Alleged irregularities ranging from intimidation to register rigging had infected the Free State ANC's delegate and voting processes from branch level all the way through to its provincial conference in June, the Constitutional Court heard on Thursday.
Advocate Dali Mpofu, acting for six disgruntled Free State ANC members – and thousands others from branches in the province – who are asking for the court to declare its June provincial conference and "all decisions and/or resolutions adopted there … declared unlawful and set aside" suggested that as many as 400 of the 750 voting delegates at the provincial conference were "tainted" – rendering the outcomes there illegitimate.
The current Free State provincial executive committee is strongly in favour of returning incumbent president Jacob Zuma for a second term and the Constitutional Court's judgment – expected before the party goes to Mangaung in December for its elective conference – could impact on whether the province can send members to the conference. It may also impact on whether the ANC decides to postpone its elective conference and on the outcome of who leads the party.
Currently, Zuma is being challenged by "forces of change" groupings that are calling for him to be replaced by his deputy Kgalema Motlanthe. Motlanthe, who has already been nominated by the ANC Youth league to challenge Zuma, has yet to accept a nomination.
Those challenging the legality of the province’s provincial executive committee are supportive of a change of ANC leadership.
Mpofu had claimed that several branches including the Fidel Castro branch, the Batho Pele branch and the Moses Mabhida branch had suffered a litany of irregularities. These included both parties agreeing that the Fidel Castro branch had been unable to audit its membership, yet still sent 10 voting delegates to the Free State provincial conference
Drawing from correspondence between former provincial secretary Sibongile Besani and the ANC's national head office, Mpofu pointed out that among others, membership "files were tampered with and fiddled from the outset"; that there was a "developing tendency that gangsters and criminals were being used to intimidate branch members"; that "meetings were manipulated"; and that money was used to influence the process.
Mpofu said that at some point, Besani, as "chief executive officer of the party at that level" reached a situation where he said "standing where I am, I don’t think this [procedure] is lawful".
Mpofu went on to assert that these complaints had not been properly dealt with by ANC secretary general Gwede Mantashe. However, Mantashe in an affidavit filed with the court, stated that to his knowledge all the complaints initially raised with the national office had been dealt with and that "the bulk of those" appearing on the founding affidavits when the matter first appeared in the Free State High Court "were raised with the ANC for the first time".
In matters where there are a dispute of facts, the court will use the Plascon-Evans rule emanating from a 1984 Supreme Court of Appeal judgment that set a precedent for judges to base decisions on the respondents’ version of facts.
Mpofu had also contended that the actions of the Free State leadership had infringed on the applicant’s constitutional rights to freedom of political association and to participate in the activities of a political party – as per section 19.1(b) of the Constitution. The application for judicial review of the actions of the dominant ANC faction in the Free State was also brought under the Promotion of Administrative Justice Act.
Counsel for the Free State ANC’s provincial committee, Willem van der Linde told the court that his clients did not dispute that there were problems with branch processes leading up to the provincial conference but contended that "they were attended to".
Justice Zak Yacoob questioned advocate Terry Motau, acting for the ANC, on the vagueness of the party’s submissions with regard to the national office’s interventions over the complaints that disgruntled branches had lodged.
Yacoob noted that there was “no evidence that specific complaints were addressed … and one doesn’t know what the deployees actually did.”
Motau was not able to extrapolate on specifics, only to say that of the 60 complaints lodged, the 45 were “addressed”. He noted that Mantashe “took the view that he sufficiently deals with” the question of the probity of the branch processes “through the pre-provincial conference audit and the post-conference audit”.
This despite reservations from some of the justices, including Yacoob, that the respondents were not providing “complete answers to the detail” that would have burnished the integrity of the ANC’s audit process and interventions.
Motau had also suggested that the Constitutional Court leave the matter to be dealt with by the ANC in accordance with rule 11.3 of its constitution, which allows for the national conference – which in this case will happen in two weeks' time – 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”.
Chief Justice Mogoeng Mogoeng however found this “problematic” as it meant people who were “part of the collective to deal with the problem” at Mangaung, also, potentially, constituted part of the problem before the court.
The Constitutional Court reserved judgment.
Outside court, meanwhile, groups of Zuma supporters faced off against ANC supporters calling for change. Both groups numbered around 300, singing and hand-signalling people.
In Sasolburg, the ANC leadership in the Free State was holding its provincial nominations conference to decide on which leaders it would support in Mangaung.