ConCourt gets dragged into Mangaung

2012-11-20 14:18

The Constitutional Court has been dragged into the road to Mangaung, when it will tomorrow make an order related to alleged fraud in the election of the ANC’s provincial executive committee.

Advocate Dali Mpofu today asked the Constitutional Court to hear a case involving the alleged rigging of the Free State ANC’s elections, saying it would “affect literally all the citizens of this country and all generations to come”.

Mpofu is representing six members of the ANC in the Free State, who are challenging the election of the Free State ANC’s Provincial Executive Committee (PEC).

The six members of the party, who Mpofu says represent class action litigants numbering between 3 000 and 4 000 members of the ANC, allege that “parallel branches” of the ANC in the Free State were fraudulently created.

They allege that this has meant that the election of the PEC, headed by Premier Ace Magashule, was improper and that “unlawful” delegates would attend Mangaung.

The ANC’s national elective conference in Mangaung was at the forefront of the appeal today, with Mpofu saying that some of the “unlawful processes” related to Mangaung were being finalised in the next week.

“The reality is that the (Mangaung) conference is likely to determine, to put it mildly, the general leadership of this country,” he said.

Mpofu raised the right of access to courts as well as political rights in the Bill of Rights in support of his application for the ConCourt to hear the case.

Lawyers representing the ANC and the Free State PEC were taken to task by justices of the court for failing to file answering affidavits despite being asked by the court to do so timeously.

Deputy Chief Justice Dikgang Moseneke asked Advocate Majel Wessels why an affidavit had not been filed “explaining why your client failed to address these serious allegations of electoral fraud”.

Part of the reason why the case was never heard by the Free State High Court was because it found that all the PEC members had not been properly joined and served with papers.

The ANC and the PEC did not file answering affidavits in the high court either, relying on technical defences to defend the matter.

But Wessels seemed taken aback today when Chief Justice Mogoeng Mogoeng said that an application for leave to appeal to the Constitutional Court was made, it was on the “clear understanding you will also be required to deal with merits”.

Wessels said that this would have been very difficult, because the complaint related to over 300 branches of the organisation.

Wessels said that it would have taken at least three weeks for them to gather the required evidence and also pointed out that the national leadership of the ANC had endorsed a preliminary investigation clearing the PEC of wrongdoing.

But Justice Edwin Cameron found the use of the word “endorsed” to be “curious”, because the ANC already knew at that stage that the court action was pending.

Justice Zak Yacoob elaborated that one would in such a case expect the evidence of the investigation to be “readily available”.

But as Mogoeng pointed out, “we know that there’s Mangaung coming”.

The court will therefore have to make a decision in light of the fact that the date for Mangaung is “relatively fixed”, as Wessels pointed out.

It will therefore have to decide whether it will allow the merits of the appeal to be argued before the Constitutional Court, whether to refer the matter back to the high court, as well as the timelines for filing affidavits.

After court adjourned, about 30 Free State ANC members burst into applause.

Gathered on the steps of the court, they sang songs and made the substitution symbol which has become synonomous with a call for leadership change in the ANC.

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