on the ascending order of urgency is found in Luna Meubel
Vervaardigers. An applicant seeking urgent redress from the court must make out a
case for urgency in the founding papers. The degree of urgency will be considered
by th e court when deciding whether, and to what extent, it will condone non -
compliance with the ordinary rules of procedure. This is what I did.
[23] To illustrate the point on degrees of urgency, Il & B Marcow Caterers (Pty) Ltd
v Greatermans SA Ltd and Anothe r; Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd
and Another8 tells us:
“Should the matter be too urgent for affidavits to be prepared, the court can
condone non-compliance with rule 6 (12) in terms of its powers under rule 27.
Matters of extreme urgency can thus be brought before the court at any time,
day or night.”
8 [1981] 2 All SA 378 (C).
[24] The Respondents complain about what they refer to as ‘contrived truncated
timelines’. Axiomatically, this is the cornerstone of this application, wherein the
Applicants lament9:
“…various material irregularities which occurred during the pre -conference
period …relating to the auditing of branch membership, branches being
allowed inadequate time for remedying any errors found, insufficient time
being allowed for appeals…” [my underlining].
[25] Having looked at the circumstances under which the application is brought, I
am satisfied that the Applicants explicitly set out facts in support of why the matter
cannot wait to be heard in the normal motion court roll.
[26] I disagree with the Respondents, wherein at paragraph 10 of their short heads
of argument, it is suggested that the Applicants “waited until the last minute to defeat
the rights of opponents”. It cannot be said that the Applicants sat on their laurels,
having regard to the fact that they maintain a daily account of activities following the
trigger of the dispute10.
[27] In conjunction with whether the Applicants delayed in seeking this Court’s
injunction, I also considered whether they would not have substantial relief in due
course.
[28] The Respondents contended that the Applicants could have the process
reviewed and set aside if it is later found to be flawed. I am not persuaded that the
review would provide a substantial relief, given the nature of the complaints, which
are the substratum upon which the disputes relate.
9 CasLines, Folder 004-13 (FA at 25.2).
10 CaseLines, Folder 004-52 to 004-54 (FA at paras 135 to 141).
[29] In the premise, I am of the view that the matter deserves to be heard and
determined as one of urgency.
ISSUE ESTOPPEL
[30] The defence of issue estoppel, if successful, prevents a party in proceedings
from contradicting a finding of fact or law that has already been determined in earlier
proceedings between the same parties (or their privies) – provided that the
determination was central to the decision in those proceedings. It is a component of
res judicata. There must be a final judgment
[31] Issue estoppel also applies when, in a subsequent case, different relief based
on different causes of action is sought if it invo lves the determination of the same
issue of fact or law. The dictum in Ekurhuleni11, where it was held as follows: -
‘…the submission that res judicata does not apply because of the lack of
sameness in the cause of action is misconceived. Sameness is determined by
the identity of the question previously set in motion’
[32] I find that there is no central issue between this matter and the one that the
Respondents rely on, which was finally determined. This defence must fail.
LOCUS STANDI
[33] The Respondents contended that none of the Applicants alleged that they
were personally affected by the complaints, as raised in the founding papers.
Properly construed in terms of the accepted canons of construction, the
Respondents were putting in issue the Applicants’ locus standi in iudicio.
11 Nkabinde ADCJ (as she then was) in Ekurhuleni Metropolitan Municipality v Germiston Municipal
Retirement Fund 2017 (6) BCLR 750 (CC) at para 31.
[34] In Watt v Sea Plant Products Bpk 12, it was held that locus standi in iudicio is
an access mechanism cont rolled by the court itself. The general requirements for
locus standi are:
34.1 the plaintiff must have adequate interest in the subject matter of
litigation. This is usually described as adequate interest in the subject
matter of litigation;
34.2 the said interest must not be remote;
34.3 the interest must be actual, not abstract or academic; and
34.4 it must be a current interest and not a hypothetical one. (See: Four
Wheel Drive CC v Leshni Rattan NO [2018] ZACA 124 at para 7).
