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[2012] ZACC 31
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Ramakatsa and Others v Magashule and Others (CCT 109/12) [2012] ZACC 31; 2013 (2) BCLR 202 (CC) (18 December 2012)
Links to summary
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 109/12
[2012] ZACC 31
In the matter between:
MPHO
RAMAKATSA
...........................................................................
First
Appellant
TUMISO
MBETHE
............................................................................
Second
Appellant
MAJORO
MPURU
................................................................................
Third
Appellant
ELISHA
MBANGULA
........................................................................
Fourth
Appellant
CECILIA
CHAKA
..................................................................................
Fifth
Appellant
NTSHIWA
MOROLLOANE
.................................................................
Sixth
Appellant
and
ELIAS
MAGASHULE
.........................................................................
First
Respondent
THABO
MANYONI
........................................................................
Second
Respondent
WILLIAM
BULWANA
.....................................................................
Third
Respondent
MAMIKI
QABATHE
.......................................................................
Fourth
Respondent
MSEBENZI
ZWANE
..........................................................................
Fifth
Respondent
TATE
MAKGOE
................................................................................
Sixth
Respondent
BUTANA
KHOMPELA
.................................................................
Seventh
Respondent
OLLY
MLAMLELI
..........................................................................
Eighth
Respondent
SISI MABE
.........................................................................................
Ninth
Respondent
SAM
MASHINENE
...........................................................................
Tenth
Respondent
FEZI
NGUMBENTOMBI
.............................................................
Eleventh
Respondent
MALEWATLE
NTHEDI
................................................................
Twelfth
Respondent
SEBENZILE
NGANGELIZWE
.................................................
Thirteenth
Respondent
MANANA
TLAKE
....................................................................
Fourteenth
Respondent
SISI
NTOMBELA
.........................................................................
Fifteenth
Respondent
MANANA
SECHOARA
..............................................................
Sixteenth
Respondent
SARAH
MOLELEKI
...............................................................
Seventeenth
Respondent
MADALA
NTOMBELA
...........................................................
Eighteenth
Respondent
JACK
MATUTLE
......................................................................
Nineteenth
Respondent
MEGGIE
SOTYU
.......................................................................
Twentieth
Respondent
MATHABO
LEETO
...............................................................
Twenty-First
Respondent
JONAS
RAMOGOASE
.....................................................
Twenty-Second
Respondent
GERMAN
RAMATHEBANE
..............................................
Twenty-Third
Respondent
MAX
MOSHODI
................................................................
Twenty-Fourth
Respondent
MADIRO
MOGOPODI
.........................................................
Twenty-Fifth
Respondent
AFRICAN
NATIONAL CONGRESS
..................................
Twenty-Sixth
Respondent
Heard on : 20 November 2012 and 29 November 2012
Orders granted : 21 November 2012 and 14 December 2012
Reasons for judgment : 18 December 2012
REASONS FOR JUDGMENT
YACOOB J (Mogoeng CJ concurs in the judgment in its entirety;
Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Nkabinde J, Skweyiya
J
and Zondo J concur in the judgment except for [37]):
Introduction
This
case came before us as an urgent application for leave to appeal
directly to this Court against a judgment of the Free
State High
Court.
1
That court dismissed an application aimed at, amongst other things,
challenging the propriety of the Free State Provincial
Conference
of the African National Congress (ANC). The conference was held
during the period 21-24 June 2012. The High Court
did not consider
the merits of the application but dismissed the application on the
basis that the case was not properly before
it because of
procedural defects.
We
heard the urgent application on 20 November 2012 and, on
21 November 2012 made the following order:
2
“
1.
Leave
to appeal is granted.
2. The
merits of the substantive application before the Free State High
Court, Bloemfontein in case number 3453/2012 are set down
for
hearing on Thursday 29 November 2012 at 10h00 or so soon after 10h00
as the matter can be heard.
3. All the
respondents who would have opposed the application in substance in
the High Court are required to file their full opposing
affidavits,
if any, in this Court by Monday 26 November 2012.
4. The
applicants must file their replying affidavits, if any, by Tuesday
27 November 2012.
5. The
applicants and any of the respondents wishing to present oral
argument to the Court on Thursday 29 November 2012 must file
their
written argument by 12h00 on Wednesday 28 November 2012.
6. Written
reasons will be provided in due course.”
3
We heard
argument on the appeal on the scheduled date.
This
judgment therefore does two things: it provides reasons for the
order granting leave to appeal and expresses a view on
the appeal.
4
Consequent
upon the granting of leave to appeal, the applicants in the High
Court and in the application for leave to appeal
are now the
appellants. The respondents in the High Court and in the
application for leave to appeal are the respondents in
the appeal.
The
six appellants
5
are members of the African National Congress (ANC) in the Free
State province. The first two appellants are from ANC Branches
described as Wards 25 and 46 respectively, which are in the Motheo
Region of the Free State; the third appellant is from the
Branch
described as Ward 3 Branch in the Thabo Mofutsanyana region and
lives in Ladybrand; the fourth appellant is from the
Branch
described as Ward 30 in the Lejweleputswa region and lives in
Welkom; and the fifth and sixth applicants are both resident
in
Zastron and are members of the Branch described as Ward 1 of the
Xhariep region. All the applicants are from four of the
five
regions of the ANC in the Free State province and from five of its
316 Branches. There is no appellant before us from
the fifth region
of the Free State ANC, Fezile Dabi.
The
application is aimed essentially at setting aside as invalid the
Free State Provincial Conference of the ANC and all its
outcomes on
the basis that there were irregularities in many of the Branch
meetings that elected delegates to the Provincial
Conference.
Twenty
five of the twenty six respondents are the people who were elected
to constitute the Provincial Executive Committee (PEC)
of the ANC
in the Free State province. It is the validity of this conference
which is, amongst other things, challenged. The
first two
respondents are the provincial chairperson
6
and deputy chairperson
7
respectively; the third and fourth respondents are the provincial
secretary
8
and deputy provincial secretary;
9
the fifth respondent is the treasurer in the province;
10
and the sixth to twenty fifth respondents are the twenty additional
members of the PEC elected at the disputed Conference.
11
The
twenty-sixth respondent is the national formation of the ANC.
Before
dealing with the application for leave to appeal and the appeal,
however, the facts and the broad basis of the applicants’
claim must be set out. The applicants say that they bring this
claim in terms of section 38 of the Constitution
12
on the basis that their right to participate in the activities of a
political party
13
have been infringed. They claim to act in their own interest, and
also on behalf of and in the interests of the class of persons
who
are members of the ANC as well as in the public interest. They
attach (and this is not disputed for present purposes) documents
containing 2250 signatures of members of the ANC and 2520 voting
citizens of the Republic of South Africa, resident in the
Free
State.
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.
14
This judgment will concern itself mainly with the first ground,
namely, whether the contractual rights of the applicants as
members
of the ANC were breached. This will be done in the context of
whether complaints of the applicants amount to an infringement
of
the right to participate in the activities of a political party.
The
High Court
No
opposing affidavits were filed in the High Court. Instead, the
first twenty five respondents filed affidavits taking certain
technical objections.
The
High Court, in upholding each of the objections raised by the
respondents, held that—
a)
publication of the notice of motion in a newspaper without court
authorisation rendered the notice itself invalid;
15
b) it
was impermissible to require that people who wish to oppose the
application be given copies of the papers only if they
should
choose to oppose the application;
16
c) there
had not been proper service on the national formation of the ANC or
on the Free State PEC;
17
d) there
had been improper service on all the respondents except the first
respondent;
18
e) the
failure to cite each of the 316 Branch Executive Committees or, at
least, those Branch executive committees whose meetings
were
contended to have been irregular was fatal to the application;
19
f) each
of the delegates of the Branches whether elected regularly or
irregularly had a right to be joined in the proceedings;
20
g) the
action was premature because the decision by the ANC to approve the
proceedings at the conference of the PEC was taken
on
14 September 2012, about three and a half weeks after the
proceedings had been instituted in the High Court;
21
and
h) the
applicants had not exhausted their internal remedies.
22
Reasons
for the grant of leave to appeal
23
This
Court will grant leave to appeal if the appeal raises a
constitutional issue and if it is in the interests of justice to
do
so.
In
my view, the appeal did indeed raise a constitutional issue. As
already indicated the Constitution confers upon all citizens
the
right to participate in the activities of a political party. The
appellants contended in the application for leave to appeal
that
this right has been denied to them or has been infringed because
the irregularities that were complained of went so far
as to
prevent them from participating in the activities of the ANC
appropriately and properly. Their argument was that their
right to
participate in a political party included a right to be governed by
properly elected members of the ANC in the province.
