Lawfare puts ANC elective at risk
High court battles in four important provinces — KwaZulu-Natal, the Eastern Cape, the Free State and the Northern Cape — could force the governing ANC to delay its crucial elective conference in December.
With the high court entering its final term for the year, the proliferation of applications challenging the legitimacy of ANC provincial conference outcomes and the terms of office of other provincial executive committees (PECs) are likely to see the four provinces going into the December conference with their leadership tussles — all of them proxies for the national succession battle — unresolved.
While political observers warned the legal challenges could delay the national conference, ANC secretary general Gwede Mantashe said he did not anticipate that court action would derail it.
“At the moment there is nobody who threatens to interdict the national conference. And the current court challenges must be resolved and they will be resolved.”
It is also likely that when the contested PECs oversee pre-conference branch general meetings and delegate selection processes, this will fuel more disputes between supporters of ANC deputy president Cyril Ramaphosa and party national executive committee (NEC) member Nkosazana Dlamini-Zuma, the frontrunners for the ANC presidency.
The ANC national leadership decided this week to join the appeal by the KwaZulu-Natal PEC against the judgment that declared it unlawful. The NEC has also apparently dropped the provincial task team it had earlier decided to appoint to replace the PEC.
The PEC said in court papers last week that it believes the Supreme Court of Appeal was the right forum to hear its appeal, but an outcome before December is highly unlikely.
This will spark a fresh bid for an enforcement order by the applicants who had successfully challenged the outcome of the November 2015 provincial conference.
The weekend’s bloody Eastern Cape provincial congress sparked another court challenge, with disgruntled delegates seeking to halt the gathering midway, after a brawl between factions loyal to Premier Phumulo Masualle and newly elected chairperson Oscar Mabuyane. The case was struck off the roll. Mabuyane said the province anticipated another attempt to nullify the conference outcomes.
But the regional and provincial leadership, backed by the disgruntled delegates, are pinning their hopes on a report submitted to the NEC on Wednesday, which blames the minister of defence and military veterans, Nosiviwe Mapisa-Nqakula, for the chaos.
The report’s contents were leaked to the Mail & Guardian with sources saying it details the objections launched by Masualle’s backers in the main plenary, which included the head of security’s concerns that two entrances to the venue were used. The security head said the management of the international convention centre, where the conference was held, collaborated with a faction to usher fraudulent delegates into the hall through a back entrance.
“It was reported to the steering committee [led by Mapisa-Nqakula] and there are NEC members who will testify that nothing was done about it,” a regional leader who helped to write the report told the M&G on condition of anonymity.
Another regional leader said: “The ID numbers of delegates didn’t correspond with ID numbers collected during registration in branches. ”
Masualle’s backers have refused to accept the conference outcomes. The report says delegates supporting him did not voluntarily leave the conference hall. Instead, they were beaten and chased out in the chair-throwing chaos that ensued.
“Mapisa-Nqakula is responsible for the breakdown of the conference because she wanted delegates to vote on credentials which were still being disputed,” said a senior provincial ANC leader sympathetic to Masualle.
After reaching a deadlock, the steering committee wanted to adjourn the conference, he said. But “Nosiviwe stood up and went straight to the mic. She said, ‘We are not going to adjourn, that nonsense is not going to happen, we are going to vote on credentials’.”
Another senior Eastern Cape ANC leader said: “Delegates stood up and said ‘we are questioning the same credentials’, and said how can they vote. Then comrades started singing the song ‘lento uyiyenzayo ay’lunganga [this thing you are doing is not right]’, then chairs were thrown and chaos started.”
Mantashe confirmed that his office received an appeal by disgruntled ANC members from the Eastern Cape. He defended Mapisa-Nqakula for allowing the vote, saying what she did was standard procedure within the ANC.
“If you can’t agree in a conference, what you do is to put it on the vote, what is wrong with that?”