[35] Locus standi is described in LAWSA (The Law of South Africa) LexisNexis JA
Faris et al., Durban 2022, as follows:
“He who has a right to sue in an action is said to have a locus standi in such
action, and vice versa. “Everyone has a right to be heard in his own cause,
and no one, save a qualified practitioner, has a right to be heard in the cause
of another” (per SEARLE, JP in Rescue Committee, DRC v Martheze 1926
CPD 300). The test is, “has the person appearing a direct personal interest in
the suit”. In that case, it may be considered as ‘his cause’” (ibid).”
[36] In Amler’s Precedents of Pleadings. LexisNexis. LTC Harms et al. 2018 on
page 248, the following is said:
12 [1998] 4 All SA 109 (C) at 113H.
“The question of locus standi is in a sense procedural, but it is also a matter
of substance. It concerns the sufficiency and directness of a person’s interest
in the litigation to be accepted as a litigating party. It is also related to the
capacity of a person to conclude a jural act. Sufficiency of interest depends on
the facts of each case and there are no fixed rules.”
[37] In Jacobs v Waks 1992 (1) SA 521 (A) at page 534D; Gross v Pentz [1996] 4
All SA 63 (A), 1996 (4) SA 617 (A). The general rule is that it is for the party
instituting proceedings to allege and prove its locus standi, and the onus of
establishing it rests on that party. It must accordingly appear ex facie the founding
papers that the parties have the necessary legal standing (locus standi in iudicio).
[38] In this instance, I find that the Applicants have the necessary legal standing to
institute this application.
NON-COMPLIANCE WITH SECTION 17.2.1 OF THE ANC CONSTITUTION
[39] The ANC Constitution in Section 17.2.1 provides:
“17.2 The Provincial Conference shall:
17.2.1 Be held at least once every 4 (four) years and more often if
requested by at least one third of all Branches in good
standing in the Province.”
[40] The Applicants took issue with the impugned Provi ncial Elective Conference
being held two (2) months earlier than the last conference. According to the
Applicants, this flouted ANC’s very own constitution.
[41] Respondents disputed that the Provincial Elective Conference would be held
more than once in a period of four (4) years.
[42] The arguments by the parties turned into the interpretation of paragraph 59 in
the matter of Dube & Others v Zikalala & Others, wherein Koen J stated13:
“[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 confe rence 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 mor e 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 require d…”[my
underlining]
[43] It suffices to mention that the judgment in Dube is not binding on this Court,
but has a persuasive effect.
REQUIREMENTS FOR AN INTERIM INTERDICT
[44] This Court is enjoined to determine whether or not the Applicants are entitled
to an interim interdict. To secure such a relief, the Applicants must show and satisfy
this Court that they have established:
44.1 at least a prima facie right, even if it is open to some doubt;
13 [2017] 4 All SA 365 (KZP).
44.2 a reasonable apprehension of irreparable and imminent harm to their
right if the interim interdict is not granted;
44.3 that the balance of convenience favours the granting of the interim
interdict; and
44.4 that they have no other satisfactory remedy.
[45] The basis for the prima facie right is that the First Applicant asserted that he is
a member of the ANC in Ward 24, Mcebisi Bata Branch; the Second Applicant is a
member of the BEC and the Branch Treasurer of Valithuba Tshwaku Branch and the
Third Applicant is a member of Ward 26, Ingquza Hill Sub -Region. As members of
the ANC, in terms of Clause 5.1 of the ANC Constitution, they have the right to:
Rule 5 RIGHTS AND DUTIES OF MEMBERS
5.1 Rights
5.1 A member shall be entitled to:
5.1.1 Take a full and active part in the discussion, formulation and
implementation of the policies of the ANC;
5.1.2 Receive and impart information on all aspects of ANC policy and
activities;
5.1.3 Offer constructive criticism of any member, official, policy programme
or activity of the ANC within its structures;
5.1.4 Take part in elections and be elected or appointed to any committee,
structure, commission or delegation of the ANC; and
5.1.5 Submit proposals or statements to the Branch, Province, Region or
NEC,
As such, I consider the Applicants to have established a prima facie right.