The
system of proportional representation provided for in our
Constitution means that a political party is entitled to
representation
in Parliament in proportion to the number of votes
it obtains in an election relative to the total number of votes
cast. In
other words, of the 400 members of the National Assembly,
a political party that succeeds in securing the vote of, say, 60%
of the electorate will have 240 of 400 seats in the National
Assembly.
I do
not think that the Constitution could have contemplated political
parties could act unlawfully. On a broad purposive construction,
I
would hold that the right to participate in the activities of a
political party confers on every political party the duty
to act
lawfully and in accordance with its own constitution. This means
that our Constitution gives every member of every political
party
the right to exact compliance with the constitution of a political
party by the leadership of that party. The case does
raise a
constitutional matter.
I
have also come to the conclusion that it is in the interests of
justice to hear the appeal. The appellants make serious allegations
of irregularity and impropriety against a political party. The
allegations go to the core of the propriety of the election
in the
Free State province. If it turns out that the appellants are right
in their allegations, the political party in the
whole of the
province will be governed over the next four years by an
irregularly appointed provincial leadership. And the
size of the
political party is not necessarily decisive. Suffice it to say that
the political party we are concerned with here
cannot be said to be
insignificant. The importance of the requirement that members of
political parties should not be governed
by an irregularly elected
leadership cannot be over-emphasised.
The
appellants were denied the opportunity to have the merits of their
application heard on the basis of technical, procedural
grounds. We
have come to the conclusion that these grounds were incorrectly
relied upon by the High Court. I now proceed to
evaluate each of
these grounds.
Service
grounds
The
service grounds fall in to two categories: the first concerns the
publication of the notice in the press and its consequences
while
the second is about lack of proper service on the respondents.
As
far as the first category is concerned,
24
the High Court was of the view that service of the application on
the members of the ANC and the public was essential and that
service could not have been properly effected if the publication
had been made without a court order. In my view, this is to
put
form above substance. Firstly, no relief is being claimed against
all the members of the ANC or against the people of South
Africa.
Secondly, nothing prevented the appellants from causing the notice
of motion to be published. It was prudent for the
appellants to
have published the notice to inform the general public in case
someone wished to oppose the application. It is
of no consequence
that the notice was published without a court order.
The
second leg of the publication objection was that people who
requested copies of the application were told that they would
be
given copies only if they indicated their intention to oppose and
were not provided with them simply upon request. To evaluate
the
finding that this aspect should contribute to the reason for
dismissing the application on technical grounds, it must first
be
understood that the application was voluminous:
a) the appellants’ founding affidavit and annexures ran into
three volumes and consisted of more than 278 pages;
b) Bundle A which contained the nearly 2300 signatures referred to
earlier spanned almost 4 volumes and about 260 pages; and
c) other documents relied, and a further 2520 signatures were
contained in Bundle B in about 3 volumes and a little under 300
pages.
In
the circumstances, the decision of the appellants to make copies of
the papers available only to those who genuinely wished
to oppose
the application was beyond criticism and should not have been held
against them.
The
second category of service grounds concerning service on the
respondents
25
must be evaluated on the basis that the first twenty five
respondents, who were members of the PEC, were represented by the
same legal team and that the national formation of the ANC had
already filed a notice of intention to oppose when the application
was heard. The High Court had difficulty with the following:
a) the members of the PEC were served one day after an urgent court
order had been obtained;
b) the ANC had not been given sufficient notice in order to oppose
the application bearing in mind that its office was in Johannesburg,
outside the jurisdiction of the Free State High Court; and
c) only the chairperson of the PEC and the national formation of the
ANC had been served with a copy of all the papers while
the
remaining respondents had not been served with Bundles B and C
referred to earlier.
It is
self-evident that these could not constitute part of the reason not
to hear the application on its merits bearing in mind
that the PEC
members were all before the High Court and that the national ANC had
not only filed notice of intention to oppose
the application but had
also lodged an affidavit which will be referred to later to found
the contention that the application
was premature.
The failure to cite Branch Executive Committees and elected
provincial conference delegates
26
No
relief was sought against the Branches or the delegates. In any
event, the interests of the Branches whose meetings had been
contended as being irregular as well as the delegates of those
Branches to the provincial conference were precisely the same.
Neither the Branches nor the delegates were essential parties to
the dispute. Indeed, to require service of this kind would
be an
almost impossible bar to the application being brought. In the
circumstances, this reason too ought not to have been
relied upon
by the High Court for its conclusion.
The
application is premature
27
As I
have pointed out, the High Court concluded that the application was
premature because the decision by the national formation
of the ANC
to approve the holding of the provincial conference was taken weeks
after the application had been launched. The
first difficulty with
this finding is that it left out of account the circumstance that
there was also a prayer for the setting
aside of the provincial
conference. There was nothing premature about that prayer.
The
second difficulty was that on the papers as they then stood it was
not disputed that the ANC had conducted itself on the
basis that
the PEC which had been elected at that provincial conference was
validly elected:
a) the members of the committee had been invited to the national
policy conference of the ANC held towards the end of June 2012;
b) the letters of complaint sent to the ANC had not been responded
to;
c) the letters by the then provincial secretary, Mr Besani, to the
ANC, complaining about potential irregularities had been ignored;
and
d) on 30 July 2012 the Secretary-General of the ANC had said to a
person who had handed him a dossier of complaints that the
ANC was
satisfied with the outcome of the provincial conference and no
further action would be taken.
In all
the circumstances the appellants were entitled to assume that some
decision had been made somewhere to approve the conference.
They did
not know what that decision was. The date on which they brought the
application could not be part of a reason not to
hear the case.
Failure to exhaust internal remedy
28
When
the application was heard by the High Court, there was unopposed
evidence before it that the letters of complaint in relation
to
various irregularities had gone unattended and that the
Secretary-General had already said that the ANC would do nothing
more about the matter. This seemed to indicate that the internal
remedies had been closed. In any event, by the time the High
Court
heard the case, the National Executive Committee of the ANC had
already “endorsed” the PEC and the proceedings
of the
Provincial Conference. In the circumstances there was no other
internal remedy left to it but to approach the national
conference
which commenced on 16 December 2012. But the appellants’ very
objective was to be represented by a properly
elected PEC as well
as properly elected delegates from the Free State. That could not
happen if the alternative remedy had
been pursued instead of
issuing proceedings in a court. On the papers, as they stood at the
time, the appellants were neither
obliged to, nor could, avail
themselves of this alternative remedy as this course would have
irremediably negated the very
purpose of their application.
In
the light of the papers before it at that time, the High Court was
not right when it decided not to hear the merits of their
application on the procedural grounds referred to. Indeed, the
failure to hear the merits of the dispute between the parties
seriously compromised the appellants’ right to have a
justiciable dispute determined in a fair hearing before a court.
The underlying justiciable dispute was whether the provincial
executive committee was properly elected. That dispute was never
heard let alone unfairly heard. And, what is more, not heard on
unsustainable grounds. The High Court ought to have heard the
merits of the dispute.
The
final decision this Court had to make concerning the application
for leave to appeal was whether it should hear the appeal
or
whether the Supreme Court of Appeal should first consider it after
the High Court had heard an application for leave to
appeal. In my
view the circumstances of this case justified leave to appeal being
granted directly to this Court. In other
words, the Supreme Court
of Appeal should be by-passed. The application before us was
launched on 7 November 2012 and was considered
by us on 20 November
2012. It would by that date have been almost impossible for this
Court to consider any appeal or application
for leave to appeal if
both the High Court and Supreme Court of Appeal had later refused
leave to appeal before 15 December
2012.
We
must remind ourselves that if we had refused leave to appeal on the
basis that the Supreme Court of Appeal should first consider
it,
there would have been need for an application for leave to appeal
to the High Court and, if that application had been refused,
an
application for leave to appeal to the Supreme Court of Appeal. We
also bore in mind that the Supreme Court of Appeal would
be in
recess from the end of November and that there would be difficulty
in convening a Full Court of judges to hear the appeal.
The problem
would have been compounded if the High Court and the Supreme Court
of Appeal had successively refused leave to
appeal and if the
Supreme Court of Appeal had done so without reasons shortly before
15 December 2012. This would in all probability
have happened too
late to enable this Court to do anything. In the circumstances it
was just and equitable for us to hear the
appeal.
The
appropriate relief
The
Court hearing the application for leave to appeal also made an
order requiring the parties to file further papers and argument
on
the merits. The reasons for this decision follow.
It
will be recalled that the respondents had filed no papers on the
merits and had taken only the technical objections, all
of which
have been overturned in this judgment, on the application for leave
to appeal. If we heard the appeal without affording
the parties an
opportunity to file further papers on the merits of the
applications, the respondents would have been prejudiced
because
the prospects of the application being granted, as the papers then
stood was reasonable. And this would have happened
without the
respondents having being heard. Although this would to a large
extent have been of the respondents’ own making,
this factor
was in my view not in itself enough to deny the respondents an
opportunity to be heard. It was just and equitable
for the
respondents to be given an opportunity and for this Court to
determine the merits of the application once and for all.
