The high court in Grahamstown on Tuesday delivered a distinctly mixed bag for those who still wish to challenge provincial proceedings leading up to the ANC’s elective conference — and who may want to challenge that pinnacle conference itself.
A full bench of the court threw out a challenge by 11 ANC members in their personal capacity in which they sought to overturn the chaotic Eastern Cape elective conference between the end of September and early October.
No case had been made out to nullify that conference, the court found, and dismissed the application with costs.
But the judgment provides a glimmer of hope for those who have threatened to similarly challenge ANC proceedings in the Free State, and other potential rebels.
The urgency of the Eastern Cape matter was established simply by the possibility that undemocratically elected leaders could take part in the national conference, said presiding judge Dawid van Zyl, setting a low bar for others to argue urgency.
In addition the court found that while valid ANC rules require that internal party complaints mechanisms had to be exhausted before turning the courts, this is “not an absolute rule.”
“For undemocratically elected functionaries to remain in their positions, and to participate in the structures and in the activities of the party would … constitute a continuous violation of the rights of party members,” sad the court — a violation that could properly be adjudicated by the courts.
But at the same time the court found that the Eastern Cape matter had not been “ripe for hearing” yet, because the ANC’s national executive committee (NEC) had the power to step in to deal with irregularities, at least at a provincial level, even though branch members “somewhat opportunistically” claimed otherwise.
When it comes to dispute of facts about what happened within the party — such as who voted for which candidate improperly — the NEC is best placed to decide on matters, said the court.
In argument the branch members who had wanted the Eastern Cape conference overturned had contended that “the complaint of a single party member of an irregularity at branch level in the lead up to the Conference, is sufficient to justify the granting of an order declaring the Conference invalid.”
The court reaffirmed now well-entrenched doctrine that the relationship between a political party and its members is a contractual one, with rights and duties flowing both ways. The contract goes beyond written rules, however, and can include decisions made at the national conference as well as “established or well-known practice in use in the ANC”.
This leaves much leeway for the party, by way of its secretary general, to tell a court what is and what is not the practice of the ANC — put the burden on challengers to prove otherwise.
The Eastern Cape branch members had complained that two wards had participated in that province’s conference despite not being properly delegated. They also said that the provincial conference had failed because it never adopted a report on credentials and had been adjourned, to never be properly reconvened before the supposed election of a provincial executive.
The court accepted the explanations for these supposed discrepancies from the ANC in saying there “is no compelling reason to question the veracity” of explanations provided under oath.