[46] Applicants nailed their colours on the ANC mast by relying on being members
of the ANC. According to the applicants, as members of the ANC, they have the
political right to participate in ANC leadership elections , a process that must be
conducted transparently, fairly, and democratically 14. This right is derived from
section 19 of the Constitution of South Africa. Therefore, they are asserting their
prima facie on this ground.
[47] Applicants contended that once t he elections are conducted, the newly
appointed incumbents will take leadership and steer the organisation in a direction
not mandated by members of good standing. According to the Applicants, even if the
unlawfulness is reviewed and set aside, they will n ot get substantial relief in due
course.
[48] Applicants further contended that the balance of convenience favoured the
granting of a relief interdicting the continuation of the Provincial Elective Conference
for the Eastern Cape.
[49] Finally, the Applicants would not have any other satisfactory remedy.
[50] With regard to the issue that there are dispute of facts, the starting point is the
rule in Plascon-Evans, where the following was said15:
‘[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
14 CaseLines, Folder 004-11 (FA at para 18).
15 Plascon-Evans (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 620.
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 t aken
to be an admission of those allegations…”
[51] This Court finds that there is no genuine dispute of facts raised by the
Respondents.
COST ORDER
[52] It is trite that costs remain within the Court’s purview and discretion. Whilst it
is common for cost s for interim orders to be reserved for later determination when
the final order is made, this is not cast in stone, and there is no hard -and-fast rule to
that effect.
[53] I had the benefit of deciphering from the papers and hearing arguments from
all the parties, which enabled me not only to assess the complexity of the matter but
also to appreciate the long, odd hours at which Counsel had to work, during which
they had to deal with forensically challenging material. In the circumstances, to defer
the determination of costs to another Court would fly in the face of tenets of justice,
as I am better poised to make the determination of an appropriate cost order.
[54] This was not a run -of-the-mill kind of case. It was also a matter of public
interest. In determining costs, I had regard to the decision in Mashava v Enaex Africa
(Pty) Ltd and Others16, where the court clarified that the amendments to Rule 67A of
the URC.
[55] The fundamental principle pertaining to costs was enunciated in Ferreira vs
Levin N.O and Others, is still applicable, where it was held17:
“The Supreme Court has, over the years, developed a flexible approach to
costs which proceeds from two basic principles, the first being that the award
of costs, unless expressly otherwise enacted, is in the discretion of the
presiding judicial officer, and the second that the successful party should, as a
general rule, have his or her costs…”
[56] I exercised my judicial discretion to make the cost order against the First,
Second and Third Respondents. I did so because, with respect to the issues raised
by the Applicants, they attained some measure of success, which entitles them to
indemnification.
DISCUSSION
[57] It is common cause that the Fourth Respondent did not enter the fray,
inasmuch as he is the author of a letter dated 19 March 2026, under the caption
“membership systems failure, manipulation and inconsistent application of
guidelines” addressed to the NEC. The Convener of ANC NEC Deployees was also
copied to this letter, which was annexed to the papers as “LR 6”.
[58] It comes as no surprise that the Fourth Respondent neither entered the fray
nor deposed to the answering affidavit in respect of the First Respondent, having
16 2025 (1) SA 466 (GJ).
17 Ferreira v Levin NO & Ors; Vryehoek & Ors v Powell NO & Ors 1996 (2) SA 621 (CC) at para 3.
regard to the averments made at paragraph 3.3 of Fi rst Respondent’s answering
affidavit deposed to by Ms Helen Sauls -August, the Deputy Provincial Secretary of
the ANC in the Eastern Cape Province, wherein it stated18:
“It is evident from the founding affidavit of the Applicants that the Fourth
Respondent is conflicted in this matter, and therefore, he is not competent to
depose to the affidavit for and on behalf of the First Respondent in view of the
letter he penned to the National Officials of the Second Respondent attached
to the Applicants’ founding affidavit marked “LR 6” thereof.