This
would mean of course that this Court would be the court of first
and last instance as far as the merits are concerned.
Although this
consequence was unfortunate it was, in my view, necessary to go
this route to achieve justice. If we did not
hear the appeal, the
merits of the application would hardly have been considered by any
court before 15 December 2012. There
were also difficulties in the
way of referring the matter to the High Court to deal with the
merits of the application because
it would have been inappropriate,
in the circumstances, to issue directions to the High Court. In
addition, the time-lines
were so tight that mere referral back to
the High Court without directions as to the filing of affidavits,
argument and hearing
would not have suited the exigencies of the
circumstances. The attainment of justice taken together with the
right of access
to courts guaranteed by section 34 of the
Constitution required us to hear the application on its merits as a
court of first
and last instance.
The
costs of the application had to be reserved for determination in
the appeal because there was not enough on the papers to
determine
a just costs award.
These
are the reasons for the order made by this Court on 21 November
2012.
The
basis on which the application for leave was granted meant, in
effect, that the judgment of the High Court cannot stand.
A formal
order setting aside the judgment of the High Court was made on
Friday, 14 December 2012.
The appeal
In
so far as the appeal is concerned, I agree with Froneman J, that it
should be dismissed whether leave had been properly granted
or not.
FRONEMAN J (Mogoeng CJ and Yacoob J concurring (except for [39] to
[45])):
Introduction
This is a minority judgment. It sets out the reasons why I did not
concur in the order granting leave to appeal and why I consider
that the appeal should have been dismissed.
Leave
to appeal
I
accept that a constitutional issue relating to the exercise of
political rights under section 19 of the Constitution, in
particular the right to participate in the activities of a
political party,
29
arises in this matter, and that reasonable prospects of success on
appeal exist. But I do not think that it was in the interests
of
justice for this Court to have heard the matter on the basis of
urgency and, in effect, as a court of first instance.
This
Court is not well-geared to hear urgent matters. Urgency may afford
grounds for engaging this Court directly, but in order
for it to do
so an applicant must establish that a delay in securing a
definitive ruling “would prejudice the public
interest or the
ends of justice and good government.”
30
The
urgency in this matter stems from the fact that the national
conference of the African National Congress (ANC), the twenty-sixth
respondent, was scheduled for mid-December. In the founding papers
in the Free State High Court, Bloemfontein (High Court)
the
appellants stressed that the national conference would elect a
leader who will also become the President of South Africa
in due
course. That may well be the practical reality of the political
situation in the country at present, but it raises no
issue that
needs urgent constitutional clarification in the national or public
interest. The Constitution provides that the
President of the
country is elected by the National Assembly.
31
The outcome of this case will have no legal or constitutional
impact on that process.
The
ordinary urgency of the matter may well have justified expedited
appeal hearings by either a Full Court of the High Court
or the
Supreme Court of Appeal, but the appellants instead chose to
approach this Court for direct leave to appeal. In
Union of
Refugee Women v Director: Private Security Industry Regulatory
Authority
,
32
this Court restated the considerations that are relevant for
deciding whether to grant leave to appeal to this Court directly
from a high court:
“
Leave
to appeal directly to this Court will be granted if it is in the
interests of justice to do so. Each case is considered
on its own
merits. The factors relevant to a decision whether to grant an
application for direct appeal have been listed as including
whether
there are only constitutional issues involved, the importance of the
constitutional issues, the saving in time and costs,
the urgency, if
any, in having a final determination of the matters in issue and the
prospects of success. These must be balanced
against the
disadvantages to the management of the Court’s roll and to the
ultimate decision of the case if the Supreme
Court of Appeal (SCA)
is bypassed.”
33
(Footnotes
omitted.)
The
principal constitutional issue raised here is of course important,
but it is hardly contentious. There should be little
doubt that the
right to participate in the activities of a political party imposes
a duty on every political party to act lawfully
and in accordance
with its own constitution. Nor is the permissible legal extent of
participation the crucial issue that needs
to be determined here.
None of the parties disputed the right to participation. What was
disputed was whether this accepted
right had been factually
breached, a question of application of constitutional principle to
the facts that could as easily
and appropriately have been done by
either a Full Court of the High Court or the Supreme Court of
Appeal.
Lastly,
although it is understandable that it would have served practical
purposes better had the disputed issues been decided
before the
national conference was held, it would not have been the end of the
road, legally, if this were not done. If it
transpired that the
election of provincial delegates tainted the national conference,
it would have remained open to approach
a court to declare the
subsequent results invalid.
For
these reasons I considered that leave to appeal should not have
been granted.
Merits
of the appeal
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. The factual basis for the review was
that the ANC ignored and failed to investigate the alleged
irregularities that they set out in their founding papers. That is
apparent from the introduction to the categories of irregularities
that the appellants alleged took place:
“
In
the present instance, there are at least seven respects in which the
2012 provincial conference was tainted by such breaches,
resulting
in illegality.
More
specifically, these violations or irregularities were brought to the
attention of the 26
th
as
well as the provincial executive committee via the provincial
secretary, who all nevertheless made a conscious decision either
to
go ahead and hold the provincial conference in question and/or to
act upon and give recognition to its outcomes.
”
(Emphasis added.)
This
was a recurrent theme of the founding affidavit:
34
“
The
26
th
respondent
also
deliberately turned a blind eye to these discrepancies, which were
brought to its attention on numerous occasions
.
The reasons for this is that the aforesaid undemocratic faction is
favoured by inter alia the current secretary-general, whose
own
political fortunes are intertwined with the political survival of
the said faction.
. . .
Comparing these actions of the
26
th
respondent
to its inexplicable failure and
refusal to act in the face of literally hundreds of irregularities
and fraudulent activities in
the Free State, it must follow that its
decisions and indecisions are motivated by ulterior and improper
motives and in bad faith.
” (Emphasis added.)
The
first part of the relief sought by the appellants was for an
interdict pending the finalisation of the review application.
In
the founding affidavit the appellants asserted that they had
exhausted all internal remedies, but that the ANC had “made
it abundantly clear that no measures will be taken to address the
concerns of the applicants.”
The
appellants’ application for review was thus based on the
ANC’s alleged failure to investigate the alleged
irregularities and its acceptance of the results of the provincial
conference that flowed from this failure. It is apparent from
the
founding papers that the appellants knew that there were internal
processes to rectify alleged irregularities, but they
argued that
the ANC failed to allow these.
As
explained in Yacoob J’s judgment, the peculiar circumstances
of the matter necessitated an order requiring the parties
to file
further papers on the merits of the original application before the
High Court.
35
This meant that this Court would be the court of first and last
instance insofar as deciding the substantive merits of the
original
application. It is thus important to appreciate that the decision
on the merits is one on the substantive merits of
the original
application in the High Court, and not the usual inquiry on appeal
of whether the High Court’s decision
on those merits was
correct or not.
The
ANC only filed an opposing affidavit on the substantive merits in
this Court. In it the Secretary-General of the ANC makes
it
abundantly clear that the appellants’ allegation in their
founding papers, that no consideration was given to their
complaints and that there was no internal review of their
complaints, is without foundation. A task team was sent to the Free
State province. It investigated the alleged irregularities, made
recommendations in relation to them and these recommendations
were
acted upon, settling the grievances in accordance with the internal
procedures of the party.
If
the contents of this affidavit and the report annexed to it, giving
details of the investigation, recommendations and outcome,
are to
be accepted, the basis for the appellants’ review against the
ANC in its founding papers falls away. And
Plascon-Evans
36
tells us that for the purposes of deciding the matter on the papers
before us, the contents of the opposing affidavit must
be accepted
as correct. In my view that puts paid to the appellants’ case
in the High Court.
That
case was based on a review of the ANC’s decision to allow the
provincial conference to go ahead and countenance its
outcome
without having considered the alleged irregularities. It is now
clear that the basis for that review – the alleged
failure to
investigate the irregularities and to conduct an internal review of
them – was unfounded.
I
have difficulty understanding on what basis this Court can
pronounce on the merits of the alleged irregularities in the
absence of some further ground that shows that the ANC was somehow
remiss in its own assessment of the irregularities. The appellants’
founding papers make out no case of this kind, particularly when
read with the ANC’s opposing papers.
The
case the ANC had to meet was that it ignored the appellants’
attempts to have the alleged irregularities investigated.
