Gauteng ANC: (Left) TK Nciza and Panyaza Lesufi brief the media in Johannesburg. (Papi Morake/Gallo Images)
The Johannesburg high court has set aside, with costs, the disputed Ekurhuleni regional conference, which saw the reelection of Mzwandile Masina and TK Nciza to top positions last year, before going on to assume higher positions at provincial and national level.
The ruling, which comes after eight disgruntled ANC members went to court citing unfair processes in the lead-up to the regional conference marred by violence, could have adverse implications on the Gauteng provincial conference that saw Panyaza Lesufi and Nciza elected as provincial chairperson and secretary respectively.
The disgruntled ANC members argued that the auditing and verification of members in good standing was performed by the ANC’s organising committee led by Nomvula Mokonyane, who is at the centre of the disputed numbers. They accused Nciza of singling out certain branches for possible disqualification from attending the conference on the basis of allegedly flouting a rule relating to the electronic scanning of members’ identity documents for registration.
They said Nciza purported to make the complaint on behalf of the then regional task team (RTT), but its other members said the complaint was his alone and accused him of fiddling with the verification process. They alleged that four branches singled out for complaint were disqualified just a week before the conference, giving them no time to exhaust appeal processes.
The disgruntled members told the court that the ANC decided that the conference should proceed with the 14 votes of the four branches being quarantined, meaning they would not be counted pending the final determination of the appeals. The same arrangement was made in respect of ward 83, where an appeal was allowed to be lodged on the day of the conference and its five votes quarantined pending the appeal.
The applicants argued that the quarantined votes turned out to be potential swing votes in the conference and this led to the declaration of the elections as being provisional.
“The provincial conference was imminent and the provisional nature of the regional election results created an impediment to it proceeding, because of the hierarchical nature of the ANC,” the court ruling read.
The provincial executive committee decided that the quarantined votes would not be counted and the results of the conference would stand and not implicate the provincial conference.
The ANC also raised the rule of 70% threshold for branches qualifying to go to a conference, which meant that an elective conference could proceed regardless of irregularities relating to the other 30%.
In a 55-page judgment delivered on Monday, Judge Denise Fisher poked holes in Mokonyane and Nciza’s answering affidavits, saying allegations of impropriety on their part were not dealt with, save by way of platitudes and bare denial.
Fisher said in terms of the final verification report, Mokonyane purported to deal with Nciza’s complaints emanating from the regional task team when it emerged from correspondence that she had been told by RTT members that they were his complaints alone.
Nciza — then the RTT coordinator — had written to Luthuli House complaining of unfair branch general meetings, saying the ANC’s online membership system had been manipulated by tempering with the scanner in some branches. He also complained that at certain branch meetings, members were not being electronically scanned but instead their identity numbers were instead directly taken from the attendance register.
But the regional task team wrote its own letter to the ANC, saying it was dismayed to learn that another process had ensued through Nciza and Mokonyane’s office, fiddling with the verification process.
In his judgment, Fisher said “the allegations in this letter from the RTT members are very serious. They cry out for an explanation. And yet they are not dealt with by the ANC.” He said the regional task team members’ concerns were not taken into account because the following day Mokonyane made a report disqualifying five wards.
Fisher said the party’s national dispute resolution committee led by Mdu Manana ruled that ward 83 should be allowed to participate but have its votes quarantined. But it was not not clear on what basis Manana had the authority to make such a ruling and it was also not clear who ruled that the votes of the other four wards would be quarantined, the judge added.
“Such a process is not provided for in the guidelines. Indeed, the guidelines suggest that the disputes raised as to the conduct of meetings by branches must be dealt with before the conference on the basis that all appeal processes are exhausted.”
Senzo Mchunu had also written to then acting secretary general Paul Mashatile and Luthuli House coordinator Gwen Ramokgopa, seeking urgent clarity as to the eligibility of the excluded branches
“It is also noted that in Ekurhuleni as a whole, branch secretaries did not make use of the10% scanner rule and that this practice was not just confined to the four branches. In essence, the question posed by Mchunu who was a chairman of the organising committee is why some branches were singled out for immediate disqualification because of alleged misuse of scanners when the misuse was widespread,” Fisher said.
“The fact that the chairman of the committee tasked with the verification of standing of branches was expressing concerns as to the fairness of the process seems important. Clearly there were concerns in senior ANC structures that the process might not have been fair.”
Following the conference the national executive committee instituted its own investigation led by Jeff Radebe. The inquiry recommended that ANC officials should look into the status of the regional conference as information was provided that more branches exceeded the quota and yet participated in the conference.
“It cannot seriously be disputed that Nciza was perceived as a controversial, powerful and ambitious figure. There can be little doubt that it suited the purposes of Nciza and others who had vested interests for the provincial conference to proceed notwithstanding the provisional nature of the results of the conference,” Fisher said.
“However, there seems to have been a large measure of discomfort in senior and median ANC levels as to how the impugned conference had been run. It becomes clear from the correspondence however that there was an intention in some quarters to forge ahead with the provincial conference notwithstanding this discomfort.”
The judge said the decision that was taken once the period of the provincial conference had already started gave the impression that every attempt was being made to forge ahead with the conference regardless of the illegalities which had ensued.
In his ruling, Fisher also took note of the provincial conference saying that the clear implication of the constitutional prescripts from the ANC constitution was that, for the structures to operate constitutionally, they must operate in an integrated manner in accordance with the constitution and guidelines.
“This means that, from the perspective of election of officials, lower structures are feeders for the middle structures and ultimately the NEC [national executive committee. If there is corruption and/or illegality in any tier of the structure, the entire structure is compromised.”
Fisher said that the entire lapse in process was so egregious that it evidenced a complete lack of regard for the application of fair process on the part of the national organising committee under Mokonyane. The court also found the NEC followed this up by abdicating its responsibility to a conflicted provincial executive committee, led by the very actor whose conduct was under scrutiny.
“To my mind, in doing this, it acted contrary to its duties under its own constitution and denied the applicants their section 19 rights.”
The judge said the quarantining of votes was inherently unfair in that it created potential for ex post facto manipulation of the voting results.
“This position was exacerbated by the ANC putting the very people who would benefit from this irregular appeal process in charge of it. It seems to me that the quarantining of the votes was nothing more than the paying of lip-service to the rights of the applicants.
“It could not rationally have been conceived as a legitimate way for the remedies of the affected branches to have been exhausted. The NEC allowed the provincial conference to proceed notwithstanding the clear illegality of the election process at the conference.’
“The provisional nature of the elections at the regional conference was such that it was not constitutional for the provincial conference to be convened. This is inherent in the hierarchical election structure which lies at the heart of democratic elections.
“At best, the NEC’s conduct in relation to the impugned conference reveals a profound disregard for the rules; at worst it constitutes turning a blind eye to an attempt to manipulate the votes by Nciza under circumstances where he was personally conflicted. Regardless of the motivations, it amounted to a materially unfair process,” the judge said.