[59] Only on 24 March 2026 did the Convener of ANC NEC Deployees, Ms
Mmamoloko Kubayi (“Ms Kubayi”), craft a report in response to the Fourth
Respondent’s letter, which in these papers is marked “LR 6”, wherein she writes19:
“Our view, as the deployees, is that the claim that the complaints he received
could place the credibility of the conference in jeopardy and attract
unnecessary litigation is without merit. We believe indeed that litigation as we
have seen across the coun try as possible, not because we have challenges
that warrants for such but because of individuals who are committed to
frustrating organisational process. PEC officials together with NEC Deployees
are currently investigating a video alleged to be by a PEC member comrade
Sabisa…”
[60] It is also common cause that the impugned Provincial Elective Conference of
the ANC in the Eastern Cape was to be held in East London. In terms of the
common law principle of rationae res gestae , the cause of action arose with the
jurisdiction of this Court.
18 CaseLines, Folder 043-6 (1st Resp’s AA at para 3.3).
19 CaseLines; Folder 048-10 (Annex “ANC 3”).
[61] In Gallo Africa Ltd v Sting Music (Pty) Ltd20, Harms DP had this to say:
‘Section 19(1)(a) of the Supreme Court Act provides that a high court has
jurisdiction:
“over all persons residing or being in and in relation to all causes arising…
within its area of jurisdiction and all other matters of which it may according to
law take cognizance.”
…Although effectiveness “lies at the root of jurisdiction” and is the rationale for
jurisdiction, “it is not necessarily the criterion for its existence”. What is further
required is a ratio jurisdictionis. The ratio in turn, may, for insta nce, be
domicile, contract, delict and, relevant for present purposes, ratione rei sitae.
It depends on the nature of the right or claim whether the one ground or the
other provides a ground for jurisdiction. Domicile on its own, for instance, may
not be enough.’
[62] It cannot be controverted that it is only after the “Final Verification Report” 21,
which was prefaced by a communiqué informing the PEC that the ANC Eastern
Cape had achieved its seventy per cent (70%)22, that triggered the dispute brought to
this Court on an urgent basis.
[63] Applicants also demonstrated that they will not get substantial relief in due
course23. There is credence to the notion that, once the impugned Provincial Elective
Conference of the ANC for the Eastern Cape Province tak es place, it would allow
delegates who were irregularly appointed to participate in the elections for the new
leadership of the ANC in the Eastern Cape, according to the Applicants. In that
20 [2011] 1 All SA 449 (SCA) at para 10.
21 CaseLines, Folder 009-2; Annexure “LR 5”.
22 CaseLines, Folder 008-1; Annexure “LR 4”.
23 CaseLines, Folder 004-54 to 004-55 (FA, para 142) read with Folder 004-14 (FA, para 28.3).
event, I am of the view that the Applicants would not get a substa ntial relief that is
also effective and meaningful in the circumstances. Coming to this conclusion, the
matter deserves to be enrolled in the urgent court. Consequently, the second leg of
the enquiry kicks in once the threshold is met.
[64] The Applicants provided a detailed account of daily events from 19 March
2026 to 23 March 2026 24, when the urgent application was launched. The event the
Applicants sought to prevent was scheduled to run from 26 March 2026 to 29 March
2026.
[65] The Applicants lodged a certificate of urgency on Monday, 23 March 2026,
which elicited a directive which I issued on the same day, putting the parties to terms
and setting the matter to be heard on 25 March 2026 at 11H30.
[66] At the hearing of this application, Mr Ca ssim conceded that the trigger for
urgency was the “Final Verification Report” issued by the Third Respondent on 18
March 2026. In the papers, a final ANC Eastern Cape summary report is appended
as “LR 5”25.
[67] The Third Respondent, on the same day of the “Final Verification Report,”
penned a communiqué in which it is stated26:
“Important factors to be noted and considered by the PEC when convening
the Provincial conference in line with the ANC Constitution and Guidelines to
conferences and adopted by the NEC:
24 CaseLines, Folder 004-51 to 004-54 (FA, paras 129 – 141).
25 CaseLines, Folder 009-2.
26 CaseLines, Folder 008-2.
67.1 The signed-off Final verification report may not be altered even after
corrections or verdicts from the dispute resolution process. An
Addendum will be created if and when necessary, following the
dispute resolution process.