In my
view it has met that case and it would be unfair to find against it
on the basis that its assessment of the irregularities
was in some
way deficient. In
Theletsane
37
a similar kind of argument was rejected:
“
Part
of the reasoning in the main judgment may, for ease of reference, be
stated as follows: the appellants were not specifically
required to
deal with the form of the hearing given, but they chose to deal
fully with the events of the day in question, not
only to show that
the respondents had been afforded a hearing, but also that the
hearing had been a proper and fair one; consequently
they will not
be disadvantaged or prejudiced if their affidavits are relied upon
to determine not only whether a hearing took
place, but also the
nature and ambit thereof; and in considering the appellants’
affidavits the test is whether they are
reasonably capable of being
interpreted in such a way that they raise a valid defence to the
relief sought by the respondents,
ie that the respondents were given
a fair hearing in relation to why they should not be dismissed. With
respect, I am wholly
unable to subscribe to this manner of
approaching the appellants’ affidavits. It was not for the
appellants to show that
the respondents were given a proper hearing;
they were called upon only to meet the specific allegations put
forward by the respondents
in support of the relief claimed.
The
appellants were required to answer a case founded on the allegation
of fact that the respondents were not given a hearing;
they were not
called upon in any other way to raise a valid defence to the relief
sought. In particular, for instance, the question
whether the
hearing given was unduly limited in its scope was not an issue to
which the appellants’ deponents were required
to address their
minds. It is not permissible to consider the appellants’
affidavits in isolation, divorced from the context
of the case which
they were answering
.”
38
(Emphasis added.)
And
further:
“
It is
clear, in my view, that the room for deciding matters of fact on the
basis of what is contained in a respondent’s
affidavits,
where
such affidavits deal equivocally with facts which are not put
forward directly in answer to the factual grounds for relief
on
which the applicant relies, if it exists at all, must be very narrow
indeed
.”
39
(Emphasis added.)
The
majority found that on the ANC’s own papers a number of
irregularities did in fact occur. On the authority of
Theletsane
I think that approach is not without problems. But even if it were
justified it seems to me that more is required. What must
be shown
further is that the ANC was in some way or another reviewably
remiss in relation to these irregularities. And I can
find no
further remissness of this kind on the ANC’s own papers, or
elsewhere in the record.
If
the kind of irregularities alleged in the papers did occur it would
indeed be a profoundly disturbing feature of our body
politic. This
judgment does not signify that the conduct of the ANC or any other
political party may not be subject to scrutiny
under the
Constitution. All it says is that on the papers in this case it
would be inappropriate to make final and definitive
findings on
factually disputed issues and the manner in which the ANC handled
these disputes.
For
these reasons I would have dismissed the appeal.
MOSENEKE DCJ AND JAFTA J (
Khampepe J, Nkabinde
J, Skweyiya J, Van der Westhuizen J and Zondo J concurring)
:
The appeal
The
appellants, acting in their personal interests and also in the
interests of a class of persons made up by members of the
African
National Congress (ANC) and voters resident in the Free State,
40
sought an order setting aside the Provincial Conference held at
Parys from 21 to 24 June 2012, including all decisions and
resolutions taken during the Conference. In addition, they asked
for rescission of the decision taken by the ANC to recognise
the
Provincial Executive Committee (PEC) elected at the impugned
Conference. For convenience we will refer to the members of
the
ANC, on whose behalf this application was instituted, collectively
as the appellants.
The
appellants premised their claim for relief on three grounds. First,
they contended 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. Second, the appellants
argued that their constitutional right to participate in
the
activities of the ANC was breached as a result of a number of
irregularities that occurred before the challenged conference
was
held.
41
Third, they asserted that their right to lawful and procedurally
fair administrative action was violated when the irregularities
complained of were committed.
Following
a careful consideration of the matter, we are satisfied that the
established facts sustain the first two grounds on
which the
appellants rely. 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 the
consideration of the third ground unnecessary.
In
setting out the reasons for the finding we make and the conclusion
we reach, we commence with an analysis of the constitutional
framework and, in particular, section 19 of the Constitution of the
Republic of South Africa (Constitution) as it is the source
of the
right sought to be enforced. We then proceed to consider the
interplay between the constitution of the ANC (ANC’s
constitution) and section 19. This analysis will reveal the legal
principles relevant to the resolution of the dispute placed
before
us by the appellants. The analysis will be followed by the
application of these principles to the proven facts. We conclude
by
determining the appropriate remedy.
Constitutional framework
One
of the complaints raised is that the appellants have been prevented
from participating in the activities of a political
party of their
choice. The appellants contend that this violates their political
rights enshrined in section 19 of the Constitution.
This section
confers political rights exclusively on the citizens of this
country. It reads:
“
(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; and
(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.”
The
scope and content of the rights entrenched by this section may be
ascertained by means of an interpretation process which
must be
informed by context that is both historical and constitutional.
During the apartheid order, the majority of people
in our country
were denied political rights which were enjoyed by a minority. The
majority of black people could not form or
join political parties
of their choice. Nor could they vote for those who were eligible to
be members of Parliament. Differently
put, they were not only
disenfranchised but were also excluded from all decision-making
processes undertaken by the government
of the day, including those
affecting them. Many organisations whose objectives were to advance
the rights and interests of
black people were banned.
42
These organisations included the present ANC. Participation in the
activities of these organisations constituted a serious
criminal
offence that carried a heavy penalty. The purpose of section 19 is
to prevent this wholesale denial of political rights
to citizens of
the country from ever happening again.
The
other context relevant to the construction of section 19 is
provided by the Constitution itself. In our system of democracy
political parties occupy the centre stage and play a vital part in
facilitating the exercise of political rights. This fact
is
affirmed by section 1 of the Constitution which proclaims that
“[u]niversal adult suffrage, a national common voters
roll,
regular elections and a multi-party system of democratic
government, to ensure accountability, responsiveness and openness”
are some of the values on which our state is founded.
In
the main, elections are contested by political parties. It is these
parties which determine lists of candidates who get elected
to
legislative bodies.
43
Even the number of seats in the National Assembly and provincial
legislatures are determined “[b]y taking into account
available scientifically based data and representations by
interested parties”.
44
It cannot be gainsaid that success for political parties in
elections lies in the policies they adopt and put forward as a
plan
for addressing challenges and problems facing communities.
Participation in the activities of a political party is critical
to
attaining all of this.
In
order to enhance multi-party democracy, the Constitution has
enjoined Parliament to enact national legislation that provides
for
funding of political parties represented in national and provincial
legislatures. Public resources are directed at political
parties
for the very reason that they are the veritable vehicles the
Constitution has chosen for facilitating and entrenching
democracy.
Our
democracy is founded on a multi-party system of government.
45
Unlike the past electoral system that was based on geographic
voting constituencies, the present electoral system for electing
members of the national assembly and of the provincial legislatures
must “result, in general, in proportional representation”.
46
This means a person who intends to vote in national or provincial
elections must vote for a political party registered for
the
purpose of contesting the elections and not for a candidate. It is
the registered party that nominates candidates for the
election on
regional and national party lists.
47
The Constitution itself obliges every citizen to exercise the
franchise through a political party. Therefore political parties
are indispensible conduits for the enjoyment of the right given by
section 19(3)(a) to vote in elections.
48
Therefore,
the interpretation of section 19 must not lose sight of the
importance of the rights it enshrines. Consistent with
this
approach, in
August and Another v Electoral Commission and
Others
,
49
Sachs J reaffirmed the importance of one of the rights in section
19 in these terms:
“
Universal
adult suffrage on a common voters’ roll is one of the
foundational values of our entire constitutional order.
The
achievement of the franchise has historically been important both
for the acquisition of the rights of full and effective
citizenship
by all South Africans regardless of race, and for the accomplishment
of an all-embracing nationhood. The universality
of the
franchise is important not only for nationhood and democracy. The
vote of each and every citizen is a badge of dignity
and of
personhood. Quite literally, it says that everybody counts. In a
country of great disparities of wealth and power it declares
that
whoever we are, whether rich or poor, exalted or disgraced, we all
belong to the same democratic South African nation; that
our
destinies are intertwined in a single interactive polity. Rights may
not be limited without justification and legislation
dealing with
the franchise must be interpreted in favour of enfranchisement
rather
than disenfranchisement.”
50
Moreover,
section 39(1) of the Constitution obliges us to “promote the
values that underlie an open and democratic society
based on human
dignity, equality and freedom” when we interpret a provision
of the Bill of Rights.
51
It is by now well-settled that the text of a section in the Bill of
Rights must be read generously and purposively in order
to give the
right-holders the full protection afforded by the guaranteed right.
This is the setting in which section 19 must
be read and
understood.
In
relevant part section 19(1) proclaims that every citizen of our
country is free to make political choices which include the
right
to participate in the activities of a political party. This right
is conferred in unqualified terms. Consistent with
the generous
reading of provisions of this kind, the section means what it says
and says what it means. It guarantees freedom
to make political
choices and once a choice on a political party is made, the section
safeguards a member’s participation
in the activities of the
party concerned. In this case the appellants and other members of
the ANC enjoy a constitutional guarantee
that entitles them to
participate in its activities. It protects the exercise of the
right not only against external interference
but also against
interference arising from within the party.
