Lawyers differ on Free State ruling

2012-12-16 10:00

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The fate of the ANC’s 53rd elective conference depends on the significance the party attaches to 31 words in a Constitutional Court order.

This was one of the few things five senior advocates and a former judge, when interviewed about this week’s dramatic Consitutional Court ruling involving the Free State ANC, agreed on.

On Friday, the court ruled that “the provincial ­elective conference of the Free State province of the African National Congress held at Parys from 21 to 23 June 2012 and its decisions and resolutions are declared unlawful and set aside”.

This means that the election of the Free State’s provincial executive committee (PEC), headed by ­Premier Ace Magashule, has been declared invalid. But with the ­detailed reasoning behind the bare-bones order only set to be delivered on Tuesday – and with the conference beginning today – lawyers are split over what the order means.

One interpretation is that the ­order only means the 20 Free State PEC delegates cannot participate in the elective conference, while the 324 branch delegates will be able

to participate.

According to one senior counsel in Joburg: “It is members of the branches who will be certified, and it is delegates of the branches who will be able to vote.”

The contrasting view is that PEC involvement in processes where branch delegates to ­Mangaung are selected has tainted the entire Free State delegation.

Another senior counsel said: “The underlying authority of the PEC delegation also determines the ­validity of the branch delegation.”

A sitting judge said the ANC will have to accept that “anybody who derives their voting status from

a decision taken at that provincial conference?.?.?.?will not be able to participate in the national conference”.

Whatever this elective conference decides to do, it now has to take into account that its decisions could ­affect its legal validity.

One source said: “The outcome of the entire ­conference could become subject to a court challenge, especially if ­people vote who are not

authorised to vote.

“They’d be taking a hell of a chance if they go ahead (with ­allowing ANC Free State delegates to participate). It could mean that the entire conference is set aside.”

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