67.2 All disputes related to the Provincial conference must be concluded
and finalised before the Conference can be convened.”
[68] As stated above 27, the Fourth Respondent wrote to the NEC of the ANC,
expressing the province's state of unreadiness. This did not elicit any respons e from
the Third Respondent save for the generation of at least two (2) addenda to the
“Final Verification Report” dated 19 March 2026 and 23 March 2026. As already
alluded to, a response came from the Convener of the NEC Deployees, Ms Kubayi,
on 24 March 2024, which is annexed to the papers as “ANC 3”.
[69] The Applicants sought raw data of the electronic system, which had not been
provided. Up until the lodgement of this application, the Respondents did not provide
the required raw data. However, the rea sons provided are that the Protection of
Personal Information Act, 4 of 2013 (“POPI Act”) prevent such disclosure of
information pertaining to the electronic membership system results for branch
attendances28. Later, the Second and Third Respondents take a different tack by
tendering to provide this information 29. The Applicants accepted this tender. In light
of this offer and acceptance, there is a valid contract between the parties, which I
cannot ignore.
27 CaseLines; Folder 010-2.
28 See 2nd and 3rd Respondents’ AA at paras 5; 82 to 86.
29 See 2nd and 3rd Respondents’ AA at para 87.
[70] With the foregoing, I deduce that there wer e, at the time of hearing this
application, still unresolved disputes regarding the verification of certain BGMs and
BBGMs. This is bolstered by an addendum to the “Final Verification Report”, dated
23 March 2026, appended to annexure “RA 1”. At items 5 to 7 of the said addendum,
it is recorded:
“5. Challenges
• The lack of BBGM Verification Report makes its difficult for the PEC
to know the exact number of Branches qualified. [sic]
6. Recommendations
• PSO and NEC deployees to urgently follow up on the BBGM
verification Report.
7. Conclusion
• The report is a true reflection of the work done after the PEC
meeting. The report is therefore tabled before the PEC for
consideration and ratification.”
[71] No evidence was led, nor were any submissions made that rebutted the
glaring evidence before me that the PEC cou ld not, with certainty, determine
branches that qualified to participate in the Provincial Elective Conference.
[72] Further, it was clear that the recommendations made at item 6 were not
followed, nor was there any explanation proffered for not carrying them.
[73] Finally, between the issuing of the addendum on 23 March 2026 and the
hearing of this application on 25 March 2026, the PEC did not sit to consider and
ratify the report.
[74] In the premise, it is inconceivable that the preparation for the Pro vincial
Elective Conference met the standard laid down in the ANC’s own governance
instruments, more particularly the “Conference Guidelines”.
[75] The Respondents, on their own ipse dixit, acknowledge the existence of
unresolved disputes.
FINDINGS
[76] Having regard to the conspectus of facts, paying close attention to when the
dispute arose and the steps taken by the Applicants when the dispute crystallised. In
the same breath, I considered whether the Applicants may have substantial relief in
due course. An inevitable conclusion was that the matter was sufficiently urgent to
warrant a hearing and determination.
[77] I am of the view that it would not be in the interests of justice to deny the
Applicants an opportunity to have the merits of their applic ation heard and ventilated
purely on technical grounds.
[78] I was also not persuaded that the defence of issue estoppel was available to
the Respondents, as the matter they referred to was not finally determined on the
merits. The matter in question con cerned a Regional Conference, not a Provincial
Conference. I do not fathom, therefore, that it could be between the same parties
and concern the same subject matter, albeit there may be some overlap regarding
certain BGMs and BBGMs.
[79] I also find that this defence of issue estoppel is diametrically connected to the
date on which it is now common cause that the dispute arose. This defence is
therefore not sustainable.