This
right may be limited only on authority of a law of general
application. But even then only to the extent that the limitation
is reasonable and justifiable in “an open and democratic
society based on human dignity, equality and freedom”.
52
As no law of general application has been invoked to justify the
limitation here, it follows that if any limitation is established
by the appellants it will be unjustifiable. What this means is that
constitutions and rules of political parties must be consistent
with the Constitution which is our supreme law.
The interplay between the ANC’s constitution and section 19
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.
It
bears repeating that political parties may not adopt constitutions
which are inconsistent with section 19. If they do, their
constitutions may be susceptible to a challenge of constitutional
invalidity. We point out, however, that the present is not
such a
case. The validity of the ANC’s constitution is not under
attack. What needs to be mentioned for present purposes
is that the
ANC’s constitution regulates and facilitates how its members
may participate in internal activities of the
party. Rule 3 of its
constitution confers on members the power to determine and
formulate the party’s policies. It also
stipulates that the
leadership of the party is accountable to its members in terms of
the procedures laid down in its constitution.
53
Echoing the Electoral Act this clause further states that the ANC
contests elections as a registered political party and it
shall, in
its composition and functioning, be democratic.
54
More importantly, “[m]embership of all bodies of the ANC will
be open to all men and women in the organisation without
regard to
race, colour and creed” and this clause guarantees freedom of
speech and free circulation of ideas and information.
55
Rule
5 sets out the rights of a member of the ANC. These include a full
and active participation in the “discussion, formulation
and
implementation of the policy of the ANC.” Members are also
entitled to “[t]ake part in elections and be elected
or
appointed to any committee, structure, commission or delegation of
the ANC.” According to rule 23 the exercise of
these rights
first takes place in the branches. Every member of the ANC is
required to belong to a branch. Rule 23 states that
the branch is
the place where members exercise their basic democratic rights to
discuss and formulate policy. It concludes
by stipulating that the
quorum for annual branch meetings and other meetings, where a
branch nominates candidates for election
within the ANC or takes
decisions in relation to policy, shall be 50% plus one of the total
paid-up members of the branch.
Another
clause of the ANC’s constitution that is relevant for present
purposes is rule 26 which empowers its National
Executive Committee
(NEC) to “adopt rules and regulations for the better carrying
out of the activities of the ANC.”
56
Acting in terms of this rule, the Committee adopted Membership
Audit Guidelines in May 2011. The guidelines establish a National
Audit Team whose function is to conduct audits of membership in
each province. The guidelines oblige both the Regional Executive
Committees (RECs) and the PECs to prepare interim audit lists of
paid-up members in each branch as well as lists of branches
in good
standing. These guidelines also set out requirements which must be
met by a branch that needs to be in good standing.
Only
constitutionally launched branches which are in good standing are
allowed to send delegates to conference.
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.
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.
The relationship between the ANC and its members
Before
demonstrating that some of the irregularities raised were
established it is necessary to outline the nature of the legal
relationship that arises from membership of the ANC. At common law
a voluntary association like the ANC is taken to have been
created
by agreement as it is not a body established by statute.
57
The ANC’s constitution together with the audit guidelines and
any other rules collectively constitute the terms of the
agreement
entered into by its members. Thus the relationship between the
party and its members is contractual. It is taken
to be a unique
contract.
As
in the case of an ordinary contract, 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. In
Saunders v Committee of the Johannesburg
Stock Exchange
,
58
the Court said:
“
There
is no doubt that rules and regulations of a body like the Stock
Exchange, just like the rules and regulations of an ordinary
club,
or the Articles of Association of a Company constitute a contract
between its members and that is the reason why any particular
member, if the contract is broken to his disadvantage, has the right
to come to the Court for the appropriate remedy.”
59
We
have set out in detail specific clauses in the ANC’s
constitution and its audit guidelines which the appellants claimed
were violated. It emerges from the papers that the appellants
relied on two types of irregularities. The first type relates
to
what was done in breach of section 19 of the Constitution. The
second arises from the breach of the audit guidelines and
the ANC’s
constitution. Proof of both types of irregularities entitles the
appellants to relief. But before we consider
the remedy which the
appellants ought to obtain, it is necessary to show the
irregularities established by evidence on record.
The irregularities
Background
Before
we review specific averments of irregularities related to the Free
State Provincial Conference of June 2012, it is necessary
to sketch
briefly the background against which the present dispute is
located.
The
structures of the ANC are divided into provinces which coincide
strictly with the provincial boundaries demarcated by the
Constitution.
60
In turn provinces are made up of regions with a cluster of
branches. A provincial conference is held at least once every four
years and is composed of voting delegates. At least 90% of the
delegates must be from branches and elected at properly constituted
branch general meetings. A branch is entitled to a number of
delegates in proportion to its paid-up membership. However, a
branch in good standing is entitled to at least one delegate. The
remaining 10% of delegates is drawn from the ANC’s
Veterans
League, Youth League and the Women’s League.
61
The
Provincial Conference elects the PEC which holds office for four
years. The PEC is the highest organ in a province between
provincial conferences and bears the authority to lead the
organisation within the province. It is made up of a provincial
chairperson and a deputy, a secretary and a deputy, treasurer and
20 members. The provincial secretary must be a full time
officer of
the organisation. During the hearing the appellants described a
provincial secretary as the chief administrative
officer of the
province whose responsibilities within a province track those of
the Secretary-General.
62
All members of the PEC are by virtue of their office (ex officio)
members of the Provincial Conference.
During
2008 at the town of Parys and in accordance with its constitution,
the ANC in the Free State elected a PEC. The first
respondent, Mr
Elias Magashule, was re-elected as provincial chairperson. Mr Thabo
Manyoni, the second respondent, was elected
deputy chairperson and
Mr Sibongile Besani was elected provincial secretary. It is well
accepted by all that his was a full-time
position and that he was
the foremost administrative officer responsible for the day-to-day
running of the political party
in the province. Both the provincial
chairperson and secretary also serve as ex officio members of the
NEC of the ANC. The
fourth respondent, Ms Mamiki Qabathe was
elected deputy secretary and Mr Mxolisi Dukwana was elected as
treasurer along with
20 other additional members of the PEC.
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.
Delegates
to an elective provincial conference are democratically elected and
drawn from properly constituted branch general
meetings. 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.
The
depositions before us point to certain difficulties within branches
and regions which are meant to play a significant role
in
identifying delegates to the Provincial Conference. These
difficulties are reported extensively in a series of letters to
the
NEC written by the provincial secretary, Mr Sibongile Besani,
during May and June 2012. We will revert to this correspondence
later.
From
21 to 24 June 2012, and again at the town of Parys, the ANC
convened a Provincial Conference, elected a provincial executive
committee and adopted several resolutions. The appellants impugn
the lawfulness of the Provincial Conference and its outcomes
on
several grounds.
The
material grievances concern the question whether the delegates to
the elective Provincial Conference had been properly accredited
and
audited as required by the ANC’s constitution and its
Membership Audit Guidelines. The appellants have tabulated
at least
seven respects in which the Provincial Conference was tainted. The
appellants enumerate the following categories of
irregularities:
“
(a)
Delegates who participated in the provincial conference, whereas
they had not been duly mandated or elected ‘at a properly
constituted branch general meeting’ of ANC members in good
standing.
(b) The manipulation of the
membership numbers in specific branches, enabling them to send
delegates to the provincial conference
or to send a different number
of delegates than they would lawfully be entitled to or even to
purportedly make a quorum or fail
to quorate, as the case may be.
(c) The exclusion of bona fide
delegates who had been elected at properly constituted branch
general meetings and/or the decision
to disallow members in good
standing from participating in the election of delegates.
(d) The establishment of
parallel structures and the decision to allow and sanction the
participation at the provincial conference
of ‘delegates’
from parallel structures in respect of which disputes had not been
resolved, as well as permitting
more than one parallel branch to
qualify for the provincial conference.
(e) The failure to give
branches an opportunity to query the audit findings, in breach of
the audit guidelines.
(f) The failure to give
recognition to nominations legitimately made by ANC branches in
respect of the membership of the provincial
executive committee.
(g) A cluster of other
miscellaneous violations which appear from the papers and which will
be dealt with in argument.”
The
primary defence of the respondents including the ANC has two parts.
First, they say the irregularities that were reported
to the
Secretary-General of ANC, were resolved before the provincial
conference to the satisfaction of the provincial secretary.
In
the second instance, the Secretary-General contends that the
irregularities that had not been raised with him before are
disputed. Both the PEC and the Secretary-General “deny the
allegations and [the] applicants are put to the proof thereof”.
In particular, they deny that the Provincial Conference of the ANC
in the Free State was tainted by any illegality and/or any
breach
of the ANC’s constitution. Both deny that any branch delegate
not authorised to do so attended the provincial
conference and that
any branch delegate entitled to attend was denied the opportunity
to do so.