In the Northern Cape, the PEC led by chairperson Zamani Saul faces a high court challenge from supporters of Premier Sylvia Lucas who don’t want regional conferences scheduled for November to go ahead.
Last month, the Northern Cape PEC received a letter from disgruntled ANC members in the province warning them not to go ahead with the regional conferences because the convening and outcomes of the provincial conference were “irregular”.
Northern Cape secretary Deshi Ngxanga said he was “flabbergasted if not amazed” by claims that the current PEC was unlawful.
In the Free State, branch member Lefa Mifi has written to provincial chairperson Ace Magashule to warn him to disband the PEC before Friday or prepare to be challenged in the high court.
The Free State was supposed to have held its conference at the end of August. It has also failed to do so within a 90-day grace period allowed by the ANC’s constitution.
Mantashe said he expected the Free State ANC to hold its provincial conference before December.
He said all conferences that are long overdue should take place.
Mantashe dismissed threats of legal challenge by Northern Cape ANC rebels, saying branch members had no authority to launch a dispute.
“There’s a PEC there, and it is going ahead with its work. The PEC has been accepted and has been inducted,” Mantashe said.
In KwaZulu-Natal the fight will continue about the status of the high court judgment while an appeal is working its way through the courts. The branches led by Vryheid ANC councillor Lawrence Dube, which took the PEC to court, said they would seek an execution order of the judgement, according to spokesperson Sithembiso Mshengu. The PEC that was declared unlawful by the court is led by chairperson Sihle Zikalala and secretary Super Zuma. The branches that challenged them are loyal to former chairperson Senzo Mchunu, who lost the 2015 race for chairperson to Zikalala.
“Just because they have lodged papers indicating intention to appeal doesn’t mean that the existing order is automatically set aside pending the outcome of the appeal. Whoever is giving the unlawful PEC legal advice is misleading them,’’ Mshengu said.
“Whether the NEC has joined them or not is neither here nor there. This has no impact on the order. The ANC has always been respondent 38 in the matter so it is immaterial whether or not they join the action.’’
Mshengu said they would be finalising the finer details of the application for an execution order in the next few days.
He said the three-a-side negotiations between representatives of the two factions would continue in parallel to the legal processes. “Settling the court issues is not a precondition for unity discussions,’’ Mshengu said.
He said their negotiators — former PEC and Cabinet members Mike Mabuyakhulu and Peggy Nkonyeni, member of the KwaZulu-Natal legislature Nhlakanipho Ntombela and the sitting PEC’s team, led by deputy chairperson Willies Mchunu — would set timeframes and an agenda for their unity talks in due course.
He was not aware when the first official meeting between the two sides would take place.
“We initiated this process and we are grateful and happy that they have agreed to participate in it,’’ Mshengu said.
A “core team” from the Senzo Mchunu camp had a day-long meeting with the ANC national leadership in Durban on Monday, for the whole day, with Mshengu describing it as “very cordial”.
“We were very grateful for the opportunity they accorded us. We ventilated all of the issues we felt necessary,’’ he said.
Mshengu said President Jacob Zuma had conceded at the meeting that issues raised by the branches should have been handled differently and had apologised for not getting back to them as he had promised at a meeting in December 2015.
Kwazulu-Natal ANC secretary Super Zuma said on Tuesday the NEC would join the appeal because “the judgement contains wider implications and has a potential to distort and weaken the authority of the PEC and NEC, which are the supreme structures of the organisation”.
Zuma said they welcomed and respected the decision of the NEC to “continue to recognise the existence” of the PEC and were committed to the “ongoing process of engagements seeking to find a sustainable political solution’’.
Political analyst professor Susan Booysen said a precedent of disqualifying the votes of provinces caught up in litigation had been set at the 2012 conference when the Free State’s provincial conference was declared unlawful.
“If one works that back to the current situation, if you count threatened legal action, it’s possibly six of the nine provinces. Those votes could be discounted if push comes to shove and none of these cases are nearing Constitutional Court action,” she said.