[80] The plethora of facts placed before me showed that the Applicants had a
prima faci e right, a reasonable apprehension of harm or injury, and no adequate
alternative remedy.
[81] I take guidance from the wisdom of Yacoob J, in Ramakatsa30, where in
paragraph 16, he postulated:
“I did not think that the Constitution could have contemplated that political
parties could act unlawfully. On a broad purposive construction, I would hold
that the right to participate in the activities of a political party confers on every
political part y the duty to act lawfully and in accordance with its own
constitution. This means that our constitution gives every member of every
political party the right to exact compliance with the constitution of a political
party by the leadership of that party…” [my underlining]
[82] Having regard to the stare decisis principle, I follow Ramakatsa, having
particular regard to what Moseneke DCJ postulated31:
“Following a careful consideration of the matter, we are satisfied that the
established facts sustain the f irst two grounds on which the appellants rely.
30 Ramakatsa & Others v Magashule & Others 2013 (2) BCLR 202 (CC).
31 Ibid at para 61.
This, in our view, entitles them to some remedy. Whether they should be
granted the relief sought, is a question that we consider later when we reach
the remedy aspect of the judgment. The finding we reach on the two grounds
renders consideration of the third ground unnecessary.”
[83] For edification purposes, the first two grounds on which the applicants in
Ramakatsa relied were:
83.1 That their rights flowing from the ANC’s constitution, read with its audit
guidelines, have been infringed. This was referred to as a contractual
claim arising from the appellants’ membership to the ANC.
83.2 Their constitutional right to participate in the activities of the ANC was
breached as a result of a number of irregulari ties that occurred before
the challenged conference was held.
[84] In this case, the Applicants, one way or the other, have mirrored the relief they
seek on the two (2) grounds approved in Ramatsa. This can be gleaned from
paragraphs 18 and 25 of the founding affidavit, where it is stated:
“[18] The ANC Constitution gives effect to section 19 of the Constitution. It is
also a binding contract between the applicants and the ANC…
[25] The applicants contend that the Conference has been called in breach
of the Constitution of South Africa and the ANC Constitution…”
[85] Having regard to the facts presented before me and the applicable law, I am
of the view that the Applicants have established entitlement to some remedy.
[86] It cannot be denied that we live i n a world that is increasingly difficult to
distinguish between facts and falsehoods. I could not, with a stroke of pen, grant the
declaratory relief the Applicants sought without getting more cogent proof.
[87] The rationale behind the order I granted was to allow the ANC to get its house
in order without imposing any timelines, so that they would be at liberty to ensure
compliance at their earliest opportunity.
[88] As in Ramakatsa, I was not inclined t o determine how the ANC should
regulate its internal processes, given the powers in Rules 11.3 and 12.2.4 of the
ANC constitution.
[89] The finding outlined above renders it unnecessary to consider whether the
impugned Provincial Elective Conference of the ANC in the Eastern Cape Province
would constitute more than one conference in a four (4) year cycle. I do not consider
it necessary to make a determination on this issue, as nothing turns on it.
[90] Having found that this matter attracted public interest, it followed that such
interest would best be served by adjudicating it promptly and making a determination
at the earliest possible time.
[91] For brevity, I will not repeat the order granted on 26 March 2026.
B METU
ACTING JUDGE OF THE HIGH COURT EASTERN CAPE DIVISION
These reasons were handed down electronically by circulation to the parties/their
legal representatives by e-mail and uploaded on CaseLines. The date of hand down
is deemed to be 14 April 2026.
APPEARANCES:
Counsel for the Applicants : Mr Mpofu SC, together with
Mr Salukazana and Ms Makangela
Instructed by : Makangela Mtungani Inc
Counsel for the 1st Respondent : Mr Bodlani SC together with
Ms Mashiya
Instructed by : Enzo Meyers Attorneys
Counsel for 2nd & 3rd Respondents : Mr Cassim SC together with
Mr Saloojee
Instructed by : Ntanga Nkuhlu Inc
Heard on : 25 March 2026
Order Delivered on : 26 March 2026
Reasons handed down: : 14 April 2026