In
our view these particular bare denials of the respondents do not
rise to the level of disputes of fact. The denials are generic
and
were made and directed at disputing the appellants’
categories of irregularities and the legal conclusion that the
provincial conference was tainted with irregularities. The denials
are not directed at facts that support the classes of
irregularities. This is particularly so because where later in the
founding affidavit the appellants adduce facts which support
the
categories of irregularities, region by region, they are not
seriously disputed.
The
proper approach to determining whether an applicant in motion
proceedings has made out a case for the relief sought in a
case
where some of the allegations are disputed by the respondent was
pronounced in
Plascon-Evans.
63
According to the
Plascon-Evans
rule the applicant would
succeed if the admitted facts alleged by it, together with the
facts alleged by the respondent, justify
the relief sought.
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.
64
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. In assessing whether the
appellants have made out a case for the
relief they seek, we will
apply these principles.
Specific irregularities
It
is now convenient to look at each category of irregularities more
closely. The affidavits are prolix. They are made even
longer by
extensive attachments. The appellants have chosen to rely on
examples of categories of irregularities they contend
for. A
selection of ‘extreme’ examples is supported by a
bundle of documents referred to as “Bundle C”.
It
contains correspondence from branches to the provincial secretary,
sworn statements verifying complaints of branches, preliminary
regional audit reports, final audit reports and correspondence from
the provincial secretary to the national leadership of
the ANC. It
is expedient to track the allegations of irregularities region by
region rather than by categories of irregularities.
Many overlap
and are linked. The correspondence of the foremost administrative
officer of the PEC is as good a place as any
to start.
However,
before we do so, it is necessary to mention again briefly the audit
guidelines which are an integral part of the governance
instruments
of the ANC. The ANC national Membership Audit Guidelines for
conferences and general councils provide that a mandatory
pre-audit
must be conducted by the PEC or REC in preparation for the national
audit that is conducted by the National Audit
Team in each province
within a cut off date determined by the province. The National
Audit Team shall establish the number
of paid-up and verified
members per branch, and the number and details of branches in good
standing at the cut off date. All
paid-up members will be
recognised as members and only constitutionally launched ANC
branches in good standing will be able
to send delegates to the
conference. Branches are required to provide valid membership forms
and their latest Bi-AGM report
and attendance register.
Correspondence of the provincial secretary
Barely
four weeks before the Provincial Conference the provincial
secretary wrote four letters to the Secretary-General, to
NEC
deployees and to PEC officials of the ANC. He decried certain
difficulties amongst members of the ANC within the province
and
catalogued several and material irregularities related to the state
of readiness of the branches to participate in provincial
conferences and the reliability of audits related to branch
membership. The last letter is dated 22 June 2012, a
day
after the registration of delegates to the provincial conference
had started. He announced that he would not participate
in the
conference and warned that he found it “extremely
unacceptable” that even on the registration day, 21 June
2012, he could not “access or be availed with reports of
delegates to the conference”.
The
1st to 25th respondents pleaded that they have no knowledge whether
this correspondence were received by the Secretary-General.
What
they do not say is whether they received the letters directed to
PEC leaders too. During oral argument their counsel informed
the
Court that the 1st to 25th respondents did not dispute the veracity
of the contents of the letters of the provincial secretary.
The
Secretary-General readily admits receipt of the letters from the
provincial secretary and that he took steps to resolve
the
grievances. It is true that the provincial secretary has not filed
a confirmatory affidavit. That does not avail the respondents
because none of them dispute the correctness of the grievances in
the correspondence. What they do is to suggest that he had
aligned
himself with the appellants who were seeking a regime change in the
provincial leadership. And yet, in the same breath,
the respondents
claim that he attended the conference and was satisfied with how
the conference was conducted even in the face
of his letter written
on the morning of 21 June 2012.
The
correspondence referred to, catalogued numerous irregularities
committed in the process leading up to the Provincial Conference.
The Secretary-General averred that irregularities brought to his
attention were resolved to the satisfaction of the provincial
secretary. Although this is denied by the appellants, we have to
accept that the respondents have raised a genuine dispute
of fact
on this issue. According to the
Plascon-Evans
rule, the
irregularities which were submitted to the Secretary-General should
not be taken into account in determining whether
the relief sought
is justified.
However,
this does not mean that the appellants’ application must be
dismissed. Their case was not confined to irregularities
which were
referred to the Secretary-General only. They raised irregularities
which were not addressed at all. In his response,
the
Secretary-General admitted that “the bulk” of
irregularities set out in the appellants’ papers were not
resolved because they had not been referred to him. He asserted
that these irregularities were raised for the first time in
these
proceedings. We now consider the specific irregularities.
The
significance of the undisputed contents of the letters is that they
furnish the backdrop and evidentiary support to the
factual
allegations that the appellants make in support of the specified
irregularities they rely on in the regions. The letters
in
themselves may not be proof that the irregularities occurred. They
are, however, proof that shortly before the Provincial
Conference
the chief administrative officer of the ANC in the province was
deeply concerned about the division within his party’s,
leadership contestations and the irregularities that were likely to
taint the lawfulness of the elective conference. Therefore,
even if
we were to accept, as we must, what the Secretary-General states,
namely, that he took steps to try and resolve these
irregularities
as he became aware of them, that is no answer to the specific
irregularities that occurred in the regions, particularly
shortly
before the provincial conference. To that matter we now turn.
Motheo
region
The
appellants put up a number of grievances related to the final audit
of branches eligible to participate in the Provincial
Conference.
The first is that the final audit report records that the region is
composed of 49 branches and that 38 met the
membership audit
requirements that allowed them to participate in the provincial
conference. The region was also declared eligible
to hold its own
conference on the basis that it had reached the threshold number of
34 branches in good standing. The appellants
assert that
Bloemfontein (Ward 19) and Botshebelo (Ward 32) should not have
been counted in the tally of 36 branches because
their meetings
were not properly constituted for want of a quorum.
The
respondents appear to have offered a complete answer to this
complaint. The final audit report refutes the suggestion that
Botshebelo (Ward 32) or Bloemfontein (Ward 19) were not quorate.
The
next irregularity put up by the appellants is that the final audit
was completed on 21 June 2012 when the registration of
delegates
was being finalised. They complain that they had no opportunity to
question, verify or make submissions on the correctness
of the
preliminary report or the final audit report before the start of
the Conference as required by the Membership Audit
Guidelines. This
must be accepted because the final audit is dated 21 June 2012 and
the respondents do not deny the allegation.
All they say is that
the final audit report cannot be queried because the preliminary
audit report is meant to afford branches
an opportunity to
challenge its accuracy. However, the respondents failed to deal
with the allegation that before the stage
of a final audit, the
appellants were not afforded any or an adequate opportunity to
question or make submissions on the accuracy
of the preliminary
audit report or of the final audit report before it became final.
The
appellants cites three examples which point to an audit process
inconsistent with the audit guidelines. In the
Moses Mabhida
branch an elective bi-annual general meeting was held on 22 April
2012 and was convened without a quorum. Also 10 members were
disallowed from participating and two non-members were allowed to
participate. A meeting was arranged with the national audit
team
for 13 and 14 May 2012 but did not happen because a
regional deployee failed to attend the meeting. The respondents’
answer to this is no more than to state that “to the best of
[their] knowledge, this is not true. [We] shall endeavour
to obtain
an affidavit from the branch chairperson or secretary.”
It
is so that given the tight timelines it may have been difficult to
obtain an affidavit. We do not accept that in the face
of sworn
confirmatory affidavits of card-carrying members stating that they
are in good standing that this denial raises a
dispute of fact.
This is particularly so because the deponent accepts that he has no
personal knowledge of the events complained
of. In our view, the
appellants have shown that at least 10 members of the
Moses Mabhida
branch were disallowed from participating in the elective bi-annual
general meeting held on 22 April 2012. This constituted
a breach of
the right to participate in the activities of the ANC. This right
is entrenched in section 19(1)(b) of the Constitution.
Another
example raised by the appellants relates to the
Fidel Castro
branch. The appellants claim that a properly elected chairperson
and branch secretary requested the PEC that they participate
in the
audit process and complained about the creation of a parallel
branch to theirs. No response was received from the PEC.
The
respondents’ answer to this allegation is that an audit could
not be carried out because members of the “regime
change
group” seemingly wanted their own membership file audited.
One thing is clear, no audit was conducted nor is it
suggested that
members of the
Fidel Castro
branch are not entitled to have
their membership numbers audited only because they support the
so-called regime change. In
our view, the members of the
Fidel
Castro
branch were entitled to have their membership audited to
assess their good standing and failure to do so amounts to conduct
inconsistent with the Membership Audit Guidelines and is thus any
irregularity.
