The Free State ANC's internal ructions could shift the goalposts in the upcoming leadership battle, writes Niren Tolsi.
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 is acting for six disgruntled Free State ANC members – and thousands of others from branches in the province – who are asking the court to declare the party's June provincial conference and "all decisions and/or resolutions adopted there … unlawful and set aside". He 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 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 influence whether the ANC decides to postpone its elective conference and could have an impact on the outcome of the leadership contest.
Currently, Zuma is being challenged by "forces of change" groupings that are calling for him to be replaced by his deputy, Kgalema Motlanthe, who has yet to accept a nomination. Those challenging the legality of the Free State's provincial executive committee support a change of ANC leadership.
Mpofu claimed in court that several branches, including the Fidel Castro, Batho Pele and Moses Mabhida branches, had suffered a litany of irregularities. Both sides agreed 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 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.
Properly dealt with Mpofu said that at some point, Besani, as "chief executive officer of the party at that level", had reached a situation where he said that "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, in an affidavit filed with the court Mantashe stated that, to the best of his knowledge, all complaints that had initially been 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 is 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 respondent's version of facts.
The situation within the Free State ANC appears intractable: earlier in the hearing Justice Thembile Skweyiya, mindful that historically courts had been unable to satisfactorily settle political disputes, asked Mpofu whether there was "any chance of meaningful engagement between the factions" to settle the matter. Mpofu responded: "The short answer is no."
Mpofu also contended that the actions of the Free State leadership had infringed on the applicants' constitutional rights to freedom of political association and to participate in the activities of a political party. The application for a judicial review of the actions of the dominant ANC faction in the Free State was also brought under the Promotion of Administrative Justice Act.
At the time of going to press, the counsel for the Free State ANC's provincial committee, Majel Wessels, was due to start arguments before the court. Outside court, however, groups of Zuma supporters faced off against ANC supporters calling for change. The groups numbered about 300 supporters each, singing and making hand signals.
The ANC leadership in the Free State – whose legitimacy is being contested in the Constitutional Court – was holding its provincial nominations conference in Sasolburg at the same time as the hearing, to decide on which leaders it would support in Mangaung.