Lastly,
Mr Ramakatsa, the main deponent to the application, claims that his
branch, the
Joyce Boom
branch (Ward 25) held a legitimate
branch meeting on 6 May 2012; that the meeting was
quorate and that branch delegates
were properly elected to
represent the branch at regional and provincial conferences. His
branch also nominated some of its
members for membership of the
PEC. He has attached annexure “FA6”, which is a full
report of that meeting. The
report sets out in remarkable detail
credentials of deployees, branch membership numbers, audited
membership in good standing,
the quorum required and the members
who were present at the meeting. The report records the outcome of
the election of a new
branch executive committee, nominations for
the REC as well as nominations for PEC leadership. Annexure “FA6”
was
sent by the branch secretary to the regional office and was
passed on by the regional office to the provincial secretary. His
complaint is that his branch was excluded from the Provincial
Conference and persons nominated for PEC leadership were not
even
placed on the ballot at the Provincial Conference. He further
points out that there was no parallel branch structure in
competition with the
Joyce Boom
branch.
To
this detailed complaint, the respondents say no more than that the
branch meeting never took place on 6 May 2012. The answer
also
states that the membership of the branch was not audited in time
for the branch to have delegates at the regional and
provincial
conferences. In effect, the answer admits that this branch and its
members were not entitled to and did not participate
in the
conference. Other than the bare denial, the respondents do not
furnish even the slightest evidence that the meeting
did not take
place or of the invitations they sent to the branch to submit to
audit. Going by annexure “FA6”, the
respondents in
effect disenfranchised members of a branch in good standing. This
conduct is inconsistent with the requirements
of the ANC’s
constitution.
65
But more importantly, this conduct is inconsistent with section
19(1)(b) of the Constitution.
Thabo Mofutsanyane region
The appellants allege that most of the irregularities which
occurred within the branches of the region could only have been
cured by a “re-run” of elective processes in the
branch. They add that the National Audit Team had determined and
ruled that more than 20 branches ought to conduct re-runs. The
appellants furnish names of several NEC members of the national
audit team who were deployed to branches, dates on which the fresh
meetings were to be held and the branches at which they
were to be
held. However, on the agreed dates for fresh branch meetings, the
NEC members failed to attend the meetings. As
a result, the
meetings did not take place. This failure had the effect of denying
the affected branches representation at the
Provincial Conference.
However, the appellants say, the branches which were due to have
fresh electoral meetings, were represented
by ‘delegates’
at the Provincial Conference. This in turn means that the
‘delegates’ represented the
branches concerned in a
manner inconsistent with the ANC’s constitution because they
were not elected at a properly constituted
branch general meeting.
The
respondents’ answer is simply that “re-runs” are
preferable, but could, for various reasons, not be done
in all
instances. The respondents do not deny that the NEC members
concerned failed to attend meetings. They however refer
to four
branch meetings which were held between 2 and 17 June 2012. In our
view, the respondents do not meet head-on the complaint
put up by
the appellants that fresh elections were not conducted in several
branches. The appellants are correct in complaining
that this led
to a disenfranchisement of several members of the branches
concerned. These include
Caleb Mothabi
,
Joe Nhlanhla
,
Joe Slovo
,
Govan Mbeki
and
Phuthaditjaba
in
regard to which no averments are made by the respondents that
proper re-runs had been conducted in the face of a claim that
this
was not so.
In
the founding affidavit the appellants say that the branches of
Caleb Mothabi
,
Joe Nhlanhla
,
Joe Slovo
,
Govan
Mbeki
,
Bodibeng
and
Phuthaditjaba
were reflected
in the final audit as having conducted quorate meetings when in
fact that was not the case. The respondents
dispute this only in
respect of
Joe Slovo
and
Phuthaditjaba
and do not
dispute it in respect of the other branches. The respondents make
the bald allegation that only delegates who had
been duly elected
at duly held meetings were permitted to attend the provincial
conference. They do not disclose what procedure
was adopted at the
conference to ensure that people who had not been duly elected to
attend the Provincial Conference were
excluded. The deponent to the
answering affidavit also does not say that he had personal
knowledge of the screening of delegates
at the conference.
Lejweleputswa
region
Here,
too, the appellants raise several irregularities which relate to
branch meetings that were not reconvened to overcome
prior
irregularities. We refer to one matter only. The appellants
complain that the final audit of the branches in the region
was
produced on 15 June 2012, five days before the Provincial
Conference and that they were not granted an opportunity to query
it or raise objections before the report became final. The nub of
the complaint is that there was never an opportunity to view
and
make submissions on a preliminary report. The respondents’
answer is simply that a final audit report could not be
subjected
to queries. The answer does not deal with the nub of the complaint
that the final report became final before the
appellants were given
an opportunity to comment and verify its accuracy. This, in our
view, alone is an irregularity which
is at odds with the
requirements of the Membership Audit Guidelines.
Xhariep Region
The appellants also say that in the
Dora Tamane
branch, the
Bi-AGM was called off by the provincial deputy secretary,
Ms Qabathe and Mr Morule, a member of the NEC
and
national audit committee, due to the possibility of violence and
this meeting was never reconvened. Yet this branch was
represented
by ‘delegates’ at both the regional and provincial
conferences. The respondents do not deny this. Accordingly,
there
is no dispute of fact here. There is thus no reason why the
allegations by the appellants should not be accepted.
And
lastly members of the
Lovemore Koto
branch Petrusburg
(Ward 3) allege that they were never presented with a
preliminary or final audit report relating
to their branches as
required by the audit guidelines. They say the final audit report
was signed on 22 June 2012, the second
day of the Provincial
Conference. They complained that ‘delegates’ from their
region had already been registered
for the conference. The response
to these serious allegations by the respondents amount to no more
than that “receipt
of the final audit was not a pre-requisite
for a provincial conference”. There is no denial that no
preliminary audit
report was presented to these branches. Nor do
the respondents deal with the serious allegation that the
provincial conference
was attended by delegates who were not duly
elected by the branches concerned.
The
appellants state that the
John Rasmeni
branch and the
Albert
Nzula
branch did not hold Bi-AGMs or BGMs and yet they had
‘delegates’ who attended the Provincial Conference. The
respondents
do not deny this.
As
stated earlier, the irregularity that occurred in the
Moses
Mabhida
branch in respect of 10 members who were prevented from
participating in a branch meeting and the exclusion of the
Joyce
Boom
branch from the Provincial Conference, establish conduct
that is inconsistent with section 19 of the Constitution. Once an
inconsistency with the Constitution is proved, this Court is
obliged by section 172 to declare that the conduct in question is
invalid,
66
unless it finds that the inconsistency is justifiable in terms of
section 36 of the Constitution. The respondents have not
advanced
any justification for the conduct. It follows that it must be
declared invalid.
The
remaining irregularities tabulated above constitute the violation
of the ANC’s constitution and its Membership Audit
Guidelines
which amount to the terms of the agreement between it and its
members. No explanation or justification was furnished
for these
serious breaches which adversely affected members of the party. The
affected members are therefore entitled to appropriate
relief.
It
follows that the appeal must succeed.
Remedy
The appellants have submitted that should we hold that the
Provincial Conference and decisions made pursuant to it are
unlawful
and void, it would be just and equitable for this Court to
order the ANC to install an interim structure in terms of
Rule 12.2(d) of
its constitution. The appellants draw our
attention to the fact that there may be insufficient time to
organise and conduct
a lawful provincial conference before the
National Conference which was due to be held on 15 December 2012
in Mangaung.
It is so that the conference was due to be held
shortly after the order on the merits was granted.
The
relevant part of rule 12.2(d) provides that:
“
The
NEC may suspend or dissolve a PEC where necessary. A suspension of a
PEC shall not exceed a period of three months. Elections
for a PEC
which, has been dissolved, shall be called within nine months from
dissolution.
The
National Executive Committee may appoint an interim structure during
the period of suspension or the dissolution of the PEC
to fulfil the
functions of the PEC.
”
67
(Emphasis
added.)
The
ANC submitted too that a just and equitable remedy would be for
this Court to direct its NEC to reconsider the complaints
of the
appellants or that the National Conference of the ANC, its highest
decision making organ, consider the complaints at
the start of the
conference. The ANC drew our attention to rule 11.3 which empowers
the National Conference “to review,
ratify, alter or rescind
any decision taken by any of the constituent bodies, units or
officials of the ANC”.
68
In
our view, a declaration that the provincial elective conference of
the 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.
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.
Costs
The
appellants have had substantial success in the application for
leave to appeal directly to this Court and in the appeal.
They urge
us to follow the ordinary practice that costs should follow the
result. They add that they were compelled to come
to this Court in
order to vindicate constitutional rights.
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.
Minority judgment
Relying
on
Theletsane
69
the minority judgment holds that the appellants’ case has
been adequately refuted by the respondents. Reference is made
to
the affidavit of the Secretary-General of the ANC to illustrate
that complaints of irregularities were addressed by setting
up a
task team which investigated and made recommendations on how the
grievances raised could be settled. The ANC, acting in
accordance
with its internal procedures, states the minority, acted upon the
recommendations and settled the grievances. Relying
further on the
Plascon-Evans
rule, the minority holds that the entire case
must be decided on the basis of the averments made by the
respondents.
70
We
disagree. In our view the minority approaches the case on an
incorrect footing. It proceeds from the premise 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. The factual basis for the review was
that the ANC ignored and failed to investigate the alleged
irregularities that they set out in their founding papers.”
71
In
our view this characterisation of the appellants’ case is
inaccurate. It is incomplete. 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 section 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. None of them is dealt with in the minority
judgment.
The
fact that the Secretary-General stated that all the complaints that
were referred to him were resolved by the task team
is not an
answer to the facts supporting the two causes of action. This is so
because the Secretary-General does not say that
all irregularities
supporting these two causes of action were resolved. In fact he
says the opposite. In relevant part he states:
“
The
bulk of the complaints which are raised by the applicants in their
founding papers are raised with the ANC for the first time
in this
Court papers. The ANC was never given an opportunity to deal with
the complaints which the applicants raised for the
first time in the
Court a quo and in this application before this Honourable Court.”
What
is significant is the fact that the Secretary-General does not
specify which irregularities constitute “the bulk”
of
complaints that are raised for the first time in these proceedings.
In view of this, the principles in both
Theletsane
and
Plascon-Evans
are not helpful. As indicated in our judgment,
the finding that the appellants have established two causes of
action is based
on irregularities that were either not disputed at
all or in respect of which bare denials were raised. It is
axiomatic that
bare denials do not raise a genuine dispute of fact.
Order
It
was for these reasons that the following order was made on
14 December 2012:
1. The appeal is upheld.
2.
The order of the High Court dismissing the
application is set aside.
3. 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.
4. There is no order as to costs.
For
the Appellants: Advocate DC Mpofu, Advocate M Lekoane and Advocate
JM Berger instructed by Bezuidenhout Attorneys.
For
the First to Twenty-Fifth Respondents: Advocate MH Wessels SC and
Advocate N Snellenburg; Advocate W van der Linde SC and
Advocate K
McLean instructed by Gous Vertue and Associates Inc.
For
the Twenty-Sixth Respondent: Advocate T Motau SC and Advocate M Zulu
instructed by Bomelas Attorneys.
1
Ramakatsa
and Others v Magashule and
Others
[2012] ZAFSHC 207.
2
CORAM:
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Nkabinde J, Skweyiya J, Yacoob J and Zondo
J. Cameron
J formed part of the quorum on the application for leave
to appeal only. Van der Westhuizen J did not form part of this
quorum
but was part of the quorum that heard the appeal on the
merits.
3
The
Order wrongly states that Froneman J concurred in it. It is a patent
error that will be corrected.
4
It
must be noted that the Court was differently constituted when the
application for leave to appeal was heard and during the
appeal. Van
der Westhuizen J did not hear the application for leave to appeal
and Cameron J was not present during the appeal.
5
Mpho
Ramakatsa, Tumiso Mbethe, Majoro Mpuru, Elisha Mbangula, Cecilia
Chaka and Ntshiwa Morolloane.
6
Elias
Magashule.
7
Thabo
Manyoni.
8
William
Bulwana.
9
Mamiki
Qabathe.
10
Msebenzi
Zwane.
11
Tate
Makgoe, Butana Khompela, Olly Mlamleli, Sisi Mabe, Sam Mashinene,
Fezi Ngumbentombi, Malewatle Nthedi, Sebenzile Ngangelizwe,
Manana
Tlake, Sisi Ntombela, Manana Sechoara, Sarah Moleleki, Madala
Ntombela, Jack Matutle, Meggie Sotyu, Mathabo Leeto, Jonas
Ramogoase, German Ramathebane, Max Moshodi and Madiro Mogopodi.
12
Section
38 of the Constitution:
“
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.”
13
In
terms of section 19 of the Constitution.
14
Promotion
of Administrative Justice Act 3 of 2000 (PAJA).
15
Above
n 1 at paras 54-5.
16
Id
at paras 58-60.
17
Id
at paras 69-73.
18
Id
at para 66.
19
Id
at para 87.
20
Id
at para 88.
21
Id
at paras 96-8.
22
Id
at para 108.
23
As
will appear later, Froneman J did not concur in the order granting
leave to appeal.
24
Described
at [12] a) and b) above.
25
Described
at [12] c) and d) above.
26
See
[12] e) and f) above.
27
Described
in [12] g) above.
28
See
[12] h) above.
29
Section
19 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
; and
(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.” (Emphasis added.)
30
Transvaal
Agricultural Union
v Minister of Land Affairs and Another
[1996] ZACC 22
;
1997 (2) SA 621
(CC);
1996 (12) BCLR 1573
(CC) at
para 19.
31
Section
86(1) of the Constitution.
32
Union
of Refugee Women and Others v Director: Private Security Industry
Regulatory Authority and Others
[2006] ZACC 23
;
2007 (4) SA 395
(CC);
2007 (4) BCLR 339
(CC).
33
Id
at para 21.
34
Apart
from the quoted parts, similar statements appear in paras 86, 87,
106 and 128 of the founding affidavit in the High Court.
35
At
[31]-[35] above.
36
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(AD)
at 634G-635C (
Plascon-Evans
).
37
Administrator,
Transvaal, and Others v Theletsane and Others
[1990] ZASCA 156
;
1991 (2) SA 192
(A) (
Theletsane
).
38
Id
at 195I-196E.
39
Id
at 197C-D.
40
Section
38 of the Constitution of the Republic allows a claim based on the
Bill of Rights to be brought on behalf of others.
41
This
right is entrenched in section 19 of the Constitution, the full text
of which appears in [63] below.
42
Under
the Unlawful Organisations Act 34 of 1960 the ANC, Pan Africanist
Congress and the South African Communist Party were banned.
43
Part
3 of the Electoral Act 73 of 1998 (Electoral Act).
44
Id
at Schedule 3 item 1(1).
45
Section
1(d) of the Constitution.
46
Sections
46(1)(d) and 105(1)(d) of the Constitution.
47
Annexure
A of Schedule 6 of the Constitution.
48
Section
19(3)(a) provides that “[e]very adult citizen has the right to
vote in elections for any legislative body established
in terms of
the Constitution, and to do so in secret”.
49
[1999]
ZACC 3
;
1999 (3) SA 1
(CC);
1999 (4) BCLR 363
(CC).
50
Id
at para 17.
51
Section
39(1) provides:
“
When interpreting the Bill of
Rights, a court, tribunal or forum—
(a) must promote the values that underlie an open and
democratic society based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.”
52
Section
36(1) of the Constitution provides:
“
The rights in the Bill of
Rights may be limited only in terms of law of general application to
the extent that the limitation
is reasonable and justifiable in an
open and democratic society based on human dignity, equality and
freedom, taking into account
all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its
purpose; and
(e) less restrictive means to achieve the purpose.”
53
Rule
3.2 provides: “Its policies are determined by the membership
and its leadership is accountable to the membership in
terms of the
procedures laid down in this Constitution.”
54
See
subrule 3.3 and 3.4 of the ANC’s constitution.
55
See
subrule 3.7 and 3.8 id.
56
Rule
26.1 id.
57
Natal
Rugby Union v Gould
[1998] ZASCA 62
;
1999 (1) SA 432
(SCA) and
Turner v Jockey
Club of South Africa
1974 (3) SA 633 (A).
58
1914
WLD 112.
59
Id
at 115.
60
Rule
9.
61
Rule
17.1 and 17.2.
62
The
duties of the Secretary-General are tabled in rule 16.6.
63
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(AD)
(
Plascon-Evans
).
64
Id
at 634G-635C.
65
Including
rule 17.2(b)(i)(aa) of the ANC’s constitution.
66
Section
172(1) of the Constitution provides:
“
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; and
(ii) an order suspending the declaration of invalidity
for any period and on any conditions, to allow the competent
authority
to correct the defect.”
See
also
Head of Department: Mpumalanga Department of Education and
Another v Hoërskool Ermelo and Another
[2009] ZACC 32
;
2010
(2) SA 415
(CC);
2010 (3) BCLR 177
(CC).
67
Rule
12.2(d) of the ANC’s constitution.
68
Rule
11.3 of the ANC’s constitution states that the National
Conference shall have the right and power to review, ratify,
alter
or rescind any decision taken by any of the constituent bodies,
units or officials of the ANC.
69
Administrator,
Transvaal and Others v Theletsane and Others
[1990] ZASCA 156
;
1991 (2) SA 192
(A)
(
Theletsane
).
70
Minority
judgment [52] above.
71
Id
[45] above.